AGREEMENT OF SALE
THIS AGREEMENT OF SALE (this "Agreement"), is entered into as of the 9th
day of May, 1997 by and between FRIEDMAN PROPERTIES, LTD., an Illinois
corporation ("Purchaser"), and 420 N. WABASH LIMITED PARTNERSHIP, an Illinois
limited partnership ("Seller").
W I T N E S S E T H:
1. PURCHASE AND SALE. Purchaser agrees to purchase and Seller agrees to sell
at the price of Five Million Two Hundred Thousand And No/100 Dollars
($5,200,000.00) (the "Purchase Price"), Seller's interest in that certain
property commonly known as 420 N. Wabash, Chicago, Illinois consisting of the
following:
1.1. a leasehold estate (the "Leasehold Estate") in the real property
(the "Leasehold Property") legally described on Exhibit A attached hereto,
together with all of Seller's right, title and interest in and to all easements
and appurtenances thereunto belonging and all streets, alleys and public ways
adjacent thereto, if any;
1.2. all of Seller's right, title and interest in and to the buildings
and improvements located on the Leasehold Property for a term of 60 years until
December 31, 2041 or until the "Ground Lease" (hereinafter defined) is
terminated, whichever is sooner, which estate is created and limited by deeds
dated March 27, 1981 and recorded March 27, 1981 as Document 25820551 and
Document 25820552, and corrected by deeds dated May 22, 1981 and recorded May
26, 1981 as Document Numbers 25882307 and 25881401, and corrected by deeds
dated July 1, 1981 and recorded July 21, 1981 as Document Numbers 25943919 and
25943918 (the "Improvements") (the Improvements and the Leasehold Estate are
collectively referred to herein as the "Property"); and
1.3. the personal property set forth on Exhibit B attached hereto (the
"Personal Property").
2. PURCHASE PRICE. The Purchase Price shall be paid by Purchaser as follows:
2.1. Upon the execution of this Agreement, the sum of One Hundred
Thousand and No/100 Dollars ($100,000.00) (the "Earnest Money") to be held in
escrow by and in accordance with the provisions of the Escrow Agreement
("Escrow Agreement") attached hereto as Exhibit C;
2.2. On or before the expiration of the "Inspection Period" (as
hereinafter defined), the additional sum of One Hundred Fifty Thousand and
No/100 Dollars ($150,000.00) (the "Additional Earnest Money", which, to the
extent deposited, shall be included within the definition of "Earnest Money")
to be held in escrow in accordance with the provisions of the Escrow Agreement;
and
2.3. On the "Closing Date" (hereinafter defined), the balance of the
Purchase Price, adjusted in accordance with the prorations, by federally wired
"immediately available" funds, on or before 11:00 a.m Chicago time.
3. TITLE COMMITMENT AND SURVEY.
3.1. Attached hereto as Exhibit D is a copy of a title commitment for a
leasehold title insurance policy issued by Chicago Title Insurance Company
(hereinafter referred to as "Title Insurer") designated as Order No.: 1401
007652946 D1, dated April 17, 1997 for the Property (the "Title Commitment").
For purposes of this Agreement, "Permitted Exceptions" shall mean: (a) general
real estate taxes, association assessments, special assessments, special
district taxes and related charges not yet due and payable; (b) matters shown
on the "Survey" (hereinafter defined); (c) matters caused by the actions of
Purchaser; and (d) the title exceptions set forth in Schedule B of the Title
Committment as Numbers 4, 12, 13, 14, 15, 16, 17, and 18. All other exceptions
to title shall be referred to as "Unpermitted Exceptions". The Title
Commitment shall be conclusive evidence of good title as therein shown as to
all matters to be insured by the title policy, subject only to the exceptions
therein stated. On the Closing Date, Title Insurer shall deliver to Purchaser
a standard title policy in conformance with the previously delivered Title
Commitment, subject to Permitted Exceptions and Unpermitted Exceptions waived
by Purchaser (the "Title Policy"). Seller and Purchaser shall each pay for
one-half of the costs of the Title Commitment and Title Policy other than the
costs of any endorsements to, or extended coverage on, the Title Policy, which
shall be paid by Purchaser.
3.2. Purchaser has received a survey of the Property prepared by
Certified Survey Co., dated November 12, 1996, Order No. 81608 (the "Survey").
Seller shall deliver a recertified survey (the "Recertified Survey") to
Purchaser within seven (7) days after the date hereof. Purchaser and Seller
shall each pay for one-half of the costs of the Recertified Survey.
Additionally, if Purchaser requires further recertification of the Recertified
Survey, Seller shall provide a final survey (the "Final Survey") to Purchaser
within fourteen (14) days prior to the Closing. Purchaser hereby agrees to be
solely responsible for the costs, if any, of obtaining the Final Survey.
Purchaser hereby acknowledges that all matters disclosed by the Survey are
acceptable to Purchaser.
3.3. The obligation of Purchaser to pay various costs set forth in
Paragraphs 3.1 and 3.2 shall survive the Closing and the termination of this
Agreement.
4. PAYMENT OF CLOSING COSTS.
4.1. In addition to the costs set forth in Paragraphs 3.1 and 3.2,
Purchaser and Seller shall each pay for one-half of the costs of the
documentary or transfer stamps to be paid with reference to the "Assignment and
Assumption of Ground Lease" (hereinafter defined) and the "Deed" (hereinafter
defined) and all other stamps, intangible, transfer, documentary, recording,
sales tax and surtax imposed by law with reference to any other sale documents
delivered in connection with the sale of the Property to Purchaser and all
other charges of the Title Insurer in connection with this transaction.
4.2. Seller and Purchaser shall each pay one-half (1/2) of all closing
costs and escrow fees.
