Terms and Conditions of Sale
COMMERCIAL PROPERTY SALE. NRC Realty & Capital Advisors, LLC (“NRC”) in its capacity as exclusive real estate broker is offering to sell, subject to court approval, two properties located at 6500 North Western Avenue, Chicago, Il 60645, and 6017-6039 and 6043 North Western Avenue, Chicago, Illinois 60659 (individually, a “Property” and collectively, the “Properties”) to be sold Pursuant to Two Separate Circuit Court of Cook County Judgment of Foreclosure and Sale Orders entered by the Judge in the Circuit Court of Cook County, Illinois, County Department, Chancery Divisions (the “Court”), Case Nos.: 2017 CH 15523 and 2017 CH 05789. NRC shall serve as the Judicial Selling Officer upon entry of an order confirming the brokered sale of the Properties.
BID DEADLINE. The Properties are available for immediate sale subject to Court approval and objection overbidding; however, NRC reserves the right to set a bid deadline date (the “Bid Deadline”) for the Properties in the future.
BID DEADLINE (UPDATE). Sealed bids are required to be received by NRC not later than October 13, 2020, at 3:00 p.m. Central Time (the “Bid Deadline”) and sent by mail or email to:
NRC Realty & Capital Advisors, LLC
445 W. Erie Street
Chicago, Illinois 60654
Attn: Sale 2009: Western Avenue Commercial Properties
OFFERED PROPERTIES. A purchaser may purchase either Property or both Properties.
TERMS AND CONDITIONS OF THE SALE
TERMS AND CONDITIONS. The offering and sale of the Properties in this sale are subject to these Terms and Conditions of Sale (the “Terms and Conditions”). Prospective purchasers are advised to carefully review the Terms and Conditions. Failure to comply either as a participant in the sale or in the preparation or submission of a bid offer, may, in the sole discretion of NRC, cause a bid to be deemed non-conforming (a “Non-conforming Bid”) and disqualified from consideration. NRC reserves the right to amend, supplement or modify these Terms and Conditions from time to time in writing, without consent from or notice to prospective bidders. To the extent that the Terms and Conditions conflict with a provision of the Purchase & Sale Agreement (“PSA”) actually entered into relating to a Property, the provision of the applicable PSA shall be controlling. To the extent the Terms and Conditions conflict with any order entered by the Court, the Court’s order will control.
REFERENCED MATERIALS. The Terms and Conditions are set forth in the Property Specific Packages (the “PSP” as described below) incorporated herein by reference in the PSA.
PRE-BIDDING DUE DILIGENCE. Bidders are solely responsible for conducting their own due diligence on the Properties. PSAs submitted become immediately enforceable upon execution by the delegated authority for the secured creditor and may be terminated only pursuant to the terms thereof. The sale of the Properties is subject to final Court approval. In the event a successful bidder defaults on its obligations under an enforceable PSA, the secured creditor shall have the right to retain such bidder’s Earnest Money Deposit (as defined below).
PROPERTY SPECIFIC PACKAGES. A PSP for the Property will be made available during the sale process. The PSP contains, as available, property-specific physical, legal, tax bills, surveys or site plans, and title commitments.
PROPERTY INSPECTIONS. Interested parties may only view the exterior of the Properties from public sidewalks and roads and any interior inspections of improvements on the Properties or access to the exterior portions of the Properties shall be available only upon the express written approval of the debtors (i.e., the owners) of the Properties or upon order of court. NRC has no knowledge whether the debtors will provide opportunities for inspection and exterior access, although NRC will make every attempt to provide access to the improvements and exterior of the Properties at times and dates provided by the debtors (if any). PROPERTIES ARE BEING SOLD AS-IS-WHERE-IS, WITH ALL FAULTS, AND NO INSPECTION CONTINGENCIES WILL BE ALLOWED. BIDS MADE WITH INSPECTION CONTINGENCIES MAY BE RENDERED A NON-CONFORMING BID.
