Exhibit 10.1


 


TRANCHE 1


 


SALE AGREEMENT


 


THIS SALE AGREEMENT (“Agreement”) is made and
entered into as of the 6th day of April, 2005, by and between CENTERPOINT PROPERTIES TRUST, a Maryland
real estate investment trust (“SELLER”),
and CENTERPOINT JAMES FIELDING, LLC,
a Delaware limited liability company (“PURCHASER”).


 


In
consideration of the mutual promises, covenants and agreements hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:


 


ARTICLE I


Sale of Properties


 


1.1                               Sale of Properties.  Seller
agrees to sell, assign and convey to Purchaser, or cause to be sold, assigned
and conveyed to Purchaser, in the event that one or more of the Properties is
currently owned by an entity affiliated with Seller (hereinafter collectively
referred to as “Seller Affiliates”),
and Purchaser agrees to purchase from Seller, the following:


 


1.1.1                        Land and Improvements.  That
certain real property commonly described on
Exhibit A, being more particularly described on Exhibits B-1 through B-3, respectively, attached hereto
(collectively, the “Land”),
together with any improvements located thereon (collectively, the “Improvements”);


 


1.1.2                        Leases.  All of Seller’s or Seller
Affiliates’, as the case may be, right, title and interest, if any, in and to
all leases, subleases, licenses and other occupancy agreements, together with
any and all amendments, modifications or supplements thereto (hereafter
referred to collectively as the “Leases”),
being more particularly described on Exhibits
C-1 through C-3,
respectively, attached hereto, and all prepaid rent attributable to the period
following Closing, as herein defined, and subject to Section 4.2.4
below, the security deposits under such Leases (collectively, the “Leasehold Property”);


 


1.1.3                        Real Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all easements and appurtenances to Seller’s or Seller
Affiliates’, as the case may be, interest in the Land and the Improvements,
including, without limitation, all mineral and water rights and all easements,
licenses, covenants and other rights-of-way or other appurtenances used in
connection with the beneficial use or enjoyment of the Land and the
Improvements (the Land, the Improvements and all such easements and
appurtenances are sometimes collectively referred to as the “Real Property”);


 


1.1.4                        Personal Property.  All
personal property (including equipment), if any, owned by Seller or Seller
Affiliates, as the case may be, and located on the Real Property as of the date
hereof, and all fixtures, if any, located on the Real Property as of the date
hereof or as of the Closing Date (collectively, the “Personal Property”); and


 


1.1.5                        Intangible Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all service, equipment, supply and maintenance
contracts (collectively, the “Contracts”),
guarantees, licenses, side track agreements (and other agreements including
leasehold agreements attendant to the Property), approvals,


 





















 


utility
contracts, plans and specifications, governmental approvals and development
rights, certificates, permits and warranties (and including all escrows,
indemnities, representations, warranties and guarantees Seller received from
any and all vendors from when Seller acquired the Properties), including,
without limitation environmental insurance policies (to the extent same can be
assigned with a reservation of rights for the benefit of Seller as well) and
other environmental escrows and indemnities (to the extent same can be assigned
with a reservation of rights for the benefit of Seller as well), if any, relating
to the Real Property or the Personal Property, to the extent assignable
(collectively, the “Intangible Property”).  (For each individual parcel, the Real
Property, the Leasehold Property, the Personal Property and the Intangible
Property are sometimes collectively hereinafter referred to as the “Property”, and for all parcels, taken
together, the Real Property, the Leasehold Property, the Personal Property and
the Intangible Property are collectively referred to as the “Properties”).  It is hereby acknowledged by the parties that
Seller shall not convey to Purchaser claims relating to any real property tax
refunds or rebates for periods accruing prior to the Closing, to the extent
such taxes have been paid by Seller prior to the Closing, existing insurance
claims and any existing claims against previous tenants of the Properties,
which claims are hereby reserved by Seller, subject to the terms and provisions
of Section 4.2.4 below.


 


ARTICLE II


Purchase Price


 


2.1                               Purchase Price. 
Subject to the provisions of Section 9.9 below, the purchase
price for the Properties shall be Seventy-Two Million Four Hundred Thousand and
No/100 Dollars ($72,400,000.00) (“Purchase
Price”) in currency of the United States of America. The Purchase
Price, as adjusted by all prorations as provided for herein, shall be paid by
Purchaser at Closing as directed by the Seller by wire transfer of immediately
available federal funds of The United States of America.


 


ARTICLE III


Deposit


 


3.1                               Purchaser Deposit. 
Purchaser has deposited the amount of Ten Million and No/100 Dollars ($10,000,000.00)
(“Initial  Deposit”) with Chicago Title Insurance
Company (“Escrow Agent” or “Title Company”) in immediately available
federal funds of the United States of America. 
The Initial Deposit, together with any interest thereon, are collectively
referred to herein as the “Deposit.”  The Deposit shall be held by Escrow Agent
pursuant to an Escrow Agreement in the form attached hereto as Exhibit E.


 


3.2                               Application of the Deposit.  At
the time of the final Closing of the Properties, including, but not limited to Substitute
Properties, the Deposit shall be applied to the Purchase Price.  If the Closing does not occur in accordance
with the terms hereof, the Deposit shall be held and delivered as hereinafter
provided.


 


3.3                               Interest Bearing – Purchaser
Deposit.  The Deposit shall (i) be held in an
interest-bearing escrow account by Escrow Agent in an institution as directed
by Purchaser and reasonably acceptable to Seller and (ii) include any interest
earned thereon.  To allow the interest bearing
account to be opened, Purchaser’s tax identification or social security numbers
are set forth below its signature.


 


3.4                               Seller Deposit.  Concurrently
with the complete execution and delivery of this Agreement, Seller has deposited
a Ten Million and No/100 Dollars ($10,000,000.00) Letter of Credit (“Seller Letter of Credit”) with Escrow
Agent.  The Seller Letter of Credit shall
be held by Escrow


 


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Agent
pursuant to an Escrow Agreement in the form attached hereto as Exhibit E modified to conform to the
terms of this Agreement and as required by Title Company when Title Company
holds a letter of credit.  The Seller
Letter of Credit shall (i) be unconditional and irrevocable, (ii) be in a form
reasonably acceptable to Purchaser, (iii) be issued by a financial institution
doing business in the United States of America, with offices in Chicago,
Illinois and (iv) expire no earlier than June 30, 2005.  The cost of issuing and maintaining the
Seller Letter of Credit shall be paid by Seller.  The Seller Letter of Credit and the proceeds
of the Seller Letter of Credit (“Proceeds”)
have been provided to assure performance and observance by Seller of all of its
closing obligations under this Agreement. 
Accordingly, in the event of a Seller default as described in Section 13.1
hereinbelow, or in the event that the Seller Letter of Credit will expire
within thirty (30) days or less, Purchaser shall have the right to direct
Escrow Agent to draw upon the Seller Letter of Credit.  All Proceeds received by Escrow Agent shall
be retained by Escrow Agent and held or disbursed pursuant to the terms of the
Escrow Agreement and this Agreement.  At
the time of the final Closing of Properties, including, but not limited to,
Substitute Properties (defined below) under this Agreement, the Seller Letter
of Credit shall be delivered to Seller.


 


ARTICLE IV


Closing, Prorations and Closing Costs


 


4.1                               Closing.  The
closing of the purchase and sale of the Properties shall occur on or before 10:00
a.m. Central time on May 20, 2005 (the “Scheduled
Closing Date”) and shall be held at the offices of Escrow Agent, or
at such other place agreed to by Seller and Purchaser (said closing is
hereinafter referred to as the “Closing”).
 Notwithstanding anything to the contrary
contained in this Section 4.1, Seller or Purchaser, as the case may
be, shall have the right to extend the closing date for one or more of the
Properties in accordance with the provisions of Sections 9.9, 10.1 and 12.1
hereof.  “Closing” shall be deemed
to have occurred when the Title Company has been instructed by both parties to
pay the applicable portion of the Purchase Price to Seller and to record the
applicable Deeds, as hereunder defined. 
The date of the Closing is sometimes referred to in this Agreement as a “Closing Date.”  The transactions contemplated by this
Agreement shall be closed through an escrow with Escrow Agent on the Closing
Date, in accordance with the general provisions of the usual form “New York
Style” Deed and Money Escrow Agreement used by Escrow Agent, with such
provisions required to conform to the terms of this Agreement.


 


4.2                               Prorations.  All
matters involving prorations or adjustments to be made in connection with
Closing and not specifically provided for in some other provision of this
Agreement shall be adjusted in accordance with this Section 4.2.  Except as otherwise set forth herein, all
items to be prorated pursuant to this Section 4.2 shall be prorated
as of midnight of the day immediately preceding a Closing Date, with Purchaser
to be treated as the owner of the applicable Properties, for purposes of
prorations of income and expenses, on and after a Closing Date.


 


4.2.1                        Taxes.  Subject to the provisions of
this Section 4.2.1, real estate and personal property taxes, if
any, accrued, but not yet due and owing as of the Closing and installments of
special assessments, if any, due and owing during the installment year in which
the Closing occurs (hereinafter collectively referred to as “Taxes”) shall be prorated as of the Closing
Date, and, notwithstanding any other provision contained in this Agreement,
shall not be reprorated.  Seller shall
pay all Taxes due and payable as of the Closing Date.  If the Taxes have not been set for the year
in which Closing occurs or any prior year, then the proration of such Taxes
shall be based upon the most recent ascertainable tax bills.  Notwithstanding any other provision of this
Agreement, (a) there shall be no proration of Taxes with respect to tenants
whose leases obligate said tenants to pay Taxes when the tax bills are issued,
and (b) the amount otherwise due Purchaser under this Section 4.2.1
shall be reduced by an amount equal to all tenant deposits held by Seller for
Taxes at the time of Closing (collectively, the “Tenant Tax Deposits”) and the Tenant Tax Deposits shall be


 


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turned
over to Purchaser at Closing.  Tenant Tax
Deposits received by Seller following Closing for any period of time after
Closing shall be paid to Purchaser.  The
amount due under this Section 4.2.1 shall not be credited to
Purchaser at Closing but shall be deposited into the operating account for the
Properties and held by Seller as property manager pursuant to the Management
Agreement described in Section 9.6 below.


 


Seller shall contest real estate taxes and/or assessment levels, as the
case may be, prior to Closing if Seller deems reasonable in its judgment as a
commercially prudent owner of real estate. 
All costs incurred in connection with such contest shall be paid by the
parties in proportion to benefit received by the parties in connection with any
reduction of such real estate taxes or assessments as the case may be.


 


4.2.2                        Insurance.  Seller shall assign its
existing insurance policies to Purchaser upon Closing.  Purchaser shall be named as a named insured
thereon and all premiums with respect thereto shall be prorated between the
parties as of Closing.


 


4.2.3                        Utilities.  Purchaser and Seller hereby
acknowledge and agree that the amounts of all electric, sewer, water and other
utility bills, trash removal bills, janitorial and maintenance service bills
and all other operating expenses relating to the applicable Properties not paid
by tenants under Leases and allocable to the period prior to the Closing Date
shall be determined and paid by Seller before Closing, if possible, or shall be
paid thereafter by Seller or adjusted between Purchaser and Seller immediately
after the same have been determined. 
Seller shall attempt to have all utility meters, or utility services not
paid by tenants under Leases, read as of the Closing Date.  Purchaser shall cause all utility services to
be placed in Purchaser’s name as of the Closing Date.  If permitted by the applicable utilities, all
utility deposits in Seller’s name shall be assigned to Purchaser as of the
Closing Date, and Seller shall receive a credit therefor at Closing.


 


4.2.4                        Rents.  Rent [(including estimated
pass-through payments for common area/operating expenses, but not for Taxes),
collectively “Rents”] for the
month in which Closing occurs shall be prorated for said month based upon the
Rents estimated to have been collected by Seller as of the Closing Date.  Rents for said month shall be reprorated
within seven (7) Business Days after the end of said month based on Rents actually
received.  During the period after
Closing, (i) Purchaser shall deliver to Seller any and all Rents accrued but
uncollected as of the Closing Date, to the extent subsequently collected by
Purchaser; provided, however, Purchaser shall apply Rents received after
Closing first to payment of current Rents then due, and thereafter to
delinquent Rents (other than “true up” payments received from tenants
attributable to a year-end reconciliation of actual and budgeted pass-through
payments, which shall be allocated among Seller and Purchaser pro rata in
accordance with their respective period of ownership as set forth in Section 4.2.5
below), and (ii) Seller shall deliver to Purchaser any and all Rents collected
by Seller for any period after Closing.


 


Subject to the provisions of the following sentence, Seller shall be
entitled, after the Closing, to take any action against a tenant which would
not result in a termination of any Lease or a tenant’s right of occupancy
thereunder (“Seller Action”).  Notwithstanding the foregoing, Seller shall
not take any Seller Action unless Seller shall have first provided Purchaser
with not less than five (5) Business Days’ notice of its intent to take action
against a tenant, together with a description of the subject matter of the
proposed Seller Action.  Purchaser agrees
that it shall use commercially reasonable efforts to collect all pass-through
rents payable by tenants and any delinquent Rents (provided, however, that
Purchaser shall have no obligation to institute legal proceedings, including an
action for unlawful detainer, against a tenant owing delinquent Rents).


 


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The amount of any unapplied security deposits (plus accrued interest
thereon if payable to a tenant under its lease) under the Leases held by Seller
in cash at the time of Closing shall be credited against the Purchase Price;
accordingly, Seller shall retain the actual cash deposits.  Notwithstanding anything in this Section 4.2.4
to the contrary, if any security deposits are in the form of a letter of
credit, such security deposits shall not be prorated, but shall be turned over
by Seller to Purchaser at the Closing by the delivery thereof by Seller to
Purchaser in accordance with this provision. 
In addition, Seller shall use reasonable efforts to deliver appropriate
duly executed instruments of transfer or assignment of such letters of credit
which are required to establish Purchaser as the new beneficiary thereunder and
any consents required by the issuing bank for the transfer of such letters of
credit.  If required, Seller shall use
reasonable efforts to arrange for the issuance by the issuing bank of any
authorization to the transfer, together with the delivery of such letters of
credit (and any letter of transfer that is required by such letter of
credit).  Any fees imposed by such
issuing banks in connection with such transfers which are not the obligation of
the applicable tenant to pay shall be paid by Seller.  In the event that any letter of credit is not
transferable as of Closing, Seller shall cooperate with Purchaser in all
reasonable respects following the Closing so as to transfer the same to
Purchaser or to obtain a replacement letter of credit with respect thereto in
favor of Purchaser, in either case at no cost or expense to Purchaser.  Until any such letter of credit shall be
transferred or replaced, Seller shall present such letter of credit for payment
and deliver the proceeds received by Seller, if any, to Purchaser within a
reasonable period of time following receipt of Purchaser’s written
request.  Notwithstanding the foregoing,
Seller shall not be in default under this Agreement in the event that any such
letter of credit is not assigned to Purchaser for any reason other than the
failure of Seller to sign the documents required of it to transfer the letter
of credit or the failure of Seller to pay any fees imposed by an issuing bank
in connection with such transfers.  In
such event, Purchaser may terminate this Agreement with respect to the
applicable Property upon written notice to Seller on or before ten (10) days
after Purchaser becomes aware that a letter of credit will not be assigned on the
Closing Date; provided, however, Purchaser’s right to terminate shall not be
effective in the event that Seller, in its sole and absolute discretion, gives
Purchaser a credit against the Purchase Price in the amount of the security
deposit or provides a substitute letter of credit in that amount.


 


4.2.5                        Calculations.  For
purposes of calculating prorations, Purchaser shall be deemed to be in title to
that portion of the Properties being acquired on the Closing Date, and,
therefore entitled to the income therefrom and responsible for the expenses
thereof for the entire day upon which the Closing occurs.  All such prorations shall be made on the
basis of the actual number of days of the month which shall have elapsed as of
the day of the Closing and based upon the actual number of days in the month
and year in question.  Except as set
forth in this Section 4.2, all items of income and expense which
accrue for the period prior to the Closing will be for the account of Seller
and all items of income and expense which accrue for the period on and after
the Closing will be for the account of Purchaser.  Purchaser and Seller shall each submit or
cause to be submitted to the other (i) on or about the 90th day after Closing,
and (ii) on or about the one year anniversary of the Closing, a statement which
sets forth necessary adjustments to items subject to proration pursuant to the
provisions of this Section 4.2, if any; provided, however, no
adjustment shall be made with respect to Taxes. 
Within fifteen (15) days following delivery of such statements, the
parties shall make such adjustments among themselves as shall be necessary to
carry out the prorations as contemplated in this Section 4.2.  In the event any prorations made under this Section 4.2
shall prove to be incorrect for any reason, then any party shall be entitled to
an adjustment to correct the same.


 


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4.2.6                        Leasing Commissions and Leasing Costs. 
Seller shall be responsible for all leasing commissions, tenant
improvement costs and other usual and customary leasing costs, due and owing
with respect to the current term of all Leases executed prior to the Effective
Date, whether such leasing commissions, tenant improvement costs and other usual
and customary leasing costs are due to be paid prior to or after the Closing
Date.


 


4.2.7                        Prepaid Items.  Any
prepaid items, including, without limitation, fees for licenses which are
transferred to the Purchaser at the Closing and annual permit and inspection
fees shall be apportioned between the Seller and the Purchaser at the Closing.


 


4.2.8                        Allocation of Closing Costs and Expenses.  Seller shall bear the cost of the title policy
to be issued and extended coverage charges, the cost of the Surveys (as
hereinafter defined), the cost to record any instruments necessary to clear
Seller’s title, one-half the cost of the Closing Escrow and one-half the cost
of the “New York Style” closing fee. Purchaser shall bear the cost of any recording
fees with respect to the Deeds, all costs incurred in connection with obtaining
Purchaser’s financing for this transaction, if any, the cost of all title
endorsements (other than with respect to extended coverage), if any, one-half
the cost of the Closing Escrow and one-half the cost of the “New York Style”
closing fee.  The cost of state and
county transfer taxes shall be paid by the Seller, and the cost of local
transfer taxes shall be paid by the party designated in the applicable local
ordinance or local custom.  If no such
designation or custom exists, and a local transfer tax must be paid, the cost
thereof shall be shared equally by Seller and Purchaser.


 


4.2.9                        Operating Expenses.  All
operating expenses (including all charges under Contracts and agreements
assumed by Purchaser under the General Assignment, as hereinafter defined and
fees to any owner’s association) shall be prorated as of the Closing Date.  As to each service provider, operating
expenses payable or paid to such service provider in respect to the billing
period of such service provider in which the Closing Date occurs (the “Current Billing Period”), shall be prorated
on a per diem basis based upon the number of days in the Current Billing Period
prior to the Closing Date (which shall be allocated to Seller) and the number
of days in the Current Billing Period on and after the Closing Date (which
shall be allocated to Purchaser), and assuming that all charges are incurred
uniformly during the Current Billing Period. 
If actual bills for the Current Billing Period are unavailable as of the
Closing Date, then such proration shall be made on an estimated basis based
upon the most recently issued bills, subject to readjustment within thirty (30)
days of receipt of actual bills.  Notwithstanding
the foregoing, no prorations or adjustments shall be made for portions of
operating costs of the Properties to the extent a tenant under the Leases is
required to pay same pursuant to the terms of any of the Leases. Purchaser
shall be credited with an amount equal to all deposits made by tenants and held
by Seller at Closing towards the tenant’s obligation to pay any such operating
expenses.


 


ARTICLE V


Inspection


 


5.1                               Seller Deliveries. 
Purchaser acknowledges that Seller has heretofore delivered or caused to
be delivered or made available to Purchaser at the Properties all of the items relating
to the Properties specified on Exhibit F,
attached hereto, to the extent that such items were in Seller’s possession (“Documents”); provided, however, that except
for the representations and warranties made in Article VII hereof,
Seller makes no representations or warranties of any kind regarding the
accuracy, thoroughness or completeness of or conclusions drawn in the
information contained in such documents, if any, relating to the
Properties.  Except with respect to
claims arising out of a breach by Seller of a representation or warranty made
in Article VII hereof, Purchaser hereby waives any and all claims
against Seller arising out of the accuracy, completeness, conclusions or


 


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statements
expressed in materials so furnished and any and all claims arising out of any
duty of Seller to acquire, seek or obtain such materials.  Purchaser acknowledges that any and all of
the Documents that are not otherwise known by or available to the public are
proprietary and confidential in nature and were delivered to Purchaser solely
to assist Purchaser in determining the feasibility of purchasing the
Properties.  Purchaser agrees not to
disclose such non-public documents, or any of the provisions, terms or
conditions thereof, to any party other than a Purchaser Party/Representative,
as hereinafter defined.  Purchaser shall
return all of the Documents, at such time as this Agreement is terminated for
any reason.  This Section 5.1
shall survive Closing and/or termination of this Agreement without limitation.


 


5.2                               Independent Examination/Right
to Access.  Purchaser hereby acknowledges that it has
been given, prior to the execution hereof, a full, complete and adequate
opportunity to make such legal, factual and other determinations, analyses,
inquiries and investigations as Purchaser deems necessary or appropriate in
connection with the acquisition of the Properties.  Purchaser further acknowledges that Purchaser
is relying upon its own independent examination of the Properties and all
matters relating thereto and not upon any statements of Seller (excluding the
limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser.  Notwithstanding
anything to the contrary contained in this Section 5.2, Purchaser
and its agents shall have access to the Properties and the Documents prior to
the Closing Date, but during normal business hours (with reasonable advance
notice to Seller and subject to the rights of the tenants in possession), at
Purchaser’s sole cost and expense, and at Purchaser’s and its agents’ sole
risk, to inspect the applicable Properties, provided, however, Purchaser shall not
be entitled to conduct Physical Testing or any Phase I Assessments, as said
terms are hereinafter defined, without the approval of Seller, which approval
shall not be unreasonably withheld, and further provided that prior to
Purchaser entering the Properties, Purchaser shall deliver to Seller evidence
of Due Diligence Insurance, as hereinafter defined.  Seller shall have the right, in its discretion,
to accompany Purchaser and/or its agents during any inspection (including, but
not limited to, tenant interviews) provided that Seller does not unreasonably
interfere with Purchaser’s inspection. 
The provisions of this Section 5.2 shall survive Closing
and/or termination of this Agreement without limitation.  Purchaser acknowledges and agrees that the
Documents and investigation available to it have been sufficient to allow
Purchaser to decide whether or not to enter into this Agreement and consummate
the transaction contemplated hereby.


 


5.3                               Inspection Obligations and
Indemnity.  Purchaser and its agents and representatives
shall (a) not unreasonably disturb the tenants of the Improvements or interfere
with their use of the Real Property pursuant to their respective Leases; (b)
not interfere with the operation and maintenance of the Real Property; (c) not
injure or otherwise cause bodily harm to Seller, its agents, contractors and
employees or any tenant; (d) promptly repair any damage to any part of the
Properties or any personal property owned or held by any tenant caused by
Purchaser’s inspection of the Properties; (e) promptly pay when due the costs
of all tests, investigations and examinations done by Purchaser with regard to
the Properties; (f) not permit any liens to attach to the Properties as a
result of Purchaser’s inspection of the Properties; (g) restore the
Improvements and the surface of the Real Property to the condition in which the
same was found before any such inspection or tests were undertaken by
Purchaser; and (h) except to the extent required by law, not reveal or disclose
any information obtained pursuant to its inspections of the Properties to
anyone other than the following persons or entities (each a “Purchaser Party/Representative”): (x)
Purchaser’s prospective lenders, members, managers, partners or other co-venturers
or investors, in connection with the proposed purchase of the Properties and
their respective representatives; and (y) Purchaser’s directors, officers,
partners, members, managers, affiliates, shareholders, employees,


 


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legal
counsel, accountants, engineers, architects, financial advisors and similar
professionals and consultants to the extent Purchaser deems it necessary or
appropriate in connection with its evaluation of the Properties.  Purchaser shall, and does hereby agree to
indemnify, defend and hold Seller, its partners, officers, directors,
employees, agents, attorneys and their respective successors and assigns,
harmless from and against any and all claims, demands, suits, obligations,
payments, damages, losses, penalties, liabilities, costs and expenses
(including, but not limited to, attorneys’ fees) arising out of Purchaser’s or
Purchaser’s agents’ actions taken in, on or about the Properties in the
exercise of the inspections of Purchaser prior to the Effective Date,
including, without limitation, claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use of or damage to its premises or property in connection with
Purchaser’s review of the Properties. 
This Section 5.3 shall survive the Closing and/or any
termination of this Agreement without limitation. Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


 


ARTICLE VI


Title and Survey Matters


 


6.1                               Title. 
Purchaser acknowledges that, prior to the Effective Date, Seller has
delivered to Purchaser, with respect to each Property, a title insurance
commitment or a prior title insurance policy (a “Commitment”), together with a copy of all underlying documents
referenced therein (collectively, the “Title
Documents”).  Except as
hereinafter provided, Purchaser and Seller hereby agree that (i) all Taxes that
are not due and payable prior to Closing, (ii) the rights of the tenants under
the Leases and Approved New Leases (as defined in Section 9.3 of
this Agreement), as parties in possession only, (iii) all matters created by or
on behalf of Purchaser and (iv) the exceptions to title identified on Exhibits G-1 through G-3, respectively, shall constitute “ Permitted Exceptions”.  Notwithstanding anything to the contrary
contained herein, Seller shall be obligated to cause all of the following
resulting from the act or omission of, or caused by, Seller or grantor under
the Deeds to be fully satisfied, released and discharged of record or insured
or bonded over on or prior to the Closing Date:  all mortgages, deeds of trust and monetary
liens [including liens for delinquent taxes, mechanics’ liens and judgment
liens] affecting the Properties and all indebtedness secured thereby.


 


6.2                               Survey. 
Purchaser acknowledges receipt of Seller’s existing surveys (“Initial Surveys”) for each of the
Properties.  Seller has ordered a current
ALTA/ACSM survey for each Property to be certified to Purchaser, as well as any
affiliates and lender designated by Purchaser to Seller at least thirty (30)
days prior to Closing and Title Company (collectively, the “Surveys”) and shall deliver a copy of the
Surveys to Purchaser promptly upon receipt thereof but in all events prior to
Closing.  The surveyors shall certify the
Surveys in accordance with the form of certification attached hereto as Exhibit Q.


 


ARTICLE VII


Representations and Warranties of the Seller


 


7.1                               Seller’s Representations.  Seller
represents and warrants that the following matters are true and correct as of
the Effective Date:


 


7.1.1                        Authority.  Seller is a real estate
investment trust, duly organized, validly existing and in good standing under
the laws of the State of Maryland.  This
Agreement has been duly authorized, executed and delivered by Seller, is the
legal, valid and binding obligation of Seller, and does not violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller is subject.  All documents
to be executed by Seller


 


8





















 


or
Seller Affiliates which are to be delivered at Closing, will, at the time of
Closing, (i) be duly authorized, executed and delivered by Seller or Seller
Affiliates, as the case may be, (ii) be legal, valid and binding obligations of
Seller or Seller Affiliates, as the case may be, and (iii) not violate any
provision of any agreement or judicial order to which Seller or Seller
Affiliates, as the case may be is a party or to which Seller or Seller
Affiliates, as the case may be, is subject.


 


7.1.2                        Bankruptcy or Debt of Seller.  Neither
Seller nor any Seller Affiliates has made a general assignment for the benefit
of creditors, filed any voluntary petition in bankruptcy, admitted in writing
its inability to pay its debts as they come due or made an offer of settlement,
extension or composition to its creditors generally.  Neither Seller nor any Seller Affiliates has
received any written notice of (a) the filing of an involuntary petition by Seller’s
creditors or the creditors of Seller Affiliates, (b) the appointment of a
receiver to take possession of all, or substantially all, of Seller’s assets or
the assets of Seller Affiliates, or (c) the attachment or other judicial
seizure of all, or substantially all, of Seller’s assets or the assets of Seller
Affiliates.


 


7.1.3                        Foreign Person.  Neither
Seller nor any of the Seller Affiliates is a foreign person within the meaning
of Section 1445(f) of the Internal Revenue Code (“Code”), and Seller agrees to execute and
cause the Seller Affiliates to execute any and all documents necessary or
required by the Internal Revenue Service or Purchaser in connection with such
declaration(s).


 


7.1.4                        No Violation of Laws. 
Except as set forth on Schedule 7.1.4, to Seller’s
knowledge, neither Seller nor Seller Affiliates have received any currently
effective written notice from a governmental authority that the Properties
violate any applicable ordinance of the city or village in which the Properties
are located.


 


7.1.5                        Eminent Domain.  Except
as set forth on Schedule 7.1.5, to Seller’s knowledge, neither Seller
nor Seller Affiliates have received any currently effective written notice of
an eminent domain or condemnation of the Land or Improvements relating to the
Properties.


 


7.1.6                        Hazardous Materials. 
Except as set forth on Schedule 7.1.6, to Seller’s
knowledge, except as set forth in any environmental report provided by Seller
to Purchaser, or as referenced or referred to in Section 17.23, (i)
neither Seller nor Seller Affiliates have received any uncured written notice
from the United States Environmental Protection Agency or the Illinois
Environmental Protection Agency (or any Indiana or Wisconsin agency comparable
to the Illinois Environmental Protection Agency) alleging that the Properties
are in violation of any applicable Environmental Laws or contain any Hazardous
Materials, (ii) since the date of the most recent environmental report, there have been no Hazardous Materials
installed or stored in or otherwise existing at, on, in or under the Properties
in violation of applicable Environmental Laws, and (iii) Seller has acted in
the manner that a commercially prudent property owner would act with respect to
any written recommendations made by Seller’s environmental consultants.  “Hazardous
Materials” shall mean any hazardous, toxic waste, substance or
material, pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Section 9601 et seq.), as amended, or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or any
other federal, state or local laws, ordinances, rules, regulations or policies
governing use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of such materials (collectively, “Environmental Laws”).


 


9





















 


7.1.7                        Litigation.  Except as set forth on Schedule 7.1.7,
to Seller’s knowledge, (i) neither Seller nor Seller’s Affiliates have received
any currently effective written notice of any pending litigation affecting the
Properties, and (ii) there is no action, suit or proceeding threatened before
or by any judicial, administrative or union body, any arbitrator or any
governmental authority, against or affecting the Properties.


 


7.1.8                        Leases.  Except as set forth on Schedule 7.1.8,
(i) the Rent Roll delivered to Purchaser by Seller lists all of the Leases
affecting the Properties owned by Seller or Seller’s Affiliates, (ii) the
Leases affecting the Properties delivered to Purchaser by Seller are true,
correct and complete copies of the Leases provided to or entered into by Seller
or Seller’s Affiliates relating to the Properties, and (iii) to Seller’s
knowledge, no tenant has commenced any action or given any written notice to Seller
or any Seller Affiliate for the purpose of terminating its lease in whole or in
part, whether by exercise of an express termination right in its lease or
otherwise.


 


7.1.9                        Contracts.  Except as set forth on Schedule 7.1.9,
to Seller’s knowledge, Seller has delivered to Purchaser complete copies of
each Contract provided to or entered into by Seller or Seller Affiliate relating
to the Properties.


 


7.1.10                  Defaults.  Except as set forth on Schedule 7.1.10,
or any other exhibit to this Agreement, (i)
no notice of default has been given by Seller or Seller Affiliates to any
tenant or received by Seller from any tenant under any Lease relating to the Properties
which remains uncured and (ii) no base or additional rent due under any Lease
relating to the Properties is more than thirty (30) days past due.


 


7.1.11                  Operating Statements.  To Seller’s
knowledge, the operating statements relating to the Properties delivered by
Seller to Purchaser in accordance with Section 5.1 hereof are true
and correct in all material respects and no material adverse change has
occurred since the respective dates thereof.


 


7.1.12                  Bulk Sale Act. The provisions of Section 9.02(d) of
the Illinois Income Tax Act and the applicable provisions of the Retailer’s
Occupation Tax Act do not apply to this transaction.


 


7.1.13                  REIT REP The Properties consist solely of land, buildings, and other structural
components thereof, and other assets described in Section 856(c)(4)(A) of
the Code.  The total gross revenues
generated by the Properties between January 1, 2003 and the Closing Date
has consisted and will consist solely of income from rents from real property
and other revenue which constitute qualifying income under Section 856(c)(3)
of the Code (“Qualifying Income”),
and based on historical experience, Seller believes that the gross revenues
generated by the Properties after the Closing Date will consist solely of
Qualifying Income.


 


Seller
shall remake all representations and warranties as of the date of the Closing;
provided, however, at the time such warranties and representations are remade,
Seller shall provide Purchaser with updates of the Schedules referred to in the
representations and warranties set forth above and an updated operating
statement.  Purchaser acknowledges and
agrees that the representations and warranties that are made as of the Closing
Date shall refer to the updated Schedules and operating statements.


 


7.2                               Intentionally Deleted.


 


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7.3                               Knowledge.  For
purposes of this Agreement and any document delivered at Closing, whenever the
phrases “to the best of Seller’s knowledge”, “to the actual knowledge of Seller”
or “to the knowledge” of Seller or words of similar import are used, they shall
be deemed to refer to the current, actual knowledge only, and not any implied,
imputed or constructive knowledge of Michael M. Mullen and James N. Clewlow,
after consultation with the property managers of each Property owned by Seller
(collectively, the “Seller Property Managers”).  Except for the obligation to consult with the
Seller Property Managers, neither Michael M. Mullen nor James N. Clewlow shall
be obligated to conduct any independent investigation, and no implied duty to
investigate shall be imputed.  Nothing
contained in this Agreement shall be deemed to impose any personal liability of
any kind on any person named in Section 7.3.


 


For
purposes of this Agreement, and any document delivered at Closing, whenever the
phrase “to the best of Purchaser’s knowledge”, “to the actual knowledge of
Purchaser” or “to the knowledge of Purchaser” or words of similar import are
used, they shall be deemed to refer to the current, actual knowledge only, and
not any implied, imputed or constructive knowledge, of Andrew Martin and Ben
Hindmarsh; provided, however, that nothing in this Agreement shall be deemed to
create or impose any personal liability of any kind on Andrew Martin or Ben
Hindmarsh.


 


7.4                               Change in
Representation/Waiver.  Notwithstanding
anything to the contrary contained herein, Purchaser acknowledges that
Purchaser shall not be entitled to rely on any representation or warranty made
by Seller in this Article VII to the extent, prior to or at
Closing, Purchaser shall have or obtain actual knowledge of any information
that was contradictory to such representation or warranty; provided, however,
if Purchaser determines prior to Closing that there is a breach of any of the
representations and warranties made by Seller above, then Purchaser may, at its
option, by sending to Seller written notice of its election either (i) exercise
its rights under Section 9.9 below if applicable, (ii) waive such
breach and/or conditions and proceed to Closing with no adjustment in the
Purchase Price and in such event Seller shall have no further liability as to
such matter thereafter, or (iii) as its sole remedy, terminate this Agreement
in its entirety in the event of any untruth or inaccuracy of (x) the
representations or warranties set forth in Sections 7.1.1, 7.1.2 or 7.1.3,
or (y) the representations and warranties set forth in the other sections of Article VII,
but only if such representations and warranties were not true or were
inaccurate on the Effective Date and such untruth or inaccuracy is “Material”
(defined below). The term “Material” as used in this Section 7.4
shall mean a liability or loss reasonably anticipated to arise out of an
untruth or inaccuracy of the representations or warranties set forth in Article VII
which (i) exceeds $500,000.00 for each affected Property, or (ii) results from
fraud or willful misconduct on the part of Seller.  In the event that Purchaser elects to
terminate this Agreement, the parties shall have no liability to each other hereunder
and the Deposit shall be returned to Purchaser and the Seller Letter of Credit
shall be returned to Seller.  Seller
shall have no liability with respect to any of the foregoing representations and
warranties or any representations and warranties made in any other document
executed and delivered by Seller to Purchaser, to the extent that, prior to the
Closing, Purchaser discovers or learns of information (from whatever source,
including, without limitation the property manager, the tenant estoppel
certificates or the Seller’s Estoppel Certificates delivered pursuant to Section 10.1.1
below, as a result of Purchaser’s due diligence tests, investigations and
inspections of the Property, or disclosure by Seller or Seller’s agents and
employees) that contradicts any such representations and warranties, or renders
any such representations and warranties untrue or incorrect, and Purchaser
nevertheless consummates the transaction contemplated by this Agreement.


 


7.5                               Post Closing Rights. 
Following Closing, Purchaser will have the right to bring any action
against Seller as a result of any untruth or inaccuracy of representations and
warranties made herein if (i) such untruth or inaccuracy is “Material,” and
(ii) prior to Closing Purchaser did not discover or learn information (from
whatever source) that contradicts any such representations and warranties, or
renders any such representations and warranties untrue or incorrect.  The term


 


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“Material”
as used in this Section 7.5 shall mean a liability or loss
reasonably anticipated to arise out of an untruth or inaccuracy of the
representations or warranties set forth in Article VII which results
from fraud or willful misconduct on the part of Seller or exceeds $500,000 for
each such affected Property, it being understood that the foregoing limitation
is a threshold which must be exceeded, but that once such threshold has been
exceeded, any post closing claim may be pursued for its full value.  In addition, in no event will Seller’s
liability for all such breaches relating to a specific Property, exceed, in the
aggregate, the allocated Purchase Price of the Property in question, calculated
in accordance with Schedule 9.8.


 


7.6                               Survival.  The
express representations and warranties made in this Agreement shall not merge
into any instrument or conveyance delivered at the Closing; provided, however,
that any action, suit or proceeding with respect to the truth, accuracy or
completeness of representations and warranties set forth in Sections other than
Sections 7.1.1, 7.1.2 and 7.1.3 shall be commenced, if at
all, on or before the date which is twelve (12) months after the date of a Closing
and, if not commenced on or before such date, thereafter such representations
and warranties shall be void and of no force or effect as to the applicable
Closing.


 


ARTICLE VIII


Representations and Warranties of Purchaser


 


8.1                               Purchaser represents and warrants to Seller
that the following matters are true and correct as of the Effective Date.


 


8.1.1                        Authority.  Purchaser is a limited
liability company, duly organized, validly existing and in good standing under
the laws of the State of Delaware.  This
Agreement has been duly authorized, executed and delivered by Purchaser, is the
legal, valid and binding obligation of Purchaser, and does not violate any
provision of any agreement or judicial order to which Purchaser is a party or
to which Purchaser is subject.  All
documents to be executed by Purchaser which are to be delivered at Closing,
will, at the time of Closing, (i) be duly authorized, executed and delivered by
Purchaser, (ii) be legal, valid and binding obligations of Purchaser, and (iii)
not violate any provision of any agreement or judicial order to which Purchaser
is a party or to which Purchaser is subject.


 


8.1.2                        Bankruptcy or Debt of Purchaser.  Purchaser
has not made a general assignment for the benefit of creditors, filed any
voluntary petition in bankruptcy, admitted in writing its inability to pay its
debts as they come due or made an offer of settlement, extension or composition
to its creditors generally.  Purchaser
has received no written notice of (a) the filing of an involuntary petition by
Purchaser’s creditors, (b) the appointment of a receiver to take possession of
all, or substantially all, of Purchaser’s assets, or (c) the attachment or
other judicial seizure of all, or substantially all, of Purchaser’s assets.


 


8.1.3                        No Financing Contingency.  It
is expressly acknowledged by Purchaser that this transaction is not subject to
any financing contingency, and no financing for this transaction shall be
provided by Seller.


 


8.2                               Purchaser’s Acknowledgment. 
Purchaser acknowledges and agrees that, except as expressly provided in
this Agreement, Seller has not made, does not make and specifically disclaims
any and all representations, warranties, promises, covenants, agreements or
guaranties of any kind or character whatsoever, whether express or implied,
oral or written, past, present or future, including, but not limited to those
representations, warranties, promises, covenants, agreement and guaranties of,
as to, concerning or with respect to (a) the nature, quality or condition of
the Properties, including, without limitation, the water, soil and geology, (b)
the income to be derived from the Properties, (c) the suitability of the
Properties for any and all activities and uses which


 


12





















 


Purchaser
may conduct thereon, (d) the compliance of or by the Properties or its
operation with any laws, rules, ordinances or regulations of any applicable
governmental authority or body, including, without limitation, the Americans
with Disabilities Act and any rules and regulations promulgated thereunder or
in connection therewith, (e) the habitability, merchantability or fitness for a
particular purpose of the Properties, or (f) any other matter with respect to
the Properties, and specifically that except as expressly provided in this Agreement,
Seller has not made, does not make and specifically disclaims any
representations regarding solid waste, as defined by the U.S. Environmental
Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or
existence, in or on the Properties, of any hazardous substance, as defined by
the Comprehensive Environmental Response Compensation and Liability Act of
1980, as amended, and applicable state laws, and regulations promulgated
thereunder.  Purchaser further
acknowledges and agrees that, except as expressly provided in this Agreement,
having been given the opportunity to inspect the Properties, Purchaser is
relying solely on its own investigation of the Properties and not on any
information provided or to be provided by Seller.  Purchaser further acknowledges and agrees
that subject to the representations and warranties of Seller as provided herein
and in any other document executed at Closing, any information provided or to
be provided with respect to the Properties was obtained from a variety of
sources and that Seller has not made any independent investigation or
verification of such information.  Purchaser further acknowledges and agrees that, as a
material inducement to the execution and delivery of this Agreement by Seller,
subject to the representations and warranties of Seller provided herein and in
any other document executed at Closing, the sale of the Properties as provided
for herein is made on an “AS IS, WHERE IS” CONDITION AND BASIS “WITH ALL
FAULTS.”  Purchaser
acknowledges, represents and warrants that Purchaser is not in a significantly
disparate bargaining position with respect to Seller in connection with the
transaction contemplated by this Agreement; that Purchaser freely and fairly
agreed to this acknowledgment as part of the negotiations for the transaction
contemplated by this Agreement; that Purchaser is represented by legal counsel
in connection with this transaction.


 


8.3                               Purchaser’s Release. 
Effective as of the date of the Closing, Purchaser on behalf of itself
and its successors and assigns waives its right to recover from, and forever
releases and discharges, Seller, Seller’s affiliates, Seller’s investment
manager, property manager, the partners, trustees, shareholders, beneficiaries,
directors, officers, employees, attorneys and agents of each of them, and their
respective heirs, successors, personal representatives and assigns from any and
all demands, claims, legal or administrative proceedings, losses, liabilities,
damages, penalties, causes of action, fines, liens, judgments, costs and
expenses known or unknown, foreseen or unforeseen, that may arise on account of
or in any way be connected with the Properties, except, subject to Section 7.5
hereof, such as arises out of (i) a breach of any of the representations and
warranties of Seller set forth in Article VII and (ii) any of the
provisions of this Agreement that survive Closing pursuant to the provisions of
Section 17.12 below.  The
terms and provisions of this Section 8.3 shall survive Closing
and/or termination of this Agreement without limitation.


 


8.4                               Survival.  The
express representations and warranties made in this Agreement by Purchaser
shall not merge into any instrument of conveyance delivered at the Closing;
provided, however, that any action, suit or proceeding with respect to the
truth, accuracy or completeness of all such representations and warranties
shall be commenced, if at all, on or before the date which is twelve (12)
months after the date of the Closing and, if not commenced on or before such date,
thereafter shall be void and of no force or effect as to the applicable Closing.


 


ARTICLE IX


Seller’s Interim Operating Covenants/Seller’s and Purchaser’s
Covenants


 


9.1                               Operations. 
Seller agrees to continue to operate, manage and maintain the Improvements
through the Closing Date in the ordinary course of Seller’s business and
substantially


 


13





















 


in
accordance with Seller’s present practice, subject to ordinary wear and tear
and further subject to Article XII of this Agreement.  As of, and at all times after the Effective
Date until Closing, Seller shall name Purchaser as an additional insured on all
liability insurance policies maintained by Seller relating to the Properties.


 


9.2                               No Sales.  Except for the execution of tenant Leases pursuant to Section 9.3,
Seller agrees that it shall not convey any interest in the Properties to any
third party.


 


9.3                               Tenant Leases.  From and after the Effective Date, Seller shall not (i) grant any
consent or waive any material rights under the Leases, (ii) terminate any
Lease, or (iii) enter into a new lease, modify an existing Lease or renew,
extend or expand an existing Lease in any material respect without the prior
written approval of Purchaser (an “Approved
New Lease”), which in each case shall not be unreasonably withheld,
conditioned or delayed.  Any Approved New
Lease shall meet all of the following parameters: (i) such proposed lease has
an initial term (excluding any options to extend such term) of not less than three
(3) years and not more than ten (10) years; (ii) such proposed lease has no
free-rent period extending beyond the term of the Master Lease (defined below);
(iii) such proposed lease has no above-market obligation of Purchaser to
provide or fund any tenant improvements; (iv) such proposed lease provides for base
rent payable at a rate per month that is never less than 95% of the base rent
per month required to be paid for such space under the Master Lease; (v)
leasing commissions for such proposed lease do not exceed market rates; (vi)
such proposed lease does not require the landlord thereunder, and will not
result in an obligation for the landlord thereunder to alter or improve or pay
for the altering or improving of the building (other than tenant improvements
as limited by clause (iii) above and responsibility for repairing and replacing
the roof and structure, but excluding the obligation for internal wall
changes); (vii) such lease shall be on the form customarily used by Seller with
such revisions which Seller approves using its judgment as a commercially prudent
landlord; (viii) the creditworthiness of the tenant and intended use of the
premises by the tenant shall be consistent with Seller’s historical and
customary requirements as a commercially prudent landlord; and (ix) the income
to be generated from the proposed lease shall constitute qualifying income
under Section 856(c)(3) of the Code. Additionally, the parties expressly
agree that it shall not be deemed unreasonable for Purchaser to withhold,
condition or delay its consent to any Approved New Lease that includes
above-market tenant improvements, above-market leasing commissions or any other
above-market leasing costs that Purchaser would be obligated to pay or incur;
provided, however, in such event, Purchaser and Seller agree to negotiate in
good faith to agree upon such tenant improvement costs, leasing commission and
other leasing costs to render such Approved New Lease and the terms thereof
acceptable to Purchaser.  Any lease
proposed by Seller, which satisfies the criteria set forth in this Section 9.3
and would otherwise be reasonably acceptable to Purchaser, but for the fact
that such lease includes above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs, may, nonetheless, be
approved and executed by Seller, in its sole and absolute discretion, and in
such event such proposed lease shall be deemed an Approved New Lease, provided that
Seller pays all such above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs.  Purchaser’s failure to respond within five
(5) Business Days after receipt of a request for approval, together with a copy
of the proposed Approved New Lease or letter of intent to lease and credit
information on the proposed replacement tenant or tenants, shall be deemed
approval by Purchaser. Seller shall pay the portion of the tenant improvement
costs, leasing commissions and other usual and customary leasing costs with
respect to any Approved New Lease, allocated on a prorata basis over the term
of the Approved New Lease with respect to the portion of the term of the
Approved New Lease prior to a Closing and Purchaser shall pay the portion of
the tenant improvement costs, lease commissions and other usual and customary
leasing costs with respect to an Approved New Lease, allocated on a prorata
basis over the term of the Approved New Lease with respect to the portion of
the term of the Approved New Lease after the Closing.


 


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9.4.                            Planned Expenditures. 
Seller shall effect and complete the planned expenditures for nominated work
and items in accordance with the description and budget set forth on Exhibit R attached hereto as a prudent
manager/owner in consultation with Purchaser, and to Purchaser’s commercially
reasonable satisfaction; in the event that upon completion of such work and
items,  the total cost of such work is
less than the total budget allocated for same, Seller shall be entitled to
retain all such unexpended amounts.  In
the event that Exhibit R
reflects that certain work is to be performed after Closing, the obligations of
Seller under this Section 9.4 with respect to that work shall
survive Closing.


 


9.5                               Master Lease.  At
the Closing, Seller and Purchaser shall execute and deliver to each other a
master lease (“Master Lease”) in
the form of Exhibit H
attached hereto.


 


9.6                               Management Agreement.  At
the Closing, Seller and Purchaser shall execute and deliver to each other a
property management agreement with respect to the Properties (“Property Management Agreement”) in the form
of Exhibit I attached
hereto.  Seller shall terminate any
existing property management agreements pertaining to the Properties as of the
Closing Date.


 


9.7                               Intentionally Deleted.


 


9.8                               Transfer Tax Declaration
Allocation.  Purchaser and Seller agree that the Purchase
Price shall be allocated amongst the Properties as set forth on Schedule 9.8
for the purpose of completing real estate transfer declarations to be executed
by Seller and Purchaser at Closing (the “Transfer
Tax Declaration Allocation”).


 


9.9                               Substitution of Properties


 


9.9.1                        In the event of the occurrence of a
Substitution Event (defined below) prior to Closing, Purchaser may, at its option,
by written notice to Seller (“Event Notice”)
within ten (10) days after the date on which Purchaser is given or obtains
actual knowledge of the occurrence of a Substitution Event, elect to either (i)
ignore the Substitution Event and proceed to Closing with no adjustment in the
Purchase Price, or (ii) request that Seller offer a Substitute Property or
Substitute Properties (both as hereinafter defined) to Purchaser valued in the
aggregate amount of the Purchase Price allocated to the Property or Properties (“Removed Property” or “Removed Properties”) subject to the
Substitution Event.


 


In the event that Purchaser elects under (ii) above to have Seller
provide a Substitute Property or Substitute Properties, Seller, if it chooses
to do so, in its sole and absolute discretion, shall have a period of thirty
(30) days from the date of Purchaser’s Event Notice to correct the condition
giving rise to the Substitution Event, and further, provided, however, if such
condition is of a nature which is not capable of cure within said thirty (30) day
period and Seller has commenced to cure within such thirty (30) day period,
then Seller shall have such reasonable period of time from and after the date
of Purchaser’s Event Notice to correct the condition giving rise to the
Substitution Event.  In the event
Purchaser exercises its rights under (ii) above, and Seller elects to and cures
the condition giving rise to the Substitution Event prior to the time that the
Closing with respect to the Substitute Property occurs, the Scheduled Closing
Date for the Removed Property shall be extended to the fifteenth (15th)
day after the condition giving rise to the Substitution Event has been cured.


 


In the event that Purchaser fails to elect (i) or (ii) above within ten
(10) days after Purchaser is given or obtains actual knowledge of a Substitution
Event, Purchaser shall be deemed to have elected to waive such condition and
proceed to Closing on the Closing Date with no adjustment in the Purchase
Price.  In the event that within said ten
(10) day period


 


15





















 


Purchaser
elects its rights under (ii) above and Seller elects not to cure or elects to
cure the condition but fails to do so within the time period set forth above, Seller
shall use reasonable efforts to provide a Substitute Property or Substitute
Properties as described in Section 9.9.2.  Notwithstanding any other term or condition
contained herein, (i) in no event shall the Closing with respect to the
Properties which are not subject to a Substitution Event be delayed, and (ii)
in the event of the occurrence of a Substitution Event, Seller shall not be in
default under this Agreement, Seller shall not be liable for damages and
Purchaser’s sole right and remedy shall be to exercise its rights under this Section 9.9.1.


 


The term “Substitution Event”
shall mean any one or more of the following: (i) written notice to Purchaser
that a tenant under its lease (“Right of
First Refusal Lease”)  has exercised
a right of first refusal, right of first offer or option to purchase a Property
prior to Closing pursuant to the existing terms of its lease, (ii) the taking
of one hundred percent (100%) of a Property by condemnation or eminent domain or
(iii) any one or more of the following, to the extent the existence of the
condition hereinafter described has a “Material Adverse Effect” on the use,
value or marketability of the applicable Property: (a) the existence of a title
exception other than a Permitted Exception on an Owner’s Policy to be issued by
the Title Company at the time of the Closing; provided, however that Seller
shall, at Seller’s expense, use reasonable efforts to obtain a title insurance endorsement
to the Owner’s Policy (defined below) insuring over any unpermitted title
exception, (b) the existence of a difference on a Survey not reflected on the Initial
Surveys; (c) if Purchaser has not been provided with a copy of a zoning
endorsement issued by the Title Company with respect to any Properties (whether
in favor of Seller or Purchaser) prior to the Effective Date and it is
determined that the present use of the Property is not permitted under the
zoning ordinance in effect on the Effective Date; (d) the physical or
environmental condition of the Properties are not the same as on the Effective
Date, ordinary wear and tear and damage by casualty excepted, provided,
however, that under this subsection (d) it shall not be a Substitution
Event if a tenant of the Property is responsible under its lease for
maintaining, repairing or restoring the physical or environmental condition in
question; and (e) the existence of a breach of a warranty or representation
made by Seller under Sections 7.1.4, 7.1.6, 7.1.7 and 7.1.9 of this
Agreement (or any change in the schedules thereto).  The term “Material
Adverse Effect” as used herein shall mean that a liability or loss reasonably
anticipated to arise out of the condition under (a) Sections 9.9.1(iii)(a)
or (b) which exceeds $150,000.00 for the affected Property, or (b) under
Sections 9.9.1iii(c), (d) or (e) which exceeds seven and one-half
percent (7.5%) of the Purchase Price for the affected Property.


 


9.9.2                        In the event of the occurrence of a
Substitution Event (and notwithstanding any election by Seller to attempt to
cure the condition giving rise to the Substitution Event), Seller shall use
reasonable efforts to substitute another Property or Properties owned by Seller
that the parties mutually agree in their reasonable opinion is comparable
(individually, a “Substitute Property”
and collectively, the “Substitute Properties”).  Seller shall use reasonable efforts to
identify a Substitute Property within thirty (30) days after receipt of an
Event Notice.  Commencing on the date
that Purchaser receives a notice from Seller identifying a Substitute Property
or Substitute Properties to replace a Removed Property or Removed Properties (“Substitution of Assets Notice”), and
continuing until 5:00 p.m. Central time on the thirtieth (30th) day
thereafter (“Substitute Properties
Feasibility Period”), Purchaser and its agents shall have the right
to conduct inspections and tests of the Substitute Properties in the manner
hereby provided in Section 9.9.5 and subject to the provisions as
provided in Section 9.9.6. 
In the event that Purchaser approves all of the Substitute Properties
prior to the expiration of the Substitute Properties Feasibility Period, all of
the Substitute Properties shall be subject to this Agreement, and the Purchase
Price shall be adjusted as provided below in Section 9.9.3.  In the event that Purchaser does not approve
one or more of the Substitute Properties prior to the expiration of the
Substitute


 


16





















 


Properties
Feasibility Period, the Substitute Property or Properties not approved by
Purchaser and the Removed Property or Removed Properties shall not be subject
to this Agreement, and the Purchase Price shall be reduced by the value of the
Removed Property or Removed Properties, as the case may be, as set forth on Schedule 9.8.  All Substitute Properties approved by
Purchaser shall be deemed to be Properties subject to this Agreement, except
that all warranties and representations shall be modified to reflect the circumstances
relating to the Substitute Properties.  Within
fifteen (15) days after the Substitution of Assets Notice, Seller shall deliver
Schedules similar to those attached hereto as Schedules 7.1.4, 7.1.5, 7.1.6,
7.1.7, 7.1.8, 7.1.9 and 7.1.10, with respect to the Substitute Properties.


 


9.9.3                        For the purposes of this Section 9.9,
the purchase price for a Removed Property shall be based on Schedule 9.8
attached hereto, and the purchase price for a Substitute Property shall be
calculated using a capitalization rate equal to the capitalization rate that
was used to determine the Purchase Price of the Removed Property and the annual
net rent of the Substitute Property, without deductions (“Substitute Property Purchase Price”).  In the event that the Seller delivers the
Substitution of Assets Notice to Purchaser within the time frame set forth
above, the Closing of all Properties not subject to the Substitution of Assets
Notice shall take place on the date of the Scheduled Closing Date.  Subject to the right of Purchaser to
disapprove one or more of the Substitute Properties during the Substitute
Properties Feasibility Period, and further subject to the provisions of Section 4.1
above, the Closing with respect to each Substitute Property shall take place on
the thirtieth (30th) day following the expiration of the applicable Substitute
Property Feasibility Period.


 


9.9.4                        Seller shall deliver to Purchaser copies of
all notices sent by Seller to tenants under Right of First Refusal Leases as
required under the Right of First Refusal Leases, and shall notify Purchaser
promptly if it receives a notice from an Exercising Tenant.


 


9.9.5                        During the Substitute Properties Feasibility
Period, Purchaser and its agents shall have the right during business hours
(with reasonable advance notice to Seller and subject to the rights of the
tenants in possession), at Purchaser’s sole cost and expense and at Purchaser’s
and its agents’ sole risk, to perform inspections and tests of the Substitute
Properties and to perform such other analyses, inquiries and investigations as
Purchaser shall deem reasonably necessary or appropriate; provided, however,
that in no event shall (i) such inspections or tests unreasonably disrupt or
disturb the on-going operation of the Substitute Properties or the rights of
the tenants at the Substitute Properties, or (ii) Purchaser or its agents or
representatives conduct any physical testing, drilling, boring, sampling or
removal of, on or through the surface of the Substitute Properties (or any part
or portion thereof) including, without limitation, any ground borings or
invasive testing of the Improvements (collectively, “Physical Testing”), without Seller’s prior written consent,
which consent may be given or withheld in Seller’s sole and absolute
discretion.  Seller acknowledges and
agrees that the performance of a phase I environmental assessment on behalf of
Purchaser (“Phase I Assessments”)
shall not be considered Physical Testing for purposes hereof and shall be
permitted without Purchaser obtaining the consent of Seller.  In the event Purchaser desires to conduct any
such Physical Testing of a Substitute Property, then Purchaser shall submit to
Seller, for Seller’s approval, a written detailed description of the scope and
extent of the proposed Physical Testing, which approval may be given or
withheld in Seller’s sole and absolute discretion.  In no event shall Seller be obligated as a
condition of this transaction to perform or pay for any environmental
remediation of the Substitute Properties recommended by any such Physical
Testing.  After making such tests and
inspections, Purchaser agrees to promptly restore the Substitute Properties to
their condition prior to such tests and inspections (which obligation shall


 


17





















 


survive
the Closing or any termination of this Agreement).  In addition to the rights available to the
Purchaser during the Substitute Properties Feasibility Period, as set forth
above, Purchaser and its agents shall have access to the Substitute Properties
prior to the Closing Date, but during normal business hours (with reasonable
advance notice to Seller and subject to the rights of the tenants in
possession), at Purchaser’s sole cost and expense, and at Purchaser’s and its
agents’ sole risk, to inspect the applicable Substitute Properties; provided,
however, Purchaser shall not be entitled to conduct any Physical Testing or any
Phase I Assessment after the expiration of the Substitute Properties
Feasibility Period.  Prior to Purchaser
entering the Substitute Properties to conduct the inspections and tests
described above, including, but not limited to, the Phase I Assessments,
Purchaser shall obtain and maintain, at Purchaser’s sole cost and expense, and
shall deliver to Seller evidence of, the following insurance coverage, and
shall cause each of its agents and contractors to obtain and maintain, and,
upon request of Seller, shall deliver to Seller evidence of, the following
insurance coverage:  general liability
insurance, from an insurer reasonably acceptable to Seller, in the amount of
Five Million and No/100 Dollars ($5,000,000.00) combined single limit for
personal injury and property damage per occurrence, such policy to name Seller
as an additional insured party, which insurance shall provide coverage against
any claim for personal liability or property damage caused by Purchaser or its
agents, employees or contractors in connection with such inspections and tests
(“Due Diligence Insurance”).  Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its
agents do not unreasonably interfere with Purchaser’s inspection.


 


9.9.6                        Purchaser and its agents and representatives
shall:  (a) not unreasonably disturb the
tenants of the Substitute Properties or interfere with their use of the
Substitute Properties pursuant to their respective Leases; (b) not interfere
with the operation and maintenance of the Substitute Properties; (c) not damage
any part of the Substitute Properties or any personal property owned or held by
any tenant; (d) not injure or otherwise cause bodily harm to Seller, its
agents, contractors and employees or any tenant; (e) promptly pay when due the
costs of all tests, investigations and examinations done with regard to the
Substitute Properties; (f) not permit any liens to attach to the
Substitute Properties by reason of the exercise of its rights hereunder; (g)
restore the Improvements and the surface of the Substitute Properties to the
condition in which the same was found before any such inspection or tests were
undertaken; and (h) except to the extent required by applicable laws, not
reveal or disclose any information obtained pursuant to its right to evaluate
set forth in Section 9.9.5 above concerning the Substitute
Properties to anyone other than a Purchaser Party/Representative.  Purchaser shall, at its sole cost and
expense, comply with all applicable federal, state and local laws, statutes,
rules, regulations, ordinances or policies in conducting its inspection of the
Substitute Properties, the Purchaser’s Phase I Assessments and the Physical
Testing.  Purchaser shall, and does
hereby agree to indemnify, defend and hold the Seller, its partners, members,
officers, directors, employees, agents, attorneys and their respective successors
and assigns, harmless from and against any and all claims, demands, suits,
obligations, payments, damages, losses, penalties, liabilities, costs and
expenses (including but not limited to attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Substitute
Properties in the exercise of the inspection right granted pursuant to Section 9.9.5,
including, without limitation, (i) claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use or damage to its premises or property in connection with Purchaser’s
review of the Substitute Properties, and (ii) Purchaser’s obligations pursuant
to this Section 9.9.6.  This Section 9.9.6
shall survive the Closing of the Substitute Properties and/or any termination
of this Agreement without limitation.


 


18





















 


9.9.7                        With respect to the Substitute Properties,
Seller shall deliver to Purchaser or make available at the applicable
Substitute Property or Seller’s office in Oak Brook, Illinois, at Seller’s
option, the following: operating statements, leases, reports relating to the physical
and/or environmental condition of the applicable Substitute Properties, a statement
of the estimated value of the applicable Substitute Properties from an
independent industrial real estate broker with at least ten (10) years experience
in the marketplace (which value shall not be binding on Seller or Purchaser),
rent rolls and revenue and expense statements, Seller and Purchaser shall use reasonable
efforts to agree upon the format and scope of such materials, but agree that
the format and scope shall be similar to the materials typically provided by Seller
to Purchaser in connection with the sale of the Properties in accordance with Section 5.1
hereof (the “Substitute Property Documents”);
provided, however, that except for the representations and warranties made in Article VII
hereof, Seller makes no representations or warranties of any kind regarding the
accuracy, thoroughness or completeness of or conclusions drawn in the
information contained in such Substitute Properties Documents.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to acquire,
seek or obtain such materials. 
Notwithstanding anything contained in the preceding sentence, Seller
shall not deliver or make available to Purchaser Seller’s internal memoranda,
attorney-client privileged materials, internal appraisals and economic evaluations
of the Substitute Properties, and reports regarding the Substitute Properties
prepared by Seller or its affiliates solely for internal use or for the
information of the investors in Seller. 
Purchaser acknowledges that any and all of the Substitute Properties
Documents that are not otherwise known by or available to the public are
proprietary and confidential in nature and will be delivered to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Substitute Properties.  Purchaser agrees
not to disclose such non-public documents, or any of the provisions, terms or
conditions thereof, to any party other than a Purchaser
Party/Representative.  Purchaser shall
return all of the Substitute Properties Documents, on or before three (3)
Business Days after the first to occur of (a) such time as Purchaser notifies
Seller in writing that it shall not acquire the Substitute Properties, or (b)
such time as this Agreement is terminated for any reason.  This Section 9.9.7 shall survive
any termination of this Agreement without limitation.


 


9.9.8                        Purchaser hereby acknowledges that it will
have been given, prior to the termination of the Substitute Properties
Feasibility Period, a full, complete and adequate opportunity to make such legal,
factual and other determinations, analyses, inquiries and investigations as
Purchaser deems necessary or appropriate in connection with the acquisition of
the Substitute Properties.  Purchaser
will be relying upon its own independent examination of the Substitute
Properties and all matters relating thereto and not upon any statements of
Seller (excluding the limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Substitute Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser relating to the Substitute Properties.  The provisions of this Section 9.9.8
shall survive Closing and/or termination of this Agreement without limitation.


 


9.10                        Contracts. 
Seller shall not, with respect to a Contract that will survive Closing,
from and after the Effective Date, terminate an existing Contract, enter into a
new Contract or modify an existing Contract without the prior written approval
of Purchaser, which consent in each case shall not be unreasonably conditioned,
withheld or delayed and which shall be deemed granted if


 


19





















 


Purchaser
fails to respond to a request for approval within five (5) Business Days after
receipt of the request therefor together with a summary of the terms of the
Contract (an “Approved New Contract”).  Schedule 9.10 attached hereto
contains a list of Contracts for the Properties that Purchaser will assume as
of the Closing, and a list of Contracts for the Properties that Purchaser is
requesting Seller to terminate as of the Closing (the “Unassumed Contracts”).  Provided that the Closing occurs hereunder,
Seller shall terminate such applicable Unassumed Contracts effective as of the
Closing Date and deliver evidence at such Closing of such termination.


 


9.11                        Intentionally Deleted.


 


9.12                        REA Estoppels. 
Attached hereto as Schedule 9.12 is a list of REA and other
Property-related estoppels that Purchaser would like to obtain prior to Closing
(collectively, the “REA Estoppels”).  Purchaser shall prepare and deliver to Seller
REA Estoppel Certificates for each of the REA Estoppels (the “REA Estoppel Certificates”), and Seller
shall send out the REA Estoppel Certificates for execution prior to the Closing
Date, it being understood that obtaining the REA Estoppel Certificates shall
not be a condition to Purchaser’s obligation to close.


 


ARTICLE X


Closing Conditions


 


10.1                        Conditions to Obligations of
Purchaser.  The obligations of Purchaser under this
Agreement to purchase the Properties and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Scheduled Closing Date, except to the extent that
any of such conditions may be waived by Purchaser in writing at Closing.


 


10.1.1                  Tenant Estoppels.  Purchaser
shall have received tenant estoppel certificates dated not more than thirty
(30) days prior to the Closing from seventy-five percent (75%) of the occupied
square footage in the Properties.  Seller
agrees to deliver to each tenant a tenant estoppel certificate substantially in
the form attached hereto as Exhibit K.  Notwithstanding the foregoing, in the event
that a Lease requires a different form of estoppel certificate or requires
specific provisions, Purchaser shall be required to accept a tenant estoppel
certificate that is substantially in the form required by said Lease or
substantially in the form of Exhibit K
as modified to comply with the specific provisions required by said Lease.  Additionally, Purchaser acknowledges that
while the statements set forth in paragraphs 8 and 9 of Exhibit K are not qualified to the
knowledge or best knowledge of the tenant, Purchaser shall be required to
accept any tenant estoppel certificate that has been qualified to the knowledge
or best knowledge of the tenant with respect to said paragraphs.  Notwithstanding the foregoing, at Seller’s
sole option, Seller may (i) extend the Scheduled Closing Date solely with
respect to up to five (5) of the Properties for up to an additional thirty (30)
days in order to satisfy the foregoing requirement for such Properties, in
which event Seller shall deliver notice of such extension with respect to such
Properties to Purchaser prior to the Scheduled Closing Date (and the Closing
shall proceed as scheduled with respect to all other Properties), and/or (ii)
provide its own estoppel (“Seller’s Estoppel”)
in the form attached as Exhibit L
to Purchaser in satisfaction of the foregoing requirements with respect to not
more than twenty-five percent (25%) of the occupied square footage of the
Properties.  In the event that Seller has
not complied with the provisions of this Section 10.1.1, Purchaser
may (i) elect to consummate the Closing, or (ii) notify Seller of its intent to
terminate this Agreement by written notice (the “Tenant Estoppel Termination Notice”) on or before the Scheduled
Closing Date.  In the event that, after
the Closing, Seller delivers to Purchaser a tenant estoppel certificate from a
tenant for whom Seller executed a Seller’s Estoppel at the Closing and such
tenant estoppel certificate contains no information which is contradictory to
or inconsistent with the information contained in the Seller’s Estoppel, then


 


20





















 


Seller
thereafter shall be released from all liability relating to Seller’s Estoppel
with respect to such tenant’s Lease.  In
no event shall Seller be obligated to deliver updates to the tenant estoppel
certificate or Seller’s Estoppel.


 


10.1.2                  Title Policy.  The
Title Company shall be prepared to issue to Purchaser on the Closing Date an
extended coverage ALTA Form B policy of title insurance, amended October 17,
1970 (the “Owner’s Policy”), or
equivalent form Owner’s Policy acceptable to Purchaser, with respect to each
Property in the Properties, in the face amount of the applicable Purchase Price
attributable to such Property, and dated as of the Closing Date, indicating
title to such Property is vested of record in Purchaser, subject solely to the
applicable Permitted Exceptions.


 


10.1.3                  Possession of the Property. 
Delivery by Seller of possession of the applicable Property, subject to
the Permitted Exceptions and the rights of tenants under the applicable Leases
and Approved New Leases.


 


ARTICLE XI


Closing


 


11.1                        Purchaser’s Closing
Obligations.  Purchaser, at its sole cost and expense,
shall deliver or cause to be delivered to Seller and the Title Company at each
Closing the following, as same relates to the Properties:


 


11.1.1                  The applicable portion of the Purchase Price,
after all adjustments are made at the Closing as herein provided, by wire
transfer or other immediately available federal funds, which amount shall be
received in escrow by the Title Company at or before 11:00 a.m. Central time.


 


11.1.2                  An assumption of a blanket conveyance and bill
of sale, substantially in the form attached hereto as Exhibit M (“General Assignment”), duly executed by Purchaser, conveying
and assigning to Purchaser the applicable Personal Property, Leases, Contracts,
records and plans, and Intangible Property.


 


11.1.3                  Executed counterparts of the Master Lease and
the Property Management Agreement with respect to the Closing, and such other
documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.1.4                  Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings, if requested by the Title Company.


 


11.2                        Seller’s Closing Obligations. 
Seller, at its sole cost and expense, shall deliver or cause to be
delivered to Purchaser and the Title Company the following, as same relates to
each of the Properties and the Properties, as the case may be:


 


11.2.1                  A Special warranty deed (a “Deed”) in recordable form properly executed
by Seller conveying to Purchaser the Land and Improvements in fee simple,
subject only to the Permitted Exceptions, substantially in the form attached
hereto as Exhibit N (as
modified in order to satisfy any State-specific requirements with respect to
the States of Indiana and Wisconsin, if applicable).


 


21





















 


11.2.2                  A General Assignment, duly executed by
Seller, conveying and assigning to Purchaser the Personal Property, the Leases,
the Contracts and the Intangible Property.


 


11.2.3                  Written notice to the tenant(s) (i)
acknowledging the sale of the Property to Purchaser, (ii) acknowledging that
Purchaser has received and is responsible for any security deposits identified
in the rent roll, and (iii) indicating that rent should thereafter be paid to
Purchaser, substantially in the form attached hereto as Exhibit O.


 


11.2.4                  A certificate substantially in the form
attached hereto as Exhibit P
(“Non-foreign Entity Certification”)
certifying that Seller is not a “foreign person” as defined in the Code.


 


11.2.5                  Executed counterparts of the Master Lease and
the Property Management Agreement, with respect to the Closing, and such other
documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.2.6                  Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings.


 


11.2.7                  Purchaser and Seller have agreed that possession
(but not ownership) of all original Leases, tenant files and Contracts shall
remain with Seller following Closing, in its capacity as Property Manager but that
ownership of such items shall pass to Purchaser.  Any duplicate originals of Leases and
Contracts in Seller’s possession or control shall be delivered to Purchaser promptly
after Closing.


 


11.2.8                  All REA Estoppel Certificates received by
Seller, if any.


 


11.2.9                  A certificate of Seller by which Seller
reaffirms the truth and accuracy in all material respects of the
representations and warranties set forth in Sections 7.1 above, subject
to and setting forth any changes thereto occurring since the Effective Date.


 


11.2.10  Reliance letters with respect to and permitting
Purchaser to rely on the most recent Phase 1 environmental reports provided by
Seller to Purchaser from the consultant who prepared the applicable
environmental report.


 


11.3                        Joint Closing Obligations.  Purchaser and Seller shall execute
and deliver a closing statement for each of the Properties setting forth the
applicable Purchase Price, and any and all prorations and credits between the
parties, as determined pursuant to this Agreement, together with real estate
transfer tax declarations as required.


 


ARTICLE XII


Risk of Loss


 


12.1                        Condemnation and Casualty.  If,
prior to the Closing Date, any portion of the applicable Properties are taken
by condemnation or eminent domain, or is the subject of a pending taking which
has not been consummated, or is destroyed or damaged by fire or other casualty,
Seller shall notify Purchaser of such fact promptly after Seller obtains
knowledge thereof.  If such condemnation
or casualty is “Material” (as hereinafter
defined), Purchaser shall have the option to either (i) extend the Scheduled Closing
Date solely with respect to the applicable Property for a time reasonably
required by Seller to repair any damage or destruction with respect to the
applicable Property (and the Scheduled Closing Date shall proceed as scheduled
with respect to all other Properties), or (ii) proceed to Closing in accordance
with the terms of Section 12.1. If Purchaser


 


22





















 


elects
to proceed to Closing, then Seller shall not be obligated to repair any damage
or destruction with respect to the applicable Property, but (x) Seller shall
assign, without recourse, and turn over to Purchaser all of the insurance
proceeds or condemnation proceeds, as applicable, net of any costs of repairs
and net of reasonable collection costs (or, if such have not been awarded, all
of its right, title and interest therein) payable with respect to such fire or
other casualty or condemnation including any rent abatement insurance for such
casualty or condemnation and (y) the parties shall proceed to Closing pursuant
to the terms hereof without abatement of the Purchase Price except for a credit
in the amount of the applicable insurance deductible.


 


12.2                        Condemnation Not Material.  If
the condemnation is not Material, then the Closing shall occur without
abatement of the Purchase Price and, after deducting Seller’s reasonable costs
and expenses incurred in collecting any award, Seller shall assign, without
recourse, all awards or any rights to collect awards to Purchaser on the
Closing Date.


 


12.3                        Casualty Not Material.  If
the Casualty is not Material, then the Closing shall occur without abatement of
the Purchase Price except for a credit in the amount of the applicable
deductible and Seller shall not be obligated to repair such damage or
destruction and Seller shall assign, without recourse, and turn over to
Purchaser all of the insurance proceeds net of any costs of repairs completed
to date and net of reasonable collection costs (or, if such have not been
awarded, all of its right, title and interest therein) payable with respect to
such fire or such casualty including any rent abatement insurance for such
casualty.


 


12.4                        Materiality.  For
purposes of this Article XII, (i) with respect to a taking by
condemnation or eminent domain, the term “Material”
shall mean any condemnation or taking which would materially impede access to a
Property, reduce available parking at a Property below that required by
applicable law or any other agreement affecting such Property, result in the
termination of any Lease of more than ten percent (10%) of the space in the
applicable Property, or result in a condemnation award reasonably estimated to
exceed ten percent (10%) of the Purchase Price applicable to such Property; and
(ii) with respect to a casualty, the term “Material”
shall mean any casualty such that the cost of repair, as reasonably estimated
by an engineer designated by Seller and Purchaser, is in excess of ten percent
(10%) of the Purchase Price applicable to such Property.


 


ARTICLE XIII


Default


 


13.1                        Default by Seller.  IN
THE EVENT THE CLOSING AND THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS
PROVIDED HEREIN BY REASON OF ANY DEFAULT OF SELLER, WHICH DEFAULT IS NOT CURED
WITHIN TWO (2) DAYS AFTER WRITTEN NOTICE FROM PURCHASER TO SELLER, IT WOULD BE IMPRACTICAL
AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH PURCHASER MAY
SUFFER.  THEREFORE, THE PARTIES HAVE
AGREED THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT PURCHASER
WOULD SUFFER IN SUCH EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE PROCEEDS OF
THE SELLER LETTER OF CREDIT,  AS
LIQUIDATED DAMAGES, AS PURCHASER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT.  SUCH LIQUIDATED DAMAGES ARE
NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE LAWS.  Notwithstanding the foregoing, nothing
contained herein shall limit Purchaser’s remedies at law or in equity, as to
the Surviving Termination Obligations.


 


13.2                        Default by Purchaser; Liquidated
Damages.  IN THE EVENT THE CLOSING AND THE TRANSACTIONS
CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF ANY DEFAULT OF
PURCHASER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS AFTER WRITTEN NOTICE
FROM SELLER TO PURCHASER, IT WOULD BE


 


23





















 


IMPRACTICAL
AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER.  THEREFORE, THE PARTIES HAVE AGREED THAT A
REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN SUCH
EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE DEPOSIT, AS
LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT.  SUCH LIQUIDATED DAMAGES ARE
NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE LAWS.  Notwithstanding the foregoing, nothing
contained herein shall limit Seller’s remedies at law or in equity, as to the
Surviving Termination Obligations.


 


ARTICLE XIV


Brokers


 


14.1                        Brokers. 
Purchaser and Seller each represents and warrants to the other that it
has not dealt with any person or entity entitled to a brokerage commission,
finder’s fee or other compensation with respect to the transaction contemplated
hereby.  Purchaser hereby agrees to
indemnify, defend, and hold Seller harmless from and against any losses,
damages, costs and expenses (including, but not limited to, attorneys’ fees and
costs) incurred by Seller by reason of any breach or inaccuracy of the
Purchaser’s ( or its nominee’s) representations and warranties contained in
this Article XIV.  Seller
hereby agrees to indemnify, defend, and hold Purchaser harmless from and
against any losses, damages, costs and expenses (including, but not limited to,
attorneys’ fees and costs) incurred by Purchaser by reason of any breach or
inaccuracy of Seller’s representations and warranties contained in this Article XIV.  The provisions of this Article XIV
shall survive the Closing and/or termination of this Agreement.


 


ARTICLE XV


Confidentiality


 


15.1                        Confidentiality. 
Purchaser expressly acknowledges and agrees that the transactions
contemplated by this Agreement, the Documents that are not otherwise known by
or readily available to the public and the terms, conditions and negotiations
concerning the same shall be held in the strictest confidence by Purchaser and
shall not be disclosed by Purchaser except to a Purchaser Party/Representative,
and except and only to the extent that such disclosure may be necessary for its
performance hereunder.  Purchaser agrees
that it shall instruct each of its Purchaser Party/Representatives to maintain
the confidentiality of such information and at the request of Seller, to
promptly inform Seller of the identity of each such Purchaser
Party/Representative.  Purchaser further
acknowledges and agrees that, unless and until the Closing occurs, all
information and materials obtained by Purchaser in connection with the
Properties that are not otherwise known by or readily available to the public
will not be disclosed by Purchaser to any third persons (other than to its Purchaser
Party/Representatives) without the prior written consent of Seller.  If the transaction contemplated by this
Agreement does not occur for any reason whatsoever, Purchaser shall promptly
return to Seller, and shall instruct its Purchaser Party/Representatives to
return to Seller, all copies and originals of all documents and information
provided to Purchaser.  Nothing contained
in Section 5.2 of this Agreement or this Section 15.1
shall preclude or limit either party from disclosing or accessing any information
otherwise deemed confidential under Section 5.2 or this Section 15.1
in connection with the party’s enforcement of its rights following a
disagreement hereunder or in response to lawful process or subpoena or other
valid or enforceable order of a court of competent jurisdiction or any filings
or disclosures with any applicable Authorities (In the Unites States and/or
Australia) required by reason of the transactions provided for herein and/or
any filings or disclosures required in accordance with the laws or market rules
(including stock exchange rules) of the United States and/or Australia.  The provisions of this Section 15.1
shall survive any termination of this Agreement without limitation.


 


24





















 


15.2                        Post Closing Publication. 
Notwithstanding the foregoing, following Closing, Purchaser and Seller
shall have the right to announce the acquisition of the Properties in
newspapers and real estate trade publications (including “tombstones”) publicizing
the purchase provided that Purchaser and Seller shall consult one another with
respect to any such notice or publication, and shall implement any reasonable
comments or objections of the other. 
Seller may also publicize the sale of the Property in the ordinary
course of its business.  The provisions
of this Section 15.2 shall survive Closing and/or any termination
of this Agreement without limitation.


 


ARTICLE XVI


1031 Exchange


 


16.1                        1031 Exchange. 
Purchaser agrees to cooperate with Seller for purposes of effecting and
structuring, in conjunction with the sale of the Properties, for the benefit of
Seller, a like-kind exchange of real property, whether simultaneous or a
deferred exchange, pursuant to Section 1031 of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated thereunder.  Purchaser specifically agrees to execute such
documents and instruments as are reasonably necessary to implement such an
exchange.  Seller shall be solely
responsible for assuring that the structure of any proposed exchange is
effective for Seller’s tax purposes. 
Furthermore, Purchaser specifically agrees that Seller may assign this
Agreement and any of its rights or obligations hereunder, in whole or in part,
as necessary or appropriate in furtherance of effectuating a Section 1031
like-kind exchange for the Properties, provided that such assignment shall not
serve to relieve Seller of any liability for Seller’s obligations
hereunder.  Purchaser shall have no
obligation to pay costs or expenses of effectuating such exchange, no such
exchange shall alter the time for performance set forth herein, and Purchaser
shall not be required to take title to any exchange property or (except for
customary consent to assignment of this Agreement to an exchange intermediary)
to incur obligations to third parties.


 


ARTICLE XVII


Miscellaneous


 


17.1                        Notices.  Any
and all notices, requests, demands or other communications hereunder shall be
in writing and shall be deemed properly served (i) on the date sent if
transmitted by hand delivery with receipt therefor, (ii) on the date sent if
transmitted by facsimile (with confirmation by hard copy to follow by overnight
delivery service), (iii) on the date sent if scanned to a .pdf file and
transmitted by e-mail (with confirmation by hard copy to follow by overnight
delivery service) (iv) on day after the notice is deposited with a nationally
recognized overnight courier, or (v) upon receipt after being sent by
registered or certified mail, return receipt requested, first class postage
prepaid, addressed as follows (or to such new address as the addressee of such
a communication may have notified the sender thereof):


 


	
   

  	
   

  
	
   

  	
   

  
	
  To
  Purchaser:

  	
  CenterPoint
  James Fielding, LLC

  
	
   

  	
  Level
  5, 40 Miller Street

  
	
   

  	
  North
  Sydney, NSW 2060

  
	
   

  	
  Australia

  
	
   

  	
  Attn:
  Mr. Ben Hindmarsh

  
	
   

  	
  Fax
  No.: 61 2 9004 8462

  
	
   

  	
  E-Mail: benhindmarsh@mirvac.com.au

  



 


25





















 


	
  With
  a copy to:

  	
  Wildman
  Harrold Allen & Dixon LLP

  
	
   

  	
  225
  W. Wacker Drive, Suite 3000

  
	
   

  	
  Chicago,
  Illinois 60606

  
	
   

  	
  Attn:
  Kathleen M. Gilligan, Esq.

  
	
   

  	
  Fax No.:  (312) 201-2555

  
	
   

  	
  E-Mail:   gilligan@wildmanharrold.com

  
	
   

  	
   

  
	
  To
  Seller:

  	
  CenterPoint
  Properties Trust

  
	
   

  	
  1808
  Swift Drive

  
	
   

  	
  Oak
  Brook, Illinois 60523

  
	
   

  	
  Attn:

  	
  Mr.
  James N. Clewlow

  and Mr. Michael M. Mullen

  
	
   

  	
  Fax No.: (630) 586-8010

  
	
   

  	
  E-Mail: jclewlow@centerpoint-prop.com

  
	
   

  	
  E-Mail: mmullen@centerpoint-prop.com

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  Weinberg
  Richmond LLP

  
	
   

  	
  333
  West Wacker Drive, Suite 1800

  
	
   

  	
  Chicago,
  Illinois 60606

  
	
   

  	
  Attn:
  Mark S. Richmond, Esq.

  
	
   

  	
  Fax No.:

  	
  (312) 807-3903

  
	
   

  	
  E-Mail

  	
  mrichmond@wr-llp.com

  
				



 


17.2                        Governing Law.  This
Agreement shall be governed by and construed in accordance with the internal,
substantive laws of the State of Illinois, without regard to the conflict of
laws principles thereof.


 


17.3                        Headings.  The
captions and headings herein are for convenience and reference only and in no
way define or limit the scope or content of this Agreement or in any way affect
its provisions.


 


17.4                        Effective Date.  This
Agreement shall be effective upon delivery of this Agreement fully executed by
the Seller and Purchaser, which date shall be deemed the Effective Date
hereof.  Either party may request that
the other party promptly execute a memorandum specifying the Effective Date.


 


17.5                        Business Days.  If
any date herein set forth for the performance of any obligations of Seller or
Purchaser or for the delivery of any instrument or notice as herein provided
should be on a Saturday, Sunday or legal holiday, the compliance with such
obligations or delivery shall be deemed acceptable on the next business day
following such Saturday, Sunday or legal holiday.  As used herein, the term “legal holiday”
means any state or Federal holiday for which financial institutions or post
offices are generally closed in the state where the Property is located.


 


17.6                        Counterpart Copies.  This
Agreement may be executed in two or more counterpart copies, all of which
counterparts shall have the same force and effect as if all parties hereto had
executed a single copy of this Agreement.


 


17.7                        Binding Effect.  This
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.


 


17.8                        Assignment. 
Purchaser shall not have the right to assign this Agreement without
Seller’s prior written consent, which consent may be given or withheld in
Seller’s sole and absolute


 


26





















 


discretion;
provided, however, Purchaser may designate a wholly owned subsidiary to acquire
title to the Properties at Closing or assign its right, title and interest
under this Agreement to a wholly owned subsidiary, provided that in no event
will Purchaser be released from any of its obligations or liabilities under
this Agreement.  Seller may assign this
Agreement in whole or in part to any corporate, limited liability company or
partnership entity affiliated with, or related to, Seller (“Affiliate”) without Purchaser’s consent;
provided that Seller shall in no event be released from any of its obligations
or liabilities hereunder as a result of any such assignment.  In the event that an Affiliate shall be
designated as a transferee hereunder, the Affiliate shall have the benefit of
all of the representations and rights that would otherwise have run in favor of
Seller, which, by the terms of this Agreement, are incorporated or relate to
the conveyance in question.  All
transferees and assignees of Purchaser (“Assignee”)
shall assume all of Purchaser’s obligations under this Agreement pursuant to an
Assignment and Assumption Agreement reasonably acceptable to Seller, and
consented to in writing by Seller.  In
the event the rights and obligations of Purchaser shall be transferred,
assigned and assumed as permitted under this Agreement, then such Assignee will
be substituted in place of such assignor in the above-provided-for documents
and it shall be entitled to the benefit of and may enforce Seller’s covenants,
representations and warranties hereunder provided that Purchaser shall in no
event be released from any of its obligations or liabilities hereunder as a
result of such assignment.  Upon any such
assignment by Purchaser or any successor or assign of Purchaser, then the
assignor’s liabilities and obligations hereunder or under any instruments,
documents or agreements made pursuant hereto shall be binding upon Assignee;
provided, however, that Assignee shall have the benefit of any limitations of
such liabilities and obligations applicable to either the assignor or Assignee,
provided by law or by the terms hereof or such instruments, documents or
agreements.  Whenever reference is made
in this Agreement to Seller or Purchaser, such reference shall include the
successors and assigns of such party under this Agreement.  Purchaser may assign this Agreement for
collateral purposes only to Purchaser’s lender.


 


17.9                        Interpretation.  This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that both Seller and
Purchaser have contributed substantially and materially to the preparation of
this Agreement.


 


17.10                 Entire Agreement.  This
Agreement and the Exhibits attached hereto contain the final and entire
agreement between the parties hereto with respect to the sale and purchase of
the Property and are intended to be an integration of all prior negotiations
and understandings.  Purchaser, Seller
and their agents shall not be bound by any terms, conditions, statements,
warranties or representations, oral or written, not contained herein.  No change or modifications to this Agreement
shall be valid unless the same is in writing and signed by the parties
hereto.  Each party reserves the right to
waive any of the terms or conditions of this Agreement which are for their
respective benefit and to consummate the transaction contemplated by this
Agreement in accordance with the terms and conditions of this Agreement which
have not been so waived.  Any such waiver
must be in writing signed by the party for whose benefit the provision is being
waived.


 


17.11                 Severability.  If
any one or more of the provisions hereof shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


17.12                 Survival. 
Except for obligations that survive the Closing pursuant to the
provisions of Sections (and related subparagraphs) 4.2, 5.1, 5.2,
5.3, 6.2, 7.4, 7.5, 7.6, 8.3, 8.4,
9.4, 9.9, 9.11, 10.2, 14.1, 15.1, 15.2,
17.15, 17.16,  17.20 and 17.23 (collectively, the “Surviving Termination Obligations”), the
provisions of this Agreement and the representations and warranties herein
shall not survive after the conveyance of title and payment of the Purchase
Price but be merged therein.


 


27





















 


17.13                 Exhibits and Schedules.  Exhibits A through S and Schedules 7.1.4 through 9.12
attached hereto are incorporated herein by reference.


 


17.14                 Time.  Time
is of the essence in the performance of each of the parties’ respective
obligations contained herein.


 


17.15                 Limitation of Liability.  No
present or future partner, member, manager, director, officer, shareholder,
employee, advisor, affiliate or agent of or in Purchaser or any affiliate of
Purchaser shall have any personal liability, directly or indirectly, under or
in connection with this Agreement or any agreement made or entered into under
or in connection with the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Seller and its successors and assigns and, without limitation,
all other persons and entities, shall look solely to Purchaser’s assets for the
payment of any claim or for any performance, and Seller hereby waives any and
all such personal liability.  For
purposes of this Section 17.15, no negative capital account or any
contribution or payment obligation of any partner or member in Purchaser shall
constitute an asset of Purchaser.  The
limitations of liability contained in this Paragraph are in addition to, and
not in limitation of, any limitation on liability applicable to Purchaser
provided elsewhere in this Agreement or by law or by any other contract,
agreement or instrument.  All documents
to be executed by Purchaser shall also contain the foregoing exculpation.


 


No
present or future partner, member, director, officer, shareholder, employee,
advisor, affiliate or agent of or in Seller or any affiliate of Seller shall
have any personal liability, directly or indirectly, under or in connection
with this Agreement or any agreement made or entered into under or in
connection with the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Purchaser and its successors and assigns and, without
limitation, all other persons and entities, shall look solely to Seller’s
assets for the payment of any claim or for any performance, and Purchaser
hereby waives any and all such personal liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Seller shall constitute an asset of Seller.  The limitations of liability contained in
this Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Seller provided elsewhere in this Agreement or by law
or by any other contract, agreement or instrument.  All documents to be executed by Seller shall
also contain the foregoing exculpation. 
The provisions of this Section 17.15 shall survive Closing
and/or any termination of this Agreement.


 


17.16                 Prevailing Party. 
Should either party employ an attorney to enforce any of the provisions
hereof, (whether before or after Closing, and including any claims or actions
involving amounts held in escrow), the non-prevailing party in any final
judgment agrees to pay the other party’s reasonable expenses, including
reasonable attorneys’ fees and expenses in or out of litigation and, if in
litigation, trial, appellate, bankruptcy or other proceedings, expended or
incurred in connection therewith, as determined by a court of competent
jurisdiction.  The provisions of this Section 17.16
shall survive Closing and/or any termination of this Agreement.


 


17.17                 No Recording. 
Neither this Agreement nor any memorandum or short form hereof shall be
recorded or filed in any public land or other public records of any
jurisdiction, by either party and any attempt to do so may be treated by the
other party as a breach of this Agreement.


 


17.18                 Waiver of Trial by Jury.  The
respective parties hereto shall and hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Agreement, or for the enforcement of any remedy under any
statute, emergency or otherwise.


 


28





















 


17.19                 Cooperation between
Seller and Purchaser.  Seller agrees to reasonably cooperate with
Purchaser in connection with the preparation and delivery of any Subordination,
Non-Disturbance and Attornment Agreements required by Purchaser’s lenders in
connection with the closing of the transaction described herein.


 


17.20                 Further Assurances.  Each
party shall, from time to time, at the request of the other party, and without
further consideration, execute and deliver such further instruments and take
such further action as may be required or reasonably requested by either party
to establish, maintain or protect the respective rights of the parties to carry
out and effect the intentions and purposes of this Agreement.


 


17.21                 Return of Deposit.  Notwithstanding
anything to the contrary contained in this Agreement, whenever this Agreement
provides that the Deposit shall be delivered or returned to Purchaser, the
parties acknowledge and agree that said Deposit or a portion thereof shall
remain with the Escrow Agent in the event that Purchaser has failed to comply
with the provisions of this Agreement. 
Notwithstanding anything to the contrary contained in this Section 17.21,
Seller agrees that if the provisions of this Agreement provide for the return
of the Deposit to Purchaser that Seller will not unreasonably withhold its
consent to the return of the Deposit to Purchaser.  Notwithstanding anything to the contrary
contained in this Section 17.21, Purchaser agrees that if the
provisions of this Agreement provide for the return of the Seller Earnest Money
to Seller that Purchaser will not unreasonably withhold its consent to the
return of the Seller Earnest Money to Seller.


 


17.22                 Other Agreements.  Seller
and Purchaser have a business relationship with each other and in connection
therewith Seller and Purchaser have entered into various other agreements as of
the date hereof (“Other Agreements”).  A default by either party under any Other
Agreement not cured within any applicable cure period shall be deemed to be a
default by such party under this Agreement.


 


17.23                 Seller Environmental
Obligations.  Notwithstanding anything to the contrary
contained in this Agreement, based on conditions existing as of the Effective
Date, Seller agrees to conduct and complete, for Purchaser’s benefit and solely
at Seller’s expense except as provided below, all investigation and remediation
measures necessary for Seller to obtain (a) with respect to the Properties
identified on Exhibit S, a
No Further Remediation (“NFR”)
letter from the Illinois Environmental Protection Agency, and (b) with respect
to the Properties identified on Exhibit S,
a Certificate of Completion in the Voluntary Remediation Program administered
by the Indiana Department of Environmental Management and a Covenant Not to Sue
from the office of the Governor of Indiana (the NFR Letter, the Certificates of
Completion, the Covenants Not to Sue, and all other necessary closure certification
records shall be referred to collectively herein as the “Completion Documents”).


 


17.23.1            Schedule.  Seller
shall act with diligence in conducting investigation and remediation measures,
in pursuing issuance of the Completion Documents, and in complying with any
applicable requirements of the respective state voluntary cleanup program,
including without limitation the following, to the extent required by the
respective state voluntary cleanup program: causing the Completion Documents to
be recorded in the property records and filed with governmental agencies, and
notifying third parties such as off-site landowners. Seller shall make
reasonable efforts to cause the Completion Documents to be issued by no later
than the LLC Expiration Date (as defined in that certain Limited Liability
Company Agreement of even date herewith by and between CenterPoint Properties
Trust and JF US Industrial Property Trust). 
If Seller fails to cause the Completion Documents to be issued by no
later than the LLC Expiration Date for any individual Property (“NFR Substitution Event”), Purchaser may, at
its option, by written notice to Seller within


 


29





















 


thirty (30) days after the occurrence of an NFR
Substitution Event, request that Seller offer a Substitute Property in
accordance with Section 9.9.2 above. (“NFR Substitution Notice”); provided, however, in the event
that Purchaser elects to have Seller provide a Substitute Property, Seller, if
it chooses to do so, in its sole and absolute discretion, shall have a period
of thirty (30) days from the date Seller is given the NFR Substitution Notice
to obtain the Completion Documents, and further, provided, however, if the
Completion Documents are not capable of being obtained within said thirty (30)
day period through no fault of Seller and Seller has commenced to obtain the
Completion Documents within such thirty (30) day period, then Seller shall have
such reasonable period of time from and after the date of the NFR Completion Notice
to obtain the Completion Documents; provided, further, that such additional
period shall not extend beyond the date of the Closing with respect to the
Substitute Property.  In the event Seller
cures the condition giving rise to the NFR Substitution Event prior to the time
that a Closing with respect to the Substitute Property occurs, the Scheduled
Closing Date for the Removed Property shall be extended to the fifteenth (15th)
day after the condition giving rise to the NFR Substitution Event has been cured.


 


In
the event Seller does not obtain the Completion Documents within the time
periods referenced above, Seller shall repurchase the Property in question at
such time as Purchaser acquires a Substitute Property.  Seller shall repurchase the Removed Property
for the same price paid by Purchaser to purchase such Property from Seller and
Seller shall repurchase such Property on the same terms and conditions of this
Agreement applicable to Purchaser’s acquisition of a Substitute Property.
Seller shall be obligated to repurchase the Property in question only if
Purchaser agrees to purchase the Substitute Property, and Purchaser and Seller
shall agree to close on both transactions on the same day at the same
time.  Seller and Purchaser agree to
follow the same terms, conditions and procedures for purposes of this exchange
as are generally consistent with Sections 9.9.5, 9.9.6, 9.9.7 and 9.9.8
of this Agreement.


 


17.23.2            Cooperation.  From and after the Effective
Date of this Agreement, Seller and Purchaser shall cooperate with each other to
facilitate the successful completion of the voluntary remediation process for
each Property.  Seller and Purchaser
shall consult in good faith about all draft workplans and proposed submissions
to regulatory authorities, and Seller shall make changes reasonably requested
by Purchaser.  Seller shall provide at
least two (2) Business Days advance written notice of entry onto a Property and
identify the general nature of the work to be performed and the portion(s) of
the Property on which the work will be performed.  To the extent practical, Seller shall provide
advance notice to Purchaser of, and shall allow Purchaser to participate in,
meetings and telephone conferences with regulatory authorities.  Seller shall provide Purchaser with a copy of
all test results, final submissions to regulatory agencies and final documents
received from such agencies within a reasonable period of time after they are
received or created by Seller.


 


17.23.3            Scope of Testing Activities. 
Pursuant to this Section 17.23, Seller shall conduct initial
testing sufficient to reasonably identify all potential contaminants of concern
materially related to the industrial/commercial use at the Properties
(reasonably taking into consideration potentially significant environmental
conditions indicated in Phase 1 reports or in prior testing).  Subsequent testing shall be conducted by
Seller as reasonably necessary to satisfy regulatory authorities for issuance
of the Completion Documents.


 


17.23.4            Institutional Controls.  The
Completion Documents may be qualified or conditioned by institutional controls
(e.g., deed restrictions, engineered barriers) to the extent such controls are
consistent with the Properties’ industrial/commercial use as of the Effective
Date and are necessary for issuance of the Completion Documents; provided,
however,


 


30





















 


Seller
shall have sole discretion to select the remedial approach for obtaining the
Completion Documents.  Any such
institutional controls are subject to Purchaser’s review and approval, which
approval shall not be unreasonably withheld.


 


17.23.5            Execution of Documents. 
Solely relating to and limited by Seller’s obligations as set forth in Article 17
hereto, Seller shall arrange for any offsite disposal of hazardous substances,
required in order to obtain the Completion Documents, and shall execute all
manifests and similar documents, reflecting itself or its designee as the
generator of such hazardous substances, and in no event shall Seller name or
identify Purchaser as the generator of such hazardous substances; provided,
however, the Seller has no duty or obligation whatsoever for any hazardous
substances transported to, released upon or generated by Purchaser, its agents,
representatives and assigns, at, on, beneath or adjacent to the Properties.
Purchaser shall execute other documents reasonably requested by Seller that are
necessary and consistent with this Section 17.23.


 


17.23.6            Access. Purchaser shall provide necessary access to Seller to carry out the
provisions of this section.  Seller shall
use all reasonable efforts to avoid any disruption of tenant activities, and
shall promptly repair at Seller’s sole cost and expense any damage caused by
its investigation or remediation activities.


 


17.23.7            Indemnification. Until the earlier of the date the Seller
procures and provides to Purchaser the requisite Completion Documents as set
forth herein for each Property, or an appropriate substitute is exchanged
pursuant to Section 17.23.1 hereof, Seller shall protect, defend,
indemnify and hold Purchaser harmless from and against any claim or loss
arising out of (a) any investigation, remediation or disposal activities
conducted by Seller or its agents pursuant to this Section 17.23, and
(b) any failure by Seller to obtain the Completion Documents as provided in
this section.


 


17.23.8            Voidance. In the event any of the Completion Documents are voided as a result
of any fraudulent misrepresentation or other fraudulent act or omission of Seller,
Seller shall be responsible for implementing at its expense any measures
necessary to have the Completion Documents reinstated.


 


17.23.9            Assignment.  To the extent allowed by
contract and law, Seller shall use reasonable efforts to assign to Purchaser
its environmental rights under current vendor and tenant agreements, including
all indemnities, escrows, representations, and warranties (“Seller’s Environmental Rights”).  Where Seller is unable to assign Seller’s
Environmental Rights, Seller will use commercially reasonable efforts to
enforce such rights on behalf of Purchaser (at Purchaser’s expense).


 


17.23.10      Survival.  The terms of this Section 17.23
shall expressly survive, without limitation, the Closing.


 


17.24                 Currency. All payments and amounts referenced or
described in this Agreement shall be deemed to require payments in and refer to
amounts in the currency of the United States of America.


 


17.25                 Facsimile Signatures. The parties hereto agree that the use of
facsimile signatures for the execution of this Agreement shall be legal and
binding and shall have the same force and effect as if originally signed.


 


[remainder of page intentionally left blank]


 


31





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the
date or dates set forth below.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT JAMES FIELDING, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Adrian Harrington

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Adrian
  Harrington

  
	
   

  	
   

  	
    Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Adrienne Parkinson

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Adrienne
  Parkinson

  
	
   

  	
   

  	
    Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  
	
   

  	
  Date:
  April 6, 2005

  
	
   

  	
   

  
	
   

  	
  Tax
  I.D. # 98-0450460

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT PROPERTIES TRUST, a Maryland

  real estate investment trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
    Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  James N. Clewlow

  	
   

  
	
   

  	
   

  	
    Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
    Title:

  	
  Chief
  Investment Officer

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT VENTURE, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
    Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  James N. Clewlow

  	
   

  
	
   

  	
   

  	
    Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
    Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
									



 


32





















 


Exhibits


 


	
  Exhibit
  A

  	
  Properties

  
	
  Exhibit
  B-1 - B-3

  	
  Legal
  Descriptions

  
	
  Exhibit
  C-1 - C-3

  	
  Schedule of
  Leases

  
	
  Exhibit
  D -

  	
  Intentionally
  Deleted

  
	
  Exhibit
  E -

  	
  Escrow
  Agreement

  
	
  Exhibit
  F -

  	
  Documents

  
	
  Exhibit
  G-1 - G-3

  	
  Permitted
  Exceptions

  
	
  Exhibit
  H-

  	
  Master
  Lease

  
	
  Exhibit
  I -

  	
  Property
  Management Agreement

  
	
  Exhibit
  J -

  	
  Intentionally
  Deleted

  
	
  Exhibit
  K -

  	
  Tenant
  Estoppel Certificate

  
	
  Exhibit
  L -

  	
  Seller’s
  Estoppel Certificate

  
	
  Exhibit
  M -

  	
  General
  Assignment

  
	
  Exhibit
  N -

  	
  Deed

  
	
  Exhibit
  O -

  	
  Notice
  of Sale to Tenant

  
	
  Exhibit
  P -

  	
  Non-Foreign
  Entity Certification

  
	
  Exhibit
  Q -

  	
  Survey
  Certification

  
	
  Exhibit
  R -

  	
  Planned
  Expenditures

  
	
  Exhibit
  S -

  	
  NFR
  Properties

  



 


Schedules


	
  7.1.4
  -

  	
  No Violations of Laws

  
	
  7.1.5
  

  	
  Eminent
  Domain

  
	
  7.1.6

  	
  Hazardous
  Material

  
	
  7.1.7

  	
  Litigation

  
	
  7.1.8

  	
  Leases

  
	
  7.1.9

  	
  Contracts

  
	
  7.1.10

  	
  Defaults

  
	
  9.8

  	
  Purchase
  Price Schedule

  
	
  9.10

  	
  Contracts

  
	
  9.12

  	
  REA
  Estoppels

  



 


33





















 


TRANCHE 1/1031


 


SALE AGREEMENT


 


THIS SALE AGREEMENT (“Agreement”) is made and
entered into as of the 6th day of April, 2005, by and between CENTERPOINT PROPERTIES TRUST, a Maryland
real estate investment trust (“SELLER”),
and CENTERPOINT JAMES FIELDING, LLC,
a Delaware limited liability company (“PURCHASER”).


 


In
consideration of the mutual promises, covenants and agreements hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:


 


ARTICLE I


Sale of Properties


 


1.1                               Sale of Properties.  Seller
agrees to sell, assign and convey to Purchaser, or cause to be sold, assigned
and conveyed to Purchaser, in the event that one or more of the Properties is
currently owned by an entity affiliated with Seller (hereinafter collectively
referred to as “Seller Affiliates”),
and Purchaser agrees to purchase from Seller, the following:


 


1.1.1                        Land and Improvements.  That
certain real property commonly described on
Exhibit A, being more particularly described on Exhibits B-1 through B-3, respectively, attached hereto
(collectively, the “Land”),
together with any improvements located thereon (collectively, the “Improvements”);


 


1.1.2                        Leases.  All of Seller’s or Seller
Affiliates’, as the case may be, right, title and interest, if any, in and to
all leases, subleases, licenses and other occupancy agreements, together with
any and all amendments, modifications or supplements thereto (hereafter
referred to collectively as the “Leases”),
being more particularly described on Exhibits
C-1 through C-3,
respectively, attached hereto, and all prepaid rent attributable to the period
following Closing, as herein defined, and subject to Section 4.2.4
below, the security deposits under such Leases (collectively, the “Leasehold Property”);


 


1.1.3                        Real Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all easements and appurtenances to Seller’s or Seller
Affiliates’, as the case may be, interest in the Land and the Improvements,
including, without limitation, all mineral and water rights and all easements,
licenses, covenants and other rights-of-way or other appurtenances used in
connection with the beneficial use or enjoyment of the Land and the
Improvements (the Land, the Improvements and all such easements and
appurtenances are sometimes collectively referred to as the “Real Property”);


 


1.1.4                        Personal Property.  All
personal property (including equipment), if any, owned by Seller or Seller
Affiliates, as the case may be, and located on the Real Property as of the date
hereof, and all fixtures, if any, located on the Real Property as of the date
hereof or as of the Closing Date (collectively, the “Personal Property”); and


 


1.1.5                        Intangible Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all service, equipment, supply and maintenance
contracts (collectively, the “Contracts”),
guarantees, licenses, side track agreements (and other agreements including
leasehold agreements attendant to the Property), approvals, utility contracts,
plans and specifications, governmental approvals and development rights,
certificates, permits and warranties (and including all escrows, indemnities,
representations,


 





















 


warranties
and guarantees Seller received from any and all vendors from when Seller
acquired the Properties), including, without limitation environmental insurance
policies (to the extent same can be assigned with a reservation of rights for
the benefit of Seller as well) and other environmental escrows and indemnities (to
the extent same can be assigned with a reservation of rights for the benefit of
Seller as well), if any, relating to the Real Property or the Personal
Property, to the extent assignable (collectively, the “Intangible Property”).  (For each individual parcel, the Real
Property, the Leasehold Property, the Personal Property and the Intangible
Property are sometimes collectively hereinafter referred to as the “Property”, and for all parcels, taken
together, the Real Property, the Leasehold Property, the Personal Property and
the Intangible Property are collectively referred to as the “Properties”).  It is hereby acknowledged by the parties that
Seller shall not convey to Purchaser claims relating to any real property tax
refunds or rebates for periods accruing prior to the Closing, to the extent
such taxes have been paid by Seller prior to the Closing, existing insurance
claims and any existing claims against previous tenants of the Properties,
which claims are hereby reserved by Seller, subject to the terms and provisions
of Section 4.2.4 below.


 


ARTICLE II


Purchase Price


 


2.1                               Purchase Price. 
Subject to the provisions of Section 9.9 below, the purchase
price for the Properties shall be Thirty Million One Hundred Thousand and
No/100 Dollars ($30,100,000.00) (“Purchase
Price”) in currency of the United States of America. The Purchase
Price, as adjusted by all prorations as provided for herein, shall be paid by
Purchaser at Closing as directed by the Seller by wire transfer of immediately
available federal funds of The United States of America.


 


ARTICLE III


Deposit


 


3.1                               Purchaser Deposit. 
Purchaser has deposited the amount of Ten Million and No/100 Dollars ($10,000,000.00)
(“Initial  Deposit”) with Chicago Title Insurance Company
(“Escrow Agent” or “Title Company”) in immediately available
federal funds of the United States of America. 
The Initial Deposit, together with any interest thereon, are
collectively referred to herein as the “Deposit.”  The Deposit shall be held by Escrow Agent
pursuant to an Escrow Agreement in the form attached hereto as Exhibit E.


 


3.2                               Application of the Deposit.  At
the time of the final Closing of the Properties, including, but not limited to Substitute
Properties, the Deposit shall be applied to the Purchase Price.  If the Closing does not occur in accordance
with the terms hereof, the Deposit shall be held and delivered as hereinafter
provided.


 


3.3                               Interest Bearing – Purchaser
Deposit.  The Deposit shall (i) be held in an
interest-bearing escrow account by Escrow Agent in an institution as directed
by Purchaser and reasonably acceptable to Seller and (ii) include any interest
earned thereon.  To allow the interest
bearing account to be opened, Purchaser’s tax identification or social security
numbers are set forth below its signature.


 


3.4                               Seller Deposit.  Concurrently
with the complete execution and delivery of this Agreement, Seller has deposited
a Ten Million and No/100 Dollars ($10,000,000.00) Letter of Credit (“Seller Letter of Credit”) with Escrow
Agent.  The Seller Letter of Credit shall
be held by Escrow Agent pursuant to an Escrow Agreement in the form attached
hereto as Exhibit E
modified to conform to the terms of this Agreement and as required by Title
Company when Title Company


 


2





















 


holds
a letter of credit.  The Seller Letter of
Credit shall (i) be unconditional and irrevocable, (ii) be in a form reasonably
acceptable to Purchaser, (iii) be issued by a financial institution doing business
in the United States of America, with offices in Chicago, Illinois and (iv)
expire no earlier than June 30, 2005. 
The cost of issuing and maintaining the Seller Letter of Credit shall be
paid by Seller.  The Seller Letter of
Credit and the proceeds of the Seller Letter of Credit (“Proceeds”) have been provided to assure
performance and observance by Seller of all of its closing obligations under this
Agreement.  Accordingly, in the event of
a Seller default as described in Section 13.1 hereinbelow, or in
the event that the Seller Letter of Credit will expire within thirty (30) days
or less, Purchaser shall have the right to direct Escrow Agent to draw upon the
Seller Letter of Credit.  All Proceeds
received by Escrow Agent shall be retained by Escrow Agent and held or
disbursed pursuant to the terms of the Escrow Agreement and this Agreement.  At the time of the final Closing of
Properties, including, but not limited to, Substitute Properties (defined
below) under this Agreement, the Seller Letter of Credit shall be delivered to
Seller.


 


ARTICLE IV


Closing, Prorations and Closing Costs


 


4.1                               Closing.  The
closing of the purchase and sale of the Properties shall occur on or before 10:00
a.m. Central time on May 20, 2005 (the “Scheduled
Closing Date”) and shall be held at the offices of Escrow Agent, or
at such other place agreed to by Seller and Purchaser (said closing is
hereinafter referred to as the “Closing”).
 Notwithstanding anything to the contrary
contained in this Section 4.1, Seller or Purchaser, as the case may
be, shall have the right to extend the closing date for one or more of the
Properties in accordance with the provisions of Sections 9.9, 10.1 and 12.1
hereof.  “Closing” shall be deemed
to have occurred when the Title Company has been instructed by both parties to
pay the applicable portion of the Purchase Price to Seller and to record the
applicable Deeds, as hereunder defined. 
The date of the Closing is sometimes referred to in this Agreement as a “Closing Date.”  The transactions contemplated by this
Agreement shall be closed through an escrow with Escrow Agent on the Closing
Date, in accordance with the general provisions of the usual form “New York
Style” Deed and Money Escrow Agreement used by Escrow Agent, with such
provisions required to conform to the terms of this Agreement.


 


4.2                               Prorations.  All
matters involving prorations or adjustments to be made in connection with
Closing and not specifically provided for in some other provision of this
Agreement shall be adjusted in accordance with this Section 4.2.  Except as otherwise set forth herein, all
items to be prorated pursuant to this Section 4.2 shall be prorated
as of midnight of the day immediately preceding a Closing Date, with Purchaser
to be treated as the owner of the applicable Properties, for purposes of
prorations of income and expenses, on and after a Closing Date.


 


4.2.1                        Taxes.  Subject to the provisions of
this Section 4.2.1, real estate and personal property taxes, if
any, accrued, but not yet due and owing as of the Closing and installments of
special assessments, if any, due and owing during the installment year in which
the Closing occurs (hereinafter collectively referred to as “Taxes”) shall be prorated as of the Closing
Date, and, notwithstanding any other provision contained in this Agreement,
shall not be reprorated.  Seller shall
pay all Taxes due and payable as of the Closing Date.  If the Taxes have not been set for the year
in which Closing occurs or any prior year, then the proration of such Taxes
shall be based upon the most recent ascertainable tax bills.  Notwithstanding any other provision of this
Agreement, (a) there shall be no proration of Taxes with respect to tenants
whose leases obligate said tenants to pay Taxes when the tax bills are issued,
and (b) the amount otherwise due Purchaser under this Section 4.2.1
shall be reduced by an amount equal to all tenant deposits held by Seller for
Taxes at the time of Closing (collectively, the “Tenant Tax Deposits”) and the Tenant Tax Deposits shall be
turned over to Purchaser at Closing. 
Tenant Tax Deposits received by Seller following Closing for any period
of time after Closing shall be paid to Purchaser.  The amount due


 


3





















 


under
this Section 4.2.1 shall not be credited to Purchaser at Closing
but shall be deposited into the operating account for the Properties and held
by Seller as property manager pursuant to the Management Agreement described in
Section 9.6 below.


 


Seller shall contest real estate taxes and/or assessment levels, as the
case may be, prior to Closing if Seller deems reasonable in its judgment as a
commercially prudent owner of real estate. 
All costs incurred in connection with such contest shall be paid by the
parties in proportion to benefit received by the parties in connection with any
reduction of such real estate taxes or assessments as the case may be.


 


4.2.2                        Insurance.  Seller shall assign its
existing insurance policies to Purchaser upon Closing.  Purchaser shall be named as a named insured
thereon and all premiums with respect thereto shall be prorated between the
parties as of Closing.


 


4.2.3                        Utilities.  Purchaser and Seller hereby
acknowledge and agree that the amounts of all electric, sewer, water and other
utility bills, trash removal bills, janitorial and maintenance service bills
and all other operating expenses relating to the applicable Properties not paid
by tenants under Leases and allocable to the period prior to the Closing Date
shall be determined and paid by Seller before Closing, if possible, or shall be
paid thereafter by Seller or adjusted between Purchaser and Seller immediately
after the same have been determined. 
Seller shall attempt to have all utility meters, or utility services not
paid by tenants under Leases, read as of the Closing Date.  Purchaser shall cause all utility services to
be placed in Purchaser’s name as of the Closing Date.  If permitted by the applicable utilities, all
utility deposits in Seller’s name shall be assigned to Purchaser as of the
Closing Date, and Seller shall receive a credit therefor at Closing.


 


4.2.4                        Rents.  Rent [(including estimated
pass-through payments for common area/operating expenses, but not for Taxes),
collectively “Rents”] for the
month in which Closing occurs shall be prorated for said month based upon the
Rents estimated to have been collected by Seller as of the Closing Date.  Rents for said month shall be reprorated
within seven (7) Business Days after the end of said month based on Rents actually
received.  During the period after
Closing, (i) Purchaser shall deliver to Seller any and all Rents accrued but
uncollected as of the Closing Date, to the extent subsequently collected by
Purchaser; provided, however, Purchaser shall apply Rents received after
Closing first to payment of current Rents then due, and thereafter to
delinquent Rents (other than “true up” payments received from tenants
attributable to a year-end reconciliation of actual and budgeted pass-through
payments, which shall be allocated among Seller and Purchaser pro rata in
accordance with their respective period of ownership as set forth in Section 4.2.5
below), and (ii) Seller shall deliver to Purchaser any and all Rents collected
by Seller for any period after Closing.


 


Subject to the provisions of the following sentence, Seller shall be
entitled, after the Closing, to take any action against a tenant which would
not result in a termination of any Lease or a tenant’s right of occupancy
thereunder (“Seller Action”).  Notwithstanding the foregoing, Seller shall
not take any Seller Action unless Seller shall have first provided Purchaser
with not less than five (5) Business Days’ notice of its intent to take action
against a tenant, together with a description of the subject matter of the
proposed Seller Action.  Purchaser agrees
that it shall use commercially reasonable efforts to collect all pass-through
rents payable by tenants and any delinquent Rents (provided, however, that
Purchaser shall have no obligation to institute legal proceedings, including an
action for unlawful detainer, against a tenant owing delinquent Rents).


 


4





















 


The amount of any unapplied security deposits (plus accrued interest
thereon if payable to a tenant under its lease) under the Leases held by Seller
in cash at the time of Closing shall be credited against the Purchase Price;
accordingly, Seller shall retain the actual cash deposits.  Notwithstanding anything in this Section 4.2.4
to the contrary, if any security deposits are in the form of a letter of
credit, such security deposits shall not be prorated, but shall be turned over
by Seller to Purchaser at the Closing by the delivery thereof by Seller to
Purchaser in accordance with this provision. 
In addition, Seller shall use reasonable efforts to deliver appropriate
duly executed instruments of transfer or assignment of such letters of credit
which are required to establish Purchaser as the new beneficiary thereunder and
any consents required by the issuing bank for the transfer of such letters of
credit.  If required, Seller shall use
reasonable efforts to arrange for the issuance by the issuing bank of any
authorization to the transfer, together with the delivery of such letters of
credit (and any letter of transfer that is required by such letter of
credit).  Any fees imposed by such
issuing banks in connection with such transfers which are not the obligation of
the applicable tenant to pay shall be paid by Seller.  In the event that any letter of credit is not
transferable as of Closing, Seller shall cooperate with Purchaser in all
reasonable respects following the Closing so as to transfer the same to
Purchaser or to obtain a replacement letter of credit with respect thereto in
favor of Purchaser, in either case at no cost or expense to Purchaser.  Until any such letter of credit shall be
transferred or replaced, Seller shall present such letter of credit for payment
and deliver the proceeds received by Seller, if any, to Purchaser within a
reasonable period of time following receipt of Purchaser’s written
request.  Notwithstanding the foregoing,
Seller shall not be in default under this Agreement in the event that any such
letter of credit is not assigned to Purchaser for any reason other than the
failure of Seller to sign the documents required of it to transfer the letter
of credit or the failure of Seller to pay any fees imposed by an issuing bank
in connection with such transfers.  In
such event, Purchaser may terminate this Agreement with respect to the
applicable Property upon written notice to Seller on or before ten (10) days
after Purchaser becomes aware that a letter of credit will not be assigned on the
Closing Date; provided, however, Purchaser’s right to terminate shall not be
effective in the event that Seller, in its sole and absolute discretion, gives
Purchaser a credit against the Purchase Price in the amount of the security
deposit or provides a substitute letter of credit in that amount.


