1
Exhibit 10.1
REAL ESTATE SALE CONTRACT
THIS REAL ESTATE SALE CONTRACT (the "Agreement") is made by
and between REALTY REFUND TRUST ("Seller") and XXXX XX REALTY GROUP, INC., or
its nominee, a to be formed venture, as agent for the purchaser ("Purchaser").
WITNESSETH:
WHEREAS, REALTY REFUND TRUST ("Seller") is the owner of all of
the issued and outstanding shares of RRF LPI, Inc. and RRF LPII, Inc. which are
the owners (all collectively "Seller") of certain real estate which is commonly
known as 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx and more particularly
described on EXHIBIT A attached hereto and made a part hereof (the "Land"), and
Seller owns all buildings and improvements situated thereon, including, but not
limited to, the building containing approximately 226,000 square feet
(collectively, the "Improvements" and, together with the Land, the "Real
Property");
WHEREAS, Seller owns those certain items of personal property
more particularly described on EXHIBIT B attached hereto and made a part hereof
(the "Personal Property" and, together with the Real Property, the "Property");
and
WHEREAS, Purchaser desires to purchase the Property, and
Seller is willing to sell and cause to be sold all of the Property (including,
without limitation, the Land) to Purchaser, on the terms, provisions and
conditions contained herein.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the parties hereto agree as follows:
1. AGREEMENT TO SELL AND PURCHASE. Subject to the terms and
conditions contained herein, Seller hereby agrees to sell, transfer and convey
to Purchaser, and Purchaser hereby agrees to purchase and accept from Seller,
the Property (including, without limitation, the Land), together with all of the
rights and appurtenances pertaining thereto, including, but not limited to, all
right, title and interest of Seller in and to all easements, streets, alleys and
rights-of-way adjacent to the Real Property.
2. PURCHASE PRICE. (a) The purchase price (the "Purchase
Price") for the Property shall be the sum of SIX MILLION AND 00/100 Dollars
($6,000,000.00).
(b) The Purchase Price shall be payable as follows:
(i) Within three (3) business days after the
date this Agreement is executed by both Seller and Purchaser,
Seller and Purchaser shall open a strict joint order escrow
("Escrow") with, at Seller's option, either Chicago Title and
Trust Company or Near North Title Insurance Company ("Escrow
Agent")
2
pursuant to the terms of a strict joint order escrow agreement
in form and substance mutually acceptable to Seller and
Purchaser ("Escrow Agreement"), and Purchaser shall deposit in
the Escrow the sum of One Hundred Thousand and 00/100 Dollars
($100,000.00) ("Initial Xxxxxxx Money"). The Xxxxxxx Money
shall, at Purchaser's option, be invested in either United
States Treasury obligations or in another investment
satisfactory to Purchaser. All interest on the Xxxxxxx Money
shall accrue to the benefit of Purchaser unless the Xxxxxxx
Money is forfeited to Seller as provided in Section 11(c)
hereof. If the transaction contemplated by this Agreement
closes in accordance with the terms hereof, the Xxxxxxx Money
and all interest earned thereon shall be applied against the
Purchase Price. Purchaser shall diligently pursue approval for
acceptable tax increment financing at levels sufficient to
permit the profitable development of the property. In the
event the transaction does not close due to the failure of the
City of Chicago to approve an acceptable tax increment
financing in an amount sufficient to permit Purchaser to
develop the property and with such other terms determined by
Purchaser to be satisfactory in Purchaser's sole discretion
for any reason other than Purchaser's default, the Xxxxxxx
Money shall be promptly returned to Purchaser by the Escrow
Agent, together with all interest thereon.
(ii) $5,900,000 plus or minus prorations and
adjustments as provided for herein, shall be paid by Purchaser
to Seller in immediately available funds at the closing of the
transaction contemplated by this Agreement (the "Closing");
and
3. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller hereby
represents and warrants to Purchaser as follows:
(a) The Seller is the legal and fee simple titleholder of, and
has good and marketable title to the Land and Seller is the fee simple
title holder of, and has good and marketable title to, the Improvements
and the Personal Property. No person or entity has any right or option
to purchase the Real Property or any portion thereof.
(b) Except as has been delivered or will be delivered to
Purchaser by Seller pursuant to Section 4(a)(viii), there are no
leases, tenancies or occupancies (individually, a "Lease" and
collectively, the "Leases") affecting any portion of the Real Property,
with any person or entity (individually, a "Tenant" and collectively,
the "Tenants"). To the best of Seller's knowledge, no default under any
of the Leases by either Seller or a Tenant exists as of the date hereof
except as will be disclosed to Purchaser in writing by Seller prior to
the expiration of the Review Period.
