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EXHIBIT 10.22
AMENDED AND RESTATED
REAL ESTATE SALE CONTRACT
THIS AMENDED AND RESTATED REAL ESTATE SALE CONTRACT ("this Contract") is
dated FEBRUARY 21, 1997 and is by and between THE FLORSHEIM SHOE COMPANY, a
Delaware corporation ("Seller") and EVEREST PARTNERS L.L.C., an Illinois
limited liability company ("Purchaser").
Seller and Purchaser are parties to a Real Estate Sale Contract dated July
25, 1996 as amended by a First Amendment dated September 6, 1996, a Second
Amendment dated September 26, 1996, a Third Amendment dated November 4, 1996, a
Fourth Amendment dated December 20, 1996, and two letter agreements extending
the closing date to February 21, 1997 (collectively, "the Original Contract").
Seller and Purchaser have agreed to further amend the Original Contract, and in
consideration thereof Seller and Purchaser hereby amend and restate the
Original Contract in its entirety as follows:
1. PROPERTY. Subject to the terms and conditions contained herein, Seller
shall transfer, assign, sell, and convey or cause to be transferred, assigned,
sold, and conveyed to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Limited Partnership, an Illinois limited
partnership ("the Partnership") or to a land trust designated by Purchaser not
later than 5 days before the Closing Date the land ("▇▇▇ ▇▇▇▇") and
improvements in Chicago, ▇▇▇▇ County, Illinois with street address ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (which Land is described as Parcels 1 and 2 in the survey
described in Paragraph 4.B and which is attached hereto as Exhibit B), which
Land comprises approximately 60,579 square feet and is improved with a building
containing approximately 330,000 square feet, and (except as provided in
Exhibit C) all other buildings, structures, and improvements on the Land,
together with all of Seller's rights, titles, and interests, if any, in and to
all easements, party walls, rights of way, privileges, appurtenances, and
rights to the same, belonging to or inuring to the benefit of the Land and all
rights, titles, and interests in and to streets, alleys, or other public ways
adjacent to the Land. The Land and improvements thereon and other real
property interests to be conveyed as aforesaid are collectively referred to
herein as "the Property."
2. PURCHASE PRICE; ▇▇▇▇▇▇▇ MONEY.
A. The purchase price to be paid by Purchaser to Seller at Closing for the
Property ("the Purchase Price") shall be $7,000,000.00.
B. Purchaser has heretofore delivered to Seller the sum of $300,000.00
("the ▇▇▇▇▇▇▇ Money"). The ▇▇▇▇▇▇▇ Money has been earned by Seller and shall
be non-refundable; provided, however,
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that if the Closing does not occur due to default by Seller, then Seller shall
repay the ▇▇▇▇▇▇▇ Money to Purchaser. At Closing, the ▇▇▇▇▇▇▇ Money shall be
applied to the Purchase Price.
3. SELLER'S DISCLOSURES.
A. Seller has heretofore delivered to Purchaser the following documents
with respect to the Property (collectively referred to herein as "Seller's
Disclosure Documents"):
1. All service contracts and equipment leases affecting the Property
which may be binding on Purchaser after Closing.
2. The Indenture dated October 6, 1947 ("the 1947 Lease") with
respect to Parcel 2.
3. Copies of the following documents, to the extent that the same
were then in Seller's possession:
a. Records and operating statements with respect to the
Property showing the costs and expenses of, or incurred in
connection with, the ownership, management, operation, and
maintenance of the Property on and after January 1, 1993.
b. Real estate tax bills, assessment notices, and information
provided by Seller to its attorneys or consultants in protesting or
contesting real estate tax bills or assessments of the Property for
years after January 1, 1989.
c. Seller's most recent reports on title to the Property.
d. Engineering studies, architectural drawings, plans, and
specifications, and as built surveys of the Property and
improvements thereon.
e. Notices received from governmental authorities alleging
violations of law with respect to the Property or any part or parts
thereof.
f. Documents establishing or claiming that the Property has
at any time been used as a site for the use, generation,
manufacture, storage, disposal, or transportation of any Hazardous
Materials. "Hazardous Materials" means asbestos in any form, oil,
flammable explosive, urea formaldehyde, transformers or other
equipment which contain fluid containing polychlorinated biphenyls,
radioactive materials,
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underground storage tanks, or any other chemical, material, or
substance, or storage device or container therefor, or other
dangerous, hazardous, toxic, or contaminated substances, wastes, or
materials, or materials the exposure to which is prohibited,
limited, or regulated by a federal, state, county, regional, or
local authority or which poses a hazard to the health and safety of
the occupants of the Property.
B. If for any reason Purchaser does not consummate the acquisition of
the Property, then Purchaser shall return Seller's Disclosure Documents to
Seller.
C. Seller has heretofore delivered to Purchaser an affidavit that the
transfer of the Property to Purchaser is not subject to the Illinois
Responsible Property Transfer Act.
4. TITLE INSURANCE; SURVEY; PERMITTED EXCEPTIONS.
A. Attached hereto as Exhibit A is a commitment ("the Commitment") by
Chicago Title Insurance Company ("the Title Insurer") to issue a current form
ALTA owner's title insurance policy covering title to the Property.