 


4.2.5                        Calculations.  For
purposes of calculating prorations, Purchaser shall be deemed to be in title to
that portion of the Properties being acquired on the Closing Date, and,
therefore entitled to the income therefrom and responsible for the expenses
thereof for the entire day upon which the Closing occurs.  All such prorations shall be made on the
basis of the actual number of days of the month which shall have elapsed as of
the day of the Closing and based upon the actual number of days in the month
and year in question.  Except as set
forth in this Section 4.2, all items of income and expense which
accrue for the period prior to the Closing will be for the account of Seller
and all items of income and expense which accrue for the period on and after
the Closing will be for the account of Purchaser.  Purchaser and Seller shall each submit or
cause to be submitted to the other (i) on or about the 90th day after Closing,
and (ii) on or about the one year anniversary of the Closing, a statement which
sets forth necessary adjustments to items subject to proration pursuant to the
provisions of this Section 4.2, if any; provided, however, no
adjustment shall be made with respect to Taxes. 
Within fifteen (15) days following delivery of such statements, the
parties shall make such adjustments among themselves as shall be necessary to
carry out the prorations as contemplated in this Section 4.2.  In the event any prorations made under this Section 4.2
shall prove to be incorrect for any reason, then any party shall be entitled to
an adjustment to correct the same.


 


4.2.6                        Leasing Commissions and Leasing Costs. 
Seller shall be responsible for all leasing commissions, tenant
improvement costs and other usual and customary leasing


 


5





















 


costs,
due and owing with respect to the current term of all Leases executed prior to
the Effective Date, whether such leasing commissions, tenant improvement costs
and other usual and customary leasing costs are due to be paid prior to or
after the Closing Date.


 


4.2.7                        Prepaid Items.  Any
prepaid items, including, without limitation, fees for licenses which are
transferred to the Purchaser at the Closing and annual permit and inspection
fees shall be apportioned between the Seller and the Purchaser at the Closing.


 


4.2.8                        Allocation of Closing Costs and Expenses.  Seller shall bear the cost of the title policy
to be issued and extended coverage charges, the cost of the Surveys (as
hereinafter defined), the cost to record any instruments necessary to clear
Seller’s title, one-half the cost of the Closing Escrow and one-half the cost
of the “New York Style” closing fee. Purchaser shall bear the cost of any recording
fees with respect to the Deeds, all costs incurred in connection with obtaining
Purchaser’s financing for this transaction, if any, the cost of all title
endorsements (other than with respect to extended coverage), if any, one-half
the cost of the Closing Escrow and one-half the cost of the “New York Style”
closing fee.  The cost of state and
county transfer taxes shall be paid by the Seller, and the cost of local transfer
taxes shall be paid by the party designated in the applicable local ordinance
or local custom.  If no such designation
or custom exists, and a local transfer tax must be paid, the cost thereof shall
be shared equally by Seller and Purchaser.


 


4.2.9                        Operating Expenses.  All
operating expenses (including all charges under Contracts and agreements
assumed by Purchaser under the General Assignment, as hereinafter defined and
fees to any owner’s association) shall be prorated as of the Closing Date.  As to each service provider, operating
expenses payable or paid to such service provider in respect to the billing
period of such service provider in which the Closing Date occurs (the “Current Billing Period”), shall be prorated
on a per diem basis based upon the number of days in the Current Billing Period
prior to the Closing Date (which shall be allocated to Seller) and the number
of days in the Current Billing Period on and after the Closing Date (which
shall be allocated to Purchaser), and assuming that all charges are incurred
uniformly during the Current Billing Period. 
If actual bills for the Current Billing Period are unavailable as of the
Closing Date, then such proration shall be made on an estimated basis based
upon the most recently issued bills, subject to readjustment within thirty (30)
days of receipt of actual bills.  Notwithstanding
the foregoing, no prorations or adjustments shall be made for portions of
operating costs of the Properties to the extent a tenant under the Leases is
required to pay same pursuant to the terms of any of the Leases. Purchaser
shall be credited with an amount equal to all deposits made by tenants and held
by Seller at Closing towards the tenant’s obligation to pay any such operating
expenses.


 


ARTICLE V


Inspection


 


5.1                               Seller Deliveries. 
Purchaser acknowledges that Seller has heretofore delivered or caused to
be delivered or made available to Purchaser at the Properties all of the items relating
to the Properties specified on Exhibit F,
attached hereto, to the extent that such items were in Seller’s possession (“Documents”); provided, however, that except
for the representations and warranties made in Article VII hereof,
Seller makes no representations or warranties of any kind regarding the
accuracy, thoroughness or completeness of or conclusions drawn in the
information contained in such documents, if any, relating to the
Properties.  Except with respect to
claims arising out of a breach by Seller of a representation or warranty made
in Article VII hereof, Purchaser hereby waives any and all claims
against Seller arising out of the accuracy, completeness, conclusions or
statements expressed in materials so furnished and any and all claims arising
out of any duty of Seller to acquire, seek or obtain such materials.  Purchaser acknowledges that any and all of
the


 


6





















 


Documents
that are not otherwise known by or available to the public are proprietary and
confidential in nature and were delivered to Purchaser solely to assist
Purchaser in determining the feasibility of purchasing the Properties.  Purchaser agrees not to disclose such
non-public documents, or any of the provisions, terms or conditions thereof, to
any party other than a Purchaser Party/Representative, as hereinafter
defined.  Purchaser shall return all of
the Documents, at such time as this Agreement is terminated for any
reason.  This Section 5.1
shall survive Closing and/or termination of this Agreement without limitation.


 


5.2                               Independent Examination/Right
to Access.  Purchaser hereby acknowledges that it has
been given, prior to the execution hereof, a full, complete and adequate
opportunity to make such legal, factual and other determinations, analyses,
inquiries and investigations as Purchaser deems necessary or appropriate in
connection with the acquisition of the Properties.  Purchaser further acknowledges that Purchaser
is relying upon its own independent examination of the Properties and all
matters relating thereto and not upon any statements of Seller (excluding the
limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser.  Notwithstanding
anything to the contrary contained in this Section 5.2, Purchaser
and its agents shall have access to the Properties and the Documents prior to
the Closing Date, but during normal business hours (with reasonable advance
notice to Seller and subject to the rights of the tenants in possession), at
Purchaser’s sole cost and expense, and at Purchaser’s and its agents’ sole
risk, to inspect the applicable Properties, provided, however, Purchaser shall not
be entitled to conduct Physical Testing or any Phase I Assessments, as said
terms are hereinafter defined, without the approval of Seller, which approval
shall not be unreasonably withheld, and further provided that prior to
Purchaser entering the Properties, Purchaser shall deliver to Seller evidence
of Due Diligence Insurance, as hereinafter defined.  Seller shall have the right, in its discretion,
to accompany Purchaser and/or its agents during any inspection (including, but
not limited to, tenant interviews) provided that Seller does not unreasonably
interfere with Purchaser’s inspection. 
The provisions of this Section 5.2 shall survive Closing
and/or termination of this Agreement without limitation.  Purchaser acknowledges and agrees that the
Documents and investigation available to it have been sufficient to allow
Purchaser to decide whether or not to enter into this Agreement and consummate
the transaction contemplated hereby.


 


5.3                               Inspection Obligations and
Indemnity.  Purchaser and its agents and representatives
shall (a) not unreasonably disturb the tenants of the Improvements or interfere
with their use of the Real Property pursuant to their respective Leases; (b)
not interfere with the operation and maintenance of the Real Property; (c) not
injure or otherwise cause bodily harm to Seller, its agents, contractors and
employees or any tenant; (d) promptly repair any damage to any part of the
Properties or any personal property owned or held by any tenant caused by
Purchaser’s inspection of the Properties; (e) promptly pay when due the costs
of all tests, investigations and examinations done by Purchaser with regard to
the Properties; (f) not permit any liens to attach to the Properties as a
result of Purchaser’s inspection of the Properties; (g) restore the
Improvements and the surface of the Real Property to the condition in which the
same was found before any such inspection or tests were undertaken by
Purchaser; and (h) except to the extent required by law, not reveal or disclose
any information obtained pursuant to its inspections of the Properties to
anyone other than the following persons or entities (each a “Purchaser Party/Representative”): (x)
Purchaser’s prospective lenders, members, managers, partners or other co-venturers
or investors, in connection with the proposed purchase of the Properties and
their respective representatives; and (y) Purchaser’s directors, officers,
partners, members, managers, affiliates, shareholders, employees, legal
counsel, accountants, engineers, architects, financial advisors and similar
professionals and consultants to the extent Purchaser deems it necessary or
appropriate in connection with its


 


7





















 


evaluation
of the Properties.  Purchaser shall, and
does hereby agree to indemnify, defend and hold Seller, its partners, officers,
directors, employees, agents, attorneys and their respective successors and
assigns, harmless from and against any and all claims, demands, suits,
obligations, payments, damages, losses, penalties, liabilities, costs and
expenses (including, but not limited to, attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Properties
in the exercise of the inspections of Purchaser prior to the Effective Date,
including, without limitation, claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use of or damage to its premises or property in connection with
Purchaser’s review of the Properties. 
This Section 5.3 shall survive the Closing and/or any
termination of this Agreement without limitation. Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


 


ARTICLE VI


Title and Survey Matters


 


6.1                               Title. 
Purchaser acknowledges that, prior to the Effective Date, Seller has
delivered to Purchaser, with respect to each Property, a title insurance
commitment or a prior title insurance policy (a “Commitment”), together with a copy of all underlying documents
referenced therein (collectively, the “Title
Documents”).  Except as
hereinafter provided, Purchaser and Seller hereby agree that (i) all Taxes that
are not due and payable prior to Closing, (ii) the rights of the tenants under
the Leases and Approved New Leases (as defined in Section 9.3 of
this Agreement), as parties in possession only, (iii) all matters created by or
on behalf of Purchaser and (iv) the exceptions to title identified on Exhibits G-1 through G-3, respectively, shall constitute “ Permitted Exceptions”.  Notwithstanding anything to the contrary
contained herein, Seller shall be obligated to cause all of the following
resulting from the act or omission of, or caused by, Seller or grantor under
the Deeds to be fully satisfied, released and discharged of record or insured
or bonded over on or prior to the Closing Date:  all mortgages, deeds of trust and monetary
liens [including liens for delinquent taxes, mechanics’ liens and judgment
liens] affecting the Properties and all indebtedness secured thereby.


 


6.2                               Survey. 
Purchaser acknowledges receipt of Seller’s existing surveys (“Initial Surveys”) for each of the
Properties.  Seller has ordered a current
ALTA/ACSM survey for each Property to be certified to Purchaser, as well as any
affiliates and lender designated by Purchaser to Seller at least thirty (30)
days prior to Closing and Title Company (collectively, the “Surveys”) and shall deliver a copy of the
Surveys to Purchaser promptly upon receipt thereof but in all events prior to
Closing.  The surveyors shall certify the
Surveys in accordance with the form of certification attached hereto as Exhibit Q.


 


ARTICLE VII


Representations and Warranties of the Seller


 


7.1                               Seller’s Representations.  Seller
represents and warrants that the following matters are true and correct as of
the Effective Date:


 


7.1.1                        Authority.  Seller is a real estate
investment trust, duly organized, validly existing and in good standing under
the laws of the State of Maryland.  This
Agreement has been duly authorized, executed and delivered by Seller, is the
legal, valid and binding obligation of Seller, and does not violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller is subject.  All documents
to be executed by Seller or Seller Affiliates which are to be delivered at
Closing, will, at the time of Closing, (i) be duly authorized, executed and
delivered by Seller or Seller Affiliates, as the case may be, (ii) be


 


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legal,
valid and binding obligations of Seller or Seller Affiliates, as the case may
be, and (iii) not violate any provision of any agreement or judicial order
to which Seller or Seller Affiliates, as the case may be is a party or to which
Seller or Seller Affiliates, as the case may be, is subject.


 


7.1.2                        Bankruptcy or Debt of Seller.  Neither
Seller nor any Seller Affiliates has made a general assignment for the benefit
of creditors, filed any voluntary petition in bankruptcy, admitted in writing
its inability to pay its debts as they come due or made an offer of settlement,
extension or composition to its creditors generally.  Neither Seller nor any Seller Affiliates has
received any written notice of (a) the filing of an involuntary petition by Seller’s
creditors or the creditors of Seller Affiliates, (b) the appointment of a
receiver to take possession of all, or substantially all, of Seller’s assets or
the assets of Seller Affiliates, or (c) the attachment or other judicial
seizure of all, or substantially all, of Seller’s assets or the assets of Seller
Affiliates.


 


7.1.3                        Foreign Person.  Neither
Seller nor any of the Seller Affiliates is a foreign person within the meaning
of Section 1445(f) of the Internal Revenue Code (“Code”), and Seller agrees to execute and
cause the Seller Affiliates to execute any and all documents necessary or
required by the Internal Revenue Service or Purchaser in connection with such
declaration(s).


 


7.1.4                        No Violation of Laws. 
Except as set forth on Schedule 7.1.4, to Seller’s knowledge,
neither Seller nor Seller Affiliates have received any currently effective
written notice from a governmental authority that the Properties violate any
applicable ordinance of the city or village in which the Properties are
located.


 


7.1.5                        Eminent Domain.  Except
as set forth on Schedule 7.1.5, to Seller’s knowledge, neither Seller
nor Seller Affiliates have received any currently effective written notice of
an eminent domain or condemnation of the Land or Improvements relating to the
Properties.


 


7.1.6                        Hazardous Materials. 
Except as set forth on Schedule 7.1.6, to Seller’s
knowledge, except as set forth in any environmental report provided by Seller
to Purchaser, or as referenced or referred to in Section 17.23, (i)
neither Seller nor Seller Affiliates have received any uncured written notice
from the United States Environmental Protection Agency or the Illinois
Environmental Protection Agency (or any Indiana or Wisconsin agency comparable
to the Illinois Environmental Protection Agency) alleging that the Properties
are in violation of any applicable Environmental Laws or contain any Hazardous
Materials, (ii) since the date of the most recent environmental report, there have been no Hazardous Materials
installed or stored in or otherwise existing at, on, in or under the Properties
in violation of applicable Environmental Laws, and (iii) Seller has acted in
the manner that a commercially prudent property owner would act with respect to
any written recommendations made by Seller’s environmental consultants.  “Hazardous
Materials” shall mean any hazardous, toxic waste, substance or
material, pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Section 9601 et seq.), as amended, or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or any
other federal, state or local laws, ordinances, rules, regulations or policies
governing use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of such materials (collectively, “Environmental Laws”).


 


7.1.7                        Litigation.  Except as set forth on Schedule 7.1.7,
to Seller’s knowledge, (i) neither Seller nor Seller’s Affiliates have received
any currently effective written notice of


 


9





















 


any
pending litigation affecting the Properties, and (ii) there is no action, suit
or proceeding threatened before or by any judicial, administrative or union
body, any arbitrator or any governmental authority, against or affecting the
Properties.


 


7.1.8                        Leases.  Except as set forth on Schedule 7.1.8,
(i) the Rent Roll delivered to Purchaser by Seller lists all of the Leases
affecting the Properties owned by Seller or Seller’s Affiliates, (ii) the
Leases affecting the Properties delivered to Purchaser by Seller are true,
correct and complete copies of the Leases provided to or entered into by Seller
or Seller’s Affiliates relating to the Properties, and (iii) to Seller’s
knowledge, no tenant has commenced any action or given any written notice to Seller
or any Seller Affiliate for the purpose of terminating its lease in whole or in
part, whether by exercise of an express termination right in its lease or
otherwise.


 


7.1.9                        Contracts.  Except as set forth on Schedule 7.1.9,
to Seller’s knowledge, Seller has delivered to Purchaser complete copies of
each Contract provided to or entered into by Seller or Seller Affiliate relating
to the Properties.


 


7.1.10                  Defaults.  Except as set forth on Schedule 7.1.10,
or any other exhibit to this Agreement, (i)
no notice of default has been given by Seller or Seller Affiliates to any
tenant or received by Seller from any tenant under any Lease relating to the Properties
which remains uncured and (ii) no base or additional rent due under any Lease
relating to the Properties is more than thirty (30) days past due.


 


7.1.11                  Operating Statements.  To Seller’s
knowledge, the operating statements relating to the Properties delivered by
Seller to Purchaser in accordance with Section 5.1 hereof are true
and correct in all material respects and no material adverse change has
occurred since the respective dates thereof.


 


7.1.12                  Bulk Sale Act. The provisions of Section 9.02(d) of
the Illinois Income Tax Act and the applicable provisions of the Retailer’s
Occupation Tax Act do not apply to this transaction.


 


7.1.13                  REIT REP The Properties consist solely of land, buildings, and other structural
components thereof, and other assets described in Section 856(c)(4)(A) of
the Code.  The total gross revenues
generated by the Properties between January 1, 2003 and the Closing Date
has consisted and will consist solely of income from rents from real property
and other revenue which constitute qualifying income under Section 856(c)(3)
of the Code (“Qualifying Income”),
and based on historical experience, Seller believes that the gross revenues
generated by the Properties after the Closing Date will consist solely of
Qualifying Income.


 


Seller
shall remake all representations and warranties as of the date of the Closing;
provided, however, at the time such warranties and representations are remade,
Seller shall provide Purchaser with updates of the Schedules referred to in the
representations and warranties set forth above and an updated operating
statement.  Purchaser acknowledges and
agrees that the representations and warranties that are made as of the Closing
Date shall refer to the updated Schedules and operating statements.


 


7.2                               Intentionally Deleted.


 


7.3                               Knowledge.  For purposes
of this Agreement and any document delivered at Closing, whenever the phrases “to
the best of Seller’s knowledge”, “to the actual knowledge of Seller” or “to the
knowledge” of Seller or words of similar import are used, they shall be deemed
to


 


10





















 


refer
to the current, actual knowledge only, and not any implied, imputed or
constructive knowledge of Michael M. Mullen and James N. Clewlow, after
consultation with the property managers of each Property owned by Seller
(collectively, the “Seller Property Managers”).  Except for the obligation to consult with the
Seller Property Managers, neither Michael M. Mullen nor James N. Clewlow shall
be obligated to conduct any independent investigation, and no implied duty to
investigate shall be imputed.  Nothing
contained in this Agreement shall be deemed to impose any personal liability of
any kind on any person named in Section 7.3.


 


For
purposes of this Agreement, and any document delivered at Closing, whenever the
phrase “to the best of Purchaser’s knowledge”, “to the actual knowledge of
Purchaser” or “to the knowledge of Purchaser” or words of similar import are
used, they shall be deemed to refer to the current, actual knowledge only, and
not any implied, imputed or constructive knowledge, of Andrew Martin and Ben
Hindmarsh; provided, however, that nothing in this Agreement shall be deemed to
create or impose any personal liability of any kind on Andrew Martin or Ben
Hindmarsh.


 


7.4                               Change in
Representation/Waiver.  Notwithstanding
anything to the contrary contained herein, Purchaser acknowledges that
Purchaser shall not be entitled to rely on any representation or warranty made
by Seller in this Article VII to the extent, prior to or at
Closing, Purchaser shall have or obtain actual knowledge of any information
that was contradictory to such representation or warranty; provided, however,
if Purchaser determines prior to Closing that there is a breach of any of the
representations and warranties made by Seller above, then Purchaser may, at its
option, by sending to Seller written notice of its election either (i) exercise
its rights under Section 9.9 below if applicable, (ii) waive such
breach and/or conditions and proceed to Closing with no adjustment in the Purchase
Price and in such event Seller shall have no further liability as to such
matter thereafter, or (iii) as its sole remedy, terminate this Agreement in its
entirety in the event of any untruth or inaccuracy of (x) the representations
or warranties set forth in Sections 7.1.1, 7.1.2 or 7.1.3, or (y)
the representations and warranties set forth in the other sections of Article VII,
but only if such representations and warranties were not true or were
inaccurate on the Effective Date and such untruth or inaccuracy is “Material”
(defined below). The term “Material” as used in this Section 7.4
shall mean a liability or loss reasonably anticipated to arise out of an
untruth or inaccuracy of the representations or warranties set forth in Article VII
which (i) exceeds $500,000.00 for each affected Property, or (ii) results from
fraud or willful misconduct on the part of Seller.  In the event that Purchaser elects to
terminate this Agreement, the parties shall have no liability to each other hereunder
and the Deposit shall be returned to Purchaser and the Seller Letter of Credit
shall be returned to Seller.  Seller
shall have no liability with respect to any of the foregoing representations
and warranties or any representations and warranties made in any other document
executed and delivered by Seller to Purchaser, to the extent that, prior to the
Closing, Purchaser discovers or learns of information (from whatever source,
including, without limitation the property manager, the tenant estoppel
certificates or the Seller’s Estoppel Certificates delivered pursuant to Section 10.1.1
below, as a result of Purchaser’s due diligence tests, investigations and
inspections of the Property, or disclosure by Seller or Seller’s agents and
employees) that contradicts any such representations and warranties, or renders
any such representations and warranties untrue or incorrect, and Purchaser
nevertheless consummates the transaction contemplated by this Agreement.


 


7.5                               Post Closing Rights. 
Following Closing, Purchaser will have the right to bring any action
against Seller as a result of any untruth or inaccuracy of representations and
warranties made herein if (i) such untruth or inaccuracy is “Material,” and
(ii) prior to Closing Purchaser did not discover or learn information (from
whatever source) that contradicts any such representations and warranties, or
renders any such representations and warranties untrue or incorrect.  The term “Material” as used in this Section 7.5
shall mean a liability or loss reasonably anticipated to arise out of an
untruth or inaccuracy of the representations or warranties set forth in Article VII
which results from fraud or willful misconduct on the part of Seller or exceeds
$500,000 for each such affected


 


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Property,
it being understood that the foregoing limitation is a threshold which must be
exceeded, but that once such threshold has been exceeded, any post closing
claim may be pursued for its full value. 
In addition, in no event will Seller’s liability for all such breaches
relating to a specific Property, exceed, in the aggregate, the allocated
Purchase Price of the Property in question, calculated in accordance with Schedule 9.8.


 


7.6                               Survival.  The
express representations and warranties made in this Agreement shall not merge
into any instrument or conveyance delivered at the Closing; provided, however,
that any action, suit or proceeding with respect to the truth, accuracy or
completeness of representations and warranties set forth in Sections other than
Sections 7.1.1, 7.1.2 and 7.1.3 shall be commenced, if at
all, on or before the date which is twelve (12) months after the date of a Closing
and, if not commenced on or before such date, thereafter such representations
and warranties shall be void and of no force or effect as to the applicable
Closing.


 


ARTICLE VIII


Representations and Warranties of Purchaser


 


8.1                               Purchaser represents and warrants to Seller
that the following matters are true and correct as of the Effective Date.


 


8.1.1                        Authority.  Purchaser is a limited
liability company, duly organized, validly existing and in good standing under
the laws of the State of Delaware.  This
Agreement has been duly authorized, executed and delivered by Purchaser, is the
legal, valid and binding obligation of Purchaser, and does not violate any
provision of any agreement or judicial order to which Purchaser is a party or
to which Purchaser is subject.  All
documents to be executed by Purchaser which are to be delivered at Closing,
will, at the time of Closing, (i) be duly authorized, executed and delivered by
Purchaser, (ii) be legal, valid and binding obligations of Purchaser, and (iii)
not violate any provision of any agreement or judicial order to which Purchaser
is a party or to which Purchaser is subject.


 


8.1.2                        Bankruptcy or Debt of Purchaser.  Purchaser
has not made a general assignment for the benefit of creditors, filed any
voluntary petition in bankruptcy, admitted in writing its inability to pay its
debts as they come due or made an offer of settlement, extension or composition
to its creditors generally.  Purchaser
has received no written notice of (a) the filing of an involuntary petition by
Purchaser’s creditors, (b) the appointment of a receiver to take possession of
all, or substantially all, of Purchaser’s assets, or (c) the attachment or
other judicial seizure of all, or substantially all, of Purchaser’s assets.


 


8.1.3                        No Financing Contingency.  It
is expressly acknowledged by Purchaser that this transaction is not subject to
any financing contingency, and no financing for this transaction shall be
provided by Seller.


 


8.2                               Purchaser’s Acknowledgment. 
Purchaser acknowledges and agrees that, except as expressly provided in
this Agreement, Seller has not made, does not make and specifically disclaims
any and all representations, warranties, promises, covenants, agreements or
guaranties of any kind or character whatsoever, whether express or implied,
oral or written, past, present or future, including, but not limited to those
representations, warranties, promises, covenants, agreement and guaranties of,
as to, concerning or with respect to (a) the nature, quality or condition of
the Properties, including, without limitation, the water, soil and geology, (b)
the income to be derived from the Properties, (c) the suitability of the
Properties for any and all activities and uses which Purchaser may conduct
thereon, (d) the compliance of or by the Properties or its operation with any
laws, rules, ordinances or regulations of any applicable governmental authority
or body, including, without limitation, the Americans with Disabilities Act and
any rules and regulations promulgated


 


12





















 


thereunder
or in connection therewith, (e) the habitability, merchantability or fitness
for a particular purpose of the Properties, or (f) any other matter with
respect to the Properties, and specifically that except as expressly provided
in this Agreement, Seller has not made, does not make and specifically
disclaims any representations regarding solid waste, as defined by the U.S.
Environmental Protection Agency regulations at 40 C.F.R., Part 261, or the
disposal or existence, in or on the Properties, of any hazardous substance, as
defined by the Comprehensive Environmental Response Compensation and Liability
Act of 1980, as amended, and applicable state laws, and regulations promulgated
thereunder.  Purchaser further
acknowledges and agrees that, except as expressly provided in this Agreement,
having been given the opportunity to inspect the Properties, Purchaser is
relying solely on its own investigation of the Properties and not on any
information provided or to be provided by Seller.  Purchaser further acknowledges and agrees
that subject to the representations and warranties of Seller as provided herein
and in any other document executed at Closing, any information provided or to
be provided with respect to the Properties was obtained from a variety of
sources and that Seller has not made any independent investigation or verification
of such information.  Purchaser further acknowledges and agrees that, as a
material inducement to the execution and delivery of this Agreement by Seller,
subject to the representations and warranties of Seller provided herein and in
any other document executed at Closing, the sale of the Properties as provided
for herein is made on an “AS IS, WHERE IS” CONDITION AND BASIS “WITH ALL
FAULTS.”  Purchaser
acknowledges, represents and warrants that Purchaser is not in a significantly
disparate bargaining position with respect to Seller in connection with the
transaction contemplated by this Agreement; that Purchaser freely and fairly
agreed to this acknowledgment as part of the negotiations for the transaction
contemplated by this Agreement; that Purchaser is represented by legal counsel
in connection with this transaction.


 


8.3                               Purchaser’s Release. 
Effective as of the date of the Closing, Purchaser on behalf of itself
and its successors and assigns waives its right to recover from, and forever
releases and discharges, Seller, Seller’s affiliates, Seller’s investment
manager, property manager, the partners, trustees, shareholders, beneficiaries,
directors, officers, employees, attorneys and agents of each of them, and their
respective heirs, successors, personal representatives and assigns from any and
all demands, claims, legal or administrative proceedings, losses, liabilities,
damages, penalties, causes of action, fines, liens, judgments, costs and
expenses known or unknown, foreseen or unforeseen, that may arise on account of
or in any way be connected with the Properties, except, subject to Section 7.5
hereof, such as arises out of (i) a breach of any of the representations and
warranties of Seller set forth in Article VII and (ii) any of the
provisions of this Agreement that survive Closing pursuant to the provisions of
Section 17.12 below.  The
terms and provisions of this Section 8.3 shall survive Closing
and/or termination of this Agreement without limitation.


 


8.4                               Survival.  The
express representations and warranties made in this Agreement by Purchaser
shall not merge into any instrument of conveyance delivered at the Closing;
provided, however, that any action, suit or proceeding with respect to the
truth, accuracy or completeness of all such representations and warranties
shall be commenced, if at all, on or before the date which is twelve (12)
months after the date of the Closing and, if not commenced on or before such
date, thereafter shall be void and of no force or effect as to the applicable
Closing.


 


ARTICLE IX


Seller’s Interim Operating Covenants/Seller’s and Purchaser’s
Covenants


 


9.1                               Operations. 
Seller agrees to continue to operate, manage and maintain the
Improvements through the Closing Date in the ordinary course of Seller’s
business and substantially in accordance with Seller’s present practice,
subject to ordinary wear and tear and further subject to Article XII
of this Agreement.  As of, and at all
times after the Effective Date until Closing, Seller shall name Purchaser as an
additional insured on all liability insurance policies maintained by Seller
relating to the Properties.


 


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9.2                               No Sales.  Except for the execution of tenant Leases pursuant to Section 9.3,
Seller agrees that it shall not convey any interest in the Properties to any
third party.


 


9.3                               Tenant Leases.  From and after the Effective Date, Seller shall not (i) grant any
consent or waive any material rights under the Leases, (ii) terminate any
Lease, or (iii) enter into a new lease, modify an existing Lease or renew,
extend or expand an existing Lease in any material respect without the prior
written approval of Purchaser (an “Approved
New Lease”), which in each case shall not be unreasonably withheld,
conditioned or delayed.  Any Approved New
Lease shall meet all of the following parameters: (i) such proposed lease has
an initial term (excluding any options to extend such term) of not less than
three (3) years and not more than ten (10) years; (ii) such proposed lease has
no free-rent period extending beyond the term of the Master Lease (defined
below); (iii) such proposed lease has no above-market obligation of Purchaser
to provide or fund any tenant improvements; (iv) such proposed lease provides
for base rent payable at a rate per month that is never less than 95% of the
base rent per month required to be paid for such space under the Master Lease;
(v) leasing commissions for such proposed lease do not exceed market rates;
(vi) such proposed lease does not require the landlord thereunder, and will not
result in an obligation for the landlord thereunder to alter or improve or pay
for the altering or improving of the building (other than tenant improvements
as limited by clause (iii) above and responsibility for repairing and replacing
the roof and structure, but excluding the obligation for internal wall
changes); (vii) such lease shall be on the form customarily used by Seller with
such revisions which Seller approves using its judgment as a commercially prudent
landlord; (viii) the creditworthiness of the tenant and intended use of the
premises by the tenant shall be consistent with Seller’s historical and
customary requirements as a commercially prudent landlord; and (ix) the income
to be generated from the proposed lease shall constitute qualifying income
under Section 856(c)(3) of the Code. Additionally, the parties expressly
agree that it shall not be deemed unreasonable for Purchaser to withhold,
condition or delay its consent to any Approved New Lease that includes above-market
tenant improvements, above-market leasing commissions or any other above-market
leasing costs that Purchaser would be obligated to pay or incur; provided,
however, in such event, Purchaser and Seller agree to negotiate in good faith
to agree upon such tenant improvement costs, leasing commission and other
leasing costs to render such Approved New Lease and the terms thereof
acceptable to Purchaser.  Any lease
proposed by Seller, which satisfies the criteria set forth in this Section 9.3
and would otherwise be reasonably acceptable to Purchaser, but for the fact
that such lease includes above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs, may, nonetheless, be
approved and executed by Seller, in its sole and absolute discretion, and in
such event such proposed lease shall be deemed an Approved New Lease, provided that
Seller pays all such above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs.  Purchaser’s failure to respond within five
(5) Business Days after receipt of a request for approval, together with a copy
of the proposed Approved New Lease or letter of intent to lease and credit
information on the proposed replacement tenant or tenants, shall be deemed
approval by Purchaser. Seller shall pay the portion of the tenant improvement
costs, leasing commissions and other usual and customary leasing costs with
respect to any Approved New Lease, allocated on a prorata basis over the term
of the Approved New Lease with respect to the portion of the term of the
Approved New Lease prior to a Closing and Purchaser shall pay the portion of
the tenant improvement costs, lease commissions and other usual and customary
leasing costs with respect to an Approved New Lease, allocated on a prorata
basis over the term of the Approved New Lease with respect to the portion of
the term of the Approved New Lease after the Closing.


 


9.4.                            Planned Expenditures. 
Seller shall effect and complete the planned expenditures for nominated work
and items in accordance with the description and budget set forth on Exhibit R attached hereto as a prudent
manager/owner in consultation with Purchaser, and to Purchaser’s commercially
reasonable satisfaction; in the event that upon completion of such work and
items,  the total cost of such work is
less than the total budget allocated for same, Seller shall be entitled to


 


14





















 


retain
all such unexpended amounts.  In the
event that Exhibit R
reflects that certain work is to be performed after Closing, the obligations of
Seller under this Section 9.4 with respect to that work shall
survive Closing.


 


9.5                               Master Lease.  At
the Closing, Seller and Purchaser shall execute and deliver to each other a
master lease (“Master Lease”) in
the form of Exhibit H
attached hereto.


 


9.6                               Management Agreement.  At
the Closing, Seller and Purchaser shall execute and deliver to each other a
property management agreement with respect to the Properties (“Property Management Agreement”) in the form
of Exhibit I attached
hereto.  Seller shall terminate any
existing property management agreements pertaining to the Properties as of the
Closing Date.


 


9.7                               Intentionally Deleted.


 


9.8                               Transfer Tax Declaration
Allocation.  Purchaser and Seller agree that the Purchase
Price shall be allocated amongst the Properties as set forth on Schedule 9.8
for the purpose of completing real estate transfer declarations to be executed
by Seller and Purchaser at Closing (the “Transfer
Tax Declaration Allocation”).


 


9.9                               Substitution of Properties


 


9.9.1                        In the event of the occurrence of a
Substitution Event (defined below) prior to Closing, Purchaser may, at its
option, by written notice to Seller (“Event
Notice”) within ten (10) days after the date on which Purchaser is
given or obtains actual knowledge of the occurrence of a Substitution Event,
elect to either (i) ignore the Substitution Event and proceed to Closing with
no adjustment in the Purchase Price, or (ii) request that Seller offer a
Substitute Property or Substitute Properties (both as hereinafter defined) to
Purchaser valued in the aggregate amount of the Purchase Price allocated to the
Property or Properties (“Removed Property”
or “Removed Properties”) subject
to the Substitution Event.


 


In the event that Purchaser elects under (ii) above to have Seller
provide a Substitute Property or Substitute Properties, Seller, if it chooses
to do so, in its sole and absolute discretion, shall have a period of thirty
(30) days from the date of Purchaser’s Event Notice to correct the condition
giving rise to the Substitution Event, and further, provided, however, if such
condition is of a nature which is not capable of cure within said thirty (30) day
period and Seller has commenced to cure within such thirty (30) day period,
then Seller shall have such reasonable period of time from and after the date
of Purchaser’s Event Notice to correct the condition giving rise to the
Substitution Event.  In the event
Purchaser exercises its rights under (ii) above, and Seller elects to and cures
the condition giving rise to the Substitution Event prior to the time that the
Closing with respect to the Substitute Property occurs, the Scheduled Closing
Date for the Removed Property shall be extended to the fifteenth (15th)
day after the condition giving rise to the Substitution Event has been cured.


 


In the event that Purchaser fails to elect (i) or (ii) above within ten
(10) days after Purchaser is given or obtains actual knowledge of a Substitution
Event, Purchaser shall be deemed to have elected to waive such condition and
proceed to Closing on the Closing Date with no adjustment in the Purchase
Price.  In the event that within said ten
(10) day period Purchaser elects its rights under (ii) above and Seller elects not
to cure or elects to cure the condition but fails to do so within the time
period set forth above, Seller shall use reasonable efforts to provide a
Substitute Property or Substitute Properties as described in Section 9.9.2.  Notwithstanding any other term or condition
contained herein, (i) in no event shall the Closing with respect to the
Properties which are not subject to a Substitution Event be


 


15





















 


delayed,
and (ii) in the event of the occurrence of a Substitution Event, Seller shall
not be in default under this Agreement, Seller shall not be liable for damages
and Purchaser’s sole right and remedy shall be to exercise its rights under
this Section 9.9.1.


 


The term “Substitution Event”
shall mean any one or more of the following: (i) written notice to Purchaser
that a tenant under its lease (“Right of
First Refusal Lease”)  has exercised
a right of first refusal, right of first offer or option to purchase a Property
prior to Closing pursuant to the existing terms of its lease, (ii) the taking
of one hundred percent (100%) of a Property by condemnation or eminent domain or
(iii) any one or more of the following, to the extent the existence of the
condition hereinafter described has a “Material Adverse Effect” on the use,
value or marketability of the applicable Property: (a) the existence of a title
exception other than a Permitted Exception on an Owner’s Policy to be issued by
the Title Company at the time of the Closing; provided, however that Seller
shall, at Seller’s expense, use reasonable efforts to obtain a title insurance endorsement
to the Owner’s Policy (defined below) insuring over any unpermitted title
exception, (b) the existence of a difference on a Survey not reflected on the Initial
Surveys; (c) if Purchaser has not been provided with a copy of a zoning
endorsement issued by the Title Company with respect to any Properties (whether
in favor of Seller or Purchaser) prior to the Effective Date and it is
determined that the present use of the Property is not permitted under the
zoning ordinance in effect on the Effective Date; (d) the physical or
environmental condition of the Properties are not the same as on the Effective
Date, ordinary wear and tear and damage by casualty excepted, provided,
however, that under this subsection (d) it shall not be a Substitution
Event if a tenant of the Property is responsible under its lease for
maintaining, repairing or restoring the physical or environmental condition in
question; and (e) the existence of a breach of a warranty or representation
made by Seller under Sections 7.1.4, 7.1.6, 7.1.7 and 7.1.9 of this
Agreement (or any change in the schedules thereto).  The term “Material
Adverse Effect” as used herein shall mean that a liability or loss reasonably
anticipated to arise out of the condition under (a) Sections 9.9.1(iii)(a)
or (b) which exceeds $150,000.00 for the affected Property, or (b) under
Sections 9.9.1iii(c), (d) or (e) which exceeds seven and one-half
percent (7.5%) of the Purchase Price for the affected Property.


 


9.9.2                        In the event of the occurrence of a
Substitution Event (and notwithstanding any election by Seller to attempt to
cure the condition giving rise to the Substitution Event), Seller shall use
reasonable efforts to substitute another Property or Properties owned by Seller
that the parties mutually agree in their reasonable opinion is comparable
(individually, a “Substitute Property”
and collectively, the “Substitute Properties”).  Seller shall use reasonable efforts to
identify a Substitute Property within thirty (30) days after receipt of an
Event Notice.  Commencing on the date
that Purchaser receives a notice from Seller identifying a Substitute Property
or Substitute Properties to replace a Removed Property or Removed Properties (“Substitution of Assets Notice”), and
continuing until 5:00 p.m. Central time on the thirtieth (30th) day
thereafter (“Substitute Properties
Feasibility Period”), Purchaser and its agents shall have the right
to conduct inspections and tests of the Substitute Properties in the manner
hereby provided in Section 9.9.5 and subject to the provisions as
provided in Section 9.9.6. 
In the event that Purchaser approves all of the Substitute Properties
prior to the expiration of the Substitute Properties Feasibility Period, all of
the Substitute Properties shall be subject to this Agreement, and the Purchase
Price shall be adjusted as provided below in Section 9.9.3.  In the event that Purchaser does not approve
one or more of the Substitute Properties prior to the expiration of the
Substitute Properties Feasibility Period, the Substitute Property or Properties
not approved by Purchaser and the Removed Property or Removed Properties shall
not be subject to this Agreement, and the Purchase Price shall be reduced by
the value of the Removed Property or Removed Properties, as the case may be, as
set forth on Schedule 9.8.  All
Substitute Properties approved by Purchaser shall be deemed to be Properties
subject to this


 


16





















 


Agreement,
except that all warranties and representations shall be modified to reflect the
circumstances relating to the Substitute Properties.  Within fifteen (15) days after the Substitution
of Assets Notice, Seller shall deliver Schedules similar to those attached
hereto as Schedules 7.1.4, 7.1.5, 7.1.6, 7.1.7, 7.1.8, 7.1.9 and 7.1.10, with
respect to the Substitute Properties.


 


9.9.3                        For the purposes of this Section 9.9,
the purchase price for a Removed Property shall be based on Schedule 9.8
attached hereto, and the purchase price for a Substitute Property shall be
calculated using a capitalization rate equal to the capitalization rate that
was used to determine the Purchase Price of the Removed Property and the annual
net rent of the Substitute Property, without deductions (“Substitute Property Purchase Price”).  In the event that the Seller delivers the
Substitution of Assets Notice to Purchaser within the time frame set forth above,
the Closing of all Properties not subject to the Substitution of Assets Notice
shall take place on the date of the Scheduled Closing Date.  Subject to the right of Purchaser to
disapprove one or more of the Substitute Properties during the Substitute Properties
Feasibility Period, and further subject to the provisions of Section 4.1
above, the Closing with respect to each Substitute Property shall take place on
the thirtieth (30th) day following the expiration of the applicable Substitute
Property Feasibility Period.


 


9.9.4                        Seller shall deliver to Purchaser copies of
all notices sent by Seller to tenants under Right of First Refusal Leases as
required under the Right of First Refusal Leases, and shall notify Purchaser
promptly if it receives a notice from an Exercising Tenant.


 


9.9.5                        During the Substitute Properties Feasibility
Period, Purchaser and its agents shall have the right during business hours
(with reasonable advance notice to Seller and subject to the rights of the
tenants in possession), at Purchaser’s sole cost and expense and at Purchaser’s
and its agents’ sole risk, to perform inspections and tests of the Substitute
Properties and to perform such other analyses, inquiries and investigations as
Purchaser shall deem reasonably necessary or appropriate; provided, however,
that in no event shall (i) such inspections or tests unreasonably disrupt or
disturb the on-going operation of the Substitute Properties or the rights of
the tenants at the Substitute Properties, or (ii) Purchaser or its agents or
representatives conduct any physical testing, drilling, boring, sampling or
removal of, on or through the surface of the Substitute Properties (or any part
or portion thereof) including, without limitation, any ground borings or
invasive testing of the Improvements (collectively, “Physical Testing”), without Seller’s prior written consent,
which consent may be given or withheld in Seller’s sole and absolute
discretion.  Seller acknowledges and
agrees that the performance of a phase I environmental assessment on behalf of
Purchaser (“Phase I Assessments”)
shall not be considered Physical Testing for purposes hereof and shall be
permitted without Purchaser obtaining the consent of Seller.  In the event Purchaser desires to conduct any
such Physical Testing of a Substitute Property, then Purchaser shall submit to
Seller, for Seller’s approval, a written detailed description of the scope and
extent of the proposed Physical Testing, which approval may be given or
withheld in Seller’s sole and absolute discretion.  In no event shall Seller be obligated as a
condition of this transaction to perform or pay for any environmental
remediation of the Substitute Properties recommended by any such Physical
Testing.  After making such tests and
inspections, Purchaser agrees to promptly restore the Substitute Properties to
their condition prior to such tests and inspections (which obligation shall
survive the Closing or any termination of this Agreement).  In addition to the rights available to the
Purchaser during the Substitute Properties Feasibility Period, as set forth
above, Purchaser and its agents shall have access to the Substitute Properties
prior to the Closing Date, but during normal business hours (with reasonable
advance notice to Seller and subject to the rights of the tenants in
possession), at Purchaser’s sole cost and expense,


 


17





















 


and
at Purchaser’s and its agents’ sole risk, to inspect the applicable Substitute
Properties; provided, however, Purchaser shall not be entitled to conduct any
Physical Testing or any Phase I Assessment after the expiration of the
Substitute Properties Feasibility Period. 
Prior to Purchaser entering the Substitute Properties to conduct the inspections
and tests described above, including, but not limited to, the Phase I
Assessments, Purchaser shall obtain and maintain, at Purchaser’s sole cost and
expense, and shall deliver to Seller evidence of, the following insurance
coverage, and shall cause each of its agents and contractors to obtain and
maintain, and, upon request of Seller, shall deliver to Seller evidence of, the
following insurance coverage:  general
liability insurance, from an insurer reasonably acceptable to Seller, in the
amount of Five Million and No/100 Dollars ($5,000,000.00) combined single limit
for personal injury and property damage per occurrence, such policy to name
Seller as an additional insured party, which insurance shall provide coverage
against any claim for personal liability or property damage caused by Purchaser
or its agents, employees or contractors in connection with such inspections and
tests (“Due Diligence Insurance”).  Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its
agents do not unreasonably interfere with Purchaser’s inspection.


 


9.9.6                        Purchaser and its agents and representatives
shall:  (a) not unreasonably disturb the
tenants of the Substitute Properties or interfere with their use of the
Substitute Properties pursuant to their respective Leases; (b) not interfere
with the operation and maintenance of the Substitute Properties; (c) not damage
any part of the Substitute Properties or any personal property owned or held by
any tenant; (d) not injure or otherwise cause bodily harm to Seller, its
agents, contractors and employees or any tenant; (e) promptly pay when due the
costs of all tests, investigations and examinations done with regard to the
Substitute Properties; (f) not permit any liens to attach to the
Substitute Properties by reason of the exercise of its rights hereunder; (g)
restore the Improvements and the surface of the Substitute Properties to the
condition in which the same was found before any such inspection or tests were
undertaken; and (h) except to the extent required by applicable laws, not
reveal or disclose any information obtained pursuant to its right to evaluate
set forth in Section 9.9.5 above concerning the Substitute
Properties to anyone other than a Purchaser Party/Representative.  Purchaser shall, at its sole cost and
expense, comply with all applicable federal, state and local laws, statutes,
rules, regulations, ordinances or policies in conducting its inspection of the
Substitute Properties, the Purchaser’s Phase I Assessments and the Physical
Testing.  Purchaser shall, and does
hereby agree to indemnify, defend and hold the Seller, its partners, members,
officers, directors, employees, agents, attorneys and their respective
successors and assigns, harmless from and against any and all claims, demands,
suits, obligations, payments, damages, losses, penalties, liabilities, costs
and expenses (including but not limited to attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Substitute
Properties in the exercise of the inspection right granted pursuant to Section 9.9.5,
including, without limitation, (i) claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use or damage to its premises or property in connection with Purchaser’s
review of the Substitute Properties, and (ii) Purchaser’s obligations pursuant
to this Section 9.9.6.  This Section 9.9.6
shall survive the Closing of the Substitute Properties and/or any termination
of this Agreement without limitation.


 


9.9.7                        With respect to the Substitute Properties,
Seller shall deliver to Purchaser or make available at the applicable
Substitute Property or Seller’s office in Oak Brook, Illinois, at Seller’s
option, the following: operating statements, leases, reports relating to the physical
and/or environmental condition of the applicable Substitute Properties, a
statement of the


 


18





















 


estimated
value of the applicable Substitute Properties from an independent industrial
real estate broker with at least ten (10) years experience in the marketplace
(which value shall not be binding on Seller or Purchaser), rent rolls and revenue
and expense statements, Seller and Purchaser shall use reasonable efforts to
agree upon the format and scope of such materials, but agree that the format
and scope shall be similar to the materials typically provided by Seller to Purchaser
in connection with the sale of the Properties in accordance with Section 5.1
hereof (the “Substitute Property Documents”);
provided, however, that except for the representations and warranties made in Article VII
hereof, Seller makes no representations or warranties of any kind regarding the
accuracy, thoroughness or completeness of or conclusions drawn in the
information contained in such Substitute Properties Documents.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Notwithstanding anything contained in the preceding sentence, Seller
shall not deliver or make available to Purchaser Seller’s internal memoranda,
attorney-client privileged materials, internal appraisals and economic
evaluations of the Substitute Properties, and reports regarding the Substitute
Properties prepared by Seller or its affiliates solely for internal use or for
the information of the investors in Seller. 
Purchaser acknowledges that any and all of the Substitute Properties
Documents that are not otherwise known by or available to the public are
proprietary and confidential in nature and will be delivered to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Substitute Properties.  Purchaser agrees
not to disclose such non-public documents, or any of the provisions, terms or
conditions thereof, to any party other than a Purchaser
Party/Representative.  Purchaser shall
return all of the Substitute Properties Documents, on or before three (3)
Business Days after the first to occur of (a) such time as Purchaser notifies
Seller in writing that it shall not acquire the Substitute Properties, or (b)
such time as this Agreement is terminated for any reason.  This Section 9.9.7 shall survive
any termination of this Agreement without limitation.


 


9.9.8                        Purchaser hereby acknowledges that it will
have been given, prior to the termination of the Substitute Properties
Feasibility Period, a full, complete and adequate opportunity to make such
legal, factual and other determinations, analyses, inquiries and investigations
as Purchaser deems necessary or appropriate in connection with the acquisition
of the Substitute Properties.  Purchaser
will be relying upon its own independent examination of the Substitute
Properties and all matters relating thereto and not upon any statements of
Seller (excluding the limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Substitute Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser relating to the Substitute Properties.  The provisions of this Section 9.9.8
shall survive Closing and/or termination of this Agreement without limitation.


 


9.10                        Contracts. 
Seller shall not, with respect to a Contract that will survive Closing,
from and after the Effective Date, terminate an existing Contract, enter into a
new Contract or modify an existing Contract without the prior written approval
of Purchaser, which consent in each case shall not be unreasonably conditioned,
withheld or delayed and which shall be deemed granted if Purchaser fails to
respond to a request for approval within five (5) Business Days after receipt
of the request therefor together with a summary of the terms of the Contract
(an “Approved New Contract”).  Schedule 9.10 attached hereto
contains a list of Contracts for the Properties that Purchaser will assume as
of the Closing, and a list of Contracts for the Properties that Purchaser is
requesting Seller to terminate as of the Closing (the “Unassumed Contracts”).  Provided that the


 


19





















 


Closing
occurs hereunder, Seller shall terminate such applicable Unassumed Contracts
effective as of the Closing Date and deliver evidence at such Closing of such
termination.


 


9.11                        Intentionally Deleted.


 


9.12                        REA Estoppels. 
Attached hereto as Schedule 9.12 is a list of REA and other
Property-related estoppels that Purchaser would like to obtain prior to Closing
(collectively, the “REA Estoppels”).  Purchaser shall prepare and deliver to Seller
REA Estoppel Certificates for each of the REA Estoppels (the “REA Estoppel Certificates”), and Seller
shall send out the REA Estoppel Certificates for execution prior to the Closing
Date, it being understood that obtaining the REA Estoppel Certificates shall
not be a condition to Purchaser’s obligation to close.


 


ARTICLE X


Closing Conditions


 


10.1                        Conditions to Obligations of
Purchaser.  The obligations of Purchaser under this
Agreement to purchase the Properties and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Scheduled Closing Date, except to the extent that
any of such conditions may be waived by Purchaser in writing at Closing.


 


10.1.1                  Tenant Estoppels.  Purchaser
shall have received tenant estoppel certificates dated not more than thirty
(30) days prior to the Closing from seventy-five percent (75%) of the occupied
square footage in the Properties.  Seller
agrees to deliver to each tenant a tenant estoppel certificate substantially in
the form attached hereto as Exhibit K.  Notwithstanding the foregoing, in the event
that a Lease requires a different form of estoppel certificate or requires
specific provisions, Purchaser shall be required to accept a tenant estoppel
certificate that is substantially in the form required by said Lease or
substantially in the form of Exhibit K
as modified to comply with the specific provisions required by said Lease.  Additionally, Purchaser acknowledges that
while the statements set forth in paragraphs 8 and 9 of Exhibit K are not qualified to the
knowledge or best knowledge of the tenant, Purchaser shall be required to
accept any tenant estoppel certificate that has been qualified to the knowledge
or best knowledge of the tenant with respect to said paragraphs.  Notwithstanding the foregoing, at Seller’s
sole option, Seller may (i) extend the Scheduled Closing Date solely with
respect to up to five (5) of the Properties for up to an additional thirty (30)
days in order to satisfy the foregoing requirement for such Properties, in
which event Seller shall deliver notice of such extension with respect to such
Properties to Purchaser prior to the Scheduled Closing Date (and the Closing
shall proceed as scheduled with respect to all other Properties), and/or (ii)
provide its own estoppel (“Seller’s Estoppel”)
in the form attached as Exhibit L
to Purchaser in satisfaction of the foregoing requirements with respect to not
more than twenty-five percent (25%) of the occupied square footage of the
Properties.  In the event that Seller has
not complied with the provisions of this Section 10.1.1, Purchaser
may (i) elect to consummate the Closing, or (ii) notify Seller of its intent to
terminate this Agreement by written notice (the “Tenant Estoppel Termination Notice”) on or before the Scheduled
Closing Date.  In the event that, after
the Closing, Seller delivers to Purchaser a tenant estoppel certificate from a
tenant for whom Seller executed a Seller’s Estoppel at the Closing and such
tenant estoppel certificate contains no information which is contradictory to
or inconsistent with the information contained in the Seller’s Estoppel, then
Seller thereafter shall be released from all liability relating to Seller’s
Estoppel with respect to such tenant’s Lease. 
In no event shall Seller be obligated to deliver updates to the tenant
estoppel certificate or Seller’s Estoppel.


 


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10.1.2                  Title Policy.  The
Title Company shall be prepared to issue to Purchaser on the Closing Date an
extended coverage ALTA Form B policy of title insurance, amended October 17,
1970 (the “Owner’s Policy”), or
equivalent form Owner’s Policy acceptable to Purchaser, with respect to each
Property in the Properties, in the face amount of the applicable Purchase Price
attributable to such Property, and dated as of the Closing Date, indicating
title to such Property is vested of record in Purchaser, subject solely to the
applicable Permitted Exceptions.


 


10.1.3                  Possession of the Property. 
Delivery by Seller of possession of the applicable Property, subject to
the Permitted Exceptions and the rights of tenants under the applicable Leases
and Approved New Leases.


 


ARTICLE XI


Closing


 


11.1                        Purchaser’s Closing
Obligations.  Purchaser, at its sole cost and expense,
shall deliver or cause to be delivered to Seller and the Title Company at each
Closing the following, as same relates to the Properties:


 


11.1.1                  The applicable portion of the Purchase Price,
after all adjustments are made at the Closing as herein provided, by wire
transfer or other immediately available federal funds, which amount shall be
received in escrow by the Title Company at or before 11:00 a.m. Central time.


 


11.1.2                  An assumption of a blanket conveyance and
bill of sale, substantially in the form attached hereto as Exhibit M (“General Assignment”), duly executed by Purchaser, conveying
and assigning to Purchaser the applicable Personal Property, Leases, Contracts,
records and plans, and Intangible Property.


 


11.1.3                  Executed counterparts of the Master Lease and
the Property Management Agreement with respect to the Closing, and such other
documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.1.4                  Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings, if requested by the Title Company.


 


11.2                        Seller’s Closing Obligations. 
Seller, at its sole cost and expense, shall deliver or cause to be
delivered to Purchaser and the Title Company the following, as same relates to
each of the Properties and the Properties, as the case may be:


 


11.2.1                  A Special warranty deed (a “Deed”) in recordable form properly executed
by Seller conveying to Purchaser the Land and Improvements in fee simple,
subject only to the Permitted Exceptions, substantially in the form attached
hereto as Exhibit N (as
modified in order to satisfy any State-specific requirements with respect to
the States of Indiana and Wisconsin, if applicable).


 


11.2.2                  A General Assignment, duly executed by
Seller, conveying and assigning to Purchaser the Personal Property, the Leases,
the Contracts and the Intangible Property.


 


11.2.3                  Written notice to the tenant(s) (i)
acknowledging the sale of the Property to Purchaser, (ii) acknowledging that
Purchaser has received and is responsible for any


 


21





















 


security
deposits identified in the rent roll, and (iii) indicating that rent should
thereafter be paid to Purchaser, substantially in the form attached hereto as Exhibit O.


 


11.2.4                  A certificate substantially in the form
attached hereto as Exhibit P
(“Non-foreign Entity Certification”)
certifying that Seller is not a “foreign person” as defined in the Code.


 


11.2.5                  Executed counterparts of the Master Lease and
the Property Management Agreement, with respect to the Closing, and such other
documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.2.6                  Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings.


 


11.2.7                  Purchaser and Seller have agreed that possession
(but not ownership) of all original Leases, tenant files and Contracts shall
remain with Seller following Closing, in its capacity as Property Manager but
that ownership of such items shall pass to Purchaser.  Any duplicate originals of Leases and
Contracts in Seller’s possession or control shall be delivered to Purchaser promptly
after Closing.


 


11.2.8                  All REA Estoppel Certificates received by
Seller, if any.


 


11.2.9                  A certificate of Seller by which Seller
reaffirms the truth and accuracy in all material respects of the
representations and warranties set forth in Sections 7.1 above, subject
to and setting forth any changes thereto occurring since the Effective Date.


 


11.2.10  Reliance letters with respect to and permitting
Purchaser to rely on the most recent Phase 1 environmental reports provided by
Seller to Purchaser from the consultant who prepared the applicable
environmental report.


 


11.3                        Joint Closing Obligations.  Purchaser and Seller shall execute
and deliver a closing statement for each of the Properties setting forth the
applicable Purchase Price, and any and all prorations and credits between the
parties, as determined pursuant to this Agreement, together with real estate
transfer tax declarations as required.


 


ARTICLE XII


Risk of Loss


 


12.1                        Condemnation and Casualty.  If,
prior to the Closing Date, any portion of the applicable Properties are taken
by condemnation or eminent domain, or is the subject of a pending taking which
has not been consummated, or is destroyed or damaged by fire or other casualty,
Seller shall notify Purchaser of such fact promptly after Seller obtains
knowledge thereof.  If such condemnation
or casualty is “Material” (as
hereinafter defined), Purchaser shall have the option to either (i) extend the Scheduled
Closing Date solely with respect to the applicable Property for a time
reasonably required by Seller to repair any damage or destruction with respect
to the applicable Property (and the Scheduled Closing Date shall proceed as
scheduled with respect to all other Properties), or (ii) proceed to Closing in
accordance with the terms of Section 12.1. If Purchaser elects to
proceed to Closing, then Seller shall not be obligated to repair any damage or
destruction with respect to the applicable Property, but (x) Seller shall
assign, without recourse, and turn over to Purchaser all of the insurance
proceeds or condemnation proceeds, as applicable, net of any costs of repairs
and net of reasonable collection costs (or, if such have not been awarded, all
of its right, title and interest therein) payable with respect to such fire or
other casualty or condemnation


 


22





















 


including
any rent abatement insurance for such casualty or condemnation and (y) the
parties shall proceed to Closing pursuant to the terms hereof without abatement
of the Purchase Price except for a credit in the amount of the applicable
insurance deductible.


 


12.2                        Condemnation Not Material.  If
the condemnation is not Material, then the Closing shall occur without
abatement of the Purchase Price and, after deducting Seller’s reasonable costs
and expenses incurred in collecting any award, Seller shall assign, without
recourse, all awards or any rights to collect awards to Purchaser on the
Closing Date.


 


12.3                        Casualty Not Material.  If
the Casualty is not Material, then the Closing shall occur without abatement of
the Purchase Price except for a credit in the amount of the applicable deductible
and Seller shall not be obligated to repair such damage or destruction and
Seller shall assign, without recourse, and turn over to Purchaser all of the
insurance proceeds net of any costs of repairs completed to date and net of
reasonable collection costs (or, if such have not been awarded, all of its
right, title and interest therein) payable with respect to such fire or such
casualty including any rent abatement insurance for such casualty.


 


12.4                        Materiality.  For
purposes of this Article XII, (i) with respect to a taking by
condemnation or eminent domain, the term “Material”
shall mean any condemnation or taking which would materially impede access to a
Property, reduce available parking at a Property below that required by
applicable law or any other agreement affecting such Property, result in the
termination of any Lease of more than ten percent (10%) of the space in the
applicable Property, or result in a condemnation award reasonably estimated to
exceed ten percent (10%) of the Purchase Price applicable to such Property; and
(ii) with respect to a casualty, the term “Material”
shall mean any casualty such that the cost of repair, as reasonably estimated
by an engineer designated by Seller and Purchaser, is in excess of ten percent
(10%) of the Purchase Price applicable to such Property.


 


ARTICLE XIII


Default


 


13.1                        Default by Seller.  IN
THE EVENT THE CLOSING AND THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS
PROVIDED HEREIN BY REASON OF ANY DEFAULT OF SELLER, WHICH DEFAULT IS NOT CURED
WITHIN TWO (2) DAYS AFTER WRITTEN NOTICE FROM PURCHASER TO SELLER, IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH PURCHASER MAY
SUFFER.  THEREFORE, THE PARTIES HAVE
AGREED THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT PURCHASER
WOULD SUFFER IN SUCH EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE PROCEEDS OF
THE SELLER LETTER OF CREDIT,  AS
LIQUIDATED DAMAGES, AS PURCHASER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT.  SUCH LIQUIDATED DAMAGES ARE
NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE LAWS.  Notwithstanding the foregoing, nothing
contained herein shall limit Purchaser’s remedies at law or in equity, as to
the Surviving Termination Obligations.


 


13.2                        Default by Purchaser; Liquidated
Damages.  IN THE EVENT THE CLOSING AND THE TRANSACTIONS
CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF ANY DEFAULT OF
PURCHASER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS AFTER WRITTEN NOTICE
FROM SELLER TO PURCHASER, IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO
ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. 
THEREFORE, THE PARTIES HAVE AGREED THAT A REASONABLE ESTIMATE OF THE
TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN SUCH EVENT IS AND SHALL BE THE
RIGHT TO RETAIN THE DEPOSIT, AS LIQUIDATED DAMAGES, AS
SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT.  SUCH LIQUIDATED DAMAGES


 


23





















 


ARE
NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE
LAWS.  Notwithstanding the foregoing,
nothing contained herein shall limit Seller’s remedies at law or in equity, as
to the Surviving Termination Obligations.


 


ARTICLE XIV


Brokers


 


14.1                        Brokers. 
Purchaser and Seller each represents and warrants to the other that it
has not dealt with any person or entity entitled to a brokerage commission,
finder’s fee or other compensation with respect to the transaction contemplated
hereby.  Purchaser hereby agrees to
indemnify, defend, and hold Seller harmless from and against any losses,
damages, costs and expenses (including, but not limited to, attorneys’ fees and
costs) incurred by Seller by reason of any breach or inaccuracy of the
Purchaser’s ( or its nominee’s) representations and warranties contained in
this Article XIV.  Seller
hereby agrees to indemnify, defend, and hold Purchaser harmless from and
against any losses, damages, costs and expenses (including, but not limited to,
attorneys’ fees and costs) incurred by Purchaser by reason of any breach or
inaccuracy of Seller’s representations and warranties contained in this Article XIV.  The provisions of this Article XIV
shall survive the Closing and/or termination of this Agreement.


 


ARTICLE XV


Confidentiality


 


15.1                        Confidentiality. 
Purchaser expressly acknowledges and agrees that the transactions
contemplated by this Agreement, the Documents that are not otherwise known by
or readily available to the public and the terms, conditions and negotiations
concerning the same shall be held in the strictest confidence by Purchaser and
shall not be disclosed by Purchaser except to a Purchaser Party/Representative,
and except and only to the extent that such disclosure may be necessary for its
performance hereunder.  Purchaser agrees
that it shall instruct each of its Purchaser Party/Representatives to maintain
the confidentiality of such information and at the request of Seller, to
promptly inform Seller of the identity of each such Purchaser
Party/Representative.  Purchaser further
acknowledges and agrees that, unless and until the Closing occurs, all
information and materials obtained by Purchaser in connection with the
Properties that are not otherwise known by or readily available to the public
will not be disclosed by Purchaser to any third persons (other than to its
Purchaser Party/Representatives) without the prior written consent of
Seller.  If the transaction contemplated
by this Agreement does not occur for any reason whatsoever, Purchaser shall
promptly return to Seller, and shall instruct its Purchaser
Party/Representatives to return to Seller, all copies and originals of all
documents and information provided to Purchaser.  Nothing contained in Section 5.2
of this Agreement or this Section 15.1 shall preclude or limit
either party from disclosing or accessing any information otherwise deemed
confidential under Section 5.2 or this Section 15.1 in
connection with the party’s enforcement of its rights following a disagreement
hereunder or in response to lawful process or subpoena or other valid or
enforceable order of a court of competent jurisdiction or any filings or
disclosures with any applicable Authorities (In the Unites States and/or
Australia) required by reason of the transactions provided for herein and/or
any filings or disclosures required in accordance with the laws or market rules
(including stock exchange rules) of the United States and/or Australia.  The provisions of this Section 15.1
shall survive any termination of this Agreement without limitation.


 


15.2                        Post Closing Publication. 
Notwithstanding the foregoing, following Closing, Purchaser and Seller
shall have the right to announce the acquisition of the Properties in
newspapers and real estate trade publications (including “tombstones”)
publicizing the purchase provided that Purchaser and Seller shall consult one
another with respect to any such notice or publication, and shall implement any
reasonable comments or objections of the other. 
Seller may


 


24





















 


also
publicize the sale of the Property in the ordinary course of its business.  The provisions of this Section 15.2
shall survive Closing and/or any termination of this Agreement without
limitation.


 


ARTICLE XVI


1031 Exchange


 


16.1                        1031 Exchange. 
Purchaser agrees to cooperate with Seller for purposes of effecting and
structuring, in conjunction with the sale of the Properties, for the benefit of
Seller, a like-kind exchange of real property, whether simultaneous or a
deferred exchange, pursuant to Section 1031 of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated thereunder.  Purchaser specifically agrees to execute such
documents and instruments as are reasonably necessary to implement such an
exchange.  Seller shall be solely
responsible for assuring that the structure of any proposed exchange is
effective for Seller’s tax purposes. 
Furthermore, Purchaser specifically agrees that Seller may assign this
Agreement and any of its rights or obligations hereunder, in whole or in part,
as necessary or appropriate in furtherance of effectuating a Section 1031
like-kind exchange for the Properties, provided that such assignment shall not
serve to relieve Seller of any liability for Seller’s obligations
hereunder.  Purchaser shall have no
obligation to pay costs or expenses of effectuating such exchange, no such
exchange shall alter the time for performance set forth herein, and Purchaser
shall not be required to take title to any exchange property or (except for
customary consent to assignment of this Agreement to an exchange intermediary)
to incur obligations to third parties.


 


ARTICLE XVII


Miscellaneous


 


17.1                        Notices.  Any
and all notices, requests, demands or other communications hereunder shall be
in writing and shall be deemed properly served (i) on the date sent if
transmitted by hand delivery with receipt therefor, (ii) on the date sent if
transmitted by facsimile (with confirmation by hard copy to follow by overnight
delivery service), (iii) on the date sent if scanned to a .pdf file and
transmitted by e-mail (with confirmation by hard copy to follow by overnight
delivery service) (iv) on day after the notice is deposited with a nationally
recognized overnight courier, or (v) upon receipt after being sent by
registered or certified mail, return receipt requested, first class postage
prepaid, addressed as follows (or to such new address as the addressee of such
a communication may have notified the sender thereof):


 


	
  To
  Purchaser:

  	
  CenterPoint
  James Fielding, LLC

  
	
   

  	
  Level
  5, 40 Miller Street

  
	
   

  	
  North
  Sydney, NSW 2060

  
	
   

  	
  Australia

  
	
   

  	
  Attn:
  Mr. Ben Hindmarsh

  
	
   

  	
  Fax
  No.:   61 2 9004 8462

  
	
   

  	
  E-Mail:  benhindmarsh@mirvac.com.au

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  Wildman
  Harrold Allen & Dixon LLP

  
	
   

  	
  225
  W. Wacker Drive, Suite 3000

  
	
   

  	
  Chicago,
  Illinois 60606

  
	
   

  	
  Attn:
  Kathleen M. Gilligan, Esq.

  
	
   

  	
  Fax No.: (312) 201-2555

  
	
   

  	
  E-Mail:   gilligan@wildmanharrold.com

  



 


25





















 


	
   

  	
   

  
	
  To
  Seller:

  	
  CenterPoint
  Properties Trust

  
	
   

  	
  1808
  Swift Drive

  
	
   

  	
  Oak
  Brook, Illinois 60523

  
	
   

  	
  Attn: 

  	
  Mr.
  James N. Clewlow

  and Mr. Michael M. Mullen

  
	
   

  	
  Fax No.:  (630) 586-8010

  
	
   

  	
  E-Mail:  jclewlow@centerpoint-prop.com

  
	
   

  	
  E-Mail:  mmullen@centerpoint-prop.com

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  Weinberg
  Richmond LLP

  
	
   

  	
  333
  West Wacker Drive, Suite 1800

  
	
   

  	
  Chicago,
  Illinois 60606

  
	
   

  	
  Attn:
  Mark S. Richmond, Esq.

  
	
   

  	
  Fax No.:   (312) 807-3903

  
	
   

  	
  E-Mail   mrichmond@wr-llp.com

  



 


17.2                        Governing Law.  This
Agreement shall be governed by and construed in accordance with the internal,
substantive laws of the State of Illinois, without regard to the conflict of
laws principles thereof.


 


17.3                        Headings.  The
captions and headings herein are for convenience and reference only and in no
way define or limit the scope or content of this Agreement or in any way affect
its provisions.


 


17.4                        Effective Date.  This
Agreement shall be effective upon delivery of this Agreement fully executed by
the Seller and Purchaser, which date shall be deemed the Effective Date
hereof.  Either party may request that
the other party promptly execute a memorandum specifying the Effective Date.


 


17.5                        Business Days.  If
any date herein set forth for the performance of any obligations of Seller or
Purchaser or for the delivery of any instrument or notice as herein provided
should be on a Saturday, Sunday or legal holiday, the compliance with such
obligations or delivery shall be deemed acceptable on the next business day
following such Saturday, Sunday or legal holiday.  As used herein, the term “legal holiday”
means any state or Federal holiday for which financial institutions or post
offices are generally closed in the state where the Property is located.


 


17.6                        Counterpart Copies.  This
Agreement may be executed in two or more counterpart copies, all of which
counterparts shall have the same force and effect as if all parties hereto had
executed a single copy of this Agreement.


 


17.7                        Binding Effect.  This
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.


 


17.8                        Assignment. 
Purchaser shall not have the right to assign this Agreement without
Seller’s prior written consent, which consent may be given or withheld in
Seller’s sole and absolute discretion; provided, however, Purchaser may
designate a wholly owned subsidiary to acquire title to the Properties at
Closing or assign its right, title and interest under this Agreement to a
wholly owned subsidiary, provided that in no event will Purchaser be released
from any of its obligations or liabilities under this Agreement.  Seller may assign this Agreement in whole or
in part to any corporate, limited liability company or partnership entity
affiliated with, or related to, Seller (“Affiliate”)
without Purchaser’s consent; provided that Seller shall in no event be released
from any of its obligations or liabilities hereunder as a result of any such
assignment.  In the event that an


 


26





















 


Affiliate
shall be designated as a transferee hereunder, the Affiliate shall have the
benefit of all of the representations and rights that would otherwise have run
in favor of Seller, which, by the terms of this Agreement, are incorporated or
relate to the conveyance in question. 
All transferees and assignees of Purchaser (“Assignee”) shall assume all of Purchaser’s obligations under
this Agreement pursuant to an Assignment and Assumption Agreement reasonably
acceptable to Seller, and consented to in writing by Seller.  In the event the rights and obligations of
Purchaser shall be transferred, assigned and assumed as permitted under this
Agreement, then such Assignee will be substituted in place of such assignor in
the above-provided-for documents and it shall be entitled to the benefit of and
may enforce Seller’s covenants, representations and warranties hereunder
provided that Purchaser shall in no event be released from any of its
obligations or liabilities hereunder as a result of such assignment.  Upon any such assignment by Purchaser or any
successor or assign of Purchaser, then the assignor’s liabilities and
obligations hereunder or under any instruments, documents or agreements made
pursuant hereto shall be binding upon Assignee; provided, however, that
Assignee shall have the benefit of any limitations of such liabilities and
obligations applicable to either the assignor or Assignee, provided by law or
by the terms hereof or such instruments, documents or agreements.  Whenever reference is made in this Agreement
to Seller or Purchaser, such reference shall include the successors and assigns
of such party under this Agreement. 
Purchaser may assign this Agreement for collateral purposes only to Purchaser’s
lender.


 


17.9                        Interpretation.  This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that both Seller and
Purchaser have contributed substantially and materially to the preparation of
this Agreement.


 


17.10                 Entire Agreement.  This
Agreement and the Exhibits attached hereto contain the final and entire
agreement between the parties hereto with respect to the sale and purchase of
the Property and are intended to be an integration of all prior negotiations
and understandings.  Purchaser, Seller
and their agents shall not be bound by any terms, conditions, statements,
warranties or representations, oral or written, not contained herein.  No change or modifications to this Agreement
shall be valid unless the same is in writing and signed by the parties
hereto.  Each party reserves the right to
waive any of the terms or conditions of this Agreement which are for their
respective benefit and to consummate the transaction contemplated by this
Agreement in accordance with the terms and conditions of this Agreement which
have not been so waived.  Any such waiver
must be in writing signed by the party for whose benefit the provision is being
waived.


 


17.11                 Severability.  If
any one or more of the provisions hereof shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


17.12                 Survival. 
Except for obligations that survive the Closing pursuant to the
provisions of Sections (and related subparagraphs) 4.2, 5.1, 5.2,
5.3, 6.2, 7.4, 7.5, 7.6, 8.3, 8.4,
9.4, 9.9, 9.11, 10.2, 14.1, 15.1, 15.2,
17.15, 17.16,  17.20 and 17.23 (collectively, the “Surviving Termination Obligations”), the
provisions of this Agreement and the representations and warranties herein
shall not survive after the conveyance of title and payment of the Purchase
Price but be merged therein.


 


17.13                 Exhibits and Schedules.  Exhibits A through S and Schedules 7.1.4 through 9.12 attached
hereto are incorporated herein by reference.


 


17.14                 Time.  Time
is of the essence in the performance of each of the parties’ respective
obligations contained herein.


 


27





















 


17.15                 Limitation of Liability.  No
present or future partner, member, manager, director, officer, shareholder,
employee, advisor, affiliate or agent of or in Purchaser or any affiliate of
Purchaser shall have any personal liability, directly or indirectly, under or
in connection with this Agreement or any agreement made or entered into under
or in connection with the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Seller and its successors and assigns and, without limitation,
all other persons and entities, shall look solely to Purchaser’s assets for the
payment of any claim or for any performance, and Seller hereby waives any and
all such personal liability.  For
purposes of this Section 17.15, no negative capital account or any
contribution or payment obligation of any partner or member in Purchaser shall
constitute an asset of Purchaser.  The
limitations of liability contained in this Paragraph are in addition to, and
not in limitation of, any limitation on liability applicable to Purchaser
provided elsewhere in this Agreement or by law or by any other contract,
agreement or instrument.  All documents
to be executed by Purchaser shall also contain the foregoing exculpation.


 


No
present or future partner, member, director, officer, shareholder, employee,
advisor, affiliate or agent of or in Seller or any affiliate of Seller shall
have any personal liability, directly or indirectly, under or in connection
with this Agreement or any agreement made or entered into under or in connection
with the provisions of this Agreement, or any amendment or amendments to any of
the foregoing made at any time or times, heretofore or hereafter, and Purchaser
and its successors and assigns and, without limitation, all other persons and
entities, shall look solely to Seller’s assets for the payment of any claim or
for any performance, and Purchaser hereby waives any and all such personal
liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Seller shall constitute an asset of Seller.  The limitations of liability contained in this
Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Seller provided elsewhere in this Agreement or by law
or by any other contract, agreement or instrument.  All documents to be executed by Seller shall
also contain the foregoing exculpation. 
The provisions of this Section 17.15 shall survive Closing
and/or any termination of this Agreement.


 


17.16                 Prevailing Party. 
Should either party employ an attorney to enforce any of the provisions
hereof, (whether before or after Closing, and including any claims or actions
involving amounts held in escrow), the non-prevailing party in any final judgment
agrees to pay the other party’s reasonable expenses, including reasonable
attorneys’ fees and expenses in or out of litigation and, if in litigation,
trial, appellate, bankruptcy or other proceedings, expended or incurred in
connection therewith, as determined by a court of competent jurisdiction.  The provisions of this Section 17.16
shall survive Closing and/or any termination of this Agreement.


 


17.17                 No Recording. 
Neither this Agreement nor any memorandum or short form hereof shall be
recorded or filed in any public land or other public records of any
jurisdiction, by either party and any attempt to do so may be treated by the
other party as a breach of this Agreement.


 


17.18                 Waiver of Trial by Jury.  The
respective parties hereto shall and hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Agreement, or for the enforcement of any remedy under any
statute, emergency or otherwise.


 


17.19                 Cooperation between
Seller and Purchaser.  Seller agrees to reasonably cooperate with
Purchaser in connection with the preparation and delivery of any Subordination,
Non-Disturbance and Attornment Agreements required by Purchaser’s lenders in
connection with the closing of the transaction described herein.


 


28





















 


17.20                 Further Assurances.  Each
party shall, from time to time, at the request of the other party, and without
further consideration, execute and deliver such further instruments and take
such further action as may be required or reasonably requested by either party
to establish, maintain or protect the respective rights of the parties to carry
out and effect the intentions and purposes of this Agreement.


 


17.21                 Return of Deposit.  Notwithstanding
anything to the contrary contained in this Agreement, whenever this Agreement
provides that the Deposit shall be delivered or returned to Purchaser, the
parties acknowledge and agree that said Deposit or a portion thereof shall
remain with the Escrow Agent in the event that Purchaser has failed to comply
with the provisions of this Agreement. 
Notwithstanding anything to the contrary contained in this Section 17.21,
Seller agrees that if the provisions of this Agreement provide for the return
of the Deposit to Purchaser that Seller will not unreasonably withhold its
consent to the return of the Deposit to Purchaser.  Notwithstanding anything to the contrary
contained in this Section 17.21, Purchaser agrees that if the
provisions of this Agreement provide for the return of the Seller Earnest Money
to Seller that Purchaser will not unreasonably withhold its consent to the
return of the Seller Earnest Money to Seller.


 


17.22                 Other Agreements.  Seller
and Purchaser have a business relationship with each other and in connection
therewith Seller and Purchaser have entered into various other agreements as of
the date hereof (“Other Agreements”).  A default by either party under any Other
Agreement not cured within any applicable cure period shall be deemed to be a
default by such party under this Agreement.


 


17.23                 Seller Environmental
Obligations.  Notwithstanding anything to the contrary
contained in this Agreement, based on conditions existing as of the Effective
Date, Seller agrees to conduct and complete, for Purchaser’s benefit and solely
at Seller’s expense except as provided below, all investigation and remediation
measures necessary for Seller to obtain (a) with respect to the Properties
identified on Exhibit S, a
No Further Remediation (“NFR”)
letter from the Illinois Environmental Protection Agency, and (b) with respect
to the Properties identified on Exhibit S,
a Certificate of Completion in the Voluntary Remediation Program administered
by the Indiana Department of Environmental Management and a Covenant Not to Sue
from the office of the Governor of Indiana (the NFR Letter, the Certificates of
Completion, the Covenants Not to Sue, and all other necessary closure
certification records shall be referred to collectively herein as the “Completion Documents”).


 


17.23.1            Schedule.  Seller
shall act with diligence in conducting investigation and remediation measures,
in pursuing issuance of the Completion Documents, and in complying with any
applicable requirements of the respective state voluntary cleanup program,
including without limitation the following, to the extent required by the
respective state voluntary cleanup program: causing the Completion Documents to
be recorded in the property records and filed with governmental agencies, and
notifying third parties such as off-site landowners. Seller shall make
reasonable efforts to cause the Completion Documents to be issued by no later
than the LLC Expiration Date (as defined in that certain Limited Liability
Company Agreement of even date herewith by and between CenterPoint Properties
Trust and JF US Industrial Property Trust).  If Seller fails to cause the Completion
Documents to be issued by no later than the LLC Expiration Date for any
individual Property (“NFR Substitution Event”),
Purchaser may, at its option, by written notice to Seller within thirty (30)
days after the occurrence of an NFR Substitution Event, request that Seller
offer a Substitute Property in accordance with Section 9.9.2 above.
(“NFR Substitution Notice”);
provided, however, in the event that Purchaser elects to have Seller provide a
Substitute Property, Seller, if it chooses to do so, in its sole and absolute
discretion, shall have a period of thirty (30) days from the date Seller is
given the NFR Substitution Notice to obtain the Completion Documents, and
further, provided, however, if the Completion Documents are


 


29





















 


not capable of being obtained within said thirty
(30) day period through no fault of Seller and Seller has commenced to obtain
the Completion Documents within such thirty (30) day period, then Seller shall
have such reasonable period of time from and after the date of the NFR
Completion Notice to obtain the Completion Documents; provided, further, that
such additional period shall not extend beyond the date of the Closing with
respect to the Substitute Property.  In
the event Seller cures the condition giving rise to the NFR Substitution Event
prior to the time that a Closing with respect to the Substitute Property
occurs, the Scheduled Closing Date for the Removed Property shall be extended
to the fifteenth (15th) day after the condition giving rise to the
NFR Substitution Event has been cured.


 


In
the event Seller does not obtain the Completion Documents within the time
periods referenced above, Seller shall repurchase the Property in question at
such time as Purchaser acquires a Substitute Property.  Seller shall repurchase the Removed Property
for the same price paid by Purchaser to purchase such Property from Seller and
Seller shall repurchase such Property on the same terms and conditions of this
Agreement applicable to Purchaser’s acquisition of a Substitute Property. Seller
shall be obligated to repurchase the Property in question only if Purchaser
agrees to purchase the Substitute Property, and Purchaser and Seller shall
agree to close on both transactions on the same day at the same time.  Seller and Purchaser agree to follow the same
terms, conditions and procedures for purposes of this exchange as are generally
consistent with Sections 9.9.5, 9.9.6, 9.9.7 and 9.9.8 of this
Agreement.


 


17.23.2            Cooperation.  From and after the Effective
Date of this Agreement, Seller and Purchaser shall cooperate with each other to
facilitate the successful completion of the voluntary remediation process for
each Property.  Seller and Purchaser
shall consult in good faith about all draft workplans and proposed submissions
to regulatory authorities, and Seller shall make changes reasonably requested
by Purchaser.  Seller shall provide at
least two (2) Business Days advance written notice of entry onto a Property and
identify the general nature of the work to be performed and the portion(s) of
the Property on which the work will be performed.  To the extent practical, Seller shall provide
advance notice to Purchaser of, and shall allow Purchaser to participate in,
meetings and telephone conferences with regulatory authorities.  Seller shall provide Purchaser with a copy of
all test results, final submissions to regulatory agencies and final documents
received from such agencies within a reasonable period of time after they are
received or created by Seller.


 


17.23.3            Scope of Testing Activities. 
Pursuant to this Section 17.23, Seller shall conduct initial
testing sufficient to reasonably identify all potential contaminants of concern
materially related to the industrial/commercial use at the Properties
(reasonably taking into consideration potentially significant environmental
conditions indicated in Phase 1 reports or in prior testing).  Subsequent testing shall be conducted by
Seller as reasonably necessary to satisfy regulatory authorities for issuance
of the Completion Documents.


 


17.23.4            Institutional Controls.  The
Completion Documents may be qualified or conditioned by institutional controls
(e.g., deed restrictions, engineered barriers) to the extent such controls are
consistent with the Properties’ industrial/commercial use as of the Effective
Date and are necessary for issuance of the Completion Documents; provided,
however, Seller shall have sole discretion to select the remedial approach for
obtaining the Completion Documents.  Any
such institutional controls are subject to Purchaser’s review and approval, which
approval shall not be unreasonably withheld.


 


17.23.5            Execution of Documents. 
Solely relating to and limited by Seller’s obligations as set forth in Article 17
hereto, Seller shall arrange for any offsite disposal of


 


30





















 


hazardous
substances, required in order to obtain the Completion Documents, and shall
execute all manifests and similar documents, reflecting itself or its designee
as the generator of such hazardous substances, and in no event shall Seller
name or identify Purchaser as the generator of such hazardous substances;
provided, however, the Seller has no duty or obligation whatsoever for any
hazardous substances transported to, released upon or generated by Purchaser,
its agents, representatives and assigns, at, on, beneath or adjacent to the
Properties. Purchaser shall execute other documents reasonably requested by
Seller that are necessary and consistent with this Section 17.23.


 


17.23.6            Access. Purchaser shall provide necessary access to Seller to carry out the
provisions of this section.  Seller shall
use all reasonable efforts to avoid any disruption of tenant activities, and
shall promptly repair at Seller’s sole cost and expense any damage caused by
its investigation or remediation activities.


 


17.23.7            Indemnification. Until the earlier of the date the Seller
procures and provides to Purchaser the requisite Completion Documents as set
forth herein for each Property, or an appropriate substitute is exchanged
pursuant to Section 17.23.1 hereof, Seller shall protect, defend,
indemnify and hold Purchaser harmless from and against any claim or loss
arising out of (a) any investigation, remediation or disposal activities
conducted by Seller or its agents pursuant to this Section 17.23,
and (b) any failure by Seller to obtain the Completion Documents as provided in
this section.


 


17.23.8            Voidance. In the event any of the Completion Documents are voided as a result
of any fraudulent misrepresentation or other fraudulent act or omission of
Seller, Seller shall be responsible for implementing at its expense any
measures necessary to have the Completion Documents reinstated.


 


17.23.9            Assignment.  To the extent allowed by
contract and law, Seller shall use reasonable efforts to assign to Purchaser
its environmental rights under current vendor and tenant agreements, including
all indemnities, escrows, representations, and warranties (“Seller’s Environmental Rights”).  Where Seller is unable to assign Seller’s
Environmental Rights, Seller will use commercially reasonable efforts to
enforce such rights on behalf of Purchaser (at Purchaser’s expense).


 


17.23.10      Survival.  The terms of this Section 17.23
shall expressly survive, without limitation, the Closing.


 


17.24                 Currency. All payments and amounts referenced or
described in this Agreement shall be deemed to require payments in and refer to
amounts in the currency of the United States of America.


 


17.25                 Facsimile Signatures. The parties hereto agree that the use of
facsimile signatures for the execution of this Agreement shall be legal and
binding and shall have the same force and effect as if originally signed.


 


[remainder of page intentionally left blank]


 


31





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the
date or dates set forth below.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT JAMES FIELDING, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Adrian Harrington

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Adrian
  Harrington

  
	
   

  	
   

  	
    Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Adrenne Parkinson

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Adrienne
  Parkinson

  
	
   

  	
   

  	
    Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  
	
   

  	
  Date:
  April 6, 2005

  
	
   

  	
   

  
	
   

  	
  Tax
  I.D. # 98-0450460

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT PROPERTIES TRUST, a Maryland

  real estate investment trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
    Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  James N. Clewlow

  	
   

  
	
   

  	
   

  	
    Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
    Title:

  	
  Chief
  Investment Officer

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT VENTURE, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
    Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
    Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  James N. Clewlow

  	
   

  
	
   

  	
   

  	
    Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
    Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
						



 


32





















 


Exhibits


 


	
  Exhibit
  A

  	
  Properties

  
	
  Exhibit
  B-1 - B-3

  	
  Legal
  Descriptions

  
	
  Exhibit
  C-1 - C-3

  	
  Schedule of
  Leases

  
	
  Exhibit
  D -

  	
  Intentionally
  Deleted

  
	
  Exhibit
  E -

  	
  Escrow
  Agreement

  
	
  Exhibit
  F -

  	
  Documents

  
	
  Exhibit
  G-1 - G-3

  	
  Permitted
  Exceptions

  
	
  Exhibit
  H-

  	
  Master
  Lease

  
	
  Exhibit
  I -

  	
  Property
  Management Agreement

  
	
  Exhibit
  J -

  	
  Intentionally
  Deleted

  
	
  Exhibit
  K -

  	
  Tenant
  Estoppel Certificate

  
	
  Exhibit
  L -

  	
  Seller’s
  Estoppel Certificate

  
	
  Exhibit
  M -

  	
  General
  Assignment

  
	
  Exhibit
  N -

  	
  Deed

  
	
  Exhibit
  O -

  	
  Notice
  of Sale to Tenant

  
	
  Exhibit
  P -

  	
  Non-Foreign
  Entity Certification

  
	
  Exhibit
  Q -

  	
  Survey
  Certification

  
	
  Exhibit
  R -

  	
  Planned
  Expenditures

  
	
  Exhibit
  S -

  	
  NFR
  Properties

  



 


Schedules


	
  7.1.4
  -

  	
  No
  Violations of Laws

  
	
  7.1.5

  	
  Eminent
  Domain

  
	
  7.1.6

  	
  Hazardous
  Material

  
	
  7.1.7

  	
  Litigation

  
	
  7.1.8

  	
  Leases

  
	
  7.1.9

  	
  Contracts

  
	
  7.1.10

  	
  Defaults

  
	
  9.8

  	
  Purchase
  Price Schedule

  
	
  9.10

  	
  Contracts

  
	
  9.12

  	
  REA
  Estoppels

  



 


33





















 


TRANCHE 2


 


SALE AGREEMENT


 


THIS SALE AGREEMENT (“Agreement”) is made and
entered into as of the 6th day of April, 2005, by and between CENTERPOINT PROPERTIES TRUST, a Maryland
real estate investment trust (“SELLER”),
and CENTERPOINT JAMES FIELDING, LLC,
a Delaware limited liability company (“PURCHASER”).


 


In
consideration of the mutual promises, covenants and agreements hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:


 


ARTICLE I


Sale of Properties


 


1.1                               Sale of Properties. 
Seller agrees to sell, assign and convey to Purchaser, or cause to be
sold, assigned and conveyed to Purchaser, in the event that one or more of the
Properties is currently owned by an entity affiliated with Seller (hereinafter
collectively referred to as “Seller
Affiliates”), and Purchaser agrees to purchase from Seller, the
following:


 


1.1.1                        Land and Improvements.  That
certain real property commonly described on
Exhibit A, being more particularly described on Exhibits B-1 through B-8 respectively, attached hereto (collectively, the “Land”), together with any improvements
located thereon (collectively, the “Improvements”);


 


1.1.2                        Leases.  All of Seller’s or Seller
Affiliates’, as the case may be, right, title and interest, if any, in and to all
leases, subleases, licenses and other occupancy agreements, together with any
and all amendments, modifications or supplements thereto (hereafter referred to
collectively as the “Leases”),
being more particularly described on Exhibits
C-1 through C-8
respectively, attached hereto, and all prepaid rent attributable to the period
following Closing, as herein defined, and subject to Section 4.2.4
below, the security deposits under such Leases (collectively, the “Leasehold Property”);


 


1.1.3                        Real Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all easements and appurtenances to Seller’s or
Seller Affiliates’, as the case may be, interest in the Land and the
Improvements, including, without limitation, all mineral and water rights and
all easements, licenses, covenants and other rights-of-way or other
appurtenances used in connection with the beneficial use or enjoyment of the
Land and the Improvements (the Land, the Improvements and all such easements
and appurtenances are sometimes collectively referred to as the “Real Property”);


 


1.1.4                        Personal Property.  All
personal property (including equipment), if any, owned by Seller or Seller
Affiliates, as the case may be, and located on the Real Property as of the date
hereof, and all fixtures, if any, located on the Real Property as of the date
hereof or as of the Closing Date (collectively, the “Personal Property”); and


 


1.1.5                        Intangible Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all service, equipment, supply and maintenance
contracts (collectively, the “Contracts”),
guarantees, licenses, side track agreements (and other agreements including
leasehold agreements attendant to the Property), approvals, utility contracts,
plans and specifications, governmental approvals and development rights,
certificates, permits and warranties (and including all escrows, indemnities,
representations, warranties and guarantees Seller received from any and all
vendors from when Seller


 





















 


acquired
the Properties), including, without limitation environmental insurance policies
(to the extent same can be assigned with a reservation of rights for the
benefit of Seller as well) and other environmental escrows and indemnities (to
the extent same can be assigned with a reservation of rights for the benefit of
Seller as well), if any, relating to the Real Property or the Personal
Property, to the extent assignable (collectively, the “Intangible Property”).  (For each individual parcel, the Real
Property, the Leasehold Property, the Personal Property and the Intangible
Property are sometimes collectively hereinafter referred to as the “Property”, and for all parcels, taken
together, the Real Property, the Leasehold Property, the Personal Property and
the Intangible Property are collectively referred to as the “Properties”).  It is hereby acknowledged by the parties that
Seller shall not convey to Purchaser claims relating to any real property tax
refunds or rebates for periods accruing prior to the Closing, to the extent
such taxes have been paid by Seller prior to the Closing, existing insurance
claims and any existing claims against previous tenants of the Properties,
which claims are hereby reserved by Seller, subject to the terms and provisions
of Section 4.2.4 below.


 


ARTICLE II


Purchase Price


 


2.1                               Purchase Price. 
Subject to the provisions of Section 9.9 below, the purchase
price for the Properties shall be Sixty-One Million Three Hundred Thousand and
No/100 Dollars ($61,300,000.00) (“Purchase
Price”) in currency of the United States of America. The Purchase
Price, as adjusted by all prorations as provided for herein, shall be paid by
Purchaser at Closing as directed by the Seller by wire transfer of immediately
available federal funds of The United States of America.


 


ARTICLE III


Deposit


 


3.1                               Purchaser Deposit. 
Purchaser will deposit a Fifteen Million and No/100 Dollars
($15,000,000.00) Letter of Credit (“Purchaser
Letter of Credit”) on the date of the first Closing to occur under
any of the Sale Agreements (defined below) with Chicago Title Insurance Company
(“Escrow Agent” or “Title Company”).  The Purchaser Letter of Credit shall be held
by Escrow Agent pursuant to an Escrow Agreement in the form attached hereto as Exhibit E modified to conform to the
terms of this Agreement and as required by Title Company when Title Company
holds a letter of credit (“Escrow Agreement”).  The Purchaser Letter of Credit shall (i) be
unconditional and irrevocable, (ii) be in a form reasonably acceptable to
Seller, (iii) be issued by a financial institution doing business in the United
States of America, with offices in Chicago, Illinois and (iv) expire no earlier
than March 15, 2006.  The cost of
issuing and maintaining the Purchaser Letter of Credit shall be paid by Seller
and Seller’s failure to do so shall not be a breach or a default by Purchaser
under this Agreement or any Other Agreements (as defined in Section 17.22
below) nor shall Seller have any right to direct Escrow Agent to draw upon the
Purchaser Letter of Credit as a result of Seller’s failure as aforesaid.  The Purchaser Letter of Credit and the
proceeds of the Purchaser Letter of Credit (“Purchaser
Proceeds”) have been provided to assure performance and observance
by Purchaser of all of its closing obligations under this Agreement and five
(5) other sale agreements entered into by and between Seller and Purchaser and
dated of even date herewith relating to the sale of properties by Seller to
Purchaser (this Agreement and the other five (5) Sale Agreements are herein
collectively referred to as the “Sale
Agreements”).   Accordingly,
in the event of the occurrence of a default under Section 13.2 of
this Agreement or any of the other Sale Agreements or in the event that the
Purchaser Letter of Credit will expire within thirty (30) days or less, Seller
shall have the right to direct Escrow Agent to draw upon the Purchaser Letter
of Credit.  All Purchaser Proceeds
received by Escrow Agent shall be retained by Escrow Agent and held or
disbursed pursuant to the terms of the Escrow Agreement and this
Agreement.  At the time of the


 


2





















 


final
Closing of all Properties, including, but not limited to, Substitute Properties
(defined below) under all of the Sale Agreements, the Purchaser Letter of
Credit shall be delivered to Purchaser. 
In the event any Closing under any of the Sale Agreements does not occur
through no fault of Purchaser, Purchaser Letter of Credit shall be returned to
Purchaser.


 


3.2                               Seller Deposit. 
Seller will deposit a Three Million and No/100 Dollars ($3,000,000.00)
Letter of Credit (“Seller Letter of Credit”)
on the date of the first Closing to occur under the Sale Agreements with Escrow
Agent.  The Seller Letter of Credit shall
be held by Escrow Agent pursuant to an Escrow Agreement in the form attached
hereto as Exhibit E
modified to conform to the terms of this Agreement and as required by Title
Company when Title Company holds a letter of credit.  The Seller Letter of Credit shall (i) be
unconditional and irrevocable, (ii) be in a form reasonably acceptable to
Purchaser, (iii) be issued by a financial institution doing business in the
United States of America, with offices in Chicago, Illinois and (iv) expire no
earlier than March 15, 2006.  The
cost of issuing and maintaining the Seller Letter of Credit shall be paid by
Seller.  The Seller Letter of Credit and
the proceeds of the Seller Letter of Credit have been provided to assure
performance and observance by Seller of all of its closing obligations under
the Sale Agreements.  Accordingly, in the
event of the occurrence of a default under Section 13.1 of this
Agreement or any of the other Sale Agreements or in the event that the Seller
Letter of Credit will expire within thirty (30) days or less, Purchaser shall
have the right to direct Escrow Agent to draw upon the Seller Letter of
Credit.  All Proceeds received by Escrow
Agent shall be retained by Escrow Agent and held or disbursed pursuant to the
terms of the Escrow Agreement and this Agreement.  At the time of the final Closing of all
Properties, including, but not limited to, Substitute Properties under all of
the Sale Agreements, the Seller Letter of Credit shall be delivered to
Seller.  In the event any Closing under
any of the Sale Agreements does not occur through no fault of Seller, Seller
Letter of Credit shall be returned to Seller.


 


ARTICLE IV


Closing, Prorations and Closing Costs


 


4.1                               Closing.  The
closing of the purchase and sale of the Properties shall occur on or before
10:00 a.m. Central time on July 29, 2005 (the “Scheduled Closing Date”) and shall be held at the offices of
Escrow Agent, or at such other place agreed to by Seller and Purchaser (said
closing is hereinafter referred to as the “Closing”).  Notwithstanding anything to the contrary
contained in this Section 4.1, Seller or Purchaser, as the case may
be, shall have the right to extend the closing date for one or more of the
Properties in accordance with the provisions of Sections 9.9, 10.1 and 12.1
hereof.  “Closing” shall be deemed
to have occurred when the Title Company has been instructed by both parties to
pay the applicable portion of the Purchase Price to Seller and to record the
applicable Deeds, as hereunder defined. 
The date of the Closing is sometimes referred to in this Agreement as a
“Closing Date.”  The transactions contemplated by this
Agreement shall be closed through an escrow with Escrow Agent on the Closing
Date, in accordance with the general provisions of the usual form “New York
Style” Deed and Money Escrow Agreement used by Escrow Agent, with such
provisions required to conform to the terms of this Agreement.


 


4.2                               Prorations.  All
matters involving prorations or adjustments to be made in connection with Closing
and not specifically provided for in some other provision of this Agreement
shall be adjusted in accordance with this Section 4.2.  Except as otherwise set forth herein, all
items to be prorated pursuant to this Section 4.2 shall be prorated
as of midnight of the day immediately preceding a Closing Date, with Purchaser
to be treated as the owner of the applicable Properties, for purposes of
prorations of income and expenses, on and after a Closing Date.


 


4.2.1                        Taxes.  Subject to the provisions of
this Section 4.2.1, real estate and personal property taxes, if
any, accrued, but not yet due and owing as of the Closing and installments of
special assessments, if any, due and owing during the installment year in


 


3





















 


which
the Closing occurs (hereinafter collectively referred to as “Taxes”) shall be prorated as of the Closing
Date, and, notwithstanding any other provision contained in this Agreement,
shall not be reprorated.  Seller shall
pay all Taxes due and payable as of the Closing Date.  If the Taxes have not been set for the year
in which Closing occurs or any prior year, then the proration of such Taxes
shall be based upon the most recent ascertainable tax bills.  Notwithstanding any other provision of this Agreement,
(a) there shall be no proration of Taxes with respect to tenants whose leases
obligate said tenants to pay Taxes when the tax bills are issued, and (b) the
amount otherwise due Purchaser under this Section 4.2.1 shall be
reduced by an amount equal to all tenant deposits held by Seller for Taxes at
the time of Closing (collectively, the “Tenant
Tax Deposits”) and the Tenant Tax Deposits shall be turned over to
Purchaser at Closing.  Tenant Tax
Deposits received by Seller following Closing for any period of time after
Closing shall be paid to Purchaser.  The
amount due under this Section 4.2.1 shall not be credited to
Purchaser at Closing but shall be deposited into the operating account for the
Properties and held by Seller as property manager pursuant to the Management
Agreement described in Section 9.6 below.


 


Seller shall contest real estate taxes and/or assessment levels, as the
case may be, prior to Closing if Seller deems reasonable in its judgment as a
commercially prudent owner of real estate. 
All costs incurred in connection with such contest shall be paid by the
parties in proportion to benefit received by the parties in connection with any
reduction of such real estate taxes or assessments as the case may be.


 


4.2.2                        Insurance.  Seller shall assign its
existing insurance policies to Purchaser upon Closing.  Purchaser shall be named as a named insured
thereon and all premiums with respect thereto shall be prorated between the
parties as of Closing.


 


4.2.3                        Utilities.  Purchaser and Seller hereby
acknowledge and agree that the amounts of all electric, sewer, water and other
utility bills, trash removal bills, janitorial and maintenance service bills
and all other operating expenses relating to the applicable Properties not paid
by tenants under Leases and allocable to the period prior to the Closing Date
shall be determined and paid by Seller before Closing, if possible, or shall be
paid thereafter by Seller or adjusted between Purchaser and Seller immediately
after the same have been determined. 
Seller shall attempt to have all utility meters, or utility services not
paid by tenants under Leases, read as of the Closing Date.  Purchaser shall cause all utility services to
be placed in Purchaser’s name as of the Closing Date.  If permitted by the applicable utilities, all
utility deposits in Seller’s name shall be assigned to Purchaser as of the
Closing Date, and Seller shall receive a credit therefor at Closing.


 


4.2.4                        Rents.  Rent [(including estimated
pass-through payments for common area/operating expenses, but not for Taxes),
collectively “Rents”] for the
month in which Closing occurs shall be prorated for said month based upon the
Rents estimated to have been collected by Seller as of the Closing Date.  Rents for said month shall be reprorated
within seven (7) Business Days after the end of said month based on Rents
actually received.  During the period
after Closing, (i) Purchaser shall deliver to Seller any and all Rents accrued
but uncollected as of the Closing Date, to the extent subsequently collected by
Purchaser; provided, however, Purchaser shall apply Rents received after
Closing first to payment of current Rents then due, and thereafter to
delinquent Rents (other than “true up” payments received from tenants
attributable to a year-end reconciliation of actual and budgeted pass-through
payments, which shall be allocated among Seller and Purchaser pro rata in
accordance with their respective period of ownership as set forth in Section 4.2.5
below), and (ii) Seller shall deliver to Purchaser any and all Rents collected
by Seller for any period after Closing.


 


4





















 


Subject to the provisions of the following sentence, Seller shall be
entitled, after the Closing, to take any action against a tenant which would
not result in a termination of any Lease or a tenant’s right of occupancy
thereunder (“Seller Action”).  Notwithstanding the foregoing, Seller shall
not take any Seller Action unless Seller shall have first provided Purchaser
with not less than five (5) Business Days’ notice of its intent to take action
against a tenant, together with a description of the subject matter of the
proposed Seller Action.  Purchaser agrees
that it shall use commercially reasonable efforts to collect all pass-through
rents payable by tenants and any delinquent Rents (provided, however, that
Purchaser shall have no obligation to institute legal proceedings, including an
action for unlawful detainer, against a tenant owing delinquent Rents).


 


The amount of any unapplied security deposits (plus accrued interest
thereon if payable to a tenant under its lease) under the Leases held by Seller
in cash at the time of Closing shall be credited against the Purchase Price;
accordingly, Seller shall retain the actual cash deposits.  Notwithstanding anything in this Section 4.2.4
to the contrary, if any security deposits are in the form of a letter of
credit, such security deposits shall not be prorated, but shall be turned over
by Seller to Purchaser at the Closing by the delivery thereof by Seller to
Purchaser in accordance with this provision. 
In addition, Seller shall use reasonable efforts to deliver appropriate
duly executed instruments of transfer or assignment of such letters of credit
which are required to establish Purchaser as the new beneficiary thereunder and
any consents required by the issuing bank for the transfer of such letters of
credit.  If required, Seller shall use
reasonable efforts to arrange for the issuance by the issuing bank of any
authorization to the transfer, together with the delivery of such letters of
credit (and any letter of transfer that is required by such letter of
credit).  Any fees imposed by such
issuing banks in connection with such transfers which are not the obligation of
the applicable tenant to pay shall be paid by Seller.  In the event that any letter of credit is not
transferable as of Closing, Seller shall cooperate with Purchaser in all
reasonable respects following the Closing so as to transfer the same to
Purchaser or to obtain a replacement letter of credit with respect thereto in
favor of Purchaser, in either case at no cost or expense to Purchaser.  Until any such letter of credit shall be
transferred or replaced, Seller shall present such letter of credit for payment
and deliver the proceeds received by Seller, if any, to Purchaser within a
reasonable period of time following receipt of Purchaser’s written
request.  Notwithstanding the foregoing,
Seller shall not be in default under this Agreement in the event that any such
letter of credit is not assigned to Purchaser for any reason other than the
failure of Seller to sign the documents required of it to transfer the letter
of credit or the failure of Seller to pay any fees imposed by an issuing bank
in connection with such transfers.  In
such event, Purchaser may terminate this Agreement with respect to the
applicable Property upon written notice to Seller on or before ten (10) days
after Purchaser becomes aware that a letter of credit will not be assigned on
the Closing Date; provided, however, Purchaser’s right to terminate shall not
be effective in the event that Seller, in its sole and absolute discretion,
gives Purchaser a credit against the Purchase Price in the amount of the
security deposit or provides a substitute letter of credit in that amount.


 


4.2.5                        Calculations.  For
purposes of calculating prorations, Purchaser shall be deemed to be in title to
that portion of the Properties being acquired on the Closing Date, and,
therefore entitled to the income therefrom and responsible for the expenses
thereof for the entire day upon which the Closing occurs.  All such prorations shall be made on the
basis of the actual number of days of the month which shall have elapsed as of
the day of the Closing and based upon the actual number of days in the month
and year in question.  Except as set
forth in this Section 4.2, all items of income and expense which
accrue for the period prior to the Closing will be for the account of Seller
and all items of income and expense which accrue for the period on and after
the Closing will be for the account of Purchaser.  Purchaser and Seller shall each submit or
cause to be submitted to the other (i) on or about the 90th day after Closing,
and (ii) on or about the one year anniversary of the


 


5





















 


Closing,
a statement which sets forth necessary adjustments to items subject to
proration pursuant to the provisions of this Section 4.2, if any;
provided, however, no adjustment shall be made with respect to Taxes.  Within fifteen (15) days following delivery
of such statements, the parties shall make such adjustments among themselves as
shall be necessary to carry out the prorations as contemplated in this Section 4.2.  In the event any prorations made under this Section 4.2
shall prove to be incorrect for any reason, then any party shall be entitled to
an adjustment to correct the same.


 


4.2.6                        Leasing Commissions and Leasing Costs. 
Seller shall be responsible for all leasing commissions, tenant
improvement costs and other usual and customary leasing costs, due and owing
with respect to the current term of all Leases executed prior to the Effective
Date, whether such leasing commissions, tenant improvement costs and other
usual and customary leasing costs are due to be paid prior to or after the
Closing Date.


 


4.2.7                        Prepaid Items.  Any
prepaid items, including, without limitation, fees for licenses which are
transferred to the Purchaser at the Closing and annual permit and inspection
fees shall be apportioned between the Seller and the Purchaser at the Closing.


 


4.2.8                        Allocation of Closing Costs and Expenses. 
Seller shall bear the cost of the title policy to be issued and extended
coverage charges, the cost of the Surveys (as hereinafter defined), the cost to
record any instruments necessary to clear Seller’s title, one-half the cost of
the Closing Escrow and one-half the cost of the “New York Style” closing fee.
Purchaser shall bear the cost of any recording fees with respect to the Deeds,
all costs incurred in connection with obtaining Purchaser’s financing for this
transaction, if any, the cost of all title endorsements (other than with
respect to extended coverage), if any, one-half the cost of the Closing Escrow
and one-half the cost of the “New York Style” closing fee.  The cost of state and county transfer taxes
shall be paid by the Seller, and the cost of local transfer taxes shall be paid
by the party designated in the applicable local ordinance or local custom.  If no such designation or custom exists, and
a local transfer tax must be paid, the cost thereof shall be shared equally by
Seller and Purchaser.


 


4.2.9                        Operating Expenses.  All
operating expenses (including all charges under Contracts and agreements
assumed by Purchaser under the General Assignment, as hereinafter defined and
fees to any owner’s association) shall be prorated as of the Closing Date.  As to each service provider, operating
expenses payable or paid to such service provider in respect to the billing
period of such service provider in which the Closing Date occurs (the “Current Billing Period”), shall be prorated
on a per diem basis based upon the number of days in the Current Billing Period
prior to the Closing Date (which shall be allocated to Seller) and the number
of days in the Current Billing Period on and after the Closing Date (which
shall be allocated to Purchaser), and assuming that all charges are incurred
uniformly during the Current Billing Period. 
If actual bills for the Current Billing Period are unavailable as of the
Closing Date, then such proration shall be made on an estimated basis based
upon the most recently issued bills, subject to readjustment within thirty (30)
days of receipt of actual bills. 
Notwithstanding the foregoing, no prorations or adjustments shall be
made for portions of operating costs of the Properties to the extent a tenant
under the Leases is required to pay same pursuant to the terms of any of the
Leases. Purchaser shall be credited with an amount equal to all deposits made
by tenants and held by Seller at Closing towards the tenant’s obligation to pay
any such operating expenses.


 


ARTICLE V


Inspection


 


5.1                               Seller Deliveries. 
Purchaser acknowledges that Seller has heretofore delivered or caused to
be delivered or made available to Purchaser at the Properties all of the items
relating to


 


6





















 


the
Properties specified on Exhibit F,
attached hereto, to the extent that such items were in Seller’s possession (“Documents”); provided, however, that except
for the representations and warranties made in Article VII hereof,
Seller makes no representations or warranties of any kind regarding the
accuracy, thoroughness or completeness of or conclusions drawn in the
information contained in such documents, if any, relating to the Properties.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Purchaser acknowledges that any and all of the Documents that are not
otherwise known by or available to the public are proprietary and confidential
in nature and were delivered to Purchaser solely to assist Purchaser in
determining the feasibility of purchasing the Properties.  Purchaser agrees not to disclose such
non-public documents, or any of the provisions, terms or conditions thereof, to
any party other than a Purchaser Party/Representative, as hereinafter
defined.  Purchaser shall return all of
the Documents, at such time as this Agreement is terminated for any reason.  This Section 5.1 shall survive
Closing and/or termination of this Agreement without limitation.


 


5.2                               Independent
Examination/Right to Access.  Purchaser hereby acknowledges that it has
been given, prior to the execution hereof, a full, complete and adequate
opportunity to make such legal, factual and other determinations, analyses,
inquiries and investigations as Purchaser deems necessary or appropriate in
connection with the acquisition of the Properties.  Purchaser further acknowledges that Purchaser
is relying upon its own independent examination of the Properties and all
matters relating thereto and not upon any statements of Seller (excluding the
limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser.  Notwithstanding
anything to the contrary contained in this Section 5.2, Purchaser
and its agents shall have access to the Properties and the Documents prior to
the Closing Date, but during normal business hours (with reasonable advance
notice to Seller and subject to the rights of the tenants in possession), at
Purchaser’s sole cost and expense, and at Purchaser’s and its agents’ sole
risk, to inspect the applicable Properties, provided, however, Purchaser shall
not be entitled to conduct Physical Testing or any Phase I Assessments, as said
terms are hereinafter defined, without the approval of Seller, which approval
shall not be unreasonably withheld, and further provided that prior to
Purchaser entering the Properties, Purchaser shall deliver to Seller evidence
of Due Diligence Insurance, as hereinafter defined.  Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided that Seller does
not unreasonably interfere with Purchaser’s inspection.  The provisions of this Section 5.2
shall survive Closing and/or termination of this Agreement without
limitation.  Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


 


5.3                               Inspection Obligations and
Indemnity.  Purchaser and its agents and representatives
shall (a) not unreasonably disturb the tenants of the Improvements or interfere
with their use of the Real Property pursuant to their respective Leases; (b)
not interfere with the operation and maintenance of the Real Property; (c) not
injure or otherwise cause bodily harm to Seller, its agents, contractors and
employees or any tenant; (d) promptly repair any damage to any part of the
Properties or any personal property owned or held by any tenant caused by
Purchaser’s inspection of the Properties; (e) promptly pay when due the costs
of all tests, investigations and examinations done by Purchaser with regard to
the Properties; (f) not permit any liens to attach to the Properties as a
result of Purchaser’s inspection of the Properties; (g) restore the
Improvements and the surface of the Real Property to the condition in which the
same was found before any such inspection or


 


7





















 


tests
were undertaken by Purchaser; and (h) except to the extent required by law, not
reveal or disclose any information obtained pursuant to its inspections of the
Properties to anyone other than the following persons or entities (each a “Purchaser Party/Representative”): (x)
Purchaser’s prospective lenders, members, managers, partners or other
co-venturers or investors, in connection with the proposed purchase of the
Properties and their respective representatives; and (y) Purchaser’s directors,
officers, partners, members, managers, affiliates, shareholders, employees,
legal counsel, accountants, engineers, architects, financial advisors and
similar professionals and consultants to the extent Purchaser deems it
necessary or appropriate in connection with its evaluation of the
Properties.  Purchaser shall, and does
hereby agree to indemnify, defend and hold Seller, its partners, officers,
directors, employees, agents, attorneys and their respective successors and
assigns, harmless from and against any and all claims, demands, suits,
obligations, payments, damages, losses, penalties, liabilities, costs and
expenses (including, but not limited to, attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Properties
in the exercise of the inspections of Purchaser prior to the Effective Date,
including, without limitation, claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use of or damage to its premises or property in connection with
Purchaser’s review of the Properties. 
This Section 5.3 shall survive the Closing and/or any
termination of this Agreement without limitation. Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


 


ARTICLE VI


Title and Survey Matters


 


6.1                               Title. 
Purchaser acknowledges that, prior to the Effective Date, Seller has
delivered to Purchaser, with respect to each Property, a title insurance
commitment or a prior title insurance policy (a “Commitment”), together with a copy of all underlying documents
referenced therein (collectively, the “Title
Documents”).  Except as
hereinafter provided, Purchaser and Seller hereby agree that (i) all Taxes that
are not due and payable prior to Closing, (ii) the rights of the tenants under
the Leases and Approved New Leases (as defined in Section 9.3 of
this Agreement), as parties in possession only, (iii) all matters created by or
on behalf of Purchaser and (iv) the exceptions to title identified on Exhibits G-1 through G-8, respectively, shall constitute “ Permitted Exceptions”.  Notwithstanding anything to the contrary
contained herein, Seller shall be obligated to cause all of the following
resulting from the act or omission of, or caused by, Seller or grantor under
the Deeds to be fully satisfied, released and discharged of record or insured
or bonded over on or prior to the Closing Date: 
all mortgages, deeds of trust and monetary liens [including liens for
delinquent taxes, mechanics’ liens and judgment liens] affecting the Properties
and all indebtedness secured thereby.


 


6.2                               Survey. 
Purchaser acknowledges receipt of Seller’s existing surveys (“Initial Surveys”) for each of the
Properties.  Seller has ordered a current
ALTA/ACSM survey for each Property to be certified to Purchaser, as well as any
affiliates and lender designated by Purchaser to Seller at least thirty (30)
days prior to Closing and Title Company (collectively, the “Surveys”) and shall deliver a copy of the
Surveys to Purchaser promptly upon receipt thereof but in all events prior to
Closing.  The surveyors shall certify the
Surveys in accordance with the form of certification attached hereto as Exhibit Q.


 


ARTICLE VII


Representations and Warranties of the Seller


 


7.1                               Seller’s Representations. 
Seller represents and warrants that the following matters are true and
correct as of the Effective Date:


 


8





















 


7.1.1                        Authority.  Seller is a real estate
investment trust, duly organized, validly existing and in good standing under
the laws of the State of Maryland.  This
Agreement has been duly authorized, executed and delivered by Seller, is the
legal, valid and binding obligation of Seller, and does not violate any
provision of any agreement or judicial order to which Seller is a party or to
which Seller is subject.  All documents
to be executed by Seller or Seller Affiliates which are to be delivered at
Closing, will, at the time of Closing, (i) be duly authorized, executed and
delivered by Seller or Seller Affiliates, as the case may be, (ii) be legal,
valid and binding obligations of Seller or Seller Affiliates, as the case may
be, and (iii) not violate any provision of any agreement or judicial order
to which Seller or Seller Affiliates, as the case may be is a party or to which
Seller or Seller Affiliates, as the case may be, is subject.


 


7.1.2                        Bankruptcy or Debt of Seller. 
Neither Seller nor any Seller Affiliates has made a general assignment
for the benefit of creditors, filed any voluntary petition in bankruptcy,
admitted in writing its inability to pay its debts as they come due or made an
offer of settlement, extension or composition to its creditors generally.  Neither Seller nor any Seller Affiliates has
received any written notice of (a) the filing of an involuntary petition by
Seller’s creditors or the creditors of Seller Affiliates, (b) the appointment
of a receiver to take possession of all, or substantially all, of Seller’s
assets or the assets of Seller Affiliates, or (c) the attachment or other
judicial seizure of all, or substantially all, of Seller’s assets or the assets
of Seller Affiliates.


 


7.1.3                        Foreign Person. 
Neither Seller nor any of the Seller Affiliates is a foreign person
within the meaning of Section 1445(f) of the Internal Revenue Code (“Code”), and Seller agrees to execute and
cause the Seller Affiliates to execute any and all documents necessary or
required by the Internal Revenue Service or Purchaser in connection with such
declaration(s).


 


7.1.4                        No Violation of Laws. 
Except as set forth on Schedule 7.1.4, to Seller’s
knowledge, neither Seller nor Seller Affiliates have received any currently
effective written notice from a governmental authority that the Properties
violate any applicable ordinance of the city or village in which the Properties
are located.


 


7.1.5                        Eminent Domain. 
Except as set forth on Schedule 7.1.5, to Seller’s
knowledge, neither Seller nor Seller Affiliates have received any currently
effective written notice of an eminent domain or condemnation of the Land or
Improvements relating to the Properties.


