Exhibit 10.24
PURCHASE AND SALE AGREEMENT
---------------------------
Dated: April 16, 1997
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I DEFINITIONS AND REFERENCES................................. -1-
1.1 DEFINITIONS........................................... -1-
1.2 REFERENCES............................................ -4-
ARTICLE II SALE AND PURCHASE.......................................... -4-
ARTICLE III PURCHASE PRICE............................................. -5-
3.1 PURCHASE PRICE........................................ -5-
3.2 NO ASSUMPTION OF SELLER'S OBLIGATIONS................. -5-
3.3 NO ASSUMPTION OF PURCHASER'S OBLIGATIONS.............. -5-
ARTICLE IV SUBMITTALS................................................. -6-
4.1 SUBMITTALS TO PURCHASER............................... -6-
4.2 REVIEW AND INSPECTION................................. -8-
ARTICLE V REPRESENTATIONS AND WARRANTIES............................. -8-
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER.............. -8-
5.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER........... -11-
5.3 DURATION OF REPRESENTATIONS AND WARRANTIES............ -11-
ARTICLE VI CLOSING MATTERS............................................ -11-
6.1 CLOSING............................................... -11-
6.2 NEW YORK STYLE CLOSING; CLOSING CHARGES............... -12-
6.3 SURVEY, TITLE COMMITMENT AND SEARCHES................. -12-
6.4 DEFECTS AND REMOVAL OF LIENS.......................... -14-
6.5 ESCROW................................................ -15-
ARTICLE VII CLOSING DELIVERIES......................................... -15-
7.1 SELLER'S DELIVERIES................................... -15-
7.2 PURCHASER'S DELIVERIES................................ -17-
7.3 CONCURRENT TRANSACTIONS............................... -17-
7.4 FURTHER ASSURANCES.................................... -17-
7.5 POSSESSION............................................ -18-
-i-
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE VIII ADJUSTMENTS AND PRORATIONS - CLOSING STATEMENTS............ -18-
8.1 ADJUSTMENTS AND PRORATIONS........................... -18-
8.2 CLOSING STATEMENTS................................... -18-
ARTICLE IX CONDITIONS TO SELLER'S OBLIGATIONS......................... -18-
9.1 CONDITIONS........................................... -18-
9.2 FAILURE OF CONDITIONS................................ -19-
ARTICLE X CONDITIONS TO PURCHASER'S OBLIGATIONS...................... -19-
10.1 CONDITIONS........................................... -19-
10.2 FAILURE OF CONDITIONS................................ -20-
ARTICLE XI ACTIONS AND OPERATIONS PENDING CLOSING..................... -20-
11.1 ACTIONS AND OPERATIONS PENDING CLOSING............... -20-
ARTICLE XII CASUALTIES AND TAKINGS..................................... -21-
12.1 CASUALTIES........................................... -21-
12.2 TAKINGS.............................................. -21-
ARTICLE XIII INDEMNITIES................................................ -22-
13.1 SELLER'S INDEMNITY................................... -22-
13.2 PURCHASER'S INDEMNITY................................ -22-
13.3 NOTICE OF CLAIMS..................................... -23-
ARTICLE XIV NOTICES.................................................... -23-
ARTICLE XV ADDITIONAL COVENANTS....................................... -24-
15.1 ADDITIONAL COVENANTS................................. -24-
LIST OF EXHIBITS......................................................... -28-
-ii-
PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT is made this 16th day of April, 1997, by
and between May & ▇▇▇▇, Inc., a Delaware corporation ("Seller"), and ▇▇▇▇▇▇
Partners L.L.C., an Illinois limited liability company ("Purchaser").
RECITALS:
A. Seller is the fee owner of that certain parcel of land (and the
improvements and buildings thereon) legally described in Exhibit "A-1" ("1501
Land Parcel") and located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and that
certain parcel of land (and the improvements and buildings thereon) legally
described in Exhibit "A-2" ("3333 Land Parcel"). The 3333 Land Parcel is
adjacent to the 1501 Land Parcel.
B. Seller desires to sell, and Purchaser desires to purchase, the Property
(as hereinafter defined) upon and subject to the terms and conditions
hereinafter set forth.
C. Simultaneously with the purchase of the Property, Purchaser will lease
the 1501 Land Parcel (and the improvements and buildings thereon) pursuant to
the lease attached hereto as Exhibit B ("1501 Lease") and the 3333 Land Parcel
(and the improvements and buildings to be constructed thereon) pursuant to the
lease attached hereto as Exhibit C ("3333 Lease"). Pursuant to the 3333 Lease,
the Landlord will construct a 200,000 square foot office building and parking
facility on the 3333 Land Parcel for use by Seller.
AGREEMENTS
NOW, THEREFORE, in consideration of the foregoing premises and the
respective representations, warranties, agreements, covenants and conditions
herein contained, and other good and valuable consideration, Seller and
Purchaser agree as follows:
ARTICLE I
DEFINITIONS AND REFERENCES
--------------------------
1.1 DEFINITIONS. As used herein, the following terms shall have the
respective meanings indicated below:
Affiliate: With respect to a specific entity, any natural person or any
firm, corporation, partnership, limited liability company, association, trust or
other entity which, directly or indirectly, controls, or is under common control
with, the subject entity, and with respect to any specific entity or person, any
firm, corporation, partnership, association, trust or other entity which is
controlled by the subject entity or person. For purposes hereof, the term
"control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of any such entity
or the power to veto
major policy decisions of any such entity, whether through the ownership of
voting securities, by contract, or otherwise.
Agreement: This Purchase and Sale Agreement, including the Exhibits.
Agreement Date: The date of full execution of this Agreement by Seller and
Purchaser.
Assignment: The Assignment, Assumption and Indemnity Agreement in the form
of Exhibit "D" attached hereto.
Closing and Closing Date: As defined in Section 6.1.
Closing Statement: The Closing Statement required under the provisions of
Section 8.2.
Department: Illinois Department of Revenue.
Environmental Laws: As defined in Subsection 5.1(n).
Escrow: The escrow created for the purpose of facilitating the
transactions contemplated hereby pursuant to the Escrow Instructions (as defined
herein).
Escrow Instructions: The escrow instructions to be executed and delivered
by the parties and the Title Company, as escrowee.
1501 Land Parcel: As defined in the Recitals.
1501 Lease: As defined in the Recitals.
Fixtures and Tangible Personal Property: All fixtures, equipment,
machinery, apparatus, and other articles of personal property located on the
Land and Improvements as of the Closing, and used or usable in connection with
any part of the Property, excluding, however, property owned by Seller and used
in its business as opposed to the operation of the Improvements or by other
persons furnishing goods or services to the Property. Improvements.
Hazardous Material: As defined in Subsection 5.1(n).