(c) Neither the terms of this Agreement nor anything provided
to be done hereunder, including, but not limited to, the conveyance and
transfer of the Property, will violate any contract, agreement or
instrument to which Seller is a party and/or which affects or is
related to the Property.
2
3
(d) To the best of Seller's knowledge, Seller is not in
default of any of its obligations or liabilities pertaining to the
Property, and to the best of Seller's knowledge after due inquiry,
there is no state of facts, circumstance, condition or event which,
after notice or lapse of time, or both, would constitute or result in
any such default.
(e) Except as disclosed on Exhibit C, there is no litigation
or proceeding, including, but not limited to, building code
proceedings, condemnation proceedings or proceedings alleging the
violation of any environmental, health or safety law, rule or
regulation, pending or (to the best of Seller's knowledge after due
inquiry) threatened, by third parties which may affect the Property.
Seller shall notify Purchaser of any such litigation or proceeding that
arises from and after the date of this Agreement.
(f) There are no pending requests, applications or proceedings
to alter or restrict the zoning or other use restrictions applicable to
the Real Property.
(g) Except as disclosed on Exhibit C, Seller has not received
any notice of any violation of any law, rule (including, but not
limited to, zoning, building, environmental protection, safety, fire or
health codes relating to the Real Property. Seller shall, from and
after the date of this Agreement, give promptly to Purchaser copies of
any such notices received by Seller.
(h) To Seller's knowledge, without obligation of inquiry: (i)
the Real Property the activities and operations thereon and the uses
thereof, are and at all times have been in compliance with
Environmental Laws (as herein defined): (ii) there have been no events,
acts or conditions on or affecting the Real Property which are likely
to create any obligations or liability upon any present or future owner
or operator of the Real Property; and (iii) there have been no notices,
citations, demands, claims, allegations, liens, encumbrances, other
preferential arrangementrs or proceedings initiated or threatened under
or pursuant to Environmental Laws or otherwise regarding the
environmental condition of the Real Property. Without limiting the
generality of the foregoing, to Seller's knowledge, without obligation
of inqujiry, there have been no underground storage tanks present on
the Real Property at any time except for a tank in the sub-basement
which was removed approximately 4 years ago, and there has been no
improper treatment, storage, disposal, use or presence of Hazardous
Materials (as herein defined) on or affecting the Real Property. The
term "Environmental Laws" means all federal, state and local laws,
ordinances, requirements and regulations (including applicable judicial
or administrative interpretations thereof, consent decrees and
administrative orders) and permits, notification, or consents required
thereunder) relating to health, safety, wetlands, industrial hygiene,
waste disposal, or the protection of the environment, including,
without limitation: the federal Comprehensive Environmental Response,
Compensation and Liability Act, the Resource Conservation and Recovery
Act the Federal Insecticide, Fungicide and Rodenticide Act, the Toxic
Substances Control Act, and the Hazardous Materials Transportation Act,
and all amendments thereto and regulations adopted and
3
4
publications promulgated pursuant thereto. The term "Hazardous
Material" includes, without limitation, oil and petroleum products,
asbestos, asbestos-containing materials, polychlorinated biphenyls,
radon and urea formaldehyde, and all materials, substances and wastes
classified or regulated as hazardous or toxic under any Environmental
Law.
(i) The Real Property is not within the definition of "real
property" as defined in the Illinois Responsible Property Transfer Act
of 1988.
(j) Except for the Permitted Exceptions, except as have been
delivered or will be delivered by Seller pursuant to Section 4(a)(iv),
and except as disclosed by, Schedule 3(j) hereof, there are no written
or oral contracts, management agreements, leasing agreements, repair or
service agreements, employment agreements, union agreements, insurance
policies, easements, rights, privileges, licenses or options to
purchase (collectively, the "Contracts") affecting the Property which
will continue to remain in effect after the Closing Date. All of the
Contracts which, at Purchaser's election, will be assigned to Purchaser
at the Closing (the "Assigned Contracts") can be terminated by
Purchaser (without the payment of any termination fee of any kind or
nature) upon thirty (30) days prior notice, except for the contracts
with Reliance Elevator and the Engineer's Union, Local 399.
(k) There are no brokerage or leasing fees or commissions or
other compensation due or payable on an absolute or contingent basis to
any person, firm, corporation or other entity. with respect to or on
account of any Leases, and no such fees, commission or other
compensation shall, by reason of any existing agreement, become due
after the Closing Date.
(l) All of the real estate taxes for the Real Property for the
years 1994 and 1995 (payable in the years 1995 and 1996), and all prior
years have been paid in full and are not subject to any proposed
reassessment, contest, protest, certificate of error or other
proceedings. Except as disclosed by Schedule 30 hereof, Seller has not
taken any action to have the 1995 real estate taxes (payable in the
year 1996) or the 1996 real estate taxes (payable in the year 1997)
adjusted or modified in any respect.
