REAL ESTATE PURCHASE AGREEMENT
Exhibit 99.1
THIS AGREEMENT is made and entered into as of the 29th day of March, 2007, being the last date
of execution hereof as set forth beneath the signatures below (the “Date of this Agreement”) by and
between Stratos Lightwave, LLC, a Delaware limited liability company (“Seller”), and CFRI Xxxxxx,
L.L.C., a Delaware limited liability company (“Purchaser”).
WITNESSETH:
WHEREAS, Seller currently holds legal title to a parcel of real estate and appurtenant rights
thereto containing an area of approximately six (6) acres, and three (3) buildings thereon (one
approximately 82,000 square feet; the second approximately 61,556 square feet; and the third
approximately 7,500 square feet), which such parcel of real estate is legally described in
Exhibit A attached hereto and made a part hereof and is commonly known as 0000 X. Xxxxxx,
0000 X. Xxxxxx and 0000 X. Xxxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx;
WHEREAS, the land and rights appurtenant thereto more fully described on Exhibit A are
collectively referred to herein as, the “Parcels”; and
WHEREAS, Seller desires to sell to Purchaser and Purchaser desires to purchase from Seller,
the Parcels and, except as otherwise provided below, the improvements, structures, fixtures and
personal property owned by Seller and presently located thereon;
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties
hereinafter set forth, the parties hereto mutually covenant and agree as follows:
1. AGREEMENT TO PURCHASE.
Seller agrees to sell, convey and assign to Purchaser, and Purchaser agrees to purchase and
accept from Seller under the terms and for the purchase price set forth herein below, the
following:
a. The Property and all easements, rights-of-way, and all other rights appurtenant thereto
with respect to title (collectively referred to herein as the “Land”);
b. All improvements and structures located on the Land, including but not limited to the
buildings described in the first paragraph of the recitals of this Agreement and specifically
excluding trademarks, tradenames, licenses, goodwill, inventory, trade fixtures, equipment and all
other tangible and intangible items used in relation to the Seller’s business (collectively
referred to herein as the “Improvements”); and
c. All fixtures, except those in relation to the Seller’s business, including plumbing and
other attached fixtures, attached carpeting, lighting fixtures, ceiling tiles, window treatments
and heating and air condition systems owned by Seller and located on the Land (the “Personal
6
Property”). The Land, Improvements and Personal Property are herein sometimes collectively
referred to as the “Property”. The HVAC units that were uninstalled from the 4700 Oketo property
and were present during the initial walkthrough conducted in January, 2007 are to be included in
the sale for the benefit of Purchaser.
2. PURCHASE PRICE.
The total purchase price (the “Purchase Price”) to be paid to Seller by Purchaser for the
Property shall be SEVEN MILLION DOLLARS AND 00/100 ($7,000,000.00) which amount, plus or minus
prorations, shall be payable as follows:
x. XXXXXXX MONEY. Within one (1) business day after the execution of this Agreement,
Purchaser shall deposit into a joint order escrow (the “Joint Order Escrow”) established with
Chicago Title & Trust Company (the “Escrowee”), the parties signing and using its standard form, an
initial xxxxxxx money deposit of Fifty Thousand Dollars ($50,000.00) (the “Initial Deposit”).
Within one (1) business day after the Expiration of the Inspection and Feasibility Period (as
defined in Section 6(b) below) and provided this Agreement is in full force and effect, Purchaser
shall increase the Initial Deposit in the Joint Order Escrow an additional Fifty Thousand Dollars
($50,000.00) (the “Additional Deposit”) to the aggregate sum of One Hundred Thousand Dollars
($100,000.00). The Initial Deposit and Additional Deposit are referred to herein as the “Xxxxxxx
Money”. As used herein, the Joint Order Escrow shall mean an escrow created among Purchaser,
Seller and the Escrowee in which funds deposited are held by the Escrowee, subject to the joint
written direction of Seller and Purchaser. The Xxxxxxx Money and all net interest earned thereon,
if any, shall be applied to the Purchase Price at the Closing (as hereinafter defined). The
Xxxxxxx Money shall be deposited into an interest bearing account or invested in an insured money
market or such other investment vehicles as shall be jointly agreed upon by Seller and Purchaser.
All net interest earned on the investment of the Xxxxxxx Money, if any, shall belong to Purchaser.
The cost of the Joint Order Escrow shall be shared equally by Seller and Purchaser. The cost of
investment of the Xxxxxxx Money shall be borne by the Purchaser.
b. CASH AT CLOSING. At the Closing of the transaction hereby contemplated (the “Closing’) the
Purchaser shall deliver the balance of Six Million Nine Hundred Thousand Dollars ($6,900,000.00),
plus or minus prorations and its closing costs, into the Escrow.
3. CONVEYANCE.
Conveyance by Seller to Purchaser of the Property shall be by special warranty deed in
recordable form and such deed shall convey to Purchaser or its nominee good and marketable title in
fee simple to the Property, subject only to the Permitted Exceptions (as hereinafter defined).
Title to all items of Personal Property shall be conveyed by xxxx of sale, with all implied
warranties of fitness and merchantability excluded and disclaimed.
