exhibit101formofpurchase






                                                                  EXHIBIT 10.1                        PURCHASE AND SALE AGREEMENT         THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made and entered into  as of the Effective Date (as hereinafter defined), by and between ABP [__] LLC, a Delaware limited  liability  company (“Seller”),  and BIG ACQUISITIONS LLC, an Illinois limited  liability  company  (“Buyer”).                                     RECITALS:   A.    Seller is the fee simple owner of the Land.  B.    Buyer desires to acquire said land, together with the improvements located thereon and certain       other property interests related thereto, from Seller for the purchase price of [__] Dollars       ($[__]) (the “Purchase Price”).  C.    Seller is willing to convey said property to Buyer for the Purchase Price, but only upon the       terms and conditions hereinafter set forth.                               OPERATIVE TERMS:         NOW, THEREFORE, for and in consideration of the foregoing recitals and the promises,  covenants, representations and warranties hereinafter set forth, the sum of One Hundred Dollars  ($100.00) and other good and valuable consideration in hand paid by Seller to Buyer and by Buyer to  Seller  upon  the  execution  of  this  Agreement,  the  receipt  and sufficiency  of  which  are  hereby  acknowledged by each of the parties hereto, the parties hereto hereby agree as follows:         1.    Recitals;  Definitions.  The  foregoing  recitals  are  true  and  correct  in  all  material respects.  Capitalized terms and phrases used but not otherwise defined in the body of this Agreement  shall have the meanings ascribed to such terms and phrases in Schedule A attached hereto.         2.    Purchase and Sale.  Seller agrees to convey, transfer and assign, and Buyer agrees to acquire, accept and assume, the Property, on the terms, conditions and provisions set forth in this  Agreement.           3.    Purchase Price.  The Purchase Price shall be due and payable as follows:              3.1   Deposit.  Buyer  shall  make  the Initial  Deposit with  Escrow  Agent  within  three (3) Business Days after the Effective Date.  In addition, no later than the Due Diligence Deadline  (provided that this Agreement is not sooner Terminated in accordance with the terms hereof), Buyer  shall also make the Secondary Deposit.  Notwithstanding any provision in this Agreement to the  contrary, if Buyer fails to timely make the Initial Deposit or the Secondary Deposit as provided herein,  Seller may Terminate this Agreement by notice to Buyer given no later than five (5) days following  the due date of the Initial Deposit or the Secondary Deposit, as the case may be, and any Deposit  previously paid by Buyer shall be promptly returned to Buyer.  Except as expressly otherwise set forth  herein, the Deposit shall be applied against the Purchase Price on the Closing Date and shall otherwise  be held and delivered by Escrow Agent in accordance with the provisions of Paragraph 15.    





 






               3.2   Remainder  of  Purchase  Price.  At  Closing,  Buyer  shall  pay  to  Seller  an  amount  equal  to  the  difference  between  (a) the  Purchase  Price  and  (b) the  Deposit  previously  or  simultaneously paid to Seller, subject to the adjustments set forth herein, in cash by wire transfer to  such account and bank as Seller shall designate in writing, to be confirmed received in Seller’s account  on or before 3:00 p.m. Eastern time on the Closing Date.            4.    Buyer’s Due Diligence and Inspection Rights; Termination Right.                  4.1   Inspection  of  Property.  Until  Closing,  and  subject  to  the  terms  of  Paragraph 4.2, Seller shall provide Buyer and Buyer’s Representatives access to the Real Property,  upon reasonable prior notice at reasonable times during business hours, with the right and license to  conduct Due Diligence with respect to the Property.                  4.2   Inspection Requirements.  Buyer’s rights to conduct Due Diligence shall be  subject to the following further requirements: (a) Due Diligence inspections of the Property may only  be performed during normal business hours and Buyer must provide Seller with at least 48 hours’  prior notice of its intent to perform Due Diligence inspections of the Property; (b) Seller shall have  the right to have a representative of Seller present during any entry upon the Property by Buyer or Buyer’s  Representatives; (c) there shall be no physical testing of the Property whatsoever, including, without  limitation, any invasive sampling, boring, testing, or analysis of soils, surface water or groundwater at  the Property; (d) Buyer shall immediately return the Property to the condition existing prior to any  inspection.  Prior to any entry upon the Land, Buyer shall provide to Seller, and shall cause any of  Buyer’s Representatives entering upon the Land to provide to Seller, evidence of insurance which  complies with the requirements of Schedule B attached hereto.  Notwithstanding any provision in this  Agreement to the contrary, except in connection with the issuance of a standard “zoning letter” with  respect to the Property or the preparation of a third-party zoning report, neither Buyer nor any Buyer’s  Representative shall contact any governmental official or representative regarding hazardous materials  on, or the environmental condition of, the Property, or the status of compliance of the Property with  zoning, building code or similar Laws, without Seller’s prior written consent thereto, which consent  Seller may withhold in its sole and absolute discretion.  In addition, Seller shall be entitled to at least  two (2) Business Days’ prior notice of the intended contact and to have a representative present when  Buyer  or  any  Buyer’s  Representative  has  any  such  contact  with  any  governmental  official  or  representative.                4.3   Title Examination.                    A.    Title Objections.  Seller shall order the Title Commitment within five (5)  Business Days after the Effective Date.  Buyer shall have until 10 days after delivery of the Title  Commitment to  notify  Seller  of  any  Title  Objections.   If  Buyer  fails  to  notify  Seller  of  any  Title  Objections  on  or  before  the  day  that  is  10  days  after  delivery  of  the  Title  Commitment  then,  notwithstanding any other provisions set forth herein, such failure to notify Seller shall constitute a  waiver of such  right to object  to such  matters existing  as of the  Effective  Date.  Any  such  Title  Objection so waived (or deemed waived) by Buyer shall be deemed to constitute a Permitted Title  Exception and the Closing shall occur as herein provided without any reduction of or credit against  the Purchase Price.               B.    Cure  of  Title  Matters.  At  Closing,  Seller  shall  Remove or  cause  to  be  Removed any Title Objections to the extent (and only to the extent) that the same constitute Required                                         2  





 






   Removal Items.  In addition, Seller may elect (but shall not be obligated) to Remove or cause to be  Removed any other Title Objections, and, with respect thereto, Seller may notify Buyer on or before  the Title Cure Deadline whether Seller elects to Remove the same (and the failure to provide such  notice on or before the Title Cure Deadline shall be deemed to constitute an election of Seller not to  effect any such cure).                  C.    Buyer’s Right To Terminate.  If any such Title Objection is not so cured on  or before the Title Cure Deadline, then Buyer may Terminate this Agreement by notice to Seller within  five (5) Business Days after the Title Cure Deadline.  Failure of Buyer to respond within such period  shall be deemed an election by Buyer to waive such Title Objections and proceed to Closing.  Any  such Title Objection so waived (or deemed waived) by Buyer shall be deemed to constitute a Permitted  Title Exception and the Closing shall occur as herein provided without any reduction of or credit  against the Purchase Price.                D.    Pre-Closing “Gap” Defects.  Whether or not Buyer shall have furnished to  Seller any notice of Title Objections before the Due Diligence Deadline, Buyer may at or prior to  Closing notify Seller of any defects in title arising between the Due Diligence Deadline and the Closing  Date.  With respect to any Title Objections set forth in such notice, Buyer shall have the same rights  as those which apply to any notice of defects in title resulting from a notice of title defects by Buyer  on or before the Due Diligence Deadline and Seller shall have the same rights and obligations to cure  the same at or prior to Closing.  If necessary, the date for Closing shall be automatically extended (by  not more than 15 days) to allow Seller to cure such pre-closing “gap” defects.                  4.4   As-Is,  Where-Is,  With  All  Faults  Sale.  Buyer  shall  conduct  such  Due  Diligence as Buyer deems necessary or appropriate prior to the Due Diligence Deadline, and shall  independently confirm to its satisfaction all information that it considers material to its purchase of  the  Property  or the  Transaction.  Accordingly,  the Property  shall  be  sold,  and Buyer shall  accept  possession of the Property on the Closing Date, “AS IS, WHERE IS, WITH ALL FAULTS”, with  no right of setoff or reduction in the Purchase Price.  Without limiting the foregoing, except for Seller’s  Warranties, none of the Seller Parties have or shall be deemed to have made any verbal or written  representations, warranties, promises or guarantees (whether express, implied, statutory or otherwise)  to Buyer with respect to the Property; any matter set forth, contained or addressed in the Documents  (including, but not limited to, the accuracy and completeness thereof); or the results of Buyer’s Due  Diligence.  In addition, Buyer expressly understands and acknowledges that any documents made  available  to  Buyer  may  not  be  complete  in  all  respects  and  that  Seller  may  not  have  complete  information concerning the Property in Seller’s possession or control.  Buyer acknowledges that all  such information must be verified independently during Due Diligence.  In addition, Buyer expressly  understands and acknowledges that it is possible that unknown Liabilities may exist with respect to  the Property and that Buyer explicitly took that possibility into account in determining and agreeing  to the Purchase Price, and that a portion of such consideration, having been bargained for between  the parties with the knowledge of the possibility of such unknown Liabilities shall be given in exchange  for the existence of any and all such Liabilities.  In furtherance of the foregoing commitments, Buyer  shall execute and deliver to Seller at the Closing, an As Is Agreement as required by Paragraph 6.3.               4.5   Termination  Right.  Buyer  may,  at  any  time  prior  to  the  Due  Diligence  Deadline, Terminate this Agreement by notice to Seller if Buyer, in its sole and absolute discretion,  determines not to proceed with the Transaction or is not satisfied with any matters relating to the  Property.  If, at or prior to the Due Diligence Deadline, Buyer has not given Seller a termination notice                                         3  