(m) All public utilities, including, but not limited to,
water, sewer, gas, electric, telephone and drainage facilities give
adequate service to the Real Property.
(n) The Real Property has unlimited access to and from
publicly dedicated streets, and the responsibility for maintenance of
such streets has been accepted by the appropriate governmental
authority.
(o) Seller does not hold "plan assets" (as defined in the
regulations at 29 C.F.R. Section 25610.3-101) of any "plan" within the
meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended, or Section 4975(e) of the Internal Revenue Code of
1986, as amended.
4
5
(p) The execution and delivery of this Agreement by the
signatories hereto on behalf of Seller and the performance of this
Agreement by Seller have been duly authorized, and this Agreement is
binding on Seller and enforceable against Seller in accordance with its
terms. No consent to such execution, delivery and performance is
required from any creditor, investor, judicial or administrative body,
governmental authority or other person, other than any such consent
which already has been unconditionally given.
(q) To the best of Seller's knowledge, after due inquiry, all
written and oral information, including, but not limited to, all
documents, plans and specifications, reports and studies either
heretofore or hereafter furnished by Seller or its agents. to Purchaser
or its agents is true, complete and accurate in all respects.
For purposes of the representations and warranties contained in this Agreement,
Seller's knowledge shall be deemed to include (but shall not be limited to) the
knowledge of the manager of the Property. Seller covenants that all
representations and warranties contained herein are true, complete and correct
as of the date hereof and shall be true, complete and accurate as of the Closing
Date. Seller's representations and warranties contained herein shall survive the
Closing for aperiod of six months from the Closing Date and any claim for breach
of any representation or warranty shall be made within seven months from the
Closing Date.
4. PURCHASER'S REVIEW PERIOD. (a) Seller has earlier delivered
to Purchaser the following documents and materials (hereinafter collectively
referred to as the "Documents"):
(i) The most recent survey and/or title commitment or policy
of the Real Property in Seller's possession or available to Seller,
together with legible copies of all documents and instruments filed of
record against the Real Property (except to the extent the same have
been released of record or shall be released of record in connection
with the Closing).
(ii) Copies of all engineering and architectural plans and
specifications for the Property, the Improvements and (if in the
possession or control of Seller) any tenant improvements, copies of any
reports or studies (including, without limitation, engineering, soil
boring, asbestos, environmental and physical inspection reports, made
or prepared by employees, principals, consultants, governmental
authorities or insurance carriers) in Seller's possession or control
with respect to the physical condition or operation of the Property or
recommended improvements thereto.
(iii) Copies of the bills issued for the three (3) most recent
years for which bills have been issued for all real estate taxes and a
copy of any and all notices pertaining to real estate taxes or
assessments relating to the Real Property. Seller shall promptly
deliver to Purchaser a copy of any such bills or notices received by
Seller after the date hereof. In the event that any taxes or
assessments for said years have been appealed, Seller shall provide
Purchaser with copies of all petitions for appeal.
5
6
(iv) Copies of all of the Contracts and all contracts for
repair or capital replacement covering work performed during the three
(3) years immediately preceding; the date that Seller executes this
Agreement.
(v) Copies of all certificates of occupancy, licenses permits,
authorizations and approvals required by law or by any governmental or
private authority having jurisdiction over the Property, or any portion
thereof for occupancy thereof or for any present use thereof, to the
extent the same are in the possession or control of Seller.
(vi) Copies of all income and expense statements and operating
budgets for the Property for the current year and the preceding three
(3) calendar years.
(vii) Copies of all guaranties, warranties and other similar
documents or instruments relating to the Property.
(viii) Copies of all Leases.
(ix) Copies of all tenant correspondence relating to
Landlord's performance under the Lease.
(x) Copies of any pleadings or demands of any claims brought
against Seller which were pending the last eighteen (18) months.
(b) At all reasonable times prior to the Closing, Purchaser,
its officers, employees, agents, attorneys, accountants, architects and
engineers shall be entitled, upon reasonable notice to Seller and during normal
business hours: (i) to enter the Property to perform whatever inspections and
tests of the Property, including, without limitation, inspections and tests of
all structural and mechanical systems within the Improvements, that Purchaser,
in its sole discretion, deems necessary or appropriate (including, but not
limited to, engineering, soil boring, asbestos and environmental tests and
inspections); and (ii) to examine and copy any and all books and records
maintained by Seller or its agents' relating to the receipts and expenditures
pertaining to the Property for the three (3) most recent calendar years and the
current calendar year. Purchaser agrees to indemnify and hold harmless Seller
from all loss, cost and expense resulting from any actual damage to persons or
to the Property as a result of the inspections or tests performed under clause
(i) above.
(c) Seller shall update the documents described in Paragraph
4(a)(i) periodically prior to closing to the extent Seller has knowledge of
previously undisclosed matter which affect title.
