Exhibit 10.41
EXECUTION VERSION
REAL ESTATE SALE AGREEMENT
by and between
DONNELLEY FINANCIAL, LLC,
as Seller
and
hsg acquisitions LLC,
as Purchaser
1500 N. Central avenue, Phoenix, Arizona
THIS REAL ESTATE SALE AGREEMENT (this “Agreement”) is made and entered into as of August ____, 2021 (the “Contract Date”), by and between DONNELLEY FINANCIAL, LLC, a Delaware limited liability company (“Seller”) and HSG ACQUISITIONS LLC, an Illinois limited liability company (“Purchaser”).
PRELIMINARY STATEMENTS
In consideration of the recitals, the mutual covenants hereafter set forth, and other good and valuable considerations, the receipt and sufficiency of which are mutually acknowledged, it is agreed by and between the parties as follows:
The Premises, Improvements, and the Licenses and Permits are herein collectively referred to as the “Property.”
(b) Prior to Closing, Purchaser will have the opportunity to inspect the Property and to observe its physical characteristics and existing conditions and the opportunity to conduct such investigations and studies of the Property and adjacent areas as Purchaser deems reasonably necessary. Effective from and after Closing, Purchaser will FOREVER RELEASE AND DISCHARGE AND COVENANT NOT TO SUE Seller and its partners, shareholders, members, managers, trustors, trustees, beneficiaries, officers, directors, agents, employees, property manager, controlling persons, affiliates, successors-in-title, successors and assigns (“Seller Parties”), from any and all liabilities, losses, claims (including third party claims), demands, damages (of any nature whatsoever), causes of action, costs, penalties, fines, judgments, attorneys' fees, consultants' fees and costs and experts' fees, whether direct or indirect, known or unknown, foreseen or unforeseen (collectively, "Claims") that may arise on account of or in any way be connected with the Property or any law or regulation applicable thereto, including but not limited to any Claim or matter (regardless of when it first appeared) relating to or arising from (a) the presence of any environmental problems, or the use, presence, storage, release, discharge or migration of Hazardous Materials on, in, under or around the Property or migrating from the Property, (b) any patent or latent defects or deficiencies with respect to the Property, (c) any and all matters related to the Property or any portion thereof, including the condition and/or operation of the Property and each part thereof, the valuation, salability, or utility
of the Property, or its suitability for any purpose whatsoever, and (d) the presence, release and/or remediation of asbestos and asbestos containing materials in, on or about the Property, regardless of when such asbestos or asbestos containing materials were first introduced in, on or about the Property. However, notwithstanding anything herein to the contrary, no release, waiver or covenant not to sue in this Agreement extends to, and Purchaser expressly excludes from the release and reserves against Seller all rights and remedies related to, claims arising from (A) fraud, gross negligence or willful misconduct by Seller, (B) any claim by a third party for bodily injury, death or property loss or damage first occurring prior to the Closing Date, or (C) claims made under and subject to the terms of Section 6(c) of this Agreement (collectively, the “Excluded Claims”).
(c) To the greatest extent permitted by applicable law, Purchaser hereby agrees, represents and warrants to Seller that Purchaser realizes and acknowledges that factual matters now unknown to Purchaser may have given or may hereafter give rise to Claims which are presently unknown, unanticipated and unsuspected, and Purchaser further agrees, represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Purchaser nevertheless hereby intends to release Seller from any such unknown Claims, other than Excluded Claims, which might in any way be included as a material portion of the consideration given to Seller by Purchaser in exchange for Seller's performance hereunder. Without limiting the foregoing, if Purchaser has actual knowledge of (i) a default in any of the covenants, agreements or obligations to be performed by Seller under this Agreement and/or (ii) any breach or inaccuracy in any representation of Seller made in this Agreement, and Purchaser nonetheless elects to proceed to Closing, then, upon the consummation of the Closing, Purchaser shall have no Claim against Seller or hereunder with respect thereto. Notwithstanding anything to the contrary set forth herein, and except with respect to the Excluded Claims, Seller shall not have any liability whatsoever to Purchaser with respect to any matter disclosed to Purchaser in writing or actually discovered by Purchaser prior to the Closing Date.
(d) Survival. Section 9 shall indefinitely survive the Closing and shall remain in effect even if the other terms of this Agreement cease to be effective.
