HomeMy WebLinkAboutRESOLUTION - 6-25 - 1/14/2025 - 610 MEACHAM PURCHASE AND SALE AGREEMENTRESOLUTION NO.6-25
A RESOLUTION AUTHORIZING THE MAYOR AND VILLAGE CLERK TO EXECUTE
A PURCHASE AND SALE AGREEMENT BETWEEN THE VILLAGE OF ELK GROVE
VILLAGE AND BLDG ELK GROVE HD LLC, A DELAWARE LIMITED LIABILITY
COMPANY, BLDG ELK GROVE HD II LLC, A DELAWARE LIMITED LIABILITY
COMPANY, FEIGA II/HD, LLC, A DELAWARE LIMITED LIABILITY COMPANY AND
COURT STREET ASSOCIATES/HD LLC, A DELAWARE LIMITED LIABILITY
COMPANY (610 MEACHAM AVENUE)
NOW, THEREFORE, BE IT RESOLVED by the Mayor and Board of Trustees of the
Village of Elk Grove Village, Counties of Cook and DuPage, State of Illinois as follows:
Section 1: That the Mayor be and is hereby authorized to sign the attached document marked:
PURCHASE AND SALE AGREEMENT
(610 MEACHAM AVENUE)
a copy of which is attached hereto and made a part hereof as if fully set forth and the Village Clerk is
authorized to attest said document upon the signature of the Mayor.
Section 2: That this Resolution shall be in full force and effect from and after its passage and
approval according to law.
VOTE: AYES: 5 NAYS: 0 ABSENT: 1
PASSED this 14' day of January 2025
APPROVED this 141h day of January 2025
APPROVED:
Mayor Craia B. Johnson
Village of Elk Grove Village
ATTEST:
Loretta M. Murphy, Village Clerk
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") made as of the /4A
day of January, 2025 (the "Effective Date"), by and between BLDG Elk Grove HD LLC, a
Delaware limited liability company, BLDG Elk Grove HD II LLC, a Delaware limited liability
company, FEIGA II/HD, LLC, a Delaware limited liability company and COURT STREET
ASSOCIATES/HD, LLC, a Delaware limited liability company, as tenants in common
(collectively, "Seller"), and VILLAGE OF ELK GROVE VILLAGE, an Illinois home rule
municipal corporation ("Purchaser").
WITNESSETH:
1. Agreement to Sell and Purchase. Seller agrees to sell and convey to
Purchaser and Purchaser agrees to purchase from Seller, on the terms and conditions set forth in
this Agreement:
(a) The +/- 9.72 acre parcel of land situated at 610 Meacham
Road, in Elk Grove Village, Cook County, Illinois, 60007 and is more particularly
described in Schedule A annexed hereto and made a part hereof (the "Land"), and includes
all fixtures, furnishings, equipment, leases, tenant deposits, surveys, plans and
specifications, warranties, engineering reports, environmental reports, and other items
related to the ownership and/or operation of the property, buildings and other
improvements, if any, on the Land (the "Improvements"). The Land and the Improvements
are collectively referred to herein as the "Property."
(b) All of Seller's right, title and interest, as lessor, in and to the
Staples Lease (hereinafter defined). As used herein, the term "Staples Lease" shall mean
that certain Retail Lease dated May 26, 2021, as amended, by and between Seller, as
landlord, and Office Superstore East LLC, as tenant ("Staples Tenant").
(c) All of Seller's right, title and interest, if any, in and to all
other equipment, machinery and other tangible personal property installed in, located at,
situated on, or used in connection with all or any part of the Property or the development,
construction, ownership, use or operation thereof (the "Personal Property").
(d) All of Seller's right, title and interest, if any, in and to all
assignable contract rights and intangible property of any kind and nature whatsoever
belonging or pertaining to or used in connection with all or any part of the Property and/or
the development, construction, ownership, use or operation thereof, excluding the Service
Contracts (collectively, "Contract Rights and Intang bles"), including, without limitation:
(i) all guaranties and warranties, (ii) all designs, plans, specifications, engineering drawings
and prints, and surveys, (iii) all development rights, entitlements, licenses, approvals and
agreements belonging, benefiting or pertaining to the Land or the Improvements and the
development, construction, ownership, use and operation thereof, (iv) all consents,
variances, waivers, licenses, permits, registrations, notifications, comfort letters, reliance
letters, certificates, authorizations and other approvals pertaining to all or any portion of
the Property by any governmental authority and all applications for any of the foregoing.
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
2. Purchase Price. The purchase price for the Property (the "Purchase Price")
shall be FOUR MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($4,500,000.00) and Purchaser shall pay the Purchase Price as follows:
(a) ONE HUNDRED THOUSAND AND 00/100 DOLLARS
($100,000.00) (the "Deposit") shall be delivered to Escrow Agent (as hereinafter defined)
within five (5) business days of the Effective Date.
(b) FOUR MILLION FOUR HUNDRED THOUSAND AND
00/100 DOLLARS ($4,400,000.00), subject to adjustment as provided for in this
Agreement, on the Closing Date (as hereinafter defined).
3. Inspection Period.
(a) Purchaser shall have a period of sixty (60) days from the
Effective Date (the "Inspection Period") to inspect the Property and conduct such non-
invasive tests (including environmental and engineering tests and studies), investigations,
market studies and economic feasibility studies as Purchaser may determine in its
reasonable discretion to be desirable. Additionally, within five (5) business days after the
Effective Date, subject to the provisions of Paragraph 3(c) hereof, Seller shall deliver to
Purchaser the documents listed on Schedule E, if and only to the extent such materials and
documents exist and are in Seller's possession (such documents, collectively, the "Due
Diligence Documents"). If any such inspections or tests are unsatisfactory to Purchaser,
Purchaser may, in its sole and absolute judgment and discretion, terminate this Agreement
by notice given to Seller no later than 5:00 p.m. Central Time on the last day of the
Inspection Period. If Purchaser timely exercises its right to terminate this Agreement
pursuant to this Paragraph 3(a), Purchaser, after complying with its obligations under
Paragraph 3(b)(vi) below, shall be entitled to receive a return of the Fund (as defined in
Paragraph 12 hereof) from Escrow Agent. Upon such termination, neither party shall have
any further rights or obligations hereunder, except as set forth in the preceding sentence
and except for (i) rights or obligations that, pursuant to the provisions of this Agreement,
are expressly made to survive the termination hereof, and (ii) the rights of Seller with
respect to the Fund as identified in this Agreement in the event of a default by Purchaser
under this Paragraph 3. If Purchaser fails to terminate this Agreement in the manner set
forth above within the applicable period, with respect to which TIME SHALL BE OF
THE ESSENCE, then it shall be deemed that Purchaser has elected to proceed with the
purchase contemplated by this Agreement, and Purchaser shall have no further right to
terminate this Agreement pursuant to this Paragraph 3(a); and the Fund shall thereupon,
except as otherwise specifically set forth herein, shall be deemed non-refundable.
(b) Purchaser, its agents, employees, representatives and
contractors shall, subject to the terms of the Section 11.1 of the Staples Lease, (a) give
Seller at least two (2) business days' prior notice (which, notwithstanding the provisions
of Paragraph 18, may be given by telephone) of Purchaser's request to enter the Property,
(ii) at all times conduct non-invasive inspections and tests in compliance with applicable
law, in a manner so as not to cause damage, loss, cost or expense to Seller, the Property or
the Staples Tenants, and without unreasonable interference with or disturbance of the
Staples Tenant's use and enjoyment of the Property, (iii) promptly, but in no event later
2
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
than the expiration of the Inspection Period, restore the Property to its condition
immediately preceding Purchaser's inspections and tests, (iv) keep the Property free and
clear of any mechanic's liens or materialman's liens arising from such inspections and
tests, (v) at all times be accompanied by a representative of Seller when at the Property and
shall not, without the prior consent of Seller, which consent shall not be unreasonably be
withheld conditioned or delayed, contact the Staples Tenant; provided, however, at the
written request of Purchaser (email notice being sufficient), Seller shall introduce
Purchaser to a representative of Staples Tenant and Purchaser may contact Staples Tenant,
in coordination with Seller, for the purpose of negotiating the Lease Termination (as
defined in Section 7) provided Purchaser gives Seller advance notice of any meetings with
Staples Tenant to discuss Lease Termination and provided Purchaser copies Seller on any
and all material correspondence with Staples Tenant regarding the Lease Termination and
invites Seller to participate in negotiations with respect thereto (with no obligation to
change the schedule for such negotiations due to Seller's availability provided Purchaser
gave reasonably sufficient notice to Seller in connection therewith), (vi) if Purchaser
terminates this Agreement pursuant to the provisions of Paragraph 3(a) above, promptly
after such termination provide Seller, at no cost or expense to Seller, with copies of all
drafts or final engineering and architectural reports, environmental reports and lab
analyses, appraisals, construction and renovation estimates, if any, commissioned and
received by Purchaser in connection with Purchaser's inspections and tests (collectively,
the "Inspection Reports"), other than documents that are subject to any attorney -client
privilege, and (vii) keep the Inspection Reports and the contents thereof confidential,
except to the extent such information is a matter of public record or is provided in other
sources readily available to the real estate industry other than as a result of disclosure by
Purchaser or to the extent that such disclosure is compelled by law or by regulatory or
judicial process, provided, however, that Purchaser may disclose such information to its
agents, advisors, consultants, members, affiliates, lenders, advisors, attorneys and
accountants (collectively, "Transaction Parties"), so long as such Transaction Parties are
informed by Purchaser of the confidential nature of such information and are directed by
Purchaser to treat such information confidentially and to use such information only in
connection with the transaction contemplated by this Agreement (it being agreed that
Purchaser's obligations under this Paragraph 3(b) shall survive the termination of this
Agreement). For the avoidance of doubt, non-invasive inspections and tests identified in
(ii) above includes soil borings taken in locations located outside of the building's footprint
that are mutually agreed to by the Parties, which approval shall not be unreasonably
withheld, conditioned, or delayed.