Impositions: All taxes and other governmental charges of any kind
whatsoever that may at any time be assessed or levied against or with respect to
the Property, or any part thereof or any interest therein, including, without
limitation, all general and special real estate taxes and assessments or taxes
assessed specifically in whole or in part in substitution of general real estate
taxes or assessments; any taxes levied upon or with respect to the revenue,
income or profits of Seller from all or any part of the Property which, if not
paid,
-2-
will become a lien on all or any part of the Property, or a lien or charge on
the rents, revenues or receipts therefrom; all assessed ad valorem taxes; all
utility and other charges incurred in the operation, maintenance, use, occupancy
and upkeep of the Property that may be secured by a lien on the Property and all
assessments and other charges made by any governmental agency for improvements
that may be secured by a lien on the Property.
Improvements: The buildings, structures (surface and sub-surface) and
other improvements, including such fixtures as shall constitute real property,
located on the Land.
Land: The parcel of real estate described in Exhibits "A-1 and A-2"
hereto, together with all rights, title and interest, if any, of Seller in and
to all land lying in any street, alley, road or avenue, open or proposed, in
front of or adjoining said Land, to the centerline thereof, and all right, title
and interest of Seller in and to any award made or to be made in lieu thereof
and in and to any unpaid award for the damage to said Land by reason of change
of grade of any street.
Leases: The 1501 Lease and the 3333 Lease.
Legal Requirements: All laws, statutes, codes, acts, ordinances, orders,
judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all governments and governmental
authorities having jurisdiction of the Property (including, for purposes hereof,
any local Board of Fire Underwriters) and the operation thereof.
Obligations: All payments required to be made and all representations,
warranties, covenants, agreements and commitments required to be performed under
the provisions of this Agreement by Seller or Purchaser, as applicable.
Permits: Licenses, franchises and permits, certificates of occupancy
authorizations and approvals used in the ownership, occupancy or operation of
any part of the Property as currently operated.
Permitted Exceptions: (i) any Title Defects disclosed by the Survey or any
other matters disclosed by Survey, and (ii) any liens, encumbrances,
restrictions, exceptions and other matters specified in Exhibit "E" to which
title to the Property may be subject on the Closing Date.
Property: (i) the Land; (ii) the Improvements; (iii) the Fixtures and
Tangible Personal Property; and (iv) the Permits all as hereinafter defined.
Purchase Price: As defined in Section 3.1.
Searches: As defined in Subsection 6.3(c).
Section 1445: As defined in Subsection 15.1(g).
-3-
Submittals: As defined in Section 4.1.
Survey: As defined in Subsection 6.3(b).
3333 Lease: As defined in the Recitals.
3333 Land Parcel: As defined in the Recitals.
Title Commitment: As defined in Subsection 6.3(a).
Title Company: Chicago Title Insurance Company.
Title Defect: A lien, claim, charge, security interest, encumbrance,
encroachment or other matter adversely affecting title to the Property other
than a Permitted Exception.
Title Policy: As defined in Subsection 6.3(a).
UCC: The Uniform Commercial Code in effect in Illinois.
Violation: Any condition with respect to the Property which constitutes a
violation of any Legal Requirements or Permits.
1.2 REFERENCES. Except as otherwise specifically indicated, all
references to Section and Subsection numbers refer to Sections and Subsections
of this Agreement, and all references to Exhibits refer to the Exhibits attached
hereto. The words "hereby", "hereof", "herein", "hereto", "hereunder",
"hereinafter", and words of similar import refer to this Agreement as a whole
and not to any particular Section or Subsection hereof. The word "hereafter"
shall mean after, and the term "heretofore" shall mean before the date of this
Agreement. Captions used herein are for convenience only and shall not be used
to construe the meaning of any part of this Agreement.
ARTICLE II
SALE AND PURCHASE
------------------
Seller hereby agrees to sell (or to cause to be sold) to Purchaser, and
Purchaser hereby agrees to purchase from Seller, the Property on the terms and
subject to the conditions of this Agreement.
-4-
ARTICLE III
PURCHASE PRICE
--------------
3.1 PURCHASE PRICE.
--------------
(a) The purchase price ("Purchase Price") for the Property shall be
Twelve Million Three Hundred One Thousand and 00/100 Dollars ($12,301,000.00).
(b) The Purchase Price, subject to prorations and adjustments as
provided in Section 8.1, shall be paid on the Closing Date by wire transfer of
immediately available funds, first to the Title Company and then to an account
specified by Seller, against delivery of instruments of transfer and the other
documents specified in Section 7.1.
3.2 NO ASSUMPTION OF SELLER'S OBLIGATIONS. Except as otherwise
specifically provided herein to the contrary, Purchaser shall not assume, or
become obligated with respect to, any duties, liabilities or other obligations
of Seller, including, but not limited to, the following:
(a) except to the extent that Purchaser agrees to and does receive a
credit therefor on the Closing Statement, any and all obligations, liabilities,
claims, accounts, demands, liens or encumbrances, whether direct or contingent
and no matter how arising, in any way related to the Property, and arising or
accruing prior to the Closing Date or in any way related to or arising from any
act, conduct, omission, contract or commitment of Seller or any predecessor in
interest of Seller, at any time or times prior to the Closing Date (including,
but not limited to, any damage to property or injury to or death of any person);
and
(b) duties, liabilities or other obligations of Seller incurred in
connection with or relating to the transfer of the Property pursuant to this
Agreement, including, without limitation, any federal, state or local income,
sales, transfer or other tax incurred by reason of said transfer, all of which
shall be the sole responsibility of Seller.
3.3 NO ASSUMPTION OF PURCHASER'S OBLIGATIONS. Notwithstanding anything to
the contrary contained herein and except to the extent set forth in the Leases,
Seller shall not assume or become obligated with respect to any obligations,
liabilities, claims, accounts, demands, liens or encumbrances, whether direct or
contingent and no matter how arising, in any way related to the Property, and
arising or accruing from and after the Closing Date or in any way related to or
arising from any act, conduct, omission, contract or commitment of Purchaser at
any time or times from and after the Closing Date (including, but not limited
to, any damage to property or injury to or death of any person).