BID DEADLINE. Should NRC elect to call for offers, all bids are required to be received by NRC by the Bid Deadline which NRC shall publish and provide notice interested parties. A bid received by NRC after the Bid Deadline may be deemed a Non-conforming Bid in NRC’s discretion with the consent of the secured creditor.
BID PACKAGE. The bid package (the “Bid Package”) for each Property contains bid submission instructions, the related form of PSA to be completed, signed and submitted to NRC along with a bidder pre-qualification form. The Bid Package for each Property is contained in the PSP. To obtain a Bid Package for a Property, a prospective bidder may download the PSP from the NRC website after following the registration policy set forth on www.nrc.com/2009.
PURCHASE & SALE AGREEMENT. A bid for a Property or the Properties must be made on the PSA form contained in the related Bid Package. The PSA is required to be fully and correctly completed and properly signed. A bid received in any other format or on a PSA that is incomplete, incorrect or modified in any respect is a Non-conforming Bid. Instructions on how to complete the PSA in compliance with the Terms and Conditions are contained in the Bid Package.
BID DEPOSIT. Each bid is required to include an initial bid deposit (the “Bid Deposit”) equal to 2.5% of the bid price. The Bid Deposit is required to be made by wire transfer of immediately available funds to NRC’s escrow account (wiring instructions will be provided by NRC in the bid package). A bid that is submitted without a Bid Deposit that complies with this paragraph is a Non-conforming Bid. If a bid is not accepted by the secured creditor and approved by the Court, the Bid Deposit will be returned to the bidder subject to the terms outlined below.
NOTICE AND PUBLICATION FOR OVERBID; BREAK-UP FEE. In accordance with the requirements of The Illinois Mortgage Foreclosure Law, upon the acceptance by Seller of a conforming Bid pursuant to a PSA, NRC will publish the bid amount and essential terms of the sale for a final overbid date (“Overbid Date”). On the Overbid Date, parties may submit additional bids to overbid/outbid the Bid initially accepted by Seller. Instructions for submitting overbids will be published by NRC at the time a PSA for one or both of the Properties is accepted by Seller and before seeking approval of any such sale from the Court. At the discretion of NRC, the overbid auction will take place either at NRC’s office in downtown Chicago or via video conference on a date and time to be determined. Should a party wish to submit an overbid, such overbid must be in an amount equal to at least five percent (5%) greater than the purchase price set forth in the initially accepted Bid. Should an overbid be accepted by the Seller, subject to court approval, the party that submitted the Bid initially accepted by Seller (which Bid was subsequently subjected to the overbid publication process), such party shall be entitled to receive a fee equal to two percent (2%) of such party’s original Bid, to be paid upon confirmation of the sale by the Court, and subsequent closing of such sale (“Break-Up Fee”). The party that submitted the Bid initially accepted by Seller is permitted to submit an overbid, but if such original party’s overbid is again accepted, the original party is not entitled to the Break-Up Fee. Once a final bid is accepted by the Seller, the Seller will seek approval from the Court to confirm such sale.
NON-CONFORMING BIDS. NRC reserves the right, with secured creditor’s consent, to disqualify from consideration and reject any Non-conforming Bid. After a Non-conforming Bid is rejected, NRC will return the related Bid Deposit by certified mail within seven (7) business days after the later to occur of (i) the date of such rejection and (ii) the date that the related funds have cleared NRC’s escrow account.
BID EVALUATION AND WINNING BID
EVALUATION AND WINNING BIDS. NRC will present bids received to the representative of the secured creditor as they are presented, or when received on the Bid Deadline for consideration or after the Bid Deadline in the NRC’s discretion with the consent of the secured creditor. Secured creditor will review all bids, other than rejected or Non-conforming Bids (other than any Non-conforming Bids which the secured creditor, in the secured creditor’s sole discretion, agrees to review). The representative of the secured creditor may accept or reject any and all bids, in its sole and absolute discretion. NRC reserves the right to request and review additional financial information relating to a bidder and/or other information confirming a bidder’s ability to close a sale. All sales are final upon acceptance and execution by the representative of the secured creditor and approval by the Court.