(c) Seller shall have no obligation to deliver or make available
to Purchaser (i) any information contained in Seller's credit reports, credit authorizations,
financial analysis or projections, (ii) materials that are, in the reasonable judgment of Seller
or its counsel, subject to an attorney -client or work -product privilege under applicable law,
(iii) financial statements of Seller or any affiliate of Seller, (iv) any information that Seller
is prohibited by law or by regulatory or judicial process from disclosing or (v) any reports,
other items or information not specifically set forth in Paragraph 3(a) hereof. Under no
circumstances shall Seller's failure to deliver any information, document or other item to
Purchaser, whether or not required by this Agreement, be grounds for extending the
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Inspection Period, which, under all circumstances and without exception, shall terminate
as described herein.
(d) Except as provided in Section 3(b), Purchaser shall not, and
shall not permit its employees, consultants, engineers and agents to conduct any soil tests
or sampling or any boring, digging, drilling or other physical intrusion of the Property or
any of the Improvements, beyond standard Phase I environmental testing (collectively,
"Testing"), except at reasonable times and with the prior written consent of Seller (which
consent may be granted or withheld in Seller's sole and absolute discretion). If Seller
consents to any such Testing, Purchaser shall furnish to Seller property damage and
liability insurance policies in form and amounts reasonably acceptable to Seller prior to
commencing such Testing and shall, upon completion thereof, at Purchaser's sole cost and
expense, promptly restore the Property to its condition existing prior to such Testing.
(e) Purchaser hereby agrees to protect, defend, indemnify and
hold harmless Seller, its employees, agents, successors and assigns from and against any
and all liabilities, actions, suits, mechanics' liens, judgments, losses, costs, damages,
expenses (including, without limitation, attorneys' fees and expenses), claims and demands
of any nature whatsoever (other than those arising out of a pre-existing condition at the
Property) suffered or incurred by or made against Seller, its employees, agents, successors
or assigns, arising out of or in any way relating to the acts or omissions of Purchaser or its
agents in conducting such inspections, Testing or other activities by or on behalf of
Purchaser. The provisions of this Paragraph 3(e) shall survive the Closing or any earlier
termination of this Agreement.
(f) The Parties acknowledge and agree that (i) the Property is
encumbered by that certain Reciprocal Easement Agreement, dated December 27, 2019,
by and among Seller and Home Depot U.S.A., Inc. ("Home Depot") and recorded with the
Cook County Clerk as Document No. 2000306198 (the, "REA") and (ii) the REA prohibits
Purchaser's intended use of the Property as a skating rink (the "Proposed Use").
Accordingly, notwithstanding any provision of this Agreement to the contrary, Purchaser's
obligation to consummate the Closing shall be subject to Purchaser obtaining an
amendment to the REA or an approval from Home Depot, to allow the Proposed Use on
the Property (the "REA Approval"). During the Inspection Period, Purchaser shall use
commercially reasonable efforts to obtain the REA Approval from Home Depot and shall
copy Seller on any and all material correspondence with respect thereto. Upon Purchaser's
written request (email notice being sufficient), Seller shall, at no cost and expense to Seller,
cooperate with Purchaser in all commercially reasonable respects with Purchaser to obtain
the REA Approval, including, without limitation, providing any written authorization
and/or documentation reasonably necessary for Purchaser to obtain the REA Approval. To
the extent Purchaser does not obtain the REA Approval prior to the expiration of the
Inspection Period, provided (a) Purchaser confirms in writing to Seller that Purchaser is
otherwise satisfied with all other aspects of the Property, and (b) Purchaser is diligently
pursuing obtaining the REA Approval, Purchaser shall have an additional forty-five (45)
days from the expiration of the Inspection Period for the sole purpose of obtaining the REA
Approval from Home Depot (the "REA Approval Period"). In the event Purchaser is unable
to obtain the REA Approval prior to the expiration of the REA Approval Period, despite
4
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
using its commercially reasonable efforts to obtain same, Purchaser may, by providing
written notice to Seller, on or before 5 p.m. CST on the expiration of the REA Approval
Period, (1) terminate this Agreement and the Parties' rights and obligations hereunder,
except for those that specifically survive the expiration or termination hereof; and (2)
receive a return of the Fund in accordance with the terms hereof.
4. The Closing. The purchase and sale contemplated hereby and the payment
to Seller of the Purchase Price shall be consummated through a closing escrow established with
Escrow Agent (as hereinafter defined). The term "Closing" as used herein shall mean the
consummation of such purchase and sale in accordance with the terms of this Agreement and
shall occur on the date which is thirty (30) days after the expiration of the Inspection Period (the
date of the Closing, as the same may be adjourned by Seller as provided herein being herein
referred to as the "Closing Date"); and TIME SHALL BE OF THE ESSENCE with respect to
Purchaser's obligations to pay the balance of the Purchase Price and otherwise consummate the
transactions contemplated hereby on the Closing Date.
5. Closing Documents and Certain Pats. Without limiting any other
provisions of this Agreement:
(a) Seller shall deliver to Purchaser at the Closing the following:
(i) A special warranty deed (the "Deed") substantially in the
form annexed hereto as Exhibit 2, in appropriate form for recording and duly executed and
acknowledged by Seller.
(ii) An instrument of assignment and assumption of the Staples
Lease, in the form annexed hereto as Exhibit 3 (the "Lease Assignment"), duly executed by Seller.
(iii) A bill of sale, in the form annexed hereto as Exhibit 5 (the
"Bill of Sale"), duly executed by Seller, conveying the Personal Property to Purchaser.
(iv) Notice to the tenant under the Staples Lease in the form
annexed hereto as Exhibit 6 (the "Notice to Staples Tenant'), duly executed by Seller.
(v) The Lease Termination signed by Seller.
(vi) An original (or, if and to the extent an original is not
available, a copy) of the Staples Lease.
(vii) A certification of non -foreign status, duly signed by Seller,
in the form required by Section 1445 of the Internal Revenue Code and the regulations
promulgated thereunder.
(viii) Payment to the appropriate parties of any deed transfer tax
or similar tax or fee due or payable in connection with the transactions contemplated by this
Agreement.
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
(ix) An instrument of assignment and assumption of the Contract
Rights and Intangibles, in the form annexed hereto as Exhibit 1 (the "Assignment of Contract
Rights and Intangibles"), duly executed by Seller.
(x) An instrument of assignment and assumption, in the form
annexed hereto as Exhibit 4 (the "Service Contract Assignment") of the service and maintenance
contracts listed on Schedule C attached hereto and made a part hereof that remain in force and
effect as of the Closing (collectively referred to as the "Service Contracts").
(xi) Such instruments, agreements or other documents as may be
necessary or convenient in order to effectuate any of the provisions of this Agreement, or as
reasonably requested by Purchaser or the Title Company to consummate the transactions
contemplated herein, or to confirm any of the provisions of this Agreement, which shall be
executed and, if and to the extent appropriate or required, acknowledged or sworn to by Seller
before a notary public all such instruments, document and affidavits to be in a form reasonably
acceptable to Seller.
(xii) Any other document required to be delivered or payment
required to be made by Seller at the Closing pursuant to the provisions of this Agreement.
(b) Purchaser shall deliver or cause to be delivered to Seller at
the Closing the following:
(i) The payment required on account of the Purchase Price in
accordance with the provisions of Paragraph 2(c) of this Agreement (as increased or decreased by
reason of net adjustments and apportionments made pursuant to the provisions hereof).
(ii) Payments in the amounts and to the appropriate parties as
may be required in order to make any other payments due and payable to or on behalf of Seller
under this Agreement.
(iii) The Assignment of Contract Rights and Intangibles, the
Lease Assignment, the Lease Termination signed by Purchaser and Staples Tenant, and the Service
Contract Assignment, each duly executed by Purchaser.
(iv) Such instruments, agreements or other documents as may be
necessary or convenient in order to effectuate any of the provisions of this Agreement, or as
reasonably requested by Seller or the Title Company to consummate the transactions contemplated
herein, or to confirm any of the provisions of this Agreement, which shall be executed and, if and
to the extent appropriate or required, acknowledged or sworn to by Purchaser before a notary
public, all such instruments, document and affidavits to be in a form reasonably acceptable to
Purchaser.
(v) Any other document required to be delivered or payment
required to be made by Purchaser at or before the Closing pursuant to the provisions of this
Agreement.
6. Title.
2
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
(a) At the Closing, Seller shall deliver to Purchaser and
Purchaser shall accept the Deed conveying title to the Property, free of all liens,
encumbrances and other matters affecting title, other than Permitted Exceptions (as
hereinafter defined). For the purposes hereof, the term "Permitted Exceptions" shall mean
all matters waived by Purchaser or, pursuant to the provisions of this Paragraph 6, deemed
waived by Purchaser. Purchaser will accept such title to the Property that constitute real
property as the Title Company, which shall be licensed to do business in the State of
Illinois, shall be willing to insure at regular rates, subject to the Permitted Exceptions.
(b) Seller may use any portion of any payments due to Seller
hereunder to satisfy any lien or encumbrance against the Property. In order to facilitate the
satisfaction of any such liens or encumbrances, Seller may, on the Closing Date, from the
proceeds due to Seller as payment of the Purchase Price or other funds, make separate
payments necessary to satisfy any lien or encumbrance against the Property.
(c) After the date hereof, Seller shall order from First American
Title Insurance Company (the "Title Company"), an updated title commitment (the
"Commitment") to issue to Purchaser an owner's policy of title insurance and shall cause
a copy of the Commitment and copies of all documents referenced therein to be delivered
to Purchaser's attorney concurrently with the delivery thereof to Seller's attorney but no
later than fourteen (14) days after the Effective Date. By no later than five (5) days after
the Effective Date, Seller must provide Purchaser with the survey of the Property, dated as
of April 5, 2023, prepared by Compass Surveying Ltd. (the "Existing Survey"). Promptly
after the date hereof, Purchaser may order an updated survey of the Property (an "Undated
Survey") at Purchaser's sole cost and expense. If ordered, Purchaser shall cause a copy of
the Updated Survey to be furnished to Seller's attorney no later than forty-five (45) days
after the Effective Date. Within ten (10) days after receipt by Purchaser's attorneys of the
Commitment, Purchaser's attorney shall send to Seller's attorney a written statement
setting forth any items noted in the Commitment and the Existing Survey that are valid title
objections (as hereinafter defined) in accordance with the provisions of this Agreement;
and within seven (7) days after receipt by Purchaser's attorneys of the Updated Survey, if
ordered, but in no event later than the expiration of the Inspection Period, Purchaser's
attorney shall send to Seller's attorney a written statement setting forth any items disclosed
by the Updated Survey that are (i) not reflected on the Existing Survey, and (ii) otherwise
valid title objections in accordance with the provisions of this Agreement. If any statement
provided above shall not be delivered in the time periods stated above, then any title
exceptions and/or matters noted in the Commitment, the Existing Survey, the Updated
Survey, if obtained, or that would be disclosed by an accurate, up-to-date survey of the
Property to the extent an Updated Survey was not obtained by Purchaser), as the case may
be, shall be deemed waived and shall constitute Permitted Exceptions. Any title exceptions
noted in the Commitment, the Existing Survey, the Updated Survey, if obtained, or that
would be disclosed by an accurate, up-to-date survey of the Property that are not set forth
in the statements of Purchaser's attorney provided above shall likewise be deemed waived
and shall constitute Permitted Exceptions.