 


7.1.6                        Hazardous Materials. 
Except as set forth on Schedule 7.1.6, to Seller’s
knowledge, except as set forth in any environmental report provided by Seller
to Purchaser, or as referenced or referred to in Section 17.23, (i)
neither Seller nor Seller Affiliates have received any uncured written notice
from the United States Environmental Protection Agency or the Illinois
Environmental Protection Agency (or any Indiana or Wisconsin agency comparable
to the Illinois Environmental Protection Agency) alleging that the Properties
are in violation of any applicable Environmental Laws or contain any Hazardous
Materials, (ii) since the date of the most recent environmental report, there have been no Hazardous Materials
installed or stored in or otherwise existing at, on, in or under the Properties
in violation of applicable Environmental Laws, and (iii) Seller has acted in
the manner that a commercially prudent property owner would act with respect to
any written recommendations made by Seller’s environmental consultants.  “Hazardous
Materials” shall mean any hazardous, toxic waste, substance or
material, pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Section 9601 et seq.), as amended, or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or any
other federal, state or


 


9





















 


local
laws, ordinances, rules, regulations or policies governing use, storage,
treatment, transportation, manufacture, refinement, handling, production or
disposal of such materials (collectively, “Environmental
Laws”).


 


7.1.7                        Litigation.  Except as set forth on Schedule 7.1.7,
to Seller’s knowledge, (i) neither Seller nor Seller’s Affiliates have
received any currently effective written notice of any pending litigation
affecting the Properties, and (ii) there is no action, suit or proceeding
threatened before or by any judicial, administrative or union body, any
arbitrator or any governmental authority, against or affecting the Properties.


 


7.1.8                        Leases.  Except as set forth on Schedule 7.1.8,
(i) the Rent Roll delivered to Purchaser by Seller lists all of the Leases
affecting the Properties owned by Seller or Seller’s Affiliates, (ii) the
Leases affecting the Properties delivered to Purchaser by Seller are true,
correct and complete copies of the Leases provided to or entered into by Seller
or Seller’s Affiliates relating to the Properties, and (iii) to Seller’s
knowledge, no tenant has commenced any action or given any written notice to
Seller or any Seller Affiliate for the purpose of terminating its lease in
whole or in part, whether by exercise of an express termination right in its
lease or otherwise.


 


7.1.9                        Contracts.  Except as set forth on Schedule 7.1.9,
to Seller’s knowledge, Seller has delivered to Purchaser complete copies of
each Contract provided to or entered into by Seller or Seller Affiliate
relating to the Properties.


 


7.1.10                  Defaults.  Except as set forth on Schedule 7.1.10,
or any other exhibit to this Agreement, (i)
no notice of default has been given by Seller or Seller Affiliates to any
tenant or received by Seller from any tenant under any Lease relating to the
Properties which remains uncured and (ii) no base or additional rent due under
any Lease relating to the Properties is more than thirty (30) days past due.


 


7.1.11                  Operating Statements.  To
Seller’s knowledge, the operating statements relating to the Properties
delivered by Seller to Purchaser in accordance with Section 5.1
hereof are true and correct in all material respects and no material adverse
change has occurred since the respective dates thereof.


 


7.1.12                  Bulk Sale Act. The provisions of Section 9.02(d) of
the Illinois Income Tax Act and the applicable provisions of the Retailer’s
Occupation Tax Act do not apply to this transaction.


 


7.1.13                  REIT REP The Properties consist solely of land, buildings, and other structural
components thereof, and other assets described in Section 856(c)(4)(A) of
the Code.  The total gross revenues
generated by the Properties between January 1, 2003 and the Closing Date
has consisted and will consist solely of income from rents from real property
and other revenue which constitute qualifying income under Section 856(c)(3)
of the Code (“Qualifying Income”),
and based on historical experience, Seller believes that the gross revenues
generated by the Properties after the Closing Date will consist solely of
Qualifying Income.


 


Seller
shall remake all representations and warranties as of the date of the Closing;
provided, however, at the time such warranties and representations are remade,
Seller shall provide Purchaser with updates of the Schedules referred to in the
representations and warranties set forth above and an updated operating
statement.  Purchaser acknowledges and
agrees that the representations and warranties that are made as of the Closing
Date shall refer to the updated Schedules and operating statements.


 


10





















 


7.2                               Intentionally Deleted.


 


7.3                               Knowledge.  For
purposes of this Agreement and any document delivered at Closing, whenever the
phrases “to the best of Seller’s knowledge”, “to the actual knowledge of
Seller” or “to the knowledge” of Seller or words of similar import are used,
they shall be deemed to refer to the current, actual knowledge only, and not
any implied, imputed or constructive knowledge of Michael M. Mullen and James
N. Clewlow, after consultation with the property managers of each Property
owned by Seller (collectively, the “Seller
Property Managers”).  Except
for the obligation to consult with the Seller Property Managers, neither
Michael M. Mullen nor James N. Clewlow shall be obligated to conduct any
independent investigation, and no implied duty to investigate shall be
imputed.  Nothing contained in this
Agreement shall be deemed to impose any personal liability of any kind on any
person named in Section 7.3.


 


For
purposes of this Agreement, and any document delivered at Closing, whenever the
phrase “to the best of Purchaser’s knowledge”, “to the actual knowledge of
Purchaser” or “to the knowledge of Purchaser” or words of similar import are
used, they shall be deemed to refer to the current, actual knowledge only, and
not any implied, imputed or constructive knowledge, of Andrew Martin and Ben
Hindmarsh; provided, however, that nothing in this Agreement shall be deemed to
create or impose any personal liability of any kind on Andrew Martin or Ben
Hindmarsh.


 


7.4                               Change in
Representation/Waiver. 
Notwithstanding anything to the contrary contained herein, Purchaser
acknowledges that Purchaser shall not be entitled to rely on any representation
or warranty made by Seller in this Article VII to the extent, prior
to or at Closing, Purchaser shall have or obtain actual knowledge of any
information that was contradictory to such representation or warranty;
provided, however, if Purchaser determines prior to Closing that there is a breach
of any of the representations and warranties made by Seller above, then
Purchaser may, at its option, by sending to Seller written notice of its
election either (i) exercise its rights under Section 9.9 below if
applicable, (ii) waive such breach and/or conditions and proceed to Closing
with no adjustment in the Purchase Price and in such event Seller shall have no
further liability as to such matter thereafter, or (iii) as its sole remedy,
terminate this Agreement in its entirety in the event of any untruth or
inaccuracy of (x) the representations or warranties set forth in Sections
7.1.1, 7.1.2 or 7.1.3, or (y) the representations and warranties set
forth in the other sections of Article VII, but only if such
representations and warranties were not true or were inaccurate on the
Effective Date and such untruth or inaccuracy is “Material” (defined below).
The term “Material” as used in this Section 7.4 shall mean a
liability or loss reasonably anticipated to arise out of an untruth or
inaccuracy of the representations or warranties set forth in Article VII
which (i) exceeds $500,000.00 for each affected Property, or (ii) results from
fraud or willful misconduct on the part of Seller.  In the event that Purchaser elects to
terminate this Agreement, the parties shall have no liability to each other
hereunder and the Deposit shall be returned to Purchaser and the Seller Letter
of Credit shall be returned to Seller. 
Seller shall have no liability with respect to any of the foregoing
representations and warranties or any representations and warranties made in
any other document executed and delivered by Seller to Purchaser, to the extent
that, prior to the Closing, Purchaser discovers or learns of information (from
whatever source, including, without limitation the property manager, the tenant
estoppel certificates or the Seller’s Estoppel Certificates delivered pursuant
to Section 10.1.1 below, as a result of Purchaser’s due diligence
tests, investigations and inspections of the Property, or disclosure by Seller
or Seller’s agents and employees) that contradicts any such representations and
warranties, or renders any such representations and warranties untrue or
incorrect, and Purchaser nevertheless consummates the transaction contemplated
by this Agreement.


 


7.5                               Post Closing Rights. 
Following Closing, Purchaser will have the right to bring any action
against Seller as a result of any untruth or inaccuracy of representations and
warranties made herein if (i) such untruth or inaccuracy is “Material,” and
(ii) prior to Closing Purchaser did not discover or learn information (from
whatever source) that contradicts any such representations and


 


11





















 


warranties,
or renders any such representations and warranties untrue or incorrect.  The term “Material” as used in this Section 7.5
shall mean a liability or loss reasonably anticipated to arise out of an
untruth or inaccuracy of the representations or warranties set forth in Article VII
which results from fraud or willful misconduct on the part of Seller or exceeds
$500,000 for each such affected Property, it being understood that the
foregoing limitation is a threshold which must be exceeded, but that once such
threshold has been exceeded, any post closing claim may be pursued for its full
value.  In addition, in no event will
Seller’s liability for all such breaches relating to a specific Property,
exceed, in the aggregate, the allocated Purchase Price of the Property in
question, calculated in accordance with Schedule 9.8.


 


7.6                               Survival.  The
express representations and warranties made in this Agreement shall not merge
into any instrument or conveyance delivered at the Closing; provided, however,
that any action, suit or proceeding with respect to the truth, accuracy or completeness
of representations and warranties set forth in Sections other than Sections
7.1.1, 7.1.2 and 7.1.3 shall be commenced, if at all, on or
before the date which is twelve (12) months after the date of a Closing and, if
not commenced on or before such date, thereafter such representations and
warranties shall be void and of no force or effect as to the applicable
Closing.


 


ARTICLE VIII


Representations and Warranties of Purchaser


 


8.1                               Purchaser represents and warrants to Seller
that the following matters are true and correct as of the Effective Date.


 


8.1.1                        Authority.  Purchaser is a limited
liability company, duly organized, validly existing and in good standing under
the laws of the State of Delaware.  This
Agreement has been duly authorized, executed and delivered by Purchaser, is the
legal, valid and binding obligation of Purchaser, and does not violate any
provision of any agreement or judicial order to which Purchaser is a party or
to which Purchaser is subject.  All
documents to be executed by Purchaser which are to be delivered at Closing,
will, at the time of Closing, (i) be duly authorized, executed and delivered by
Purchaser, (ii) be legal, valid and binding obligations of Purchaser, and (iii)
not violate any provision of any agreement or judicial order to which Purchaser
is a party or to which Purchaser is subject.


 


8.1.2                        Bankruptcy or Debt of Purchaser. 
Purchaser has not made a general assignment for the benefit of
creditors, filed any voluntary petition in bankruptcy, admitted in writing its
inability to pay its debts as they come due or made an offer of settlement,
extension or composition to its creditors generally.  Purchaser has received no written notice of
(a) the filing of an involuntary petition by Purchaser’s creditors, (b) the
appointment of a receiver to take possession of all, or substantially all, of
Purchaser’s assets, or (c) the attachment or other judicial seizure of all, or
substantially all, of Purchaser’s assets.


 


8.1.3                        No Financing Contingency.  It
is expressly acknowledged by Purchaser that this transaction is not subject to
any financing contingency, and no financing for this transaction shall be
provided by Seller.


 


8.2                               Purchaser’s Acknowledgment. 
Purchaser acknowledges and agrees that, except as expressly provided in
this Agreement, Seller has not made, does not make and specifically disclaims
any and all representations, warranties, promises, covenants, agreements or
guaranties of any kind or character whatsoever, whether express or implied,
oral or written, past, present or future, including, but not limited to those
representations, warranties, promises, covenants, agreement and guaranties of,
as to, concerning or with respect to (a) the nature, quality or condition of
the Properties, including, without limitation, the water, soil and geology, (b)
the income to be derived from the Properties, (c) the suitability of the
Properties for any and all activities and uses which


 


12





















 


Purchaser
may conduct thereon, (d) the compliance of or by the Properties or its
operation with any laws, rules, ordinances or regulations of any applicable
governmental authority or body, including, without limitation, the Americans
with Disabilities Act and any rules and regulations promulgated thereunder or
in connection therewith, (e) the habitability, merchantability or fitness for a
particular purpose of the Properties, or (f) any other matter with respect to
the Properties, and specifically that except as expressly provided in this
Agreement, Seller has not made, does not make and specifically disclaims any
representations regarding solid waste, as defined by the U.S. Environmental
Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or
existence, in or on the Properties, of any hazardous substance, as defined by
the Comprehensive Environmental Response Compensation and Liability Act of
1980, as amended, and applicable state laws, and regulations promulgated
thereunder.  Purchaser further acknowledges
and agrees that, except as expressly provided in this Agreement, having been
given the opportunity to inspect the Properties, Purchaser is relying solely on
its own investigation of the Properties and not on any information provided or
to be provided by Seller.  Purchaser
further acknowledges and agrees that subject to the representations and
warranties of Seller as provided herein and in any other document executed at
Closing, any information provided or to be provided with respect to the
Properties was obtained from a variety of sources and that Seller has not made
any independent investigation or verification of such information.  Purchaser
further acknowledges and agrees that, as a material inducement to the execution
and delivery of this Agreement by Seller, subject to the representations and
warranties of Seller provided herein and in any other document executed at
Closing, the sale of the Properties as provided for herein is made on an “AS
IS, WHERE IS” CONDITION AND BASIS “WITH ALL FAULTS.”  Purchaser acknowledges, represents
and warrants that Purchaser is not in a significantly disparate bargaining
position with respect to Seller in connection with the transaction contemplated
by this Agreement; that Purchaser freely and fairly agreed to this
acknowledgment as part of the negotiations for the transaction contemplated by
this Agreement; that Purchaser is represented by legal counsel in connection
with this transaction.


 


8.3                               Purchaser’s Release. 
Effective as of the date of the Closing, Purchaser on behalf of itself
and its successors and assigns waives its right to recover from, and forever
releases and discharges, Seller, Seller’s affiliates, Seller’s investment
manager, property manager, the partners, trustees, shareholders, beneficiaries,
directors, officers, employees, attorneys and agents of each of them, and their
respective heirs, successors, personal representatives and assigns from any and
all demands, claims, legal or administrative proceedings, losses, liabilities,
damages, penalties, causes of action, fines, liens, judgments, costs and
expenses known or unknown, foreseen or unforeseen, that may arise on account of
or in any way be connected with the Properties, except, subject to Section 7.5
hereof, such as arises out of (i) a breach of any of the representations and
warranties of Seller set forth in Article VII and (ii) any of the
provisions of this Agreement that survive Closing pursuant to the provisions of
Section 17.12 below.  The
terms and provisions of this Section 8.3 shall survive Closing
and/or termination of this Agreement without limitation.


 


8.4                               Survival.  The
express representations and warranties made in this Agreement by Purchaser
shall not merge into any instrument of conveyance delivered at the Closing;
provided, however, that any action, suit or proceeding with respect to the
truth, accuracy or completeness of all such representations and warranties
shall be commenced, if at all, on or before the date which is twelve (12)
months after the date of the Closing and, if not commenced on or before such
date, thereafter shall be void and of no force or effect as to the applicable
Closing.


 


ARTICLE IX


Seller’s Interim Operating Covenants/Seller’s and Purchaser’s
Covenants


 


9.1                               Operations. 
Seller agrees to continue to operate, manage and maintain the
Improvements through the Closing Date in the ordinary course of Seller’s
business and substantially in accordance with Seller’s present practice,
subject to ordinary wear and tear and further subject to


 


13





















 


Article XII of this Agreement.  As of, and at all times after the Effective
Date until Closing, Seller shall name Purchaser as an additional insured on all
liability insurance policies maintained by Seller relating to the Properties.


 


9.2                               No Sales.  Except for the execution of tenant Leases pursuant to Section 9.3,
Seller agrees that it shall not convey any interest in the Properties to any
third party.


 


9.3                               Tenant Leases.  From and after the Effective Date, Seller shall not (i) grant any
consent or waive any material rights under the Leases, (ii) terminate any
Lease, or (iii) enter into a new lease, modify an existing Lease or renew,
extend or expand an existing Lease in any material respect without the prior
written approval of Purchaser (an “Approved
New Lease”), which in each case shall not be unreasonably withheld,
conditioned or delayed.  Any Approved New
Lease shall meet all of the following parameters: (i) such proposed lease has
an initial term (excluding any options to extend such term) of not less than
three (3) years and not more than ten (10) years; (ii) such proposed lease has
no free-rent period extending beyond the term of the Master Lease (defined
below); (iii) such proposed lease has no above-market obligation of Purchaser
to provide or fund any tenant improvements; (iv) such proposed lease provides
for base rent payable at a rate per month that is never less than 95% of the
base rent per month required to be paid for such space under the Master Lease;
(v) leasing commissions for such proposed lease do not exceed market rates;
(vi) such proposed lease does not require the landlord thereunder, and will not
result in an obligation for the landlord thereunder to alter or improve or pay
for the altering or improving of the building (other than tenant improvements
as limited by clause (iii) above and responsibility for repairing and replacing
the roof and structure, but excluding the obligation for internal wall
changes); (vii) such lease shall be on the form customarily used by Seller with
such revisions which Seller approves using its judgment as a commercially
prudent landlord; (viii) the creditworthiness of the tenant and intended use of
the premises by the tenant shall be consistent with Seller’s historical and
customary requirements as a commercially prudent landlord; and (ix) the income
to be generated from the proposed lease shall constitute qualifying income
under Section 856(c)(3) of the Code. Additionally, the parties expressly
agree that it shall not be deemed unreasonable for Purchaser to withhold, condition
or delay its consent to any Approved New Lease that includes above-market
tenant improvements, above-market leasing commissions or any other above-market
leasing costs that Purchaser would be obligated to pay or incur; provided,
however, in such event, Purchaser and Seller agree to negotiate in good faith
to agree upon such tenant improvement costs, leasing commission and other
leasing costs to render such Approved New Lease and the terms thereof
acceptable to Purchaser.  Any lease
proposed by Seller, which satisfies the criteria set forth in this Section 9.3
and would otherwise be reasonably acceptable to Purchaser, but for the fact
that such lease includes above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs, may, nonetheless, be
approved and executed by Seller, in its sole and absolute discretion, and in
such event such proposed lease shall be deemed an Approved New Lease, provided
that Seller pays all such above-market tenant improvements, above-market
leasing commissions or any other above-market leasing costs.  Purchaser’s failure to respond within five
(5) Business Days after receipt of a request for approval, together with a copy
of the proposed Approved New Lease or letter of intent to lease and credit
information on the proposed replacement tenant or tenants, shall be deemed
approval by Purchaser. Seller shall pay the portion of the tenant improvement
costs, leasing commissions and other usual and customary leasing costs with
respect to any Approved New Lease, allocated on a prorata basis over the term
of the Approved New Lease with respect to the portion of the term of the
Approved New Lease prior to a Closing and Purchaser shall pay the portion of
the tenant improvement costs, lease commissions and other usual and customary
leasing costs with respect to an Approved New Lease, allocated on a prorata
basis over the term of the Approved New Lease with respect to the portion of
the term of the Approved New Lease after the Closing.


 


9.4.                            Planned Expenditures. 
Seller shall effect and complete the planned expenditures for nominated
work and items in accordance with the description and budget set forth on Exhibit R


 


14





















 


attached
hereto as a prudent manager/owner in consultation with Purchaser, and to
Purchaser’s commercially reasonable satisfaction; in the event that upon
completion of such work and items,  the
total cost of such work is less than the total budget allocated for same,
Seller shall be entitled to retain all such unexpended amounts.  In the event that Exhibit R reflects that certain work is
to be performed after Closing, the obligations of Seller under this Section 9.4
with respect to that work shall survive Closing.


 


9.5                               Master Lease.  At the
Closing, Seller and Purchaser shall execute and deliver to each other a master
lease (“Master Lease”) in the form
of Exhibit H attached
hereto.


 


9.6                               Management Agreement.  At
the Closing, Seller and Purchaser shall
execute an Amendment to the Property Management Agreement between Purchaser and
CenterPoint Properties Trust adding the Properties to the definition of
“Properties” under such Management Agreement.  Seller shall terminate any existing property
management agreements pertaining to the Properties as of the Closing Date.


 


9.7                               Intentionally Deleted.


 


9.8                               Transfer Tax Declaration
Allocation.  Purchaser and Seller agree that the Purchase
Price shall be allocated amongst the Properties as set forth on Schedule 9.8
for the purpose of completing real estate transfer declarations to be executed
by Seller and Purchaser at Closing (the “Transfer
Tax Declaration Allocation”).


 


9.9                               Substitution of Properties


 


9.9.1                        In the event of the occurrence of a
Substitution Event (defined below) prior to Closing, Purchaser may, at its
option, by written notice to Seller (“Event
Notice”) within ten (10) days after the date on which Purchaser is
given or obtains actual knowledge of the occurrence of a Substitution Event,
elect to either (i) ignore the Substitution Event and proceed to Closing with
no adjustment in the Purchase Price, or (ii) request that Seller offer a
Substitute Property or Substitute Properties (both as hereinafter defined) to
Purchaser valued in the aggregate amount of the Purchase Price allocated to the
Property or Properties (“Removed Property”
or “Removed Properties”) subject
to the Substitution Event.


 


In the event that Purchaser elects under (ii) above to have Seller
provide a Substitute Property or Substitute Properties, Seller, if it chooses
to do so, in its sole and absolute discretion, shall have a period of thirty
(30) days from the date of Purchaser’s Event Notice to correct the condition
giving rise to the Substitution Event, and further, provided, however, if such
condition is of a nature which is not capable of cure within said thirty (30)
day period and Seller has commenced to cure within such thirty (30) day period,
then Seller shall have such reasonable period of time from and after the date
of Purchaser’s Event Notice to correct the condition giving rise to the
Substitution Event.  In the event
Purchaser exercises its rights under (ii) above, and Seller elects to and cures
the condition giving rise to the Substitution Event prior to the time that the
Closing with respect to the Substitute Property occurs, the Scheduled Closing
Date for the Removed Property shall be extended to the fifteenth (15th)
day after the condition giving rise to the Substitution Event has been cured.


 


In the event that Purchaser fails to elect (i) or (ii) above within ten
(10) days after Purchaser is given or obtains actual knowledge of a
Substitution Event, Purchaser shall be deemed to have elected to waive such
condition and proceed to Closing on the Closing Date with no adjustment in the
Purchase Price.  In the event that within
said ten (10) day period Purchaser elects its rights under (ii) above and
Seller elects not to cure or elects to cure the


 


15





















 


condition
but fails to do so within the time period set forth above, Seller shall use
reasonable efforts to provide a Substitute Property or Substitute Properties as
described in Section 9.9.2. 
Notwithstanding any other term or condition contained herein, (i) in no
event shall the Closing with respect to the Properties which are not subject to
a Substitution Event be delayed, and (ii) in the event of the occurrence of a
Substitution Event, Seller shall not be in default under this Agreement, Seller
shall not be liable for damages and Purchaser’s sole right and remedy shall be
to exercise its rights under this Section 9.9.1.


 


The term “Substitution Event”
shall mean any one or more of the following: (i) written notice to Purchaser
that a tenant under its lease (“Right of
First Refusal Lease”)  has
exercised a right of first refusal, right of first offer or option to purchase
a Property prior to Closing pursuant to the existing terms of its lease, (ii)
the taking of one hundred percent (100%) of a Property by condemnation or
eminent domain or (iii) any one or more of the following, to the extent the
existence of the condition hereinafter described has a “Material Adverse
Effect” on the use, value or marketability of the applicable Property: (a) the
existence of a title exception other than a Permitted Exception on an Owner’s Policy
to be issued by the Title Company at the time of the Closing; provided, however
that Seller shall, at Seller’s expense, use reasonable efforts to obtain a
title insurance endorsement to the Owner’s Policy (defined below) insuring over
any unpermitted title exception, (b) the existence of a difference on a Survey
not reflected on the Initial Surveys; (c) if Purchaser has not been provided
with a copy of a zoning endorsement issued by the Title Company with respect to
any Properties (whether in favor of Seller or Purchaser) prior to the Effective
Date and it is determined that the present use of the Property is not permitted
under the zoning ordinance in effect on the Effective Date; (d) the physical or
environmental condition of the Properties are not the same as on the Effective
Date, ordinary wear and tear and damage by casualty excepted, provided,
however, that under this subsection (d) it shall not be a Substitution
Event if a tenant of the Property is responsible under its lease for
maintaining, repairing or restoring the physical or environmental condition in
question; and (e) the existence of a breach of a warranty or representation
made by Seller under Sections 7.1.4, 7.1.6, 7.1.7 and 7.1.9 of
this Agreement (or any change in the schedules thereto).  The term “Material
Adverse Effect” as used herein shall mean that a liability or loss
reasonably anticipated to arise out of the condition under (a) Sections
9.9.1(iii)(a) or (b) which exceeds $150,000.00 for the affected
Property, or (b) under Sections 9.9.1iii(c), (d) or (e) which
exceeds seven and one-half percent (7.5%) of the Purchase Price for the
affected Property.


 


9.9.2                        In the event of the occurrence of a
Substitution Event (and notwithstanding any election by Seller to attempt to
cure the condition giving rise to the Substitution Event), Seller shall use
reasonable efforts to substitute another Property or Properties owned by Seller
that the parties mutually agree in their reasonable opinion is comparable
(individually, a “Substitute Property”
and collectively, the “Substitute Properties”).  Seller shall use reasonable efforts to
identify a Substitute Property within thirty (30) days after receipt of an
Event Notice.  Commencing on the date
that Purchaser receives a notice from Seller identifying a Substitute Property
or Substitute Properties to replace a Removed Property or Removed Properties (“Substitution of Assets Notice”), and
continuing until 5:00 p.m. Central time on the thirtieth (30th) day
thereafter (“Substitute Properties
Feasibility Period”), Purchaser and its agents shall have the right
to conduct inspections and tests of the Substitute Properties in the manner
hereby provided in Section 9.9.5 and subject to the provisions as
provided in Section 9.9.6. 
In the event that Purchaser approves all of the Substitute Properties
prior to the expiration of the Substitute Properties Feasibility Period, all of
the Substitute Properties shall be subject to this Agreement, and the Purchase
Price shall be adjusted as provided below in Section 9.9.3.  In the event that Purchaser does not approve
one or more of the Substitute Properties prior to the expiration of the
Substitute Properties Feasibility Period, the Substitute Property or Properties
not approved by Purchaser and the Removed Property or Removed Properties shall
not be subject to this


 


16





















 


Agreement,
and the Purchase Price shall be reduced by the value of the Removed Property or
Removed Properties, as the case may be, as set forth on Schedule 9.8.  All Substitute Properties approved by
Purchaser shall be deemed to be Properties subject to this Agreement, except
that all warranties and representations shall be modified to reflect the
circumstances relating to the Substitute Properties.  Within fifteen (15) days after the
Substitution of Assets Notice, Seller shall deliver Schedules similar to those
attached hereto as Schedules 7.1.4, 7.1.5, 7.1.6, 7.1.7, 7.1.8, 7.1.9 and
7.1.10, with respect to the Substitute Properties.


 


9.9.3                        For the purposes of this Section 9.9,
the purchase price for a Removed Property shall be based on Schedule 9.8
attached hereto, and the purchase price for a Substitute Property shall be
calculated using a capitalization rate equal to the capitalization rate that
was used to determine the Purchase Price of the Removed Property and the annual
net rent of the Substitute Property, without deductions (“Substitute Property Purchase Price”).  In the event that the Seller delivers the
Substitution of Assets Notice to Purchaser within the time frame set forth
above, the Closing of all Properties not subject to the Substitution of Assets
Notice shall take place on the date of the Scheduled Closing Date.  Subject to the right of Purchaser to disapprove
one or more of the Substitute Properties during the Substitute Properties
Feasibility Period, and further subject to the provisions of Section 4.1
above, the Closing with respect to each Substitute Property shall take place on
the thirtieth (30th) day following the expiration of the applicable
Substitute Property Feasibility Period.


 


9.9.4                        Seller shall deliver to Purchaser copies of
all notices sent by Seller to tenants under Right of First Refusal Leases as
required under the Right of First Refusal Leases, and shall notify Purchaser
promptly if it receives a notice from an Exercising Tenant.


 


9.9.5                        During the Substitute Properties Feasibility
Period, Purchaser and its agents shall have the right during business hours
(with reasonable advance notice to Seller and subject to the rights of the tenants
in possession), at Purchaser’s sole cost and expense and at Purchaser’s and its
agents’ sole risk, to perform inspections and tests of the Substitute
Properties and to perform such other analyses, inquiries and investigations as
Purchaser shall deem reasonably necessary or appropriate; provided, however,
that in no event shall (i) such inspections or tests unreasonably disrupt or
disturb the on-going operation of the Substitute Properties or the rights of
the tenants at the Substitute Properties, or (ii) Purchaser or its agents or
representatives conduct any physical testing, drilling, boring, sampling or
removal of, on or through the surface of the Substitute Properties (or any part
or portion thereof) including, without limitation, any ground borings or
invasive testing of the Improvements (collectively, “Physical Testing”), without Seller’s prior written consent,
which consent may be given or withheld in Seller’s sole and absolute
discretion.  Seller acknowledges and
agrees that the performance of a phase I environmental assessment on behalf of
Purchaser (“Phase I Assessments”)
shall not be considered Physical Testing for purposes hereof and shall be
permitted without Purchaser obtaining the consent of Seller.  In the event Purchaser desires to conduct any
such Physical Testing of a Substitute Property, then Purchaser shall submit to
Seller, for Seller’s approval, a written detailed description of the scope and
extent of the proposed Physical Testing, which approval may be given or
withheld in Seller’s sole and absolute discretion.  In no event shall Seller be obligated as a
condition of this transaction to perform or pay for any environmental
remediation of the Substitute Properties recommended by any such Physical
Testing.  After making such tests and
inspections, Purchaser agrees to promptly restore the Substitute Properties to
their condition prior to such tests and inspections (which obligation shall
survive the Closing or any termination of this Agreement).  In addition to the rights available to the
Purchaser during the Substitute Properties Feasibility Period, as set forth
above, Purchaser and its agents shall have access to the Substitute Properties
prior to the Closing


 


17





















 


Date,
but during normal business hours (with reasonable advance notice to Seller and
subject to the rights of the tenants in possession), at Purchaser’s sole cost
and expense, and at Purchaser’s and its agents’ sole risk, to inspect the
applicable Substitute Properties; provided, however, Purchaser shall not be
entitled to conduct any Physical Testing or any Phase I Assessment after the
expiration of the Substitute Properties Feasibility Period.  Prior to Purchaser entering the Substitute Properties
to conduct the inspections and tests described above, including, but not
limited to, the Phase I Assessments, Purchaser shall obtain and maintain, at
Purchaser’s sole cost and expense, and shall deliver to Seller evidence of, the
following insurance coverage, and shall cause each of its agents and
contractors to obtain and maintain, and, upon request of Seller, shall deliver
to Seller evidence of, the following insurance coverage:  general liability insurance, from an insurer
reasonably acceptable to Seller, in the amount of Five Million and No/100
Dollars ($5,000,000.00) combined single limit for personal injury and property
damage per occurrence, such policy to name Seller as an additional insured
party, which insurance shall provide coverage against any claim for personal
liability or property damage caused by Purchaser or its agents, employees or
contractors in connection with such inspections and tests (“Due Diligence Insurance”).  Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its
agents do not unreasonably interfere with Purchaser’s inspection.


 


9.9.6                        Purchaser and its agents and representatives
shall:  (a) not unreasonably disturb the
tenants of the Substitute Properties or interfere with their use of the
Substitute Properties pursuant to their respective Leases; (b) not interfere
with the operation and maintenance of the Substitute Properties; (c) not damage
any part of the Substitute Properties or any personal property owned or held by
any tenant; (d) not injure or otherwise cause bodily harm to Seller, its
agents, contractors and employees or any tenant; (e) promptly pay when due the
costs of all tests, investigations and examinations done with regard to the
Substitute Properties; (f) not permit any liens to attach to the
Substitute Properties by reason of the exercise of its rights hereunder; (g)
restore the Improvements and the surface of the Substitute Properties to the
condition in which the same was found before any such inspection or tests were
undertaken; and (h) except to the extent required by applicable laws, not
reveal or disclose any information obtained pursuant to its right to evaluate
set forth in Section 9.9.5 above concerning the Substitute
Properties to anyone other than a Purchaser Party/Representative.  Purchaser shall, at its sole cost and
expense, comply with all applicable federal, state and local laws, statutes,
rules, regulations, ordinances or policies in conducting its inspection of the
Substitute Properties, the Purchaser’s Phase I Assessments and the Physical
Testing.  Purchaser shall, and does
hereby agree to indemnify, defend and hold the Seller, its partners, members,
officers, directors, employees, agents, attorneys and their respective
successors and assigns, harmless from and against any and all claims, demands,
suits, obligations, payments, damages, losses, penalties, liabilities, costs
and expenses (including but not limited to attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Substitute
Properties in the exercise of the inspection right granted pursuant to Section 9.9.5,
including, without limitation, (i) claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use or damage to its premises or property in connection with
Purchaser’s review of the Substitute Properties, and (ii) Purchaser’s
obligations pursuant to this Section 9.9.6.  This Section 9.9.6 shall survive
the Closing of the Substitute Properties and/or any termination of this
Agreement without limitation.


 


9.9.7                        With respect to the Substitute Properties,
Seller shall deliver to Purchaser or make available at the applicable
Substitute Property or Seller’s office in Oak Brook, Illinois, at Seller’s
option, the following: operating statements, leases, reports relating to the
physical


 


18





















 


and/or
environmental condition of the applicable Substitute Properties, a statement of
the estimated value of the applicable Substitute Properties from an independent
industrial real estate broker with at least ten (10) years experience in the
marketplace (which value shall not be binding on Seller or Purchaser), rent
rolls and revenue and expense statements, Seller and Purchaser shall use
reasonable efforts to agree upon the format and scope of such materials, but
agree that the format and scope shall be similar to the materials typically
provided by Seller to Purchaser in connection with the sale of the Properties
in accordance with Section 5.1 hereof (the “Substitute Property Documents”); provided,
however, that except for the representations and warranties made in Article VII
hereof, Seller makes no representations or warranties of any kind regarding the
accuracy, thoroughness or completeness of or conclusions drawn in the
information contained in such Substitute Properties Documents.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Notwithstanding anything contained in the preceding sentence, Seller
shall not deliver or make available to Purchaser Seller’s internal memoranda,
attorney-client privileged materials, internal appraisals and economic
evaluations of the Substitute Properties, and reports regarding the Substitute
Properties prepared by Seller or its affiliates solely for internal use or for
the information of the investors in Seller. 
Purchaser acknowledges that any and all of the Substitute Properties
Documents that are not otherwise known by or available to the public are
proprietary and confidential in nature and will be delivered to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the Substitute
Properties.  Purchaser agrees not to
disclose such non-public documents, or any of the provisions, terms or
conditions thereof, to any party other than a Purchaser Party/Representative.  Purchaser shall return all of the Substitute
Properties Documents, on or before three (3) Business Days after the first to
occur of (a) such time as Purchaser notifies Seller in writing that it shall
not acquire the Substitute Properties, or (b) such time as this Agreement is
terminated for any reason.  This Section 9.9.7
shall survive any termination of this Agreement without limitation.


 


9.9.8                        Purchaser hereby acknowledges that it will
have been given, prior to the termination of the Substitute Properties
Feasibility Period, a full, complete and adequate opportunity to make such
legal, factual and other determinations, analyses, inquiries and investigations
as Purchaser deems necessary or appropriate in connection with the acquisition
of the Substitute Properties.  Purchaser
will be relying upon its own independent examination of the Substitute
Properties and all matters relating thereto and not upon any statements of
Seller (excluding the limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Substitute Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser relating to the Substitute Properties.  The provisions of this Section 9.9.8
shall survive Closing and/or termination of this Agreement without limitation.


 


9.10                        Contracts. 
Seller shall not, with respect to a Contract that will survive Closing,
from and after the Effective Date, terminate an existing Contract, enter into a
new Contract or modify an existing Contract without the prior written approval
of Purchaser, which consent in each case shall not be unreasonably conditioned,
withheld or delayed and which shall be deemed granted if Purchaser fails to
respond to a request for approval within five (5) Business Days after receipt
of the request therefor together with a summary of the terms of the Contract
(an “Approved New Contract”).  Schedule 9.10 attached hereto
contains a list of Contracts for the Properties that Purchaser will assume as
of the Closing, and a list of Contracts for the Properties that Purchaser is
requesting Seller to terminate as of the Closing (the “Unassumed Contracts”).  Provided that the


 


19





















 


Closing
occurs hereunder, Seller shall terminate such applicable Unassumed Contracts
effective as of the Closing Date and deliver evidence at such Closing of such
termination.


 


9.11                        Intentionally Deleted.


 


9.12                        REA Estoppels. 
Attached hereto as Schedule 9.12 is a list of REA and other
Property-related estoppels that Purchaser would like to obtain prior to Closing
(collectively, the “REA Estoppels”).  Purchaser shall prepare and deliver to Seller
REA Estoppel Certificates for each of the REA Estoppels (the “REA Estoppel Certificates”), and Seller
shall send out the REA Estoppel Certificates for execution prior to the Closing
Date, it being understood that obtaining the REA Estoppel Certificates shall
not be a condition to Purchaser’s obligation to close.


 


ARTICLE X


Closing Conditions


 


10.1                        Conditions to Obligations of
Purchaser.  The obligations of Purchaser under this
Agreement to purchase the Properties and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Scheduled Closing Date, except to the extent that
any of such conditions may be waived by Purchaser in writing at Closing.


 


10.1.1                  Tenant Estoppels. 
Purchaser shall have received tenant estoppel certificates dated not
more than thirty (30) days prior to the Closing from seventy-five percent (75%)
of the occupied square footage in the Properties.  Seller agrees to deliver to each tenant a
tenant estoppel certificate substantially in the form attached hereto as Exhibit K.  Notwithstanding the foregoing, in the event
that a Lease requires a different form of estoppel certificate or requires
specific provisions, Purchaser shall be required to accept a tenant estoppel
certificate that is substantially in the form required by said Lease or
substantially in the form of Exhibit K
as modified to comply with the specific provisions required by said Lease.  Additionally, Purchaser acknowledges that
while the statements set forth in paragraphs 8 and 9 of Exhibit K are not qualified to the
knowledge or best knowledge of the tenant, Purchaser shall be required to
accept any tenant estoppel certificate that has been qualified to the knowledge
or best knowledge of the tenant with respect to said paragraphs.  Notwithstanding the foregoing, at Seller’s
sole option, Seller may (i) extend the Scheduled Closing Date solely with
respect to up to five (5) of the Properties for up to an additional thirty (30)
days in order to satisfy the foregoing requirement for such Properties, in
which event Seller shall deliver notice of such extension with respect to such
Properties to Purchaser prior to the Scheduled Closing Date (and the Closing
shall proceed as scheduled with respect to all other Properties), and/or (ii)
provide its own estoppel (“Seller’s Estoppel”)
in the form attached as Exhibit L
to Purchaser in satisfaction of the foregoing requirements with respect to not
more than twenty-five percent (25%) of the occupied square footage of the
Properties.  In the event that Seller has
not complied with the provisions of this Section 10.1.1, Purchaser
may (i) elect to consummate the Closing, or (ii) notify Seller of its intent to
terminate this Agreement by written notice (the “Tenant Estoppel Termination Notice”) on or before the
Scheduled Closing Date.  In the event
that, after the Closing, Seller delivers to Purchaser a tenant estoppel
certificate from a tenant for whom Seller executed a Seller’s Estoppel at the
Closing and such tenant estoppel certificate contains no information which is
contradictory to or inconsistent with the information contained in the Seller’s
Estoppel, then Seller thereafter shall be released from all liability relating
to Seller’s Estoppel with respect to such tenant’s Lease.  In no event shall Seller be obligated to
deliver updates to the tenant estoppel certificate or Seller’s Estoppel.


 


20





















 


10.1.2                  Title Policy.  The
Title Company shall be prepared to issue to Purchaser on the Closing Date an
extended coverage ALTA Form B policy of title insurance, amended October 17,
1970 (the “Owner’s Policy”), or
equivalent form Owner’s Policy acceptable to Purchaser, with respect to each
Property in the Properties, in the face amount of the applicable Purchase Price
attributable to such Property, and dated as of the Closing Date, indicating
title to such Property is vested of record in Purchaser, subject solely to the
applicable Permitted Exceptions.


 


10.1.3                  Possession of the Property. 
Delivery by Seller of possession of the applicable Property, subject to
the Permitted Exceptions and the rights of tenants under the applicable Leases
and Approved New Leases.


 


ARTICLE XI


Closing


 


11.1                        Purchaser’s Closing
Obligations.  Purchaser, at its sole cost and expense,
shall deliver or cause to be delivered to Seller and the Title Company at each
Closing the following, as same relates to the Properties:


 


11.1.1                  The applicable portion of the Purchase Price,
after all adjustments are made at the Closing as herein provided, by wire
transfer or other immediately available federal funds, which amount shall be
received in escrow by the Title Company at or before 11:00 a.m. Central time.


 


11.1.2                  An assumption of a blanket conveyance and
bill of sale, substantially in the form attached hereto as Exhibit M (“General Assignment”), duly executed by Purchaser, conveying
and assigning to Purchaser the applicable Personal Property, Leases, Contracts,
records and plans, and Intangible Property.


 


11.1.3                  Executed counterparts of the Master Lease and
the Amendment to Management Agreement with respect to the Closing, and such
other documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.1.4                  Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings, if requested by the Title Company.


 


11.2                        Seller’s Closing Obligations. 
Seller, at its sole cost and expense, shall deliver or cause to be
delivered to Purchaser and the Title Company the following, as same relates to
each of the Properties and the Properties, as the case may be:


 


11.2.1                  A Special warranty deed (a “Deed”) in recordable form properly executed
by Seller conveying to Purchaser the Land and Improvements in fee simple,
subject only to the Permitted Exceptions, substantially in the form attached
hereto as Exhibit N (as
modified in order to satisfy any State-specific requirements with respect to
the States of Indiana and Wisconsin, if applicable).


 


11.2.2                  A General Assignment, duly executed by
Seller, conveying and assigning to Purchaser the Personal Property, the Leases,
the Contracts and the Intangible Property.


 


11.2.3                  Written notice to the tenant(s) (i)
acknowledging the sale of the Property to Purchaser, (ii) acknowledging that
Purchaser has received and is responsible for any


 


21





















 


security
deposits identified in the rent roll, and (iii) indicating that rent should
thereafter be paid to Purchaser, substantially in the form attached hereto as Exhibit O.


 


11.2.4                  A certificate substantially in the form
attached hereto as Exhibit P
(“Non-foreign Entity Certification”)
certifying that Seller is not a “foreign person” as defined in the Code.


 


11.2.5                  Executed counterparts of the Master Lease and
the Amendment to Management Agreement with respect to the Closing, and such
other documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.2.6                  Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings.


 


11.2.7                  Purchaser and Seller have agreed that
possession (but not ownership) of all original Leases, tenant files and
Contracts shall remain with Seller following Closing, in its capacity as
Property Manager but that ownership of such items shall pass to Purchaser.  Any duplicate originals of Leases and
Contracts in Seller’s possession or control shall be delivered to Purchaser
promptly after Closing.


 


11.2.8                  All REA Estoppel Certificates received by
Seller, if any.


 


11.2.9                  A certificate of Seller by which Seller
reaffirms the truth and accuracy in all material respects of the
representations and warranties set forth in Sections 7.1 above, subject
to and setting forth any changes thereto occurring since the Effective Date.


 


11.2.10  Reliance letters with respect to and
permitting Purchaser to rely on the most recent Phase 1 environmental reports
provided by Seller to Purchaser from the consultant who prepared the applicable
environmental report.


 


11.3                        Joint Closing Obligations.  Purchaser and Seller shall execute
and deliver a closing statement for each of the Properties setting forth the
applicable Purchase Price, and any and all prorations and credits between the
parties, as determined pursuant to this Agreement, together with real estate
transfer tax declarations as required.


 


ARTICLE XII


Risk of Loss


 


12.1                        Condemnation and Casualty.  If,
prior to the Closing Date, any portion of the applicable Properties are taken
by condemnation or eminent domain, or is the subject of a pending taking which
has not been consummated, or is destroyed or damaged by fire or other casualty,
Seller shall notify Purchaser of such fact promptly after Seller obtains
knowledge thereof.  If such condemnation
or casualty is “Material” (as
hereinafter defined), Purchaser shall have the option to either (i) extend the
Scheduled Closing Date solely with respect to the applicable Property for a
time reasonably required by Seller to repair any damage or destruction with respect
to the applicable Property (and the Scheduled Closing Date shall proceed as
scheduled with respect to all other Properties), or (ii) proceed to Closing in
accordance with the terms of Section 12.1. If Purchaser elects to
proceed to Closing, then Seller shall not be obligated to repair any damage or
destruction with respect to the applicable Property, but (x) Seller shall
assign, without recourse, and turn over to Purchaser all of the insurance
proceeds or condemnation proceeds, as applicable, net of any costs of repairs
and net of reasonable collection costs (or, if such have not been awarded, all
of its right, title and interest therein) payable with respect to such fire or
other casualty or condemnation including any rent abatement insurance for such
casualty or condemnation and (y) the parties shall


 


22





















 


proceed
to Closing pursuant to the terms hereof without abatement of the Purchase Price
except for a credit in the amount of the applicable insurance deductible.


 


12.2                        Condemnation Not Material.  If
the condemnation is not Material, then the Closing shall occur without
abatement of the Purchase Price and, after deducting Seller’s reasonable costs
and expenses incurred in collecting any award, Seller shall assign, without
recourse, all awards or any rights to collect awards to Purchaser on the
Closing Date.


 


12.3                        Casualty Not Material.  If
the Casualty is not Material, then the Closing shall occur without abatement of
the Purchase Price except for a credit in the amount of the applicable
deductible and Seller shall not be obligated to repair such damage or
destruction and Seller shall assign, without recourse, and turn over to
Purchaser all of the insurance proceeds net of any costs of repairs completed to
date and net of reasonable collection costs (or, if such have not been awarded,
all of its right, title and interest therein) payable with respect to such fire
or such casualty including any rent abatement insurance for such casualty.


 


12.4                        Materiality.  For
purposes of this Article XII, (i) with respect to a taking by
condemnation or eminent domain, the term “Material”
shall mean any condemnation or taking which would materially impede access to a
Property, reduce available parking at a Property below that required by
applicable law or any other agreement affecting such Property, result in the
termination of any Lease of more than ten percent (10%) of the space in the
applicable Property, or result in a condemnation award reasonably estimated to
exceed ten percent (10%) of the Purchase Price applicable to such Property; and
(ii) with respect to a casualty, the term “Material”
shall mean any casualty such that the cost of repair, as reasonably estimated
by an engineer designated by Seller and Purchaser, is in excess of ten percent
(10%) of the Purchase Price applicable to such Property.


 


ARTICLE XIII


Default


 


13.1                        Default by Seller.  IN
THE EVENT THE CLOSING AND THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS
PROVIDED HEREIN BY REASON OF ANY DEFAULT OF SELLER, WHICH DEFAULT IS NOT CURED
WITHIN TWO (2) DAYS AFTER WRITTEN NOTICE FROM PURCHASER TO SELLER, IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH PURCHASER MAY
SUFFER.  THEREFORE, THE PARTIES HAVE
AGREED THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT PURCHASER
WOULD SUFFER IN SUCH EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE PROCEEDS OF
THE SELLER LETTER OF CREDIT,  AS
LIQUIDATED DAMAGES, AS PURCHASER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT.  SUCH LIQUIDATED DAMAGES ARE
NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE
LAWS.  Notwithstanding the foregoing,
nothing contained herein shall limit Purchaser’s remedies at law or in equity,
as to the Surviving Termination Obligations.


 


13.2                        Default by Purchaser;
Liquidated Damages.  IN THE EVENT THE CLOSING AND THE TRANSACTIONS
CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF ANY DEFAULT OF
PURCHASER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS AFTER WRITTEN NOTICE
FROM SELLER TO PURCHASER, IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO
ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER. 
THEREFORE, THE PARTIES HAVE AGREED THAT A REASONABLE ESTIMATE OF THE
TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN SUCH EVENT IS AND SHALL BE THE
RIGHT TO RETAIN THE PROCEEDS OF THE PURCHASE LETTER OF CREDIT,
AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS
AGREEMENT.  SUCH LIQUIDATED DAMAGES ARE
NOT INTENDED AS A FORFEITURE OR


 


23





















 


PENALTY
WITHIN THE MEANING OF APPLICABLE LAWS. 
Notwithstanding the foregoing, nothing contained herein shall limit
Seller’s remedies at law or in equity, as to the Surviving Termination
Obligations.


 


ARTICLE XIV


Brokers


 


14.1                        Brokers.  Purchaser
and Seller each represents and warrants to the other that it has not dealt with
any person or entity entitled to a brokerage commission, finder’s fee or other
compensation with respect to the transaction contemplated hereby.  Purchaser hereby agrees to indemnify, defend,
and hold Seller harmless from and against any losses, damages, costs and
expenses (including, but not limited to, attorneys’ fees and costs) incurred by
Seller by reason of any breach or inaccuracy of the Purchaser’s ( or its
nominee’s) representations and warranties contained in this Article XIV.  Seller hereby agrees to indemnify, defend,
and hold Purchaser harmless from and against any losses, damages, costs and
expenses (including, but not limited to, attorneys’ fees and costs) incurred by
Purchaser by reason of any breach or inaccuracy of Seller’s representations and
warranties contained in this Article XIV.  The provisions of this Article XIV
shall survive the Closing and/or termination of this Agreement.


 


ARTICLE XV


Confidentiality


 


15.1                        Confidentiality. 
Purchaser expressly acknowledges and agrees that the transactions
contemplated by this Agreement, the Documents that are not otherwise known by
or readily available to the public and the terms, conditions and negotiations
concerning the same shall be held in the strictest confidence by Purchaser and
shall not be disclosed by Purchaser except to a Purchaser Party/Representative,
and except and only to the extent that such disclosure may be necessary for its
performance hereunder.  Purchaser agrees
that it shall instruct each of its Purchaser Party/Representatives to maintain
the confidentiality of such information and at the request of Seller, to
promptly inform Seller of the identity of each such Purchaser
Party/Representative.  Purchaser further
acknowledges and agrees that, unless and until the Closing occurs, all
information and materials obtained by Purchaser in connection with the
Properties that are not otherwise known by or readily available to the public
will not be disclosed by Purchaser to any third persons (other than to its
Purchaser Party/Representatives) without the prior written consent of
Seller.  If the transaction contemplated
by this Agreement does not occur for any reason whatsoever, Purchaser shall
promptly return to Seller, and shall instruct its Purchaser
Party/Representatives to return to Seller, all copies and originals of all
documents and information provided to Purchaser.  Nothing contained in Section 5.2
of this Agreement or this Section 15.1 shall preclude or limit
either party from disclosing or accessing any information otherwise deemed
confidential under Section 5.2 or this Section 15.1 in
connection with the party’s enforcement of its rights following a disagreement
hereunder or in response to lawful process or subpoena or other valid or
enforceable order of a court of competent jurisdiction or any filings or
disclosures with any applicable Authorities (In the Unites States and/or
Australia) required by reason of the transactions provided for herein and/or
any filings or disclosures required in accordance with the laws or market rules
(including stock exchange rules) of the United States and/or Australia.  The provisions of this Section 15.1
shall survive any termination of this Agreement without limitation.


 


15.2                        Post Closing Publication. 
Notwithstanding the foregoing, following Closing, Purchaser and Seller
shall have the right to announce the acquisition of the Properties in
newspapers and real estate trade publications (including “tombstones”) publicizing
the purchase provided that Purchaser and Seller shall consult one another with
respect to any such notice or publication, and shall implement any reasonable
comments or objections of the other. 
Seller may also publicize the sale of the Property in the ordinary
course of its business.  The provisions
of this Section 15.2 shall survive Closing and/or any termination
of this Agreement without limitation.


 


24





















 


ARTICLE XVI


1031 Exchange


 


16.1                        1031 Exchange.  Purchaser
agrees to cooperate with Seller for purposes of effecting and structuring, in
conjunction with the sale of the Properties, for the benefit of Seller, a
like-kind exchange of real property, whether simultaneous or a deferred
exchange, pursuant to Section 1031 of the Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder.  Purchaser specifically agrees to execute such
documents and instruments as are reasonably necessary to implement such an
exchange.  Seller shall be solely
responsible for assuring that the structure of any proposed exchange is
effective for Seller’s tax purposes. 
Furthermore, Purchaser specifically agrees that Seller may assign this
Agreement and any of its rights or obligations hereunder, in whole or in part,
as necessary or appropriate in furtherance of effectuating a Section 1031
like-kind exchange for the Properties, provided that such assignment shall not
serve to relieve Seller of any liability for Seller’s obligations
hereunder.  Purchaser shall have no
obligation to pay costs or expenses of effectuating such exchange, no such
exchange shall alter the time for performance set forth herein, and Purchaser
shall not be required to take title to any exchange property or (except for
customary consent to assignment of this Agreement to an exchange intermediary)
to incur obligations to third parties.


 


ARTICLE XVII


Miscellaneous


 


17.1                        Notices.  Any
and all notices, requests, demands or other communications hereunder shall be
in writing and shall be deemed properly served (i) on the date sent if
transmitted by hand delivery with receipt therefor, (ii) on the date sent if
transmitted by facsimile (with confirmation by hard copy to follow by overnight
delivery service), (iii) on the date sent if scanned to a .pdf file and
transmitted by e-mail (with confirmation by hard copy to follow by overnight
delivery service) (iv) on day after the notice is deposited with a nationally
recognized overnight courier, or (v) upon receipt after being sent by
registered or certified mail, return receipt requested, first class postage
prepaid, addressed as follows (or to such new address as the addressee of such
a communication may have notified the sender thereof):


 


	
  To
  Purchaser:

  	
  CenterPoint
  James Fielding, LLC

  
	
   

  	
  Level
  5, 40 Miller Street

  
	
   

  	
  North
  Sydney, NSW 2060

  
	
   

  	
  Australia

  
	
   

  	
  Attn:
  Mr. Ben Hindmarsh

  
	
   

  	
  Fax
  No.:   61 2 9004 8462

  
	
   

  	
  E-Mail:  benhindmarsh@mirvac.com.au

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  Wildman
  Harrold Allen & Dixon LLP

  
	
   

  	
  225
  W. Wacker Drive, Suite 3000

  
	
   

  	
  Chicago,
  Illinois 60606

  
	
   

  	
  Attn:
  Kathleen M. Gilligan, Esq.

  
	
   

  	
  Fax No.:  (312) 201-2555

  
	
   

  	
  E-Mail:   gilligan@wildmanharrold.com

  



 


25





















 


	
  To
  Seller:

  	
   

  
	
   

  	
  CenterPoint
  Properties Trust

  
	
   

  	
  1808
  Swift Drive

  
	
   

  	
  Oak
  Brook, Illinois 60523

  
	
   

  	
  Attn:

  	
  Mr.
  James N. Clewlow

  and Mr. Michael M. Mullen

  
	
   

  	
  Fax No.:  (630) 586-8010

  
	
   

  	
  E-Mail:  jclewlow@centerpoint-prop.com

  
	
   

  	
  E-Mail:  mmullen@centerpoint-prop.com

  
	
   

  	
   

  
	
  With
  a copy to:

  	
  Weinberg
  Richmond LLP

  
	
   

  	
  333
  West Wacker Drive, Suite 1800

  
	
   

  	
  Chicago,
  Illinois 60606

  
	
   

  	
  Attn:
  Mark S. Richmond, Esq.

  
	
   

  	
  Fax No.:

  	
  (312) 807-3903

  
	
   

  	
  E-Mail

  	
  mrichmond@wr-llp.com

  
				



 


 


17.2                        Governing Law.  This
Agreement shall be governed by and construed in accordance with the internal,
substantive laws of the State of Illinois, without regard to the conflict of
laws principles thereof.


 


17.3                        Headings.  The
captions and headings herein are for convenience and reference only and in no
way define or limit the scope or content of this Agreement or in any way affect
its provisions.


 


17.4                        Effective Date.  This
Agreement shall be effective upon delivery of this Agreement fully executed by
the Seller and Purchaser, which date shall be deemed the Effective Date
hereof.  Either party may request that
the other party promptly execute a memorandum specifying the Effective Date.


 


17.5                        Business Days.  If
any date herein set forth for the performance of any obligations of Seller or
Purchaser or for the delivery of any instrument or notice as herein provided
should be on a Saturday, Sunday or legal holiday, the compliance with such
obligations or delivery shall be deemed acceptable on the next business day
following such Saturday, Sunday or legal holiday.  As used herein, the term “legal holiday”
means any state or Federal holiday for which financial institutions or post
offices are generally closed in the state where the Property is located.


 


17.6                        Counterpart Copies.  This
Agreement may be executed in two or more counterpart copies, all of which
counterparts shall have the same force and effect as if all parties hereto had
executed a single copy of this Agreement.


 


17.7                        Binding Effect.  This
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.


 


17.8                        Assignment. 
Purchaser shall not have the right to assign this Agreement without
Seller’s prior written consent, which consent may be given or withheld in
Seller’s sole and absolute discretion; provided, however, Purchaser may
designate a wholly owned subsidiary to acquire title to the Properties at Closing
or assign its right, title and interest under this Agreement to a wholly owned
subsidiary, provided that in no event will Purchaser be released from any of
its obligations or liabilities under this Agreement.  Seller may assign this Agreement in whole or
in part to any corporate, limited liability company or partnership entity
affiliated with, or related to, Seller (“Affiliate”)
without Purchaser’s consent; provided that Seller shall in no event be released
from any of its obligations or liabilities hereunder as a result of any such
assignment.  In the event that an


 


26





















 


Affiliate
shall be designated as a transferee hereunder, the Affiliate shall have the
benefit of all of the representations and rights that would otherwise have run
in favor of Seller, which, by the terms of this Agreement, are incorporated or
relate to the conveyance in question. 
All transferees and assignees of Purchaser (“Assignee”) shall assume all of Purchaser’s obligations under
this Agreement pursuant to an Assignment and Assumption Agreement reasonably
acceptable to Seller, and consented to in writing by Seller.  In the event the rights and obligations of
Purchaser shall be transferred, assigned and assumed as permitted under this
Agreement, then such Assignee will be substituted in place of such assignor in
the above-provided-for documents and it shall be entitled to the benefit of and
may enforce Seller’s covenants, representations and warranties hereunder
provided that Purchaser shall in no event be released from any of its
obligations or liabilities hereunder as a result of such assignment.  Upon any such assignment by Purchaser or any
successor or assign of Purchaser, then the assignor’s liabilities and
obligations hereunder or under any instruments, documents or agreements made
pursuant hereto shall be binding upon Assignee; provided, however, that
Assignee shall have the benefit of any limitations of such liabilities and
obligations applicable to either the assignor or Assignee, provided by law or
by the terms hereof or such instruments, documents or agreements.  Whenever reference is made in this Agreement
to Seller or Purchaser, such reference shall include the successors and assigns
of such party under this Agreement. 
Purchaser may assign this Agreement for collateral purposes only to
Purchaser’s lender.


 


17.9                        Interpretation.  This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that both Seller and
Purchaser have contributed substantially and materially to the preparation of
this Agreement.


 


17.10                 Entire Agreement.  This
Agreement and the Exhibits attached hereto contain the final and entire
agreement between the parties hereto with respect to the sale and purchase of
the Property and are intended to be an integration of all prior negotiations
and understandings.  Purchaser, Seller and
their agents shall not be bound by any terms, conditions, statements,
warranties or representations, oral or written, not contained herein.  No change or modifications to this Agreement
shall be valid unless the same is in writing and signed by the parties
hereto.  Each party reserves the right to
waive any of the terms or conditions of this Agreement which are for their
respective benefit and to consummate the transaction contemplated by this
Agreement in accordance with the terms and conditions of this Agreement which
have not been so waived.  Any such waiver
must be in writing signed by the party for whose benefit the provision is being
waived.


 


17.11                 Severability.  If
any one or more of the provisions hereof shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


17.12                 Survival. 
Except for obligations that survive the Closing pursuant to the
provisions of Sections (and related subparagraphs) 4.2, 5.1, 5.2,
5.3, 6.2, 7.4, 7.5, 7.6, 8.3, 8.4,
9.4, 9.9, 9.11, 10.2, 14.1, 15.1, 15.2,
17.15, 17.16,  17.20 and 17.23 (collectively, the “Surviving Termination Obligations”), the
provisions of this Agreement and the representations and warranties herein
shall not survive after the conveyance of title and payment of the Purchase
Price but be merged therein.


 


17.13                 Exhibits and Schedules.  Exhibits A through S and Schedules 7.1.4 through 9.12
attached hereto are incorporated herein by reference.


 


17.14                 Time.  Time
is of the essence in the performance of each of the parties’ respective
obligations contained herein.


 


27





















 


17.15                 Limitation of Liability.  No
present or future partner, member, manager, director, officer, shareholder,
employee, advisor, affiliate or agent of or in Purchaser or any affiliate of
Purchaser shall have any personal liability, directly or indirectly, under or
in connection with this Agreement or any agreement made or entered into under
or in connection with the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Seller and its successors and assigns and, without limitation,
all other persons and entities, shall look solely to Purchaser’s assets for the
payment of any claim or for any performance, and Seller hereby waives any and
all such personal liability.  For
purposes of this Section 17.15, no negative capital account or any
contribution or payment obligation of any partner or member in Purchaser shall
constitute an asset of Purchaser.  The
limitations of liability contained in this Paragraph are in addition to, and
not in limitation of, any limitation on liability applicable to Purchaser
provided elsewhere in this Agreement or by law or by any other contract,
agreement or instrument.  All documents
to be executed by Purchaser shall also contain the foregoing exculpation.


 


No
present or future partner, member, director, officer, shareholder, employee,
advisor, affiliate or agent of or in Seller or any affiliate of Seller shall
have any personal liability, directly or indirectly, under or in connection
with this Agreement or any agreement made or entered into under or in
connection with the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Purchaser and its successors and assigns and, without
limitation, all other persons and entities, shall look solely to Seller’s
assets for the payment of any claim or for any performance, and Purchaser
hereby waives any and all such personal liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Seller shall constitute an asset of Seller.  The limitations of liability contained in
this Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Seller provided elsewhere in this Agreement or by law
or by any other contract, agreement or instrument.  All documents to be executed by Seller shall
also contain the foregoing exculpation. 
The provisions of this Section 17.15 shall survive Closing
and/or any termination of this Agreement.


 


17.16                 Prevailing Party. 
Should either party employ an attorney to enforce any of the provisions
hereof, (whether before or after Closing, and including any claims or actions
involving amounts held in escrow), the non-prevailing party in any final
judgment agrees to pay the other party’s reasonable expenses, including
reasonable attorneys’ fees and expenses in or out of litigation and, if in
litigation, trial, appellate, bankruptcy or other proceedings, expended or
incurred in connection therewith, as determined by a court of competent
jurisdiction.  The provisions of this Section 17.16
shall survive Closing and/or any termination of this Agreement.


 


17.17                 No Recording. 
Neither this Agreement nor any memorandum or short form hereof shall be
recorded or filed in any public land or other public records of any
jurisdiction, by either party and any attempt to do so may be treated by the
other party as a breach of this Agreement.


 


17.18                 Waiver of Trial by Jury.  The
respective parties hereto shall and hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Agreement, or for the enforcement of any remedy under any
statute, emergency or otherwise.


 


17.19                 Cooperation between
Seller and Purchaser.  Seller agrees to reasonably cooperate with
Purchaser in connection with the preparation and delivery of any Subordination,
Non-Disturbance and Attornment Agreements required by Purchaser’s lenders in
connection with the closing of the transaction described herein.


 


17.20                 Further Assurances.  Each
party shall, from time to time, at the request of the other party, and without
further consideration, execute and deliver such further instruments and take
such


 


28





















 


further
action as may be required or reasonably requested by either party to establish,
maintain or protect the respective rights of the parties to carry out and
effect the intentions and purposes of this Agreement.


 


17.21                 Return of Deposit.  Notwithstanding
anything to the contrary contained in this Agreement, whenever this Agreement
provides that the Deposit shall be delivered or returned to Purchaser, the
parties acknowledge and agree that said Deposit or a portion thereof shall
remain with the Escrow Agent in the event that Purchaser has failed to comply
with the provisions of this Agreement. 
Notwithstanding anything to the contrary contained in this Section 17.21,
Seller agrees that if the provisions of this Agreement provide for the return
of the Deposit to Purchaser that Seller will not unreasonably withhold its
consent to the return of the Deposit to Purchaser.  Notwithstanding anything to the contrary
contained in this Section 17.21, Purchaser agrees that if the
provisions of this Agreement provide for the return of the Seller Earnest Money
to Seller that Purchaser will not unreasonably withhold its consent to the
return of the Seller Earnest Money to Seller.


 


17.22                 Other Agreements.  Seller
and Purchaser have a business relationship with each other and in connection
therewith Seller and Purchaser have entered into various other agreements as of
the date hereof (“Other Agreements”).  A default by either party under any Other
Agreement not cured within any applicable cure period shall be deemed to be a
default by such party under this Agreement.


 


17.23                 Seller Environmental
Obligations.  Notwithstanding anything to the contrary
contained in this Agreement, based on conditions existing as of the Effective
Date, Seller agrees to conduct and complete, for Purchaser’s benefit and solely
at Seller’s expense except as provided below, all investigation and remediation
measures necessary for Seller to obtain (a) with respect to the Properties
identified on Exhibit S, a
No Further Remediation (“NFR”)
letter from the Illinois Environmental Protection Agency, and (b) with respect
to the Properties identified on Exhibit S,
a Certificate of Completion in the Voluntary Remediation Program administered
by the Indiana Department of Environmental Management and a Covenant Not to Sue
from the office of the Governor of Indiana (the NFR Letter, the Certificates of
Completion, the Covenants Not to Sue, and all other necessary closure
certification records shall be referred to collectively herein as the “Completion Documents”).


 


17.23.1            Schedule.  Seller
shall act with diligence in conducting investigation and remediation measures,
in pursuing issuance of the Completion Documents, and in complying with any
applicable requirements of the respective state voluntary cleanup program,
including without limitation the following, to the extent required by the
respective state voluntary cleanup program: causing the Completion Documents to
be recorded in the property records and filed with governmental agencies, and
notifying third parties such as off-site landowners. Seller shall make
reasonable efforts to cause the Completion Documents to be issued by no later
than the LLC Expiration Date (as defined in that certain Limited Liability
Company Agreement of even date herewith by and between CenterPoint Properties
Trust and JF US Industrial Property Trust). 
If Seller fails to cause the Completion Documents to be issued by no
later than the LLC Expiration Date for any individual Property (“NFR Substitution Event”), Purchaser may, at
its option, by written notice to Seller within thirty (30) days after the
occurrence of an NFR Substitution Event, request that Seller offer a Substitute
Property in accordance with Section 9.9.2 above. (“NFR Substitution Notice”); provided,
however, in the event that Purchaser elects to have Seller provide a Substitute
Property, Seller, if it chooses to do so, in its sole and absolute discretion,
shall have a period of thirty (30) days from the date Seller is given the NFR
Substitution Notice to obtain the Completion Documents, and further, provided,
however, if the Completion Documents are not capable of being obtained within
said thirty (30) day period through no fault of Seller and Seller has commenced
to obtain the Completion Documents within such thirty (30) day


 


29





















 


period, then Seller shall have such reasonable
period of time from and after the date of the NFR Completion Notice to obtain
the Completion Documents; provided, further, that such additional period shall
not extend beyond the date of the Closing with respect to the Substitute
Property.  In the event Seller cures the
condition giving rise to the NFR Substitution Event prior to the time that a
Closing with respect to the Substitute Property occurs, the Scheduled Closing
Date for the Removed Property shall be extended to the fifteenth (15th)
day after the condition giving rise to the NFR Substitution Event has been
cured.


 


In
the event Seller does not obtain the Completion Documents within the time
periods referenced above, Seller shall repurchase the Property in question at
such time as Purchaser acquires a Substitute Property.  Seller shall repurchase the Removed Property
for the same price paid by Purchaser to purchase such Property from Seller and
Seller shall repurchase such Property on the same terms and conditions of this
Agreement applicable to Purchaser’s acquisition of a Substitute Property.
Seller shall be obligated to repurchase the Property in question only if
Purchaser agrees to purchase the Substitute Property, and Purchaser and Seller
shall agree to close on both transactions on the same day at the same
time.  Seller and Purchaser agree to
follow the same terms, conditions and procedures for purposes of this exchange
as are generally consistent with Sections 9.9.5, 9.9.6, 9.9.7 and 9.9.8
of this Agreement.


 


17.23.2            Cooperation.  From and after the Effective
Date of this Agreement, Seller and Purchaser shall cooperate with each other to
facilitate the successful completion of the voluntary remediation process for
each Property.  Seller and Purchaser
shall consult in good faith about all draft workplans and proposed submissions
to regulatory authorities, and Seller shall make changes reasonably requested
by Purchaser.  Seller shall provide at
least two (2) Business Days advance written notice of entry onto a Property and
identify the general nature of the work to be performed and the portion(s) of
the Property on which the work will be performed.  To the extent practical, Seller shall provide
advance notice to Purchaser of, and shall allow Purchaser to participate in,
meetings and telephone conferences with regulatory authorities.  Seller shall provide Purchaser with a copy of
all test results, final submissions to regulatory agencies and final documents
received from such agencies within a reasonable period of time after they are
received or created by Seller.


 


17.23.3            Scope of Testing Activities. 
Pursuant to this Section 17.23, Seller shall conduct initial
testing sufficient to reasonably identify all potential contaminants of concern
materially related to the industrial/commercial use at the Properties
(reasonably taking into consideration potentially significant environmental
conditions indicated in Phase 1 reports or in prior testing).  Subsequent testing shall be conducted by
Seller as reasonably necessary to satisfy regulatory authorities for issuance
of the Completion Documents.


 


17.23.4            Institutional Controls.  The
Completion Documents may be qualified or conditioned by institutional controls
(e.g., deed restrictions, engineered barriers) to the extent such controls are
consistent with the Properties’ industrial/commercial use as of the Effective
Date and are necessary for issuance of the Completion Documents; provided,
however, Seller shall have sole discretion to select the remedial approach for
obtaining the Completion Documents.  Any
such institutional controls are subject to Purchaser’s review and approval,
which approval shall not be unreasonably withheld.


 


17.23.5            Execution of Documents. 
Solely relating to and limited by Seller’s obligations as set forth in Article 17
hereto, Seller shall arrange for any offsite disposal of hazardous substances,
required in order to obtain the Completion Documents, and shall execute all
manifests and similar documents, reflecting itself or its designee as the
generator of such hazardous substances, and in no event shall Seller name or
identify Purchaser as the generator of such hazardous substances; provided,
however, the Seller has no duty or


 


30





















 


obligation
whatsoever for any hazardous substances transported to, released upon or
generated by Purchaser, its agents, representatives and assigns, at, on,
beneath or adjacent to the Properties. Purchaser shall execute other documents
reasonably requested by Seller that are necessary and consistent with this Section 17.23.


 


17.23.6            Access. Purchaser shall provide necessary access to Seller to carry out the
provisions of this section.  Seller shall
use all reasonable efforts to avoid any disruption of tenant activities, and
shall promptly repair at Seller’s sole cost and expense any damage caused by
its investigation or remediation activities.


 


17.23.7            Indemnification. Until the earlier of the date the Seller
procures and provides to Purchaser the requisite Completion Documents as set
forth herein for each Property, or an appropriate substitute is exchanged
pursuant to Section 17.23.1 hereof, Seller shall protect, defend,
indemnify and hold Purchaser harmless from and against any claim or loss
arising out of (a) any investigation, remediation or disposal activities
conducted by Seller or its agents pursuant to this Section 17.23,
and (b) any failure by Seller to obtain the Completion Documents as provided in
this section.


 


17.23.8            Voidance. In the event any of the Completion Documents are voided as a result
of any fraudulent misrepresentation or other fraudulent act or omission of
Seller, Seller shall be responsible for implementing at its expense any
measures necessary to have the Completion Documents reinstated.


 


17.23.9            Assignment.  To the extent allowed by
contract and law, Seller shall use reasonable efforts to assign to Purchaser
its environmental rights under current vendor and tenant agreements, including
all indemnities, escrows, representations, and warranties (“Seller’s Environmental Rights”).  Where Seller is unable to assign Seller’s
Environmental Rights, Seller will use commercially reasonable efforts to
enforce such rights on behalf of Purchaser (at Purchaser’s expense).


 


17.23.10      Survival.  The terms of this Section 17.23
shall expressly survive, without limitation, the Closing.


 


17.24                 Currency. All payments and amounts referenced or
described in this Agreement shall be deemed to require payments in and refer to
amounts in the currency of the United States of America.


 


17.25                 Facsimile Signatures. The parties hereto agree that the use of
facsimile signatures for the execution of this Agreement shall be legal and
binding and shall have the same force and effect as if originally signed.


 


[remainder of page intentionally left blank]


 


31





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the
date or dates set forth below.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT JAMES FIELDING, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Adrian Harrington

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Adrian
  Harrington

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Adrienne Parkinson

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Adrienne
  Parkinson

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  
	
   

  	
  Date:
  April 6, 2005

  
	
   

  	
   

  
	
   

  	
  Tax
  I.D. # 98-0450460

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT PROPERTIES TRUST, a Maryland

  real estate investment trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    
  /s/ James N. Clewlow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Investment Officer

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT VENTURE, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    
  /s/ Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
    
  /s/ James N. Clewlow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
						



 


32





















 


Exhibits


 


	
  Exhibit
  A

  	
  Properties

  
	
  Exhibit
  B-1 - B-8

  	
  Legal
  Descriptions

  
	
  Exhibit
  C-1 - C-8

  	
  Schedule of
  Leases

  
	
  Exhibit
  D -

  	
  Intentionally
  Deleted

  
	
  Exhibit
  E -

  	
  Escrow
  Agreement

  
	
  Exhibit
  F -

  	
  Documents

  
	
  Exhibit
  G-1 - G-8

  	
  Permitted
  Exceptions

  
	
  Exhibit
  H-

  	
  Master
  Lease

  
	
  Exhibit
  I -

  	
  Intentionally
  Deleted

  
	
  Exhibit
  J -

  	
  Intentionally
  Deleted

  
	
  Exhibit
  K -

  	
  Tenant
  Estoppel Certificate

  
	
  Exhibit
  L -

  	
  Seller’s
  Estoppel Certificate

  
	
  Exhibit
  M -

  	
  General
  Assignment

  
	
  Exhibit
  N -

  	
  Deed

  
	
  Exhibit
  O -

  	
  Notice
  of Sale to Tenant

  
	
  Exhibit
  P -

  	
  Non-Foreign
  Entity Certification

  
	
  Exhibit
  Q -

  	
  Survey
  Certification

  
	
  Exhibit
  R -

  	
  Planned
  Expenditures

  
	
  Exhibit
  S -

  	
  NFR
  Properties

  



 


Schedules


	
  7.1.4
  -

  	
  No
  Violations of Laws

  
	
  7.1.5

  	
  Eminent
  Domain

  
	
  7.1.6

  	
  Hazardous
  Material

  
	
  7.1.7

  	
  Litigation

  
	
  7.1.8

  	
  Leases

  
	
  7.1.9

  	
  Contracts

  
	
  7.1.10

  	
  Defaults

  
	
  9.8

  	
  Purchase
  Price Schedule

  
	
  9.10

  	
  Contracts

  
	
  9.12

  	
  REA
  Estoppels

  



 


33





















 


TRANCHE 2/1031


 


SALE AGREEMENT


 


THIS SALE AGREEMENT (“Agreement”) is made and
entered into as of the 6th day of April, 2005, by and between CENTERPOINT PROPERTIES TRUST, a Maryland
real estate investment trust (“SELLER”),
and CENTERPOINT JAMES FIELDING, LLC,
a Delaware limited liability company (“PURCHASER”).


 


In
consideration of the mutual promises, covenants and agreements hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:


 


ARTICLE I


Sale of Properties


 


1.1                               Sale of Properties. 
Seller agrees to sell, assign and convey to Purchaser, or cause to be
sold, assigned and conveyed to Purchaser, in the event that one or more of the
Properties is currently owned by an entity affiliated with Seller (hereinafter
collectively referred to as “Seller
Affiliates”), and Purchaser agrees to purchase from Seller, the
following:


 


1.1.1                        Land and Improvements.  That
certain real property commonly described on
Exhibit A, being more particularly described on Exhibits B-1 through B-2  respectively, attached hereto (collectively, the “Land”), together with any improvements
located thereon (collectively, the “Improvements”);


 


1.1.2                        Leases.  All of Seller’s or Seller
Affiliates’, as the case may be, right, title and interest, if any, in and to
all leases, subleases, licenses and other occupancy agreements, together with
any and all amendments, modifications or supplements thereto (hereafter referred
to collectively as the “Leases”),
being more particularly described on Exhibits
C-1 through C-2
respectively, attached hereto, and all prepaid rent attributable to the period
following Closing, as herein defined, and subject to Section 4.2.4
below, the security deposits under such Leases (collectively, the “Leasehold Property”);


 


1.1.3                        Real Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all easements and appurtenances to Seller’s or
Seller Affiliates’, as the case may be, interest in the Land and the
Improvements, including, without limitation, all mineral and water rights and
all easements, licenses, covenants and other rights-of-way or other
appurtenances used in connection with the beneficial use or enjoyment of the
Land and the Improvements (the Land, the Improvements and all such easements
and appurtenances are sometimes collectively referred to as the “Real Property”);


 


1.1.4                        Personal Property.  All
personal property (including equipment), if any, owned by Seller or Seller
Affiliates, as the case may be, and located on the Real Property as of the date
hereof, and all fixtures, if any, located on the Real Property as of the date
hereof or as of the Closing Date (collectively, the “Personal Property”); and


 


1.1.5                        Intangible Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all service, equipment, supply and maintenance
contracts (collectively, the “Contracts”),
guarantees, licenses, side track agreements (and other agreements including
leasehold agreements attendant to the Property), approvals, utility contracts,
plans and specifications, governmental approvals and development rights,
certificates, permits and warranties (and including all escrows, indemnities,
representations, warranties and guarantees Seller received from any and all
vendors from when Seller


 





















 


acquired
the Properties), including, without limitation environmental insurance policies
(to the extent same can be assigned with a reservation of rights for the
benefit of Seller as well) and other environmental escrows and indemnities (to
the extent same can be assigned with a reservation of rights for the benefit of
Seller as well), if any, relating to the Real Property or the Personal
Property, to the extent assignable (collectively, the “Intangible Property”).  (For each individual parcel, the Real
Property, the Leasehold Property, the Personal Property and the Intangible
Property are sometimes collectively hereinafter referred to as the “Property”, and for all parcels, taken
together, the Real Property, the Leasehold Property, the Personal Property and
the Intangible Property are collectively referred to as the “Properties”).  It is hereby acknowledged by the parties that
Seller shall not convey to Purchaser claims relating to any real property tax
refunds or rebates for periods accruing prior to the Closing, to the extent
such taxes have been paid by Seller prior to the Closing, existing insurance
claims and any existing claims against previous tenants of the Properties,
which claims are hereby reserved by Seller, subject to the terms and provisions
of Section 4.2.4 below.


 


ARTICLE II


Purchase Price


 


2.1                               Purchase Price. 
Subject to the provisions of Section 9.9 below, the purchase
price for the Properties shall be Forty-Eight Million Nine Hundred Thousand and
No/100 Dollars ($48,900,000.00) (“Purchase
Price”) in currency of the United States of America. The Purchase
Price, as adjusted by all prorations as provided for herein, shall be paid by
Purchaser at Closing as directed by the Seller by wire transfer of immediately
available federal funds of The United States of America.


 


ARTICLE III


Deposit


 


3.1                               Purchaser Deposit. 
Purchaser will deposit a Fifteen Million and No/100 Dollars
($15,000,000.00) Letter of Credit (“Purchaser
Letter of Credit”) on the date of the first Closing to occur under
any of the Sale Agreements (defined below) with Chicago Title Insurance Company
(“Escrow Agent” or “Title Company”).  The Purchaser Letter of Credit shall be held
by Escrow Agent pursuant to an Escrow Agreement in the form attached hereto as Exhibit E modified to conform to the
terms of this Agreement and as required by Title Company when Title Company
holds a letter of credit (“Escrow Agreement”).  The Purchaser Letter of Credit shall (i) be
unconditional and irrevocable, (ii) be in a form reasonably acceptable to
Seller, (iii) be issued by a financial institution doing business in the United
States of America, with offices in Chicago, Illinois and (iv) expire no earlier
than March 15, 2006.  The cost of
issuing and maintaining the Purchaser Letter of Credit shall be paid by Seller
and Seller’s failure to do so shall not be a breach or a default by Purchaser
under this Agreement or any Other Agreements (as defined in Section 17.22
below) nor shall Seller have any right to direct Escrow Agent to draw upon the
Purchaser Letter of Credit as a result of Seller’s failure as aforesaid.  The Purchaser Letter of Credit and the
proceeds of the Purchaser Letter of Credit (“Purchaser
Proceeds”) have been provided to assure performance and observance
by Purchaser of all of its closing obligations under this Agreement and five
(5) other sale agreements entered into by and between Seller and Purchaser and
dated of even date herewith relating to the sale of properties by Seller to
Purchaser (this Agreement and the other five (5) Sale Agreements are herein
collectively referred to as the “Sale
Agreements”).   Accordingly,
in the event of the occurrence of a default under Section 13.2 of
this Agreement or any of the other Sale Agreements or in the event that the
Purchaser Letter of Credit will expire within thirty (30) days or less, Seller
shall have the right to direct Escrow Agent to draw upon the Purchaser Letter
of Credit.  All Purchaser Proceeds
received by Escrow Agent shall be retained by Escrow Agent and held or
disbursed pursuant to the terms of the Escrow Agreement and this Agreement.  At the time of the final Closing of all
Properties, including, but not limited to, Substitute Properties (defined
below) under all of the Sale Agreements, the Purchaser Letter of Credit shall
be delivered to Purchaser.  In


 


2





















 


the
event any Closing under any of the Sale Agreements does not occur through no
fault of Purchaser, Purchaser Letter of Credit shall be returned to Purchaser.


 


3.2                               Seller Deposit. 
Seller will deposit a Three Million and No/100 Dollars ($3,000,000.00)
Letter of Credit (“Seller Letter of Credit”)
on the date of the first Closing to occur under the Sale Agreements with Escrow
Agent.  The Seller Letter of Credit shall
be held by Escrow Agent pursuant to an Escrow Agreement in the form attached
hereto as Exhibit E
modified to conform to the terms of this Agreement and as required by Title
Company when Title Company holds a letter of credit.  The Seller Letter of Credit shall (i) be
unconditional and irrevocable, (ii) be in a form reasonably acceptable to Purchaser,
(iii) be issued by a financial institution doing business in the United States
of America, with offices in Chicago, Illinois and (iv) expire no earlier than March 15,
2006.  The cost of issuing and
maintaining the Seller Letter of Credit shall be paid by Seller.  The Seller Letter of Credit and the proceeds
of the Seller Letter of Credit have been provided to assure performance and
observance by Seller of all of its closing obligations under the Sale
Agreements.  Accordingly, in the event of
the occurrence of a default under Section 13.1 of this Agreement or
any of the other Sale Agreements or in the event that the Seller Letter of
Credit will expire within thirty (30) days or less, Purchaser shall have the
right to direct Escrow Agent to draw upon the Seller Letter of Credit.  All Proceeds received by Escrow Agent shall
be retained by Escrow Agent and held or disbursed pursuant to the terms of the
Escrow Agreement and this Agreement.  At
the time of the final Closing of all Properties, including, but not limited to,
Substitute Properties under all of the Sale Agreements, the Seller Letter of
Credit shall be delivered to Seller.  In
the event any Closing under any of the Sale Agreements does not occur through
no fault of Seller, Seller Letter of Credit shall be returned to Seller.


 


ARTICLE IV


Closing, Prorations and Closing Costs


 


4.1                               Closing.  The
closing of the purchase and sale of the Properties shall occur on or before
10:00 a.m. Central time on July 29, 2005 (the “Scheduled Closing Date”) and shall be held at the offices of
Escrow Agent, or at such other place agreed to by Seller and Purchaser (said
closing is hereinafter referred to as the “Closing”).  Notwithstanding anything to the contrary
contained in this Section 4.1, Seller or Purchaser, as the case may
be, shall have the right to extend the closing date for one or more of the
Properties in accordance with the provisions of Sections 9.9, 10.1 and 12.1
hereof.  “Closing” shall be deemed
to have occurred when the Title Company has been instructed by both parties to
pay the applicable portion of the Purchase Price to Seller and to record the
applicable Deeds, as hereunder defined. 
The date of the Closing is sometimes referred to in this Agreement as a
“Closing Date.”  The transactions contemplated by this
Agreement shall be closed through an escrow with Escrow Agent on the Closing
Date, in accordance with the general provisions of the usual form “New York
Style” Deed and Money Escrow Agreement used by Escrow Agent, with such
provisions required to conform to the terms of this Agreement.


 


4.2                               Prorations.  All
matters involving prorations or adjustments to be made in connection with
Closing and not specifically provided for in some other provision of this
Agreement shall be adjusted in accordance with this Section 4.2.  Except as otherwise set forth herein, all
items to be prorated pursuant to this Section 4.2 shall be prorated
as of midnight of the day immediately preceding a Closing Date, with Purchaser
to be treated as the owner of the applicable Properties, for purposes of
prorations of income and expenses, on and after a Closing Date.


 


4.2.1                        Taxes.  Subject to the provisions of
this Section 4.2.1, real estate and personal property taxes, if
any, accrued, but not yet due and owing as of the Closing and installments of
special assessments, if any, due and owing during the installment year in which
the Closing occurs (hereinafter collectively referred to as “Taxes”) shall be prorated as of the Closing
Date, and, notwithstanding any other provision contained in this Agreement,


 


3





















 


shall
not be reprorated.  Seller shall pay all
Taxes due and payable as of the Closing Date. 
If the Taxes have not been set for the year in which Closing occurs or
any prior year, then the proration of such Taxes shall be based upon the most
recent ascertainable tax bills. 
Notwithstanding any other provision of this Agreement, (a) there shall
be no proration of Taxes with respect to tenants whose leases obligate said
tenants to pay Taxes when the tax bills are issued, and (b) the amount
otherwise due Purchaser under this Section 4.2.1 shall be reduced
by an amount equal to all tenant deposits held by Seller for Taxes at the time
of Closing (collectively, the “Tenant Tax
Deposits”) and the Tenant Tax Deposits shall be turned over to
Purchaser at Closing.  Tenant Tax
Deposits received by Seller following Closing for any period of time after
Closing shall be paid to Purchaser.  The
amount due under this Section 4.2.1 shall not be credited to
Purchaser at Closing but shall be deposited into the operating account for the
Properties and held by Seller as property manager pursuant to the Management
Agreement described in Section 9.6 below.


 


Seller shall contest real estate taxes and/or assessment levels, as the
case may be, prior to Closing if Seller deems reasonable in its judgment as a
commercially prudent owner of real estate. 
All costs incurred in connection with such contest shall be paid by the
parties in proportion to benefit received by the parties in connection with any
reduction of such real estate taxes or assessments as the case may be.


 


4.2.2                        Insurance.  Seller shall assign its
existing insurance policies to Purchaser upon Closing.  Purchaser shall be named as a named insured
thereon and all premiums with respect thereto shall be prorated between the
parties as of Closing.


 


4.2.3                        Utilities.  Purchaser and Seller hereby
acknowledge and agree that the amounts of all electric, sewer, water and other
utility bills, trash removal bills, janitorial and maintenance service bills
and all other operating expenses relating to the applicable Properties not paid
by tenants under Leases and allocable to the period prior to the Closing Date
shall be determined and paid by Seller before Closing, if possible, or shall be
paid thereafter by Seller or adjusted between Purchaser and Seller immediately
after the same have been determined. 
Seller shall attempt to have all utility meters, or utility services not
paid by tenants under Leases, read as of the Closing Date.  Purchaser shall cause all utility services to
be placed in Purchaser’s name as of the Closing Date.  If permitted by the applicable utilities, all
utility deposits in Seller’s name shall be assigned to Purchaser as of the
Closing Date, and Seller shall receive a credit therefor at Closing.


 


4.2.4                        Rents.  Rent [(including estimated
pass-through payments for common area/operating expenses, but not for Taxes),
collectively “Rents”] for the
month in which Closing occurs shall be prorated for said month based upon the
Rents estimated to have been collected by Seller as of the Closing Date.  Rents for said month shall be reprorated
within seven (7) Business Days after the end of said month based on Rents
actually received.  During the period
after Closing, (i) Purchaser shall deliver to Seller any and all Rents accrued
but uncollected as of the Closing Date, to the extent subsequently collected by
Purchaser; provided, however, Purchaser shall apply Rents received after
Closing first to payment of current Rents then due, and thereafter to
delinquent Rents (other than “true up” payments received from tenants
attributable to a year-end reconciliation of actual and budgeted pass-through
payments, which shall be allocated among Seller and Purchaser pro rata in
accordance with their respective period of ownership as set forth in Section 4.2.5
below), and (ii) Seller shall deliver to Purchaser any and all Rents collected
by Seller for any period after Closing.


 


Subject to the provisions of the following sentence, Seller shall be
entitled, after the Closing, to take any action against a tenant which would
not result in a termination of any Lease or a tenant’s right of occupancy
thereunder (“Seller Action”).  Notwithstanding the


 


4





















 


foregoing,
Seller shall not take any Seller Action unless Seller shall have first provided
Purchaser with not less than five (5) Business Days’ notice of its intent to
take action against a tenant, together with a description of the subject matter
of the proposed Seller Action.  Purchaser
agrees that it shall use commercially reasonable efforts to collect all
pass-through rents payable by tenants and any delinquent Rents (provided,
however, that Purchaser shall have no obligation to institute legal
proceedings, including an action for unlawful detainer, against a tenant owing
delinquent Rents).


 


The amount of any unapplied security deposits (plus accrued interest
thereon if payable to a tenant under its lease) under the Leases held by Seller
in cash at the time of Closing shall be credited against the Purchase Price;
accordingly, Seller shall retain the actual cash deposits.  Notwithstanding anything in this Section 4.2.4
to the contrary, if any security deposits are in the form of a letter of
credit, such security deposits shall not be prorated, but shall be turned over
by Seller to Purchaser at the Closing by the delivery thereof by Seller to
Purchaser in accordance with this provision. 
In addition, Seller shall use reasonable efforts to deliver appropriate
duly executed instruments of transfer or assignment of such letters of credit
which are required to establish Purchaser as the new beneficiary thereunder and
any consents required by the issuing bank for the transfer of such letters of
credit.  If required, Seller shall use
reasonable efforts to arrange for the issuance by the issuing bank of any
authorization to the transfer, together with the delivery of such letters of
credit (and any letter of transfer that is required by such letter of credit).  Any fees imposed by such issuing banks in
connection with such transfers which are not the obligation of the applicable
tenant to pay shall be paid by Seller. 
In the event that any letter of credit is not transferable as of
Closing, Seller shall cooperate with Purchaser in all reasonable respects
following the Closing so as to transfer the same to Purchaser or to obtain a
replacement letter of credit with respect thereto in favor of Purchaser, in
either case at no cost or expense to Purchaser. 
Until any such letter of credit shall be transferred or replaced, Seller
shall present such letter of credit for payment and deliver the proceeds
received by Seller, if any, to Purchaser within a reasonable period of time
following receipt of Purchaser’s written request.  Notwithstanding the foregoing, Seller shall
not be in default under this Agreement in the event that any such letter of
credit is not assigned to Purchaser for any reason other than the failure of
Seller to sign the documents required of it to transfer the letter of credit or
the failure of Seller to pay any fees imposed by an issuing bank in connection
with such transfers.  In such event,
Purchaser may terminate this Agreement with respect to the applicable Property
upon written notice to Seller on or before ten (10) days after Purchaser
becomes aware that a letter of credit will not be assigned on the Closing Date;
provided, however, Purchaser’s right to terminate shall not be effective in the
event that Seller, in its sole and absolute discretion, gives Purchaser a credit
against the Purchase Price in the amount of the security deposit or provides a
substitute letter of credit in that amount.


 


4.2.5                        Calculations.  For
purposes of calculating prorations, Purchaser shall be deemed to be in title to
that portion of the Properties being acquired on the Closing Date, and,
therefore entitled to the income therefrom and responsible for the expenses
thereof for the entire day upon which the Closing occurs.  All such prorations shall be made on the
basis of the actual number of days of the month which shall have elapsed as of
the day of the Closing and based upon the actual number of days in the month
and year in question.  Except as set
forth in this Section 4.2, all items of income and expense which
accrue for the period prior to the Closing will be for the account of Seller
and all items of income and expense which accrue for the period on and after
the Closing will be for the account of Purchaser.  Purchaser and Seller shall each submit or
cause to be submitted to the other (i) on or about the 90th day after Closing,
and (ii) on or about the one year anniversary of the Closing, a statement which
sets forth necessary adjustments to items subject to proration pursuant to the
provisions of this Section 4.2, if any; provided, however, no
adjustment shall be made with respect to Taxes. 
Within fifteen (15) days following delivery of such


 


5





















 


statements,
the parties shall make such adjustments among themselves as shall be necessary
to carry out the prorations as contemplated in this Section 4.2.  In the event any prorations made under this Section 4.2
shall prove to be incorrect for any reason, then any party shall be entitled to
an adjustment to correct the same.


 


4.2.6                        Leasing Commissions and Leasing Costs. 
Seller shall be responsible for all leasing commissions, tenant
improvement costs and other usual and customary leasing costs, due and owing
with respect to the current term of all Leases executed prior to the Effective
Date, whether such leasing commissions, tenant improvement costs and other
usual and customary leasing costs are due to be paid prior to or after the
Closing Date.


 


4.2.7                        Prepaid Items.  Any
prepaid items, including, without limitation, fees for licenses which are transferred
to the Purchaser at the Closing and annual permit and inspection fees shall be
apportioned between the Seller and the Purchaser at the Closing.


 


4.2.8                        Allocation of Closing Costs and Expenses. 
Seller shall bear the cost of the title policy to be issued and extended
coverage charges, the cost of the Surveys (as hereinafter defined), the cost to
record any instruments necessary to clear Seller’s title, one-half the cost of
the Closing Escrow and one-half the cost of the “New York Style” closing fee. Purchaser
shall bear the cost of any recording fees with respect to the Deeds, all costs
incurred in connection with obtaining Purchaser’s financing for this
transaction, if any, the cost of all title endorsements (other than with
respect to extended coverage), if any, one-half the cost of the Closing Escrow
and one-half the cost of the “New York Style” closing fee.  The cost of state and county transfer taxes
shall be paid by the Seller, and the cost of local transfer taxes shall be paid
by the party designated in the applicable local ordinance or local custom.  If no such designation or custom exists, and
a local transfer tax must be paid, the cost thereof shall be shared equally by
Seller and Purchaser.


 


4.2.9                        Operating Expenses.  All
operating expenses (including all charges under Contracts and agreements
assumed by Purchaser under the General Assignment, as hereinafter defined and
fees to any owner’s association) shall be prorated as of the Closing Date.  As to each service provider, operating
expenses payable or paid to such service provider in respect to the billing
period of such service provider in which the Closing Date occurs (the “Current Billing Period”), shall be prorated
on a per diem basis based upon the number of days in the Current Billing Period
prior to the Closing Date (which shall be allocated to Seller) and the number
of days in the Current Billing Period on and after the Closing Date (which
shall be allocated to Purchaser), and assuming that all charges are incurred
uniformly during the Current Billing Period. 
If actual bills for the Current Billing Period are unavailable as of the
Closing Date, then such proration shall be made on an estimated basis based
upon the most recently issued bills, subject to readjustment within thirty (30)
days of receipt of actual bills. 
Notwithstanding the foregoing, no prorations or adjustments shall be
made for portions of operating costs of the Properties to the extent a tenant
under the Leases is required to pay same pursuant to the terms of any of the Leases.
Purchaser shall be credited with an amount equal to all deposits made by
tenants and held by Seller at Closing towards the tenant’s obligation to pay
any such operating expenses.


 


ARTICLE V


Inspection


 


5.1                               Seller Deliveries. 
Purchaser acknowledges that Seller has heretofore delivered or caused to
be delivered or made available to Purchaser at the Properties all of the items
relating to the Properties specified on Exhibit
F, attached hereto, to the extent that such items were in
Seller’s possession (“Documents”);
provided, however, that except for the representations and warranties made in Article VII
hereof, Seller makes no representations or warranties of any kind regarding the


 


6





















 


accuracy,
thoroughness or completeness of or conclusions drawn in the information
contained in such documents, if any, relating to the Properties.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Purchaser acknowledges that any and all of the Documents that are not
otherwise known by or available to the public are proprietary and confidential
in nature and were delivered to Purchaser solely to assist Purchaser in
determining the feasibility of purchasing the Properties.  Purchaser agrees not to disclose such
non-public documents, or any of the provisions, terms or conditions thereof, to
any party other than a Purchaser Party/Representative, as hereinafter defined.  Purchaser shall return all of the Documents,
at such time as this Agreement is terminated for any reason.  This Section 5.1 shall survive
Closing and/or termination of this Agreement without limitation.


 


5.2                               Independent
Examination/Right to Access.  Purchaser hereby acknowledges that it has
been given, prior to the execution hereof, a full, complete and adequate
opportunity to make such legal, factual and other determinations, analyses,
inquiries and investigations as Purchaser deems necessary or appropriate in
connection with the acquisition of the Properties.  Purchaser further acknowledges that Purchaser
is relying upon its own independent examination of the Properties and all
matters relating thereto and not upon any statements of Seller (excluding the
limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser.  Notwithstanding
anything to the contrary contained in this Section 5.2, Purchaser
and its agents shall have access to the Properties and the Documents prior to
the Closing Date, but during normal business hours (with reasonable advance
notice to Seller and subject to the rights of the tenants in possession), at
Purchaser’s sole cost and expense, and at Purchaser’s and its agents’ sole risk,
to inspect the applicable Properties, provided, however, Purchaser shall not be
entitled to conduct Physical Testing or any Phase I Assessments, as said terms
are hereinafter defined, without the approval of Seller, which approval shall
not be unreasonably withheld, and further provided that prior to Purchaser
entering the Properties, Purchaser shall deliver to Seller evidence of Due
Diligence Insurance, as hereinafter defined. 
Seller shall have the right, in its discretion, to accompany Purchaser
and/or its agents during any inspection (including, but not limited to, tenant
interviews) provided that Seller does not unreasonably interfere with
Purchaser’s inspection.  The provisions
of this Section 5.2 shall survive Closing and/or termination of
this Agreement without limitation. 
Purchaser acknowledges and agrees that the Documents and investigation
available to it have been sufficient to allow Purchaser to decide whether or
not to enter into this Agreement and consummate the transaction contemplated hereby.


 


5.3                               Inspection Obligations and
Indemnity.  Purchaser and its agents and representatives
shall (a) not unreasonably disturb the tenants of the Improvements or interfere
with their use of the Real Property pursuant to their respective Leases; (b) not
interfere with the operation and maintenance of the Real Property; (c) not
injure or otherwise cause bodily harm to Seller, its agents, contractors and
employees or any tenant; (d) promptly repair any damage to any part of the
Properties or any personal property owned or held by any tenant caused by
Purchaser’s inspection of the Properties; (e) promptly pay when due the costs
of all tests, investigations and examinations done by Purchaser with regard to
the Properties; (f) not permit any liens to attach to the Properties as a
result of Purchaser’s inspection of the Properties; (g) restore the
Improvements and the surface of the Real Property to the condition in which the
same was found before any such inspection or tests were undertaken by
Purchaser; and (h) except to the extent required by law, not reveal or disclose
any information obtained pursuant to its inspections of the Properties to
anyone other than the following persons or entities (each a “Purchaser Party/Representative”): (x)
Purchaser’s


 


7





















 


prospective
lenders, members, managers, partners or other co-venturers or investors, in
connection with the proposed purchase of the Properties and their respective
representatives; and (y) Purchaser’s directors, officers, partners, members,
managers, affiliates, shareholders, employees, legal counsel, accountants,
engineers, architects, financial advisors and similar professionals and
consultants to the extent Purchaser deems it necessary or appropriate in connection
with its evaluation of the Properties. 
Purchaser shall, and does hereby agree to indemnify, defend and hold
Seller, its partners, officers, directors, employees, agents, attorneys and
their respective successors and assigns, harmless from and against any and all
claims, demands, suits, obligations, payments, damages, losses, penalties,
liabilities, costs and expenses (including, but not limited to, attorneys’
fees) arising out of Purchaser’s or Purchaser’s agents’ actions taken in, on or
about the Properties in the exercise of the inspections of Purchaser prior to
the Effective Date, including, without limitation, claims made by any tenant
against Seller for Purchaser’s entry into such tenant’s premises or any
interference with any tenant’s use of or damage to its premises or property in
connection with Purchaser’s review of the Properties.  This Section 5.3 shall survive
the Closing and/or any termination of this Agreement without limitation.
Purchaser acknowledges and agrees that the Documents and investigation
available to it have been sufficient to allow Purchaser to decide whether or
not to enter into this Agreement and consummate the transaction contemplated
hereby.


 


ARTICLE VI


Title and Survey Matters


 


6.1                               Title. 
Purchaser acknowledges that, prior to the Effective Date, Seller has
delivered to Purchaser, with respect to each Property, a title insurance
commitment or a prior title insurance policy (a “Commitment”), together with a copy of all underlying documents
referenced therein (collectively, the “Title
Documents”).  Except as
hereinafter provided, Purchaser and Seller hereby agree that (i) all Taxes that
are not due and payable prior to Closing, (ii) the rights of the tenants under
the Leases and Approved New Leases (as defined in Section 9.3 of
this Agreement), as parties in possession only, (iii) all matters created by or
on behalf of Purchaser and (iv) the exceptions to title identified on Exhibits G-1 through G-2, respectively, shall constitute “ Permitted Exceptions”. 
Notwithstanding anything to the contrary contained herein, Seller shall
be obligated to cause all of the following resulting from the act or omission
of, or caused by, Seller or grantor under the Deeds to be fully satisfied,
released and discharged of record or insured or bonded over on or prior to the
Closing Date:  all mortgages, deeds of
trust and monetary liens [including liens for delinquent taxes, mechanics’
liens and judgment liens] affecting the Properties and all indebtedness secured
thereby.


 


6.2                               Survey. 
Purchaser acknowledges receipt of Seller’s existing surveys (“Initial Surveys”) for each of the
Properties.  Seller has ordered a current
ALTA/ACSM survey for each Property to be certified to Purchaser, as well as any
affiliates and lender designated by Purchaser to Seller at least thirty (30)
days prior to Closing and Title Company (collectively, the “Surveys”) and shall deliver a copy of the
Surveys to Purchaser promptly upon receipt thereof but in all events prior to
Closing.  The surveyors shall certify the
Surveys in accordance with the form of certification attached hereto as Exhibit Q.


 


ARTICLE VII


Representations and Warranties of the Seller


 


7.1                               Seller’s Representations. 
Seller represents and warrants that the following matters are true and
correct as of the Effective Date:


 


7.1.1                        Authority.  Seller is a real estate
investment trust, duly organized, validly existing and in good standing under
the laws of the State of Maryland.  This
Agreement has been duly authorized, executed and delivered by Seller, is the legal,
valid and binding


 


8





















 


obligation
of Seller, and does not violate any provision of any agreement or judicial
order to which Seller is a party or to which Seller is subject.  All documents to be executed by Seller or
Seller Affiliates which are to be delivered at Closing, will, at the time of
Closing, (i) be duly authorized, executed and delivered by Seller or Seller
Affiliates, as the case may be, (ii) be legal, valid and binding obligations of
Seller or Seller Affiliates, as the case may be, and (iii) not violate any
provision of any agreement or judicial order to which Seller or Seller
Affiliates, as the case may be is a party or to which Seller or Seller
Affiliates, as the case may be, is subject.


 


7.1.2                        Bankruptcy or Debt of Seller. 
Neither Seller nor any Seller Affiliates has made a general assignment
for the benefit of creditors, filed any voluntary petition in bankruptcy,
admitted in writing its inability to pay its debts as they come due or made an
offer of settlement, extension or composition to its creditors generally.  Neither Seller nor any Seller Affiliates has
received any written notice of (a) the filing of an involuntary petition by
Seller’s creditors or the creditors of Seller Affiliates, (b) the appointment
of a receiver to take possession of all, or substantially all, of Seller’s
assets or the assets of Seller Affiliates, or (c) the attachment or other
judicial seizure of all, or substantially all, of Seller’s assets or the assets
of Seller Affiliates.


 


7.1.3                        Foreign Person. 
Neither Seller nor any of the Seller Affiliates is a foreign person
within the meaning of Section 1445(f) of the Internal Revenue Code (“Code”), and Seller agrees to execute and
cause the Seller Affiliates to execute any and all documents necessary or
required by the Internal Revenue Service or Purchaser in connection with such
declaration(s).


 


7.1.4                        No Violation of Laws. 
Except as set forth on Schedule 7.1.4, to Seller’s
knowledge, neither Seller nor Seller Affiliates have received any currently
effective written notice from a governmental authority that the Properties
violate any applicable ordinance of the city or village in which the Properties
are located.


 


7.1.5                        Eminent Domain. 
Except as set forth on Schedule 7.1.5, to Seller’s
knowledge, neither Seller nor Seller Affiliates have received any currently
effective written notice of an eminent domain or condemnation of the Land or
Improvements relating to the Properties.


 


7.1.6                        Hazardous Materials. 
Except as set forth on Schedule 7.1.6, to Seller’s
knowledge, except as set forth in any environmental report provided by Seller
to Purchaser, or as referenced or referred to in Section 17.23, (i)
neither Seller nor Seller Affiliates have received any uncured written notice
from the United States Environmental Protection Agency or the Illinois
Environmental Protection Agency (or any Indiana or Wisconsin agency comparable
to the Illinois Environmental Protection Agency) alleging that the Properties
are in violation of any applicable Environmental Laws or contain any Hazardous
Materials, (ii) since the date of the most recent environmental report, there have been no Hazardous Materials
installed or stored in or otherwise existing at, on, in or under the Properties
in violation of applicable Environmental Laws, and (iii) Seller has acted in
the manner that a commercially prudent property owner would act with respect to
any written recommendations made by Seller’s environmental consultants.  “Hazardous
Materials” shall mean any hazardous, toxic waste, substance or
material, pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Section 9601 et seq.), as amended, or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or any
other federal, state or local laws, ordinances, rules, regulations or policies
governing use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of such materials (collectively, “Environmental Laws”).


 


9





















 


7.1.7                        Litigation.  Except as set forth on Schedule 7.1.7,
to Seller’s knowledge, (i) neither Seller nor Seller’s Affiliates have
received any currently effective written notice of any pending litigation
affecting the Properties, and (ii) there is no action, suit or proceeding
threatened before or by any judicial, administrative or union body, any
arbitrator or any governmental authority, against or affecting the Properties.


 


7.1.8                        Leases.  Except as set forth on Schedule 7.1.8,
(i) the Rent Roll delivered to Purchaser by Seller lists all of the Leases
affecting the Properties owned by Seller or Seller’s Affiliates, (ii) the
Leases affecting the Properties delivered to Purchaser by Seller are true,
correct and complete copies of the Leases provided to or entered into by Seller
or Seller’s Affiliates relating to the Properties, and (iii) to Seller’s
knowledge, no tenant has commenced any action or given any written notice to
Seller or any Seller Affiliate for the purpose of terminating its lease in
whole or in part, whether by exercise of an express termination right in its
lease or otherwise.


 


7.1.9                        Contracts.  Except as set forth on Schedule 7.1.9,
to Seller’s knowledge, Seller has delivered to Purchaser complete copies of
each Contract provided to or entered into by Seller or Seller Affiliate
relating to the Properties.


 


7.1.10                  Defaults.  Except as set forth on Schedule 7.1.10,
or any other exhibit to this Agreement, (i)
no notice of default has been given by Seller or Seller Affiliates to any
tenant or received by Seller from any tenant under any Lease relating to the
Properties which remains uncured and (ii) no base or additional rent due under
any Lease relating to the Properties is more than thirty (30) days past due.


 


7.1.11                  Operating Statements.  To
Seller’s knowledge, the operating statements relating to the Properties
delivered by Seller to Purchaser in accordance with Section 5.1
hereof are true and correct in all material respects and no material adverse
change has occurred since the respective dates thereof.


 


7.1.12                  Bulk Sale Act. The provisions of Section 9.02(d) of
the Illinois Income Tax Act and the applicable provisions of the Retailer’s Occupation
Tax Act do not apply to this transaction.


 


7.1.13                  REIT REP The Properties consist solely of land, buildings, and other structural
components thereof, and other assets described in Section 856(c)(4)(A) of
the Code.  The total gross revenues
generated by the Properties between January 1, 2003 and the Closing Date
has consisted and will consist solely of income from rents from real property
and other revenue which constitute qualifying income under Section 856(c)(3)
of the Code (“Qualifying Income”),
and based on historical experience, Seller believes that the gross revenues
generated by the Properties after the Closing Date will consist solely of
Qualifying Income.


 


Seller
shall remake all representations and warranties as of the date of the Closing;
provided, however, at the time such warranties and representations are remade,
Seller shall provide Purchaser with updates of the Schedules referred to in the
representations and warranties set forth above and an updated operating
statement.  Purchaser acknowledges and
agrees that the representations and warranties that are made as of the Closing
Date shall refer to the updated Schedules and operating statements.


 


7.2                               Intentionally Deleted.


 


7.3                               Knowledge.  For
purposes of this Agreement and any document delivered at Closing, whenever the
phrases “to the best of Seller’s knowledge”, “to the actual knowledge of


 


10





















 


Seller”
or “to the knowledge” of Seller or words of similar import are used, they shall
be deemed to refer to the current, actual knowledge only, and not any implied,
imputed or constructive knowledge of Michael M. Mullen and James N. Clewlow,
after consultation with the property managers of each Property owned by Seller
(collectively, the “Seller Property Managers”).  Except for the obligation to consult with the
Seller Property Managers, neither Michael M. Mullen nor James N. Clewlow shall
be obligated to conduct any independent investigation, and no implied duty to
investigate shall be imputed.  Nothing
contained in this Agreement shall be deemed to impose any personal liability of
any kind on any person named in Section 7.3.


 


For
purposes of this Agreement, and any document delivered at Closing, whenever the
phrase “to the best of Purchaser’s knowledge”, “to the actual knowledge of
Purchaser” or “to the knowledge of Purchaser” or words of similar import are
used, they shall be deemed to refer to the current, actual knowledge only, and
not any implied, imputed or constructive knowledge, of Andrew Martin and Ben
Hindmarsh; provided, however, that nothing in this Agreement shall be deemed to
create or impose any personal liability of any kind on Andrew Martin or Ben
Hindmarsh.


 


7.4                               Change in
Representation/Waiver. 
Notwithstanding anything to the contrary contained herein, Purchaser
acknowledges that Purchaser shall not be entitled to rely on any representation
or warranty made by Seller in this Article VII to the extent, prior
to or at Closing, Purchaser shall have or obtain actual knowledge of any information
that was contradictory to such representation or warranty; provided, however,
if Purchaser determines prior to Closing that there is a breach of any of the
representations and warranties made by Seller above, then Purchaser may, at its
option, by sending to Seller written notice of its election either (i) exercise
its rights under Section 9.9 below if applicable, (ii) waive such
breach and/or conditions and proceed to Closing with no adjustment in the
Purchase Price and in such event Seller shall have no further liability as to
such matter thereafter, or (iii) as its sole remedy, terminate this Agreement
in its entirety in the event of any untruth or inaccuracy of (x) the
representations or warranties set forth in Sections 7.1.1, 7.1.2 or 7.1.3,
or (y) the representations and warranties set forth in the other sections of Article VII,
but only if such representations and warranties were not true or were
inaccurate on the Effective Date and such untruth or inaccuracy is “Material”
(defined below). The term “Material” as used in this Section 7.4
shall mean a liability or loss reasonably anticipated to arise out of an
untruth or inaccuracy of the representations or warranties set forth in Article VII
which (i) exceeds $500,000.00 for each affected Property, or (ii) results from
fraud or willful misconduct on the part of Seller.  In the event that Purchaser elects to
terminate this Agreement, the parties shall have no liability to each other
hereunder and the Deposit shall be returned to Purchaser and the Seller Letter
of Credit shall be returned to Seller. 
Seller shall have no liability with respect to any of the foregoing
representations and warranties or any representations and warranties made in
any other document executed and delivered by Seller to Purchaser, to the extent
that, prior to the Closing, Purchaser discovers or learns of information (from
whatever source, including, without limitation the property manager, the tenant
estoppel certificates or the Seller’s Estoppel Certificates delivered pursuant
to Section 10.1.1 below, as a result of Purchaser’s due diligence
tests, investigations and inspections of the Property, or disclosure by Seller
or Seller’s agents and employees) that contradicts any such representations and
warranties, or renders any such representations and warranties untrue or
incorrect, and Purchaser nevertheless consummates the transaction contemplated
by this Agreement.


 


7.5                               Post Closing Rights. 
Following Closing, Purchaser will have the right to bring any action
against Seller as a result of any untruth or inaccuracy of representations and
warranties made herein if (i) such untruth or inaccuracy is “Material,” and
(ii) prior to Closing Purchaser did not discover or learn information (from
whatever source) that contradicts any such representations and warranties, or
renders any such representations and warranties untrue or incorrect.  The term “Material” as used in this Section 7.5
shall mean a liability or loss reasonably anticipated to arise out of an
untruth or inaccuracy of the representations or warranties set forth in Article VII
which results from fraud or willful misconduct on the part of Seller or exceeds
$500,000 for each such affected


 


11





















 


Property,
it being understood that the foregoing limitation is a threshold which must be
exceeded, but that once such threshold has been exceeded, any post closing
claim may be pursued for its full value. 
In addition, in no event will Seller’s liability for all such breaches
relating to a specific Property, exceed, in the aggregate, the allocated
Purchase Price of the Property in question, calculated in accordance with Schedule 9.8.


 


7.6                               Survival.  The
express representations and warranties made in this Agreement shall not merge
into any instrument or conveyance delivered at the Closing; provided, however,
that any action, suit or proceeding with respect to the truth, accuracy or
completeness of representations and warranties set forth in Sections other than
Sections 7.1.1, 7.1.2 and 7.1.3 shall be commenced, if at
all, on or before the date which is twelve (12) months after the date of a
Closing and, if not commenced on or before such date, thereafter such
representations and warranties shall be void and of no force or effect as to
the applicable Closing.


 


ARTICLE VIII


Representations and Warranties of Purchaser


 


8.1                               Purchaser represents and warrants to Seller
that the following matters are true and correct as of the Effective Date.


 


8.1.1                        Authority.  Purchaser is a limited
liability company, duly organized, validly existing and in good standing under
the laws of the State of Delaware.  This
Agreement has been duly authorized, executed and delivered by Purchaser, is the
legal, valid and binding obligation of Purchaser, and does not violate any provision
of any agreement or judicial order to which Purchaser is a party or to which
Purchaser is subject.  All documents to
be executed by Purchaser which are to be delivered at Closing, will, at the
time of Closing, (i) be duly authorized, executed and delivered by Purchaser,
(ii) be legal, valid and binding obligations of Purchaser, and (iii) not
violate any provision of any agreement or judicial order to which Purchaser is
a party or to which Purchaser is subject.


 


8.1.2                        Bankruptcy or Debt of Purchaser. 
Purchaser has not made a general assignment for the benefit of
creditors, filed any voluntary petition in bankruptcy, admitted in writing its
inability to pay its debts as they come due or made an offer of settlement,
extension or composition to its creditors generally.  Purchaser has received no written notice of
(a) the filing of an involuntary petition by Purchaser’s creditors, (b) the
appointment of a receiver to take possession of all, or substantially all, of Purchaser’s
assets, or (c) the attachment or other judicial seizure of all, or
substantially all, of Purchaser’s assets.


 


8.1.3                        No Financing Contingency.  It
is expressly acknowledged by Purchaser that this transaction is not subject to
any financing contingency, and no financing for this transaction shall be
provided by Seller.


 


8.2                               Purchaser’s Acknowledgment. 
Purchaser acknowledges and agrees that, except as expressly provided in
this Agreement, Seller has not made, does not make and specifically disclaims
any and all representations, warranties, promises, covenants, agreements or
guaranties of any kind or character whatsoever, whether express or implied,
oral or written, past, present or future, including, but not limited to those
representations, warranties, promises, covenants, agreement and guaranties of,
as to, concerning or with respect to (a) the nature, quality or condition of
the Properties, including, without limitation, the water, soil and geology, (b)
the income to be derived from the Properties, (c) the suitability of the
Properties for any and all activities and uses which Purchaser may conduct
thereon, (d) the compliance of or by the Properties or its operation with any
laws, rules, ordinances or regulations of any applicable governmental authority
or body, including, without limitation, the Americans with Disabilities Act and
any rules and regulations promulgated thereunder or in connection therewith,
(e) the habitability, merchantability or fitness for a particular


 


12





















 


purpose
of the Properties, or (f) any other matter with respect to the Properties, and
specifically that except as expressly provided in this Agreement, Seller has
not made, does not make and specifically disclaims any representations
regarding solid waste, as defined by the U.S. Environmental Protection Agency
regulations at 40 C.F.R., Part 261, or the disposal or existence, in or on the
Properties, of any hazardous substance, as defined by the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, and
applicable state laws, and regulations promulgated thereunder.  Purchaser further acknowledges and agrees
that, except as expressly provided in this Agreement, having been given the
opportunity to inspect the Properties, Purchaser is relying solely on its own
investigation of the Properties and not on any information provided or to be
provided by Seller.  Purchaser further
acknowledges and agrees that subject to the representations and warranties of Seller
as provided herein and in any other document executed at Closing, any
information provided or to be provided with respect to the Properties was
obtained from a variety of sources and that Seller has not made any independent
investigation or verification of such information.  Purchaser
further acknowledges and agrees that, as a material inducement to the execution
and delivery of this Agreement by Seller, subject to the representations and
warranties of Seller provided herein and in any other document executed at
Closing, the sale of the Properties as provided for herein is made on an “AS
IS, WHERE IS” CONDITION AND BASIS “WITH ALL FAULTS.”  Purchaser acknowledges, represents
and warrants that Purchaser is not in a significantly disparate bargaining
position with respect to Seller in connection with the transaction contemplated
by this Agreement; that Purchaser freely and fairly agreed to this
acknowledgment as part of the negotiations for the transaction contemplated by
this Agreement; that Purchaser is represented by legal counsel in connection
with this transaction.


 


8.3                               Purchaser’s Release. 
Effective as of the date of the Closing, Purchaser on behalf of itself
and its successors and assigns waives its right to recover from, and forever
releases and discharges, Seller, Seller’s affiliates, Seller’s investment
manager, property manager, the partners, trustees, shareholders, beneficiaries,
directors, officers, employees, attorneys and agents of each of them, and their
respective heirs, successors, personal representatives and assigns from any and
all demands, claims, legal or administrative proceedings, losses, liabilities,
damages, penalties, causes of action, fines, liens, judgments, costs and
expenses known or unknown, foreseen or unforeseen, that may arise on account of
or in any way be connected with the Properties, except, subject to Section 7.5
hereof, such as arises out of (i) a breach of any of the representations and
warranties of Seller set forth in Article VII and (ii) any of the
provisions of this Agreement that survive Closing pursuant to the provisions of
Section 17.12 below.  The
terms and provisions of this Section 8.3 shall survive Closing
and/or termination of this Agreement without limitation.