7
4. TITLE.
a. Seller shall procure and deliver to Purchaser, at Seller’s sole cost and expense, not later
than fourteen (14) days after the Date of the Agreement a preliminary title report (the “Title
Commitment”) issued by Chicago Title Insurance Company (the “Title Company”).
b. It shall be a condition precedent to Purchaser’s obligation to consummate the transaction
contemplated by this Agreement that the Title Company deliver (or commit to deliver) to Purchaser,
prior to the disbursement by the Title Company of the Purchase Price, an ALTA Form 1992 owner’s
title insurance policy (the “Title Policy”) in the amount of the Purchase Price, with extended
coverage over the general exceptions (provided, however, that Purchaser delivered an ALTA Survey to
the Title Company) issued by the Title Company, containing no exceptions other than the Permitted
Exceptions. The Purchaser may, at its sole cost and expense, request that the Title Company issue
(i) a 3.1 zoning endorsement with affirmative insurance over parking and loading requirements, (ii)
a survey endorsement, (iii) if applicable, a contiguity endorsement, (iv) an endorsement insuring
access to a public right of way, (v) an owner’s comprehensive endorsement, (vi) a creditors’ rights
endorsement, and (vii) a tax parcel endorsement insuring that the P.I.N. covering the Property
includes no other property, and insuring fee simple title to the Property in Purchaser or its
nominee. If the Title Company requires, and Purchaser notifies Seller, that it be provided with a
creditor’s rights affidavit, ALTA Statement, affidavit regarding utility easements or other items
to induce it to issue full extended coverage over the general exceptions and to issue the
endorsements specified above, Seller shall take all steps reasonably necessary to deliver such
items to the Title Company with copies to Purchaser not later than ten (10) days prior to the
Closing Date (as hereinafter defined). The endorsements set forth in subsection 4(b)(i)-(vii)
shall not be an obligation of the Seller to procure and shall not be a condition precedent to
consummation of the transaction contemplated by this Agreement.
c. During the Inspection and Feasibility Period (as defined in Section 6(c) below), Purchaser
shall deliver to Seller written notice (the “Title Notice”) of exceptions to title and Survey
Defects (as defined in subsection 5(b) below) to which Purchaser will not agree to take subject
(collectively, the “Unpermitted Exceptions”). The remaining exceptions to title represent the
“Permitted Exceptions”. Purchaser represents and warrants that it will not raise the Lease, as
provided in Section 17 of the Agreement, as an Unpermitted Exception. All exceptions to title set
forth on the Title Commitment or Survey Defects and not specified in the Title Notice as
Unpermitted Exceptions shall be deemed to be Permitted Exceptions hereunder. Seller shall have the
right, but not the obligation, (1) to cause the Unpermitted Exceptions to be removed from the Title
Commitment and Survey or (2) to cause the Title Company to issue an endorsement (on a form
customarily used by the Title Company and reasonably acceptable to Purchaser’s lender, if any)
insuring Purchaser and Purchaser’s lender, if any, against loss or damage to Purchaser that may be
caused by such Unpermitted Exception, on terms reasonably acceptable to Purchaser and Purchaser’s
lender, if any, at no additional cost to Purchaser. If Seller does not cause the Unpermitted
Exceptions to be removed from the Title Commitment and Survey or to be endorsed over prior to
Closing, Seller shall not be deemed to be in default under this Agreement; however, a condition to
the performance by Purchaser of its obligations hereunder with respect to the Property shall be
deemed not to have been fulfilled, entitling
8
Purchaser, as its sole right and remedy on account thereof, to elect, within five (5) business
days thereof, either to (x) terminate this Agreement, in which event the Xxxxxxx Money (and all net
interest earned thereon, if any) shall be returned to Purchaser and, except as otherwise expressly
provided herein to the contrary, neither party hereto shall have any further rights or liabilities
under this Agreement accruing after said termination; provided, however, that such termination
shall not relieve either Purchaser or Seller from liabilities and obligations arising from or
attributable to the acts or omissions of such party occurring prior to the effective date of such
termination, or (y) accept the conveyance of the Property subject to such Unpermitted Exceptions,
in which case this Agreement shall remain in effect; provided, however, that in any event Seller
shall remove all Unpermitted Exceptions which are liens against the Property that may be removed by
the payment of liquidated sums. Failure of Purchaser to give notice to Seller within said five (5)
business day period as provided above shall be deemed to be an election by Purchaser to accept
conveyance of the Property subject to such Unpermitted Exceptions in accordance with clause (y)
above. In the event that Seller does not cause the Unpermitted Exceptions to be removed or
endorsed over prior to the scheduled Closing and Purchaser elects or is deemed to elect to proceed
under clause (y) above, the Closing shall be the later of the originally scheduled date of the
Closing or three (3) business days after the expiration of such five (5) business day period.
