REAL ESTATE SALE AND PURCHASE AGREEMENT
THIS REAL ESTATE SALE AND PURCHASE AGREEMENT (the "Agreement") is made as of
January 2, 2001 by and between Maxus Realty Trust Inc., a Missouri corporation
("Seller") and Vanguard Archives, Inc., an Illinois corporation, ("Purchaser").
1. Recitals.
a. Seller is the fee owner of that certain parcel of land legally
described on Exhibit A attached hereto and commonly known as 3431 North
Powell, Franklin Park, Illinois (the "Real Estate'). The Real Estate,
together with the 162,437 square foot building located on the Real
Estate (the "Building") and (1) all other improvements thereon or
therein, all privileges, rights, easements, hereditaments and
appurtenances thereto belonging, and/or any right, title and interest
of the title holder in and to any streets, alleys, passages and other
rights-of-way included therein or adjacent thereto, and (2) all
fixtures and personal and tangible property owned by Seller and used in
connection with the operation and ownership of the Real Estate or the
Building, including, without limitation, equipment, apparatus,
machinery, cranes, appliances, furnishings, signs, site plans, surveys,
soil and substrata studies, architectural renderings, plans and
specifications, engineering plans and studies, floor plans and other
plans or studies of any kind, leasing brochures, market studies, tenant
data sheets and other supplies, improvements thereon are referred to
herein collectively as the "Property."
b. Seller desires to sell and Purchaser desires to purchase the Property
upon and subject to the terms and conditions contained in this
Agreement.
c. In consideration of the terms and conditions contained in this
Agreement, and for other good and valuable consideration paid by
Purchaser to Seller, the receipt and sufficiency of which are hereby
acknowledged by Seller, Seller and Purchaser agree as set forth in this
Agreement.
2. Purchase and Sale. Subject to the, conditions and on the terms contained in
this Agreement, on the Closing Date (as hereinafter defined), Seller shall
convey fee simple title to the Property to Purchaser or any assignee or
designee of Purchaser by good, sufficient and recordable general warranty
deed subject only to the title exceptions set forth on Exhibit B attached
hereto (the "Permitted Exceptions").
3. Earnest Money: Purchase Price.
a. Purchase Price. The purchase price ("Purchase Price") for the Property
shall be Four Million Five Hundred Fifty Thousand and 00/100 Dollars
($4,550,000.00).
1
<PAGE>
b. Earnest Money. Within five (5) days after the Execution Date
(hereinafter defined), Purchaser shall deposit One Hundred Thousand and
00/100 Dollars ($100,000.00) (the "Earnest Money") with Assured Quality
Title Company (the "Escrow Agent") pursuant to a joint order escrow on
the form therefor currently in use by the Escrow Agent. The parties
shall direct the Escrow Agent to invest the Earnest Money in a money
market fund or other acceptable vehicle established and managed by a
nationally recognized bank or money management company. All interest
earned on the Earnest Money shall be paid to, or on behalf of,
Purchaser as provided herein, except in the event of a default by
Purchaser as provided in Paragraph 17.
4. Title, and Survey.
a. Title.
i. Title Insurance Commitment. No later than ten (10) days after the
Execution Date, Seller agrees to deliver to Purchaser:
(1) A commitment (the "Commitment") for an Owner's Policy of
Title Insurance, American Land Title Association ("ALTA")
Form B-1992 issued by Assured Quality Title Company, as
agent for Lawyers Title Insurance Corporation (the "Title
Insurer") dated on or after the Execution Date and showing
title to the Property in Seller, in the amount of the
Purchase Price, with extended coverage over all the general
title exceptions and subject only to the Permitted
Exceptions, together with the following additional
endorsements, the form of which must be either "ALTA" of
otherwise approved by Purchaser and which shall be, paid for
by Purchaser: (a) 3.1 Zoning with parking, (b) location, (c)
utility facility, (d) restrictions insuring over any
recorded covenants, conditions or restrictions of record,
(e) survey, (f) single tax parcel, and (g) contiguity; and
(2) Legible copies of all documents cited, raised as exceptions
or noted in the Commitment (the "Title Documents").
ii. Survey. No later than January 10, 2001, Seller agrees to deliver
to Purchaser Seller's existing ALTA/ACSM Survey of the Property
prepared by Chicago Guaranty Survey Company and dated October 4,
1994 (the "Survey"). Purchaser may have the Survey updated and
certified to Purchaser, the Title Insurer and Purchaser's lender,
if any, and the cost thereof shall be credited to Purchaser at
the Closing.