 






   as aforesaid, then Buyer shall be deemed to have accepted the condition of the Property (subject to  Seller’s compliance with the representations, warranties and covenants of this Agreement, and the  conditions set forth in Paragraph 10) and shall thereafter have no right to Terminate this Agreement  on account of such Due Diligence termination right under this Paragraph 4 and, except as set forth in  Article 9 or Paragraphs 10.1.C. and 12.2 hereinbelow, Buyer shall not be entitled to the return of the  Deposit.   If  after  the  Due  Diligence  Deadline  Buyer  conducts  further  Due  Diligence,  Buyer  acknowledges and agrees that Buyer shall have no further right to terminate this Agreement with  respect to such further Due Diligence or otherwise in accordance with this Paragraph 4 after the Due  Diligence Deadline.               4.6   Underground  Storage  Tank.  Seller  has  informed  Buyer,  and  Buyer  acknowledges, that the Property includes [__] operational [__] gallon underground tank[s] used for  the storage of diesel fuel.  Buyer acknowledges, subject to Buyer’s right to perform Due Diligence  pursuant to this Agreement and to terminate this Agreement pursuant to the foregoing paragraph,  that it is a material factor in Seller’s acceptance of the Purchase Price that Buyer agree to accept said  tank with the Property.               4.7   Seller’s Termination of Related Contract.  Notwithstanding anything in this  Agreement to the contrary, (a) should Buyer elect to Terminate this Agreement pursuant to Paragraph  4.5 above, Seller shall have the right to terminate the Related Contract, at Seller’s option, by notice to  Buyer given in accordance with the Related Contract no later than five (5) days following receipt of  Buyer’s termination notice under this Agreement.  If Buyer elects to Terminate the Related Contract  pursuant to Section 4.5 thereof, Seller shall have the right to terminate this Agreement by notice to  Buyer given  no later than five  (5) days following  receipt of  Buyer’s termination notice under the  Related Contract and any Deposit previously paid by Buyer hereunder shall be promptly returned to  Buyer and neither party shall have any further obligation to the other under this Agreement (except  for those obligations which expressly survive the termination hereof).          5.    Seller’s Covenants.  Between the Effective Date and the Closing Date:               5.1   No Alteration of Title.  Seller shall not transfer or further alter or encumber  (which shall include entering into any new lease of all or part of the Real Property; permitting any new  sublease of all or part of the Real Property or consenting to any modification of any existing sublease  of all or part of the Real Property) in any way Seller’s title to the Property as it exists as of the Effective  Date without written notice to, and the prior written consent of, Buyer.  If Buyer fails to object in  writing  to  any  such  proposed  instrument  within  three  (3)  Business  Days  after  receipt  of  the  aforementioned notice, Buyer shall be deemed to have approved the proposed instrument.  Buyer’s  consent shall not be unreasonably withheld or delayed with respect to any such instrument that is  proposed prior to the Due Diligence Deadline.                 5.2   Status of Property.  Seller shall maintain and keep the Property in a manner  consistent with Seller’s past practices with respect to the Property, and shall maintain in force the  insurance coverage consistent with Seller’s insurance coverage practices as of the Effective Date.          6.    Closing.  The actual day of Closing shall be mutually agreed to by the parties.  If no  such selection is timely made, the Closing shall be held on the Closing Deadline.                                            4  





 






               6.1   Closing Mechanics.  Buyer and Seller shall conduct an escrow-style closing  through the Escrow Agent so that it will not be necessary for any party to attend the Closing.                 6.2   Seller’s Deliveries.  At Closing, Seller shall deliver or cause to be delivered  the following items:                 A.    Deed.  The Deed.                B.    Withholding and Tax Certificate.  A certificate with respect to Section 1445  of the Internal Revenue Code stating whether or not Seller is a foreign person as defined in said  Section 1445 and applicable regulations thereunder.                 C.    Affidavit of Title.  An Affidavit of Title with respect to liens and title matters  in substantially the form of Exhibit B.                D.    Closing  Statement.  A  Closing  Statement  Agreement  in  the  form  of  Exhibit C attached hereto and incorporated herein by this reference.  Seller and Buyer shall authorize  and instruct the Escrow Agent to file, as the “reporting person,” Internal Revenue Service Form 1099- B (“Proceeds from Real Estate, Broker, and Barter Exchange Transactions”), if and as required by  Section 6045(d) of the Code.               E.    Evidence of Authority.  If requested by the Title Company, evidence that  Seller has the requisite power and authority to execute and deliver, and perform under, this Agreement  and all Closing Documents.                F.    Transfer Tax Declarations.  To the extent applicable, duly completed real  estate state, county and local transfer tax declarations.                G.    Lease.  Tenant’s counterpart of the Lease.                H.    Assignment.  Seller’s counterpart of the Assignment.               I.    SNDA.  Tenant’s counterpart to the SNDA.               J.    Non-Disturbance  Agreement.  Tenant’s counterpart  to  the Non- Disturbance Agreement.               K.    Bring-Down Certificate.  A reaffirmation of Seller’s Warranties in the form  of Exhibit G attached hereto, to which shall be attached a current representation exception schedule  identifying all exceptions to Seller’s Warranties then applicable.               L.    Other  Instruments.  Such  other  instruments  or  documents  as  may  be  necessary to effect or carry out the purposes of this Agreement, subject to Seller’s prior approval  thereof, which approval shall not be unreasonably withheld or delayed.               M.    Certificate. The Certificate signed by Tenant.               N.    Memorandum of Lease. Tenant’s counterpart of the Memorandum of Lease.                                            5  





 






               6.3   Buyer’s  Deliveries.  At  the  Closing,  Buyer  shall  deliver  or  cause  to  be  delivered to Seller the following:               A.    Net  Purchase  Price.  The  net  Purchase  Price  due  at  Closing  under  this  Agreement.                 B.    As Is Agreement.  The As Is Agreement of Buyer in the form of Exhibit D  attached hereto.               C.    Bring-Down Certificate.  A reaffirmation of the representations, warranties  and covenants set forth in Paragraph 8.5 hereof in the form of Exhibit H attached hereto.                D.    Closing  Document  Counterparts.  Executed  counterparts  of  any  of  the  Closing Documents described in Paragraph 6.2 which are also to be signed by Buyer.               E.    SNDA.  Buyer’s, Master Tenant’s, Landlord’s and Lender’s counterparts to  the SNDA.               F.    Non-Disturbance  Agreement.  Buyer’s,  Master  Tenant’s,  Landlord’s  and  Lender’s counterparts to the Non-Disturbance Agreement.               G.    Landlord Agreement.  The Landlord Agreement, executed by Buyer, Master  Tenant and Landlord.               H.    Other Instruments.  Such other funds, instruments or documents as may be  necessary to effect or carry out the purposes of this Agreement, subject to Buyer’s prior approval  thereof, which approval shall not be unreasonably withheld or delayed.               I.    Lease. Landlord’s counterpart of the Lease.               J.    Memorandum  of  Lease. Landlord’s  counterpart  of  the  Memorandum  of  Lease.                K.    Leasehold  Policy  Requirements. Such  instruments  or  documents  as  the  Title Company may reasonably require of Titleholder, Master Tenant or Landlord in order to issue a  leasehold policy insuring Tenant’s interest under the Lease including, but not limited to, copies of the  lease  agreements  evidencing  the  interest  of  Master  Tenant  and  Landlord  in  the  Property  and  documents evidencing  the  legal  existence  and organizational power and authority  or Title  Holder  Master Tenant and Landlord to enter into such agreements.                6.4   Buyer’s Ability to Close.  Buyer covenants to Seller that Buyer shall, as of  the Closing Date, have sufficient immediately available funds (through financing sources or otherwise)  to pay the balance of the net Purchase Price required pursuant to the foregoing subparagraph 6.3(A).         7.    Prorations and Closing Costs.                  7.1   Prorations.  The parties acknowledge that there shall be no prorations of any  expense items with respect to the Property at Closing, all such items being addressed in the Lease.                                           6  





 