B. Attached hereto as Exhibit B is a survey of the Property prepared by
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ("the Surveyor") and dated April 23, 1990. Seller
has heretofore furnished to Purchaser, at Seller's expense, a survey of the
Property prepared by the Surveyor, which survey:
1. Is prepared in accordance with and meet ALTA/ACSM standards.
2. Is certified to Purchaser and Title Insurer and which shall at
Closing be certified to the Partnership and which, upon Purchaser's
notice, shall be certified at Closing to Purchaser's lender and any other
party designated by Purchaser.
3. Shows the location of all improvements on the Property.
4. Shows the location and legal description of each recorded
easement and of each visible easement benefitting or burdening the Land.
5. Shows the location of all party walls, sidewalks, paths, and
driveways on the Land.
6. Shows all access to public streets or roads surrounding the Land,
including access to easements
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benefitting the Land.
7. Shows all encroachments either onto the Property by improvements
on adjacent premises or onto adjacent premises by improvements on the
Property.
8. Certifies whether the Land is in a wetland or flood plain.
C. The following matters shall be permitted exceptions to title
insurance coverage ("Permitted Exceptions"):
1. General exceptions.
2. The lien of general real estate taxes not due and payable.
3. The matters scheduled as exceptions 5 and 7 in Schedule B to the
Commitment attached hereto as Exhibit A.
4. Matters shown on the survey attached hereto as Exhibit B and on
the survey delivered pursuant to Paragraph 4.B hereof.
5. The terms, powers, provisions, and limitations of the trust, if
any, under which title to the Property is held for the benefit of
Purchaser, mortgages securing obligations of Purchaser, and other acts by
or through Purchaser.
6. Matters disclosed by Commonwealth Edison Company as reflected in
its August 27, 1996 letter heretofore delivered to Purchaser and other
utility easements disclosed as a result of Seller's efforts to obtain
extended coverage which do not adversely affect Purchaser's redevelopment
of the Property.
Seller shall not schedule, as exceptions to Seller's warranties in Seller's
deed, any matters other than Permitted Exceptions excluding, however, matters
described in the Commitment as general exceptions.
D. At the Closing, Seller shall deliver to Purchaser evidence that
Purchaser will receive from the Title Insurer at Seller's expense a current
form ALTA owner's title insurance policy insuring the fee simple interest of
the Partnership (or Purchaser's designated land trust) in the Property in the
amount of $8,277,916.00, subject only to Permitted Exceptions, and providing
for an endorsement over general exceptions. Purchaser shall not be obligated
to close if Seller is unable to deliver such evidence; provided, however, that
Seller shall not be in default of this Contract if the Title Insurer is
unwilling to issue an endorsement over utility easements.
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E. Purchaser, at its expense, may direct the Title Insurer to include, in
the owner's title insurance policy, such other endorsements as Purchaser may
request, but the issuance of such other endorsements or the form or content
thereof shall not be a condition of Purchaser's obligation to close.
5. PURCHASER'S INSPECTIONS.
A. Purchaser has heretofore conducted and may hereafter conduct such
inspections and examinations of the Property as Purchaser, in Purchaser's sole
discretion, deems appropriate. Purchaser shall indemnify Seller against any
loss or damage caused by or as a result of such inspections except to the
extent that such loss or damage was the result of Seller's negligence. If
Purchaser does not consummate the acquisition of the Property, then Purchaser
shall repair any damage to the Property caused by such inspections, unless such
damage resulted from Seller's negligence.
B. Purchaser acknowledges and agrees that it has completed its due
diligence inspections of the Property and, except for the Remediation Work as
defined in Paragraph 10 hereof, is satisfied with the condition of the
Property. It is expressly understood and agreed that the ability of Purchaser
to obtaining financing for the Property is not a condition to Purchaser's
obligations under the Contract.
6. PRORATIONS AND CREDITS. General real estate taxes shall be prorated on the
basis of 100% of the most recent ascertainable real estate tax ▇▇▇▇ for the
Property. Such proration shall be made as of December 20, 1996. The parties
shall reprorate all real estate tax bills as of December 20, 1996 upon receipt
of final real estate tax bills, with payment due within 10 days after written
request therefor. Illinois and ▇▇▇▇ County transfer taxes shall be paid by
Seller. Chicago transfer taxes shall be paid by Purchaser. Other proratable
items for which no specific provision as to proration is made elsewhere in this
Contract shall be prorated as of the Closing Date. Purchaser shall receive a
credit against the Purchase Price for all ▇▇▇▇▇▇▇ Money. If out-of-pocket
costs and expenses (including, without limitation, Illinois and/or ▇▇▇▇ County
transfer taxes) required to be paid by Seller under this Contract on the
Closing Date are greater than the out-of-pocket costs and expenses which Seller
would have incurred had the Closing Date been December 20, 1996, then Purchaser
shall pay the amount by which such out-of-pocket costs and expenses payable by
Seller on the Closing Date exceed the out-of-pocket costs and expenses which
would have been paid by Seller had the closing occurred on December 20, 1996.
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7. CLOSING.