 


8.4                               Survival.  The
express representations and warranties made in this Agreement by Purchaser
shall not merge into any instrument of conveyance delivered at the Closing;
provided, however, that any action, suit or proceeding with respect to the
truth, accuracy or completeness of all such representations and warranties
shall be commenced, if at all, on or before the date which is twelve (12)
months after the date of the Closing and, if not commenced on or before such
date, thereafter shall be void and of no force or effect as to the applicable
Closing.


 


ARTICLE IX


Seller’s Interim Operating Covenants/Seller’s and Purchaser’s
Covenants


 


9.1                               Operations. 
Seller agrees to continue to operate, manage and maintain the
Improvements through the Closing Date in the ordinary course of Seller’s
business and substantially in accordance with Seller’s present practice,
subject to ordinary wear and tear and further subject to Article XII
of this Agreement.  As of, and at all
times after the Effective Date until Closing, Seller shall name Purchaser as an
additional insured on all liability insurance policies maintained by Seller
relating to the Properties.


 


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9.2                               No Sales.  Except for the execution of tenant Leases pursuant to Section 9.3,
Seller agrees that it shall not convey any interest in the Properties to any
third party.


 


9.3                               Tenant Leases.  From and after the Effective Date, Seller shall not (i) grant any
consent or waive any material rights under the Leases, (ii) terminate any
Lease, or (iii) enter into a new lease, modify an existing Lease or renew,
extend or expand an existing Lease in any material respect without the prior
written approval of Purchaser (an “Approved
New Lease”), which in each case shall not be unreasonably withheld,
conditioned or delayed.  Any Approved New
Lease shall meet all of the following parameters: (i) such proposed lease has
an initial term (excluding any options to extend such term) of not less than
three (3) years and not more than ten (10) years; (ii) such proposed lease has
no free-rent period extending beyond the term of the Master Lease (defined
below); (iii) such proposed lease has no above-market obligation of Purchaser
to provide or fund any tenant improvements; (iv) such proposed lease provides
for base rent payable at a rate per month that is never less than 95% of the
base rent per month required to be paid for such space under the Master Lease;
(v) leasing commissions for such proposed lease do not exceed market rates;
(vi) such proposed lease does not require the landlord thereunder, and will not
result in an obligation for the landlord thereunder to alter or improve or pay
for the altering or improving of the building (other than tenant improvements
as limited by clause (iii) above and responsibility for repairing and replacing
the roof and structure, but excluding the obligation for internal wall
changes); (vii) such lease shall be on the form customarily used by Seller with
such revisions which Seller approves using its judgment as a commercially
prudent landlord; (viii) the creditworthiness of the tenant and intended use of
the premises by the tenant shall be consistent with Seller’s historical and
customary requirements as a commercially prudent landlord; and (ix) the income
to be generated from the proposed lease shall constitute qualifying income
under Section 856(c)(3) of the Code. Additionally, the parties expressly
agree that it shall not be deemed unreasonable for Purchaser to withhold,
condition or delay its consent to any Approved New Lease that includes
above-market tenant improvements, above-market leasing commissions or any other
above-market leasing costs that Purchaser would be obligated to pay or incur;
provided, however, in such event, Purchaser and Seller agree to negotiate in
good faith to agree upon such tenant improvement costs, leasing commission and
other leasing costs to render such Approved New Lease and the terms thereof
acceptable to Purchaser.  Any lease
proposed by Seller, which satisfies the criteria set forth in this Section 9.3
and would otherwise be reasonably acceptable to Purchaser, but for the fact
that such lease includes above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs, may, nonetheless, be
approved and executed by Seller, in its sole and absolute discretion, and in such
event such proposed lease shall be deemed an Approved New Lease, provided that
Seller pays all such above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs.  Purchaser’s failure to respond within five
(5) Business Days after receipt of a request for approval, together with a copy
of the proposed Approved New Lease or letter of intent to lease and credit
information on the proposed replacement tenant or tenants, shall be deemed
approval by Purchaser. Seller shall pay the portion of the tenant improvement
costs, leasing commissions and other usual and customary leasing costs with
respect to any Approved New Lease, allocated on a prorata basis over the term
of the Approved New Lease with respect to the portion of the term of the
Approved New Lease prior to a Closing and Purchaser shall pay the portion of
the tenant improvement costs, lease commissions and other usual and customary
leasing costs with respect to an Approved New Lease, allocated on a prorata basis
over the term of the Approved New Lease with respect to the portion of the term
of the Approved New Lease after the Closing.


 


9.4.                            Planned Expenditures. 
Seller shall effect and complete the planned expenditures for nominated
work and items in accordance with the description and budget set forth on Exhibit R attached hereto as a prudent
manager/owner in consultation with Purchaser, and to Purchaser’s commercially
reasonable satisfaction; in the event that upon completion of such work and
items,  the total cost of such work is
less than the total budget allocated for same, Seller shall be entitled to
retain all such unexpended amounts.  In
the event that Exhibit R
reflects that certain work is to be


 


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performed
after Closing, the obligations of Seller under this Section 9.4
with respect to that work shall survive Closing.


 


9.5                               Master Lease.  At
the Closing, Seller and Purchaser shall execute and deliver to each other a
master lease (“Master Lease”) in
the form of Exhibit H
attached hereto.


 


9.6                               Management Agreement.  At
the Closing, Seller and Purchaser shall
execute an Amendment to the Property Management Agreement between Purchaser and
CenterPoint Properties Trust adding the Properties to the definition of “Properties”
under such Management Agreement. 
Seller shall terminate any existing property management agreements
pertaining to the Properties as of the Closing Date.


 


9.7                               Intentionally Deleted.


 


9.8                               Transfer Tax Declaration
Allocation.  Purchaser and Seller agree that the Purchase
Price shall be allocated amongst the Properties as set forth on Schedule 9.8
for the purpose of completing real estate transfer declarations to be executed
by Seller and Purchaser at Closing (the “Transfer
Tax Declaration Allocation”).


 


9.9                               Substitution of Properties


 


9.9.1                        In the event of the occurrence of a
Substitution Event (defined below) prior to Closing, Purchaser may, at its
option, by written notice to Seller (“Event
Notice”) within ten (10) days after the date on which Purchaser is
given or obtains actual knowledge of the occurrence of a Substitution Event,
elect to either (i) ignore the Substitution Event and proceed to Closing with
no adjustment in the Purchase Price, or (ii) request that Seller offer a
Substitute Property or Substitute Properties (both as hereinafter defined) to
Purchaser valued in the aggregate amount of the Purchase Price allocated to the
Property or Properties (“Removed Property”
or “Removed Properties”) subject
to the Substitution Event.


 


In the event that Purchaser elects under (ii) above to have Seller
provide a Substitute Property or Substitute Properties, Seller, if it chooses
to do so, in its sole and absolute discretion, shall have a period of thirty
(30) days from the date of Purchaser’s Event Notice to correct the condition
giving rise to the Substitution Event, and further, provided, however, if such
condition is of a nature which is not capable of cure within said thirty (30)
day period and Seller has commenced to cure within such thirty (30) day period,
then Seller shall have such reasonable period of time from and after the date
of Purchaser’s Event Notice to correct the condition giving rise to the
Substitution Event.  In the event
Purchaser exercises its rights under (ii) above, and Seller elects to and cures
the condition giving rise to the Substitution Event prior to the time that the
Closing with respect to the Substitute Property occurs, the Scheduled Closing
Date for the Removed Property shall be extended to the fifteenth (15th)
day after the condition giving rise to the Substitution Event has been cured.


 


In the event that Purchaser fails to elect (i) or (ii) above within ten
(10) days after Purchaser is given or obtains actual knowledge of a
Substitution Event, Purchaser shall be deemed to have elected to waive such
condition and proceed to Closing on the Closing Date with no adjustment in the
Purchase Price.  In the event that within
said ten (10) day period Purchaser elects its rights under (ii) above and
Seller elects not to cure or elects to cure the condition but fails to do so
within the time period set forth above, Seller shall use reasonable efforts to
provide a Substitute Property or Substitute Properties as described in Section 9.9.2.  Notwithstanding any other term or condition
contained herein, (i) in no event shall the Closing with respect to the
Properties which are not subject to a Substitution Event be


 


15





















 


delayed,
and (ii) in the event of the occurrence of a Substitution Event, Seller shall
not be in default under this Agreement, Seller shall not be liable for damages
and Purchaser’s sole right and remedy shall be to exercise its rights under
this Section 9.9.1.


 


The term “Substitution Event”
shall mean any one or more of the following: (i) written notice to Purchaser
that a tenant under its lease (“Right of
First Refusal Lease”)  has
exercised a right of first refusal, right of first offer or option to purchase
a Property prior to Closing pursuant to the existing terms of its lease, (ii)
the taking of one hundred percent (100%) of a Property by condemnation or
eminent domain or (iii) any one or more of the following, to the extent the
existence of the condition hereinafter described has a “Material Adverse
Effect” on the use, value or marketability of the applicable Property: (a) the
existence of a title exception other than a Permitted Exception on an Owner’s
Policy to be issued by the Title Company at the time of the Closing; provided,
however that Seller shall, at Seller’s expense, use reasonable efforts to
obtain a title insurance endorsement to the Owner’s Policy (defined below)
insuring over any unpermitted title exception, (b) the existence of a
difference on a Survey not reflected on the Initial Surveys; (c) if Purchaser
has not been provided with a copy of a zoning endorsement issued by the Title
Company with respect to any Properties (whether in favor of Seller or
Purchaser) prior to the Effective Date and it is determined that the present
use of the Property is not permitted under the zoning ordinance in effect on
the Effective Date; (d) the physical or environmental condition of the
Properties are not the same as on the Effective Date, ordinary wear and tear
and damage by casualty excepted, provided, however, that under this subsection (d)
it shall not be a Substitution Event if a tenant of the Property is responsible
under its lease for maintaining, repairing or restoring the physical or
environmental condition in question; and (e) the existence of a breach of a
warranty or representation made by Seller under Sections 7.1.4, 7.1.6, 7.1.7
and 7.1.9 of this Agreement (or any change in the schedules
thereto).  The term “Material Adverse Effect” as used herein
shall mean that a liability or loss reasonably anticipated to arise out of the
condition under (a) Sections 9.9.1(iii)(a) or (b) which exceeds
$150,000.00 for the affected Property, or (b) under Sections 9.9.1iii(c),
(d) or (e) which exceeds seven and one-half percent (7.5%) of the
Purchase Price for the affected Property.


 


9.9.2                        In the event of the occurrence of a
Substitution Event (and notwithstanding any election by Seller to attempt to
cure the condition giving rise to the Substitution Event), Seller shall use
reasonable efforts to substitute another Property or Properties owned by Seller
that the parties mutually agree in their reasonable opinion is comparable
(individually, a “Substitute Property”
and collectively, the “Substitute Properties”).  Seller shall use reasonable efforts to
identify a Substitute Property within thirty (30) days after receipt of an
Event Notice.  Commencing on the date
that Purchaser receives a notice from Seller identifying a Substitute Property
or Substitute Properties to replace a Removed Property or Removed Properties (“Substitution of Assets Notice”), and
continuing until 5:00 p.m. Central time on the thirtieth (30th) day
thereafter (“Substitute Properties
Feasibility Period”), Purchaser and its agents shall have the right
to conduct inspections and tests of the Substitute Properties in the manner
hereby provided in Section 9.9.5 and subject to the provisions as
provided in Section 9.9.6. 
In the event that Purchaser approves all of the Substitute Properties
prior to the expiration of the Substitute Properties Feasibility Period, all of
the Substitute Properties shall be subject to this Agreement, and the Purchase
Price shall be adjusted as provided below in Section 9.9.3.  In the event that Purchaser does not approve
one or more of the Substitute Properties prior to the expiration of the
Substitute Properties Feasibility Period, the Substitute Property or Properties
not approved by Purchaser and the Removed Property or Removed Properties shall
not be subject to this Agreement, and the Purchase Price shall be reduced by
the value of the Removed Property or Removed Properties, as the case may be, as
set forth on Schedule 9.8. 
All Substitute Properties approved by Purchaser shall be deemed to be
Properties subject to this Agreement, except that all warranties and
representations shall be modified to reflect the


 


16





















 


circumstances
relating to the Substitute Properties. 
Within fifteen (15) days after the Substitution of Assets Notice, Seller
shall deliver Schedules similar to those attached hereto as Schedules 7.1.4,
7.1.5, 7.1.6, 7.1.7, 7.1.8, 7.1.9 and 7.1.10, with respect to the Substitute
Properties.


 


9.9.3                        For the purposes of this Section 9.9,
the purchase price for a Removed Property shall be based on Schedule 9.8
attached hereto, and the purchase price for a Substitute Property shall be
calculated using a capitalization rate equal to the capitalization rate that
was used to determine the Purchase Price of the Removed Property and the annual
net rent of the Substitute Property, without deductions (“Substitute Property Purchase Price”).  In the event that the Seller delivers the
Substitution of Assets Notice to Purchaser within the time frame set forth
above, the Closing of all Properties not subject to the Substitution of Assets
Notice shall take place on the date of the Scheduled Closing Date.  Subject to the right of Purchaser to
disapprove one or more of the Substitute Properties during the Substitute
Properties Feasibility Period, and further subject to the provisions of Section 4.1
above, the Closing with respect to each Substitute Property shall take place on
the thirtieth (30th) day following the expiration of the applicable
Substitute Property Feasibility Period.


 


9.9.4                        Seller shall deliver to Purchaser copies of
all notices sent by Seller to tenants under Right of First Refusal Leases as
required under the Right of First Refusal Leases, and shall notify Purchaser
promptly if it receives a notice from an Exercising Tenant.


 


9.9.5                        During the Substitute Properties Feasibility
Period, Purchaser and its agents shall have the right during business hours
(with reasonable advance notice to Seller and subject to the rights of the
tenants in possession), at Purchaser’s sole cost and expense and at Purchaser’s
and its agents’ sole risk, to perform inspections and tests of the Substitute
Properties and to perform such other analyses, inquiries and investigations as
Purchaser shall deem reasonably necessary or appropriate; provided, however,
that in no event shall (i) such inspections or tests unreasonably disrupt or
disturb the on-going operation of the Substitute Properties or the rights of
the tenants at the Substitute Properties, or (ii) Purchaser or its agents or
representatives conduct any physical testing, drilling, boring, sampling or
removal of, on or through the surface of the Substitute Properties (or any part
or portion thereof) including, without limitation, any ground borings or
invasive testing of the Improvements (collectively, “Physical Testing”), without Seller’s prior written consent,
which consent may be given or withheld in Seller’s sole and absolute
discretion.  Seller acknowledges and
agrees that the performance of a phase I environmental assessment on behalf of
Purchaser (“Phase I Assessments”)
shall not be considered Physical Testing for purposes hereof and shall be
permitted without Purchaser obtaining the consent of Seller.  In the event Purchaser desires to conduct any
such Physical Testing of a Substitute Property, then Purchaser shall submit to
Seller, for Seller’s approval, a written detailed description of the scope and
extent of the proposed Physical Testing, which approval may be given or
withheld in Seller’s sole and absolute discretion.  In no event shall Seller be obligated as a
condition of this transaction to perform or pay for any environmental
remediation of the Substitute Properties recommended by any such Physical
Testing.  After making such tests and
inspections, Purchaser agrees to promptly restore the Substitute Properties to
their condition prior to such tests and inspections (which obligation shall
survive the Closing or any termination of this Agreement).  In addition to the rights available to the
Purchaser during the Substitute Properties Feasibility Period, as set forth
above, Purchaser and its agents shall have access to the Substitute Properties
prior to the Closing Date, but during normal business hours (with reasonable
advance notice to Seller and subject to the rights of the tenants in
possession), at Purchaser’s sole cost and expense, and at Purchaser’s and its
agents’ sole risk, to inspect the applicable Substitute Properties; provided,
however, Purchaser shall not be entitled to conduct any Physical Testing or any


 


17





















 


Phase
I Assessment after the expiration of the Substitute Properties Feasibility
Period.  Prior to Purchaser entering the
Substitute Properties to conduct the inspections and tests described above,
including, but not limited to, the Phase I Assessments, Purchaser shall obtain
and maintain, at Purchaser’s sole cost and expense, and shall deliver to Seller
evidence of, the following insurance coverage, and shall cause each of its
agents and contractors to obtain and maintain, and, upon request of Seller,
shall deliver to Seller evidence of, the following insurance coverage:  general liability insurance, from an insurer
reasonably acceptable to Seller, in the amount of Five Million and No/100
Dollars ($5,000,000.00) combined single limit for personal injury and property
damage per occurrence, such policy to name Seller as an additional insured
party, which insurance shall provide coverage against any claim for personal
liability or property damage caused by Purchaser or its agents, employees or
contractors in connection with such inspections and tests (“Due Diligence Insurance”).  Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its
agents do not unreasonably interfere with Purchaser’s inspection.


 


9.9.6                        Purchaser and its agents and representatives
shall:  (a) not unreasonably disturb the
tenants of the Substitute Properties or interfere with their use of the
Substitute Properties pursuant to their respective Leases; (b) not interfere
with the operation and maintenance of the Substitute Properties; (c) not damage
any part of the Substitute Properties or any personal property owned or held by
any tenant; (d) not injure or otherwise cause bodily harm to Seller, its agents,
contractors and employees or any tenant; (e) promptly pay when due the costs of
all tests, investigations and examinations done with regard to the Substitute
Properties; (f) not permit any liens to attach to the Substitute
Properties by reason of the exercise of its rights hereunder; (g) restore the
Improvements and the surface of the Substitute Properties to the condition in
which the same was found before any such inspection or tests were undertaken;
and (h) except to the extent required by applicable laws, not reveal or
disclose any information obtained pursuant to its right to evaluate set forth
in Section 9.9.5 above concerning the Substitute Properties to
anyone other than a Purchaser Party/Representative.  Purchaser shall, at its sole cost and expense,
comply with all applicable federal, state and local laws, statutes, rules,
regulations, ordinances or policies in conducting its inspection of the
Substitute Properties, the Purchaser’s Phase I Assessments and the Physical
Testing.  Purchaser shall, and does
hereby agree to indemnify, defend and hold the Seller, its partners, members,
officers, directors, employees, agents, attorneys and their respective
successors and assigns, harmless from and against any and all claims, demands,
suits, obligations, payments, damages, losses, penalties, liabilities, costs
and expenses (including but not limited to attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Substitute
Properties in the exercise of the inspection right granted pursuant to Section 9.9.5,
including, without limitation, (i) claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use or damage to its premises or property in connection with
Purchaser’s review of the Substitute Properties, and (ii) Purchaser’s
obligations pursuant to this Section 9.9.6.  This Section 9.9.6 shall survive
the Closing of the Substitute Properties and/or any termination of this
Agreement without limitation.


 


9.9.7                        With respect to the Substitute Properties,
Seller shall deliver to Purchaser or make available at the applicable
Substitute Property or Seller’s office in Oak Brook, Illinois, at Seller’s
option, the following: operating statements, leases, reports relating to the
physical and/or environmental condition of the applicable Substitute
Properties, a statement of the estimated value of the applicable Substitute
Properties from an independent industrial real estate broker with at least ten
(10) years experience in the marketplace (which value shall not be binding on
Seller or Purchaser), rent rolls and revenue and expense statements,


 


18





















 


Seller
and Purchaser shall use reasonable efforts to agree upon the format and scope
of such materials, but agree that the format and scope shall be similar to the
materials typically provided by Seller to Purchaser in connection with the sale
of the Properties in accordance with Section 5.1 hereof (the “Substitute Property Documents”); provided,
however, that except for the representations and warranties made in Article VII
hereof, Seller makes no representations or warranties of any kind regarding the
accuracy, thoroughness or completeness of or conclusions drawn in the
information contained in such Substitute Properties Documents.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Notwithstanding anything contained in the preceding sentence, Seller
shall not deliver or make available to Purchaser Seller’s internal memoranda,
attorney-client privileged materials, internal appraisals and economic
evaluations of the Substitute Properties, and reports regarding the Substitute
Properties prepared by Seller or its affiliates solely for internal use or for
the information of the investors in Seller. 
Purchaser acknowledges that any and all of the Substitute Properties
Documents that are not otherwise known by or available to the public are
proprietary and confidential in nature and will be delivered to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Substitute Properties.  Purchaser agrees
not to disclose such non-public documents, or any of the provisions, terms or
conditions thereof, to any party other than a Purchaser
Party/Representative.  Purchaser shall
return all of the Substitute Properties Documents, on or before three (3)
Business Days after the first to occur of (a) such time as Purchaser notifies
Seller in writing that it shall not acquire the Substitute Properties, or (b)
such time as this Agreement is terminated for any reason.  This Section 9.9.7 shall survive
any termination of this Agreement without limitation.


 


9.9.8                        Purchaser hereby acknowledges that it will
have been given, prior to the termination of the Substitute Properties
Feasibility Period, a full, complete and adequate opportunity to make such
legal, factual and other determinations, analyses, inquiries and investigations
as Purchaser deems necessary or appropriate in connection with the acquisition
of the Substitute Properties.  Purchaser
will be relying upon its own independent examination of the Substitute
Properties and all matters relating thereto and not upon any statements of
Seller (excluding the limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Substitute Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser relating to the Substitute Properties.  The provisions of this Section 9.9.8
shall survive Closing and/or termination of this Agreement without limitation.


 


9.10                        Contracts. 
Seller shall not, with respect to a Contract that will survive Closing,
from and after the Effective Date, terminate an existing Contract, enter into a
new Contract or modify an existing Contract without the prior written approval
of Purchaser, which consent in each case shall not be unreasonably conditioned,
withheld or delayed and which shall be deemed granted if Purchaser fails to
respond to a request for approval within five (5) Business Days after receipt
of the request therefor together with a summary of the terms of the Contract
(an “Approved New Contract”).  Schedule 9.10 attached hereto
contains a list of Contracts for the Properties that Purchaser will assume as
of the Closing, and a list of Contracts for the Properties that Purchaser is
requesting Seller to terminate as of the Closing (the “Unassumed Contracts”).  Provided that the Closing occurs hereunder,
Seller shall terminate such applicable Unassumed Contracts effective as of the
Closing Date and deliver evidence at such Closing of such termination.


 


9.11                        Intentionally Deleted.


 


19





















 


9.12                        REA Estoppels. 
Attached hereto as Schedule 9.12 is a list of REA and other
Property-related estoppels that Purchaser would like to obtain prior to Closing
(collectively, the “REA Estoppels”).  Purchaser shall prepare and deliver to Seller
REA Estoppel Certificates for each of the REA Estoppels (the “REA Estoppel Certificates”), and Seller
shall send out the REA Estoppel Certificates for execution prior to the Closing
Date, it being understood that obtaining the REA Estoppel Certificates shall
not be a condition to Purchaser’s obligation to close.


 


ARTICLE X


Closing Conditions


 


10.1                        Conditions to Obligations of
Purchaser.  The obligations of Purchaser under this
Agreement to purchase the Properties and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Scheduled Closing Date, except to the extent that
any of such conditions may be waived by Purchaser in writing at Closing.


 


10.1.1                  Tenant Estoppels. 
Purchaser shall have received tenant estoppel certificates dated not
more than thirty (30) days prior to the Closing from seventy-five percent (75%)
of the occupied square footage in the Properties.  Seller agrees to deliver to each tenant a
tenant estoppel certificate substantially in the form attached hereto as Exhibit K.  Notwithstanding the foregoing, in the event
that a Lease requires a different form of estoppel certificate or requires
specific provisions, Purchaser shall be required to accept a tenant estoppel
certificate that is substantially in the form required by said Lease or substantially
in the form of Exhibit K as
modified to comply with the specific provisions required by said Lease.  Additionally, Purchaser acknowledges that
while the statements set forth in paragraphs 8 and 9 of Exhibit K are not qualified to the
knowledge or best knowledge of the tenant, Purchaser shall be required to
accept any tenant estoppel certificate that has been qualified to the knowledge
or best knowledge of the tenant with respect to said paragraphs.  Notwithstanding the foregoing, at Seller’s
sole option, Seller may (i) extend the Scheduled Closing Date solely with
respect to up to five (5) of the Properties for up to an additional thirty (30)
days in order to satisfy the foregoing requirement for such Properties, in
which event Seller shall deliver notice of such extension with respect to such
Properties to Purchaser prior to the Scheduled Closing Date (and the Closing
shall proceed as scheduled with respect to all other Properties), and/or (ii)
provide its own estoppel (“Seller’s Estoppel”)
in the form attached as Exhibit L
to Purchaser in satisfaction of the foregoing requirements with respect to not
more than twenty-five percent (25%) of the occupied square footage of the
Properties.  In the event that Seller has
not complied with the provisions of this Section 10.1.1, Purchaser
may (i) elect to consummate the Closing, or (ii) notify Seller of its intent to
terminate this Agreement by written notice (the “Tenant Estoppel Termination Notice”) on or before the
Scheduled Closing Date.  In the event
that, after the Closing, Seller delivers to Purchaser a tenant estoppel
certificate from a tenant for whom Seller executed a Seller’s Estoppel at the
Closing and such tenant estoppel certificate contains no information which is
contradictory to or inconsistent with the information contained in the Seller’s
Estoppel, then Seller thereafter shall be released from all liability relating
to Seller’s Estoppel with respect to such tenant’s Lease.  In no event shall Seller be obligated to
deliver updates to the tenant estoppel certificate or Seller’s Estoppel.


 


10.1.2                  Title Policy.  The
Title Company shall be prepared to issue to Purchaser on the Closing Date an
extended coverage ALTA Form B policy of title insurance, amended October 17,
1970 (the “Owner’s Policy”), or equivalent
form Owner’s Policy acceptable to Purchaser, with respect to each Property in
the Properties, in the face amount of the applicable Purchase Price
attributable to such Property, and dated as of the Closing Date,


 


20










 













 


indicating
title to such Property is vested of record in Purchaser, subject solely to the
applicable Permitted Exceptions.


 


10.1.3                  Possession of the Property. 
Delivery by Seller of possession of the applicable Property, subject to
the Permitted Exceptions and the rights of tenants under the applicable Leases
and Approved New Leases.


 


ARTICLE XI


Closing


 


11.1                        Purchaser’s Closing
Obligations.  Purchaser, at its sole cost and expense,
shall deliver or cause to be delivered to Seller and the Title Company at each
Closing the following, as same relates to the Properties:


 


11.1.1                  The applicable portion of the Purchase Price,
after all adjustments are made at the Closing as herein provided, by wire
transfer or other immediately available federal funds, which amount shall be
received in escrow by the Title Company at or before 11:00 a.m. Central
time.


 


11.1.2                  An assumption of a blanket conveyance and
bill of sale, substantially in the form attached hereto as Exhibit M (“General Assignment”), duly executed by
Purchaser, conveying and assigning to Purchaser the applicable Personal
Property, Leases, Contracts, records and plans, and Intangible Property.


 


11.1.3                  Executed counterparts of the Master Lease and
the Amendment to Management Agreement with respect to the Closing, and such
other documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.1.4                  Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings, if requested by the Title Company.


 


11.2                        Seller’s Closing Obligations. 
Seller, at its sole cost and expense, shall deliver or cause to be
delivered to Purchaser and the Title Company the following, as same relates to
each of the Properties and the Properties, as the case may be:


 


11.2.1                  A Special warranty deed (a “Deed”) in recordable form properly executed
by Seller conveying to Purchaser the Land and Improvements in fee simple,
subject only to the Permitted Exceptions, substantially in the form attached
hereto as Exhibit N
(as modified in order to satisfy any State-specific requirements with respect
to the States of Indiana and Wisconsin, if applicable).


 


11.2.2                  A General Assignment, duly executed by
Seller, conveying and assigning to Purchaser the Personal Property, the Leases,
the Contracts and the Intangible Property.


 


11.2.3                  Written notice to the tenant(s) (i) acknowledging
the sale of the Property to Purchaser, (ii) acknowledging that Purchaser
has received and is responsible for any security deposits identified in the
rent roll, and (iii) indicating that rent should thereafter be paid to
Purchaser, substantially in the form attached hereto as Exhibit O.


 


21





















 


11.2.4                  A certificate substantially in the form
attached hereto as Exhibit P
(“Non-foreign Entity Certification”)
certifying that Seller is not a “foreign person” as defined in the Code.


 


11.2.5                  Executed counterparts of the Master Lease and
the Amendment to Management Agreement with respect to the Closing, and such
other documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.2.6                  Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings.


 


11.2.7                  Purchaser and Seller have agreed that
possession (but not ownership) of all original Leases, tenant files and
Contracts shall remain with Seller following Closing, in its capacity as
Property Manager but that ownership of such items shall pass to Purchaser.  Any duplicate originals of Leases and
Contracts in Seller’s possession or control shall be delivered to Purchaser
promptly after Closing.


 


11.2.8                  All REA Estoppel Certificates received by
Seller, if any.


 


11.2.9                  A certificate of Seller by which Seller
reaffirms the truth and accuracy in all material respects of the
representations and warranties set forth in Sections 7.1 above, subject
to and setting forth any changes thereto occurring since the Effective Date.


 


11.2.10  Reliance letters with
respect to and permitting Purchaser to rely on the most recent Phase 1
environmental reports provided by Seller to Purchaser from the consultant who
prepared the applicable environmental report.


 


11.3                        Joint Closing Obligations.  Purchaser and Seller shall execute
and deliver a closing statement for each of the Properties setting forth the
applicable Purchase Price, and any and all prorations and credits between the
parties, as determined pursuant to this Agreement, together with real estate
transfer tax declarations as required.


 


ARTICLE XII


Risk of
Loss


 


12.1                        Condemnation and Casualty.  If,
prior to the Closing Date, any portion of the applicable Properties are taken
by condemnation or eminent domain, or is the subject of a pending taking which
has not been consummated, or is destroyed or damaged by fire or other casualty,
Seller shall notify Purchaser of such fact promptly after Seller obtains
knowledge thereof.  If such condemnation
or casualty is “Material” (as
hereinafter defined), Purchaser shall have the option to either (i) extend
the Scheduled Closing Date solely with respect to the applicable Property for a
time reasonably required by Seller to repair any damage or destruction with
respect to the applicable Property (and the Scheduled Closing Date shall
proceed as scheduled with respect to all other Properties), or (ii) proceed
to Closing in accordance with the terms of Section 12.1. If
Purchaser elects to proceed to Closing, then Seller shall not be obligated to
repair any damage or destruction with respect to the applicable Property, but
(x) Seller shall assign, without recourse, and turn over to Purchaser all of
the insurance proceeds or condemnation proceeds, as applicable, net of any
costs of repairs and net of reasonable collection costs (or, if such have not
been awarded, all of its right, title and interest therein) payable with
respect to such fire or other casualty or condemnation including any rent
abatement insurance for such casualty or condemnation and (y) the parties shall
proceed to Closing pursuant to the terms hereof without abatement of the Purchase
Price except for a credit in the amount of the applicable insurance deductible.


 


22





















 


12.2                        Condemnation Not Material.  If
the condemnation is not Material, then the Closing shall occur without
abatement of the Purchase Price and, after deducting Seller’s reasonable costs
and expenses incurred in collecting any award, Seller shall assign, without
recourse, all awards or any rights to collect awards to Purchaser on the
Closing Date.


 


12.3                        Casualty Not Material.  If
the Casualty is not Material, then the Closing shall occur without abatement of
the Purchase Price except for a credit in the amount of the applicable
deductible and Seller shall not be obligated to repair such damage or
destruction and Seller shall assign, without recourse, and turn over to
Purchaser all of the insurance proceeds net of any costs of repairs completed
to date and net of reasonable collection costs (or, if such have not been
awarded, all of its right, title and interest therein) payable with respect to
such fire or such casualty including any rent abatement insurance for such
casualty.


 


12.4                        Materiality.  For
purposes of this Article XII, (i) with respect to a taking by
condemnation or eminent domain, the term “Material”
shall mean any condemnation or taking which would materially impede access to a
Property, reduce available parking at a Property below that required by
applicable law or any other agreement affecting such Property, result in the
termination of any Lease of more than ten percent (10%) of the space in the
applicable Property, or result in a condemnation award reasonably estimated to
exceed ten percent (10%) of the Purchase Price applicable to such Property; and
(ii) with respect to a casualty, the term “Material” shall mean any casualty such that the cost of
repair, as reasonably estimated by an engineer designated by Seller and
Purchaser, is in excess of ten percent (10%) of the Purchase Price applicable
to such Property.


 


ARTICLE XIII


Default


 


13.1                        Default by Seller.  IN
THE EVENT THE CLOSING AND THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS
PROVIDED HEREIN BY REASON OF ANY DEFAULT OF SELLER, WHICH DEFAULT IS NOT CURED
WITHIN TWO (2) DAYS AFTER WRITTEN NOTICE FROM PURCHASER TO SELLER, IT
WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH
PURCHASER MAY SUFFER.  THEREFORE,
THE PARTIES HAVE AGREED THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT
THAT PURCHASER WOULD SUFFER IN SUCH EVENT IS AND SHALL BE THE RIGHT TO RETAIN
THE PROCEEDS OF THE SELLER LETTER OF CREDIT, 
AS LIQUIDATED DAMAGES, AS PURCHASER’S SOLE AND EXCLUSIVE REMEDY UNDER
THIS AGREEMENT.  SUCH LIQUIDATED DAMAGES
ARE NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE
LAWS.  Notwithstanding the foregoing, nothing
contained herein shall limit Purchaser’s remedies at law or in equity, as to
the Surviving Termination Obligations.


 


13.2                        Default by Purchaser;
Liquidated Damages.  IN THE EVENT THE CLOSING AND THE TRANSACTIONS
CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF ANY DEFAULT OF
PURCHASER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS AFTER WRITTEN
NOTICE FROM SELLER TO PURCHASER, IT WOULD BE IMPRACTICAL AND EXTREMELY
DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER.  THEREFORE, THE PARTIES HAVE AGREED THAT A
REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN SUCH
EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE PROCEEDS OF THE PURCHASE
LETTER OF CREDIT, AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE
REMEDY UNDER THIS AGREEMENT.  SUCH
LIQUIDATED DAMAGES ARE NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE
MEANING OF APPLICABLE LAWS. 
Notwithstanding the foregoing, nothing contained herein shall limit
Seller’s remedies at law or in equity, as to the Surviving Termination
Obligations.


 


23





















 


ARTICLE XIV


Brokers


 


14.1                        Brokers. 
Purchaser and Seller each represents and warrants to the other that it
has not dealt with any person or entity entitled to a brokerage commission,
finder’s fee or other compensation with respect to the transaction contemplated
hereby.  Purchaser hereby agrees to
indemnify, defend, and hold Seller harmless from and against any losses,
damages, costs and expenses (including, but not limited to, attorneys’ fees and
costs) incurred by Seller by reason of any breach or inaccuracy of the
Purchaser’s ( or its nominee’s) representations and warranties contained in
this Article XIV.  Seller
hereby agrees to indemnify, defend, and hold Purchaser harmless from and
against any losses, damages, costs and expenses (including, but not limited to,
attorneys’ fees and costs) incurred by Purchaser by reason of any breach or
inaccuracy of Seller’s representations and warranties contained in this Article XIV.  The provisions of this Article XIV
shall survive the Closing and/or termination of this Agreement.


 


ARTICLE XV


Confidentiality


 


15.1                        Confidentiality. 
Purchaser expressly acknowledges and agrees that the transactions
contemplated by this Agreement, the Documents that are not otherwise known by
or readily available to the public and the terms, conditions and negotiations
concerning the same shall be held in the strictest confidence by Purchaser and
shall not be disclosed by Purchaser except to a Purchaser Party/Representative,
and except and only to the extent that such disclosure may be necessary for its
performance hereunder.  Purchaser agrees
that it shall instruct each of its Purchaser Party/Representatives to maintain
the confidentiality of such information and at the request of Seller, to
promptly inform Seller of the identity of each such Purchaser
Party/Representative.  Purchaser further
acknowledges and agrees that, unless and until the Closing occurs, all information
and materials obtained by Purchaser in connection with the Properties that are
not otherwise known by or readily available to the public will not be disclosed
by Purchaser to any third persons (other than to its Purchaser
Party/Representatives) without the prior written consent of Seller.  If the transaction contemplated by this
Agreement does not occur for any reason whatsoever, Purchaser shall promptly
return to Seller, and shall instruct its Purchaser Party/Representatives to
return to Seller, all copies and originals of all documents and information
provided to Purchaser.  Nothing contained
in Section 5.2 of this Agreement or this Section 15.1
shall preclude or limit either party from disclosing or accessing any
information otherwise deemed confidential under Section 5.2 or this
Section 15.1 in connection with the party’s enforcement of its
rights following a disagreement hereunder or in response to lawful process or
subpoena or other valid or enforceable order of a court of competent
jurisdiction or any filings or disclosures with any applicable Authorities (In
the Unites States and/or Australia) required by reason of the transactions
provided for herein and/or any filings or disclosures required in accordance
with the laws or market rules (including stock exchange rules) of the
United States and/or Australia.  The
provisions of this Section 15.1 shall survive any termination of
this Agreement without limitation.


 


15.2                        Post Closing Publication. 
Notwithstanding the foregoing, following Closing, Purchaser and Seller
shall have the right to announce the acquisition of the Properties in
newspapers and real estate trade publications (including “tombstones”)
publicizing the purchase provided that Purchaser and Seller shall consult one
another with respect to any such notice or publication, and shall implement any
reasonable comments or objections of the other. 
Seller may also publicize the sale of the Property in the ordinary
course of its business.  The provisions
of this Section 15.2 shall survive Closing and/or any termination
of this Agreement without limitation.


 


24





















 


ARTICLE XVI


1031
Exchange


 


16.1                        1031 Exchange. 
Purchaser agrees to cooperate with Seller for purposes of effecting and
structuring, in conjunction with the sale of the Properties, for the benefit of
Seller, a like-kind exchange of real property, whether simultaneous or a
deferred exchange, pursuant to Section 1031 of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated thereunder.  Purchaser specifically agrees to execute such
documents and instruments as are reasonably necessary to implement such an
exchange.  Seller shall be solely
responsible for assuring that the structure of any proposed exchange is
effective for Seller’s tax purposes. 
Furthermore, Purchaser specifically agrees that Seller may assign this
Agreement and any of its rights or obligations hereunder, in whole or in part,
as necessary or appropriate in furtherance of effectuating a Section 1031
like-kind exchange for the Properties, provided that such assignment shall not
serve to relieve Seller of any liability for Seller’s obligations
hereunder.  Purchaser shall have no
obligation to pay costs or expenses of effectuating such exchange, no such
exchange shall alter the time for performance set forth herein, and Purchaser
shall not be required to take title to any exchange property or (except for
customary consent to assignment of this Agreement to an exchange intermediary)
to incur obligations to third parties.


 


ARTICLE XVII


Miscellaneous


 


17.1                        Notices.  Any
and all notices, requests, demands or other communications hereunder shall be
in writing and shall be deemed properly served (i) on the date sent if
transmitted by hand delivery with receipt therefor, (ii) on the date sent
if transmitted by facsimile (with confirmation by hard copy to follow by
overnight delivery service), (iii) on the date sent if scanned to a .pdf
file and transmitted by e-mail (with confirmation by hard copy to follow by
overnight delivery service) (iv) on day after the notice is deposited with
a nationally recognized overnight courier, or (v) upon receipt after being
sent by registered or certified mail, return receipt requested, first class
postage prepaid, addressed as follows (or to such new address as the addressee of
such a communication may have notified the sender thereof):


 


	
  To Purchaser:

  	
   

  	
  CenterPoint
  James Fielding, LLC

  Level 5, 40 Miller Street

  North Sydney, NSW 2060

  Australia

  Attn: Mr. Ben Hindmarsh

  Fax No.: 61 2 9004 8462

  E-Mail: benhindmarsh@mirvac.com.au

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Wildman
  Harrold Allen & Dixon LLP

  225 W. Wacker Drive, Suite 3000

  Chicago, Illinois 60606

  Attn: Kathleen M. Gilligan, Esq.

  Fax No.: (312) 201-2555

  E-Mail:gilligan@wildmanharrold.com

  



 


25





















 


	
  To Seller:

  	
   

  	
  CenterPoint
  Properties Trust

  1808 Swift Drive

  Oak Brook, Illinois60523

  
	
   

  	
   

  	
  Attn:

  	
  Mr. James
  N. Clewlow

  
	
   

  	
   

  	
   

  	
  and
  Mr. Michael M. Mullen

  
	
   

  	
   

  	
  Fax No.:   (630) 586-8010

  
	
   

  	
   

  	
  E-Mail:

  	
  jclewlow@centerpoint-prop.com

  
	
   

  	
   

  	
  E-Mail:

  	
  mmullen@centerpoint-prop.com

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Weinberg
  Richmond LLP

  333 West Wacker Drive, Suite 1800

  Chicago, Illinois 60606

  Attn: Mark S. Richmond, Esq.

  
	
   

  	
   

  	
  Fax No.:

  	
  (312) 807-3903

  
	
   

  	
   

  	
  E-Mail

  	
  mrichmond@wr-llp.com

  
						



 


17.2                        Governing Law.  This
Agreement shall be governed by and construed in accordance with the internal,
substantive laws of the State of Illinois, without regard to the conflict of
laws principles thereof.


 


17.3                        Headings.  The
captions and headings herein are for convenience and reference only and in no
way define or limit the scope or content of this Agreement or in any way affect
its provisions.


 


17.4                        Effective Date.  This
Agreement shall be effective upon delivery of this Agreement fully executed by
the Seller and Purchaser, which date shall be deemed the Effective Date hereof.  Either party may request that the other party
promptly execute a memorandum specifying the Effective Date.


 


17.5                        Business Days.  If
any date herein set forth for the performance of any obligations of Seller or
Purchaser or for the delivery of any instrument or notice as herein provided
should be on a Saturday, Sunday or legal holiday, the compliance with such
obligations or delivery shall be deemed acceptable on the next business day
following such Saturday, Sunday or legal holiday.  As used herein, the term “legal holiday”
means any state or Federal holiday for which financial institutions or post
offices are generally closed in the state where the Property is located.


 


17.6                        Counterpart Copies.  This
Agreement may be executed in two or more counterpart copies, all of which
counterparts shall have the same force and effect as if all parties hereto had
executed a single copy of this Agreement.


 


17.7                        Binding Effect.  This
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.


 


17.8                        Assignment. 
Purchaser shall not have the right to assign this Agreement without
Seller’s prior written consent, which consent may be given or withheld in
Seller’s sole and absolute discretion; provided, however, Purchaser may
designate a wholly owned subsidiary to acquire title to the Properties at
Closing or assign its right, title and interest under this Agreement to a
wholly owned subsidiary, provided that in no event will Purchaser be released
from any of its obligations or liabilities under this Agreement.  Seller may assign this Agreement in whole or
in part to any corporate, limited liability company or partnership entity
affiliated with, or related to, Seller (“Affiliate”)
without Purchaser’s consent; provided that Seller shall in no event be released
from any of its obligations or liabilities hereunder as a result of any such
assignment.  In the event that an
Affiliate shall be designated as a transferee hereunder, the Affiliate shall
have the benefit of all of the


 


26





















 


representations
and rights that would otherwise have run in favor of Seller, which, by the
terms of this Agreement, are incorporated or relate to the conveyance in
question.  All transferees and assignees
of Purchaser (“Assignee”) shall
assume all of Purchaser’s obligations under this Agreement pursuant to an
Assignment and Assumption Agreement reasonably acceptable to Seller, and
consented to in writing by Seller.  In
the event the rights and obligations of Purchaser shall be transferred,
assigned and assumed as permitted under this Agreement, then such Assignee will
be substituted in place of such assignor in the above-provided-for documents
and it shall be entitled to the benefit of and may enforce Seller’s covenants,
representations and warranties hereunder provided that Purchaser shall in no
event be released from any of its obligations or liabilities hereunder as a
result of such assignment.  Upon any such
assignment by Purchaser or any successor or assign of Purchaser, then the
assignor’s liabilities and obligations hereunder or under any instruments,
documents or agreements made pursuant hereto shall be binding upon Assignee;
provided, however, that Assignee shall have the benefit of any limitations of
such liabilities and obligations applicable to either the assignor or Assignee,
provided by law or by the terms hereof or such instruments, documents or
agreements.  Whenever reference is made
in this Agreement to Seller or Purchaser, such reference shall include the
successors and assigns of such party under this Agreement.  Purchaser may assign this Agreement for
collateral purposes only to Purchaser’s lender.


 


17.9                        Interpretation.  This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that both Seller and
Purchaser have contributed substantially and materially to the preparation of this
Agreement.


 


17.10                 Entire Agreement.  This
Agreement and the Exhibits attached hereto contain the final and entire
agreement between the parties hereto with respect to the sale and purchase of
the Property and are intended to be an integration of all prior negotiations
and understandings.  Purchaser, Seller
and their agents shall not be bound by any terms, conditions, statements,
warranties or representations, oral or written, not contained herein.  No change or modifications to this Agreement
shall be valid unless the same is in writing and signed by the parties
hereto.  Each party reserves the right to
waive any of the terms or conditions of this Agreement which are for their
respective benefit and to consummate the transaction contemplated by this
Agreement in accordance with the terms and conditions of this Agreement which
have not been so waived.  Any such waiver
must be in writing signed by the party for whose benefit the provision is being
waived.


 


17.11                 Severability.  If
any one or more of the provisions hereof shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


17.12                 Survival. 
Except for obligations that survive the Closing pursuant to the
provisions of Sections (and related subparagraphs) 4.2, 5.1, 5.2,
5.3, 6.2, 7.4, 7.5, 7.6, 8.3, 8.4,
9.4, 9.9, 9.11, 10.2, 14.1, 15.1, 15.2,
17.15, 17.16,  17.20 and 17.23 (collectively, the “Surviving Termination Obligations”), the
provisions of this Agreement and the representations and warranties herein
shall not survive after the conveyance of title and payment of the Purchase
Price but be merged therein.


 


17.13                 Exhibits and Schedules.  Exhibits A through S and Schedules 7.1.4 through 9.12
attached hereto are incorporated herein by reference.


 


17.14                 Time.  Time
is of the essence in the performance of each of the parties’ respective
obligations contained herein.


 


27





















 


17.15                 Limitation of Liability.  No
present or future partner, member, manager, director, officer, shareholder,
employee, advisor, affiliate or agent of or in Purchaser or any affiliate of
Purchaser shall have any personal liability, directly or indirectly, under or
in connection with this Agreement or any agreement made or entered into under
or in connection with the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Seller and its successors and assigns and, without limitation,
all other persons and entities, shall look solely to Purchaser’s assets for the
payment of any claim or for any performance, and Seller hereby waives any and
all such personal liability.  For
purposes of this Section 17.15, no negative capital account or any
contribution or payment obligation of any partner or member in Purchaser shall
constitute an asset of Purchaser.  The
limitations of liability contained in this Paragraph are in addition to, and
not in limitation of, any limitation on liability applicable to Purchaser
provided elsewhere in this Agreement or by law or by any other contract, agreement
or instrument.  All documents to be
executed by Purchaser shall also contain the foregoing exculpation.


 


No
present or future partner, member, director, officer, shareholder, employee,
advisor, affiliate or agent of or in Seller or any affiliate of Seller shall
have any personal liability, directly or indirectly, under or in connection
with this Agreement or any agreement made or entered into under or in
connection with the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Purchaser and its successors and assigns and, without
limitation, all other persons and entities, shall look solely to Seller’s
assets for the payment of any claim or for any performance, and Purchaser
hereby waives any and all such personal liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Seller shall constitute an asset of Seller.  The limitations of liability contained in
this Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Seller provided elsewhere in this Agreement or by law
or by any other contract, agreement or instrument.  All documents to be executed by Seller shall
also contain the foregoing exculpation. 
The provisions of this Section 17.15 shall survive Closing
and/or any termination of this Agreement.


 


17.16                 Prevailing Party. 
Should either party employ an attorney to enforce any of the provisions
hereof, (whether before or after Closing, and including any claims or actions
involving amounts held in escrow), the non-prevailing party in any final
judgment agrees to pay the other party’s reasonable expenses, including
reasonable attorneys’ fees and expenses in or out of litigation and, if in
litigation, trial, appellate, bankruptcy or other proceedings, expended or
incurred in connection therewith, as determined by a court of competent
jurisdiction.  The provisions of this Section 17.16
shall survive Closing and/or any termination of this Agreement.


 


17.17                 No Recording. 
Neither this Agreement nor any memorandum or short form hereof shall be
recorded or filed in any public land or other public records of any
jurisdiction, by either party and any attempt to do so may be treated by the
other party as a breach of this Agreement.


 


17.18                 Waiver of Trial by Jury.  The
respective parties hereto shall and hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Agreement, or for the enforcement of any remedy under any
statute, emergency or otherwise.


 


17.19                 Cooperation between Seller and Purchaser.  Seller agrees to reasonably cooperate with
Purchaser in connection with the preparation and delivery of any Subordination,
Non-Disturbance and Attornment Agreements required by Purchaser’s lenders in
connection with the closing of the transaction described herein.


 


17.20                 Further Assurances.  Each
party shall, from time to time, at the request of the other party, and without
further consideration, execute and deliver such further instruments and


 


28





















 


take such further action as may be required or reasonably requested by
either party to establish, maintain or protect the respective rights of the
parties to carry out and effect the intentions and purposes of this Agreement.


 


17.21                 Return of Deposit. 
Notwithstanding anything to the contrary contained in this Agreement,
whenever this Agreement provides that the Deposit shall be delivered or
returned to Purchaser, the parties acknowledge and agree that said Deposit or a
portion thereof shall remain with the Escrow Agent in the event that Purchaser
has failed to comply with the provisions of this Agreement.  Notwithstanding anything to the contrary
contained in this Section 17.21, Seller agrees that if the
provisions of this Agreement provide for the return of the Deposit to Purchaser
that Seller will not unreasonably withhold its consent to the return of the
Deposit to Purchaser.  Notwithstanding
anything to the contrary contained in this Section 17.21, Purchaser
agrees that if the provisions of this Agreement provide for the return of the
Seller Earnest Money to Seller that Purchaser will not unreasonably withhold
its consent to the return of the Seller Earnest Money to Seller.


 


17.22                 Other Agreements. 
Seller and Purchaser have a business relationship with each other and in
connection therewith Seller and Purchaser have entered into various other
agreements as of the date hereof (“Other
Agreements”).  A default by
either party under any Other Agreement not cured within any applicable cure
period shall be deemed to be a default by such party under this Agreement.


 


17.23                 Seller Environmental Obligations.  Notwithstanding anything to the contrary
contained in this Agreement, based on conditions existing as of the Effective
Date, Seller agrees to conduct and complete, for Purchaser’s benefit and solely
at Seller’s expense except as provided below, all investigation and remediation
measures necessary for Seller to obtain (a) with respect to the Properties
identified on Exhibit S,
a No Further Remediation (“NFR”)
letter from the Illinois Environmental Protection Agency, and (b) with
respect to the Properties identified on Exhibit S,
a Certificate of Completion in the Voluntary Remediation Program administered
by the Indiana Department of Environmental Management and a Covenant Not to Sue
from the office of the Governor of Indiana (the NFR Letter, the Certificates of
Completion, the Covenants Not to Sue, and all other necessary closure
certification records shall be referred to collectively herein as the “Completion Documents”).


 


17.23.1            Schedule.  Seller shall act with diligence in conducting
investigation and remediation measures, in pursuing issuance of the Completion
Documents, and in complying with any applicable requirements of the respective
state voluntary cleanup program, including without limitation the following, to
the extent required by the respective state voluntary cleanup program: causing
the Completion Documents to be recorded in the property records and filed with
governmental agencies, and notifying third parties such as off-site landowners.
Seller shall make reasonable efforts to cause the Completion Documents to be
issued by no later than the LLC Expiration Date (as defined in that certain
Limited Liability Company Agreement of even date herewith by and between
CenterPoint Properties Trust and JF US Industrial Property Trust).  If Seller fails to cause the Completion
Documents to be issued by no later than the LLC Expiration Date for any
individual Property (“NFR Substitution Event”),
Purchaser may, at its option, by written notice to Seller within thirty (30)
days after the occurrence of an NFR Substitution Event, request that Seller
offer a Substitute Property in accordance with Section 9.9.2 above.
(“NFR Substitution Notice”);
provided, however, in the event that Purchaser elects to have Seller provide a
Substitute Property, Seller, if it chooses to do so, in its sole and absolute
discretion, shall have a period of thirty (30) days from the date Seller is
given the NFR Substitution Notice to obtain the Completion Documents, and
further, provided, however, if the Completion Documents are not capable of
being obtained within said thirty (30) day period through no fault of Seller
and Seller has commenced to obtain the Completion Documents within such thirty
(30) day


 


29





















 


period,
then Seller shall have such reasonable period of time from and after the date
of the NFR Completion Notice to obtain the Completion Documents; provided,
further, that such additional period shall not extend beyond the date of the
Closing with respect to the Substitute Property.  In the event Seller cures the condition
giving rise to the NFR Substitution Event prior to the time that a Closing with
respect to the Substitute Property occurs, the Scheduled Closing Date for the
Removed Property shall be extended to the fifteenth (15th) day after
the condition giving rise to the NFR Substitution Event has been cured.


 


In the event Seller does
not obtain the Completion Documents within the time periods referenced above,
Seller shall repurchase the Property in question at such time as Purchaser
acquires a Substitute Property.  Seller
shall repurchase the Removed Property for the same price paid by Purchaser to
purchase such Property from Seller and Seller shall repurchase such Property on
the same terms and conditions of this Agreement applicable to Purchaser’s
acquisition of a Substitute Property. Seller shall be obligated to repurchase
the Property in question only if Purchaser agrees to purchase the Substitute
Property, and Purchaser and Seller shall agree to close on both transactions on
the same day at the same time.  Seller
and Purchaser agree to follow the same terms, conditions and procedures for
purposes of this exchange as are generally consistent with Sections 9.9.5,
9.9.6, 9.9.7 and 9.9.8 of this Agreement.


 


17.23.2            Cooperation.  From
and after the Effective Date of this Agreement, Seller and Purchaser shall
cooperate with each other to facilitate the successful completion of the
voluntary remediation process for each Property.  Seller and Purchaser shall consult in good
faith about all draft workplans and proposed submissions to regulatory
authorities, and Seller shall make changes reasonably requested by Purchaser.  Seller shall provide at least two (2) Business
Days advance written notice of entry onto a Property and identify the general
nature of the work to be performed and the portion(s) of the Property on which
the work will be performed.  To the
extent practical, Seller shall provide advance notice to Purchaser of, and
shall allow Purchaser to participate in, meetings and telephone conferences
with regulatory authorities.  Seller
shall provide Purchaser with a copy of all test results, final submissions to
regulatory agencies and final documents received from such agencies within a
reasonable period of time after they are received or created by Seller.


 


17.23.3            Scope
of Testing Activities.  Pursuant to this Section 17.23,
Seller shall conduct initial testing sufficient to reasonably identify all
potential contaminants of concern materially related to the
industrial/commercial use at the Properties (reasonably taking into
consideration potentially significant environmental conditions indicated in
Phase 1 reports or in prior testing). 
Subsequent testing shall be conducted by Seller as reasonably necessary
to satisfy regulatory authorities for issuance of the Completion Documents.


 


17.23.4            Institutional
Controls.  The Completion Documents may be qualified or
conditioned by institutional controls (e.g., deed restrictions, engineered
barriers) to the extent such controls are consistent with the Properties’
industrial/commercial use as of the Effective Date and are necessary for
issuance of the Completion Documents; provided, however, Seller shall have sole
discretion to select the remedial approach for obtaining the Completion
Documents.  Any such institutional
controls are subject to Purchaser’s review and approval, which approval shall
not be unreasonably withheld.


 


17.23.5            Execution
of Documents.  Solely relating to and limited by Seller’s
obligations as set forth in Article 17 hereto, Seller shall arrange
for any offsite disposal of hazardous substances, required in order to obtain
the Completion Documents, and shall execute all manifests and similar documents,
reflecting itself or its designee as the generator of such hazardous
substances, and in no event shall Seller name or identify Purchaser as


 


30





















 


the generator of such hazardous substances; provided, however, the
Seller has no duty or obligation whatsoever for any hazardous substances
transported to, released upon or generated by Purchaser, its agents,
representatives and assigns, at, on, beneath or adjacent to the Properties.
Purchaser shall execute other documents reasonably requested by Seller that are
necessary and consistent with this Section 17.23.


 


17.23.6            Access. Purchaser shall provide necessary access to
Seller to carry out the provisions of this section.  Seller shall use all reasonable efforts to avoid
any disruption of tenant activities, and shall promptly repair at Seller’s sole
cost and expense any damage caused by its investigation or remediation
activities.


 


17.23.7            Indemnification. Until the earlier of the date the Seller
procures and provides to Purchaser the requisite Completion Documents as set
forth herein for each Property, or an appropriate substitute is exchanged
pursuant to Section 17.23.1 hereof, Seller shall protect, defend,
indemnify and hold Purchaser harmless from and against any claim or loss
arising out of (a) any investigation, remediation or disposal activities
conducted by Seller or its agents pursuant to this Section 17.23,
and (b) any failure by Seller to obtain the Completion Documents as
provided in this section.


 


17.23.8            Voidance. In the event any of the Completion
Documents are voided as a result of any fraudulent misrepresentation or other
fraudulent act or omission of Seller, Seller shall be responsible for
implementing at its expense any measures necessary to have the Completion
Documents reinstated.


 


17.23.9            Assignment.  To
the extent allowed by contract and law, Seller shall use reasonable efforts to
assign to Purchaser its environmental rights under current vendor and tenant
agreements, including all indemnities, escrows, representations, and warranties
(“Seller’s Environmental Rights”).  Where Seller is unable to assign Seller’s
Environmental Rights, Seller will use commercially reasonable efforts to
enforce such rights on behalf of Purchaser (at Purchaser’s expense).


 


17.23.10      Survival.  The
terms of this Section 17.23 shall expressly survive, without
limitation, the Closing.


 


17.24                 Currency. All payments and amounts referenced or
described in this Agreement shall be deemed to require payments in and refer to
amounts in the currency of the United States of America.


 


17.25                 Facsimile Signatures. The parties hereto agree that the use of
facsimile signatures for the execution of this Agreement shall be legal and
binding and shall have the same force and effect as if originally signed.


 


[remainder of page intentionally left blank]


 


31





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the
date or dates set forth below.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT JAMES FIELDING, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
    /s/
  Adrian Harrington

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Adrian
  Harrington

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
  By
  

  	
    /s/
  Adrienne Parkinson

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Adrienne
  Parkinson

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
	
   

  	
   

  
	
   

  	
  Tax
  I.D. # 98-0450460

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT PROPERTIES TRUST, a Maryland

  real estate investment trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
    /s/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
  By
  

  	
    /s/
  James N. Clewlow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Investment Officer

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT VENTURE, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
    /s/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
  By
  

  	
  /s/
  James N. Clewlow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
																		



 


32





















 


	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Properties

  
	
  Exhibit B-1
  - B-8

  	
   

  	
  Legal
  Descriptions

  
	
  Exhibit C-1
  - C-8

  	
   

  	
  Schedule of
  Leases

  
	
  Exhibit D
  -

  	
   

  	
  Intentionally
  Deleted

  
	
  Exhibit E
  -

  	
   

  	
  Escrow
  Agreement

  
	
  Exhibit F
  -

  	
   

  	
  Documents

  
	
  Exhibit G-1
  - G-8

  	
   

  	
  Permitted
  Exceptions

  
	
  Exhibit H-

  	
   

  	
  Master
  Lease

  
	
  Exhibit I
  -

  	
   

  	
  Intentionally
  Deleted

  
	
  Exhibit J
  -

  	
   

  	
  Intentionally
  Deleted

  
	
  Exhibit K
  -

  	
   

  	
  Tenant
  Estoppel Certificate

  
	
  Exhibit L
  -

  	
   

  	
  Seller’s
  Estoppel Certificate

  
	
  Exhibit M
  -

  	
   

  	
  General
  Assignment

  
	
  Exhibit N
  -

  	
   

  	
  Deed

  
	
  Exhibit O
  -

  	
   

  	
  Notice
  of Sale to Tenant

  
	
  Exhibit P
  -

  	
   

  	
  Non-Foreign
  Entity Certification

  
	
  Exhibit Q
  -

  	
   

  	
  Survey
  Certification

  
	
  Exhibit R
  -

  	
   

  	
  Planned
  Expenditures

  
	
  Exhibit S
  -

  	
   

  	
  NFR
  Properties

  



 


	
  Schedules

  	
   

  	
   

  
	
  7.1.4
  -

  	
   

  	
  No
  Violations of Laws

  
	
  7.1.5

  	
   

  	
  Eminent
  Domain

  
	
  7.1.6

  	
   

  	
  Hazardous
  Material

  
	
  7.1.7

  	
   

  	
  Litigation

  
	
  7.1.8

  	
   

  	
  Leases

  
	
  7.1.9

  	
   

  	
  Contracts

  
	
  7.1.10

  	
   

  	
  Defaults

  
	
  9.8

  	
   

  	
  Purchase
  Price Schedule

  
	
  9.10

  	
   

  	
  Contracts

  
	
  9.12

  	
   

  	
  REA
  Estoppels

  
					



 


33





















TRANCHE
3


 


SALE
AGREEMENT


 


THIS SALE AGREEMENT (“Agreement”) is made and
entered into as of the 6th day of April, 2005, by and between CENTERPOINT PROPERTIES TRUST, a Maryland
real estate investment trust (“SELLER”),
and CENTERPOINT JAMES FIELDING, LLC,
a Delaware limited liability company (“PURCHASER”).


 


In
consideration of the mutual promises, covenants and agreements hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:


 


ARTICLE I


Sale of
Properties


 


1.1                               Sale of Properties. 
Seller agrees to sell, assign and convey to Purchaser, or cause to be
sold, assigned and conveyed to Purchaser, in the event that one or more of the
Properties is currently owned by an entity affiliated with Seller (hereinafter
collectively referred to as “Seller
Affiliates”), and Purchaser agrees to purchase from Seller, the
following:


 


1.1.1                        Land and Improvements.  That
certain real property commonly described on
Exhibit A, being more particularly described on Exhibits B-1 through B-11  respectively, attached hereto (collectively, the “Land”), together with any improvements
located thereon (collectively, the “Improvements”);


 


1.1.2                        Leases.  All of Seller’s or Seller
Affiliates’, as the case may be, right, title and interest, if any, in and to
all leases, subleases, licenses and other occupancy agreements, together with
any and all amendments, modifications or supplements thereto (hereafter
referred to collectively as the “Leases”),
being more particularly described on Exhibits
C-1 through C-11
respectively, attached hereto, and all prepaid rent attributable to the period
following Closing, as herein defined, and subject to Section 4.2.4
below, the security deposits under such Leases (collectively, the “Leasehold Property”);


 


1.1.3                        Real Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all easements and appurtenances to Seller’s or
Seller Affiliates’, as the case may be, interest in the Land and the
Improvements, including, without limitation, all mineral and water rights and
all easements, licenses, covenants and other rights-of-way or other
appurtenances used in connection with the beneficial use or enjoyment of the
Land and the Improvements (the Land, the Improvements and all such easements
and appurtenances are sometimes collectively referred to as the “Real Property”);


 


1.1.4                        Personal Property.  All
personal property (including equipment), if any, owned by Seller or Seller
Affiliates, as the case may be, and located on the Real Property as of the date
hereof, and all fixtures, if any, located on the Real Property as of the date
hereof or as of the Closing Date (collectively, the “Personal Property”); and


 


1.1.5                        Intangible Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all service, equipment, supply and maintenance
contracts (collectively, the “Contracts”),
guarantees, licenses, side track agreements (and other agreements including
leasehold agreements attendant to the Property), approvals, utility contracts,
plans and specifications, governmental approvals and development rights,
certificates, permits and warranties (and including all escrows, indemnities,
representations, warranties and guarantees Seller received from any and all
vendors from when Seller


 





















 


acquired
the Properties), including, without limitation environmental insurance policies
(to the extent same can be assigned with a reservation of rights for the
benefit of Seller as well) and other environmental escrows and indemnities (to
the extent same can be assigned with a reservation of rights for the benefit of
Seller as well), if any, relating to the Real Property or the Personal
Property, to the extent assignable (collectively, the “Intangible Property”).  (For each individual parcel, the Real
Property, the Leasehold Property, the Personal Property and the Intangible
Property are sometimes collectively hereinafter referred to as the “Property”, and for all parcels, taken
together, the Real Property, the Leasehold Property, the Personal Property and
the Intangible Property are collectively referred to as the “Properties”).  It is hereby acknowledged by the parties that
Seller shall not convey to Purchaser claims relating to any real property tax
refunds or rebates for periods accruing prior to the Closing, to the extent
such taxes have been paid by Seller prior to the Closing, existing insurance
claims and any existing claims against previous tenants of the Properties,
which claims are hereby reserved by Seller, subject to the terms and provisions
of Section 4.2.4 below.


 


ARTICLE II


Purchase
Price


 


2.1                               Purchase Price. 
Subject to the provisions of Section 9.9 below, the purchase
price for the Properties shall be Sixty-Five Million Four Hundred Thousand and
No/100 Dollars ($65,400,000.00) (“Purchase
Price”) in currency of the United States of America. The Purchase
Price, as adjusted by all prorations as provided for herein, shall be paid by
Purchaser at Closing as directed by the Seller by wire transfer of immediately
available federal funds of The United States of America.


 


ARTICLE III


Deposit


 


3.1                               Purchaser Deposit. 
Purchaser will deposit a Fifteen Million and No/100 Dollars
($15,000,000.00) Letter of Credit (“Purchaser
Letter of Credit”) on the date of the first Closing to occur under
any of the Sale Agreements (defined below) with Chicago Title Insurance Company
(“Escrow Agent” or “Title Company”).  The Purchaser Letter of Credit shall be held
by Escrow Agent pursuant to an Escrow Agreement in the form attached hereto as Exhibit E modified to conform to
the terms of this Agreement and as required by Title Company when Title Company
holds a letter of credit (“Escrow Agreement”).  The Purchaser Letter of Credit shall (i) be
unconditional and irrevocable, (ii) be in a form reasonably acceptable to
Seller, (iii) be issued by a financial institution doing business in the
United States of America, with offices in Chicago, Illinois and (iv) expire
no earlier than March 15, 2006.  The
cost of issuing and maintaining the Purchaser Letter of Credit shall be paid by
Seller and Seller’s failure to do so shall not be a breach or a default by
Purchaser under this Agreement or any Other Agreements (as defined in Section 17.22
below) nor shall Seller have any right to direct Escrow Agent to draw upon the
Purchaser Letter of Credit as a result of Seller’s failure as aforesaid.  The Purchaser Letter of Credit and the
proceeds of the Purchaser Letter of Credit (“Purchaser
Proceeds”) have been provided to assure performance and observance
by Purchaser of all of its closing obligations under this Agreement and five (5) other
sale agreements entered into by and between Seller and Purchaser and dated of
even date herewith relating to the sale of properties by Seller to Purchaser
(this Agreement and the other five (5) Sale Agreements are herein
collectively referred to as the “Sale
Agreements”).   Accordingly,
in the event of the occurrence of a default under Section 13.2 of
this Agreement or any of the other Sale Agreements or in the event that the
Purchaser Letter of Credit will expire within thirty (30) days or less, Seller
shall have the right to direct Escrow Agent to draw upon the Purchaser Letter
of Credit.  All Purchaser Proceeds
received by Escrow Agent shall be retained by Escrow Agent and held or
disbursed pursuant to the terms of the Escrow Agreement and this Agreement.  At the time of the final Closing of all
Properties, including, but not limited to, Substitute Properties (defined
below)


 


2





















 


under all of the Sale Agreements, the Purchaser Letter of Credit shall
be delivered to Purchaser.  In the event
any Closing under any of the Sale Agreements does not occur through no fault of
Purchaser, Purchaser Letter of Credit shall be returned to Purchaser.


 


3.2                               Seller Deposit. 
Seller will deposit a Three Million and No/100 Dollars ($3,000,000.00)
Letter of Credit (“Seller Letter of Credit”)
on the date of the first Closing to occur under the Sale Agreements with Escrow
Agent.  The Seller Letter of Credit shall
be held by Escrow Agent pursuant to an Escrow Agreement in the form attached
hereto as Exhibit E
modified to conform to the terms of this Agreement and as required by Title
Company when Title Company holds a letter of credit.  The Seller Letter of Credit shall (i) be
unconditional and irrevocable, (ii) be in a form reasonably acceptable to
Purchaser, (iii) be issued by a financial institution doing business in
the United States of America, with offices in Chicago, Illinois and (iv) expire
no earlier than March 15, 2006.  The
cost of issuing and maintaining the Seller Letter of Credit shall be paid by
Seller.  The Seller Letter of Credit and
the proceeds of the Seller Letter of Credit have been provided to assure
performance and observance by Seller of all of its closing obligations under
the Sale Agreements.  Accordingly, in the
event of the occurrence of a default under Section 13.1 of this
Agreement or any of the other Sale Agreements or in the event that the Seller
Letter of Credit will expire within thirty (30) days or less, Purchaser shall
have the right to direct Escrow Agent to draw upon the Seller Letter of
Credit.  All Proceeds received by Escrow
Agent shall be retained by Escrow Agent and held or disbursed pursuant to the
terms of the Escrow Agreement and this Agreement.  At the time of the final Closing of all Properties,
including, but not limited to, Substitute Properties under all of the Sale
Agreements, the Seller Letter of Credit shall be delivered to Seller.  In the event any Closing under any of the
Sale Agreements does not occur through no fault of Seller, Seller Letter of
Credit shall be returned to Seller.


 


ARTICLE IV


Closing,
Prorations and Closing Costs


 


4.1                               Closing.  The
closing of the purchase and sale of the Properties shall occur on or before
10:00 a.m. Central time on October 28, 2005 (the “Scheduled Closing Date”) and shall be held
at the offices of Escrow Agent, or at such other place agreed to by Seller and
Purchaser (said closing is hereinafter referred to as the “Closing”). 
Notwithstanding anything to the contrary contained in this Section 4.1,
Seller or Purchaser, as the case may be, shall have the right to extend the
closing date for one or more of the Properties in accordance with the
provisions of Sections 9.9, 10.1 and 12.1 hereof.  “Closing” shall be deemed to have occurred
when the Title Company has been instructed by both parties to pay the
applicable portion of the Purchase Price to Seller and to record the applicable
Deeds, as hereunder defined.  The date of
the Closing is sometimes referred to in this Agreement as a “Closing Date.”  The transactions contemplated by this
Agreement shall be closed through an escrow with Escrow Agent on the Closing
Date, in accordance with the general provisions of the usual form “New York
Style” Deed and Money Escrow Agreement used by Escrow Agent, with such
provisions required to conform to the terms of this Agreement.


 


4.2                               Prorations.  All
matters involving prorations or adjustments to be made in connection with
Closing and not specifically provided for in some other provision of this
Agreement shall be adjusted in accordance with this Section 4.2.  Except as otherwise set forth herein, all
items to be prorated pursuant to this Section 4.2 shall be prorated
as of midnight of the day immediately preceding a Closing Date, with Purchaser
to be treated as the owner of the applicable Properties, for purposes of
prorations of income and expenses, on and after a Closing Date.


 


4.2.1                        Taxes.  Subject to the provisions of
this Section 4.2.1, real estate and personal property taxes, if
any, accrued, but not yet due and owing as of the Closing and installments of
special assessments, if any, due and owing during the installment year in which
the Closing occurs (hereinafter collectively referred to as “Taxes”) shall be prorated as


 


3





















 


of
the Closing Date, and, notwithstanding any other provision contained in this
Agreement, shall not be reprorated. 
Seller shall pay all Taxes due and payable as of the Closing Date.  If the Taxes have not been set for the year
in which Closing occurs or any prior year, then the proration of such Taxes
shall be based upon the most recent ascertainable tax bills.  Notwithstanding any other provision of this
Agreement, (a) there shall be no proration of Taxes with respect to
tenants whose leases obligate said tenants to pay Taxes when the tax bills are
issued, and (b) the amount otherwise due Purchaser under this Section 4.2.1
shall be reduced by an amount equal to all tenant deposits held by Seller for
Taxes at the time of Closing (collectively, the “Tenant Tax Deposits”) and the Tenant Tax Deposits shall be
turned over to Purchaser at Closing. 
Tenant Tax Deposits received by Seller following Closing for any period
of time after Closing shall be paid to Purchaser.  The amount due under this Section 4.2.1
shall not be credited to Purchaser at Closing but shall be deposited into the
operating account for the Properties and held by Seller as property manager
pursuant to the Management Agreement described in Section 9.6
below.


 


Seller shall contest real estate taxes and/or assessment levels, as the
case may be, prior to Closing if Seller deems reasonable in its judgment as a
commercially prudent owner of real estate. 
All costs incurred in connection with such contest shall be paid by the
parties in proportion to benefit received by the parties in connection with any
reduction of such real estate taxes or assessments as the case may be. 


 


4.2.2                        Insurance.  Seller shall assign its
existing insurance policies to Purchaser upon Closing.  Purchaser shall be named as a named insured
thereon and all premiums with respect thereto shall be prorated between the
parties as of Closing.


 


4.2.3                        Utilities.  Purchaser and Seller hereby
acknowledge and agree that the amounts of all electric, sewer, water and other
utility bills, trash removal bills, janitorial and maintenance service bills
and all other operating expenses relating to the applicable Properties not paid
by tenants under Leases and allocable to the period prior to the Closing Date
shall be determined and paid by Seller before Closing, if possible, or shall be
paid thereafter by Seller or adjusted between Purchaser and Seller immediately
after the same have been determined. 
Seller shall attempt to have all utility meters, or utility services not
paid by tenants under Leases, read as of the Closing Date.  Purchaser shall cause all utility services to
be placed in Purchaser’s name as of the Closing Date.  If permitted by the applicable utilities, all
utility deposits in Seller’s name shall be assigned to Purchaser as of the
Closing Date, and Seller shall receive a credit therefor at Closing.


 


4.2.4                        Rents.  Rent [(including estimated
pass-through payments for common area/operating expenses, but not for Taxes),
collectively “Rents”] for the
month in which Closing occurs shall be prorated for said month based upon the
Rents estimated to have been collected by Seller as of the Closing Date.  Rents for said month shall be reprorated
within seven (7) Business Days after the end of said month based on Rents
actually received.  During the period
after Closing, (i) Purchaser shall deliver to Seller any and all Rents
accrued but uncollected as of the Closing Date, to the extent subsequently
collected by Purchaser; provided, however, Purchaser shall apply Rents received
after Closing first to payment of current Rents then due, and thereafter to
delinquent Rents (other than “true up” payments received from tenants
attributable to a year-end reconciliation of actual and budgeted pass-through
payments, which shall be allocated among Seller and Purchaser pro rata in
accordance with their respective period of ownership as set forth in Section 4.2.5
below), and (ii) Seller shall deliver to Purchaser any and all Rents
collected by Seller for any period after Closing.


 


Subject to the provisions of the following sentence, Seller shall be
entitled, after the Closing, to take any action against a tenant which would
not result in a termination of any


 


4





















 


Lease
or a tenant’s right of occupancy thereunder (“Seller
Action”).  Notwithstanding the
foregoing, Seller shall not take any Seller Action unless Seller shall have
first provided Purchaser with not less than five (5) Business Days’ notice
of its intent to take action against a tenant, together with a description of
the subject matter of the proposed Seller Action.  Purchaser agrees that it shall use
commercially reasonable efforts to collect all pass-through rents payable by
tenants and any delinquent Rents (provided, however, that Purchaser shall have
no obligation to institute legal proceedings, including an action for unlawful
detainer, against a tenant owing delinquent Rents).


 


The amount of any unapplied security deposits (plus accrued interest
thereon if payable to a tenant under its lease) under the Leases held by Seller
in cash at the time of Closing shall be credited against the Purchase Price;
accordingly, Seller shall retain the actual cash deposits.  Notwithstanding anything in this Section 4.2.4
to the contrary, if any security deposits are in the form of a letter of
credit, such security deposits shall not be prorated, but shall be turned over
by Seller to Purchaser at the Closing by the delivery thereof by Seller to
Purchaser in accordance with this provision. 
In addition, Seller shall use reasonable efforts to deliver appropriate
duly executed instruments of transfer or assignment of such letters of credit
which are required to establish Purchaser as the new beneficiary thereunder and
any consents required by the issuing bank for the transfer of such letters of
credit.  If required, Seller shall use
reasonable efforts to arrange for the issuance by the issuing bank of any
authorization to the transfer, together with the delivery of such letters of
credit (and any letter of transfer that is required by such letter of
credit).  Any fees imposed by such
issuing banks in connection with such transfers which are not the obligation of
the applicable tenant to pay shall be paid by Seller.  In the event that any letter of credit is not
transferable as of Closing, Seller shall cooperate with Purchaser in all
reasonable respects following the Closing so as to transfer the same to
Purchaser or to obtain a replacement letter of credit with respect thereto in
favor of Purchaser, in either case at no cost or expense to Purchaser.  Until any such letter of credit shall be
transferred or replaced, Seller shall present such letter of credit for payment
and deliver the proceeds received by Seller, if any, to Purchaser within a
reasonable period of time following receipt of Purchaser’s written
request.  Notwithstanding the foregoing,
Seller shall not be in default under this Agreement in the event that any such
letter of credit is not assigned to Purchaser for any reason other than the
failure of Seller to sign the documents required of it to transfer the letter
of credit or the failure of Seller to pay any fees imposed by an issuing bank
in connection with such transfers.  In
such event, Purchaser may terminate this Agreement with respect to the applicable
Property upon written notice to Seller on or before ten (10) days after
Purchaser becomes aware that a letter of credit will not be assigned on the
Closing Date; provided, however, Purchaser’s right to terminate shall not be
effective in the event that Seller, in its sole and absolute discretion, gives
Purchaser a credit against the Purchase Price in the amount of the security
deposit or provides a substitute letter of credit in that amount.


 


4.2.5                        Calculations.  For
purposes of calculating prorations, Purchaser shall be deemed to be in title to
that portion of the Properties being acquired on the Closing Date, and,
therefore entitled to the income therefrom and responsible for the expenses
thereof for the entire day upon which the Closing occurs.  All such prorations shall be made on the
basis of the actual number of days of the month which shall have elapsed as of
the day of the Closing and based upon the actual number of days in the month
and year in question.  Except as set
forth in this Section 4.2, all items of income and expense which
accrue for the period prior to the Closing will be for the account of Seller
and all items of income and expense which accrue for the period on and after
the Closing will be for the account of Purchaser.  Purchaser and Seller shall each submit or
cause to be submitted to the other (i) on or about the 90th day after
Closing, and (ii) on or about the one year anniversary of the Closing, a
statement which sets forth necessary adjustments to items subject to proration
pursuant to the provisions of this Section 4.2, if any; provided,
however, no adjustment shall


 


5





















 


be
made with respect to Taxes.  Within
fifteen (15) days following delivery of such statements, the parties shall make
such adjustments among themselves as shall be necessary to carry out the
prorations as contemplated in this Section 4.2.  In the event any prorations made under this Section 4.2
shall prove to be incorrect for any reason, then any party shall be entitled to
an adjustment to correct the same.


 


4.2.6                        Leasing Commissions and Leasing Costs. 
Seller shall be responsible for all leasing commissions, tenant
improvement costs and other usual and customary leasing costs, due and owing
with respect to the current term of all Leases executed prior to the Effective
Date, whether such leasing commissions, tenant improvement costs and other
usual and customary leasing costs are due to be paid prior to or after the
Closing Date.


 


4.2.7                        Prepaid Items.  Any
prepaid items, including, without limitation, fees for licenses which are
transferred to the Purchaser at the Closing and annual permit and inspection
fees shall be apportioned between the Seller and the Purchaser at the Closing.


 


4.2.8                        Allocation of Closing Costs and Expenses. 
Seller shall bear the cost of the title policy to be issued and extended
coverage charges, the cost of the Surveys (as hereinafter defined), the cost to
record any instruments necessary to clear Seller’s title, one-half the cost of
the Closing Escrow and one-half the cost of the “New York Style” closing fee.
Purchaser shall bear the cost of any recording fees with respect to the Deeds,
all costs incurred in connection with obtaining Purchaser’s financing for this
transaction, if any, the cost of all title endorsements (other than with
respect to extended coverage), if any, one-half the cost of the Closing Escrow
and one-half the cost of the “New York Style” closing fee.  The cost of state and county transfer taxes
shall be paid by the Seller, and the cost of local transfer taxes shall be paid
by the party designated in the applicable local ordinance or local custom.  If no such designation or custom exists, and
a local transfer tax must be paid, the cost thereof shall be shared equally by
Seller and Purchaser.


 


4.2.9                        Operating Expenses.  All
operating expenses (including all charges under Contracts and agreements
assumed by Purchaser under the General Assignment, as hereinafter defined and
fees to any owner’s association) shall be prorated as of the Closing Date.  As to each service provider, operating
expenses payable or paid to such service provider in respect to the billing
period of such service provider in which the Closing Date occurs (the “Current Billing Period”), shall be prorated
on a per diem basis based upon the number of days in the Current Billing Period
prior to the Closing Date (which shall be allocated to Seller) and the number
of days in the Current Billing Period on and after the Closing Date (which
shall be allocated to Purchaser), and assuming that all charges are incurred
uniformly during the Current Billing Period. 
If actual bills for the Current Billing Period are unavailable as of the
Closing Date, then such proration shall be made on an estimated basis based
upon the most recently issued bills, subject to readjustment within thirty (30)
days of receipt of actual bills. 
Notwithstanding the foregoing, no prorations or adjustments shall be
made for portions of operating costs of the Properties to the extent a tenant
under the Leases is required to pay same pursuant to the terms of any of the
Leases. Purchaser shall be credited with an amount equal to all deposits made
by tenants and held by Seller at Closing towards the tenant’s obligation to pay
any such operating expenses.


 


ARTICLE V


Inspection


 


5.1                               Seller Deliveries. 
Purchaser acknowledges that Seller has heretofore delivered or caused to
be delivered or made available to Purchaser at the Properties all of the items
relating to the Properties specified on Exhibit F,
attached hereto, to the extent that such items were in Seller’s possession (“Documents”); provided, however, that except
for the representations and warranties 


 


6





















 


made in Article VII hereof, Seller makes no representations
or warranties of any kind regarding the accuracy, thoroughness or completeness
of or conclusions drawn in the information contained in such documents, if any,
relating to the Properties.  Except with
respect to claims arising out of a breach by Seller of a representation or
warranty made in Article VII hereof, Purchaser hereby waives any
and all claims against Seller arising out of the accuracy, completeness,
conclusions or statements expressed in materials so furnished and any and all
claims arising out of any duty of Seller to acquire, seek or obtain such
materials.  Purchaser acknowledges that
any and all of the Documents that are not otherwise known by or available to
the public are proprietary and confidential in nature and were delivered to
Purchaser solely to assist Purchaser in determining the feasibility of
purchasing the Properties.  Purchaser
agrees not to disclose such non-public documents, or any of the provisions,
terms or conditions thereof, to any party other than a Purchaser Party/Representative,
as hereinafter defined.  Purchaser shall
return all of the Documents, at such time as this Agreement is terminated for
any reason.  This Section 5.1
shall survive Closing and/or termination of this Agreement without limitation.


 


5.2                               Independent
Examination/Right to Access.  Purchaser hereby acknowledges that it has
been given, prior to the execution hereof, a full, complete and adequate
opportunity to make such legal, factual and other determinations, analyses,
inquiries and investigations as Purchaser deems necessary or appropriate in
connection with the acquisition of the Properties.  Purchaser further acknowledges that Purchaser
is relying upon its own independent examination of the Properties and all matters
relating thereto and not upon any statements of Seller (excluding the limited
matters expressly represented by Seller in Article VII hereof) or
of any officer, director, employee, agent or attorney of Seller with respect to
acquiring the Properties.  Except as may
be provided in Article VII hereof, Seller shall not be deemed to
have represented or warranted the completeness or accuracy of any studies,
investigations and reports heretofore or hereafter furnished to Purchaser.  Notwithstanding anything to the contrary
contained in this Section 5.2, Purchaser and its agents shall have
access to the Properties and the Documents prior to the Closing Date, but
during normal business hours (with reasonable advance notice to Seller and
subject to the rights of the tenants in possession), at Purchaser’s sole cost
and expense, and at Purchaser’s and its agents’ sole risk, to inspect the
applicable Properties, provided, however, Purchaser shall not be entitled to
conduct Physical Testing or any Phase I Assessments, as said terms are
hereinafter defined, without the approval of Seller, which approval shall not
be unreasonably withheld, and further provided that prior to Purchaser entering
the Properties, Purchaser shall deliver to Seller evidence of Due Diligence
Insurance, as hereinafter defined. 
Seller shall have the right, in its discretion, to accompany Purchaser
and/or its agents during any inspection (including, but not limited to, tenant
interviews) provided that Seller does not unreasonably interfere with Purchaser’s
inspection.  The provisions of this Section 5.2
shall survive Closing and/or termination of this Agreement without
limitation.  Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


 


5.3                               Inspection Obligations and
Indemnity.  Purchaser and its agents and representatives
shall (a) not unreasonably disturb the tenants of the Improvements or
interfere with their use of the Real Property pursuant to their respective
Leases; (b) not interfere with the operation and maintenance of the Real
Property; (c) not injure or otherwise cause bodily harm to Seller, its
agents, contractors and employees or any tenant; (d) promptly repair any
damage to any part of the Properties or any personal property owned or held by
any tenant caused by Purchaser’s inspection of the Properties; (e) promptly
pay when due the costs of all tests, investigations and examinations done by
Purchaser with regard to the Properties; (f) not permit any liens to
attach to the Properties as a result of Purchaser’s inspection of the
Properties; (g) restore the Improvements and the surface of the Real
Property to the condition in which the same was found before any such
inspection or tests were undertaken by Purchaser; and (h) except to the
extent required by law, not reveal or disclose any information obtained
pursuant to its inspections of the Properties to anyone other than


 


7





















 


the following persons or entities (each a “Purchaser Party/Representative”): (x) Purchaser’s prospective
lenders, members, managers, partners or other co-venturers or investors, in
connection with the proposed purchase of the Properties and their respective
representatives; and (y) Purchaser’s directors, officers, partners, members,
managers, affiliates, shareholders, employees, legal counsel, accountants,
engineers, architects, financial advisors and similar professionals and
consultants to the extent Purchaser deems it necessary or appropriate in
connection with its evaluation of the Properties.  Purchaser shall, and does hereby agree to
indemnify, defend and hold Seller, its partners, officers, directors,
employees, agents, attorneys and their respective successors and assigns,
harmless from and against any and all claims, demands, suits, obligations,
payments, damages, losses, penalties, liabilities, costs and expenses
(including, but not limited to, attorneys’ fees) arising out of Purchaser’s or
Purchaser’s agents’ actions taken in, on or about the Properties in the
exercise of the inspections of Purchaser prior to the Effective Date,
including, without limitation, claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use of or damage to its premises or property in connection with
Purchaser’s review of the Properties. 
This Section 5.3 shall survive the Closing and/or any
termination of this Agreement without limitation. Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


ARTICLE VI


Title and
Survey Matters


 


6.1                               Title. 
Purchaser acknowledges that, prior to the Effective Date, Seller has
delivered to Purchaser, with respect to each Property, a title insurance
commitment or a prior title insurance policy (a “Commitment”), together with a copy of all underlying documents
referenced therein (collectively, the “Title
Documents”).  Except as
hereinafter provided, Purchaser and Seller hereby agree that (i) all Taxes
that are not due and payable prior to Closing, (ii) the rights of the
tenants under the Leases and Approved New Leases (as defined in Section 9.3
of this Agreement), as parties in possession only, (iii) all matters
created by or on behalf of Purchaser and (iv) the exceptions to title
identified on Exhibits G-1
through G-11,
respectively, shall constitute “ Permitted
Exceptions”.  Notwithstanding
anything to the contrary contained herein, Seller shall be obligated to cause
all of the following resulting from the act or omission of, or caused by,
Seller or grantor under the Deeds to be fully satisfied, released and
discharged of record or insured or bonded over on or prior to the Closing
Date:  all mortgages, deeds of trust and
monetary liens [including liens for delinquent taxes, mechanics’ liens and
judgment liens] affecting the Properties and all indebtedness secured thereby.


 


6.2                               Survey. 
Purchaser acknowledges receipt of Seller’s existing surveys (“Initial Surveys”) for each of the
Properties.  Seller has ordered a current
ALTA/ACSM survey for each Property to be certified to Purchaser, as well as any
affiliates and lender designated by Purchaser to Seller at least thirty (30)
days prior to Closing and Title Company (collectively, the “Surveys”) and shall deliver a copy of the
Surveys to Purchaser promptly upon receipt thereof but in all events prior to
Closing.  The surveyors shall certify the
Surveys in accordance with the form of certification attached hereto as Exhibit Q. 


 


ARTICLE VII


Representations
and Warranties of the Seller


 


7.1                               Seller’s Representations. 
Seller represents and warrants that the following matters are true and
correct as of the Effective Date:


 


7.1.1                        Authority.  Seller is a real estate
investment trust, duly organized, validly existing and in good standing under
the laws of the State of Maryland.  This
Agreement has


 


8





















 


been
duly authorized, executed and delivered by Seller, is the legal, valid and
binding obligation of Seller, and does not violate any provision of any
agreement or judicial order to which Seller is a party or to which Seller is
subject.  All documents to be executed by
Seller or Seller Affiliates which are to be delivered at Closing, will, at the
time of Closing, (i) be duly authorized, executed and delivered by Seller
or Seller Affiliates, as the case may be, (ii) be legal, valid and binding
obligations of Seller or Seller Affiliates, as the case may be, and (iii) not
violate any provision of any agreement or judicial order to which Seller or
Seller Affiliates, as the case may be is a party or to which Seller or Seller
Affiliates, as the case may be, is subject.


 


7.1.2                        Bankruptcy or Debt of Seller. 
Neither Seller nor any Seller Affiliates has made a general assignment
for the benefit of creditors, filed any voluntary petition in bankruptcy,
admitted in writing its inability to pay its debts as they come due or made an
offer of settlement, extension or composition to its creditors generally.  Neither Seller nor any Seller Affiliates has
received any written notice of (a) the filing of an involuntary petition
by Seller’s creditors or the creditors of Seller Affiliates, (b) the
appointment of a receiver to take possession of all, or substantially all, of
Seller’s assets or the assets of Seller Affiliates, or (c) the attachment
or other judicial seizure of all, or substantially all, of Seller’s assets or
the assets of Seller Affiliates.


 


7.1.3                        Foreign Person. 
Neither Seller nor any of the Seller Affiliates is a foreign person
within the meaning of Section 1445(f) of the Internal Revenue Code (“Code”), and Seller agrees to execute and
cause the Seller Affiliates to execute any and all documents necessary or
required by the Internal Revenue Service or Purchaser in connection with such
declaration(s).


 


7.1.4                        No Violation of Laws. 
Except as set forth on Schedule 7.1.4, to Seller’s
knowledge, neither Seller nor Seller Affiliates have received any currently
effective written notice from a governmental authority that the Properties
violate any applicable ordinance of the city or village in which the Properties
are located.


 


7.1.5                        Eminent Domain. 
Except as set forth on Schedule 7.1.5, to Seller’s
knowledge, neither Seller nor Seller Affiliates have received any currently
effective written notice of an eminent domain or condemnation of the Land or
Improvements relating to the Properties.


 


7.1.6                        Hazardous Materials. 
Except as set forth on Schedule 7.1.6, to Seller’s
knowledge, except as set forth in any environmental report provided by Seller
to Purchaser, or as referenced or referred to in Section 17.23, (i) neither
Seller nor Seller Affiliates have received any uncured written notice from the
United States Environmental Protection Agency or the Illinois Environmental
Protection Agency (or any Indiana or Wisconsin agency comparable to the
Illinois Environmental Protection Agency) alleging that the Properties are in
violation of any applicable Environmental Laws or contain any Hazardous
Materials, (ii) since the date of the most recent environmental report, there have been no Hazardous Materials
installed or stored in or otherwise existing at, on, in or under the Properties
in violation of applicable Environmental Laws, and (iii) Seller has acted
in the manner that a commercially prudent property owner would act with respect
to any written recommendations made by Seller’s environmental consultants.  “Hazardous
Materials” shall mean any hazardous, toxic waste, substance or
material, pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Section 9601 et seq.), as amended, or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or any
other federal, state or local laws, ordinances, rules, regulations or policies
governing use, storage, treatment,


 


9





















 


transportation,
manufacture, refinement, handling, production or disposal of such materials
(collectively, “Environmental Laws”).


 


7.1.7                        Litigation.  Except as set forth on Schedule 7.1.7,
to Seller’s knowledge, (i) neither Seller nor Seller’s Affiliates have
received any currently effective written notice of any pending litigation
affecting the Properties, and (ii) there is no action, suit or proceeding
threatened before or by any judicial, administrative or union body, any
arbitrator or any governmental authority, against or affecting the Properties.


 


7.1.8                        Leases.  Except as set forth on Schedule 7.1.8,
(i) the Rent Roll delivered to Purchaser by Seller lists all of the Leases
affecting the Properties owned by Seller or Seller’s Affiliates, (ii) the
Leases affecting the Properties delivered to Purchaser by Seller are true,
correct and complete copies of the Leases provided to or entered into by Seller
or Seller’s Affiliates relating to the Properties, and (iii) to Seller’s
knowledge, no tenant has commenced any action or given any written notice to
Seller or any Seller Affiliate for the purpose of terminating its lease in
whole or in part, whether by exercise of an express termination right in its
lease or otherwise.


 


7.1.9                        Contracts.  Except as set forth on Schedule 7.1.9,
to Seller’s knowledge, Seller has delivered to Purchaser complete copies of
each Contract provided to or entered into by Seller or Seller Affiliate
relating to the Properties.


 


7.1.10                  Defaults.  Except as set forth on Schedule 7.1.10,
or any other exhibit to this Agreement, (i) no
notice of default has been given by Seller or Seller Affiliates to any tenant
or received by Seller from any tenant under any Lease relating to the
Properties which remains uncured and (ii) no base or additional rent due
under any Lease relating to the Properties is more than thirty (30) days past
due.


 


7.1.11                  Operating Statements.  To
Seller’s knowledge, the operating statements relating to the Properties
delivered by Seller to Purchaser in accordance with Section 5.1
hereof are true and correct in all material respects and no material adverse
change has occurred since the respective dates thereof.


 


7.1.12                  Bulk Sale Act. The provisions of Section 9.02(d) of
the Illinois Income Tax Act and the applicable provisions of the Retailer’s
Occupation Tax Act do not apply to this transaction.


 


7.1.13                  REIT REP The Properties consist solely of land, buildings, and other structural
components thereof, and other assets described in Section 856(c)(4)(A) of
the Code.  The total gross revenues
generated by the Properties between January 1, 2003 and the Closing Date
has consisted and will consist solely of income from rents from real property
and other revenue which constitute qualifying income under Section 856(c)(3) of
the Code (“Qualifying Income”),
and based on historical experience, Seller believes that the gross revenues
generated by the Properties after the Closing Date will consist solely of
Qualifying Income. 


 


Seller
shall remake all representations and warranties as of the date of the Closing;
provided, however, at the time such warranties and representations are remade,
Seller shall provide Purchaser with updates of the Schedules referred to in the
representations and warranties set forth above and an updated operating
statement.  Purchaser acknowledges and
agrees that the representations and warranties that are made as of the Closing
Date shall refer to the updated Schedules and operating statements.


 


7.2                               Intentionally Deleted.  


 


10





















 


7.3                               Knowledge.  For
purposes of this Agreement and any document delivered at Closing, whenever the
phrases “to the best of Seller’s knowledge”, “to the actual knowledge of Seller”
or “to the knowledge” of Seller or words of similar import are used, they shall
be deemed to refer to the current, actual knowledge only, and not any implied,
imputed or constructive knowledge of Michael M. Mullen and James N. Clewlow,
after consultation with the property managers of each Property owned by Seller
(collectively, the “Seller Property Managers”).  Except for the obligation to consult with the
Seller Property Managers, neither Michael M. Mullen nor James N. Clewlow shall
be obligated to conduct any independent investigation, and no implied duty to
investigate shall be imputed.  Nothing
contained in this Agreement shall be deemed to impose any personal liability of
any kind on any person named in Section 7.3.


 


For
purposes of this Agreement, and any document delivered at Closing, whenever the
phrase “to the best of Purchaser’s knowledge”, “to the actual knowledge of
Purchaser” or “to the knowledge of Purchaser” or words of similar import are
used, they shall be deemed to refer to the current, actual knowledge only, and
not any implied, imputed or constructive knowledge, of Andrew Martin and Ben
Hindmarsh; provided, however, that nothing in this Agreement shall be deemed to
create or impose any personal liability of any kind on Andrew Martin or Ben
Hindmarsh.


 


7.4                               Change in
Representation/Waiver. 
Notwithstanding anything to the contrary contained herein, Purchaser
acknowledges that Purchaser shall not be entitled to rely on any representation
or warranty made by Seller in this Article VII to the extent, prior
to or at Closing, Purchaser shall have or obtain actual knowledge of any
information that was contradictory to such representation or warranty;
provided, however, if Purchaser determines prior to Closing that there is a
breach of any of the representations and warranties made by Seller above, then
Purchaser may, at its option, by sending to Seller written notice of its
election either (i) exercise its rights under Section 9.9
below if applicable, (ii) waive such breach and/or conditions and proceed
to Closing with no adjustment in the Purchase Price and in such event Seller
shall have no further liability as to such matter thereafter, or (iii) as
its sole remedy, terminate this Agreement in its entirety in the event of any
untruth or inaccuracy of (x) the representations or warranties set forth in Sections
7.1.1, 7.1.2 or 7.1.3, or (y) the representations and warranties set
forth in the other sections of Article VII, but only if such
representations and warranties were not true or were inaccurate on the
Effective Date and such untruth or inaccuracy is “Material” (defined below).
The term “Material” as used in this Section 7.4 shall mean a
liability or loss reasonably anticipated to arise out of an untruth or
inaccuracy of the representations or warranties set forth in Article VII
which (i) exceeds $500,000.00 for each affected Property, or (ii) results
from fraud or willful misconduct on the part of Seller.  In the event that Purchaser elects to
terminate this Agreement, the parties shall have no liability to each other
hereunder and the Deposit shall be returned to Purchaser and the Seller Letter
of Credit shall be returned to Seller. 
Seller shall have no liability with respect to any of the foregoing
representations and warranties or any representations and warranties made in
any other document executed and delivered by Seller to Purchaser, to the extent
that, prior to the Closing, Purchaser discovers or learns of information (from
whatever source, including, without limitation the property manager, the tenant
estoppel certificates or the Seller’s Estoppel Certificates delivered pursuant
to Section 10.1.1 below, as a result of Purchaser’s due diligence
tests, investigations and inspections of the Property, or disclosure by Seller
or Seller’s agents and employees) that contradicts any such representations and
warranties, or renders any such representations and warranties untrue or
incorrect, and Purchaser nevertheless consummates the transaction contemplated
by this Agreement.


 


7.5                               Post Closing Rights. 
Following Closing, Purchaser will have the right to bring any action
against Seller as a result of any untruth or inaccuracy of representations and
warranties made herein if (i) such untruth or inaccuracy is “Material,”
and (ii) prior to Closing Purchaser did not discover or learn information
(from whatever source) that contradicts any such representations and
warranties, or renders any such representations and warranties untrue or
incorrect.  The term “Material” as used
in this Section 7.5 shall mean a liability or loss reasonably
anticipated to arise out


 


11










 













 


of an untruth or inaccuracy of the representations or warranties set
forth in Article VII which results from fraud or willful misconduct
on the part of Seller or exceeds $500,000 for each such affected Property, it
being understood that the foregoing limitation is a threshold which must be
exceeded, but that once such threshold has been exceeded, any post closing
claim may be pursued for its full value. 
In addition, in no event will Seller’s liability for all such breaches
relating to a specific Property, exceed, in the aggregate, the allocated
Purchase Price of the Property in question, calculated in accordance with Schedule 9.8.


 


7.6                               Survival.  The
express representations and warranties made in this Agreement shall not merge
into any instrument or conveyance delivered at the Closing; provided, however,
that any action, suit or proceeding with respect to the truth, accuracy or
completeness of representations and warranties set forth in Sections other than
Sections 7.1.1, 7.1.2 and 7.1.3 shall be commenced, if at
all, on or before the date which is twelve (12) months after the date of a
Closing and, if not commenced on or before such date, thereafter such
representations and warranties shall be void and of no force or effect as to
the applicable Closing.


 


ARTICLE VIII


Representations
and Warranties of Purchaser


 


8.1                               Purchaser represents and warrants to Seller
that the following matters are true and correct as of the Effective Date.


 


8.1.1                        Authority.  Purchaser is a limited
liability company, duly organized, validly existing and in good standing under
the laws of the State of Delaware.  This
Agreement has been duly authorized, executed and delivered by Purchaser, is the
legal, valid and binding obligation of Purchaser, and does not violate any
provision of any agreement or judicial order to which Purchaser is a party or
to which Purchaser is subject.  All
documents to be executed by Purchaser which are to be delivered at Closing,
will, at the time of Closing, (i) be duly authorized, executed and
delivered by Purchaser, (ii) be legal, valid and binding obligations of
Purchaser, and (iii) not violate any provision of any agreement or
judicial order to which Purchaser is a party or to which Purchaser is subject.


 


8.1.2                        Bankruptcy or Debt of Purchaser. 
Purchaser has not made a general assignment for the benefit of
creditors, filed any voluntary petition in bankruptcy, admitted in writing its
inability to pay its debts as they come due or made an offer of settlement,
extension or composition to its creditors generally.  Purchaser has received no written notice of (a) the
filing of an involuntary petition by Purchaser’s creditors, (b) the
appointment of a receiver to take possession of all, or substantially all, of
Purchaser’s assets, or (c) the attachment or other judicial seizure of
all, or substantially all, of Purchaser’s assets.


 


8.1.3                        No Financing Contingency.  It
is expressly acknowledged by Purchaser that this transaction is not subject to
any financing contingency, and no financing for this transaction shall be provided
by Seller.


 


8.2                               Purchaser’s Acknowledgment. 
Purchaser acknowledges and agrees that, except as expressly provided in
this Agreement, Seller has not made, does not make and specifically disclaims
any and all representations, warranties, promises, covenants, agreements or
guaranties of any kind or character whatsoever, whether express or implied,
oral or written, past, present or future, including, but not limited to those
representations, warranties, promises, covenants, agreement and guaranties of,
as to, concerning or with respect to (a) the nature, quality or condition
of the Properties, including, without limitation, the water, soil and geology, (b) the
income to be derived from the Properties, (c) the suitability of the
Properties for any and all activities and uses which Purchaser may conduct
thereon, (d) the compliance of or by the Properties or its operation with
any laws, rules, ordinances or regulations of any applicable governmental
authority or body, including,


 


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without limitation, the Americans with Disabilities Act and any rules and
regulations promulgated thereunder or in connection therewith, (e) the
habitability, merchantability or fitness for a particular purpose of the
Properties, or (f) any other matter with respect to the Properties, and
specifically that except as expressly provided in this Agreement, Seller has
not made, does not make and specifically disclaims any representations
regarding solid waste, as defined by the U.S. Environmental Protection Agency
regulations at 40 C.F.R., Part 261, or the disposal or existence, in or on
the Properties, of any hazardous substance, as defined by the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, and
applicable state laws, and regulations promulgated thereunder.  Purchaser further acknowledges and agrees
that, except as expressly provided in this Agreement, having been given the
opportunity to inspect the Properties, Purchaser is relying solely on its own
investigation of the Properties and not on any information provided or to be
provided by Seller.  Purchaser further
acknowledges and agrees that subject to the representations and warranties of
Seller as provided herein and in any other document executed at Closing, any
information provided or to be provided with respect to the Properties was
obtained from a variety of sources and that Seller has not made any independent
investigation or verification of such information.  Purchaser
further acknowledges and agrees that, as a material inducement to the execution
and delivery of this Agreement by Seller, subject to the representations and
warranties of Seller provided herein and in any other document executed at
Closing, the sale of the Properties as provided for herein is made on an “AS
IS, WHERE IS” CONDITION AND BASIS “WITH ALL FAULTS.”  Purchaser acknowledges, represents
and warrants that Purchaser is not in a significantly disparate bargaining
position with respect to Seller in connection with the transaction contemplated
by this Agreement; that Purchaser freely and fairly agreed to this
acknowledgment as part of the negotiations for the transaction contemplated by
this Agreement; that Purchaser is represented by legal counsel in connection
with this transaction.


 


8.3                               Purchaser’s Release. 
Effective as of the date of the Closing, Purchaser on behalf of itself
and its successors and assigns waives its right to recover from, and forever
releases and discharges, Seller, Seller’s affiliates, Seller’s investment
manager, property manager, the partners, trustees, shareholders, beneficiaries,
directors, officers, employees, attorneys and agents of each of them, and their
respective heirs, successors, personal representatives and assigns from any and
all demands, claims, legal or administrative proceedings, losses, liabilities,
damages, penalties, causes of action, fines, liens, judgments, costs and
expenses known or unknown, foreseen or unforeseen, that may arise on account of
or in any way be connected with the Properties, except, subject to Section 7.5
hereof, such as arises out of (i) a breach of any of the representations
and warranties of Seller set forth in Article VII and (ii) any
of the provisions of this Agreement that survive Closing pursuant to the
provisions of Section 17.12 below. 
The terms and provisions of this Section 8.3 shall survive
Closing and/or termination of this Agreement without limitation.


 


8.4                               Survival.  The
express representations and warranties made in this Agreement by Purchaser
shall not merge into any instrument of conveyance delivered at the Closing;
provided, however, that any action, suit or proceeding with respect to the
truth, accuracy or completeness of all such representations and warranties
shall be commenced, if at all, on or before the date which is twelve (12)
months after the date of the Closing and, if not commenced on or before such
date, thereafter shall be void and of no force or effect as to the applicable
Closing.


 


ARTICLE IX


Seller’s
Interim Operating Covenants/Seller’s and Purchaser’s Covenants


 


9.1                               Operations. 
Seller agrees to continue to operate, manage and maintain the
Improvements through the Closing Date in the ordinary course of Seller’s
business and substantially in accordance with Seller’s present practice,
subject to ordinary wear and tear and further subject to Article XII
of this Agreement.  As of, and at all
times after the Effective Date until Closing, Seller shall


 


13





















 


name Purchaser as an additional insured on all liability insurance
policies maintained by Seller relating to the Properties. 


 


9.2                               No Sales.  Except for the execution of tenant Leases pursuant to Section 9.3,
Seller agrees that it shall not convey any interest in the Properties to any third
party.   


 


9.3                               Tenant Leases.  From and after the Effective Date, Seller shall not (i) grant any
consent or waive any material rights under the Leases, (ii) terminate any
Lease, or (iii) enter into a new lease, modify an existing Lease or renew,
extend or expand an existing Lease in any material respect without the prior
written approval of Purchaser (an “Approved
New Lease”), which in each case shall not be unreasonably withheld,
conditioned or delayed.  Any Approved New
Lease shall meet all of the following parameters: (i) such proposed lease
has an initial term (excluding any options to extend such term) of not less
than three (3) years and not more than ten (10) years; (ii) such
proposed lease has no free-rent period extending beyond the term of the Master
Lease (defined below); (iii) such proposed lease has no above-market
obligation of Purchaser to provide or fund any tenant improvements; (iv) such
proposed lease provides for base rent payable at a rate per month that is never
less than 95% of the base rent per month required to be paid for such space
under the Master Lease; (v) leasing commissions for such proposed lease do
not exceed market rates; (vi) such proposed lease does not require the
landlord thereunder, and will not result in an obligation for the landlord
thereunder to alter or improve or pay for the altering or improving of the
building (other than tenant improvements as limited by clause (iii) above
and responsibility for repairing and replacing the roof and structure, but
excluding the obligation for internal wall changes); (vii) such lease
shall be on the form customarily used by Seller with such revisions which
Seller approves using its judgment as a commercially prudent landlord; (viii) the
creditworthiness of the tenant and intended use of the premises by the tenant
shall be consistent with Seller’s historical and customary requirements as a
commercially prudent landlord; and (ix) the income to be generated from
the proposed lease shall constitute qualifying income under Section 856(c)(3) of
the Code.  Additionally, the parties
expressly agree that it shall not be deemed unreasonable for Purchaser to
withhold, condition or delay its consent to any Approved New Lease that
includes above-market tenant improvements, above-market leasing commissions or
any other above-market leasing costs that Purchaser would be obligated to pay
or incur; provided, however, in such event, Purchaser and Seller agree to
negotiate in good faith to agree upon such tenant improvement costs, leasing
commission and other leasing costs to render such Approved New Lease and the
terms thereof acceptable to Purchaser. 
Any lease proposed by Seller, which satisfies the criteria set forth in
this Section 9.3 and would otherwise be reasonably acceptable to
Purchaser, but for the fact that such lease includes above-market tenant
improvements, above-market leasing commissions or any other above-market
leasing costs, may, nonetheless, be approved and executed by Seller, in its
sole and absolute discretion, and in such event such proposed lease shall be
deemed an Approved New Lease, provided that Seller pays all such above-market
tenant improvements, above-market leasing commissions or any other above-market
leasing costs.  Purchaser’s failure to
respond within five (5) Business Days after receipt of a request for
approval, together with a copy of the proposed Approved New Lease or letter of
intent to lease and credit information on the proposed replacement tenant or
tenants, shall be deemed approval by Purchaser. Seller shall pay the portion of
the tenant improvement costs, leasing commissions and other usual and customary
leasing costs with respect to any Approved New Lease, allocated on a prorata
basis over the term of the Approved New Lease with respect to the portion of the
term of the Approved New Lease prior to a Closing and Purchaser shall pay the
portion of the tenant improvement costs, lease commissions and other usual and
customary leasing costs with respect to an Approved New Lease, allocated on a
prorata basis over the term of the Approved New Lease with respect to the
portion of the term of the Approved New Lease after the Closing.   


 


9.4.                            Planned Expenditures. 
Seller shall effect and complete the planned expenditures for nominated
work and items in accordance with the description and budget set forth on Exhibit R attached hereto as a
prudent manager/owner in consultation with Purchaser, and to Purchaser’s


 


14





















 


commercially reasonable satisfaction; in the event that upon completion
of such work and items,  the total cost
of such work is less than the total budget allocated for same, Seller shall be
entitled to retain all such unexpended amounts. 
In the event that Exhibit R
reflects that certain work is to be performed after Closing, the obligations of
Seller under this Section 9.4 with respect to that work shall
survive Closing.


 


9.5                               Master Lease.  At
the Closing, Seller and Purchaser shall execute and deliver to each other a
master lease (“Master Lease”) in
the form of Exhibit H
attached hereto.


 


9.6                               Management Agreement.  At
the Closing, Seller and Purchaser shall
execute an Amendment to the Property Management Agreement between Purchaser and
CenterPoint Properties Trust adding the Properties to the definition of “Properties”
under such Management Agreement. 
Seller shall terminate any existing property management agreements
pertaining to the Properties as of the Closing Date.


 


9.7                               Intentionally Deleted.


 


9.8                               Transfer Tax Declaration
Allocation.  Purchaser and Seller agree that the Purchase
Price shall be allocated amongst the Properties as set forth on Schedule 9.8
for the purpose of completing real estate transfer declarations to be executed
by Seller and Purchaser at Closing (the “Transfer
Tax Declaration Allocation”).


 


9.9                               Substitution of Properties


 


9.9.1                        In the event of the occurrence of a
Substitution Event (defined below) prior to Closing, Purchaser may, at its
option, by written notice to Seller (“Event
Notice”) within ten (10) days after the date on which Purchaser
is given or obtains actual knowledge of the occurrence of a Substitution Event,
elect to either (i) ignore the Substitution Event and proceed to Closing
with no adjustment in the Purchase Price, or (ii) request that Seller
offer a Substitute Property or Substitute Properties (both as hereinafter
defined) to Purchaser valued in the aggregate amount of the Purchase Price
allocated to the Property or Properties (“Removed
Property” or “Removed Properties”)
subject to the Substitution Event.


 


In the event that Purchaser elects under (ii) above to have Seller
provide a Substitute Property or Substitute Properties, Seller, if it chooses
to do so, in its sole and absolute discretion, shall have a period of thirty
(30) days from the date of Purchaser’s Event Notice to correct the condition
giving rise to the Substitution Event, and further, provided, however, if such
condition is of a nature which is not capable of cure within said thirty (30)
day period and Seller has commenced to cure within such thirty (30) day period,
then Seller shall have such reasonable period of time from and after the date
of Purchaser’s Event Notice to correct the condition giving rise to the
Substitution Event.  In the event
Purchaser exercises its rights under (ii) above, and Seller elects to and
cures the condition giving rise to the Substitution Event prior to the time
that the Closing with respect to the Substitute Property occurs, the Scheduled
Closing Date for the Removed Property shall be extended to the fifteenth (15th)
day after the condition giving rise to the Substitution Event has been cured.


 


In the event that Purchaser fails to elect (i) or (ii) above
within ten (10) days after Purchaser is given or obtains actual knowledge
of a Substitution Event, Purchaser shall be deemed to have elected to waive
such condition and proceed to Closing on the Closing Date with no adjustment in
the Purchase Price.  In the event that
within said ten (10) day period Purchaser elects its rights under (ii) above
and Seller elects not to cure or elects to cure the condition but fails to do
so within the time period set forth above, Seller shall use reasonable


 


15





















 


efforts
to provide a Substitute Property or Substitute Properties as described in Section 9.9.2.  Notwithstanding any other term or condition
contained herein, (i) in no event shall the Closing with respect to the
Properties which are not subject to a Substitution Event be delayed, and (ii) in
the event of the occurrence of a Substitution Event, Seller shall not be in
default under this Agreement, Seller shall not be liable for damages and
Purchaser’s sole right and remedy shall be to exercise its rights under this Section 9.9.1.


 


The term “Substitution Event”
shall mean any one or more of the following: (i) written notice to
Purchaser that a tenant under its lease (“Right
of First Refusal Lease”)  has
exercised a right of first refusal, right of first offer or option to purchase
a Property prior to Closing pursuant to the existing terms of its lease, (ii) the
taking of one hundred percent (100%) of a Property by condemnation or eminent
domain or (iii) any one or more of the following, to the extent the
existence of the condition hereinafter described has a “Material Adverse Effect”
on the use, value or marketability of the applicable Property: (a) the
existence of a title exception other than a Permitted Exception on an Owner’s
Policy to be issued by the Title Company at the time of the Closing; provided,
however that Seller shall, at Seller’s expense, use reasonable efforts to
obtain a title insurance endorsement to the Owner’s Policy (defined below)
insuring over any unpermitted title exception, (b) the existence of a
difference on a Survey not reflected on the Initial Surveys; (c) if
Purchaser has not been provided with a copy of a zoning endorsement issued by
the Title Company with respect to any Properties (whether in favor of Seller or
Purchaser) prior to the Effective Date and it is determined that the present
use of the Property is not permitted under the zoning ordinance in effect on
the Effective Date; (d) the physical or environmental condition of the
Properties are not the same as on the Effective Date, ordinary wear and tear
and damage by casualty excepted, provided, however, that under this subsection (d) it
shall not be a Substitution Event if a tenant of the Property is responsible
under its lease for maintaining, repairing or restoring the physical or
environmental condition in question; and (e) the existence of a breach of
a warranty or representation made by Seller under Sections 7.1.4, 7.1.6,
7.1.7 and 7.1.9 of this Agreement (or any change in the schedules
thereto).  The term “Material Adverse Effect” as used herein
shall mean that a liability or loss reasonably anticipated to arise out of the
condition under (a) Sections 9.9.1(iii)(a) or (b) which
exceeds $150,000.00 for the affected Property, or (b) under Sections
9.9.1iii(c), (d) or (e) which exceeds seven and one-half
percent (7.5%) of the Purchase Price for the affected Property.


 


9.9.2                        In the event of the occurrence of a
Substitution Event (and notwithstanding any election by Seller to attempt to
cure the condition giving rise to the Substitution Event), Seller shall use
reasonable efforts to substitute another Property or Properties owned by Seller
that the parties mutually agree in their reasonable opinion is comparable
(individually, a “Substitute Property”
and collectively, the “Substitute Properties”).  Seller shall use reasonable efforts to
identify a Substitute Property within thirty (30) days after receipt of an
Event Notice.  Commencing on the date
that Purchaser receives a notice from Seller identifying a Substitute Property
or Substitute Properties to replace a Removed Property or Removed Properties (“Substitution of Assets Notice”), and
continuing until 5:00 p.m. Central time on the thirtieth (30th)
day thereafter (“Substitute Properties
Feasibility Period”), Purchaser and its agents shall have the right
to conduct inspections and tests of the Substitute Properties in the manner
hereby provided in Section 9.9.5 and subject to the provisions as
provided in Section 9.9.6. 
In the event that Purchaser approves all of the Substitute Properties
prior to the expiration of the Substitute Properties Feasibility Period, all of
the Substitute Properties shall be subject to this Agreement, and the Purchase
Price shall be adjusted as provided below in Section 9.9.3.  In the event that Purchaser does not approve
one or more of the Substitute Properties prior to the expiration of the
Substitute Properties Feasibility Period, the Substitute Property or Properties
not approved by Purchaser and the Removed Property or Removed Properties shall
not be subject to this Agreement, and the Purchase Price shall be reduced by
the value of the Removed Property


 


16





















 


or
Removed Properties, as the case may be, as set forth on Schedule 9.8.  All Substitute Properties approved by
Purchaser shall be deemed to be Properties subject to this Agreement, except
that all warranties and representations shall be modified to reflect the
circumstances relating to the Substitute Properties.  Within fifteen (15) days after the
Substitution of Assets Notice, Seller shall deliver Schedules similar to those
attached hereto as Schedules 7.1.4, 7.1.5, 7.1.6, 7.1.7, 7.1.8, 7.1.9 and
7.1.10, with respect to the Substitute Properties.