-5-
ARTICLE IV
SUBMITTALS
----------
4.1 SUBMITTALS TO PURCHASER. Seller, within twenty (20) days after the
Agreement Date, shall deliver to Purchaser copies of the following (the
"Submittals"):
(a) the Permits;
(b) a descriptive summary of all pending or threatened litigation with
respect to the Property;
(c) reproducible copies of all plans, specifications, drawings,
blueprints, surveys, environmental reports and other documents which Seller has
in its possession as the same relate to the Property, including, but not limited
to those relating to any prior or ongoing construction or rehabilitation of the
Property;
(d) all other documents or instruments of record relating to the
Property;
(e) information reflecting the insurance loss history of the Property
for the five (5) years preceding the date hereof and copies of all insurance
policies relating to the Property;
(f) the notices, reports and registrations Seller has filed, if any,
pursuant to Seller's obligations under the Illinois State Fire Marshal
Regulations for Underground Storage Tanks, ▇▇▇▇ Title III, the OSHA Hazard
Communication Standard and/or any other federal, state or local health and
safety regulations;
(g) a copy of the ▇▇▇▇ or bills issued for the three (3) most recent
years for which bills have been issued for all real estate taxes and personal
property taxes and a copy of any and all notices pertaining to real estate taxes
or assessments applicable to the Property. Seller shall promptly deliver to
Purchaser a copy of any such bills or notices received by Seller after the date
hereof even if received after Closing. 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 and evidence of full payment of the cost
of any such appeals including the full payment of attorneys' fees;
(h) copies of all service and maintenance contracts and other written
agreements of any kind pertaining to the Property, and all amendments and
modifications thereto, which Seller or its agents and Affiliates have entered
into in connection with the construction, development, maintenance, ownership
and operation of the Property which might survive Closing and a schedule listing
all such contracts and
-6-
agreements. Purchaser shall inform Seller, not less than five (5) days prior to
Closing, which Contracts, if any, Purchaser wishes Seller to assign to Purchaser
at the Closing;
(i) a copy of all guaranties, warranties and other documents or
instruments relating to the Property;
(j) copies of all contracts for construction, repair or capital
replacement to be performed at the Property or covering such work performed
during the two (2) years immediately preceding the date hereof;
(k) all other studies, reports, maps and documents related to the
Property that are reasonably available to Seller, including without limitation
engineering reports, surveys, environmental impact reports, traffic circulation,
flood control and drainage plans, design renderings, shop drawings, feasibility
studies, and all correspondence with governmental agencies and their personnel
concerning the same, but excluding market analyses;
(l) copies of all notices of health, building and zoning code
violations received in the last five (5) years with respect to the Property;
(m) copies of any soil tests, notices from and correspondence with
state and federal environmental departments;
(n) copies of all agreements relating to the availability or
furnishing of sewer, water, and other utilities to the Property, if any; and
(o) copies of all environmental and engineering reports on all aspects
of the Property, including those related to the roof, asphalt, heating,
ventilating and air-conditioning systems, life safety systems, security systems,
electrical and plumbing systems and the structural elements of the Improvements,
plus copies of all bids and proposals obtained for any work called for by any of
the aforesaid engineering reports.
In addition, Seller shall make available for Purchaser's inspection any and all
other documents in Seller's or its Affiliates' possession relating to the
Property.
4.2 REVIEW AND INSPECTION. Purchaser shall have the right to enter upon
the Land and Improvements to inspect the Property and to conduct reasonable non-
destructive tests and investigations at its sole cost and expense, except as
provided herein. Purchaser shall indemnify Seller from and against any loss,
damage, liability, cost or expense incurred by Seller as a direct result of the
entry onto the Property by Purchaser, its employees, representatives or agents
in performing such inspection, tests and investigations. Seller shall cooperate
with Purchaser and its agents in arranging such inspections.
-7-
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents
and warrants the following to Purchaser:
(a) Due Organization. Seller is a corporation duly formed, validly
existing and in good standing under the laws of the State of Illinois.
(b) Authority. The execution, delivery and performance of this
Agreement and the Leases have been duly authorized by all requisite action on
the part of Seller, and this Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable in accordance with its terms.
(c) No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, except as otherwise
provided herein, do not require the consent or approval of any governmental
authority, nor shall such execution and delivery result in a breach or Violation
of any Legal Requirement, or constitute a default (or an event which with notice
or passage of time or both will constitute a default) under any contract or
agreement to which Seller or an Affiliate of Seller is a party or by which it or
the Property is bound.
(d) Title to Other Property. Seller has good and marketable title to
all Property free and clear of all options, liens, charges, easements,
agreements, claims, restrictions or other encumbrances of any kind or nature
except as set forth in Exhibit "E". All items of Property have been or on or
before Closing will be fully paid for.
(e) Permits and Legal Requirements. (i) Exhibit "F" sets forth a
complete and correct list of all existing Permits held by Seller or Affiliates
of Seller; (ii) such Permits constitute all of the licenses, franchises and
permits, certificates of occupancy, authorizations and approvals required for
the ownership and operation of the Property as currently operated, (iii) Seller
has not received any written notice of any Violation which has not been
heretofore corrected; (iv) prior to the Closing Date, any uncured Violations
shall be cured by Seller at its sole expense; and (v) all Permits are assignable
to Purchaser.
(f) Impositions. All Impositions due and payable as of the date of
this Agreement have been paid. There is no existing, pending or, to Seller's
best knowledge, contemplated, threatened or anticipated increase in the tax
assessment for the Property other than routine increases which occur from year
to year. Except as set forth in Exhibit "G", there are no pending real estate
tax appeals or protests for the Property and no real estate tax abatements or
reduction programs in effect with respect to the Property. Seller shall not file
any such appeals or protests from and after the date hereof.
-8-
(g) Pending Litigation. Except as described in Exhibit "H", there are
no actions, suits or proceedings pending or, to Seller's best knowledge,
threatened against Seller affecting any of Seller's rights with respect to the
Property, at law or in equity, or before any federal, state, municipal, or other
governmental agency or instrumentality, nor is Seller aware of any facts which
to its knowledge might result in any such action, suit or proceedings.
(h) Condemnation. There are no pending or, to Seller's best knowledge,
threatened condemnation proceedings or condemnation actions (or offer to
purchase in lieu of condemnation) against the Land and Improvements or any of
the rights-of-way located adjacent thereto.
(i) Zoning. The Land is currently zoned for its present use, and no
change in the zoning classification of the Property is pending or, to Seller's
best knowledge, threatened.
(j) Assessments. No governmental assessment for sewer, sidewalk,
water, paving, electrical, power or other improvements is pending or in effect
or, to Seller's best knowledge, threatened.
(k) Utilities. All utility equipment and facilities required for the
normal operation and use of the Property are connected under valid permits and,
to the best of Seller's knowledge, are adequate to service the Property, and,
all agreements for providing utilities are with direct providers.
(l) Material Changes. There are no facts or circumstances not
disclosed to Purchaser of which Seller has actual knowledge which have or could
have a material adverse effect upon the Property, excluding however general
economic conditions. Seller agrees to notify Purchaser immediately of such facts
or circumstances if it becomes aware of the same.
(m) Condition of Property. To the best of Seller's knowledge, the
Improvements, including, without limitation, the roof(s), elevators and
basement(s), are in good operating condition and free from material defects,
subject to normal wear and tear. All plumbing, heating, ventilation, air
conditioning, electrical and other mechanical systems and equipment are, to the
best of Seller's knowledge, in good operating condition and free from material
defects, subject to normal wear and tear.
(n) Environmental Matters. Except as set forth in Exhibit "I", Seller
has no actual knowledge of (i) Hazardous Materials having been discharged,
placed or disposed of at, on or under the Property; (ii) underground storage
tanks having been located on the Property; (iii) the Property having been used
as a dump for waste material; and (iv) the Property or the Seller being in
violation of or liable under any applicable Environmental Law.