               7.2   Seller’s  Closing  Costs.  Seller  shall  pay  the  following:  (a) the  fees  and  expenses of Seller’s attorneys; (b) the costs (including recording costs) of any cure of title defects  required of Seller hereunder; and (c) all transfer, documentary, excise, recording or other taxes or  assessments imposed by virtue of the Transaction.                 7.3   Buyer’s Closing Costs.  Buyer shall pay the following: (a) all costs of Buyer’s  Due Diligence, (b) the fees and expenses of Buyer’s attorneys, (c) all costs related to any financing to  be obtained by Buyer; (d) all recording charges due on recordation of any Closing Documents, (e)  all  escrow agent fees (if any are charged in connection with this Transaction), and (f) the costs, expenses  and premiums for the Title Commitment and the Title Policy (including all examinations and reports  in connection therewith) and for any endorsements to the Title Policy, any reinsurance required by  Buyer, and any loan policy of title insurance.         8.    Representations and Warranties.               8.1   Seller’s Representations and Warranties.  Seller represents and warrants to  Buyer as follows:               A.    Organization, Power and Authority.  Seller is duly organized, validly existing  and in good standing under the Laws of the State of Delaware; is, to the extent required by Law, duly  qualified to do business in the State in which the Land is located; and has all necessary power to  execute and deliver this Agreement and perform all its obligations hereunder.  Seller has the full power  and authority to enter into and perform this Agreement and the execution, delivery and performance  of this Agreement by Seller (i) has been duly and validly authorized by all necessary action on the part  of Seller, (ii) does not conflict with or result in a violation of the organizational documents of Seller,  or any judgment, order or decree of any court or arbiter in any proceeding to which Seller is a party,  and, (iii) does not conflict with or constitute a material breach of, or constitute a material default under,  any contract, agreement or other instrument by which Seller is bound or to which it is a party.                  B.    No Other Agreements.  Seller has not entered into any currently effective  agreement (other than this Agreement) to sell or dispose of all or any portion of its interest in and to  the Property.  Except as set forth in the Sublease or disclosed in the Record Exceptions, Seller has  not  entered  into  any  options,  puts,  calls,  rights  of  first  offer,  opportunity  or  refusal,  or  other  preemptive rights to purchase or occupy the Property which are in effect as of the Effective Date.                C.    Possession.   As of the Effective Date, no party other than Seller, Tenant and  Subtenant is in possession or occupancy of the Real Property or any part thereof.                 D.    Foreign Entity.  Seller is not a “foreign person” as such phrase is defined in  Section 1445 of the United States Internal Revenue Code.                E.    Notice of Violations.  To Seller’s knowledge, Seller has received no written  notice (i) from any governmental authority that the Property is not in material compliance with all  applicable laws, except for such failures to comply, if any, which have been remedied; or (ii) from any  insurance company or underwriter of any defect that would adversely affect the insurability of the  Property or cause an increase in insurance premiums with respect to the Property.                                            7  





 






               F.    Condemnation.  To Seller’s knowledge, Seller has not received any written  notice of any (i) pending, contemplated, threatened or anticipated condemnation of any part of the  Real Property, or (ii) widening, change of grade or limitation on the use of streets abutting the Land.                G.    No  Bankruptcy.  Seller  has  not  (A) commenced  a  voluntary  case,  or,  to  Seller’s knowledge, had entered against it a petition, for relief under any federal bankruptcy act or any  similar petition, order or decree under any federal or state Law relative to bankruptcy, insolvency or  other relief for debtors, (B) caused, suffered or consented to the appointment of a receiver, trustee,  administrator,  conservator,  liquidator  or  similar  official  in  any  federal,  state  or  foreign  judicial  or  non-judicial proceeding, to hold, administer and/or liquidate all or substantially all of its assets, or  (C) made an assignment for the benefit of creditors.                H.    Pending  Actions  or  Proceedings.  There  are  no  actions  or  proceedings  pending or, to Seller’s knowledge, threatened against Seller or relating to the Property which, if decided  adversely, would impair Seller’s ability to perform its obligations under this Agreement or prevent the  use of the Land for the purposes for which Tenant currently uses it.                I.    Other Prohibitions.  Neither Seller nor, to Seller’s knowledge, any person  owning a direct interest in Seller (i) is included on any Government List; (ii) has been determined by  competent authority to be subject to the prohibitions contained in Presidential Executive Order No.  133224 (September 23, 2001) or in any enabling or implementing legislation or other Presidential  Executive Orders in respect thereof; (iii) has been previously indicted for or convicted of any felony  involving a crime or crimes of moral turpitude or for any offense under the criminal laws against  terrorists, the criminal laws against money laundering, the Bank Secrecy Act, as amended, the Money  Laundering Control Act of 1986, as amended, or the Uniting and Strengthening America by Providing  Appropriate Tools Required to Intercept and Obstruct Terrorists (USA PATRIOT ACT) Act of 2001,  Public Law 107-56 (October 26, 2001), as amended; or (iv) to Seller’s knowledge, is currently under  investigation by any governmental authority for alleged criminal activity.                 8.2   Seller’s Warranties Deemed Modified.  Because Buyer’s primary reliance  on the status of the matters addressed by Seller’s Warranties is Buyer’s own Due Diligence, to the  extent that Buyer knows prior to the Due Diligence Deadline that Seller’s Warranties are inaccurate,  untrue or incorrect in any way, such Seller’s Warranties shall be deemed modified to reflect Buyer’s  knowledge.  As used herein, “knows,” “knew” or “knowledge” means with respect to any statement  following such phrase that to the date hereof no information has come to the attention of any such  person or such person’s agents, which would cause such person or its agents to believe that such  statement is not true and correct.                8.3   Claims of Breach Prior To Closing.  If at or prior to the Closing, Seller  obtains actual knowledge that any Seller’s Warranty is untrue, inaccurate or incorrect in any material  respect,  Seller  shall  give  Buyer  notice  thereof  within  five  (5)  Business  Days  of  obtaining  such  knowledge (but, in any event, prior to the Closing).  If at or prior to the Closing Buyer or any Buyer’s  Representative obtains actual knowledge that any Seller’s Warranty is untrue, inaccurate or incorrect  in any material respect, Buyer shall give Seller notice thereof within five (5) Business Days of obtaining  such knowledge (but, in any event, prior to the Closing).  In either such event, Seller shall have the  right to cure such misrepresentation or breach and shall be entitled to a reasonable adjournment of  the Closing (not to exceed 15 days) to attempt such cure.  If any Seller’s Warranty is untrue, inaccurate  or  incorrect  in  any  material  respect  as  of  the  date  made,  and  Seller  is  unable  to  so  cure  such                                         8  





 






   misrepresentation  or  breach,  then  Buyer,  as  its  sole  remedy,  shall  elect  either  (a)  to  waive  such  misrepresentation or breach  and consummate the  Transaction  without any  reduction of or credit  against the Purchase Price, or (b) to Terminate this Agreement by notice given to Seller no later than  five (5) days after the end of such cure period, in which event the Deposit shall be returned to Buyer  and Seller shall reimburse to Buyer, within twenty (20) days after Seller’s receipt of documentation  thereof, the Buyer’s Transaction Costs.                8.4   Survival and Limits on Buyer’s Claims.  Seller’s Warranties shall survive the  Closing and not be merged therein for the Survival Period and Seller shall only be liable to Buyer  hereunder for a breach of Seller’s Warranties made herein or in any of the documents executed by  Seller at the Closing with respect to which a claim is made by Buyer against Seller in writing, specifying  in reasonable detail the circumstances giving rise to the alleged breach, within the Survival Period.   Anything in this Agreement to the contrary notwithstanding, the maximum aggregate liability of Seller  for breaches of Seller’s Warranties shall be subject to Seller’s Liability Limit.  Notwithstanding the  foregoing, however, if the Closing occurs, Buyer hereby expressly waives, relinquishes and releases  any right or remedy available to it at law, in equity, under this Agreement or otherwise to make a claim  against Seller for damages that Buyer may incur, or to rescind this Agreement and the Transaction, as  the result of any of Seller’s Warranties being untrue, inaccurate or incorrect if (a) Buyer knew that such  representation or warranty was untrue, inaccurate or incorrect at the time of the Closing (Buyer’s  remedy being as set forth in Paragraph 8.3), or (b) Buyer’s damages as a result of such representations  or warranties being untrue, inaccurate or incorrect are reasonably estimated to aggregate less than  $37,500.00.               8.5   Buyer’s Representations and Warranties.  Buyer represents and warrants  to Seller as follows:               A.    Organization,  Power  and  Authority.  Buyer  is  duly  organized,  validly  existing and in good standing under the Laws of the State of Delaware; is, to the extent required by  Law, duly qualified to do business in the State in which the Land is located; and has all necessary  power to execute and deliver this Agreement and perform all its obligations hereunder.  Buyer has the  full power and authority to enter into and perform this Agreement and the execution, delivery and  performance of this Agreement by Buyer (i) has been duly and validly authorized by all necessary  action on the part of Buyer, (ii) does not conflict with or result in a violation of the organizational  documents of Buyer, or any judgment, order or decree of any court or arbiter in any proceeding to  which Buyer is a party, and (iii) does not conflict with or constitute a material breach of, or constitute  a material default under, any contract, agreement or other instrument by which Buyer is bound or to  which it is a party.  There are no lawsuits pending against Buyer or, to Buyer’s knowledge, threatened,  the outcome of which could adversely affect Buyer’s ability to purchase the Property or otherwise  perform its obligations under this Agreement.               B.    Sophisticated Buyer.   Buyer is experienced in the ownership and operation  of properties like and in the locale of the Property, and has experience in the acquisition, ownership  and operation of properties similar to the Property.  Buyer warrants and represents that it has the  ability through its own employees, or through agents, independent contractors, consultants or other  experts with whom it has a relationship, to evaluate fully the material characteristics of the Property  and to assess fully all issues pertaining to title to the Real Property, the value of the Property, the rights  and  liabilities  of  Buyer  as  the  successor  to  Seller,  the  structural  integrity  and  soundness  of  all  improvements  and  structures  located  on  the  Real  Property,  the  environmental  condition  of  the                                         9  





 