5. SURVEY.
a. Purchaser may obtain, at its sole cost and expense, during the Inspection and Feasibility
Period, a survey of the Property (the “Survey”) prepared by a surveyor registered in the State of
Illinois and certified by such surveyor as having been prepared in accordance with the Minimum
Standard Detail Requirements for ALTA/ACSM Land Title Surveys, adopted in 2005 and including Table
A items 1 through 4 inclusive, items 7(a) and 7(b)(1) and items 8 through 11 inclusive. The
surveyor’s certificate shall be certified to Purchaser and its assigns, its mortgage lender and the
Title Company. At Closing, the Seller shall credit the Purchaser the cost of the Survey, not to
exceed $7,500.00, upon delivery of the invoice from the surveyor.
b. An encroachment onto the subject property from the adjacent land owner or over any easement
by the adjacent land owner or any other matter which in Purchaser’s reasonable opinion does or will
likely in the future interfere with the use, operation, financing or marketability of the Property
or render title thereto unmarketable shall be deemed “Survey Defects,” which shall entitle
Purchaser to terminate this Agreement upon written notice to Seller during the Inspection and
Feasibility Period, whereupon Purchaser shall receive a return of the Xxxxxxx Money.
6. INSPECTION AND FEASIBILITY PERIOD.
a. Within three (3) days following the Date of this Agreement, Seller shall deliver to
Purchaser copies of the following:
| i. | A survey or surveys of the Property; | ||
| ii. | INTENTIONALLY DELETED; |
9
| iii. | Certificate of Insurance affecting the Property; | ||
| iv. | 2004 real estate tax bills for parcel identification numbers: 00-00-000-000, 00-00-000-000, 00-00-000-000, 00-00-000-000 and 00-00-000-000; | ||
| v. | Copies of maintenance, repair, service, pest control, equipment and supply contracts that are readily available to Seller relating to the Property; | ||
| vi. | Site Safety Plan for 0000 X. Xxxxxx dated September 5, 2002 prepared by Xxxxxxx ESE, a Mactec Company; | ||
| vii. | Phase I Environmental Site Assessment for 0000 X. Xxxxx dated June 20, 2000 prepared by Xxxxxxx Xxxxxx Associates, a Mactec Company; | ||
| viii. | Phase II Environmental Site Assessment for 0000 X. Xxxxx dated June 20, 2000 prepared by Xxxxxx Xxxxxx Associates, a Mactec Company; and | ||
| ix. | Phase I Environmental Site Assessment for 0000 X. Xxxxxx, 0000 Xxxxx Xxxxx and 0000 Xxxxx Xxxxxx, dated October 28, 2005 prepared by Mactec Company. | ||
| x. | Assessco, Inc. Site Characterization Report of the Property, dated June 12, 2006. | ||
| xi. | Site Agreement Xx. 000 — Xxxxxxx Xxxxxxx, Xxxxxxxx dated September 15, 1989, by Stratos Lightwave, LLC (as assignee of Methode Electronics, Inc.) and Cellular One®-Chicago, a division of Southwestern Xxxx Mobile Systems, Inc., relating to PIN 00-00-000-000, et al. (the “Tower Lease”). |
The Purchaser represents and warrants to Seller that (y) it received items and documents listed in
6(a)(vi)-(x) above (the “Environmental Documents”) and (z) the content of the Environmental
Documents and the condition of the Property as reflected therein are acceptable to Purchaser.
b. During the period commencing with the Date of this Agreement and ending on the sixtieth
(60th) day thereafter or such earlier date agreed to in writing by the parties (the
“Inspection and Feasibility Period”), Purchaser shall be entitled to (i) enter upon the Property,
on reasonable notice to Seller, to perform inspections of the Property, including such soil,
engineering and environmental tests as Purchaser deems advisable and (ii) make investigations and
tests with regard to zoning and building code requirements, environmental matters, economic matters
and such other matters applicable to the Property as Purchaser deems advisable. Notwithstanding
the foregoing to the contrary, the Purchaser shall not perform or cause to be performed any
environmental or engineering tests, studies, drilling or otherwise, within demised areas identified
by Seller from time to time (the “Controlled Area”), in Seller’s sole and exclusive discretion, as
a result of manufacturing, operations or assembly of components and machines, provided, however,
that Purchase shall be permitted to (i) enter the Controlled Area for a visual inspection upon
prior notice to Seller and compliance with Seller’s general protocol for entering the Controlled
Area, and (ii) cause to be performed any
10
environmental or engineering tests, studies, drilling or otherwise beneath the Controlled Area
provided that Purchaser does not make such tests, studies, drilling from inside of the Controlled
Area. Purchaser shall not enter such Controlled Area without the consent of the Seller, which may
be withheld in its sole and exclusive discretion.
c. Prior to Purchaser’s entering the Property for purposes of any inspections, Purchaser
shall, at its sole cost, obtain or cause to be obtained and maintained in full force and effect,
until the Closing, or the earlier termination of this Agreement prior to the Closing, as the case
may be, the insurance described on Exhibit B attached hereto. Such insurance shall name
Seller, Seller’s employees, agents, and such other persons as may be designated by Seller as
additional insureds thereunder. Such insurance also shall be endorsed to confirm that the same is
primary insurance and shall not be reduced by the amount of any other insurance maintained by or
for the benefit of Seller. Renewal certificates for said policies shall be delivered by Purchaser
to Seller not later than ten (10) days prior to the stated expiration date of each policy. Such
insurance shall not constitute the limit of liability of Purchaser under this Agreement.