 


9.9.3                        For the purposes of this Section 9.9,
the purchase price for a Removed Property shall be based on Schedule 9.8
attached hereto, and the purchase price for a Substitute Property shall be
calculated using a capitalization rate equal to the capitalization rate that
was used to determine the Purchase Price of the Removed Property and the annual
net rent of the Substitute Property, without deductions (“Substitute Property Purchase Price”).  In the event that the Seller delivers the
Substitution of Assets Notice to Purchaser within the time frame set forth
above, the Closing of all Properties not subject to the Substitution of Assets
Notice shall take place on the date of the Scheduled Closing Date.  Subject to the right of Purchaser to
disapprove one or more of the Substitute Properties during the Substitute
Properties Feasibility Period, and further subject to the provisions of Section 4.1
above, the Closing with respect to each Substitute Property shall take place on
the thirtieth (30th) day following the expiration of the applicable
Substitute Property Feasibility Period.


 


9.9.4                        Seller shall deliver to Purchaser copies of
all notices sent by Seller to tenants under Right of First Refusal Leases as
required under the Right of First Refusal Leases, and shall notify Purchaser
promptly if it receives a notice from an Exercising Tenant. 


 


9.9.5                        During the Substitute Properties Feasibility
Period, Purchaser and its agents shall have the right during business hours
(with reasonable advance notice to Seller and subject to the rights of the
tenants in possession), at Purchaser’s sole cost and expense and at Purchaser’s
and its agents’ sole risk, to perform inspections and tests of the Substitute
Properties and to perform such other analyses, inquiries and investigations as
Purchaser shall deem reasonably necessary or appropriate; provided, however,
that in no event shall (i) such inspections or tests unreasonably disrupt
or disturb the on-going operation of the Substitute Properties or the rights of
the tenants at the Substitute Properties, or (ii) Purchaser or its agents
or representatives conduct any physical testing, drilling, boring, sampling or
removal of, on or through the surface of the Substitute Properties (or any part
or portion thereof) including, without limitation, any ground borings or
invasive testing of the Improvements (collectively, “Physical Testing”), without Seller’s prior written consent,
which consent may be given or withheld in Seller’s sole and absolute
discretion.  Seller acknowledges and
agrees that the performance of a phase I environmental assessment on behalf of
Purchaser (“Phase I Assessments”)
shall not be considered Physical Testing for purposes hereof and shall be
permitted without Purchaser obtaining the consent of Seller.  In the event Purchaser desires to conduct any
such Physical Testing of a Substitute Property, then Purchaser shall submit to
Seller, for Seller’s approval, a written detailed description of the scope and
extent of the proposed Physical Testing, which approval may be given or
withheld in Seller’s sole and absolute discretion.  In no event shall Seller be obligated as a
condition of this transaction to perform or pay for any environmental
remediation of the Substitute Properties recommended by any such Physical
Testing.  After making such tests and
inspections, Purchaser agrees to promptly restore the Substitute Properties to
their condition prior to such tests and inspections (which obligation shall
survive the Closing or any termination of this Agreement).  In addition to the rights available to the
Purchaser during the Substitute Properties Feasibility Period, as set forth
above, Purchaser and its agents shall have access to the Substitute Properties
prior to the Closing Date, but during normal business hours (with reasonable
advance notice to Seller and


 


17





















 


subject
to the rights of the tenants in possession), at Purchaser’s sole cost and
expense, and at Purchaser’s and its agents’ sole risk, to inspect the
applicable Substitute Properties; provided, however, Purchaser shall not be
entitled to conduct any Physical Testing or any Phase I Assessment after the
expiration of the Substitute Properties Feasibility Period.  Prior to Purchaser entering the Substitute
Properties to conduct the inspections and tests described above, including, but
not limited to, the Phase I Assessments, Purchaser shall obtain and maintain,
at Purchaser’s sole cost and expense, and shall deliver to Seller evidence of,
the following insurance coverage, and shall cause each of its agents and
contractors to obtain and maintain, and, upon request of Seller, shall deliver
to Seller evidence of, the following insurance coverage:  general liability insurance, from an insurer
reasonably acceptable to Seller, in the amount of Five Million and No/100
Dollars ($5,000,000.00) combined single limit for personal injury and property
damage per occurrence, such policy to name Seller as an additional insured
party, which insurance shall provide coverage against any claim for personal
liability or property damage caused by Purchaser or its agents, employees or
contractors in connection with such inspections and tests (“Due Diligence Insurance”).  Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its
agents do not unreasonably interfere with Purchaser’s inspection.


 


9.9.6                        Purchaser and its agents and representatives
shall:  (a) not unreasonably disturb
the tenants of the Substitute Properties or interfere with their use of the
Substitute Properties pursuant to their respective Leases; (b) not
interfere with the operation and maintenance of the Substitute Properties; (c) not
damage any part of the Substitute Properties or any personal property owned or
held by any tenant; (d) not injure or otherwise cause bodily harm to
Seller, its agents, contractors and employees or any tenant; (e) promptly
pay when due the costs of all tests, investigations and examinations done with
regard to the Substitute Properties; (f) not permit any liens to attach to
the Substitute Properties by reason of the exercise of its rights hereunder; (g) restore
the Improvements and the surface of the Substitute Properties to the condition
in which the same was found before any such inspection or tests were
undertaken; and (h) except to the extent required by applicable laws, not
reveal or disclose any information obtained pursuant to its right to evaluate
set forth in Section 9.9.5 above concerning the Substitute
Properties to anyone other than a Purchaser Party/Representative.  Purchaser shall, at its sole cost and expense,
comply with all applicable federal, state and local laws, statutes, rules,
regulations, ordinances or policies in conducting its inspection of the
Substitute Properties, the Purchaser’s Phase I Assessments and the Physical
Testing.  Purchaser shall, and does
hereby agree to indemnify, defend and hold the Seller, its partners, members,
officers, directors, employees, agents, attorneys and their respective
successors and assigns, harmless from and against any and all claims, demands,
suits, obligations, payments, damages, losses, penalties, liabilities, costs
and expenses (including but not limited to attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Substitute
Properties in the exercise of the inspection right granted pursuant to Section 9.9.5,
including, without limitation, (i) claims made by any tenant against
Seller for Purchaser’s entry into such tenant’s premises or any interference
with any tenant’s use or damage to its premises or property in connection with
Purchaser’s review of the Substitute Properties, and (ii) Purchaser’s
obligations pursuant to this Section 9.9.6.  This Section 9.9.6 shall survive
the Closing of the Substitute Properties and/or any termination of this
Agreement without limitation.


 


9.9.7                        With respect to the Substitute Properties,
Seller shall deliver to Purchaser or make available at the applicable
Substitute Property or Seller’s office in Oak Brook, Illinois, at Seller’s
option, the following: operating statements, leases, reports relating to the
physical and/or environmental condition of the applicable Substitute
Properties, a statement of the


 


18





















 


estimated
value of the applicable Substitute Properties from an independent industrial
real estate broker with at least ten (10) years experience in the
marketplace (which value shall not be binding on Seller or Purchaser), rent
rolls and revenue and expense statements, Seller and Purchaser shall use
reasonable efforts to agree upon the format and scope of such materials, but
agree that the format and scope shall be similar to the materials typically
provided by Seller to Purchaser in connection with the sale of the Properties
in accordance with Section 5.1 hereof (the “Substitute Property Documents”); provided,
however, that except for the representations and warranties made in Article VII
hereof, Seller makes no representations or warranties of any kind regarding the
accuracy, thoroughness or completeness of or conclusions drawn in the information
contained in such Substitute Properties Documents.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Notwithstanding anything contained in the preceding sentence, Seller
shall not deliver or make available to Purchaser Seller’s internal memoranda,
attorney-client privileged materials, internal appraisals and economic
evaluations of the Substitute Properties, and reports regarding the Substitute
Properties prepared by Seller or its affiliates solely for internal use or for
the information of the investors in Seller. 
Purchaser acknowledges that any and all of the Substitute Properties
Documents that are not otherwise known by or available to the public are
proprietary and confidential in nature and will be delivered to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Substitute Properties.  Purchaser agrees
not to disclose such non-public documents, or any of the provisions, terms or
conditions thereof, to any party other than a Purchaser
Party/Representative.  Purchaser shall
return all of the Substitute Properties Documents, on or before three (3) Business
Days after the first to occur of (a) such time as Purchaser notifies Seller
in writing that it shall not acquire the Substitute Properties, or (b) such
time as this Agreement is terminated for any reason.  This Section 9.9.7 shall survive
any termination of this Agreement without limitation.


 


9.9.8                        Purchaser hereby acknowledges that it will
have been given, prior to the termination of the Substitute Properties
Feasibility Period, a full, complete and adequate opportunity to make such
legal, factual and other determinations, analyses, inquiries and investigations
as Purchaser deems necessary or appropriate in connection with the acquisition
of the Substitute Properties.  Purchaser
will be relying upon its own independent examination of the Substitute
Properties and all matters relating thereto and not upon any statements of
Seller (excluding the limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Substitute Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser relating to the Substitute Properties.  The provisions of this Section 9.9.8
shall survive Closing and/or termination of this Agreement without limitation.


 


9.10                        Contracts. 
Seller shall not, with respect to a Contract that will survive Closing,
from and after the Effective Date, terminate an existing Contract, enter into a
new Contract or modify an existing Contract without the prior written approval
of Purchaser, which consent in each case shall not be unreasonably conditioned,
withheld or delayed and which shall be deemed granted if Purchaser fails to
respond to a request for approval within five (5) Business Days after
receipt of the request therefor together with a summary of the terms of the
Contract (an “Approved New Contract”).  Schedule 9.10 attached hereto
contains a list of Contracts for the Properties that Purchaser will assume as
of the Closing, and a list of Contracts for the Properties that Purchaser is
requesting Seller to terminate as of the Closing (the “Unassumed Contracts”).  Provided that the


 


19





















 


Closing occurs hereunder, Seller shall terminate such applicable
Unassumed Contracts effective as of the Closing Date and deliver evidence at
such Closing of such termination.


 


9.11                        Intentionally Deleted.


 


9.12                        REA Estoppels. 
Attached hereto as Schedule 9.12 is a list of REA and other
Property-related estoppels that Purchaser would like to obtain prior to Closing
(collectively, the “REA Estoppels”).  Purchaser shall prepare and deliver to Seller
REA Estoppel Certificates for each of the REA Estoppels (the “REA Estoppel Certificates”), and Seller
shall send out the REA Estoppel Certificates for execution prior to the Closing
Date, it being understood that obtaining the REA Estoppel Certificates shall
not be a condition to Purchaser’s obligation to close.


 


ARTICLE X


Closing Conditions


 


10.1                        Conditions to Obligations of
Purchaser.  The obligations of Purchaser under this
Agreement to purchase the Properties and consummate the other transactions
contemplated hereby shall be subject to the satisfaction of the following
conditions on or before the Scheduled Closing Date, except to the extent that
any of such conditions may be waived by Purchaser in writing at Closing.


 


10.1.1                  Tenant Estoppels. 
Purchaser shall have received tenant estoppel certificates dated not
more than thirty (30) days prior to the Closing from seventy-five percent (75%)
of the occupied square footage in the Properties.  Seller agrees to deliver to each tenant a
tenant estoppel certificate substantially in the form attached hereto as Exhibit K.  Notwithstanding the foregoing, in the event
that a Lease requires a different form of estoppel certificate or requires
specific provisions, Purchaser shall be required to accept a tenant estoppel
certificate that is substantially in the form required by said Lease or substantially
in the form of Exhibit K
as modified to comply with the specific provisions required by said Lease.  Additionally, Purchaser acknowledges that
while the statements set forth in paragraphs 8 and 9 of Exhibit K are not qualified to the
knowledge or best knowledge of the tenant, Purchaser shall be required to
accept any tenant estoppel certificate that has been qualified to the knowledge
or best knowledge of the tenant with respect to said paragraphs.  Notwithstanding the foregoing, at Seller’s
sole option, Seller may (i) extend the Scheduled Closing Date solely with
respect to up to five (5) of the Properties for up to an additional thirty
(30) days in order to satisfy the foregoing requirement for such Properties, in
which event Seller shall deliver notice of such extension with respect to such
Properties to Purchaser prior to the Scheduled Closing Date (and the Closing
shall proceed as scheduled with respect to all other Properties), and/or (ii) provide
its own estoppel (“Seller’s Estoppel”)
in the form attached as Exhibit L
to Purchaser in satisfaction of the foregoing requirements with respect to not
more than twenty-five percent (25%) of the occupied square footage of the
Properties.  In the event that Seller has
not complied with the provisions of this Section 10.1.1, Purchaser
may (i) elect to consummate the Closing, or (ii) notify Seller of its
intent to terminate this Agreement by written notice (the “Tenant Estoppel Termination Notice”) on or
before the Scheduled Closing Date.  In
the event that, after the Closing, Seller delivers to Purchaser a tenant
estoppel certificate from a tenant for whom Seller executed a Seller’s Estoppel
at the Closing and such tenant estoppel certificate contains no information
which is contradictory to or inconsistent with the information contained in the
Seller’s Estoppel, then Seller thereafter shall be released from all liability
relating to Seller’s Estoppel with respect to such tenant’s Lease.  In no event shall Seller be obligated to
deliver updates to the tenant estoppel certificate or Seller’s Estoppel.


 


20





















 


10.1.2                  Title Policy.  The
Title Company shall be prepared to issue to Purchaser on the Closing Date an
extended coverage ALTA Form B policy of title insurance, amended October 17,
1970 (the “Owner’s Policy”), or
equivalent form Owner’s Policy acceptable to Purchaser, with respect to each
Property in the Properties, in the face amount of the applicable Purchase Price
attributable to such Property, and dated as of the Closing Date, indicating
title to such Property is vested of record in Purchaser, subject solely to the
applicable Permitted Exceptions.


 


10.1.3                  Possession of the Property. 
Delivery by Seller of possession of the applicable Property, subject to
the Permitted Exceptions and the rights of tenants under the applicable Leases
and Approved New Leases.


 


ARTICLE XI


Closing


 


11.1                        Purchaser’s Closing
Obligations.  Purchaser, at its sole cost and expense,
shall deliver or cause to be delivered to Seller and the Title Company at each
Closing the following, as same relates to the Properties:


 


11.1.1                  The applicable portion of the Purchase Price,
after all adjustments are made at the Closing as herein provided, by wire
transfer or other immediately available federal funds, which amount shall be
received in escrow by the Title Company at or before 11:00 a.m. Central
time.


 


11.1.2                  An assumption of a blanket conveyance and
bill of sale, substantially in the form attached hereto as Exhibit M (“General Assignment”), duly executed by
Purchaser, conveying and assigning to Purchaser the applicable Personal
Property, Leases, Contracts, records and plans, and Intangible Property.


 


11.1.3                  Executed counterparts of the Master Lease and
the Amendment to Management Agreement with respect to the Closing, and such
other documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.     


 


11.1.4                  Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings, if requested by the Title Company.


 


11.2                        Seller’s Closing Obligations. 
Seller, at its sole cost and expense, shall deliver or cause to be delivered
to Purchaser and the Title Company the following, as same relates to each of
the Properties and the Properties, as the case may be:


 


11.2.1                  A Special warranty deed (a “Deed”) in recordable form properly executed
by Seller conveying to Purchaser the Land and Improvements in fee simple,
subject only to the Permitted Exceptions, substantially in the form attached
hereto as Exhibit N
(as modified in order to satisfy any State-specific requirements with respect
to the States of Indiana and Wisconsin, if applicable).


 


11.2.2                  A General Assignment, duly executed by
Seller, conveying and assigning to Purchaser the Personal Property, the Leases,
the Contracts and the Intangible Property. 



 


11.2.3                  Written notice to the tenant(s) (i) acknowledging
the sale of the Property to Purchaser, (ii) acknowledging that Purchaser
has received and is responsible for any


 


21





















 


security
deposits identified in the rent roll, and (iii) indicating that rent
should thereafter be paid to Purchaser, substantially in the form attached
hereto as Exhibit O.


 


11.2.4                  A certificate substantially in the form
attached hereto as Exhibit P
(“Non-foreign Entity Certification”)
certifying that Seller is not a “foreign person” as defined in the Code.


 


11.2.5                  Executed counterparts of the Master Lease and
the Amendment to Management Agreement with respect to the Closing, and such
other documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.2.6                  Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings.


 


11.2.7                  Purchaser and Seller have agreed that
possession (but not ownership) of all original Leases, tenant files and
Contracts shall remain with Seller following Closing, in its capacity as
Property Manager but that ownership of such items shall pass to Purchaser.  Any duplicate originals of Leases and
Contracts in Seller’s possession or control shall be delivered to Purchaser
promptly after Closing. 


 


11.2.8                  All REA Estoppel Certificates received by
Seller, if any.


 


11.2.9                  A certificate of Seller by which Seller
reaffirms the truth and accuracy in all material respects of the
representations and warranties set forth in Sections 7.1 above, subject
to and setting forth any changes thereto occurring since the Effective Date.


 


11.2.10  Reliance letters with
respect to and permitting Purchaser to rely on the most recent Phase 1
environmental reports provided by Seller to Purchaser from the consultant who
prepared the applicable environmental report.


 


11.3                        Joint Closing Obligations.  Purchaser and Seller shall execute
and deliver a closing statement for each of the Properties setting forth the
applicable Purchase Price, and any and all prorations and credits between the
parties, as determined pursuant to this Agreement, together with real estate
transfer tax declarations as required.


 


ARTICLE XII


Risk of Loss


 


12.1                        Condemnation and Casualty.  If,
prior to the Closing Date, any portion of the applicable Properties are taken
by condemnation or eminent domain, or is the subject of a pending taking which
has not been consummated, or is destroyed or damaged by fire or other casualty,
Seller shall notify Purchaser of such fact promptly after Seller obtains
knowledge thereof.  If such condemnation
or casualty is “Material” (as
hereinafter defined), Purchaser shall have the option to either (i) extend
the Scheduled Closing Date solely with respect to the applicable Property for a
time reasonably required by Seller to repair any damage or destruction with
respect to the applicable Property (and the Scheduled Closing Date shall
proceed as scheduled with respect to all other Properties), or (ii) proceed
to Closing in accordance with the terms of Section 12.1. If
Purchaser elects to proceed to Closing, then Seller shall not be obligated to
repair any damage or destruction with respect to the applicable Property, but
(x) Seller shall assign, without recourse, and turn over to Purchaser all of
the insurance proceeds or condemnation proceeds, as applicable, net of any
costs of repairs and net of reasonable collection costs (or, if such have not
been awarded, all of its right, title and interest therein) payable with
respect to such fire or other casualty or condemnation including any rent
abatement insurance for such casualty or condemnation and (y) the parties shall


 


22





















 


proceed to Closing pursuant to the terms hereof without abatement of
the Purchase Price except for a credit in the amount of the applicable
insurance deductible.


 


12.2                        Condemnation Not Material.  If
the condemnation is not Material, then the Closing shall occur without
abatement of the Purchase Price and, after deducting Seller’s reasonable costs
and expenses incurred in collecting any award, Seller shall assign, without
recourse, all awards or any rights to collect awards to Purchaser on the
Closing Date.


 


12.3                        Casualty Not Material.  If
the Casualty is not Material, then the Closing shall occur without abatement of
the Purchase Price except for a credit in the amount of the applicable
deductible and Seller shall not be obligated to repair such damage or destruction
and Seller shall assign, without recourse, and turn over to Purchaser all of
the insurance proceeds net of any costs of repairs completed to date and net of
reasonable collection costs (or, if such have not been awarded, all of its
right, title and interest therein) payable with respect to such fire or such
casualty including any rent abatement insurance for such casualty.


 


12.4                        Materiality.  For
purposes of this Article XII, (i) with respect to a taking by
condemnation or eminent domain, the term “Material”
shall mean any condemnation or taking which would materially impede access to a
Property, reduce available parking at a Property below that required by
applicable law or any other agreement affecting such Property, result in the
termination of any Lease of more than ten percent (10%) of the space in the
applicable Property, or result in a condemnation award reasonably estimated to
exceed ten percent (10%) of the Purchase Price applicable to such Property; and
(ii) with respect to a casualty, the term “Material” shall mean any casualty such that the cost of
repair, as reasonably estimated by an engineer designated by Seller and
Purchaser, is in excess of ten percent (10%) of the Purchase Price applicable
to such Property.


 


ARTICLE XIII


Default


 


13.1                        Default by Seller.  IN
THE EVENT THE CLOSING AND THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS
PROVIDED HEREIN BY REASON OF ANY DEFAULT OF SELLER, WHICH DEFAULT IS NOT CURED
WITHIN TWO (2) DAYS AFTER WRITTEN NOTICE FROM PURCHASER TO SELLER, IT
WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH
PURCHASER MAY SUFFER.  THEREFORE,
THE PARTIES HAVE AGREED THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT
THAT PURCHASER WOULD SUFFER IN SUCH EVENT IS AND SHALL BE THE RIGHT TO RETAIN
THE PROCEEDS OF THE SELLER LETTER OF CREDIT, 
AS LIQUIDATED DAMAGES, AS PURCHASER’S SOLE AND EXCLUSIVE REMEDY UNDER
THIS AGREEMENT.  SUCH LIQUIDATED DAMAGES
ARE NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE
LAWS.  Notwithstanding the foregoing,
nothing contained herein shall limit Purchaser’s remedies at law or in equity,
as to the Surviving Termination Obligations.


 


13.2                        Default by Purchaser;
Liquidated Damages.  IN THE EVENT THE CLOSING AND THE TRANSACTIONS
CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF ANY DEFAULT OF
PURCHASER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS AFTER WRITTEN
NOTICE FROM SELLER TO PURCHASER, IT WOULD BE IMPRACTICAL AND EXTREMELY
DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER.  THEREFORE, THE PARTIES HAVE AGREED THAT A
REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN SUCH
EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE PROCEEDS OF THE PURCHASE
LETTER OF CREDIT, AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE
REMEDY UNDER THIS AGREEMENT.  SUCH
LIQUIDATED DAMAGES ARE NOT INTENDED AS A FORFEITURE OR


 


23





















 


PENALTY WITHIN THE MEANING OF APPLICABLE LAWS.  Notwithstanding the foregoing, nothing
contained herein shall limit Seller’s remedies at law or in equity, as to the
Surviving Termination Obligations.


 


ARTICLE XIV


Brokers


 


14.1                        Brokers. 
Purchaser and Seller each represents and warrants to the other that it
has not dealt with any person or entity entitled to a brokerage commission,
finder’s fee or other compensation with respect to the transaction contemplated
hereby.  Purchaser hereby agrees to
indemnify, defend, and hold Seller harmless from and against any losses,
damages, costs and expenses (including, but not limited to, attorneys’ fees and
costs) incurred by Seller by reason of any breach or inaccuracy of the
Purchaser’s ( or its nominee’s) representations and warranties contained in
this Article XIV.  Seller
hereby agrees to indemnify, defend, and hold Purchaser harmless from and
against any losses, damages, costs and expenses (including, but not limited to,
attorneys’ fees and costs) incurred by Purchaser by reason of any breach or
inaccuracy of Seller’s representations and warranties contained in this Article XIV.  The provisions of this Article XIV
shall survive the Closing and/or termination of this Agreement.


 


ARTICLE XV


Confidentiality


 


15.1                        Confidentiality. 
Purchaser expressly acknowledges and agrees that the transactions
contemplated by this Agreement, the Documents that are not otherwise known by
or readily available to the public and the terms, conditions and negotiations
concerning the same shall be held in the strictest confidence by Purchaser and
shall not be disclosed by Purchaser except to a Purchaser Party/Representative,
and except and only to the extent that such disclosure may be necessary for its
performance hereunder.  Purchaser agrees
that it shall instruct each of its Purchaser Party/Representatives to maintain
the confidentiality of such information and at the request of Seller, to
promptly inform Seller of the identity of each such Purchaser
Party/Representative.  Purchaser further
acknowledges and agrees that, unless and until the Closing occurs, all
information and materials obtained by Purchaser in connection with the
Properties that are not otherwise known by or readily available to the public
will not be disclosed by Purchaser to any third persons (other than to its
Purchaser Party/Representatives) without the prior written consent of
Seller.  If the transaction contemplated
by this Agreement does not occur for any reason whatsoever, Purchaser shall
promptly return to Seller, and shall instruct its Purchaser
Party/Representatives to return to Seller, all copies and originals of all
documents and information provided to Purchaser.  Nothing contained in Section 5.2
of this Agreement or this Section 15.1 shall preclude or limit
either party from disclosing or accessing any information otherwise deemed
confidential under Section 5.2 or this Section 15.1 in
connection with the party’s enforcement of its rights following a disagreement
hereunder or in response to lawful process or subpoena or other valid or
enforceable order of a court of competent jurisdiction or any filings or disclosures
with any applicable Authorities (In the Unites States and/or Australia)
required by reason of the transactions provided for herein and/or any filings
or disclosures required in accordance with the laws or market rules (including
stock exchange rules) of the United States and/or Australia.  The provisions of this Section 15.1
shall survive any termination of this Agreement without limitation.


 


15.2                        Post Closing Publication. 
Notwithstanding the foregoing, following Closing, Purchaser and Seller
shall have the right to announce the acquisition of the Properties in
newspapers and real estate trade publications (including “tombstones”)
publicizing the purchase provided that Purchaser and Seller shall consult one
another with respect to any such notice or publication, and shall implement any
reasonable comments or objections of the other. 
Seller may also publicize the sale of the Property in the ordinary
course of its business.  The provisions
of this Section 15.2 shall survive Closing and/or any termination
of this Agreement without limitation.


 


24





















 


ARTICLE XVI


1031
Exchange


 


16.1                        1031 Exchange. 
Purchaser agrees to cooperate with Seller for purposes of effecting and
structuring, in conjunction with the sale of the Properties, for the benefit of
Seller, a like-kind exchange of real property, whether simultaneous or a
deferred exchange, pursuant to Section 1031 of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated thereunder.  Purchaser specifically agrees to execute such
documents and instruments as are reasonably necessary to implement such an
exchange.  Seller shall be solely
responsible for assuring that the structure of any proposed exchange is
effective for Seller’s tax purposes. 
Furthermore, Purchaser specifically agrees that Seller may assign this
Agreement and any of its rights or obligations hereunder, in whole or in part,
as necessary or appropriate in furtherance of effectuating a Section 1031
like-kind exchange for the Properties, provided that such assignment shall not
serve to relieve Seller of any liability for Seller’s obligations
hereunder.  Purchaser shall have no
obligation to pay costs or expenses of effectuating such exchange, no such
exchange shall alter the time for performance set forth herein, and Purchaser
shall not be required to take title to any exchange property or (except for
customary consent to assignment of this Agreement to an exchange intermediary)
to incur obligations to third parties. 


 


ARTICLE XVII


Miscellaneous


 


17.1                        Notices.  Any
and all notices, requests, demands or other communications hereunder shall be
in writing and shall be deemed properly served (i) on the date sent if
transmitted by hand delivery with receipt therefor, (ii) on the date sent
if transmitted by facsimile (with confirmation by hard copy to follow by
overnight delivery service), (iii) on the date sent if scanned to a .pdf
file and transmitted by e-mail (with confirmation by hard copy to follow by
overnight delivery service) (iv) on day after the notice is deposited with
a nationally recognized overnight courier, or (v) upon receipt after being
sent by registered or certified mail, return receipt requested, first class
postage prepaid, addressed as follows (or to such new address as the addressee
of such a communication may have notified the sender thereof):


 


 


	
  To Purchaser:

  	
   

  	
  CenterPoint
  James Fielding, LLC

  
	
   

  	
   

  	
  Level
  5, 40 Miller Street

  
	
   

  	
   

  	
  North
  Sydney, NSW 2060

  
	
   

  	
   

  	
  Australia

  
	
   

  	
   

  	
  Attn:
  Mr. Ben Hindmarsh

  
	
   

  	
   

  	
  Fax
  No.: 61 2 9004 8462

  
	
   

  	
   

  	
  E-Mail: benhindmarsh@mirvac.com.au

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Wildman
  Harrold Allen & Dixon LLP

  
	
   

  	
   

  	
  225
  W. Wacker Drive, Suite 3000

  
	
   

  	
   

  	
  Chicago,
  Illinois 60606

  
	
   

  	
   

  	
  Attn:
  Kathleen M. Gilligan, Esq.

  
	
   

  	
   

  	
  Fax No.: (312) 201-2555

  
	
   

  	
   

  	
  E-Mail: gilligan@wildmanharrold.com

  



 


25





















 


	
   

  	
   

  	
   

  
	
  To Seller:

  	
   

  	
  CenterPoint
  Properties Trust

  
	
   

  	
   

  	
  1808
  Swift Drive

  
	
   

  	
   

  	
  Oak
  Brook, Illinois 60523

  
	
   

  	
   

  	
  Attn:

  	
  Mr. James
  N. Clewlow

  
	
   

  	
   

  	
   

  	
  and
  Mr. Michael M. Mullen

  
	
   

  	
   

  	
  Fax No.: (630) 586-8010

  
	
   

  	
   

  	
  E-Mail: 

  	
  jclewlow@centerpoint-prop.com

  
	
   

  	
   

  	
  E-Mail: 

  	
  mmullen@centerpoint-prop.com

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Weinberg
  Richmond LLP

  
	
   

  	
   

  	
  333
  West Wacker Drive, Suite 1800

  
	
   

  	
   

  	
  Chicago,
  Illinois 60606

  
	
   

  	
   

  	
  Attn:
  Mark S. Richmond, Esq.

  
	
   

  	
   

  	
  Fax No.:

  	
   (312) 807-3903

  
	
   

  	
   

  	
  E-Mail: 

  	
  mrichmond@wr-llp.com

  
							



 


17.2                        Governing Law.  This
Agreement shall be governed by and construed in accordance with the internal,
substantive laws of the State of Illinois, without regard to the conflict of
laws principles thereof.


 


17.3                        Headings.  The
captions and headings herein are for convenience and reference only and in no
way define or limit the scope or content of this Agreement or in any way affect
its provisions.


 


17.4                        Effective Date.  This
Agreement shall be effective upon delivery of this Agreement fully executed by
the Seller and Purchaser, which date shall be deemed the Effective Date
hereof.  Either party may request that
the other party promptly execute a memorandum specifying the Effective Date.


 


17.5                        Business Days.  If
any date herein set forth for the performance of any obligations of Seller or
Purchaser or for the delivery of any instrument or notice as herein provided
should be on a Saturday, Sunday or legal holiday, the compliance with such
obligations or delivery shall be deemed acceptable on the next business day
following such Saturday, Sunday or legal holiday.  As used herein, the term “legal holiday”
means any state or Federal holiday for which financial institutions or post
offices are generally closed in the state where the Property is located.


 


17.6                        Counterpart Copies.  This
Agreement may be executed in two or more counterpart copies, all of which
counterparts shall have the same force and effect as if all parties hereto had
executed a single copy of this Agreement.


 


17.7                        Binding Effect.  This
Agreement shall be binding upon, and inure to the benefit of, the parties
hereto and their respective successors and assigns.


 


17.8                        Assignment. 
Purchaser shall not have the right to assign this Agreement without
Seller’s prior written consent, which consent may be given or withheld in
Seller’s sole and absolute discretion; provided, however, Purchaser may
designate a wholly owned subsidiary to acquire title to the Properties at
Closing or assign its right, title and interest under this Agreement to a wholly
owned subsidiary, provided that in no event will Purchaser be released from any
of its obligations or liabilities under this Agreement.  Seller may assign this Agreement in whole or
in part to any corporate, limited liability company or partnership entity
affiliated with, or related to, Seller (“Affiliate”)
without Purchaser’s consent; provided that Seller shall in no event be released
from any of its obligations or liabilities hereunder as a result of any such
assignment.  In the event that an
Affiliate shall be designated as a transferee hereunder, the Affiliate shall
have the benefit of all of the


 


26





















 


representations and rights that would otherwise have run in favor of
Seller, which, by the terms of this Agreement, are incorporated or relate to
the conveyance in question.  All
transferees and assignees of Purchaser (“Assignee”)
shall assume all of Purchaser’s obligations under this Agreement pursuant to an
Assignment and Assumption Agreement reasonably acceptable to Seller, and
consented to in writing by Seller.  In
the event the rights and obligations of Purchaser shall be transferred,
assigned and assumed as permitted under this Agreement, then such Assignee will
be substituted in place of such assignor in the above-provided-for documents
and it shall be entitled to the benefit of and may enforce Seller’s covenants,
representations and warranties hereunder provided that Purchaser shall in no
event be released from any of its obligations or liabilities hereunder as a
result of such assignment.  Upon any such
assignment by Purchaser or any successor or assign of Purchaser, then the
assignor’s liabilities and obligations hereunder or under any instruments,
documents or agreements made pursuant hereto shall be binding upon Assignee;
provided, however, that Assignee shall have the benefit of any limitations of
such liabilities and obligations applicable to either the assignor or Assignee,
provided by law or by the terms hereof or such instruments, documents or agreements.  Whenever reference is made in this Agreement
to Seller or Purchaser, such reference shall include the successors and assigns
of such party under this Agreement.  Purchaser
may assign this Agreement for collateral purposes only to Purchaser’s lender.  


 


17.9                        Interpretation.  This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that both Seller and
Purchaser have contributed substantially and materially to the preparation of
this Agreement.


 


17.10                 Entire Agreement.  This
Agreement and the Exhibits attached hereto contain the final and entire
agreement between the parties hereto with respect to the sale and purchase of
the Property and are intended to be an integration of all prior negotiations
and understandings.  Purchaser, Seller
and their agents shall not be bound by any terms, conditions, statements, warranties
or representations, oral or written, not contained herein.  No change or modifications to this Agreement
shall be valid unless the same is in writing and signed by the parties
hereto.  Each party reserves the right to
waive any of the terms or conditions of this Agreement which are for their
respective benefit and to consummate the transaction contemplated by this
Agreement in accordance with the terms and conditions of this Agreement which
have not been so waived.  Any such waiver
must be in writing signed by the party for whose benefit the provision is being
waived.


 


17.11                 Severability.  If
any one or more of the provisions hereof shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


17.12                 Survival. 
Except for obligations that survive the Closing pursuant to the
provisions of Sections (and related subparagraphs) 4.2, 5.1, 5.2,
5.3, 6.2, 7.4, 7.5, 7.6, 8.3, 8.4,
9.4, 9.9, 9.11, 10.2, 14.1, 15.1, 15.2,
17.15, 17.16,  17.20 and 17.23 (collectively, the “Surviving Termination Obligations”), the
provisions of this Agreement and the representations and warranties herein
shall not survive after the conveyance of title and payment of the Purchase
Price but be merged therein.


 


17.13                 Exhibits and Schedules.  Exhibits A through S and Schedules 7.1.4 through 9.12
attached hereto are incorporated herein by reference.


 


17.14                 Time.  Time
is of the essence in the performance of each of the parties’ respective
obligations contained herein.


 


27





















 


17.15                 Limitation of Liability.  No
present or future partner, member, manager, director, officer, shareholder,
employee, advisor, affiliate or agent of or in Purchaser or any affiliate of
Purchaser shall have any personal liability, directly or indirectly, under or
in connection with this Agreement or any agreement made or entered into under
or in connection with the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Seller and its successors and assigns and, without limitation,
all other persons and entities, shall look solely to Purchaser’s assets for the
payment of any claim or for any performance, and Seller hereby waives any and
all such personal liability.  For
purposes of this Section 17.15, no negative capital account or any
contribution or payment obligation of any partner or member in Purchaser shall
constitute an asset of Purchaser.  The
limitations of liability contained in this Paragraph are in addition to, and
not in limitation of, any limitation on liability applicable to Purchaser
provided elsewhere in this Agreement or by law or by any other contract,
agreement or instrument.  All documents
to be executed by Purchaser shall also contain the foregoing exculpation.  


 


No
present or future partner, member, director, officer, shareholder, employee,
advisor, affiliate or agent of or in Seller or any affiliate of Seller shall
have any personal liability, directly or indirectly, under or in connection
with this Agreement or any agreement made or entered into under or in
connection with the provisions of this Agreement, or any amendment or
amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Purchaser and its successors and assigns and, without
limitation, all other persons and entities, shall look solely to Seller’s
assets for the payment of any claim or for any performance, and Purchaser
hereby waives any and all such personal liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Seller shall constitute an asset of Seller.  The limitations of liability contained in
this Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Seller provided elsewhere in this Agreement or by law
or by any other contract, agreement or instrument.  All documents to be executed by Seller shall
also contain the foregoing exculpation. 
The provisions of this Section 17.15 shall survive Closing
and/or any termination of this Agreement.


 


17.16                 Prevailing Party. 
Should either party employ an attorney to enforce any of the provisions
hereof, (whether before or after Closing, and including any claims or actions
involving amounts held in escrow), the non-prevailing party in any final
judgment agrees to pay the other party’s reasonable expenses, including
reasonable attorneys’ fees and expenses in or out of litigation and, if in
litigation, trial, appellate, bankruptcy or other proceedings, expended or
incurred in connection therewith, as determined by a court of competent
jurisdiction.  The provisions of this Section 17.16
shall survive Closing and/or any termination of this Agreement.


 


17.17                 No Recording. 
Neither this Agreement nor any memorandum or short form hereof shall be
recorded or filed in any public land or other public records of any
jurisdiction, by either party and any attempt to do so may be treated by the
other party as a breach of this Agreement.


 


17.18                 Waiver of Trial by Jury.  The
respective parties hereto shall and hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Agreement, or for the enforcement of any remedy under any
statute, emergency or otherwise.


 


17.19                 Cooperation between
Seller and Purchaser.  Seller agrees to reasonably cooperate with
Purchaser in connection with the preparation and delivery of any Subordination,
Non-Disturbance and Attornment Agreements required by Purchaser’s lenders in
connection with the closing of the transaction described herein.


 


17.20                 Further Assurances.  Each
party shall, from time to time, at the request of the other party, and without
further consideration, execute and deliver such further instruments and


 


28





















 


take
such further action as may be required or reasonably requested by either party
to establish, maintain or protect the respective rights of the parties to carry
out and effect the intentions and purposes of this Agreement.


 


17.21                 Return of Deposit.  Notwithstanding
anything to the contrary contained in this Agreement, whenever this Agreement
provides that the Deposit shall be delivered or returned to Purchaser, the
parties acknowledge and agree that said Deposit or a portion thereof shall
remain with the Escrow Agent in the event that Purchaser has failed to comply
with the provisions of this Agreement. 
Notwithstanding anything to the contrary contained in this Section 17.21,
Seller agrees that if the provisions of this Agreement provide for the return
of the Deposit to Purchaser that Seller will not unreasonably withhold its
consent to the return of the Deposit to Purchaser.  Notwithstanding anything to the contrary
contained in this Section 17.21, Purchaser agrees that if the
provisions of this Agreement provide for the return of the Seller Earnest Money
to Seller that Purchaser will not unreasonably withhold its consent to the
return of the Seller Earnest Money to Seller.


 


17.22                 Other Agreements.  Seller
and Purchaser have a business relationship with each other and in connection
therewith Seller and Purchaser have entered into various other agreements as of
the date hereof (“Other Agreements”).  A default by either party under any Other Agreement
not cured within any applicable cure period shall be deemed to be a default by
such party under this Agreement. 


 


17.23                 Seller Environmental
Obligations.  Notwithstanding anything to the contrary
contained in this Agreement, based on conditions existing as of the Effective
Date, Seller agrees to conduct and complete, for Purchaser’s benefit and solely
at Seller’s expense except as provided below, all investigation and remediation
measures necessary for Seller to obtain (a) with respect to the Properties
identified on Exhibit S,
a No Further Remediation (“NFR”)
letter from the Illinois Environmental Protection Agency, and (b) with
respect to the Properties identified on Exhibit S,
a Certificate of Completion in the Voluntary Remediation Program administered
by the Indiana Department of Environmental Management and a Covenant Not to Sue
from the office of the Governor of Indiana (the NFR Letter, the Certificates of
Completion, the Covenants Not to Sue, and all other necessary closure
certification records shall be referred to collectively herein as the “Completion Documents”). 


 


17.23.1            Schedule.  Seller
shall act with diligence in conducting investigation and remediation measures,
in pursuing issuance of the Completion Documents, and in complying with any
applicable requirements of the respective state voluntary cleanup program,
including without limitation the following, to the extent required by the
respective state voluntary cleanup program: causing the Completion Documents to
be recorded in the property records and filed with governmental agencies, and
notifying third parties such as off-site landowners. Seller shall make
reasonable efforts to cause the Completion Documents to be issued by no later
than the LLC Expiration Date (as defined in that certain Limited Liability
Company Agreement of even date herewith by and between CenterPoint Properties
Trust and JF US Industrial Property Trust). 
If Seller fails to cause the Completion Documents to be issued by no later
than the LLC Expiration Date for any individual Property (“NFR Substitution Event”), Purchaser may, at
its option, by written notice to Seller within thirty (30) days after the
occurrence of an NFR Substitution Event, request that Seller offer a Substitute
Property in accordance with Section 9.9.2 above (“NFR Substitution Notice”); provided,
however, in the event that Purchaser elects to have Seller provide a Substitute
Property, Seller, if it chooses to do so, in its sole and absolute discretion,
shall have a period of thirty (30) days from the date Seller is given the NFR
Substitution Notice to obtain the Completion Documents, and further, provided,
however, if the Completion Documents are not capable of being obtained within
said thirty (30) day period through no fault of Seller and Seller has commenced
to obtain the Completion Documents within such thirty (30) day


 


29





















 


period, then Seller shall have such reasonable
period of time from and after the date of the NFR Completion Notice to obtain the
Completion Documents; provided, further, that such additional period shall not
extend beyond the date of the Closing with respect to the Substitute
Property.  In the event Seller cures the
condition giving rise to the NFR Substitution Event prior to the time that a
Closing with respect to the Substitute Property occurs, the Scheduled Closing
Date for the Removed Property shall be extended to the fifteenth (15th)
day after the condition giving rise to the NFR Substitution Event has been
cured.


 


In
the event Seller does not obtain the Completion Documents within the time
periods referenced above, Seller shall repurchase the Property in question at
such time as Purchaser acquires a Substitute Property.  Seller shall repurchase the Removed Property
for the same price paid by Purchaser to purchase such Property from Seller and
Seller shall repurchase such Property on the same terms and conditions of this
Agreement applicable to Purchaser’s acquisition of a Substitute Property.
Seller shall be obligated to repurchase the Property in question only if
Purchaser agrees to purchase the Substitute Property, and Purchaser and Seller
shall agree to close on both transactions on the same day at the same
time.  Seller and Purchaser agree to
follow the same terms, conditions and procedures for purposes of this exchange
as are generally consistent with Sections 9.9.5, 9.9.6, 9.9.7 and 9.9.8
of this Agreement.


 


17.23.2            Cooperation.  From
and after the Effective Date of this Agreement, Seller and Purchaser shall
cooperate with each other to facilitate the successful completion of the
voluntary remediation process for each Property.  Seller and Purchaser shall consult in good
faith about all draft workplans and proposed submissions to regulatory
authorities, and Seller shall make changes reasonably requested by
Purchaser.  Seller shall provide at least
two (2) Business Days advance written notice of entry onto a Property and
identify the general nature of the work to be performed and the portion(s) of
the Property on which the work will be performed.  To the extent practical, Seller shall provide
advance notice to Purchaser of, and shall allow Purchaser to participate in,
meetings and telephone conferences with regulatory authorities.  Seller shall provide Purchaser with a copy of
all test results, final submissions to regulatory agencies and final documents
received from such agencies within a reasonable period of time after they are
received or created by Seller.


 


17.23.3            Scope
of Testing Activities.  Pursuant to this Section 17.23,
Seller shall conduct initial testing sufficient to reasonably identify all
potential contaminants of concern materially related to the
industrial/commercial use at the Properties (reasonably taking into
consideration potentially significant environmental conditions indicated in
Phase 1 reports or in prior testing). 
Subsequent testing shall be conducted by Seller as reasonably necessary
to satisfy regulatory authorities for issuance of the Completion Documents.


 


17.23.4            Institutional
Controls.  The Completion Documents may be qualified or
conditioned by institutional controls (e.g., deed restrictions, engineered
barriers) to the extent such controls are consistent with the Properties’
industrial/commercial use as of the Effective Date and are necessary for
issuance of the Completion Documents; provided, however, Seller shall have sole
discretion to select the remedial approach for obtaining the Completion
Documents.  Any such institutional
controls are subject to Purchaser’s review and approval, which approval shall
not be unreasonably withheld.


 


17.23.5            Execution
of Documents.  Solely relating to and limited by Seller’s
obligations as set forth in Article 17 hereto, Seller shall arrange
for any offsite disposal of hazardous substances, required in order to obtain
the Completion Documents, and shall execute all manifests and similar
documents, reflecting itself or its designee as the generator of such hazardous
substances, and in no event shall Seller name or identify Purchaser as


 


30





















 


the generator of such hazardous substances; provided, however, the
Seller has no duty or obligation whatsoever for any hazardous substances
transported to, released upon or generated by Purchaser, its agents,
representatives and assigns, at, on, beneath or adjacent to the Properties.
Purchaser shall execute other documents reasonably requested by Seller that are
necessary and consistent with this Section 17.23.


 


17.23.6            Access. Purchaser shall provide necessary access to
Seller to carry out the provisions of this section.  Seller shall use all reasonable efforts to
avoid any disruption of tenant activities, and shall promptly repair at Seller’s
sole cost and expense any damage caused by its investigation or remediation
activities.


 


17.23.7            Indemnification. Until the earlier of the date the Seller
procures and provides to Purchaser the requisite Completion Documents as set
forth herein for each Property, or an appropriate substitute is exchanged
pursuant to Section 17.23.1 hereof, Seller shall protect, defend,
indemnify and hold Purchaser harmless from and against any claim or loss
arising out of (a) any investigation, remediation or disposal activities
conducted by Seller or its agents pursuant to this Section 17.23,
and (b) any failure by Seller to obtain the Completion Documents as
provided in this section.


 


17.23.8            Voidance. In the event any of the Completion
Documents are voided as a result of any fraudulent misrepresentation or other
fraudulent act or omission of Seller, Seller shall be responsible for
implementing at its expense any measures necessary to have the Completion
Documents reinstated.


 


17.23.9            Assignment.  To
the extent allowed by contract and law, Seller shall use reasonable efforts to
assign to Purchaser its environmental rights under current vendor and tenant
agreements, including all indemnities, escrows, representations, and warranties
(“Seller’s Environmental Rights”).  Where Seller is unable to assign Seller’s
Environmental Rights, Seller will use commercially reasonable efforts to
enforce such rights on behalf of Purchaser (at Purchaser’s expense).  


 


17.23.10      Survival.  The
terms of this Section 17.23 shall expressly survive, without
limitation, the Closing.


 


17.24                 Currency. All payments and amounts referenced or
described in this Agreement shall be deemed to require payments in and refer to
amounts in the currency of the United States of America.


 


17.25                 Facsimile Signatures. The parties hereto agree that the use of
facsimile signatures for the execution of this Agreement shall be legal and
binding and shall have the same force and effect as if originally signed.


 


[remainder of page intentionally left blank]


 


31





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the
date or dates set forth below.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT JAMES FIELDING, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
     /s/
  Adrian Harrington

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Adrian
  Harrington

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
     /s/
  Adrienne Parkinson

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Adrienne
  Parkinson

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  
	
   

  	
  Date:   April 6,
  2005

  
	
   

  	
   

  
	
   

  	
  Tax
  I.D. # 98-0450460

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT PROPERTIES TRUST, a Maryland

  real estate investment trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
     /s/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
     /s/
  James N. Clewlow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Investment Officer

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT VENTURE, LLC, a Delaware

  limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
     /s/
  Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By
  

  	
     /s/
  James N. Clewlow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  
	
   

  	
  Date:

  	
  April 6,
  2005

  
																			



 


32





















 


	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Properties

  
	
  Exhibit B-1
  - B-11

  	
   

  	
  Legal
  Descriptions

  
	
  Exhibit C-1
  - C-11

  	
   

  	
  Schedule of
  Leases

  
	
  Exhibit D
  -

  	
   

  	
  Intentionally
  Deleted

  
	
  Exhibit E
  -

  	
   

  	
  Escrow
  Agreement

  
	
  Exhibit F
  -

  	
   

  	
  Documents

  
	
  Exhibit G-1
  - G-11

  	
   

  	
  Permitted
  Exceptions

  
	
  Exhibit H-

  	
   

  	
  Master
  Lease

  
	
  Exhibit I
  -

  	
   

  	
  Intentionally
  Deleted

  
	
  Exhibit J
  -

  	
   

  	
  Intentionally
  Deleted

  
	
  Exhibit K
  -

  	
   

  	
  Tenant
  Estoppel Certificate

  
	
  Exhibit L
  -

  	
   

  	
  Seller’s
  Estoppel Certificate

  
	
  Exhibit M
  -

  	
   

  	
  General
  Assignment

  
	
  Exhibit N
  -

  	
   

  	
  Deed

  
	
  Exhibit O
  -

  	
   

  	
  Notice
  of Sale to Tenant

  
	
  Exhibit P
  -

  	
   

  	
  Non-Foreign
  Entity Certification

  
	
  Exhibit Q
  -

  	
   

  	
  Survey
  Certification

  
	
  Exhibit R
  -

  	
   

  	
  Planned
  Expenditures

  
	
  Exhibit S
  -

  	
   

  	
  NFR
  Properties

  



 


	
  Schedules

  	
   

  	
   

  
	
  7.1.4
  -

  	
   

  	
  No
  Violations of Laws

  
	
  7.1.5

  	
   

  	
  Eminent
  Domain

  
	
  7.1.6

  	
   

  	
  Hazardous
  Material

  
	
  7.1.7

  	
   

  	
  Litigation

  
	
  7.1.8

  	
   

  	
  Leases

  
	
  7.1.9

  	
   

  	
  Contracts

  
	
  7.1.10

  	
   

  	
  Defaults

  
	
  9.8

  	
   

  	
  Purchase
  Price Schedule

  
	
  9.10

  	
   

  	
  Contracts

  
	
  9.12

  	
   

  	
  REA
  Estoppels

  
					



 


33





















TRANCHE 3/1031


 


SALE
AGREEMENT


 


THIS SALE AGREEMENT (“Agreement”) is made and
entered into as of the 6th day of April, 2005, by and between CENTERPOINT PROPERTIES TRUST, a Maryland
real estate investment trust (“SELLER”),
and CENTERPOINT JAMES FIELDING, LLC,
a Delaware limited liability company (“PURCHASER”).


 


In
consideration of the mutual promises, covenants and agreements hereinafter set
forth and of other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser agree as follows:


 


ARTICLE I


Sale of Properties


 


1.1                               Sale of Properties. 
Seller agrees to sell, assign and convey to Purchaser, or cause to be
sold, assigned and conveyed to Purchaser, in the event that one or more of the
Properties is currently owned by an entity affiliated with Seller (hereinafter
collectively referred to as “Seller
Affiliates”), and Purchaser agrees to purchase from Seller, the
following:


 


1.1.1                        Land and Improvements.  That
certain real property commonly described on
Exhibit A, being more particularly described on Exhibits B-1 through B-3  respectively, attached hereto (collectively, the “Land”), together with any improvements
located thereon (collectively, the “Improvements”);



 


1.1.2                        Leases.  All of Seller’s or Seller
Affiliates’, as the case may be, right, title and interest, if any, in and to
all leases, subleases, licenses and other occupancy agreements, together with
any and all amendments, modifications or supplements thereto (hereafter
referred to collectively as the “Leases”),
being more particularly described on Exhibits
C-1 through C-3
respectively, attached hereto, and all prepaid rent attributable to the period
following Closing, as herein defined, and subject to Section 4.2.4
below, the security deposits under such Leases (collectively, the “Leasehold Property”);


 


1.1.3                        Real Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all easements and appurtenances to Seller’s or
Seller Affiliates’, as the case may be, interest in the Land and the
Improvements, including, without limitation, all mineral and water rights and
all easements, licenses, covenants and other rights-of-way or other
appurtenances used in connection with the beneficial use or enjoyment of the
Land and the Improvements (the Land, the Improvements and all such easements
and appurtenances are sometimes collectively referred to as the “Real Property”);


 


1.1.4                        Personal Property.  All
personal property (including equipment), if any, owned by Seller or Seller
Affiliates, as the case may be, and located on the Real Property as of the date
hereof, and all fixtures, if any, located on the Real Property as of the date
hereof or as of the Closing Date (collectively, the “Personal Property”); and


 


1.1.5                        Intangible Property.  All
of Seller’s or Seller Affiliates’, as the case may be, right, title and
interest, if any, in and to all service, equipment, supply and maintenance
contracts (collectively, the “Contracts”),
guarantees, licenses, side track agreements (and other agreements including
leasehold agreements attendant to the Property), approvals, utility contracts,
plans and specifications, governmental approvals and development rights,
certificates, permits and warranties (and including all escrows, indemnities,
representations, warranties and guarantees Seller received from any and all
vendors from when Seller


 





















 


acquired
the Properties), including, without limitation environmental insurance policies
(to the extent same can be assigned with a reservation of rights for the
benefit of Seller as well) and other environmental escrows and indemnities (to
the extent same can be assigned with a reservation of rights for the benefit of
Seller as well), if any, relating to the Real Property or the Personal
Property, to the extent assignable (collectively, the “Intangible Property”).  (For each individual parcel, the Real
Property, the Leasehold Property, the Personal Property and the Intangible
Property are sometimes collectively hereinafter referred to as the “Property”, and for all parcels, taken
together, the Real Property, the Leasehold Property, the Personal Property and
the Intangible Property are collectively referred to as the “Properties”).  It is hereby acknowledged by the parties that
Seller shall not convey to Purchaser claims relating to any real property tax
refunds or rebates for periods accruing prior to the Closing, to the extent
such taxes have been paid by Seller prior to the Closing, existing insurance
claims and any existing claims against previous tenants of the Properties,
which claims are hereby reserved by Seller, subject to the terms and provisions
of Section 4.2.4 below.


 


ARTICLE II


Purchase
Price


 


2.1                               Purchase Price. 
Subject to the provisions of Section 9.9 below, the purchase
price for the Properties shall be Twenty-Two Million Three Hundred Thousand and
No/100 Dollars ($22,300,000.00) (“Purchase
Price”) in currency of the United States of America. The Purchase
Price, as adjusted by all prorations as provided for herein, shall be paid by
Purchaser at Closing as directed by the Seller by wire transfer of immediately
available federal funds of The United States of America.


 


ARTICLE III


Deposit


 


3.1                               Purchaser Deposit. 
Purchaser will deposit a Fifteen Million and No/100 Dollars
($15,000,000.00) Letter of Credit (“Purchaser
Letter of Credit”) on the date of the first Closing to occur under
any of the Sale Agreements (defined below) with Chicago Title Insurance Company
(“Escrow Agent” or “Title Company”).  The Purchaser Letter of Credit shall be held
by Escrow Agent pursuant to an Escrow Agreement in the form attached hereto as Exhibit E modified to conform to
the terms of this Agreement and as required by Title Company when Title Company
holds a letter of credit (“Escrow Agreement”).  The Purchaser Letter of Credit shall (i) be
unconditional and irrevocable, (ii) be in a form reasonably acceptable to
Seller, (iii) be issued by a financial institution doing business in the
United States of America, with offices in Chicago, Illinois and (iv) expire
no earlier than March 15, 2006.  The
cost of issuing and maintaining the Purchaser Letter of Credit shall be paid by
Seller and Seller’s failure to do so shall not be a breach or a default by
Purchaser under this Agreement or any Other Agreements (as defined in Section 17.22
below) nor shall Seller have any right to direct Escrow Agent to draw upon the
Purchaser Letter of Credit as a result of Seller’s failure as aforesaid.  The Purchaser Letter of Credit and the
proceeds of the Purchaser Letter of Credit (“Purchaser
Proceeds”) have been provided to assure performance and observance
by Purchaser of all of its closing obligations under this Agreement and five (5) other
sale agreements entered into by and between Seller and Purchaser and dated of
even date herewith relating to the sale of properties by Seller to Purchaser
(this Agreement and the other five (5) Sale Agreements are herein
collectively referred to as the “Sale
Agreements”).   Accordingly,
in the event of the occurrence of a default under Section 13.2 of
this Agreement or any of the other Sale Agreements or in the event that the
Purchaser Letter of Credit will expire within thirty (30) days or less, Seller
shall have the right to direct Escrow Agent to draw upon the Purchaser Letter
of Credit.  All Purchaser Proceeds
received by Escrow Agent shall be retained by Escrow Agent and held or
disbursed pursuant to the terms of the Escrow Agreement and this
Agreement.  At the time of the final
Closing of all Properties, including, but not limited to, Substitute Properties
(defined below) under all of the Sale Agreements, the Purchaser Letter of
Credit shall be delivered to Purchaser. 
In


 


2










 













the
event any Closing under any of the Sale Agreements does not occur through no
fault of Purchaser, Purchaser Letter of Credit shall be returned to Purchaser.


 


3.2          Seller
Deposit.  Seller will deposit a Three Million and
No/100 Dollars ($3,000,000.00) Letter of Credit (“Seller Letter of Credit”) on the date of the first Closing to
occur under the Sale Agreements with Escrow Agent.  The Seller Letter of Credit shall be held by
Escrow Agent pursuant to an Escrow Agreement in the form attached hereto as Exhibit E modified to conform to
the terms of this Agreement and as required by Title Company when Title Company
holds a letter of credit.  The Seller
Letter of Credit shall (i) be unconditional and irrevocable, (ii) be
in a form reasonably acceptable to Purchaser, (iii) be issued by a
financial institution doing business in the United States of America, with
offices in Chicago, Illinois and (iv) expire no earlier than March 15,
2006.  The cost of issuing and
maintaining the Seller Letter of Credit shall be paid by Seller.  The Seller Letter of Credit and the proceeds
of the Seller Letter of Credit have been provided to assure performance and
observance by Seller of all of its closing obligations under the Sale
Agreements.  Accordingly, in the event of
the occurrence of a default under Section 13.1 of this Agreement or
any of the other Sale Agreements or in the event that the Seller Letter of
Credit will expire within thirty (30) days or less, Purchaser shall have the
right to direct Escrow Agent to draw upon the Seller Letter of Credit.  All Proceeds received by Escrow Agent shall
be retained by Escrow Agent and held or disbursed pursuant to the terms of the
Escrow Agreement and this Agreement.  At
the time of the final Closing of all Properties, including, but not limited to,
Substitute Properties under all of the Sale Agreements, the Seller Letter of
Credit shall be delivered to Seller.  In
the event any Closing under any of the Sale Agreements does not occur through
no fault of Seller, Seller Letter of Credit shall be returned to Seller.


 


ARTICLE IV


Closing, Prorations and Closing Costs


 


4.1          Closing.  The
closing of the purchase and sale of the Properties shall occur on or before 10:00 a.m.
Central time on October 28, 2005 (the “Scheduled
Closing Date”) and shall be held at the offices of Escrow Agent, or
at such other place agreed to by Seller and Purchaser (said closing is
hereinafter referred to as the “Closing”).
 Notwithstanding anything to the contrary
contained in this Section 4.1, Seller or Purchaser, as the case may
be, shall have the right to extend the closing date for one or more of the
Properties in accordance with the provisions of Sections 9.9, 10.1 and 12.1
hereof.  “Closing” shall be deemed
to have occurred when the Title Company has been instructed by both parties to
pay the applicable portion of the Purchase Price to Seller and to record the
applicable Deeds, as hereunder defined. 
The date of the Closing is sometimes referred to in this Agreement as a “Closing Date.”  The transactions contemplated by this
Agreement shall be closed through an escrow with Escrow Agent on the Closing
Date, in accordance with the general provisions of the usual form “New York
Style” Deed and Money Escrow Agreement used by Escrow Agent, with such
provisions required to conform to the terms of this Agreement.


 


4.2          Prorations.  All
matters involving prorations or adjustments to be made in connection with
Closing and not specifically provided for in some other provision of this
Agreement shall be adjusted in accordance with this Section 4.2.  Except as otherwise set forth herein, all
items to be prorated pursuant to this Section 4.2 shall be prorated
as of midnight of the day immediately preceding a Closing Date, with Purchaser
to be treated as the owner of the applicable Properties, for purposes of
prorations of income and expenses, on and after a Closing Date.


 


4.2.1        Taxes.  Subject to the provisions of this Section 4.2.1,
real estate and personal property taxes, if any, accrued, but not yet due and
owing as of the Closing and installments of special assessments, if any, due
and owing during the installment year in which the Closing occurs (hereinafter
collectively referred to as “Taxes”)
shall be prorated as of the Closing Date, and, notwithstanding any other
provision contained in this Agreement,


 


3





















 


shall not be reprorated.  Seller
shall pay all Taxes due and payable as of the Closing Date.  If the Taxes have not been set for the year
in which Closing occurs or any prior year, then the proration of such Taxes
shall be based upon the most recent ascertainable tax bills.  Notwithstanding any other provision of this
Agreement, (a) there shall be no proration of Taxes with respect to
tenants whose leases obligate said tenants to pay Taxes when the tax bills are
issued, and (b) the amount otherwise due Purchaser under this Section 4.2.1
shall be reduced by an amount equal to all tenant deposits held by Seller for
Taxes at the time of Closing (collectively, the “Tenant Tax Deposits”) and the Tenant Tax Deposits shall be
turned over to Purchaser at Closing. 
Tenant Tax Deposits received by Seller following Closing for any period
of time after Closing shall be paid to Purchaser.  The amount due under this Section 4.2.1
shall not be credited to Purchaser at Closing but shall be deposited into the
operating account for the Properties and held by Seller as property manager
pursuant to the Management Agreement described in Section 9.6
below.


 


Seller
shall contest real estate taxes and/or assessment levels, as the case may be, prior
to Closing if Seller deems reasonable in its judgment as a commercially prudent
owner of real estate.  All costs incurred
in connection with such contest shall be paid by the parties in proportion to
benefit received by the parties in connection with any reduction of such real
estate taxes or assessments as the case may be.


 


4.2.2        Insurance.  Seller shall assign its existing insurance
policies to Purchaser upon Closing.  Purchaser
shall be named as a named insured thereon and all premiums with respect thereto
shall be prorated between the parties as of Closing.


 


4.2.3        Utilities.  Purchaser and Seller hereby acknowledge and
agree that the amounts of all electric, sewer, water and other utility bills,
trash removal bills, janitorial and maintenance service bills and all other
operating expenses relating to the applicable Properties not paid by tenants
under Leases and allocable to the period prior to the Closing Date shall be
determined and paid by Seller before Closing, if possible, or shall be paid
thereafter by Seller or adjusted between Purchaser and Seller immediately after
the same have been determined.  Seller
shall attempt to have all utility meters, or utility services not paid by
tenants under Leases, read as of the Closing Date.  Purchaser shall cause all utility services to
be placed in Purchaser’s name as of the Closing Date.  If permitted by the applicable utilities, all
utility deposits in Seller’s name shall be assigned to Purchaser as of the
Closing Date, and Seller shall receive a credit therefor at Closing.


 


4.2.4        Rents.  Rent [(including estimated pass-through
payments for common area/operating expenses, but not for Taxes), collectively “Rents”] for the month in which Closing
occurs shall be prorated for said month based upon the Rents estimated to have
been collected by Seller as of the Closing Date.  Rents for said month shall be reprorated
within seven (7) Business Days after the end of said month based on Rents actually
received.  During the period after
Closing, (i) Purchaser shall deliver to Seller any and all Rents accrued
but uncollected as of the Closing Date, to the extent subsequently collected by
Purchaser; provided, however, Purchaser shall apply Rents received after
Closing first to payment of current Rents then due, and thereafter to
delinquent Rents (other than “true up” payments received from tenants
attributable to a year-end reconciliation of actual and budgeted pass-through
payments, which shall be allocated among Seller and Purchaser pro rata in
accordance with their respective period of ownership as set forth in Section 4.2.5
below), and (ii) Seller shall deliver to Purchaser any and all Rents
collected by Seller for any period after Closing.


 


Subject
to the provisions of the following sentence, Seller shall be entitled, after
the Closing, to take any action against a tenant which would not result in a
termination of any Lease or a tenant’s right of occupancy thereunder (“Seller Action”).  Notwithstanding the


 


4





















 


foregoing, Seller shall not
take any Seller Action unless Seller shall have first provided Purchaser with
not less than five (5) Business Days’ notice of its intent to take action
against a tenant, together with a description of the subject matter of the
proposed Seller Action.  Purchaser agrees
that it shall use commercially reasonable efforts to collect all pass-through
rents payable by tenants and any delinquent Rents (provided, however, that
Purchaser shall have no obligation to institute legal proceedings, including an
action for unlawful detainer, against a tenant owing delinquent Rents).


 


The
amount of any unapplied security deposits (plus accrued interest thereon if
payable to a tenant under its lease) under the Leases held by Seller in cash at
the time of Closing shall be credited against the Purchase Price; accordingly,
Seller shall retain the actual cash deposits.  Notwithstanding anything in this Section 4.2.4
to the contrary, if any security deposits are in the form of a letter of
credit, such security deposits shall not be prorated, but shall be turned over
by Seller to Purchaser at the Closing by the delivery thereof by Seller to
Purchaser in accordance with this provision. 
In addition, Seller shall use reasonable efforts to deliver appropriate
duly executed instruments of transfer or assignment of such letters of credit
which are required to establish Purchaser as the new beneficiary thereunder and
any consents required by the issuing bank for the transfer of such letters of
credit.  If required, Seller shall use
reasonable efforts to arrange for the issuance by the issuing bank of any
authorization to the transfer, together with the delivery of such letters of
credit (and any letter of transfer that is required by such letter of
credit).  Any fees imposed by such
issuing banks in connection with such transfers which are not the obligation of
the applicable tenant to pay shall be paid by Seller.  In the event that any letter of credit is not
transferable as of Closing, Seller shall cooperate with Purchaser in all
reasonable respects following the Closing so as to transfer the same to
Purchaser or to obtain a replacement letter of credit with respect thereto in
favor of Purchaser, in either case at no cost or expense to Purchaser.  Until any such letter of credit shall be
transferred or replaced, Seller shall present such letter of credit for payment
and deliver the proceeds received by Seller, if any, to Purchaser within a
reasonable period of time following receipt of Purchaser’s written
request.  Notwithstanding the foregoing,
Seller shall not be in default under this Agreement in the event that any such
letter of credit is not assigned to Purchaser for any reason other than the
failure of Seller to sign the documents required of it to transfer the letter
of credit or the failure of Seller to pay any fees imposed by an issuing bank
in connection with such transfers.  In
such event, Purchaser may terminate this Agreement with respect to the
applicable Property upon written notice to Seller on or before ten (10) days
after Purchaser becomes aware that a letter of credit will not be assigned on the
Closing Date; provided, however, Purchaser’s right to terminate shall not be
effective in the event that Seller, in its sole and absolute discretion, gives
Purchaser a credit against the Purchase Price in the amount of the security
deposit or provides a substitute letter of credit in that amount.


 


4.2.5        Calculations.  For purposes of calculating prorations,
Purchaser shall be deemed to be in title to that portion of the Properties
being acquired on the Closing Date, and, therefore entitled to the income
therefrom and responsible for the expenses thereof for the entire day upon
which the Closing occurs.  All such
prorations shall be made on the basis of the actual number of days of the month
which shall have elapsed as of the day of the Closing and based upon the actual
number of days in the month and year in question.  Except as set forth in this Section 4.2,
all items of income and expense which accrue for the period prior to the
Closing will be for the account of Seller and all items of income and expense which
accrue for the period on and after the Closing will be for the account of
Purchaser.  Purchaser and Seller shall
each submit or cause to be submitted to the other (i) on or about the 90th
day after Closing, and (ii) on or about the one year anniversary of the
Closing, a statement which sets forth necessary adjustments to items subject to
proration pursuant to the provisions of this Section 4.2, if any;
provided, however, no adjustment shall be made with respect to Taxes.  Within fifteen (15) days following delivery
of such


 


5





















 


statements, the parties
shall make such adjustments among themselves as shall be necessary to carry out
the prorations as contemplated in this Section 4.2.  In the event any prorations made under this Section 4.2
shall prove to be incorrect for any reason, then any party shall be entitled to
an adjustment to correct the same.


 


4.2.6        Leasing Commissions and Leasing Costs.  Seller shall be responsible for all leasing
commissions, tenant improvement costs and other usual and customary leasing
costs, due and owing with respect to the current term of all Leases executed
prior to the Effective Date, whether such leasing commissions, tenant
improvement costs and other usual and customary leasing costs are due to be
paid prior to or after the Closing Date.


 


4.2.7        Prepaid Items.  Any prepaid items, including, without limitation,
fees for licenses which are transferred to the Purchaser at the Closing and
annual permit and inspection fees shall be apportioned between the Seller and
the Purchaser at the Closing.


 


4.2.8        Allocation of Closing Costs and
Expenses.  Seller shall bear the cost
of the title policy to be issued and extended coverage charges, the cost of the
Surveys (as hereinafter defined), the cost to record any instruments necessary
to clear Seller’s title, one-half the cost of the Closing Escrow and one-half
the cost of the “New York Style” closing fee. Purchaser shall bear the cost of
any recording fees with respect to the Deeds, all costs incurred in connection
with obtaining Purchaser’s financing for this transaction, if any, the cost of
all title endorsements (other than with respect to extended coverage), if any,
one-half the cost of the Closing Escrow and one-half the cost of the “New York
Style” closing fee.  The cost of state
and county transfer taxes shall be paid by the Seller, and the cost of local
transfer taxes shall be paid by the party designated in the applicable local
ordinance or local custom.  If no such
designation or custom exists, and a local transfer tax must be paid, the cost
thereof shall be shared equally by Seller and Purchaser.


 


4.2.9        Operating Expenses.  All operating expenses (including all charges
under Contracts and agreements assumed by Purchaser under the General
Assignment, as hereinafter defined and fees to any owner’s association) shall
be prorated as of the Closing Date.  As
to each service provider, operating expenses payable or paid to such service
provider in respect to the billing period of such service provider in which the
Closing Date occurs (the “Current Billing
Period”), shall be prorated on a per diem basis based upon the
number of days in the Current Billing Period prior to the Closing Date (which
shall be allocated to Seller) and the number of days in the Current Billing
Period on and after the Closing Date (which shall be allocated to Purchaser),
and assuming that all charges are incurred uniformly during the Current Billing
Period.  If actual bills for the Current
Billing Period are unavailable as of the Closing Date, then such proration
shall be made on an estimated basis based upon the most recently issued bills,
subject to readjustment within thirty (30) days of receipt of actual
bills.  Notwithstanding the foregoing, no
prorations or adjustments shall be made for portions of operating costs of the
Properties to the extent a tenant under the Leases is required to pay same
pursuant to the terms of any of the Leases. Purchaser shall be credited with an
amount equal to all deposits made by tenants and held by Seller at Closing
towards the tenant’s obligation to pay any such operating expenses.


 


ARTICLE V


Inspection


 


5.1          Seller
Deliveries.  Purchaser acknowledges that Seller has
heretofore delivered or caused to be delivered or made available to Purchaser
at the Properties all of the items relating to the Properties specified on Exhibit F, attached hereto, to the
extent that such items were in Seller’s possession (“Documents”); provided, however, that except for the
representations and warranties made in Article VII hereof, Seller
makes no representations or warranties of any kind regarding the


 


6





















 


accuracy,
thoroughness or completeness of or conclusions drawn in the information
contained in such documents, if any, relating to the Properties.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Purchaser acknowledges that any and all of the Documents that are not
otherwise known by or available to the public are proprietary and confidential
in nature and were delivered to Purchaser solely to assist Purchaser in
determining the feasibility of purchasing the Properties.  Purchaser agrees not to disclose such
non-public documents, or any of the provisions, terms or conditions thereof, to
any party other than a Purchaser Party/Representative, as hereinafter
defined.  Purchaser shall return all of
the Documents, at such time as this Agreement is terminated for any
reason.  This Section 5.1
shall survive Closing and/or termination of this Agreement without limitation.


 


5.2          Independent
Examination/Right to Access.  Purchaser hereby acknowledges
that it has been given, prior to the execution hereof, a full, complete and
adequate opportunity to make such legal, factual and other determinations,
analyses, inquiries and investigations as Purchaser deems necessary or
appropriate in connection with the acquisition of the Properties.  Purchaser further acknowledges that Purchaser
is relying upon its own independent examination of the Properties and all
matters relating thereto and not upon any statements of Seller (excluding the
limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser.  Notwithstanding
anything to the contrary contained in this Section 5.2, Purchaser
and its agents shall have access to the Properties and the Documents prior to
the Closing Date, but during normal business hours (with reasonable advance
notice to Seller and subject to the rights of the tenants in possession), at
Purchaser’s sole cost and expense, and at Purchaser’s and its agents’ sole
risk, to inspect the applicable Properties, provided, however, Purchaser shall not
be entitled to conduct Physical Testing or any Phase I Assessments, as said
terms are hereinafter defined, without the approval of Seller, which approval
shall not be unreasonably withheld, and further provided that prior to
Purchaser entering the Properties, Purchaser shall deliver to Seller evidence
of Due Diligence Insurance, as hereinafter defined.  Seller shall have the right, in its discretion,
to accompany Purchaser and/or its agents during any inspection (including, but
not limited to, tenant interviews) provided that Seller does not unreasonably
interfere with Purchaser’s inspection. 
The provisions of this Section 5.2 shall survive Closing
and/or termination of this Agreement without limitation.  Purchaser acknowledges and agrees that the
Documents and investigation available to it have been sufficient to allow
Purchaser to decide whether or not to enter into this Agreement and consummate
the transaction contemplated hereby.


 


5.3          Inspection
Obligations and Indemnity.  Purchaser and its agents and representatives
shall (a) not unreasonably disturb the tenants of the Improvements or
interfere with their use of the Real Property pursuant to their respective
Leases; (b) not interfere with the operation and maintenance of the Real
Property; (c) not injure or otherwise cause bodily harm to Seller, its
agents, contractors and employees or any tenant; (d) promptly repair any
damage to any part of the Properties or any personal property owned or held by
any tenant caused by Purchaser’s inspection of the Properties; (e) promptly
pay when due the costs of all tests, investigations and examinations done by
Purchaser with regard to the Properties; (f) not permit any liens to
attach to the Properties as a result of Purchaser’s inspection of the
Properties; (g) restore the Improvements and the surface of the Real
Property to the condition in which the same was found before any such
inspection or tests were undertaken by Purchaser; and (h) except to the
extent required by law, not reveal or disclose any information obtained
pursuant to its inspections of the Properties to anyone other than the
following persons or entities (each a “Purchaser
Party/Representative”): (x) Purchaser’s


 


7





















 


prospective
lenders, members, managers, partners or other co-venturers or investors, in
connection with the proposed purchase of the Properties and their respective representatives;
and (y) Purchaser’s directors, officers, partners, members, managers, affiliates,
shareholders, employees, legal counsel, accountants, engineers, architects,
financial advisors and similar professionals and consultants to the extent
Purchaser deems it necessary or appropriate in connection with its evaluation
of the Properties.  Purchaser shall, and
does hereby agree to indemnify, defend and hold Seller, its partners, officers,
directors, employees, agents, attorneys and their respective successors and
assigns, harmless from and against any and all claims, demands, suits,
obligations, payments, damages, losses, penalties, liabilities, costs and
expenses (including, but not limited to, attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Properties
in the exercise of the inspections of Purchaser prior to the Effective Date,
including, without limitation, claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use of or damage to its premises or property in connection with
Purchaser’s review of the Properties. 
This Section 5.3 shall survive the Closing and/or any
termination of this Agreement without limitation. Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


 


ARTICLE VI


Title and Survey Matters


 


6.1          Title. 
Purchaser acknowledges that, prior to the Effective Date, Seller has
delivered to Purchaser, with respect to each Property, a title insurance
commitment or a prior title insurance policy (a “Commitment”), together with a copy of all underlying documents
referenced therein (collectively, the “Title
Documents”).  Except as
hereinafter provided, Purchaser and Seller hereby agree that (i) all Taxes
that are not due and payable prior to Closing, (ii) the rights of the
tenants under the Leases and Approved New Leases (as defined in Section 9.3
of this Agreement), as parties in possession only, (iii) all matters
created by or on behalf of Purchaser and (iv) the exceptions to title
identified on Exhibits G-1
through G-3,
respectively, shall constitute “ Permitted
Exceptions”.  Notwithstanding
anything to the contrary contained herein, Seller shall be obligated to cause
all of the following resulting from the act or omission of, or caused by,
Seller or grantor under the Deeds to be fully satisfied, released and
discharged of record or insured or bonded over on or prior to the Closing Date:
 all mortgages, deeds of trust and
monetary liens [including liens for delinquent taxes, mechanics’ liens and
judgment liens] affecting the Properties and all indebtedness secured thereby.


 


6.2          Survey. 
Purchaser acknowledges receipt of Seller’s existing surveys (“Initial Surveys”) for each of the
Properties.  Seller has ordered a current
ALTA/ACSM survey for each Property to be certified to Purchaser, as well as any
affiliates and lender designated by Purchaser to Seller at least thirty (30)
days prior to Closing and Title Company (collectively, the “Surveys”) and shall deliver a copy of the
Surveys to Purchaser promptly upon receipt thereof but in all events prior to
Closing.  The surveyors shall certify the
Surveys in accordance with the form of certification attached hereto as Exhibit Q.


 


ARTICLE VII


Representations and Warranties of the Seller


 


7.1          Seller’s
Representations.  Seller represents and warrants that the following
matters are true and correct as of the Effective Date:


 


7.1.1        Authority.  Seller is a real estate investment trust,
duly organized, validly existing and in good standing under the laws of the
State of Maryland.  This Agreement has
been duly authorized, executed and delivered by Seller, is the legal, valid and
binding


 


8





















 


obligation of Seller, and
does not violate any provision of any agreement or judicial order to which Seller
is a party or to which Seller is subject. 
All documents to be executed by Seller or Seller Affiliates which are to
be delivered at Closing, will, at the time of Closing, (i) be duly
authorized, executed and delivered by Seller or Seller Affiliates, as the case
may be, (ii) be legal, valid and binding obligations of Seller or Seller
Affiliates, as the case may be, and (iii) not violate any provision of any
agreement or judicial order to which Seller or Seller Affiliates, as the case
may be is a party or to which Seller or Seller Affiliates, as the case may be, is
subject.


 


7.1.2        Bankruptcy or Debt of Seller.  Neither Seller nor any Seller Affiliates has
made a general assignment for the benefit of creditors, filed any voluntary
petition in bankruptcy, admitted in writing its inability to pay its debts as
they come due or made an offer of settlement, extension or composition to its
creditors generally.  Neither Seller nor
any Seller Affiliates has received any written notice of (a) the filing of
an involuntary petition by Seller’s creditors or the creditors of Seller
Affiliates, (b) the appointment of a receiver to take possession of all,
or substantially all, of Seller’s assets or the assets of Seller Affiliates, or
(c) the attachment or other judicial seizure of all, or substantially all,
of Seller’s assets or the assets of Seller Affiliates.


 


7.1.3        Foreign Person.  Neither Seller nor any of the Seller
Affiliates is a foreign person within the meaning of Section 1445(f) of
the Internal Revenue Code (“Code”),
and Seller agrees to execute and cause the Seller Affiliates to execute any and
all documents necessary or required by the Internal Revenue Service or
Purchaser in connection with such declaration(s).


 


7.1.4        No Violation of Laws.  Except as set forth on Schedule 7.1.4,
to Seller’s knowledge, neither Seller nor Seller Affiliates have received any
currently effective written notice from a governmental authority that the
Properties violate any applicable ordinance of the city or village in which the
Properties are located.


 


7.1.5        Eminent Domain.  Except as set forth on Schedule 7.1.5,
to Seller’s knowledge, neither Seller nor Seller Affiliates have received any
currently effective written notice of an eminent domain or condemnation of the
Land or Improvements relating to the Properties.


 


7.1.6        Hazardous Materials.  Except as set forth on Schedule 7.1.6,
to Seller’s knowledge, except as set forth in any environmental report provided
by Seller to Purchaser, or as referenced or referred to in Section 17.23,
(i) neither Seller nor Seller Affiliates have received any uncured written
notice from the United States Environmental Protection Agency or the Illinois
Environmental Protection Agency (or any Indiana or Wisconsin agency comparable
to the Illinois Environmental Protection Agency) alleging that the Properties
are in violation of any applicable Environmental Laws or contain any Hazardous
Materials, (ii) since the date of the most recent environmental report, there have been no Hazardous Materials
installed or stored in or otherwise existing at, on, in or under the Properties
in violation of applicable Environmental Laws, and (iii) Seller has acted
in the manner that a commercially prudent property owner would act with respect
to any written recommendations made by Seller’s environmental consultants.  “Hazardous
Materials” shall mean any hazardous, toxic waste, substance or
material, pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Section 9601 et seq.), as amended, or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or any
other federal, state or local laws, ordinances, rules, regulations or policies
governing use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of such materials (collectively, “Environmental Laws”).


 


9





















 


7.1.7        Litigation.  Except as set forth on Schedule 7.1.7,
to Seller’s knowledge, (i) neither Seller nor Seller’s Affiliates have received
any currently effective written notice of any pending litigation affecting the
Properties, and (ii) there is no action, suit or proceeding threatened
before or by any judicial, administrative or union body, any arbitrator or any
governmental authority, against or affecting the Properties.


 


7.1.8        Leases.  Except as set forth on Schedule 7.1.8,
(i) the Rent Roll delivered to Purchaser by Seller lists all of the Leases
affecting the Properties owned by Seller or Seller’s Affiliates, (ii) the
Leases affecting the Properties delivered to Purchaser by Seller are true,
correct and complete copies of the Leases provided to or entered into by Seller
or Seller’s Affiliates relating to the Properties, and (iii) to Seller’s
knowledge, no tenant has commenced any action or given any written notice to Seller
or any Seller Affiliate for the purpose of terminating its lease in whole or in
part, whether by exercise of an express termination right in its lease or
otherwise.


 


7.1.9        Contracts.  Except as set forth on Schedule 7.1.9,
to Seller’s knowledge, Seller has delivered to Purchaser complete copies of
each Contract provided to or entered into by Seller or Seller Affiliate relating
to the Properties.


 


7.1.10      Defaults.  Except as set forth on Schedule 7.1.10,
or any other exhibit to this Agreement, (i) no
notice of default has been given by Seller or Seller Affiliates to any tenant
or received by Seller from any tenant under any Lease relating to the Properties
which remains uncured and (ii) no base or additional rent due under any
Lease relating to the Properties is more than thirty (30) days past due.


 


7.1.11      Operating Statements.  To Seller’s knowledge, the operating
statements relating to the Properties delivered by Seller to Purchaser in accordance
with Section 5.1 hereof are true and correct in all material
respects and no material adverse change has occurred since the respective dates
thereof.


 


7.1.12      Bulk Sale Act. The provisions of Section 9.02(d) of
the Illinois Income Tax Act and the applicable provisions of the Retailer’s
Occupation Tax Act do not apply to this transaction.


 


7.1.13      REIT REP The Properties consist
solely of land, buildings, and other structural components thereof, and other
assets described in Section 856(c)(4)(A) of the Code.  The total gross revenues generated by the
Properties between January 1, 2003 and the Closing Date has consisted and
will consist solely of income from rents from real property and other revenue
which constitute qualifying income under Section 856(c)(3) of the
Code (“Qualifying Income”), and
based on historical experience, Seller believes that the gross revenues
generated by the Properties after the Closing Date will consist solely of
Qualifying Income.


 


Seller shall remake all
representations and warranties as of the date of the Closing; provided,
however, at the time such warranties and representations are remade, Seller
shall provide Purchaser with updates of the Schedules referred to in the
representations and warranties set forth above and an updated operating
statement.  Purchaser acknowledges and
agrees that the representations and warranties that are made as of the Closing
Date shall refer to the updated Schedules and operating statements.


 


7.2          Intentionally
Deleted.


 


7.3          Knowledge.  For
purposes of this Agreement and any document delivered at Closing, whenever the
phrases “to the best of Seller’s knowledge”, “to the actual knowledge of


 


10





















 


Seller”
or “to the knowledge” of Seller or words of similar import are used, they shall
be deemed to refer to the current, actual knowledge only, and not any implied,
imputed or constructive knowledge of Michael M. Mullen and James N. Clewlow,
after consultation with the property managers of each Property owned by Seller
(collectively, the “Seller Property Managers”).  Except for the obligation to consult with the
Seller Property Managers, neither Michael M. Mullen nor James N. Clewlow shall
be obligated to conduct any independent investigation, and no implied duty to
investigate shall be imputed.  Nothing
contained in this Agreement shall be deemed to impose any personal liability of
any kind on any person named in Section 7.3.


 


For purposes of this
Agreement, and any document delivered at Closing, whenever the phrase “to the
best of Purchaser’s knowledge”, “to the actual knowledge of Purchaser” or “to
the knowledge of Purchaser” or words of similar import are used, they shall be
deemed to refer to the current, actual knowledge only, and not any implied,
imputed or constructive knowledge, of Andrew Martin and Ben Hindmarsh;
provided, however, that nothing in this Agreement shall be deemed to create or
impose any personal liability of any kind on Andrew Martin or Ben Hindmarsh.


 


7.4          Change in Representation/Waiver.  Notwithstanding
anything to the contrary contained herein, Purchaser acknowledges that
Purchaser shall not be entitled to rely on any representation or warranty made
by Seller in this Article VII to the extent, prior to or at
Closing, Purchaser shall have or obtain actual knowledge of any information
that was contradictory to such representation or warranty; provided, however,
if Purchaser determines prior to Closing that there is a breach of any of the
representations and warranties made by Seller above, then Purchaser may, at its
option, by sending to Seller written notice of its election either (i) exercise
its rights under Section 9.9 below if applicable, (ii) waive
such breach and/or conditions and proceed to Closing with no adjustment in the
Purchase Price and in such event Seller shall have no further liability as to
such matter thereafter, or (iii) as its sole remedy, terminate this
Agreement in its entirety in the event of any untruth or inaccuracy of (x) the
representations or warranties set forth in Sections 7.1.1, 7.1.2 or 7.1.3,
or (y) the representations and warranties set forth in the other sections of Article VII,
but only if such representations and warranties were not true or were
inaccurate on the Effective Date and such untruth or inaccuracy is “Material”
(defined below). The term “Material” as used in this Section 7.4
shall mean a liability or loss reasonably anticipated to arise out of an
untruth or inaccuracy of the representations or warranties set forth in Article VII
which (i) exceeds $500,000.00 for each affected Property, or (ii) results
from fraud or willful misconduct on the part of Seller.  In the event that Purchaser elects to
terminate this Agreement, the parties shall have no liability to each other hereunder
and the Deposit shall be returned to Purchaser and the Seller Letter of Credit
shall be returned to Seller.  Seller
shall have no liability with respect to any of the foregoing representations
and warranties or any representations and warranties made in any other document
executed and delivered by Seller to Purchaser, to the extent that, prior to the
Closing, Purchaser discovers or learns of information (from whatever source,
including, without limitation the property manager, the tenant estoppel
certificates or the Seller’s Estoppel Certificates delivered pursuant to Section 10.1.1
below, as a result of Purchaser’s due diligence tests, investigations and
inspections of the Property, or disclosure by Seller or Seller’s agents and
employees) that contradicts any such representations and warranties, or renders
any such representations and warranties untrue or incorrect, and Purchaser
nevertheless consummates the transaction contemplated by this Agreement.


 


7.5          Post Closing Rights. 
Following Closing, Purchaser will have the right to bring any action
against Seller as a result of any untruth or inaccuracy of representations and
warranties made herein if (i) such untruth or inaccuracy is “Material,”
and (ii) prior to Closing Purchaser did not discover or learn information
(from whatever source) that contradicts any such representations and
warranties, or renders any such representations and warranties untrue or
incorrect.  The term “Material” as used
in this Section 7.5 shall mean a liability or loss reasonably
anticipated to arise out of an untruth or inaccuracy of the representations or
warranties set forth in Article VII which results from fraud or
willful misconduct on the part of Seller or exceeds $500,000 for each such
affected


 


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Property, it being understood that the
foregoing limitation is a threshold which must be exceeded, but that once such
threshold has been exceeded, any post closing claim may be pursued for its full
value.  In addition, in no event will
Seller’s liability for all such breaches relating to a specific Property,
exceed, in the aggregate, the allocated Purchase Price of the Property in
question, calculated in accordance with Schedule 9.8.


 


7.6          Survival.  The
express representations and warranties made in this Agreement shall not merge
into any instrument or conveyance delivered at the Closing; provided, however,
that any action, suit or proceeding with respect to the truth, accuracy or
completeness of representations and warranties set forth in Sections other than
Sections 7.1.1, 7.1.2 and 7.1.3 shall be commenced, if at
all, on or before the date which is twelve (12) months after the date of a Closing
and, if not commenced on or before such date, thereafter such representations
and warranties shall be void and of no force or effect as to the applicable
Closing.


 


ARTICLE VIII


Representations and Warranties of Purchaser


 


8.1          Purchaser represents and warrants to
Seller that the following matters are true and correct as of the Effective
Date.


 


8.1.1        Authority.  Purchaser is a limited liability company,
duly organized, validly existing and in good standing under the laws of the
State of Delaware.  This Agreement has
been duly authorized, executed and delivered by Purchaser, is the legal, valid
and binding obligation of Purchaser, and does not violate any provision of any
agreement or judicial order to which Purchaser is a party or to which Purchaser
is subject.  All documents to be executed
by Purchaser which are to be delivered at Closing, will, at the time of Closing,
(i) be duly authorized, executed and delivered by Purchaser, (ii) be
legal, valid and binding obligations of Purchaser, and (iii) not violate
any provision of any agreement or judicial order to which Purchaser is a party
or to which Purchaser is subject.


 


8.1.2        Bankruptcy or Debt of Purchaser.  Purchaser has not made a general assignment
for the benefit of creditors, filed any voluntary petition in bankruptcy,
admitted in writing its inability to pay its debts as they come due or made an
offer of settlement, extension or composition to its creditors generally.  Purchaser has received no written notice of (a) the
filing of an involuntary petition by Purchaser’s creditors, (b) the
appointment of a receiver to take possession of all, or substantially all, of
Purchaser’s assets, or (c) the attachment or other judicial seizure of
all, or substantially all, of Purchaser’s assets.


 


8.1.3        No Financing Contingency.  It is expressly acknowledged by Purchaser
that this transaction is not subject to any financing contingency, and no
financing for this transaction shall be provided by Seller.


 


8.2          Purchaser’s
Acknowledgment.  Purchaser acknowledges and agrees that,
except as expressly provided in this Agreement, Seller has not made, does not
make and specifically disclaims any and all representations, warranties,
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, including, but not limited to those representations, warranties,
promises, covenants, agreement and guaranties of, as to, concerning or with
respect to (a) the nature, quality or condition of the Properties,
including, without limitation, the water, soil and geology, (b) the income
to be derived from the Properties, (c) the suitability of the Properties
for any and all activities and uses which Purchaser may conduct thereon, (d) the
compliance of or by the Properties or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or body,
including, without limitation, the Americans with Disabilities Act and any rules and
regulations promulgated thereunder or in connection therewith, (e) the
habitability, merchantability or fitness for a particular


 


12





















 


purpose
of the Properties, or (f) any other matter with respect to the Properties,
and specifically that except as expressly provided in this Agreement, Seller
has not made, does not make and specifically disclaims any representations
regarding solid waste, as defined by the U.S. Environmental Protection Agency
regulations at 40 C.F.R., Part 261, or the disposal or existence, in or on
the Properties, of any hazardous substance, as defined by the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, and
applicable state laws, and regulations promulgated thereunder.  Purchaser further acknowledges and agrees
that, except as expressly provided in this Agreement, having been given the
opportunity to inspect the Properties, Purchaser is relying solely on its own
investigation of the Properties and not on any information provided or to be
provided by Seller.  Purchaser further
acknowledges and agrees that subject to the representations and warranties of
Seller as provided herein and in any other document executed at Closing, any
information provided or to be provided with respect to the Properties was
obtained from a variety of sources and that Seller has not made any independent
investigation or verification of such information.  Purchaser
further acknowledges and agrees that, as a material inducement to the execution
and delivery of this Agreement by Seller, subject to the representations and
warranties of Seller provided herein and in any other document executed at
Closing, the sale of the Properties as provided for herein is made on an “AS
IS, WHERE IS” CONDITION AND BASIS “WITH ALL FAULTS.”  Purchaser acknowledges, represents
and warrants that Purchaser is not in a significantly disparate bargaining
position with respect to Seller in connection with the transaction contemplated
by this Agreement; that Purchaser freely and fairly agreed to this
acknowledgment as part of the negotiations for the transaction contemplated by
this Agreement; that Purchaser is represented by legal counsel in connection
with this transaction.


 


8.3          Purchaser’s
Release.  Effective as of the date of the Closing,
Purchaser on behalf of itself and its successors and assigns waives its right
to recover from, and forever releases and discharges, Seller, Seller’s
affiliates, Seller’s investment manager, property manager, the partners,
trustees, shareholders, beneficiaries, directors, officers, employees,
attorneys and agents of each of them, and their respective heirs, successors, personal
representatives and assigns from any and all demands, claims, legal or
administrative proceedings, losses, liabilities, damages, penalties, causes of
action, fines, liens, judgments, costs and expenses known or unknown, foreseen
or unforeseen, that may arise on account of or in any way be connected with the
Properties, except, subject to Section 7.5 hereof, such as
arises out of (i) a breach of any of the representations and warranties of
Seller set forth in Article VII and (ii) any of the provisions
of this Agreement that survive Closing pursuant to the provisions of Section 17.12
below.  The terms and provisions of this Section 8.3
shall survive Closing and/or termination of this Agreement without limitation.


 


8.4          Survival.  The
express representations and warranties made in this Agreement by Purchaser
shall not merge into any instrument of conveyance delivered at the Closing;
provided, however, that any action, suit or proceeding with respect to the
truth, accuracy or completeness of all such representations and warranties
shall be commenced, if at all, on or before the date which is twelve (12)
months after the date of the Closing and, if not commenced on or before such
date, thereafter shall be void and of no force or effect as to the applicable Closing.


 


ARTICLE IX


Seller’s Interim Operating Covenants/Seller’s and
Purchaser’s Covenants


 


9.1          Operations. 
Seller agrees to continue to operate, manage and maintain the
Improvements through the Closing Date in the ordinary course of Seller’s
business and substantially in accordance with Seller’s present practice,
subject to ordinary wear and tear and further subject to Article XII
of this Agreement.  As of, and at all
times after the Effective Date until Closing, Seller shall name Purchaser as an
additional insured on all liability insurance policies maintained by Seller
relating to the Properties.


 


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9.2          No Sales.  Except for the execution of tenant Leases pursuant to Section 9.3,
Seller agrees that it shall not convey any interest in the Properties to any
third party.


 


9.3          Tenant
Leases.  From and after the Effective Date, Seller
shall not (i) grant any consent or waive any material rights under the
Leases, (ii) terminate any Lease, or (iii) enter into a new lease,
modify an existing Lease or renew, extend or expand an existing Lease in any
material respect without the prior written approval of Purchaser (an “Approved New Lease”), which in each case
shall not be unreasonably withheld, conditioned or delayed.  Any Approved New Lease shall meet all of the
following parameters: (i) such proposed lease has an initial term
(excluding any options to extend such term) of not less than three (3) years
and not more than ten (10) years; (ii) such proposed lease has no
free-rent period extending beyond the term of the Master Lease (defined below);
(iii) such proposed lease has no above-market obligation of Purchaser to
provide or fund any tenant improvements; (iv) such proposed lease provides
for base rent payable at a rate per month that is never less than 95% of the
base rent per month required to be paid for such space under the Master Lease; (v) leasing
commissions for such proposed lease do not exceed market rates; (vi) such
proposed lease does not require the landlord thereunder, and will not result in
an obligation for the landlord thereunder to alter or improve or pay for the
altering or improving of the building (other than tenant improvements as
limited by clause (iii) above and responsibility for repairing and
replacing the roof and structure, but excluding the obligation for internal wall
changes); (vii) such lease shall be on the form customarily used by Seller
with such revisions which Seller approves using its judgment as a commercially prudent
landlord; (viii) the creditworthiness of the tenant and intended use of
the premises by the tenant shall be consistent with Seller’s historical and
customary requirements as a commercially prudent landlord; and (ix) the
income to be generated from the proposed lease shall constitute qualifying
income under Section 856(c)(3) of the Code.  Additionally, the parties expressly agree
that it shall not be deemed unreasonable for Purchaser to withhold, condition
or delay its consent to any Approved New Lease that includes above-market
tenant improvements, above-market leasing commissions or any other above-market
leasing costs that Purchaser would be obligated to pay or incur; provided,
however, in such event, Purchaser and Seller agree to negotiate in good faith
to agree upon such tenant improvement costs, leasing commission and other
leasing costs to render such Approved New Lease and the terms thereof
acceptable to Purchaser.  Any lease
proposed by Seller, which satisfies the criteria set forth in this Section 9.3
and would otherwise be reasonably acceptable to Purchaser, but for the fact
that such lease includes above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs, may, nonetheless, be
approved and executed by Seller, in its sole and absolute discretion, and in
such event such proposed lease shall be deemed an Approved New Lease, provided that
Seller pays all such above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs.  Purchaser’s failure to respond within five (5) Business
Days after receipt of a request for approval, together with a copy of the
proposed Approved New Lease or letter of intent to lease and credit information
on the proposed replacement tenant or tenants, shall be deemed approval by
Purchaser. Seller shall pay the portion of the tenant improvement costs, leasing
commissions and other usual and customary leasing costs with respect to any
Approved New Lease, allocated on a prorata basis over the term of the Approved
New Lease with respect to the portion of the term of the Approved New Lease
prior to a Closing and Purchaser shall pay the portion of the tenant
improvement costs, lease commissions and other usual and customary leasing
costs with respect to an Approved New Lease, allocated on a prorata basis over
the term of the Approved New Lease with respect to the portion of the term of
the Approved New Lease after the Closing.


 


9.4.         Planned
Expenditures.  Seller shall effect and complete the planned
expenditures for nominated work and items in accordance with the description
and budget set forth on Exhibit R
attached hereto as a prudent manager/owner in consultation with Purchaser, and to
Purchaser’s commercially reasonable satisfaction; in the event that upon completion
of such work and items,  the total cost
of such work is less than the total budget allocated for same, Seller shall be
entitled to retain all such unexpended amounts. 
In the event that Exhibit R
reflects that certain work is to be


 


14





















 


performed
after Closing, the obligations of Seller under this Section 9.4
with respect to that work shall survive Closing.


 


9.5          Master
Lease.  At the Closing, Seller and Purchaser shall
execute and deliver to each other a master lease (“Master Lease”) in the form of Exhibit H attached hereto.


 


9.6          Management
Agreement.  At the Closing, Seller and Purchaser shall execute an Amendment to the Property Management
Agreement between Purchaser and CenterPoint Properties Trust adding the
Properties to the definition of “Properties” under such Management Agreement. Seller shall terminate any existing
property management agreements pertaining to the Properties as of the Closing
Date.


 


9.7          Intentionally
Deleted.


 


9.8          Transfer
Tax Declaration Allocation.  Purchaser and Seller agree that
the Purchase Price shall be allocated amongst the Properties as set forth on Schedule 9.8
for the purpose of completing real estate transfer declarations to be executed
by Seller and Purchaser at Closing (the “Transfer
Tax Declaration Allocation”).


 


9.9          Substitution
of Properties


 


9.9.1        In the event of the occurrence of a
Substitution Event (defined below) prior to Closing, Purchaser may, at its
option, by written notice to Seller (“Event
Notice”) within ten (10) days after the date on which Purchaser
is given or obtains actual knowledge of the occurrence of a Substitution Event,
elect to either (i) ignore the Substitution Event and proceed to Closing
with no adjustment in the Purchase Price, or (ii) request that Seller
offer a Substitute Property or Substitute Properties (both as hereinafter
defined) to Purchaser valued in the aggregate amount of the Purchase Price
allocated to the Property or Properties (“Removed
Property” or “Removed Properties”)
subject to the Substitution Event.


 


In
the event that Purchaser elects under (ii) above to have Seller provide a
Substitute Property or Substitute Properties, Seller, if it chooses to do so,
in its sole and absolute discretion, shall have a period of thirty (30) days
from the date of Purchaser’s Event Notice to correct the condition giving rise
to the Substitution Event, and further, provided, however, if such condition is
of a nature which is not capable of cure within said thirty (30) day period and
Seller has commenced to cure within such thirty (30) day period, then Seller
shall have such reasonable period of time from and after the date of Purchaser’s
Event Notice to correct the condition giving rise to the Substitution Event.  In the event Purchaser exercises its rights
under (ii) above, and Seller elects to and cures the condition giving rise
to the Substitution Event prior to the time that the Closing with respect to
the Substitute Property occurs, the Scheduled Closing Date for the Removed
Property shall be extended to the fifteenth (15th) day after the
condition giving rise to the Substitution Event has been cured.


 


In
the event that Purchaser fails to elect (i) or (ii) above within ten (10) days
after Purchaser is given or obtains actual knowledge of a Substitution Event,
Purchaser shall be deemed to have elected to waive such condition and proceed
to Closing on the Closing Date with no adjustment in the Purchase Price.  In the event that within said ten (10) day
period Purchaser elects its rights under (ii) above and Seller elects not
to cure or elects to cure the condition but fails to do so within the time
period set forth above, Seller shall use reasonable efforts to provide a
Substitute Property or Substitute Properties as described in Section 9.9.2.  Notwithstanding any other term or condition
contained herein, (i) in no event shall the Closing with respect to the
Properties which are not subject to a Substitution Event be


 


15





















 


delayed, and (ii) in the
event of the occurrence of a Substitution Event, Seller shall not be in default
under this Agreement, Seller shall not be liable for damages and Purchaser’s
sole right and remedy shall be to exercise its rights under this Section 9.9.1.


 


The
term “Substitution Event” shall
mean any one or more of the following: (i) written notice to Purchaser
that a tenant under its lease (“Right of
First Refusal Lease”)  has exercised
a right of first refusal, right of first offer or option to purchase a Property
prior to Closing pursuant to the existing terms of its lease, (ii) the
taking of one hundred percent (100%) of a Property by condemnation or eminent
domain or (iii) any one or more of the following, to the extent the
existence of the condition hereinafter described has a “Material Adverse Effect”
on the use, value or marketability of the applicable Property: (a) the
existence of a title exception other than a Permitted Exception on an Owner’s
Policy to be issued by the Title Company at the time of the Closing; provided,
however that Seller shall, at Seller’s expense, use reasonable efforts to
obtain a title insurance endorsement to the Owner’s Policy (defined below) insuring
over any unpermitted title exception, (b) the existence of a difference on
a Survey not reflected on the Initial Surveys; (c) if Purchaser has not been
provided with a copy of a zoning endorsement issued by the Title Company with
respect to any Properties (whether in favor of Seller or Purchaser) prior to
the Effective Date and it is determined that the present use of the Property is
not permitted under the zoning ordinance in effect on the Effective Date; (d) the
physical or environmental condition of the Properties are not the same as on
the Effective Date, ordinary wear and tear and damage by casualty excepted, provided,
however, that under this subsection (d) it shall not be a
Substitution Event if a tenant of the Property is responsible under its lease
for maintaining, repairing or restoring the physical or environmental condition
in question; and (e) the existence of a breach of a warranty or
representation made by Seller under Sections 7.1.4, 7.1.6, 7.1.7 and 7.1.9
of this Agreement (or any change in the schedules thereto).  The term “Material
Adverse Effect” as used herein shall mean that a liability or loss reasonably
anticipated to arise out of the condition under (a) Sections 9.9.1(iii)(a) or
(b) which exceeds $150,000.00 for the affected Property, or (b) under
Sections 9.9.1iii(c), (d) or (e) which exceeds seven
and one-half percent (7.5%) of the Purchase Price for the affected Property.


 


9.9.2        In the event of the occurrence of a
Substitution Event (and notwithstanding any election by Seller to attempt to
cure the condition giving rise to the Substitution Event), Seller shall use
reasonable efforts to substitute another Property or Properties owned by Seller
that the parties mutually agree in their reasonable opinion is comparable
(individually, a “Substitute Property”
and collectively, the “Substitute Properties”).  Seller shall use reasonable efforts to
identify a Substitute Property within thirty (30) days after receipt of an
Event Notice.  Commencing on the date
that Purchaser receives a notice from Seller identifying a Substitute Property
or Substitute Properties to replace a Removed Property or Removed Properties (“Substitution of Assets Notice”), and
continuing until 5:00 p.m. Central time on the thirtieth (30th)
day thereafter (“Substitute Properties
Feasibility Period”), Purchaser and its agents shall have the right
to conduct inspections and tests of the Substitute Properties in the manner
hereby provided in Section 9.9.5 and subject to the provisions as
provided in Section 9.9.6. 
In the event that Purchaser approves all of the Substitute Properties
prior to the expiration of the Substitute Properties Feasibility Period, all of
the Substitute Properties shall be subject to this Agreement, and the Purchase
Price shall be adjusted as provided below in Section 9.9.3.  In the event that Purchaser does not approve
one or more of the Substitute Properties prior to the expiration of the
Substitute Properties Feasibility Period, the Substitute Property or Properties
not approved by Purchaser and the Removed Property or Removed Properties shall
not be subject to this Agreement, and the Purchase Price shall be reduced by
the value of the Removed Property or Removed Properties, as the case may be, as
set forth on Schedule 9.8.  All
Substitute Properties approved by Purchaser shall be deemed to be Properties
subject to this Agreement, except that all warranties and representations shall
be modified to reflect the


 


16





















 


circumstances relating to
the Substitute Properties.  Within
fifteen (15) days after the Substitution of Assets Notice, Seller shall deliver
Schedules similar to those attached hereto as Schedules 7.1.4, 7.1.5, 7.1.6,
7.1.7, 7.1.8, 7.1.9 and 7.1.10, with respect to the Substitute Properties.


 


9.9.3        For the purposes of this Section 9.9,
the purchase price for a Removed Property shall be based on Schedule 9.8
attached hereto, and the purchase price for a Substitute Property shall be
calculated using a capitalization rate equal to the capitalization rate that
was used to determine the Purchase Price of the Removed Property and the annual
net rent of the Substitute Property, without deductions (“Substitute Property Purchase Price”).  In the event that the Seller delivers the
Substitution of Assets Notice to Purchaser within the time frame set forth
above, the Closing of all Properties not subject to the Substitution of Assets
Notice shall take place on the date of the Scheduled Closing Date.  Subject to the right of Purchaser to
disapprove one or more of the Substitute Properties during the Substitute
Properties Feasibility Period, and further subject to the provisions of Section 4.1
above, the Closing with respect to each Substitute Property shall take place on
the thirtieth (30th) day following the expiration of the applicable Substitute
Property Feasibility Period.


 


9.9.4        Seller shall deliver to Purchaser copies
of all notices sent by Seller to tenants under Right of First Refusal Leases as
required under the Right of First Refusal Leases, and shall notify Purchaser
promptly if it receives a notice from an Exercising Tenant.


 


9.9.5        During the Substitute Properties
Feasibility Period, Purchaser and its agents shall have the right during
business hours (with reasonable advance notice to Seller and subject to the
rights of the tenants in possession), at Purchaser’s sole cost and expense and
at Purchaser’s and its agents’ sole risk, to perform inspections and tests of
the Substitute Properties and to perform such other analyses, inquiries and
investigations as Purchaser shall deem reasonably necessary or appropriate;
provided, however, that in no event shall (i) such inspections or tests
unreasonably disrupt or disturb the on-going operation of the Substitute
Properties or the rights of the tenants at the Substitute Properties, or (ii) Purchaser
or its agents or representatives conduct any physical testing, drilling,
boring, sampling or removal of, on or through the surface of the Substitute
Properties (or any part or portion thereof) including, without limitation, any
ground borings or invasive testing of the Improvements (collectively, “Physical Testing”), without Seller’s prior
written consent, which consent may be given or withheld in Seller’s sole and
absolute discretion.  Seller acknowledges
and agrees that the performance of a phase I environmental assessment on behalf
of Purchaser (“Phase I Assessments”)
shall not be considered Physical Testing for purposes hereof and shall be
permitted without Purchaser obtaining the consent of Seller.  In the event Purchaser desires to conduct any
such Physical Testing of a Substitute Property, then Purchaser shall submit to
Seller, for Seller’s approval, a written detailed description of the scope and
extent of the proposed Physical Testing, which approval may be given or
withheld in Seller’s sole and absolute discretion.  In no event shall Seller be obligated as a
condition of this transaction to perform or pay for any environmental
remediation of the Substitute Properties recommended by any such Physical
Testing.  After making such tests and
inspections, Purchaser agrees to promptly restore the Substitute Properties to
their condition prior to such tests and inspections (which obligation shall
survive the Closing or any termination of this Agreement).  In addition to the rights available to the
Purchaser during the Substitute Properties Feasibility Period, as set forth
above, Purchaser and its agents shall have access to the Substitute Properties
prior to the Closing Date, but during normal business hours (with reasonable
advance notice to Seller and subject to the rights of the tenants in
possession), at Purchaser’s sole cost and expense, and at Purchaser’s and its
agents’ sole risk, to inspect the applicable Substitute Properties; provided,
however, Purchaser shall not be entitled to conduct any Physical Testing or any


 


17





















 


Phase I Assessment after the
expiration of the Substitute Properties Feasibility Period.  Prior to Purchaser entering the Substitute
Properties to conduct the inspections and tests described above, including, but
not limited to, the Phase I Assessments, Purchaser shall obtain and maintain,
at Purchaser’s sole cost and expense, and shall deliver to Seller evidence of,
the following insurance coverage, and shall cause each of its agents and
contractors to obtain and maintain, and, upon request of Seller, shall deliver
to Seller evidence of, the following insurance coverage:  general liability insurance, from an insurer
reasonably acceptable to Seller, in the amount of Five Million and No/100
Dollars ($5,000,000.00) combined single limit for personal injury and property
damage per occurrence, such policy to name Seller as an additional insured
party, which insurance shall provide coverage against any claim for personal
liability or property damage caused by Purchaser or its agents, employees or
contractors in connection with such inspections and tests (“Due Diligence Insurance”).  Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its
agents do not unreasonably interfere with Purchaser’s inspection.


 


9.9.6        Purchaser and its agents and
representatives shall:  (a) not
unreasonably disturb the tenants of the Substitute Properties or interfere with
their use of the Substitute Properties pursuant to their respective Leases; (b) not
interfere with the operation and maintenance of the Substitute Properties; (c) not
damage any part of the Substitute Properties or any personal property owned or
held by any tenant; (d) not injure or otherwise cause bodily harm to
Seller, its agents, contractors and employees or any tenant; (e) promptly
pay when due the costs of all tests, investigations and examinations done with
regard to the Substitute Properties; (f) not permit any liens to attach to
the Substitute Properties by reason of the exercise of its rights hereunder; (g) restore
the Improvements and the surface of the Substitute Properties to the condition
in which the same was found before any such inspection or tests were
undertaken; and (h) except to the extent required by applicable laws, not
reveal or disclose any information obtained pursuant to its right to evaluate
set forth in Section 9.9.5 above concerning the Substitute
Properties to anyone other than a Purchaser Party/Representative.  Purchaser shall, at its sole cost and
expense, comply with all applicable federal, state and local laws, statutes,
rules, regulations, ordinances or policies in conducting its inspection of the
Substitute Properties, the Purchaser’s Phase I Assessments and the Physical
Testing.  Purchaser shall, and does
hereby agree to indemnify, defend and hold the Seller, its partners, members,
officers, directors, employees, agents, attorneys and their respective
successors and assigns, harmless from and against any and all claims, demands,
suits, obligations, payments, damages, losses, penalties, liabilities, costs
and expenses (including but not limited to attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Substitute
Properties in the exercise of the inspection right granted pursuant to Section 9.9.5,
including, without limitation, (i) claims made by any tenant against
Seller for Purchaser’s entry into such tenant’s premises or any interference
with any tenant’s use or damage to its premises or property in connection with
Purchaser’s review of the Substitute Properties, and (ii) Purchaser’s
obligations pursuant to this Section 9.9.6.  This Section 9.9.6 shall survive
the Closing of the Substitute Properties and/or any termination of this
Agreement without limitation.


 


9.9.7        With respect to the Substitute
Properties, Seller shall deliver to Purchaser or make available at the
applicable Substitute Property or Seller’s office in Oak Brook, Illinois, at
Seller’s option, the following: operating statements, leases, reports relating
to the physical and/or environmental condition of the applicable Substitute Properties,
a statement of the estimated value of the applicable Substitute Properties from
an independent industrial real estate broker with at least ten (10) years experience
in the marketplace (which value shall not be binding on Seller or Purchaser),
rent rolls and revenue and expense statements,


 


18





















 


Seller and Purchaser shall
use reasonable efforts to agree upon the format and scope of such materials,
but agree that the format and scope shall be similar to the materials typically
provided by Seller to Purchaser in connection with the sale of the Properties in
accordance with Section 5.1 hereof (the “Substitute Property Documents”); provided, however, that
except for the representations and warranties made in Article VII
hereof, Seller makes no representations or warranties of any kind regarding the
accuracy, thoroughness or completeness of or conclusions drawn in the
information contained in such Substitute Properties Documents.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Notwithstanding anything contained in the preceding sentence, Seller
shall not deliver or make available to Purchaser Seller’s internal memoranda,
attorney-client privileged materials, internal appraisals and economic
evaluations of the Substitute Properties, and reports regarding the Substitute
Properties prepared by Seller or its affiliates solely for internal use or for
the information of the investors in Seller. 
Purchaser acknowledges that any and all of the Substitute Properties
Documents that are not otherwise known by or available to the public are
proprietary and confidential in nature and will be delivered to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Substitute Properties.  Purchaser agrees
not to disclose such non-public documents, or any of the provisions, terms or
conditions thereof, to any party other than a Purchaser
Party/Representative.  Purchaser shall
return all of the Substitute Properties Documents, on or before three (3) Business
Days after the first to occur of (a) such time as Purchaser notifies
Seller in writing that it shall not acquire the Substitute Properties, or (b) such
time as this Agreement is terminated for any reason.  This Section 9.9.7 shall survive
any termination of this Agreement without limitation.


 


9.9.8        Purchaser hereby acknowledges that it
will have been given, prior to the termination of the Substitute Properties
Feasibility Period, a full, complete and adequate opportunity to make such
legal, factual and other determinations, analyses, inquiries and investigations
as Purchaser deems necessary or appropriate in connection with the acquisition
of the Substitute Properties.  Purchaser
will be relying upon its own independent examination of the Substitute
Properties and all matters relating thereto and not upon any statements of
Seller (excluding the limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Substitute Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser relating to the Substitute Properties.  The provisions of this Section 9.9.8
shall survive Closing and/or termination of this Agreement without limitation.


 


9.10        Contracts. 
Seller shall not, with respect to a Contract that will survive Closing,
from and after the Effective Date, terminate an existing Contract, enter into a
new Contract or modify an existing Contract without the prior written approval
of Purchaser, which consent in each case shall not be unreasonably conditioned,
withheld or delayed and which shall be deemed granted if Purchaser fails to
respond to a request for approval within five (5) Business Days after
receipt of the request therefor together with a summary of the terms of the
Contract (an “Approved New Contract”).  Schedule 9.10 attached hereto
contains a list of Contracts for the Properties that Purchaser will assume as
of the Closing, and a list of Contracts for the Properties that Purchaser is
requesting Seller to terminate as of the Closing (the “Unassumed Contracts”).  Provided that the Closing occurs hereunder, Seller
shall terminate such applicable Unassumed Contracts effective as of the Closing
Date and deliver evidence at such Closing of such termination.


 


9.11        Intentionally
Deleted.


 


19





















 


9.12        REA
Estoppels.  Attached hereto as Schedule 9.12
is a list of REA and other Property-related estoppels that Purchaser would like
to obtain prior to Closing (collectively, the “REA Estoppels”). 
Purchaser shall prepare and deliver to Seller REA Estoppel Certificates
for each of the REA Estoppels (the “REA
Estoppel Certificates”), and Seller shall send out the REA Estoppel
Certificates for execution prior to the Closing Date, it being understood that
obtaining the REA Estoppel Certificates shall not be a condition to Purchaser’s
obligation to close.


 


ARTICLE X


Closing Conditions


 


10.1        Conditions
to Obligations of Purchaser.  The obligations of Purchaser
under this Agreement to purchase the Properties and consummate the other
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions on or before the Scheduled Closing Date, except to the
extent that any of such conditions may be waived by Purchaser in writing at
Closing.


 


10.1.1      Tenant Estoppels.  Purchaser shall have received tenant estoppel
certificates dated not more than thirty (30) days prior to the Closing from
seventy-five percent (75%) of the occupied square footage in the Properties.  Seller agrees to deliver to each tenant a tenant
estoppel certificate substantially in the form attached hereto as Exhibit K.  Notwithstanding the foregoing, in the event
that a Lease requires a different form of estoppel certificate or requires
specific provisions, Purchaser shall be required to accept a tenant estoppel
certificate that is substantially in the form required by said Lease or
substantially in the form of Exhibit K
as modified to comply with the specific provisions required by said Lease.  Additionally, Purchaser acknowledges that
while the statements set forth in paragraphs 8 and 9 of Exhibit K are not qualified to the
knowledge or best knowledge of the tenant, Purchaser shall be required to
accept any tenant estoppel certificate that has been qualified to the knowledge
or best knowledge of the tenant with respect to said paragraphs.  Notwithstanding the foregoing, at Seller’s
sole option, Seller may (i) extend the Scheduled Closing Date solely with
respect to up to five (5) of the Properties for up to an additional thirty
(30) days in order to satisfy the foregoing requirement for such Properties, in
which event Seller shall deliver notice of such extension with respect to such
Properties to Purchaser prior to the Scheduled Closing Date (and the Closing
shall proceed as scheduled with respect to all other Properties), and/or (ii) provide
its own estoppel (“Seller’s Estoppel”)
in the form attached as Exhibit L
to Purchaser in satisfaction of the foregoing requirements with respect to not
more than twenty-five percent (25%) of the occupied square footage of the
Properties.  In the event that Seller has
not complied with the provisions of this Section 10.1.1, Purchaser
may (i) elect to consummate the Closing, or (ii) notify Seller of its
intent to terminate this Agreement by written notice (the “Tenant Estoppel Termination Notice”) on or
before the Scheduled Closing Date.  In
the event that, after the Closing, Seller delivers to Purchaser a tenant
estoppel certificate from a tenant for whom Seller executed a Seller’s Estoppel
at the Closing and such tenant estoppel certificate contains no information
which is contradictory to or inconsistent with the information contained in the
Seller’s Estoppel, then Seller thereafter shall be released from all liability
relating to Seller’s Estoppel with respect to such tenant’s Lease.  In no event shall Seller be obligated to
deliver updates to the tenant estoppel certificate or Seller’s Estoppel.