2
<PAGE>
iii. Initial Title Approval. Purchaser is entitled to a period of ten
(10) business days from receipt of the later of the Commitment,
the Survey and the Title Documents ("Title Review Period") in
which to review the Commitment, the Survey and the Title
Documents and deliver to Seller, at Purchaser's election, in
writing, such objections as Purchaser may have to any matters
contained in the Commitment Title Documents or Survey
("Purchaser's Objection Notice") (any of such objections listed
on Purchaser's Objection Notice are deemed the "Objectionable
Exceptions"). Seller will utilize commercially reasonable efforts
to cure any Objectionable Exceptions prior to the Closing Date.
If any Objectionable Exception is not curable by the payment of
money, Seller shall not be required to file suit or take any
action to cure which could not reasonably be completed prior to
the Closing Date. If Seller, despite its commercially reasonable
efforts, fails to cure any of the Objectionable Exceptions prior
to the Closing Date, Purchaser may either (a) terminate this
Agreement by delivering written notice to Seller on or prior to
the Closing Date, in which event each party will be released from
further liability to the other or (b) Purchaser may consummate
the transaction contemplated by this Agreement.
iv. If an exception to title or other title defect other than a
Permitted Exception is added to the Commitment subsequent to its
date, but prior to the Closing Date ("Unpermitted Exceptions"),
then, prior to the Closing Date, Seller will be affirmatively
obligated to cure any such Unpermitted Exception, the failure of
which will constitute a default by Seller under this Agreement.
5. Suitability of the Property.
a. Within ten (10) days after the Execution Date (defined below), Seller,
at Seller's sole cost, shall deliver to Purchaser:
i. A Phase I Environmental Study of the Property prepared by
Mostardi-Platt dated October 25, 2000 (the "Environmental
Study").
ii. To the extent in Seller's possession or control and not already
delivered to Purchaser, (i) copies of any and all existing title
policies, surveys, soil tests and other reports or documents
relating to the Property (including, without limitation, any
hazardous waste, underground storage tank removal, soil
disposition or other environmental reports or documents), (ii)
copies of the latest available real estate tax bills and
assessment notices covering the Property, and (iii) copies of any
and all contracts, leases (including, without limitation, the
Leases [defined below]), agreements or other written instruments
with governmental authorities, utility companies
3
<PAGE>
or private parties creating easements, rights or obligations that
burden the Property or the Property owner (all of the foregoing
being referred to herein as the "Existing Information"). From and
after the Execution Date and continuing until close of business
on February 15, 2001 (the "Due Diligence Period"), Purchaser may
review the Existing Information and investigate all other aspects
of the Property, including, without limitation, conducting
engineering studies, soil boring tests, environmental analyses,
title, land use, zoning and planning feasibility studies, studies
concerning the availability of utilities, traffic studies and
such other investigations as Purchaser may elect in its sole and
absolute discretion. In connection with such investigations,
Purchaser and its agents, employees, contractors and consultants
shall have the right at all times during the Due Diligence Period
to enter the Property to make the inspections and investigations
that Purchaser deems advisable, provided such entry shall not
unreasonably interfere with the use of the Property. Prior to
entering the Property, Purchaser shall provide a certificate of
its or its contractors' and consultants' liability insurance in
commercially reasonable amounts from insurance companies licensed
in Illinois. Purchaser agrees to indemnify, defend and hold
Seller harmless from any damage, injury or claim, including
reasonable attorney's fees and costs, arising from such entry
onto the Property to make such inspections and investigations.