BEST AND FINAL BIDS. NRC reserves the right to solicit best and final offers (“BAFOs”) for each Property. NRC shall notify bidders of its intent to solicit a BAFO by email or facsimile. In that case, bidders will be given an opportunity to raise, but not lower or withdraw, their bids. If a bidder elects not to submit a BAFO, such bidder’s original bid amount remains in effect. If accepted by NRC with the consent of the secured creditor, a BAFO will amend the purchase price of the related PSA.
PROHIBITION ON WITHDRAWING BIDS. Both bids made on or by the Bid Deadline and BAFOs are purchase offers that, are irrevocable and may not be withdrawn.
EFFECTIVE DATE OF WINNING BID. The effective date of the winning bid is the date on which representative of the secured creditor signs the related PSA (with all sales subject to and conditioned upon Court approval). NRC will notify winning bidders electronic mail; however, winning bids are not legally binding on, or enforceable until the date on which NRC delivers a fully signed PSA by the authorized representative of the secured creditor to the successful bidder and such PSA has been approved by the Court.
ADDITIONAL EARNEST MONEY REQUIREMENT. Within two (2) business days after receiving written notice from NRC of secured creditor’s written acceptance of a bid, a successful bidder is required to deposit sufficient additional funds (the “Additional Bid Deposit”) that, when added to the initial Bid Deposit, equals 10% of the purchase price of the accepted PSA. The Additional Bid Deposit is required to be made by wire transfer of immediately available funds to NRC’s escrow account (wiring instructions will be provided by NRC). The Bid Deposit, together with the Additional Bid Deposit, is collectively referred to herein as the “Earnest Money Deposit”. The Earnest Money Deposit will be held by NRC in its segregated escrow account for the benefit of the parties and without obligation to invest funds or pay interest thereupon.
ESCROW OF PURCHASE PRICE. Prior to the secured creditor filing the accepted offer with the Court, the winning bidder will be required to tender the full balance of the purchase price under the executed PSA into escrow. The timeframe for placing the full amount of the purchase price into escrow will be negotiated under the terms of the PSA.
NRC’S AND SECURED CREDITOR’S RESERVATION OF RIGHTS. NRC in its capacity as exclusive real estate broker and to-be-appointed judicial selling officer, in conjunction with the secured creditor, expressly reserves the right, in its sole discretion, at any time and without giving reasons therefor, to decline any bid, postpone, extend, or cancel the Bid Deadline, or withdraw any Property from the sale at any time without notice. NRC further reserves the right, in its sole discretion, without notifying any bidder, giving any bidder similar opportunity, or re-offering a Property, to negotiate the terms of a bid, to overlook minor inconsistencies or nonconformance in a bid, to extend any deadlines or to accept any bid for any reason, whether or not such bid is the highest purchase price. Secured creditor also reserves the right to terminate, at any time, further participation in the process by any party or all parties, to modify any of the rules or procedures set forth herein or any other procedures without prior notice or assigning any reason therefor, to reject any or all proposals, or to terminate the process contemplated hereby. Secured creditor reserves the right to take any action, whether in or out of the ordinary course of business, which the secured creditor in its sole discretion, deems necessary or prudent in the conduct of its business. NRC may require verification of funds available to close on offers before accepting any bid. The Terms and Conditions are subject to modification as may be required by the laws of the State of Illinois where the Properties are located.
PURCHASE & SALE AGREEMENT TERMS
PURCHASE AND SALE AGREEMENT. The purchase of each Property will be subject to and consummated pursuant to the provisions of the applicable PSA and subject to approval by the Court. Certain PSA provisions have been summarized herein for the benefit of prospective bidders. These summaries do not restate the PSA provisions and are not intended to be full, complete and accurate descriptions thereof. Accordingly, bidders may not rely on these summaries as enforceable provisions. The applicable executed PSA (subject to court approval) is the sole agreement relating to rights, remedies and obligations of each party in connection with the purchase of each Property.