A. The consummation of the transactions described in this Contract ("▇▇▇
▇▇▇▇▇▇▇") shall occur on a date ("the Closing Date") designated by Purchaser by
not less than 5 business days' prior written notice to Seller; provided,
however, that the Closing Date shall not be later than March 14, 1997. The
Closing shall be at the Chicago Loop office of the Title Insurer at such time
that the Title Insurer can schedule the Closing.
B. At the Closing, Seller shall deliver or cause to be delivered to
Purchaser the following:
1. A special warranty deed with release of homestead rights, if any,
duly executed and acknowledged and in form suitable for recording,
conveying the Property to the Partnership (or Purchaser's designated land
trust).
2. An affidavit of title, appropriately executed and acknowledged by
Seller, stating that:
a. Within 4 months preceding the Closing Date no improvements
or repairs have been made in or to the Property, nor any work done,
which have not been fully paid for, no materials have been furnished
or delivered to the Property which have not been fully paid for, no
contract has been made or entered into and nothing has been done,
suffered, or permitted in relation to the Property the consequence
of which will cause any lien or claim of lien to be made against the
Property under the Mechanics Lien Act of the State of Illinois.
b. No person or entity has a right or claim of right to
occupy or be possessed of the Property or any part or parts thereof
other than Seller, Purchaser (pursuant to this Contract), and
persons whose rights are specifically disclosed in the Commitment
(excluding, however, the owner of Parcel 2 as shown in the
Commitment).
c. Seller has done nothing on or subsequent to the effective
date of the most current Commitment which would render inaccurate
the status of title to the Property as reported in such Commitment
(except for acquiring title to Parcel 2).
3. A non-foreign seller affidavit in accordance with the
requirements of Section 1445 of the Internal Revenue Code of 1986, as
amended.
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4. Transfer tax declarations for the State of Illinois, County of
▇▇▇▇, and City of Chicago.
5. An ALTA statement in duplicate and all other documents reasonably
required by the Title Insurer to issue a policy of title insurance
conforming to the requirements of this Contract.
6. Payoff letters from all holders of obligations secured by
interests in the Property, effective on the Closing Date.
7. Assignments of all guarantees and warranties, if any, on any
property to be conveyed to Purchaser.
8. To the extent available to Seller, originals of all Seller's
Disclosure Documents.
9. A certificate of good standing of Seller dated not earlier than
December 2, 1996.
10. A certificate from the secretary or an assistant secretary of
Seller, certifying that this Contract has been duly authorized by all
necessary corporate action required of Seller and identifying the persons
authorized to act on Seller's behalf to execute this Contract and the
other documents executed and delivered pursuant hereto.
11. An incumbency certificate signed by the secretary or an
assistant secretary of Seller, certifying the signatures of the persons
acting on Seller's behalf to execute this Contract and the other
documents executed and delivered pursuant hereto.
C. At the Closing, Purchaser shall deliver or cause to be delivered to
Seller by wire transfer of immediately available funds in the amount of the
Purchase Price subject to credits for the ▇▇▇▇▇▇▇ Money and prorations,
credits, and adjustments as herein provided.
D. Seller and Purchaser shall jointly prepare a Closing Statement
reciting the Purchase Price and all credits, prorations, and adjustments
thereto.
8. POSSESSION. Seller shall deliver to Purchaser possession of the Property
(excluding those fixtures described on Exhibit C hereto, which Seller shall
remove from the Property when Seller vacates the Property) as follows:
A. Seller shall provide Purchaser with possession of
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approximately 5,000 square feet on the first floor of the building, for use by
Purchaser as a sales office, and approximately 5,000 square feet on the fifth
floor of the building, for use by Purchaser as a model or models. Purchaser
has, with Seller's consent, heretofore affixed and may hereafter, with Seller's
consent, affix marketing signage to the exterior of the building at locations
designated by Purchaser provided that the locations and form and content of the
signage are reasonably acceptable to Seller. During the period during which
Purchaser uses or occupies any portion of such space before Closing, Purchaser
shall pay to Seller in advance for each month (prorated for partial months), on
the first day of such month (or, with respect to the commencement of such
possession period, on the date on which Purchaser takes possession of such
space):
1. All utilities for the space occupied by Purchaser, plus
2. All other costs directly attributable to Purchaser's use,
operation, and maintenance of the space occupied by Purchaser, plus
3. 5% of the real estate taxes assessed against the Property, plus
4. 5% of the normal and routine costs for the operation and
maintenance of the Property (other than as paid by Purchaser pursuant to
Paragraph 8.A.1 and 8.A.2).
Throughout the time that Purchaser retains possession of such space Seller
shall provide unrestricted access to such space to Purchaser and Purchaser's
contractors, guests, and invitees; provided, however, that Purchaser shall not
interfere with Seller's conduct of Seller's business in the Property.
Purchaser shall promptly vacate such space and remove its signage upon the
termination of this Contract for any reason. Purchaser shall reimburse Seller
for all losses, costs, and expenses incurred by Seller as a result of
Purchaser's failure to vacate such space or remove such signage and shall
deliver the space to Seller in substantially the same condition, ordinary wear
and tear excepted, as when delivered to Purchaser.
B. Seller covenants and agrees to vacate and surrender possession of the
Property no later than May 31, 1997. Seller shall not be deemed to have
vacated and surrendered possession of a portion of the Property unless Seller
removes therefrom all of Seller's property and leaves such portion of the
Property in broom clean condition.