5. CONDITION OF TITLE.
5.1. If, prior to "Closing" (as hereinafter defined), a date-down to the
Title Commitment discloses any new Unpermitted Exception, Seller shall have
thirty (30) days from the date of the date-down to the Title Commitment, at
Seller's expense, to (i) bond over, cure and/or have any Unpermitted Exceptions
which, in the aggregate, do not exceed $25,000.00, removed from the Title
Commitment or to have the Title Insurer commit to insure against loss or damage
that may be occasioned by such Unpermitted Exceptions, or (ii) have the right,
but not the obligation, to bond over, cure and/or have any Unpermitted
Exceptions which, in the aggregate, equal or exceed $25,000.00, removed from
the Title Commitment or to have the Title Insurer commit to insure against loss
or damage that may be occasioned by such Unpermitted Exceptions. In such
event, the time of Closing shall be delayed, if necessary, to give effect to
said aforementioned time periods. If Seller fails to cure or have said
Unpermitted Exception removed or have the Title Insurer commit to insure as
specified above within said thirty (30) day period or if Seller elects not to
exercise its rights under (ii) in the preceding sentence, Purchaser may
terminate this Agreement upon notice to Seller within five (5) days after the
expiration of said thirty (30) day period. Absent notice from Purchaser to
Seller in accordance with the preceding sentence, Purchaser shall be deemed to
have elected to take title subject to said Unpermitted Exception. If Purchaser
terminates this Agreement in accordance with the terms of this Paragraph 5.1,
this Agreement shall become null and void without further action of the parties
and all Earnest Money theretofore deposited into the escrow by Purchaser
together with any interest accrued thereon, shall be returned to Purchaser, and
neither party shall have any further liability to the other, except for
Purchaser's obligation to indemnify Seller and restore the Property, as more
fully set forth in Paragraph 7. If any new Unpermitted Exception is the result
of Seller's intentional act which prevents the Closing of the transaction
contemplated herein then the act of creating such Unpermitted Exception shall
be considered a default by Seller under this Agreement and Purchaser shall be
entitled to those rights and remedies set forth in Paragraph 11 herein.
5.2. Seller agrees to convey its interest in the Leasehold Estate to
Purchaser by assigning to Purchaser all of Seller's right, title and interest
created by that certain Lease (herein referred to as the "Ground Lease")
executed by Marvin Schlanger, as Trustee under the Laura Schlanger Trust II;
Marvin Schlanger, as Trustee under Keith Schlanger Trust II; Marvin Schlanger,
as Trustee under Julia Schlanger Trust II; Shirlee Dolgin, as Trustee under
Robert Dolgin Trust III; Shirley Dolgin, as Trustee under David Dolgin Trust
III; and Shirlee Dolgin, as Trustee under Kenneth Dolgin Trust III, Lessors,
and American National Bank and Trust Company, as Trustee, Lessee, dated July 1,
1981, which lease demises the land (except the buildings and improvements now
located on the land) for a term of years beginning July 1, 1981 and ending
December 31, 2041, pursuant to an Assignment and Assumption of Ground Lease
(the "Assignment and Assumption of Ground Lease") and to convey fee simple
title to the Improvements to Purchaser by Special Warranty Deed (the "Deed") in
recordable form, both subject only to the Permitted Exceptions and any
Unpermitted Exceptions waived by Purchaser.
6. CONDEMNATION, EMINENT DOMAIN, DAMAGE AND CASUALTY.
6.1. Except as provided in the indemnity provisions contained in
Paragraph 7.1 of this Agreement, Seller shall bear all risk of loss with
respect to the Property up to the earlier of the dates upon which either
possession or title is transferred to Purchaser in accordance with this
Agreement. Notwithstanding the foregoing, in the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost less than or equal to $100,000.00 (as determined by Seller in good
faith) Purchaser shall not have the right to terminate its obligations under
this Agreement by reason thereof, but Seller shall have the right to elect to
either repair and restore the Property (in which case the Closing Date shall be
extended until completion of such restoration) or to assign and transfer to
Purchaser on the Closing Date all of Seller's right, title and interest in and
to all insurance proceeds paid or payable to Seller on account of such fire or
casualty, and Seller shall pay to Purchaser at the Closing the amount of the
Seller's insurance deductible. Seller shall promptly notify Purchaser in
writing of any such fire or other casualty and Seller's determination of the
cost to repair the damage caused thereby. In the event of damage to the
Property by fire or other casualty prior to the Closing Date, repair of which
would cost in excess of $100,000.00 (as determined by Seller in good faith),
then this Agreement may be terminated at the option of Purchaser, which option
shall be exercised, if at all, by Purchaser's written notice thereof to Seller
within five (5) business days after Purchaser receives written notice of such
fire or other casualty and Seller's determination of the amount of such
damages, and upon the exercise of such option by Purchaser this Agreement shall
become null and void, the Earnest Money deposited by Purchaser shall be
returned to Purchaser together with interest thereon, and neither party shall
have any further liability or obligations hereunder. In the event that
Purchaser does not exercise the option set forth in the preceding sentence, the
Closing shall take place on the Closing Date and Seller shall assign and
transfer to Purchaser on the Closing Date all of Seller's right, title and
interest in and to all insurance proceeds paid or payable to Seller on account
of the fire or casualty, and Seller shall pay to Purchaser at the Closing the
amount of Seller's insurance deductible. Seller hereby represents and warrants
to Purchaser that it maintains, and at all times through the Closing will
maintain, replacement cost insurance for the Property.
6.2. If between the date of this Agreement and the Closing Date, any
condemnation or eminent domain proceedings are initiated which might result in
the taking of any part of the Property or the taking or closing of any right of
access to the Property, Seller shall immediately notify Purchaser of such
occurrence. In the event that the taking of any part of the Property shall:
(i) materially impair access to the Property; (ii) cause any material
non-compliance with any applicable law, ordinance, rule or regulation of any
federal, state or local authority or governmental agencies having jurisdiction
over the Property or any portion thereof; or (iii) materially and adversely
impair the use of the Property as it is currently being operated (hereinafter
collectively referred to as a "Material Event"), Purchaser may:
6.2.1. terminate this Agreement by written notice to Seller, in
which event the Earnest Money deposited by Purchaser, together with interest
thereon, shall be returned to Purchaser and all rights and obligations of the
parties hereunder with respect to the closing of this transaction will cease;
or
6.2.2. proceed with the Closing, in which event Seller shall assign
to Purchaser all of Seller's right, title and interest in and to any award made
in connection with such condemnation or eminent domain proceedings.
