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EXHIBIT 10.5
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT (this "Agreement") is made and
entered into as of the 15th day of September, 1997 by and between Furniture
Comfort Corporation, a Delaware corporation ("Purchaser"), and American National
Bank and Trust Company, not personally, but solely as Trustee under Trust
Agreement dated July 17, 1978, and known as Trust No. 43449 ("Seller").
UNDERSTANDINGS
Seller is the legal owner of the real estate commonly known as 0000
Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxx Xxxxxx, Xxxxxxxx, legally described on Exhibit
A attached hereto and made a part hereof, together with any and all improvements
thereon, and all of the rights, privileges, easements, and appurtenances
thereunto belonging or anywise appertaining (said real estate and all of said
improvements, rights, privileges, easements and appurtenances are sometimes
hereinafter collectively called the "Premises").
Purchaser agrees to purchase the Premises from Seller and Seller agrees
to sell the Premises to Purchaser upon and subject to the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the Understandings, the mutual
covenants, agreements, representations and warranties set forth herein, and for
other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Seller agrees to sell to Purchaser, and Purchaser agrees to
purchase from Seller, the Premises at the price and upon the covenants, terms,
provisions and conditions herein set forth.
2. (a) The total purchase price for the Premises shall be Two
Million Five Hundred Fifty Thousand ($2,550,000) Dollars ("Purchase
Price"). Purchaser shall pay ten percent (10.0%) of the purchase price
as xxxxxxx money ("Xxxxxxx Money") within two business days after
Seller's acceptance of this Agreement. Purchaser shall pay the balance
of the Purchase Price, plus or minus prorations, at the Closing
(defined below) in cash, by cashier's or certified check or by wire
transfer of immediately available funds.
(b) The Xxxxxxx Money shall be held in a joint-order escrow
by the Title Company (defined below) for the mutual benefit of the
parties and shall be invested in an interest-bearing account until
Closing or earlier termination of this Agreement. All interest earned
on the Xxxxxxx Money shall be paid or credited to Purchaser at Closing
or earlier termination of this Agreement, unless otherwise specifically
provided herein.
3. Purchaser shall have the right to assign this Agreement to an
affiliate provided that Purchaser remains liable for performance hereof or to
designate a nominee as the grantee under
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the deed (collectively "Purchaser's Nominee"). Seller shall convey to Purchaser
or to Purchaser's Nominee good and marketable title to the Premises by stamped
and recordable Trustee's Deed. Seller, at Seller's expense, shall deliver or
cause to be delivered to Purchaser on the Date of Closing (defined below) an
Owner's Title Insurance Policy ("Title Policy") ALTA Form B-1990 (or such
successor form then in use) with extended coverage over each of the general
exceptions and with any of the following endorsements reasonably requested by
Purchaser based upon Purchaser's analysis of the Survey (defined below) and
Title Commitment (defined below): zoning, survey, access, location, and
contiguity. The Title Policy shall be issued by a national title insurance
company acceptable to Purchaser ("Title Company") in the amount of the Purchase
Price insuring title to the Premises in Purchaser or Purchaser's Nominee subject
only to those title matters which are described on Exhibit B attached hereto and
made a part hereof ("Permitted Title Exceptions").
4. Within thirty (30) days after Seller's execution and delivery
to Purchaser of this Agreement, Seller, at no expense to Purchaser, shall
deliver to Purchaser a Plat of Survey ("Survey") of the Premises, made
subsequent to the date hereof, certified to the Title Company, Purchaser and any
other party or parties designated by Purchaser by an Illinois Registered Public
Surveyor acceptable to Purchaser as having been made in compliance with Illinois
Land Survey Standards and American Land Title Association (ALTA) Standards. The
Survey shall certify and indicate the following:
(a) monuments placed at all major corners of the
Premises;
(b) the location of all building lines and the building
restrictions on the Premises;
(c) the location of all improvements on the Premises and
all utilities serving the Premises and the location of all easements
benefiting and burdening the Premises;
(d) all improvements on the Premises are located within
the Premises and are in conformity with any applicable building or set
back lines;
(e) no improvements on the Premises are constructed over
any easements, roads or ways;
(f) no encroachments on the Premises from improvements on
adjoining property;
(g) access to the Premises from public roads and ways;
(h) parking areas and number of parking spaces;
(i) the square footage of all buildings and the number of
acres of the Premises, calculated to the nearest one-thousandth (.001)
acre; and
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(j) the location and square footage area of any portion
of the Premises located within the 100-Year Flood Plain as designed by
the Federal Emergency Management Agency (or other governmental or other
agency having jurisdiction over the Premises).