-9-
The term Hazardous Materials shall mean and include the following,
including mixtures thereof: (i) any hazardous substance, pollutant, contaminant,
waste, by-product or constituent regulated under the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. (S)9601 et seq., as amended;
(ii) oil and petroleum products and natural gas, natural gas liquids, liquefied
natural gas and synthetic gas usable for fuel; (iii) pesticides regulated under
the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. (S)136 et
seq., as amended; (iv) asbestos and asbestos-containing materials, PCBs and
other substances regulated under the Toxic Substances Control Act, 15 U.S.C.
(S)2601 et seq., as amended; (v) source material, special nuclear material, by-
product material and any other radioactive materials or radioactive wastes,
however produced, regulated under the Atomic Energy Act or the Nuclear Waste
Policy of 1982; (vi) chemicals subject to the OSHA Hazard Communications
Standard, 29 C.F.R. (S)1920.1200 et seq., as amended; (vii) industrial process
and pollution control wastes whether or not hazardous within the meaning of the
Resource Conservation and Recovery Act, 42 U.S.C. (S)6901 et seq., as amended;
and (viii) all other toxic or hazardous substances regulated by federal, state
or local laws. All such above-referenced statutes together with the Clean Air
Act, as amended, the Federal Water Pollution Control Act, as amended, the Safe
Drinking Water Act, as amended, the Toxic Substance Control Act, as amended, the
Emergency Planning and Community Right-To-Know Act of 1986, the Hazardous
Material Transportation Act, as amended, and all other federal, state and local
statutes, laws, ordinances, order, rules, regulations and moratoria relating to
the protection, preservation or restoration of the environment or the use,
storage, treatment, generation, handling, release or disposal of Hazardous
Materials are hereinafter referred to as "Environmental Laws".
(o) Leases. No party has any right to possession or occupancy of any
part of the Property pursuant to a lease, license, option or otherwise.
5.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby
represents and warrants the following to Seller:
(a) Due Organization. Purchaser is a limited liability company duly
formed, validly existing and in good standing under the laws of the State of
Illinois.
(b) Authority. The execution, delivery and performance of this
Agreement have been duly authorized by all requisite action on the part of
Purchaser, and this Agreement constitutes the legal, valid and binding
obligation of Purchaser, enforceable in accordance with its terms.
(c) No Conflict. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, except as otherwise
provided herein, do not require the consent or approval of any governmental
authority, nor shall such execution and delivery result in a breach or Violation
of any Legal Requirement, or constitute a default (or an event which with notice
or passage of time or
-10-
both will constitute a default) under any contract or agreement to which
Purchaser or an Affiliate of Purchaser is a party or by which it or the Property
is bound.
5.3 DURATION OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained in Sections 5.1 and 5.2 shall be deemed restated on and as
of the Closing Date and shall survive the Closing for a period of one (1) year.
Neither Seller nor Purchaser shall have any claim for breach of a representation
or warranty unless notice of such alleged breach, specifying such breach in
reasonable detail, is delivered to the alleged breaching party on or before one
(1) year after the Closing Date.
ARTICLE VI
CLOSING MATTERS
----------------
6.1 CLOSING. The closing of the transaction contemplated hereby (the
"Closing") shall take place at the offices of the Title Company on June 2, 1997,
subject to possible extensions pursuant to Subsection 6.3 (the "Closing Date").
The Closing shall be effected pursuant to the Escrow Instructions.
6.2 NEW YORK STYLE CLOSING; CLOSING CHARGES. At the request of either
party, the transaction shall be closed by means of a so-called "New York Style
Closing", with the concurrent delivery of the documents of title, transfer of
interests, delivery of the Title Policy described in Subsection 7.1(e) and the
payment of the Purchase Price. Seller shall provide and pay for the cost for
the issuance of the Title Policy, the issuance of extended coverage over the
general exceptions contained in and all endorsements to the Title Policy, the
State of Illinois and DuPage County real estate transfer taxes and all sales and
use taxes in connection with the Closing. Purchaser shall pay one hundred
percent (100%) of any money lender's escrow fees. Seller and Purchaser shall
each pay for fifty percent (50%) of any undertaking (the "Gap Undertaking") to
the Title Company necessary for the New York Style Closing to occur, all
closing, escrow, recording and other charges of the Title Company for such
Closing.
6.3 SURVEY, TITLE COMMITMENT AND SEARCHES. Seller on or before the
expiration of the periods set forth below will deliver the following to
Purchaser:
(a) Title. Within twenty (20) days following the Agreement Date, a
commitment (hereinafter referred to as the "Title Commitment") to issue an ALTA
Form B (1992) Owner's Title Insurance Policy issued by the Title Company in the
amount of the Purchase Price (irrevocable for at least six months), showing fee
simple title in Seller to the Land and Improvements and, in addition, all
access, ingress and egress and utility easements and rights-of-way required
hereunder or used in connection with the Property by the Seller, naming
Purchaser as the proposed insured, with title being subject only to real
-11-
estate taxes not yet due or payable, acts of Purchaser and parties acting
through Purchaser, the Permitted Exceptions and such other exceptions as
approved in writing by Purchaser and any other title exceptions pertaining to
liens or encumbrances of a definite, ascertainable amount which are capable of
being, and shall be, removed by the payment of money by Seller at or prior to
Closing as confirmed by Purchaser with the Title Company (such other title
exceptions being hereinafter referred to as the "Removable Exceptions"). The
Title Commitment shall contain an agreement by the Title Company, or shall be
supplemented with an agreement by the Title Company delivered to Purchaser no
later than five (5) days prior to Closing, stating that the title insurance
policy which will be issued pursuant to the Title Commitment at the Closing
(hereinafter referred to as the "Title Policy") will provide full extended
coverage insurance which shall result in the deletion of all general exceptions.
The Title Policy shall contain the following affirmative endorsements and such
other endorsements as are reasonably requested by Purchaser:
(A) an endorsement insuring Purchaser that there are no
violations of any restrictive covenants, conditions or restrictions
affecting the Land or Improvements, that there are no encroachments by
the Improvements onto any easements or any building lines or setbacks
affecting the Land, or onto any adjacent property, or any
encroachments onto the Land of existing improvements located on
adjoining land;
(B) an access endorsement insuring that all adjoining
streets are public streets and that there is direct and unencumbered
access to the same from the Land and the Improvements;
(C) a survey endorsement insuring that all the property
insured is legally described on a specifically mentioned survey and
foundations in place as of the date of such policy are within the lot
lines and applicable setback lines, that the Improvements do not
encroach onto adjoining land or onto any easements, and that there are
no encroachments of improvements from adjoining land onto the Land or
any part thereof;
(D) a 3.1 zoning endorsement insuring that the Land and the
Improvements are zoned for the present and contemplated building and
business thereon and insuring against loss or damage arising due to a
prohibition of said use or requiring removal of the Improvements due
to a violation of applicable laws or ordinances including but not
limited to laws and ordinances relating to area of the Land, floor
area of the Improvements, setbacks, height and parking;
(E) a contiguity endorsement insuring that all parcels
comprising the Land are contiguous;
-12-
(F) an endorsement insuring that no instrument, covenant or
condition affecting the Land provides for an easement over the Land or
for a private assessment or charge; and
(G) an endorsement insuring that all of the Land and the
Improvements are covered by one or more permanent index numbers which
do not cover other property.