6.3. Purchaser shall then notify Seller, within five (5) business days
after Purchaser's receipt of Seller's notice, whether Purchaser elects to
exercise its rights under Paragraph 6.2.1 or Paragraph 6.2.2. Closing shall be
delayed, if necessary, until Purchaser makes such election. If Purchaser fails
to make an election within such five (5) business day period, Purchaser shall
be deemed to have elected to exercise its rights under Paragraph 6.2.2. If
between the date of this Agreement and the Closing Date, any condemnation or
eminent domain proceedings are initiated which do not constitute a Material
Event, Purchaser shall be required to proceed with the Closing, in which event
Seller shall assign to Purchaser all of Seller's right, title and interest in
and to any award made in connection with such condemnation or eminent domain
proceedings.
7. INSPECTION AND AS-IS CONDITION.
7.1. During the period commencing on the date hereof and ending at 5:00
p.m. Chicago time on June 23, 1997 (said period being herein referred to as the
"Inspection Period"), Purchaser and the agents, engineers, employees,
contractors and surveyors retained by Purchaser may enter upon the Property, at
any reasonable time and upon reasonable prior notice to Seller, to inspect the
Property, including a review of leases located at the Property, and to conduct
and prepare such studies, tests and surveys as Purchaser may deem reasonably
necessary and appropriate. In connection with Purchaser's review of the
Property, Seller agrees to deliver to Purchaser copies of the current rent roll
for the Property, tenant leases, the most recent tax and insurance bills,
utility account numbers, service contracts, and unaudited year end 1995 and
1996, as well as year-to-date 1997 (to the extent available), operating
statements.
All of the foregoing tests, investigations and studies to be conducted
under this Paragraph 7.1 by Purchaser shall be at Purchaser's sole cost and
expense and Purchaser shall restore the Property to the condition existing
prior to the performance of such tests or investigations by or on behalf of
Purchaser. Purchaser shall defend, indemnify and hold Seller and any
affiliate, parent of Seller, and all shareholders, employees, officers and
directors of Seller or Seller's affiliate or parent (hereinafter collectively
referred to as "Affiliate of Seller") harmless from any and all liability, cost
and expense (including without limitation, reasonable attorney's fees, court
costs and costs of appeal) suffered or incurred by Seller or Affiliates of
Seller for injury to persons or property caused by Purchaser's investigations
and inspection of the Property. Purchaser shall undertake its obligation to
defend set forth in the preceding sentence using attorneys selected by Seller,
in Seller's sole discretion.
Prior to commencing any such tests, studies and investigations, Purchaser
shall furnish to Seller a certificate of insurance evidencing comprehensive
general public liability insurance insuring the person, firm or entity
performing such tests, studies and investigations and listing Seller and
Purchaser as additional insureds thereunder.
If Purchaser is dissatisfied with the results of the tests, studies or
investigations performed or information received pursuant to this Paragraph
7.1, or for any other reason whatsoever, Purchaser shall have the right to
terminate this Agreement by giving written notice of such termination to Seller
at any time prior to the expiration of the Inspection Period. If written
notice is not received by Seller pursuant to this Paragraph 7.1 prior to the
expiration of the Inspection Period, then the right of Purchaser to terminate
this Agreement pursuant to this Paragraph 7.1 shall be waived. If Purchaser
terminates this Agreement by written notice to Seller prior to the expiration
of the Inspection Period: (i) Purchaser shall promptly deliver to Seller copies
of all studies, reports and other investigations obtained by Purchaser in
connection with its due diligence during the Inspection Period; and (ii) the
Earnest Money deposited by Purchaser shall be immediately paid to Purchaser,
together with any interest earned thereon, and neither Purchaser nor Seller
shall have any right, obligation or liability under this Agreement, except for
Purchaser's obligation to indemnify Seller and restore the Property, as more
fully set forth in this Paragraph 7.1. Notwithstanding anything contained
herein to the contrary, the terms of this Paragraph 7.1, shall survive the
Closing and the delivery of the Deed and the Assignment and Assumption of
Ground Lease and termination of this Agreement.
7.2. Seller acquired title to the Property by foreclosure (or deed in lieu
thereof). Purchaser acknowledges and agrees that, except for the limited
representations and warranties of Seller set forth herein, it will be
purchasing the Property and the Personal Property based solely upon its
inspections and investigations of the Property and the Personal Property, and
that, except for the limited representations and warranties of Seller set forth
herein, Purchaser will be purchasing the Property and the Personal Property "AS
IS" and "WITH ALL FAULTS", based upon the condition of the Property and the
Personal Property as of the date of this Agreement, wear and tear and loss by
fire or other casualty or condemnation excepted. Without limiting the
foregoing, Purchaser acknowledges that, except as may otherwise be specifically
set forth elsewhere in this Agreement, neither Seller nor its consultants,
brokers or agents have made any representations or warranties of any kind upon
which Purchaser is relying as to any matters concerning the Property or the
Personal Property, including, but not limited to, the condition of the land or
any improvements comprising the Property, the existence or non-existence of
"Hazardous Materials" (as hereinafter defined), economic projections or market
studies concerning the Property, any development rights, taxes, bonds,
covenants, conditions and restrictions affecting the Property, water or water
rights, topography, drainage, soil, subsoil of the Property, the utilities
serving the Property or any zoning or building laws, rules or regulations or
"Environmental Laws" (hereinafter defined) affecting the Property. Seller
makes no representation or warranty that the Property complies with Title III
of the Americans with Disabilities Act or any fire code or building code.