Purchaser shall have ten (10) business days after receipt of the Survey to
review and approve or disapprove any matters shown on the Survey which were not
shown on the copy of that certain survey of the Premises last dated November 9,
1979 prepared by National Survey Service, Inc. If Purchaser does not notify
Seller in writing of its disapproval within said ten (10) business days, then
Purchaser shall be deemed to approve the Survey.
5. Within fifteen (15) days after Seller's execution and delivery
to Purchaser of this Agreement, Seller shall deliver to Purchaser a commitment
for the Title Policy ("Title Commitment"), together with a copy of all documents
of record and all exceptions to title shown, listed or described in the Title
Commitment which will not be removed or waived at or prior to closing. Purchaser
shall have ten (10) business days after delivery of the Title Commitment and
documents of record to review and approve or disapprove of any unpermitted title
exceptions in the Title Commitment and documents of record. If Purchaser does
not notify Seller in writing of its disapproval within said ten (10) business
days, then Purchaser shall be deemed to approve the Title Commitment. Purchaser
hereby acknowledges receipt of the documents of record underlying the Permitted
Title Exceptions numbered 3 through 9 on Exhibit B.
The Title Commitment shall be issued by the Title Company in the amount
of the Purchase Price, dated on or after the date hereof, showing title to the
Premises in Seller subject only to (a) the Permitted Title Exceptions and (b)
title exceptions pertaining to liens or encumbrances of a definite or
ascertainable amount which shall be removed by the payment of money on or before
the Date of Closing. If the Title Commitment or the Survey discloses any title
exceptions or Survey defects other than the title exceptions described in this
paragraph, Seller shall have thirty (30) days to have all of such exceptions
waived or otherwise removed from the Title Commitment or the Survey and to
deliver to Purchaser evidence reasonably acceptable to Purchaser that the
unpermitted title exceptions have been waived or otherwise removed from the
Title Commitment or the Survey. If Seller fails to have such exceptions waived
or otherwise removed from the Title Commitment or the Survey within such thirty
(30) day period, Purchaser, by giving notice to Seller, may either (i) terminate
this Agreement or (ii) elect (A) to extend the period during which Seller may
have the unpermitted title exceptions waived or otherwise removed from the Title
Commitment or the Survey, which extension shall be for a period of time
reasonably determined by Purchaser (based upon the nature of unpermitted title
exceptions and upon the surrounding circumstances) to be necessary to allow
Seller to have the unpermitted title exceptions waived or removed from the Title
Commitment or the Survey and to deliver to Purchaser evidence, reasonably
acceptable to Purchaser, that the unpermitted title exceptions have been waived
or otherwise removed from the Title Commitment or the Survey, or (B) to take the
title as it then is with the right to deduct from the Purchase Price liens and
encumbrances of a definite or ascertainable amount. The Title Commitment shall
be conclusive evidence of good title as therein shown as to all matters insured
by the policy, subject only to exceptions as therein stated.
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6. Purchaser's obligation to purchase the Premises is contingent
upon Purchaser's approval, within ten (10) business days after Seller's
acceptance of this Agreement, of the condition of the Premises and Purchaser's
proposed use of the Premises. If any of the foregoing are not acceptable to
Purchaser, Purchaser, within the time periods provided above in its sole and
absolute discretion and for any reason whatsoever, may terminate this Agreement.
In such event, Purchaser shall deliver to Seller copies of all inspection
reports, tests, surveys and studies of the Premises performed or obtained by
Purchaser and any originals thereof previously delivered to Purchaser by Seller.