   Property, and the compliance of the Property with all Laws.  Accordingly, Buyer acknowledges that,  except for Seller’s Warranties, Buyer has not and will not rely upon any warranty, representation,  statement of fact, or other information made by or furnished by or on behalf of Seller or any of its  affiliates.                 C.    Funds.   Buyer has sufficient funds in immediately available cash to pay the  Deposit.                D.    No Bankruptcy.  Buyer has not (A) commenced a voluntary case, or had  entered against it a petition, for relief under any federal bankruptcy act or any similar petition, order  or decree under any federal or state Law relative to bankruptcy, insolvency or other relief for debtors,  (B) caused, suffered or consented to the appointment of a receiver, trustee, administrator, conservator,  liquidator or similar official in any federal, state or foreign judicial or non-judicial proceeding, to hold,  administer and/or liquidate all or substantially all of its assets, or (C) made an assignment for the  benefit of creditors.               E.    Other Prohibitions.  Neither Buyer nor any person controlling Buyer (i) is  included on any Government List; (ii) has been determined by competent authority to be subject to  the prohibitions contained in Presidential Executive Order No. 133224 (September 23, 2001) or in  any enabling or implementing legislation or other Presidential Executive Orders in respect thereof;  (iii) has been previously indicted for or convicted of any felony involving a crime or crimes of moral  turpitude or for any offense under the criminal laws against terrorists, the criminal laws against money  laundering,  the  Bank  Secrecy  Act,  as  amended,  the  Money  Laundering  Control  Act  of  1986,  as  amended, or the Uniting and Strengthening America by Providing Appropriate Tools Required to  Intercept and Obstruct Terrorists (USA PATRIOT ACT) Act of 2001, Public Law 107-56 (October  26,  2001),  as  amended;  or  (iv)  to Buyer’s  knowledge,  is  currently  under  investigation  by  any  governmental authority for alleged criminal activity.           9.    Casualty and Condemnation.                  9.1.  Minor  Damage.  In  the  event  of  loss  or  damage  to  the  Property  or  any  portion thereof which is not “major” (as hereinafter defined), then Seller shall have the following  option:               A.    Purchase Price Reduction.  If the loss or damage is a fire or other casualty  event, but not a condemnation event, reduce the Purchase Price by an amount equal to the cost (the  “Restoration  Cost”)  of  restoring  the  Property  to  a  condition  substantially  identical  to  that  of  the  Property prior to the event of damage, as determined by a general contractor licensed by the State of  [__] selected by Seller and reasonably approved by Buyer; or               B.    Assignment.  If  the  loss  or  damage  is  a  fire  or  other  casualty  event  or  a  condemnation event, assign to Buyer all of Seller’s right to any claims and proceeds Seller may have  with  respect  to  any  casualty  related  insurance  policies  (including,  without  limitation,   rental  loss  proceeds applicable to the period on and after the Closing) or condemnation awards relating to the  premises in question, and the Purchase Price shall be reduced by an amount equal to the uninsured  portion of the Restoration Cost (including, without limitation, the deductible amount under Seller’s  insurance policy); or                                           10  





 






               C.    Neither of the Foregoing.  Elect neither to reduce the Purchase Price nor  assign insurance proceeds and/or condemnation awards pursuant to the foregoing subparagraphs A.  and B.    Seller shall make the elections required by this Paragraph 9.1 by written notice delivered to Buyer  within ten (10) days following the date on which the Restoration Cost is determined and, if Seller fails  to deliver its written election within such ten (10) day period, then Seller shall be deemed to have made  the  election  under  subparagraph  C.  above.   If  Seller  makes  an  election  under  the  foregoing  subparagraphs A. or B., then this Agreement shall remain in full force and effect and the parties shall  proceed to Closing as contemplated by this Agreement; provided that Seller shall reduce the Purchase  Price  and/or  assign  insurance  and/or  condemnation  proceeds  as  provided  in  the  foregoing  subparagraphs A. or B., as applicable.  However, if Seller makes (or is deemed to have made) the  election under subparagraph C. above, then Buyer shall have the right to Terminate this Agreement  by written notice delivered to Seller within five (5) days after receiving Seller’s election (or deemed  election), in which event Buyer shall receive a refund of the Deposit (unless such loss or damage is  caused by or contributed to by Buyer in which event Buyer shall not be entitled to a return of the  Deposit) and neither party shall have any further obligation to the other under this Agreement (except  for those obligations which expressly survive the termination hereof).                9.2.  Major  Damage.  In  the  event  of  a  “major”  loss  or  damage,  Buyer  may  terminate this Agreement by written notice to Seller, in which event the Deposit shall be returned to  Buyer unless such loss or damage is caused by or contributed to by Buyer in which event Buyer shall  not be entitled to a return of the Deposit.  If Buyer does not elect to Terminate this Agreement within  ten (10) days after Seller sends Buyer written notice of the occurrence of major loss or damage, then  Buyer shall be deemed to have elected to proceed with Closing.                 9.3.  Definition of “Major” Loss or Damage.  For purposes of the foregoing  Paragraphs 9.1 and 9.2, “major” loss or damage refers to the following:  (a) Any loss or damage to the  Property or any portion thereof such that the cost of restoring the premises in question to a condition  substantially identical to that of the premises in question prior to the event of damage would be, in  the opinion of an architect selected by Seller and reasonably approved by Buyer, equal to or greater  than Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00), (b) Any loss that is not fully  covered  by  insurance,  and  (c)  with  respect  to  condemnation,  any  improvements  or  access  to  the  Property or more than ten percent (10%) of the Land is condemned or taken or threatened to be  condemned or taken.         10.   Other  Conditions  to  Closing.  The  obligations  of  Buyer  and  Seller  to  close  the  Transaction  shall  be  further  subject  to  the  satisfaction  at  or  prior  to  Closing  of  the  conditions  precedent set forth in this Paragraph 10.                  10.1  Conditions to Buyer’s Obligations.  The conditions precedent to Buyer’s  obligations at Closing referenced above are as follows, any or all of which may be waived by Buyer, at  its sole option:                A.    Representations.  Seller’s Warranties, subject to Paragraphs 8.2 and 8.3, shall  be true and correct in all material respects on and as of the Closing Date, except as modified in a  manner permitted by this Agreement, as if made on and as of such date except to the extent that they  expressly relate to an earlier date.                                         11  





 






                 B.    Seller  Compliance.  Seller  shall  have  performed  all  of  the  covenants,  undertakings and obligations under this Agreement to be performed or complied with by Seller at or  prior to the Closing.                C.    Title Policy.  At Closing, Seller shall have conveyed title to the Real Property  as will enable the Title Company to issue the Title Policy (or a specimen or proforma policy thereof  or  “marked”  Title  Commitment)  to  Buyer  subject  only  to  the  Permitted  Title  Exceptions  and  consistent with Paragraph 4.3 hereof.  If the condition set forth in this subparagraph C. has not been  satisfied as of the Closing Date, and has not been waived by Buyer as of such date, Buyer may, as its  sole and exclusive remedy, elect to Terminate this Agreement by notice to Seller and receive a return  of the Deposit.                  10.2  Conditions to Seller’s  Obligations.  The conditions precedent to Seller’s  obligations at Closing referenced above are as follows, any or all of which may be waived by Seller, at  its sole option:                A.    Representations.  Buyer’s warranties set forth in Paragraph 8.5 shall be true  and correct in all material respects on and as of the Closing Date, except as modified in a manner  permitted by the Agreement, as if made on and as of such date except to the extent that they expressly  relate to an earlier date.                B.    Buyer  Compliance.  Buyer  shall  have  performed  all  of  the  covenants,  undertakings and obligations to be performed or complied with by Buyer at or prior to the Closing.                10.3  Conclusive Waiver of Conditions.  By closing the Transaction, Seller and  Buyer shall be conclusively deemed to have waived the benefit of any remaining unfulfilled conditions  set forth in Paragraphs 10.1 and 10.2, respectively.            11.   Other Transaction Issues.                11.1  Brokers.  Each party represents to the other that such party has not incurred  any obligation to any broker or real estate agent with respect to the purchase or sale of the Property  or the lease of the Real Property.  Seller and Buyer each hereby (a) represent and warrant to the other  that it has not employed, retained or consulted any other broker, agent, or finder in carrying on a  negotiation in connection with this Agreement or the Transaction, and (b) indemnifies and agrees to  hold  the  other  harmless  from  and  against  any  and  all  claims,  demands,  causes  of  action,  debts,  liabilities, judgments and damages (including costs and reasonable attorneys’ fees actually incurred in  connection with the enforcement of this indemnity) which may be asserted or recovered against the  indemnified party on account of any brokerage fee, commission or other compensation arising by  reason of the indemnitor’s breach of this representation and warranty.               11.2  Confidentiality.  Buyer and Seller, for the benefit of each other, hereby agree  that they will not release or cause or permit to be released, and will use best efforts to prevent the  Buyer’s  Representatives  and  Seller’s  Representatives,  respectively,  from  releasing  or  causing  or  permitting the release of, any press notices, publicity (oral or written) or advertising promotion relating  to, or otherwise announce or disclose or cause or permit to be announced or disclosed, in any manner  whatsoever, the terms, conditions or substance of this Agreement or the Transaction.  The foregoing                                         12  