(d) Seller shall have the right, but not the obligation, (i) to cure
prior to the Closing all title objections (collectively, "valid title objections") and, (ii) to
7
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
adjourn the Closing from time to time, to a date (the "New Closing Date") specified by
Seller that is not more than ninety (90) days after the date of Closing set forth in Paragraph
4 of this Agreement to attempt to remedy any of such valid title objections or to otherwise
satisfy any conditions to Purchaser's obligations to complete the Closing. If the Closing is
so adjourned and Seller cures the valid title objections on or before the New Closing Date,
then the Closing shall occur on the New Closing Date in accordance with the provisions of
this Agreement, without any reduction in the Purchase Price.
(e) If Seller fails to cure any valid title objection on or before
the New Closing Date or elects by notice to Purchaser given at least ten (10) days before
the Closing Date or, as applicable, the New Closing Date, not to cure any valid title
objection, then Purchaser's sole right and remedy shall be, on the terms and conditions set
forth below, either:
(i) to declare this Agreement cancelled; or
(ii) to complete the purchase in accordance with this Agreement
without reduction or abatement in the Purchase Price.
Purchaser shall exercise its option pursuant to clause (i) above by
notice given to Seller on or before the earlier of (A) the tenth (IOth) day after the giving by Seller
to Purchaser of notice that Seller will not cure all valid title objections, which notice from Seller
shall specify the extent to which valid title objections will not be cured, and (B) the New Closing
Date.
If Purchaser exercises its option pursuant to clause (i) above, then
Purchaser shall be entitled to receive a refund of the Fund (as hereinafter defined), provided
Purchaser is not in default in any of its obligations under this Agreement. Upon such cancellation,
neither party shall have any further rights or obligations hereunder, except as set forth in the
preceding sentence and except for rights and obligations that, pursuant to the provisions of this
Agreement, are expressly made to survive the termination hereof.
If Purchaser shall fail to send a written notice to Seller exercising
Purchaser's option set forth under clause (i) above within the applicable period, then it shall be
deemed that Purchaser exercised the option set forth in clause (ii) above.
Nothing contained herein shall be construed as a representation of
the state of title to the Property or to require Seller to bring any action or proceeding or otherwise
to incur any expenses to render title to the Property insurable or marketable or to cure any valid
title objections, except that Seller shall be required to cure valid title objections that can be cured
solely by the payment of a liquidated sum of money, provided that the cost of curing any such
valid title objections does not exceed $50,000 in the aggregate. Further, notwithstanding the
foregoing, Seller shall be required to cure valid title objections that constitute mortgage liens
created by Seller. Any attempt by Seller to cure a title objection shall not be construed as an
admission by Seller that such objection is a valid title objection under this Agreement.
7. Staples Lease.
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
(a) Seller shall deliver to Purchaser at Closing possession of the
Property subject to the Staples Lease and the rights of the Staples Tenant thereunder. After
the Effective Date, Seller may not, without Purchaser's consent or approval, modify,
amend, assign, pledge, renew or extend the Staples Lease; provided, however, Seller may
deliver to Staples Tenant notice of the impending occurrence of the Option Exercise Date
(as defined in the Staples Lease) pursuant to and in accordance with Staples Lease Section
26.6, but only after (i) providing Purchaser with written notice of Seller's intent to do so
(email notice being sufficient), and (ii) providing Purchaser with a copy of the notice Seller
will deliver to Staples Tenant (email notice being sufficient). Notwithstanding the
foregoing or anything to the contrary contained herein, Purchaser may, during the
Inspection Period, negotiate a lease termination with the Staples Tenant to terminate the
Staples Lease in accordance with Section 3(b) above (the "Lease Termination"); provided,
however, the Lease Termination must provide, among other things, that (a) Purchaser is
responsible for the payment of any and all termination fees due to Staples Tenant in
connection therewith, (b) the effectiveness thereof is conditioned upon Purchaser acquiring
the Property and shall not be effective until on or after the Closing Date, (c) Seller is a party
thereto, (d) neither the Seller nor the Staples Tenant are in default under the Staples Lease
in any material respect; and (e) the effectiveness thereof is subject to the approval of Seller,
which approval shall not be unreasonably, withheld, conditioned or delayed. Purchaser
acknowledges and agrees, and shall make clear in the Lease Termination, that if this
Agreement is terminated and/or Purchaser fails to close on the acquisition of the Property
for any reason or no reason, the Lease Termination shall be rescinded and null and void
and in such event, the Staples Lease shall continue to be in full force and effect at the
Property as though the Lease Termination was not executed.
8. Seller's Representations. Seller represents and warrants on the Effective
Date, and again on the Closing Date and, as applicable, on the New Closing Date, to Purchaser
as follows:
(a) Seller is a limited liability company duly organized, validly
existing under the laws of the State of Delaware. Seller has full power and authority to
enter into this Agreement and to perform its obligations accordance hereunder in
accordance with the terms hereof.
(b) The execution, delivery and performance of this Agreement
in accordance with its terms do not and shall not on the Closing Date violate the operating
agreement of Seller.
(c) The execution, delivery and performance of this Agreement
by Seller has been duly authorized by all necessary action on the part of Seller.
(d) This Agreement has been duly executed and delivered by
Seller and is a valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, subject to bankruptcy, reorganization and other similar laws
affecting the enforcement of creditors' rights generally.
(e) Neither the Property nor Seller is the subject of any pending
or threatened reorganization, liquidation, dissolution, receivership or other action or
9
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
proceeding under the United States Bankruptcy Code or any other foreign, federal, state or
local laws affecting the rights of debtors or creditors generally, whether voluntary or
involuntary
(f) There is no pending or, to Seller's actual knowledge,
threatened condemnation or eminent domain proceedings affecting the Property.
(g) Seller has not received any written notice of a pending
action, suit, arbitration, unsatisfied order or judgment, government investigation or
proceeding nor, to Seller's actual knowledge, has any such investigation or proceeding
been threatened against Seller or the Property, in any case that would materially impair
Seller's ability to consummate the transactions in the manner required by this Agreement.
(h) Seller has not received any written notice from any
municipal, county, state or other governmental authority of any ongoing violation of any
statutes, codes, ordinances, rules or regulations with respect to the Property, including,
without limitation, any law, ordinance, rule, regulation, order, judgment, injunction or
decree relating to pollution or substances or Hazardous Materials (as defined in Section
13) which are considered to be hazardous or toxic, including, without limitation, the
Resource Conservation and Recovery Act, the Comprehensive Environmental Response,
Compensation and Liability Act, the Hazardous Materials Transportation Act, the Clean
Water Act, the Toxic Substances Control Act, the Emergency Planning and Community
Right to Know Act, and any state and local environmental law.
(i) Except for this Agreement, there is no other party that has
the right to purchase the Property or any portion thereof.
0) There is no security deposit required under the Staples
Lease, Seller is not holding any security deposit in accordance with the terms thereof, and
Seller has not received any notice of default from Staples Tenant under the Staples Lease
nor does Seller have knowledge of any uncured default by the Staples Tenant under the
Staples Lease.
(k) Except for the leasehold interests granted in the Staples
Lease, any matters disclosed in the Title Commitment and the Service Contracts, Seller is
not a party to any unwritten leases or agreement of any interest in the Property, and
Purchaser shall have the exclusive right to possession of the Property after Closing, subject
to the Staples Lease, any Service Contracts assigned to Purchaser in accordance with this
Agreement and the Permitted Exceptions.
(1) Intentionally left blank.
(m) To the best of Seller's knowledge, there are no, and Seller
shall not initiate or participate in any, changes in zoning for the Property proposed by any
applicable zoning authority unless requested to do so by Purchaser.
(n) The rent roll attached hereto as Schedule D is true and
correct in all material respects as of the date set forth on such rent roll.
10
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
(o) Seller is not a "foreign person" as that term is defined in the
Internal Revenue Code of 1954, as amended, and the regulations promulgated pursuant
thereto, and Purchaser has no obligation under Internal Revenue Code Section 1445 to
withhold and pay over to the Internal Revenue Service any part of the "amount realized"
by the Seller in the transaction contemplated hereby (as such term is defined in the
regulations issued under Internal Revenue Code Section 1445).
Seller shall have no liability to Purchaser for a breach of any representations and warranties (a)
unless the amount of such claim or claims, individually, or in the aggregate, exceeds Ten Thousand
and 00/100 ($10,000.00), or (b) in excess of Seven Hundred Fifty Thousand and 00/100
($750,000.00) with respect to any such claims. In the event Purchaser discovers prior to the
expiration of the Inspection Period that a representation or warranty of Seller under this Section 8
is untrue or becomes untrue in any material respect and, during the Inspection Period, Purchaser
has actual knowledge of the same, and Purchaser does not elect to terminate this Agreement prior
to the expiration of the Inspection, such representation or warranty shall not be a condition to
Closing. In the event Seller discovers prior to the expiration of the Inspection Period that a
representation or warranty of Seller under this Section 8 is untrue or becomes untrue in any
material respect, Seller shall immediately notify Purchaser in writing of the same and Purchaser
may, by written notice provided to Seller within 10 days of the date Purchaser received Seller's
notice, terminate this Agreement and receive a return of the Fund. Anything contained herein to
the contrary notwithstanding, to the extent any inaccuracy in a representation and warranty of
Seller in this Agreement or any documents or instruments delivered by Seller at the Closing is
revealed in any documents or information provided or made available to Purchaser or otherwise
obtained by Purchaser and Purchaser nevertheless consummates the Closing and the transactions
contemplated by this Agreement, then such representation and warranty shall be deemed modified
to reflect such inaccuracy.