d. If Purchaser determines in its sole and exclusive discretion that the result of any
inspection, test examination, verification or investigation performed is unacceptable or
unsatisfactory, Purchaser may terminate this Agreement provided Seller receives written notice of
termination from Purchaser on or before the expiration of the Inspection and Feasibility Period
(“Inspection Termination Notice”). Provided the Inspection Termination Notice is timely received,
neither party shall have any further liability to the other hereunder, the parties shall execute a
joint direction to the Escrowee authorizing and directing the Escrowee that the Initial Deposit and
interest accrued thereon, if any, shall be released to Purchaser. In the event Purchaser fails to
deliver such written notice to Seller or the Escrowee within the above-specified time period, then
Purchaser shall be deemed to have waived such condition or contingency and the Agreement shall
remain in full force and effect.
e. Seller shall promptly deliver to Purchaser any written notices it receives from local,
county or state authorities relating to violations of building codes or environmental law or
regulations.
f. In the event the parties have not come to agreement on the Lease (as defined in Section
17), and Purchaser is unwilling to accept Seller’s proposed changes to Purchaser’s proposed form of
Lease, Purchaser may terminate this Agreement by written notice to the other given on or before the
expiration of the Inspection and Feasibility Period, in which event neither party shall have any
further liability to the other hereunder, and the parties shall execute a joint direction to the
Escrowee to deliver the sum of the Initial Deposit to Seller and interest thereon, if any, to the
Purchaser. In the event Purchaser fails to deliver such written notice of termination during the
Inspection and Feasibility Period and the parties have not come to agreement on the Lease, (i) the
Agreement shall remain in full force and effect, (ii) possession of the Leased Premises shall be
delivered by Seller to Purchaser within eighteen (18) months after Closing and (iii) Seller shall
pay to Purchaser monthly customary triple net lease rental income of $45,000.00 per month, pro
rata, until such time as Seller delivers possession of the Leased Premises to Purchaser. The
Purchaser has the right to terminate the lease by providing a 6-month notice after the first 3
months of the Lease. In such case, the terms of the Lease shall be as provided in
11
Section 6(f)(ii)-(iii) as aforesaid and this Section 6(f)(ii)-(iii) shall survive Closing and
not merge with the deed.
7. BULK SALES.
Purchaser may apply for a release issued by the Illinois Department of Revenue (the
“Department”) stating that the intended sale of the Property to Purchaser hereunder is not subject
to and does not subject Purchaser to liability under Section 902(d) of the Illinois Income Tax Act
(“section 902(d)”) or Section 5(j) of the Retailer’s Occupation Tax Act (“Section 5(j)”)
(collectively the “Acts”). Seller shall reasonably comply with any assistance Purchaser may
reasonably request in making the foregoing application. Purchaser may notify the Department of the
intended sale and request the Department to make a determination as to whether Seller has an
assessed but unpaid amount of tax, penalties, or interest under either or both of the Acts. In the
event of such a determination by the Department, Seller agrees that Purchaser may, on the Closing
Date, escrow, from the proceeds that are due Seller, the amount the Department determines in
writing necessary to comply with the withholding requirements imposed by the Acts. Purchaser and
Seller shall deposit the amount so withheld in a Joint Order Escrow with the Escrowee pursuant to
terms and conditions acceptable to Seller, Purchaser and the Escrowee, but in any event, complying
with the aforesaid Acts.
8. COVENANTS OF SELLER.
Between the Date of this Agreement and the Closing, Seller shall:
a. Not enter into or amend any contracts, leases or other agreements pertaining to the
Property, or otherwise perform or permit any act which will (i) materially diminish or otherwise
materially adversely affect the value of the Property, or (ii) prevent Seller’s full performance of
its obligations hereunder; and
b. Maintain all casualty, liability and hazard insurance in force with respect to the
Property, and maintain the Property in the same condition as of the date of the Agreement,
reasonable wear and tear expected.