If, as a result of Purchaser's exercise of its rights hereunder,
any damage occurs to the Property, and provided that Purchaser
does not close this transaction through no fault of Seller, then
Purchaser shall promptly repair such damage, at Purchaser's sole
cost and expense, so as to return the Property to substantially
the same condition as exists on the date of this Agreement.
b. If Purchaser, in its sole and absolute discretion, determines after its
review of the Existing Information, the Commitment, the Survey and its
investigation of the Property that the Property is not satisfactory for
its intended use thereof, Purchaser may, at its option, elect to
terminate this Agreement by notice given to Seller prior to the end of
the Due Diligence Period, in which event the Earnest Money and all
interest earned thereon shall be returned to Purchaser and all due
diligence materials furnished to Purchaser by Seller and the updated
Survey (provided that Seller shall reimburse Purchaser for the cost of
obtaining the same) shall be returned to Seller and thereupon neither
party shall have any further rights or obligations hereunder.
6. Possession. Sole and exclusive possession of the Property, subject to the
Leases, shall be delivered to Purchaser on the Closing Date. Seller agrees
that Purchaser may have access to the Property after the end of the Due
Diligence Period and prior to the Closing for the
4
<PAGE>
purpose of installing racking and other equipment required for Purchaser's
business, provided that prior to such entry, the parties shall enter into a
lease agreement governing Purchaser's use providing for a reasonable rental
and containing such reasonable terms and conditions, including, without
limitation, indemnity, insurance and penalty provisions reasonable to
protect Seller. The parties agree to negotiate in good faith concerning the
provisions of such lease.
7. Closing Adjustment. The following items shall be adjusted as of the Closing
Date between the parties;
a. Real estate taxes affecting the Property shall be prorated on the basis
of One Hundred Five percent (105% ) of the most recent ascertainable
amount of such taxes,
b. Lease Rentals.
c. Prepaid service contracts
d. All other items customarily prorated in transactions of the type
embodied in this Agreement.
Purchaser shall receive a credit in the amount of all tenant security
deposits provided for in the Leases.
8. Expenses.
a. Seller. Seller shall be responsible for the payment of all recording
fees required to remove or release any unpermitted title exceptions,
costs of the Survey and the Environmental Study, State of Illinois,
Cook County and Franklin Park transfer taxes, Fifty percent (50%) of
all strict joint order escrow fees, the cost of updating the Survey (as
a credit to Purchaser at Closing) and all title insurance premiums and
charges for the issuance of the Commitment and the Title Policy and, if
required, cost of clearing title.
b. Purchaser. Purchaser shall be responsible for the payment of all
recording fees (other than those incurred by Seller in removing or
releasing any unpermitted title exceptions), the cost of any required
mortgagee's title insurance policy, Fifty percent (50%) of all strict
joint order escrow fees and the cost of all endorsements to the Title
Insurance Policy obtained by Purchaser.
Except as otherwise provided herein, the fees and expenses of Seller's
designated representatives and attorneys shall be borne by Seller, and
the fees and expenses of Purchaser's designated representatives and
attorneys shall be borne by Purchaser.
5
<PAGE>
9. Transactions and Encumbrances Affecting the Property. Except as otherwise
contemplated herein, from and after the Execution Date through and
including the Closing Date, Seller shall not do, suffer or permit, or agree
to do, any of the following without the prior written consent of Purchaser:
a. Enter into any transaction affecting the Property out of the, ordinary
course of business which will diminish or otherwise affect Purchaser's
interest under this Agreement or in or to the Property or which will
prevent Seller's full performance of its obligations hereunder, or
b. Sell, transfer, convey, lease, encumber or grant any interest in the
Property or any part thereof in any form or manner whatsoever, or
otherwise perform or permit any act which will diminish or otherwise
affect Purchaser's interest under this Agreement or in or to the
Property or which will prevent Seller's full performance of its
obligations hereunder other than those which Purchaser shall approve in
writing or which shall be terminable before or as of the Closing Date.