9. Purchaser's Representations. Purchaser represents and warrants to Seller as
follows:
(a) The execution, delivery and performance of this Agreement
in accordance with its terms does not and shall not on the Closing Date violate the articles
of incorporation or by-laws of Purchaser, any operating or partnership agreement or other
organizational document of Purchaser.
(b) The execution and delivery of this Agreement and the
performance by Purchaser of its obligations hereunder have been duly authorized by all
necessary action on the part of Purchaser.
(c) This Agreement has been duly executed and delivered by
Purchaser and is a valid and binding obligation of Purchaser enforceable against Purchaser
in accordance with its terms, subject to bankruptcy, reorganization and other similar laws
affecting the enforcement of creditors' rights generally.
10. Closing Adjustments.
(a) No later than two (2) business days prior to the date for
which the Closing is then scheduled, Title Company shall provide the parties, for their
11
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
review and approval, with an estimate of all prorations and closing adjustments to the
extent then ascertainable and calculated in accordance with this Agreement, together with
supporting documents and invoices and such other information as the parties may
reasonably request, and the parties shall in good faith attempt to agree on such prorations
and adjustments prior to the Closing. To the extent not so ascertainable, Purchaser and
Seller shall estimate such prorations and adjustments prior to Closing and the Parties agree
to work together after Closing to promptly resolve all outstanding or continuing prorations
and adjustments.
(b) Rents and other sums, if any, as and when collected, that may
be payable under the Staples Lease shall be apportioned between Seller and Purchaser as
of midnight on the day before the Closing Date. If the payment of any rents or other sums
due under the Staples Lease is delinquent on the Closing Date, any amounts thereof
received after the Closing Date shall be applied in the following order of priority: first, to
rents and other sums that were due for the calendar month in which the Closing Date
occurred subject to proration as hereinabove provided; then, to rents or other sums that
were due for the calendar month immediately preceding the calendar month in which the
Closing Date occurred; then, to rents or other sums that have theretofore become due for
the period following the calendar month in which the Closing Date occurred; and then, to
rents and other sums that were due for the period prior to the calendar month immediately
preceding the calendar month in which the Closing Date occurred, until the Seller is paid
in full all sums owed to Seller pursuant to such Staples Lease. If any such amounts received
by Seller or Purchaser are payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees, costs and
expenses of collection thereof, shall be promptly paid to the other party. The provisions of
this subparagraph (b) shall survive the Closing.
(c) The real estate and personal property taxes and assessments
(collectively, "Taxes") shall be apportioned and prorated by the parties at Closing based
upon 105% of the last final tax bill for the Property. All prorations hereunder shall be final.
Reimbursements received following tax appeals by Seller or Purchaser of amounts paid for
current Taxes shall be prorated between the parties based on local custom used for
prorating real estate taxes in commercial transactions in the state in which the Property is
located, it being acknowledged and agreed that Seller is entitled to any and all amounts for
the period of time prior to Closing and Purchaser is entitled to any and all amounts for the
period of time from and after Closing.
(d) To the extent not paid directly (or are reimbursable by tenant
under the Staples Lease), all operating costs, maintenance charges, utilities costs, payments
due in connection with any reciprocal easement agreement or other fees paid by Seller with
respect to the Property (all of the foregoing, collectively, "Operating LExpenses '), shall be
apportioned between Seller and Purchaser as of midnight on the day before the Closing
Date. Operating Expenses include, without limitation, the Annual Fee (as defined in the
REA (as defined below)) and any Non -Recurring Shared Costs (as defined in the REA (as
defined below)). As used herein, the term "REA" shall mean that certain Reciprocal
Easement Agreement dated December 27, 2019 by and between Seller and Home Depot
U.S.A., Inc., a Delaware corporation.
12
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
(e) Errors in adjustments and apportionments made hereunder
shall be corrected as soon as practicable after the Closing Date. The provisions of this
subparagraph (e) shall survive the Closing.
11. Risk of Loss. If, after the date of this Agreement and prior to the Closing
(a) any condemnation, eminent domain or similar action is instituted or threatened for the taking
or appropriation of all or any part of the Property or affecting the construction, development, use,
ownership or operation thereof (a "Taking'), or (b) any fire, flood, earthquake, or other casualty
destroys or damages all or any part of the Property or the construction, development, use,
ownership or operation thereof (a "Casualty'), then promptly following Seller's receipt of notice
or knowledge thereof, Seller shall give notice to Purchaser of such fact (which notice shall set
forth, in the case of a Taking (or threatened Taking) Seller's determination as to whether such
Taking (or threatened Taking) is materially adverse to Purchaser, or in the case of a Casualty,
Seller's determination as to the amount of the damages arising therefrom and provide Purchaser
with copies of any insurance policies insuring Seller against damages arising from any such
Taking or Casualty. If the Taking (or threatened Taking) is materially adverse to Purchaser, in
Purchaser's sole but reasonable determination, or the damage arising from the Casualty, including
the cost to repair or restore the Property, as estimated by Seller in its sole but reasonable
discretion, are in excess of $350,000 (the "Threshold Amount"), Purchaser shall have the option
to terminate this Agreement by giving notice thereof to Seller within ten (10) days after the giving
of notice by Seller to Purchaser of such Taking (or threatened Taking) or Casualty, in which event
Purchaser shall be entitled to receive an immediate refund of the Fund, provided Purchaser is not
in default in any of its obligations under this Agreement, and all awards, proceeds and
compensation for such Taking shall be the property of Seller. Upon such termination, neither
party shall have any further rights or obligations hereunder, except as set forth in the preceding
sentence and except for rights and obligations that, pursuant to the provisions of this Agreement,
are expressly made to survive the termination hereof. If Purchaser fails to notify Seller of its
election to terminate this Agreement within the aforesaid ten (10) day period, then Purchaser shall
be deemed to have waived its right to terminate this Agreement by reason of such Taking (or
threatened Taking) or such Casualty with respect to which Seller gave Purchaser notice. In the
event of any Taking (or threatened Taking) that is not materially adverse to Purchaser, in
Purchaser's sole but reasonable determination, or in the event of a Casualty where the damages
arising therefrom, including the cost to repair or restore the Property, as estimated by Seller in its
sole but reasonable determination, are equal to or less than the Threshold Amount or in the event
of a Taking (or threatened Taking) or a Casualty with respect to which Purchaser does not elect
to terminate this Agreement as a result thereof or has been deemed to have waived its right to
terminate this Agreement as provided above, then Seller shall assign and transfer to Purchaser,
without any representation or warranty by or recourse whatsoever to Seller, all of Seller's right,
title and interest in, and any sums awarded, and proceeds received or to be received by Seller with
respect to, all damages, settlements, awards, proceeds and compensation arising therefrom,
including under Seller's insurance policies, of whatsoever kind and nature, and Purchaser shall
purchase the Property with no reduction in the Purchase Price on account thereof. The provisions
of this Paragraph 11 shall survive the Closing.
12. Escrow. The term "Escrow Agent" shall mean the Title Company. Escrow
Agent shall hold the Deposit and any interest earned thereon in escrow (the Deposit and such
interest being hereinafter sometimes collectively referred to as the "Fund") in accordance with
13
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
the terms and conditions set forth below and elsewhere in this Agreement. Interest on the Deposit,
if any, paid to Seller hereunder shall be credited toward payment of the Purchase Price.
(a) Escrow Agent shall invest the Deposit in a liquid, interest -
bearing bank account and shall not be liable for any losses suffered in connection with any
such investment, except to the extent that such losses are caused by Escrow Agent's gross
negligence or willful misconduct. Interest on the Deposit shall be paid to the party to which
the Deposit is paid.
(b) Subject to the provisions of subparagraph (c) below, the
Fund shall be the property of and shall be paid over:
(i) to Seller, at the Closing, in accordance with the provisions
hereof, or upon a default by Purchaser in any of its obligations hereunder; or
(ii) to Purchaser, if, prior to payment over to Seller as provided
in clause (i) above, Purchaser shall be entitled to return of the Deposit pursuant to the terms and
conditions hereof; or
(iii) as may otherwise be provided in subparagraph (c) below.
(c) Except in connection with the Closing hereunder as provided
below, to obtain a payment from the Fund as provided above, a party ("Requesting Party")
shall give to Escrow Agent and to the other party, in accordance with the provisions of
Paragraph 18 hereof, a notice that Requesting Party is entitled to a payment of the Fund as
provided above.
If Escrow Agent does not receive a notice from the other party within five
(5) days after Escrow Agent's receipt of such notice from Requesting Party, then Escrow Agent
shall pay over the Fund to Requesting Party. If, within five (5) days after the delivery of such
notice Escrow Agent shall have received a statement from the other party that Requesting Party is
not entitled thereto pursuant to the provisions hereof, and directing Escrow Agent not to deliver to
Requesting Party the balance of the Fund, then Escrow Agent shall, at its sole option, either:
(i) deliver the Fund to a court, or
(i i) retain the Fund until one of the following shall have
occurred:
(A) There shall have been served upon Escrow Agent an
order or judgment duly entered in a court of competent jurisdiction setting forth the manner in
which the Fund is to be paid out and delivered, in which event Escrow Agent shall deliver the Fund
as set forth in such order or judgment; or
(B) The parties shall have delivered to Escrow Agent a
statement executed by both of the parties setting forth the manner in which the Fund is to be paid
out and delivered, in which event Escrow Agent shall deliver the Fund as set forth in such
statement.
14
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
(d) Escrow Agent shall not be liable to either Seller or Purchaser
in connection with its performance as Escrow Agent hereunder other than for its gross
negligence or willful misconduct. Purchaser and Seller shall jointly and severally
indemnify and hold harmless Escrow Agent from any and all claims, liabilities, damages,
costs and expenses (including, but not limited to, reasonable attorneys' fees) arising out of
or in connection with the escrow, and any actions of Escrow Agent in connection therewith,
other than Escrow Agent's gross negligence or willful misconduct. Seller and Purchaser
shall each have the right to make a claim against the other to the extent that either Seller or
Purchaser is required to indemnify and hold harmless Escrow Agent as provided above.