Purchaser hereby releases Seller and the Affiliates of Seller from any and all
liability in connection with any claims which Purchaser may have against Seller
or the Affiliates of Seller, and Purchaser hereby agrees not to assert any
claims for contribution, cost recovery or otherwise, against Seller or the
Affiliates of Seller, relating directly or indirectly to the existence of
asbestos or Hazardous Materials on, or environmental conditions of, the
Property, whether known or unknown. As used herein, "Environmental Laws" means
all federal, state and local statutes, codes, regulations, rules, ordinances,
orders, standards, permits, licenses, policies and requirements (including
consent decrees, judicial decisions and administrative orders) relating to the
protection, preservation, remediation or conservation of the environment or
worker health or safety, all as amended or reauthorized, or as hereafter
amended or reauthorized, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C.
Section 9601 et seq., the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. Section 6901 et seq., the Emergency Planning and Community
Right-to-Know Act ("Right-to-Know Act"), 42 U.S.C. Section 11001 et seq., the
Clean Air Act ("CAA"), 42 U.S.C. Section 7401 et seq., the Federal Water
Pollution Control Act ("Clean Water Act"), 33 U.S.C. Section 1251 et seq., the
Toxic Substances Control Act ("TSCA"), 15 U.S.C. Section 2601 et seq., the Safe
Drinking Water Act ("Safe Drinking Water Act"), 42 U.S.C. Section 300f et seq.,
the Atomic Energy Act ("AEA"), 42 U.S.C. Section 2011 et seq., the Occupational
Safety and Health Act ("OSHA"), 29 U.S.C. Section 651 et seq., and the
Hazardous Materials Transportation Act (the "Transportation Act"), 49 U.S.C.
Section 1802 et seq. As used herein, "Hazardous Materials" means:
(1) "hazardous substances," as defined by CERCLA; (2) "hazardous wastes," as
defined by RCRA; (3) any radioactive material including, without limitation,
any source, special nuclear or by-product material, as defined by AEA; (4)
asbestos in any form or condition; (5) polychlorinated biphenyls; and (6) any
other material, substance or waste to which liability or standards of conduct
may be imposed under any Environmental Laws. Notwithstanding anything
contained herein to the contrary, the terms of this Paragraph 7.2 shall survive
the Closing and the delivery of the Deed and the Assignment and Assumption of
Ground Lease and termination of this Agreement.
7.3. Seller has provided to Purchaser certain unaudited historical
financial information regarding the Property relating to certain periods of
time in which Seller owned the Property. Seller and Purchaser hereby
acknowledge that such information has been provided to Purchaser at Purchaser's
request solely as illustrative material. Seller makes no representation or
warranty that such material is complete or accurate or that Purchaser will
achieve similar financial or other results with respect to the operations of
the Property, it being acknowledged by Purchaser that Seller's operation of the
Property and allocations of revenues or expenses may be vastly different than
Purchaser may be able to attain. Purchaser acknowledges that it is a
sophisticated and experienced purchaser of real estate and further that
Purchaser has relied upon its own investigation and inquiry with respect to the
operation of the Property and releases Seller and the Affiliates of Seller from
any liability with respect to such historical information. Notwithstanding
anything contained herein to the contrary, the terms of this Paragraph 7.3,
shall survive the Closing and the delivery of the Deed and the Assignment and
Assumption of Ground Lease and termination of this Agreement.
7.4. Seller has provided to Purchaser the following existing report: Phase
I Environmental Site Assessment, prepared by Carnow, Conibear & Associates,
Ltd. as Project No. 102434-E001, dated May 27, 1992 ("Existing Report").
Seller makes no representation or warranty concerning the accuracy or
completeness of the Existing Report. Purchaser hereby releases Seller and the
Affiliates of Seller from any liability whatsoever with respect to the Existing
Report, or, including, without limitation, the matters set forth in the
Existing Report, and the accuracy and/or completeness of the Existing Report.
Furthermore, Purchaser acknowledges that it will be purchasing the Property
with all faults disclosed in the Existing Report. Notwithstanding anything
contained herein to the contrary, the terms of this Paragraph 7.4 shall survive
the Closing and the delivery of the Deed and the Assignment and Assumption of
Ground Lease and termination of this Agreement.
8. CLOSING. The closing of this transaction (the "Closing") shall be on July
23, 1997 (the "Closing Date"), at the office of Title Insurer, Chicago,
Illinois at which time Seller shall deliver possession of the Property to
Purchaser. This transaction shall be closed through an escrow with Title
Insurer, in accordance with the general provisions of the usual and customary
form of deed and money escrow for similar transactions in Chicago, Illinois, or
at the option of either party, the Closing shall be a "New York style" closing
at which the Purchaser shall wire the Purchase Price to Title Insurer on the
Closing Date and prior to the release of the Purchase Price to Seller,
Purchaser shall receive the Title Policy or marked up commitment dated the date
of the Closing Date. In the event of a New York style closing, Seller shall
deliver to Title Insurer any customary affidavit in connection with a New York
style closing. All closing and escrow fees shall be divided equally between
the parties hereto.
9. CLOSING DOCUMENTS.
9.1. On or prior to the Closing Date, Seller and Purchaser shall execute
and deliver to one another a joint closing statement. In addition, Purchaser
shall deliver to Seller the balance of the Purchase Price, an assumption of the
documents set forth in Paragraph 9.2.1, 9.2.4 and 9.2.5 and such other
documents as may be reasonably required by the Title Insurer in order to
consummate the transaction as set forth in this Agreement.