 


10.1.2      Title Policy.  The Title Company shall be prepared to issue
to Purchaser on the Closing Date an extended coverage ALTA Form B policy of
title insurance, amended October 17, 1970 (the “Owner’s Policy”), or equivalent form Owner’s Policy acceptable
to Purchaser, with respect to each Property in the Properties, in the face
amount of the applicable Purchase Price attributable to such Property, and
dated as of the Closing Date,


 


20





















 


indicating title to such
Property is vested of record in Purchaser, subject solely to the applicable
Permitted Exceptions.


 


10.1.3      Possession of the Property.  Delivery by Seller of possession of the
applicable Property, subject to the Permitted Exceptions and the rights of
tenants under the applicable Leases and Approved New Leases.


 


ARTICLE XI


Closing


 


11.1        Purchaser’s
Closing Obligations.  Purchaser, at its sole cost and expense,
shall deliver or cause to be delivered to Seller and the Title Company at each
Closing the following, as same relates to the Properties:


 


11.1.1      The applicable portion of the Purchase
Price, after all adjustments are made at the Closing as herein provided, by
wire transfer or other immediately available federal funds, which amount shall
be received in escrow by the Title Company at or before 11:00 a.m. Central
time.


 


11.1.2      An assumption of a blanket conveyance and
bill of sale, substantially in the form attached hereto as Exhibit M (“General Assignment”), duly executed by
Purchaser, conveying and assigning to Purchaser the applicable Personal
Property, Leases, Contracts, records and plans, and Intangible Property.


 


11.1.3      Executed counterparts of the Master Lease
and the Amendment to Management Agreement with respect to the Closing, and such
other documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.1.4      Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings, if requested by the Title Company.


 


11.2        Seller’s
Closing Obligations.  Seller, at its sole cost and expense, shall
deliver or cause to be delivered to Purchaser and the Title Company the
following, as same relates to each of the Properties and the Properties, as the
case may be:


 


11.2.1      A Special warranty deed (a “Deed”) in recordable form properly executed
by Seller conveying to Purchaser the Land and Improvements in fee simple,
subject only to the Permitted Exceptions, substantially in the form attached
hereto as Exhibit N
(as modified in order to satisfy any State-specific requirements with respect
to the States of Indiana and Wisconsin, if applicable).


 


11.2.2      A General Assignment, duly executed by
Seller, conveying and assigning to Purchaser the Personal Property, the Leases,
the Contracts and the Intangible Property.


 


11.2.3      Written notice to the tenant(s) (i) acknowledging
the sale of the Property to Purchaser, (ii) acknowledging that Purchaser
has received and is responsible for any security deposits identified in the
rent roll, and (iii) indicating that rent should thereafter be paid to
Purchaser, substantially in the form attached hereto as Exhibit O.


 


21





















 


11.2.4      A certificate substantially in the form
attached hereto as Exhibit P
(“Non-foreign Entity Certification”)
certifying that Seller is not a “foreign person” as defined in the Code.


 


11.2.5      Executed counterparts of the Master Lease
and the Amendment to Management Agreement with respect to the Closing, and such
other documents to be provided in accordance with Sections 9.5 and 9.6
hereof with respect to the Closing.


 


11.2.6      Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings.


 


11.2.7      Purchaser and Seller have agreed that possession
(but not ownership) of all original Leases, tenant files and Contracts shall
remain with Seller following Closing, in its capacity as Property Manager but
that ownership of such items shall pass to Purchaser.  Any duplicate originals of Leases and
Contracts in Seller’s possession or control shall be delivered to Purchaser promptly
after Closing.


 


11.2.8      All REA Estoppel Certificates received by
Seller, if any.


 


11.2.9      A certificate of Seller by which Seller
reaffirms the truth and accuracy in all material respects of the
representations and warranties set forth in Sections 7.1 above, subject
to and setting forth any changes thereto occurring since the Effective Date.


 


11.2.10  Reliance letters with respect to and permitting
Purchaser to rely on the most recent Phase 1 environmental reports provided by
Seller to Purchaser from the consultant who prepared the applicable
environmental report.


 


11.3        Joint
Closing Obligations.  Purchaser
and Seller shall execute and deliver a closing statement for each of the
Properties setting forth the applicable Purchase Price, and any and all
prorations and credits between the parties, as determined pursuant to this
Agreement, together with real estate transfer tax declarations as required.


 


ARTICLE XII


Risk of Loss


 


12.1        Condemnation
and Casualty.  If, prior to the Closing Date, any portion of
the applicable Properties are taken by condemnation or eminent domain, or is
the subject of a pending taking which has not been consummated, or is destroyed
or damaged by fire or other casualty, Seller shall notify Purchaser of such
fact promptly after Seller obtains knowledge thereof.  If such condemnation or casualty is “Material” (as hereinafter defined),
Purchaser shall have the option to either (i) extend the Scheduled Closing
Date solely with respect to the applicable Property for a time reasonably
required by Seller to repair any damage or destruction with respect to the
applicable Property (and the Scheduled Closing Date shall proceed as scheduled
with respect to all other Properties), or (ii) proceed to Closing in
accordance with the terms of Section 12.1. If Purchaser elects to
proceed to Closing, then Seller shall not be obligated to repair any damage or
destruction with respect to the applicable Property, but (x) Seller shall
assign, without recourse, and turn over to Purchaser all of the insurance
proceeds or condemnation proceeds, as applicable, net of any costs of repairs
and net of reasonable collection costs (or, if such have not been awarded, all
of its right, title and interest therein) payable with respect to such fire or
other casualty or condemnation including any rent abatement insurance for such
casualty or condemnation and (y) the parties shall proceed to Closing pursuant
to the terms hereof without abatement of the Purchase Price except for a credit
in the amount of the applicable insurance deductible.


 


22





















 


12.2        Condemnation
Not Material.  If the condemnation is not Material, then the
Closing shall occur without abatement of the Purchase Price and, after
deducting Seller’s reasonable costs and expenses incurred in collecting any
award, Seller shall assign, without recourse, all awards or any rights to
collect awards to Purchaser on the Closing Date.


 


12.3        Casualty
Not Material.  If the Casualty is not Material, then the
Closing shall occur without abatement of the Purchase Price except for a credit
in the amount of the applicable deductible and Seller shall not be obligated to
repair such damage or destruction and Seller shall assign, without recourse,
and turn over to Purchaser all of the insurance proceeds net of any costs of
repairs completed to date and net of reasonable collection costs (or, if such
have not been awarded, all of its right, title and interest therein) payable
with respect to such fire or such casualty including any rent abatement
insurance for such casualty.


 


12.4        Materiality.  For
purposes of this Article XII, (i) with respect to a taking by
condemnation or eminent domain, the term “Material”
shall mean any condemnation or taking which would materially impede access to a
Property, reduce available parking at a Property below that required by
applicable law or any other agreement affecting such Property, result in the
termination of any Lease of more than ten percent (10%) of the space in the
applicable Property, or result in a condemnation award reasonably estimated to
exceed ten percent (10%) of the Purchase Price applicable to such Property; and
(ii) with respect to a casualty, the term “Material” shall mean any casualty such that the cost of
repair, as reasonably estimated by an engineer designated by Seller and
Purchaser, is in excess of ten percent (10%) of the Purchase Price applicable
to such Property.


 


ARTICLE XIII


Default


 


13.1        Default
by Seller.  IN THE EVENT THE CLOSING AND THE TRANSACTIONS
CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF ANY DEFAULT OF
SELLER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS AFTER WRITTEN NOTICE
FROM PURCHASER TO SELLER, IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO
ESTIMATE THE DAMAGES WHICH PURCHASER MAY SUFFER.  THEREFORE, THE PARTIES HAVE AGREED THAT A
REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT PURCHASER WOULD SUFFER IN
SUCH EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE PROCEEDS OF THE SELLER
LETTER OF CREDIT,  AS LIQUIDATED DAMAGES,
AS PURCHASER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT.  SUCH LIQUIDATED DAMAGES ARE NOT INTENDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE LAWS.  Notwithstanding the foregoing, nothing
contained herein shall limit Purchaser’s remedies at law or in equity, as to
the Surviving Termination Obligations.


 


13.2        Default
by Purchaser; Liquidated Damages.  IN THE EVENT THE CLOSING AND
THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON
OF ANY DEFAULT OF PURCHASER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS
AFTER WRITTEN NOTICE FROM SELLER TO PURCHASER, IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER.  THEREFORE, THE PARTIES HAVE AGREED THAT A
REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN SUCH
EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE PROCEEDS OF THE PURCHASE
LETTER OF CREDIT, AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE
REMEDY UNDER THIS AGREEMENT.  SUCH
LIQUIDATED DAMAGES ARE NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE
MEANING OF APPLICABLE LAWS.  Notwithstanding
the foregoing, nothing contained herein shall limit Seller’s remedies at law or
in equity, as to the Surviving Termination Obligations.


 


23





















 


ARTICLE XIV


Brokers


 


14.1        Brokers. 
Purchaser and Seller each represents and warrants to the other that it
has not dealt with any person or entity entitled to a brokerage commission,
finder’s fee or other compensation with respect to the transaction contemplated
hereby.  Purchaser hereby agrees to
indemnify, defend, and hold Seller harmless from and against any losses,
damages, costs and expenses (including, but not limited to, attorneys’ fees and
costs) incurred by Seller by reason of any breach or inaccuracy of the
Purchaser’s ( or its nominee’s) representations and warranties contained in
this Article XIV.  Seller hereby
agrees to indemnify, defend, and hold Purchaser harmless from and against any
losses, damages, costs and expenses (including, but not limited to, attorneys’
fees and costs) incurred by Purchaser by reason of any breach or inaccuracy of
Seller’s representations and warranties contained in this Article XIV.  The provisions of this Article XIV
shall survive the Closing and/or termination of this Agreement.


 


ARTICLE XV


Confidentiality


 


15.1        Confidentiality. 
Purchaser expressly acknowledges and agrees that the transactions
contemplated by this Agreement, the Documents that are not otherwise known by
or readily available to the public and the terms, conditions and negotiations
concerning the same shall be held in the strictest confidence by Purchaser and
shall not be disclosed by Purchaser except to a Purchaser Party/Representative,
and except and only to the extent that such disclosure may be necessary for its
performance hereunder.  Purchaser agrees
that it shall instruct each of its Purchaser Party/Representatives to maintain
the confidentiality of such information and at the request of Seller, to
promptly inform Seller of the identity of each such Purchaser
Party/Representative.  Purchaser further
acknowledges and agrees that, unless and until the Closing occurs, all
information and materials obtained by Purchaser in connection with the
Properties that are not otherwise known by or readily available to the public
will not be disclosed by Purchaser to any third persons (other than to its
Purchaser Party/Representatives) without the prior written consent of
Seller.  If the transaction contemplated
by this Agreement does not occur for any reason whatsoever, Purchaser shall
promptly return to Seller, and shall instruct its Purchaser
Party/Representatives to return to Seller, all copies and originals of all
documents and information provided to Purchaser.  Nothing contained in Section 5.2
of this Agreement or this Section 15.1 shall preclude or limit
either party from disclosing or accessing any information otherwise deemed
confidential under Section 5.2 or this Section 15.1 in
connection with the party’s enforcement of its rights following a disagreement
hereunder or in response to lawful process or subpoena or other valid or
enforceable order of a court of competent jurisdiction or any filings or
disclosures with any applicable Authorities (In the Unites States and/or
Australia) required by reason of the transactions provided for herein and/or
any filings or disclosures required in accordance with the laws or market rules (including
stock exchange rules) of the United States and/or Australia.  The provisions of this Section 15.1
shall survive any termination of this Agreement without limitation.


 


15.2        Post
Closing Publication.  Notwithstanding the foregoing, following
Closing, Purchaser and Seller shall have the right to announce the acquisition
of the Properties in newspapers and real estate trade publications (including “tombstones”)
publicizing the purchase provided that Purchaser and Seller shall consult one another
with respect to any such notice or publication, and shall implement any
reasonable comments or objections of the other. 
Seller may also publicize the sale of the Property in the ordinary
course of its business.  The provisions
of this Section 15.2 shall survive Closing and/or any termination
of this Agreement without limitation.


 


24





















 


ARTICLE XVI


1031 Exchange


 


16.1        1031
Exchange.  Purchaser
agrees to cooperate with Seller for purposes of effecting and structuring, in
conjunction with the sale of the Properties, for the benefit of Seller, a
like-kind exchange of real property, whether simultaneous or a deferred
exchange, pursuant to Section 1031 of the Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder.  Purchaser specifically agrees to execute such
documents and instruments as are reasonably necessary to implement such an
exchange.  Seller shall be solely
responsible for assuring that the structure of any proposed exchange is
effective for Seller’s tax purposes. 
Furthermore, Purchaser specifically agrees that Seller may assign this
Agreement and any of its rights or obligations hereunder, in whole or in part,
as necessary or appropriate in furtherance of effectuating a Section 1031
like-kind exchange for the Properties, provided that such assignment shall not
serve to relieve Seller of any liability for Seller’s obligations
hereunder.  Purchaser shall have no
obligation to pay costs or expenses of effectuating such exchange, no such
exchange shall alter the time for performance set forth herein, and Purchaser
shall not be required to take title to any exchange property or (except for
customary consent to assignment of this Agreement to an exchange intermediary)
to incur obligations to third parties.


 


ARTICLE XVII


Miscellaneous


 


17.1        Notices.  Any
and all notices, requests, demands or other communications hereunder shall be
in writing and shall be deemed properly served (i) on the date sent if
transmitted by hand delivery with receipt therefor, (ii) on the date sent
if transmitted by facsimile (with confirmation by hard copy to follow by
overnight delivery service), (iii) on the date sent if scanned to a .pdf
file and transmitted by e-mail (with confirmation by hard copy to follow by
overnight delivery service) (iv) on day after the notice is deposited with
a nationally recognized overnight courier, or (v) upon receipt after being
sent by registered or certified mail, return receipt requested, first class
postage prepaid, addressed as follows (or to such new address as the addressee
of such a communication may have notified the sender thereof):


 


 


	
  To Purchaser:

  	
   

  	
  CenterPoint James
  Fielding, LLC

  Level 5, 40 Miller Street

  North Sydney, NSW 2060

  Australia

  Attn: Mr. Ben Hindmarsh

  Fax No.: 61 2 9004 8462

  E-Mail: benhindmarsh@mirvac.com.au

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Wildman Harrold
  Allen & Dixon LLP

  225 W. Wacker Drive, Suite 3000

  Chicago, Illinois 60606

  Attn: Kathleen M. Gilligan, Esq.

  Fax No.: (312) 201-2555

  E-Mail: gilligan@wildmanharrold.com

  



 


25





















 


	
  To Seller:

  	
   

  	
  CenterPoint Properties
  Trust

  1808 Swift Drive

  Oak Brook, Illinois 60523

  Attn:       Mr. James N. Clewlow

  and Mr. Michael M. Mullen

  Fax No.: (630) 586-8010

  E-Mail: jclewlow@centerpoint-prop.com

  E-Mail: mmullen@centerpoint-prop.com

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Weinberg Richmond LLP

  333 West Wacker Drive, Suite 1800

  Chicago, Illinois 60606

  Attn: Mark S. Richmond, Esq.

  Fax No.: (312) 807-3903

  E-Mail: mrichmond@wr-llp.com

  



 


17.2        Governing
Law.  This Agreement shall be governed by and
construed in accordance with the internal, substantive laws of the State of
Illinois, without regard to the conflict of laws principles thereof.


 


17.3        Headings.  The
captions and headings herein are for convenience and reference only and in no
way define or limit the scope or content of this Agreement or in any way affect
its provisions.


 


17.4        Effective
Date.  This Agreement shall be effective upon
delivery of this Agreement fully executed by the Seller and Purchaser, which date
shall be deemed the Effective Date hereof. 
Either party may request that the other party promptly execute a
memorandum specifying the Effective Date.


 


17.5        Business
Days.  If any date herein set forth for the
performance of any obligations of Seller or Purchaser or for the delivery of
any instrument or notice as herein provided should be on a Saturday, Sunday or
legal holiday, the compliance with such obligations or delivery shall be deemed
acceptable on the next business day following such Saturday, Sunday or legal
holiday.  As used herein, the term “legal
holiday” means any state or Federal holiday for which financial institutions or
post offices are generally closed in the state where the Property is located.


 


17.6        Counterpart
Copies.  This Agreement may be executed in two or more
counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this Agreement.


 


17.7        Binding
Effect.  This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns.


 


17.8        Assignment. 
Purchaser shall not have the right to assign this Agreement without
Seller’s prior written consent, which consent may be given or withheld in
Seller’s sole and absolute discretion; provided, however, Purchaser may
designate a wholly owned subsidiary to acquire title to the Properties at
Closing or assign its right, title and interest under this Agreement to a
wholly owned subsidiary, provided that in no event will Purchaser be released
from any of its obligations or liabilities under this Agreement.  Seller may assign this Agreement in whole or
in part to any corporate, limited liability company or partnership entity
affiliated with, or related to, Seller (“Affiliate”)
without Purchaser’s consent; provided that Seller shall in no event be released
from any of its obligations or liabilities hereunder as a result of any such
assignment.  In the event that an
Affiliate shall be designated as a transferee hereunder, the Affiliate shall
have the benefit of all of the


 


26





















 


representations and rights that would
otherwise have run in favor of Seller, which, by the terms of this Agreement,
are incorporated or relate to the conveyance in question.  All transferees and assignees of Purchaser (“Assignee”) shall assume all of Purchaser’s
obligations under this Agreement pursuant to an Assignment and Assumption
Agreement reasonably acceptable to Seller, and consented to in writing by
Seller.  In the event the rights and
obligations of Purchaser shall be transferred, assigned and assumed as
permitted under this Agreement, then such Assignee will be substituted in place
of such assignor in the above-provided-for documents and it shall be entitled
to the benefit of and may enforce Seller’s covenants, representations and
warranties hereunder provided that Purchaser shall in no event be released from
any of its obligations or liabilities hereunder as a result of such
assignment.  Upon any such assignment by
Purchaser or any successor or assign of Purchaser, then the assignor’s
liabilities and obligations hereunder or under any instruments, documents or
agreements made pursuant hereto shall be binding upon Assignee; provided,
however, that Assignee shall have the benefit of any limitations of such
liabilities and obligations applicable to either the assignor or Assignee,
provided by law or by the terms hereof or such instruments, documents or
agreements.  Whenever reference is made
in this Agreement to Seller or Purchaser, such reference shall include the
successors and assigns of such party under this Agreement.  Purchaser may assign this Agreement for
collateral purposes only to Purchaser’s lender.


 


17.9        Interpretation.  This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that both Seller and
Purchaser have contributed substantially and materially to the preparation of
this Agreement.


 


17.10      Entire
Agreement.  This Agreement and the Exhibits attached
hereto contain the final and entire agreement between the parties hereto with
respect to the sale and purchase of the Property and are intended to be an
integration of all prior negotiations and understandings.  Purchaser, Seller and their agents shall not
be bound by any terms, conditions, statements, warranties or representations,
oral or written, not contained herein. 
No change or modifications to this Agreement shall be valid unless the
same is in writing and signed by the parties hereto.  Each party reserves the right to waive any of
the terms or conditions of this Agreement which are for their respective
benefit and to consummate the transaction contemplated by this Agreement in
accordance with the terms and conditions of this Agreement which have not been
so waived.  Any such waiver must be in
writing signed by the party for whose benefit the provision is being waived.


 


17.11      Severability.  If
any one or more of the provisions hereof shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


17.12      Survival. 
Except for obligations that survive the Closing pursuant to the
provisions of Sections (and related subparagraphs) 4.2, 5.1, 5.2,
5.3, 6.2, 7.4, 7.5, 7.6, 8.3, 8.4,
9.4, 9.9, 9.11, 10.2, 14.1, 15.1, 15.2,
17.15, 17.16,  17.20 and 17.23 (collectively, the “Surviving Termination Obligations”), the
provisions of this Agreement and the representations and warranties herein
shall not survive after the conveyance of title and payment of the Purchase
Price but be merged therein.


 


17.13      Exhibits
and Schedules.  Exhibits
A through S
and Schedules 7.1.4 through 9.12 attached hereto are incorporated herein by
reference.


 


17.14      Time.  Time
is of the essence in the performance of each of the parties’ respective
obligations contained herein.


 


27





















 


17.15      Limitation
of Liability.  No present or future partner, member, manager,
director, officer, shareholder, employee, advisor, affiliate or agent of or in
Purchaser or any affiliate of Purchaser shall have any personal liability,
directly or indirectly, under or in connection with this Agreement or any
agreement made or entered into under or in connection with the provisions of
this Agreement, or any amendment or amendments to any of the foregoing made at
any time or times, heretofore or hereafter, and Seller and its successors and
assigns and, without limitation, all other persons and entities, shall look
solely to Purchaser’s assets for the payment of any claim or for any
performance, and Seller hereby waives any and all such personal liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Purchaser shall constitute an asset of Purchaser.  The limitations of liability contained in this
Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Purchaser provided elsewhere in this Agreement or by
law or by any other contract, agreement or instrument.  All documents to be executed by Purchaser shall
also contain the foregoing exculpation.


 


No present or future
partner, member, director, officer, shareholder, employee, advisor, affiliate
or agent of or in Seller or any affiliate of Seller shall have any personal
liability, directly or indirectly, under or in connection with this Agreement
or any agreement made or entered into under or in connection with the
provisions of this Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and Purchaser and
its successors and assigns and, without limitation, all other persons and
entities, shall look solely to Seller’s assets for the payment of any claim or
for any performance, and Purchaser hereby waives any and all such personal
liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Seller shall constitute an asset of Seller.  The limitations of liability contained in this
Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Seller provided elsewhere in this Agreement or by law
or by any other contract, agreement or instrument.  All documents to be executed by Seller shall
also contain the foregoing exculpation.  The
provisions of this Section 17.15 shall survive Closing and/or any
termination of this Agreement.


 


17.16      Prevailing
Party.  Should either party employ an attorney to
enforce any of the provisions hereof, (whether before or after Closing, and
including any claims or actions involving amounts held in escrow), the
non-prevailing party in any final judgment agrees to pay the other party’s
reasonable expenses, including reasonable attorneys’ fees and expenses in or
out of litigation and, if in litigation, trial, appellate, bankruptcy or other
proceedings, expended or incurred in connection therewith, as determined by a
court of competent jurisdiction.  The
provisions of this Section 17.16 shall survive Closing and/or any
termination of this Agreement.


 


17.17      No
Recording.  Neither this Agreement nor any memorandum or
short form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.


 


17.18      Waiver of
Trial by Jury.  The respective parties hereto shall and
hereby do waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Agreement, or for the
enforcement of any remedy under any statute, emergency or otherwise.


 


17.19      Cooperation between Seller and
Purchaser.  Seller agrees to reasonably cooperate with
Purchaser in connection with the preparation and delivery of any Subordination,
Non-Disturbance and Attornment Agreements required by Purchaser’s lenders in
connection with the closing of the transaction described herein.


 


17.20      Further
Assurances.  Each party shall, from time to time, at the
request of the other party, and without further consideration, execute and
deliver such further instruments and


 


28





















 


take such further action as
may be required or reasonably requested by either party to establish, maintain
or protect the respective rights of the parties to carry out and effect the
intentions and purposes of this Agreement.


 


17.21      Return of
Deposit.  Notwithstanding anything to the contrary
contained in this Agreement, whenever this Agreement provides that the Deposit
shall be delivered or returned to Purchaser, the parties acknowledge and agree
that said Deposit or a portion thereof shall remain with the Escrow Agent in
the event that Purchaser has failed to comply with the provisions of this
Agreement.  Notwithstanding anything to
the contrary contained in this Section 17.21, Seller agrees that if
the provisions of this Agreement provide for the return of the Deposit to
Purchaser that Seller will not unreasonably withhold its consent to the return
of the Deposit to Purchaser. 
Notwithstanding anything to the contrary contained in this Section 17.21,
Purchaser agrees that if the provisions of this Agreement provide for the
return of the Seller Earnest Money to Seller that Purchaser will not
unreasonably withhold its consent to the return of the Seller Earnest Money to
Seller.


 


17.22      Other
Agreements.  Seller and Purchaser have a business
relationship with each other and in connection therewith Seller and Purchaser
have entered into various other agreements as of the date hereof (“Other Agreements”).  A default by either party under any Other
Agreement not cured within any applicable cure period shall be deemed to be a
default by such party under this Agreement.


 


17.23      Seller Environmental Obligations. 
Notwithstanding anything to the contrary contained in this Agreement, based
on conditions existing as of the Effective Date, Seller agrees to conduct and
complete, for Purchaser’s benefit and solely at Seller’s expense except as
provided below, all investigation and remediation measures necessary for Seller
to obtain (a) with respect to the Properties identified on Exhibit S, a No Further
Remediation (“NFR”) letter from
the Illinois Environmental Protection Agency, and (b) with respect to the
Properties identified on Exhibit S,
a Certificate of Completion in the Voluntary Remediation Program administered
by the Indiana Department of Environmental Management and a Covenant Not to Sue
from the office of the Governor of Indiana (the NFR Letter, the Certificates of
Completion, the Covenants Not to Sue, and all other necessary closure
certification records shall be referred to collectively herein as the “Completion Documents”).


 


17.23.1    Schedule.  Seller shall act with diligence in conducting
investigation and remediation measures, in pursuing issuance of the Completion
Documents, and in complying with any applicable requirements of the respective
state voluntary cleanup program, including without limitation the following, to
the extent required by the respective state voluntary cleanup program: causing
the Completion Documents to be recorded in the property records and filed with
governmental agencies, and notifying third parties such as off-site landowners.
Seller shall make reasonable efforts to cause the Completion Documents to be
issued by no later than the LLC Expiration Date (as defined in that certain
Limited Liability Company Agreement of even date herewith by and between
CenterPoint Properties Trust and JF US Industrial Property Trust).  If Seller fails to cause the Completion
Documents to be issued by no later than the LLC Expiration Date for any
individual Property (“NFR Substitution Event”),
Purchaser may, at its option, by written notice to Seller within thirty (30)
days after the occurrence of an NFR Substitution Event, request that Seller
offer a Substitute Property in accordance with Section 9.9.2 above (“NFR Substitution Notice”); provided,
however, in the event that Purchaser elects to have Seller provide a Substitute
Property, Seller, if it chooses to do so, in its sole and absolute discretion,
shall have a period of thirty (30) days from the date Seller is given the NFR
Substitution Notice to obtain the Completion Documents, and further, provided,
however, if the Completion Documents are not capable of being obtained within
said thirty (30) day period through no fault of Seller and Seller has commenced
to obtain the Completion Documents within such thirty (30) day


 


29





















 


period,
then Seller shall have such reasonable period of time from and after the date
of the NFR Completion Notice to obtain the Completion Documents; provided, further,
that such additional period shall not extend beyond the date of the Closing
with respect to the Substitute Property. 
In the event Seller cures the condition giving rise to the NFR
Substitution Event prior to the time that a Closing with respect to the
Substitute Property occurs, the Scheduled Closing Date for the Removed Property
shall be extended to the fifteenth (15th) day after the condition
giving rise to the NFR Substitution Event has been cured.


 


In
the event Seller does not obtain the Completion Documents within the time
periods referenced above, Seller shall repurchase the Property in question at
such time as Purchaser acquires a Substitute Property.  Seller shall repurchase the Removed Property
for the same price paid by Purchaser to purchase such Property from Seller and
Seller shall repurchase such Property on the same terms and conditions of this
Agreement applicable to Purchaser’s acquisition of a Substitute Property. Seller
shall be obligated to repurchase the Property in question only if Purchaser
agrees to purchase the Substitute Property, and Purchaser and Seller shall
agree to close on both transactions on the same day at the same time.  Seller and Purchaser agree to follow the same
terms, conditions and procedures for purposes of this exchange as are generally
consistent with Sections 9.9.5, 9.9.6, 9.9.7 and 9.9.8 of this
Agreement.


 


17.23.2    Cooperation.  From and after the Effective Date of this
Agreement, Seller and Purchaser shall cooperate with each other to facilitate
the successful completion of the voluntary remediation process for each
Property.  Seller and Purchaser shall
consult in good faith about all draft workplans and proposed submissions to
regulatory authorities, and Seller shall make changes reasonably requested by
Purchaser.  Seller shall provide at least
two (2) Business Days advance written notice of entry onto a Property and
identify the general nature of the work to be performed and the portion(s) of
the Property on which the work will be performed.  To the extent practical, Seller shall provide
advance notice to Purchaser of, and shall allow Purchaser to participate in,
meetings and telephone conferences with regulatory authorities.  Seller shall provide Purchaser with a copy of
all test results, final submissions to regulatory agencies and final documents
received from such agencies within a reasonable period of time after they are
received or created by Seller.


 


17.23.3    Scope of Testing Activities.  Pursuant to this Section 17.23,
Seller shall conduct initial testing sufficient to reasonably identify all
potential contaminants of concern materially related to the industrial/commercial
use at the Properties (reasonably taking into consideration potentially
significant environmental conditions indicated in Phase 1 reports or in prior
testing).  Subsequent testing shall be
conducted by Seller as reasonably necessary to satisfy regulatory authorities
for issuance of the Completion Documents.


 


17.23.4    Institutional Controls.  The Completion Documents may be qualified or
conditioned by institutional controls (e.g., deed restrictions, engineered
barriers) to the extent such controls are consistent with the Properties’
industrial/commercial use as of the Effective Date and are necessary for
issuance of the Completion Documents; provided, however, Seller shall have sole
discretion to select the remedial approach for obtaining the Completion
Documents.  Any such institutional
controls are subject to Purchaser’s review and approval, which approval shall
not be unreasonably withheld.


 


17.23.5    Execution of Documents.  Solely relating to and limited by Seller’s
obligations as set forth in Article 17 hereto, Seller shall arrange
for any offsite disposal of hazardous substances, required in order to obtain
the Completion Documents, and shall execute all manifests and similar
documents, reflecting itself or its designee as the generator of such hazardous
substances, and in no event shall Seller name or identify Purchaser as the
generator of such hazardous substances; provided, however, the Seller has no
duty or


 


30





















 


obligation whatsoever for
any hazardous substances transported to, released upon or generated by
Purchaser, its agents, representatives and assigns, at, on, beneath or adjacent
to the Properties. Purchaser shall execute other documents reasonably requested
by Seller that are necessary and consistent with this Section 17.23.


 


17.23.6    Access. Purchaser shall provide
necessary access to Seller to carry out the provisions of this section.  Seller shall use all reasonable efforts to
avoid any disruption of tenant activities, and shall promptly repair at Seller’s
sole cost and expense any damage caused by its investigation or remediation
activities.


 


17.23.7    Indemnification. Until the earlier of
the date the Seller procures and provides to Purchaser the requisite Completion
Documents as set forth herein for each Property, or an appropriate substitute
is exchanged pursuant to Section 17.23.1 hereof, Seller shall
protect, defend, indemnify and hold Purchaser harmless from and against any
claim or loss arising out of (a) any investigation, remediation or
disposal activities conducted by Seller or its agents pursuant to this Section 17.23,
and (b) any failure by Seller to obtain the Completion Documents as
provided in this section.


 


17.23.8    Voidance. In the event any of the
Completion Documents are voided as a result of any fraudulent misrepresentation
or other fraudulent act or omission of Seller, Seller shall be responsible for
implementing at its expense any measures necessary to have the Completion
Documents reinstated.


 


17.23.9    Assignment.  To the extent allowed by contract and law,
Seller shall use reasonable efforts to assign to Purchaser its environmental
rights under current vendor and tenant agreements, including all indemnities,
escrows, representations, and warranties (“Seller’s Environmental Rights”).  Where Seller is unable to assign Seller’s
Environmental Rights, Seller will use commercially reasonable efforts to
enforce such rights on behalf of Purchaser (at Purchaser’s expense).


 


17.23.10  Survival.  The terms of this Section 17.23
shall expressly survive, without limitation, the Closing.


 


17.24      Currency. All payments and amounts referenced or
described in this Agreement shall be deemed to require payments in and refer to
amounts in the currency of the United States of America.


 


17.25      Facsimile
Signatures. The
parties hereto agree that the use of facsimile signatures for the execution of
this Agreement shall be legal and binding and shall have the same force and
effect as if originally signed.


 


[remainder
of page intentionally left blank]


 


31





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the
date or dates set forth below.


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT
  JAMES FIELDING, LLC,
  a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
   /s/ Adrian Harrington

  
	
   

  	
   

  	
  Name:

  	
  Adrian Harrington

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Adrienne Parkinson

  
	
   

  	
   

  	
  Name:

  	
  Adrienne Parkinson

  
	
   

  	
   

  	
  Title:

  	
  Assistant Secretary

  
	
   

  	
   

  
	
   

  	
  Date: April 6, 2005

  
	
   

  	
   

  
	
   

  	
  Tax I.D. # 98-0450460

  
	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT
  PROPERTIES TRUST, a
  Maryland

  real estate investment trust

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Michael M. Mullen

  
	
   

  	
   

  	
  Name:

  	
  Michael M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ James N. Clewlow

  
	
   

  	
   

  	
  Name:

  	
  James N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Chief Investment Officer

  
	
   

  	
   

  
	
   

  	
  Date: April 6, 2005

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT
  VENTURE, LLC, a
  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Michael M. Mullen

  
	
   

  	
   

  	
  Name:

  	
  Michael M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ James N. Clewlow

  
	
   

  	
   

  	
  Name:

  	
  James N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date: April 6, 2005

  
					



 


32





















 


	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Properties

  
	
  Exhibit B-1 - B-3

  	
   

  	
  Legal Descriptions

  
	
  Exhibit C-1 - C-3

  	
   

  	
  Schedule of Leases

  
	
  Exhibit D -

  	
   

  	
  Intentionally Deleted

  
	
  Exhibit E -

  	
   

  	
  Escrow Agreement

  
	
  Exhibit F -

  	
   

  	
  Documents

  
	
  Exhibit G-1 - G-3

  	
   

  	
  Permitted Exceptions

  
	
  Exhibit H-

  	
   

  	
  Master Lease

  
	
  Exhibit I -

  	
   

  	
  Intentionally Deleted

  
	
  Exhibit J -

  	
   

  	
  Intentionally Deleted

  
	
  Exhibit K -

  	
   

  	
  Tenant Estoppel
  Certificate

  
	
  Exhibit L -

  	
   

  	
  Seller’s Estoppel Certificate

  
	
  Exhibit M -

  	
   

  	
  General Assignment

  
	
  Exhibit N -

  	
   

  	
  Deed

  
	
  Exhibit O -

  	
   

  	
  Notice of Sale to Tenant

  
	
  Exhibit P -

  	
   

  	
  Non-Foreign Entity
  Certification

  
	
  Exhibit Q -

  	
   

  	
  Survey Certification

  
	
  Exhibit R -

  	
   

  	
  Planned Expenditures

  
	
  Exhibit S -

  	
   

  	
  NFR Properties

  
	
   

  
	
  Schedules

  
	
  7.1.4

  	
   

  	
  -

  	
   

  	
  No Violations of Laws

  
	
  7.1.5

  	
   

  	
   

  	
   

  	
  Eminent Domain

  
	
  7.1.6

  	
   

  	
   

  	
   

  	
  Hazardous Material

  
	
  7.1.7

  	
   

  	
   

  	
   

  	
  Litigation

  
	
  7.1.8

  	
   

  	
   

  	
   

  	
  Leases

  
	
  7.1.9

  	
   

  	
   

  	
   

  	
  Contracts

  
	
  7.1.10

  	
   

  	
   

  	
   

  	
  Defaults

  
	
  9.8

  	
   

  	
   

  	
   

  	
  Purchase Price Schedule

  
	
  9.10

  	
   

  	
   

  	
   

  	
  Contracts

  
	
  9.12

  	
   

  	
   

  	
   

  	
  REA Estoppels

  
							



 


33





















 


TRANCHE 4


 


SALE AGREEMENT


 


THIS SALE AGREEMENT (“Agreement”) is made and
entered into as of the 6th day of April, 2005, by and between CENTERPOINT PROPERTIES TRUST, a Maryland
real estate investment trust (“CNT”),
and CENTERPOINT VENTURE, LLC, a
Delaware limited liability company (“Venture”,
and CNT and Venture are hereinafter collectively referred to as “Seller”), and CENTERPOINT JAMES FIELDING, LLC, a Delaware limited liability
company (“Purchaser”).


 


In consideration of the
mutual promises, covenants and agreements hereinafter set forth and of other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Purchaser agree as follows:


 


ARTICLE I


Sale of Properties


 


1.1          Sale of
Properties.  CNT, as to the properties listed on Exhibit A-l attached hereto, and
Venture, as to the properties listed on Exhibit A-2
attached hereto, agree to sell, assign and convey to Purchaser, or cause to be
sold, assigned and conveyed to Purchaser, in the event that one or more of the
Properties is currently owned by an entity affiliated with CNT (hereinafter
collectively referred to as “CNT Affiliates”),
and Purchaser agrees to purchase from Seller, the following:


 


1.1.1        Land and Improvements.  That certain real property commonly described
on Exhibits A-1 and A-2,
respectively, being more particularly described on Exhibits B-1 through B-4, respectively, attached
hereto (collectively, the “Land”),
together with any improvements located thereon (collectively, the “Improvements”);


 


1.1.2        Leases.  All of Seller’s or CNT Affiliates’, as the
case may be, right, title and interest, if any, in and to all leases,
subleases, licenses and other occupancy agreements, together with any and all
amendments, modifications or supplements thereto (hereafter referred to
collectively as the “Leases”),
being more particularly described on Exhibits
C-1 through C-4,
respectively, attached hereto, and all prepaid rent attributable to the period
following Closing, as herein defined, and subject to Section 4.2.4
below, the security deposits under such Leases (collectively, the “Leasehold Property”);


 


1.1.3        Real Property.  All of Seller’s or CNT Affiliates’, as the
case may be, right, title and interest, if any, in and to all easements and
appurtenances to Seller’s or CNT Affiliates’, as the case may be, interest in
the Land and the Improvements, including, without limitation, all mineral and
water rights and all easements, licenses, covenants and other rights-of-way or
other appurtenances used in connection with the beneficial use or enjoyment of
the Land and the Improvements (the Land, the Improvements and all such
easements and appurtenances are sometimes collectively referred to as the “Real Property”);


 


1.1.4        Personal Property.  All personal property (including equipment),
if any, owned by Seller or CNT Affiliates, as the case may be, and located on
the Real Property as of the date hereof, and all fixtures, if any, located on
the Real Property as of the date hereof or as of the Closing Date
(collectively, the “Personal Property”);
and


 





















 


1.1.5        Intangible Property.  All of Seller’s or CNT Affiliates’, as the
case may be, right, title and interest, if any, in and to all service,
equipment, supply and maintenance contracts (collectively, the “Contracts”), guarantees, licenses, side
track agreements (and other agreements including leasehold agreements attendant
to the Property), approvals, utility contracts, plans and specifications,
governmental approvals and development rights, certificates, permits and
warranties (and including all escrows, indemnities, representations, warranties
and guarantees Seller received from any and all vendors from when Seller
acquired the Properties), including, without limitation environmental insurance
policies (to the extent same can be assigned with a reservation of rights for
the benefit of Seller as well) and other environmental escrows other than the
two Properties located in Hammond, Indiana and indemnities (to the extent same
can be assigned with a reservation of rights for the benefit of Seller as well)
if any) relating to the Real Property or the Personal Property, to the extent
assignable (collectively, the “Intangible
Property”).  (For each
individual parcel, the Real Property, the Leasehold Property, the Personal
Property and the Intangible Property are sometimes collectively hereinafter
referred to as the “Property”, and
for all parcels, taken together, the Real Property, the Leasehold Property, the
Personal Property and the Intangible Property are collectively referred to as
the “Properties”).  It is hereby acknowledged by the parties that
Seller shall not convey to Purchaser claims relating to any real property tax
refunds or rebates for periods accruing prior to the Closing, to the extent
such taxes have been paid by Seller prior to the Closing, existing insurance
claims and any existing claims against previous tenants of the Properties,
which claims are hereby reserved by Seller, subject to the terms and provisions
of Section 4.2.4 below.


 


ARTICLE II


Purchase Price


 


2.1          Purchase
Price.  Subject to the provisions of Section 9.9
below, the purchase price for the Properties shall be Thirty-Four Million Six
Hundred Thousand and No/100 Dollars ($34,600,000.00) (“Purchase Price”) in currency of the United
States of America. The Purchase Price, as adjusted by all prorations as
provided for herein, shall be paid by Purchaser at Closing as directed by the
Seller by wire transfer of immediately available federal funds of The United
States of America.


 


ARTICLE III


Deposit


 


3.1          Purchaser
Deposit.  Purchaser will deposit a Fifteen Million and
No/100 Dollars ($15,000,000.00) Letter of Credit (“Purchaser Letter of Credit”) on the date of the first Closing
to occur under any of the Sale Agreements (defined below) with Chicago Title
Insurance Company (“Escrow Agent”
or “Title Company”).  The Purchaser Letter of Credit shall be held
by Escrow Agent pursuant to an Escrow Agreement in the form attached hereto as Exhibit E modified to conform to
the terms of this Agreement and as required by Title Company when Title Company
holds a letter of credit (“Escrow Agreement”).  The Purchaser Letter of Credit shall (i) be
unconditional and irrevocable, (ii) be in a form reasonably acceptable to
Seller, (iii) be issued by a financial institution doing business in the
United States of America, with offices in Chicago, Illinois and (iv) expire
no earlier than March 15, 2006.  The
cost of issuing and maintaining the Purchaser Letter of Credit shall be paid by
Seller and Seller’s failure to do so shall not be a breach or a default by
Purchaser under this Agreement or any Other Agreements (as defined in Section 17.22
below) nor shall Seller have any right to direct Escrow Agent to draw upon the
Purchaser Letter of Credit as a result of Seller’s failure as aforesaid.  The Purchaser Letter of Credit and the
proceeds of the Purchaser Letter of Credit (“Purchaser
Proceeds”) have been


 


2





















 


provided
to assure performance and observance by Purchaser of all of its closing
obligations under this Agreement and five (5) other sale agreements
entered into by and between Seller and Purchaser and dated of even date
herewith relating to the sale of properties by Seller to Purchaser (this Agreement
and the other five (5) Sale Agreements are herein collectively referred to
as the “Sale Agreements”).   Accordingly, in the event of the occurrence
of a default under Section 13.2 of this Agreement or any of the
other Sale Agreements or in the event that the Purchaser Letter of Credit will
expire within thirty (30) days or less, Seller shall have the right to direct
Escrow Agent to draw upon the Purchaser Letter of Credit.  All Purchaser Proceeds received by Escrow
Agent shall be retained by Escrow Agent and held or disbursed pursuant to the
terms of the Escrow Agreement and this Agreement.  At the time of the final Closing of all
Properties, including, but not limited to, Substitute Properties (defined
below) under all of the Sale Agreements, the Purchaser Letter of Credit shall
be delivered to Purchaser.  In the event
any Closing under any of the Sale Agreements does not occur through no fault of
Purchaser, Purchaser Letter of Credit shall be returned to Purchaser.


 


3.2          Seller’s
Deposit.  Seller will deposit a Three Million and
No/100 Dollars ($3,000,000.00) Letter of Credit (“Seller Letter of Credit”) on the date of the first Closing to
occur under the Sale Agreements with Escrow Agent.  The Seller Letter of Credit shall be held by
Escrow Agent pursuant to an Escrow Agreement in the form attached hereto as Exhibit E modified to conform to
the terms of this Agreement and as required by Title Company when Title Company
holds a letter of credit.  The Seller
Letter of Credit shall (i) be unconditional and irrevocable, (ii) be
in a form reasonably acceptable to Purchaser, (iii) be issued by a
financial institution doing business in the United States of America, with
offices in Chicago, Illinois and (iv) expire no earlier than March 15,
2006.  The cost of issuing and
maintaining the Seller Letter of Credit shall be paid by Seller.  The Seller Letter of Credit and the proceeds
of the Seller Letter of Credit have been provided to assure performance and
observance by Seller of all of its closing obligations under the Sale
Agreements.  Accordingly, in the event of
the occurrence of a default under Section 13.1 of this Agreement or
any of the other Sale Agreements or in the event that the Seller Letter of
Credit will expire within thirty (30) days or less, Purchaser shall have the
right to direct Escrow Agent to draw upon the Seller Letter of Credit.  All Proceeds received by Escrow Agent shall
be retained by Escrow Agent and held or disbursed pursuant to the terms of the
Escrow Agreement and this Agreement.  At
the time of the final Closing of all Properties, including, but not limited to,
Substitute Properties under all of the Sale Agreements, the Seller Letter of
Credit shall be delivered to Seller.  In
the event any Closing under any of the Sale Agreements does not occur through
no fault of Seller, Seller Letter of Credit shall be returned to Seller.


 


ARTICLE IV


Closing, Prorations and Closing Costs


 


4.1          Closing.  The
closing of the purchase and sale of the Properties shall occur on or before
10:00 a.m. Central time on February 1, 2006 (the “Scheduled Closing Date”) and shall be held
at the offices of Escrow Agent, or at such other place agreed to by Seller and
Purchaser (said closing is hereinafter referred to as the “Closing”). 
Notwithstanding anything to the contrary contained in this Section 4.1,
Seller or Purchaser, as the case may be, shall have the right to extend the
closing date for one or more of the Properties in accordance with the
provisions of Sections 9.9, 10.1 and 12.1 hereof.  “Closing” shall be deemed to have occurred
when the Title Company has been instructed by both parties to pay the
applicable portion of the Purchase Price to Seller and to record the applicable
Deeds, as hereunder defined.  The date of
the Closing is sometimes referred to in this Agreement as a “Closing Date.”  The transactions contemplated by this
Agreement shall be closed through an escrow with Escrow Agent on the Closing
Date, in accordance with the


 


3





















 


general
provisions of the usual form “New York Style” Deed and Money Escrow Agreement
used by Escrow Agent, with such provisions required to conform to the terms of
this Agreement.


 


4.2          Prorations.  All
matters involving prorations or adjustments to be made in connection with
Closing and not specifically provided for in some other provision of this
Agreement shall be adjusted in accordance with this Section 4.2.  Except as otherwise set forth herein, all
items to be prorated pursuant to this Section 4.2 shall be prorated
as of midnight of the day immediately preceding a Closing Date, with Purchaser
to be treated as the owner of the applicable Properties, for purposes of
prorations of income and expenses, on and after a Closing Date.


 


4.2.1        Taxes.  Subject to the provisions of this Section 4.2.1,
real estate and personal property taxes, if any, accrued, but not yet due and
owing as of the Closing and installments of special assessments, if any, due
and owing during the installment year in which the Closing occurs (hereinafter
collectively referred to as “Taxes”)
shall be prorated as of the Closing Date, and, notwithstanding any other
provision contained in this Agreement, shall not be reprorated.  Seller shall pay all Taxes due and payable as
of the Closing Date.  If the Taxes have
not been set for the year in which Closing occurs or any prior year, then the
proration of such Taxes shall be based upon the most recent ascertainable tax
bills.  Notwithstanding any other
provision of this Agreement, (a) there shall be no proration of Taxes with
respect to tenants whose leases obligate said tenants to pay Taxes when the tax
bills are issued, and (b) the amount otherwise due Purchaser under this Section 4.2.1
shall be reduced by an amount equal to all tenant deposits held by Seller for
Taxes at the time of Closing (collectively, the “Tenant Tax Deposits”) and the Tenant Tax Deposits shall be
turned over to Purchaser at Closing. 
Tenant Tax Deposits received by Seller following Closing for any period
of time after Closing shall be paid to Purchaser.  The amount due under this Section 4.2.1
shall not be credited to Purchaser at Closing but shall be deposited into the
operating account for the Properties and held by Seller as property manager
pursuant to the Management Agreement described in Section 9.6
below.


 


Seller
shall contest real estate taxes and/or assessment levels, as the case may be,
prior to Closing if Seller deems reasonable in its judgment as a commercially
prudent owner of real estate.  All costs
incurred in connection with such contest shall be paid by the parties in
proportion to benefit received by the parties in connection with any reduction
of such real estate taxes or assessments as the case may be.


 


4.2.2        Insurance.  Seller shall assign its existing insurance
policies to Purchaser upon Closing. 
Purchaser shall be named as a named insured thereon and all premiums
with respect thereto shall be prorated between the parties as of Closing.


 


4.2.3        Utilities.  Purchaser and Seller hereby acknowledge and
agree that the amounts of all electric, sewer, water and other utility bills,
trash removal bills, janitorial and maintenance service bills and all other
operating expenses relating to the applicable Properties not paid by tenants
under Leases and allocable to the period prior to the Closing Date shall be
determined and paid by Seller before Closing, if possible, or shall be paid
thereafter by Seller or adjusted between Purchaser and Seller immediately after
the same have been determined.  Seller
shall attempt to have all utility meters, or utility services not paid by
tenants under Leases, read as of the Closing Date.  Purchaser shall cause all utility services to
be placed in Purchaser’s name as of the Closing Date.  If permitted by the applicable utilities, all
utility deposits in Seller’s name shall be assigned to Purchaser as of the
Closing Date, and Seller shall receive a credit therefor at Closing.


 


4





















 


4.2.4        Rents.  Rent [(including estimated pass-through
payments for common area/operating expenses, but not for Taxes), collectively “Rents”] for the month in which Closing
occurs shall be prorated for said month based upon the Rents estimated to have
been collected by Seller as of the Closing Date.  Rents for said month shall be reprorated within
seven (7) Business Days after the end of said month based on Rents
actually received.  During the period
after Closing, (i) Purchaser shall deliver to Seller any and all Rents
accrued but uncollected as of the Closing Date, to the extent subsequently
collected by Purchaser; provided, however, Purchaser shall apply Rents received
after Closing first to payment of current Rents then due, and thereafter to
delinquent Rents (other than “true up” payments received from tenants
attributable to a year-end reconciliation of actual and budgeted pass-through
payments, which shall be allocated among Seller and Purchaser pro rata in
accordance with their respective period of ownership as set forth in Section 4.2.5
below), and (ii) Seller shall deliver to Purchaser any and all Rents
collected by Seller for any period after Closing.


 


Subject
to the provisions of the following sentence, Seller shall be entitled, after
the Closing, to take any action against a tenant which would not result in a
termination of any Lease or a tenant’s right of occupancy thereunder (“Seller Action”).  Notwithstanding the foregoing, Seller shall
not take any Seller Action unless Seller shall have first provided Purchaser
with not less than five (5) Business Days’ notice of its intent to take
action against a tenant, together with a description of the subject matter of
the proposed Seller Action.  Purchaser
agrees that it shall use commercially reasonable efforts to collect all
pass-through rents payable by tenants and any delinquent Rents (provided,
however, that Purchaser shall have no obligation to institute legal
proceedings, including an action for unlawful detainer, against a tenant owing
delinquent Rents).


 


The
amount of any unapplied security deposits (plus accrued interest thereon if
payable to a tenant under its lease) under the Leases held by Seller in cash at
the time of Closing shall be credited against the Purchase Price; accordingly,
Seller shall retain the actual cash deposits. 
Notwithstanding anything in this Section 4.2.4 to the
contrary, if any security deposits are in the form of a letter of credit, such
security deposits shall not be prorated, but shall be turned over by Seller to
Purchaser at the Closing by the delivery thereof by Seller to Purchaser in
accordance with this provision.  In
addition, Seller shall use reasonable efforts to deliver appropriate duly
executed instruments of transfer or assignment of such letters of credit which
are required to establish Purchaser as the new beneficiary thereunder and any
consents required by the issuing bank for the transfer of such letters of
credit.  If required, Seller shall use
reasonable efforts to arrange for the issuance by the issuing bank of any
authorization to the transfer, together with the delivery of such letters of
credit (and any letter of transfer that is required by such letter of
credit).  Any fees imposed by such
issuing banks in connection with such transfers which are not the obligation of
the applicable tenant to pay shall be paid by Seller.  In the event that any letter of credit is not
transferable as of Closing, Seller shall cooperate with Purchaser in all
reasonable respects following the Closing so as to transfer the same to
Purchaser or to obtain a replacement letter of credit with respect thereto in favor
of Purchaser, in either case at no cost or expense to Purchaser.  Until any such letter of credit shall be
transferred or replaced, Seller shall present such letter of credit for payment
and deliver the proceeds received by Seller, if any, to Purchaser within a
reasonable period of time following receipt of Purchaser’s written
request.  Notwithstanding the foregoing,
Seller shall not be in default under this Agreement in the event that any such
letter of credit is not assigned to Purchaser for any reason other than the
failure of Seller to sign the documents required of it to transfer the letter
of credit or the failure of Seller to pay any fees imposed by an issuing bank
in connection with such


 


5





















 


transfers.  In such event,
Purchaser may terminate this Agreement with respect to the applicable Property
upon written notice to Seller on or before ten (10) days after Purchaser
becomes aware that a letter of credit will not be assigned on the Closing Date;
provided, however, Purchaser’s right to terminate shall not be effective in the
event that Seller, in its sole and absolute discretion, gives Purchaser a
credit against the Purchase Price in the amount of the security deposit or
provides a substitute letter of credit in that amount.


 


4.2.5        Calculations.  For purposes of calculating prorations,
Purchaser shall be deemed to be in title to that portion of the Properties
being acquired on the Closing Date, and, therefore entitled to the income
therefrom and responsible for the expenses thereof for the entire day upon
which the Closing occurs.  All such
prorations shall be made on the basis of the actual number of days of the month
which shall have elapsed as of the day of the Closing and based upon the actual
number of days in the month and year in question.  Except as set forth in this Section 4.2,
all items of income and expense which accrue for the period prior to the
Closing will be for the account of Seller and all items of income and expense
which accrue for the period on and after the Closing will be for the account of
Purchaser.  Purchaser and Seller shall
each submit or cause to be submitted to the other (i) on or about the 90th
day after Closing, and (ii) on or about the one year anniversary of the
Closing, a statement which sets forth necessary adjustments to items subject to
proration pursuant to the provisions of this Section 4.2, if any;
provided, however, no adjustment shall be made with respect to Taxes.  Within fifteen (15) days following delivery
of such statements, the parties shall make such adjustments among themselves as
shall be necessary to carry out the prorations as contemplated in this Section 4.2.  In the event any prorations made under this Section 4.2
shall prove to be incorrect for any reason, then any party shall be entitled to
an adjustment to correct the same.


 


4.2.6        Leasing Commissions and Leasing Costs.  Seller shall be responsible for all leasing
commissions, tenant improvement costs and other usual and customary leasing
costs, due and owing with respect to the current term of all Leases executed
prior to the Effective Date, whether such leasing commissions, tenant
improvement costs and other usual and customary leasing costs are due to be
paid prior to or after the Closing Date.


 


4.2.7        Prepaid Items.  Any prepaid items, including, without
limitation, fees for licenses which are transferred to the Purchaser at the
Closing and annual permit and inspection fees shall be apportioned between the
Seller and the Purchaser at the Closing.


 


4.2.8        Allocation of Closing Costs and
Expenses.  Seller shall bear the cost
of the title policy to be issued and extended coverage charges, the cost of the
Surveys (as hereinafter defined), the cost to record any instruments necessary
to clear Seller’s title, one-half the cost of the Closing Escrow and one-half
the cost of the “New York Style” closing fee. Purchaser shall bear the cost of
any recording fees with respect to the Deeds, all costs incurred in connection
with obtaining Purchaser’s financing for this transaction, if any, the cost of
all title endorsements (other than with respect to extended coverage), if any,
one-half the cost of the Closing Escrow and one-half the cost of the “New York
Style” closing fee.  The cost of state
and county transfer taxes shall be paid by the Seller, and the cost of local
transfer taxes shall be paid by the party designated in the applicable local
ordinance or local custom.  If no such
designation or custom exists, and a local transfer tax must be paid, the cost
thereof shall be shared equally by Seller and Purchaser.


 


4.2.9        Operating Expenses.  All operating expenses (including all charges
under Contracts and agreements assumed by Purchaser under the General
Assignment, as


 


6





















 


hereinafter defined and fees
to any owner’s association) shall be prorated as of the Closing Date.  As to each service provider, operating
expenses payable or paid to such service provider in respect to the billing
period of such service provider in which the Closing Date occurs (the “Current Billing Period”), shall be prorated
on a per diem basis based upon the number of days in the Current Billing Period
prior to the Closing Date (which shall be allocated to Seller) and the number
of days in the Current Billing Period on and after the Closing Date (which
shall be allocated to Purchaser), and assuming that all charges are incurred
uniformly during the Current Billing Period. 
If actual bills for the Current Billing Period are unavailable as of the
Closing Date, then such proration shall be made on an estimated basis based
upon the most recently issued bills, subject to readjustment within thirty (30)
days of receipt of actual bills. 
Notwithstanding the foregoing, no prorations or adjustments shall be made
for portions of operating costs of the Properties to the extent a tenant under
the Leases is required to pay same pursuant to the terms of any of the Leases.
Purchaser shall be credited with an amount equal to all deposits made by
tenants and held by Seller at Closing towards the tenant’s obligation to pay
any such operating expenses.


 


ARTICLE V


Inspection


 


5.1          Seller
Deliveries.  Purchaser acknowledges that Seller has
heretofore delivered or caused to be delivered or made available to Purchaser
at the Properties all of the items relating to the Properties specified on Exhibit F, attached hereto, to the
extent that such items were in Seller’s possession (“Documents”); provided, however, that except for the
representations and warranties made in Article VII hereof, Seller
makes no representations or warranties of any kind regarding the accuracy,
thoroughness or completeness of or conclusions drawn in the information
contained in such documents, if any, relating to the Properties.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Purchaser acknowledges that any and all of the Documents that are not
otherwise known by or available to the public are proprietary and confidential
in nature and were delivered to Purchaser solely to assist Purchaser in
determining the feasibility of purchasing the Properties.  Purchaser agrees not to disclose such
non-public documents, or any of the provisions, terms or conditions thereof, to
any party other than a Purchaser Party/Representative, as hereinafter
defined.  Purchaser shall return all of
the Documents, at such time as this Agreement is terminated for any
reason.  This Section 5.1
shall survive Closing and/or termination of this Agreement without limitation.


 


5.2          Independent
Examination/Right to Access.  Purchaser hereby acknowledges
that it has been given, prior to the execution hereof, a full, complete and
adequate opportunity to make such legal, factual and other determinations,
analyses, inquiries and investigations as Purchaser deems necessary or
appropriate in connection with the acquisition of the Properties.  Purchaser further acknowledges that Purchaser
is relying upon its own independent examination of the Properties and all
matters relating thereto and not upon any statements of Seller (excluding the
limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser.  Notwithstanding
anything to the contrary contained in this Section 5.2, Purchaser
and its agents shall have access to the Properties and the Documents prior to
the Closing Date, but during normal business hours (with reasonable advance
notice to Seller and


 


7





















 


subject to the rights of the tenants in
possession), at Purchaser’s sole cost and expense, and at Purchaser’s and its
agents’ sole risk, to inspect the applicable Properties, provided, however,
Purchaser shall not be entitled to conduct Physical Testing or any Phase I
Assessments, as said terms are hereinafter defined, without the approval of
Seller, which approval shall not be unreasonably withheld, and further provided
that prior to Purchaser entering the Properties, Purchaser shall deliver to
Seller evidence of Due Diligence Insurance, as hereinafter defined.  Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided that Seller does
not unreasonably interfere with Purchaser’s inspection.  The provisions of this Section 5.2
shall survive Closing and/or termination of this Agreement without
limitation.  Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


 


5.3          Inspection
Obligations and Indemnity.  Purchaser and its agents and representatives
shall (a) not unreasonably disturb the tenants of the Improvements or
interfere with their use of the Real Property pursuant to their respective
Leases; (b) not interfere with the operation and maintenance of the Real
Property; (c) not injure or otherwise cause bodily harm to Seller, its
agents, contractors and employees or any tenant; (d) promptly repair any
damage to any part of the Properties or any personal property owned or held by
any tenant caused by Purchaser’s inspection of the Properties; (e) promptly
pay when due the costs of all tests, investigations and examinations done by
Purchaser with regard to the Properties; (f) not permit any liens to
attach to the Properties as a result of Purchaser’s inspection of the
Properties; (g) restore the Improvements and the surface of the Real
Property to the condition in which the same was found before any such
inspection or tests were undertaken by Purchaser; and (h) except to the
extent required by law, not reveal or disclose any information obtained
pursuant to its inspections of the Properties to anyone other than the
following persons or entities (each a “Purchaser
Party/Representative”): (x) Purchaser’s prospective lenders,
members, managers, partners or other co-venturers or investors, in connection
with the proposed purchase of the Properties and their respective
representatives; and (y) Purchaser’s directors, officers, partners, members,
managers, affiliates, shareholders, employees, legal counsel, accountants,
engineers, architects, financial advisors and similar professionals and
consultants to the extent Purchaser deems it necessary or appropriate in
connection with its evaluation of the Properties.  Purchaser shall, and does hereby agree to
indemnify, defend and hold Seller, its partners, officers, directors,
employees, agents, attorneys and their respective successors and assigns,
harmless from and against any and all claims, demands, suits, obligations,
payments, damages, losses, penalties, liabilities, costs and expenses
(including, but not limited to, attorneys’ fees) arising out of Purchaser’s or
Purchaser’s agents’ actions taken in, on or about the Properties in the
exercise of the inspections of Purchaser prior to the Effective Date,
including, without limitation, claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use of or damage to its premises or property in connection with
Purchaser’s review of the Properties. 
This Section 5.3 shall survive the Closing and/or any
termination of this Agreement without limitation. Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


 


ARTICLE VI


Title and Survey Matters


 


6.1          Title. 
Purchaser acknowledges that, prior to the Effective Date, Seller has
delivered to Purchaser, with respect to each Property, a title insurance
commitment or a prior title insurance


 


8





















 


policy
(a “Commitment”), together with a
copy of all underlying documents referenced therein (collectively, the “Title Documents”).  Except as hereinafter provided, Purchaser and
Seller hereby agree that (i) all Taxes that are not due and payable prior
to Closing, (ii) the rights of the tenants under the Leases and Approved
New Leases (as defined in Section 9.3 of this Agreement), as
parties in possession only, (iii) all matters created by or on behalf of
Purchaser and (iv) the exceptions to title identified on Exhibits G-1 through G-4, respectively, shall
constitute “ Permitted Exceptions”.  Notwithstanding anything to the contrary
contained herein, Seller shall be obligated to cause all of the following
resulting from the act or omission of, or caused by, Seller or grantor under
the Deeds to be fully satisfied, released and discharged of record or insured
or bonded over on or prior to the Closing Date: 
all mortgages, deeds of trust and monetary liens [including liens for
delinquent taxes, mechanics’ liens and judgment liens] affecting the Properties
and all indebtedness secured thereby.


 


6.2          Survey. 
Purchaser acknowledges receipt of Seller’s existing surveys (“Initial Surveys”) for each of the
Properties.  Seller has ordered a current
ALTA/ACSM survey for each Property to be certified to Purchaser, as well as any
affiliates and lender designated by Purchaser to Seller at least thirty (30)
days prior to Closing and Title Company (collectively, the “Surveys”) and shall deliver a copy of the
Surveys to Purchaser promptly upon receipt thereof but in all events prior to
Closing.  The surveyors shall certify the
Surveys in accordance with the form of certification attached hereto as Exhibit Q.


 


ARTICLE VII


Representations and Warranties of the Seller


 


7.1          CNT’s
Representations.  CNT represents and warrants that the
following matters are true and correct as of the Effective Date with respect to
the Properties owned by CNT or CNT Affiliates:


 


7.1.1        Authority.  CNT is a real estate investment trust, duly
organized, validly existing and in good standing under the laws of the State of
Maryland.  This Agreement has been duly
authorized, executed and delivered by CNT, is the legal, valid and binding
obligation of CNT, and does not violate any provision of any agreement or
judicial order to which CNT is a party or to which CNT is subject.  All documents to be executed by CNT or CNT
Affiliates which are to be delivered at Closing, will, at the time of Closing, (i) be
duly authorized, executed and delivered by CNT or CNT Affiliates, as the case
may be, (ii) be legal, valid and binding obligations of CNT or CNT
Affiliates, as the case may be, and (iii) not violate any provision of any
agreement or judicial order to which CNT or CNT Affiliates, as the case may be
is a party or to which CNT or CNT Affiliates, as the case may be, is subject.


 


7.1.2        Bankruptcy or Debt of CNT.  Neither CNT nor any CNT Affiliates has made a
general assignment for the benefit of creditors, filed any voluntary petition
in bankruptcy, admitted in writing its inability to pay its debts as they come
due or made an offer of settlement, extension or composition to its creditors
generally.  Neither CNT nor any CNT
Affiliates has received any written notice of (a) the filing of an
involuntary petition by CNT’s creditors or the creditors of CNT Affiliates, (b) the
appointment of a receiver to take possession of all, or substantially all, of
CNT’s assets or the assets of CNT Affiliates, or (c) the attachment or
other judicial seizure of all, or substantially all, of CNT’s assets or the
assets of CNT Affiliates.


 


7.1.3        Foreign Person.  Neither CNT nor any of the CNT Affiliates is
a foreign person within the meaning of Section 1445(f) of the
Internal Revenue Code (“Code”), and


 


9





















 


CNT agrees to execute and
cause the CNT Affiliates to execute any and all documents necessary or required
by the Internal Revenue Service or Purchaser in connection with such
declaration(s).


 


7.1.4        No Violation of Laws.  Except as set forth on Schedule 7.1.4,
to CNT’s knowledge, neither CNT nor CNT Affiliates have received any currently
effective written notice from a governmental authority that the Properties
violate any applicable ordinance of the city or village in which the Properties
are located.


 


7.1.5        Eminent Domain.  Except as set forth on Schedule 7.1.5,
to CNT’s knowledge, neither CNT nor CNT Affiliates have received any currently
effective written notice of an eminent domain or condemnation of the Land or
Improvements relating to the Properties.


 


7.1.6        Hazardous Materials.  Except as set forth on Schedule 7.1.6,
to CNT’s knowledge, except as set forth in any environmental report provided by
Seller to Purchaser, or as referenced or referred to in Section 17.23,
(i) neither CNT nor CNT Affiliates have received any uncured written
notice from the United States Environmental Protection Agency or the Illinois
Environmental Protection Agency (or any Indiana or Wisconsin agency comparable
to the Illinois Environmental Protection Agency) alleging that the Properties
are in violation of any applicable Environmental Laws or contain any Hazardous
Materials, (ii) since the date of the most recent environmental report, there have been no Hazardous Materials installed
or stored in or otherwise existing at, on, in or under the Properties in
violation of applicable Environmental Laws, and (iii) Seller has acted in
the manner that a commercially prudent property owner would act with respect to
any written recommendations made by Seller’s environmental consultants.  “Hazardous
Materials” shall mean any hazardous, toxic waste, substance or
material, pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Section 9601 et seq.), as amended, or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or any
other federal, state or local laws, ordinances, rules, regulations or policies
governing use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of such materials (collectively, “Environmental Laws”).


 


7.1.7        Litigation.  Except as set forth on Schedule 7.1.7,
to CNT’s knowledge, (i) neither CNT nor CNT’s Affiliates have received any
currently effective written notice of any pending litigation affecting the
Properties, and (ii) there is no action, suit or proceeding threatened
before or by any judicial, administrative or union body, any arbitrator or any
governmental authority, against or affecting the Properties.


 


7.1.8        Leases.  Except as set forth on Schedule 7.1.8,
(i) the Rent Roll delivered to Purchaser by CNT lists all of the Leases
affecting the Properties owned by CNT or CNT’s Affiliates, (ii) the Leases
affecting the Properties delivered to Purchaser by CNT are true, correct and
complete copies of the Leases provided to or entered into by CNT or CNT’s
Affiliates relating to the Properties, and (iii) to CNT’s knowledge, no
tenant has commenced any action or given any written notice to CNT or any CNT
Affiliate for the purpose of terminating its lease in whole or in part, whether
by exercise of an express termination right in its lease or otherwise.


 


10





















 


7.1.9        Contracts.  Except as set forth on Schedule 7.1.9,
to CNT’s knowledge, Seller has delivered to Purchaser complete copies of each
Contract provided to or entered into by CNT or CNT Affiliate relating to the
Properties.


 


7.1.10      Defaults.  Except as set forth on Schedule 7.1.10,
or any other exhibit to this Agreement, (i) no
notice of default has been given by CNT or CNT Affiliates to any tenant or
received by Seller from any tenant under any Lease relating to the Properties
which remains uncured and (ii) no base or additional rent due under any
Lease relating to the Properties is more than thirty (30) days past due.


 


7.1.11      Operating Statements.  To CNT’s knowledge, the operating statements
relating to the Properties delivered by Seller to Purchaser in accordance with Section 5.1
hereof are true and correct in all material respects and no material adverse
change has occurred since the respective dates thereof.


 


7.1.12      Bulk Sale Act. The provisions of Section 9.02(d) of
the Illinois Income Tax Act and the applicable provisions of the Retailer’s
Occupation Tax Act do not apply to this transaction.


 


7.1.13      REIT REP The Properties consist
solely of land, buildings, and other structural components thereof, and other
assets described in Section 856(c)(4)(A) of the Code.  The total gross revenues generated by the
Properties between January 1, 2003 and the Closing Date has consisted and
will consist solely of income from rents from real property and other revenue
which constitute qualifying income under Section 856(c)(3) of the
Code (“Qualifying Income”), and
based on historical experience, CNT believes that the gross revenues generated
by the Properties after the Closing Date will consist solely of Qualifying
Income.


 


Seller shall remake all
representations and warranties as of the date of the Closing; provided,
however, at the time such warranties and representations are remade, Seller
shall provide Purchaser with updates of the Schedules referred to in the
representations and warranties set forth above and an updated operating
statement.  Purchaser acknowledges and
agrees that the representations and warranties that are made as of the Closing
Date shall refer to the updated Schedules and operating statements.


 


7.2          Venture
Representations.  Venture represents and warrants that the
following matters are true and correct as of the Effective Date with respect to
Venture’s interest in the Properties:


 


7.2.1        Authority.  Venture is a limited liability company, duly
organized, validly existing and in good standing under the laws of the State of
Illinois.  This Agreement has been duly
authorized, executed and delivered by Venture, is the legal, valid and binding
obligation of Venture, and does not violate any provision of any agreement or judicial
order to which Venture is a party or to which Venture is subject.  All documents to be executed by Venture which
are to be delivered at Closing, will, at the time of Closing, (i) be duly
authorized, executed and delivered by Venture, (ii) be legal, valid and
binding obligations of Venture, and (iii) not violate any provision of any
agreement or judicial order to which Venture is a party or to which Venture is
subject.


 


7.2.2        Bankruptcy or Debt of Venture.  Venture has not made a general assignment for
the benefit of creditors, filed any voluntary petition in bankruptcy, admitted
in writing its


 


11





















 


inability to pay its debts
as they come due or made an offer of settlement, extension or composition to
its creditors generally.  Venture has
received no written notice of (a) the filing of an involuntary petition by
Venture’s creditors, (b) the appointment of a receiver to take possession
of all, or substantially all, of Venture’s assets, or (c) the attachment
or other judicial seizure of all, or substantially all, of Venture’s assets.


 


7.2.3        Foreign Person.  Venture is not a foreign person within the
meaning of Section 1445(f) of the Code, and Venture agrees to execute
any and all documents necessary or required by the Internal Revenue Service or
Purchaser in connection with such declaration(s).


 


7.2.4        No Violation of Laws.  Except as set forth on Schedule 7.2.4,
to Venture’s knowledge, Venture has not received any currently effective
written notice from a governmental authority that the Properties violate any
applicable ordinance of the city or village in which the Properties are
located.


 


7.2.5        Eminent Domain.  Except as set forth on Schedule 7.2.5,
to Venture’s knowledge, Venture has not received any currently effective
written notice of an eminent domain or condemnation of the Land or Improvements
relating to the Properties.


 


7.2.6        Hazardous Materials.  Except as set forth on Schedule 7.2.6,
to Venture’s knowledge, except as set forth in any environmental report
provided by Seller to Purchaser, or as referenced or referred to in Section 17.23,
(i) Venture has not received any uncured written notice from the United
States Environmental Protection Agency or the Illinois Environmental Protection
Agency (or any Indiana or Wisconsin agency comparable to the Illinois
Environmental Protection Agency) alleging that the Properties are in violation
of any applicable Environmental Laws or contain any Hazardous Materials, (ii) since
the date of the most recent environmental report, there have been no Hazardous Materials
installed or stored in or otherwise existing at, on, in or under the Properties
in violation of applicable Environmental Laws, and (iii) Venture has acted
in a manner that a commercially prudent property owner would act with respect
to any written recommendations made by Venture’s environmental consultants.


 


7.2.7        Litigation.  Except as set forth on Schedule 7.2.7,
to Venture’s knowledge, (i) Venture has not received any currently
effective written notice of any pending litigation affecting the Properties and
(ii) there is no action, suit or proceeding threatened before or by any
judicial, administrative or union body, any arbitrator or any governmental
authority, against or affecting the Properties.


 


7.2.8        Leases.  Except as set forth on Schedule 7.2.8,
(i) the Rent Roll delivered to Purchaser by Venture lists all of the
Leases affecting the Properties owned by Venture, (ii) the Leases
affecting the Properties delivered to Purchaser by Venture are true, correct
and complete copies of the Leases provided to or entered into by Venture
relating to the Properties, and (iii) to Venture’s knowledge, no tenant
has commenced any action or given any written notice to Venture for the purpose
of terminating its lease in whole or in part, whether by exercise of an express
termination right in its lease or otherwise.


 


7.2.9        Contracts.  Except as set forth on Schedule 7.2.9,
to Venture’s knowledge, Seller has delivered to Purchaser complete copies of
each Contract provided to or entered into by Venture relating to the
Properties.


 


12





















 


7.2.10      Defaults.  Except as set forth on Schedule 7.2.10,
or any other exhibit to this Agreement (i) no notice of default has been
given by Seller to any tenant or received by Seller from any tenant under any
Lease relating to the Properties which remains uncured and (ii) no base or
additional rent due under any Lease relating to the Properties is more than
thirty (30) days past due.


 


7.2.11      Operating Statements.  To Venture’s knowledge, the operating
statements relating to the Properties delivered by Seller to Purchaser in
accordance with Section 5.1 hereof are true and correct in all
material respects and no material adverse change has occurred since the
respective dates thereof.


 


7.2.12      Bulk Sale Act.  The provisions of Section 9.02(d) of
the Illinois Income Tax Act and the applicable provisions of the Retailer’s
Occupation Tax Act do not apply to this transaction.


 


Venture shall remake all
representations and warranties as of the date of the Closing; provided,
however, at the time such warranties and representations are remade, Venture
shall provide Purchaser with updates of the Schedules referred to in the
representations and warranties set forth above and an updated operating statement.  Purchaser acknowledges and agrees that the
representations and warranties that are made as of the Closing Date shall refer
to the updated Schedules and operating statements.


 


7.3          Knowledge.  For
purposes of this Agreement and any document delivered at Closing, whenever the
phrases “to the best of CNT’s knowledge”, “to the actual knowledge of CNT” or “to
the knowledge” of CNT or words of similar import are used, they shall be deemed
to refer to the current, actual knowledge only, and not any implied, imputed or
constructive knowledge of Michael M. Mullen and James N. Clewlow, after
consultation with the property managers of each Property owned by CNT
(collectively, the “CNT Property Managers”).  Except for the obligation to consult with the
CNT Property Managers, neither Michael M. Mullen nor James N. Clewlow shall be
obligated to conduct any independent investigation, and no implied duty to
investigate shall be imputed.  For
purposes of this Agreement and any document delivered at Closing, whenever the
phrases “to the best of Venture’s knowledge”, “to the actual knowledge of
Venture” or “to the knowledge” of Venture or words of similar import are used,
they shall be deemed to refer to the current, actual knowledge only, and not
any implied, imputed or constructive knowledge of James N. Clewlow and Daniel
C. Witte after consultation with the property managers of all Properties owned
by Venture (“Venture Property Managers”).  Except for the obligation to consult with the
Venture Property Managers, neither James N. Clewlow nor Daniel C. Witte shall
be obligated to conduct any independent investigation, and no implied duty to
investigate shall be imputed.  Nothing
contained in this Agreement shall be deemed to impose any personal liability of
any kind on any person named in Section 7.3.


 


For purposes of this
Agreement, and any document delivered at Closing, whenever the phrase “to the
best of Purchaser’s knowledge”, “to the actual knowledge of Purchaser” or “to
the knowledge of Purchaser” or words of similar import are used, they shall be
deemed to refer to the current, actual knowledge only, and not any implied,
imputed or constructive knowledge, of Andrew Martin and Ben Hindmarsh;
provided, however, that nothing in this Agreement shall be deemed to create or
impose any personal liability of any kind on Andrew Martin or Ben Hindmarsh.


 


7.4          Change in Representation/Waiver. 
Notwithstanding anything to the contrary contained herein, Purchaser
acknowledges that Purchaser shall not be entitled to rely on any representation
or warranty made by Seller in this Article VII to the extent, prior
to or at Closing,


 


13





















 


Purchaser shall have or obtain actual
knowledge of any information that was contradictory to such representation or
warranty; provided, however, if Purchaser determines prior to Closing that
there is a breach of any of the representations and warranties made by Seller
above, then Purchaser may, at its option, by sending to Seller written notice
of its election either (i) exercise its rights under Section 9.9
below if applicable, (ii) waive such breach and/or conditions and proceed
to Closing with no adjustment in the Purchase Price and in such event Seller
shall have no further liability as to such matter thereafter, or (iii) as
its sole remedy, terminate this Agreement in its entirety in the event of any
untruth or inaccuracy of (x) the representations or warranties set forth in Sections
7.1.1, 7.1.2, 7.1.3, 7.2.1,
7.2.2 or 7.2.3, or (y) the representations and warranties set forth
in the other sections of Article VII, but only if such
representations and warranties were not true or were inaccurate on the
Effective Date and such untruth or inaccuracy is “Material” (defined below).
The term “Material” as used in this Section 7.4 shall mean a
liability or loss reasonably anticipated to arise out of an untruth or
inaccuracy of the representations or warranties set forth in Article VII
which (i) exceeds $500,000.00 for each affected Property, or (ii) results
from fraud or willful misconduct on the part of Seller.  In the event that Purchaser elects to
terminate this Agreement, the parties shall have no liability to each other
hereunder and Purchaser Letter of
Credit shall be returned to Purchaser and the Seller Letter of Credit
shall be returned to Seller.  Seller
shall have no liability with respect to any of the foregoing representations
and warranties or any representations and warranties made in any other document
executed and delivered by Seller to Purchaser, to the extent that, prior to the
Closing, Purchaser discovers or learns of information (from whatever source,
including, without limitation the property manager, the tenant estoppel
certificates or the Seller’s Estoppel Certificates delivered pursuant to Section 10.1.1
below, as a result of Purchaser’s due diligence tests, investigations and
inspections of the Property, or disclosure by Seller or Seller’s agents and
employees) that contradicts any such representations and warranties, or renders
any such representations and warranties untrue or incorrect, and Purchaser
nevertheless consummates the transaction contemplated by this Agreement.


 


7.5          Post Closing Rights. 
Following Closing, Purchaser will have the right to bring any action
against Seller as a result of any untruth or inaccuracy of representations and
warranties made herein if (i) such untruth or inaccuracy is “Material,”
and (ii) prior to Closing Purchaser did not discover or learn information
(from whatever source) that contradicts any such representations and
warranties, or renders any such representations and warranties untrue or
incorrect.  The term “Material” as used
in this Section 7.5 shall mean a liability or loss reasonably
anticipated to arise out of an untruth or inaccuracy of the representations or
warranties set forth in Article VII which results from fraud or
willful misconduct on the part of Seller or exceeds $500,000.00 for each such
affected Property, it being understood that the foregoing limitation is a
threshold which must be exceeded, but that once such threshold has been
exceeded, any post closing claim may be pursued for its full value.  In addition, in no event will Seller’s
liability for all such breaches relating to a specific Property, exceed, in the
aggregate, the allocated Purchase Price of the Property in question, calculated
in accordance with Schedule 9.8.


 


7.6          Survival.  The
express representations and warranties made in this Agreement shall not merge
into any instrument or conveyance delivered at the Closing; provided, however, that
any action, suit or proceeding with respect to the truth, accuracy or
completeness of representations and warranties set forth in Sections other than
Sections 7.1.1, 7.1.2, 7.1.3, 7.2.1, 7.2.2
and 7.2.3 shall be commenced, if at all, on or before the date which is
twelve (12) months after the date of a Closing and, if not commenced on or
before such date, thereafter such representations and warranties shall be void
and of no force or effect as to the applicable Closing.


 


14





















 


ARTICLE VIII


Representations and Warranties of Purchaser


 


8.1          Purchaser represents and warrants to
Seller that the following matters are true and correct as of the Effective
Date.


 


8.1.1        Authority.  Purchaser is a limited liability company,
duly organized, validly existing and in good standing under the laws of the
State of Delaware.  This Agreement has
been duly authorized, executed and delivered by Purchaser, is the legal, valid
and binding obligation of Purchaser, and does not violate any provision of any
agreement or judicial order to which Purchaser is a party or to which Purchaser
is subject.  All documents to be executed
by Purchaser which are to be delivered at Closing, will, at the time of
Closing, (i) be duly authorized, executed and delivered by Purchaser, (ii) be
legal, valid and binding obligations of Purchaser, and (iii) not violate
any provision of any agreement or judicial order to which Purchaser is a party
or to which Purchaser is subject.


 


8.1.2        Bankruptcy or Debt of Purchaser.  Purchaser has not made a general assignment
for the benefit of creditors, filed any voluntary petition in bankruptcy,
admitted in writing its inability to pay its debts as they come due or made an
offer of settlement, extension or composition to its creditors generally.  Purchaser has received no written notice of (a) the
filing of an involuntary petition by Purchaser’s creditors, (b) the
appointment of a receiver to take possession of all, or substantially all, of
Purchaser’s assets, or (c) the attachment or other judicial seizure of
all, or substantially all, of Purchaser’s assets.


 


8.1.3        No Financing Contingency.  It is expressly acknowledged by Purchaser
that this transaction is not subject to any financing contingency, and no
financing for this transaction shall be provided by Seller.


 


8.2          Purchaser’s
Acknowledgment.  Purchaser acknowledges and agrees that,
except as expressly provided in this Agreement, Seller has not made, does not
make and specifically disclaims any and all representations, warranties,
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, including, but not limited to those representations, warranties,
promises, covenants, agreement and guaranties of, as to, concerning or with
respect to (a) the nature, quality or condition of the Properties,
including, without limitation, the water, soil and geology, (b) the income
to be derived from the Properties, (c) the suitability of the Properties
for any and all activities and uses which Purchaser may conduct thereon, (d) the
compliance of or by the Properties or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or body,
including, without limitation, the Americans with Disabilities Act and any rules and
regulations promulgated thereunder or in connection therewith, (e) the
habitability, merchantability or fitness for a particular purpose of the
Properties, or (f) any other matter with respect to the Properties, and
specifically that except as expressly provided in this Agreement, Seller has
not made, does not make and specifically disclaims any representations
regarding solid waste, as defined by the U.S. Environmental Protection Agency regulations
at 40 C.F.R., Part 261, or the disposal or existence, in or on the
Properties, of any hazardous substance, as defined by the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, and
applicable state laws, and regulations promulgated thereunder.  Purchaser further acknowledges and agrees
that, except as expressly provided in this Agreement, having been given the
opportunity to inspect the Properties, Purchaser is relying solely on its own
investigation of the Properties and not on any information provided or to be
provided by Seller.  Purchaser further
acknowledges and agrees that subject to the representations and warranties of
Seller as provided herein and in any other document executed at


 


15





















 


Closing,
any information provided or to be provided with respect to the Properties was
obtained from a variety of sources and that Seller has not made any independent
investigation or verification of such information.  Purchaser
further acknowledges and agrees that, as a material inducement to the execution
and delivery of this Agreement by Seller, subject to the representations and
warranties of Seller provided herein and in any other document executed at
Closing, the sale of the Properties as provided for herein is made on an “AS
IS, WHERE IS” CONDITION AND BASIS “WITH ALL FAULTS.”  Purchaser acknowledges, represents
and warrants that Purchaser is not in a significantly disparate bargaining
position with respect to Seller in connection with the transaction contemplated
by this Agreement; that Purchaser freely and fairly agreed to this
acknowledgment as part of the negotiations for the transaction contemplated by
this Agreement; that Purchaser is represented by legal counsel in connection
with this transaction.


 


8.3          Purchaser’s
Release.  Effective as of the date of the Closing,
Purchaser on behalf of itself and its successors and assigns waives its right
to recover from, and forever releases and discharges, Seller, Seller’s affiliates,
Seller’s investment manager, property manager, the partners, trustees,
shareholders, beneficiaries, directors, officers, employees, attorneys and
agents of each of them, and their respective heirs, successors, personal
representatives and assigns from any and all demands, claims, legal or
administrative proceedings, losses, liabilities, damages, penalties, causes of
action, fines, liens, judgments, costs and expenses known or unknown, foreseen
or unforeseen, that may arise on account of or in any way be connected with the
Properties, except, subject to Section 7.5 hereof, such as
arises out of (i) a breach of any of the representations and warranties of
Seller set forth in Article VII and (ii) any of the provisions
of this Agreement that survive Closing pursuant to the provisions of Section 17.12
below.  The terms and provisions of this Section 8.3
shall survive Closing and/or termination of this Agreement without limitation.


 


8.4          Survival.  The
express representations and warranties made in this Agreement by Purchaser
shall not merge into any instrument of conveyance delivered at the Closing;
provided, however, that any action, suit or proceeding with respect to the
truth, accuracy or completeness of all such representations and warranties
shall be commenced, if at all, on or before the date which is twelve (12)
months after the date of the Closing and, if not commenced on or before such
date, thereafter shall be void and of no force or effect as to the applicable
Closing.


 


ARTICLE IX


Seller’s Interim Operating Covenants/Seller’s and Purchaser’s
Covenants


 


9.1          Operations. 
Seller agrees to continue to operate, manage and maintain the
Improvements through the Closing Date in the ordinary course of Seller’s
business and substantially in accordance with Seller’s present practice,
subject to ordinary wear and tear and further subject to Article XII
of this Agreement.  As of, and at all
times after the Effective Date until Closing, Seller shall name Purchaser as an
additional insured on all liability insurance policies maintained by Seller
relating to the Properties.


 


9.2          No Sales.  Except for the execution of tenant Leases pursuant to Section 9.3,
Seller agrees that it shall not convey any interest in the Properties to any
third party.


 


9.3          Tenant
Leases.  From and after the Effective Date, Seller
shall not (i) grant any consent or waive any material rights under the
Leases, (ii) terminate any Lease, or (iii) enter into a new lease,
modify an existing Lease or renew, extend or expand an existing Lease in any material
respect without the prior written approval of Purchaser (an “Approved New Lease”), which in each case
shall not be unreasonably withheld, conditioned or delayed.  Any Approved New Lease shall


 


16





















 


meet
all of the following parameters: (i) such proposed lease has an initial
term (excluding any options to extend such term) of not less than three (3) years
and not more than ten (10) years; (ii) such proposed lease has no
free-rent period extending beyond the term of the Master Lease (defined below);
(iii) such proposed lease has no above-market obligation of Purchaser to
provide or fund any tenant improvements; (iv) such proposed lease provides
for base rent payable at a rate per month that is never less than 95% of the
base rent per month required to be paid for such space under the Master Lease; (v) leasing
commissions for such proposed lease do not exceed market rates; (vi) such
proposed lease does not require the landlord thereunder, and will not result in
an obligation for the landlord thereunder to alter or improve or pay for the
altering or improving of the building (other than tenant improvements as
limited by clause (iii) above and responsibility for repairing and
replacing the roof and structure, but excluding the obligation for internal
wall changes); (vii) such lease shall be on the form customarily used by
Seller with such revisions which Seller approves using its judgment as a
commercially prudent landlord; (viii) the creditworthiness of the tenant
and intended use of the premises by the tenant shall be consistent with Seller’s
historical and customary requirements as a commercially prudent landlord; and (ix) the
income to be generated from the proposed lease shall constitute qualifying
income under Section 856(c)(3) of the Code.  Additionally, the parties expressly agree
that it shall not be deemed unreasonable for Purchaser to withhold, condition
or delay its consent to any Approved New Lease that includes above-market
tenant improvements, above-market leasing commissions or any other above-market
leasing costs that Purchaser would be obligated to pay or incur; provided,
however, in such event, Purchaser and Seller agree to negotiate in good faith
to agree upon such tenant improvement costs, leasing commission and other
leasing costs to render such Approved New Lease and the terms thereof
acceptable to Purchaser.  Any lease
proposed by Seller, which satisfies the criteria set forth in this Section 9.3
and would otherwise be reasonably acceptable to Purchaser, but for the fact
that such lease includes above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs, may, nonetheless, be
approved and executed by Seller, in its sole and absolute discretion, and in
such event such proposed lease shall be deemed an Approved New Lease, provided
that Seller pays all such above-market tenant improvements, above-market
leasing commissions or any other above-market leasing costs.  Purchaser’s failure to respond within five (5) Business
Days after receipt of a request for approval, together with a copy of the
proposed Approved New Lease or letter of intent to lease and credit information
on the proposed replacement tenant or tenants, shall be deemed approval by
Purchaser. Seller shall pay the portion of the tenant improvement costs,
leasing commissions and other usual and customary leasing costs with respect to
any Approved New Lease, allocated on a prorata basis over the term of the
Approved New Lease with respect to the portion of the term of the Approved New
Lease prior to a Closing and Purchaser shall pay the portion of the tenant
improvement costs, lease commissions and other usual and customary leasing
costs with respect to an Approved New Lease, allocated on a prorata basis over
the term of the Approved New Lease with respect to the portion of the term of
the Approved New Lease after the Closing.


 


9.4.         Planned
Expenditures.  Seller shall effect and complete the planned
expenditures for nominated work and items in accordance with the description
and budget set forth on Exhibit R
attached hereto as a prudent manager/owner in consultation with Purchaser, and
to Purchaser’s commercially reasonable satisfaction; in the event that upon
completion of such work and items,  the
total cost of such work is less than the total budget allocated for same,
Seller shall be entitled to retain all such unexpended amounts.  In the event that Exhibit R reflects that certain
work is to be performed after Closing, the obligations of Seller under this Section 9.4
with respect to that work shall survive Closing.


 


9.5          Master
Lease.  At the Closing, Seller and Purchaser shall
execute and deliver to each other a master lease (“Master Lease”) in the form of Exhibit H attached hereto.


 


17





















 


9.6          Management
Agreement.  At the Closing, Seller and Purchaser shall execute an Amendment to the Property
Management Agreement between Purchaser and CenterPoint Properties Trust adding
the Properties to the definition of “Properties” under such Management
Agreement.   Seller shall terminate any existing property
management agreements pertaining to the Properties as of the Closing Date.


 


9.7          Right of
First Offer.  INTENTIONALLY OMITTED.


 


9.8          Transfer
Tax Declaration Allocation.  Purchaser and Seller agree that
the Purchase Price shall be allocated amongst the Properties as set forth on Schedule 9.8
for the purpose of completing real estate transfer declarations to be executed
by Seller and Purchaser at Closing (the “Transfer
Tax Declaration Allocation”).


 


9.9          Substitution
of Properties


 


9.9.1        In the event of the occurrence of a
Substitution Event (defined below) prior to Closing, Purchaser may, at its
option, by written notice to Seller (“Event
Notice”) within ten (10) days after the date on which Purchaser
is given or obtains actual knowledge of the occurrence of a Substitution Event,
elect to either (i) ignore the Substitution Event and proceed to Closing
with no adjustment in the Purchase Price, or (ii) request that Seller
offer a Substitute Property or Substitute Properties (both as hereinafter
defined) to Purchaser valued in the aggregate amount of the Purchase Price
allocated to the Property or Properties (“Removed
Property” or “Removed Properties”)
subject to the Substitution Event.


 


In
the event that Purchaser elects under (ii) above to have Seller provide a
Substitute Property or Substitute Properties, Seller, if it chooses to do so,
in its sole and absolute discretion, shall have a period of thirty (30) days
from the date of Purchaser’s Event Notice to correct the condition giving rise
to the Substitution Event, and further, provided, however, if such condition is
of a nature which is not capable of cure within said thirty (30) day period and
Seller has commenced to cure within such thirty (30) day period, then Seller
shall have such reasonable period of time from and after the date of Purchaser’s
Event Notice to correct the condition giving rise to the Substitution
Event.  In the event Purchaser exercises
its rights under (ii) above, and Seller elects to and cures the condition
giving rise to the Substitution Event prior to the time that the Closing with
respect to the Substitute Property occurs, the Scheduled Closing Date for the
Removed Property shall be extended to the fifteenth (15th) day after
the condition giving rise to the Substitution Event has been cured.


 


In
the event that Purchaser fails to elect (i) or (ii) above within ten (10) days
after Purchaser is given or obtains actual knowledge of a Substitution Event,
Purchaser shall be deemed to have elected to waive such condition and proceed
to Closing on the Closing Date with no adjustment in the Purchase Price.  In the event that within said ten (10) day
period Purchaser elects its rights under (ii) above and Seller elects not
to cure or elects to cure the condition but fails to do so within the time
period set forth above, Seller shall use reasonable efforts to provide a
Substitute Property or Substitute Properties as described in Section 9.9.2.  Notwithstanding any other term or condition
contained herein, (i) in no event shall the Closing with respect to the
Properties which are not subject to a Substitution Event be delayed, and (ii) in
the event of the occurrence of a Substitution Event, Seller shall not be in
default under this Agreement, Seller shall not be liable for damages and
Purchaser’s sole right and remedy shall be to exercise its rights under this Section 9.9.1.


 


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The
term “Substitution Event” shall
mean any one or more of the following: (i) written notice to Purchaser
that a tenant under its lease (“Right of
First Refusal Lease”)  has
exercised a right of first refusal, right of first offer or option to purchase
a Property prior to Closing pursuant to the existing terms of its lease, (ii) the
taking of one hundred percent (100%) of a Property by condemnation or eminent
domain or (iii) any one or more of the following, to the extent the
existence of the condition hereinafter described has a “Material Adverse Effect”
on the use, value or marketability of the applicable Property: (a) the
existence of a title exception other than a Permitted Exception on an Owner’s
Policy to be issued by the Title Company at the time of the Closing; provided,
however that Seller shall, at Seller’s expense, use reasonable efforts to
obtain a title insurance endorsement to the Owner’s Policy (defined below)
insuring over any unpermitted title exception, (b) the existence of a
difference on a Survey not reflected on the Initial Surveys; (c) if
Purchaser has not been provided with a copy of a zoning endorsement issued by
the Title Company with respect to any Properties (whether in favor of Seller or
Purchaser) prior to the Effective Date and it is determined that the present
use of the Property is not permitted under the zoning ordinance in effect on
the Effective Date; (d) the physical or environmental condition of the
Properties are not the same as on the Effective Date, ordinary wear and tear
and damage by casualty excepted, provided, however, that under this subsection (d) it
shall not be a Substitution Event if a tenant of the Property is responsible
under its lease for maintaining, repairing or restoring the physical or
environmental condition in question; and (e) the existence of a breach of
a warranty or representation made by Seller under Sections 7.1.4, 7.1.6,
7.1.7, 7.1.9, 7.2.4, 7.2.6, 7.2.7 and 7.2.9 of this Agreement
(or any change in the schedules thereto). 
The term “Material Adverse Effect”
as used herein shall mean that a liability or loss reasonably anticipated to
arise out of the condition under (a) Sections 9.9.1(iii)(a) or
(b) which exceeds $150,000.00 for the affected Property, or (b) under
Sections 9.9.1iii(c), (d) or (e) which exceeds seven
and one-half percent (7.5%) of the Purchase Price for the affected Property.


 


9.9.2        In the event of the occurrence of a
Substitution Event (and notwithstanding any election by Seller to attempt to
cure the condition giving rise to the Substitution Event), Seller shall use
reasonable efforts to substitute another Property or Properties owned by Seller
that the parties mutually agree in their reasonable opinion is comparable
(individually, a “Substitute Property”
and collectively, the “Substitute Properties”).  Seller shall use reasonable efforts to identify
a Substitute Property within thirty (30) days after receipt of an Event
Notice.  Commencing on the date that
Purchaser receives a notice from Seller identifying a Substitute Property or
Substitute Properties to replace a Removed Property or Removed Properties (“Substitution of Assets Notice”), and
continuing until 5:00 p.m. Central time on the thirtieth (30th)
day thereafter (“Substitute Properties
Feasibility Period”), Purchaser and its agents shall have the right
to conduct inspections and tests of the Substitute Properties in the manner
hereby provided in Section 9.9.5 and subject to the provisions as
provided in Section 9.9.6. 
In the event that Purchaser approves all of the Substitute Properties
prior to the expiration of the Substitute Properties Feasibility Period, all of
the Substitute Properties shall be subject to this Agreement, and the Purchase
Price shall be adjusted as provided below in Section 9.9.3.  In the event that Purchaser does not approve
one or more of the Substitute Properties prior to the expiration of the
Substitute Properties Feasibility Period, the Substitute Property or Properties
not approved by Purchaser and the Removed Property or Removed Properties shall
not be subject to this Agreement, and the Purchase Price shall be reduced by
the value of the Removed Property or Removed Properties, as the case may be, as
set forth on Schedule 9.8.  All
Substitute Properties approved by Purchaser shall be deemed to be Properties
subject to this 


 


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Agreement, except that all
warranties and representations shall be modified to reflect the circumstances
relating to the Substitute Properties. 
Within fifteen (15) days after the Substitution of Assets Notice, Seller
shall deliver Schedules similar to those attached hereto as Schedules 7.1.4,
7.1.5, 7.1.6, 7.1.7, 7.1.8, 7.1.9, 7.1.10, 7.2.4, 7.2.5, 7.2.6, 7.2.7, 7.2.8, 7.2.9 and 7.2.10 with respect
to the Substitute Properties.


 


9.9.3        For the purposes of this Section 9.9,
the purchase price for a Removed Property shall be based on Schedule 9.8
attached hereto, and the purchase price for a Substitute Property shall be
calculated using a capitalization rate equal to the capitalization rate that
was used to determine the Purchase Price of the Removed Property and the annual
net rent of the Substitute Property, without deductions (“Substitute Property Purchase Price”).  In the event that the Seller delivers the
Substitution of Assets Notice to Purchaser within the time frame set forth
above, the Closing of all Properties not subject to the Substitution of Assets
Notice shall take place on the date of the Scheduled Closing Date.  Subject to the right of Purchaser to
disapprove one or more of the Substitute Properties during the Substitute
Properties Feasibility Period, and further subject to the provisions of Section 4.1
above, the Closing with respect to each Substitute Property shall take place on
the thirtieth (30th) day following the expiration of the applicable
Substitute Property Feasibility Period.


 


9.9.4        Seller shall deliver to Purchaser copies
of all notices sent by Seller to tenants under Right of First Refusal Leases as
required under the Right of First Refusal Leases, and shall notify Purchaser
promptly if it receives a notice from an Exercising Tenant.


 


9.9.5        During the Substitute Properties
Feasibility Period, Purchaser and its agents shall have the right during
business hours (with reasonable advance notice to Seller and subject to the
rights of the tenants in possession), at Purchaser’s sole cost and expense and
at Purchaser’s and its agents’ sole risk, to perform inspections and tests of
the Substitute Properties and to perform such other analyses, inquiries and
investigations as Purchaser shall deem reasonably necessary or appropriate;
provided, however, that in no event shall (i) such inspections or tests
unreasonably disrupt or disturb the on-going operation of the Substitute
Properties or the rights of the tenants at the Substitute Properties, or (ii) Purchaser
or its agents or representatives conduct any physical testing, drilling,
boring, sampling or removal of, on or through the surface of the Substitute
Properties (or any part or portion thereof) including, without limitation, any
ground borings or invasive testing of the Improvements (collectively, “Physical Testing”), without Seller’s prior
written consent, which consent may be given or withheld in Seller’s sole and
absolute discretion. Seller acknowledges and agrees that the performance of a
phase I environmental assessment on behalf of Purchaser (“Phase I Assessments”) shall not be
considered Physical Testing for purposes hereof and shall be permitted without
Purchaser obtaining the consent of Seller. 
In the event Purchaser desires to conduct any such Physical Testing of a
Substitute Property, then Purchaser shall submit to Seller, for Seller’s
approval, a written detailed description of the scope and extent of the
proposed Physical Testing, which approval may be given or withheld in Seller’s
sole and absolute discretion.  In no event
shall Seller be obligated as a condition of this transaction to perform or pay
for any environmental remediation of the Substitute Properties recommended by
any such Physical Testing.  After making
such tests and inspections, Purchaser agrees to promptly restore the Substitute
Properties to their condition prior to such tests and inspections (which
obligation shall survive the Closing or any termination of this
Agreement).  In addition to the rights
available to the Purchaser during the Substitute Properties Feasibility Period,
as set forth above, Purchaser and its agents shall have access to the
Substitute Properties prior to the Closing


 


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Date, but during normal
business hours (with reasonable advance notice to Seller and subject to the
rights of the tenants in possession), at Purchaser’s sole cost and expense, and
at Purchaser’s and its agents’ sole risk, to inspect the applicable Substitute
Properties; provided, however, Purchaser shall not be entitled to conduct any
Physical Testing or any Phase I Assessment after the expiration of the
Substitute Properties Feasibility Period. 
Prior to Purchaser entering the Substitute Properties to conduct the
inspections and tests described above, including, but not limited to, the Phase
I Assessments, Purchaser shall obtain and maintain, at Purchaser’s sole cost
and expense, and shall deliver to Seller evidence of, the following insurance
coverage, and shall cause each of its agents and contractors to obtain and maintain,
and, upon request of Seller, shall deliver to Seller evidence of, the following
insurance coverage:  general liability
insurance, from an insurer reasonably acceptable to Seller, in the amount of
Five Million and No/100 Dollars ($5,000,000.00) combined single limit for
personal injury and property damage per occurrence, such policy to name Seller
as an additional insured party, which insurance shall provide coverage against
any claim for personal liability or property damage caused by Purchaser or its
agents, employees or contractors in connection with such inspections and tests
(“Due Diligence Insurance”).  Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its
agents do not unreasonably interfere with Purchaser’s inspection.


 


9.9.6        Purchaser and its agents and
representatives shall:  (a) not
unreasonably disturb the tenants of the Substitute Properties or interfere with
their use of the Substitute Properties pursuant to their respective Leases; (b) not
interfere with the operation and maintenance of the Substitute Properties; (c) not
damage any part of the Substitute Properties or any personal property owned or
held by any tenant; (d) not injure or otherwise cause bodily harm to
Seller, its agents, contractors and employees or any tenant; (e) promptly
pay when due the costs of all tests, investigations and examinations done with
regard to the Substitute Properties; (f) not permit any liens to attach to
the Substitute Properties by reason of the exercise of its rights hereunder; (g) restore
the Improvements and the surface of the Substitute Properties to the condition
in which the same was found before any such inspection or tests were
undertaken; and (h) except to the extent required by applicable laws, not
reveal or disclose any information obtained pursuant to its right to evaluate
set forth in Section 9.9.5 above concerning the Substitute
Properties to anyone other than a Purchaser Party/Representative.  Purchaser shall, at its sole cost and
expense, comply with all applicable federal, state and local laws, statutes,
rules, regulations, ordinances or policies in conducting its inspection of the
Substitute Properties, the Purchaser’s Phase I Assessments and the Physical
Testing.  Purchaser shall, and does
hereby agree to indemnify, defend and hold the Seller, its partners, members,
officers, directors, employees, agents, attorneys and their respective
successors and assigns, harmless from and against any and all claims, demands,
suits, obligations, payments, damages, losses, penalties, liabilities, costs
and expenses (including but not limited to attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Substitute
Properties in the exercise of the inspection right granted pursuant to Section 9.9.5,
including, without limitation, (i) claims made by any tenant against
Seller for Purchaser’s entry into such tenant’s premises or any interference
with any tenant’s use or damage to its premises or property in connection with
Purchaser’s review of the Substitute Properties, and (ii) Purchaser’s
obligations pursuant to this Section 9.9.6.  This Section 9.9.6 shall survive
the Closing of the Substitute Properties and/or any termination of this
Agreement without limitation.


 


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9.9.7        With respect to the Substitute
Properties, Seller shall deliver to Purchaser or make available at the
applicable Substitute Property or Seller’s office in Oak Brook, Illinois, at
Seller’s option, the following: operating statements, leases, reports relating
to the physical and/or environmental condition of the applicable Substitute
Properties, a statement of the estimated value of the applicable Substitute
Properties from an independent industrial real estate broker with at least ten (10) years
experience in the marketplace (which value shall not be binding on Seller or
Purchaser), rent rolls and revenue and expense statements, Seller and Purchaser
shall use reasonable efforts to agree upon the format and scope of such
materials, but agree that the format and scope shall be similar to the
materials typically provided by Seller to Purchaser in connection with the sale
of the Properties in accordance with Section 5.1 hereof (the “Substitute Property Documents”); provided,
however, that except for the representations and warranties made in Article VII
hereof, Seller makes no representations or warranties of any kind regarding the
accuracy, thoroughness or completeness of or conclusions drawn in the
information contained in such Substitute Properties Documents.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Notwithstanding anything contained in the preceding sentence, Seller
shall not deliver or make available to Purchaser Seller’s internal memoranda,
attorney-client privileged materials, internal appraisals and economic
evaluations of the Substitute Properties, and reports regarding the Substitute
Properties prepared by Seller or its affiliates solely for internal use or for
the information of the investors in Seller. 
Purchaser acknowledges that any and all of the Substitute Properties
Documents that are not otherwise known by or available to the public are
proprietary and confidential in nature and will be delivered to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Substitute Properties.  Purchaser agrees
not to disclose such non-public documents, or any of the provisions, terms or
conditions thereof, to any party other than a Purchaser
Party/Representative.  Purchaser shall
return all of the Substitute Properties Documents, on or before three (3) Business
Days after the first to occur of (a) such time as Purchaser notifies
Seller in writing that it shall not acquire the Substitute Properties, or (b) such
time as this Agreement is terminated for any reason.  This Section 9.9.7 shall survive
any termination of this Agreement without limitation.


 


9.9.8        Purchaser hereby acknowledges that it
will have been given, prior to the termination of the Substitute Properties
Feasibility Period, a full, complete and adequate opportunity to make such
legal, factual and other determinations, analyses, inquiries and investigations
as Purchaser deems necessary or appropriate in connection with the acquisition
of the Substitute Properties.  Purchaser
will be relying upon its own independent examination of the Substitute
Properties and all matters relating thereto and not upon any statements of
Seller (excluding the limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Substitute Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser relating to the Substitute Properties.  The provisions of this Section 9.9.8
shall survive Closing and/or termination of this Agreement without limitation.


 


9.10        Contracts. 
Seller shall not, with respect to a Contract that will survive Closing,
from and after the Effective Date, terminate an existing Contract, enter into a
new Contract or modify an existing Contract without the prior written approval
of Purchaser, which consent in each case shall not be unreasonably conditioned,
withheld or delayed and which shall be deemed granted if


 


22





















 


Purchaser fails to respond to a request for
approval within five (5) Business Days after receipt of the request
therefor together with a summary of the terms of the Contract (an “Approved New Contract”).  Schedule 9.10 attached hereto
contains a list of Contracts for the Properties that Purchaser will assume as
of the Closing, and a list of Contracts for the Properties that Purchaser is
requesting Seller to terminate as of the Closing (the “Unassumed Contracts”).  Provided that the Closing occurs hereunder,
Seller shall terminate such applicable Unassumed Contracts effective as of the
Closing Date and deliver evidence at such Closing of such termination.


 


9.11        Indiana
Responsible Property Transfer Law.  Purchaser acknowledges that Seller has
delivered to Purchaser and Purchaser’s lender, if any, a fully completed and
executed Indiana Responsible Property Transfer Law disclosure form for Property
located in Indiana in the form proscribed by Indiana statute.  Within thirty (30) days after the Closing
Date, Purchaser shall file the disclosure form (and attached site plan, if
required) with the Indiana Department of Environmental Management and shall
record the disclosure form in the appropriate County Recorder’s Office.  Purchaser hereby agrees to indemnify and hold
Seller harmless against all claims, costs, damages, expenses, liabilities,
losses and penalties, including, but not limited to, attorneys’ fees, which
Seller may incur as a result of Purchaser’s failure to comply with its
obligations pursuant to this Section 9.11.  Purchaser’s indemnity hereunder shall survive
the Closing of this transaction.


 


9.12        REA
Estoppels.  Attached hereto as Schedule 9.12
is a list of REA and other Property-related estoppels that Purchaser would like
to obtain prior to Closing (collectively, the “REA Estoppels”). 
Purchaser shall prepare and deliver to Seller REA Estoppel Certificates
for each of the REA Estoppels (the “REA
Estoppel Certificates”), and Seller shall send out the REA Estoppel
Certificates for execution prior to the Closing Date, it being understood that
obtaining the REA Estoppel Certificates shall not be a condition to Purchaser’s
obligation to close.


 


ARTICLE X

Closing Conditions


 


10.1        Conditions
to Obligations of Purchaser.  The obligations of Purchaser
under this Agreement to purchase the Properties and consummate the other
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions on or before the Scheduled Closing Date, except to the
extent that any of such conditions may be waived by Purchaser in writing at
Closing.


 


10.1.1      Tenant Estoppels.  Purchaser shall have received tenant estoppel
certificates dated not more than thirty (30) days prior to the Closing from
seventy-five percent (75%) of the occupied square footage in the
Properties.  Seller agrees to deliver to
each tenant a tenant estoppel certificate substantially in the form attached
hereto as Exhibit K.  Notwithstanding the foregoing, in the event
that a Lease requires a different form of estoppel certificate or requires
specific provisions, Purchaser shall be required to accept a tenant estoppel
certificate that is substantially in the form required by said Lease or
substantially in the form of Exhibit K
as modified to comply with the specific provisions required by said Lease.  Additionally, Purchaser acknowledges that
while the statements set forth in paragraphs 8 and 9 of Exhibit K are not qualified to the
knowledge or best knowledge of the tenant, Purchaser shall be required to
accept any tenant estoppel certificate that has been qualified to the knowledge
or best knowledge of the tenant with respect to said paragraphs.  Notwithstanding the foregoing, at Seller’s
sole option, Seller may (i) extend the Scheduled Closing Date solely with
respect to up to five (5) of the Properties for up to an additional thirty
(30) days in order to satisfy the foregoing requirement for such Properties, in
which event Seller shall deliver notice of such extension with respect to such
Properties to Purchaser


 


23





















 


prior to the Scheduled
Closing Date (and the Closing shall proceed as scheduled with respect to all
other Properties), and/or (ii) provide its own estoppel (“Seller’s Estoppel”) in the form attached as
Exhibit L to Purchaser
in satisfaction of the foregoing requirements with respect to not more than
twenty-five percent (25%) of the occupied square footage of the
Properties.  In the event that Seller has
not complied with the provisions of this Section 10.1.1, Purchaser
may (i) elect to consummate the Closing, or (ii) notify Seller of its
intent to terminate this Agreement by written notice (the “Tenant Estoppel Termination Notice”) on or
before the Scheduled Closing Date.  In
the event that, after the Closing, Seller delivers to Purchaser a tenant
estoppel certificate from a tenant for whom Seller executed a Seller’s Estoppel
at the Closing and such tenant estoppel certificate contains no information
which is contradictory to or inconsistent with the information contained in the
Seller’s Estoppel, then Seller thereafter shall be released from all liability
relating to Seller’s Estoppel with respect to such tenant’s Lease.  In no event shall Seller be obligated to
deliver updates to the tenant estoppel certificate or Seller’s Estoppel.


 


10.1.2      Title Policy.  The Title Company shall be prepared to issue
to Purchaser on the Closing Date an extended coverage ALTA Form B policy
of title insurance, amended October 17, 1970 (the “Owner’s Policy”), or equivalent form Owner’s
Policy acceptable to Purchaser, with respect to each Property in the
Properties, in the face amount of the applicable Purchase Price attributable to
such Property, and dated as of the Closing Date, indicating title to such
Property is vested of record in Purchaser, subject solely to the applicable
Permitted Exceptions.


 


10.1.3      Possession of the Property.  Delivery by Seller of possession of the
applicable Property, subject to the Permitted Exceptions and the rights of
tenants under the applicable Leases and Approved New Leases.


 


ARTICLE XI

Closing


 


11.1        Purchaser’s
Closing Obligations.  Purchaser, at its sole cost and expense,
shall deliver or cause to be delivered to Seller and the Title Company at each
Closing the following, as same relates to the Properties:


 


11.1.1      The applicable portion of the Purchase
Price, after all adjustments are made at the Closing as herein provided, by
wire transfer or other immediately available federal funds, which amount shall
be received in escrow by the Title Company at or before 11:00 a.m. Central
time.


 


11.1.2      An assumption of a blanket conveyance and
bill of sale, substantially in the form attached hereto as Exhibit M (“General Assignment”), duly executed by Purchaser,
conveying and assigning to Purchaser the applicable Personal Property, Leases,
Contracts, records and plans, and Intangible Property.


 


11.1.3      Executed counterparts of the Master Lease
and the Amendment to Property Management Agreement, and such other documents to
be provided in accordance with Sections 9.5 and 9.6 hereof with
respect to the Closing.


 


11.1.4      Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings, if requested by the Title Company.


 


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11.2        Seller’s
Closing Obligations.  Seller, at its sole cost and expense, shall
deliver or cause to be delivered to Purchaser and the Title Company the
following, as same relates to each of the Properties and the Properties, as the
case may be:


 


11.2.1      A Special warranty deed (a “Deed”) in recordable form properly executed
by Seller conveying to Purchaser the Land and Improvements in fee simple,
subject only to the Permitted Exceptions, substantially in the form attached
hereto as Exhibit N
(as modified in order to satisfy any State-specific requirements with respect
to the States of Indiana and Wisconsin, if applicable).


 


11.2.2      A General Assignment, duly executed by
Seller, conveying and assigning to Purchaser the Personal Property, the Leases,
the Contracts and the Intangible Property.


 


11.2.3      Written notice to the tenant(s) (i) acknowledging
the sale of the Property to Purchaser, (ii) acknowledging that Purchaser
has received and is responsible for any security deposits identified in the
rent roll, and (iii) indicating that rent should thereafter be paid to
Purchaser, substantially in the form attached hereto as Exhibit O.


 


11.2.4      A certificate substantially in the form
attached hereto as Exhibit P
(“Non-foreign Entity Certification”)
certifying that Seller is not a “foreign person” as defined in the Code.


 


11.2.5      Executed counterparts of the Master Lease
and the Amendment to Property Management Agreement, and such other documents to
be provided in accordance with Sections 9.5 and 9.6 hereof with
respect to the Closing.


 


11.2.6      Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings.


 


11.2.7      Purchaser and Seller have agreed that
possession (but not ownership) of all original Leases, tenant files and
Contracts shall remain with Seller following Closing, in its capacity as
Property Manager but that ownership of such items shall pass to Purchaser.  Any duplicate originals of Leases and
Contracts in Seller’s possession or control shall be delivered to Purchaser
promptly after Closing.


 


11.2.8      All REA Estoppel Certificates received by
Seller, if any.


 


11.2.9      A certificate of Seller by which Seller
reaffirms the truth and accuracy in all material respects of the
representations and warranties set forth in Sections 7.1 and 7.2
above, subject to and setting forth any changes thereto occurring since the
Effective Date.


 


11.2.10  Reliance letters with respect to and
permitting Purchaser to rely on the most recent Phase 1 environmental reports provided
by Seller to Purchaser from the consultant who prepared the applicable
environmental report.


 


11.3        Joint
Closing Obligations.  Purchaser
and Seller shall execute and deliver a closing statement for each of the
Properties setting forth the applicable Purchase Price, and any and all
prorations and credits between the parties, as determined pursuant to this
Agreement, together with real estate transfer tax declarations as required.


 


25





















 


ARTICLE XII

Risk of Loss


 


12.1        Condemnation
and Casualty.  If, prior to the Closing Date, any portion of
the applicable Properties are taken by condemnation or eminent domain, or is
the subject of a pending taking which has not been consummated, or is destroyed
or damaged by fire or other casualty, Seller shall notify Purchaser of such
fact promptly after Seller obtains knowledge thereof.  If such condemnation or casualty is “Material” (as hereinafter defined),
Purchaser shall have the option to either (i) extend the Scheduled Closing
Date solely with respect to the applicable Property for a time reasonably
required by Seller to repair any damage or destruction with respect to the
applicable Property (and the Scheduled Closing Date shall proceed as scheduled
with respect to all other Properties), or (ii) proceed to Closing in
accordance with the terms of Section 12.1. If Purchaser elects to
proceed to Closing, then Seller shall not be obligated to repair any damage or
destruction with respect to the applicable Property, but (x) Seller shall
assign, without recourse, and turn over to Purchaser all of the insurance
proceeds or condemnation proceeds, as applicable, net of any costs of repairs
and net of reasonable collection costs (or, if such have not been awarded, all
of its right, title and interest therein) payable with respect to such fire or
other casualty or condemnation including any rent abatement insurance for such
casualty or condemnation and (y) the parties shall proceed to Closing pursuant
to the terms hereof without abatement of the Purchase Price except for a credit
in the amount of the applicable insurance deductible.


 


12.2        Condemnation
Not Material.  If the condemnation is not Material, then the
Closing shall occur without abatement of the Purchase Price and, after
deducting Seller’s reasonable costs and expenses incurred in collecting any
award, Seller shall assign, without recourse, all awards or any rights to
collect awards to Purchaser on the Closing Date.


 


12.3        Casualty
Not Material.  If the Casualty is not Material, then the
Closing shall occur without abatement of the Purchase Price except for a credit
in the amount of the applicable deductible and Seller shall not be obligated to
repair such damage or destruction and Seller shall assign, without recourse, and
turn over to Purchaser all of the insurance proceeds net of any costs of
repairs completed to date and net of reasonable collection costs (or, if such
have not been awarded, all of its right, title and interest therein) payable
with respect to such fire or such casualty including any rent abatement
insurance for such casualty.


 


12.4        Materiality.  For
purposes of this Article XII, (i) with respect to a taking by
condemnation or eminent domain, the term “Material”
shall mean any condemnation or taking which would materially impede access to a
Property, reduce available parking at a Property below that required by
applicable law or any other agreement affecting such Property, result in the
termination of any Lease of more than ten percent (10%) of the space in the
applicable Property, or result in a condemnation award reasonably estimated to
exceed ten percent (10%) of the Purchase Price applicable to such Property; and
(ii) with respect to a casualty, the term “Material” shall mean any casualty such that the cost of
repair, as reasonably estimated by an engineer designated by Seller and
Purchaser, is in excess of ten percent (10%) of the Purchase Price applicable
to such Property.