9. REPRESENTATIONS AND WARRANTIES.
a. Seller represents to the Purchaser to the best of its actual knowledge, without independent
investigation, that the following matters are true only as of the Date of this Agreement, unless
otherwise stated below:
| i. | Seller is the owner of the Property and this Agreement is fully binding upon and enforceable against Seller in accordance with its terms and will be so at the time of Closing; | ||
| ii. | There are not outstanding contracts for the purchase of the property or any portion thereof and neither the Property nor any portion thereof is subject to any other contracts of sale or option and there will be none at the time |
12
| of Closing (except such option to extend the Tower Lease, as provided therein); | |||
| iii. | There are no leases, except the Lease described in Section 17 and the Tower Lease, and no parties in possession of the Property, nor are the parties with possessory rights in the Property, other than Seller and those of record, if any (i.e. utility easements) and the same will be true at the time of Closing; | ||
| iv. | There are no outstanding maintenance or service contracts or other contracts affecting the Property (a) that cannot be terminated upon thirty days notice or prior to the expiration of the Lease and (b) other than those delivered to Purchaser; | ||
| v. | At Closing there will be no outstanding contracts made by Seller for any labor performed at or materials supplied to the property which have not been fully paid for and no unpaid expenses of any kind incurred by Seller pertaining to the Property, except for any such contracts or expense which may have been approved in writing by Purchaser and which will be terminated prior to the expiration of the Lease; | ||
| vi. | There are no presently pending special assessment of any nature with respect to the Property or any part thereof, nor has Seller received any written notice of or have actual knowledge of any special assessments being contemplated; | ||
| vii. | The Seller has not received notice of a building code violation over the Property or any portion thereof, and no proceedings of any type have been instituted affecting the Property or any part thereof; | ||
| viii. | The Property is free of any liens, except for liens which can be and will be satisfied and released by the Title Company out of Seller’s proceeds at the Closing; and | ||
| ix. | Seller has not received any written notices from any insurance of any defects or inadequacies in the Property or any part thereof which would adversely materially affect the insurability of the Property. | ||
| x. | Seller has all requisite power and authority to execute and deliver, and to perform its obligations under, this Agreement, and the consummate the transaction contemplated herein. |
b. PURCHASER SHALL ACCEPT THE PROPERTY IN AN “AS-IS” AND “WHERE-IS” CONDITION AND “WITH ALL
FAULTS” AS OF THE CLOSING, AND PURCHASER AGREES THAT, EXCEPT AS OTHERWISE MADE HEREIN, SELLER HAS
NOT AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED,
TO PURCHASER REGARDING THE
13
PROPERTY, THE CONDITION OF THE PROPERTY OR THE FITNESS OF THE PROPERTY FOR ANY INTENDED OR
PARTICULAR USE, ANY AND ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, BEING
HEREBY EXPRESSLY WAIVED BY PURCHASER AND DISCLAIMED BY SELLER. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH ABOVE, NO REPRESENTATION, WARRANTY,
UNDERTAKING, AGREEMENT OR PROMISE, WHETHER EXPRESS OR IMPLIED OR OTHERWISE, HAS BEEN MADE BY SELLER
TO PURCHASER WITH RESPECT TO ALL OR ANY PORTION OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE
SIZE, USE OR TYPE OF LAND, THE ZONING, ANY FINANCIAL INFORMATION PERTAINING TO THE OWNERSHIP OR
OPERATION OF THE PROPERTY OR ANY OTHER MATTER. FURTHER, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
ABOVE, NO REPRESENTATION OR WARRANTY HAS BEEN MADE BY SELLER TO PURCHASER CONCERNING THE PRESENCE
OR ABSENCE OF ANY RIGHTS OF ANY MUNICIPAL OR OTHER GOVERNMENTAL AUTHORITY, OR OF OWNERS OF PROPERTY
IN THE VICINITY OF THE PROPERTY, TO OBTAIN REIMBURSEMENT OR RECAPTURE FROM ANY OWNER OF THE
PROPERTY OF ALL OR A PORTION OF THE COST OF ANY UTILITIES, ROADS OR OTHER IMPROVEMENTS HERETOFORE
MADE IN THE VICINITY OF THE PROPERTY WHICH MAY SERVE, BENEFIT OR BE UTILIZED BY THE PROPERTY, AND
IF ANY SUCH RIGHTS EXIST PURCHASER HEREBY WAIVES ANY CLAIM PURCHASER MAY HAVE OR HEREAFTER MAY
ACQUIRE AGAINST SELLER FOR SAID COSTS. PURCHASER REPRESENTS AND WARRANTS TO SELLER THAT PURCHASER
HAS NOT BEEN INDUCED TO EXECUTE THIS AGREEMENT BY ANY ACT, STATEMENT OR REPRESENTATION OF SELLER OR
ITS AGENTS, EMPLOYEES, BENEFICIARIES OR REPRESENTATIVES.
c. Seller and Purchaser represent and warrant to each other that the only broker to be paid in
connection with this transaction is Xxxxx Xxxxx of Bluebird Real Estate, representing the
Purchaser, and will be paid by the Seller pursuant to a separate agreement. Each party represents
and warrants to the other that there are no commissions or finder’s fees payable to any real estate
broker or any person in connection with the transactions contemplated by this Agreement other than
to Bluebird Real Estate, representing Purchaser. Seller agrees to pay the sale brokerage
commissions to said broker in accordance with the terms of Seller’s separate agreement with the
broker.
d. Purchaser and Seller hereby agree to indemnify, defend and hold the other harmless from and
against any and all loss, damage, liability and expense (including reasonable attorney’s fees and
other reasonable litigation expenses) the other may suffer, sustain or incur as a result of any
misrepresentation, or breach of warranty or agreement, made by the other under or in respect of
this Agreement or any document or instrument executed or to be executed by or on behalf of the
other pursuant to this Agreement or in furtherance of the transaction contemplated hereby.