C. Subject to Paragraph 8.B, Seller may continue to use and occupy the
Property after Closing on the following terms and
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conditions:
1. Seller shall not occupy any space which is provided to Purchaser
pursuant to Paragraph 8.A.
2. During the period during which Seller continues to use or occupy
any portion of the Property after Closing, Seller shall pay to Purchaser
in advance for each month (prorated for partial months), on the first day
of such month:
a. All utilities for the space occupied by Seller, plus
b. All other costs directly attributable to Seller's
use, operation, and maintenance of the space occupied by Seller,
plus
c. 95% of the real estate taxes assessed against the
Property, plus
d. 95% of the normal and routine costs for the operation and
maintenance of the Property (other than as paid by Seller pursuant
to Paragraph 8.C.1.a and 8.C.1.b).
3. Seller shall pay to Purchaser, as and for use and occupancy for
the Property or such portion thereof that Seller continues to occupy
after Closing, the following amounts, payable in advance for each month
(prorated for partial months) on the first day of such month:
a. $5,357 for each day after the Closing Date and prior to
April 1, 1997 (provided, however, that if Seller continues to occupy
the Property after Closing, then Purchaser will give Seller a
$50,000.00 credit which shall be applied to the first payments, if
any, due from Seller to Purchaser pursuant to this Paragraph
8.C.3.a),
b. $6,451 for each day after March 31, 1997 and prior to May
1, 1997, and
c. $10,000 for each day after April 31, 1997 and prior to
June 1, 1997.
4. In addition, if Seller fails to vacate the Property on May 31,
1997, then (without prejudice to Purchaser's right to remove Seller from
the Property) Seller shall pay Purchaser:
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a. $13,333 for each day after May 31, 1997 that Seller so
holds over possession of the Property, plus
b. $100,000 as liquidated damages for certain losses, costs,
and expenses unrelated to Seller's use and occupancy, which shall be
paid to Purchaser on June 1, 1997.
D. Seller's use and occupancy of the Property shall not be deemed to
be a lease or any other agreement giving Seller the legal rights afforded to a
tenant, or imposing on Purchaser the legal duties imposed on a landlord, under
the statutory and common laws of the State of Illinois.
9. ESCROWS. The sale of the Property shall be closed through a deed and money
escrow at the office of the Title Insurer. The attorneys for the parties are
authorized to sign all strict joint order and deed and money escrow
instructions on behalf of the parties. This Contract shall not be merged into
any escrow agreement but the latter shall be deemed auxiliary to this Contract,
and as between the parties hereto, upon failure of the escrow or otherwise, the
provisions of this Contract shall be controlling. Seller and Purchaser shall
each pay one half of the cost of all escrows other than Purchaser's money
lender's escrow, if any, the cost of which shall be paid by Purchaser.
10. REMEDIATION OF ASBESTOS AND LEAD BASED PAINT.
A. Seller shall cause to be removed from the Property in accordance with
the provisions of this Paragraph 10:
1. All asbestos, asbestos-containing materials, and lead-based paint
present on the Property identified in the Asbestos Inspection Report
dated September, 1996 prepared by Hygienetics Environmental Services,
Inc. as Project No. 3077.064 and the Final Lead-Based Paint Testing
Report prepared by TEM, Incorporated as Project 29345 ("the Reports"),
and
2. All asbestos, asbestos-containing materials, and lead-based paint
present on the Property not disclosed in the Reports but revealed during
the performance of the removal described in Paragraph 10.A.1, and
3. All Hazardous Materials and wastes produced or generated as
by-products as a result of the removal described in Paragraphs 10.A.1 and
10.A.2.
All of the foregoing remediation is hereinafter referred to as "Remediation
Work."
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B. Seller shall cause the Remediation Work to be done in accordance and
compliance with all applicable federal, state, county, regional, and local
laws, statutes, regulations, ordinances, and governmental policies governing
the use, generation, manufacture, storage, disposal, or transportation of
Hazardous Materials (referred to herein as "Environmental Laws"). If Purchaser
desires to have Seller cause the Remediation Work to commence before the
Closing Date, then Seller shall cause such work to be performed as soon as
possible after Purchaser has paid Seller for the cost thereof as provided in
Paragraph 10.D below. Seller shall otherwise cause the Remediation Work to
commence as soon as possible after the Closing Date.
C. The contractors and consultants performing or advising Seller with
respect to the Remediation Work (herein, "Contractors") shall be reasonably
acceptable to Purchaser and the Remediation Work shall be done pursuant to
contracts (and change orders if applicable) reasonably acceptable to Purchaser.
Hygienetics Environmental Services, Inc. and Environmental Hazard Control are
deemed to be contractors acceptable to Purchaser. Purchaser's review and
approval of any Contractor or contract for Remediation Work shall not be deemed
to be an affirmation of the competence of the Contractor, the work proposed to
be done pursuant to the contract, or the compliance of the work with
Environmental Laws and shall not constitute a waiver by Purchaser of any claim
against any Contractor or with respect to any Remediation Work. Purchaser
shall advise Seller and the Contractors with respect to the scheduling and
coordination of the Remediation Work so that Remediation Work shall commence
first on those portions of the Property to which Purchaser requires earlier
access, taking into account Seller's use and occupancy of the Property after
the Closing, provided that Seller shall not be required to so schedule and
coordinate the work if it results in additional cost or expense to Seller.