10. Representations and Warranties of Seller. To induce Purchaser to execute,
deliver and perform this Agreement and without regard to any independent
investigations made by Purchaser, Seller represents and warrants to
Purchaser on and as of the Execution Date and as of the Closing Date as
follows:
a. Seller owns the Property in fee simple, free of any liens, claims or
encumbrances other than those which may be released prior to or at
Closing or the Permitted Title Exceptions, and has full right, power
and authority to execute, deliver and perform this Agreement.
b. Other than Seller, there are no persons in possession or occupancy of
the Property or any part thereof, nor are there any persons who have
possessory rights in respect to the Property or any part thereof,
except pursuant to oral or written leases, tenancies, licenses,
agreements or understandings regarding the use or occupancy of the
Property set forth in Exhibit C (the "Leases").
c. There are no claims, causes of action or other litigation or
proceedings pending or, to Seller's actual knowledge, threatened in
respect to the ownership, operation or environmental condition of the
Property or any part thereof.
d. Seller has no actual knowledge of:
i. The receipt of any notice of any violation of any health, safety,
pollution, environmental, zoning or other laws, ordinances, rules
or regulations with respect to the Property, which have not been
heretofore entirely corrected.
6
<PAGE>
ii. Any existing, pending, contemplated, threatened or anticipated
(i) condemnation of any part of the Property, (ii) widening,
change of grade or limitation on use of streets, roads or
highways abutting the Property, (iii) special tax or assessment
or back tax due to abatement, exemption, deferment or special
classification to be levied against the Property, (iv) change in
the zoning classification of the Property, or (v) material
increase in the tax assessment of the Property.
iii. (i) the Property, or any part thereof, being in breach of any
federal, state or local environmental laws, ordinances or
regulations, (ii) any part of the Property being used as a
landfill, dump, toxic or waste disposal site or storage area, and
(iii) any underground storage tanks existing at the Property
which will not have been removed, at Seller's expense, by the
Closing, and with respect to any removed tanks, any soil or
groundwater contamination existing in or around the excavation of
such former underground storage tanks. To Seller's actual
knowledge, (x) the Property has never been used for the
manufacture, production, generation, disposal, handling,
transportation or, except for petroleum products, the storage or
use of any hazardous materials, (y) Seller has provided to
Purchaser complete copies of all reports and investigations
commissioned by Seller or within Seller's control relating to the
environmental condition of the Property, and (z) there has been
no release of hazardous materials. If any such representation is
in any manner inaccurate or any such warranty is in any manner
breached (collectively, a "Breach"), and if such Breach gives
rise to or results in liability (including, but not limited to, a
response action, remedial action or removal action) under any
environmental laws or any existing common law theory based on
nuisance or strict liability, or causes a significant effect on
public health, Seller shall promptly take, at its sole cost and
expense, any and all remedial and/or removal action as required
by law to clean up the Property, mitigate exposure to liability
arising from, and keep the Property free of any lien imposed
pursuant to, any environmental laws as a result of such Breach.
Seller shall hold harmless, indemnify and defend Purchaser from
all costs or liabilities arising or alleged to arise from any
such Breach, including court costs and reasonable attorneys fees.
Notwithstanding the contrary provisions of paragraph 23 of this
Agreement the provisions of this paragraph 10.d.iii shall survive
the Closing for the applicable period of limitations and shall
inure to the benefit of Purchaser's successors in title to the
Property.
e. The sale of the Property hereunder is not subject to the Illinois
Responsible Property Transfer Act of 1988, as amended.
7
<PAGE>
f. Seller will deliver or has delivered to Purchaser:
i. A rent roll showing all Leases and tenancies affecting the
Property, setting forth in reasonable detail all material
provisions of each Lease or tenancy.
ii. True, correct, and complete copies of each Lease.