The Title Company shall also undertake to obtain reinsurance
policies with Right of Direct Access in such amounts and with such
companies as may be satisfactory to Purchaser.
(b) Survey. Within thirty (30) days of the Agreement Date, three (3)
copies of a currently dated as-built survey of the Land and of the Improvements
situated thereon (hereinafter referred to as the "Survey"), prepared by a
surveyor licensed by the State of Illinois and acceptable to Purchaser,
certified to Purchaser and the Title Company and any other parties identified by
Purchaser, in manner satisfactory to Purchaser, by such surveyor as being true,
accurate and having been prepared in accordance with the minimum standard detail
requirements for Land Title Surveys adopted by the American Title Association
(now known as the American Land Title Association) and the American Congress on
Surveying and Mapping in 1992, including the following Table A items: 1992 -- 2,
3, 4, 7(a), 7(b)(1), 8, 9, 10, 11. The Survey shall reveal no encroachments onto
the Land from any adjacent property, no encroachments by or from the Land or
Improvements onto any adjacent property, and no violation by any of the
Improvements on the Land of any building line or easement affecting the Land.
Said Survey shall certify that the Land is not in an area identified by an
agency or department of the federal government as having special flood or
mudslide hazards which would require flood insurance under the Flood Insurance
Act of 1968.
If the Title Commitment or Survey is not delivered to Purchaser within the
specified time, Purchaser may, in addition to the remedies available to it under
Section 10.2 hereof, elect, by written notice from Purchaser to Seller (i) to
extend the time for delivery of such items or any of them to a date designated
in such notice or such later date as may be designated from time to time by
Purchaser, or (ii) to obtain such items or any of them and deduct all costs or
expenses incurred thereby from the Purchase Price.
(c) Searches. UCC, judgment and tax lien searches on the names of Seller
covering a date not earlier than seven (7) days prior to the date of closing
(the "Searches") showing no Title Defect as to the Property unless the same is
to be paid by Seller and released at or prior to the Closing.
-13-
6.4 DEFECTS AND REMOVAL OF LIENS.
----------------------------
(a) Defects. If the Title Commitment or the Title Policy discloses Title
Defects, or if the Survey discloses Title Defects then Seller shall have thirty
(30) days from the date of the delivery of the Title Commitment and Survey in
which to have such Title Defects removed from the Title Commitment or Title
Policy, or to remove such defects in the Survey or have the Title Company commit
to insure over same. If such unpermitted exceptions or defects are not removed
or insured over within the permitted time, Purchaser may elect, in addition to
Purchaser's remedies under Section 10.2 hereof, upon written notice to Seller
made within ten (10) days after the expiration of the permitted time (i) to
terminate this Agreement; (ii) to extend the permitted time for fifteen (15)
days in which such exceptions or defects may be removed or insured over; or
(iii) take title as it then is and deduct from the Purchase Price an amount
necessary to discharge and to obtain affirmative title insurance against loss
with respect to any unpermitted liens, encumbrances or restrictions. If
Purchaser fails to make a timely election, such failure shall constitute an
election under clause (ii) above to extend the permitted time in which such
exceptions or defects may be removed or insured over for an additional period of
fifteen (15) days and if such Title Defects are not removed or satisfactorily
insured over within said fifteen (15) days and Purchaser does not elect to
proceed under clause (iii) above within said time, Purchaser shall be deemed to
have elected to terminate this Agreement. Title Defects which are accepted by
Purchaser pursuant to clause (iii) shall thereupon be deemed to be Permitted
Exceptions and Exhibit "E" shall be amended, if necessary, to include such
additional Permitted Exceptions.
(b) Removal of Liens. If on the Closing Date there shall be any Title
Defect of a definite or ascertainable amount which is capable of satisfaction by
the payment of money, then Seller shall either (a) use a portion of the Purchase
Price to satisfy the same, provided Seller shall simultaneously deliver to
Purchaser at the Closing instruments, in recordable form, sufficient to satisfy
such Title Defect of record, together with the cost of recording or filing said
instrument; or (b) in the alternative, make arrangements with the Title Company
in advance of Closing whereby Seller will deposit with the Title Company
sufficient monies (which may be a portion of the Purchase Price), acceptable to
the Title Company, to induce the Title Company to issue the Title Policy to
Purchaser, either free of any such Title Defect or with insurance which "insures
over" such Title Defect.
6.5 ESCROW. This Agreement shall not be merged into the Escrow
Instructions but the Escrow Instructions shall be deemed auxiliary to this
Agreement and, as between the parties hereto, the provisions of this Agreement
shall govern and control.
-14-
ARTICLE VII
CLOSING DELIVERIES
-------------------
7.1 SELLER'S DELIVERIES. At Closing, Seller shall deliver or cause to be
delivered to Purchaser the following, each of which shall be in form and
substance reasonably acceptable to Purchaser and, in the case of documents of
transfer or conveyance, shall be accepted or consented to by all parties
required to make such transfer or conveyance effective:
(a) a recordable Warranty Deed from Seller to Purchaser conveying the Land
and Improvements subject only to the Permitted Exceptions;
(b) a ▇▇▇▇ of sale, with warranty of title, transferring to Purchaser all
of Seller's right, title and interest in and to the Fixtures and Tangible
Personal Property, to be transferred hereunder subject only to Permitted
Exceptions;
(c) the Assignment conveying and transferring to Purchaser all of Seller's
right, title and interest in, to and under the Permits;
(d) the certificates referred to in Subsection 10.1(b) hereof;
(e) The Title Policy issued by the Title Company in exact conformity with
the Title Commitment, in favor of Purchaser, in the amount of the Purchase
Price, showing good and marketable fee simple title in the Land and Improvements
to be vested in Purchaser subject only to the Permitted Exceptions;
(f) a FIRPTA Certificate;
(g) affidavit of title for the Land and Improvements executed by Seller, in
customary form;
(h) a Bulk Sales Stop Order from the Department under the provisions of the
Illinois Income Tax Act, Ill. Rev. Stat. ch. 120, para. 9-902(d) (1937) and the
Retailers' Occupation Tax Act, Ill. Rev. Stat. ch. 120, para. 444j (1987), dated
not earlier than fifteen (15) days before the Closing Date, and a full release
of claims from the Department with respect to all debts owned by Seller under
the Illinois Income Tax Act and the Retailers' Occupation Tax Act; provided,
however, that if such Stop Order requires the withholding of any portion of the
Purchase Price, Purchaser shall pay such withheld amount into an escrow with
Title Company, which escrow shall provide for the payment of funds therein to
the Department or the Seller, as further ordered by the Department. In no event
shall any funds so deposited be returned to Purchaser or be subject to any claim
or set off by Purchaser;
-15-
(i) the 1501 Lease and the 3333 Land Lease executed by Seller, as tenant.