14
10. PROVISIONS WITH RESPECT TO CLOSING
a. The Closing shall take place on the fifteenth (15th) day following the last day
of the Inspection and Feasibility Period (the “Closing Date”). The Closing shall be held at the
downtown Chicago, Illinois office of the Title Company through escrow with the Escrowee pursuant to
the Escrowee’s usual form of escrow agreement by the Escrowee, modified in accordance with the
terms of this Agreement (the “Escrow”). Seller and Purchaser shall share equally in the cost of
the Escrow, however Purchaser shall pay for the money lender escrow. Seller and Purchaser shall
share the cost of any “New York Style Closing” or “gap closing” equally, except as aforesaid. All
the documents referred to in subsection (b) of this Section 10, the Purchase Price and possession
of the Property, except as provided in the Lease and Tower Lease, shall be delivered on the Closing
Date. On the Closing Date when the Title Company issues (or commits in writing to issue) its Title
Policy pursuant to Sections 5(b) hereof, the Escrowee shall disburse the net proceeds of sale to
Seller from the Escrow and Seller shall deliver possession of the Property, except the Leased
Premises, to Purchaser as provided in this Agreement. Purchaser shall cooperate with the Seller to
secure the transfer stamps of the Village of Xxxxxxx Heights (the “Village”). Seller shall be
responsible for repairs required by the Village to be performed based on the Village’s
sale-inspection of the Property. In the event the Seller does not complete such repairs prior to
Closing, the Seller shall complete such repairs after Closing in a time frame permitted by the
Village to induce the Village to issue the transfer stamps. If a bond or deposit is required by
the Village for such repairs, it shall be made by the Seller and refunded to the Seller upon
completion of the repairs. If the Closing cannot be consummated prior to Seller making any such
repairs, the Closing shall be postponed until three (3) business days after the Village has
confirmed that all such repairs have been completed. The Purchaser and Seller shall execute any
and all documents required by the Village to procure such transfer stamps.
b. At the Closing, Seller shall deliver the following, all in form and substance reasonably
satisfactory to Purchaser:
| i. | The deed duly executed and acknowledged by Seller, conveying to Purchaser or Purchaser’s nominee, title to the Property, in proper form for recording and subject only to the Permitted Exceptions; | ||
| ii. | Xxxx of Sale executed by Seller conveying the items of Personal Property; | ||
| iii. | ALTA Statement, corporate resolutions, good standing certificate and other documents required by the Title Company for clearance of all exception to title other than the Permitted Exceptions; | ||
| iv. | Seller’s gap undertaking; | ||
| v. | State of Illinois, Xxxx County and municipal transfer tax declarations, if any, and evidence of compliance with local requirements for the transfer of real estate, including water certification, if required by the municipality; |
15
| vi. | A certificate with respect to Seller’s non-foreign status sufficient to comply with Section 1445 of the internal Revenue Code and the regulations promulgated thereunder; | ||
| vii. | One set of all keys and access cards to the Property; | ||
| viii. | Evidence of the termination of any service contracts; | ||
| ix. | Executed Lease described in Section 17; | ||
| x. | Any subordination and non-disturbance documentation as may be required by Purchaser’s lender and reasonably approved by Seller; and | ||
| xi. | Assignment of the Tower Lease with assumption by Purchaser. |
c. At the Closing, Purchaser shall deliver the following:
| i. | Cash at Closing as defined in Section 2(b); | ||
| ii. | Executed Lease described in Section 17; | ||
| iii. | An ALTA Statement executed by Purchaser and covering the Property, in the form customarily required by the Title Company; | ||
| iv. | State of Illinois, Xxxx County, Illinois and any required municipal real estate transfer declarations executed by Purchaser; and | ||
| v. | Such documents, such resolutions and such other instruments as may be required by Seller or the Title Company to confirm Purchaser’s authority to enter into and consummate the transaction contemplated by this Agreement. |
Seller shall pay all costs incurred in obtaining the Title Commitment, the owner’s Title Policy
(except as otherwise provided in the Agreement), all state and county deed transfer taxes imposed
in connection herewith. The party designated in the city ordinance shall pay for the municipal
transfer taxes. If the ordinance does not designate a responsible party, the Purchaser shall be
responsible for municipal transfer taxes. Seller shall pay all costs incurred in releasing liens
caused or suffered by the Seller and otherwise clearing or insuring over unpermitted title
exceptions, caused or suffered by the Seller. The Purchaser represents and warrants that it will
not cause any lien to be recorded against the Property. Purchaser shall pay for the recording of
all mortgages and other financing related documents prepared to be recorded by Purchaser’s lender,
if any. The fees and expenses of Seller’s designated representatives, accountants and attorneys
shall be borne by Seller, and the fees and expenses of Purchasers’ designated representatives,
accountants and attorneys shall be borne by Xxxxxxxxx.
00
00. ADJUSTMENTS
a. Prior to Closing, Seller shall pay all real estate taxes due and payable as of Closing.