g. The Leases are the only oral or written leases, tenancies, licenses,
agreements or understandings regarding the use or occupancy of the
Property presently in force affecting the Property; (ii) the Leases are
in full force and effect; (iii) there are no rent concessions
(including but not limited to any abatement of rent or other expenses,
cash payments, gifts of personal property, or other financial
considerations) given to any tenant listed thereon which are not
specifically described in the Leases, and Seller holds no security or
other deposits of any tenant except as set forth in the Leases; (iv)
all rental and other payments due under the Leases as of the date
thereof have been paid in full; (v) Seller and, to Seller's actual
knowledge, the tenants are not, as of the date thereof, in default
thereunder; (vi) Seller has complied with the terms and conditions of
the Leases and will continue to do so from the date hereof up to
Closing; (vii) no rents or other payments have been or will be
collected more than one mouth in advance and no rents or other deposits
are held by Seller, except rent, insurance, tax and common area
maintenance charges for the current month; (viii) there are no
commissions or other fees payable to any person, entity, or agent with
regard to the execution of the Leases or with regard to any options to
renew, extend or expand therein contained (whether previously or
hereafter exercised) which will or could become the financial
responsibility of Purchaser as Seller's successor in interest to the
Property; (ix) any and all tenant improvement work, decorating,
painting, renovation and construction required to be done by the
landlord under the provisions of the Leases and any contributions
payable by the landlord to any tenant toward reimbursement of such
tenant's cost of moving or improvements or any similar expense or
monetary consideration to the tenant has been, or at the Closing Date
will, at Seller's expense be, fully completed and paid for; (x) Seller
and its agents have not entered into any written or oral agreements
with any tenant except as set forth in the Leases or in any amendment,
modification, or assignment thereof; (xi) no Lease contains an option
to extend the term thereof or to purchase the Property or any portion
thereof; and (xii) Seller has no business relationship with any tenant
except as landlord and tenant.
h. To the best of Seller's knowledge, all systems in the Building,
including, without limitation, electrical, plumbing, heating and air
conditioning, are, and, on the Closing Date will be, in good operating
condition, and the roof is and will be free from leaks.
8
<PAGE>
Seller shall promptly advise Purchaser in writing of any facts or
circumstances Seller learns after the Execution Date that modify
Seller's representations and warranties set forth herein.
11. Brokerage.
a. Seller hereby represents and warrants to Purchaser that Seller has not
dealt with any broker or finder with respect to the transaction
contemplated hereby other than Colliers, Bennett & Kahnweiler, Inc.
("CBK"), and Seller hereby agrees to indemnify, defend and hold
Purchaser harmless from and against any claim for brokerage commission
or finder's fee asserted by any person, firm or corporation claiming to
have been engaged by Seller, including, without limitation, CBK.
b. Purchaser hereby represents and warrants to Seller that Purchaser has
not dealt with any broker or finder other than CBK with respect to the
transaction contemplated hereby, and Purchaser hereby agrees to
indemnify, defend and hold Seller harmless from and against any claim
for brokerage commission or finder's fee asserted by any other person,
firm or corporation claiming to have been engaged by Purchaser.
12. Closing Date. Provided that Purchaser has not terminated this Agreement as
provided herein, the transaction contemplated hereby shall close at 10:00
a.m. on March 1, 2001, at the Offices of the Title Insurer, 1001 Walnut,
Kansas City, Missouri 64105, or on such other date, time and place as the
parties may mutually agree. The transaction contemplated hereby shall be
closed by means of a "New York Style Closing", with the concurrent delivery
of the documents of title, transfer of interests, delivery of the Title
Policy and payment of the Purchase Price, Seller shall provide for any
"gap" undertaking to the Title Insurer necessary for the New York Style
Closing to occur. At Closing, the Earnest Money shall be credited against
the Purchase Price and shall be delivered by the Escrow Agent to Seller.
Interest earned on the Earnest Money shall be delivered to Purchaser.
13. Escrow Closing. At the request of either party not less than Five (5) days
prior to the Closing Date, the transaction contemplated by this Agreement
shall be closed through a deed and money escrow with the Title Insurer. The
escrow instructions shall be in the customary form utilized by the Title
Insurer, modified as required to accommodate such transaction. Said escrow
may be executed on behalf of each party by such party's respective attorney
and shall be auxiliary to and shall not amend or modify this Agreement.
This Agreement shall not be merged into nor in any manner superseded by
said escrow. The cost of such escrow shall be borne by the party requesting
the same.