(j) the opinion of Seller's counsel as provided by Subsection 10.1(c);
(k) the Closing Statement;
(l) State of Illinois and County of DuPage documentary stamp and
transaction declarations; and
(m) a certificate that the sale hereunder is not subject to RPTA (as
hereinafter defined) or that all filings and deliveries required thereby as
modified by this Agreement have been made or will be made at the Closing.
7.2 PURCHASER'S DELIVERIES. At Closing, Purchaser shall deliver or cause
to be delivered to Seller the following, each of which shall be in form and
substance reasonably acceptable to Seller and, in the case of documents of
transfer or conveyance, shall be accepted or consented to by all parties
required to make such transfer or conveyance effective:
(a) that portion of the Purchase Price required to be paid pursuant to
Sections 3.1 and 8.1 hereof;
(b) the certificate referred to in Subsection 9.1(b) hereof;
(c) the Closing Statement;
(d) the Assignment assuming all of Seller's obligations, duties and
liabilities under the Permits from and after the Closing Date;
(e) State of Illinois and County of DuPage documentary stamp declarations;
(f) the opinion of Purchaser's counsel as provided in Subsection 9.1(c);
and
(g) the 1501 Lease and the 3333 Lease executed by the Landlord under such
leases.
7.3 CONCURRENT TRANSACTIONS. All documents or other deliveries required to
be made by Purchaser or Seller at the Closing, and all transactions required to
be consummated concurrently with the Closing, shall be deemed to have been
delivered and to have been consummated simultaneously with all other
transactions and all other deliveries, and no delivery shall be deemed to have
been made, and no transaction shall
-16-
be deemed to have been consummated, until all deliveries required by Purchaser,
or its designee, and Seller shall have been made, and all concurrent or other
transactions shall have been consummated.
7.4 FURTHER ASSURANCES. Seller and Purchaser will, at the Closing or at
any time or from time to time thereafter, upon request of either party, execute
such additional instruments, documents or certificates as either party deems
reasonably necessary in order to satisfy and fulfill their respective
Obligations hereunder.
7.5 POSSESSION. Possession of the Property shall be delivered to
Purchaser at the Closing.
ARTICLE VIII
ADJUSTMENTS AND PRORATIONS - CLOSING STATEMENTS
8.1 ADJUSTMENTS AND PRORATIONS. The following matters and items shall be
apportioned between the parties hereto or, where appropriate, credited in total
to a particular party, as of the Closing Date as provided below:
(a) Taxes and Assessments. All ad valorem taxes, special or general
assessments, personal property taxes, water and sewer rents, rates and charges,
and other municipal permit fees (to the extent such permits are transferable)
for the 3333 Land Parcel shall be equitably prorated between the parties. If
the amount of any such item is not ascertainable on the Closing Date, the credit
therefor shall be based on one hundred percent (100%) of the most recent
available ▇▇▇▇ and shall be reprorated within thirty (30) days after receipt of
the final tax ▇▇▇▇ for each of 1996 and 1997. There shall be no proration of
the above items for the 1501 Land Parcel because Seller shall continue to be
responsible for such amounts as tenant, under the 1501 Lease.
(b) Other. Such other items as provided for in this Agreement or in the
case of the 3333 Land Parcel, as are normally prorated or adjusted in the sale
of vacant land.
8.2 CLOSING STATEMENTS. At the Closing the representatives of the
parties shall jointly prepare and deliver to each party a Closing Statement
which shall show the net amount due either to Seller or Purchaser as a result
thereof, and such net amount will be added to or subtracted from the payment of
the cash balance of the Purchase Price to be paid to Seller pursuant to Section
3.1 hereof; provided, however, that real estate taxes shall be dealt with in
accordance with Subsection 8.1(b).
-17-
ARTICLE IX
CONDITIONS TO SELLER'S OBLIGATIONS
-----------------------------------
9.1 CONDITIONS. Seller's obligation to close hereunder shall be subject
to the occurrence of each of the following conditions, any one or more of which
may be waived by Seller in writing.
(a) Purchaser's Compliance with Obligations. Purchaser shall have
complied in all material respects with all Obligations required by this
Agreement to be complied with by Purchaser.
(b) Truth of Purchaser's Representations and Warranties. The
representations and warranties of Purchaser contained in Section 5.2 were true
in all material respects when made, and are true in all material respects on the
Closing Date, and Seller shall have received a certificate to that effect signed
by an authorized agent of Purchaser.
(c) Opinion of Purchaser's Counsel. There shall have been delivered to
Seller a favorable opinion of Purchaser's counsel, dated the Closing Date as to
(i) the power and authority of Purchaser to execute and deliver this Agreement
and the Lease; and (ii) the due authorization, execution and delivery by
Purchaser of this Agreement and all other documents required to be executed and
delivered by Purchaser pursuant to Section 7.2 hereof.
9.2 FAILURE OF CONDITIONS. If any condition enumerated in Section 9.1 is
not fulfilled and Seller elect not to waive such conditions, such failure shall
be deemed a default by Purchaser hereunder and Seller shall be entitled to
pursue against Purchaser any and all remedies available to Seller hereunder, at
law or in equity.
ARTICLE X
CONDITIONS TO PURCHASER'S OBLIGATIONS
--------------------------------------
10.1 CONDITIONS. Purchaser's obligation to close hereunder shall be
subject to the occurrence of each of the following conditions, any one or more
of which may be waived by Purchaser in writing.
(a) Seller's Compliance with Obligations. Seller shall have complied in
all material respects with all Obligations required by this Agreement to be
complied with by Seller.
-18-
(b) Truth of Seller's Representations and Warranties. The representations
and warranties of Seller contained in Section 5.1 were true in all material
respects when made, and are true in all material respects on the Closing Date,
and Purchaser shall have received a certificate signed by the Seller to that
effect.
(c) Opinion of Seller's Counsel. There shall have been delivered to
Purchaser a favorable opinion of Seller's counsel, dated the Closing Date as to
(i) the power and authority of Seller to execute and deliver this Agreement; and
(ii) the due authorization, execution and delivery by Seller of this Agreement
and all other documents required to be executed and delivered by Seller pursuant
to Section 7.1 hereof.
(d) No Pending Adverse Litigation. On the Closing Date, there shall not
then be pending or, to the knowledge of either Purchaser or Seller, threatened,
against Seller any litigation, administrative proceeding, investigation or other
form of governmental enforcement or executive or legislative proceeding (other
than any litigation or proceeding arising out of acts or omissions of Purchaser
or anyone claiming by, through or under Purchaser) which, if determined
adversely, would restrain the consummation of any of the transactions herein
referred to, declare illegal, invalid or non-binding any of the covenants or
obligations of the parties herein, or have a material and adverse effect on the
operations of the Property, or materially and adversely affect the value of the
Property or the ability of Purchaser, after the Closing, to operate the Property
as currently operated or to construct an office building on the Vacant Parcel as
contemplated in the Vacant Land Lease.