9.2. On the Closing Date, Seller shall deliver to Purchaser the
following:
9.2.1. the Assignment and Assumption of Ground Lease (in the form of
Exhibit L attached hereto), subject to Permitted Exceptions and those
Unpermitted Exceptions waived by Purchaser;
9.2.2. the Deed (in the form of Exhibit E attached hereto), subject
to Permitted Exceptions and those Unpermitted Exceptions waived by Purchaser;
9.2.3. a special warranty bill of sale conveying the Personal
Property (in the form of Exhibit F attached hereto);
9.2.4. assignment and assumption of intangible property (in the form
attached hereto as Exhibit G), including, without limitation, the service
contracts listed in Exhibit H;
9.2.5. an assignment and assumption of leases and security deposits
(in the form attached hereto as Exhibit I);
9.2.6. non-foreign affidavit (in the form of Exhibit J attached
hereto);
9.2.7. original, or copies (if originals are not available), of all
leases affecting the Property in Seller's possession (which shall be delivered
at the Property);
9.2.8. all documents and instruments reasonably required by the
Title Insurer to issue the Title Policy;
9.2.9. possession of the Property to Purchaser, subject to the terms
of leases;
9.2.10. evidence of the termination of the management and leasing
agreement;
9.2.11. notice to the tenants of the Property of the transfer of
title and assumption by Purchaser of the landlord's obligation under the leases
and the obligation to refund the security deposits (in the form of Exhibit K);
9.2.12. an updated rent roll.
10. PURCHASER'S DEFAULT. ALL EARNEST MONEY DEPOSITED INTO THE ESCROW IS TO
SECURE THE TIMELY PERFORMANCE BY PURCHASER OF ITS OBLIGATIONS AND UNDERTAKINGS
UNDER THIS AGREEMENT. IN THE EVENT OF A DEFAULT OF THE PURCHASER UNDER THE
PROVISIONS OF THIS AGREEMENT, SELLER SHALL RETAIN ALL OF THE EARNEST MONEY AND
THE INTEREST THEREON AS SELLER'S SOLE RIGHT TO DAMAGES OR ANY OTHER REMEDY,
EXCEPT FOR PURCHASER'S OBLIGATIONS TO INDEMNIFY SELLER AND RESTORE THE PROPERTY
AS SET FORTH IN PARAGRAPH 7.1 HEREOF. THE PARTIES HAVE AGREED THAT SELLER'S
ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY PURCHASER, WOULD BE EXTREMELY
DIFFICULT OR IMPRACTICAL TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS
BELOW, THE PARTIES ACKNOWLEDGE THAT THE EARNEST MONEY HAS BEEN AGREED UPON,
AFTER NEGOTIATION, AS THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES.
11. SELLER'S DEFAULT. IF THIS SALE IS NOT COMPLETED BECAUSE OF SELLER'S
DEFAULT, PURCHASER'S SOLE REMEDY SHALL BE THE RETURN OF ALL EARNEST MONEY
TOGETHER WITH ANY INTEREST ACCRUED THEREON, AND THIS AGREEMENT SHALL THEN
BECOME NULL AND VOID AND OF NO EFFECT AND THE PARTIES SHALL HAVE NO FURTHER
LIABILITY TO EACH OTHER AT LAW OR IN EQUITY, EXCEPT FOR PURCHASER'S OBLIGATIONS
TO INDEMNIFY SELLER AND RESTORE THE PROPERTY AS SET FORTH MORE FULLY IN
PARAGRAPH 7 AND PURCHASER'S RIGHT TO RECEIVE FROM SELLER ITS ACTUAL, DOCUMENTED
THIRD PARTY OUT-OF-POCKET EXPENSES INCURRED IN THE PERFORMANCE OF ITS DUE
DILIGENCE HEREUNDER AND THE NEGOTIATION AND EXECUTION OF THIS AGREEMENT, NOT TO
EXCEED $100,000 IN THE AGGREGATE. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO
THE CONTRARY, IF SELLER'S DEFAULT IS ITS INTENTIONAL REFUSAL TO DELIVER THE
DEED, THE ASSIGNMENT AND ASSUMPTION OF GROUND LEASE OR ANY OF THE OTHER CLOSING
DOCUMENTS SET FORTH IN PARAGRAPH 9.2, THEN PURCHASER WILL BE ENTITLED TO
SPECIFIC PERFORMANCE.
12. PRORATIONS.
12.1. The following items shall be adjusted ratably as of 11:59 p.m. on
the Closing Date, and credited against the balance of the cash due at Closing:
i) rents (exclusive of delinquent rents, but including prepaid rents); ii)
refundable security deposits (which will be assigned to and assumed by
Purchaser and credited to Purchaser at Closing); iii) water and other utility
charges; iv) fuels; v) prepaid operating expenses; vi) real and personal
property taxes and assessments ("Taxes") prorated on a "net" basis based on
105% of the most recent actual tax bills. The amount of the proration shall be
calculated by (1) determining the net amount (the "Net Amount") of (x) the
amount of all Taxes accrued but not yet due and payable as of the Closing
(based on the most recent actual bills), minus (y) the aggregate amount payable
by tenants of the Property for their respective shares of Taxes for the time
period covered by the proration; (2) multiplying the Net Amount by 105%. In
addition, Seller shall give Purchaser a credit for the aggregate amount
actually paid or deposited by tenants of the Property, as of the Closing, for
their respective shares of Taxes for the time period covered by the proration;
vii) operating expenses which are reimbursable by the tenants for the period
prior to the Closing Date less any amount previously paid by the Tenants shall
be credited to Seller; and viii) other similar items. Assessments payable in
installments which are due subsequent to the Closing Date shall be paid by
Purchaser. If the amount of any of the items to be prorated is not then
ascertainable, the adjustments thereof shall be on the basis of the most recent
ascertainable data. All prorations will be final except as to delinquent rent
referred to in Paragraph 12.2 below.