14. Seller's Deliveries. On the Closing Date, Seller shall deliver to the Title
Insurer or Purchaser and in exchange for the payment to Seller of the
Purchase Price the following closing documents:
9
<PAGE>
a. A general warranty deed from Seller conveying to Purchaser or its
assignee or nominee fee simple title to the Property, subject only to
the Permitted Exceptions;
b. Non-Foreign Transferor Affidavit;
c. An Affidavit of Title in customary form;
d. A certification from Seller stating that all conditions precedent to
Closing have been satisfied ;
e. An ALTA statement;
f. A 1099 Solicitation;
g. Evidence of all required municipal approvals satisfactory to the Title
Insurer.
h. With regard to the Leases:
i. An assignment and assumption agreement with respect to each Lease
and any permitted new leases;
ii. An estoppel certificate and subordination agreement from each of
the tenants under each Lease, in form reasonably acceptable to
Purchaser or Purchaser's lender, if any; and
iii. A letter signed by Seller to each tenant notifying them of the
sale of the Property to Purchaser and other matters reasonably
requested by Purchaser.
i. Any other documents as may be reasonably required and designated by
Purchaser or the Title Insurer to fully effect and consummate the
transactions contemplated hereby.
15. Purchaser's Deliveries. On the Closing Date, Purchaser in exchange for
Seller's deliveries as aforesaid shall deliver to Escrow Agent or
Purchaser:
a. The Purchase Price, by cashier's or certified check, by check issued by
the Title Insurer, or, if Seller shall so elect by written notice to
Purchaser delivered at least Forty-eight (48) hours prior to the
Closing, by wire transfer to a financial institution as directed by
Seller.
b. Any other documents as may be reasonably required and designated by
Seller or the Title Insurer to fully effect and consummate the
transactions contemplated
10
<PAGE>
hereby.
16. Joint Deliveries. Seller and Purchaser shall jointly execute:
a. A closing statement; and
b. State of Illinois, Cook County and City of Franklin Park transfer tax
declaration(s), the costs of which transfer taxes shall be paid
pursuant to Paragraph 8 hereof.
17. Default by Purchaser. In the event of a default by Purchaser of any of
Purchaser obligations under this Agreement, Seller, as its sole remedy for
default of Purchaser, may terminate this Agreement, in which event neither
party shall have any further rights or obligations hereunder and the
Earnest Money and all interest earned thereon shall be paid to Seller as
liquidated damages.
18. Default by Seller. In the event of a default by Seller of any of Seller's
obligations under this Agreement, Purchaser may, at its option, pursue any
one of the following remedies either separately or cumulatively:
a. Terminate this Agreement, in which event, except as set forth below in
this paragraph, neither party shall have any further rights or
obligations hereunder and the Earnest Money and all interest earned
thereon shall be paid to Purchaser; or
b. Enforce specific performance of Seller's obligations hereunder,
including specifically the conveyance of the Property in the condition
required hereby.
In either event, Seller shall reimburse Purchaser for all costs incurred by
Purchaser in obtaining the updated Survey.
19. Notices. Any notice or election to be given or served hereunder shall be in
writing and shall be delivered personally with a receipt requested therefor
or sent by a recognized overnight courier service or by United States
registered or certified mail, return receipt requested, postage prepaid and
addressed to the parties at their respective addresses set forth below and
the same shall be effective (i) upon receipt or refusal if delivered
personally, (ii) one (1) business day after deposit with such overnight
courier service, or (iii) two (2) business days after deposit in the mails
if mailed. A party may change its address for receipt of notices by service
of a notice of such change in accordance herewith.
If to Seller: Mr. Dan Pishny
Maxus Properties, Inc.
104 Armour Road
North Kansas City, Missouri 64116
with a copy to: Robert B. Thomson, Esq.
11
<PAGE>
Attorney at Law
4324 Belleview, Suite 201
Kansas City, Missouri 64111
If to Purchaser: Vanguard Archives, Inc.
3900 South Michigan Avenue
Chicago, Illinois 60653
Attention: Helmut M. Mlakar
with a copy to: Martin, Craig, Chester & Sonnenschein
2215 York Road, Suite 550
Oak Brook, Illinois 60523
Attention: John D. Purdy, Jr.
20. Further Assurances. The parties each agree to do, execute, acknowledge and
deliver all such further acts, instruments and assurances and to take all
such further actions as shall be necessary or desirable to fully carry out
this Agreement and to fully consummate the transaction contemplated hereby.
21. Entire Agreement. This Agreement contains the entire agreement and
understanding of the parties with respect to the subject matter hereof. All
prior agreements and understandings are merged herein.