In such event, this Agreement shall be of no further force or effect, the
Xxxxxxx Money, if any, shall be refunded to Purchaser, and all rights and
obligations of the parties under this Agreement shall terminate.
Seller hereby agrees that, at any time during the term of this
Agreement, Purchaser and the agents, employees and representatives of Purchaser
may enter upon the Premises and make, at Purchaser's sole cost, risk and
expense, any and all inspections, tests, surveys and studies of the Premises
which Purchaser may desire. In the event Purchaser does not purchase the
Premises in accordance with the terms and conditions of this Agreement,
Purchaser agrees to restore any alterations or damage to the Premises caused by
Purchaser or its agents, employees or representatives to its original condition.
Purchaser hereby agrees to indemnify and save Seller harmless from and against
any and all damages, costs, injuries and liabilities arising out of Purchaser's
rights and activities under this paragraph.
7. Seller and Seller's beneficiary represent and warrant to and
covenant with Purchaser that on the date hereof and on the Date of Closing:
(a) Seller has good and marketable title to the Premises,
subject only to the Permitted Title Exceptions.
(b) Seller's beneficiary has not received notice or
service of process of any suits or judgments against the Premises or
Seller or its beneficiary arising out of, and Seller and its
beneficiary have not received any notice of any violations of or
otherwise to the best of their actual knowledge, without inquiry, have
any knowledge of, any zoning, building, fire, health, pollution,
environmental protection or waste disposal ordinance, code, law, rule,
requirement or regulation relating to or at the Premises which has not
been heretofore corrected.
(c) Seller's beneficiary has not received notice or
service of process or, to the best of Seller's and Seller's
beneficiary's actual knowledge and belief, without inquiry, there are
no threatened condemnation, eminent domain or similar proceedings, oil
and gas exploration operations or assessments affecting the Premises or
any portion thereof, administrative hearings or governmental
requirements or other matters which might have a material adverse
impact on the ownership, operations or value of the Premises or any
part thereof, nor, to the best of Seller's beneficiary's actual
knowledge and belief, without inquiry, are any such proceedings,
operations, assessments, hearings, requirements or other matters
contemplated by any person or entity whatsoever.
(d) There are no parties in possession of the Premises
other than Seller.
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(e) All bills for work done or materials furnished for
any work at the Premises have been paid in full.
(f) To the best of their actual knowledge, without
inquiry, no portion of the Premises has been designated as wetlands by
the United States Army Corps of Engineers or by any other governmental,
quasi-governmental or other firms, agency or authority having
jurisdiction over the Premises, or any portion thereof, with respect to
such matters.
(g) There are no unrecorded liens or encumbrances against
any portion of the Premises which will not be removed or satisfied on
or prior to the Date of Closing.
(h) Neither Seller nor any beneficiary, agent or employee
of Seller has received any notice or to the best of their actual
knowledge, without inquiry, is otherwise aware that the assessed value
of any portion of the Premises for the purpose of determining real
estate taxes for the calendar year 1997 or any subsequent year has been
increased over the assessed value for any such portion of the Premises
for the years 1995 and 1996. Seller further represents that neither
Seller nor any beneficiary, agent or employee of Seller has any actual
knowledge or information, without inquiry, of any pending or
contemplated proceedings for public improvements which could or might
result in the levy of a special tax or assessment against any portion
of the Premises.
(i) This Agreement has been duly authorized, executed and
delivered by the Seller and is binding upon Seller in accordance with
its terms; all requisite action has been taken by Seller and Seller's
beneficiary to enable it legally to fulfill the obligations incurred by
it under the provisions of this Agreement.
(j) Other than the Declaration of Covenants and
Restrictions and Ordinance No. 97-29 concerning the Special Use Permit
adopted by the Village of Bannockburn disclosed to Purchaser by Seller,
neither Seller nor any beneficiary, agent or employee of Seller has
entered into, or has any actual knowledge, without inquiry, of or
information regarding, which has not been disclosed to Purchaser in
writing, any specific agreements with any governmental authority having
jurisdiction over the Premises, or any portion thereof, which would
limit or otherwise affect the development, use, occupancy or value of
the Premises.