5. PURCHASER'S CONDITIONS. Seller covenants that on or before
the date of the Closing (the "Closing Date"), Seller, at its sole cost and
expense, will have obtained all required consents, releases, conveyances and
permissions and will have complied with all applicable
6
7
statutes, laws, ordinances and regulations of every kind and nature, to the
extent necessary and/or required, in order to convey to Purchaser title to the
Property subject only to the Permitted Exceptions (as defined in Section
6(b)(i)). In addition to any other conditions contained herein, and
notwithstanding anything to the contrary contained herein, Purchaser's
obligations to purchase the Property shall be expressly conditioned upon the
fulfillment of each of the following conditions precedent on or before the
Closing Date:
(a) Purchaser's receipt of final approvals by the requisite
governmental agencies of tax increment financing in an amount and on
terms satisfactory to Purchaser in its sole discretion;
(b) All of Seller's representations and warranties contained
in this Agreement shall have been true and correct when made and shall
be true and correct as of the Closing Date; and
(c) Seller shall have performed all of its covenants,
undertakings and obligations, and shall have complied with all
conditions, required by this Agreement to be performed or complied with
by Buyer at or prior to Closing.
In the event any of the aforesaid conditions are not satisfied
on or before the Closing Date, Purchaser shall have the right, in addition to
any other rights or remedies set forth herein, to terminate this Agreement. In
addition, to the extent Purchaser has a pending application for tax increment
financing which if granted would be acceptable to Purchaser and such application
is scheduled for final action on or prior to April 30, 1997, Purchaser shall
have the right to extend the Closing Date by notice to Seller to a date no later
than May 7, 1997.
6. CLOSING. (a) The Closing shall occur at the offices of
XxXxxxx Xxxxx & Xxxxx or Chicago Title and Trust Company in Chicago, Illinois on
the date which is the latter of (x) April 2, 1997 or (y) the earlier of May 7,
1997 or five (5) business days after satisfaction of the condition in Paragraph
5(a) above ("Closing Date"). Purchaser, at Purchaser's sole option, shall have
the right to extend the Closing Date for an additional thirty (30) day period by
(i) notifying Seller of such extension and (ii) depositing in the Escrow
Additional Xxxxxxx Money of One Hundred Thousand and 00/100 Dollars
($100,000.00). Purchaser shall receive possession of the Property on the Closing
Date. The Closing shall be conducted through a customary "New York style"
closing escrow the cost of which shall be divided equally between Seller and
Purchaser.
(b) At the Closing (or earlier as specified below), Seller
shall, at its sole cost and expense (except as otherwise provided herein),
deliver or cause to be delivered to Purchaser the following, in each case in
form and substance acceptable to Purchaser:
(i) A recordable warranty deed executed by the owner of the
fee title to the Land and the Improvements and conveying the Real
Property to Purchaser subject only to those matters delineated on
Schedule 6(i) attached hereto and those matters approved by
7
8
Purchaser in writing prior to the expiration of the Review Period (the
"Permitted Exceptions").
(ii) A xxxx of sale executed by the Seller, assigning,
conveying and warranting to Purchaser title to the Personal Property
free and clear of all liens, claims and encumbrances.
(iii) An assignment of the Assigned Contracts executed by
Seller in favor of Purchaser.
(iv) An assignment of the Leases executed by the Seller in
favor of the Purchaser.
(v) Estoppel certificates from all Tenants occupying premises
at the Real Property in excess of 2,500 square feet together with
estoppel certificates from eighty percent (80%) of the Tenants
occupying premises at the Real Property which are not in excess of
2,500 square feet, all in form and substance reasonably satisfactory to
Purchaser and, in any event, stating that Seller is not in default
under the applicable Lease. To the extent that Seller is unable to
deliver an estoppel certificate from a Tenant, Seller shall deliver its
unqualified estoppel certificate with respect to such Tenant. Seller's
obligation respecting any unqualified estoppel certificate delivered by
it shall cease upon delivery of an estoppel certificate from the
respective Tenant.
(vi) An assignment of Guarantees, Warranties, Licenses and
Permits executed by Seller in favor of Purchaser.
(vii) Original copies of all of the Leases and Assigned
Contracts, certified by Seller to be true, correct, complete and in
full force and effect as of the date of the Closing.
(viii) Original copies of all of the guarantees, warranties,
licenses' and permits relating to the Property, certified by Seller to
be true, correct, complete and in full force and effect as of the date
of the Closing.
(ix) An affidavit of title executed by Seller in favor of
Purchaser.
(x) A completed FIRPTA affidavit executed by Seller in favor
of Purchaser.
