AGREEMENT FOR THE PURCHASE AND SALE OF REAL ESTATE
SALE
OF REAL
ESTATE
THIS
AGREEMENT FOR THE PURCHASE AND SALE OF REAL ESTATE ("Agreement") is entered
into
as of October 5, 2005 ("Effective Date") between M-Wave, Inc., a Delaware
corporation (“Seller”) (successor by statutory merger to Poly Circuits, Inc., an
Illinois corporation) and Xxxxx Xxxxxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxxxx,
and Xxxxxxxxx Xxxxxxxxxx (collectively the "Purchaser").
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SECTION
1
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SALE
OF PROPERTY.
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Subject
to the terms and conditions provided in this Agreement, Seller agrees to sell
and Purchaser agrees to purchase all of Seller's right, title and interest
in
and to the following described property:
(i)
the land legally described on Exhibit A attached hereto and made a part hereof
and commonly known as 000 Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx, (the “Real
Estate”) together with all privileges, rights, easements, hereditaments, and
appurtenances belonging to the land, and all right, title and interest of the
titleholder thereof in and to any streets, alleys, passages and other
rights-of-way included therein or adjacent thereto;
(ii)
all
buildings, structures, parking areas and other improvements located on the
Real
Estate and any and all fixtures attached thereto, including the commercial
building located at 000 Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx (collectively, the
Improvements);
(iii)
The
items
in (i) and (ii) are hereinafter collectively referred to as the
“Property”.
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SECTION
2
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PURCHASE
PRICE.
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The
purchase price to be paid by Purchaser to Seller for the Property is Five
Hundred Thousand and 00/100 Dollars ($500,000.00) (the "Purchase Price"). The
Purchase Price will be paid by Purchaser at Closing subject to provisions as
herein provided in immediate same day funds by a wire transfer to an account
designated by Seller.
2.1 Intentionally
Omitted.
2.2 Funds
at Closing.
At
Closing, Purchaser shall pay to Seller the balance of the Purchase Price,
subject to prorations as herein provided, by a wire transfer in immediate same
day funds to an account designated by Seller.
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SECTION
3
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TITLE
MATTERS; DUE DILIGENCE.
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3.1 Title
Commitment; Survey.
Seller
has delivered to Purchaser a commitment issued by Chicago Title Insurance
Company (the "Title Company") (ALTA 1992) to insure title to the Real Estate
in
the name of Purchaser (the "Title Commitment"), and survey (“Survey”).
3.2 Permitted
Exceptions.
Seller
shall transfer and convey its right, title and interest in the Property to
Purchaser subject to the Permitted Exceptions. The term "Permitted Exceptions"
shall mean the items set forth on Exhibit
B
attached
hereto.
3.3 Delivery
of Title Policy at Closing.
As a
condition to Purchaser's obligation to close, the Title Company shall deliver
to
Purchaser at Closing an Owner's Policy of Title Insurance ("Title Policy"),
issued by the Title Company dated concurrent with Closing, in the amount of
the
Purchase Price, insuring Purchaser as owner of fee simple title to the Real
Estate, subject only to the Permitted Exceptions. Seller shall execute at
Closing a customary Seller's ALTA Statement in such form as the Title Company
shall reasonably and customarily require. The Title Policy may be delivered
after the Closing if at the Closing the title Company issues a currently
effective, duly executed "marked-up" Title Commitment with the Title Policy
in
the substance of the "marked-up" Title Commitment to be issued promptly after
Closing. The premium for the Title Policy shall be paid by Seller, and Seller
shall pay the cost of the Survey required hereunder. Purchaser shall have the
right to negotiate endorsements to the Title Commitment during the Due Diligence
Period , but Seller shall have no responsibility to have such endorsements
included in the Title Policy and the premium for such endorsements shall be
at
Purchaser's expense.
3.4 Due
Diligence Period.
Purchaser has made certain inspections, applications, reviews, studies,
evaluations or surveys (collectively, the "Inspections") required to satisfy
itself as to the acceptability and suitability of the Property for its
purchase.