(k) Seller's beneficiary has not used, treated, stored,
generated or disposed and shall not use, treat, store, generate or
dispose of Hazardous Substances (defined below) on, in or under the
Premises or any portion thereof (above or below ground), and Seller and
Seller's beneficiary have no actual knowledge that any current owner or
occupant used, treated, stored, generated or disposed of such Hazardous
Substances thereon. To the best of Seller's beneficiary's actual
knowledge, without inquiry other than that certain Phase I
Environmental Assessment dated July 30, 1997 prepared by Xxxxxxx
Environmental, Inc. as No. 9574A ("Environmental Report"), the Premises
and the use and operation of the Premises are not in violation of any
Environmental Law (defined below), and no Hazardous Substances are
currently located on, in or under the
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Premises or any portion thereof. Seller's beneficiary has not used the
Premises for or as a sanitary landfill or dump. To Seller's
beneficiary's actual knowledge, without inquiry, no underground storage
tank or tanks are located on or under the Premises. No underground
storage tanks are or have been installed by Seller's beneficiary on or
under the Premises. Seller's beneficiary shall indemnify and hold
Purchaser harmless from and against a breach by Seller's beneficiary of
any of the representations or warranties set forth in this subparagraph
(k). Such indemnity shall include any and all losses, liabilities,
damages, injuries, costs, expenses and claims of any and every kind
whatsoever paid, incurred or suffered by or asserted against Purchaser
for, with respect to, or as a direct or indirect result thereof
including, without limitation, any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, the Resource Conservation and Liability Act of 1980,
as amended, the Resource Conservation and Recovery Act, as amended, any
so-called "Superfund" or "Superlien" law, or any other Federal, state
or local statute, law, ordinance, code, rule, regulation, order or
decree regulating, relating to or imposing liability or standards of
conduct concerning any Hazardous Substances by reason of such breach.
For purposes of this Agreement, "Hazardous Substances" means and
includes any waste, asbestos, polychorinated biphenyl compounds,
petroleum products, pesticides or toxic or hazardous substances or
materials of any kind any of which are defined as "hazardous
substances" or "toxic substances" or treated as such in or for purposes
of the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, or the Resource Conservation and Recovery Act,
as amended, or any so-called "Superfund" or "Superlien" law, or any
other Federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic or
dangerous waste, substance or material, as now or at any time
hereinafter in effect ("Environmental Laws"). The indemnification
hereunder shall include Purchaser and Purchaser's permitted assignees
under Section 3.
(l) The Premises is being sold to Purchaser in "as is,"
"where is" condition.
8. All representations, warranties and covenants made herein, and
in any certificates delivered pursuant hereto, shall be deemed remade as of the
Date of Closing and shall be true and correct on the Date of Closing and shall
be deemed to be material and to have been relied upon by the parties,
notwithstanding any investigation or other act of Purchaser heretofore or
hereafter made, and shall survive the Closing for a period of nine months months
from the Date of Closing. The obligations of Purchaser under this Agreement are
expressly conditioned upon the representations and warranties of Seller being
true and correct as of the Date of Closing.
9. The obligations of Purchaser are conditioned upon and subject
to the satisfaction (or waiver by Purchaser) of each of the following
conditions:
(a) Seller shall have performed and complied with all
agreements, covenants and conditions to be performed or complied with
prior to the Date of the Closing.
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(b) Purchaser shall have received a certificate executed
by Seller to the effect that the representations and warranties made by
Seller to Purchaser are true and correct in all material respects on
and as of the Date of the Closing with the same effect as if such
representations and warranties had been made on and as of the Date of
the Closing.
(c) All procedures to be taken in connection with the
consummation of all transactions contemplated on the Date of Closing,
and all documents incident thereto, shall be in form and substance
reasonably satisfactory to Purchaser and its counsel, and Purchaser and
its counsel shall have received copies of all documents which Purchaser
or its counsel may reasonably request in connection with said
transactions.