(xi) A waiver and release from the Illinois Department of
Revenue of any claim that Purchaser has liability under the Illinois
Bulk Sales Acts (35 ILCS 5/902(d) (1992) and 35 ILCS 120/5j (1992)) by
reason of the transaction provided for herein (or an affidavit and an
indemnity from Seller (in form acceptable to Purchaser) that said
statutes are not applicable to this transaction).
8
9
(xii) All keys and master key patterns in the possession or
control of Seller to all locks located in the Property.
(xiii) An owner's title insurance policy ("Title Policy")
dated as of the Closing Date (covering the Real Property) issued by, at
Seller's option, either Chicago Title Insurance Company or Near North
Title Insurance Company (the "Title Company") in a form acceptable to
Purchaser. Said Title Policy shall: (A) show Purchaser as the insured
party, (B) provide for an insurance amount equal to the Purchase Price,
(C) contain no exceptions other than the Permitted Exceptions, (D)
contain extended coverage over the general exceptions, and (E) contain
the following endorsements: an endorsement eliminating the creditors'
rights exception; a contiguity endorsement (if applicable); a long form
3.1 zoning endorsement (including provisions for parking, loading docks
and handicapped access requirements); a survey endorsement; an access
endorsement; an endorsement insuring that there are no violations of
any covenants, conditions or restrictions of record; an endorsement
insuring that the Real Property includes only the tax parcel numbers
listed on the Title Policy and that none of said numbers covers
property other than the Real Property; and such other endorsements as
may be reasonably requested by Purchaser. Seller shall, at least thirty
(30) days prior to the Closing Date, deliver to Purchaser a commitment
from the Title Company to issue the aforesaid Title Policy.
(xiv) At least thirty (30) days prior to the Closing Date,
Seller shall deliver to Purchaser, five copies of an ALTA survey of the
Real Property (the "Survey"), dated no earlier than the date of this
Agreement. Said survey shall: (A) show all of the permitted Exceptions
(to the extent said items can be located by the surveyor) and (B) be
certified by an Illinois registered land surveyor as having been
prepared in compliance with the ALTA land survey standards, which
certification shall run to the benefit of Purchaser, the Title Company
and any other party designated by Purchaser.
(xv) Uniform commercial code searches against Seller in the
appropriate offices in the jurisdiction in which its principal office
is located and in the office of the Illinois Secretary of State,
showing no liens or security interests against or relating to the
Property, except for liens and security interests that will be released
in connection with the Closing (said searches shall be dated no earlier
than thirty (30) days prior to the date of the Closing).
(xvi) Such other documents or instruments as may be reasonably
requested by Purchaser in order to consummate the transaction
contemplated herein.
(c) At the Closing, each party shall deliver to the other
party the following documents in form and substance reasonably satisfactory to
the other party:
(i) A closing statement setting forth the adjustments and
prorations provided for in this Agreement; and
9
10
(ii) State, County and City transfer tax declarations.
7. PRORATIONS, ADJUSTMENTS AND EXPENSES. (a) The Purchase
Price for the Property shall be subject to prorations and adjustments to be
determined as of 12:01 a.m. on the date of the Closing. Such prorations and
adjustments shall be determined as follows:
(i) Purchaser shall receive a real estate tax proration credit
that is equal to the 1996 real estate taxes (payable in the year 1997,
to the extent said taxes have not yet been paid), for the period of
time ending on the date that is immediately preceding the date of the
Closing calculating this credit for the 1996 real estate taxes (payable
in the year 1997) on the basis of 107% of the 1995 real estate taxes
(payable in the year 1996).
(ii) Seller shall retain all rents paid prior to the Closing
Date and relating to the period prior to the Closing Date. Purchaser
shall receive a credit for any rent collected under the Leases prior to
the Closing Date which is payable for or relates to any period from and
after the Closing Date. Any portion of any rents collected subsequent
to the Closing Date and allocable to periods prior to the Closing Date
shall be promptly paid by Purchaser to Seller. Seller shall pay to
Purchaser, promptly upon its receipt, all rents, if any, that it
receives from the Tenants after the Closing Date to the extent such
rents are applicable to periods after the Closing Date. For purposes
hereof, rents collected subsequent to the Closing Date shall first be
applied to such Tenant's current rent obligations and then to past rent
obligations. All security deposits paid to Seller by Tenants and not
theretofore applied and to which Seller has given notice to Tenant
thereof, together with any interest earned thereon to the extent such
interest is payable to Tenants, shall be credited to Purchaser at the
Closing.
