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Contracts Keyed to Kunz
Market Street Associates Limited Partnership v. Frey
Citation:941 F.2d 588 (7th Cir. 1991)
Plaintiff (in need of capital) sold its retail properties to defendant who then leased them back to plaintiff. Under paragraph 34 of the lease agreement, plaintiff had the option to obtain financing from the defendant for improvements to the retail space above $250,000 and, if these negotiations failed, to buy back the property at the purchase price plus a six percent annual appreciation rate. Plaintiff’s representative Orenstein tried to contact defendant’s representative Erb to negotiate a buy back, but Erb was unresponsive. Plaintiff’s representative then attempted to obtain financing for improvements on his own but was unable to, as he was only a lessor and not the owner. Plaintiff then attempted to obtain financing from defendant, but defendant once again refused. Plaintiff, who had not informed defendant of the financing provision this whole time, then invoked the buy-back option, defendant refused to honor the provision and plaintiff sued for specific performance. Defendant cross-claimed for a breach of plaintiff’s duty of good faith and won. Plaintiff appeals.
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