10. Unless otherwise agreed upon by Purchaser and Seller, the sale
and purchase of the Premises covered by this Agreement (the "Closing") shall
occur by a closing through a "New York style" escrow (the "Escrow") at the
Chicago office of the Title Company in accordance with the general provisions of
the usual form of "New York style" Deed and Money Escrow Agreement then in use
by the Title Company with such special provisions inserted in the escrow
agreement as may be required to conform with this Agreement. The cost of the
Escrow and the New York style fee shall be split equally between Seller and
Purchaser. Payment of the Purchase Price and the delivery of the deed and other
closing documents shall be made through the Escrow. This Agreement shall not be
merged into any escrow agreement, but the latter shall be deemed auxiliary to
this Agreement. The provisions of this Agreement shall always be controlling as
between the parties hereto.
11. The "Date of Closing" shall be the later of (a) the day which
is forty-five (45) days after acceptance of this Agreement by Seller, (b) the
day which is twenty (20) business days after Purchaser has approved or waived
the Contingency set forth in paragraph 6, or (c) the day on which the Title
Company is prepared to issue its Title Insurance Policy insuring title to the
Premises in Purchaser or Purchaser's Nominee provided the terms and provisions
of this Agreement and the escrow agreement have been performed. Seller shall
deliver possession of the Premises to Purchaser on the Date of Closing
broom-clean and otherwise in the same condition and state as exists on the date
hereof, except as otherwise expressly provided herein.
12. General taxes, service contracts that Purchaser elects to
continue, and other similar items shall be adjusted ratably as of midnight of
the day immediately preceding the Date of Closing. If the amounts of the general
taxes for the year of proration are not available as of the Date of Closing, the
taxes shall be prorated on the basis of one hundred five percent (105%) of the
most recent ascertainable taxes provided that the assessed value of the Premises
for 1997 is not greater than the assessed value of the Premises for 1996. If it
is, then taxes will be prorated based on the formula used to calculate the 1996
taxes using the 1997 assessed value in place of the 1996 assessed value. Final
readings shall be taken on the day of or the day preceding the Date of Closing
on all utilities. Seller shall pay the amounts due pursuant to such final
readings, and Purchaser shall pay the amounts due thereafter. If Seller is
unable to obtain a final reading on water/sewer, the parties shall prorate such
expense based on the last ascertainable xxxx therefor and shall reprorate upon
receipt of a final xxxx therefor. Except as otherwise specifically provided
herein, all prorations shall be final. Seller shall pay the amount of any
stamp tax imposed by State or County law, and Purchaser shall pay the amount of
any
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stamped tax imposed by local ordinance if such tax is customarily payable by
purchasers. Seller shall furnish completed state, county and local real estate
transfer declarations signed by Seller or Seller's agent in the form required.
13. If Seller defaults in any of its obligations under this
Agreement or has otherwise violated, breached or failed to perform any of the
conditions, covenants, representations or warranties herein set forth, Purchaser
may demand the return of its Xxxxxxx Money, if any, and avail itself of all
remedies provided at law or in equity, including the right to xxx for specific
performance; in the event Purchaser elects to xxx for specific performance, the
Xxxxxxx Money shall remain on deposit with the Title Company or the court. If
Purchaser fails or refuses to perform its obligations hereunder, Seller may
avail itself of all remedies provided at law or in equity. Notwithstanding the
preceding sentence, in the event Purchaser has made an Xxxxxxx Money deposit
hereunder, Seller's sole remedy for Purchaser's default shall be the retention
of the Xxxxxxx Money as liquidated damages therefor, and thereafter, this
Agreement shall be null and void, and neither party shall have any further
liability to the other hereunder. Tender of deed or purchase price shall not be
necessary where the other party has defaulted. A failure to enter into an escrow
agreement or to make the deposits required thereunder shall be a default. If
either party to this Agreement takes any steps or brings any action to enforce
such parties' rights or remedies under this Agreement (whether or not litigation
is involved), the successful party shall be entitled to reimbursement from the
unsuccessful party of all fees, costs and expenses (including reasonable
attorneys' fees) incurred by such successful party in connection with such steps
or actions.