12.2. All monies received after Closing by Purchaser from any tenant of
the Property who is indebted under a lease for rent for any period prior to and
including the Closing Date will first be applied to rent or other charges
currently due to Purchaser under the applicable lease. Any balance remaining
after the application of such monies to current rent and other charges shall be
deemed a "Post-Closing Receipt" but only to the extent such pre-closing
indebtedness has not been paid in full. Within ten (10) days following each
receipt by Purchaser of a Post-Closing Receipt, Purchaser shall pay such
Post-Closing Receipt to Seller. Purchaser shall set forth both current and
delinquent rent amounts on tenant bills in an effort to collect all amounts
owing from tenants, including those which, upon collection, would constitute
Post-Closing Receipts hereunder. Within 120 days after the Closing Date,
Purchaser shall deliver to Seller a reconciliation statement of Post-Closing
Receipts through the first 90 days after the Closing Date. Upon the delivery
of the Post-Closing Receipts reconciliation, Purchaser shall deliver to Seller
any Post-Closing Receipts owing to Seller and not previously delivered to
Seller in accordance with the terms hereof. Seller retains the right to
conduct an audit, at reasonable times and upon reasonable notice, of
Purchaser's books and records to verify the accuracy of the Post-Closing
Receipts reconciliation statement and upon the verification of additional funds
owing to Seller, Purchaser shall pay to Seller said additional Post-Closing
Receipts and the cost of performing Seller's audit. Paragraph 12.2 of this
Agreement shall survive the Closing and the delivery and recording of the deed.
13. RECORDING. Neither this Agreement nor a memorandum thereof shall be
recorded and the act of recording by Purchaser shall be an act of default
hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
14. ASSIGNMENT. The Purchaser shall not have the right to assign its interest
in this Agreement without the prior written consent of the Seller. Any
assignment or transfer of, or attempt to assign or transfer, Purchaser's
interest in this Agreement shall be an act of default hereunder by Purchaser
and subject to the provisions of Paragraph 10 hereof. Notwithstanding the
foregoing, Purchaser may assign its interest in this Agreement without the
consent of Seller to any entity in which Purchaser or Albert M. Friedman owns a
controlling interest provided that Purchaser remains liable for and the
assignee assumes the obligations of Purchaser hereunder. If any assignee of
Purchaser under this Agreement petitions or applies for relief in bankruptcy or
such assignee is adjudicated as a bankrupt or insolvent, or such assignee files
any petition, application for relief or answerseeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief for itself under any present or future federal,
state or other statute, law, code or regulation relating to bankruptcy,
insolvency, or other relief for debtors (collectively, a "Bankruptcy Filing")
on or before the Closing, said Bankruptcy Filing shall be a default under this
Agreement and Purchaser shall indemnify Seller for all costs, attorney's fees
and expenses of Seller resulting from Seller's efforts to obtain the Earnest
Money as liquidated damages and to clear title to the Property from any
encumbrance resulting from the Bankruptcy Filing.
15. BROKER. The parties hereto represent and warrant that no broker
commission or finder fee is due and payable in connection with this transaction
other than to Insignia Mortgage & Investment Company (to be paid by Seller).
Purchaser and Seller shall each indemnify, defend and hold the other party
harmless from any claim whatsoever (including without limitation, reasonable
attorney's fees, court costs and costs of appeal) from anyone claiming by or
through the indemnifying party any fee, commission or compensation on account
of this Agreement, its negotiation or the sale hereby contemplated other than
to Insignia Mortgage & Investment Company. The indemnifying party shall
undertake its obligations set forth in this Paragraph 15 using attorneys
selected by the indemnifying party and reasonably acceptable to the indemnified
party. The provisions of this Paragraph 15 will survive the Closing and
delivery of the Deed and the Assignment and Assumption of Ground Lease.
16. REPRESENTATIONS AND WARRANTIES.
16.1. Any reference herein to Seller's knowledge or notice of any matter
or thing shall only mean such knowledge or notice that has actually been
received by Alan Muench (the "Seller's Representative"), and any representation
or warranty of the Seller is based upon those matters of which the Seller's
Representative has actual knowledge. Any knowledge or notice given, had or
received by any of Seller's agents, servants or employees shall not be imputed
to Seller, the general partner or limited partners of Seller, the subpartners
of the general partner or limited partners of Seller or Seller's
Representative.
16.2. Subject to the limitations set forth in Paragraph 16.1, Seller
hereby makes the following representations and warranties, which
representations and warranties are made to Seller's knowledge and which shall
not survive Closing:
16.2.1. Seller has no knowledge of any pending or threatened
litigation, claim, cause of action or administrative proceeding concerning the
Property;
16.2.2. Seller has the power to execute and deliver this Agreement
and consummate the transactions contemplated herein;
16.2.3. there are no service contracts or management or leasing
commission agreements affecting the Property other than those shown on Exhibit
H attached hereto;
16.2.4. Seller has not received written notice from any governmental
or regulatory authority that the use and operation of the Property is in
violation of applicable building codes or laws which has not previously been
corrected;
16.2.5. Seller has not received any written notice from any
governmental authority having jurisdiction over the Property of any uncured
violation of any Environmental Law with respect to the Property;
16.2.6. the rent roll delivered to Purchaser on the date hereof is
true, correct and complete as of the date thereon and Seller shall deliver to
Purchaser a true, correct and complete rent roll at the Closing, dated no
earlier than seven (7) days prior to the Closing Date.
16.3. Purchaser hereby represents and warrants to Seller that Purchaser
has the full right, power and authority to execute and deliver this Agreement
and consummate the transactions contemplated herein.
16.4. The parties agree that the representations contained herein
shall survive Closing for a period ending 5:00 p.m. central time on the date
ninety (90) days following the Closing Date (i.e. the claiming party shall have
no right to make any claims against the other party for a breach of a
representation or warranty after 5:00 p.m. central time on the date specified
in this Paragraph 16.4.).