Purchaser
agrees to keep the Property free and clear of liens and claims arising out
of
its Inspections, and to indemnify and save Seller and Seller’s shareholders,
directors, managers, officers, agents and employees, harmless from and against
any and all damages, costs, injuries and liabilities to the Property and/or
any
persons or property of any persons which may occur by reason of and which is
caused by any such Inspections, including without limitation any environmental
inspections, tests, surveys, studies or any other entry upon or use of the
Property by Purchaser or its agents.
Seller
has delivered to Purchaser, and will be delivering to Purchaser, certain reports
and documents in its possession (“Reports”). Such Reports and any other reports
or documents heretofore or hereafter provided to Purchaser are for informational
purposes only and shall not constitute an assignment or conveyance by Seller
to
Purchaser of any rights or interests in, or right to rely upon such reports
or
their contents. Seller does not represent that such Reports are complete or
accurate. Purchaser shall keep such Reports, and the information in them (and
all other reports, documents and information concerning environmental and other
matters that it or its consultants, attorneys or other agents (collectively,
“Agents”) procure or receive in respect of the subject property) confidential
(except for Purchaser delivering same to its Agents), unless otherwise
authorized by Seller or required by law to divulge. If Purchaser or any of
its
Agents is required by law to divulge any such Reports or other reports,
documents or information, then Seller shall be given not less than thirty (30)
days notice in writing, which notice shall identify the parties by whom and
to
whom such divulgence is required and the date thereof and the documents, reports
or information so required to be divulged. Purchaser shall impose such burden
of
confidentiality and notification upon its Agents and cause them to abide by
same.
The
obligations of Purchaser under this Section 3.4 shall survive the Closing of
the
purchase and sale herein.
-2-
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SECTION
4
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CLOSING.
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4.1 Closing
Date.
The
closing of the purchase and sale of the Property (the "Closing") shall take
place on the date hereof (“Closing Date”). The Closing shall occur at the office
of the Title Company in the Chicago area office thereof designated by
Seller.
4.2 Purchaser's
Obligations at Closing.
In
addition to delivery of the balance of the Purchase Price as described in
Section 2.2., Purchaser shall execute and deliver the following to Seller at
Closing:
(a) Such
affidavits, instruments or agreements that may be required by the Title Company
in its issuance of the policy of title insurance pursuant to the Title
Commitment.
(b) Applicable
Transfer Declarations.
(c) A
statement which reflects the settlements and prorations provided for in Section
5.
(d) Such
other documents as are required pursuant to the provisions hereof.
4.3 Seller's
Obligations at Closing.
Seller
shall execute and deliver the following to Purchaser at Closing:
(a) A
Special
Warranty Deed from Seller conveying the Real Estate and Improvements to
Purchaser, subject to the Permitted Exceptions.
(b) A
statement which reflects the settlements and prorations provided for in Section
5.
(c) Such
affidavits, instruments or agreements that may be required by the Title Company
in its issuance of the Title Policy pursuant to the Title Commitment, including
the mechanics and materialman's lien affidavit and parties in possession
affidavit described in Section 3.3.
(d) Applicable
Transfer Declarations.
(e) A
Foreign
Investment in Real Property Tax Act affidavit executed by Seller.
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SECTION
5
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SETTLEMENT
AND PRORATIONS.
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The
following items shall be prorated or settled between Purchaser and Seller at
Closing:
5.1 Taxes
and Assessments.
Real
property taxes for the Real Estate for the fiscal year in which Closing occurs,
and for taxes as to any prior year not due and payable as of Closing, shall
be
apportioned between Seller and Purchaser as of the date of Closing. Such
apportionment shall be computed on the basis of the most recent issued
bills.
-3-
5.2 Utility
Charges.
Any
utility charges will be prorated as of the date of Closing, and Seller shall
pay
all charges assessed through the date of Closing if a final billing is
available. If a final billing is unavailable, Seller shall deposit with the
Title Company an amount reasonably estimated by Purchaser and Seller to be
sufficient to pay the final billing when it becomes available, with any excess
amount to be refunded to Seller. Seller shall receive a credit for the portion
of any prepaid amount which is attributable to the period of time after the
date
of Closing. All deposits paid to utilities shall be retained by Seller as its
exclusive property.
5.3 Miscellaneous
Closing Costs.