CLOSING DATES AND TRANSFER OF POSSESSION. Successful bidders will be required to close escrow within five (5) days after the appeal period expires following sale confirmation by the Court. It is anticipated it will take between 75 and 120 days to complete the transaction, and potentially longer, once the purchase price for the full balance due under the executed PSA has been placed into escrow. Transfer of possession will occur upon the escrow closing. Per the anticipated Court order, the borrower will have at least 30 days post-closing to remove any vehicles from the Properties and completely vacate the buildings. Should the debtors or any other tenant or occupant fail to vacate the Properties, it will be the successful bidders’ responsibility to handle any such further legal action necessary to remove the debtors or any other tenant or occupant from the premises after closing and after the expiration of appeal periods. The PSA for each Property provides that Chicago Title & Trust will be the Title Company for the closing of the Property.
TRANSFER OF TITLE. Properties will be conveyed by a court-approved Judicial Selling Officer deed with marketable title. The Properties will be sold with title free and clear of monetary liens except non-delinquent real estate taxes, and subject to standard permitted exceptions outlined in the title commitment. The Purchaser will pay for title insurance coverage. Real estate taxes will be current to the year of closing. All Properties will be conveyed “AS IS, WHERE IS, WITH ALL FAULTS,” regarding any conditions affecting the Properties, with no representations or warranties.
NO MORTGAGE CONTINGENCY. The PSAs for the Properties do not contain a mortgage contingency. In the event that the Purchaser is unable to secure purchase money financing, the PSA may not be terminated on that basis.
LICENSES, PERMITS AND AUTHORIZATION. It is the Purchaser’s sole responsibility to obtain, at its expense, any licenses, permits and authorizations (collectively, “Licenses”) required to acquire, manage, develop, and/or operate a Property. Purchaser’s procurement of these items is not a condition to Closing. Please see the PSP for each Property for additional information.
BROKER PARTICIPATION. A fee equal to two percent (2%) of the gross selling price of each Property will be paid by NRC upon the closing of escrow of the sale of such Property pursuant to the PSA to any licensed broker or agent whose registered prospect consummates the sale. Brokers must register their prospect(s) with NRC prior to bid submission by completing the Co-Op Broker registration in the form provided by NRC without modification, and faxing it to NRC at 312.278.6900, referencing Sale 2009. All such Co-Op Broker registrations are not effective until accepted in writing by NRC and NRC shall have the authority to determine if any registration is accepted based upon the requirements of these Terms and Conditions and the Co-Op Broker registration document, in its sole judgment. No registration will be accepted by NRC and no commissions will be paid in connection with any prospect who has previously expressed interest in the Property with NRC or its agents or who has been contacted by NRC. No commissions will be paid on any Property to brokers participating as a principal in the purchase of the Property or who has a direct or indirect ownership interest in Purchaser, and an affidavit may be required stating that the broker is acting solely as broker and not as Purchaser and has no direct or indirect ownership interest in Purchaser. NO OTHER FORM OR ORAL REGISTRATION IS PERMITTED.
DUAL AGENCY ACKNOWLEDGMENT, CONSENT AND WAIVER. NRC is acting as the marketing and sale coordinator for secured creditor and will become the Court-approved judicial selling officer in connection with any offering or sale of the Properties pursuant to these Terms and Conditions and in no event is NRC representing the purchaser as its agent in connection with any transaction contemplated or consummated in connection herewith. Notwithstanding the immediately preceding sentence, if it is determined that NRC is acting as an agent for the purchaser hereunder, the purchaser and all parties claiming by, through or under the purchaser shall hereby affirm and acknowledge that NRC is not acting in any manner which shall result in a dual agency, and the purchaser hereby consents to all such actions of NRC and disclaims, waives and forever releases NRC from any and all obligations that might be imposed on an agent in connection with any transaction hereunder and the purchaser hereby consents to same. Purchaser further disclaims, waives, forever releases indemnifies and holds secured creditor harmless from any liability, loss, cost or obligation arising from any acts or omissions of NRC.