In the event that any of the foregoing conditions shall not have been fulfilled (or waived by Purchaser, in Purchaser’s sole and absolute discretion) on or before the time for Closing hereunder, then Purchaser may elect, upon written notice to Seller, to terminate this Agreement, in which event the Earnest Money (including the Nonrefundable Deposit) shall promptly be returned to Purchaser, and, except for the provisions of this Agreement that expressly survive Closing or earlier termination of this Agreement, this Agreement shall be void and of no further force and effect, and neither party shall have any liability to the other by reason hereof, provided that if such failure is the result of a default by Seller of the terms of this Agreement then the terms of Section 17(b) below shall apply.
As used herein, “Permitted Exceptions” shall mean: (1) any exception arising out of an act of Purchaser or its representatives, agents, employees or independent contractors; (2) zoning and subdivision ordinances and regulations; (3) the specific exceptions in the Title Commitment that the Title Company has not agreed to insure over or remove from the Title Commitment prior to the expiration of the Due Diligence Period (specifically excluding Seller Encumbrances); (4) items shown on the Survey which have not been removed prior to the Closing Date (specifically excluding Seller Encumbrances); and (5) real estate taxes and assessments not yet due and payable.
(2) Charges. Any water, electricity, sewer, gas, and other similar charges, on an accrual basis (based on Seller and Purchaser’s period of ownership of the Premises), on the basis of, to the extent practicable, final meter readings and final invoices.
(b) Seller Default. If the Closing fails to occur as a result of any default by Seller, or if any of Seller’s representations or warranties set forth in Section 6(a) are untrue as of the Contract Date, then provided Purchaser is not in default, Purchaser may, if such default is not cured after five (5) days written notice to Seller, in its sole and absolute discretion, either:
(c) Specific Performance Unavailable. Notwithstanding the foregoing, if specific performance of Seller’s obligation to convey the Premises is not available to Purchaser due to an intentional act of Seller (i.e., Seller has sold the Premises to another party), in addition to terminating this Agreement (whereupon the Earnest Money, including the Nonrefundable Deposit, shall be promptly returned to Purchaser by Escrow Agent and Seller as applicable), Purchaser may seek all damages against Seller as determined by a court of competent jurisdiction (with such damages not to exceed the Purchase Price), and after Purchaser has received all such amounts, neither party shall have any further liability or obligation to the other, except for the provisions of this Agreement which are expressly stated to survive the termination of this Agreement.
(d) Survival. This Section 17 shall survive the termination of this Agreement.
IF TO SELLER:
Donnelley Financial, LLC
35 W Wacker, 37th Floor
Chicago, Illinois 60601
Attention: General Counsel
Telephone: 312-326-7218
Email: andrea.aktan@DFINsolutions.com
with copies to:
Jones Day
250 Vesey Street
New York, New York 10281
Attention: Tito Escobar
Telephone: 212-326-3891
Email: tescobar@jonesday.com
IF TO PURCHASER:
c/o Hubbard Street Group
225 W. Hubbard St., 4th Floor
Chicago, Illinois 60654
Attn: John McLinden and Kage Brown
Email: jmclinden@hubbardstreetgroup.com; kbrown@hubbardstreetgroup.com
with a copy to:
c/o CP2 Management LLC
225 West Hubbard Street, Suite 501
Chicago, IL 60654
Attn: Legal Department
Email: Sbengtsson@cp2llc.com
With a copy to:
Greenberg Traurig LLP
77 W. Wacker Drive, Suite 3100
Chicago, Illinois 60601
Attn: Michael Baum
Email: baumm@gtlaw.com
If to Escrow Agent:
Chicago Title Insurance Company
10 S. LaSalle Street, Suite 3100
Chicago, Illinois 60603
Attn: Steve Isaacson
Email: steve.isaacson@ctt.com
or to such additional or other persons, at such other address or addresses as may be designated by notice from Purchaser or Seller, as the case may be, to the other. Notice given by electronic mail shall be followed by notice given by an alternate means of permitted notice. Notice shall be deemed given and received on the date on which the notice is actually received, whether notice is given by electronic mail, personal delivery, overnight courier or by mail. Notices may be provided by counsel to Purchaser and Seller on their behalf.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Contract Date.