General real estate taxes for the Property not due and payable at the time of Closing shall be
adjusted pro rata on a per diem basis as of the Closing Date on the basis of one hundred ten
percent (110%) of the greater of (i) most recent ascertainable assessment of the Property, tax rate
and equalization factor, or (ii) the last ascertainable tax xxxx. Such prorations shall be
reprorated upon receipt of final tax bills.
b. Water and utility charges; fuels; rents; prepaid operating expenses; and other similar
items customarily prorated upon the transfer of like properties in the Chicago metropolitan area
shall be adjusted ratably as of 11:59 P.M. on the Closing Date (“Proration Date”), and credited to
the balance of the cash at closing. If the amount of any of the items be prorated, other than real
estate taxes, is not then ascertainable, the adjustment thereof shall be on the basis of the most
recent ascertainable data. Any item prorated on the estimated basis, other than real estate taxes,
shall be reported by the parties when and as the actual amount of such item of income expense
becomes known. Any adjustment due to reproration shall be effected not later than ten (10) days
following final determination of the amount of such item and demand by the party to whom credit is
due. Seller shall be solely liable for the payment of all costs and expenses, liabilities,
obligations and claims arising out of Seller’s ownership, leasing, management, maintenance or
operation of the Property prior to the Proration Date. The provisions of Section 11(b) shall
survive the Closing and the delivery and recording of the deed.
12. DAMAGE TO PROPERTY
In the event between the date of this Agreement and the date of Closing the Property is
damaged or destroyed by fire or other casualty and such damage is likely to cost $600,000 or more
to repair, Seller shall immediately notify Purchaser in writing of such occurrence. Purchaser may
elect to terminate this Agreement within fifteen (15) days after receipt of notice of such damage
or destruction, by delivering written notice to the other party, in which event all obligations of
Purchaser and Seller hereunder shall cease and the Xxxxxxx Money plus all accrued interest thereon
shall be promptly returned to Purchaser. If this Agreement is not terminated pursuant to the
preceeding sentence, then, Seller shall provide Purchaser with a credit against the Purchase Price
at Closing equal to the reasonable cost to repair such damage or destruction.
13. CONDEMNATION
In the event between the date if this Agreement and the date of Closing any condemnation or
eminent domain proceedings are initiated which might result in the taking of the Property or any
portion thereof, Purchaser may elect to terminate this Agreement by delivering written notice to
the other within fifteen (15) days after receipt of notice of such condemnation or eminent domain
proceedings, in which event all rights and obligations of the parties hereunder shall cease and the
Xxxxxxx Money plus all accrued interest thereon shall be promptly returned to Purchaser. If this
Agreement is not terminated pursuant to the preceeding sentence, then, Seller shall assign to
Purchaser at Closing its interest in any condemnation awards resulting from any such condemnation
or eminent domain proceeding.
17
14. REMEDIES
a. If Seller should breach, in any material respect, any of Seller’s covenants,
representations or warranties contained in this Agreement or should fail to consummate the sale
contemplated herein for any reason other than Purchaser’s default hereunder, Purchaser shall have
the right, after giving Seller not less than ten (10) days’ written notice of such default, if such
default still remains uncured after the notice period, (i) to seek specific performance of this
Agreement and recover its court costs in so obtaining specific performance, if it is the prevailing
party, or (ii) (A) to terminate this Agreement, and (B) receive a refund of the Xxxxxxx Money and
interest accrued thereon, if any, as its sole and exclusive remedy. In the event the Purchaser
exercises its rights with respect to Section 14(a)(ii) of this Agreement, Seller shall execute a
written direction to the Escrowee to release the Xxxxxxx Money and interest to the Seller. If the
Seller fails to do so and a Court orders release of Xxxxxxx Money to the Purchaser, the Seller
shall reimburse the Purchaser for any and all costs of litigation and attorneys’ fees related to
enforcement of Section 14(a)(ii) of this Agreement.
b. If Purchaser should breach, in any material respect, any of its covenants, representations
or warranties contained in this Agreement or should fail to consummate the sale contemplated herein
for any reason other than Seller’s default hereunder, Seller shall, after giving Purchaser not less
than ten (10) days’ written notice of such default, if such default still remains uncured after the
notice period, retain the Xxxxxxx Money and interest accrued thereon, if any, as liquidated damages
and not as a penalty, as its sole and exclusive remedy. In such case, this Agreement shall be
deemed terminated and Purchaser shall within two (2) business days’ after expiration of such cure
period, execute a written direction to the Escrowee to release the Xxxxxxx Money and interest to
the Seller. If the Purchaser fails to do so and a Court orders release of Xxxxxxx Money to the
Seller, the Purchaser shall reimburse the Seller for any and all costs of litigation and attorneys’
fees related thereto. The parties are in agreement that it would be difficult if not impossible to
calculate Seller’s actual damages in the event of a breach by Purchaser and the parties have made
all reasonable attempts to determine the sum of such actual damages. The sum of the Xxxxxxx Money
is a reasonable calculation thereof. Notwithstanding the foregoing to the contrary, Seller retains
all rights and remedies at law or in equity in the event of a breach of a covenant, representation
or warranty by Purchaser after consummation of the Closing.
15. MODIFICATIONS, WAIVERS, ETC.
a. No waiver, and no modification, amendment, discharge or change of this Agreement, except as
otherwise provided herein, shall be valid unless the same is in writing and signed by the party
against which the enforcement of such modification, waiver, amendment, discharge or change is
sought.
b. This Agreement contains the entire agreement between the parties relating to the
transaction contemplated hereby, and, except for the Confidentiality and Non-Disclosure Agreement
by the parties, prior or contemporaneous agreements, understandings, representations and
statements, oral or written, are merged herein.