OBJECTION OVERBID AUCTION. Instructions for submitting an Objection Overbid on same or better terms as the PSA(s) submitted to the Court, and detail around how to participate in the subsequent overbid auction, will be published by NRC at the time a PSA for one or both of the Properties is submitted to the Court for notice and approval. At the discretion of NRC, the auction will take place either at NRC’s office in downtown Chicago or via video conference on a date and time to be determined. Any Objection Overbid shall, at a minimum, be at a dollar amount at least five percent (5%) greater than the terms outlined in the PSA(s).
DISCLAIMER. NRC and the secured creditor, their respective members, directors, attorneys, officers, employees, agents, parents, subsidiaries and affiliates (collectively, “Representatives”) disclose that they may not have complete knowledge of the physical, environmental or economic characteristics of the Properties. Accordingly (except as otherwise specifically stated in a PSA), the secured creditor and NRC and their Representatives disclaim any warranty, guaranty or representation, express or implied, concerning (a) the condition or state of repair of the Properties, including, without limitation, any condition arising in connection with the generation, use, transportation, storage, release, or disposal of petroleum products, toxic or hazardous substances, on and under, above, upon, or in the vicinity of the Properties, and its impact on water, soil and geology; (b) the suitability of the Properties and their water, soil and geology for any activities and use that the purchaser may elect to conduct; (c) the extent of any right of way, lease, possession, lien, encumbrance, easement, license, reservation, or condition in connection with the Properties; (d) the compliance of the Properties or their operation with any applicable laws, ordinances, or regulations of any government or other body, including without limitation, compliance with any land use, Americans with Disabilities Act, wetland, or zoning law or regulation, or applicable environmental laws, rules, ordinances, and regulations; (e) title to or the boundaries of the Properties; and (f) the physical condition of the Properties, including, without limitation, the structural, mechanical and engineering characteristics of the improvements to the Properties.
EXCEPT AS STATED ABOVE AND AS SET FORTH IN THE RELATED PSA, THE SALE OF EACH PROPERTY IS ON AN “AS IS, WHERE IS, WITH ALL FAULTS,” BASIS. NEITHER THE SECURED CREDITOR, NRC, NOR ANY OF THEIR REPRESENTATIVES MAKE ANY WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF CONDITION, HABITABILITY, OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PROPERTIES. BIDDERS WILL BUY THE PROPERTIES BASED SOLELY ON THEIR OWN INVESTIGATIONS. BY ACCEPTING TITLE TO ANY PROPERTY, A BIDDER ACKNOWLEDGES THAT IT HAS CONDUCTED ANY INVESTIGATION THAT IT HAS CONSIDERED NECESSARY OR ADVISABLE AND THAT IT IS NOT RELYING UPON ANY REPRESENTATIONS WHATSOEVER. THE MATERIALS AND INFORMATION CONCERNING THE PROPERTIES CONTAINED IN THE PSPS AND THE BID PACKAGES, AND ANY OTHER INFORMATION PROVIDED BY NRC OR THEIR REPRESENTATIVES, IS BASED IN PART UPON INFORMATION AND MATERIALS OBTAINED FROM SOURCES CONSIDERED RELIABLE, WITHOUT INDEPENDENT VERIFICATION. BIDDERS MUST NOT BASE THEIR BIDS UPON THAT INFORMATION OR ENVIRONMENTAL STUDIES, REPAIR ESTIMATES, OTHER STUDIES, OR PRO-FORMA AND FINANCIAL INFORMATION THAT NRC PROVIDES, BUT MUST RELY SOLELY ON THEIR OWN ESTIMATES AND STUDIES. NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IS MADE BY THE SECURED CREDITOR, NRC, OR ANY OF THEIR REPRESENTATIVES, AS TO THE ACCURACY OR COMPLETENESS OF THE INFORMATION PROVIDED TO BIDDERS.