14. All notices and all other items herein permitted or required
to be provided or furnished by either party to the other party shall be in
writing and shall be (a) delivered in person, or (b) sent by private courier
guaranteeing next-day delivery, delivery charges prepaid, or (c) sent by United
States registered or certified mail, postage prepaid, return receipt requested,
or (d) delivered by facsimile, and, in any case, addressed to the respective
parties at the following addresses, or at such other address or addresses
designated in writing by the appropriate party:
(a) If to Seller to:
Banner Properties
000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Facsimile: 000-000-0000
Telephone: 000-000-0000
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with a copy to:
Xxxxx & Xxxxxxx, Ltd.
Xxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx
Facsimile: 000-000-0000
Telephone: 000-000-0000
(b) If to Purchaser to:
Furniture Comfort Corporation
c/o Futorian Furnishings
00 Xxxxxx Xxxxx, Xxxxx X
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
Telephone: 000-000-0000
with a copy to:
Vedder, Price, Xxxxxxx & Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: 000-000-0000
Telephone: 000-000-0000
Any notice permitted or required to be given shall be deemed to have been given
and any item permitted or required to be furnished shall be deemed to have been
furnished when personally delivered (which includes delivery by a private
courier guaranteeing next-day delivery) or three (3) business days after
delivery to a United States Post Office, properly addressed and with postage
prepaid, for delivery by United States registered or certified mail, or upon
transmittal if sent by facsimile provided the sender has received written or
oral confirmation that the notice or other item sent by facsimile has been
received. For purposes hereof, the term "business day" shall mean any calendar
day other than Saturday, Sunday or any other day on which banks in Chicago,
Illinois are authorized to close.
15. Purchaser and Seller represent that neither has dealt with any
broker or finder in connection with the transaction contemplated by this
Agreement, other than Colliers, Xxxxxxx & Kahnweiler, Inc., National Realty
Advisors, and Atlas Partners (collectively the "Broker"). At the Closing, Seller
shall pay a real estate commission to the Broker in an aggregate amount equal to
One Hundred Thirty-Two Thousand Five Hundred and No/100 ($132,500.00) Dollars.
At
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the Closing, Seller shall pay any and all other real estate commissions or other
payments in the nature of real estate brokerage commissions payable to the
Broker or any and all other brokers or other persons claiming such commissions
by, through or under Seller by reason of the sale and purchase of the Premises
or any other transaction contemplated by this Agreement.
16. If, prior to the Date of Closing, (a) any action, suit or
proceeding shall be instituted or contemplated for the purpose of condemning or
otherwise taking by eminent domain the Premises or any part thereof or limiting
the access to the Premises or any part thereof and the value of the Premises
affected thereby exceeds $50,000, or (b) all or any portion of the Premises is
damaged or destroyed by fire or casualty and the value of the Premises affected
thereby exceeds $50,000, then Purchaser may, at its option, by notice in writing
served upon Seller not more than 10 business days after Purchaser receives
notice of the occurrence of an event on either (a) or (b), elect to terminate
this Agreement, and thereupon, the Xxxxxxx Money, if any, shall be immediately
refunded to Purchaser, and this Agreement shall be cancelled and declared null
and void and of no force or effect. If Purchaser does not elect to terminate
this Agreement pursuant to this paragraph, Purchaser shall be entitled to
receive all awards or proceeds paid by reason of such condemnation or casualty,
and the parties shall thereafter continue to perform this Agreement pursuant to
the terms hereof. If the amount of any such awards or proceeds is not settled by
the Date of Closing, and if Purchaser does not elect to terminate this Agreement
pursuant to this paragraph, then at the Date of Closing Seller shall execute all
assignments of claim and other similar instruments in order that Purchaser
receive all of Seller's right, title and interest in and to such awards or
proceeds.
17. Time is of the essence of this Agreement. This Agreement shall
be binding upon and shall inure to the benefit of this parties hereto and their
respective heirs, personal representatives, successors and assigns.