22. Execution Date. The "Execution Date" of this Agreement shall be the date of
the last party's execution; provided, however, that if the party first
signing this Agreement does not receive a fully executed counterpart of
same from the other party hereto within five (5) business days after the
first party's execution hereof, then the offer or commitment to be bound by
the first executing party shall automatically be revoked and withdrawn,
whereupon neither party shall be bound hereto.
23. Survival and Benefit. All representations, warranties, agreements,
indemnifications and obligations of the parties shall, notwithstanding any
investigation made by any party hereto, survive the closing for a period of
two (2) years and the same shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties. The obligations
of the parties to return or deliver or cause to be returned or delivered
the Earnest Money, together with any accrued interest thereon, shall
survive any termination of this Agreement. Notwithstanding anything to the
contrary contained herein, neither party shall assign its rights or
obligations under this Agreement without prior written consent of the other
party; provided, however, the parties may assign their rights and
obligations hereunder to any of their affiliates, provided Seller shall
remain liable for the satisfaction of its obligations hereunder.
12
<PAGE>
24. Bulk Sales. Prior to Closing Seller shall deliver to Purchaser evidence
reasonably satisfactory to Purchaser from:
a. The Illinois Department of Revenue that the sale of the Property to
Purchaser hereunder is not subject to, and does not subject Purchaser
to liability under, Section 902(d) of the Illinois Income Tax Act, 35
ILCS 5/902(d), or Section 5j of the Retailers' Occupation Tax Act, 35
ILCS 120/5j and any similar Illinois statute (the "Acts").
b. Any local taxing authority having jurisdiction that the sale of the
Property to Purchaser hereunder is not subject to, and does not subject
Purchaser to liability under, any statute or ordinance similar to the
Acts administered by such local taxing authority.
Any amounts subject to a stop order shall be withheld from the proceeds
of sale payable to Seller, shall be held by the Escrow Agent or
Purchaser, as applicable, and paid according to the stop order or any
release thereof.
25. Disclosure to Internal Revenue Service. Each party agrees to cooperate
fully with the other in completing or filing any disclosure documents or in
otherwise satisfying any disclosure requirements of the Internal Revenue
Code of 1986, as amended (the "Code).
26. Counterparts. This Agreement and any document or instrument executed
pursuant hereto may be executed in any number of counterparts each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument.
27. Headings. Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this
Agreement.
28. Time for Performance. Whenever under the terms of this Agreement the time
for performance of a covenant or condition falls on a Saturday, Sunday or
legal holiday, such time for performance shall be extended to the next
business day; otherwise all references herein to "days" shall mean calendar
days. Time is of the essence for the parties' performance hereunder.
29. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
30. Attorneys' Fees. In any action to enforce the provisions of this Agreement,
the prevailing party shall be entitled to collect as damages from the other
party, in addition to all damages provided by law, such prevailing party's
court costs and reasonable attorneys fees.
31. Purchaser Exchange. Seller acknowledges that Purchaser may elect to acquire
all or a
13
<PAGE>
portion of the Property in connection with the completion of a tax-deferred
exchange under Section 1031 of the Code. Therefore, Seller hereby agrees to
take such steps as Purchaser may reasonably require in order to complete
such tax- deferred exchange including, without limitation, accepting
payment of all or a portion of the Purchase Price from a third party.
Purchaser shall reimburse Seller at Closing for all out-of-pocket expenses
incurred by Seller in excess of those that would have been incurred if
Purchaser had not elected to effect an exchange involving the Property.
32. Incorporation of Recitals. The Recitals to this Agreement are incorporated
herein.
Dated: January 11, 2001
Seller: Purchaser:
Maxus Realty Trust, Inc. Vanguard Archives, Inc.