Seller shall be solely responsible for supervising the performance of the
Remediation Work by the Contractors.
D. Purchaser shall contribute toward the cost of the Remediation Work the
following amounts:
1. $1,118,326 toward all Remediation Work other than Asbestos
Caulking Work as defined in Paragraph 10.D.2 hereof, and
2. $159,590, which will be deposited when Seller is directed by
Purchaser to incur the cost of window removal and scaffolding required to
remove asbestos from window caulking (herein collectively referred to as
"Asbestos Caulking Work") or when the funds deposited by Seller as
hereinafter provided and by Purchaser pursuant to Paragraph
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10.D.1 have been fully expended on other Remediation Work.
Seller shall pay the amount by which the cost of the Remediation Work exceeds
Purchaser's aforesaid contribution. At the Closing, Purchaser shall deposit
into a strict joint order escrow with the Title Insurer or other escrow
reasonably acceptable to Seller and Purchaser the sum of $1,118,326. At the
Closing, Seller shall deposit into said escrow an amount equal to the aggregate
contract sum under all contracts for Remediation Work less the sum of
$1,277,916.00. After the Closing, payment to Contractors shall be made from
said escrow. If and to the extent that Seller has paid Contractors prior to
the establishment of such escrow, then Seller shall be reimbursed at the
Closing for such payments from the escrow. Seller shall not be required to do
the Asbestos Caulking Work or, if the funds deposited into the escrow by Seller
and Purchaser have been fully expended, other Remediation Work until Purchaser
has deposited with the Title Insurer the additional sum of $159,590. Upon
completion of the Remediation Work and payment of all Contractors and provided
that Seller has performed its obligations as provided in this Paragraph 10,
Seller shall be entitled to retain all funds in the escrow.
E. Upon completion of the Remediation Work, Seller shall deliver to
Purchaser copies of all contracts, sworn statements, lien waivers, waste
manifests, and other documents reasonably requested by Purchaser to evidence
that the Remediation Work will not result in any claim for lien against the
Property and that the removal of asbestos, asbestos-containing materials,
lead-based paint, and other Hazardous Materials required to be removed by
Seller pursuant to this Paragraph 10 has been done in compliance with all
Environmental Laws.
F. Without limiting the generality of the provisions of Paragraph 10.C,
Purchaser may withhold approval of a contract for Remediation Work if:
1. The contract proposes to complete the Remediation Work in more
than 10 weeks, or
2. The contract proposes scheduling or coordination of the
Remediation Work which will not facilitate Purchaser's access to those
portions of the Property to which Purchaser requires early access, or
3. The contract does not provide that Purchaser is a third party
beneficiary thereof, or
4. The contract does not provide that after the closing Purchaser
will be a loss payee and named additional insured under the Contractor's
insurance, or
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5. Under the terms of the contract Purchaser could be deemed to be
the generator of the asbestos, asbestos-containing materials, lead-based
paint, or other Hazardous Materials required to be removed by Seller
pursuant to this Paragraph 10.
Seller shall assume all responsibility as the generator of the asbestos,
asbestos-containing materials, lead-based paint, and any Hazardous Materials
required to be removed by Seller pursuant to this Paragraph 10, including (but
not limited to) responsibility for signing all waste manifests.
G. Seller and Purchaser acknowledge that the presence of Contractors on
the Property and the performance of Remediation Work pursuant to this Paragraph
10 shall not constitute possession of the Property by Seller.
11. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and warrants to
Purchaser as of July 25, 1996 as follows and in entering into this Contract
Purchaser relies on such representations and warranties:
A. Seller owns fee simple title in and to the Land.
B. Seller knows of no pending or threatened condemnation or eminent domain
proceedings against all or any part of the Property.
C. Seller has received no written notice of any violation of fire, zoning,
building, health, or other applicable codes, laws, or ordinances that have not
been corrected.
D. There is no litigation or proceeding pending or, to the best of
Seller's knowledge, threatened against or relating to the Property that has not
been disclosed to Purchaser in writing.
E. Seller knows of no special assessments affecting the Property in effect
or contemplated.
F. No person or entity other than Seller, Purchaser (pursuant to this
Contract), and the contractors under service contracts delivered pursuant to
Paragraph 3.A.2 hereof is (i) entitled to use, possession, or occupancy of the
Property or any part thereof or (ii) a party to a lease, contract, or agreement
which, if consummated, will give such person or entity a right to use, possess,
or occupy the Property or any part thereof.
G. To the best of Seller's knowledge the heating, air conditioning,
electrical, and plumbing systems in the Improvements are in good working order.
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H. To the best of Seller's knowledge, except as stated herein and in
Seller's Disclosure Documents the Property has not been used as a site for the
use, generation, manufacture, storage, disposal, or transportation of any
Hazardous Materials. To the best of Seller's knowledge Seller has not caused
or permitted any Hazardous Material to be placed, held, located, or disposed of
on, under, or at the Property or any part thereof or into the atmosphere or any
watercourse, body of water or wetlands, or any adjacent land or property and
neither the Property nor any part thereof has been used by Seller or, to
Seller's knowledge, by any other person or entity as a treatment, storage, or
disposal (whether permanent or temporary) site for any Hazardous Material. Two
underground storage tanks are located on the Property which were used solely
and exclusively for heating oil; to the best of Seller's knowledge, the
information disclosed in the Underground Storage Tank Closure Report dated
March 19, 1993 issued by Testwell ▇▇▇▇▇ ▇▇▇, Inc. is not inaccurate,
misleading, or incomplete.
I. To the best of Seller's knowledge, the survey attached hereto as
Exhibit B accurately depicts the lot lines of the Property and the location of
all improvements thereon.
J. Each representation and warranty made by Seller herein was true and
complete in all material respects on July 25, 1996. With respect to each
representation and warranty made by Seller herein, Seller has disclosed all
information and has not failed to disclose any information necessary to make
such representation or warranty, in light of the relevant facts and
circumstances, not misleading in any material respect as of the date made. "To
Seller's knowledge" and other similar phrases as used in this Paragraph 11 and
in Paragraph 12.C mean the actual knowledge, as of July 25, 1996, of ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇ without independent inquiry or
investigation.
12. SELLER'S COVENANTS.
A. Seller shall give Purchaser immediate notice of the occurrence of any
event of which Seller has knowledge or the receipt by Seller of any written
notice the effect of which would be to make a representation or warranty of
Seller herein untrue or misleading if made on or immediately following the
occurrence of such event or the receipt of such notice or knowledge. If
Purchaser does not terminate this Contract as a result of the information which
is the subject of such disclosure (whether Purchaser obtains such information
through such disclosure or from other sources) then Purchaser shall waive any
claim against Seller with respect to the matter so disclosed.
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B. Seller shall allow Purchaser, and all persons selected by Purchaser,
unrestricted access to the Land and improvements at reasonable times for the
purpose of conducting inspections and examinations thereof.
C. Seller shall disclose to Purchaser's environmental consultants the
identities of persons who, to Seller's knowledge, may have information about
whether the Property has at any time been used as a site for the use,
generation, manufacture, storage, disposal, or transportation of any Hazardous
Materials and shall authorize all such persons, and all environmental
consultants, contractors, and engineers engaged by Seller, to make full
disclosure to Purchaser with respect to the condition of the Property.
D. Seller has relocated its operations from the Property. Subject
thereto, Seller has, after July 25, 1996, continued the ownership and operation
of the Property in its normal course and has not after July 25, 1996 incurred
any obligation, entered into any lease, or done any unusual act with respect to
the ownership, management, operation, and maintenance of the Property which
would be binding on Purchaser after the Closing without prior notice to and
consent of Purchaser. Seller shall, after the date of this Contract, continue
the ownership and operation of the Property in its normal course and shall not
incur any obligation, enter into any lease, or do any unusual act with respect
to the ownership, management, operation, and maintenance of the Property which
would be binding on Purchaser after the Closing without prior notice to and
consent of Purchaser.
E. Provided that this Contract has not been terminated, Seller will
cooperate with Purchaser in signing and filing such documents and forms as
Purchaser may request in connection with (i) the zoning of the Property or (ii)
the assessment, for real estate tax purposes, of, or real estate tax bills
assessed against, the Property. The foregoing to the contrary notwithstanding,
Seller shall not be obligated to cooperate with Purchaser if either (a) Seller
shall be obligated thereby to incur any cost or expense in connection with such
cooperation (for purposes of which, the charges of Seller's attorneys and other
consultants to review materials submitted to Seller shall not be deemed to be
costs which Seller is obligated to incur) or (b) a change in zoning will be
effective prior to Closing or (c) a change in zoning will prevent Seller from
operating its business in the ordinary course while Seller retains possession
as permitted in Paragraph 8 hereof. A change in zoning or reduction of real
estate tax assessments are not conditions of closing.
F. Each Seller's Disclosure Document delivered to Purchaser is be a true
and complete copy of the document in
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Seller's possession.
G. Seller has disclosed and identified to Purchaser all policies of
insurance maintained in connection with the Property.
13. SELLER'S INDEMNIFICATIONS.
A. Seller hereby agrees to protect, indemnify, and defend (by ▇▇▇▇▇▇
▇▇▇▇▇▇ & Zavis or other counsel reasonably acceptable to Purchaser) Purchaser
against and to hold Purchaser harmless from any and all costs, claims, losses,
attorneys' fees, liabilities, and other expenses that Purchaser may incur after
Closing as a result of Seller's breach of or the falsity of any of Seller's
representations or warranties in this Contract or as a result of Seller's
breach of or failure to perform or observe any of Seller's covenants in this
Contract.
B. Seller agrees to indemnify, protect, defend (with counsel reasonably
acceptable to Purchaser), and hold harmless Purchaser from and against any and
all losses, damages, liabilities, costs, expenses, and demands (including
attorneys', consultants', and experts' fees) suffered or incurred by Purchaser
as a result of:
1. Any and all violations of Environmental Laws or releases of
Hazardous Materials in connection with the performance of the Remediation
Work (excluding, however, violations, releases, or events to the extent
caused by the negligence of Purchaser or Purchaser's contractors or
agents), or
2. The presence of Hazardous Materials on the Property (whenever
released) as a result of or in connection with the presence, prior to the
Closing Date, of any underground storage tank on the Property.
Seller shall be deemed to be the generator of the foregoing Hazardous
Materials. If Purchaser receives a letter from the Illinois Environmental
Protection Agency in form and substance satisfactory to Purchaser indicating
that Purchaser shall not be required to take any further action regarding the
underground storage tanks on the Property, or any contamination therefrom, then
the indemnification provisions of this Paragraph 13.B shall terminate to the
extent that the letter states that no further action need be taken with respect
to the closure of the tanks; however, Seller's obligation to indemnify
Purchaser pursuant to this Paragraph 13.B shall continue to the extent that the
letter does not release Seller from liability with respect to the underground
storage tanks and closure thereof.
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14. PURCHASER'S COVENANT. Purchaser shall give Seller immediate notice of the
occurrence of any event of which Purchaser has knowledge or the receipt by
Purchaser of any written notice the effect of which would be to make a
representation or warranty of Seller herein untrue or misleading if made on or
immediately following the occurrence of such event or the receipt of such
notice or knowledge. If Purchaser does not terminate this Contract as a result
of the information which is the subject of such disclosure (whether Purchaser
obtains such information through such disclosure or from other sources) then
Purchaser shall waive any claim against Seller with respect to the matter so
disclosed.
15. CASUALTY; CONDEMNATION.
A. A fire or other casualty which damages or destroys the Building or
other Improvements or which otherwise damages or adversely affects the Property
shall not terminate this Contract unless Purchaser so elects as herein
provided. Seller shall promptly notify Purchaser in writing of the nature of
the casualty, the amount of insurance coverage, and the anticipated loss
adjustment with respect to the Property. Seller shall further promptly notify
Purchaser in writing of the amount of the award which the insurer will pay in
respect of such loss. If Purchaser so elects, the Closing shall be postponed
pending Seller's receipt of such information so that Purchaser may preserve the
right of termination herein provided. In the event of such casualty, the
insurance proceeds for the Property in respect of such loss shall be applied in
payment of part or all of the Purchase Price. If the insurance proceeds exceed
that portion of the Purchase Price payable by Purchaser to Seller at Closing,
then such excess shall be retained by Seller. Purchaser may elect to terminate
this Contract by giving written notice thereof to Seller at any time after such
casualty and prior to the earlier to occur of (i) 7 days after receipt of
Seller's written notice stating the amount of the award which the insurer will
pay in respect of such loss or (ii) 60 days after the date of such casualty.
Purchaser's failure to give such written notice within such time shall be
deemed a waiver of Purchaser's election to terminate this Contract.
B. If Seller is notified by any governmental agency or authority that the
Property, or any part or parts thereof, will be condemned or otherwise taken
under power of eminent domain, or if Seller learns that a condemnation or
taking is contemplated by any governmental agency or authority, then Seller
shall promptly give Purchaser written notice thereof including, with or in such
written notice, a copy of the notice received by Seller or a description of the
information learned by Seller. Within 21 days after Seller gives such notice
to Purchaser, Purchaser shall, by
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written notice to Seller, elect either to rescind this Contract or to perform
notwithstanding such condemnation or taking. If Purchaser elects to perform
notwithstanding such condemnation or taking, then Purchaser shall be entitled
to all proceeds paid by the applicable governmental agencies or authorities in
respect thereof. Purchaser's failure to give such written notice of election
within such time shall be deemed an election to rescind this Contract.
16. BROKERS. Purchaser represents and warrants to Seller that Purchaser
neither used nor contacted any broker and that to Purchaser's knowledge no
person is entitled to a commission or fee as a result of or in connection with
the introduction of the parties, the preparation and negotiation of this
Contract, or the consummation of the transactions herein described. Seller
shall be solely responsible for all broker's commissions and fees resulting
from this Contract or the consummation of the transactions described herein
except to that extent that the commission or fee is due and owing as a result
of the actions of Purchaser.
17. RIGHTS UPON DEFAULT.
A. If Purchaser shall be in material default hereunder then, as Seller's
sole remedy (except as provided in Paragraphs 3.B, 5.A, 8.A, and 17.C and
subject to Purchaser's confidentiality obligations under Paragraph 19), the
▇▇▇▇▇▇▇ Money shall be retained by Seller as liquidated damages and applied by
Seller as full satisfaction for all reasonable attorneys' fees, title costs,
advertising costs, Seller's lost time, effort and profits, and all other
expenses incurred by Seller or on Seller's behalf, and this Contract shall
thereupon terminate.
B. If Seller shall be in material default hereunder prior to Closing then
Purchaser, as its sole and exclusive remedy (subject to Paragraph 17.C hereof),
may either (i) rescind this Contract and all sums paid by Purchaser as ▇▇▇▇▇▇▇
Money or on the Purchase Price and all interest accrued thereon shall be
immediately returned to Purchaser, or (ii) enforce this Contract by specific
performance.
C. If a party brings suit against the other party to enforce any provision
of this Contract, then the prevailing party shall be entitled to recover from
the other all attorneys' fees and costs of suit incurred in connection
therewith.