SELLER:
DONNELLEY FINANCIAL, LLC, a Delaware limited liability company
By: /s/ Jons Besch
Name: Jons Besch
Its: EVP-Operations
PURCHASER:
HSG ACQUISITIONS LLC,
an Illinois limited liability company
By: /s/ John McLinden
Name: John McLinden
Its: Manager
August 20, 2021 (the “Contract Date”)
Signing with respect to Section 24 only:
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By: /s/ Ruby Rodriguez
Name: Ruby Rodriguez
Its: Escrow Administrator
CCHI2106028NJ
LIST OF EXHIBITS
EXHIBIT A | DEPICTION AND LEGAL DESCRIPTION OF REAL PROPERTY |
EXHIBIT B | FORM OF DEED |
EXHIBIT C | PROPERTY INFORMATION |
EXHIBIT D | FORM OF FIRPTA |
EXHIBIT E | SCOPE OF DEMOLITION |
EXHIBIT F | DEPICTION OF STORM WATER INLET |
EXHIBIT A
DEPICTION AND LEGAL DESCRIPTION OF real property
[ATTACHED]
EXHIBIT B
FORM OF DEED
When Recorded, Return To:
_______________________
_______________________
_______________________
_______________________
SPECIAL WARRANTY DEED
FOR VALUABLE CONSIDERATION, ___________________________ (“Grantor”), does hereby sell, grant, transfer and convey to ____________________________ (“Grantee”), the real property situated in _______________ County, Arizona, legally described on Exhibit “A” attached hereto and incorporated herein by this reference, together with all of Seller’s right, title and interest, if any, in and to: (a) all buildings, structures, and improvements now or hereafter located thereon, (b) all development rights, credits, reimbursements, refunds, air rights, water, water rights (including any grandfathered groundwater or other groundwater or surface water rights), wells and well rights, and water stock relating to the real property, (c) rights to adjoining strips and gores, streets, alleys, easements, rights-of-way, public ways, or other rights appurtenant, adjacent, or connected to the real property, (d) all oil rights, gas rights, minerals, mineral rights, oil, gas, and other hydrocarbon substances in and under, or that may be produced from, the real property, and (e) all other rights, entitlements, easements, privileges, appurtenances, hereditaments, permits, approvals, reversions, and remainders pertaining to such real property or used in connection therewith (collectively, the “Property”).
SUBJECT ONLY TO THOSE MATTERS SET FORTH ON EXHIBIT B ATTACHED HERETO.
Grantor does hereby bind itself and its successors to warrant and defend title to the Property, against all acts of Grantor, and no other, subject to the matters set forth.
[SIGNATURE PAGE TO FOLLOW]
Dated this ____ day of ___________, 20__.
DONNELLEY FINANCIAL, LLC, a Delaware limited liability company
By______________________________________
Name____________________________________
Its_______________________________________
STATE OF )
)ss.
COUNTY OF )
The foregoing instrument was acknowledged before me this ________ day of ________________, 20___, by ______________________, the ___________________ of ________________________________, on behalf of the company.
WITNESS my hand and official seal.
________________________________________
Notary Public
My Commission Expires:
Exhibit “A”
To Special Warranty Deed
Legal Description
[ATTACHED]
Exhibit “B”
To Special Warranty Deed
[ATTACHED]
TO INCLUDE FINAL EXCEPTIONS TO TITLE POLICY
EXHIBIT c
LIST OF PROPERTY INFORMATION
EXHIBIT D
FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code, as amended, provides that a transferee of a United States real property interest must withhold tax if the transferor is a foreign person. To inform the Transferee (hereinafter defined) that withholding of tax is not required upon the disposition of a United States real property interest by [______________] (the “Transferor”) to [____________] (the “Transferee”) relating to the real property described on Schedule A hereto (the “Transferred Interests”), the undersigned, being first duly sworn upon oath, does hereby depose and say that the following is true as of the date hereof:
The undersigned and the Transferor understand that this affidavit and certification may be disclosed to the United States Internal Revenue Service by the Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
All terms (whether capitalized or not) used but not defined herein shall have the same respective meanings as in the Internal Revenue Code of 1986, as amended, and the United States Treasury Department Income Tax Regulations in effect as of the date hereof.
Under penalties of perjury, the undersigned declares that the undersigned has examined this affidavit and certificate, and to the best knowledge and belief of the undersigned, it is true, correct and complete. The undersigned further declares that the undersigned has authority to sign this affidavit and certificate on behalf of the Transferor.
IN WITNESS WHEREOF, Transferor has executed and delivered this FIRPTA Affidavit as of ____________, 20__.
DONNELLEY FINANCIAL, LLC, a Delaware limited liability company
By:_______________________________
Name:_____________________________
Its:________________________________
[ADD NOTARY BLOCK]
SCHEDULE A
TO
FIRPTA AFFIDAVIT
LEGAL DESCRIPTION
[ATTACHED]
Exhibit E
[Attached]
Exhibit F
[Attached]