13. Condition of Property. Purchaser is hereby deemed to have inspected the
Property, including, without limitation, the Improvements, and to be thoroughly acquainted with
the physical condition thereof. Seller has not made, does not make and is unwilling to make any
representations as to the condition, income, expenses, use, operation or any other matter or thing
affecting or relating to the Property or title thereto or the transactions contemplated hereby, except
as may otherwise expressly be set forth herein. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, BUT EXCEPT AS MAY OTHERWISE BE SPECIFICALLY PROVIDED
IN THIS AGREEMENT, PURCHASER HAS NOT RELIED ON ANY REPRESENTATIONS
OR WARRANTIES. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
MAY BE SPECIFICALLY PROVIDED IN SECTION 8 HEREIN, SELLER (OR ANY OF
SELLER'S DISCLOSED OR UNDISCLOSED OFFICERS, DIRECTORS, EMPLOYEES,
TRUSTEES, SHAREHOLDERS, PARTNERS, MEMBERS, PRINCIPALS, PARENTS,
SUBSIDIARIES OR OTHER AFFILIATES OF SELLER OR ANY OF THEIR AGENTS OR
REPRESENTATIVE) HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (I) THE
VALUE OF THE PROPERTY; (II) THE INCOME TO BE DERIVED FROM THE
PROPERTY; (III) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, INCLUDING
THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE PROPERTY; (IV) THE
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (V) THE MANNER,
QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY; (VI) THE
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL GEOLOGY AND ENVIRONMENTAL CONDITION;
(VII) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY
LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY INCLUDING BUT NOT LIMITED TO, TITLE
III OF THE AMERICANS WITH DISABILITIES ACT OF 1990; (VIII) THE MANNER OR
QUALITY OF THE CONSTRUCTION OR MATERIALS INCORPORATED INTO THE
PROPERTY; (IX) COMPLIANCE WITH ANY LOCAL, STATE OR FEDERAL OR LAND
USE LAWS, RULES, REGULATION, ORDERS OR REQUIREMENTS, INCLUDING
WITHOUT LIMITATION, ANY ENVIROMENTAL LAWS (HEREINAFTER DEFINED); (X)
THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS (HEREINAFTER
DEFINED) AT, ON, UNDER, OR ADJACENT TO THE PROPERTY; (XI) THE CONTENT,
15
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
COMPLETENESS OR ACCURACY OF THE DUE DILIGENCE DOCUMENTS OR TITLE
COMMITMENT; (XII) THE CONFORMITY OF THE IMPROVEMENTS TO ANY PLANS
OR SPECIFICATIONS FOR THE PROPERTY, INCLUDING ANY PLANS AND
SPECIFICATIONS THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PURCHASER;
(XIII) THE CONFORMITY OF THE PROPERTY TO PAST, CURRENT OR FUTURE
APPLICABLE ZONING OR BUILDING REQUIREMENTS; (XIV) DEFICIENCY OF ANY
UNDERSHORING; (XV) DEFICIENCY OF ANY DRAINAGE; (XVI) THE EXISTENCE OF
VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING THE
PROPERTY; OR (XVII) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY
BE LOCATED ON OR NEAR AN EARTHQUAKE FAULT LINE; FLOOD ZONE OR OTHER
NATURAL HAZARD; (XVIII) THE EXISTENCE OF ANY VIEW FROM THE PROPERTY
OR THAT ANY EXISTING VIEW WILL NOT BE OBSTRUCTED IN THE FUTURE, (XIX)
SERVICE OF THE PROPERTY BY WATER, POWER AND/OR ANY OTHER UTILITY; OR
(XX) WITH RESPECT TO ANY OTHER MATTER. ADDITIONALLY, PURCHASER'S
ACCEPTANCE OF THE DEED AT THE CLOSING SHALL BE DEEMED AN EXPRESS
WAIVER BY PURCHASER OF ITS RIGHT TO CAUSE SELLER TO BE JOINED IN ANY
ACTION BROUGHT UNDER ANY ENVIRONMENTAL LAWS.
Purchaser for itself and on behalf of each of its successors and assigns (collectively, the
"Releasors") by this general release of known and unknown claims (this "Release") hereby
irrevocably and unconditionally releases and forever discharges Seller, its affiliates, and the direct
and indirect managers, members, partners, directors, officers, shareholders, owners, employees,
and agents of each (collectively, the "Releasees"), and each of them, which and who shall
constitute intended third party beneficiaries hereof, and agrees to hold harmless the Releasees from
and against any and all claims of any kind or nature whatsoever, WHETHER KNOWN OR
UNKNOWN, suspected or unsuspected, fixed or contingent, liquidated or unliquidated which any
of the Releasors now have, own, hold or claim to have had, owned or held, against any of the
Releasees arising from, based upon or related to, whether directly or indirectly, any facts, matters,
circumstances, conditions or defects (whether patent or latent) of all or any kinds, related to, arising
from, or based upon, whether directly or indirectly, the Property, including without limitation (i)
the physical condition, quality and state of repair of the Property conveyed; (ii) any latent or patent
defect affecting the Property conveyed; (iii) the presence of Hazardous Materials in, on, about or
under the Land or which have migrated from adjacent lands to the Land or from the Land to
adjacent lands; and (iv) any claims arising out of alleged construction defects. The foregoing
Release shall be effective as of the Closing, and shall survive Closing.
Subject to the terms herein, Purchaser agrees to take title to and accept the Property,
including, without limitation, the Improvements, "AS IS" and in its present condition subject to
reasonable wear and tear, casualty (except to the extent provided in Paragraph 8 and 11 of this
Agreement), ordinary wear and tear between the date hereof and the Closing Date and subject to
any changes (i) required to be made by law, (ii) made by Seller in the ordinary course of operating
of the Property, or (iii) which do not materially and adversely affect the value of the Property.
Without limiting the foregoing provisions of this Paragraph 13, Purchaser
represents that Purchaser is not relying upon any statement or representation, express or implied
warranties, guarantees, promises, "set-ups" or information not embodied in this Agreement, made
16
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
by Seller or by any real estate broker. agent, employee, servant or other person representing or
purporting to represent Seller.
The term "Hazardous Materials" shall mean (A) those substances included within
the definitions of any one or more of the terms hazardous materials, hazardous wastes, hazardous
substances, industrial wastes, and toxic pollutants, as such terms are defined under the
Environmental Laws, or any of them, (B) petroleum and petroleum products, including, without
limitation, crude oil and any fractions thereof, (C) natural gas, synthetic gas and any mixtures
thereof, (D) asbestos or any material that contains any hydrated mineral silicate, including, without
limitation, chrysolite, amosite, crocidolite, tremolite, anthophylite and/or actinolite, whether
friable or non -friable, (E) polychlorinated biphenyls ("PCB's") or materials or fluids that contain
PCB's, (F) radon, (G) any other hazardous or radioactive substance, material, pollutant,
contaminant or waste, and (H) any other substance with respect to which any Environmental Law
or governmental authority requires environmental investigation, monitoring or rededication. The
term "Environmental Laws" shall mean all federal, state and local laws, statutes, ordinances and
regulations, now or hereafter in effect, in each case as amended or supplemented from time to time,
including, without limitation, all applicable judicial or administrative orders, applicable consent
decrees and binding judgments relating to the regulation and protection of human health, safety,
the environment and natural resources (including, without limitation, ambient air, surface, water,
groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic species and vegetation),
including, without limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C.§§ 9601 et sM.), the Hazardous Material
Transportation Act, as amended (49 U.S.C. §§ 1801 et SeMc .), the Federal Insecticide, Fungicide,
and Rodenticide Act, as amended (7 U.S.C. §§ 136 et se .), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. §§ 6901 et sue.), the Toxic Substance Control Act, as
amended (15 U.S.C. §§ 2601 et sue.), the Clean Air Act, as amended (42 U.S.C. §§ 7401 et seg.),
the Federal Water Pollution Control Act, as amended (33 U.S.C. §§ 1251 et se .), the Occupational
Safety and Health Act, as amended (29 U.S.C. §§ 651 et sM.), the Safe Drinking Water Act, as
amended (42 U.S.C. §§ 300f et se .), any state or local counterpart or equivalent of any of the
foregoing, and any federal, state or local transfer of ownership notification or approval statutes.
The provisions of this Section 13 shall survive Closing.
14. Default by Seller. If Seller defaults in or otherwise fails to comply with any
of its obligations under this Agreement or if there shall be any material misrepresentation made
by Seller under this Agreement, then Purchaser's sole right and remedy shall be, on the terms and
conditions set forth below, either:
below; or
(i) to declare this Agreement cancelled except as set forth
(ii) to enforce specific performance of this Agreement; or
(iii) to complete the purchase in accordance with this Agreement
without reduction or abatement in the Purchase Price.
Purchaser shall exercise its option pursuant to clause (i) or (ii) above
by notice given to and received by Seller on or before the Closing Date. If Purchaser exercises its
17
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
option pursuant to clause (i) above then Purchaser shall be entitled to receive a refund of the Fund,
provided Purchaser is not in default in any of its obligations under this Agreement. Upon such
cancellation, neither party shall have any further rights or obligations hereunder, except as set forth
in the preceding sentence and except for rights and obligations that, pursuant to the provisions of
this Agreement, are expressly made to survive the termination hereof. Notwithstanding the
foregoing, Purchaser may not cancel this Agreement or pursue any other available remedies
hereunder or at law or in equity without first providing Seller written notice of noncompliance or
material misrepresentation and allowing Seller five (5) business days to cure such noncompliance.
If Purchaser shall fail to give notice to Seller exercising Purchaser's option set forth under
clause (i) or (ii) above within the applicable period, then it shall be deemed that Purchaser has
exercised the option set forth in clause (iii) above.
15. Acceptance of Deed. The acceptance of the Deed by Purchaser shall be
deemed full compliance by Seller of all of the Seller's obligations under this Agreement except
for those obligations of Seller, if any, which in this Agreement or in any document delivered at
the Closing are specifically stated to survive the Closing.