(iii) Seller shall cause the meters for utilities to be read
on the date that is immediately preceding the Closing Date and Seller
shall pay the bills rendered on the basis of such readings, and
Purchaser shall be responsible for all utilities from and after the
date of the Closing. If any such meter reading for any utility is not
available, then the adjustment therefor, shall be calculated on the
basis of the most recently; issued bills therefor which are based on
meter readings no earlier than thirty (30) days prior to the date of
the Closing, which adjustment shall be final. On the Closing Date and
provided such deposits are assigned by Seller to Purchaser, Seller
shall receive a credit in an amount equal to all deposits, if any, made
by Seller as security to any utility company and which will remain on
deposit for the benefit of Purchaser subsequent to the Closing. Utility
charges to be paid by Tenants shall be collected by the party in
possession of the Property and the parties shall allocte such
collections within sixty (60) days afer closing based upn the number of
days each party owned the Property.
(iv) Charges payable under the Assigned Contracts shall be
prorated.
10
11
(v) All expenses relating to the Property shall be prorated
and to the extent applicable to the period prior to the Closing Date
and prior, paid by Seller (or if not then due and payable, credited to
Purchaser at the Closing).
(b) Seller shall pay: (i) all State and County transfer taxes;
(ii) the cost of the Survey; (iii) the premium for the Title Policy; (iv) the
cost of recording any mortgage releases; and (v) one-half (1/2) of the Title
Company's closing charges and fees. Purchaser shall pay (i) one-half (1/2) of
the Title Company's closing charges and fees; and (ii) the recording fees for
recording the deed to Purchaser; and (iii) City transfer taxes.
8. OPERATION AND MAINTENANCE OF THE PROPERTY. Seller covenants
and agrees that, from and after the date of this Agreement and until the Closing
Date it will:
(a) subject to the terms and provisions of this Agreement,
operate and maintain the Property in good condition and repair and in
the same manner as currently being operated and shall deliver the
Property at the Closing in the same condition as exists as of the date
of this Agreement, subject to ordinary wear and tear;
(b) maintain in full force and effect the insurance coverage
that is presently maintained on the Property; and
(c) not enter into any new Lease or Contract affecting any
portion of the Property (that will continue in affect after the
Closing) nor modify, amend, extend, terminate, cancel or grant
concessions regarding any existing Lease or Contract except as approved
by Purchaser in writing (with respect to any such new Leases that are
approved by Purchaser, Purchaser shall be responsible for the payment
of any leasing commissions and tenant improvement costs expressly
agreed to by Purchaser at the time the Lease is approved; any such
Lease or Contract that is approved shall constitute a Lease or an
Assigned Contract, as the case may be). Notwithstanding the above,
Seller may extend or renew existing tenancies for up to six (6) months
on such financial terms as are not less than those being renewed or
extended.
9. CASUALTY LOSS. If the Property shall be damaged by fire,
windstorm, hail, explosion or other casualty before the Closing to the extent of
Three Hundred Thousand and 00/100 Dollars ($300,000.00) or more, Seller shall
promptly notify Purchaser in writing of such event and Purchaser may, within
five (5) business days after receipt of such notice, elect to terminate this
Agreement by delivery of written notice to Seller and SECTION 1 L(A) of this
Agreement shall govern the rights and obligations of both Seller and Purchaser
hereunder. If Purchaser does not elect to terminate this Agreement as aforesaid:
(a) Purchaser and Seller shall proceed to consummate the transaction hereunder
and (b) all proceeds of insurance payable to Seller by reason of such damage
(plus any insurance deductible amount) shall be paid or assigned to Purchaser at
the Closing. If such damage or casualty is less than Three Hundred Thousand and
00/100 Dollars ($300,000.00), Seller shall promptly notify Purchaser in writing
of such event and Seller shall immediately repair such damage at Seller's sole
cost and expense and Purchaser shall
11
12
have no right to terminate this agreement by reason of such damage or casualty
costing less than Three Hundred Thousand and 00/100 Dollars ($300,000) to
repair.
10. CONDEMNATION. If prior to the Closing Seller receives
notice of a condemnation (or threatened condemnation) affecting the Property),
Seller shall give Purchaser written notice of such condemnation, and Purchaser
may, within five (5) business days after receipt of such notice elect to
terminate this Agreement by delivery of written notice to Seller and SECTION
11(a) of this Agreement shall govern the rights and obligations of both Seller
and Purchaser hereunder. If, however, Purchaser does not elect to exercise its
option to terminate this Agreement as aforesaid then this Agreement shall remain
in full force and effect, in which case Purchaser shall receive an assignment of
all rights that Seller may have in connection with the condemnation.
11. FAILURE TO CLOSE/DEFAULT. The following provisions shall
govern the rights of the parties hereto in the event that the transaction
contemplated hereby fails to close pursuant to the terms hereof:
(a) In the event that either Seller or Purchaser has
terminated this Agreement pursuant to a right to do so contained herein
and neither party is in default hereunder (a "Permitted Termination"),
the Agreement shall be of no further force or effect and neither party
hereto shall have any further obligation or liability one to the other
hereunder, and the Xxxxxxx Money, together with any and all interest
earned thereon, shall be promptly returned to Purchaser. Purchaser
shall return to Seller any documents received by Purchaser.