18
16. NOTICES
All notices, demands, request and other communication under this Agreement shall be in writing
and shall be deemed properly served (a) in the date of delivery, if delivered by hand, (b) on the
third business day following mailing, if sent by registered or certified mail, return receipt
requested, postage prepaid, (c) on the first business day following delivery to an overnight
courier, if served by overnight courier, or (d) on the date of confirmed transmission, if sent by
facsimile and received not later than 6:00 p.m. or on the next business day if received after 6:00
p.m. Notices shall be addressed as follows:
| If intended for Seller: | Stratos Lightwave, LLC | |||
| c/o Xxxxx Xxxxxxxxxxxxx | ||||
| 0000 Xxxx Xxxxxx | ||||
| Xxxxxxx Xxxxxxx, Xxxxxxxx 00000 | ||||
| Fax: (000) 000-0000 | ||||
| With a copy to: | Xxxxx, Xxxxx & Xxxxxxxxx, Ltd. | |||
| 0000 Xxxxx Xxxxxxx Xxxxxx | ||||
| Xxxxx 000 | ||||
| Xxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Xxxxxxx X. Xxxxxxxx | ||||
| Fax: (000) 000-0000 | ||||
| If intended for Buyer: | Commonfund Realty, Inc. | |||
| c/o Xxx Xxxxx | ||||
| 00 Xxx Xxxxxxx Xxxx | ||||
| Xxxxxx, Xxxxxxxxxxx 00000 | ||||
| Fax: (000) 000-0000 | ||||
| With a copy to: | Pircher, Xxxxxxx & Xxxxx | |||
| 000 Xxxxx Xxxxxxxx Xxxxxx | ||||
| Xxxxx 0000 | ||||
| Xxxxxxx, Xxxxxxxx 00000 | ||||
| Attention: Real Estate Notices (JDL/AMP) | ||||
| Fax: (000) 000-0000 |
Either party may change its address for purposes of receipt of any such communication by
giving three (3) days’ written notice of such change to the other party in the manner above
prescribed.
17. LEASING
Upon the consummation of the Closing of this transaction, Seller will lease (“Lease”) the
portion of the Property, being the approximately 82,000 sq.ft. building at 0000 Xxxx Xxxxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx, and the adjacent parking lot, from Purchaser for a term not to exceed
eighteen (18) months with monthly net rental payments in the amount of $45,000.00 per month.
19
Purchaser may cancel the Lease with six (6) months’ prior written notice which shall not be
delivered until at least three (3) months’ after the Closing Date. Purchaser’s attorney shall
deliver a draft of the proposed Lease to Seller’s attorney within fourteen (14) days after the date
of this Agreement. Seller’s attorney shall deliver any proposed modifications to such draft within
seven (7) days after receipt of Purchaser’s attorney’s draft Lease. Seller will be responsible for
payment of all maintenance expenses and real estate taxes for the Property during the term of the
Lease. The Lease shall be a triple net Lease and shall be in a form mutually agreed to by the
parties during the Inspection and Feasibility Period.
18. MISCELLANEOUS
a. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective heirs, administrators, successor, and assigns. Purchaser may assign its
rights hereunder provided that such assignment shall not release Purchaser from its obligations
hereunder.
b. This Agreement shall be governed by and construed in accordance with laws of the State of
Illinois. The invalidation of one or more of the terms of this Agreement shall not affect the
validity of the remaining items.
c. Whenever in this Agreement words, including pronouns, are used in the masculine, they shall
be read in the feminine or neuter whenever they would so apply and vice versa, and words in the
Agreement that are singular shall be read as plural whenever the latter should so apply and vice
versa.
d. This Agreement may be executed in any number of counterparts, each of which shall be deemed
an original and all of which, when taken together, shall constitute one Agreement.
e. Time is of the essence of this Agreement.
f. Each individual executing this Agreement on behalf of a party hereto hereby warrants that
he or she has full authority to execute and deliver this Agreement in behalf of such party and to
consummate or cause the consummation of the obligations of such party contained herein.
g. In the event that the Closing Date or any other deadline date described in this Agreement
falls on a weekend or a holiday, the Closing Date or other deadline date shall be deemed the next
business day.
h. Purchaser shall hold all information concerning the Property received from Seller or its
agents in confidence, except that the Purchaser may disclose such information to its owners,
officers, managers, directors, employees, insurance companies, legal counsel, prospective lenders,
prospective purchasers of the Property or portion thereof (after the Closing Date), and investors
and similar third parties who need to review the same in connection with the transaction
contemplated hereby. The foregoing restrictions shall not apply to disclosures of
20
information required by law or court order, or to information concerning the Property that is
available to the general public without violation of the above provisions.
21
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be executed as of the
date first set forth above.
| PURCHASER: | SELLER: | |||||||||
| CFRI Xxxxxx, L.L.C., | STRATOS LIGHTWAVE, LLC, | |||||||||
| a Delaware limited liability company | a Delaware limited liability company | |||||||||
By:
|
CRI Property Trust, | |||||||||
| a Maryland real estate investment | By: | Stratos International, Inc., a Delaware | ||||||||
| trust, its sole member | corporation, its sole member | |||||||||
By:
|
By: | |||||||||
Its:
|
Its: | |||||||||
22