16. Default by Purchaser; Liquidated Damages.
(a) If Purchaser defaults in or otherwise fails to comply with any
of its obligations under this Agreement or if there shall be any material misrepresentation
made by Purchaser under this Agreement, then Seller as Seller's sole remedy, may cancel
this Agreement and shall have the rights set forth in subparagraph (b) below; provided,
however, Seller may not cancel this Agreement or pursue any other available remedies
hereunder or at law or in equity without first providing Purchaser written notice of
noncompliance or material misrepresentation and allowing Purchaser five (5) business
days to cure such noncompliance.
(b) If this Agreement shall be terminated or cancelled and
Purchaser is in default in any of its obligations under this Agreement, the damages of Seller,
while substantial, would be difficult or impossible to determine with mathematical
precision. Thus, in such event, Seller shall be entitled to retain the Fund as liquidated
damages. The parties agree that the provisions of this subparagraph (b) represent an agreed
measure of damages and are not to be deemed a forfeiture or penalty.
(c) Without limiting the provisions of subparagraph (a) above,
if any check delivered to or on behalf of Seller, including but not limited to on account of
the Deposit or any other portion of the Purchase Price, shall be dishonored for any reason
whatsoever, it shall be deemed a material default by Purchaser hereunder and Seller may,
in that event, cancel this Agreement in accordance with Section 16(a).
(d) If at any time a check or other instrument for the payment of
money or on behalf of Seller delivered by Purchaser pursuant to the provisions of this
Agreement is dishonored for any reason whatsoever, without limiting the foregoing
provisions of this Paragraph 16, Purchaser shall reimburse Seller for the costs (including
but not limited to reasonable attorneys' fees) of collection of any check or other instrument.
The provisions of this Paragraph 16 shall survive the Closing.
18
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
(e) Nothing contained in this Paragraph 16 shall limit or
otherwise affect any rights or remedies that Seller has with respect to the Fund as provided
in Paragraph 3 hereof.
17. No Assignment by Purchaser. Except as provided in Section 23(t) of this
Agreement, neither this Agreement nor any of the rights of Purchaser hereunder may be assigned
by Purchaser without the written consent of Seller, which consent may be denied for any reason
whatsoever or for no reason. Notwithstanding the foregoing, no later than five (5) business days
prior to Closing, Purchaser may assign its rights and obligations under this Agreement without
Seller's consent to any entity which is controlled by the principal of Purchaser provided that such
rights and obligations are assigned to and assumed by such successor entity pursuant to an
instrument of assignment and assumption which has been approved by Seller in its sole but
reasonable discretion.
18. Notices. Any notice, demand or other communication required or permitted
to be given hereunder shall be in writing addressed to the respective party as set forth below and
may be personally served or sent by overnight courier or certified mail, return receipt requested,
and shall be deemed given: (a) if served in person, when served; (b) if by overnight courier, on
the first business day after delivery to the courier; or (c) if by certified mail, return receipt
requested, on the third day after deposit, postage prepaid, in an official depository of the United
States Postal Service.
Notices to Seller: c/o CLK Properties
135 Crossways Park Drive
Woodbury, New York 11797
Attention: Peter Glass
Email: peter@clkcorp.com
With a copy to: CLK Properties
135 Crossways Park Drive
Woodbury, New York 11797
Attention: Kathleen Walser
Email: kathleen@clkcorp.com
Notices to Purchaser: Village of Elk Grove Village
901 Wellington Ave
Elk Grove Village, Illinois 60007
Attention: Matthew J. Roan
Email: mroan@elkgrove.org
With a copy to: Village of Elk Grove Village
901 Wellington Ave
Elk Grove Village, Illinois 60007
Attention: George Knickerbocker
Email: gknickerbocker� lk orgr ve.org
With a copy to: Ancel Glink, P.C.
19
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
140 S. Dearborn Street, 6th Floor
Chicago, Illinois 60603
Attention: Gregory W. Jones
Email: gjones@ancelglink.com
Notices to Escrow Agent: First American Title Insurance Company
200 W. Madison Street, Suite 800
Chicago, IL 60606
Attention: Kerry Walsh
Email: kewalsh@firstam.com
or to any other party or any other address as any of the foregoing parties may indicate by
notice to the other parties made in accordance with the terms of this Paragraph 18.
Attorneys for a party shall be authorized to give notices on behalf of such party.
Written adjournments and extensions of time signed by an attorney for a party shall be binding
upon that party.
19. Further Assurances. Each party, upon request of the other party, from time
to time, on or before the Closing Date or at any time thereafter, shall execute and deliver any
instruments, agreements or other documents reasonably requested by the other party that are
necessary or convenient in order to evidence or confirm any of the agreements of the parties
hereunder or to effectuate any of the provisions of this Agreement.
20. Title to Personal Property.
(a) All fixtures and articles of personal property attached or
appurtenant to the Property that are owned by the Seller are included in this sale subject, however,
to any Permitted Exceptions. Purchaser acknowledges and agrees that other than expressly
provided herein, Seller makes no representation in connection with such fixtures and articles of
personal property and Seller expressly disclaims any implied warranties of merchantability or
fitness for a particular purpose.
(b) Although no part of the Purchase Price has been allocated
to the Personal Property and therefore it is not anticipated that any sales or use taxes shall be due
and payable, Purchaser agrees to indemnify and hold Seller harmless from and against any and all
claims, liabilities, damages, costs and expenses (including, without limitation, reasonable
attorneys' fees) arising out of or in connection with any sales or use taxes that may now or hereafter
be imposed upon Seller or the Property with respect to the sale of the Personal Property. The
provisions of this subparagraph (b) shall survive the Closing.
21. Brokerage. Seller hereby represents and warrants to Purchaser that it has
not engaged any finder, broker or other sales agent with respect to any of the transactions
described in this Agreement or otherwise relating to the sale of all or any portion of the Property
other than The Boulder Group ("Seller's Broker"). Purchaser represents and warrants to Seller
that it has not engaged any finder, broker or other sales agent, with respect to any of the
transactions described in this Agreement or otherwise relating to the sale of all or any portion of
20
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
the Property other than Lee & Associates of Illinois, LLC ("Purchaser's Broker", and together
with Seller's Broker, the "Brokers"). Seller shall pay the Brokers pursuant to a separate
agreement. Each party agrees to indemnify, defend and hold harmless the other from and against
any and all claims, liabilities, damages, costs and expenses (including, without limitation,
reasonable attorneys' fees) caused by or arising out of: (a) a breach of any of the aforesaid
representations and warranties of the indemnifying party; and (b) any claims for any brokerage
or sales commissions, finder's fees, consultant's fees or any other similar fees or compensation
of any person claiming to have dealt with, on behalf of, through or under such indemnifying party.
The provisions of this Paragraph 21 shall survive the Closing or the earlier termination of this
Agreement.
22. Confidentiality. Purchaser covenants and agrees not to communicate the
terms or any aspect of this Agreement or the transactions contemplated hereby to any person or
entity, and Purchaser agrees to hold, in the strictest confidence, the content of any and all
information in respect of the Property that is supplied by or on behalf of Seller to Purchaser and
is not of public record or acquired by Purchaser (or readily available to Purchaser) from other
sources ("Confidential Information"), without the express written consent of Seller; provided,
however, that Purchaser may disclose the terms hereof and the transactions contemplated hereby
and Confidential Information (a) to its respective Transaction Parties without the express written
consent of the other party, so long as any such Transaction Parties to whom disclosure is made
have been instructed, either verbally or in writing to keep all such information confidential in
accordance with the terms hereof and (b) if disclosure is required by law or by regulatory or
judicial process or in any legal proceeding to interpret or enforce this Agreement. If this
Agreement is terminated, such confidentiality shall be maintained in accordance with this Section
and Purchaser shall promptly, upon Seller's request, deliver to Seller all copies of written
Confidential Information delivered to it by or on behalf of Seller.
23. Miscellaneous.
(a) At the Closing, Seller shall pay: (i) the legal fees of Seller's
counsel, (ii) the cost of the State of Illinois transfer taxes and any and all county deed or
transfer taxes incurred in connection with the transfer of the Property, (iii) the cost of the
premium of Purchaser's owner's title policy, (iv) the recording fee for any satisfaction
documents, and (v) fifty percent (50%) of any closing and/or escrow fees charged by the
Title Company and/or Escrow Agent. Purchaser shall pay: (i) all recording fees charged
in connection with the recordation of the Deed and any documents requested by
Purchaser's lender, (ii) fifty percent (50%) of any closing and/or escrow fees charged by
the Title Company and/or Escrow Agent, (iii) the cost of any lender's title policy (if any)
and for any endorsements to any policy, (iv) any local village transfer tax incurred in
connection with the transfer of the Property, (v) the cost of an Updated Survey, if ordered
by Purchaser, and (vi) the legal fees and disbursements of Purchaser's counsel. Seller and
Purchaser shall each pay all other expenses, charges or costs for which sellers and buyers,
respectively, are customarily responsible in commercial real estate transactions in the State
of Illinois. The provisions of this Section 23(a) shall survive the Closing.
(b) PURCHASER ACKNOWLEDGES AND AGREES THAT
NEITHER PURCHASER NOR ITS SUCCESSORS OR ASSIGNS SHALL HAVE ANY
RECOURSE AGAINST ANY PARTNER, OFFICER, DIRECTOR, EMPLOYEE,
21
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
PERSON, FIRM, AGENT OR REPRESENTATIVE ACTING OR PURPORTING TO
ACT ON BEHALF OF SELLER, EVEN IF THE MATTERS GIVING RISE TO SUCH
RECOURSE ARISE FROM OR ARE ATTRIBUTABLE TO THE JOINT,
CONCURRENT OR COMPARATIVE NEGLIGENCE OF SELLER OR ANY OF ITS
ENTITIES OR ANY PERSON ACTING OR PURPORTING TO ACT ON BEHALF OF
SELLER. THE PROVISIONS OF THIS SECTION 23(b) SHALL SURVIVE CLOSING.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois (excluding choice of law principles). Venue
for all disputes arising from or related to this Agreement shall be the Circuit Court of Cook
County, Cook County, Illinois.
(d) Neither this Agreement nor any provision hereof may be
waived, amended, discharged or terminated except by instrument in writing signed by the
party against which the enforcement of such waiver, amendment, discharge or termination
is sought and then only to the extent set forth in such instrument.