 


ARTICLE XIII

Default


 


13.1        Default
by Seller.  IN THE EVENT THE CLOSING AND THE TRANSACTIONS
CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF ANY DEFAULT OF
SELLER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS AFTER WRITTEN
NOTICE FROM PURCHASER TO SELLER, IT WOULD BE IMPRACTICAL AND


 


26





















 


EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES
WHICH PURCHASER MAY SUFFER. 
THEREFORE, THE PARTIES HAVE AGREED THAT A REASONABLE ESTIMATE OF THE
TOTAL NET DETRIMENT THAT PURCHASER WOULD SUFFER IN SUCH EVENT IS AND SHALL BE
THE RIGHT TO RETAIN THE PROCEEDS OF THE SELLER LETTER OF CREDIT,  AS LIQUIDATED DAMAGES, AS PURCHASER’S SOLE
AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT. 
SUCH LIQUIDATED DAMAGES ARE NOT INTENDED AS A FORFEITURE OR PENALTY
WITHIN THE MEANING OF APPLICABLE LAWS. 
Notwithstanding the foregoing, nothing contained herein shall limit
Purchaser’s remedies at law or in equity, as to the Surviving Termination
Obligations.


 


13.2        Default
by Purchaser; Liquidated Damages.  IN THE EVENT THE CLOSING AND
THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON
OF ANY DEFAULT OF PURCHASER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS
AFTER WRITTEN NOTICE FROM SELLER TO PURCHASER, IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER.  THEREFORE, THE PARTIES HAVE AGREED THAT A
REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN SUCH
EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE PROCEEDS OF THE PURCHASER LETTER
OF CREDIT AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER
THIS AGREEMENT.  SUCH LIQUIDATED DAMAGES
ARE NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE
LAWS.  Notwithstanding the foregoing,
nothing contained herein shall limit Seller’s remedies at law or in equity, as
to the Surviving Termination Obligations.


 


ARTICLE XIV

Brokers


 


14.1        Brokers. 
Purchaser and Seller each represents and warrants to the other that it
has not dealt with any person or entity entitled to a brokerage commission,
finder’s fee or other compensation with respect to the transaction contemplated
hereby.  Purchaser hereby agrees to
indemnify, defend, and hold Seller harmless from and against any losses,
damages, costs and expenses (including, but not limited to, attorneys’ fees and
costs) incurred by Seller by reason of any breach or inaccuracy of the
Purchaser’s ( or its nominee’s) representations and warranties contained in
this Article XIV.  Seller
hereby agrees to indemnify, defend, and hold Purchaser harmless from and
against any losses, damages, costs and expenses (including, but not limited to,
attorneys’ fees and costs) incurred by Purchaser by reason of any breach or
inaccuracy of Seller’s representations and warranties contained in this Article XIV.  The provisions of this Article XIV
shall survive the Closing and/or termination of this Agreement.


 


ARTICLE XV

Confidentiality


 


15.1        Confidentiality. 
Purchaser expressly acknowledges and agrees that the transactions
contemplated by this Agreement, the Documents that are not otherwise known by
or readily available to the public and the terms, conditions and negotiations
concerning the same shall be held in the strictest confidence by Purchaser and
shall not be disclosed by Purchaser except to a Purchaser Party/Representative,
and except and only to the extent that such disclosure may be necessary for its
performance hereunder.  Purchaser agrees
that it shall instruct each of its Purchaser Party/Representatives to maintain
the confidentiality of such information and at the request of Seller, to
promptly inform Seller of the identity of each such Purchaser
Party/Representative.  Purchaser further
acknowledges and agrees that, unless and until the


 


27





















 


Closing occurs, all information and materials
obtained by Purchaser in connection with the Properties that are not otherwise
known by or readily available to the public will not be disclosed by Purchaser
to any third persons (other than to its Purchaser Party/Representatives)
without the prior written consent of Seller. 
If the transaction contemplated by this Agreement does not occur for any
reason whatsoever, Purchaser shall promptly return to Seller, and shall
instruct its Purchaser Party/Representatives to return to Seller, all copies
and originals of all documents and information provided to Purchaser.  Nothing contained in Section 5.2
of this Agreement or this Section 15.1 shall preclude or limit
either party from disclosing or accessing any information otherwise deemed
confidential under Section 5.2 or this Section 15.1 in
connection with the party’s enforcement of its rights following a disagreement
hereunder or in response to lawful process or subpoena or other valid or
enforceable order of a court of competent jurisdiction or any filings or
disclosures with any applicable Authorities (In the Unites States and/or
Australia) required by reason of the transactions provided for herein and/or
any filings or disclosures required in accordance with the laws or market rules (including
stock exchange rules) of the United States and/or Australia.  The provisions of this Section 15.1
shall survive any termination of this Agreement without limitation.


 


15.2        Post
Closing Publication.  Notwithstanding the foregoing, following
Closing, Purchaser and Seller shall have the right to announce the acquisition
of the Properties in newspapers and real estate trade publications (including “tombstones”)
publicizing the purchase provided that Purchaser and Seller shall consult one
another with respect to any such notice or publication, and shall implement any
reasonable comments or objections of the other. 
Seller may also publicize the sale of the Property in the ordinary
course of its business.  The provisions
of this Section 15.2 shall survive Closing and/or any termination
of this Agreement without limitation.


 


ARTICLE XVI

1031 Exchange


 


16.1        1031
Exchange.  Purchaser
agrees to cooperate with Seller for purposes of effecting and structuring, in
conjunction with the sale of the Properties, for the benefit of Seller, a
like-kind exchange of real property, whether simultaneous or a deferred
exchange, pursuant to Section 1031 of the Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder.  Purchaser specifically agrees to execute such
documents and instruments as are reasonably necessary to implement such an
exchange.  Seller shall be solely
responsible for assuring that the structure of any proposed exchange is
effective for Seller’s tax purposes. 
Furthermore, Purchaser specifically agrees that Seller may assign this
Agreement and any of its rights or obligations hereunder, in whole or in part,
as necessary or appropriate in furtherance of effectuating a Section 1031
like-kind exchange for the Properties, provided that such assignment shall not
serve to relieve Seller of any liability for Seller’s obligations
hereunder.  Purchaser shall have no
obligation to pay costs or expenses of effectuating such exchange, no such
exchange shall alter the time for performance set forth herein, and Purchaser
shall not be required to take title to any exchange property or (except for
customary consent to assignment of this Agreement to an exchange intermediary)
to incur obligations to third parties.


 


ARTICLE XVII

Miscellaneous


 


17.1        Notices.  Any
and all notices, requests, demands or other communications hereunder shall be
in writing and shall be deemed properly served (i) on the date sent if
transmitted by hand delivery with receipt therefor, (ii) on the date sent
if transmitted by facsimile (with confirmation by hard copy to follow by
overnight delivery service), (iii) on the date sent if scanned to


 


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a .pdf file and transmitted by e-mail (with
confirmation by hard copy to follow by overnight delivery service) (iv) on
day after the notice is deposited with a nationally recognized overnight
courier, or (v) upon receipt after being sent by registered or certified
mail, return receipt requested, first class postage prepaid, addressed as
follows (or to such new address as the addressee of such a communication may
have notified the sender thereof):


 


 


	
  To Purchaser:

  	
   

  	
  CenterPoint James
  Fielding, LLC

  Level 5, 40 Miller Street

  North Sydney, NSW 2060

  Australia

  Attn: Mr. Ben Hindmarsh

  Fax No.:61 2 9004 8462

  E-Mail: benhindmarsh@mirvac.com.au

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Wildman Harrold
  Allen & Dixon LLP

  225 W. Wacker Drive, Suite 3000

  Chicago, Illinois 60606

  Attn: Kathleen M. Gilligan, Esq.

  Fax No.: (312) 201-2555

  E-Mail:gilligan@wildmanharrold.com

  
	
   

  	
   

  	
   

  
	
  To Seller:

  	
   

  	
  CenterPoint Properties
  Trust

  1808 Swift Drive

  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Attn:

  	
  Mr. James N. Clewlow

  and Mr. Michael M. Mullen

  
	
   

  	
   

  	
  Fax No.: (630) 586-8010

  E-Mail: jclewlow@centerpoint-prop.com

  E-Mail: mmullen@centerpoint-prop.com

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Weinberg Richmond LLP

  333 West Wacker Drive, Suite 1800

  Chicago, Illinois 60606

  Attn: Mark S. Richmond, Esq.  

  
	
   

  	
   

  	
  Fax No.:

  E-Mail

  	
  (312) 807-3903

  mrichmond@wr-llp.com

  
					



 


17.2        Governing
Law.  This Agreement shall be governed by and
construed in accordance with the internal, substantive laws of the State of
Illinois, without regard to the conflict of laws principles thereof.


 


17.3        Headings.  The
captions and headings herein are for convenience and reference only and in no
way define or limit the scope or content of this Agreement or in any way affect
its provisions.


 


17.4        Effective
Date.  This Agreement shall be effective upon
delivery of this Agreement fully executed by the Seller and Purchaser, which
date shall be deemed the Effective Date hereof. 
Either party may request that the other party promptly execute a
memorandum specifying the Effective Date.


 


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17.5        Business
Days.  If any date herein set forth for the
performance of any obligations of Seller or Purchaser or for the delivery of
any instrument or notice as herein provided should be on a Saturday, Sunday or
legal holiday, the compliance with such obligations or delivery shall be deemed
acceptable on the next business day following such Saturday, Sunday or legal
holiday.  As used herein, the term “legal
holiday” means any state or Federal holiday for which financial institutions or
post offices are generally closed in the state where the Property is located.


 


17.6        Counterpart
Copies.  This Agreement may be executed in two or more
counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this Agreement.


 


17.7        Binding
Effect.  This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns.


 


17.8        Assignment. 
Purchaser shall not have the right to assign this Agreement without
Seller’s prior written consent, which consent may be given or withheld in
Seller’s sole and absolute discretion; provided, however, Purchaser may
designate a wholly owned subsidiary to acquire title to the Properties at
Closing or assign its right, title and interest under this Agreement to a
wholly owned subsidiary, provided that in no event will Purchaser be released
from any of its obligations or liabilities under this Agreement.  Seller may assign this Agreement in whole or
in part to any corporate, limited liability company or partnership entity
affiliated with, or related to, Seller (“Affiliate”)
without Purchaser’s consent; provided that Seller shall in no event be released
from any of its obligations or liabilities hereunder as a result of any such
assignment.  In the event that an
Affiliate shall be designated as a transferee hereunder, the Affiliate shall have
the benefit of all of the representations and rights that would otherwise have
run in favor of Seller, which, by the terms of this Agreement, are incorporated
or relate to the conveyance in question. 
All transferees and assignees of Purchaser (“Assignee”) shall assume all of Purchaser’s obligations under
this Agreement pursuant to an Assignment and Assumption Agreement reasonably
acceptable to Seller, and consented to in writing by Seller.  In the event the rights and obligations of
Purchaser shall be transferred, assigned and assumed as permitted under this
Agreement, then such Assignee will be substituted in place of such assignor in
the above-provided-for documents and it shall be entitled to the benefit of and
may enforce Seller’s covenants, representations and warranties hereunder
provided that Purchaser shall in no event be released from any of its
obligations or liabilities hereunder as a result of such assignment.  Upon any such assignment by Purchaser or any
successor or assign of Purchaser, then the assignor’s liabilities and
obligations hereunder or under any instruments, documents or agreements made
pursuant hereto shall be binding upon Assignee; provided, however, that
Assignee shall have the benefit of any limitations of such liabilities and
obligations applicable to either the assignor or Assignee, provided by law or
by the terms hereof or such instruments, documents or agreements.  Whenever reference is made in this Agreement
to Seller or Purchaser, such reference shall include the successors and assigns
of such party under this Agreement. 
Purchaser may assign this Agreement for collateral purposes only to
Purchaser’s lender.


 


17.9        Interpretation.  This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that both Seller and
Purchaser have contributed substantially and materially to the preparation of
this Agreement.


 


17.10      Entire
Agreement.  This Agreement and the Exhibits attached
hereto contain the final and entire agreement between the parties hereto with
respect to the sale and purchase of the Property and are intended to be an
integration of all prior negotiations and understandings.


 


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Purchaser, Seller and their agents shall not
be bound by any terms, conditions, statements, warranties or representations,
oral or written, not contained herein. 
No change or modifications to this Agreement shall be valid unless the
same is in writing and signed by the parties hereto.  Each party reserves the right to waive any of
the terms or conditions of this Agreement which are for their respective
benefit and to consummate the transaction contemplated by this Agreement in
accordance with the terms and conditions of this Agreement which have not been
so waived.  Any such waiver must be in
writing signed by the party for whose benefit the provision is being waived.


 


17.11      Severability.  If
any one or more of the provisions hereof shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


17.12      Survival. 
Except for obligations that survive the Closing pursuant to the
provisions of Sections (and related subparagraphs) 4.2, 5.1, 5.2,
5.3, 6.2, 7.4, 7.5, 7.6, 8.3, 8.4,
9.4, 9.9, 9.11, 10.2, 14.1, 15.1, 15.2,
17.15, 17.16,  17.20 and 17.23 (collectively, the “Surviving Termination Obligations”), the
provisions of this Agreement and the representations and warranties herein
shall not survive after the conveyance of title and payment of the Purchase
Price but be merged therein.


 


17.13      Exhibits
and Schedules.  Exhibits
A through S
and Schedules 7.1.4 through 9.12 attached hereto are incorporated herein by
reference.


 


17.14      Time.  Time
is of the essence in the performance of each of the parties’ respective
obligations contained herein.


 


17.15      Limitation
of Liability.  No present or future partner, member,
manager, director, officer, shareholder, employee, advisor, affiliate or agent
of or in Purchaser or any affiliate of Purchaser shall have any personal
liability, directly or indirectly, under or in connection with this Agreement
or any agreement made or entered into under or in connection with the
provisions of this Agreement, or any amendment or amendments to any of the foregoing
made at any time or times, heretofore or hereafter, and Seller and its
successors and assigns and, without limitation, all other persons and entities,
shall look solely to Purchaser’s assets for the payment of any claim or for any
performance, and Seller hereby waives any and all such personal liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Purchaser shall constitute an asset of Purchaser.  The limitations of liability contained in
this Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Purchaser provided elsewhere in this Agreement or by
law or by any other contract, agreement or instrument.  All documents to be executed by Purchaser
shall also contain the foregoing exculpation.


 


No present or future
partner, member, director, officer, shareholder, employee, advisor, affiliate
or agent of or in Seller or any affiliate of Seller shall have any personal
liability, directly or indirectly, under or in connection with this Agreement
or any agreement made or entered into under or in connection with the
provisions of this Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and Purchaser and
its successors and assigns and, without limitation, all other persons and
entities, shall look solely to Seller’s assets for the payment of any claim or
for any performance, and Purchaser hereby waives any and all such personal
liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Seller shall constitute an asset of Seller.  The limitations of liability contained in
this Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Seller provided elsewhere in this Agreement or by law
or by any


 


31





















 


other contract, agreement or instrument.  All documents to be executed by Seller shall
also contain the foregoing exculpation. 
The provisions of this Section 17.15 shall survive Closing
and/or any termination of this Agreement.


 


17.16      Prevailing
Party.  Should either party employ an attorney to
enforce any of the provisions hereof, (whether before or after Closing, and
including any claims or actions involving amounts held in escrow), the
non-prevailing party in any final judgment agrees to pay the other party’s
reasonable expenses, including reasonable attorneys’ fees and expenses in or
out of litigation and, if in litigation, trial, appellate, bankruptcy or other
proceedings, expended or incurred in connection therewith, as determined by a
court of competent jurisdiction.  The
provisions of this Section 17.16 shall survive Closing and/or any
termination of this Agreement.


 


17.17      No
Recording.  Neither this Agreement nor any memorandum or
short form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.


 


17.18      Waiver of
Trial by Jury.  The respective parties hereto shall and
hereby do waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Agreement, or for the
enforcement of any remedy under any statute, emergency or otherwise.


 


17.19      Cooperation between Seller and
Purchaser.  Seller agrees to reasonably cooperate with
Purchaser in connection with the preparation and delivery of any Subordination,
Non-Disturbance and Attornment Agreements required by Purchaser’s lenders in
connection with the closing of the transaction described herein.


 


17.20      Further
Assurances.  Each party shall, from time to time, at the
request of the other party, and without further consideration, execute and
deliver such further instruments and take such further action as may be
required or reasonably requested by either party to establish, maintain or
protect the respective rights of the parties to carry out and effect the
intentions and purposes of this Agreement.


 


17.21      Return of
Deposit.  Notwithstanding anything to the contrary
contained in this Agreement, whenever this Agreement provides that the Deposit
shall be delivered or returned to Purchaser, the parties acknowledge and agree
that said Deposit or a portion thereof shall remain with the Escrow Agent in
the event that Purchaser has failed to comply with the provisions of this
Agreement.  Notwithstanding anything to
the contrary contained in this Section 17.21, Seller agrees that if
the provisions of this Agreement provide for the return of the Deposit to
Purchaser that Seller will not unreasonably withhold its consent to the return
of the Deposit to Purchaser. 
Notwithstanding anything to the contrary contained in this Section 17.21,
Purchaser agrees that if the provisions of this Agreement provide for the
return of the Seller Earnest Money to Seller that Purchaser will not
unreasonably withhold its consent to the return of the Seller Earnest Money to
Seller.


 


17.22      Other
Agreements.  Seller and Purchaser have a business
relationship with each other and in connection therewith Seller and Purchaser have
entered into various other agreements as of the date hereof (“Other Agreements”).  A default by either party under any Other
Agreement not cured within any applicable cure period shall be deemed to be a
default by such party under this Agreement.


 


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17.23      Seller Environmental Obligations. 
Notwithstanding anything to the contrary contained in this Agreement,
based on conditions existing as of the Effective Date, Seller agrees to conduct
and complete, for Purchaser’s benefit and solely at Seller’s expense except as
provided below, all investigation and remediation measures necessary for Seller
to obtain (a) with respect to the Properties identified on Exhibit S, a No Further
Remediation (“NFR”) letter from
the Illinois Environmental Protection Agency, and (b) with respect to the
Properties identified on Exhibit S,
a Certificate of Completion in the Voluntary Remediation Program administered
by the Indiana Department of Environmental Management and a Covenant Not to Sue
from the office of the Governor of Indiana (the NFR Letter, the Certificates of
Completion, the Covenants Not to Sue, and all other necessary closure
certification records shall be referred to collectively herein as the “Completion Documents”).


 


17.23.1            Schedule.  Seller shall act with diligence in conducting
investigation and remediation measures, in pursuing issuance of the Completion
Documents, and in complying with any applicable requirements of the respective
state voluntary cleanup program, including without limitation the following, to
the extent required by the respective state voluntary cleanup program: causing
the Completion Documents to be recorded in the property records and filed with
governmental agencies, and notifying third parties such as off-site landowners.
Seller shall make reasonable efforts to cause the Completion Documents to be
issued by no later than the LLC Expiration Date (as defined in that certain
Limited Liability Company Agreement of even date herewith by and between
CenterPoint Properties Trust and JF US Industrial Property Trust).  If Seller fails to cause the Completion
Documents to be issued by no later than the LLC Expiration Date for any
individual Property (“NFR Substitution Event”),
Purchaser may, at its option, by written notice to Seller within thirty (30)
days after the occurrence of an NFR Substitution Event, request that Seller
offer a Substitute Property in accordance with Section 9.9.2 above.
(“NFR Substitution Notice”);
provided, however, in the event that Purchaser elects to have Seller provide a
Substitute Property, Seller, if it chooses to do so, in its sole and absolute
discretion, shall have a period of thirty (30) days from the date Seller is
given the NFR Substitution Notice to obtain the Completion Documents, and
further, provided, however, if the Completion Documents are not capable of
being obtained within said thirty (30) day period through no fault of Seller
and Seller has commenced to obtain the Completion Documents within such thirty
(30) day period, then Seller shall have such reasonable period of time from and
after the date of the NFR Completion Notice to obtain the Completion Documents;
provided, further, that such additional period shall not extend beyond the date
of the Closing with respect to the Substitute Property.  In the event Seller cures the condition
giving rise to the NFR Substitution Event prior to the time that a Closing with
respect to the Substitute Property occurs, the Scheduled Closing Date for the
Removed Property shall be extended to the fifteenth (15th) day after
the condition giving rise to the NFR Substitution Event has been cured.


 


In
the event Seller does not obtain the Completion Documents within the time
periods referenced above, Seller shall repurchase the Property in question at
such time as Purchaser acquires a Substitute Property.  Seller shall repurchase the Removed Property
for the same price paid by Purchaser to purchase such Property from Seller and
Seller shall repurchase such Property on the same terms and conditions of this
Agreement applicable to Purchaser’s acquisition of a Substitute Property.
Seller shall be obligated to repurchase the Property in question only if
Purchaser agrees to purchase the Substitute Property, and Purchaser and Seller
shall agree to close on both transactions on the same day at the same
time.  Seller and Purchaser agree to
follow the same terms, conditions and procedures for


 


33





















 


purposes
of this exchange as are generally consistent with Sections 9.9.5, 9.9.6,
9.9.7 and 9.9.8 of this Agreement.


 


17.23.2            Cooperation.  From and after the Effective Date of this
Agreement, Seller and Purchaser shall cooperate with each other to facilitate
the successful completion of the voluntary remediation process for each
Property.  Seller and Purchaser shall
consult in good faith about all draft workplans and proposed submissions to
regulatory authorities, and Seller shall make changes reasonably requested by Purchaser.  Seller shall provide at least two (2) Business
Days advance written notice of entry onto a Property and identify the general
nature of the work to be performed and the portion(s) of the Property on which
the work will be performed.  To the
extent practical, Seller shall provide advance notice to Purchaser of, and
shall allow Purchaser to participate in, meetings and telephone conferences
with regulatory authorities.  Seller
shall provide Purchaser with a copy of all test results, final submissions to
regulatory agencies and final documents received from such agencies within a
reasonable period of time after they are received or created by Seller.


 


17.23.3            Scope of
Testing Activities.  Pursuant to this
Section 17.23, Seller shall conduct initial testing sufficient to
reasonably identify all potential contaminants of concern materially related to
the industrial/commercial use at the Properties (reasonably taking into
consideration potentially significant environmental conditions indicated in
Phase 1 reports or in prior testing). 
Subsequent testing shall be conducted by Seller as reasonably necessary
to satisfy regulatory authorities for issuance of the Completion Documents.


 


17.23.4            Institutional
Controls.  The Completion Documents
may be qualified or conditioned by institutional controls (e.g., deed
restrictions, engineered barriers) to the extent such controls are consistent
with the Properties’ industrial/commercial use as of the Effective Date and are
necessary for issuance of the Completion Documents; provided, however, Seller
shall have sole discretion to select the remedial approach for obtaining the
Completion Documents.  Any such
institutional controls are subject to Purchaser’s review and approval, which
approval shall not be unreasonably withheld.


 


17.23.5            Execution of
Documents.  Solely relating to and
limited by Seller’s obligations as set forth in Article 17 hereto,
Seller shall arrange for any offsite disposal of hazardous substances, required
in order to obtain the Completion Documents, and shall execute all manifests
and similar documents, reflecting itself or its designee as the generator of
such hazardous substances, and in no event shall Seller name or identify
Purchaser as the generator of such hazardous substances; provided, however, the
Seller has no duty or obligation whatsoever for any hazardous substances
transported to, released upon or generated by Purchaser, its agents,
representatives and assigns, at, on, beneath or adjacent to the Properties.
Purchaser shall execute other documents reasonably requested by Seller that are
necessary and consistent with this Section 17.23.


 


17.23.6            Access.
Purchaser shall provide necessary access to Seller to carry out the provisions
of this section.  Seller shall use all
reasonable efforts to avoid any disruption of tenant activities, and shall
promptly repair at Seller’s sole cost and expense any damage caused by its
investigation or remediation activities.


 


17.23.7            Indemnification.
Until the earlier of the date the Seller procures and provides to Purchaser the
requisite Completion Documents as set forth herein for each Property, or an
appropriate substitute is exchanged pursuant to Section 17.23.1
hereof, Seller shall protect, defend, indemnify and hold Purchaser harmless
from and against any


 


34





















 


claim
or loss arising out of (a) any investigation, remediation or disposal
activities conducted by Seller or its agents pursuant to this Section 17.23,
and (b) any failure by Seller to obtain the Completion Documents as
provided in this section.


 


17.23.8            Voidance.
In the event any of the Completion Documents are voided as a result of any
fraudulent misrepresentation or other fraudulent act or omission of Seller,
Seller shall be responsible for implementing at its expense any measures
necessary to have the Completion Documents reinstated.


 


17.23.9            Assignment.  To the extent allowed by contract and law,
Seller shall use reasonable efforts to assign to Purchaser its environmental
rights under current vendor and tenant agreements, including all indemnities,
escrows, representations, and warranties (“Seller’s Environmental
Rights”).  Where Seller is
unable to assign Seller’s Environmental Rights, Seller will use commercially
reasonable efforts to enforce such rights on behalf of Purchaser (at Purchaser’s
expense).


 


17.23.10          Survival.  The terms of this Section 17.23
shall expressly survive, without limitation, the Closing.


 


17.24      Currency. All payments and amounts referenced or
described in this Agreement shall be deemed to require payments in and refer to
amounts in the currency of the United States of America.


 


17.25      Facsimile
Signatures. The
parties hereto agree that the use of facsimile signatures for the execution of
this Agreement shall be legal and binding and shall have the same force and
effect as if originally signed.


 


[remainder
of page intentionally left blank]


 


35





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the
date or dates set forth below.


 


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  	
   

  
	
   

  	
  CENTERPOINT JAMES FIELDING, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
    /s/ Adrian Harrington

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Adrian
  Harrington

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
    /s/ Adrienne Parkinson

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Adrienne
  Parkinson

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:
   April 6, 2005

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax
  I.D. # 98-0450460

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  	
   

  
	
   

  	
  CENTERPOINT PROPERTIES TRUST, a Maryland

  real estate investment trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
    /s/ Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
    /s/ James N. Clewlow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Investment Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:  April 6, 2005

  
							



 


36





















 


 


	
   

  	
  CENTERPOINT VENTURE, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
    /s/ Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
    /s/ James N. Clewlow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:  April 6, 2005

  
					



 


Exhibits


 


	
  Exhibit A-1

  	
   

  	
  CNT Properties

  
	
  Exhibit A-2

  	
   

  	
  Venture Properties

  
	
  Exhibit B-1 - B-4

  	
   

  	
  Legal Descriptions

  
	
  Exhibit C-1 - C-4

  	
   

  	
  Schedule of Leases

  
	
  Exhibit D -

  	
   

  	
  Intentionally Deleted

  
	
  Exhibit E -

  	
   

  	
  Escrow Agreement

  
	
  Exhibit F -

  	
   

  	
  Documents

  
	
  Exhibit G-1 - G-4

  	
   

  	
  Permitted Exceptions

  
	
  Exhibit H-

  	
   

  	
  Master Lease

  
	
  Exhibit I -

  	
   

  	
  Intentionally Omitted

  
	
  Exhibit J -

  	
   

  	
  Intentionally Omitted

  
	
  Exhibit K -

  	
   

  	
  Tenant Estoppel
  Certificate

  
	
  Exhibit L -

  	
   

  	
  Seller’s Estoppel
  Certificate

  
	
  Exhibit M -

  	
   

  	
  General Assignment

  
	
  Exhibit N -

  	
   

  	
  Deed

  
	
  Exhibit O -

  	
   

  	
  Notice of Sale to Tenant

  
	
  Exhibit P -

  	
   

  	
  Non-Foreign Entity
  Certification

  
	
  Exhibit Q -

  	
   

  	
  Survey Certification

  
	
  Exhibit R -

  	
   

  	
  Planned Expenditures

  
	
  Exhibit S -

  	
   

  	
  NFR Properties

  



 


Schedules


	
  7.1.4 -

  	
   

  	
  No Violations of Laws

  
	
  7.1.5

  	
   

  	
  Eminent Domain

  
	
  7.1.6

  	
   

  	
  Hazardous Material

  
	
  7.1.7

  	
   

  	
  Litigation

  
	
  7.1.8

  	
   

  	
  Leases

  
	
  7.1.9

  	
   

  	
  Contracts

  
	
  7.1.10

  	
   

  	
  Defaults

  
	
  7.2.4 -

  	
   

  	
  No Violations of Laws

  
	
  7.2.5

  	
   

  	
  Eminent Domain

  
	
  7.2.6

  	
   

  	
  Hazardous Material

  



 


37





















 


	
  7.2.7

  	
   

  	
  Litigation

  
	
  7.2.8

  	
   

  	
  Leases

  
	
  7.2.9

  	
   

  	
  Contracts

  
	
  7.2.10

  	
   

  	
  Defaults

  
	
  9.8

  	
   

  	
  Purchase Price Schedule

  
	
  9.10

  	
   

  	
  Contracts

  
	
  9.12

  	
   

  	
  REA Estoppels

  



 


38





















 


TRANCHE 4/1031


 


SALE AGREEMENT


 


THIS SALE AGREEMENT (“Agreement”) is made and
entered into as of the 6th day of April, 2005, by and between CENTERPOINT PROPERTIES TRUST, a Maryland
real estate investment trust (“Seller”),
and CENTERPOINT JAMES FIELDING, LLC,
a Delaware limited liability company (“Purchaser”).


 


In consideration of the
mutual promises, covenants and agreements hereinafter set forth and of other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller and Purchaser agree as follows:


 


ARTICLE I

Sale of Properties


 


1.1          Sale of
Properties.  Seller agree to sell, assign and convey to
Purchaser, or cause to be sold, assigned and conveyed to Purchaser, in the
event that one or more of the Properties is currently owned by an entity
affiliated with Seller (hereinafter collectively referred to as “Seller Affiliates”), and Purchaser agrees
to purchase from Seller, the following:


 


1.1.1        Land and Improvements.  That certain real property commonly described
on Exhibits A,
respectively, being more particularly described on Exhibits B-1 through B-7 respectively, attached hereto
(collectively, the “Land”), together
with any improvements located thereon (collectively, the “Improvements”);


 


1.1.2        Leases.  All of Seller’s or Seller Affiliates’, as the
case may be, right, title and interest, if any, in and to all leases,
subleases, licenses and other occupancy agreements, together with any and all
amendments, modifications or supplements thereto (hereafter referred to
collectively as the “Leases”),
being more particularly described on Exhibits
C-1 through C-7  respectively,
attached hereto, and all prepaid rent attributable to the period following
Closing, as herein defined, and subject to Section 4.2.4 below, the
security deposits under such Leases (collectively, the “Leasehold Property”);


 


1.1.3        Real Property.  All of Seller’s or Seller Affiliates’, as the
case may be, right, title and interest, if any, in and to all easements and
appurtenances to Seller’s or Seller Affiliates’, as the case may be, interest
in the Land and the Improvements, including, without limitation, all mineral
and water rights and all easements, licenses, covenants and other rights-of-way
or other appurtenances used in connection with the beneficial use or enjoyment
of the Land and the Improvements (the Land, the Improvements and all such
easements and appurtenances are sometimes collectively referred to as the “Real Property”);


 


1.1.4        Personal Property.  All personal property (including equipment),
if any, owned by Seller or Seller Affiliates, as the case may be, and located
on the Real Property as of the date hereof, and all fixtures, if any, located
on the Real Property as of the date hereof or as of the Closing Date
(collectively, the “Personal Property”);
and


 


1.1.5        Intangible Property.  All of Seller’s or Seller Affiliates’, as the
case may be, right, title and interest, if any, in and to all service,
equipment, supply and maintenance contracts (collectively, the “Contracts”), guarantees, licenses, side
track agreements (and other agreements including leasehold agreements attendant
to the Property), approvals,


 





















 


utility contracts, plans and
specifications, governmental approvals and development rights, certificates,
permits and warranties (and including all escrows, indemnities,
representations, warranties and guarantees Seller received from any and all
vendors from when Seller acquired the Properties), including, without
limitation environmental insurance policies (to the extent same can be assigned
with a reservation of rights for the benefit of Seller as well) and other
environmental escrows other than the two Properties located in Hammond, Indiana
and indemnities (to the extent same can be assigned with a reservation of
rights for the benefit of Seller as well) if any) relating to the Real Property
or the Personal Property, to the extent assignable (collectively, the “Intangible Property”).  (For each individual parcel, the Real
Property, the Leasehold Property, the Personal Property and the Intangible
Property are sometimes collectively hereinafter referred to as the “Property”, and for all parcels, taken
together, the Real Property, the Leasehold Property, the Personal Property and
the Intangible Property are collectively referred to as the “Properties”).  It is hereby acknowledged by the parties that
Seller shall not convey to Purchaser claims relating to any real property tax
refunds or rebates for periods accruing prior to the Closing, to the extent
such taxes have been paid by Seller prior to the Closing, existing insurance
claims and any existing claims against previous tenants of the Properties,
which claims are hereby reserved by Seller, subject to the terms and provisions
of Section 4.2.4 below.


 


ARTICLE II

Purchase Price


 


2.1          Purchase
Price.  Subject to the provisions of Section 9.9
below, the purchase price for the Properties shall be Fifty-Seven Million Seven
Hundred Thousand and No/100 Dollars ($57,700,000.00) (“Purchase Price”) in currency of the United
States of America. The Purchase Price, as adjusted by all prorations as
provided for herein, shall be paid by Purchaser at Closing as directed by the
Seller by wire transfer of immediately available federal funds of The United
States of America.


 


2.2          Bonds.    Those
properties identified on Exhibit A-3
attached hereto and by this reference incorporated herein were originally
financed with separate series of industrial revenue bonds issued pursuant to
separate Indentures of Trust each dated as of June 15, 1992 (collectively,
the “Indentures”), between the Indiana
Development Authority (the “Authority”) and
LaSalle Bank National Association, as successor to NBD Gainer, as trustee (in
such capacity, the “Trustee”) and
more fully identified on Exhibit A-3
attached hereto and by this reference incorporated herein (said properties are
hereinafter collectively referred to as the “Bond
Properties”, and said industrial revenue bonds are hereinafter
collectively referred to as the “Bonds”).  The Bonds remain outstanding and are secured
by separate irrevocable letters of credit (collectively, the “Existing Letters of Credit”) of LaSalle National Bank
Association (in such capacity, “LaSalle”).  Subject to the provisions of this Section,
prior to Closing, Seller shall redeem the Bonds, and the Bond Properties shall
be purchased free and clear of the Bonds. 
Notwithstanding the foregoing, at Purchaser’s option, upon written
notice to Seller given not less than sixty (60) days prior to the Closing Date,
Purchaser may elect to purchase the Bond Properties subject to the obligations
of the Seller under each of the Financing Agreements dated as of June 15,
1992 (collectively, the “Financing Agreements”),
between the Authority and the Seller, as assignee of Enterprise Center V, L.P.
and Enterprise Center VI, L.P., respectively (collectively, the “Original Borrowers”). 
Seller represents and warrants that as of the date hereof the total
principal due under the Financing Agreements and Bonds is $9,900,000, and
Seller has paid all interest, fees, costs and expenses due and owing by Seller
in connection therewith.  If Purchaser
elects to purchase the Bond Properties subject to the Financing Agreements and
Bonds, Purchaser agrees that it shall be responsible for all costs and expenses
associated with the assumption of Seller’s obligations under the Financing
Agreements and the Bonds, including, without limitation, all fees relating to
obtaining


 


2





















 


any required ratings confirmations or other
consents, including all related legal fees (collectively, the “Bond Costs”).  In
addition, Purchaser shall, at Closing, reimburse Seller for all costs and
expenses incurred by Seller in connection with the assumption of Seller’s
obligations under the Financing Agreements and Bonds (including reasonable
attorney’s fees).  Purchaser acknowledges
that, in order to assume Seller’s obligations under the Financing Agreements
and Bonds, Purchaser will need to obtain irrevocable letters of credit to
secure the Bonds.  In connection with the
delivery of any Alternate Credit Facilities (as defined in the Indentures) or
the assignment of the Existing Letters of Credit to the Purchaser, Purchaser
will need to obtain (i) to the extent required under the Indentures,
written evidence from each Rating Agency (as defined in the Indentures) that
the rating on the Bonds will not be reduced or withdrawn as a result of the
delivery of the related Alternate Credit Facility (it being understood by
Purchaser that, pursuant to the Bond Documents, said evidence must be presented
to the Trustee no less than 35 days prior to the delivery of the Alternate
Credit Facility) and (ii) if the Existing Letters of Credit are being
assigned, the unconditional, irrevocable release by LaSalle of Seller and its
affiliates from any and all liability under the Existing Letters of
Credit.  Purchaser acknowledges that, in
connection with the delivery of each Alternate Credit Facility or the
assignment of the Existing Letters of Credit to the Trustee, Purchaser will be
required to deliver to the Trustee the following opinions (to the extent
required under the Indentures or otherwise by the Trustee):  (i) an opinion of counsel selected by
Purchaser stating that delivery of the Alternate Credit Facility (or assignment
of the Existing Letters of Credit) is authorized under the Bond Documents and
complies with the terms of the Bond Documents, (ii) an opinion of counsel
to the bank that shall deliver an Alternate Credit Facility, if any, stating
that the Alternate Credit Facility is a legal, valid, binding and enforceable
obligation of such bank in accordance with its terms (subject only to usual
exceptions relating to bankruptcy and similar matters) and (iii) an
opinion of Bond Counsel (as said term is defined in the Indenture) to the
effect that the Alternate Credit Facility (or assignment of the Existing
Letters of Credit) will not adversely affect the exclusion from gross income of
interest on the Bonds.  Purchaser shall
receive a credit against the Purchase Price equal to the sum of the aggregate
principal amount of the Bonds then outstanding and any accrued and unpaid
interest on the Bonds to the Closing Date, as adjusted for any prorations
relating to the ongoing fees of LaSalle, if any, the Trustee and the
Remarketing Agent (as defined in the Indenture), all as set forth in said Exhibit A-3 (as may be
adjusted between the date hereof and the Closing Date).  Seller will reasonably cooperate with
Purchaser in connection with Purchaser’s assumption of Seller’s (or its
affiliate’s) obligations with respect to the Financing Agreements and Bonds and
will execute and deliver any certificates or documents reasonably and
customarily requested to effectuate such assumption and assignment, provided
such documents are in form and substance reasonably acceptable to Seller,
including, without limitation, an Assignment and Assumption Agreement with
respect to each Financing Agreement pursuant to which the Purchaser agrees to
assume all obligations of the Seller under such Financing Agreement.


 


ARTICLE III

Deposit


 


3.1          Purchaser
Deposit.  Purchaser will deposit a Fifteen Million and
No/100 Dollars ($15,000,000.00) Letter of Credit (“Purchaser Letter of Credit”) on the date of the first Closing
to occur under any of the Sale Agreements (defined below) with Chicago Title
Insurance Company (“Escrow Agent”
or “Title Company”).  The Purchaser Letter of Credit shall be held
by Escrow Agent pursuant to an Escrow Agreement in the form attached hereto as Exhibit E modified to conform to
the terms of this Agreement and as required by Title Company when Title Company
holds a letter of credit (“Escrow Agreement”).  The Purchaser Letter of Credit shall (i) be
unconditional and irrevocable, (ii) be in a form reasonably acceptable to
Seller, (iii) be issued by a financial institution doing business in the
United States of America, with offices in Chicago, Illinois and (iv) expire
no earlier than March 15, 2006.  The
cost of issuing and maintaining the Purchaser Letter of Credit shall be paid by
Seller and Seller’s failure to do so shall not be a


 


3





















 


breach or a default by Purchaser under this
Agreement or any Other Agreements (as defined in Section 17.22
below) nor shall Seller have any right to direct Escrow Agent to draw upon the
Purchaser Letter of Credit as a result of Seller’s failure as aforesaid.  The Purchaser Letter of Credit and the
proceeds of the Purchaser Letter of Credit (“Purchaser
Proceeds”) have been provided to assure performance and observance
by Purchaser of all of its closing obligations under this Agreement and five (5) other
sale agreements entered into by and between Seller and Purchaser and dated of
even date herewith relating to the sale of properties by Seller to Purchaser
(this Agreement and the other five (5) Sale Agreements are herein
collectively referred to as the “Sale Agreements”).   Accordingly, in the event of the occurrence
of a default under Section 13.2 of this Agreement or any of the
other Sale Agreements or in the event that the Purchaser Letter of Credit will
expire within thirty (30) days or less, Seller shall have the right to direct
Escrow Agent to draw upon the Purchaser Letter of Credit.  All Purchaser Proceeds received by Escrow
Agent shall be retained by Escrow Agent and held or disbursed pursuant to the
terms of the Escrow Agreement and this Agreement.  At the time of the final Closing of all
Properties, including, but not limited to, Substitute Properties (defined
below) under all of the Sale Agreements, the Purchaser Letter of Credit shall
be delivered to Purchaser.  In the event
any Closing under any of the Sale Agreements does not occur through no fault of
Purchaser, Purchaser Letter of Credit shall be returned to Purchaser.


 


3.2          Seller’s
Deposit.  Seller will deposit a Three Million and
No/100 Dollars ($3,000,000.00) Letter of Credit (“Seller Letter of Credit”) on the date of the first Closing to
occur under the Sale Agreements with Escrow Agent.  The Seller Letter of Credit shall be held by
Escrow Agent pursuant to an Escrow Agreement in the form attached hereto as Exhibit E modified to conform to
the terms of this Agreement and as required by Title Company when Title Company
holds a letter of credit.  The Seller
Letter of Credit shall (i) be unconditional and irrevocable, (ii) be
in a form reasonably acceptable to Purchaser, (iii) be issued by a financial
institution doing business in the United States of America, with offices in
Chicago, Illinois and (iv) expire no earlier than March 15,
2006.  The cost of issuing and
maintaining the Seller Letter of Credit shall be paid by Seller.  The Seller Letter of Credit and the proceeds
of the Seller Letter of Credit have been provided to assure performance and
observance by Seller of all of its closing obligations under the Sale
Agreements.  Accordingly, in the event of
the occurrence of a default under Section 13.1 of this Agreement or
any of the other Sale Agreements or in the event that the Seller Letter of
Credit will expire within thirty (30) days or less, Purchaser shall have the
right to direct Escrow Agent to draw upon the Seller Letter of Credit.  All Proceeds received by Escrow Agent shall
be retained by Escrow Agent and held or disbursed pursuant to the terms of the
Escrow Agreement and this Agreement.  At
the time of the final Closing of all Properties, including, but not limited to,
Substitute Properties under all of the Sale Agreements, the Seller Letter of
Credit shall be delivered to Seller.  In
the event any Closing under any of the Sale Agreements does not occur through
no fault of Seller, Seller Letter of Credit shall be returned to Seller.


 


ARTICLE IV

Closing, Prorations and Closing Costs


 


4.1          Closing.  The
closing of the purchase and sale of the Properties shall occur on or before
10:00 a.m. Central time on February 1, 2006 (the “Scheduled Closing Date”) and shall be held
at the offices of Escrow Agent, or at such other place agreed to by Seller and
Purchaser (said closing is hereinafter referred to as the “Closing”). 
Notwithstanding anything to the contrary contained in this Section 4.1,
Seller or Purchaser, as the case may be, shall have the right to extend the
closing date for one or more of the Properties in accordance with the
provisions of Sections 9.9, 10.1 and 12.1 hereof.  “Closing” shall be deemed to have occurred
when the Title Company has been instructed by both parties to pay the applicable
portion of the Purchase Price to Seller and to


 


4





















 


record the applicable Deeds, as hereunder
defined.  The date of the Closing is
sometimes referred to in this Agreement as a “Closing
Date.”  The transactions
contemplated by this Agreement shall be closed through an escrow with Escrow
Agent on the Closing Date, in accordance with the general provisions of the
usual form “New York Style” Deed and Money Escrow Agreement used by Escrow
Agent, with such provisions required to conform to the terms of this Agreement.


 


4.2          Prorations.  All
matters involving prorations or adjustments to be made in connection with
Closing and not specifically provided for in some other provision of this
Agreement shall be adjusted in accordance with this Section 4.2.  Except as otherwise set forth herein, all
items to be prorated pursuant to this Section 4.2 shall be prorated
as of midnight of the day immediately preceding a Closing Date, with Purchaser
to be treated as the owner of the applicable Properties, for purposes of
prorations of income and expenses, on and after a Closing Date.


 


4.2.1        Taxes.  Subject to the provisions of this Section 4.2.1,
real estate and personal property taxes, if any, accrued, but not yet due and owing
as of the Closing and installments of special assessments, if any, due and
owing during the installment year in which the Closing occurs (hereinafter
collectively referred to as “Taxes”)
shall be prorated as of the Closing Date, and, notwithstanding any other
provision contained in this Agreement, shall not be reprorated.  Seller shall pay all Taxes due and payable as
of the Closing Date.  If the Taxes have
not been set for the year in which Closing occurs or any prior year, then the
proration of such Taxes shall be based upon the most recent ascertainable tax
bills.  Notwithstanding any other
provision of this Agreement, (a) there shall be no proration of Taxes with
respect to tenants whose leases obligate said tenants to pay Taxes when the tax
bills are issued, and (b) the amount otherwise due Purchaser under this Section 4.2.1
shall be reduced by an amount equal to all tenant deposits held by Seller for
Taxes at the time of Closing (collectively, the “Tenant Tax Deposits”) and the Tenant Tax Deposits shall be
turned over to Purchaser at Closing. 
Tenant Tax Deposits received by Seller following Closing for any period
of time after Closing shall be paid to Purchaser.  The amount due under this Section 4.2.1
shall not be credited to Purchaser at Closing but shall be deposited into the
operating account for the Properties and held by Seller as property manager
pursuant to the Management Agreement described in Section 9.6
below.


 


Seller
shall contest real estate taxes and/or assessment levels, as the case may be,
prior to Closing if Seller deems reasonable in its judgment as a commercially
prudent owner of real estate.  All costs
incurred in connection with such contest shall be paid by the parties in
proportion to benefit received by the parties in connection with any reduction
of such real estate taxes or assessments as the case may be.


 


4.2.2        Insurance.  Seller shall assign its existing insurance
policies to Purchaser upon Closing. 
Purchaser shall be named as a named insured thereon and all premiums
with respect thereto shall be prorated between the parties as of Closing.


 


4.2.3        Utilities.  Purchaser and Seller hereby acknowledge and
agree that the amounts of all electric, sewer, water and other utility bills,
trash removal bills, janitorial and maintenance service bills and all other
operating expenses relating to the applicable Properties not paid by tenants
under Leases and allocable to the period prior to the Closing Date shall be
determined and paid by Seller before Closing, if possible, or shall be paid
thereafter by Seller or adjusted between Purchaser and Seller immediately after
the same have been determined.  Seller
shall attempt to have all utility meters, or utility services not paid by
tenants under Leases, read as of the Closing Date.  Purchaser shall cause all utility services to
be placed in Purchaser’s name as of the Closing Date.  If permitted by the


 


5





















 


applicable utilities, all
utility deposits in Seller’s name shall be assigned to Purchaser as of the
Closing Date, and Seller shall receive a credit therefor at Closing.


 


4.2.4        Rents.  Rent [(including estimated pass-through
payments for common area/operating expenses, but not for Taxes), collectively “Rents”] for the month in which Closing occurs
shall be prorated for said month based upon the Rents estimated to have been
collected by Seller as of the Closing Date. 
Rents for said month shall be reprorated within seven (7) Business
Days after the end of said month based on Rents actually received.  During the period after Closing, (i) Purchaser
shall deliver to Seller any and all Rents accrued but uncollected as of the
Closing Date, to the extent subsequently collected by Purchaser; provided,
however, Purchaser shall apply Rents received after Closing first to payment of
current Rents then due, and thereafter to delinquent Rents (other than “true up”
payments received from tenants attributable to a year-end reconciliation of
actual and budgeted pass-through payments, which shall be allocated among
Seller and Purchaser pro rata in accordance with their respective period of
ownership as set forth in Section 4.2.5 below), and (ii) Seller
shall deliver to Purchaser any and all Rents collected by Seller for any period
after Closing.


 


Subject
to the provisions of the following sentence, Seller shall be entitled, after
the Closing, to take any action against a tenant which would not result in a
termination of any Lease or a tenant’s right of occupancy thereunder (“Seller Action”).  Notwithstanding the foregoing, Seller shall
not take any Seller Action unless Seller shall have first provided Purchaser
with not less than five (5) Business Days’ notice of its intent to take
action against a tenant, together with a description of the subject matter of
the proposed Seller Action.  Purchaser
agrees that it shall use commercially reasonable efforts to collect all
pass-through rents payable by tenants and any delinquent Rents (provided,
however, that Purchaser shall have no obligation to institute legal proceedings,
including an action for unlawful detainer, against a tenant owing delinquent
Rents).


 


The
amount of any unapplied security deposits (plus accrued interest thereon if
payable to a tenant under its lease) under the Leases held by Seller in cash at
the time of Closing shall be credited against the Purchase Price; accordingly,
Seller shall retain the actual cash deposits. 
Notwithstanding anything in this Section 4.2.4 to the
contrary, if any security deposits are in the form of a letter of credit, such
security deposits shall not be prorated, but shall be turned over by Seller to
Purchaser at the Closing by the delivery thereof by Seller to Purchaser in
accordance with this provision.  In
addition, Seller shall use reasonable efforts to deliver appropriate duly
executed instruments of transfer or assignment of such letters of credit which
are required to establish Purchaser as the new beneficiary thereunder and any
consents required by the issuing bank for the transfer of such letters of
credit.  If required, Seller shall use
reasonable efforts to arrange for the issuance by the issuing bank of any
authorization to the transfer, together with the delivery of such letters of
credit (and any letter of transfer that is required by such letter of credit).  Any fees imposed by such issuing banks in
connection with such transfers which are not the obligation of the applicable
tenant to pay shall be paid by Seller. 
In the event that any letter of credit is not transferable as of
Closing, Seller shall cooperate with Purchaser in all reasonable respects
following the Closing so as to transfer the same to Purchaser or to obtain a
replacement letter of credit with respect thereto in favor of Purchaser, in
either case at no cost or expense to Purchaser. 
Until any such letter of credit shall be transferred or replaced, Seller
shall present such letter of credit for payment and deliver the proceeds
received by Seller, if any, to Purchaser within a reasonable period of time
following receipt of Purchaser’s written request.  Notwithstanding the foregoing, Seller shall
not be in default under this Agreement in the event that any such letter of
credit is not assigned to Purchaser for any reason other than the failure of
Seller to sign the documents required of it to transfer the letter of credit or


 


6





















 


the failure of Seller to pay
any fees imposed by an issuing bank in connection with such transfers.  In such event, Purchaser may terminate this
Agreement with respect to the applicable Property upon written notice to Seller
on or before ten (10) days after Purchaser becomes aware that a letter of
credit will not be assigned on the Closing Date; provided, however, Purchaser’s
right to terminate shall not be effective in the event that Seller, in its sole
and absolute discretion, gives Purchaser a credit against the Purchase Price in
the amount of the security deposit or provides a substitute letter of credit in
that amount.


 


4.2.5        Calculations.  For purposes of calculating prorations, Purchaser
shall be deemed to be in title to that portion of the Properties being acquired
on the Closing Date, and, therefore entitled to the income therefrom and
responsible for the expenses thereof for the entire day upon which the Closing
occurs.  All such prorations shall be
made on the basis of the actual number of days of the month which shall have
elapsed as of the day of the Closing and based upon the actual number of days
in the month and year in question.  Except
as set forth in this Section 4.2, all items of income and expense
which accrue for the period prior to the Closing will be for the account of
Seller and all items of income and expense which accrue for the period on and
after the Closing will be for the account of Purchaser.  Purchaser and Seller shall each submit or
cause to be submitted to the other (i) on or about the 90th day after
Closing, and (ii) on or about the one year anniversary of the Closing, a
statement which sets forth necessary adjustments to items subject to proration
pursuant to the provisions of this Section 4.2, if any; provided,
however, no adjustment shall be made with respect to Taxes.  Within fifteen (15) days following delivery
of such statements, the parties shall make such adjustments among themselves as
shall be necessary to carry out the prorations as contemplated in this Section 4.2.  In the event any prorations made under this Section 4.2
shall prove to be incorrect for any reason, then any party shall be entitled to
an adjustment to correct the same.


 


4.2.6        Leasing Commissions and Leasing Costs.  Seller shall be responsible for all leasing
commissions, tenant improvement costs and other usual and customary leasing
costs, due and owing with respect to the current term of all Leases executed
prior to the Effective Date, whether such leasing commissions, tenant
improvement costs and other usual and customary leasing costs are due to be
paid prior to or after the Closing Date.


 


4.2.7        Prepaid Items.  Any prepaid items, including, without
limitation, fees for licenses which are transferred to the Purchaser at the
Closing and annual permit and inspection fees shall be apportioned between the
Seller and the Purchaser at the Closing.


 


4.2.8        Allocation of Closing Costs and
Expenses.  Seller shall bear the cost
of the title policy to be issued and extended coverage charges, the cost of the
Surveys (as hereinafter defined), the cost to record any instruments necessary
to clear Seller’s title, one-half the cost of the Closing Escrow and one-half
the cost of the “New York Style” closing fee. Purchaser shall bear the cost of
any recording fees with respect to the Deeds, all costs incurred in connection
with obtaining Purchaser’s financing for this transaction, if any, the cost of
all title endorsements (other than with respect to extended coverage), if any,
one-half the cost of the Closing Escrow and one-half the cost of the “New York
Style” closing fee.  The cost of state
and county transfer taxes shall be paid by the Seller, and the cost of local
transfer taxes shall be paid by the party designated in the applicable local
ordinance or local custom.  If no such
designation or custom exists, and a local transfer tax must be paid, the cost
thereof shall be shared equally by Seller and Purchaser.


 


4.2.9        Operating Expenses.  All operating expenses (including all charges
under Contracts and agreements assumed by Purchaser under the General
Assignment, as hereinafter defined and fees to any owner’s association) shall
be prorated as of the Closing


 


7





















 


Date.  As to each service provider, operating
expenses payable or paid to such service provider in respect to the billing
period of such service provider in which the Closing Date occurs (the “Current Billing Period”), shall be prorated
on a per diem basis based upon the number of days in the Current Billing Period
prior to the Closing Date (which shall be allocated to Seller) and the number
of days in the Current Billing Period on and after the Closing Date (which
shall be allocated to Purchaser), and assuming that all charges are incurred
uniformly during the Current Billing Period. 
If actual bills for the Current Billing Period are unavailable as of the
Closing Date, then such proration shall be made on an estimated basis based
upon the most recently issued bills, subject to readjustment within thirty (30)
days of receipt of actual bills. 
Notwithstanding the foregoing, no prorations or adjustments shall be
made for portions of operating costs of the Properties to the extent a tenant
under the Leases is required to pay same pursuant to the terms of any of the
Leases. Purchaser shall be credited with an amount equal to all deposits made
by tenants and held by Seller at Closing towards the tenant’s obligation to pay
any such operating expenses.


 


ARTICLE V

Inspection


 


5.1          Seller
Deliveries.  Purchaser acknowledges that Seller has
heretofore delivered or caused to be delivered or made available to Purchaser
at the Properties all of the items relating to the Properties specified on Exhibit F, attached hereto, to the
extent that such items were in Seller’s possession (“Documents”); provided, however, that except for the
representations and warranties made in Article VII hereof, Seller
makes no representations or warranties of any kind regarding the accuracy,
thoroughness or completeness of or conclusions drawn in the information
contained in such documents, if any, relating to the Properties.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Purchaser acknowledges that any and all of the Documents that are not
otherwise known by or available to the public are proprietary and confidential
in nature and were delivered to Purchaser solely to assist Purchaser in
determining the feasibility of purchasing the Properties.  Purchaser agrees not to disclose such
non-public documents, or any of the provisions, terms or conditions thereof, to
any party other than a Purchaser Party/Representative, as hereinafter
defined.  Purchaser shall return all of
the Documents, at such time as this Agreement is terminated for any
reason.  This Section 5.1
shall survive Closing and/or termination of this Agreement without limitation.


 


5.2          Independent
Examination/Right to Access.  Purchaser hereby acknowledges
that it has been given, prior to the execution hereof, a full, complete and
adequate opportunity to make such legal, factual and other determinations,
analyses, inquiries and investigations as Purchaser deems necessary or
appropriate in connection with the acquisition of the Properties.  Purchaser further acknowledges that Purchaser
is relying upon its own independent examination of the Properties and all
matters relating thereto and not upon any statements of Seller (excluding the
limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser.  Notwithstanding
anything to the contrary contained in this Section 5.2, Purchaser
and its agents shall have access to the Properties and the Documents prior to
the Closing Date, but during normal business hours (with reasonable advance
notice to Seller and subject to the rights of the tenants in possession), at
Purchaser’s sole cost and expense, and at


 


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Purchaser’s and its agents’ sole risk, to
inspect the applicable Properties, provided, however, Purchaser shall not be
entitled to conduct Physical Testing or any Phase I Assessments, as said terms
are hereinafter defined, without the approval of Seller, which approval shall
not be unreasonably withheld, and further provided that prior to Purchaser
entering the Properties, Purchaser shall deliver to Seller evidence of Due
Diligence Insurance, as hereinafter defined. 
Seller shall have the right, in its discretion, to accompany Purchaser
and/or its agents during any inspection (including, but not limited to, tenant
interviews) provided that Seller does not unreasonably interfere with Purchaser’s
inspection.  The provisions of this Section 5.2
shall survive Closing and/or termination of this Agreement without
limitation.  Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


 


5.3          Inspection
Obligations and Indemnity.  Purchaser and its agents and representatives
shall (a) not unreasonably disturb the tenants of the Improvements or
interfere with their use of the Real Property pursuant to their respective
Leases; (b) not interfere with the operation and maintenance of the Real
Property; (c) not injure or otherwise cause bodily harm to Seller, its
agents, contractors and employees or any tenant; (d) promptly repair any
damage to any part of the Properties or any personal property owned or held by
any tenant caused by Purchaser’s inspection of the Properties; (e) promptly
pay when due the costs of all tests, investigations and examinations done by
Purchaser with regard to the Properties; (f) not permit any liens to
attach to the Properties as a result of Purchaser’s inspection of the
Properties; (g) restore the Improvements and the surface of the Real
Property to the condition in which the same was found before any such
inspection or tests were undertaken by Purchaser; and (h) except to the
extent required by law, not reveal or disclose any information obtained
pursuant to its inspections of the Properties to anyone other than the
following persons or entities (each a “Purchaser
Party/Representative”): (x) Purchaser’s prospective lenders,
members, managers, partners or other co-venturers or investors, in connection
with the proposed purchase of the Properties and their respective
representatives; and (y) Purchaser’s directors, officers, partners, members,
managers, affiliates, shareholders, employees, legal counsel, accountants,
engineers, architects, financial advisors and similar professionals and
consultants to the extent Purchaser deems it necessary or appropriate in
connection with its evaluation of the Properties.  Purchaser shall, and does hereby agree to
indemnify, defend and hold Seller, its partners, officers, directors,
employees, agents, attorneys and their respective successors and assigns,
harmless from and against any and all claims, demands, suits, obligations,
payments, damages, losses, penalties, liabilities, costs and expenses
(including, but not limited to, attorneys’ fees) arising out of Purchaser’s or
Purchaser’s agents’ actions taken in, on or about the Properties in the
exercise of the inspections of Purchaser prior to the Effective Date,
including, without limitation, claims made by any tenant against Seller for
Purchaser’s entry into such tenant’s premises or any interference with any
tenant’s use of or damage to its premises or property in connection with
Purchaser’s review of the Properties. 
This Section 5.3 shall survive the Closing and/or any
termination of this Agreement without limitation. Purchaser acknowledges and
agrees that the Documents and investigation available to it have been
sufficient to allow Purchaser to decide whether or not to enter into this
Agreement and consummate the transaction contemplated hereby.


 


ARTICLE VI

Title and Survey Matters


 


6.1          Title. 
Purchaser acknowledges that, prior to the Effective Date, Seller has
delivered to Purchaser, with respect to each Property, a title insurance
commitment or a prior title insurance policy (a “Commitment”), together with a copy of all underlying documents
referenced therein (collectively, the “Title
Documents”).  Except as
hereinafter provided, Purchaser and Seller hereby


 


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agree that (i) all Taxes that are not
due and payable prior to Closing, (ii) the rights of the tenants under the
Leases and Approved New Leases (as defined in Section 9.3 of this
Agreement), as parties in possession only, (iii) all matters created by or
on behalf of Purchaser and (iv) the exceptions to title identified on Exhibits G-1 through G-7 respectively, shall constitute “ Permitted Exceptions”.  Notwithstanding anything to the contrary
contained herein, Seller shall be obligated to cause all of the following
resulting from the act or omission of, or caused by, Seller or grantor under
the Deeds to be fully satisfied, released and discharged of record or insured
or bonded over on or prior to the Closing Date: 
all mortgages, deeds of trust and monetary liens [including liens for
delinquent taxes, mechanics’ liens and judgment liens] affecting the Properties
and all indebtedness secured thereby.


 


6.2          Survey. 
Purchaser acknowledges receipt of Seller’s existing surveys (“Initial Surveys”) for each of the
Properties.  Seller has ordered a current
ALTA/ACSM survey for each Property to be certified to Purchaser, as well as any
affiliates and lender designated by Purchaser to Seller at least thirty (30)
days prior to Closing and Title Company (collectively, the “Surveys”) and shall deliver a copy of the
Surveys to Purchaser promptly upon receipt thereof but in all events prior to
Closing.  The surveyors shall certify the
Surveys in accordance with the form of certification attached hereto as Exhibit Q.


 


ARTICLE VII

Representations and Warranties of the Seller


 


7.1          Seller’s
Representations.  Seller represents and warrants that the
following matters are true and correct as of the Effective Date with respect to
the Properties owned by Seller or Seller Affiliates:


 


7.1.1        Authority.  Seller is a real estate investment trust,
duly organized, validly existing and in good standing under the laws of the
State of Maryland.  This Agreement has
been duly authorized, executed and delivered by Seller, is the legal, valid and
binding obligation of Seller, and does not violate any provision of any
agreement or judicial order to which Seller is a party or to which Seller is
subject.  All documents to be executed by
Seller or Seller Affiliates which are to be delivered at Closing, will, at the
time of Closing, (i) be duly authorized, executed and delivered by Seller
or Seller Affiliates, as the case may be, (ii) be legal, valid and binding
obligations of Seller or Seller Affiliates, as the case may be, and (iii) not
violate any provision of any agreement or judicial order to which Seller or
Seller Affiliates, as the case may be is a party or to which Seller or Seller
Affiliates, as the case may be, is subject.


 


7.1.2        Bankruptcy or Debt of Seller.  Neither Seller nor any Seller Affiliates has
made a general assignment for the benefit of creditors, filed any voluntary
petition in bankruptcy, admitted in writing its inability to pay its debts as
they come due or made an offer of settlement, extension or composition to its
creditors generally.  Neither Seller nor
any Seller Affiliates has received any written notice of (a) the filing of
an involuntary petition by Seller’s creditors or the creditors of Seller
Affiliates, (b) the appointment of a receiver to take possession of all,
or substantially all, of Seller’s assets or the assets of Seller Affiliates, or
(c) the attachment or other judicial seizure of all, or substantially all,
of Seller’s assets or the assets of Seller Affiliates.


 


7.1.3        Foreign Person.  Neither Seller nor any of the Seller
Affiliates is a foreign person within the meaning of Section 1445(f) of
the Internal Revenue Code (“Code”),
and Seller agrees to execute and cause the Seller Affiliates to execute any and
all documents


 


10





















 


necessary or required by the
Internal Revenue Service or Purchaser in connection with such declaration(s).


 


7.1.4        No Violation of Laws.  Except as set forth on Schedule 7.1.4,
to Seller’s knowledge, neither Seller nor Seller Affiliates have received any
currently effective written notice from a governmental authority that the
Properties violate any applicable ordinance of the city or village in which the
Properties are located.


 


7.1.5        Eminent Domain.  Except as set forth on Schedule 7.1.5,
to Seller’s knowledge, neither Seller nor Seller Affiliates have received any
currently effective written notice of an eminent domain or condemnation of the
Land or Improvements relating to the Properties.


 


7.1.6        Hazardous Materials.  Except as set forth on Schedule 7.1.6,
to Seller’s knowledge, except as set forth in any environmental report provided
by Seller to Purchaser, or as referenced or referred to in Section 17.23,
(i) neither Seller nor Seller Affiliates have received any uncured written
notice from the United States Environmental Protection Agency or the Illinois
Environmental Protection Agency (or any Indiana or Wisconsin agency comparable
to the Illinois Environmental Protection Agency) alleging that the Properties
are in violation of any applicable Environmental Laws or contain any Hazardous
Materials, (ii) since the date of the most recent environmental report, there have been no Hazardous Materials
installed or stored in or otherwise existing at, on, in or under the Properties
in violation of applicable Environmental Laws, and (iii) Seller has acted
in the manner that a commercially prudent property owner would act with respect
to any written recommendations made by Seller’s environmental consultants.  “Hazardous
Materials” shall mean any hazardous, toxic waste, substance or
material, pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
(42 U.S.C. Section 9601 et seq.), as amended, or the Resource Conservation
and Recovery Act (42 U.S.C. Section 6901 et seq.), as amended, or any
other federal, state or local laws, ordinances, rules, regulations or policies
governing use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of such materials (collectively, “Environmental Laws”).


 


7.1.7        Litigation.  Except as set forth on Schedule 7.1.7,
to Seller’s knowledge, (i) neither Seller nor Seller’s Affiliates have
received any currently effective written notice of any pending litigation
affecting the Properties, and (ii) there is no action, suit or proceeding
threatened before or by any judicial, administrative or union body, any
arbitrator or any governmental authority, against or affecting the Properties.


 


7.1.8        Leases.  Except as set forth on Schedule 7.1.8,
(i) the Rent Roll delivered to Purchaser by Seller lists all of the Leases
affecting the Properties owned by Seller or Seller’s Affiliates, (ii) the
Leases affecting the Properties delivered to Purchaser by Seller are true,
correct and complete copies of the Leases provided to or entered into by Seller
or Seller’s Affiliates relating to the Properties, and (iii) to Seller’s
knowledge, no tenant has commenced any action or given any written notice to
Seller or any Seller Affiliate for the purpose of terminating its lease in
whole or in part, whether by exercise of an express termination right in its lease
or otherwise.


 


7.1.9        Contracts.  Except as set forth on Schedule 7.1.9,
to Seller’s knowledge, Seller has delivered to Purchaser complete copies of
each Contract provided to or entered into by Seller or Seller Affiliate
relating to the Properties.


 


11





















 


7.1.10      Defaults.  Except as set forth on Schedule 7.1.10,
or any other exhibit to this Agreement, (i) no
notice of default has been given by Seller or Seller Affiliates to any tenant
or received by Seller from any tenant under any Lease relating to the
Properties which remains uncured and (ii) no base or additional rent due
under any Lease relating to the Properties is more than thirty (30) days past
due.


 


7.1.11      Operating Statements.  To Seller’s knowledge, the operating
statements relating to the Properties delivered by Seller to Purchaser in
accordance with Section 5.1 hereof are true and correct in all
material respects and no material adverse change has occurred since the
respective dates thereof.


 


7.1.12      Bulk Sale Act. The provisions of Section 9.02(d) of
the Illinois Income Tax Act and the applicable provisions of the Retailer’s
Occupation Tax Act do not apply to this transaction.


 


7.1.13      REIT REP The Properties consist
solely of land, buildings, and other structural components thereof, and other
assets described in Section 856(c)(4)(A) of the Code.  The total gross revenues generated by the
Properties between January 1, 2003 and the Closing Date has consisted and
will consist solely of income from rents from real property and other revenue
which constitute qualifying income under Section 856(c)(3) of the
Code (“Qualifying Income”), and
based on historical experience, Seller believes that the gross revenues
generated by the Properties after the Closing Date will consist solely of
Qualifying Income.


 


Seller shall remake all
representations and warranties as of the date of the Closing; provided,
however, at the time such warranties and representations are remade, Seller
shall provide Purchaser with updates of the Schedules referred to in the
representations and warranties set forth above and an updated operating
statement.  Purchaser acknowledges and
agrees that the representations and warranties that are made as of the Closing
Date shall refer to the updated Schedules and operating statements.


 


7.2          Intentionally
Deleted.


 


7.3          Knowledge.  For
purposes of this Agreement and any document delivered at Closing, whenever the
phrases “to the best of Seller’s knowledge”, “to the actual knowledge of Seller”
or “to the knowledge” of Seller or words of similar import are used, they shall
be deemed to refer to the current, actual knowledge only, and not any implied,
imputed or constructive knowledge of Michael M. Mullen and James N. Clewlow,
after consultation with the property managers of each Property owned by Seller
(collectively, the “Seller Property Managers”).  Except for the obligation to consult with the
Seller Property Managers, neither Michael M. Mullen nor James N. Clewlow shall
be obligated to conduct any independent investigation, and no implied duty to
investigate shall be imputed.  Nothing
contained in this Agreement shall be deemed to impose any personal liability of
any kind on any person named in Section 7.3.


 


For purposes of this
Agreement, and any document delivered at Closing, whenever the phrase “to the
best of Purchaser’s knowledge”, “to the actual knowledge of Purchaser” or “to
the knowledge of Purchaser” or words of similar import are used, they shall be
deemed to refer to the current, actual knowledge only, and not any implied,
imputed or constructive knowledge, of Andrew Martin and Ben Hindmarsh;
provided, however, that nothing in this Agreement shall be deemed to create or
impose any personal liability of any kind on Andrew Martin or Ben Hindmarsh.


 


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7.4          Change in Representation/Waiver. 
Notwithstanding anything to the contrary contained herein, Purchaser
acknowledges that Purchaser shall not be entitled to rely on any representation
or warranty made by Seller in this Article VII to the extent, prior
to or at Closing, Purchaser shall have or obtain actual knowledge of any
information that was contradictory to such representation or warranty;
provided, however, if Purchaser determines prior to Closing that there is a
breach of any of the representations and warranties made by Seller above, then
Purchaser may, at its option, by sending to Seller written notice of its
election either (i) exercise its rights under Section 9.9
below if applicable, (ii) waive such breach and/or conditions and proceed
to Closing with no adjustment in the Purchase Price and in such event Seller
shall have no further liability as to such matter thereafter, or (iii) as
its sole remedy, terminate this Agreement in its entirety in the event of any
untruth or inaccuracy of (x) the representations or warranties set forth in Sections
7.1.1, 7.1.2 or 7.1.3, or (y) the representations and warranties set
forth in the other sections of Article VII, but only if such
representations and warranties were not true or were inaccurate on the
Effective Date and such untruth or inaccuracy is “Material” (defined below).
The term “Material” as used in this Section 7.4 shall mean a
liability or loss reasonably anticipated to arise out of an untruth or
inaccuracy of the representations or warranties set forth in Article VII
which (i) exceeds $500,000.00 for each affected Property, or (ii) results
from fraud or willful misconduct on the part of Seller.  In the event that Purchaser elects to
terminate this Agreement, the parties shall have no liability to each other
hereunder and Purchaser Letter of
Credit shall be returned to Purchaser and the Seller Letter of Credit
shall be returned to Seller.  Seller
shall have no liability with respect to any of the foregoing representations
and warranties or any representations and warranties made in any other document
executed and delivered by Seller to Purchaser, to the extent that, prior to the
Closing, Purchaser discovers or learns of information (from whatever source,
including, without limitation the property manager, the tenant estoppel
certificates or the Seller’s Estoppel Certificates delivered pursuant to Section 10.1.1
below, as a result of Purchaser’s due diligence tests, investigations and
inspections of the Property, or disclosure by Seller or Seller’s agents and
employees) that contradicts any such representations and warranties, or renders
any such representations and warranties untrue or incorrect, and Purchaser
nevertheless consummates the transaction contemplated by this Agreement.


 


7.5          Post Closing Rights. 
Following Closing, Purchaser will have the right to bring any action
against Seller as a result of any untruth or inaccuracy of representations and
warranties made herein if (i) such untruth or inaccuracy is “Material,”
and (ii) prior to Closing Purchaser did not discover or learn information
(from whatever source) that contradicts any such representations and
warranties, or renders any such representations and warranties untrue or
incorrect.  The term “Material” as used
in this Section 7.5 shall mean a liability or loss reasonably
anticipated to arise out of an untruth or inaccuracy of the representations or
warranties set forth in Article VII which results from fraud or
willful misconduct on the part of Seller or exceeds $500,000.00 for each such
affected Property, it being understood that the foregoing limitation is a
threshold which must be exceeded, but that once such threshold has been
exceeded, any post closing claim may be pursued for its full value.  In addition, in no event will Seller’s
liability for all such breaches relating to a specific Property, exceed, in the
aggregate, the allocated Purchase Price of the Property in question, calculated
in accordance with Schedule 9.8.


 


7.6          Survival.  The
express representations and warranties made in this Agreement shall not merge
into any instrument or conveyance delivered at the Closing; provided, however,
that any action, suit or proceeding with respect to the truth, accuracy or
completeness of representations and warranties set forth in Sections other than
Sections 7.1.1, 7.1.2 or 7.1.3 shall be commenced, if at
all, on or before the date which is twelve (12) months after the date of a
Closing and, if not commenced on or before such date, thereafter such
representations and warranties shall be void and of no force or effect as to
the applicable Closing.


 


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ARTICLE VIII

Representations and Warranties of Purchaser


 


8.1          Purchaser represents and warrants to
Seller that the following matters are true and correct as of the Effective
Date.


 


8.1.1        Authority.  Purchaser is a limited liability company,
duly organized, validly existing and in good standing under the laws of the
State of Delaware.  This Agreement has
been duly authorized, executed and delivered by Purchaser, is the legal, valid
and binding obligation of Purchaser, and does not violate any provision of any
agreement or judicial order to which Purchaser is a party or to which Purchaser
is subject.  All documents to be executed
by Purchaser which are to be delivered at Closing, will, at the time of
Closing, (i) be duly authorized, executed and delivered by Purchaser, (ii) be
legal, valid and binding obligations of Purchaser, and (iii) not violate
any provision of any agreement or judicial order to which Purchaser is a party
or to which Purchaser is subject.


 


8.1.2        Bankruptcy or Debt of Purchaser.  Purchaser has not made a general assignment
for the benefit of creditors, filed any voluntary petition in bankruptcy,
admitted in writing its inability to pay its debts as they come due or made an
offer of settlement, extension or composition to its creditors generally.  Purchaser has received no written notice of (a) the
filing of an involuntary petition by Purchaser’s creditors, (b) the
appointment of a receiver to take possession of all, or substantially all, of
Purchaser’s assets, or (c) the attachment or other judicial seizure of
all, or substantially all, of Purchaser’s assets.


 


8.1.3        No Financing Contingency.  It is expressly acknowledged by Purchaser
that this transaction is not subject to any financing contingency, and no
financing for this transaction shall be provided by Seller.


 


8.2          Purchaser’s
Acknowledgment.  Purchaser acknowledges and agrees that,
except as expressly provided in this Agreement, Seller has not made, does not
make and specifically disclaims any and all representations, warranties,
promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or
future, including, but not limited to those representations, warranties,
promises, covenants, agreement and guaranties of, as to, concerning or with
respect to (a) the nature, quality or condition of the Properties,
including, without limitation, the water, soil and geology, (b) the income
to be derived from the Properties, (c) the suitability of the Properties
for any and all activities and uses which Purchaser may conduct thereon, (d) the
compliance of or by the Properties or its operation with any laws, rules,
ordinances or regulations of any applicable governmental authority or body,
including, without limitation, the Americans with Disabilities Act and any rules and
regulations promulgated thereunder or in connection therewith, (e) the
habitability, merchantability or fitness for a particular purpose of the
Properties, or (f) any other matter with respect to the Properties, and
specifically that except as expressly provided in this Agreement, Seller has
not made, does not make and specifically disclaims any representations
regarding solid waste, as defined by the U.S. Environmental Protection Agency
regulations at 40 C.F.R., Part 261, or the disposal or existence, in or on
the Properties, of any hazardous substance, as defined by the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, and
applicable state laws, and regulations promulgated thereunder.  Purchaser further acknowledges and agrees
that, except as expressly provided in this Agreement, having been given the
opportunity to inspect the Properties, Purchaser is relying solely on its own
investigation of the Properties and not on any information provided or to be
provided by Seller.  Purchaser further
acknowledges and agrees that subject to the representations and warranties of
Seller as provided herein and in any other document executed at Closing, any
information provided or to be provided with respect to the Properties was
obtained from


 


14





















 


a variety of sources and that Seller has not
made any independent investigation or verification of such information.  Purchaser
further acknowledges and agrees that, as a material inducement to the execution
and delivery of this Agreement by Seller, subject to the representations and
warranties of Seller provided herein and in any other document executed at
Closing, the sale of the Properties as provided for herein is made on an “AS
IS, WHERE IS” CONDITION AND BASIS “WITH ALL FAULTS.”  Purchaser acknowledges, represents
and warrants that Purchaser is not in a significantly disparate bargaining
position with respect to Seller in connection with the transaction contemplated
by this Agreement; that Purchaser freely and fairly agreed to this acknowledgment
as part of the negotiations for the transaction contemplated by this Agreement;
that Purchaser is represented by legal counsel in connection with this
transaction.


 


8.3          Purchaser’s
Release.  Effective as of the date of the Closing,
Purchaser on behalf of itself and its successors and assigns waives its right
to recover from, and forever releases and discharges, Seller, Seller’s
affiliates, Seller’s investment manager, property manager, the partners,
trustees, shareholders, beneficiaries, directors, officers, employees,
attorneys and agents of each of them, and their respective heirs, successors,
personal representatives and assigns from any and all demands, claims, legal or
administrative proceedings, losses, liabilities, damages, penalties, causes of
action, fines, liens, judgments, costs and expenses known or unknown, foreseen
or unforeseen, that may arise on account of or in any way be connected with the
Properties, except, subject to Section 7.5 hereof, such as
arises out of (i) a breach of any of the representations and warranties of
Seller set forth in Article VII and (ii) any of the provisions
of this Agreement that survive Closing pursuant to the provisions of Section 17.12
below.  The terms and provisions of this Section 8.3
shall survive Closing and/or termination of this Agreement without limitation.


 


8.4          Survival.  The
express representations and warranties made in this Agreement by Purchaser
shall not merge into any instrument of conveyance delivered at the Closing;
provided, however, that any action, suit or proceeding with respect to the
truth, accuracy or completeness of all such representations and warranties
shall be commenced, if at all, on or before the date which is twelve (12)
months after the date of the Closing and, if not commenced on or before such
date, thereafter shall be void and of no force or effect as to the applicable
Closing.


 


ARTICLE IX

Seller’s Interim Operating Covenants/Seller’s and Purchaser’s Covenants


 


9.1          Operations. 
Seller agrees to continue to operate, manage and maintain the
Improvements through the Closing Date in the ordinary course of Seller’s
business and substantially in accordance with Seller’s present practice,
subject to ordinary wear and tear and further subject to Article XII
of this Agreement.  As of, and at all
times after the Effective Date until Closing, Seller shall name Purchaser as an
additional insured on all liability insurance policies maintained by Seller
relating to the Properties.


 


9.2          No Sales.  Except for the execution of tenant Leases pursuant to Section 9.3,
Seller agrees that it shall not convey any interest in the Properties to any
third party.


 


9.3          Tenant
Leases.  From and after the Effective Date, Seller
shall not (i) grant any consent or waive any material rights under the
Leases, (ii) terminate any Lease, or (iii) enter into a new lease,
modify an existing Lease or renew, extend or expand an existing Lease in any
material respect without the prior written approval of Purchaser (an “Approved New Lease”), which in each case
shall not be unreasonably withheld, conditioned or delayed.  Any Approved New Lease shall meet all of the
following parameters: (i) such proposed lease has an initial term
(excluding any options to extend such term) of not less than three (3) years
and not more than ten (10) years; (ii) such proposed lease has no
free-rent period extending beyond the term of the Master Lease


 


15





















 


(defined below); (iii) such proposed
lease has no above-market obligation of Purchaser to provide or fund any tenant
improvements; (iv) such proposed lease provides for base rent payable at a
rate per month that is never less than 95% of the base rent per month required
to be paid for such space under the Master Lease; (v) leasing commissions
for such proposed lease do not exceed market rates; (vi) such proposed
lease does not require the landlord thereunder, and will not result in an
obligation for the landlord thereunder to alter or improve or pay for the
altering or improving of the building (other than tenant improvements as
limited by clause (iii) above and responsibility for repairing and
replacing the roof and structure, but excluding the obligation for internal
wall changes); (vii) such lease shall be on the form customarily used by Seller
with such revisions which Seller approves using its judgment as a commercially
prudent landlord; (viii) the creditworthiness of the tenant and intended
use of the premises by the tenant shall be consistent with Seller’s historical
and customary requirements as a commercially prudent landlord; and (ix) the
income to be generated from the proposed lease shall constitute qualifying
income under Section 856(c)(3) of the Code.  Additionally, the parties expressly agree
that it shall not be deemed unreasonable for Purchaser to withhold, condition
or delay its consent to any Approved New Lease that includes above-market
tenant improvements, above-market leasing commissions or any other above-market
leasing costs that Purchaser would be obligated to pay or incur; provided,
however, in such event, Purchaser and Seller agree to negotiate in good faith
to agree upon such tenant improvement costs, leasing commission and other
leasing costs to render such Approved New Lease and the terms thereof
acceptable to Purchaser.  Any lease
proposed by Seller, which satisfies the criteria set forth in this Section 9.3
and would otherwise be reasonably acceptable to Purchaser, but for the fact
that such lease includes above-market tenant improvements, above-market leasing
commissions or any other above-market leasing costs, may, nonetheless, be
approved and executed by Seller, in its sole and absolute discretion, and in
such event such proposed lease shall be deemed an Approved New Lease, provided
that Seller pays all such above-market tenant improvements, above-market
leasing commissions or any other above-market leasing costs.  Purchaser’s failure to respond within five (5) Business
Days after receipt of a request for approval, together with a copy of the
proposed Approved New Lease or letter of intent to lease and credit information
on the proposed replacement tenant or tenants, shall be deemed approval by
Purchaser. Seller shall pay the portion of the tenant improvement costs,
leasing commissions and other usual and customary leasing costs with respect to
any Approved New Lease, allocated on a prorata basis over the term of the
Approved New Lease with respect to the portion of the term of the Approved New
Lease prior to a Closing and Purchaser shall pay the portion of the tenant
improvement costs, lease commissions and other usual and customary leasing
costs with respect to an Approved New Lease, allocated on a prorata basis over
the term of the Approved New Lease with respect to the portion of the term of
the Approved New Lease after the Closing.


 


9.4.         Planned
Expenditures.  Seller shall effect and complete the planned
expenditures for nominated work and items in accordance with the description
and budget set forth on Exhibit R
attached hereto as a prudent manager/owner in consultation with Purchaser, and
to Purchaser’s commercially reasonable satisfaction; in the event that upon
completion of such work and items,  the
total cost of such work is less than the total budget allocated for same,
Seller shall be entitled to retain all such unexpended amounts.  In the event that Exhibit R reflects that certain
work is to be performed after Closing, the obligations of Seller under this Section 9.4
with respect to that work shall survive Closing.


 


9.5          Master
Lease.  At the Closing, Seller and Purchaser shall
execute and deliver to each other a master lease (“Master Lease”) in the form of Exhibit H attached hereto.


 


9.6          Management
Agreement.  At the Closing, Seller and Purchaser shall execute an Amendment to the Property
Management Agreement between Purchaser and CenterPoint Properties Trust adding
the Properties to the definition of “Properties” under such Management


 


16





















 


Agreement.  Seller shall terminate any existing property management agreements
pertaining to the Properties as of the Closing Date.


 


9.7          Right of
First Offer.  INTENTIONALLY OMITTED.


 


9.8          Transfer
Tax Declaration Allocation.  Purchaser and Seller agree that
the Purchase Price shall be allocated amongst the Properties as set forth on Schedule 9.8
for the purpose of completing real estate transfer declarations to be executed
by Seller and Purchaser at Closing (the “Transfer
Tax Declaration Allocation”).


 


9.9          Substitution
of Properties


 


9.9.1        In the event of the occurrence of a Substitution
Event (defined below) prior to Closing, Purchaser may, at its option, by
written notice to Seller (“Event Notice”)
within ten (10) days after the date on which Purchaser is given or obtains
actual knowledge of the occurrence of a Substitution Event, elect to either (i) ignore
the Substitution Event and proceed to Closing with no adjustment in the
Purchase Price, or (ii) request that Seller offer a Substitute Property or
Substitute Properties (both as hereinafter defined) to Purchaser valued in the
aggregate amount of the Purchase Price allocated to the Property or Properties
(“Removed Property” or “Removed Properties”) subject to the
Substitution Event.


 


In
the event that Purchaser elects under (ii) above to have Seller provide a
Substitute Property or Substitute Properties, Seller, if it chooses to do so,
in its sole and absolute discretion, shall have a period of thirty (30) days
from the date of Purchaser’s Event Notice to correct the condition giving rise
to the Substitution Event, and further, provided, however, if such condition is
of a nature which is not capable of cure within said thirty (30) day period and
Seller has commenced to cure within such thirty (30) day period, then Seller
shall have such reasonable period of time from and after the date of Purchaser’s
Event Notice to correct the condition giving rise to the Substitution
Event.  In the event Purchaser exercises
its rights under (ii) above, and Seller elects to and cures the condition
giving rise to the Substitution Event prior to the time that the Closing with
respect to the Substitute Property occurs, the Scheduled Closing Date for the
Removed Property shall be extended to the fifteenth (15th) day after
the condition giving rise to the Substitution Event has been cured.


 


In
the event that Purchaser fails to elect (i) or (ii) above within ten (10) days
after Purchaser is given or obtains actual knowledge of a Substitution Event,
Purchaser shall be deemed to have elected to waive such condition and proceed
to Closing on the Closing Date with no adjustment in the Purchase Price.  In the event that within said ten (10) day
period Purchaser elects its rights under (ii) above and Seller elects not
to cure or elects to cure the condition but fails to do so within the time
period set forth above, Seller shall use reasonable efforts to provide a
Substitute Property or Substitute Properties as described in Section 9.9.2.  Notwithstanding any other term or condition
contained herein, (i) in no event shall the Closing with respect to the
Properties which are not subject to a Substitution Event be delayed, and (ii) in
the event of the occurrence of a Substitution Event, Seller shall not be in
default under this Agreement, Seller shall not be liable for damages and
Purchaser’s sole right and remedy shall be to exercise its rights under this Section 9.9.1.


 


The
term “Substitution Event” shall
mean any one or more of the following: (i) written notice to Purchaser
that a tenant under its lease (“Right of
First Refusal Lease”)  has
exercised a right of first refusal, right of first offer or option to purchase
a Property prior to Closing pursuant to the existing terms of its lease, (ii) the
taking of one hundred percent


 


17





















 


(100%) of a Property by
condemnation or eminent domain or (iii) any one or more of the following,
to the extent the existence of the condition hereinafter described has a “Material
Adverse Effect” on the use, value or marketability of the applicable Property: (a) the
existence of a title exception other than a Permitted Exception on an Owner’s
Policy to be issued by the Title Company at the time of the Closing; provided,
however that Seller shall, at Seller’s expense, use reasonable efforts to
obtain a title insurance endorsement to the Owner’s Policy (defined below)
insuring over any unpermitted title exception, (b) the existence of a
difference on a Survey not reflected on the Initial Surveys; (c) if
Purchaser has not been provided with a copy of a zoning endorsement issued by
the Title Company with respect to any Properties (whether in favor of Seller or
Purchaser) prior to the Effective Date and it is determined that the present
use of the Property is not permitted under the zoning ordinance in effect on
the Effective Date; (d) the physical or environmental condition of the
Properties are not the same as on the Effective Date, ordinary wear and tear
and damage by casualty excepted, provided, however, that under this subsection (d) it
shall not be a Substitution Event if a tenant of the Property is responsible
under its lease for maintaining, repairing or restoring the physical or
environmental condition in question; and (e) the existence of a breach of
a warranty or representation made by Seller under Sections 7.1.4, 7.1.6,
7.1.7 and 7.1.9 of this Agreement (or any change in the schedules
thereto).  The term “Material Adverse Effect” as used herein
shall mean that a liability or loss reasonably anticipated to arise out of the
condition under (a) Sections 9.9.1(iii)(a) or (b) which
exceeds $150,000.00 for the affected Property, or (b) under Sections
9.9.1iii(c), (d) or (e) which exceeds seven and one-half
percent (7.5%) of the Purchase Price for the affected Property.


 


9.9.2        In the event of the occurrence of a
Substitution Event (and notwithstanding any election by Seller to attempt to
cure the condition giving rise to the Substitution Event), Seller shall use
reasonable efforts to substitute another Property or Properties owned by Seller
that the parties mutually agree in their reasonable opinion is comparable
(individually, a “Substitute Property”
and collectively, the “Substitute Properties”).  Seller shall use reasonable efforts to
identify a Substitute Property within thirty (30) days after receipt of an
Event Notice.  Commencing on the date
that Purchaser receives a notice from Seller identifying a Substitute Property
or Substitute Properties to replace a Removed Property or Removed Properties (“Substitution of Assets Notice”), and
continuing until 5:00 p.m. Central time on the thirtieth (30th)
day thereafter (“Substitute Properties
Feasibility Period”), Purchaser and its agents shall have the right
to conduct inspections and tests of the Substitute Properties in the manner
hereby provided in Section 9.9.5 and subject to the provisions as
provided in Section 9.9.6. 
In the event that Purchaser approves all of the Substitute Properties
prior to the expiration of the Substitute Properties Feasibility Period, all of
the Substitute Properties shall be subject to this Agreement, and the Purchase
Price shall be adjusted as provided below in Section 9.9.3.  In the event that Purchaser does not approve
one or more of the Substitute Properties prior to the expiration of the
Substitute Properties Feasibility Period, the Substitute Property or Properties
not approved by Purchaser and the Removed Property or Removed Properties shall
not be subject to this Agreement, and the Purchase Price shall be reduced by
the value of the Removed Property or Removed Properties, as the case may be, as
set forth on Schedule 9.8. 
All Substitute Properties approved by Purchaser shall be deemed to be
Properties subject to this Agreement, except that all warranties and
representations shall be modified to reflect the circumstances relating to the
Substitute Properties.  Within fifteen
(15) days after the Substitution of Assets Notice, Seller shall deliver
Schedules similar to those attached hereto as Schedules 7.1.4, 7.1.5, 7.1.6,
7.1.7, 7.1.8, 7.1.9 and 7.1.10.


 


9.9.3        For the purposes of this Section 9.9,
the purchase price for a Removed Property shall be based on Schedule 9.8
attached hereto, and the purchase price for a


 


18





















 


Substitute Property shall be
calculated using a capitalization rate equal to the capitalization rate that
was used to determine the Purchase Price of the Removed Property and the annual
net rent of the Substitute Property, without deductions (“Substitute Property Purchase Price”).  In the event that the Seller delivers the
Substitution of Assets Notice to Purchaser within the time frame set forth
above, the Closing of all Properties not subject to the Substitution of Assets
Notice shall take place on the date of the Scheduled Closing Date.  Subject to the right of Purchaser to
disapprove one or more of the Substitute Properties during the Substitute
Properties Feasibility Period, and further subject to the provisions of Section 4.1
above, the Closing with respect to each Substitute Property shall take place on
the thirtieth (30th) day following the expiration of the applicable
Substitute Property Feasibility Period.


 


9.9.4        Seller shall deliver to Purchaser copies
of all notices sent by Seller to tenants under Right of First Refusal Leases as
required under the Right of First Refusal Leases, and shall notify Purchaser
promptly if it receives a notice from an Exercising Tenant.


 


9.9.5        During the Substitute Properties
Feasibility Period, Purchaser and its agents shall have the right during
business hours (with reasonable advance notice to Seller and subject to the rights
of the tenants in possession), at Purchaser’s sole cost and expense and at
Purchaser’s and its agents’ sole risk, to perform inspections and tests of the
Substitute Properties and to perform such other analyses, inquiries and
investigations as Purchaser shall deem reasonably necessary or appropriate;
provided, however, that in no event shall (i) such inspections or tests
unreasonably disrupt or disturb the on-going operation of the Substitute
Properties or the rights of the tenants at the Substitute Properties, or (ii) Purchaser
or its agents or representatives conduct any physical testing, drilling,
boring, sampling or removal of, on or through the surface of the Substitute
Properties (or any part or portion thereof) including, without limitation, any
ground borings or invasive testing of the Improvements (collectively, “Physical Testing”), without Seller’s prior
written consent, which consent may be given or withheld in Seller’s sole and
absolute discretion. Seller acknowledges and agrees that the performance of a
phase I environmental assessment on behalf of Purchaser (“Phase I Assessments”) shall not be
considered Physical Testing for purposes hereof and shall be permitted without
Purchaser obtaining the consent of Seller. 
In the event Purchaser desires to conduct any such Physical Testing of a
Substitute Property, then Purchaser shall submit to Seller, for Seller’s
approval, a written detailed description of the scope and extent of the
proposed Physical Testing, which approval may be given or withheld in Seller’s
sole and absolute discretion.  In no
event shall Seller be obligated as a condition of this transaction to perform
or pay for any environmental remediation of the Substitute Properties
recommended by any such Physical Testing. 
After making such tests and inspections, Purchaser agrees to promptly
restore the Substitute Properties to their condition prior to such tests and
inspections (which obligation shall survive the Closing or any termination of
this Agreement).  In addition to the
rights available to the Purchaser during the Substitute Properties Feasibility
Period, as set forth above, Purchaser and its agents shall have access to the
Substitute Properties prior to the Closing Date, but during normal business
hours (with reasonable advance notice to Seller and subject to the rights of
the tenants in possession), at Purchaser’s sole cost and expense, and at Purchaser’s
and its agents’ sole risk, to inspect the applicable Substitute Properties;
provided, however, Purchaser shall not be entitled to conduct any Physical
Testing or any Phase I Assessment after the expiration of the Substitute
Properties Feasibility Period.  Prior to
Purchaser entering the Substitute Properties to conduct the inspections and
tests described above, including, but not limited to, the Phase I Assessments,
Purchaser shall obtain and maintain, at Purchaser’s sole cost and expense, and
shall deliver to Seller evidence of, the following insurance coverage, and
shall cause each of its agents and 


 


19





















 


contractors to obtain and
maintain, and, upon request of Seller, shall deliver to Seller evidence of, the
following insurance coverage:  general
liability insurance, from an insurer reasonably acceptable to Seller, in the
amount of Five Million and No/100 Dollars ($5,000,000.00) combined single limit
for personal injury and property damage per occurrence, such policy to name
Seller as an additional insured party, which insurance shall provide coverage
against any claim for personal liability or property damage caused by Purchaser
or its agents, employees or contractors in connection with such inspections and
tests (“Due Diligence Insurance”).  Seller shall have the right, in its
discretion, to accompany Purchaser and/or its agents during any inspection
(including, but not limited to, tenant interviews) provided Seller or its
agents do not unreasonably interfere with Purchaser’s inspection.


 


9.9.6        Purchaser and its agents and
representatives shall:  (a) not
unreasonably disturb the tenants of the Substitute Properties or interfere with
their use of the Substitute Properties pursuant to their respective Leases; (b) not
interfere with the operation and maintenance of the Substitute Properties; (c) not
damage any part of the Substitute Properties or any personal property owned or
held by any tenant; (d) not injure or otherwise cause bodily harm to
Seller, its agents, contractors and employees or any tenant; (e) promptly
pay when due the costs of all tests, investigations and examinations done with
regard to the Substitute Properties; (f) not permit any liens to attach to
the Substitute Properties by reason of the exercise of its rights hereunder; (g) restore
the Improvements and the surface of the Substitute Properties to the condition
in which the same was found before any such inspection or tests were
undertaken; and (h) except to the extent required by applicable laws, not
reveal or disclose any information obtained pursuant to its right to evaluate
set forth in Section 9.9.5 above concerning the Substitute
Properties to anyone other than a Purchaser Party/Representative.  Purchaser shall, at its sole cost and
expense, comply with all applicable federal, state and local laws, statutes,
rules, regulations, ordinances or policies in conducting its inspection of the
Substitute Properties, the Purchaser’s Phase I Assessments and the Physical
Testing.  Purchaser shall, and does
hereby agree to indemnify, defend and hold the Seller, its partners, members,
officers, directors, employees, agents, attorneys and their respective
successors and assigns, harmless from and against any and all claims, demands,
suits, obligations, payments, damages, losses, penalties, liabilities, costs
and expenses (including but not limited to attorneys’ fees) arising out of
Purchaser’s or Purchaser’s agents’ actions taken in, on or about the Substitute
Properties in the exercise of the inspection right granted pursuant to Section 9.9.5,
including, without limitation, (i) claims made by any tenant against
Seller for Purchaser’s entry into such tenant’s premises or any interference
with any tenant’s use or damage to its premises or property in connection with
Purchaser’s review of the Substitute Properties, and (ii) Purchaser’s
obligations pursuant to this Section 9.9.6.  This Section 9.9.6 shall survive
the Closing of the Substitute Properties and/or any termination of this
Agreement without limitation.


 


9.9.7        With respect to the Substitute
Properties, Seller shall deliver to Purchaser or make available at the
applicable Substitute Property or Seller’s office in Oak Brook, Illinois, at
Seller’s option, the following: operating statements, leases, reports relating
to the physical and/or environmental condition of the applicable Substitute
Properties, a statement of the estimated value of the applicable Substitute
Properties from an independent industrial real estate broker with at least ten (10) years
experience in the marketplace (which value shall not be binding on Seller or
Purchaser), rent rolls and revenue and expense statements, Seller and Purchaser
shall use reasonable efforts to agree upon the format and scope of such
materials, but agree that the format and scope shall be similar to the
materials typically provided by Seller to Purchaser in connection with the sale
of the Properties in accordance with Section 5.1 hereof (the “Substitute Property Documents”); provided,
however, that


 


20





















 


except for the
representations and warranties made in Article VII hereof, Seller
makes no representations or warranties of any kind regarding the accuracy,
thoroughness or completeness of or conclusions drawn in the information
contained in such Substitute Properties Documents.  Except with respect to claims arising out of
a breach by Seller of a representation or warranty made in Article VII
hereof, Purchaser hereby waives any and all claims against Seller arising out
of the accuracy, completeness, conclusions or statements expressed in materials
so furnished and any and all claims arising out of any duty of Seller to
acquire, seek or obtain such materials. 
Notwithstanding anything contained in the preceding sentence, Seller
shall not deliver or make available to Purchaser Seller’s internal memoranda,
attorney-client privileged materials, internal appraisals and economic
evaluations of the Substitute Properties, and reports regarding the Substitute
Properties prepared by Seller or its affiliates solely for internal use or for
the information of the investors in Seller. 
Purchaser acknowledges that any and all of the Substitute Properties
Documents that are not otherwise known by or available to the public are
proprietary and confidential in nature and will be delivered to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Substitute Properties.  Purchaser agrees
not to disclose such non-public documents, or any of the provisions, terms or
conditions thereof, to any party other than a Purchaser Party/Representative.  Purchaser shall return all of the Substitute
Properties Documents, on or before three (3) Business Days after the first
to occur of (a) such time as Purchaser notifies Seller in writing that it
shall not acquire the Substitute Properties, or (b) such time as this
Agreement is terminated for any reason. 
This Section 9.9.7 shall survive any termination of this
Agreement without limitation.


 


9.9.8        Purchaser hereby acknowledges that it
will have been given, prior to the termination of the Substitute Properties
Feasibility Period, a full, complete and adequate opportunity to make such
legal, factual and other determinations, analyses, inquiries and investigations
as Purchaser deems necessary or appropriate in connection with the acquisition
of the Substitute Properties.  Purchaser
will be relying upon its own independent examination of the Substitute
Properties and all matters relating thereto and not upon any statements of
Seller (excluding the limited matters expressly represented by Seller in Article VII
hereof) or of any officer, director, employee, agent or attorney of Seller with
respect to acquiring the Substitute Properties. 
Except as may be provided in Article VII hereof, Seller
shall not be deemed to have represented or warranted the completeness or
accuracy of any studies, investigations and reports heretofore or hereafter
furnished to Purchaser relating to the Substitute Properties.  The provisions of this Section 9.9.8
shall survive Closing and/or termination of this Agreement without limitation.


 


9.10        Contracts. 
Seller shall not, with respect to a Contract that will survive Closing,
from and after the Effective Date, terminate an existing Contract, enter into a
new Contract or modify an existing Contract without the prior written approval
of Purchaser, which consent in each case shall not be unreasonably conditioned,
withheld or delayed and which shall be deemed granted if Purchaser fails to
respond to a request for approval within five (5) Business Days after
receipt of the request therefor together with a summary of the terms of the
Contract (an “Approved New Contract”).  Schedule 9.10 attached hereto
contains a list of Contracts for the Properties that Purchaser will assume as
of the Closing, and a list of Contracts for the Properties that Purchaser is
requesting Seller to terminate as of the Closing (the “Unassumed Contracts”).  Provided that the Closing occurs hereunder,
Seller shall terminate such applicable Unassumed Contracts effective as of the
Closing Date and deliver evidence at such Closing of such termination.


 


9.11        Indiana
Responsible Property Transfer Law.  Purchaser acknowledges that Seller has
delivered to Purchaser and Purchaser’s lender, if any, a fully completed and
executed Indiana Responsible Property Transfer Law disclosure form for Property
located in Indiana in the form


 


21





















 


proscribed by Indiana statute.  Within thirty (30) days after the Closing
Date, Purchaser shall file the disclosure form (and attached site plan, if
required) with the Indiana Department of Environmental Management and shall
record the disclosure form in the appropriate County Recorder’s Office.  Purchaser hereby agrees to indemnify and hold
Seller harmless against all claims, costs, damages, expenses, liabilities,
losses and penalties, including, but not limited to, attorneys’ fees, which
Seller may incur as a result of Purchaser’s failure to comply with its
obligations pursuant to this Section 9.11.  Purchaser’s indemnity hereunder shall survive
the Closing of this transaction.


 


9.12        REA
Estoppels.  Attached hereto as Schedule 9.12
is a list of REA and other Property-related estoppels that Purchaser would like
to obtain prior to Closing (collectively, the “REA Estoppels”). 
Purchaser shall prepare and deliver to Seller REA Estoppel Certificates
for each of the REA Estoppels (the “REA
Estoppel Certificates”), and Seller shall send out the REA Estoppel
Certificates for execution prior to the Closing Date, it being understood that
obtaining the REA Estoppel Certificates shall not be a condition to Purchaser’s
obligation to close.


 


ARTICLE X

Closing Conditions


 


10.1        Conditions
to Obligations of Purchaser.  The obligations of Purchaser
under this Agreement to purchase the Properties and consummate the other
transactions contemplated hereby shall be subject to the satisfaction of the
following conditions on or before the Scheduled Closing Date, except to the
extent that any of such conditions may be waived by Purchaser in writing at
Closing.


 


10.1.1      Tenant Estoppels.  Purchaser shall have received tenant estoppel
certificates dated not more than thirty (30) days prior to the Closing from
seventy-five percent (75%) of the occupied square footage in the
Properties.  Seller agrees to deliver to
each tenant a tenant estoppel certificate substantially in the form attached
hereto as Exhibit K.  Notwithstanding the foregoing, in the event
that a Lease requires a different form of estoppel certificate or requires
specific provisions, Purchaser shall be required to accept a tenant estoppel
certificate that is substantially in the form required by said Lease or
substantially in the form of Exhibit K
as modified to comply with the specific provisions required by said Lease.  Additionally, Purchaser acknowledges that
while the statements set forth in paragraphs 8 and 9 of Exhibit K are not qualified to the
knowledge or best knowledge of the tenant, Purchaser shall be required to
accept any tenant estoppel certificate that has been qualified to the knowledge
or best knowledge of the tenant with respect to said paragraphs.  Notwithstanding the foregoing, at Seller’s
sole option, Seller may (i) extend the Scheduled Closing Date solely with
respect to up to five (5) of the Properties for up to an additional thirty
(30) days in order to satisfy the foregoing requirement for such Properties, in
which event Seller shall deliver notice of such extension with respect to such
Properties to Purchaser prior to the Scheduled Closing Date (and the Closing
shall proceed as scheduled with respect to all other Properties), and/or (ii) provide
its own estoppel (“Seller’s Estoppel”)
in the form attached as Exhibit L
to Purchaser in satisfaction of the foregoing requirements with respect to not
more than twenty-five percent (25%) of the occupied square footage of the
Properties.  In the event that Seller has
not complied with the provisions of this Section 10.1.1, Purchaser
may (i) elect to consummate the Closing, or (ii) notify Seller of its
intent to terminate this Agreement by written notice (the “Tenant Estoppel Termination Notice”) on or
before the Scheduled Closing Date.  In
the event that, after the Closing, Seller delivers to Purchaser a tenant
estoppel certificate from a tenant for whom Seller executed a Seller’s Estoppel
at the Closing and such tenant estoppel certificate contains no information
which is contradictory to or inconsistent with the information contained in the
Seller’s Estoppel, then


 


22





















 


Seller thereafter shall be
released from all liability relating to Seller’s Estoppel with respect to such
tenant’s Lease.  In no event shall Seller
be obligated to deliver updates to the tenant estoppel certificate or Seller’s
Estoppel.


 


10.1.2      Title Policy.  The Title Company shall be prepared to issue
to Purchaser on the Closing Date an extended coverage ALTA Form B policy
of title insurance, amended October 17, 1970 (the “Owner’s Policy”), or equivalent form Owner’s
Policy acceptable to Purchaser, with respect to each Property in the
Properties, in the face amount of the applicable Purchase Price attributable to
such Property, and dated as of the Closing Date, indicating title to such
Property is vested of record in Purchaser, subject solely to the applicable
Permitted Exceptions.


 


10.1.3      Possession of the Property.  Delivery by Seller of possession of the
applicable Property, subject to the Permitted Exceptions and the rights of
tenants under the applicable Leases and Approved New Leases.


 


ARTICLE XI

Closing


 


11.1        Purchaser’s
Closing Obligations.  Purchaser, at its sole cost and expense,
shall deliver or cause to be delivered to Seller and the Title Company at each
Closing the following, as same relates to the Properties:


 


11.1.1      The applicable portion of the Purchase
Price, after all adjustments are made at the Closing as herein provided, by
wire transfer or other immediately available federal funds, which amount shall
be received in escrow by the Title Company at or before 11:00 a.m. Central
time.


 


11.1.2      An assumption of a blanket conveyance and
bill of sale, substantially in the form attached hereto as Exhibit M (“General Assignment”), duly executed by
Purchaser, conveying and assigning to Purchaser the applicable Personal
Property, Leases, Contracts, records and plans, and Intangible Property.


 


11.1.3      Executed counterparts of the Master Lease
and the Amendment to Property Management Agreement, and such other documents to
be provided in accordance with Sections 9.5 and 9.6 hereof with
respect to the Closing.


 


11.1.4      Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings, if requested by the Title Company.


 


11.2        Seller’s
Closing Obligations.  Seller, at its sole cost and expense, shall deliver
or cause to be delivered to Purchaser and the Title Company the following, as
same relates to each of the Properties and the Properties, as the case may be:


 


11.2.1      A Special warranty deed (a “Deed”) in recordable form properly executed
by Seller conveying to Purchaser the Land and Improvements in fee simple,
subject only to the Permitted Exceptions, substantially in the form attached
hereto as Exhibit N
(as modified in order to satisfy any State-specific requirements with respect
to the States of Indiana and Wisconsin, if applicable).


 


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11.2.2      A General Assignment, duly executed by
Seller, conveying and assigning to Purchaser the Personal Property, the Leases,
the Contracts and the Intangible Property.


 


11.2.3      Written notice to the tenant(s) (i) acknowledging
the sale of the Property to Purchaser, (ii) acknowledging that Purchaser
has received and is responsible for any security deposits identified in the
rent roll, and (iii) indicating that rent should thereafter be paid to
Purchaser, substantially in the form attached hereto as Exhibit O.


 


11.2.4      A certificate substantially in the form
attached hereto as Exhibit P
(“Non-foreign Entity Certification”)
certifying that Seller is not a “foreign person” as defined in the Code.


 


11.2.5      Executed counterparts of the Master Lease
and the Amendment to Property Management Agreement, and such other documents to
be provided in accordance with Sections 9.5 and 9.6 hereof with
respect to the Closing.


 


11.2.6      Such other documents as may be reasonably
necessary or appropriate to effect the consummation of the transactions which
are the subject of this Agreement, including, but not limited to, ALTA
Statements and GAP Undertakings.


 


11.2.7      Purchaser and Seller have agreed that
possession (but not ownership) of all original Leases, tenant files and
Contracts shall remain with Seller following Closing, in its capacity as
Property Manager but that ownership of such items shall pass to Purchaser.  Any duplicate originals of Leases and
Contracts in Seller’s possession or control shall be delivered to Purchaser
promptly after Closing.


 


11.2.8      All REA Estoppel Certificates received by
Seller, if any.


 


11.2.9      A certificate of Seller by which Seller
reaffirms the truth and accuracy in all material respects of the
representations and warranties set forth in Sections 7.1 above, subject
to and setting forth any changes thereto occurring since the Effective Date.


 


11.2.10  Reliance letters with respect to and
permitting Purchaser to rely on the most recent Phase 1 environmental reports
provided by Seller to Purchaser from the consultant who prepared the applicable
environmental report.


 


11.3        Joint
Closing Obligations.  Purchaser
and Seller shall execute and deliver a closing statement for each of the
Properties setting forth the applicable Purchase Price, and any and all
prorations and credits between the parties, as determined pursuant to this
Agreement, together with real estate transfer tax declarations as required.


 


ARTICLE XII

Risk of Loss


 


12.1        Condemnation
and Casualty.  If, prior to the Closing Date, any portion of
the applicable Properties are taken by condemnation or eminent domain, or is
the subject of a pending taking which has not been consummated, or is destroyed
or damaged by fire or other casualty, Seller shall notify Purchaser of such
fact promptly after Seller obtains knowledge thereof.  If such condemnation or casualty is “Material” (as hereinafter defined),
Purchaser shall have the option to either (i) extend the Scheduled Closing
Date solely with respect to the applicable Property for a time reasonably
required by Seller to repair any damage or destruction with respect to the
applicable


 


24





















 


Property (and the Scheduled Closing Date
shall proceed as scheduled with respect to all other Properties), or (ii) proceed
to Closing in accordance with the terms of Section 12.1. If
Purchaser elects to proceed to Closing, then Seller shall not be obligated to
repair any damage or destruction with respect to the applicable Property, but
(x) Seller shall assign, without recourse, and turn over to Purchaser all of
the insurance proceeds or condemnation proceeds, as applicable, net of any
costs of repairs and net of reasonable collection costs (or, if such have not
been awarded, all of its right, title and interest therein) payable with
respect to such fire or other casualty or condemnation including any rent
abatement insurance for such casualty or condemnation and (y) the parties shall
proceed to Closing pursuant to the terms hereof without abatement of the
Purchase Price except for a credit in the amount of the applicable insurance
deductible.


 


12.2        Condemnation
Not Material.  If the condemnation is not Material, then the
Closing shall occur without abatement of the Purchase Price and, after
deducting Seller’s reasonable costs and expenses incurred in collecting any
award, Seller shall assign, without recourse, all awards or any rights to
collect awards to Purchaser on the Closing Date.


 


12.3        Casualty
Not Material.  If the Casualty is not Material, then the
Closing shall occur without abatement of the Purchase Price except for a credit
in the amount of the applicable deductible and Seller shall not be obligated to
repair such damage or destruction and Seller shall assign, without recourse,
and turn over to Purchaser all of the insurance proceeds net of any costs of
repairs completed to date and net of reasonable collection costs (or, if such
have not been awarded, all of its right, title and interest therein) payable
with respect to such fire or such casualty including any rent abatement
insurance for such casualty.


 


12.4        Materiality.  For
purposes of this Article XII, (i) with respect to a taking by
condemnation or eminent domain, the term “Material”
shall mean any condemnation or taking which would materially impede access to a
Property, reduce available parking at a Property below that required by
applicable law or any other agreement affecting such Property, result in the
termination of any Lease of more than ten percent (10%) of the space in the
applicable Property, or result in a condemnation award reasonably estimated to
exceed ten percent (10%) of the Purchase Price applicable to such Property; and
(ii) with respect to a casualty, the term “Material” shall mean any casualty such that the cost of
repair, as reasonably estimated by an engineer designated by Seller and
Purchaser, is in excess of ten percent (10%) of the Purchase Price applicable
to such Property.


 


ARTICLE XIII

Default


 


13.1        Default
by Seller.  IN THE EVENT THE CLOSING AND THE TRANSACTIONS
CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON OF ANY DEFAULT OF
SELLER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS AFTER WRITTEN
NOTICE FROM PURCHASER TO SELLER, IT WOULD BE IMPRACTICAL AND EXTREMELY
DIFFICULT TO ESTIMATE THE DAMAGES WHICH PURCHASER MAY SUFFER.  THEREFORE, THE PARTIES HAVE AGREED THAT A
REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT PURCHASER WOULD SUFFER IN
SUCH EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE PROCEEDS OF THE SELLER
LETTER OF CREDIT,  AS LIQUIDATED DAMAGES,
AS PURCHASER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT.  SUCH LIQUIDATED DAMAGES ARE NOT INTENDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE LAWS.  Notwithstanding the foregoing, nothing
contained herein shall limit Purchaser’s remedies at law or in equity, as to
the Surviving Termination Obligations.


 


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13.2        Default
by Purchaser; Liquidated Damages.  IN THE EVENT THE CLOSING AND
THE TRANSACTIONS CONTEMPLATED HEREBY DO NOT OCCUR AS PROVIDED HEREIN BY REASON
OF ANY DEFAULT OF PURCHASER, WHICH DEFAULT IS NOT CURED WITHIN TWO (2) DAYS
AFTER WRITTEN NOTICE FROM SELLER TO PURCHASER, IT WOULD BE IMPRACTICAL AND
EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER MAY SUFFER.  THEREFORE, THE PARTIES HAVE AGREED THAT A
REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER WOULD SUFFER IN SUCH
EVENT IS AND SHALL BE THE RIGHT TO RETAIN THE PROCEEDS OF THE PURCHASER LETTER
OF CREDIT AS LIQUIDATED DAMAGES, AS SELLER’S SOLE AND EXCLUSIVE REMEDY UNDER
THIS AGREEMENT.  SUCH LIQUIDATED DAMAGES
ARE NOT INTENDED AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF APPLICABLE
LAWS.  Notwithstanding the foregoing,
nothing contained herein shall limit Seller’s remedies at law or in equity, as
to the Surviving Termination Obligations.


 


ARTICLE XIV

Brokers


 


14.1        Brokers. 
Purchaser and Seller each represents and warrants to the other that it
has not dealt with any person or entity entitled to a brokerage commission,
finder’s fee or other compensation with respect to the transaction contemplated
hereby.  Purchaser hereby agrees to
indemnify, defend, and hold Seller harmless from and against any losses,
damages, costs and expenses (including, but not limited to, attorneys’ fees and
costs) incurred by Seller by reason of any breach or inaccuracy of the
Purchaser’s ( or its nominee’s) representations and warranties contained in
this Article XIV.  Seller
hereby agrees to indemnify, defend, and hold Purchaser harmless from and
against any losses, damages, costs and expenses (including, but not limited to,
attorneys’ fees and costs) incurred by Purchaser by reason of any breach or
inaccuracy of Seller’s representations and warranties contained in this Article XIV.  The provisions of this Article XIV
shall survive the Closing and/or termination of this Agreement.


 


ARTICLE XV

Confidentiality


 


15.1        Confidentiality. 
Purchaser expressly acknowledges and agrees that the transactions
contemplated by this Agreement, the Documents that are not otherwise known by
or readily available to the public and the terms, conditions and negotiations
concerning the same shall be held in the strictest confidence by Purchaser and
shall not be disclosed by Purchaser except to a Purchaser Party/Representative,
and except and only to the extent that such disclosure may be necessary for its
performance hereunder.  Purchaser agrees
that it shall instruct each of its Purchaser Party/Representatives to maintain
the confidentiality of such information and at the request of Seller, to
promptly inform Seller of the identity of each such Purchaser
Party/Representative.  Purchaser further
acknowledges and agrees that, unless and until the Closing occurs, all
information and materials obtained by Purchaser in connection with the
Properties that are not otherwise known by or readily available to the public
will not be disclosed by Purchaser to any third persons (other than to its
Purchaser Party/Representatives) without the prior written consent of
Seller.  If the transaction contemplated
by this Agreement does not occur for any reason whatsoever, Purchaser shall
promptly return to Seller, and shall instruct its Purchaser
Party/Representatives to return to Seller, all copies and originals of all
documents and information provided to Purchaser.  Nothing contained in Section 5.2
of this Agreement or this Section 15.1 shall preclude or limit
either party from disclosing or accessing any information otherwise deemed
confidential under Section 5.2 or this Section 15.1 in
connection with the party’s enforcement of its rights following a disagreement
hereunder or in response to lawful process or subpoena or other


 


26





















 


valid or enforceable order of a court of
competent jurisdiction or any filings or disclosures with any applicable
Authorities (In the Unites States and/or Australia) required by reason of the
transactions provided for herein and/or any filings or disclosures required in
accordance with the laws or market rules (including stock exchange rules)
of the United States and/or Australia. 
The provisions of this Section 15.1 shall survive any
termination of this Agreement without limitation.


 


15.2        Post
Closing Publication.  Notwithstanding the foregoing, following
Closing, Purchaser and Seller shall have the right to announce the acquisition
of the Properties in newspapers and real estate trade publications (including “tombstones”)
publicizing the purchase provided that Purchaser and Seller shall consult one
another with respect to any such notice or publication, and shall implement any
reasonable comments or objections of the other. 
Seller may also publicize the sale of the Property in the ordinary
course of its business.  The provisions
of this Section 15.2 shall survive Closing and/or any termination
of this Agreement without limitation.


 


ARTICLE XVI

1031 Exchange


 


16.1        1031
Exchange.  Purchaser
agrees to cooperate with Seller for purposes of effecting and structuring, in
conjunction with the sale of the Properties, for the benefit of Seller, a
like-kind exchange of real property, whether simultaneous or a deferred
exchange, pursuant to Section 1031 of the Internal Revenue Code of 1986,
as amended, and the regulations promulgated thereunder.  Purchaser specifically agrees to execute such
documents and instruments as are reasonably necessary to implement such an
exchange.  Seller shall be solely
responsible for assuring that the structure of any proposed exchange is
effective for Seller’s tax purposes. 
Furthermore, Purchaser specifically agrees that Seller may assign this
Agreement and any of its rights or obligations hereunder, in whole or in part,
as necessary or appropriate in furtherance of effectuating a Section 1031
like-kind exchange for the Properties, provided that such assignment shall not
serve to relieve Seller of any liability for Seller’s obligations
hereunder.  Purchaser shall have no
obligation to pay costs or expenses of effectuating such exchange, no such
exchange shall alter the time for performance set forth herein, and Purchaser
shall not be required to take title to any exchange property or (except for
customary consent to assignment of this Agreement to an exchange intermediary)
to incur obligations to third parties.