Seller
shall pay the customary premium associated with providing Purchaser with the
basic Title Policy described in subsection 3.3. Purchaser shall pay for any
endorsements it receives. All real estate recording fees payable in connection
with the purchase and sale of the Property shall be paid by Purchaser. Seller
shall pay for State and County transfer stamps. Purchaser shall pay for any
municipal transfer stamps. Any fee for closing services which is charged by
the
Title Company shall be shared equally by Seller and Purchaser. Any other
customarily proratable items shall be apportioned as of the Closing Date. Except
as otherwise expressly provided in this Agreement, Purchaser and Seller shall
pay their own fees and expenses incurred in the preparation, execution and
performance of their respective obligations under this
Agreement.
-4-
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SECTION
6
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CONDITION
OF PROPERTY; REPRESENTATIONS AND
WARRANTIES
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6.1 DISCLAIMER
AND RELEASE.
SELLER
IS SELLING THE PROPERTY WITHOUT REPRESENTATION OR WARRANTY, SHALL HAVE NO
OBLIGATION TO MAKE ANY REPAIRS, PAY FOR ANY ENVIRONMENTAL INSPECTIONS OR OTHER
REPORTS, OR DO OR PERFORM ANY OTHER WORK ON THE PROPERTY. WITHOUT LIMITING
THE
GENERALITY OF THE FOREGOING, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES
OF
SELLER EXPRESSLY SET FORTH IN SECTION 6.2 OF THIS AGREEMENT (THE “EXPRESS
WARRANTIES”), PURCHASER IS RELYING SOLELY ON ITS OWN INSPECTION AND EXAMINATION
IN PURCHASING THE PROPERTY; AND IS PURCHASING THE PROPERTY ON AN "AS-IS,
WHERE-IS" BASIS WITH ALL FAULTS AND DEFECTS NOW KNOWN OR HEREAFTER DISCOVERED
BY
PURCHASER. EXCEPT FOR THE EXPRESS WARRANTIES, NONE OF SELLER, SELLER'S OWNERS
(DIRECT AND REMOTE), MANAGER(S), NOR ANY OF ITS AGENTS OR EMPLOYEES MAKE ANY
REPRESENTATION OR WARRANTY TO PURCHASER, EXPRESS OR IMPLIED, AS TO (A) THE
SUITABILITY OF THE PROPERTY FOR PURCHASER'S INTENDED USE, OR ANY PARTICULAR
PURPOSE OR THE MERCHANTABILITY OR FITNESS THEREOF, (B) THE ENVIRONMENTAL
CONDITION OF THE PROPERTY
(C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
MAY CONDUCT THEREON, INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF
THE
PROPERTY; (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS CURRENT OR INTENDED
OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY (INCLUDING WITHOUT LIMITATION, THE FEDERAL
COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT (42 U.S.C
SECTION 9601 ET SEQ.) AND OTHER ENVIRONMENTAL LAWS, RULES OR REGULATIONS) AND
ANY CLAIMS MADE OR OBLIGATIONS OR LIABILITIES IMPOSED PURSUANT THERETO, AND
ANY
ZONING ORDINANCES; (E) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS,
IF ANY, INCORPORATED INTO THE PROPERTY; (F) THE PRESENCE OR ABSENCE OF HAZARDOUS
MATERIALS AT, ON, UNDER, OR ADJACENT TO THE REAL ESTATE OR BUILDINGS OR ANY
OTHER ENVIRONMENTAL MATTER OR CONDITION OF THE PROPERTY; OR (G) ANY OTHER MATTER
WITH RESPECT TO THE CONDITION OF THE PROPERTY; AND,
EXCEPT FOR THE EXPRESS WARRANTIES, ALL SUCH REPRESENTATIONS
AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY SELLER, AND PURCHASER HEREBY
RELEASES SELLER, SELLER'S OWNERS (DIRECT AND REMOTE), DIRECTORS, OFFICERS,
MANAGER(S) AGENTS AND EMPLOYEES (COLLECTIVELY THE "SELLER PROTECTED PARTY")
FROM
ANY AND ALL RESPONSIBILITY AND LIABILITY IN RESPECT THEREOF. WITHOUT
LIMITATION OF THE PROVISIONS ABOVE, PURCHASER HEREBY RELEASES SELLER AND THE
OTHER SELLER PROTECTED PARTIES FROM ANY AND ALL CLAIMS, CAUSES OF ACTION, OR
LIABILITIES ARISING OUT OF OR RELATING DIRECTLY OR INDIRECTLY TO ANY
ENVIRONMENTAL HAZARD AT, IN, ON OR UNDER THE PROPERTY. ANY REPRESENTATIONS,
WARRANTIES OR STATEMENTS MADE BY ANY SHAREHOLDER, DIRECTOR, OFFICER, EMPLOYEE,
AGENT OR REPRESENTATIVE OF SELLER, INCLUDING WITHOUT LIMITATION THE BROKER
DEFINED BELOW, MAY NOT BE RELIED UPON BY PURCHASER AND DO NOT CONSTITUTE A
PART
OF THIS AGREEMENT. FOR PURPOSES OF THIS PARAGRAPH, THE TERM "ENVIRONMENTAL
HAZARD" SHALL MEAN ANY HAZARDOUS MATERIAL, OR THE STORAGE, HANDLING, PRODUCTION,
DISPOSAL, TREATMENT OR RELEASE THEREOF; AND THE TERM "HAZARDOUS MATERIAL" SHALL
MEAN (A) ANY HAZARDOUS WASTE, ANY EXTREMELY HAZARDOUS WASTE, OR ANY RESTRICTED
HAZARDOUS WASTE, OR WORDS OF SIMILAR IMPORT, AS DEFINED IN THE RESOURCE
CONSERVATION AND RECOVERY ACT (42 U.S. C. SECTION 6901 ET SEQ.); (B) ANY
HAZARDOUS SUBSTANCES AS DEFINED IN THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT (42 U.S. C. SECTION 9601 ET SEQ.); (C) ANY TOXIC
SUBSTANCES AS DEFINED IN THE TOXIC SUBSTANCES CONTROL ACT (15 U.S. C. SECTION
2601 ET SEQ.); (D) ANY POLLUTANT AS DEFINED IN THE CLEAN WATER ACT (33 U.S.
C.
SECTION 1251 ET SEQ.); (E) GASOLINE, PETROLEUM OR OTHER HYDROCARBON PRODUCTS
OR
BY-PRODUCTS; (F) ASBESTOS; OR (G) ANY OTHER MATERIALS, SUBSTANCES, OR WASTES
SUBJECT TO ENVIRONMENTAL REGULATION UNDER ANY APPLICABLE FEDERAL, STATE OR
LOCAL
LAW, REGULATION, OR ORDINANCE NOW OR HEREAFTER IN EFFECT. FOR PURPOSES OF THIS
PARAGRAPH, THE TERM "ENVIRONMENTAL HAZARD" SHALL MEAN ANY HAZARDOUS MATERIAL,
OR
THE STORAGE, HANDLING, PRODUCTION, DISPOSAL, TREATMENT OR RELEASE THEREOF;
AND
THE TERM "HAZARDOUS MATERIAL" SHALL MEAN (A) ANY HAZARDOUS WASTE, ANY EXTREMELY
HAZARDOUS WASTE, OR ANY RESTRICTED HAZARDOUS WASTE, OR WORDS OF SIMILAR IMPORT,
AS DEFINED IN THE RESOURCE CONSERVATION AND RECOVERY ACT (42 U.S. C. SECTION
6901 ET SEQ.); (B) ANY HAZARDOUS SUBSTANCES AS DEFINED IN THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT (42 U.S. C. SECTION
9601
ET SEQ.); (C) ANY TOXIC SUBSTANCES AS DEFINED IN THE TOXIC SUBSTANCES CONTROL
ACT (15 U.S. C. SECTION 2601 ET SEQ.); (D) ANY POLLUTANT AS DEFINED IN THE
CLEAN
WATER ACT (33 U.S. C. SECTION 1251 ET SEQ.); (E) GASOLINE, PETROLEUM OR OTHER
HYDROCARBON PRODUCTS OR BY-PRODUCTS; (F) ASBESTOS; OR (G) ANY OTHER MATERIALS,
SUBSTANCES, OR WASTES SUBJECT TO ENVIRONMENTAL REGULATION UNDER ANY APPLICABLE
FEDERAL, STATE OR LOCAL LAW, REGULATION, OR ORDINANCE NOW OR HEREAFTER IN
EFFECT. ANY
REPRESENTATIONS, WARRANTIES OR STATEMENTS MADE BY ANY AGENT OR REPRESENTATIVE
OF
SELLER, INCLUDING WITHOUT LIMITATION THE BROKER (AS DEFINED BELOW), MAY NOT
BE
RELIED UPON BY PURCHASER AND DO NOT CONSTITUTE A PART OF THIS
AGREEMENT.