 






   shall  not  preclude  either  party  from  (a) discussing  the  substance  or  any  relevant  details  of  the  transactions contemplated in this Agreement with any of its representatives, employees, agents or  consultants, or the Title Company; (b) complying with any Laws applicable to such party, including,  without limitation, governmental regulatory, disclosure, tax and reporting requirements; (c) disclosing  the terms of the Transaction to the extent necessary in connection with any tax appeal either party  may pursue with respect to the Property; or (d) disclosing the terms of the Transaction to the extent  necessary  in  written  filings,  evidence  or  testimony  made  or  given  in  connection  with  any  court  proceedings either party may pursue in the event of the other party’s alleged default hereunder.  Buyer  and Seller shall indemnify and hold the other harmless from and against any and all Liabilities suffered  or incurred by the indemnified party and arising out of or in connection with a breach by Buyer or  Seller, as the case may be, of the provisions of this Paragraph.  The obligations of Buyer contained in  this  Paragraph  shall  survive  the  Closing  or  the  earlier  termination  of  this  Agreement;  provided,  however, that Buyer shall be permitted to announce the Transaction in a press release after Closing,  the substance of which release shall be subject to Seller’s prior review and approval, which approval  shall not be unreasonably withheld.                 11.3  Indemnity.  Buyer hereby agrees to indemnify, defend, and hold Seller and  each of the other Seller Parties free and harmless from and against any and all Liabilities (including  reasonable attorneys’ fees, expenses and disbursements) arising out of or resulting from the entry on  the Property and/or the conduct of any Due Diligence by Buyer or any of Buyer’s Representatives at  any time prior to the Closing; provided, however, that the foregoing indemnity shall not apply to any  Liabilities to the extent such Liabilities arise out of the negligence or intentional acts of Seller or the  mere discovery by Buyer of a pre-existing condition at the Property.  The foregoing indemnity shall  survive the Closing (and not be merged therein) or any earlier termination of this Agreement.               11.4  Tax  Appeals.  Seller  shall  have  the  right  to  continue  and  to  control  the  progress of and to make all decisions with respect to any contest of the real estate taxes and personal  property  taxes  for  the  Property  due  and  payable  during any Tax  Year prior  to  the  Closing  Tax  Year.  Subject to the terms and conditions of the Lease, the lessee under the Lease shall have the right  to continue and to control the progress of and to make all decisions with respect to any contest of the  real estate taxes and personal property taxes for the Property due and payable during the Closing Tax  Year, and Seller shall assign to the lessee at Closing all of its rights to continue any such appeal.  Buyer  and  Seller  agree  to cooperate  with  each  other  and  to  execute  any  and  all  documents  reasonably  requested  in  furtherance  of  the  foregoing,  at  no  out-of-pocket  cost  or  expense  to  Buyer.  The  provisions of this paragraph shall survive the Closing.          12.   Default at or Prior to Closing.                12.1  Buyer  Default.  Except  as  set  forth  hereinbelow,  if  Buyer  defaults  in  the  observance or performance of its covenants and obligations hereunder, or in the event of any breach  by Buyer of any of the representations and warranties set forth in Paragraph 8.5, and such default or  breach continues for five (5) Business Days after the date Seller gives notice demanding cure thereof,  or if Buyer defaults in the observance or performance of its covenants and obligations under the  Related Contract beyond any cure period afforded to Buyer pursuant to the terms thereof, Seller shall  be entitled, as its sole and exclusive remedy therefor, to Terminate this Agreement by notice to Buyer  of such termination and to receive payment of the Deposit as full liquidated damages for such default  or breach of Buyer, the parties hereto acknowledging the difficulty of ascertaining the actual damages  in the event of such a default or breach, that it is impossible more precisely to estimate the damages                                         13  





 






   to be suffered by Seller upon Buyer’s default or breach, that such forfeiture of the Deposit is intended  not as a penalty, but as full liquidated damages and that such amount constitutes a reasonable good  faith estimate of the potential damages arising therefrom, it being otherwise difficult or impossible to  estimate Seller’s actual damages which would be suffered by Seller in the event of default or breach  by  Buyer.   Except  with  respect  to  any  right,  obligation  or  liability  which  survives  Closing  or  termination of this Agreement, including any indemnification provisions set forth in this Agreement,  and except as set forth in Paragraph 14.17, Seller’s right to Terminate this Agreement and receive  payment of the Deposit as full liquidated damages, are Seller’s sole and exclusive remedies in the event  of default or breach hereunder by Buyer, and Seller hereby waives, relinquishes and releases any and  all other rights and remedies (except any that survive Closing or termination pursuant to the express  provisions of this Agreement), including, but not limited to: (A) any right to sue Buyer for damages  or to prove that Seller’s actual damages exceed the Deposit which is hereby provided Seller as full  liquidated damages, (B) any right to sue Buyer for specific performance, or (C) any other right or  remedy which Seller may otherwise have against Buyer, either at law, or equity or otherwise, including,  without limitation, the right to seek and/or receive consequential damages.                 12.2  Seller  Default.  If  Seller  defaults  in  the  observance  or  performance  of  its  covenants and obligations hereunder, and such default continues for five (5) Business Days after the  date Buyer gives notice demanding cure of such default, in either such event, Buyer shall be entitled,  as its sole and exclusive remedy therefor, to Terminate this Agreement by giving Seller notice of such  termination and to receive the Deposit from Escrow Agent, in which event Seller shall reimburse to  Buyer, within twenty (20) days after Seller’s receipt of reasonable documentation thereof, the Buyer’s  Transaction Costs.  Except with respect to any right, obligation or liability which survives Closing or  termination of this Agreement, including any indemnification provisions set forth in this Agreement,  Buyer’s right to so Terminate this Agreement and receive reimbursement of all Buyer’s Transaction  Costs as described in the foregoing sentence is Buyer’s sole and exclusive remedy hereunder in the  event of default hereunder by Seller, and Buyer hereby waives, relinquishes and releases any and all  other rights and remedies (except any that survive Closing or termination pursuant to the express  provisions of this Agreement), including, but not limited to: (A) any right to sue for damages (except  to compel Seller to make the reimbursement described in the foregoing sentence), (B) any right to sue  Seller for specific performance, or (C) any other right or remedy which Buyer may otherwise have  against Seller either at law, in equity or otherwise, including, without limitation, the right to seek and/or  receive consequential damages.         13.   Notices.  All notices, consents, approvals and other communications which may be  or are required to be given by either Seller or Buyer under this Agreement shall be properly given only  if made in writing and sent by (a) hand delivery; (b) a nationally recognized overnight delivery service  (such as Federal Express or UPS Next Day Air), with all delivery charges paid by the sender; or (c) by  email, provided that the sender also delivers the same notice in accordance with either of the foregoing  subparagraphs (a) or (b) no later than the next business day after such email is sent, in each instance  addressed to Buyer or Seller, as applicable, as set forth below.  Such notices shall be deemed given on  the date of delivery or rejection of delivery.  Said notice addresses are as follows (and Seller and Buyer  shall have the right to designate changes to their respective notice addresses, effective five (5) days  after giving notice thereof):                                          14  





 






   If to Seller:              ABP [__] LLC                             c/o BlueLinx Corporation                             1950 Spectrum Circle, Suite 300                             Marietta, Georgia  30067                             Attn: General Counsel                                                                  with a copy to:      ABP [__] LLC                             c/o BlueLinx Corporation                             1950 Spectrum Circle, Suite 300                             Marietta, Georgia  30067                             Attn: Shyam K. Reddy,                                   Chief Transformation Officer                             Email:  shyam.reddy@bluelinxco.com                               If to Buyer:               BIG Acquisitions LLC                             9450 W. Bryn Mawr, Suite 750                                           Rosemont, Illinois 60018                             Attention: Michael W. Brennan                             E-Mail: mbrennan@brennanllc.com                                     with a copy to:      Brennan Investment Group                             9450 W. Bryn Mawr, Suite 750                             Rosemont, Illinois 60018                             Attention: Samuel A. Mandarino                             E-Mail: smandarino@brennanllc.com                                     and with a copy to:                                                                                                                                                                 Attention:                                           E-Mail:                                                      14.   General Provisions.                  14.1  Execution  Necessary.  This  Agreement  shall  not  be  binding  upon  Seller  unless  fully  executed  and  delivered  by  a  proper  official  of  Seller,  and  no  action  taken  by  Seller’s  representatives shall be deemed an acceptance of this Agreement until this Agreement has been so  executed by Seller and delivered to Buyer.                14.2  Counterparts.  This Agreement may be executed in separate counterparts.  It  shall be fully executed when each party whose signature is required has signed at least one counterpart  even though no one counterpart contains the signatures of all of the parties to this Agreement.                14.3  Successors and Assigns.  This Agreement shall be binding upon the parties  hereto and their respective successors and assigns and inure to the benefit of the parties hereto and  their respective permitted successors and assigns.  Buyer shall not have the right to assign or delegate  any right, duty or obligation of Buyer under this Agreement to any other party without the prior                                         15  