17. LIMITATION OF LIABILITY. No Affiliate of Seller, nor any of its or
Seller's respective beneficiaries, shareholders, partners, officers, directors,
agents or employees, heirs, successors or assigns shall have any personal
liability of any kind or nature for or by reason of any matter or thing
whatsoever under, in connection with, arising out of or in any way related to
this Agreement and the transactions contemplated herein, and Purchaser hereby
waives for itself and anyone who may claim by, through or under Purchaser any
and all rights to sue or recover on account of any such alleged personal
liability.
Notwithstanding anything contained herein to the contrary, Purchaser
hereby agrees that the maximum aggregate liability of Seller, in connection
with, arising out of or in any way related to a breach by Seller under this
Agreement or any document or conveyance agreement in connection with the
transaction set forth herein after the Closing shall be $100,000. Purchaser
hereby waives for itself and anyone who may claim by, through or under
Purchaser any and all rights to sue or recover from Seller any amount greater
than said limit.
18. TIME OF ESSENCE. Time is of the essence of this Agreement.
19. NOTICES. Any notice or demand which either party hereto is required or
may desire to give or deliver to or make upon the other party shall be in
writing and may be personally delivered or given or made by overnight courier
such as Federal Express, by facsimile transmission or made by United States
registered or certified mail addressed as follows:
TO SELLER: c/o The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: Ilona Adams
with copies to: The Balcor Company
Bannockburn Lake Office Plaza
2355 Waukegan Road
Suite A-200
Bannockburn, Illinois 60015
Attention: James Mendelson
(847) 317-4367
(847) 317-4462 (FAX)
and to: Katten Muchin & Zavis
525 West Monroe Street
Suite 1600
Chicago, Illinois 60661-3693
Attention: Daniel J. Perlman, Esq.
(312) 902-5532
(312) 902-1061 (FAX)
TO PURCHASER: Friedman Properties, Ltd.
54 West Hubbard Street
Suite 100
Chicago, Illinois 60610
Attention: Albert M. Friedman
(312) 644 - 1100
(312) 644 - 2898 (FAX)
and one copy to: Lawrence B. Swibel, Esq.
Fox Swibel & Levin
500 N. Dearborn
Suite 400
Chicago, Illinois 60610
(312) 832-8314
(312) 527-9606 (FAX)
subject to the right of either party to designate a different address for
itself by notice similarly given. Any notice or demand so given shall be
deemed to be delivered or made on the next business day if sent by overnight
courier, or the same day as given if sent by facsimile transmission and
received by 5:00 p.m. Chicago time or on the 4th business day after the same is
deposited in the United States Mail as registered or certified matter,
addressed as above provided, with postage thereon fully prepaid. Any such
notice, demand or document not given, delivered or made by registered or
certified mail, by overnight courier or by facsimile transmission as aforesaid
shall be deemed to be given, delivered or made upon receipt of the same by the
party to whom the same is to be given, delivered or made. Copies of all
notices shall be served upon the Escrow Agent.
20. EXECUTION OF AGREEMENT AND ESCROW AGREEMENT. Purchaser will execute two
(2) copies of this Agreement and three (3) copies of the Escrow Agreement and
forward them to Seller for execution, accompanied with the Earnest Money
payable to the Escrow Agent set forth in the Escrow Agreement. Seller will
forward one (1) copy of the executed Agreement to Purchaser and will forward
the following to the Escrow Agent:
(A) Earnest Money;
(B) One (1) fully executed copy of this Agreement; and
(C) Three (3) copies of the Escrow Agreement signed by the parties with a
direction to execute two (2) copies of the Escrow Agreement and deliver a fully
executed copy to each of the Purchaser and the Seller.
21. GOVERNING LAW. The provisions of this Agreement shall be governed by the
laws of the State of Illinois.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties and supersedes all other negotiations, understandings and
representations made by and between the parties and the agents, servants and
employees.
23. COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which shall constitute one
and the same instrument.
24. CAPTIONS. Paragraph titles or captions contained herein are inserted as a
matter of convenience and for reference, and in no way define, limit, extend or
describe the scope of this Agreement or any provision hereof.
25. RIGHT-OF-FIRST REFUSAL. Seller and Purchaser acknowledge that
Williams/Gerard Productions, Inc. ("WG") has a right-of-first refusal to
purchase the Property pursuant to its lease (the "Right-of-First Refusal").
Upon execution of this Agreement, Seller shall deliver a copy of this Agreement
to WG. Pursuant to the Right-of-First Refusal, WG has five (5) business days
to notify Seller if it intends to purchase the Property (the "Notice to
Purchase"). If WG delivers the Notice to Purchase to Seller in accordance with
the immediately preceeding sentence, Seller shall promptly notify Purchaser
thereof and this Agreement shall become null and void without further action of
the parties and all Earnest Money theretofore deposited into the Escrow by
Purchaser, together with any interest accrued thereon, shall be returned to
Purchaser, and neither party shall have any further liability to the other,
except for Purchaser's obligation to indemnify Seller and restore the Property,
as more fully set forth in Paragraph 7. If the Agreement is terminated
pursuant to this Paragraph 25, Seller hereby agrees to reimburse Purchaser for
the reasonable actual due diligence and out of pocket legal expenses incurred
by Purchaser in connection with the negotiation and execution of this Agreement
in an amount not to exceed Ten Thousand and No/100 Dollars ($10,000.00).