-5-
6.2 Seller's
Representations and Warranties.
Seller
represents and warrants to Purchaser that, except to the extent set forth on
any
Exhibit attached hereto or any materials or information delivered to or
discovered by Purchaser or its agents during the Due Diligence
Period:
(a) Organization
and Authority. Seller is a corporation duly organized, existing and in good
standing under the laws of Delaware. This Agreement has been duly and validly
authorized by Seller, and no other action on the part of Seller is required
in
connection with this Agreement. When completed, this Agreement shall constitute
a valid and binding obligation of Seller that is enforceable against Seller
in
accordance with the terms of this Agreement.
(b) Foreign.
Seller is not a foreign corporation, foreign partnership, foreign trust or
foreign estate (as defined in the Internal Revenue Code ("Code")), and is not
subject to the provisions of Sections 897(a) or 1445 of the Code related to
the
withholding of sales proceeds to foreign persons.
6.3 Purchaser's
Representations and Warranties.
Purchaser represents and warrants to Seller that:
(a) Organization
and Authority. If Purchaser herein is an entity duly organized, existing and
in
good standing under the laws of Illinois, and has all requisite corporate power
and authority to enter into and perform its obligations under this Agreement;
and this Agreement has been duly and validly authorized by Purchaser, and no
other action on the part of Purchaser is required in connection with this
Agreement. When completed, this Agreement shall constitute a valid and binding
obligation of Purchaser that is enforceable against Purchaser in accordance
with
the terms of this Agreement.
(b) Patriot
Act. Purchaser (a) is not listed on the Specially Designated Nationals and
Blocked Persons List maintained by the Office of Foreign Asset Control,
Department of the Treasury (“OFAC”) pursuant to Executive Order No. 13224, 66
Fed. Reg. 49079 (September 25, 2001) (the “Order”); (b) is not listed on any
other list of terrorists or terrorist organizations maintained pursuant tot
he
Order, the rules and regulations of OFAC or any other applicable requirements
contained in any enabling legislation or other Executive Orders in respect
of
the Order (the Order and such other rules, regulations, legislation or orders
are collectively called the “Orders”); (c) is not engaged in activities
prohibited in the Orders, and (d) has not been convicted, pleaded nolo
contendere, indicted, arraigned or custodially detained on charges involving
money laundering or predicate crimes to money laundering.
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SECTION
7
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INTENTIONALLY
OMITTED.
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SECTION
8
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INTENTIONALLY
OMITTED.
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SECTION
9
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DEFAULT
AND REMEDIES.
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In
the
event of default by either party under' this Agreement, Purchaser and Seller
agree as follows:
9.1 Purchaser's
Default.
If this
transaction fails to close due to the default of Purchaser, then Seller's sole
and exclusive remedy in such event shall be to terminate this Agreement and
to
retain the Xxxxxxx Money Deposit, as liquidated damages, Seller waiving all
other rights or remedies in the event of such default by Purchaser, except
as
set forth in Section 3.4. The parties acknowledge that Seller's actual damages
in the event of a default by Purchaser under this Agreement will be difficult
to
ascertain, and that such liquidated damages represent the parties' best estimate
of such damages. For purposes of this Section 9.1, default shall include
Purchaser's failure to pay the Purchase Price in full when due, or any other
breach of a representation, warranty or covenant in any material respect.
Promptly upon becoming aware of any default by Purchaser, Seller shall so notify
Purchaser.
9.2 Seller's
Default.
If this
transaction fails to close as a result of Seller's default, Purchaser may,
as
its sole remedy, either (a) waive such default and purchase the
Property subject
to such default, (b) enforce its right of specific performance, or (c) terminate
this Agreement and receive a refund of the Xxxxxxx Money Deposit, subject to
Section 3.4, thereby waiving all rights or remedies in the event of such default
by Seller. Promptly upon becoming aware of any default by Seller, Purchaser
shall so notify Seller.