 






   written  consent  of  Seller,  which  consent  Seller  may  grant  or  withhold  in  its  sole  and  absolute  discretion,  and  any  such  assignment  without  Seller’s  consent  shall  be  null  and  void ab  initio.   Notwithstanding the foregoing, Buyer shall have the right to assign this Agreement to (a) an affiliate  of Buyer which is under common control with Buyer or (b) an entity owned by a corporate services  company pursuant to a corporate services agreement with either (1) Buyer or (2) any entity under  common control with Buyer.  Any such assignee so consented to by Seller or otherwise permitted  pursuant to the terms of the foregoing sentence of this paragraph shall be designated by Buyer by the  delivery to Seller of a written assignment of this Agreement pursuant to which Buyer’s obligations  hereunder  are  expressly  assumed  by  such  assignee,  together  with  delivery  to  Seller  of  evidence  reasonably satisfactory to Seller of the valid legal existence of Buyer’s assignee, its qualification (if  necessary) to do business in the jurisdiction in which the Property is located and of the authority of  Buyer’s assignee to execute and deliver any and all documents required of Buyer under the terms of  this Agreement, which items shall be received by Seller not less than three (3) Business Days prior to  the Closing Date;  notwithstanding the foregoing, the exercise of such right by Buyer shall not relieve  Buyer of any  of its obligations and liabilities hereunder including obligations and liabilities which  survive the Closing or the termination of this Agreement, nor shall any such assignment alter, impair  or  relieve  such  assignee  from  the  waivers,  acknowledgements  and  agreements  of  Buyer  set  forth  herein, all of which are binding upon the assignee of Buyer.  In the event of any permitted assignment  by  Buyer,  any  assignee  shall  assume  any  and  all  obligations  and  liabilities  of  Buyer  under  this  Agreement but, notwithstanding such assumption, Buyer shall continue to be liable hereunder.                 14.4  Governing Law.  This Agreement shall be governed by the Laws of the state  in which the Land is located.               14.5  Entire Agreement.  This Agreement and all the exhibits referenced herein  and annexed hereto contain the entire agreement of the parties hereto with respect to the matters  contained herein, and no prior agreement or understanding pertaining to any of the matters connected  with this Transaction shall be effective for any purpose.  Neither this Agreement nor any provision  hereof may be waived, modified, amended, discharged or terminated except by an instrument signed  by the party against whom the enforcement of such waiver, modification, amendment, discharge or  termination is sought, and then only to the extent set forth in such instrument.                14.6  Time Is of the Essence.  TIME IS OF THE ESSENCE of the Transaction  and this Agreement.               14.7  Interpretation.  The titles, captions and paragraph headings are inserted for  convenience only and are in no way intended to interpret, define, limit or expand the scope or content  of this Agreement or any provision hereof.  If any party to this Agreement is made up of more than  one person or entity, then all such persons and entities shall be included jointly and severally, even  though the defined term for such party is used in the singular in this Agreement.  If any time period  under this Agreement ends on a day other than a Business Day, then the time period shall be extended  until the next Business Day.  This Agreement shall be construed without regard to any presumption  or other rule requiring construction against the party causing this Agreement to be drafted.  If any  words or phrases in this Agreement shall have been stricken out or otherwise eliminated, whether or  not any other words or phrases have been added, this Agreement shall be construed as if the words  or phrases so stricken out or otherwise eliminated were never included in this Agreement and no  implication or inference shall be drawn from the fact that said words or phrases were so stricken out  or otherwise eliminated.                                         16  





 






                 14.8  Survival.    The  covenants,  agreements,  indemnities,  representations  and  warranties contained herein shall not survive the Closing Date or any termination of this Agreement,  except as set forth in Paragraphs 8, 11, 13 and 14, each of which shall survive the Closing or any earlier  termination of this Agreement (limited, as applicable, as set forth therein).               14.9  Exclusive Application.  Nothing in this Agreement is intended or shall be  construed to confer upon or to give to any person, firm or corporation other than Buyer and Seller  hereto any right, remedy or claim under or by reason of this Agreement.  All terms and conditions of  this Agreement shall be for the sole and exclusive benefit of the parties hereto, and such benefit may  not be assigned by Buyer except as set forth in Paragraph 14.3.                14.10 Partial  Invalidity.  If  all  or  any  portion  of  any  of  the  provisions  of  this  Agreement  shall  be  declared  invalid  by  Laws  applicable  thereto,  then  the  performance  of  said  offending provision shall be excused by the parties hereto; provided, however, that, if the performance  of such excused provision materially affects any material aspect of this Transaction and the other party  does not upon demand enter into a modification or separate agreement which sets forth in valid  fashion  the  covenants  of  such  offending  provision  in  a  manner  which  counsel  to  both  parties  determine is valid, then the party hereto for whose benefit such excused provision was inserted in this  Agreement shall have the right, exercisable by notice given to the other party within ten (10) days after  such provision is so declared invalid, to Terminate this Agreement.                 14.11 Waiver Rights.  Buyer reserves the right to waive, in whole or in part, any  provision hereof which is for the benefit of Buyer.  Seller reserves the right to waive, in whole or in  part, any provision hereof that is for the benefit of Seller.                14.12 No  Implied  Waiver.  Except  as  otherwise  expressly  provided  in  this  Agreement, no waiver by Seller or Buyer of any provision hereof shall be deemed to have been made  unless expressed in writing and signed by such party, and no delay or omission in the exercise of any  right or remedy accruing to Seller or Buyer upon any breach under this Agreement shall impair such  right or remedy or be construed as a waiver of any such breach theretofore or thereafter occurring.   The waiver by Seller or Buyer of any breach of any term, covenant or condition herein stated shall not  be deemed to be a waiver of any other breach, or of a subsequent breach of the same or any other  term, covenant or condition herein contained.                 14.13 Rights Cumulative.  All rights, powers, options or remedies afforded to Seller  or Buyer either hereunder or by Law shall be cumulative and not alternative, and the exercise of one  right, power, option or remedy shall not bar other rights, powers, options or remedies allowed herein  or by Law, unless expressly provided to the contrary herein.               14.14 Attorneys’  Fees.  Should  either  party  employ  an  attorney  or  attorneys  to  enforce  any  of  the  provisions  hereof  or  to  protect  its  interest  in  any  manner  arising  under  this  Agreement, or to recover damages for breach of this Agreement, the non-prevailing party in any action  pursued in a court of competent jurisdiction (the finality of which is not legally contested) shall pay to  the prevailing party all reasonable costs, damages and expenses, including attorneys’ fees, expended or  incurred in connection therewith.                                            17  





 






               14.15 Waiver of Jury Trial.  EACH PARTY HEREBY WAIVES TRIAL BY JURY  IN ANY PROCEEDINGS BROUGHT BY THE OTHER PARTY IN CONNECTION WITH  ANY  MATTER  ARISING  OUT  OF  OR  IN  ANY  WAY  CONNECTED  WITH  THE  TRANSACTION,  THIS  AGREEMENT,  THE  PROPERTY  OR  THE  RELATIONSHIP  OF  BUYER AND SELLER HEREUNDER.  THE PROVISIONS OF THIS PARAGRAPH SHALL  SURVIVE  THE  CLOSING  (AND  NOT  BE  MERGED  THEREIN)  OR  ANY  EARLIER  TERMINATION OF THIS AGREEMENT.               14.16 Signatures.  Signatures to this Agreement transmitted by electronic copy shall  be valid and effective to bind the party so signing.  Each party agrees to promptly deliver an execution  original to this Agreement with its actual signature to the other party, but a failure to do so shall not  affect the enforceability of this Agreement, it being expressly agreed that each party to this Agreement  shall be bound by its own signature delivered by electronic copy and shall accept the electronic copy  of the signature of the other party to this Agreement.                14.17 No Recordation.  Seller and Buyer each agrees that neither this Agreement  nor  any  memorandum  or  notice  hereof  shall  be  recorded  and  Buyer  shall  not  file  any  notice  of  pendency or other instrument (other than a judgment) against the Property or any portion thereof in  connection herewith.  Buyer expressly acknowledges and agrees that, in the event of any breach by  Buyer of its obligations as set forth in the foregoing sentence, the provisions of Paragraph 12.1 limiting  Seller’s remedies shall not apply, and that Seller shall, in such event, be entitled to any remedy which  Seller may otherwise have against Buyer, whether at law or in equity, or otherwise, including, without  limitation, the right to seek and/or receive consequential damages.               14.18 Maximum  Aggregate  Liability.  Notwithstanding  any  provision  to  the  contrary contained in this Agreement or any documents executed by Seller pursuant hereto or in  connection  herewith,  the  maximum  aggregate  liability  of  Seller  and  the  Seller  Parties,  and  the  maximum aggregate amount which may be awarded to and collected by Buyer, in connection with the  Transaction, the Property, under this Agreement and under any and all documents executed pursuant  hereto or in connection herewith (including, without limitation, in connection with the breach of any  of Seller’s Warranties for which a claim is timely made by Buyer) shall not exceed Seller’s Liability  Limit.  The provisions of this section shall survive the Closing (and not be merged therein) or any  earlier termination of this Agreement.                14.19 Exhibits and  Schedules.  All  exhibits  and  schedules  referred  to  in,  and  attached to, this Agreement are hereby incorporated herein in full by this reference.          15.   Earnest Money and Escrow Agent.  The Escrow Deposits shall be held by Escrow  Agent, in trust, and disposed of only in accordance with the following provisions:                15.1  Deposit.  Escrow Agent shall not invest the Escrow Deposits or commingle  the Escrow Deposits with any funds of Escrow Agent or others.                15.2  Delivery at Closing.  If the Closing occurs, Escrow Agent shall deliver the  Escrow Deposits to, or upon the instructions of, Buyer and Seller on the Closing Date.               15.3  Return  or  Delivery  of  Deposit  Outside  Closing.  Escrow  Agent  shall  deliver the Escrow Deposits to Seller or Buyer only in accordance with the terms of this Paragraph                                         18  





 