10.2 FAILURE OF CONDITIONS. If any condition enumerated in Subsection
10.1 is not fulfilled, such failure shall be deemed a default by Seller
hereunder and Purchaser may at its election (x) proceed to close this
transaction or (y) terminate this Agreement, in either case retaining all rights
and remedies against Seller available to Purchaser at law or in equity. If
Purchaser elects to terminate this Agreement, the Deposit and any interest
earned thereon shall be immediately returned to Purchaser.
ARTICLE XI
ACTIONS AND OPERATIONS PENDING CLOSING
---------------------------------------
11.1 ACTIONS AND OPERATIONS PENDING CLOSING. Seller agrees that from and
after the date hereof:
(a) The Property will continue to be operated and maintained substantially
in accordance with present standards.
(b) Seller shall use commercially reasonable efforts to preserve in force
all existing Permits and to cause all those Permits expiring prior to the
Closing Date to be renewed prior to the Closing Date. If any such Permit shall
be suspended or revoked,
-19-
Seller shall promptly so notify Purchaser and use its best efforts to cause the
reinstatement of such Permit without any additional limitation or condition.
(c) Seller shall notify Purchaser promptly if Seller becomes aware of any
transaction or occurrence prior to the Closing Date which would make any of the
representations or warranties of Seller contained in Section 5.1 not true in any
material respect. Purchaser shall notify Seller promptly if Purchaser becomes
aware of any transaction or occurrence prior to the Closing Date which would
make any of the representations or warranties of Seller contained in Section 5.1
not true in any material respect.
(d) Seller will maintain in effect, all policies of casualty and liability
insurance, or similar policies of insurance, with the same limits of coverage
which it now carries with respect to the Property.
(e) Seller will not dispose of or remove any of the Property, except in
accordance with this Agreement.
(f) Seller shall not create or allow to arise any Title Defect.
ARTICLE XII
CASUALTIES AND TAKINGS
-----------------------
12.1 CASUALTIES. If any damage to the Property shall occur prior to the
Closing Date by reason of fire, windstorm, hail, explosion or other casualty,
and if, in Purchaser's reasonable judgment, the cost of repairing such damage
will materially affect the operation of the Property, or Purchaser's ability to
construct the office building on the Vacant Land Parcel as contemplated in the
Vacant Land Lease, Purchaser may elect to terminate this Agreement by giving
written notice to Seller in which event neither party shall have any further
Obligations or liability whatsoever to the other hereunder.
12.2 TAKINGS. In the event of the actual or threatened taking (either
temporary or permanent) in any condemnation proceedings by exercise of right of
eminent domain, of all or any part of the Land and Improvements, between the
date hereof and the Closing Date, and if, in Purchaser's reasonable judgment,
such taking will result in the inability to conduct the operations of the
Property substantially in accordance with the present standards or the inability
to construct the office building on the Vacant Land Parcel as contemplated in
the Vacant Land Lease, Purchaser may elect to: (i) terminate this Agreement by
giving written notice to Seller, in which event neither party shall have any
further Obligations or liability whatsoever to the other hereunder or (ii)
receive an assignment of all of Seller's rights to any condemnation award
relating to such taking and acquire the Property without any adjustment in the
Purchase Price.
-20-
ARTICLE XIII
INDEMNITIES
------------
13.1 SELLER'S INDEMNITY. Seller agrees to indemnify, defend (with
Purchaser having the right to retain separate counsel for the purpose of
participating in such defense, at its sole cost and expense) and hold Purchaser
harmless against all damages, losses and with respect to the following:
(a) except to the extent that Purchaser receives a credit therefor on the
Closing Statement, any and all obligations, liabilities, claims, accounts,
demands, liens or encumbrances, whether direct or contingent and no matter how
arising, in any way related to the Property, and arising or accruing on or
before the Closing Date or in any way related to or arising from any act,
conduct, omission, contract or commitment (subject to Section 3.3) of Seller, at
any time or times on or before the Closing Date, without limitation on the
generality of the foregoing, Seller indemnifies Purchaser from any claim or
judgment under any lawsuit or proceeding filed or pending prior to the Closing
Date against the Property, or any part thereof, and any costs or expenses
heretofore or hereafter incurred in connection with any such lawsuit or
proceeding;
(b) subject to Section 10.2, any loss or damage to Purchaser resulting
from any inaccuracy in or breach of any representation or warranty of Seller or
resulting from any breach or default by Seller of any Obligation of Seller under
this Agreement; and
(c) all costs and expenses, including reasonable attorneys' fees, related
to any actions, suits or judgments incident to any of the foregoing.
13.2 PURCHASER'S INDEMNITY. Purchaser agrees to indemnify, defend (with
Seller having the right to retain separate counsel for the purpose of
participating in such defense, at its sole cost and expense), and hold Seller
harmless against and with respect to the following:
(a) any loss or damage to Seller, subsequent to the Closing Date,
resulting from any inaccuracy in or breach of any representation or warranty of
Purchaser or resulting from any breach or default by Purchaser of any Obligation
of Purchaser under this Agreement;
(b) any and all obligations, liabilities, claims, accounts, demands, liens
or encumbrances, whether direct or contingent and no matter how arising for
which and to the extent Purchaser receives a credit therefore on the Closing
Statement; and all liabilities accruing after the Closing Date under any
contracts, leases or other obligations which are assumed by Purchaser at the
Closing pursuant to Section 3.3 and Subsection 7.2(d); and
-21-
(c) all costs and expenses, including reasonable attorneys' fees, relating
to any actions, suits or judgments incident to any of the foregoing.
13.3 NOTICE OF CLAIMS. Seller and Purchaser, as applicable, shall
promptly notify the other in the event any claim is made against Seller or
Purchaser as to which the other party has agreed to indemnify, and the
indemnitor shall thereupon undertake to defend and hold the indemnitee saved and
harmless therefrom.