(b) If prior to the Closing, Seller fails to perform all of
its obligations under this Agreement in strict accordance with their
terms for any reason (except for a Permitted Termination and except as
may arise as a result of the default of Purchaser), Seller shall be in
default under this Agreement and Purchaser shall be entitled to a
return of the Xxxxxxx Money. together with any and all interest earned
thereon and an additional amount equal to the Xxxxxxx Money as
lliquidated damages, or the remedy of specific performance or if any of
the representations or warranties of Seller contained herein shall not
be true and correct as of the Date of this Agreement or on the Date of
Closing, and the Closing has occurred, Purchaser shall be entitled to
Purchaser's actual damages occasioned from such breach of
representation or warranty, but not to exceed twice the mount of the
Xxxxxxx Money.
(c) In the event that Purchaser fails to perform all of its
obligations under this Agreement in strict accordance with their terms
for any reason (except for a Permitted Termination and except as may
arise as a result of the default of Seller), Purchaser shall be in
default under this Agreement and, in such event, Seller shall be
entitled to the Xxxxxxx Money, together with any interest earned
thereon, as Seller's sole and exclusive remedy against Purchaser. The
parties agree that Seller's actual damages would be difficult (if not
impossible) to determine and the Xxxxxxx Money is the best estimate of
the amount of
12
13
damages that Seller would incur if Purchaser defaults hereunder.
Forfeiture of the Xxxxxxx Money in consequence of Purchaser's default
represents damages and not any penalty against Purchaser.
12. NOTICES. Any notices or other documents required or
permitted to be given under the terms of this Agreement shall be deemed
delivered when received, if personally delivered, upon receipt of a telecopy or
one (1) business day after delivery thereof to a nationally recognized overnight
delivery service which provides a receipt of service, addressed to the parties
as follows:
If to Seller:
Realty Refund Trust
x/x Xxx Xxx-Xxxxxxx Xxxxxxxxxx Xxxxxxxxxxx
0000 Xxxxx Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxx
Telecopy Number: (000) 000-0000
Confirmation Number: (000) 000-0000
with a copy to:
Berick, Xxxxxxxx & Xxxxx Co. L.P.A.
1350 Xxxxx Center
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy Number: 216/861-4929
Confirmation Number: 216/861-4900
If to Purchaser:
Xxxx XX Realty Group, Inc.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telecopy Number: (000) 000-0000
Confirmation Number: (000) 000-0000
13
14
with a copy to:
XxXxxxx Xxxxx & Xxxxx
000 Xxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Telecopy Number: (000)000-0000
Confirmation Number: (000) 000-0000
or to such other address as shall be specified by like notice.
13. INDEMNIFICATION. Seller hereby agrees to indemnify
Purchaser and its successors, assigns, affiliates, directors, officers,
employees and partners, and defend (with counsel reasonably acceptable to
Purchaser) and hold each of them harmless from any and all claims, liabilities,
damages, and penalties and any and all loss, cost, or expense incurred by any of
the foregoing, incident to resulting from, or in any way arising out of (a) any
tort claim or breach of contract claim or other claim for money due and owing in
connection with the ownership or operation of the Property to the extent that
such claim arises from acts or omissions which occurred on or prior to the
Closing Date, (b) any breach of any representation, warranty or covenant of
Seller contained herein or in any of the documents executed in connection
herewith, but only to the extent provided in Section 11(b)) hereof and if claim
is made within the time limits set forth in Section 3 hereof, and (c) the
violation of any Environmental Law and/or any act, event or condition,
including, without limitation, the presence, migration or release of any
Hazardous Material on or from the Real Property into the indoor or outdoor
environment at any time on or prior to the Closing Date. Except for reporting
obligations which would be satisfied by an engineer's report for the building,
Purchaser hereby agrees to indemnify Seller and its successors, assigns,
affiliates, directors, officers, employees and partners and defend (with counsel
reasonably acceptable to Seller) and hold each of them harmless from any and all
claims, liabilities, damages, and penalties and any and all loss, costs, or
expense incurred by any of the foregoing incident to, resulting from, or in any
way arising out of (i) any tort claim or breach of contract claim or other claim
for money due and owing in connection with the ownership or operation of the
Property to the extent that such claim arises from acts or omissions which
occurred after the Closing Date, (ii) any breach of any representation, warranty
or covenant of Purchaser contained in this Agreement or in any of the documents
executed in connection herewith and (iii) the violation of any Environmental Law
and/or any act, event or condition, including, without limitation, the presence,
migration or release of any Hazardous Material on or from the Real Property into
the indoor or outdoor environment at any time after the Closing Date.