   15.3.   Upon  receipt  of  a  written  demand  for  the  Escrow  Deposits  from  Buyer  prior  to  the  Due  Diligence Deadline, Escrow Agent shall promptly deliver the Escrow Deposits to Buyer.  Upon receipt  of a written  demand for the  Escrow Deposits from either Buyer or Seller at any  time  thereafter,  Escrow Agent shall give notice to the other party of such demand.  Thereafter, (a) if Escrow Agent  does not receive a written objection from the other party to the proposed payment within five (5) days  after the giving of such notice, then Escrow Agent is hereby authorized to make such payment, but  (b) if  Escrow  Agent  does  receive  such  written  objection  within  such  period,  Escrow  Agent  shall  continue to hold such amount until otherwise directed by written instructions signed by Seller and  Buyer or a final judgment of a court.  In the event of any return of the Deposit to Buyer pursuant to  Paragraph 4.5, One Hundred and No/100 Dollars ($100.00) thereof shall be payable to Seller, and  such amount shall in effect constitute option money, making this Agreement binding even if any  conditions or provisions herein are entirely within the discretion or control of Buyer.                15.4  Stakeholder.  The parties acknowledge that Escrow Agent is acting solely as  a stakeholder at their request and for their convenience, that Escrow Agent shall not be deemed to be  the agent of either of the parties, and that Escrow Agent shall not be liable to either of the parties for  any action or omission on its part taken or made in good faith, and not in disregard of this Agreement,  but shall be liable for its negligent acts and for any Liabilities (including reasonable attorneys’ fees,  expenses and disbursements) incurred by Seller or Buyer resulting from Escrow Agent’s mistake of  Law  respecting  Escrow  Agent’s  scope  or  nature  of  its  duties.   Seller  and  Buyer  shall  jointly  and  severally  indemnify  and  hold  Escrow  Agent  harmless  from  and  against  all  Liabilities  (including  reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance  of Escrow Agent’s duties hereunder, except with respect to actions or omissions taken or made by  Escrow Agent in bad faith, in disregard of this Agreement or involving negligence on the part of  Escrow Agent.                15.5  Taxes.  The party receiving the Escrow Deposits (or the benefit thereof) shall  pay any income taxes on any interest earned on the Escrow Deposits.                15.6  Execution by Escrow Agent.  Escrow Agent has executed this Agreement  in order to confirm that Escrow Agent has received and shall hold the Escrow Deposits, in escrow,  and shall disburse the Escrow Deposits pursuant to the provisions of this Paragraph 15.                      [The remainder of this page has been intentionally left blank.                                                                Signatures begin on the following page.]                                                                                                           19  





 






         IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the Effective  Date.                                     SELLER:                                                                      ABP [__] LLC,                                    a Delaware limited liability company                                                                                                         By:                                                                                Justin B. Heineman,                                         Vice President and Corporate Secretary                                                                      Date signed:                                                                                                                                       BUYER:                                                                       BIG ACQUISITIONS LLC,                                    an Illinois limited liability company                                                                                                          By:                                                                          Name:                                                                        Title:                                                                                                          Date signed:                                                                                                                                             20  





 






         The undersigned has executed this Agreement solely to confirm its agreement to (i) hold the  Escrow  Deposits  in  escrow  in  accordance  with  the  provisions  hereof  and  (ii) comply  with  the  provisions of Paragraph 15.                                    ESCROW AGENT:                                                                    ___________________________                                                                                                      By: ______________________________                                      Name: ________________________                                      Title: _________________________                                                                     Date signed:                                                                                                    21  





 






                                   SCHEDULE A                                                 “Agreement” shall mean this Purchase and Sale Agreement.          “Assignment” shall mean an Assignment of Intangible Property in the form attached hereto  as Exhibit I.          “Business Day” shall mean Monday through Friday excluding holidays recognized by the  state government of the State in which the Property is located.          “Buyer” shall mean the buyer referenced in the first paragraph of this Agreement.           “Buyer’s Reports” shall mean the results of any examinations, inspections, investigations,  tests, studies, analyses, appraisals, evaluations and/or investigations prepared by or for or otherwise  obtained by Buyer or Buyer’s Representatives in connection with Buyer’s Due Diligence.          “Buyer’s  Representatives” shall  mean  Buyer’s  officers,  employees,  agents,  advisors,  representatives,  attorneys,  accountants,  consultants,  lenders,  investors,  contractors,  architects  and  engineers.          “Buyer’s Transaction Costs” shall mean, to the extent that Buyer has provided to Seller  reasonable documentation thereof, Buyer’s reasonable actual out-of-pocket Due Diligence expenses  incurred in connection with the Transaction after the Effective Date, in an aggregate amount not to  exceed $125,000.00.          “Certificate” shall mean a certificate in the form attached hereto as Exhibit J.          “Closing” shall mean the consummation and closing of the Transaction.          “Closing Date” shall mean the date on which the Closing occurs, which shall be on or before  the Closing Deadline.            “Closing  Deadline” shall  mean  the  date  that  is  ten  (10)  days after  the  Due  Diligence  Deadline.          “Closing Documents” shall mean the documents and instruments delivered by Buyer and  Seller, in order to consummate the Transaction.          “Closing Tax Year” shall mean the Tax Year in which the Closing Date occurs.          “Condemnation Proceeding” shall mean any proceeding in condemnation, eminent domain  or any written request for a conveyance in lieu thereof, or any notice that such proceedings have been  or will be commenced against any portion of the Property.         “Deed” shall mean a special warranty deed in the form attached hereto as Exhibit E.                                Schedule A – Page 1 of 6  





 






         “Deposit” shall mean the sum of One Hundred Twenty-Five Thousand and No/100 Dollars  ($125,000.00), consisting of, collectively, the Initial Deposit of Sixty-Two Thousand Five Hundred  and No/100 Dollars ($62,500.00), and the Secondary Deposit of Sixty-Two Thousand Five Hundred  and No/100 Dollars ($62,500.00).          “Documents” shall mean any documents and instruments applicable to the Property or any  portion thereof that Seller or any of the other Seller Parties deliver or make available to Buyer or  Buyer’  Representatives  prior  to  Closing  or  which  are  otherwise  obtained  by  Buyer  or  Buyer’s  Representatives prior to Closing, including, but not limited to, the Title Commitment.          “Due Diligence” shall mean the investigation by Buyer and Buyer’s Representatives of the  feasibility  and  desirability  of  purchasing  the  Property, including  all  audits,  surveys,  examinations,  inspections,  investigations,  tests,  studies,  analyses,  appraisals,  evaluations, investigations  and  verifications with respect to the Property, the Documents, title matters, applicable land use and zoning  Laws and other Laws applicable to the Property, the physical condition of the Property, the economic  status of the Property, and other information and documents regarding the Property, including, but  not limited to, investigations of the legal and physical status of the Property by such consultants,  engineers and architects as Buyer requires,  structural review,  examination of title to the  Property,  preparation of a survey of the Land, and verification of all information made or to be made available  to Buyer with respect to Property.            “Due Diligence Deadline” shall mean 6:00 P.M. Eastern time on the date that is forty (40)  days after the Effective Date.           “Effective  Date” shall  mean  the  date  on  which  Seller  or  Buyer  shall  have  executed  this  Agreement, as indicated under their respective signatures, whichever is the later to do so.          “Escrow Agent” shall mean the Title Company.          “Escrow  Deposits” shall  mean  the  Deposit,  and  any  other  sums  (including,  without  limitation, any interest earned thereon) which the parties agree shall be held in escrow hereunder.          “Government List” shall mean (1) the Specialty Designated Nationals and Blocked Persons  Lists maintained by the Office of Foreign Assets Control, United States Department of the Treasury  (“OFAC”),  (2)  the  Denied  Persons  List  and  the  Entity  List  maintained  by  the  United  States  Department of Commerce, (3) the List of Terrorists and List of Disbarred Parties maintained by the  United States Department of State, (4) any other list of terrorists, terrorist organizations or narcotics  traffickers maintained pursuant to any of the lists, laws, rules and regulations maintained by OFAC  pursuant to any authorizing statute, Executive Order or regulation, (5) any other similar list maintained  by the United States Department of State, the United States Department of Commerce or any other  governmental authority or pursuant to any Executive Order of the President of the United States of  America, and (6) any list or qualification of “Designated Nationals” as defined in the Cuban Assets  Control Regulations, 31 C.F.R. Part 515, as all such Government Lists may be updated from time to  time.                                  Schedule A – Page 2 of 6  





 






         “Initial Deposit” shall mean an amount equal to Sixty-Two Thousand Five Hundred and  No/100 Dollars ($62,500.00), in immediately available funds, to the extent the same is deposited by  Buyer in accordance with the terms of Paragraph 3.1 hereof, together with any interest earned thereon.         “Land” shall mean all of Seller’s right, title and interest in and to that certain tract or parcel  of land located in [__] County, [__] more particularly described on Exhibit A attached hereto and  commonly known as [__].         “Landlord” shall mean that certain person or entity subleasing the Property from Master  Tenant as of the Closing Date.         “Landlord Agreement” shall mean a Landlord Agreement in the form attached to the Lease  as Schedule 3.01.         “Law” shall mean any federal, state or local law, statute, ordinance, code, order, decrees, or  other governmental rule, regulation or requirement, including common law.         “Lease” shall mean a Lease Agreement by and between Landlord and Tenant, in the form  attached hereto as Exhibit F.          “Lender” shall mean, collectively, any and all parties taking a security interest in the interest  of Buyer, Master Tenant or Landlord in the Real Property, to the extent any such security interest is  not intended to be subordinate to Tenant’s interest in the Real Property under the Lease.          “Lien” shall  mean  any  mortgage,  deed  of  trust,  security  deed,  lien,  judgment,  pledge,  conditional sales contract, security interest, past due taxes, past due assessments, contractor’s lien,  materialmen’s lien, judgment or similar encumbrance against the Property of a monetary nature.         “Liabilities” shall mean any and all direct or indirect damages, demands, claims, payments,  problems, conditions, obligations, actions or causes of action, assessments, losses, Liens, liabilities,  costs and expenses of any kind or nature whatsoever, including, without limitation, penalties, interest  on any amount payable to a third party, lost income and profits, and any legal or other expenses  (including,  without  limitation,  reasonable  attorneys’  fees  and  expenses)  reasonably  incurred  in  connection with investigating or defending any claims or actions, whether or not resulting in any  liability.         “Master Tenant” shall mean that certain person or entity leasing the Property from Buyer as  of the Closing Date.         “Memorandum of Lease” shall mean a Memorandum of Lease in the form attached hereto  as Exhibit K.         “Non-Disturbance Agreement” shall mean an agreement in the form attached hereto as  Exhibit L.         “Other  Interests” shall  mean  the  following  other  interests  of  Seller  in  and  to  the  Real  Property, or pertaining thereto: (a) to the extent that the same are in effect as of the Closing Date, any  licenses, permits and other written authorizations necessary for the use, operation or ownership of the  Real Property, and (b) any guaranties and warranties in effect with respect to any portion of the Real                               Schedule A – Page 3 of 6  