By: /s/ David L. Johnson /s/ Helmut M. Mlakar
14
<PAGE>
EXHIBIT A
Legal Description
That part of the Southeast Quarter of Section 19, Township 40 North, Range 12,
East of the Third Principal Meridian, described as follows:
Commencing at a point in the East line of said Southeast Quarter which is
1849.19 feet North of the Southeast corner thereof; thence South 89 degrees 59
minutes 13 seconds West, in a line drawn at right angles to said East line, for
a distance of 2299.41 feet to a point, said point being the place of beginning
of the following described tract of land, to wit: Thence North 00 degrees 00
minutes 47 seconds West on a line 2299.41 feet West of and parallel with the
East line of said Southeast Quarter for a distance of 137.41 feet to an
intersection with the South line of the right-of-way of a tract of the Chicago,
Milwaukee, St. Paul and Pacific Railroad; thence South 73 degrees 56 minutes 40
seconds East for a distance of 80.13 feet, to its intersection with a curved
line, convex to the Northeast and having a radius of 394.28 feet; thence
Southeasterly along said curved line for a distance of 518.97 feet to a point of
tangency; thence South 00 degrees 00 minutes 47 seconds East on a line tangent
to the last described curved line and being 1927.41 feet West of and parallel
with the East line of said Southeast Quarter for a distance of 184.99 feet;
thence South 9 degrees 26 minutes 57 seconds West 121.66 feet; thence South 00
degrees 00 minutes 47 seconds East 30.00 feet; thence South 89 degrees 59
minutes 13 seconds West 322.0 feet; thence North 00 degrees 00 minutes 47
seconds West 601.26 feet; thence South 89 degrees 59 minutes 13 seconds West
30.00 feet to the point of beginning; in Cook County, Illinois.
15
<PAGE>
EXHIBIT B
Permitted Exceptions
1. General real estate taxes for the 2000 and subsequent years
2. Subject to the provisions of paragraph 4.a.iii, covenants, conditions,
easements and restrictions of record, provided that the same do not
materially interfere with Purchaser's use and enjoyment of the Property.
3. Acts done by Purchaser or Purchaser's employees, agents or contractors.
16
<PAGE>
EXHIBIT C
Leases
Office/Warehouse Lease Agreement dated June 2, 1989 between Nooney Krombach
Company, as agent for the Owner and Household Finance Corporation III, a
Delaware corporation, as amended by First Amendment to Lease dated July 6, 1994
and Second Amendment to Lease dated March 30, 1999
17
<PAGE>
FRANKLIN PARK DISTRIBUTION CENTER
Franklin Park, Illinois
LEASE ABSTRACT
Tenant: Household Finance Corporation III
Square Footage: 91,855 (Part of larger 162,437 SF Building)
Original Commencement Date: 7/1/89
Original Term: 5 year 6 months, expiring 12/31/94
Expiration: 12/31/04 (2nd Extension Expiration)
1st Amendment: 5-year extension from 1/1/95 to 12/31/99,
signed 7/6/94
2nd Amendment: 5-year extension from 1/1/00 to 12/31/04,
signed 3/30/99
Net Rent - Original Term: 1/90 - 12/94 $2.75 p.s.f.
Net Rent - 1st Extension: 1/95 - 12/97 $2.95 p.s.f.
1/98 - 12/99 $3.05 p.s.f.
Net Rent - 2nd Extension: 1/00 - 12/00 $3.05 p.s.f.
1/01 - 12/01 $3.14 p.s.f.
1/02 - 12/02 $3.23 p.s.f.
1/03 - 12/03 $3.33 p.s.f.
1/04 - 12/04 $3.43 p.s.f.
Use: General office and/or receiving, warehousing
and shipping products distributed by Tenant.
Additional Rent: Tenant pays proportionate share of taxes and
insurance
CAM: Tenant responsible for CAM directly
Management Fee: Not recoverable
Utilities: Tenant pays directly
Landlord's Repair & Maintenance: Structural portion of roof, foundation,
external walls, subfloors, and utility
lines.
HVAC: Tenant responsible for repair and
maintenance
Parking Lots: Tenant must reimburse landlord for repairs
<PAGE>
Landlord T.I. Contribution: $200,000 (maximum) in 1999
Option to Terminate: 3 months notice required with penalty
payment
Penalty (first 2 years): 24 month's rent plus unamortized cost of
TI's discounted at 2% over prime for 5 years
Penalty (after 2 years): 12 month's rent plus unamortized cost of
TI's discounted at 2% over prime for 5 years
Option to Renew: 5-year option with 12 month's notice at
market