 


ARTICLE XVII

Miscellaneous


 


17.1        Notices.  Any
and all notices, requests, demands or other communications hereunder shall be
in writing and shall be deemed properly served (i) on the date sent if
transmitted by hand delivery with receipt therefor, (ii) on the date sent
if transmitted by facsimile (with confirmation by hard copy to follow by
overnight delivery service), (iii) on the date sent if scanned to a .pdf
file and transmitted by e-mail (with confirmation by hard copy to follow by
overnight delivery service) (iv) on day after the notice is deposited with
a nationally recognized overnight courier, or (v) upon receipt after being
sent by registered or certified mail, return receipt requested, first class
postage prepaid, addressed as follows (or to such new address as the addressee
of such a communication may have notified the sender thereof):


 


27





















 


	
  To Purchaser:

  	
   

  	
  CenterPoint James
  Fielding, LLC

  Level 5, 40 Miller Street

  North Sydney, NSW 2060

  Australia

  Attn: Mr. Ben Hindmarsh

  Fax No.:  61 2 9004 8462

  E-Mail: benhindmarsh@mirvac.com.au

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Wildman Harrold
  Allen & Dixon LLP

  225 W. Wacker Drive, Suite 3000

  Chicago, Illinois 60606

  Attn: Kathleen M. Gilligan, Esq.

  Fax No.: (312) 201-2555

  E-Mail:gilligan@wildmanharrold.com

  
	
   

  	
   

  	
   

  
	
  To Seller:

  	
   

  	
  CenterPoint Properties
  Trust

  1808 Swift Drive

  Oak Brook, Illinois 60523

  
	
   

  	
   

  	
  Attn:

  	
  Mr. James N. Clewlow
  

  and Mr. Michael M. Mullen 

  
	
   

  	
   

  	
  Fax No.: (630) 586-8010

  E-Mail: jclewlow@centerpoint-prop.com

  E-Mail: mmullen@centerpoint-prop.com

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Weinberg Richmond LLP

  333 West Wacker Drive,
  Suite 1800

  Chicago, Illinois 60606

  Attn: Mark S. Richmond, Esq.

  Fax No.:  (312) 807-3903

  E-Mail:  mrichmond@wr-llp.com

  



 


17.2        Governing
Law.  This Agreement shall be governed by and
construed in accordance with the internal, substantive laws of the State of
Illinois, without regard to the conflict of laws principles thereof.


 


17.3        Headings.  The
captions and headings herein are for convenience and reference only and in no
way define or limit the scope or content of this Agreement or in any way affect
its provisions.


 


17.4        Effective
Date.  This Agreement shall be effective upon
delivery of this Agreement fully executed by the Seller and Purchaser, which
date shall be deemed the Effective Date hereof. 
Either party may request that the other party promptly execute a
memorandum specifying the Effective Date.


 


17.5        Business
Days.  If any date herein set forth for the
performance of any obligations of Seller or Purchaser or for the delivery of
any instrument or notice as herein provided should be on a Saturday, Sunday or
legal holiday, the compliance with such obligations or delivery shall be deemed
acceptable on the next business day following such Saturday, Sunday or legal
holiday.  As used herein, the term “legal
holiday” means any state or Federal holiday for which financial institutions or
post offices are generally closed in the state where the Property is located.


 


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17.6        Counterpart
Copies.  This Agreement may be executed in two or more
counterpart copies, all of which counterparts shall have the same force and
effect as if all parties hereto had executed a single copy of this Agreement.


 


17.7        Binding
Effect.  This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns.


 


17.8        Assignment.  Purchaser
shall not have the right to assign this Agreement without Seller’s prior
written consent, which consent may be given or withheld in Seller’s sole and
absolute discretion; provided, however, Purchaser may designate a wholly owned
subsidiary to acquire title to the Properties at Closing or assign its right,
title and interest under this Agreement to a wholly owned subsidiary, provided
that in no event will Purchaser be released from any of its obligations or
liabilities under this Agreement.  Seller
may assign this Agreement in whole or in part to any corporate, limited
liability company or partnership entity affiliated with, or related to, Seller
(“Affiliate”) without Purchaser’s
consent; provided that Seller shall in no event be released from any of its
obligations or liabilities hereunder as a result of any such assignment.  In the event that an Affiliate shall be
designated as a transferee hereunder, the Affiliate shall have the benefit of
all of the representations and rights that would otherwise have run in favor of
Seller, which, by the terms of this Agreement, are incorporated or relate to
the conveyance in question.  All
transferees and assignees of Purchaser (“Assignee”)
shall assume all of Purchaser’s obligations under this Agreement pursuant to an
Assignment and Assumption Agreement reasonably acceptable to Seller, and
consented to in writing by Seller.  In
the event the rights and obligations of Purchaser shall be transferred,
assigned and assumed as permitted under this Agreement, then such Assignee will
be substituted in place of such assignor in the above-provided-for documents
and it shall be entitled to the benefit of and may enforce Seller’s covenants,
representations and warranties hereunder provided that Purchaser shall in no
event be released from any of its obligations or liabilities hereunder as a
result of such assignment.  Upon any such
assignment by Purchaser or any successor or assign of Purchaser, then the
assignor’s liabilities and obligations hereunder or under any instruments, documents
or agreements made pursuant hereto shall be binding upon Assignee; provided,
however, that Assignee shall have the benefit of any limitations of such
liabilities and obligations applicable to either the assignor or Assignee,
provided by law or by the terms hereof or such instruments, documents or
agreements.  Whenever reference is made
in this Agreement to Seller or Purchaser, such reference shall include the
successors and assigns of such party under this Agreement.  Purchaser may assign this Agreement for
collateral purposes only to Purchaser’s lender.


 


17.9        Interpretation.  This
Agreement shall not be construed more strictly against one party than against
the other merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that both Seller and
Purchaser have contributed substantially and materially to the preparation of
this Agreement.


 


17.10      Entire
Agreement.  This Agreement and the Exhibits attached
hereto contain the final and entire agreement between the parties hereto with
respect to the sale and purchase of the Property and are intended to be an
integration of all prior negotiations and understandings.  Purchaser, Seller and their agents shall not
be bound by any terms, conditions, statements, warranties or representations,
oral or written, not contained herein. 
No change or modifications to this Agreement shall be valid unless the
same is in writing and signed by the parties hereto.  Each party reserves the right to waive any of
the terms or conditions of this Agreement which are for their respective
benefit and to consummate the transaction contemplated by this Agreement in
accordance with the terms and conditions of this Agreement which have not been
so waived.  Any such waiver must be in
writing signed by the party for whose benefit the provision is being waived.


 


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17.11      Severability.  If
any one or more of the provisions hereof shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


17.12      Survival. 
Except for obligations that survive the Closing pursuant to the
provisions of Sections (and related subparagraphs) 4.2, 5.1, 5.2,
5.3, 6.2, 7.4, 7.5, 7.6, 8.3, 8.4,
9.4, 9.9, 9.11, 10.2, 14.1, 15.1, 15.2,
17.15, 17.16,  17.20 and 17.23 (collectively, the “Surviving Termination Obligations”), the
provisions of this Agreement and the representations and warranties herein
shall not survive after the conveyance of title and payment of the Purchase
Price but be merged therein.


 


17.13      Exhibits
and Schedules.  Exhibits
A through S
and Schedules 7.1.4 through 9.12 attached hereto are incorporated herein by
reference.


 


17.14      Time.  Time
is of the essence in the performance of each of the parties’ respective
obligations contained herein.


 


17.15      Limitation
of Liability.  No present or future partner, member,
manager, director, officer, shareholder, employee, advisor, affiliate or agent
of or in Purchaser or any affiliate of Purchaser shall have any personal
liability, directly or indirectly, under or in connection with this Agreement
or any agreement made or entered into under or in connection with the
provisions of this Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and Seller and
its successors and assigns and, without limitation, all other persons and
entities, shall look solely to Purchaser’s assets for the payment of any claim
or for any performance, and Seller hereby waives any and all such personal
liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Purchaser shall constitute an asset of Purchaser.  The limitations of liability contained in
this Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Purchaser provided elsewhere in this Agreement or by
law or by any other contract, agreement or instrument.  All documents to be executed by Purchaser
shall also contain the foregoing exculpation.


 


No present or future
partner, member, director, officer, shareholder, employee, advisor, affiliate
or agent of or in Seller or any affiliate of Seller shall have any personal
liability, directly or indirectly, under or in connection with this Agreement
or any agreement made or entered into under or in connection with the
provisions of this Agreement, or any amendment or amendments to any of the
foregoing made at any time or times, heretofore or hereafter, and Purchaser and
its successors and assigns and, without limitation, all other persons and
entities, shall look solely to Seller’s assets for the payment of any claim or
for any performance, and Purchaser hereby waives any and all such personal
liability.  For purposes of this Section 17.15,
no negative capital account or any contribution or payment obligation of any
partner or member in Seller shall constitute an asset of Seller.  The limitations of liability contained in
this Paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Seller provided elsewhere in this Agreement or by law
or by any other contract, agreement or instrument.  All documents to be executed by Seller shall
also contain the foregoing exculpation. 
The provisions of this Section 17.15 shall survive Closing
and/or any termination of this Agreement.


 


17.16      Prevailing
Party.  Should either party employ an attorney to
enforce any of the provisions hereof, (whether before or after Closing, and
including any claims or actions involving amounts held in escrow), the
non-prevailing party in any final judgment agrees to pay the other party’s
reasonable expenses, including reasonable attorneys’ fees and expenses in or
out of litigation and, if in litigation, trial, appellate, bankruptcy or other
proceedings, expended or incurred in


 


30





















 


connection therewith, as determined by a
court of competent jurisdiction.  The
provisions of this Section 17.16 shall survive Closing and/or any
termination of this Agreement.


 


17.17      No Recording. 
Neither this Agreement nor any memorandum or short form hereof shall be
recorded or filed in any public land or other public records of any
jurisdiction, by either party and any attempt to do so may be treated by the
other party as a breach of this Agreement.


 


17.18      Waiver of
Trial by Jury.  The respective parties hereto shall and
hereby do waive trial by jury in any action, proceeding or counterclaim brought
by either of the parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Agreement, or for the
enforcement of any remedy under any statute, emergency or otherwise.


 


17.19      Cooperation between Seller and
Purchaser.  Seller agrees to reasonably cooperate with
Purchaser in connection with the preparation and delivery of any Subordination,
Non-Disturbance and Attornment Agreements required by Purchaser’s lenders in
connection with the closing of the transaction described herein.


 


17.20      Further
Assurances.  Each party shall, from time to time, at the
request of the other party, and without further consideration, execute and
deliver such further instruments and take such further action as may be
required or reasonably requested by either party to establish, maintain or
protect the respective rights of the parties to carry out and effect the
intentions and purposes of this Agreement.


 


17.21      Return of
Deposit.  Notwithstanding anything to the contrary
contained in this Agreement, whenever this Agreement provides that the Deposit
shall be delivered or returned to Purchaser, the parties acknowledge and agree
that said Deposit or a portion thereof shall remain with the Escrow Agent in
the event that Purchaser has failed to comply with the provisions of this
Agreement.  Notwithstanding anything to
the contrary contained in this Section 17.21, Seller agrees that if
the provisions of this Agreement provide for the return of the Deposit to
Purchaser that Seller will not unreasonably withhold its consent to the return
of the Deposit to Purchaser.  Notwithstanding
anything to the contrary contained in this Section 17.21, Purchaser
agrees that if the provisions of this Agreement provide for the return of the
Seller Earnest Money to Seller that Purchaser will not unreasonably withhold
its consent to the return of the Seller Earnest Money to Seller.


 


17.22      Other
Agreements.  Seller and Purchaser have a business
relationship with each other and in connection therewith Seller and Purchaser
have entered into various other agreements as of the date hereof (“Other Agreements”).  A default by either party under any Other
Agreement not cured within any applicable cure period shall be deemed to be a
default by such party under this Agreement.


 


17.23      Seller
Environmental Obligations.  Notwithstanding anything to the contrary contained
in this Agreement, based on conditions existing as of the Effective Date,
Seller agrees to conduct and complete, for Purchaser’s benefit and solely at
Seller’s expense except as provided below, all investigation and remediation
measures necessary for Seller to obtain (a) with respect to the Properties
identified on Exhibit S,
a No Further Remediation (“NFR”)
letter from the Illinois Environmental Protection Agency, and (b) with
respect to the Properties identified on Exhibit S,
a Certificate of Completion in the Voluntary Remediation Program administered
by the Indiana Department of Environmental Management and a Covenant Not to Sue
from the office of the Governor of Indiana (the NFR Letter, the Certificates of
Completion, the Covenants Not to Sue, and all other necessary closure
certification records shall be referred to collectively herein as the “Completion Documents”).


 


31





















 


17.23.1            Schedule.  Seller shall act with diligence in conducting
investigation and remediation measures, in pursuing issuance of the Completion
Documents, and in complying with any applicable requirements of the respective
state voluntary cleanup program, including without limitation the following, to
the extent required by the respective state voluntary cleanup program: causing
the Completion Documents to be recorded in the property records and filed with
governmental agencies, and notifying third parties such as off-site landowners.
Seller shall make reasonable efforts to cause the Completion Documents to be
issued by no later than the LLC Expiration Date (as defined in that
certain  Limited Liability Company
Agreement of even date herewith by and between CenterPoint Properties Trust and
JF US Industrial Property Trust).  If
Seller fails to cause the Completion Documents to be issued by no later than
the LLC Expiration Date for any individual Property (“NFR Substitution Event”), Purchaser may, at
its option, by written notice to Seller within thirty (30) days after the
occurrence of an NFR Substitution Event, request that Seller offer a Substitute
Property in accordance with Section 9.9.2 above. (“NFR Substitution Notice”); provided,
however, in the event that Purchaser elects to have Seller provide a Substitute
Property, Seller, if it chooses to do so, in its sole and absolute discretion,
shall have a period of thirty (30) days from the date Seller is given the NFR
Substitution Notice to obtain the Completion Documents, and further, provided,
however, if the Completion Documents are not capable of being obtained within
said thirty (30) day period through no fault of Seller and Seller has commenced
to obtain the Completion Documents within such thirty (30) day period, then
Seller shall have such reasonable period of time from and after the date of the
NFR Completion Notice to obtain the Completion Documents; provided, further,
that such additional period shall not extend beyond the date of the Closing
with respect to the Substitute Property. 
In the event Seller cures the condition giving rise to the NFR
Substitution Event prior to the time that a Closing with respect to the
Substitute Property occurs, the Scheduled Closing Date for the Removed Property
shall be extended to the fifteenth (15th) day after the condition
giving rise to the NFR Substitution Event has been cured.


 


In
the event Seller does not obtain the Completion Documents within the time
periods referenced above, Seller shall repurchase the Property in question at
such time as Purchaser acquires a Substitute Property.  Seller shall repurchase the Removed Property
for the same price paid by Purchaser to purchase such Property from Seller and
Seller shall repurchase such Property on the same terms and conditions of this
Agreement applicable to Purchaser’s acquisition of a Substitute Property.
Seller shall be obligated to repurchase the Property in question only if
Purchaser agrees to purchase the Substitute Property, and Purchaser and Seller
shall agree to close on both transactions on the same day at the same time.  Seller and Purchaser agree to follow the same
terms, conditions and procedures for purposes of this exchange as are generally
consistent with Sections 9.9.5, 9.9.6, 9.9.7 and 9.9.8 of this
Agreement.


 


17.23.2            Cooperation.  From and after the Effective Date of this Agreement,
Seller and Purchaser shall cooperate with each other to facilitate the
successful completion of the voluntary remediation process for each
Property.  Seller and Purchaser shall
consult in good faith about all draft workplans and proposed submissions to
regulatory authorities, and Seller shall make changes reasonably requested by
Purchaser.  Seller shall provide at least
two (2) Business Days advance written notice of entry onto a Property and
identify the general nature of the work to be performed and the portion(s) of
the Property on which the work will be performed.  To the extent practical, Seller shall provide
advance notice to Purchaser of, and shall allow Purchaser to participate in,
meetings and telephone conferences with regulatory authorities.  Seller shall provide Purchaser with a copy of
all test results, final submissions to regulatory agencies and final documents
received from such agencies within a reasonable period of time after they are
received or created by Seller.


 


32





















 


17.23.3            Scope of
Testing Activities.  Pursuant to this
Section 17.23, Seller shall conduct initial testing sufficient to
reasonably identify all potential contaminants of concern materially related to
the industrial/commercial use at the Properties (reasonably taking into
consideration potentially significant environmental conditions indicated in
Phase 1 reports or in prior testing). 
Subsequent testing shall be conducted by Seller as reasonably necessary
to satisfy regulatory authorities for issuance of the Completion Documents.


 


17.23.4            Institutional
Controls.  The Completion Documents
may be qualified or conditioned by institutional controls (e.g., deed
restrictions, engineered barriers) to the extent such controls are consistent
with the Properties’ industrial/commercial use as of the Effective Date and are
necessary for issuance of the Completion Documents; provided, however, Seller
shall have sole discretion to select the remedial approach for obtaining the
Completion Documents.  Any such
institutional controls are subject to Purchaser’s review and approval, which
approval shall not be unreasonably withheld.


 


17.23.5    Execution of Documents.  Solely relating to and limited by Seller’s
obligations as set forth in Article 17 hereto, Seller shall arrange
for any offsite disposal of hazardous substances, required in order to obtain
the Completion Documents, and shall execute all manifests and similar
documents, reflecting itself or its designee as the generator of such hazardous
substances, and in no event shall Seller name or identify Purchaser as the
generator of such hazardous substances; provided, however, the Seller has no
duty or obligation whatsoever for any hazardous substances transported to,
released upon or generated by Purchaser, its agents, representatives and
assigns, at, on, beneath or adjacent to the Properties. Purchaser shall execute
other documents reasonably requested by Seller that are necessary and
consistent with this Section 17.23.


 


17.23.6    Access. Purchaser shall provide
necessary access to Seller to carry out the provisions of this section.  Seller shall use all reasonable efforts to
avoid any disruption of tenant activities, and shall promptly repair at Seller’s
sole cost and expense any damage caused by its investigation or remediation
activities.


 


17.23.7    Indemnification. Until the earlier of
the date the Seller procures and provides to Purchaser the requisite Completion
Documents as set forth herein for each Property, or an appropriate substitute
is exchanged pursuant to Section 17.23.1 hereof, Seller shall
protect, defend, indemnify and hold Purchaser harmless from and against any
claim or loss arising out of (a) any investigation, remediation or
disposal activities conducted by Seller or its agents pursuant to this Section 17.23,
and (b) any failure by Seller to obtain the Completion Documents as
provided in this section.


 


17.23.8    Voidance. In the event any of the
Completion Documents are voided as a result of any fraudulent misrepresentation
or other fraudulent act or omission of Seller, Seller shall be responsible for
implementing at its expense any measures necessary to have the Completion
Documents reinstated.


 


17.23.9    Assignment.  To the extent allowed by contract and law,
Seller shall use reasonable efforts to assign to Purchaser its environmental
rights under current vendor and tenant agreements, including all indemnities,
escrows, representations, and warranties (“Seller’s Environmental
Rights”).  Where Seller is
unable to assign Seller’s Environmental Rights, Seller will use commercially
reasonable efforts to enforce such rights on behalf of Purchaser (at Purchaser’s
expense).


 


33





















 


17.23.10  Survival.  The terms of this Section 17.23
shall expressly survive, without limitation, the Closing.


 


17.24      Currency. All payments and amounts referenced or
described in this Agreement shall be deemed to require payments in and refer to
amounts in the currency of the United States of America.


 


17.25      Facsimile
Signatures. The
parties hereto agree that the use of facsimile signatures for the execution of
this Agreement shall be legal and binding and shall have the same force and
effect as if originally signed.


 


34





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal on the
date or dates set forth below.


 


 


	
   

  	
  PURCHASER:

  
	
   

  	
   

  	
   

  
	
   

  	
  CENTERPOINT JAMES FIELDING, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
    /s/ Adrian Harrington

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Adrian
  Harrington

  
	
   

  	
   

  	
  Title:

  	
  Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
    /s/
  Adrienne Parkinson

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Adrienne
  Parkinson

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:
   April 6, 2005

  
	
   

  	
   

  	
   

  
	
   

  	
  Tax
  I.D. # 98-0450460

  
	
   

  	
   

  	
   

  
	
   

  	
  SELLER:

  
	
   

  	
   

  	
   

  
	
   

  	
  CENTERPOINT PROPERTIES TRUST, a Maryland

  real estate investment trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By
  

  	
    /s/ Michael M. Mullen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael
  M. Mullen

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By
  

  	
    /s/ James N. Clewlow

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  N. Clewlow

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Investment Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Date:  April 6, 2005

  
								



 


35





















 


Exhibits


 


	
  Exhibit A

  	
   

  	
  Properties

  
	
  Exhibit A-2

  	
   

  	
  Intentionally Deleted

  
	
  Exhibit A-3

  	
   

  	
  Bonds

  
	
  Exhibit B-1 - B-7

  	
   

  	
  Legal Descriptions

  
	
  Exhibit C-1 - C-7

  	
   

  	
  Schedule of Leases

  
	
  Exhibit D -

  	
   

  	
  Intentionally Deleted

  
	
  Exhibit E -

  	
   

  	
  Escrow Agreement

  
	
  Exhibit F -

  	
   

  	
  Documents

  
	
  Exhibit G-1 - G-7

  	
   

  	
  Permitted Exceptions

  
	
  Exhibit H-

  	
   

  	
  Master Lease

  
	
  Exhibit I -

  	
   

  	
  Intentionally Omitted

  
	
  Exhibit J -

  	
   

  	
  Intentionally Omitted

  
	
  Exhibit K -

  	
   

  	
  Tenant Estoppel
  Certificate

  
	
  Exhibit L -

  	
   

  	
  Seller’s Estoppel
  Certificate

  
	
  Exhibit M -

  	
   

  	
  General Assignment

  
	
  Exhibit N -

  	
   

  	
  Deed

  
	
  Exhibit O -

  	
   

  	
  Notice of Sale to Tenant

  
	
  Exhibit P -

  	
   

  	
  Non-Foreign Entity
  Certification

  
	
  Exhibit Q -

  	
   

  	
  Survey Certification

  
	
  Exhibit R -

  	
   

  	
  Planned Expenditures

  
	
  Exhibit S -

  	
   

  	
  NFR Properties

  



 


	
  Schedules

  
	
  7.1.4 -

  	
   

  	
  No Violations of Laws

  
	
  7.1.5

  	
   

  	
  Eminent Domain

  
	
  7.1.6

  	
   

  	
  Hazardous Material

  
	
  7.1.7

  	
   

  	
  Litigation

  
	
  7.1.8

  	
   

  	
  Leases

  
	
  7.1.9

  	
   

  	
  Contracts

  
	
  7.1.10

  	
   

  	
  Defaults

  
	
  9.8

  	
   

  	
  Purchase Price Schedule

  
	
  9.10

  	
   

  	
  Contracts

  
	
  9.12

  	
   

  	
  REA Estoppels

  



 


36





















 


ESCROW AGREEMENT


 


CHICAGO TITLE AND TRUST COMPANY

171 North Clark, Chicago, Illinois 60601


 


Refer
to:    Nancy Castro


Phone
No.:    (312) 223-2709


Fax
No.:    (312) 223-2108


 


STRICT
JOINT ORDER #1 ESCROW TRUST INSTRUCTIONS (EARNEST MONEY)


 


	
  ESCROW TRUST NO.: 25031691

  	
  DATE:  April 6,
  2005

  



 


To:          Chicago Title and Trust Company, Escrow Trustee:


 


Customer Identification:


 


	
  Seller:

  	
   

  	
  CENTERPOINT PROPERTIES
  TRUST

  
	
  Purchaser:

  	
   

  	
  CENTERPOINT JAMES
  FIELDING, LLC

  
	
  Property:

  	
   

  	
  Portfolio of properties
  described in Exhibit A

  
	
  Proposed Disbursement
  Date:

  	
   

  	
  May 31, 2005

  



 


Deposits:


 


The initial sum of Ten Million Dollars
($10,000,000.00) by Seller representing security for Seller’s obligations under
those 2 certain Sale Agreements between Seller and Purchaser dated April 6,
2005 with respect to the properties described on Exhibit A.


 


Delivery of Deposits:


 


The above-referenced escrow trust deposits (“deposits”)
are deposited with the escrow trustee to be delivered by it only upon the
receipt of a joint order of the undersigned or their respective legal
representatives or assigns.


 


In no case shall the above-mentioned deposits
be surrendered except upon the receipt of an order signed by the parties
hereto, their respective legal representatives or assigns, or in obedience to
the court order described below.


 


Billing Instructions:


 


Escrow trust fee will be billed as follows:
50% to Seller and 50% to Purchaser.


 


An annual maintenance fee, as determined by
the then current rate schedule, will commence: n/a


 


PLEASE NOTE: 
The escrow trust fee for these joint order escrow trust instructions is
due and payable within 30 days from the projected disbursement date (which may
be amended by joint written direction of the parties hereto). In the event no
projected disbursement date is ascertainable, said escrow trust fee is to be
billed at acceptance and is due and payable within 30 days from the billing
date. Chicago Title and Trust Company, at its sole discretion, may reduce or
waive the escrow trust fee for these joint order escrow instructions in the
event the funds on deposit herein are transferred to or disbursed in connection
with sale escrow trust instructions or an agency closing transaction
established at Chicago Title.


 


Investment:


 


Deposits made pursuant to these instructions
may be invested on behalf of any party or parties hereto; provided that any
direction to escrow trustee for such investment shall be expressed in writing
and contain the consent of all other


 





















 


parties to this escrow, and also provided
that you are in receipt of the taxpayer’s identification number and investment
forms as required. Escrow trustee will, upon request, furnish information
concerning its procedures and fee schedules for investment.


 


Commingle:


 


Except as to deposits of funds for which
escrow trustee has received express written direction concerning investment or
other handling, the parties hereto agree that the escrow trustee shall be under
no duty to invest or reinvest any deposits at any time held by it hereunder;
and, further, that escrow trustee may commingle such deposits with other
deposits or with its own funds in the manner provided for the administration of
funds under Section 2-8 of the Corporate Fiduciary Act (205 ILCS 620/2-8)
and may use any part or all such funds for its own benefit without obligation
to any party for interest or earnings derived thereby, if any. Provided,
however, nothing herein shall diminish escrow trustee’s obligation to apply the
full amount of the deposits in accordance with the terms of these escrow
instructions.


 


In the event the escrow trustee is requested
to invest deposits hereunder, Chicago Title and Trust Company is not to be held
responsible for any loss of principal or interest which may be incurred as a
result of making the investments or redeeming said investment for the purposes
of these escrow trust instructions.


 


Compliance With Court Order:


 


The undersigned authorize and direct the
escrow trustee to disregard any and all notices, warnings or demands given or
made by the undersigned (other than jointly) or by any other person. The said
undersigned also hereby authorize and direct the escrow trustee to accept,
comply with, and obey any and all writs, orders, judgments or decrees entered
or issued by any court with or without jurisdiction; and in case the said
escrow trustee obeys or complies with any such writ; order, judgment or decree
of any court, it shall not be liable to any of the parties hereto or any other
person, by reason of such compliance, notwithstanding any such writ, order,
judgment or decree be entered without jurisdiction or be subsequently reversed,
modified, annulled, set aside or vacated. 
In case the escrow trustee is made a party defendant to any suit or
proceedings regarding this escrow trust, the undersigned, for themselves, their
heirs, personal representatives, successors, and assigns, jointly and
severally, agree to pay to said escrow trustee, upon written demand, all costs,
attorney’s fees, and expenses incurred with respect thereto. The escrow trustee
shall have a lien on the deposits(s) herein for any and all such costs, fees
and expenses. If said costs, fees and expenses are not paid, then the escrow
trustee shall have the right to reimburse itself out of the said deposit(s).


 


DISCLAIMER—LETTER OF CREDIT


 


Chicago Title is not to be held liable in any
of the following instances:


 


•                                            If the letter of credit expires while in its
possession


•                                            If the issuer of the letter of credit fails
to honor a draft presented to it by Chicago Title against said letter of credit


•                                            Delay of receipt of the proceeds of the
letter of credit into the escrow for any reason.


 


Further, any letter of credit deposited
herein shall be approved in writing by all parties to the escrow trust
instructions.  Any extension of the
letter of credit may be deposited herein provided said extension has been
approved in writing by the parties to these escrow trust instructions.


 


The escrow trustee’s responsibility shall be
limited to the presentation of the letter of credit for payment in accordance
with these escrow trust instructions. Chicago Title shall have no obligation
nor responsibility to see that such letter of credit is honored by the issuer.
If the issuer refuses to honor the draft presented for draw against said letter
of credit, the sole responsibility of the escrow trustee shall be to notify the
parties of same and to continue to comply with the terms of the escrow trust
instructions.


 


2





















 


REQUIREMENTS—LETTER OF
CREDIT


 


The undersigned hereby acknowledge that
before any Letter of Credit naming Chicago Title & Trust Company as
beneficiary (“Chicago Title”) will be accepted as an escrow deposit, the
following conditions MUST be met:


 


1.             The Letter of Credit (“L/C”) shall be issued by or payable
at a downtown Chicago bank satisfactory to Chicago Title.


 


2.             The
party depositing the L/C shall furnish the names and phone numbers of two
contact persons at the issuing bank who are familiar with the transaction.


 


3.             The
party depositing the L/C shall furnish a specimen sight draft approved in
writing by the issuing bank as acceptable to said issuing bank in the event
Chicago Title must draw on said L/C.


 


DIRECTION TO DRAW—LETTER OF
CREDIT


 


Escrowee shall draw on the
L/C and hold the funds in this escrow upon receipt of a certification from
either party stating that (i) there has been a default under the terms of
the Sale Agreement between Seller and Purchaser, or (ii) the L/C is
scheduled to expire in thirty (30) days or less.


 


EXECUTION:


 


These escrow trust instructions are governed
by and are to be construed under the laws of the State of Illinois. The escrow
trust instructions, amendments or supplemental instructions hereto, may be
executed in counterparts, each of which shall be deemed an original and all
such counterparts together shall constitute one and the same instrument.


 


	
  For Seller:

  	
   

  	
   

  	
   

  	
  For Purchaser:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Weinberg Richmond LLP

  	
   

  	
  Name:

  	
   

  	
  Wildman, Harrold,
  Allen & Dixon LLP

  
	
  By:

  	
   

  	
  Mark S.
  Richmond, Esq.

  	
   

  	
  By:

  	
   

  	
  Kathleen M.
  Gilligan, Esq.

  
	
  Address:

  	
   

  	
  333 West Wacker Drive,
  Suite 1800

  	
   

  	
  Address:

  	
   

  	
  225 West Wacker Drive,
  Suite 2800

  
	
   

  	
   

  	
  Chicago, Illinois 60606

  	
   

  	
   

  	
   

  	
  Chicago, Illinois 60606

  
	
  Phone:

  	
   

  	
  312-807-3800

  	
   

  	
  Phone:

  	
   

  	
  312-201-2307

  
	
  Fax:

  	
   

  	
  312-807-3903

  	
   

  	
  Fax:

  	
   

  	
  312-201-2555

  



 


	
  Signature:

  	
   

  	
   

  	
  Signature:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Accepted: Chicago Title
  and Trust Company, as Escrow Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  Date:

  	
                                                       ,

  	
   2005

  
									



 


3





















 


[FORM]

MASTER LEASE AGREEMENT


 


THIS MASTER LEASE AGREEMENT (“Agreement”)
is dated as of the                   
day of                             ,
200              
[INSERT DATE OF CLOSING OF APPLICABLE
TRANCHE] by and between CENTERPOINT
PROPERTIES TRUST, a Maryland real estate investment trust (“CenterPoint”), and CENTERPOINT JAMES FIELDING, LLC, a Delaware
limited liability company (“CJF”).


 


R E C I T A L S:


 


A.            CJF has heretofore acquired from
CenterPoint and is the owner of certain real property and the improvements
thereon as listed on Exhibit A
attached hereto and incorporated herein (said property and improvements are
hereinafter collectively referred to as the “Properties”).


 


B.            As an inducement to CJF to purchase the
Properties from CenterPoint, CenterPoint has agreed to “master lease” the “Premises”
and the “Rollover Space” (each as hereinafter defined) upon the terms and
conditions herein contained.


 


NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars
($10.00), in hand paid, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and in consideration of the
mutual agreements set forth in this Agreement, the parties hereto hereby agree
as follows:


 


ARTICLE 1

Definitions


 


Section 1.1             General.  In
addition to the words and terms elsewhere defined in this Agreement, certain
words and terms as used in this Agreement shall have the meanings given to them
by the definitions and the descriptions in this Article 1, unless
the context or use indicates another or different meaning or intent. Such
definition shall be equally applicable to both singular and plural forms of any
of the words and terms herein defined.


 


Section 1.2             Definitions.  The
following words and terms are defined terms under this Agreement:


 


“Additional Rent” means the amounts required to be paid
pursuant to the provisions of Section 3.2 hereof.


 


“Agreement” means this Agreement, as from time to time amended
or supplemented pursuant to the terms hereof.


 


“Approved Lease” means any future lease or leases of any
portion of the Premises or the Rollover Space entered into by CJF and a third
party.


 


“Base Rent” means the amounts referenced as Base Rent on Exhibit D attached hereto and
incorporated herein.


 


“CenterPoint” means CenterPoint Properties Trust, a Maryland
real estate investment trust.


 





















 


“CenterPoint’s Proportion” means the percentages set forth on Exhibit B attached hereto and
incorporated herein.


 


“CJF” means CenterPoint James Fielding, LLC, a Delaware limited
liability company, and its successors and assigns.


 


“Code” means the Internal Revenue Code of 1986, as amended from
time to time and in effect, or any successor legislation.


 


“Commencement Date” means the date that this Agreement is
executed.


 


“Expenses” means and includes all reasonable and customary
operating and maintenance expenses paid by CJF, as to any  of the Properties in which any Premises or
Rollover Space, as the case may be, subject to the terms of this Agreement are
located, including, but not limited to, operating expenses for (1) maintaining
the exterior common areas, (2) insuring , (3) utility charges for
common areas, (4) utility charges for the Premises or Rollover Space, as
the case may be, to the extent that providing utility services to the Premises
or Rollover Space, as the case may be, is reasonably required to maintain the
Premises or Rollover Space, as the case may be, in good working condition, (5) janitorial
charges for common areas, (6) janitorial charges for the Premises or
Rollover Space, as the case may be, to the extent that providing janitorial
services to the Premises or Rollover Space, as the case may be, is reasonably
required to maintain the office portion of the Premises or Rollover Space, as
the case may be, in a clean condition, (7) landscaping and snow removal,
and (8) the management fee for the Premises or Rollover Space, as the case
may be, charged under clause b(iii) of Paragraph 7(a) of that certain
Management Agreement dated                       ,
2005 between CJF, as owner, and CenterPoint Properties Trust, as manager (as
may be further amended, modified or supplemented, the “Management Agreement”), BUT EXCLUDING
capital improvements, and structural and roof repairs and replacements;
provided, however, that notwithstanding the foregoing, CenterPoint shall not be
deemed to be a tenant or in occupancy with respect to any Property for the
purpose of determining Expenses under any existing lease or Approved Lease at
such Property where landlord has elected to make an appropriate adjustment of
the Expenses which vary due to occupancy for a calendar or lease year,
employing sound accounting and management principles, and to charge only the
existing tenants therein the full amount of such adjusted Expenses, in which
event CenterPoint shall not be obligated to pay or reimburse CJF for any
portion of such adjusted Expenses.


 


“Premises” means that portion of the Properties as depicted on Exhibits C-1 through C-       ,
respectively, attached hereto and incorporated herein.


 


“Premises Rent” means Base Rent and Additional Rent.


 


“Premises Term” means the one year period commencing on the
Commencement Date.


 


“Properties” means the real estate and improvements described
on Exhibit A.


 


“Purchase Agreement” means that certain Purchase Agreement,
dated as of April              ,
2005, by and between CenterPoint and CJF, pertaining to the sale of the
Properties.


 


“Rent” means Premises Rent and Rollover Rent, and any other
monetary obligations of CenterPoint hereunder.


 


“Rollover Rent” means Base Rent and Additional Rent.


 


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“Rollover Space” means that portion of the Properties as
depicted on Exhibits E-1 through  E-      , respectively,
attached hereto and incorporated herein.


 


“Rollover Term” means, with respect to any Rollover Space, the
one year period commencing on the Rollover Term Commencement Date.


 


“Rollover Term Commencement Date” means, with respect to any
Rollover Space, the date that the term of the existing lease for said space
expires by its terms without being renewed.


 


“Taxes” means all real estate taxes, personal property taxes,
and other governmental levies and special assessments which accrue with respect
to the Properties during the Term, but excluding transfer taxes.


 


“Temporary Sublease” means a sublease or grant of permission to
use or occupy the Premises, the Rollover Space or any part thereof, by
CenterPoint to any person or entity pursuant to and in accordance with the
provisions of Section 5.3 hereof.


 


“Temporary Subtenant” means a tenant under a Temporary
Sublease.


 


“Term” means the period of duration of this Agreement, as set
forth in Section 2.2 hereof.


 


ARTICLE 2

Lease of Premises; Agreement to Lease Rollover Space; Term


 


Section 2.1             Lease of Premises; Agreement to Lease Rollover Space.


 


(a)           Subject to the terms and conditions
set forth below, in consideration of the covenants and agreements herein
provided, CJF agrees to and does hereby lease the Premises to CenterPoint, and
CenterPoint agrees to and does hereby lease the Premises from CJF, for the
Premises Term.  CenterPoint agrees to and
does hereby accept the Premises in “as is,” “where is” condition WITH ALL
FAULTS.  CenterPoint acknowledges that
CJF does not make any representations or warranties regarding the Premises to
CenterPoint, including, without limitation, representations or warranties of
title, condition of improvements, or suitability for use, and such Premises are
expressly subject to all encumbrances and matters of record.  CenterPoint shall not be obligated to make
any additions or alterations to any portion of the Premises, and CenterPoint
shall not have the right to make any additions or alterations to the Premises,
other than in connection with a Temporary Sublease as set forth in Section 5.3
below.  With respect to a Temporary
Sublease, CenterPoint shall have no right to make any additions or alterations
(or to permit any additions or alterations) at or to the Premises without CJF’s
prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed.  CJF’s failure to
respond within fifteen (15) days after receipt of a request for approval,
together with the appropriate documentation describing the requested additions
or alterations, shall be deemed approval by CJF.  In the event that any additions or
alterations are made to the Premises pursuant to this subsection, CenterPoint
shall upon the written request of CJF and upon the expiration of the Premises
Term, restore the Premises or cause the Temporary Subtenant to restore the
Premises to their condition prior to the additions or alterations, ordinary
wear and tear excepted.


 


(b)           Subject to the terms and conditions
set forth below, in consideration of the covenants and agreements herein
provided, CJF agrees to lease the Rollover Space to CenterPoint, effective as
of the Rollover Term Commencement Date, and CenterPoint agrees to lease the
Rollover


 


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Space from CJF, effective as
of the Rollover Term Commencement Date. 
In the event of the lease of any Rollover Space, (i) said lease
shall be for the Rollover Term and (ii) CenterPoint shall accept the
Rollover Space in “as is”, “where is” condition WITH ALL FAULTS.  CenterPoint acknowledges that CJF does not
make any representations or warranties regarding the Rollover Space to CenterPoint,
including, without limitation, representations or warranties of title,
condition of improvements, or suitability for use, and such Rollover Space
shall be expressly subject to all encumbrances and matters of record.  CenterPoint shall not be obligated to make
any additions or alterations to any portion of the Rollover Space, and
CenterPoint shall have no right to make any additions or alterations to any
portion of the Rollover Space, other than in connection with a Temporary
Sublease as set forth in Section 5.3 below.  With respect to a Temporary Sublease,
CenterPoint shall have no right to make any additions or alterations (or to
permit any additions or alterations) at or to the Rollover Space without CJF’s
prior written consent, which consent shall not be unreasonably withheld,
conditioned or delayed.  CJF’s failure to
respond within fifteen (15) days after receipt of a request for approval,
together with the appropriate documentation describing the requested additions
or alterations, shall be deemed approval by CJF.  In the event that any additions or
alterations are made to the Rollover Space pursuant to this subsection,
CenterPoint shall upon the written request of CJF and upon the expiration of
the Rollover Term, restore the Rollover Space or cause the Temporary Subtenant
to restore the Rollover Space to their condition prior to the additions or
alterations, ordinary wear and tear excepted.


 


(c)           CenterPoint shall not have the right
to use or occupy any portion of the Premises or the Rollover Space, other than
in connection with a Temporary Sublease as set forth in Section 5.3
below.


 


Section 2.2             Term.  The Premises
Term shall commence on the Commencement Date and shall end on the three hundred
and sixty fifth (365th) day thereafter.  The Rollover Term for each Rollover Space
shall commence on the Rollover Term Commencement Date and shall end on the
three hundred and sixty fifth (365th) day thereafter.


 


ARTICLE 3

Rent


 


Section 3.1             Rent.  CenterPoint’s
obligation to pay Premises Rent shall begin on the Commencement Date, and
CenterPoint’s obligation to pay Rollover Rent with respect to all applicable
Rollover Space shall begin on the Rollover Term Commencement Date.  Subject to the provisions of this Section 3.1,
CenterPoint’s covenant to pay Premises Rent and Rollover Rent is independent of
every other covenant of this Agreement. 
CenterPoint hereby covenants and agrees to pay to CJF, without offset or
deduction, Base Rent for the Premises during the Premises Term in the monthly
amounts set forth on Exhibit D
attached hereto and incorporated herein, prorated for any partial month as
provided in Section 3.5. 
With respect to each Rollover Space that has not been renewed,
CenterPoint hereby covenants and agrees to pay CJF, without offset or
deduction, Base Rent for said Rollover Space during the Rollover Term, prorated
for any partial month as provided in Section 3.5.  Notwithstanding the foregoing, after the
execution of an Approved Lease, commencing on the date that monthly rent
payments commence under such Approved Lease for all or any portion of the
Premises or Rollover Space, as the case may be, (i) the Premises Rent
thereafter payable under this Agreement for the portion of the Premises covered
by the Approved Lease, or the Rollover Rent thereafter payable under this
Agreement for the portion of the Rollover Space covered by the Approved Lease,
as the case may be, shall be reduced by 100% (and thereafter CJF shall be
entitled to all rent and other amounts paid or payable under the Approved
Lease, and the obligations of CenterPoint under this Agreement shall terminate
except for accrued and unpaid obligations with respect to the Premises or
Rollover Space, as the case may be,


 


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which are subject to the Approved Lease), (ii) Premises
Rent (and CenterPoint’s obligations to pay same) for the remaining portion of
the Premises shall remain unchanged; and (iii) Rollover Rent (and
CenterPoint’s obligations to pay same) for the remaining portion of the Rollover
Space shall remain unchanged.


 


Section 3.2             Additional Rent. 
CenterPoint shall pay to CJF, without offset or deduction, as Additional
Rent, (i) CenterPoint’s Proportion of Expenses and Taxes attributable to
the Premises during the Premises Term and (ii) CenterPoint’s Proportion of
Expenses and Taxes attributable to each Rollover Space that has not been
renewed during the Rollover Term. 
CenterPoint shall pay monthly estimated deposits for each applicable
space in the amounts set forth on Exhibit F
attached hereto and incorporated herein. Within thirty (30) days following the
issuance of the final real estate tax bills for the Properties for the calendar
year in which the Premises Term or Rollover Term, as applicable, ends, CJF
shall furnish to CenterPoint a statement of the actual amount of CenterPoint’s
Proportion of Expenses and Taxes for the applicable space.  Within ten (10) days thereafter,
CenterPoint shall pay to CJF or CJF shall pay to CenterPoint, as the case may
be, the difference between the amounts paid by CenterPoint for Taxes and
Expenses and the actual amount of CenterPoint’s Proportion of Expenses and
Taxes.  The amount of Taxes attributable
to a calendar year shall be the amount which accrues with respect to the
Premises or the Rollover Space during such year, even though such Taxes are
payable in the following year.  The
provisions of this Section 3.2 shall survive the expiration or
earlier termination of this Agreement (in whole or in part).


 


Section 3.3             Payment of Rent. 
Each payment of Rent shall be paid in advance on the first day of the
month during the term of this Agreement for which Rent is being paid.


 


Section 3.4             Place of Payment. 
All Rent payments under this Agreement shall be paid to CJF in
accordance with the Management Agreement, or at such other place or places as
CJF shall designate by written notice to CenterPoint.


 


Section 3.5             Proration.  Any Rent
which is payable during the Premises Term or Rollover Term, as applicable, for
less than a full calendar month shall be prorated on a per diem basis using the
applicable monthly amount due divided by the actual number of days in such
month multiplied by the number of days for which such Rent is payable.


 


Section 3.6             Other Costs.  Except
for the obligations of CenterPoint expressly set forth in this Agreement,
CenterPoint shall not have any liability under this Agreement for any costs or
expenses associated with the Properties, including, but not limited to, costs
and expenses associated with leasing, selling, renovating, owning or operating
the Properties.


 


ARTICLE 4

Remedies Upon Default


 


Section 4.1             CJF Default Remedies. 
If, at any time after the Commencement Date, CenterPoint shall (i) be
in default in the payment of Rent required to be paid by CenterPoint and said
default shall continue for in excess of ten (10) days after written notice
thereof is delivered by CJF to CenterPoint, or (ii) default in the
performance of any non-monetary covenant or agreement on the part of
CenterPoint contained in this Agreement and such default shall continue for
thirty (30) days after notice thereof in writing by CJF to CenterPoint, or if
such default or condition which gives rise thereto cannot, with due diligence,
be cured within said thirty (30) day period, if CenterPoint shall not, within
the period of thirty (30) days, commence the curing of the default, and
thereafter use commercially diligent efforts to complete such cure, then CJF,
in addition to all other remedies given to CJF hereunder, and in law or in
equity, may, by written notice to CenterPoint, terminate this Agreement with
respect to any one or more of the Premises or Rollover Space, or without


 


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terminating this Agreement, reenter the
applicable Premises or Rollover Space by summary proceedings or otherwise, and,
in any event, may dispossess CenterPoint and all parties claiming any right to
occupy such Premises or Rollover Space by or through CenterPoint.  In the event of such re-entry, CJF may relet
the applicable Premises or Rollover Space, as the case may be, without being
obligated so to do.  In the event of a
reletting, CJF shall apply the rent therefrom first to the payment of CJF’s
expenses, including reasonable attorneys’ fees incurred by reason of
CenterPoint’s default and the expense of reletting, and then to the amount of
Rent due from CenterPoint hereunder, CenterPoint remaining liable for any
deficiency.  Any and all deficiencies
shall be payable by CenterPoint monthly on the date herein provided for the
payment of Rent.


 


Section 4.2             CenterPoint Default Remedies.  In the event that, at anytime after the
Commencement Date, CJF shall (i) be in the default in performance of any
monetary covenant or agreement on the part of CJF contained in this Agreement
and said default shall continue for in excess of ten (10) days after
written notice thereof is delivered by CenterPoint to CJF, or (ii) default
in the performance of any non-monetary covenant or agreement on the part of CJF
contained in this Agreement and such default shall continue for thirty (30)
days after notice thereof in writing by CenterPoint to CJF, or if such default
or condition which gives rise thereto cannot, with due diligence, be cured
within said thirty (30) date period, if CJF shall not, within the period of
thirty (30) days, commence the curing of the default, and thereafter use
commercially diligent efforts to complete such cure, then CenterPoint shall
have available to it all remedies given to it under this Agreement, or
otherwise available in law or in equity.


 


ARTICLE 5

Approved Leases; Subleases


 


Section 5.1             Approval of Leases Proposed by CJF.  CJF shall have the right, in its sole and
absolute discretion, (a) to employ a broker to procure substitute tenants
for all or any portion of the Premises or Rollover Space, and (b) to enter
into substitute leases for all or any portion of the Premises or Rollover Space
(and CenterPoint shall cooperate with CJF and said broker in connection
therewith), other than “Above-Market Leases”
(as hereinafter defined).  Any lease proposed
by CJF to CenterPoint for all or any portion of the Premises or Rollover Space
with a replacement tenant or tenants that includes (i) above-market tenant
improvements, or (ii)  above-market leasing commissions or other usual and
customary leasing costs which are above-market costs (any lease containing one
or more of the foregoing conditions is hereinafter referred to as an “Above-Market Lease”) shall, in the first
instance, be subject to the approval of CenterPoint in its sole and absolute
discretion.  CenterPoint’s failure to
respond in writing within five (5) Business Days after receipt of a
request for approval, together with a copy of the proposed lease or letter of
intent to lease, shall be deemed approval by CenterPoint.  In the event CenterPoint withholds its
consent to any Above-Market Lease, CJF and CenterPoint agree to negotiate in
good faith to agree upon such tenant improvement costs, leasing commissions and
other usual and customary leasing costs to render such proposed lease and the terms
thereof acceptable to CenterPoint.  In
the event that (x) any proposed lease is not an Above-Market Lease, or
(y)  CenterPoint approves or is deemed to have approved an Above-Market
Lease, CenterPoint and CJF shall be responsible to pay all tenant improvement
costs, leasing commission costs and other usual and customary leasing costs
attributable to said lease, which costs shall be apportioned between the
parties on a prorata basis, based upon that portion of the term of the proposed
lease which shall elapse prior to the scheduled expiration of this Agreement
with respect to the Premises or Rollover Space in question and that portion of
the term of the proposed lease that will elapse after the scheduled expiration
of this Agreement with respect to the Premises or Rollover Space in
question.  In the event that CenterPoint
timely withholds its consent to any Above-Market Lease, CJF nonetheless shall
have the right to enter into the Above-Market Lease without CenterPoint’s
consent, and, in such case, the Above-Market Lease shall be deemed an Approved
Lease, but CenterPoint shall have no liability or obligation to pay its prorata
portion of that portion of the tenant improvements, leasing


 


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commissions, or other usual and customary
leasing costs attributable to the Above-Market Lease which exceed market rate
amounts (but CenterPoint shall be responsible for its prorata portion of such
market costs).


 


Section 5.2             Approval of Leases Proposed by CenterPoint.  CenterPoint shall have the right, in its sole
and absolute discretion, to employ a broker to procure substitute tenants for
all or any portion of the Premises or Rollover Space, and CJF will cooperate
with CenterPoint and said broker in connection therewith.  Any lease proposed by CenterPoint to CJF for
all or any portion of the Premises or Rollover Space with a replacement tenant
or tenants procured by CenterPoint or a broker shall (x) be subject to the
approval of CJF, which approval shall not be unreasonably withheld, conditioned
or delayed, and (y) meet all of the following parameters:  (i) such proposed lease has an initial
term (excluding any options to extend such term) of not less than three (3) years
and not more than ten (10) years; (ii) such proposed lease has no
free-rent period extending beyond the term of the Master Lease with respect to
the applicable Premises or Rollover Space; (iii) such proposed lease has
no above-market obligation of CJF to provide or fund any tenant improvements; (iv) such
proposed lease provides for base rent payable at a rate per month that is never
less than 95% of the base rent per month required to paid under the Master
Lease with respect to the applicable Premises or the Rollover Space; (v) leasing
commissions and other usual and customary leasing costs for such proposed lease
do not exceed market rates; (vi) such proposed lease does not require the
landlord thereunder, and will not result in an obligation for the landlord
thereunder to alter or improve or pay for the altering or improving of the
building (other than tenant improvements as limited by clause (iii) above
and responsibility for the repair and replacement of the roof and structure
including, but not limited to, exterior walls, other than interior surfaces and
wiring and plumbing inside such exterior walls, of the premises, but excluding
the obligation for internal wall changes); (vii) such lease shall be on
the form customarily used by CenterPoint with such revisions which CenterPoint
approves using its judgment as a commercially 
prudent landlord, (viii) the creditworthiness of the tenant and
intended use of the applicable Premises or Rollover Space by the proposed
tenant shall be consistent with CenterPoint’s historical and customary
requirements as a commercially prudent landlord, and (ix) the income to be
generated from the proposed lease shall constitute qualifying income under Section 856(c)(3) of
the Code.  Additionally, the parties
expressly agree that it shall not be deemed unreasonable for CJF to withhold,
condition or delay its consent to any such proposed lease that includes
above-market tenant improvements, above-market leasing commissions or any other
above-market leasing costs which CJF would be obligated to pay or incur;
provided, however, in such event, CJF and CenterPoint agree to negotiate in
good faith to agree upon such tenant improvement costs, leasing commission and
other leasing costs to render such proposed lease and the terms thereof
acceptable to CJF.  Any lease proposed by
CenterPoint, however, which satisfies all of the criteria set forth in this Section 5.2,
and would otherwise be reasonably acceptable to CJF but for the fact  that such lease includes above-market tenant
improvements, above-market leasing commissions, or any other above-market
leasing cost, shall, nonetheless, be approved and executed by CJF at the
direction of CenterPoint, in the event CenterPoint pays all such above-market
tenant improvements, above-market leasing commissions or any other above-market
leasing costs.  CJF’s failure to respond
in writing within five (5) Business Days after receipt of a request for
approval, together with a copy of such proposed lease or letter of intent to
lease and credit information in commercially reasonable detail on the proposed
replacement tenant or tenants, shall be deemed approval by CJF.  CJF’s and CenterPoint’s responsibility to pay
all tenant improvement costs, leasing commissions and other usual and customary
leasing costs with respect to such proposed lease, shall be apportioned between
the parties on a prorata basis, based upon that portion of the term of the
proposed lease which shall have elapsed 
prior to the scheduled expiration of this Agreement with respect to the
Premises or Rollover Space in question and that portion of the term of the
proposed lease that will elapse after the scheduled expiration of this
Agreement with respect to the Premises or Rollover Space in question.


 


Section 5.3             Subleases. 
CenterPoint may, at its sole cost and expense, enter into a Temporary
Sublease at any time without the consent of CJF, provided that (i) the
term of the Temporary Sublease does not extend beyond the Term,  (ii) the Temporary Sublease includes
language that provides that (a) the Temporary


 


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Subtenant shall have no right or claim
against CJF for any matter or thing, (b) the Temporary Subtenant may not
use the applicable Premises or Rollover Space for any purpose other than
office, warehouse, distribution, assembly and light manufacturing, as and to
the extent permitted under applicable zoning ordinances, and (c) the
Temporary Subtenant shall procure prior to and shall maintain throughout the
term of the Temporary Sublease policies of hazard, liability, workmen’s
compensation and other customary insurance, with commercially reasonable
deductibles and limits, naming CenterPoint and CJF as additional insureds, (iii) a
copy of the Temporary Sublease is delivered to CJF, within five (5) days
after its execution (notwithstanding the foregoing, CenterPoint shall use
reasonable efforts to provide CJF with a copy of the proposed sublease at least
five (5) days prior to its execution), and (iv) the Temporary
Sublease may be terminated by CenterPoint (on its own initiative or at the
direction of CJF in the event CJF notifies CenterPoint in writing that CJF has
elected to enter into an Approved Lease for space that is subject to a
Temporary Sublease) upon sixty (60) days advance written notice. No subletting
shall relieve CenterPoint of its obligations hereunder.  CenterPoint shall be entitled to the rent
paid under the Temporary Sublease, and CenterPoint shall be solely liable for
all subleasing brokerage commissions and fees in connection with such Temporary
Sublease.  In the event that any Temporary
Subtenant fails or refuses to vacate the applicable Premises or Rollover Space
when required by the Temporary Sublease, CenterPoint shall, at CJF’s election,
commence and diligently pursue eviction proceedings to regain possession of the
applicable Premises or Rollover Space, at no cost to CJF.  At any time, CJF, by written notice to
CenterPoint, may elect that the Temporary Sublease shall be treated as an
Approved Lease, in which event the provisions of Section 3.1 above
shall apply.  CenterPoint shall, and does
hereby agree to indemnify, defend and hold harmless, CJF, its partners,
officers, directors, employees, agents, attorneys and their respective
successors and assigns, harmless from and against any and all claims, demands,
suits, obligations, payments, damages, losses, penalties, liabilities, costs
and expenses (including, but not limited to, reasonable attorneys’ fees)
resulting or arising from the Temporary Subtenant’s use and occupancy of the
applicable Premises or Rollover Space. 
CenterPoint’s obligations under this Section 5.3 shall
expressly survive the expiration or earlier termination of this Agreement (in
whole or in part).


 


ARTICLE 6

Subordination to Mortgagee; Estoppel


 


Section 6.1             Subordination to Mortgagee.  The rights of CenterPoint hereunder as to a
Property are hereby automatically subordinated to the rights of any lender now
or hereafter holding a mortgage or deed of trust on any Property.  Without limitation on the generality of the
foregoing, CJF reserves the right to demand from CenterPoint, and CenterPoint
agrees to promptly execute and deliver to CJF, a written subordination of
CenterPoint’s lien arising by virtue of the within leasehold estate, thereby
subordinating CenterPoint’s lien in favor of a mortgage loan, mortgage lien, or
any refinancing or replacing of a mortgage loan that may become necessary or
desirable to CJF from time to time.


 


Section 6.2             Estoppel Certificate. 
CJF and CenterPoint shall from time to time, upon not less than ten (10) days’
prior written request of the other party, deliver to such requesting party a
statement in writing certifying:  (i) that
this Agreement is unmodified and in full force and effect or, if there have
been modifications, that this Agreement, as modified, is in full force and
effect; (ii) the amount of Rent then payable hereunder and the date to
which Rent has been paid; (iii) that the requesting party is not in
default under this Agreement, or, if in default, a detailed description of such
default(s); (iv) that CenterPoint is or is not in possession of the
Premises or the Rollover Space, as the case may be; and (v) such other
information as the requesting party may reasonably request.


 


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ARTICLE 7

Notices


 


Section 7.1             Notices.  Any and all
notices, requests, demands or other communications hereunder shall be in
writing and shall be deemed properly served (i) on the date sent if
transmitted by hand delivery with receipt therefor, (ii) on the date sent
if transmitted by facsimile (with confirmation by hard copy to follow by
overnight delivery service), (iii) on the date sent if scanned to a .pdf
file and transmitted by e-mail (with confirmation by hard copy to follow by
overnight delivery service), (iv) on the day after the notice is deposited
with a nationally recognized overnight courier, or (v) upon receipt after
being sent by registered or certified mail, return receipt requested, first
class postage prepaid, addressed as follows (or to such new address as the
addressee of such a communication may have notified the sender thereof):


 


 


	
  CJF:

  	
   

  	
  Mirvac Group

  Level 5, 40 Miller Street

  North Sydney, NSW 2060

  Australia

  Attn: Mr. Ben Hindmarsh

  Fax No.: 61 2 9004 8462

  E-Mail:
  benhindmarsh@mirvac.com.au

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Wildman Harrold
  Allen & Dixon LLP

  225 W. Wacker Drive, Suite 3000

  Chicago, Illinois 60606

  Attn: Kathleen M. Gilligan, Esq.

  Fax No.: (312) 201-2555

  E-Mail: gilligan@wildmanharrold.com

  
	
   

  	
   

  	
   

  
	
  CenterPoint:

  	
   

  	
  CenterPoint Properties
  Trust

  1808 Swift Drive

  Oak Brook, Illinois 60523

  Attn: Mr. James N. Clewlow and

  Mr. Michael M. Mullen

  Fax No.: (630) 586-8010

  E-Mail:    jclewlow@centerpoint-prop.com
  and

  mmullen@centerpoint-prop.com

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Weinberg Richmond LLP

  333 West Wacker Drive, Suite 1800

  Chicago, Illinois 60606

  Attn: Mark S. Richmond, Esq.

  Fax No.: (312) 807-3903

  E-Mail: mrichmond@wr-llp.com

  



 


9





















 


ARTICLE 8

Miscellaneous


 


Section 8.1             Miscellaneous.


 


(a)           Entire Agreement.  This document constitutes the sole agreement
between the parties with respect to the subject matter hereof and supersedes
any and all written agreements or understandings between them pertaining to the
transactions contemplated herein.  No
representations, warranties or inducements, express or implied, have been made
by any party to any other party except as set forth herein.


 


(b)           Captions.  The captions and headings in this Agreement
are for convenience only, are not a part of this Agreement and do not in any
way limit or amplify the provisions hereof.


 


(c)           Modifications.  All modifications to this Agreement must be
in writing and signed by CenterPoint and CJF.


 


(d)           Successors and Assigns.  No party shall assign its rights or
obligations hereunder without the written consent of the other party, which
consent shall not be unreasonably withheld, conditioned or delayed, provided,
however, that CJF shall have the absolute right, without CenterPoint’s consent,
to assign, in part, CJF’s rights and obligations hereunder with respect to any
Premises or Rollover Space in connection with a sale of a Property or
Properties in which any such Premises or Rollover Space may be located, and
further provided, the parties shall cooperate with each other to satisfy the
requirements of any lender or mortgagee encumbering any of the Properties,
including, without limitation, assigning this Agreement to any parent of Owner
or any wholly-owned subsidiary thereof and entering into new and/or additional
master leases with said entity, it being understood that said assignment shall
be conditioned upon (i) the assignee assuming, in writing, CJF’s
obligations with respect to the Premises or Rollover Space in question, which
accrue or arise from and after the date of such assignment, and (ii) CJF’s
delivery of the written assignment and assumption to CenterPoint.  Subject to this subparagraph, this Agreement
shall inure to the benefit of and be binding upon the parties’ respective
successors and assigns.


 


(e)           Governing Law.  This Agreement shall be interpreted and
enforced in accordance with the laws of the state in which the applicable
Property is located.


 


(f)            No Waiver.  No waiver by a party of any provision of this
Agreement shall be deemed to be a waiver of any other provision hereof or a
waiver of any subsequent breach by a party of the same or any other provision.


 


(g)           Number and Gender.  All personal pronouns used in this Agreement
shall include the other genders.  The
singular shall include the plural, and the plural the singular, whenever and as
often as may be appropriate.


 


(h)           Time.  Time is of the essence of this Agreement and
of every provision hereof.


 


(i)            Severability.  Any provision in this Agreement that is
unenforceable or invalid in any jurisdiction shall, as to such jurisdiction, be
ineffective, but only to the extent of such unenforceability or invalidity of
and without affecting the remaining provisions thereof or affecting the
operation, enforceability or validity of such provision in any other
jurisdiction.


 


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(j)            Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be a fully binding and enforceable agreement
against the party signing such counterpart, but all such counterparts together
shall constitute but one agreement.


 


(k)           Facsimile Signatures.  The
parties hereto agree that the use of facsimile signatures for the execution of
this Agreement shall be legal and binding and shall have the same force and
effect as if originally signed.


 


(l)            Currency.  All payments and amounts
referenced or described in this Agreement shall be deemed to require payments
in and refer to amounts in the currency of the United States of America.


 


(m)          No Recording. 
Neither this Agreement nor any memorandum or short form hereof shall be
recorded or filed in any public land or other public records of any
jurisdiction, by either party and any attempt to do so may be treated by the
other party as a breach of this Agreement.


 


(n)           Prevailing Party. 
Should either party employ an attorney to enforce any of the provisions
hereof, the non-prevailing partying any final judgment agrees to pay the other
party’s reasonable expenses, including reasonable attorneys’ fees and expenses
in or out of litigation and, if in litigation, trial, appellate, bankruptcy or
other proceedings, expended or incurred in connection therewith, as determined
by a court of competent jurisdiction. 
The provisions of this Section 8.1(n) shall survive the expiration
or any earlier termination of this Agreement, in whole or in part.


 


[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK;

SIGNATURE PAGE FOLLOWS]


 


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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of
the date and year first above written.


 


	
   

  	
  CJF:

  
	
   

  	
   

  	
   

  
	
   

  	
  CENTERPOINT
  JAMES FIELDING, LLC, a

  Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CENTERPOINT:

  
	
   

  	
   

  	
   

  
	
   

  	
  CENTERPOINT
  PROPERTIES TRUST, a

  Maryland real estate investment trust

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
							



 


12





















 


LIST OF EXHIBITS


 


EXHIBIT A – Description of Properties


EXHIBIT B
– CenterPoint’s Proportion of Properties


EXHIBIT C-1
- C -  – Premises


EXHIBIT D
– Base Rent


EXHIBIT E-1
- E  – Rollover Space


EXHIBIT F
– Monthly Additional
Rent Deposits


 


13





















 


EXHIBIT A



ADDRESSES OF PROPERTIES



LIST PROPERTIES
ACQUIRED IN CONNECTION

WITH APPLICABLE SALE AGREEMENT


 


A-1





















 


EXHIBIT B


 


CENTERPOINT’S PROPORTION OF PROPERTIES



[THIS INCLUDES PREMISES AND ROLLOVER SPACE]


 


LIST
PERCENTAGES FOR PREMISES AND

ROLLOVER SPACE ACQUIRED IN CONNECTION

WITH APPLICABLE SALE AGREEMENT


 


B-1





















 


EXHIBIT C-1 THROUGH C-      



PREMISES


 


DEPICT
PREMISES THAT ARE VACANT AT THE CLOSING

IN CONNECTION WITH APPLICABLE SALE AGREEMENT


 


C-1





















 


EXHIBIT D



BASE RENT


 


LIST
BASE RENT FOR PREMISES AND

ROLLOVER SPACE ACQUIRED IN CONNECTION


WITH
APPLICABLE SALE AGREEMENT


 


D-1





















 


EXHIBIT E-1 THROUGH E-     



ROLLOVER SPACE


 


DEPICT
ROLLOVER SPACE AS THAT SPACE THAT MAY BECOME VACANT

AS A RESULT OF THE EXPIRATION OF THE TERM OF A LEASE (AND SUCH

LEASE IS NOT RENEWED) DURING THE ONE YEAR PERIOD AFTER CLOSING IN

CONNECTION WITH APPLICABLE SALE AGREEMENT


 


E-1





















 


EXHIBIT F



MONTHLY ADDITIONAL RENT DEPOSITS



LIST MONTHLY ADDITIONAL RENT DEPOSITS

FOR PREMISES AND ROLLOVER SPACE ACQUIRED

IN CONNECTION WITH APPLICABLE SALE AGREEMENT


 


F-1





















 


MANAGEMENT AGREEMENT


 


THIS MANAGEMENT AGREEMENT (“Agreement”)
is dated as of the         day of                  ,
2005, by and between CENTERPOINT JAMES
FIELDING, LLC, a Delaware limited liability company (“Owner”), and CENTERPOINT PROPERTIES TRUST, a Maryland real estate
investment trust (“Manager”).


 


R E C I T A L S:


 


A.            Owner currently owns those certain
parcels of real estate described on Exhibit A
attached hereto and by this reference incorporated herein (each property listed
on Exhibit A is
hereinafter referred to as a “Property”,
and all of said properties are hereinafter collectively referred to as the “Properties”).


 


B.            Owner wishes to retain Manager to
perform certain asset and property management services in connection with the
management of the Properties, and Manager is willing to perform such services,
all pursuant to the provisions of this Agreement.


 


NOW, THEREFORE, in consideration of the foregoing Recitals, the provisions of which
are hereby incorporated herein, and the mutual promises set forth herein, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:


 


1.             Appointment: 
Owner hereby engages, employs and appoints Manager its sole and
exclusive agent to manage the Properties for the term and in accordance with
the conditions hereinafter set forth.  In
the event the Owner acquires other parcels of real estate in the Chicago
Metropolitan Area, those properties shall be deemed Properties upon written
notice from Owner to Manager, subject to the approval of such properties by
Manager, which approval shall not be unreasonably withheld.


 


2.             Acceptance: 
Manager hereby accepts the appointment contained above.


 


3.                                      Term/Termination:


 


(a)           Term:  The
term of this Agreement shall commence on the date hereof, and, subject to the
provisions of this Section 3, shall terminate when Manager is no
longer a member of Owner. 
Notwithstanding the foregoing, upon the expiration or earlier
termination of that certain Limited Liability Company Agreement by and between
Owner, JF US Industrial Property Trust (“JF
US”) and Manager (the “LLC
Agreement”), Owner may extend the term of this Agreement for one (1) two
(2) year period upon the same terms and conditions provided herein, upon
not less than thirty (30) days’ prior written notice to Manager.


 


(b)           Early
Termination.  Notwithstanding the provisions of Section 3(a) above,
this Agreement may be terminated, and the obligations of the parties hereunder
shall thereupon cease, upon the occurrence of any of the events set forth
below; provided, however, that the provisions of Section 8 below
shall survive, notwithstanding any termination of this Agreement, until the
obligations thereunder are satisfied in full. 
If this Agreement is terminated pursuant to the provisions of this Section 3(b),
Manager shall be paid the Management Fee (as defined in Section 7(a) below)
earned through the date of termination. 
An early termination may be effectuated:


 





















 


(i)            Default.  By Manager or Owner, as the case may be,
should the other party materially default in the performance or observance of
any of its express obligations hereunder and should such material default
continue beyond the applicable Cure Period (as hereinafter described) after
written notice from the non-defaulting party designating such material default
with specificity.  The Cure Period granted
to the defaulting party shall be ten (10) days in the event a monetary
default is involved and thirty (30) days in the event a non-monetary default is
involved.  The Cure Period for a
non-monetary default shall be extended for a reasonable time (but in no event
shall such extension be more than sixty (60) days) in the event that the
defaulting party is acting diligently in pursuing a cure;


 


(ii)           Fraud.  By Manager or Owner, as the case may be,
should the other party commit fraud, willful misrepresentation, gross
negligence or breach of trust acting under or in connection with the provisions
hereunder, effective immediately, upon written notice from the party who did
not commit any of the aforesaid acts to the other party.


 


(iii)          Assignment.  By Manager or Owner, as the case may be,
should the other assign its rights or obligations under this Agreement contrary
to the provisions of this Agreement, and fail to correct such unauthorized
assignment within five (5) days after receipt of written notice demanding
same from the party who did not commit the unauthorized assignment.


 


(iv)          Sale.  By Manager or Owner, as the case may be, in
the event of a bona fide sale of all of the Properties to a non-Affiliate in an
arm’s length transaction (but not in the case of the creation of a joint
venture between a non-Affiliate of Owner and Owner or an Affiliate of Owner or
one of its partners), provided that not less than sixty (60) days prior written
notice of such termination is given to the other party.  As used in this Agreement, an “Affiliate” of
either party shall be an entity that controls, is controlled by or is under
common control with such party;


 


(v)           Bankruptcy.  By Manager or Owner, as the case may be,
if:  (1) the other party, or any
general partner of the other party, if one exists, files a petition to be
adjudicated bankrupt or for reorganization or arrangement under any state or
federal bankruptcy laws; (2) a petition is filed against the other party
to this Agreement or against any general partner of the other party, if one
exists to have it adjudicated a bankrupt and such petition is not dismissed
within sixty (60) days after filing; (3) an assignment for the benefit of
creditors is made by the other party to this Agreement or its general partner,
if one exists or; (4) a receiver or trustee of the property of the other
party to this Agreement or such general partner, if one exists is appointed
pursuant to any judicial proceeding and such proceeding is not dismissed, and
the receiver or trustee is not discharged, within sixty (60) days after such
appointment.  In the event that any of
the events specified in this Subsection (v) occur, this
Agreement may be terminated after giving ten (10) days’ written notice to
such party; or


 


(vi)          Change of Control of Manager.  By Owner, upon at least thirty (30) days’
prior written notice to Manager, in the event Manager suffers a change in
control.  As used herein, Manager shall
be deemed to have suffered a change in control if any person or entity or group
of persons or entities acting in concert became or becomes the beneficial owner
of more than fifty percent (50%) of the equity securities of Manager.


 


(vii)         Change of Control of JF US.  By Manager, upon at least (30) days’ prior
written notice to Owner, in the event of a change of control of JF US.  A change of control of


 


2





















 


JF US shall mean a direct or
indirect change of control, which shall be deemed to occur if any “Person”
(either alone or together with its “Affiliates”) becomes the beneficial owner
of or controls greater than twenty percent (20%) of the voting securities of JF
US, or of “Mirvac”, or any circumstances by which “James Fielding” is removed
as the responsible entity or manager of JF US, or upon the first public
announcement of a proposed transaction that, if consummated, would result in
James Fielding ceasing to be or being removed as the responsible entity or
manager of JS US.  For the purposes of
this subsection, the terms “Person”, “Affiliates”, “Mirvac” and “James Fielding”
shall have the meanings ascribed to them in the LLC Agreement.


 


(c)           Effect
of Termination.


 


(i)            Upon termination of this Agreement,
Manager shall forthwith:


 


(A)          Surrender of Properties and Monies.  Surrender and deliver up to Owner any and all
Properties’ income and monies of Owner on hand or in any bank account,
including all security deposits of tenants, if not previously delivered to
Owner, less any unpaid Management Fee then accrued or payable to Manager, and
less any other reimbursements due to Manager as provided in this Agreement;


 


(B)           Return of Monies Received After
Termination.  Deliver to Owner, as
received, any monies due under this Agreement but received after such
termination;


 


(C)           Return of Owner’s Materials.  Deliver to Owner all materials, supplies,
keys, contracts and documents, plans, specifications, promotional materials and
such other accounting, paper and records kept by Manager on Owner’s behalf
pursuant to this Agreement;


 


(D)          Assignment of Property Contracts.  Assign to Owner all Project Contracts as
defined in Section 5(g) below which are not otherwise
terminated pursuant to Owner’s instructions under Section 5(c)(ii)(A) below;


 


(E)           Final Accounting.  Deliver to Owner a final accounting of the
Properties up to and including the date of termination, along with such other
reports as have been customarily delivered to Owner from time to time pursuant
to the terms of this Agreement; and


 


(F)           Cease Performance.  Cease the performance of all services
required to be performed by Manager under this Agreement.  Notwithstanding the provisions of this Section 3(c),
any Management Fee accrued but not paid to Manager on or before the expiration
or termination of this Agreement shall be payable by Owner on the date of such
expiration or termination.  If any such
sum is not paid on such date, Owner’s obligation to make such payment to
Manager shall survive such expiration or termination.  In addition, the provisions of Section 8
below shall survive such expiration or termination.


 


(ii)           Upon termination of this Agreement:


 


(A)          Termination/Assumption.  At Owner’s election, either (i) Manager
shall terminate any terminable Project Contracts; or (ii) Owner shall
assume any


 


3





















 


Project Contracts and
indemnify Manager against any liability by reason of anything done or required
to be done under any Project Contracts after the date of termination, in
addition to any indemnification obligations of Owner hereunder that survive
termination; and


 


(B)           Indemnification.  Subject to Section 8, Owner shall
pay for and indemnify Manager against the costs of all services, material and
supplies, if any, which may have been ordered by Manager as a result of its
obligations arising from this Agreement but which may not have been charged to
and paid by Manager at the time of termination;


 


(C)           Replacement Manager.  Owner may retain a person or entity to
provide for the management of one or more of the Properties; provided, however,
so long as Manager is a member of Owner, and owns at least a five percent (5%)
direct ownership in Owner, no manager shall be appointed without the consent of
Manager, which consent shall not be unreasonably withheld, conditioned or
delayed.


 


(iii)          Any termination of this Agreement shall
terminate all rights and obligations under this Agreement except rights and
obligations with respect to amounts owing or to remedies if either Manager or
Owner shall be entitled to an accounting as to the fees or other monies payable
to Manager or by Manager to Owner. 
Notwithstanding the foregoing, the provisions of Sections 3(c) and
8 shall survive any expiration or earlier termination of this Agreement and
shall remain in full force and effect thereafter.


 


4.             Partial
Termination:


 


(a)           This Agreement shall terminate as to
any Property that is sold to a non-Affiliate in an arm’s length transaction
(but not in the case of the creation of a joint venture between a non-Affiliate
of Owner and Owner or an Affiliate of Owner or one of its partners), provided
that not less than forty (40) days prior written notice of such termination is
given to the other party.


 


(b)           This Agreement shall terminate as to
any Property that shall be taken in its entirety as a result of, or transfer in
avoidance of the exercise of, the power of eminent domain or as a result of any
casualty in the event that all improvements on the Property are not restored to
substantially their original condition within one hundred eighty (180) days
after the date of the casualty, provided that in either case, not less than
forty (40) days prior written notice of such termination is given to the other
party and such notice is given within thirty (30) days of the taking, transfer
or casualty, as the case may be.


 


(c)           Manager shall have the right to terminate
this Agreement as to any Property if it is determined by notice or order of any
governmental authority having jurisdiction over the Property that the Property
fails to comply with any rules, orders, written determinations, ordinances or
laws of any federal, state, county or municipal authority, and if, after
request therefor by Manager, Owner (i) fails to provide Manager with
adequate funds as and when needed within (10) days of said request, or (ii) otherwise
fails to provide Manager with adequate cooperation to repair, remedy or satisfy
such violation or non-compliance within ten (10) days of said request.


 


(d)           Upon the removal of a Property from
this Agreement in accordance with Sections 4(a) - 4(c) above,
Manager shall comply with the provisions of Section 3(c) above,
with respect to said Property, and any Management Fee with respect to said
Property accrued but not paid to Manager on


 


4





















 


or before the removal of
said Property from this Agreement shall be payable by Owner on the date of such
removal.  If any such sum is not paid on
such date, Owner’s obligation to make such payment to Manager shall survive the
removal of said Property from this Agreement.


 


5.             Management
Functions:  Manager shall, in a diligent, careful, and
vigilant manner, manage, operate, maintain and service each of the Properties
in the same manner as similar types of properties, using commercially
reasonable efforts to maximize revenues and minimize operating costs.  The services of Manager hereunder are to be
of a scope and quality not less than those generally performed by professional
managers of other similar type properties in the same metropolitan area and in
any case, at least comparable to the scope and quality of the services
performed by Manager in properties owned by Manager.  Subject to the provisions of Section 5(f) below,
Manager will perform all services normally provided to tenants of similar types
of properties in the metropolitan area in which each Property is located.  Manager shall act as would an owner with
respect to the proper protection of and accounting for Owner’s assets.  With respect to the management of the
Properties, throughout the term of this Agreement, Manager agrees to perform,
at the expense of Owner, and Owner hereby authorizes Manager to perform, the
following functions and all acts necessary to effectuate same:


 


(a)           To make all day-to-day decisions in
connection with the operations of the Properties.


 


(b)           To use reasonable diligence in the
management of the Properties.


 


(c)           To use commercially reasonable
efforts to collect, when due, all rents, security deposits, charges, proceeds
and other amounts received on Owner’s account in connection with the management
of the Properties.  In connection therewith,
Manager shall establish a separate interest-bearing bank trust account or
accounts (individually an “Operating Account”
and collectively the “Operating Accounts”) for Owner with respect to the Properties,
to be carried in Manager’s name for the benefit of Owner.  All funds held by Manager for the benefit of
Owner hereunder shall be kept separate and apart from all other funds of
Manager.  Owner authorizes Manager to
request, demand, collect, receive, and receipt for all such rent and other
charges.  In addition, (i) Owner
will be an additional signatory on each Operating Account, (ii) each
Operating Account will be held in such manner that Owner is reasonably
satisfied that the Operating Account will be created as an asset of Owner, and
not Manager, for all purposes (including bankruptcy claims), and (iii) if
Owner requests, there shall be more than one Operating Account (such that rents
will be deposited in a separate account as to various groups of Properties).


 


(d)           To use commercially reasonable efforts
to secure full tenant compliance with the terms of tenants’ leases.  Manager shall emphasize voluntary compliance
by tenants.  Manager may, with the prior
written consent of Owner in each instance, which consent may be withheld by
Owner in its sole discretion, or shall at Owner’s direction, consult with legal
counsel and bring actions for forcible entry and detainer, rent or other
relief, and execute notices to vacate and judicial pleadings incident to such
actions; provided, however, Manager shall not terminate any lease, remove any
tenant’s property, lock-out a tenant, or institute a suit for rent or for use
and occupancy, or institute any proceedings for recovery of possession, without
the prior written consent of Owner, which consent may be withheld by Owner in
its sole discretion.  Reasonable
attorneys’ fees and other necessary costs and expenses incurred in connection
with such legal consultations and proceedings shall be paid as Properties’
expenses out of the Operating Account. 
Manager shall keep Owner informed of all actions taken pursuant to this Subsection 5(d).


 


5





















 


(e)           To disburse, when payable and in
accordance with the Annual Budget (as hereinafter defined), or otherwise as a
result of an emergency situation, from the funds collected and deposited by
Manager in the Operating Account, the following disbursements:


 


(i)            if requested by Owner, the payment
or payments required to be made monthly by Owner to any mortgagee or other lien
holder or in connection with the financing of the Properties, including the
amounts due under any mortgage or other lien for principal amortization and/or
interest, and any mortgage or lien insurance premiums, taxes and assessments
and fire and other hazard insurance premiums; and


 


(ii)           all amounts otherwise due and payable
by Owner as expenses of the Properties authorized to be incurred by Manager
under the terms of this Agreement, including compensation payable to Manager
for its services hereunder, property taxes and assessments (to the extent not
paid by tenants at the Properties pursuant to their leases), and insurance
premiums as directed by Owner; provided, however, that if the balance in the
Operating Account is at any time insufficient to pay disbursements due and
payable hereunder, Manager shall so inform Owner, and Owner shall then
immediately remit to Manager sufficient funds to cover the deficiency.  In no event shall Manager be required to use
its own funds to pay any disbursements.


 


(f)            To purchase insurance for the
Properties similar to the insurance in coverages and amounts purchased by
Manager for properties owned by Manager in the same geographic or metropolitan
area.  To pay insurance premiums out of
the Operating Account, and to treat the premiums as operating expenses.  All liability insurance coverage purchased by
Owner shall name Manager as an insured. 
In connection therewith, the following services shall be provided:


 


(i)            Name Owner as a named insured with
respect to applicable locations on all such property, casualty, general
liability, excess liability and environmental;


 


(ii)           Researching and recommending
insurance brokers, insurance carriers and market-appropriate coverages, in the
event that Manager determines that it would be in the best interest of Owner to
switch brokers or carriers;


 


(iii)          Procuring and maintaining all
insurance policies with commercially reasonable deductibles for the Properties
(including without limitation, environmental insurance policies), using
commercially reasonable efforts to maximize coverage and minimize costs with
reputable insurance brokers and insurance carriers of an agreed upon Best’s (or
comparable rating).  In furtherance
thereof, Manager shall solicit quotes from various carriers for property and
liability coverage prior to the renewal of the existing policies.


 


(iv)          Liaising with insurance carriers to
discuss and facilitate resolution of any claims (but with no authority to
settle such claims);


 


(v)           Reporting to Owner on a periodic
basis all claims made under such policies;


 


(vi)          Providing analysis and comparison of
insurance costs and expenses on a periodic basis; and


 


(vii)         Review all insurance certificates
submitted by tenants at properties to verify coverage per their respective
leases.


 


6





















 


(g)           Subject to the provisions of Section 5(i) below
and in accordance with the Annual Budget, to execute, as agent for Owner, and
enter into contract documents, consents and agreements on behalf of Owner in
the ordinary course of the management of the Properties, including, but not
limited to, service contracts, agreements to repair and maintain the
Properties, acquisition of utility or other services or the furnishing of
services to tenants in the Property which do not in a single instance, whether
payable in installments or in a lump sum, involve in any given calendar year an
expenditure or obligation on the part of Owner in excess of the Contract Limit
(as hereinafter defined) (collectively, the “Project
Contracts”); provided, however, that Manager shall not execute or
otherwise enter into or bind Owner to any Project Contract in excess of the
Contract Limit without (i) obtaining three competitive written bids (or
two competitive bids if three are not obtainable) from either arm’s length,
bona fide third party contractors or Manager’s Affiliates so long as their
costs and fees are competitive within the market, (ii) furnishing copies
of the same to Owner, and (iii) receiving the prior written consent of
Owner, which consent may be withheld by Owner in its sole discretion.  All Project Contracts shall be prepared by
Manager for Owner’s execution.  Each
Project Contract shall (i) be non-recourse to Owner, (ii) be in
accordance with the Annual Budget, and (iii) contain a provision
permitting Owner to terminate such contract without penalty to Owner after
sixty (60) days written notice from Owner. 
Manager shall not hold itself out as having the authority to approve any
contract or agreement without the prior approval of Owner except as provided
above.  Any Project Contract submitted by
Manager to Owner for approval which is not disapproved by Owner by written
notice to Manager within seven (7) business days shall be deemed approved
by Owner.


 


(h)           To discharge the following responsibilities
with respect to records and reports:


 


(i)            establish and maintain a
comprehensive system of records, books and accounts of the income and
expenditures related to the Properties similar to the system currently used by
Manager for other properties owned by Manager, which system shall belong to
Owner.  All records, books and accounts,
vouchers, files, and all other material pertaining to the Properties and this
Agreement shall be subject to examination, copying and extraction at reasonable
hours by Owner or any authorized representative of Owner. Manager agrees to
keep all such items at Manager’s office at 1808 Swift Drive, Oak Brook,
Illinois 60523, and to keep all such items 
safe, available and distinct from any records not having to do with the
Property;


 


(ii)           furnish upon the request of the
Owner, within seven (7) calendar days after the end of each month, monthly
reports, in form reasonably satisfactory to Owner, showing, among other
matters, the current rent roll, occupancy reports, operating statements showing
the revenue collected and costs and expenses incurred or paid during such month
and year to date as compared to the projections provided in the Annual Budget,
together with supporting bills, invoices, balance sheets and such other statements,
reports, documents and data as Owner shall reasonably from time to time request
with respect to the financial, physical or operational conditions of the
Properties;


 


(iii)          furnish upon the request of the Owner,
within thirty (30) days after the end of each calendar quarter, with respect to
the Properties, a statement of receipts and disbursements for the previous
quarter, and for the year to date through the end of such quarter, as of the
end of the previous calendar quarter, and such other reports customarily
generated by Manager for properties owned by Manager; and


 


7





















 


(iv)          prepare and submit to Owner annual
budgets and asset plans (“Annual Budget(s)”)
for the Properties for Owner’s review and approval, which approval Owner may
withhold in its sole discretion.  In the
event Owner does not provide written notice to Manager within seven (7) business
days after such Annual Budgets are served upon Owner that it does not approve
any or all of such budgets, the Annual Budgets as submitted shall be deemed
approved by Owner.  All Annual Budgets
shall be in form currently used by Manager for other properties owned by
Manager and shall be submitted to Owner at least sixty (60) days prior to the
first day of each fiscal year during the term of this Agreement.  The Annual Budgets shall include, among other
matters: an operating budget which shall set forth, among other matters,
anticipated income, expenditures and reserves for such year, a capital budget
which shall set forth, among other matters, anticipated and proposed capital
expenditures for such year and the source of funds in respect thereto
(including the projected time and amount for any required advances by Owner),
and a comprehensive leasing program which shall include, among other matters, a
statement of the space Manager expects to be leased during such year, the
minimum rent it expects to obtain for such space and the other financial
provisions of the leases (including, but not limited to, free-rent periods,
percentage rent, tenant improvement costs, the contributions towards Taxes and
Expenses and the escalation provisions). 
However, the Annual Budgets shall not contain expenses or allocations
for home office expenses or general corporate or administrative charges or any
other costs or expenses for which Manager is not entitled to reimbursement
hereunder.


 


Manager
shall have in its employ at all times a sufficient number of capable employees
to enable it to properly, adequately, safely and economically manage, operate,
maintain and account for the Properties. 
All matters pertaining to the employment, supervision, compensation,
promotion and discharge of such employees are the responsibility of Manager
(with respect to which Manager shall exercise reasonable care); Manager is in
all respects the employer of such employees. 
Manager shall negotiate with any union lawfully entitled to represent
such employees and may execute in its own name, and not as agent for Owner, collective
bargaining agreements or labor contracts resulting therefrom.  Manager shall fully comply with all
applicable laws and regulations having to do with worker’s compensation, social
security, unemployment insurance, hours of labor, wages, working conditions and
other employer-employee related subjects. 
Manager represents that it is and will continue to be an equal
opportunity employer and must advertise as such.  This Agreement is not one of agency by
Manager for Owner, but one with Manager engaged independently in the business
of managing the Properties on its own behalf as an independent contractor.  All employment arrangements are therefore
solely Manager’s responsibility and Owner shall have no liability with respect
thereto.  Nothing contained herein,
however, shall be deemed to permit Manager to charge Owner, or to use the
income of the Property to pay, for the services of Manager’s employees.


 


(i)            Notwithstanding anything to the
contrary contained in Section 5, any contract for services in
excess of Fifty Thousand and No/100 Dollars ($50,000.00) per Property if the
contract relates to snow removal services, but otherwise Twenty-Five Thousand
and No/100 Dollars ($25,000.00) per Property (the “Contract Limit”) in any one transaction shall be consummated
only upon the specific authorization of Owner, which authorization may be
withheld in Owner’s sole discretion; provided, however, nothing herein shall
require any assignee, grantee, lessee or other party dealing with Owner to
investigate the authority of Manager to take any action herein authorized.  Any contract in excess of the Contract Limit
shall be submitted to Owner for its review and approval.  In the event that Owner does not provide
written notice to Manager within seven (7)  business days after such
contract is served upon Owner that it does not approve the contract, the
contract shall be deemed approved by Owner. 
In the event that Owner withholds its consent, Manager shall not have
any obligation to cause the services to be provided pursuant to the contract to
be performed.


 


8





















 


(j)            To take all action reasonably
required to cause Owner to comply with all obligations under all Project
Contracts and all other contracts, leases, notes, mortgages and other documents
and instruments relating to the Properties provided to Manager.


 


(k)           Except to the extent a tenant under
its lease is obligated to do so, keep and maintain the Properties in a good,
orderly, clean, safe, sanitary and sightly condition (subject to casualty and
condemnation, in which case Manager shall supervise the restoration of the
Properties pursuant to the direction of Owner if this Agreement is not
terminated in connection therewith), recommend and make or direct and supervise
all repairs and changes necessary for the proper operation of the Properties,
implementation of capital expenditures as provided in the Annual Budget, and
the fulfillment of Owner’s obligations under any Project Contract and/or the
compliance with all applicable governmental requirements.


 


(l)            Except to the extent a tenant under
its lease is obligated to do so, take such action as is commercially reasonably
to assure that the Properties remain in material compliance with all municipal,
county, state or federal laws, statutes, regulations, ordinances, codes, rules and
orders.


 


(m)          Keep the Properties free from liens,
charges and encumbrances arising out of the operation of the Properties except
for any mortgage (or other financing of which Owner approves) and any other
encumbrance approved by Owner.


 


(n)           Promptly notify Owner’s general liability
insurance carrier and Owner of any personal injury or property damage occurring
to or claimed by any tenant or third party on or with respect to the Properties
promptly upon obtaining knowledge thereof and to forward to Owner’s general
liability insurance carrier, with copies to Owner, any summons, subpoena, or
other like legal document served upon Manager relating to actual or alleged
potential liability of Owner, Manager, or the Properties, with copies to Owner
of all such documents. Notwithstanding the foregoing, Manager shall not be
authorized to accept service of process on behalf of Owner.  Manager shall have no right to supervise the
prosecution, defense and settlement on behalf of Owner of any claims or demands
in connection with the operation of the Properties, including the settlement of
all insurance claims.


 


(o)           Cooperate with and give assistance to any
independent public accountant retained by Owner to examine statements or other
records pertaining to the Properties.


 


(p)           In connection with the Properties, oversee
the construction of tenant improvements required by any leases and other
development and construction at the Properties. 
Manager shall not enter into any required contracts for the development,
design, procurement, construction, and installation of improvements (“Improvements”), which contracts, the
amounts thereof, and the cost breakdown shall be subject to the prior written
consent of and shall be executed by Owner, which consent may be withheld by
Owner in its sole discretion.  Manager
shall be entitled to a separate management fee of five percent (5%) of the cost
of the Improvements (exclusive of the costs of (i) any raw land, and (ii) financing
costs of such Improvements) in excess of One Hundred Thousand and No/100
Dollars ($100,000.00).  The management
fee described in this subsection shall be paid on a monthly basis.  In connection therewith, the following
services shall be provided:


 


(i)            Providing development and
construction management services for Properties as requested by Owner;


 


9





















 


(ii)           Coordinating with tenant
representatives to assess tenant improvement needs and propose appropriate
design and construction solutions;


 


(iii)          Providing feasibility studies and
preliminary cost estimates to asset/property management and leasing teams;


 


(iv)          Selecting, hiring and managing general
contractors and subcontractors through construction to deliver a high quality
product on time and within budget;


 


(v)           Reviewing contractor
budgets/schedules, engineering/testing reports and shop drawings to manage
costs and maintain quality; and


 


(vi)          Processing payment requests, tracking
costs and coordinating with accounting staff and project funding sources.


 


(q)           Monitor conditions and circumstances
affecting the viability of the Annual Budget and advising Owner, in writing, on
a quarterly basis of such conditions and circumstances of which Manager becomes
aware and suggesting amendments to the foregoing in response thereto.  The information to be provided by Manager to
Owner shall include (i) the Manager’s view of whether tenants’ whose lease
terms will be expiring in the next eighteen (18) months are likely to want to
extend their tenancy, and (ii) if not, Manager’s view of the likely
reasons that such tenants do not desire to extend their tenancy, along with any
information that Manager has as to the plans of such tenants to lease space
elsewhere.


 


(r)           Monitor on a regular and continuing basis the
local real estate markets for the Properties and provide to Owner an analysis
and assessment of such real estate markets.


 


(s)           To discharge the following responsibilities
as and when appropriate with respect to the environmental condition of the
Properties.


 


(i)            Notice.  Manager shall promptly advise Owner in
writing of any information actually known to Manager concerning actual or
potential noncompliance with any of the Hazardous Materials Laws (as
hereinafter defined), occurring in, on, or at the Properties or in, on, or at
any property adjacent to or in the vicinity of the Properties.


 


(ii)           Rights; Limitations.  Manager shall use commercially reasonable
efforts to enforce Owner’s rights under the tenant leases of space at the
Properties insofar as any such tenant’s compliance with Hazardous Materials
Laws are concerned.


 


(iii)          Consultants.  Manager shall not retain environmental
consultants or other professionals, or otherwise initiate environmental reviews
by any third parties, without Owner’s prior written consent other than to
obtain annual environmental audits or inspections  similar to those obtained by Manager for
properties owned by Manager.  Manager
shall hold in confidence all information bearing on Hazardous Materials Laws
and Regulated Substances (as hereinafter defined) except to the extent
expressly instructed otherwise in writing by Owner or required in regulatory,
legislative, administration or legal proceedings, or except to the extent
necessary to protect against the imminent threat to the life and safety of persons
and/or damage to the Properties, or damage to the property adjacent to or in
the vicinity of the Properties.


 


10





















 


(iv)          Other Duties.  Manager shall also perform the following
duties:


 


(A)          Researching and recommending to Owner
environmental consultants and engineers as appropriate for Properties;


 


(B)           Retaining environmental consultants
to perform annual environmental audits or inspections of the Properties as
contemplated in Section 5(s)(iii) above;


 


(C)           Soliciting recommendations for
remedial or corrective action;


 


(D)          Determining course of follow up for
and addressing recommendations made by environmental consultants from time to
time and presenting same to Owner;


 


(E)           Coordinating access to the Properties
for environmental testing and remediation;


 


(F)           Cooperating with environmental
remediation efforts at the Properties so as to ensure minimal interference with
use of sites by existing tenants;


 


(G)           Overseeing implementation and
completion of all existing and future remedial actions; and


 


(H)          Providing all actions necessary for
compliance with applicable filing and notice requirements under applicable
environmental laws.


 


(v)           Definitions.  The term “Regulated
Substances” means any chemical, material, or substance defined as or
included in the definition of “hazardous substance,” “hazardous wastes,” “extremely
hazardous waste,” “restricted hazardous waste,” “toxic substances,” or words of
similar import under any environmental laws, the regulations adopted thereunder
or publications promulgated pursuant thereto, including, but not limited to,
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Sec. 9601, et seq.; the Hazardous Materials
Transportation Act, as amended, 49 U.S.C. Sec. 1801, et seq.; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Sec. 6901, et seq.; the
Federal Water Pollution Control Act, as amended, 33 U.S.C. Sec. 1251, et seq.;
and applicable state and local statutes (collectively, the “Hazardous Materials Laws”).  Without limiting the generality of the
foregoing, the term “Regulated Substances” includes (a) any oil, flammable
substances, explosives, radioactive materials, hazardous wastes or substances,
toxic wastes or substances, or any other materials or pollutants which (i) pose
a hazard to the Properties or to persons on or about the Properties or (ii) cause
the Properties to be in violation of any Hazardous Materials Laws; (b) asbestos
in any form which is or could become friable; (c) urea formaldehyde foam
insulation; (d) transformers or other equipment which contain
polychlorinated biphenyls; and (e) radon gas in amounts which will cause
buildings erected on the Properties to exceed 4 pico curies.  The term “Regulated Substances” also includes
any other chemical, material, or substance, exposure to which is prohibited,
limited, or regulated by any governmental authority or may or could pose a
hazard to the health and safety of the occupants of the Properties or the owners
and/or occupants of the property adjacent to or surrounding the Properties.


 


11





















 


(t)            Manager shall physically inspect each of the
Properties not less frequently than quarterly. 
Manager shall obtain such information during its inspections as Owner
may reasonably request from time to time and shall prepare a written report of
the inspections.


 


(u)           Manager will designate senior regional
managers to manage the Properties on a region by region basis.  The senior managers may, at the sole
discretion of Manager, choose to have management personnel other than the
senior managers to perform any or all of the obligations of Manager to be
performed under this Agreement.  Manager
will arrange for the applicable senior managers to meet with Owner from time to
time upon Owner’s request.  Manager
hereby designates James Clewlow as its representative for all purposes under
this Agreement.  Owner hereby designates
Ben Hindmarsh as its representative for all purposes under this Agreement.  Either party may designate one or more
substitute representatives for all or a specified portion of the provisions of
this Agreement, subject to notice to the other party of the identification of such
substitute representative.


 


(v)            To contest real estate tax assessments and
bills when, in the reasonable opinion of Owner or Manager, it would be
appropriate to do so.  All reasonable
costs incurred in such contest shall be paid out of the Operating Account and
shall be treated as operating expenses.


 


(w)           To discharge the following responsibilities
with respect to leasing and marketing of the Properties:


 


(i)            Developing an overall leasing
strategy for the Properties in consultation with Owner;


 


(ii)           Developing relationships with
external leasing brokers to market space;


 


(iii)          Managing relationships with leasing
brokers;


 


(iv)          Generally coordinating and overseeing
leasing brokers, as well as providing assistance to leasing brokers in
marketing the space;


 


(v)           Developing marketing campaigns and
materials for vacant space and space that will be vacant; and


 


(vi)          Preparing space for tours and show
space to prospective tenants.


 


Notwithstanding anything to the contrary
contained in this Subsection 5(w), Manager shall not be responsible
for the actual leasing of the Properties, which responsibility will be the
subject of one or more separate agreements between Owner and a leasing broker
or brokers.  Additionally, Manager shall
not enter into leases, lease renewals or lease amendments for the Properties
without the consent or written direction from Owner.


 


(x)           To implement and oversee investment and
divestment decisions and plans with respect to the Properties, as approved and
directed by Owner.


 


6.             Disbursement
of Revenues; Deficiencies. Funds shall be disbursed in accordance with the following provisions:


 


(a)           Manager shall be entitled to make all
payments required to be made under any mortgage, if applicable, and, subject to
the provisions to the contrary herein, to pay all operating expenses and capital
expenditures to third parties, on behalf of Owner.


 


12





















 


(b)           In the event that Manager determines, at any
time during the term of this Agreement, that expenses incurred or to be
incurred in the operation of the Properties exceed or shall exceed, as the case
may be, the aggregate of all Gross Revenues (as defined below) from all sources
of the Properties, Manager shall forthwith notify Owner of the amount of such
deficiency (together with the source or cause, in reasonable detail, of such
deficiency).  Owner shall advance to
Manager, within ten (10) business days after such notification, sufficient
funds as and when necessary to meet such deficiency.


 


(c)           Manager shall remit to Owner all amounts
remaining in the Operating Account, except for security deposits retained in
the Operating Account, the Management Fee 
for such month, and a reasonable balance for working capital as
determined by Owner in its reasonable business judgment, no later than ten (10) days
after the end of each month or within five (5) days after receipt of a
written request for payment of all such amounts.


 


7.             Compensation for Management Functions


 


(a)           Owner hereby agrees to pay Manager
monthly, as compensation for its management duties set forth in Section 5
above, during the term hereof, a fee equal to the greater of (a) the
management fee specified in any lease for a Property or (b) (i) three
percent (3%) of the Gross Revenues for the Properties intended to be occupied
by more than one tenant, (ii) one percent (1%) of the Gross Revenues for
Properties intended to be occupied by a single tenant, and (iii) one
percent (1%) of the Gross Revenues for the “Premises” or “Rollover Space”, as
said terms are defined in those certain Master Lease Agreements between Manager
or an Affiliate of Manager and Owner.  In
addition, if a Property, other than the Premises or Rollover Space, has any
vacancy, the monthly management fee for the vacant portion of said Property
shall be equal to fifty percent (50%) of an amount equal to one percent (1%) of
the gross monthly rental paid by the tenant occupying such vacant space
immediately prior to the date on which the amount is being calculated.  The fees described above in Sections 5(p)
and 7(a) are herein collectively referred to as the “Management Fee”).  Subject to the provisions of this Section 7(a),
for the purposes hereof, the term “Gross
Revenues” means all revenues collected by Manager in a calendar
month from the Properties, including, but not limited to:  (i) all rent collected from tenants
under their leases; (ii) security deposits applied as rent; (iii) proceeds
of rent loss insurance; and (iv) license and other user fees, including,
but not limited to, real estate taxes (to the extent that real estate taxes are
the obligation of tenant under its lease) and other amounts in the nature of
operating expenses pass-throughs received from tenants, licensees,
concessionaires, assignees, subtenants or otherwise for or in connection with
the operation, use and/or occupancy of the Properties.  Gross Revenues shall not include:  (1) security deposits except to the
extent applied as rent; (2) tenant payments for tenant improvements; and (3) receipts
arising out of the sale or financing of assets, or insurance, condemnation or
other third party proceeds, except to the extent such proceeds are in lieu of
lost rent or operating revenues. 
Notwithstanding anything to the contrary contained herein, in the event
that a tenant in any of the Properties, any of the Premises or any of the
Rollover Space fails to pay any portion of its monthly rent when due pursuant
to its lease (said unpaid monthly rent is hereinafter referred to as the “Unpaid Rent” and said lease is hereinafter
referred to as an “Unpaid Rent Lease”),
Manager shall, in lieu of the amounts set forth above, and with respect to the
Unpaid Rent Lease only, be entitled to a monthly management fee equal to fifty
percent (50%) of an amount equal to one percent (1%) of the Unpaid Rent (any
amount paid to Manager pursuant to this sentence is hereunder referred to as
the “Unpaid Rent Management Fee”).  In the event that said tenant subsequently
pays all or a portion of the Unpaid Rent, further payments of the Management
Fee shall be reduced by an amount equal to the Unpaid Rent Management Fee until
fully credited.  Thus by way of example
and not limitation, in the event that (i) Manager receives an


 


13





















 


Unpaid Rent Management Fee
of $1,000 attributable to multi-tenant Tenant A in October of 2005, (ii) Tenant
A pays its Unpaid Rent in November of 2005, in addition to its rental
payment due for the month of November, 2005, and (iii) the Gross Revenues
collected by Manager from Tenant A for the Unpaid Rent and the rental amount due
for the month of November, 2005 was $200,000, absent the reduction described
above, Manager would be entitled to a Management Fee equal to $6,000 (three
percent [3%]) of $200,000).  However,
after taking into account the reduction described above, the Management Fee is
reduced to $5,000 ($6,000 minus the $1,000 Unpaid Rent Management Fee).  Any fee which is payable pursuant to this Section 7(a) for
less than a full calendar month shall be prorated on a per diem basis using the
applicable fee due divided by the actual number of days in such month
multiplied by the number of days for which such fee is due.


 


(b)           Notwithstanding the foregoing, Owner
authorizes Manager to withdraw the Management Fee from the Operating Account on
a monthly basis, as earned. In the event that the amounts in the Operating
Account are insufficient to pay the Management Fee, Owner shall pay Manager any
unpaid portion of the Management Fee within ten (10) days after written
demand therefor.


 


8.             Indemnification.


 


(a)           Indemnification
of Manager.  Owner agrees to indemnify, defend, protect,
and hold harmless Manager and Manager’s officers, directors, partners,
shareholders and employees (collectively, the “Manager Indemnitees”) from and against any suit, demand,
claim, cause of action, loss, cost, liability, or expense, including
investigation costs and attorneys’, consultants’, and expert witness fees
(collectively a “Claim”) that
arises, or is alleged to have arisen, from (i) the acts or omissions of
Owner or Owner’s officers, directors, managers, employees, agents, and
contractors and (ii) the acts or omissions of any Manager Indemnitees, but
only to the extent such acts or omissions are included within the insurance
coverage provided in Owner’s commercial general liability insurance policy.  Notwithstanding the provisions for indemnity
in the preceding sentence, Owner shall not be required to indemnify, defend,
protect, or hold harmless any Manager Indemnitees from any Claim to the extent
such Claim arises, or is alleged to have arisen, from any acts or omissions of
the Manager Indemnitees that (1) constitute fraud, willful
misrepresentation, gross negligence or willful misconduct by the Manager
Indemnitees, (2) are outside the scope of Manager’s authority, or (3) are
Claims related to the employment practices of any Manager Indemnitees.


 


(b)           Indemnification
of Owner.  Manager hereby agrees to indemnify, defend,
protect, and hold harmless Owner and Owner’s officers, directors, partners,
shareholders, managers, members, agents, and employees (collectively the “Owner Entities”) from and against any Claim
that arises or is alleged to have arisen from any acts or omissions of any
Manager Indemnitees that constitute fraud, gross negligence or willful
misconduct by the Manager Indemnitees.  Notwithstanding
the provisions for indemnity in the preceding sentence, Manager shall not be
required to indemnify, defend, protect, or hold harmless any Owner Entities
from any Claim to the extent such Claim arises, or is alleged to have arisen,
from any acts or omissions of the Owner Entities that (i) constitute
fraud, willful misrepresentation, gross negligence or willful misconduct by the
Owner Entities, or (ii) are Claims related to the employment practices of
any Owner Entities.


 


(c)           General
Terms.  All of the indemnification obligations under
this Section 8 shall survive the expiration or termination of this
Agreement, regardless of cause, with respect to any Claims that the
indemnifying party receives in writing within one year from the effective date
of the termination or expiration of this Agreement, provided such claims arise
from facts or circumstances occurring prior to the date of the expiration or
termination of this Agreement.


 


14





















 


9.             Relocation
of Existing Tenants.  Manager agrees not to actively solicit  a Tenant from any of the Properties to
relocate to a building owned by Manager unless (i) such Tenant’s Lease is
about to expire, (ii) Manager has notified Owner in writing of such
potential relocation and (iii) Owner consents to such solicitation, Owner
does not have sufficient space for such Tenant in the area in which Tenant
wishes to be located, or there is a comparable replacement tenant obtained by
Manager or any third party that is willing to lease the portion of the Property
to be vacated by the Tenant in question within the existing Lease parameters
approved by Owner.


 


10.          Notices.  Any and all notices, requests, demands or
other communications hereunder shall be in writing and shall be deemed properly
served (i) on the date sent if transmitted by hand delivery with receipt
therefor, (ii) on the date sent if transmitted by facsimile (with
confirmation by hard copy to follow by overnight delivery service), (iii) on
day after the notice is deposited with an overnight courier, or (iv) three
(3) days after being sent by registered or certified mail, return receipt
requested, first class postage prepaid, addressed as follows (or to such new
address as the addressee of such a communication may have notified the sender
thereof):


 


	
  Owner:

  	
   

  	
  Mirvac Group

  Level 5, 40 Miller Street

  North Sydney, NSW 2060

  Australia

  Attn: Ben Hindmarsh

  Fax No.: 61 2 9004 8462

  E-Mail:
  benhindmarsh@mirvac.com.au

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Wildman Harrold
  Allen & Dixon LLP

  225 W. Wacker Drive, Suite 3000

  Chicago, Illinois 60606

  Attn: Kathleen M.
  Gilligan, Esq.

  Fax No.: (312) 201-2555

  
	
   

  	
   

  	
   

  
	
  Manager:

  	
   

  	
  CenterPoint Properties
  Trust

  1808 Swift Drive

  Oak Brook, Illinois 60523

  Attn: Mr. James Clewlow

  Fax No.: (630) 586-8010

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  CenterPoint Properties
  Trust

  1808 Swift Drive

  Oak Brook, Illinois 60523

  Attn: Mr. Paul T. Ahern

  Fax No.: (630) 586-8010

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Weinberg Richmond LLP

  333 West Wacker Drive, Suite 1800

  Chicago, Illinois 60606

  Attn: Mark S. Richmond, Esq.

  Fax No.: (312) 807-3903

  



 


11.          Agreement
not an Interest in Properties:  This Agreement shall not be
deemed at any time to be a joint venture, partnership, lease or an interest in
or a lien of any nature against the Properties.


 


15





















 


12.          No
Restriction on Other Businesses:  Manager is an independent
contractor.  Manager shall not be
required to spend its full time and attention in the management and operation
of the Properties, but Manager shall devote to the Properties such portion of
its time as may be reasonably necessary to accomplish the objectives set forth
herein.  Each party shall have the right
to engage in any other activity for its own benefit or advantage, including any
competitive real estate ventures. 
Nothing contained herein shall preclude, prevent or be a limitation upon
any party being engaged in other real estate ventures, whether acting for
itself or for others, or as a partner in a partnership or a stockholder in a
corporation, or otherwise.


 


13.          Right of
Entry:  Owner, its employees, agents, servants and
representatives may from time to time at all reasonable times, enter upon the
Properties, or any part thereof, for the purpose of inspecting, surveying,
measuring or preserving the Properties; provided, however, Manager shall be
under no obligation whatsoever with respect to any inspection, survey,
measurement or preservation, unless specifically set forth herein.  Manager shall use commercially reasonable efforts
to facilitate entry upon the Properties for the benefit of or on behalf of
Owner.


 


14.          Miscellaneous:


 


(a)           Entire Agreement.  This document constitutes the sole agreement
between the parties with respect to the subject matter hereof and supersedes
any and all written agreements or understandings between them pertaining to the
transactions contemplated herein.  No
representations, warranties or inducements, express or implied, have been made
by any party to any other party except as set forth herein.


 


(b)           Captions.  The captions and headings in this Agreement
are for convenience only, are not a part of this Agreement and do not in any
way limit or amplify the provisions hereof.


 


(c)           Modifications.  All modifications to this Agreement must be
in writing and signed by Manager and Owner.


 


(d)           Successors and Assigns.  No party shall assign its rights or
obligations hereunder without the written consent of the other party, which
consent shall not be unreasonably withheld; provided, however, the parties
shall cooperate with each other to satisfy the requirements of any lender or
mortgagee encumbering any of the Properties, including, without limitation,
assigning this Agreement to any parent of Owner or any wholly-owned subsidiary
thereof and entering into new and/or additional agreements with respect to the
management of the Properties.


 


(e)           Compliance with Applicable Law.  In the performance of its obligations under
this Agreement, Manager shall comply with the provisions of any federal, state
or local law prohibiting discrimination on the grounds of gender, race, color,
creed or national origin.


 


(f)            Governing Law.  This Agreement shall be interpreted and
enforced in accordance with the laws of the State of Illinois in effect on the
date hereof.


 


(g)           No Waiver.  No waiver by a party of any provision of this
Agreement shall be deemed to be a waiver of any other provision hereof or a
waiver of any subsequent breach by a party of the same or any other provision.


 


16





















 


(h)           Number and Gender.  All personal pronouns used in this Agreement
shall include the other genders.  The
singular shall include the plural, and the plural the singular, whenever and as
often as may be appropriate.


 


(i)            Time.  Time is of the essence of this Agreement and
of every provision hereof.


 


(j)            Severability. Any provision
in this Agreement that is unenforceable or invalid in any jurisdiction shall,
as to such jurisdiction, be ineffective, but only to the extent of such
unenforceability or invalidity of and without affecting the remaining
provisions thereof or affecting the operation, enforceability or validity of
such provision in any other jurisdiction.


 


(k)           Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be a fully binding and enforceable agreement
against the party signing such counterpart, but all such counterparts together
shall constitute but one agreement.


 


(l)            Facsimile Signatures. The parties hereto agree that the use of
facsimile signatures for the execution of this Agreement shall be legal and
binding and shall have the same force and effect as if originally signed.


 


(m)          Limitation of Liability.


 


(i)            No present or future partner,
member, director, officer, shareholder, employee, advisor, affiliate or agent
of or in Owner or any affiliate of Owner shall have any personal liability,
directly or indirectly, under or in connection with this Agreement or any
agreement made or entered into under or in connection with the provisions of
this Agreement, or any amendment or amendments to any of the foregoing made at
any time or times, heretofore or hereafter, and Manager and its successors and
assigns and, without limitation, all other persons and entities, shall look
solely to Owner’s assets for the payment of any claim or for any performance,
and Manager hereby waives any and all such personal liability.  For purposes of this Section 14(m),
no negative capital account or any contribution or payment obligation of any
partner or member in Owner shall constitute an asset of Owner. The limitations
of liability contained in this subparagraph are in addition to, and not in
limitation of, any limitation on liability applicable to Owner provided
elsewhere in this Agreement or by law or by any other contract, agreement or
instrument. All documents to be executed by Owner shall also contain the
foregoing exculpation.


 


(ii)           No present or future partner, member,
director, officer, shareholder, employee, advisor, affiliate or agent of or in
Manager or any affiliate of Manager shall have any personal liability, directly
or indirectly, under or in connection with this Agreement or any agreement made
or entered into under or in connection with the provisions of this Agreement,
or any amendment or amendments to any of the foregoing made at any time or  times, heretofore or hereafter, and Owner and
its successors and  assigns and, without
limitation, all other persons and entities, shall look solely to Manager’s
assets for the payment of any claim or for any performance, and Owner hereby
waives any and all such personal liability. 
The limitations of liability contained in this subparagraph are in
addition to, and not in limitation of, any limitation on liability applicable
to Manager provided elsewhere in this Agreement or by law or by any other
contract, agreement or instrument.  All
documents to be executed by Manager shall also contain the foregoing
exculpation.


 


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(iii)          The provisions of this Section 14(m)
shall survive any expiration or termination of this Agreement.


 


(n)           Currency.  All payments and amounts
referenced or described in this Agreement shall be deemed to require payments
in and refer to amounts in the currency of the United States of America.


 


15.          Compliance
with REIT Requirements.


 


(a)           Manager shall use commercially reasonable
efforts to manage the Properties so that all of the rental income from the
Properties qualifies as “rents from real property” as that term is defined in Section 856(d) of
the Internal Revenue Code of 1986, as amended (the “Code”), and so that all other income earned by Owner with
respect to the Properties falls within one or more of the categories of income
listed in Section 856(c)(2) of the Code, including dividends,
interest and abatements and refunds of taxes on real property.  Manager shall also use its reasonable best
efforts to manage the Properties so that as of the close of each calendar
quarter (i) at least 75% of the value of the Properties consists of real
estate assets within the meaning of Section 856(c)(5)(B) of the Code
and (ii) Manager (through its management of the Properties) will not cause
Owner to own (A) securities of one issuer which represent more than five
percent (5%) of the value of the Properties or (B) more than ten percent
(10%) of the total voting power or total value of the outstanding securities of
any one issuer.


 


(b)           Without limiting the foregoing, Manager
acknowledges that for the rental income from the Properties to qualify as “rents
from real property”, among other requirements, services provided to the tenants
at the Properties must be limited to services customarily furnished or rendered
in connection with the rental of real property, or must be furnished by an “independent
contractor” within the meaning of Section 856(d)(3) of the Code from whom
Owner does not derive or receive any income, who bears the cost of providing
the service, who is adequately compensated, and who retains the income from the
service, for which a separate charge is made. 
Further, the portion of the rent payable under any lease for any taxable
year that is attributable to personal property shall not exceed 15%, applying
the rules of Section 856(d)(1) of the Code (which attribute rent
to personal property and real property under a lease based on the relative
average fair market values of the different types of property).


 


16.          Relationship
of Parties.  Owner
acknowledges that (a) simultaneously with the execution of this Agreement,
Owner has acquired the Properties from Manager or an entity or entities
affiliated with Manager, and (b) Manager or an entity or entities
affiliated with Manager holds a substantial ownership interest in Owner.  Owner agrees that the existence of the
foregoing relationships shall not expand the duties or obligations of Manager
under this Agreement, nor create any fiduciary duties on the part of
Manager.  This provision shall have no
impact on any fiduciary obligation imposed in the joint venture agreement
creating Owner.


 


17.          Subordination
to Mortgage.  The rights of Manager hereunder (including all
Management Fees) as to a Property are hereby automatically subordinated to the
rights of any lender now or hereafter holding a mortgage or deed of trust on
any Property, including the satisfaction of all obligations by Owner under such
mortgage or deed of trust.  Without
limitation on the generality of the foregoing, Owner reserves the right to
demand from Manager, and Manager agrees to promptly execute and deliver to said
lender, a written Manager’s Agreement, Subordination and Consent to Assignment
(or similar instrument) containing terms reasonably acceptable to Manager,
pursuant to which, among other things, Manager’s Management Fee shall be
subordinate to the lien of said mortgage or deed of trust and the satisfaction
of all such obligations.


 


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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year
first stated above.


 


	
   

  	
  OWNER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT JAMES FIELDING, LLC,

  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  Adrian Harrington

  
	
   

  	
   

  	
  Title:
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  Adrienne Parkinson

  
	
   

  	
   

  	
  Title:
  Assistant Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MANAGER:

  
	
   

  	
   

  
	
   

  	
  CENTERPOINT PROPERTIES TRUST,

  a Maryland real
  estate investment trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  
						



 


19





















 


LIST OF EXHIBITS


 


EXHIBIT A – Description of Properties


 


20





















 


EXHIBIT A



DESCRIPTION OF PROPERTIES




[LIST ALL PROPERTIES ACQUIRED AT THE TIME OF THE FIRST
CLOSING].


 


A-1