(e) It is understood and agreed that all understandings and
agreements heretofore had between the parties hereto are merged in this Agreement which
alone fully and completely express their agreement.
(f) Whenever the context shall require, the singular shall
include the plural, the plural shall include the singular and words of any gender shall be
deemed to include words of any other gender. As used herein, "Purchaser" shall mean each
individual or other entity signing this Agreement both individually and collectively. If two
or more persons or entities constitute Purchaser hereunder, then they shall be jointly and
severally liable for the obligations of Purchaser hereunder, and Seller may rely on, and all
of such persons or entities shall be bound by, any writing executed by any one or more of
them.
(g) References to the "actual knowledge" of Seller shall refer
only to the actual knowledge of Michele Klampfer, the asset manager with respect to the
Property (the "Designated Party"), and shall not be construed, by imputation or otherwise,
to refer to the knowledge of Seller, any affiliate of Seller, any property manager, or any
other officer, agent, manager, representative or employee of Seller or any affiliate of Seller,
or to impose upon the Designated Party any duty to investigate the matter to which such
actual knowledge, or the absence thereof, pertains.
(h) The time in which any act required or permitted by this
Agreement is to be performed shall be determined by excluding the day upon which the
event occurs from whence the time commences. The term "business day" shall mean a day
other than a Saturday, Sunday, federal holiday or other day on which commercial banks in
New York, New York or Chicago, Illinois are authorized or required by law or executive
order to close. If the last day upon which performance hereunder would otherwise be
required or permitted is not a business day, then the time for such performance shall be
extended to the next day that is a business day.
22
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
(i) The terms "herein," "hereof' or "hereunder" or similar terms
used in this Agreement refer to the entire Agreement and not to the particular provision in
which the term is used unless the context otherwise requires.
0) The captions in this Agreement are for convenience and
reference only and in no way define, limit or describe, the scope of this Agreement or the
intent of any provision hereof.
(k) This Agreement shall be interpreted without the aid of any
presumption against the party drafting or causing the drafting of the provision in question.
(1) This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their successors and their permitted assigns. This Agreement
and all documents, understandings and arrangements relating hereto or to the transactions
contemplated hereby have been negotiated, executed and delivered on behalf of Seller and
Purchaser by their partners or members, as the case may be, in their representative
capacities and not individually, and no officer, director, employee, member, partner, agent
or shareholder of Seller or Purchaser shall be bound or held to any personal liability or
responsibility in connection with the agreements, obligations and undertakings of Seller or
Purchaser hereunder or under any documents, understandings and arrangements relating
hereto or in connection with the transactions contemplated hereby.
(m) This Agreement shall not be effective unless and until
executed and delivered by each of Purchaser and Seller. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, and all of which,
together, shall constitute one and the same Agreement. This Agreement may not be
modified, changed, supplemented or terminated, nor may any obligations hereunder be
waived, except by written instrument signed by the party to be charged or by its agent duly
authorized in writing or as otherwise expressly permitted herein. If any provision in this
Agreement is found by a court of competent jurisdiction to be in violation of any applicable
law, and if such court should declare such provision of this Agreement to be unlawful,
void, illegal or unenforceable in any respect, the remainder of this Agreement shall be
severable, and the rights, obligations and interests of the parties hereto under the remainder
of this Agreement shall continue in full force and effect. To the extent permitted by
applicable law, the parties hereto waive any provision of law that which prohibits or renders
void or unenforceable any provision hereof.
(n) Purchaser shall not record this Agreement without the
written consent of Seller.
(o) Any and all payments to be made by Purchaser under this
Agreement to, on behalf of or at the request of Seller or Escrow Agent shall be made by
unendorsed certified check or official bank check or, at Seller's option, by wire transfer of
federal funds to a bank account designated by Seller. Notwithstanding the foregoing, any
payment to be made to Escrow Agent on account of the Purchase Price may be made by
wire transfer of federal funds to a bank account designated by Escrow Agent. Any payment
made by wire transfer shall not be deemed to have been made until confirmed as received
by the transferee bank and credited to the transferee account.
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
Seller: BLDG ELK GROVE HD LLC,
a Delaware limited liability company
By: PARTNERS 2004, LLC, a New York
limited liability company, its Sole Member
By: BLDG ASSOCIATES, INC., a
Delaware corporation, its Managing
Member
By:?�
Name*
Title:{?. o
BLDG ELK GROVE HD II LLC,
a Delaware limited liability company
By: LKD Partners 2004, LLC, a New York
limited liability company, its Sole Member
By: PARTNERSHIP 93 L.P., a Delaware
partnership, its Sole Member
By: BLDG ASSOCIATES, INC.,
a Delaware corporation, its
General Partner
[: 7
By
Name.
Title:
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
FEIGA II/HD LLC,
a Delaware limited liability company
By: Kings Mountain II, L.P., a Delaware limited
partnership, its Sole Member
By: FEIGA II, INC., a Delaware
corporation, its General Partner
By: [DoeuSigned by:
6raio �Wl
D074BS FEE28430..
. ,....., . , .,__...,,.berg
Title: President
COURT STREET ASSOCIATES/HD, LLC,
a Delaware limited liability company
Court Street Associates, LLC, a New York
limited liabilitv company, its Sole Member
DoeuSignned by' ,`
B �trl
D074B56FEE28430...
Namc. C aig nuc,,,gbucrg
Title: Manager
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Purchaser: VILLAGE OF EL G VE VILLAGE.
an Illinois home rul ni ipal corporation
By:
Name: ra jQ
Title: /K
M
Executed solely for the purpose of
accepting the escrow on the terms
and conditions set forth herein:
FIRST AMERCAN TITLE INSURANCE COMPANY
By: a�
28
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Schedule A
LOTS 2, 3, AND 4 IN THE HOME DEPOT — ELK GROVE VILLAGE RESUBDIVISION NO.
1 PLAT OF SUBDIVISION A RESUBDIVISION OF PART OF LOT IB IN SUPER KMART
CENTER RESUBDIVISION NO. 2, BEING A SUBDIVISION IN THE WEST HALF OF THE
SOUTHWEST QUARTER OF SECTION 25. TOWNSHIP 41 NORTH, RANGE 10 EAST OF
THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF ECORDED
JANUARY 21, 2020 AS DOCUMENT NO.2002145017.
PIN Numbers: 07-25-300-061-0000
07-25-300-062-0000
07-25-300-063-0000
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Schedule B
PERMITTED EXCEPTIONS
[to be provided later]
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Schedule C
SERVICE CONTRACTS
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Schedule D
RENT ROLL
(SEE ATTACHED)
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Schedule E
DUE DILIGENCE DOCUMENTS
1) Staples Lease;
2) All lease, license, occupancy, and similar agreements with any entity occupying the
Property or any portion thereof;
3) Service Contracts;
4) All assignable service, maintenance and operating contracts, equipment leases and similar
agreements related to the Property;
5) Rent Roll;
6) All utility statements and invoices for the past year, including, without limitation,
invoices related to electricity, gas, water, and wastewater;
7) All Insurance claim information (loss -runs) for the last 2 years;
8) Any environmental tests, analysis or reports concerning the Property or any portion
thereof;
9) Existing Survey;
10) All written violation notices concerning or involving the Property including, without
limitation, building, zoning, environmental, and health code violations, which have not been
cured as of the Effective Date;
11) Copies of documents related to any tax appeal pending as of the Effective Date or
anticipated to be filed during the Inspection Period;
12) REA; and
13) Engineering and architectural plans, specifications, warranties, and engineering reports.
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Exhibit 1
Form of Assignment of Contract Rights and Intangibles
(see attached)
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
ASSIGNMENT OF CONTRACT RIGHTS AND INTANGIBLES
ASSIGNMENT OF CONTRACT RIGHTS AND INTANGIBLES (this
"Assignment") made as of 2024 ("Effective Date"), between
J, a ("Assignor") and , a
("Assignee").
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor hereby assigns and transfers to Assignee all of Assignor's right,
title and interest in and to all assignable contracts rights (other than rights in the Service Contracts)
and intangible property of any kind and nature whatsoever belonging or pertaining to or used in
connection with all or any part of the real property located at 610 Meacham Road, Elk Grove
Village, IL (the "Pro a "), or the development, construction, ownership, use, maintenance, or
operation thereof, including, without limitation: (i) all guaranties and warranties; (ii) all designs,
plans, specifications, engineering drawings and prints, and surveys; (iii) all development rights,
entitlements, licenses, approvals and agreements belonging, benefiting or pertaining to the land or
the improvements of the Property and the development, construction, ownership, use and operation
thereof; (iv) all consents, variances, waivers, licenses, permits, registrations, notifications, comfort
letters, reliance letters, certificates, authorizations and other approvals pertaining to all or any
portion of the Property by any governmental authority and all applications for any of the foregoing
(all of the foregoing, collectively, "Contract Rights and Intangibles').
2. Assignee hereby accepts the aforementioned assignment and assumes the
performance of all of the rights, duties and obligations of Assignor under the Contract Rights and
Intangibles from and after the date hereof.
3. Assignee shall defend, indemnify and hold harmless Assignor from and
against any and all loss, liability, damage, cost and expense, including without limitation,
reasonable attorneys' fees and disbursements, incurred or sustained by Assignor as a result of
Assignee's failure to perform any of its obligations with respect to the Contract Rights and
Intangibles first arising after the Effective Date.
4. Assignor shall defend, indemnify and hold harmless Assignee from and
against any and all loss, liability, damage, cost and expense, including without limitation,
reasonable attorneys' fees and disbursements, incurred or sustained by Assignee as a result of
Assignor's failure to perform any of its obligations with respect to the Contract Rights and
Intangibles first arising on or before the Effective Date.
5. Assignor represents and warrants that Assignor holds all such right, title and
interest under the Contract Rights and Intangibles, has the right to convey the Contract Rights and
Intangibles to Assignee, that such right, title and interest are unencumbered by Assignor. Assignor
further represents and warrants that Assignor has received no notice of any Lessor breach of the
Contract Rights and Intangibles.
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
6. This Assignment shall be binding upon and shall inure to the benefit of
Assignee, its successors and assigns.