18. This Agreement sets forth the entire understanding between the
parties, and the parties hereby represent that there are no oral covenants,
promises, agreements, conditions or understandings between them except as herein
stated. This Agreement may not be altered, amended, changed or modified, except
by a subsequent or contemporaneous agreement reduced to writing and signed by
all of the parties hereto.
19. This Agreement shall be governed and construed and enforced in
accordance with the laws of the State of Illinois.
20. No covenant, term or condition of this Agreement shall be
deemed to have been waived by either party, unless such waiver is in writing
signed by the party charged with such waiver, unless the passage of time is
deemed to be a waiver. If any term, covenant or condition of this Agreement or
the application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable shall not be affected thereby, and
each term, covenant or condition of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
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21. The offer to purchase the Premises made by Purchaser by the
delivery of an executed copy of this Agreement to the Seller shall automatically
terminate and expire at 5:00 p.m. C.S.T. on September ______, 1997, unless said
offer is sooner accepted by Seller's execution of this Agreement, or a
counterpart hereof, and by the return to Purchaser of a fully-executed copy of
this Agreement on or before the date and time aforementioned.
22. This Agreement is executed by American National Bank and Trust
Company of Chicago, not personally, but solely as Trustee under Trust Agreement
dated July 17, 1978 and known as Trust No. 43449 in the exercise of the power
and authority conferred upon and vested in it as such Trustee. All the terms,
provisions, stipulations, covenants and conditions to be performed by American
National Bank and Trust Company of Chicago are undertaken by it solely as
Trustee, as aforesaid, and not individually, and all statements herein made are
made on information and belief and are to be construed accordingly, and no
personal liability shall be asserted or be enforceable against American National
Bank and Trust Company of Chicago by reason of any of the terms, provisions,
stipulations, covenants and/or statements contained in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement at
Chicago, Illinois as of the dates set forth below.
Date of Offer: September 15, 1997 Date of Acceptance: Sept. 17, 1997
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PURCHASER: SELLER:
Furniture Comfort Corporation, American National Bank & Trust Company
a Delaware Corporation of Chicago, as Trustee under Trust
Agreement dated July 17, 1978 and known
as Trust No. 43449
By: /s/ XXXXXXXX X. XXXXXXX By: [SIG]
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Xxxxxxxx X. Xxxxxxx, Its: VP
Chairman and --------------------
Chief Executive Officer
The undersigned, sole beneficiary of Seller, hereby executes this
Agreement for the purpose of being bound by paragraph 7 of this Agreement.
Dated: 9/16/97 , 1997
-------------------
[BENEFICIARY]
By: [SIG]
-------------------------------
Its: a managing partner
-------------------------------
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EXHIBIT A
LEGAL DESCRIPTION
THAT PART OF THE SOUTH 351.04 FEET (AS MEASURED PERPENDICULARLY TO THE
SOUTH LINE THEREOF) OF THE SOUTH HALF OF THE SOUTH WEST QUARTER OF
SECTION 17, TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE 3RD P.M., LYING
EASTERLY OF THE EASTERLY LINE OF WAUKEGAN ROAD AS DESCRIBED IN DEED
RECORDED APRIL 8, 1964, AS DOCUMENT 1221390 AND LYING WESTERLY OF A
LINE DRAWN FROM A POINT 750.00 FEET (AS MEASURED ALONG THE SOUTH LINE
OF SAID SOUTH WEST QUARTER) EAST OF THE AFORESAID EASTERLY LINE OF
WAUKEGAN ROAD TO THE SOUTH EAST CORNER OF PROPERTY DESCRIBED IN
DOCUMENT 1221388, RECORDED APRIL 8, 1964, IN LAKE COUNTY, ILLINOIS.
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EXHIBIT B
PERMITTED TITLE EXCEPTIONS
1. General real estate taxes not yet due and payable for 1997 and
subsequent years.