26. NEW LEASES. Seller agrees to deliver to Purchaser any new leases executed
by Seller prior to the expiration of the Inspection Period. After the
expiration of the Inspection Period, Seller shall not execute any new lease
affecting the Property or modify, amend or accept the surrender of any Lease
(collectively or individually a "Modification Agreement") of any of the Leases
without Purchaser's prior written consent. Upon requesting Purchaser's consent
(any such request to be made both by telephone and in writing), Seller shall
deliver a complete copy of said proposed lease to Purchaser with a copy of any
brokerage commission agreement and statement as to the cost of any tenant
improvement work, contributions, and brokerage commissions due or to become due
in connection therewith (the "Disclosure Documents"). Purchaser's consent
shall be deemed given if Purchaser has not responded to the contrary within
five (5) business days after receipt of Seller's written request and the
complete copy of said lease or Modification Agreement and other material. If
approved by Purchaser, a complete copy of any such lease or Modification
Agreement shall be delivered to Purchaser within five (5) days of the full
execution thereof. With respect to all new leases or Modification Agreements,
provided Purchaser has approved the new lease to the extent said approval is
required, leasing costs and commissions, tenant improvements and contributions,
and reasonable attorneys' fees of Seller, shall be assumed and paid by
Purchaser (without a credit to Purchaser) or credited to Seller at Closing to
the extent Seller has paid any of said obligations prior to Closing.
27. TENANT CERTIFICATE CONDITION TO CLOSING.
27.1. The following terms have been defined as follows for convenience
of reference:
(i) "Tenant Certificate" means a certificate, commonly known as an
estoppel certificate, signed by a tenant with respect to its Lease, either in
the form set forth on Exhibit N hereto or on such other form as is
substantially consistent with the requirements of the tenant's lease for such
certificates but in no event dated earlier than the date hereof.
(ii) "Seller Tenant Certificate" means a Tenant Certificate signed by
the Seller and limited to the "knowledge of Seller" (as defined in Paragraph 16
herein) with respect to a particular Lease for which the Tenant in question has
failed to execute and deliver a Tenant Certificate.
27.2. Seller shall promptly request a Tenant Certificate in the form
of Exhibit N from all tenants, and shall in good faith pursue the collection of
the same. Seller shall deliver to Purchaser, upon Seller's receipt thereof,
all Tenant Certificates signed by tenants (whether in the form of Exhibit N or
otherwise).
27.3. It shall be a condition to Purchaser's obligations hereunder
(the "Estoppel Condition") that Seller deliver to Purchaser at least six Tenant
Certificates from tenants of the Property and Seller Tenant Certificates for
those tenants not providing Tenant Certificates.
27.4. If Seller delivers any Tenant Certificates after Closing to
Purchaser containing all of the information herein required from a tenant under
a Lease for whom Seller has executed and delivered a Seller Tenant Certificate
at Closing, the Seller Tenant Certificate executed and delivered by Seller at
Closing shall become null and void and the Tenant Certificate received from the
tenant shall be substituted therefor. Seller's liability under Seller Tenant
Certificates shall be limited pursuant to Paragraph 17 herein.
27.5. If Seller has not satisfied the Estoppel Condition on or before
the Closing Date, then the Closing Date shall be extended by five (5) business
days (the "New Closing Date"), and Seller shall have the right to satisfy the
Estoppel Condition on or before the New Closing Date. If Seller has not
satisfied the Estoppel Condition on or before the New Closing Date then
Purchaser shall have the right to terminate this Agreement by delivering
written notice to Seller on the New Closing Date. If Purchaser exercises its
rights to terminate in accordance with the terms of this Paragraph 27.5, this
Agreement shall be null and void without further action of the parties and all
Earnest Money theretofore deposited by Purchaser together with any interest
accrued thereon, shall be returned to Purchaser, and neither party shall have
any further liability to the other, except for those obligations which
specifically survive the terms hereof. If Purchaser does not terminate this
Agreement pursuant to the first sentence of this Paragraph 27.5, the parties
shall proceed to Closing.
28. ASSUMPTION OF LEASING COMMISSION OBLIGATIONS. Seller previously entered
into that certain commercial property management agreement by and between
Seller and Cushman & Wakefield of Illinois, Inc., an Illinois corporation
("CW"), dated October 16, 1992 (the "CW Agreement"). Pursuant to the CW
Agreement, CW was the rental agent for the Property. At Closing, Purchaser
shall assume the obligations of Seller for all leasing commissions that may
arise after the Closing Date pursuant to the CW Agreement.
IN WITNESS WHEREOF, the parties hereto have put their hand and seal as of
the date first set forth above.
PURCHASER:
FRIEDMAN PROPERTIES, LTD.,
an Illinois corporation
By: /s/ Albert Friedman
----------------------------------
Name: Albert Friedman
----------------------------------
Its: President
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SELLER:
420 N. WABASH LIMITED PARTNERSHIP,
an Illinois limited partnership
By: 420 N. Wabash Partners, Inc.,
an Illinois corporation,
its general partner
By: /s/ John K. Powell, Jr.
----------------------------------
Name: John K. Powell, Jr.
----------------------------------
Its: Senior Vice President
----------------------------------
Phillip Schechter of Insignia Mortgage and Investment Company ("Seller's
Broker") executed this Agreement in its capacity as a real estate broker and
acknowledges that the fee or commission due it from Seller as a result of the
transaction described in this Agreement is as set forth in that certain Listing
Agreement, dated October 9, 1996 between Seller and Seller's Broker (the
"Listing Agreement"). Seller's Broker also acknowledges that payment of the
aforesaid fee or commission is conditioned upon the Closing and the receipt of
the Purchase Price by the Seller. Seller's Broker agrees to deliver a receipt
to the Seller at the Closing for the fee or commission due Seller's Broker and
a release, in the appropriate form, stating that no other fees or commissions
are due to it from Seller or Purchaser.
INSIGNIA MORTGAGE AND INVESTMENT COMPANY
By: /s/ Phillip Schechter
-----------------------------------
Vice President
Exhibits
A - Legal
B - Personal Property
C - Escrow Agreement
D - Title Commitment
E - Deed
F - Quitclaim Bill of Sale
G - Assignment and Assumption of Intangible Property
H - Service Contracts
I - Assignment and Assumption of Leases and Security Deposits
J - Non-Foreign Affidavit
K - Notice to Tenants
L - Assignment and Assumption of Ground Lease
M - Litigation
N - Tenant Certificate