7. This Assignment may be executed in multiple counterparts, each of which shall be
deemed to be an original and all of which shall constitute one and the same Assignment.
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
written.
IN WITNESS WHEREOF, this Assignment is executed as of the date first above
By: _
Name:
Title:
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
F,xhihit 2
Form of Special Warranty Deed
SPECIAL WARRANTY DEED
This Document Prepared BX:
Kathleen Walser
c/o CLK Properties
135 Crossways Park Drive West
Woodbury, New York 11797
After Recording Please Return To:
Village of Elk Grove Village
Attn: Matthew J. Roan, Village Manager
901 Wellington Ave
Elk Grove Village, Illinois 60007
THIS INDENTURE, made this day of , 2024, by
("Grantor") having an address of
, to Village of Elk Grove Village, an Illinois
home rule municipal corporation ("Grantee") having an address of 901 Wellington Ave, Elk Grove
Village, Illinois 60007 WITNESSETH that Grantor, for and in consideration of TEN and No/100
($10.00) DOLLARS, and other good and valuable consideration in hand paid by Grantee, the
receipt whereof is hereby acknowledged, does hereby GRANT, BARGAIN, SELL AND
CONVEY to the Grantee, FOREVER, all interest in the real estate situated in the County of Cook,
in the State of Illinois, and legally described on Exhibit A attached hereto and by this reference
made a part hereof ("Property") and subject to the certain permitted title exceptions described on
Exhibit B attached hereto and by this reference made a part hereof.
Together with all and singular the hereditaments and appurtenances and privileges thereunto
belonging, or in anywise thereunto appertaining and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand
whatsoever, of Grantor, either in law or equity, of, in and to the Property, with the hereditaments and
appurtenances: TO HAVE AND TO HOLD the Property, with the appurtenances, unto Grantee, its
heirs and assigns forever.
And Grantor, for itself and its successors does covenant, promise and agree, to and with
Grantee, Grantee's successors and assigns, that Grantor has not done or suffered to be done
anything whereby the Property hereby granted are, or may be, in any manner encumbered or
charged, except as herein recited; and that Grantor will warrant and forever defend title to the
Property described above, against all persons lawfully claiming or who may claim the same, by,
through or under Grantor but not otherwise.
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
IN WITNESS WHEREOF, this Special Warranty Deed is executed as of the day and year
first above written.
By: _
Name:
Its:
STATE OF ILLINOIS )
) SS.
COUNTY OF )
I, the undersigned, a Notary Public in and for said County, in the State aforesaid, DO HEREBY
CERTIFY that who is the , of
is personally known to me to be the same person
whose name is subscribed to the foregoing instrument, appeared before me this day in person, and
acknowledged that as such , they signed, sealed and delivered the said
instrument as their free and voluntary act, and as the free and voluntary act and deed of said
, for the uses and purposes therein set forth.
Given under my hand and official seal, this day of , 20_.
Commission Expires
Please Mail Tax Bills To:
Village of Elk Grove Village
Attn: Village Clerk
901 Wellington Ave
Elk Grove Village, Illinois 60007
EXEMPT UNDER PROVISIONS OF
35 ILCS 200/31-45, PARAGRAPH (b),
REAL ESTATE TRANSFER ACT
Signature of Buyer, Seller or Representative
Notary Public
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
EXHIBIT A TO DEED
LEGAL DESCRIPTION
LOTS 2, 3, AND 4 IN THE HOME DEPOT — ELK GROVE VILLAGE RESUBDIVISION NO.
1 PLAT OF SUBDIVISION A RESUBDIVISION OF PART OF LOT IB IN SUPER KMART
CENTER RESUBDIVISION NO.2, BEING A SUBDIVISION IN THE WEST HALF OF THE
SOUTHWEST QUARTER OF SECTION 25. TOWNSHIP 41 NORTH, RANGE 10 EAST OF
THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT THEREOF ECORDED
JANUARY 21, 2020 AS DOCUMENT NO.2002145017.
PIN Numbers: 07-25-300-061-0000
07-25-300-062-0000
07-25-300-063-0000
PIN: 07-25-300-061-0000, 07-25-300-062-0000, 07-25-300-063-0000
ADDRESS: 610-620 Meacham Road, Elk Grove Village, Illinois 60007
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
EXHIBIT B TO DEED
PERMITTED EXCEPTIONS
[TO BE DETERMINED IN ACCORDANCE WITH THE TERMS OF THE AGREEMENT]
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Exhibit 3
Form of Lease Assignment
(see attached)
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
LEASE ASSIGNMENT
LEASE ASSIGNMENT (this "Assignment") made as of , 2024
("Effective Date"), between [ 1, a [ 1 ("Assignor'),
and , a ("Assignee').
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor hereby assigns and transfers to Assignee, all of Assignor's right,
title and interest in, to and under the Staples Lease (as defined in that certain Contract of Sale,
dated _, 2024, between Assignor, as seller, and Assignee, as purchaser), together with
any security deposits (with any interest accrued thereon) made thereunder and held by Assignor
on the date hereof.
2. Assignee hereby accepts the aforementioned assignment and assumes the
performance of all of the rights, duties and obligations of Assignor under the Staples Lease from
and after the date hereof.
3. Assignee hereby defends, indemnifies and holds harmless Assignor from
and against any and all loss, liability, damage, cost and expense, including without limitation,
reasonable attorneys' fees and disbursements, incurred or sustained by Assignor as a result of
Assignee's failure to perform any of its obligations first arising under the Staples Lease after the
Effective Date.
4. Assignor shall defend, indemnify and hold harmless Assignee from and
against any and all loss, liability, damage, cost and expense, including without limitation,
reasonable attorneys' fees and disbursements, incurred or sustained by Assignee as a result of
Assignor's failure to perform any of its obligations with respect to the Staples Lease first arising
on or before the Effective Date.
5. This Assignment may be executed in multiple counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the same Assignment.
6. This Assignment shall be binding upon and shall inure to the benefit of
Assignee, its successors and assigns.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
written.
IN WITNESS WHEREOF, this Assignment is executed as of the day first above
Assignor:
Name:
Title:
Assignee:
Name:
Title:
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Exhibit 4
Form of Service Contract Assignment
(see attached)
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
SERVICE CONTRACT ASSIGNMENT
SERVICE CONTRACT ASSIGNMENT (this "Assignment") made as of
2024 ("Effective Date"), between a
[ ("Assignor') and , a
("Assignee').
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. Assignor hereby assigns and transfers to Assignee all of Assignor's right,
title and interest in and to all of the service and maintenance contracts listed on Schedule_
attached hereto and made a part hereof (all of the foregoing, collectively, "Service Contracts").
2. Assignee hereby accepts the aforementioned assignment and assumes the
performance of all of the rights, duties and obligations of Assignor under the Service Contracts
from and after the Effective Date.
3. Assignee shall defend, indemnify and hold harmless Assignor from and
against any and all loss, liability, damage, cost and expense, including without limitation,
reasonable attorneys' fees and disbursements, incurred or sustained by Assignor as a result of
Assignee's failure to perform any of its obligations first arising under the Service Contracts after
the Effective Date.
4. Assignor shall defend, indemnify and hold harmless Assignee from and
against any and all loss, liability, damage, cost and expense, including without limitation,
reasonable attorneys' fees and disbursements, incurred or sustained by Assignee as a result of
Assignor's failure to perform any of its obligations with respect to the Service Contracts first
arising on or before the Effective Date.
5. This Assignment shall be binding upon and shall inure to the benefit of
Assignee, its successors and assigns.
6. Nothing in this Assignment, express or implied, is intended to confer any
rights or remedies under or by reason of this Assignment on any person or entity (including,
without limitation, the other parties under the Service Contracts) other than Assignee and Assignor,
their successors and assigns, nor is anything in this Assignment intended to relieve or discharge
any obligation of any third party or give any third party any right to subrogation or action over or
against Assignor or Assignee, and no such third party (including, without limitation, the other
parties under the Service Contracts) shall be entitled to claim that any obligation of Assignor has
been assumed by Assignee by virtue of this Assignment.
7. This Assignment may be executed in multiple counterparts, each of which
shall be deemed to be an original and all of which shall constitute one and the same Assignment.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
IN WITNESS WHEREOF, this Assignment is executed as of the date first above
written.
Assignor:
Assignee:
6211154v4/32726-0004
In
Name:
Title:
Name:
Title:
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Exhibit 5
Form of Bill of Sale
(see attached)
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
BILL OF SALE
BILL OF SALE made as of 2024 (this "Bill of Sale"), by
1, a [ ] ("Seller"), in favor of
a ("Purchaser").
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Seller agrees as follows:
1. Seller hereby sells, assigns, transfers, and conveys to Purchaser all of
Seller's right, title and interest, if any, in and to the equipment, fixtures, machinery and other
tangible personal property of every kind and nature installed in, located at, situated on, or used in
connection with all or any part of the real property located at [ ], or
the development, construction, ownership, maintenance, use or operation thereof (collectively, the
"Personal Projerty")
2. This Bill of Sale shall be binding upon and shall inure to the benefit of
Purchaser, its successors and assigns.
3. The Personal Property is herein being sold "AS IS" and "WHERE IS,"
without any representations or warranties of any kind.
IN WITNESS WHEREOF, this Bill of Sale is executed as of the date first above
written.
Name:
Title:
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
Exhibit 6
Form of Notice to Tenant
(see attached)
6211154v4/32726-0004
Docusign Envelope ID: 2CA5F9B9-E2A6-4751-9D24-888DB4205E8E
NOTICE TO STAPLES TENANT
Ladies and Gentlemen:
Please be advised that the undersigned, the owner of the above -referenced property, has
conveyed the property to , ("Purchaser").
As a result of such conveyance, Purchaser has become your new landlord. You are directed
to pay all rents, and other sums and charges, hereafter becoming payable to the landlord under
your lease, to Purchaser at the following address:
You are similarly directed to send any notice which you hereafter desire or are required to
send to the landlord under your lease to Purchaser at the same address.
Please be further advised that your security deposit, if any, together with any accrued
interest thereon, after deducting any administrative fee to which the undersigned is entitled, has
been transferred to and is now held by Purchaser.
Yours truly,
IM
6211154v4/32726-0004
Name:
Title: