HomeMy WebLinkAboutFirst Equity Acquisitions, LLC-Purchase and Sale Agreement-12.21.2009 12/16/2009 14:10 3192329579 CBW&H ATTORNEYS PAGE 02/20
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PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement"), between The City of Waterloo, Iowa ("Seller"),
and First Equity Acquisitions, LLC, an Illinois limited liability company ("Purchaser"), is entered into as of the date
the last one of the parties executes this Agreement and gives notice of its execution to the other party (the
"Effective Date").
Recitals
A. Seller is the owner of that certain real property (the "Real Property") consisting of approximately 1,03
acres located at northwest corner of San Maman and LaPorte in Waterloo, Iowa, bearing a street address of 1812
LaPorte Road, Waterloo, IA 50702, and more particularly described in the legal description attached as Exhibit A,
which is incorporated herein by reference.
B. Purchaser desires to purchase the Real Property and any rights and appurtenances pertaining thereto,
including any right, title and interest of Seller in and to adjacent streets, roads, alleys, accesses and rights-of-way,
and any buildings, structures and improvements on the Real Property (collectively, the "Property"), and Seller
desires to sell the Property on the terms and conditions in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties,
agreements, covenants and conditions herein contained, and other good and valuable consideration, Seller and
Purchaser agree as follows:
1. PURCHASE AND SALE: Seller agrees to sell and Purchaser agrees to purchase the Property
(as legally defined in Exhibit A attached hereto), upon the terms and conditions contained in this Agreement. The
Property shall include any rights and appurtenances pertaining to the Property, including any right, title and
interest of Seller in and to adjacent streets, roads, alleys, accesses and rights-of-way, and any buildings,
structures and improvements on the Property, all subject to the terms and conditions in this Agreement. The
interest in the Property to be conveyed by Seller shall be all rights of Seller as owner of the Property, After
Closing, Seller shall retain any governmental powers and authority which it may have concerning the Property
pursuant to the laws of the State of Iowa or applicable codes or ordinances of the City of Waterloo.
2. PURCHASE PRICE: The purchase price for the Property shall be Two Million One Hundred
Thousand Dollars ($2,100,000.00 ) (the "Purchase Price"),which shall be payable as follows:
(a) Within ten (10) business days after the Effective Date, Purchaser shall deposit into an interest
bearing account with Escrow Agent (as hereinafter defined) the sum of Ten Thousand Dollars ($10,000,00) as an
earnest money deposit(the"Earnest Money"),
(b) On the Closing Date (as hereinafter defined), Purchaser shall deposit with Escrow Agent the
balance of the Purchase Price in cash or in immediately available funds, subject to the adjustments and
prorations provided for in this Agreement.
3. ESCROW: Purchaser and Seller shall establish an escrow ("Escrow") with Chicago Title
Insurance Company (the"Escrow Agent") upon delivering the Earnest Money to the Escrow Agent, in accordance
with the terms of the earnest money escrow instructions, attached hereto as Exhibit B, and made a part hereof by
reference ("Escrow Instructions").
4. SELLER DELIVERIES: Within five (5) days following the Effective Date, Seller shall deliver to
Purchaser true and correct copies of the following documents relating to the Property, to the extent that same are
in Seller's possession or control in its role as owner of the Property, but excluding documents relating to the City's
regulatory authority concerning the Property:
(a) All leases, subleases and assignments of leases,
(b) All service contracts, warranties and guarantees,
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(c) All books, records, legal documents and other information concerning the physical condition of
the Property,
(d) Ail site plans, engineering plans and specifications, landscape plans, architectural and civil plans
and specifications,
(e) All existing surveys, topographical maps, Seller's owner's title insurance policies, title
commitments, permits, attorney opinions of title, abstracts of title, subdivision plats. documents
l scconstituting
covenants, conditions and restrictions, reciprocal easement and/or parking agreements, utility
wils
and zoning letters,
(f) All documents concerning pending or threatened legal actions and/or notices of violations of laws
with respect to the Property,
(g) All environmental reports and studies, geotechnical reports, soils reports, and any documents
pertaining to the physical, geological or environmental condition of the Property that are owned by or in the
possession of Seller,and
(h) A written certification stating that all documents required to be delivered to Purchaser pursuant to
this Section 4 have been delivered by Seller("Seller's Certification").
5, INVESTIGATION PERIOD:
(a) During the period commencing on the date hateP thealnvestigation Period"), Puser receives Seller's rtchasert, as
may
provided in Section 4 above. and terminating ninety (90) daysF as Purchaser may
undertake any and all investigations, examinations, reviews and inspections of the Property,
es. During the Investigation
and absolute rchaser shall have d discretion. to evaluthe right, but not the ate the feasibility of the obligation,
Property foraPu Purchaser's
necessary, in Purchaser's
on
proposedPr use, i. Inding. i in, Purchaser shall title,
have the right to contact any federal, state or environmental
local governmental
of the Property. In addition, Duringthe Investigation Period, Purchaser
authority or agency to investigate any matters relating to the
Property.
plans, rezoning, conditional use permits and
may make application for governmental permits, licenses, plats,
approvals for the construction of Purchaser's intended improvements and development ofa the
e crop of dad ehar
shall, in good faith, cooperate with Purchaser in its applications, including signing ape
Seller shall not be obligated to incur any expense in connection therewith, and no change in the status of the
Property will occur prior to Closing.
(b) During the Investigation Period, Seller shall, at Seller's sole expense,ahaveh vavecated
all ertyting
public right-of-ways or alleys located within the boundaries of the Property, if any,ac with drive-thru facilities,
re-
zoned, if necessary, to allow for the development and use of the Property as a p y Seller shall provide a recorded copy of the document(s) vacating such public right-of-ways and alleys and a
certified copy of the ordinance approving such zoning change to Purchaser prior to the end of the Investigation
Period.
(c) In the event Purchaser is not completely satisfie withallapects ogf thedtperty foronal use permitsny tson
or
or is unable to obtain any governmental permits, licenses, plats, plans,
approvals required for the construction of Purchaser's intended improvements and development of the Property,
Purchaser, in its sole and absolute discretion, on or prior to the last day of the Investigation Period, may terminate
this Agreement by giving Seller written notification of its election, in which event
the without necessity Moneyarnest for andall
accrued interest, shall be immediately returned to Purchaser by the Escrow Agent, If noticefa to
o
or consent or approval by Seller, and the parties shall be released from further liability. Purchaser to
terminate this Agreement by the conclusion of the Investigation Period, then said right to terminate pursuant
this section shall be deemed waived and the Earnest Money to the ll expirationid ob the Investigation Period,Seller.y Escrow Agent to
Notwithstanding the foregoing, Purchaser may, at anytimeprior
y
written notice to Seller, waive the Investigation Period, in which event Purchaser shall have no right to terminate
this Agreement pursuant to this Section 5. but such waiver shall not affect Purchaser's rights under the Approval
Contingency Period provided in Section 6 below,
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6. APPROVAL CONTINGENCY PERIOD. Beginning
ovnl the
ythat
the
Period")e tg lion P riod
expires and continuing for forty-five (45) days thereafter (the "AppContingencyas a
hall
apply to the City of Waterloo for site plan and building permit approval for the development of the Property approval
pharmacy with drive-thru fancy Period, Purchaser in its sole and absolute discretion,lan on ord llding prior to theilasday of
within the Approval Contingencygiving Seller written of its election,
the Approval Contingency Period, may terminate this Agreement by g g reen notification Purchaser o n,
in which event the parties shall be released from furtherliabilityContingencyunr this Agreement.
ehen . Ifd Purchaser
ao r failsato
terminate this Agreement by the conclusion of the Approvale
the fore oin Purchaser may. at anytime prior
pursuant to this section shall be deemed waived, Notwith�rtten notice to Seller, waive the Approval Contingency
to the expiration of the Approval Contingency Period, by
Period, in which event Purchaser shall have no right to terminate this Agreement pursuant to this Section 6.
od
7, CONDITIONS PRECEDENT. Notwithstanding be the foregoing Investigation consummate this trait sac6oneuinlessneach of the
d Approval
Contingency Period, in no event shall Purchaserobligated to
following contingencies (the "Conditions e'date ofnClos'ng.blf any ofen ptheed to Conditi�ons Peecedetnlfscnlot satisfied oe
and absolute discretion, on or bef Purchaser may terminate this Agreement in which event
waived by Purchaser on or before the date of Closing,
the Earnest Money and shall be immediately returned to Purchaser by the Escrow Agent, without necessity for
notice to or consent or approval by Seller, and the parties shall be released from further liability. The Conditions
Precedent are as follows:
(a) Seller's representations and warranties in this Agreement being correct as of the Effective Date
and as of the Closing Date:
(b) Seller's performance of all obligations under this Agreement
(c) Escrow Agent being prepared to issue the Title
Policy
(as hereinafter defined) on the Closing
Date, subject only to the Approved Exceptions (as hereinafter defined);
(d) No effective or pending moratorium, subdivision restriction, access restriction, withdrawal or
r
modification of approvals, or other governmental change outside of the control of Purchaser which would p
rev
or impede Purchaser's proposed development of the Property.
n, subdivision, building permit
(e)approvalsfrom
Purchaser'sl applreceicablet of �governmental authorities, including withoull necessary zoning, special use, site t limitation the City of Waterloo
and other from all applicable development of the Property as a
(the "Approvals") which are required or necessary for Purchaser's proposed
drug store with drive through facilities fndrOvalsatlincl�dinigghe e center.
xecution bellery Seller of all grees and covenants
or necessary
cooperate
with Purchaser's efforts to obtain the pp as
applications, affidavits, statements or other documents. and to provide such information contrary statementscumm nti in this
necessary or appropriate in connection with the approval process. Notwithstanding
any powerntiwith
paragraph, Purchaser acknowledges that Seller is a governmental authority
r possessingrequest regulatoryA the with
er
respect to certain project Approvals and that in reviewing or taking uponany other party
will not extend to Purchaser any special consideration that is not generally made available to any
making a substantially similar request for Approval.
8. SELLER'S CONTINGENCY PERIOD: At any time rioriod o(tho e expiration
of ghecone hundred
od red
twenty (120) days after the expiration of the Approval Contingency fire station , if Seller does not receive a bid for the construction of ahnewa n2 000 OOO,e station tncl ding theo replace ecost of land currently
Sellern the
Property nat "New Fire AgreementStati by that is rovidingss written notice to Purchaser prior to the expiration of the Seller
may terminate this by providing
Contingency Period. Upon such termination, Seller shall refund the Earnest
Moer ineyc to Pti gate due u. Purchaser
shall be solely responsible for all out-of-pocket expenses incurred by
investigation of the Property, including, but not limited to expenses for surveys,
a environmental
ssessmenng
reports and studies, geotechnical or other soils reports, engineering reports, shall reimburse
expenses forthe preparation of site
after building
plans
termination, Seller
the Earnest Money
ihY0ays deli ry of notice of Upon such termination and
paymentby
oes n said itemsch Self party
the expiration of the further
Sellerobligation
Contngency Period, then Agreement.
saidtright Seller
to
does not give such notice of terminationby
terminate shall be deemed waived and this Agreement shall remain in full force and effect. Notwithstanding the
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foregoing, Seller may, at anytime after the expiration of the Approval Contingency Period but prior to the
expiration of the Seller Contingency Period, by written notice to Purchaser, waive the Seller Contingency Period,
in which event Seller shall have no right to terminate this Agreement pursuant to this Section 8.
9. RIGHT OF ENTRY: Seller hereby grants to Purchaser, its agents and contractors, the right to
enter upon the Property to conduct such inspections. investigations and tests as Purchaser deems appropriate,
including without limitation environmental tests and soil tests, and to generally satisfy itself as to the feasibility of
the Property for Purchasers intended use and the environmental condition of the Property. Purchaser shall
defend, indemnify and hold Seller harmless from and against all claims, damages and liabilities of any nature
resulting from Purchaser, its agents and contractors entering upon the Property and conducting such inspections,
investigations and tests. Purchaser shall not interfere with the operation of the fire station on the Property,
including,without limitation, blocking driveways, entrances or exitways.
10. TITLE AND SURVEY: After the Effective Date, Purchaser shall order a preliminary title
commitment for a current form ALTA owner's policy of title insurance for the Property, dated not later than the
Effective Date, including any easement parcels which benefit the Property, from Chicago Title Insurance
Company, which shall provide for full extended coverage over the general exceptions customarily contained in
such title policy, in the full amount of the Purchase Price, including an ALTA 3.1 zoning endorsement reflecting
that the development of the Property as a pharmacy with drive-thru facilities in accordance with the proposed site
plan will be in compliance with existing zoning regulations, including parking, together with copies of all recorded
documents affecting the Property. including any such easement parcels (the "Commitment"). After the Effective
Date, Purchaser will order, from a surveyor selected by Purchaser, a survey of the Property, including any
easement parcels which benefit the Property, prepared in accordance with the 2005 Minimum Standard Detail
Requirements for ALTA/ASCM Land Title Surveys as adopted by the American Land Title Association and
National Society of Professional Surveyors, including Table A items 1-4, 6, 7(a) and (b)(1), 8-10, and 11(b) (the
"Survey"), Seller shall provide a credit to Purchaser at Closing for the cost of the Survey. Purchaser shall notify
Seller within the Investigation Period of any matters disclosed by the Commitment or Survey that are not
acceptable to Purchaser, in its sole discretion (each a "Title Defect"). All exceptions or matters reflected in the
Commitment or Survey which are not so disapproved or objected to by Seller in said notice are hereafter referred
to as the "Permitted Exceptions". Seller shall have fifteen (15) days from the date of Purchaser's notice to cure
such Title Defects, at Seller's expense. If the title company furnishes a title insurance policy insuring over an
exception, such insurance shall constitute a cure of such exception. If Seller fails or refuses to cure such Title
Defects within said fifteen (15) days, Purchaser may either: (i) terminate this Agreement, in which event Seller
shall pay all charges for the Survey and other fees in connection with this transaction which are Seller's
responsibility under this Agreement, both Purchaser and Seller shall be relieved of all further obligation and
liability to each other under this Agreement, and all funds, including the Earnest Money plus all accrued interest,
and documents deposited with Escrow Agent shall be promptly refunded or returned, as the case may be, by
Escrow Agent to the depositing party without further written instructions from Seller, or (ii) take title as it then is
with the right to deduct liens or encumbrances of an ascertainable amount from the Purchase Price (in which
case, all Title Defects which may not be so discharged at Closing shall be deemed Permitted Exceptions).
ny ). the
At
Closing, Seller shall: (i) convey title to the Property by general warranty deed (the "Deed"), subject withextended
o
Permitted Exceptions; and (ii) cause to be delivered to Purchaser an owner's title insurance policy,
coverage and an ALTA 3.1 zoning endorsement of the type specified above, issued by Chicago Title Insurance
Company, and such additional endorsements as Purchaser may request, which endorsements shall be at
Purchaser's expense, subject only to the Permitted Exceptions(the"Title Policy"),
11, REPRESENTATIONS AND WARRANTIES OF SELLER: Seller represents and warrants to
Purchaser as follows:
(a) there is no existing, pending or, to the best of Seller's knowledge, contemplated, threatened or
anticipated (i) litigation which would adversely impact the value of the Property or in any way interfere or increase
the cost of Purchaser's development of the Property, (ii) condemnation of all or an part of the Property. (iii)
widening, change of grade or limitation on use of streets abutting the Property or (iv) special tax or assessment
levied or to be levied against the Property;
(b) there are no other outstanding contracts of sale or options to purchase the Property;
(c) the Property has direct access to and from a public street or road;
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(d) as of the date of Closing, there will be no leases, tenancies, licenses or other agreements
covering or affecting any part of the Property or allowing any third party rights to use the Property;
(a) as of the date of Closing, there will be no service contracts covering or affecting any part of the
Property;
(f) Seller has no knowledge of and has received no notice of any violation or alleged violation of any
building, zoning, environmental or other governmental statute, ordinance or regulation pertaining to the Property,
and has no knowledge of and has received no notice of any legal proceedings pending or threatened pertaining to
the Property;
(g) Other than as disclosed in Section 11(h) below, there are no underground storage tanks on the
Property.
(h) the Property has never been used as a landfill or a waste dump, and there has been no
installation in, or production, disposal or storage on the Property of any Hazardous Substances by Seller or by
any tenant or any previous owner or previous tenant, or any other activity which could have toxic results, and
there is no proceeding or inquiry by any governmental authority or agency with respect thereto. The term
"Hazardous Substances' shall mean any substance, material, waste, gas or particulate matter which is regulated
by any federal, state or local governmental authority, including. but not limited to, any material or substance which
is (i) defined as a "hazardous waste," "hazardous material," "hazardous substance," "toxic substances,'
extremely hazardous waste," or"restricted hazardous waste" under any provision of Illinois law, (ii) petroleum, (iii)
asbestos, (iv) polychlorinated biphenyl, (v) radioactive material, (vi) designated as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act, 33 U.S.C. '1251 et seq. (33 U,S.C. '1317), (vii) defined as a
"hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act. 42 U.S.C. '6901 et
seq. (42 U.S,C. '6903), or (viii) defined as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.G. '9601 el seq. (42 U.S.C.
'9601); notwithstanding the foregoing statement, Seller states its belief that an underground storage tank is or
previously was used on the site for storage of fuel oil, which is no longer in use;
(I) the Property is free and has always been free from Hazardous Substances and storage tanks,
other than as disclosed in Section 11(h)above:
(j) this Agreement and all other documents delivered prior to or at the Closing have been duly
authorized, executed, and delivered by Seller, are binding obligations of Seller and do not violate the provisions of
any agreement to which Seller is a party or which affects the Property;
(k) there are no natural or artificial conditions upon the Property or any part of the Property that could
result in a material and adverse change in the condition of the Property;
(I) there is no recapture or other payment requirement affecting the Property. including, without
limitation, payments or obligations involving refunds for sewer extensions, over-sizing utility lines, lighting or like
expenses or charges for work or services affecting the Property, which will bind Purchaser or the Property from
and after the Closing. Any such payments or obligations shall be paid in full by Seller prior to Closing;
(m) the zoning designation o'`the Property permits general retail uses;
(n) no commitments or agreements have been made with any governmental authority, utility
company, school board, any homeowners' association or to any other organization, group or individual, relating to
the Property, which would impose an obligation upon Purchaser or its successors or assigns to make any
contribution or dedication of money or land, or to construct, install or maintain any improvements of a public or
private nature on or off the Property that have not been disclosed in writing to Purchaser;
(o) no work has been performed or in progress at the Property, and no materials will have been
delivered to the Property, that might provide the basis for a mechanic's, materialmen's or other lien against the
Property or any portion thereof, for which effective title insurance will not at Closing be issued to Purchaser, and
all amounts due for such work and material shall have been paid and all discharged to Purchaser's satisfaction as
of the Closing, Any mechanics liens reflected in the Title Commitment will be resolved, at Seller's expense, prior
to Closing; and
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(p) all items delivered by Seller to Purchaser pursuant to Section 4 of this Agreement or which have
otherwise been delivered to Purchaser are true, accurate, and complete copies of such documents and constitute
all material documents which would be reasonably necessary in order to allow a reasonably prudent purchaser to
make an informed decision regarding the Property.
The representations, warranties and covenants in the Agreement shall not be merged into the deed or be
canceled at Closing and shall survive the Closing of this transaction and delivery of the deed for a period of one
(1) year, at which time they shall expire. Seller agrees to defend and to hold Purchaser harmless from any loss,
cost, liability, expense, damage or other injury, including, without limitation, attorneys fees and expenses, incurred
by Purchaser on account of the breach of any such representation or warranty. The obligations of Purchaser to
consummate the transactions contemplated herein are contingent upon the truth and accuracy of such
representations and warranties as of the Effective Date and the Closing.
12. ESCROW AND CLOSING: Settlement of this transaction (the ''Closing') shall take place not
later than thirty (30) days after the expiration or waiver by Seller of the Seller Contingency Period, provided that all
Conditions Precedent have been satisfied (the"Closing Date"). The Closing shall be conducted "New York Style".
meaning that title will be dated down as of the date of Closing and the Title Policy shall be issued at Closing, with
Seller and Purchaser each providing a personal undertaking, in such form as required by Escrow Agent, to cover
the gap between Closing and the recording of the Deed. At least one (1) business day prior to the Closing Date,
Seller shall deposit with Escrow Agent: (i) the Deed, (ii)an assignment of all of Seller's right, title and interest in all. e
permits, licenses and intangible assets relating to the Property, (iii) a bill of sale conveying merchantable title to all
personal property included in the transaction, if any, (iv) Seller's affidavit of non-foreign status contemplating by
Section 1445 of the Internal Revenue Cade of 1986 as amended, (v) Seller's certificate dated as of the Closing
Date confirming that the representations and warranties set forth in Section 8 are true and correct on and as of
the Closing Date, (vi) an affidavit of title, (vii) an ALTA statement, (viii) any required state, county or municipal
transfer tax declarations, disclosure statements or similar forms, and groundwater hazard statements, (ix)
documents evidencing the termination of all leases or subleases affecting the Property as of the Effective Date.
t w (x) documents evidencing the termination of all service contracts affecting the Property as of the Effective Date
(xi) a settlement statement, and (xii) any other documents reasonably required by the Escrow Agent or the
Purchaser to consummate the Closing. On or prior to the Closing Date, Purchaser shall deposit(a)the balance of
the Purchase Price, (b) a settlement statement, and (c) any other documents reasonably required by the Escrow
Agent or the Purchaser to consummate the Closing, The Closing shall be conducted through a deed and money
escrow, pursuant to the provisions of Escrow Agent's standard form of deed and money escrow instructions, at
Escrow Agent's office in Chicago, Illinois. Neither party shall be obligated to attend the Closing, so long as they
deliver their documents to the Escrow Agent not later than one (1) business day prior to Closing and deliver their
funds to the Escrow Agent on or prior to the Closing Date. All real estate taxes which are due but not yet payable
as of the date of Closing are to be prorated as of the date of Closing, and if the amount of such taxes is not then
ascertainable, the proration shall be on the basis of 110% of most recent ascertainable taxes.
13. POSSESSION.
(a) Possession of the Property shall be delivered by Seller to Purchaser not later than 11:59 p.m. on
the earlier of: (i) the date that is twelve (12) months after the Closing Date, or (ii) the date that the New Fire
Station is first open and in use by Seller (the "Possession Date"). Seller shall have no obligation to pay any use
or occupancy or any other form of compensation to Purchaser for Seller's possession of the Property during the
period from the Closing Date to the Possession Date (the "Post Closing Possession Period"). Notwithstanding the
foregoing, during the Post Closing Possession Period. Seller shall be responsible for payment of all utilities for
and any maintenance of the Property and shall maintain commercial general liability insurance with coverage
limits of not less than $2,000,000 per occurrence with Purchaser, or its assignee, named as an additional insured,
and shall provide certificates of insurance to Purchaser demonstrating that such insurance is in full force and
effect at all times during the Post Closing Possession Period. Seller hereby agrees to indemnify and hold
Purchaser harmless from any and all claims, demands, actions, causes of action, damages. expenses. losses.
attorneys' fees or liabilities arising in any way from or out of Seller's possession of the Property, including without
limitation the operation of a fire station on the Property, during the Post Closing Possession Period.
(b) On the Possession Date or any extension thereof due to Unavoidable Delay as defined in Section
16 below. Seller shall deliver full and complete possession of the Property to Purchaser in substantially the same
condition, ordinary wear and tear excepted, as of the Effective Date, subject to Seller's right to salvage any
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personal property or fixtures in, upon or about the Property, In the event that Seller does not deliver possession of
the Property to Purchaser by the Possession Date in accordance with the terms of this Agreement, Purchaser
shall not be restricted in its right to seek possession of the Properly by any available means authorized in law or
equity. In addition to all other remedies, Purchaser shall have the immediate right to commence any legal action
or proceeding calculated to evict and remove the Seller from the Property and shall also be entitled to recover
from Seller the sum of $500 per day for each day that possession is withheld after the date required by this
Agreement. Seller further agrees to reimburse Purchaser for all reasonable attorneys' fees and court costs
Purchaser may incur in the enforcement of its rights pursuant this provision.
14. CLOSING COSTS: At Closing, Seller shall pay (i) one-half of the Escrow Agent's escrow fee, not
to exceed $2,000.00, (ii) all state, county and municipal transfer taxes, stamps or similar charges. if any, (iii) the
cost of the Survey, (iv) all recording charges or fees for all documents to be recorded which are required to clear
any exceptions to title, and (v) Seller's own attorneys' fees. At Closing, Purchaser shall pay (i) one-half of Escrow
Agent's escrow fee, (ii) the title premium for any lender's title insurance policy and the cost of any endorsements
to the Title Policy, other than as to zoning ordered by Purchaser or Purchaser's lender, (iii) charges for recording
the Deed, and any of Purchaser's financing documents, and (iv) Purchaser's own attorneys'fees,
15. DEFAULT: If Purchaser defaults and fails to cure said default within ten (10) days after written
notice, the Earnest Money shall be forfeited to or retained by Seller as liquidated damages and not as a penalty
and this Agreement shall be terminated, as Seller's sole and exclusive remedy at law and in equity. it being
agreed by Purchaser and Seller that Seller's damages would be difficult or impossible to accurately ascertain and
the Earnest Money constitutes a fair and reasonable amount of damages under the circumstances. Seller agrees
that its damages under this Agreement shall be limited to the Earnest Money deposited and waives any other
damages or claims it may have as a result of Purchaser's default. If Seller defaults and fails to cure said default
within ten (10) days after written notice, then Purchaser may elect, as its sole and exclusive remedies at law and
in equity, to either (i) have the Earnest Money returned or reimbursed, plus all accrued interest without offset of
deduction, in which event Seller shall pay to Purchaser all actual out-of-pocket expenses incurred by Purchaser in
conducting its due diligence, inspections and tests regarding the Property, but not more than $50,000, and this
Agreement shall be deemed terminated and the parties shall be released from further liability or (ii) pursue an
action to specifically enforce Seller's obligations under this Agreement. In the event legal action is instituted to
interpret or enforce the provisions of this Agreement, the prevailing party shall be entitled to recover from the
other party the prevailing party's costs and attorney's fees, including, without limitation, all costs and fees that are
incurred in any trial. on any appeal and/or in any bankruptcy proceeding.
16. FORCE MAJEURE: If, by reason of the occurrence of any Unavoidable Delay, any party to
this Agreement is prevented from complying with any performance requirement, condition, covenant or
deadline(each a "Duty of Performance-) stated herein, then while so prevented the Duty of Performance shall
be suspended and such party shall be relieved of the obligation of complying with the Duty of Performance
and shall not be liable for damages for failure to comply with it, Any such Duty of Performance shall be
deemed extended for as long as such party is so prevented from complying with any Duty of Performance;
provided that any Duty of Performance of a party to this Agreement shall not be extended by more than a
total of thirty (30) days in the aggregate by reason of one or more instances of Unavoidable Delay. For
puposes of this Agreement, an "Unavoidable Delay" means any act of God, adverse weather conditions that
could not be reasonably anticipated and that had an adverse effect on scheduled construction. casualties,
war, embargo, riots, strikes, unavailability of materials (but not failure of a party to pay for such materials).
litigation commenced by third persons (including litigation seeking to enjoin the ability of a party to act), and all
other acts or omissions, causes or events which are, with respect to a party, beyond that party's reasonable
control.
17. BROKERAGE COMMISSION: At Closing, Seller shall pay all brokerage commissions and other
fees and charges due to NAI Iowa Realty Commercial. Seller agrees to indemnify, defend and hold Purchaser,
and Purchaser's nominees, successors and assigns harmless from any and all claims. costs, commissions, fees
or damages by any person or firm claiming to have negotiated, instituted or brought about this Agreement.
18. INDEMNIFICATION:
(a) Seller agrees to indemnify and hold Purchaser and its nominees, successors, assigns, officers,
directors, partners, agents and employees, harmless of and from any and all liabilities, claims, causes of action,
penalties, demands and expenses, of any kind or nature whatsoever (except those items which by this Agreement
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specifically become the obligation of Purchaser) arising out of, resulting from, relating to, or incident to the
Property to and including the Possession Date or which are in any way related to the Seller's ownership,
maintenance or operation of the Property to and including the Possession Date. including without limitation the
operation of a fire station thereon, and all expenses related thereto, including, without limitation, court costs and
attorney's fees.
(b) Purchaser acknowledges that Purchaser shall be responsible, at its sole expense, for the removal
of any underground storage tanks located on the Property and the remediation of any soil located on the Property
which was contaminated by leaks, releases or discharges from said tanks. Notwithstanding the foregoing, Seller
agrees to and shall indemnify, protect. defend (with counsel, acceptable to Purchaser), and hold harmless
Purchaser, and its successors, assigns and grantees, from and against any and all debts, liens, causes of action.
administrative orders and notices, costs (including, without limitation, response and/or remedial costs), personal
injuries, losses, damages, liabilities, demands, interest, fines, penalties and expenses, including reasonable
attomey's fees and expenses, consultants' fee and expenses, court costs and all other out-of-pocket expenses,
suffered or incurred by Purchaser, and its successors, assigns and grantees, as a result of any claim made by
any person or entity that is not a party to this Agreement relating in any way to or arising from contamination or
other damage, of any nature whatsoever, resulting from or relating to leaks, releases or discharges from said
tanks, regardless of whether or not Seller had knowledge of any such claim as of the Closing. The foregoing
indemnity shall survive the Closing and shall not be merged with or into the delivery of the Deed and other
instruments of conveyance and transfer.
19. CONDEMNATION: In the event that prior to the Closing all or any portion of the Property is
taken by exercise of the power of eminert domain or any proceedings are threatened or instituted to effect such a
taking, Purchaser may elect either: (1) to terminate this Agreement upon written notice to Seller and Escrow
Agent, or (2) to consummate this Agreement, in which event Seller shall assign to Purchaser Seller's right to
receive any payment from such eminent domain proceedings. If Purchaser elects to terminate this Agreement
pursuant to this provision, Escrow Agent shall, within five (5) days following receipt of Purchaser's notice, return
hout
r written
e earnest Money, together withshall rhaveinterest,
anf efurtherr obligationsr ltunder this eAgreement.ructions except asrom Seller,
otherwise
Upon termination, neither party Y
provided in this Agreement.
20. SELLER COVENANTS:
(a) Commencing at the Effective Date and until the Closing, Seller shall not permit any liens,
encumbrances, or easements to be placed on the Property, nor shall Seller enter into any agreement regarding
the sale, rental, management, repair, improvement, or any other matter affecting the Property that would be
binding on Purchaser or the Property after the Closing without the prior written consent of Purchaser.
(b) Commencing at the Effective Date and until the Closing, Seller shall not permit any act of waste
or act that would tend to diminish the value of the Property for any reason, except that caused by ordinary wear
and tear.
(c) Until Closing, Seller shall keep pay taxes and other public charges against the Property so as to
avoid forfeiture of Purchaser's rights under this Agreement.
(d) After the Effective Date, Seller shall promptly advise Purchaser in writing of any facts known to
Seller indicating any material inaccuracy of any of the representations and warranties contained in Section 8 of
this Agreement and shall promptly give to Purchaser copies of any written notices which Seller receives
concerning the Property.
21, NOTICES: All notices to be given under this Agreement shall be in writing and sent by: (1)
certified mail, return receipt requested, in which case notice shall be deemed delivered three (3) business days
after deposit, (2) postage prepaid in the United States Mail, (3) a nationally recognized overnight courier, in which
case notice shall be deemed delivered one (1) business day after deposit with that courier, or (4) telecopy or
similar means if a copy of the notice is also sent by United States Mail, in which case notice shall be deemed
delivered on transmittal on the date of the confirmation by telecopier or other similar means, provided that a
transmission report is generated reflecting the accurate transmission of the notices,as follows;
To Purchaser: First Equity Acquisitions, LLC
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1701 Golf Road, Tower 1, Suite 1106
Rolling Meadows, Illinois 60008
Facsimile: (847) 427-8767
With a Copy to: Stahl Cowen Crowley LLC
Attn:Thcmas G. Moffitt
55 West Monroe, Suite 1200
Chicago, Illinois 60603
Facsimile: (312)423-8176
To Seller: City of Waterloo
Attn: Mayor Hurley
715 Mulberry Street
Waterloo, Iowa
Facsimile: (319)291-4286
With a copy to: Noel Anderson, Community Planning and Development Director
City of Waterloo
715 Mulberry Street
Waterloo, Iowa
Facsimile: (319) 291-4262
or to such other address as Purchaser or Seller may respectively designate by written notice to the other,
22, MISCELLANEOUS PROVISIONS:
(a) Time is of the essence of this Agreement.
(b) All of the covenants, warranties, representations and agreements herein contained shall run with
the land and extend to and be binding upon the heirs, executors, administrators, successors and assigns of the
respective parties. This document contains all of the agreements between the parties and may be modified only
in writing.
(c) This Agreement may be executed in any number of counterparts, each of which shall be deemed
to be an original and all such counterparts taken together shall be deemed to constitute one and the same
instrument.
(d) Seller agrees that upon its execution of this Agreement neither it nor its agents or employees will
(a) initiate, encourage the initiation by others of discussions or negotiates with third parties or respond to
solicitations by third parties relating to the Property or any part thereof, (b) fail to immediately notify Purchaser if
any third party attempts to initiate any such solicitation, discussion or negotiation with Seller nor will enter into any
agreement with any third party with respect to the Property or any part thereof,
(e) Intentionally deleted,
(f) Purchaser may place a sign on the Property, which may include the name and telephone
numbers of Purchaser and/or Purchaser's brokers or agents.
(g) If Seller determines to conduct this transaction as part of a "like-kind exchange" pursuant to
Section 1031 of the Internal Revenue Code. Purchaser shall reasonably cooperate with Seller and execute any
reasonably necessary documents approved as to form and content by Purchaser, but at no cost or expense to
Purchaser.
(h) If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable,
the remainder of this Agreement shall riot be affected,
(i) This Agreement shall ba governed by and construed in accordance with Iowa law.
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(j) This Agreement may be assigned by Purchaser to CVS Caremark Corporation, or any affiliated or
related entity, without the prior written consent of Seller. This Agreement may be assigned by Purchaser to any
other third party, subject to the prior written consent of Seller, which consent shall not be unreasonably withheld
so long as the proposed assignee provides a written commitment to redevelop the Property substantially as
contemplated by this Agreement.
(k) If any term, covenant, condition, provision or agreement herein contained is held to be invalid,
void or otherwise unenforceable by any court of competent jurisdiction, the fact that such term, covenant,
condition, provision or agreement is invalid, void or otherwise unenforceable shall in no way affect the validity or
enforceability of any other term,covenant, condition, provision or agreement herein contained.
(I) All terms of this Agreement shall be binding upon, inure to the benefit of and be enforceable by,
the parties hereto and their respective legal representatives, successors and assigns.
(m) Seller and Purchaser acknowledge each to the other that both they and their counsel have
reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities
are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any
amendments or exhibits hereto.
23. PATRIOT ACT.Seller and Purchaser represent and warrant to each other that they are in
compliance with the requirements of Executive Order No. 133224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the
"Order") and other similar requirements contained in the rules and regulations of the Office of Foreign Assets
Control, Department of the Treasury ("OFAC") and in any enabling legislation or other Executive Orders or
regulations in respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively
called the °Orders") and that neither party, nor any beneficial owner of thereof: (a) is listed on the Specially
Designated Nationals and clocked Persons List maintained by OFAC pursuant to the Order and/or on any other
list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or
pursuant to any other applicable Orders (such lists are collectively referred to as the "Lists"); (b) is a person or
entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders;
or(c) is owned or controlled by, or acts for or on behalf of, any person or entity on the Lists or any other person or
entity who has been determined by competent authority to be subject to the prohibitions contained in the Orders.
Seller and Purchaser hereby covenant and agree that if either party obtains knowledge that such party or any of
its beneficial owners becomes listed on the Lists or is indicted, arraigned, or custodially detained on charges
involving money laundering or predicate crimes to money laundering, such party shall immediately notify the other
party in writing, and in such event, the other party shall have the right to terminate this Agreement without penalty
or liability by delivery of written notice thereof to the other party.
SCC1031949,00041d 181v5
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IN WITNESS WHEREOF, the parties have executed this Purchase and Sale Agreement by their duly authorized
representatives effective as of the Effective Date.
PURCHASER: SELLER:
FIRST EQUITY ACQUISITIONS, LLC The City of Waterloo, Iowa
an Illinois limited li itity company
By: _ By:
Its: Alit. _ Its: t
Date: q/7, , 2008 Date: /au1us r a 5 , 2008
.r
.
SCC\031949.0004\d 18\v
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12/16/2009 14:10 3192329579 CBW&H ATTORNEYS PAGE 13/20
EXHIBIT A
LEGAL DESCRIPTION
SCC\031949.0004\d 18\v5
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12/16/2009 14:10 3192329579 CEW&H ATTORNEYS PAGE 15/20
EXHIBIT B
EARNEST MONEY ESCROW INSTRUCTIONS
Escrow Officer:
Escrow No.:
Phone No.: (312) 223-
Facsimile No,: (312) 223-
Date: , 2008
TO: Chicago Title Insurance Company
171 N. Clark Street
Chicago, Illinois 60601
Attn: Virginia Moore
The amount of Ten Thousand Dollars ($10,000.00) (the "Earnest Money") is deposited with the Chicago office of
Chicago Title Insurance Company in escrow by First Equity Acquisitions, LLC, as the "Purchaser," under that
certain Purchase and Sale Agreement (the °Agreement"), dated , 2008, with The City of
Waterloo, Iowa, as the "Seller",
As escrowee, you are hereby directed to hold, deal with and dispose of the Earnest Money together with any
other deposits, and which shall be referred to as the"Escrow Deposit', in accordance with the following terms and
conditions:
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a joint order by the undersigned Seller
and Purchaser as to the disposition of the Escrow Deposit; or (b) you are in receipt of a written demand
(the "Demand") from either Seller or Purchaser for the payment of the Escrow Deposit or any portion
thereof. If you receive a Demand from Purchaser on or before the expiration of Investigation Period, as
such terms are defined in the Agreement, i.e. , 2008 (Investigation Period Expiration Date),
as the same may be amended, then you shall immediately comply with the Demand without the necessity
of giving notice to Seller and notwithstanding any contrary instruction you may receive from Seller, Upon
receipt of any Demand (other than a Demand from Purchaser on or before the expiration of the
Investigation Period, as provided above), you are directed to so notify the other party, enclosing a copy of
the Demand. If within five (5) days after the non-demanding party has received or is deemed to have
received your notice of your receipt of the Demand, you have not received from the non-demanding party
its notice of objection to the Demand, then you are to disburse the Escrow Deposit as requested by the
Demand. If within said five-day period you receive from the non-demanding party its notice of objection to
the Demand, then you are to continue to hold the Escrow Deposit until you are in receipt of a joint order
as aforesaid, but after sixty (60) days you may deposit the Escrow Deposit with a Court of competent
jurisdiction.
2, Notwithstanding the foregoing, as escrowee, you are hereby expressly authorized to regard and to
comply with and obey any and all orders, judgments or decrees entered or issued by any Court, and in
case you obey or comply with any such order,judgment or decree of any Court, you shall not be liable to
either of the parties hereto or any other person or entity by reason of such compliance, notwithstanding
any such order, judgment or decree be entered without jurisdiction or be subsequently reversed,
modified, annulled, set aside or vacated. In case of any suit or proceeding regarding these Escrow
Instructions, to which you are or may at any time be a party, the undersigned Seller and Purchaser agree
that the non-prevailing party shall pay to you upon demand all reasonable costs and expenses incurred
by you in connection herewith.
3. Any escrow fee to be charged by you is to be borne equally by the undersigned Seller and Purchaser, up
to a maximum fee of$2,000.00 payable by Seller.
4. As escrowee, you shall invest the Escrow Deposit in an interest-bearing savings or money market
account or short term U.S. Treasury Bills or similar cash equivalent securities, as the undersigned
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Purchaser may direct. Any interest earned on the Escrow Deposit, after you deduct your customary
investment charges, shall become and be deemed to be a part of the Escrow Deposit.
5. All notices or other communications hereunder shall be in writing and shall be personally delivered or sent
by overnight courier (such as Federal Express), by facsimile transmission or by first class United States
Mail, postage prepaid, registered or certified (return receipt requested)to the respective addresses for the
Seller's counsel, Purchaser's counsel, and escrowee as herein provided, A notice is given on the date it
is personally delivered, sent by overnight courier or facsimile transmission, or deposited with the United
States Mail for delivery as aforesaid. A notice is received on the date it is personally delivered, the day
after sent if sent by overnight courier or facsimile transmission or, if sent by mail as aforesaid, on the date
noted on the return receipt.
6. Purchaser and Seller may act hereunder either directly or through their respective attorneys:
The Purchaser's attorney is:
Stahl Cowen Crowley LLC
55 W.Monroe
Suite 1200
Chicago, Illinois 60603
Telephone; 312.3T7.7861
Facsimile : 312.423,8176
Attn: Thomas G. Moffitt,Esq.
The Seller's attorney is: Chris Wendland
Clark, Butler,Walsh and Hamann
315 E. 5th Street
Waterloo, Iowa 50703
Telephone: 319-234-5701
Facsimile: 319-232-9579
7, These Escrow Instructions are being entered into to implement the Agreement and shall not (nor be
deemed to) amend, modify or supersede the Agreement or act as a waiver of any rights, obligations or
remedies set forth therein; provided, however, that you may rely solely upon these Escrow Instructions.
8. In case of any suit or proceeding at law or in equity regarding the Earnest Money or these Escrow
Instructions, the non-prevailing party shall pay the prevailing party all costs and expenses (including, but
not limited to, attorney's fees) incurred by the prevailing party, and if such prevailing party shall recover
judgment in any such suit or proceeding, such costs and expenses (including but not limited to attorneys'
fees) shall be included in and as a part of such judgment.
9. These Escrow Instructions may be signed in any number of counterparts each of which shall be deemed
to be an original and all of which taken together shall constitute one and the same instrument.
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Agreed and Acknowledged this day of , 2008.
PURCHASER: SELLER:
First Equity Acquisitions, LLC, an The City of Waterloo, Iowa
Illinois limited liability company
By: By:
Chicago Title Insurance Company
By:
Title:
Escrow No:
S CC\O31949,OOo4\d 16\v5
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