ARTICLE XIV
NOTICES
-------
No notice or other communication shall be deemed given unless sent in any
of the manners, and to the persons, specified in this Article. All notices and
other communications hereunder shall be in writing and shall be deemed given (i)
upon receipt if delivered personally, if sent by overnight courier or if mailed
by registered or certified mail, postage prepaid, return receipt requested, or
(ii) upon the completion of transmission during normal business hours (or if
after normal business hours, the next business day after completion of
transmission) (which is confirmed by telephone or by a statement generated by
the transmitting machine) if transmitted by telecopy or other means of facsimile
which provides immediate or near immediate transmission to compatible equipment
in the possession of the recipient, in any case to the parties at the following
addresses or telecopy numbers (or at such other address or telecopy number for a
party as will be specified by like notice):
If to Seller, to: May & ▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No.: 630-717-7887
Confirmation No.: ▇▇▇-▇▇▇-▇▇▇▇
-22-
If to Purchaser, to: ▇▇▇▇▇▇ Partners
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇) ▇▇▇-▇▇▇▇
With an additional
copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇)▇▇▇-▇▇▇▇
Confirmation No.: (▇▇▇)▇▇▇-▇▇▇▇
ARTICLE XV
ADDITIONAL COVENANTS
---------------------
15.1 ADDITIONAL COVENANTS. In addition, the parties agree as follows:
(a) Expenses. Except as set forth in Section 6.2, the fees and expenses of
Seller's designated representatives, accountants and attorneys shall be borne by
Seller, and the fees and expenses of Purchaser's designated representatives,
accountants and attorneys shall be borne by Purchaser.
(b) Brokerage. Purchaser and Seller each covenants, warrants and represents
to the other that no broker or finder has acted on behalf of such party in
connection with this Agreement or the transactions contemplated hereby and that
such party has made no agreement to pay any agent, finder, broker or any other
representative any fee or commission in the nature of a finder's or originator's
fee arising out of or in connection with the subject matter of this Agreement.
Purchaser and Seller each hereby agrees to indemnify, defend and hold the other
harmless against and from any and all manner of claims, liabilities, loss,
damage, attorneys' fees and expenses, incurred by either party and arising out
of, or resulting from, any claim by any such broker or finder in contravention
of its representation and warranty herein contained.
(c) Survival of Covenants, etc. Except as otherwise specifically set forth
herein, the representations, warranties, obligations, covenants, agreements,
undertakings and indemnifications of each of Seller and Purchaser contained
herein shall survive the Closing.
-23-
(d) Construction. This Agreement shall not be construed more strictly
against one party than against the other, merely by virtue of the fact that it
may have been prepared primarily by counsel for one of the parties, it being
recognized that both Purchaser and Seller have contributed substantially and
materially to the preparation of this Agreement.
(e) Publicity. Except as required by law, neither party shall, directly or
indirectly, disclose or confirm to any person that discussions have taken place
between the parties, the existence of or the terms or conditions of this
Agreement or any of the terms, conditions or other facts regarding the
transaction proposed hereby, including the status thereof. The parties hereto
agree to mutually approve the timing, content and dissemination of any public
announcement relating to the transaction contemplated hereby, except to the
extent any party is not reasonably able to consult with or obtain the approval
of the other party in situations in which disclosures are required by applicable
law.
(f) General. This Agreement may be executed in any number of counterparts,
each of which shall constitute an original but all of which, taken together,
shall constitute but one and the same instrument. This Agreement (including all
Exhibits hereto) contains the entire agreement between the parties with respect
to the subject matter hereof, supersedes all prior understandings, if any, with
respect thereto and may not be amended, supplemented or terminated, nor shall
any Obligation hereunder or condition hereof be deemed waived, except by a
written instrument to such effect signed by the party to be charged or as
otherwise specifically set forth herein. This Agreement shall be governed by
and construed in accordance with the laws of the State of Illinois. The
warranties, representations, agreements and undertakings contained herein shall
not be deemed to have been made for the benefit of any person or entity, other
than the parties hereto and their permitted successors and assigns. Neither
Purchaser nor Seller shall assign its rights or delegate its duties hereunder
without the prior written consent of the other party; provided, Purchaser shall
have the right to assign its rights and obligations under this Agreement to a
limited partnership or limited liability company of which the principals of RERC
Capital Markets L.L.C. or an entity owned by RERC Capital Markets L.L.C. as one
of the general partners or a member, without the consent of Seller. Captions
used herein are for convenience only and shall not be used to construe the
meaning of any part of this Agreement.
(g) FIRPTA, RPTA and Illinois Taxes.
-------------------------------
(i) Seller agrees to furnish Purchaser such evidence as Purchaser may
reasonably request, to establish that Seller is not a foreign person for
the purpose of Section 1445 of the Internal Revenue Code of 1986, as
amended ("Section 1445"). In the event that Seller does not furnish such
certification or a qualifying statement for the U.S. Treasury Department
that the transaction is exempt from the withholding requirements of Section
1445, Seller agrees that the escrowee shall be directed to pay such amount
required by law to the Internal Revenue Service
-24-
in accordance with the laws and regulations regarding the withholding
requirements of Section 1445 out of Seller's net proceeds from the Closing.
(ii) At least thirty-five (35) days prior to closing, Seller shall deliver
to Purchaser evidence reasonably satisfactory to Purchaser that the sale of the
Property to Purchaser hereunder is not subject to, and does not subject
Purchaser to liability under Ill. Rev. Stat. ch. 120, paras. 9-902(d), and 444J;
and ch. 48, para. 750 (1987). If such evidence is not so delivered to Purchaser,
then Seller shall, or Purchaser may, notify the Department and the Illinois
Department of Labor of the pending sale and request the Department and
Department of Labor to make a determination as to whether the Seller has an
assessed, but unpaid taxes and contributions for unemployment compensation. The
parties shall withhold in the Escrow any amounts required by the Department or
the Department of Labor until the appropriate agency furnishes Seller and
Purchaser with a letter advising that all sales and income taxes and
contributions for unemployment compensation due to the State of Illinois from
the Seller have been paid and releasing Purchaser from any withholding
requirements including, but not limited to, those of Ill. Rev. Stat. ch. 120,
paras. 9-902(d), and 444j; and ch. 48, para. 750 (1987) or the period of time to
furnish such letter in accordance with the applicable statutes of the State of
Illinois has expired, whichever is earlier.
(iii) Within twenty (20) days after the Agreement Date, Seller shall
deliver to Purchaser a fully completed and executed disclosure document for the
Property pursuant to the Illinois Responsible Property Transfer Act, Ill. Rev.
Stat. ch. 30, para. 901 et seq. ("RPTA") and shall record such disclosure
document.
(h) Exclusive Negotiations. From and after the date hereof through the
Closing Date or the date that this Agreement is terminated as provided herein,
Seller shall not, directly or indirectly, initiate, encourage or entertain any
bid, submission of proposal or offer to purchase, lease or manage the Property
or any part thereof, or participate in any negotiations regarding, furnish to
any person any information with respect to or otherwise cooperate with, assist,
participate in or encourage any effort or attempt by any person to acquire,
lease or manage the Property, or any part thereof.
-25-
IN WITNESS WHEREOF, the parties hereto have executed or caused this
Agreement to be executed, all as of the day and year first above written.
SELLER:
MAY & ▇▇▇▇, INC., a Delaware corporation
Attest:
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Its: ------------------------------------
-------------------- ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Secretary Chairman of the Board of Directors
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President and Chief Executor Officer
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Executive Vice President,
Chief Financial Officer
PURCHASER:
▇▇▇▇▇▇ PARTNERS L.L.C.,
an Illinois limited liability
company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Managing Member
-26-