14. BROKERS. The parties respectfully represent to each other
that they have not dealt with any broker, finder or any other similar person in
connection with the sale of the Property other than Xxxxx & Xxxxx, Xxxxxxx
Souyoul Properties, Inc. and C B Commercial ("Transaction Brokers"). Seller and
Purchaser hereby, indemnify the other and their affiliates for any loss, cost,
damage, claim or expense (including, but not limited to, attorneys' fees)
related to
14
15
representation and warranty by the party making the warranty. Seller covenants
and agrees to pay, at Closing. any fee, commission or any other payment that is
due to the Transaction Brokers in connection with the transactions contemplated
herein.
15. FURTHER ASSURANCES. Seller shall, from time to time, at
Purchaser 's request and without further consideration, execute and deliver or
cause to be executed and delivered such other instruments of conveyance and
transfer and take such other actions as Purchaser may reasonably require to more
effectively convey, transfer and vest in Purchaser title to, and to put
Purchaser in possession of, the Property.
16. ASSIGNMENT. Seller shall not assign any of its rights
under this Agreement without the prior written consent of Purchaser. Purchaser
shall have the right to assign this Agreement to any entity now existing or
hereafter organized, provided that Purchaser gives Seller written notice of any
such assignment.
17. CONFIDENTIALITY. Seller and Purchaser hereby covenant and
agree that, except as required by law, they will not disclose the terms and
conditions of this Agreement (including, but not limited to, the Purchase Price)
to any other person or entity without obtaining the prior written consent of the
other party hereto to such a disclosure. Notwithstanding the foregoing, Seller
and Purchaser acknowledge and agree that certain disclosures to its counsel,
consultants and certain other of its agents will be necessary in order to
perform their respective obligations under this Agreement.
18. COSTS OF ENFORCEMENT. In the event that any action or
proceeding is brought in connection with this Agreement, the prevailing party in
such action or proceeding shall be entitled to have all of its court costs,
attorneys' and paralegals' fees and expenses, expenditures for documentary and
expert evidence, stenographers' charges and all other costs and expenses
incurred in connection with such action or proceeding paid by the nonprevailing
party in such action or proceeding.
19. BINDING EFFECT. This Agreement and all of the provisions
contained herein (including, without limitation the representations and
warranties set forth in Section 3 hereof) shall survive the Closing and be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns.
20. ENTIRE AGREEMENT. This Agreement, including the attached
exhibits, embodies the complete agreement of the parties hereto with respect to
the subject matter hereof, and cannot be altered, amended or modified except by
their written agreement.
21. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois.
22. TIME. Time is of the essence of this Agreement and each
and every provision hereof. If the performance of any obligation required
hereunder or the last day of any
15
16
time period determined in accordance with the terms and provisions of this
Agreement is to occur on a Saturday, Sunday or legal holiday under the laws of
the State of Illinois then the day on which the performance of any such
obligation is to occur or the last day of any such time period, as the case may
be, shall be extended to the next succeeding business day.
23. CONSTRUCTION. This Agreement shall not be construed more
strictly against one party hereto than against the other party merely by virtue
of the fact that it may have been prepared primarily by counsel for one of the
parties. It is understood and recognized that both parties have contributed
substantially and materially to the preparation of this Agreement.
24. SEVERABILITY. In the event that any of the covenants,
agreements, terms or provisions contained in this Agreement shall be invalid,
illegal or unenforceable in any respect, the validity of the remaining
covenants, agreements, terms and provisions contained herein shall not be in any
way affected, prejudiced or disturbed thereby.
25. SECTION HEADINGS. The section headings contained herein
are for convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions contained herein.
26. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, any or all of which may contain the signature of only one of
the parties, and all of which shall be construed together as a single
instrument.
27. DATE OF THE AGREEMENT. The date of this Agreement shall be
deemed to be the date first above written.
28. DECLARATION OF TRUST. The name Realty ReFund Trust is the
designation of the Trust created under a Declaration of Trust dated April 28,
1971, as amended, and all persons dealing with Realty ReFund Trust must look
solely to the Trust property for the enforcement of any claims against Realty
ReFund Trust as none of the Trustees, officers, employees, agents or security
holders of Realty ReFund Trust assume nor have any personal liability for
obligations entered into on behalf of Realty ReFund Trust, and their respective
individual properties shall not be subject to any claims of any person in
respect of any such liability.
16
17
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year set forth above.
PURCHASER:
XXXX XX REALTY GROUP, INC., as agent
for the Purchaser
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
----------------------------------------
Its: President
-----------------------------------------
SELLER:
REALTY REFUND TRUST
By: /s/ Xxxx X. Xxxxxx
------------------------------------------
Name: Xxxx X. Xxxxxx
----------------------------------------
Its: Chairman
-----------------------------------------
17