D. Tender of the deed, ▇▇▇▇ of sale, or other document or documents of
conveyance, or Purchase Price, as provided herein, shall be excused when there
has been a material default by the
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other party.
18. POST-CLOSING COOPERATION. The parties hereto agree that, after the
Closing, they will at all times use commercially reasonable efforts to
cooperate with each other to effectuate the spirit and intent of this Contract
including, without limiting the generality of the foregoing, the execution by
Seller of documents reasonably requested by Purchaser to cause or complete the
conveyance to Purchaser (or Purchaser's designated grantee) of title or
(subject to the provisions of Paragraph 8) the assignment of the exclusive
right to use and occupy the Property.
19. CONFIDENTIALITY.
A. Neither Seller nor Purchaser shall disclose the terms of this Contract
to any party other than Purchaser's lender and to Seller's and Purchaser's
respective attorneys, accountants, and other persons from whom Seller or
Purchaser is seeking advice in connection with the Property or this Contract
and neither Seller nor Purchaser shall, without the prior consent of the other,
make any public announcement of or about this Contract or the transaction
described herein (whether or not consummated) or give any statement to any
person if it is reasonably to be anticipated that such statement will be
published in any news medium; provided, however, that no party shall be
required to treat as confidential, or be prevented or precluded from discussing
with any person, any information, including information contained in this
Contract, which is or becomes a matter of public record.
B. If Purchaser does not consummate the acquisition of the Property for
any reason, then Purchaser shall return all Seller's Disclosure Documents to
Seller. Purchaser shall not disclose Seller's Disclosure Documents to any
party other than Purchaser's lenders and to Purchaser attorneys, accountants,
and other persons from whom Purchaser is seeking advice in connection with the
Property; provided, however, that Purchaser shall not be required to treat as
confidential any such document, or information therein, which is a matter of
public record; and further provided, that the foregoing confidentiality
covenant shall not apply to documents filed by Purchaser in litigation brought
to enforce the provisions of this Contract. The confidentiality obligations in
this Paragraph 19.B are in addition to and not in limitation of the generality
of the provisions of Paragraph 19.A.
20. NOTICES. Any notice, or any other communication required to be given
hereunder, shall be in writing and shall be delivered to the other party either
personally, or by United States mail (postage prepaid, registered or certified,
with return receipt
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requested), or by messenger service. A party's address for notice shall be as
set forth in this Paragraph unless such party gives notice of a change of
address as provided herein. Notices to Seller shall be addressed to:
▇▇▇ ▇▇▇▇▇▇▇▇▇
The Florsheim Shoe Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and to Seller's attorney:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Zavis
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Notices to Purchaser shall be addressed to:
Everest Partners, L.L.C.
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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and to Purchaser's attorney:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Sugar, Friedberg & Felsenthal
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
A notice to a party shall be deemed given to the party when received by the
party's attorney. A notice delivered by United States mail, registered or
certified, is given on the date received or on the date on which delivery is
refused.
21. EXHIBITS. The following are the exhibits to this Contract:
A. Survey
B. Commitment for title insurance
C. Fixtures to be removed by Seller
22. TIME FOR PERFORMANCE; COUNTERPARTS; ENTIRE AGREEMENT; PARTIAL INVALIDITY;
INTERPRETATION; AMENDMENTS; TIME OF THE ESSENCE; BINDING ON SUCCESSORS AND
ASSIGNS; SURVIVAL.
A. If under the terms hereof the performance of any act will or is
required to occur on a Saturday, Sunday, or a holiday recognized in Chicago as
a day on which banking institutions are generally not open for business, then
the performance of such act shall be made on the next day which is not a
Saturday, Sunday, or holiday recognized in Chicago as a day on which banking
institutions are generally not open for business.
B. This Contract may be executed in counterparts, and each counterpart
shall, for all purposes for which an original of this Contract must be produced
or exhibited, be the Contract, but all such counterparts shall constitute one
and the same agreement.
C. This Contract contains the entire agreement between the parties hereto
with respect to the subject matter hereof and supersedes all prior
understandings, discussions, negotiations and representations, if any, with
respect thereto.
D. The invalidity or unenforceability of any provision hereof shall not
affect, modify, or impair the validity and enforceability of all other
provisions hereof.
E. The use of paragraph headings and of singular or plural, masculine,
feminine or neuter nouns and pronouns is for convenience only and shall not
affect the construction to be given any of the provisions hereof. This
Contract shall be governed by and construed in accordance with the laws of the
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State of Illinois.
F. This Contract may not be modified, terminated, or amended nor any of
its provisions waived except by a written instrument signed by the parties.
G. Time is of the essence of this Contract.
H. This Contract shall be binding upon and inure to the benefit of the
heirs, representatives, successors, and assigns of the parties hereto;
provided, however, that Purchaser may not assign this Contract without Seller's
prior written consent, which shall not be unreasonably withheld.
I. This Contract and the representations, warranties, and covenants
contained herein shall survive the Closing and shall not be deemed merged into
any document of conveyance.
IN WITNESS WHEREOF, the parties hereto have executed this Contract at
Chicago, Illinois on or as of the date first above written.
SELLER:
The Florsheim Shoe Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Treasurer, Secretary, Controller and
Chief Accounting Officer
PURCHASER:
Everest Partners L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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