 






   Property as of the Closing Date; provided, however, that Other Interests shall not include any such  licenses, permits, authorizations, guaranties or warranties to the extent that said items are necessary or  desirable for Tenant’s use of and operations upon the Land following Closing pursuant to the terms  of the Lease.         “Permitted Title Exceptions” shall  mean,  subject  to  Buyer’s rights to review and make  objection to the status of title and survey as set forth in this Agreement, and the right of Buyer to  Terminate  this Agreement pursuant to Paragraph 4.5  if the  Due  Diligence is not satisfactory,  the  following: (a) all real estate taxes and assessments not yet due and payable as of the Closing Date;  (b) any Laws affecting the Property; (c) the Record Exceptions; (d) the Lease; (e) the Sublease; (f) any  state of facts which would be disclosed by a current survey or other inspection of the Land; and (g) any  other matters approved as Permitted Title Exceptions by Buyer prior to Closing or deemed approved  as Permitted Title Exceptions pursuant to this Agreement.            “Property” shall mean the Real Property and the Other Interests.          “Purchase Price” is defined in the Recitals to this Agreement.          “Real Property” shall mean the Land, including, without limitation, (a) any and all buildings  located on the Land and all other improvements, (b) all easements appurtenant to the Land and other  easements, grants of right, licenses, privileges or other agreements for the benefit of, belonging to or  appurtenant to the Land whether or not situate upon the Land, including, without limitation, signage  rights and parking rights or agreements, all whether or not specifically referenced on Exhibit A, (c) all  mineral, oil and gas rights, riparian rights, water rights, sewer rights and other utility rights allocated  to the Land, (d) all right, title and interest, if any, of the owner of the Land in and to any and all strips  and gores of land located on or adjacent to the Land, and (e) all right, title and interest of the owner  of the Land in and to any roads, streets and ways, public or private, open or proposed, in front of or  adjoining all or any part of the Land and serving the Land.          “Record Exceptions” shall mean all instruments recorded in the real estate records of the  County in which the Land is located which affect the status of title to the Real Property.          “Related Contract” shall mean the [__] Contract.            “Remove” with  respect  to  any  exception  to  title  shall  mean  that  Seller  causes  the  Title  Company to remove or affirmatively insure over the same as an exception to the Title Policy, without  any additional cost to Buyer, whether such removal or insurance is made available in consideration of  payment, bonding, indemnity of Seller or otherwise.          “Required Removal Items” shall mean, collectively, any Title Objections to the extent (and  only to the extent) that the same (a) have not been caused by Buyer or any Buyer’s Representatives,  and (b) are either: (i) Liens evidencing monetary encumbrances (other than liens for non-delinquent  general real estate taxes or assessments) which can be Removed by payment of liquidated amounts,  but only if such Liens have been created by written instrument signed by Seller or assumed by written  instrument signed by Seller, and provided that in no event shall Seller be required to Remove any such  Lien which is not related to the operation of the Property by any method other than indemnity of  Seller in favor of the Title Company (for example, unrelated items would include a judgment against  such party in connection with its other operations;  whereas a mechanic’s lien for work on the Property                               Schedule A – Page 4 of 6  





 






   pursuant to a contract entered into by Seller would be related to Property operations), or (ii) liens or  encumbrances (including, but not limited to, Liens) created by Seller after the Effective Date.           “Secondary Deposit” shall mean an amount equal to Sixty-Two Thousand Five Hundred  and No/100 Dollars ($62,500.00), in immediately available funds, to the extent the same is deposited  by Buyer in accordance with the terms of Paragraph 3.1 hereof, together with any interest earned  thereon.         “Seller” shall mean the seller referenced in the first paragraph of this Agreement.         “Seller Parties” shall mean and include, collectively, (a) Seller; (b) its counsel; (c) any direct  or indirect owner of any beneficial interest in Seller, or any subsidiaries, parents or affiliates of Seller;  (d) any officer, director, employee, affiliate, principal, partner, shareholder, representative or agent of  Seller,  its  counsel  or  any  direct  or  indirect  owner  of  any  beneficial  interest  in  Seller  or  of  any  subsidiaries, parents or affiliates of Seller; and (e) any other entity or individual affiliated or related in  any way to any of the foregoing, and their successors and assigns.          “Seller’s knowledge” or words of similar import shall refer only to the actual knowledge of  Shyam K. Reddy, Chief Transformation Officer, and Gary Cummings, and shall not be construed to  refer to the knowledge of any other Seller Party, or to impose or have imposed upon such individual  any duty to investigate the matters to which such knowledge, or the absence thereof, pertains.  There  shall be no personal liability on the part of such individual arising out of any of the Seller’s Warranties.          “Seller’s Liability Limit” shall mean an amount equal to the Purchase Price.          “Seller’s  Representatives” shall  mean  Seller’s  officers,  employees,  agents,  advisors,  representatives, attorneys, accountants, consultants, investors, contractors, architects and engineers.         “Seller’s  Warranties” shall  mean  Seller’s  representations  and  warranties  set  forth  in  Paragraph 8.1, as the same may be deemed modified or waived by Buyer pursuant to this Agreement.         “SNDA” shall mean an agreement in the form attached hereto as Exhibit M.         “Sublease” shall mean that certain [__] by and between BlueLinx Corporation and Subtenant,  as amended by [__] by and between Tenant and Subtenant.                “Subtenant” shall mean [__].                “Survey” shall mean an ALTA survey of the Property prepared by a surveyor licensed in the  State in which the Property is located, to be certified to Seller and Buyer.          “Survival Period” shall mean the first 180 days after Closing.         “Tax Year” shall mean the year period commencing on January 1 of each calendar year and  ending on December 31 of each calendar year.           “Tenant” shall mean [__].                                Schedule A – Page 5 of 6  





 






         “Terminate” shall mean the termination of this Agreement by notice from Buyer or Seller,  as applicable, as set forth this Agreement, in which event thereafter neither party hereto shall have any  further rights, obligations or liabilities hereunder except to the extent that any right, obligation or  liability set forth herein expressly survives termination of this Agreement.           “Title Commitment” shall mean the Commitment of the Title Company to issue the Title  Policy,  which  commitment  shall  include  hyperlinks  providing  access  to  copies  of  the  Record  Exceptions referenced therein.          “Title Company” shall mean Stewart Title Guaranty Company, National Title Services, One  Washington Mall, Suite 1400, Boston, Massachusetts 02108, Attn: Gayle Bourdeau, Esq., or such other  title insurance company as may be designated by Seller in writing from time to time.          “Title Cure Deadline” shall mean 6:00 P.M. Eastern time on that day which is 15 days after  the date on which Buyer delivers to Seller the Title Objections.          “Title Objections” shall mean any defects in title (including any Record Exceptions which  are not acceptable to Buyer) or survey (including the description of the Land) which may be revealed  by  Buyer’s  examinations  thereof  to  which  Buyer  timely  objects  in  accordance  with  the  terms  of  Paragraph 4.3.          “Title Policy” shall mean the ALTA Owner’s Policy of Title Insurance issued by the Title  Company  in  the  amount  of  the  Purchase  Price  and  in  the  form  of  the  Title  Commitment,  and  containing, unless prohibited by applicable statutes or regulations, such endorsements as Buyer may  obtain from the Title Company in the Title Commitment prior to the Due Diligence Deadline.  Buyer  shall be entitled to request that the Title Company provide such endorsements (or amendments) to  the  Title  Policy  as  Buyer  may  reasonably  require,  provided  that  (a) such  endorsements  (or  amendments) shall be at no cost to, and shall impose no additional liability on, Seller, (b) Buyer’s  obligations  under  this  Agreement  shall  not  be  conditioned  upon  Buyer’s  ability  to  obtain  such  endorsements  and,  if  Buyer  is  unable  to  obtain  such  endorsements,  Buyer  shall  nevertheless  be  obligated to proceed to close the Transaction without reduction of or set off against the Purchase  Price, and (c) the Closing shall not be delayed as a result of Buyer’s request.          “Transaction” shall mean the purchase and sale transaction contemplated by this Agreement.          “[__] Contract” shall mean that certain Purchase and Sale Agreement of even date herewith  by and between ABP [__] LLC and Buyer.                                    Schedule A – Page 6 of 6