2. The South East quarter of the South West quarter and part North East of
Road of the South West quarter of the South West quarter of Xxxxxxx 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the 3rd P.M., are subject to
annual benefits for the maintenance and repair of West Skokie Drainage
District under law Xxxxxx Xx. 0000, Xxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx
(provided that no installments are outstanding or delinquent).
3. Ditch and storm pipe lying diagonally across the land from about 26
feet West of the East corner of the land to about 220 feet Northerly of
the East corner of the land as disclosed by Survey No. 2678; dated
April 11, 1978, by National Services, Inc., and by Survey No. 104214,
dated November 9, 1979, by National Survey Services, Inc.
4. Declaration of covenants, restrictions and conditions contained in the
Instrument made by American National Bank and Trust Company of Chicago,
as Trustee under Trust No. 42044, dated July 17, 1978 and recorded
August 7, 1978, as Document 1936540.
5. Requirements and obligations contained in the Transferee Assumption
Agreement made by American National Bank and Trust Company, as Trustee
under Land Trust No. 42044; Bannockburn Green Retail Center; Xxxxx X.
Xxxxxx; American National Bank and Trust Company, as Trustee under Land
Trust No. 43449; the Xxxxxxx Partners and the Village of Bannockburn
dated July 17, 1978 and recorded August 7, 1978, as Document 1936538.
(Affects that part of the South 351.04 feet (as measured
perpendicularly to the South line thereof) of the South half of the
South West quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of
the 3rd P.M., lying Easterly of the Easterly line of Waukegan Road as
described in Deed recorded April 8, 1964, as Document No. 1221390 and
lying Westerly of a line drawn from a point 750.00 feet (as measured
along the South line of said South West quarter) East of the aforesaid
Easterly line of Waukegan Road to the South East corner of property
described in Document 1221388 recorded April 8, 1964).
6. Commercial Park Sanitary Sewer made by the Village of Bannockburn and
American National Bank and Trust Company, dated July 17, 1978 and
recorded July 25, 1978, as Document 1933828.
7. A perpetual easement to construct, reconstruct, use, operate, maintain,
repair and control a sanitary sewer and other utilities subject to the
terms and conditions contained therein, in, along and upon the
following described property: That part of the South 351.04 feet (as
measured perpendicularly to the South line thereof) of the South half
of the South West quarter of Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 00,
Xxxx of the 3rd P.M., described as follows: Commencing at the point of
intersection of the South line of the South West quarter of said
Section 17 with the Easterly line of Waukegan Road as
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described in Deed recorded April 8, 1964, as Document 1221390; thence
North 89 degrees, 52 minutes, 32 seconds East 750.00 feet, along said
South line of the South West quarter, to the point of beginning of the
tract herein described; thence North 15 degrees, 56 minutes, 35 seconds
West 305.00 feet along a line whose Northerly terminus is the South
East corner of property described in Document 1221388, recorded April
8, 1964; thence North 35 degrees, 46 minutes, 51 seconds West 70.88
feet to the North line of the South 351.04 feet, aforesaid; thence
South 89 degrees, 52 minutes 32 seconds West 24.61 feet along said
North line; thence South 35 degrees, 46 minutes, 51 seconds East 81.73
feet; thence South 15 degrees, 56 minutes, 35 seconds East 295.84 feet
to the South line of the South West quarter of Section 17, aforesaid;
thence North 89 degrees, 52 minutes, 32 seconds East 20.79 feet to the
hereinabove described, point of beginning, as granted by Instrument
dated February 7, 1979 and recorded February 21, 1979, as Document
1979241.
8. Ordinance No. 97-29 "An Ordinance Granting a Special Use Permit for the
Pre-existing Non-Office Uses at the Xxxxxxx-Xxxx Building (2401
Waukegan Road)" adopted by the Village of Bannockburn on July 28, 1997.
9. Easement in favor of Commonwealth Edison Company and its respective
successors and assigns, to install, operate and maintain all equipment
necessary for the purpose of serving the land and other property,
together with the right of access to said equipment, and the provisions
relating thereto contained in the grant recorded as Document No.
3086509, as shown on Schedule "A" attached thereto.
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