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SECTION
10
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BROKERS.
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Seller
represents warrants to Purchaser that no broker or finder has been engaged
by
Seller in connection with the transaction contemplated by this Agreement, except
CB Xxxxxxx Xxxxx (“Seller’s Broker”). Purchaser represents and warrants to
Seller that no broker or finder has been engaged by Purchaser in connection
with
the transaction contemplated by this Agreement, except ________________________
(none if left blank) (“Purchaser’s Broker”). Seller shall pay Seller’s Broker 6%
of the first $300,000 of the Purchase Price and 5% of the remainder of the
Purchase Price ($500,000), to be split equally between Seller’s Broker and
Purchaser’s Broker. Each party agrees to hold the other party harmless from and
against any and all costs, expenses, claims, losses or damages, including
reasonable attorneys' fees, resulting from any breach of the representations
and
warranties contained in this Section.
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SECTION
11
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ASSIGNMENT.
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Neither
Seller nor Purchaser shall have the right to assign all or any part of its
interest or right under this Agreement without the prior written consent of
the
other which consent the other may grant or withhold in its sole discretion.
Any
attempted assignment without such prior written consent, including assignments
that would otherwise occur by operation of law, shall be without force or effect
as against the other party.
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SECTION
12
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MISCELLANEOUS.
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12.1 Notices.
All
notices required or permitted under this Agreement shall be given by registered
or certified mail, postage prepaid, by reliable overnight courier, by hand
delivery, or by facsimile, directed as follows:
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If
intended for Seller, to:
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M-Wave,
Inc.
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000
Xxxxxxxxxx Xxxxx
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Xxxx
Xxxxxxx, XX 00000
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Attn:
Xxx Xxxxx
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Facsimile:
000-000-0000
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with
a copy in each case to:
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Xxxxxxxx
& Xxxxxx
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000
Xxxxx Xxxxxx Xxxxx
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Xxxxx
0000
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Xxxxxxx,
XX 00000
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Attn:Xxxxx
X. Xxxx
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Facsimile:
000-000-0000
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If
intended for Purchaser, to:
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Xxxxx
Xxxxxxxxx, Xxxxxxxx Xxxxx,
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Xxxxxxxx
Xxxxxxxxxx,
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and
Xxxxxxxxx Xxxxxxxxxx
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000
Xxxxxx Xxxx Xxxx
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Xxxxxxxxxxx,
Xxxxxxxx 00000
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Facsimile:
000-000-0000
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with
a copy in each case to:
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Xxxxxx
Xxxx Xxxxxxxx, Esq.
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0000
X Xxxxxxx Xxxxxx
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Xxxxxxx,
Xxxxxxxx 00000
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Facsimile:
773-545-8819
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Any
notice delivered by mail in accordance with this paragraph shall be deemed
to
have been duly given three (3) days after the same is deposited in any post
office or postal box regularly maintained by the United States. Any notice
which
is sent by overnight courier shall be effective the next day after delivery
to
the courier. Any notice which is hand delivered shall be effective upon receipt
by the party to whom it is addressed. Any notice which is sent by facsimile
shall be deemed to have been served on this date shown on the facsimile delivery
notice. Either party, by notice given as above, may change the address to which
future notices should be sent.
12.2 Successors
and Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective heirs, executors, personal representatives,
successors and permitted assigns.
-8-
12.3 Entire
Agreement.
This
Agreement, together with the exhibits attached hereto, constitutes the entire
agreement between Seller and Purchaser, and may not be modified in any manner
except by an instrument in writing signed by both parties.
12.4 Headings.
The
section and subsection headings contained in this Agreement are inserted only
for convenient reference and do not define, limit or proscribe the scope of
this
Agreement or any exhibit attached hereto.
12.5 Counterparts.
This
Agreement may be executed in any number of counterparts which together shall
constitute one and the same instrument.
12.6 Unenforceable
Provisions.
If any
provision of this Agreement, or the application thereof to any person or
situation shall be held invalid or unenforceable, the remainder of this
Agreement, and the application of such provision to persons or situations other
than those to which it shall have been held invalid or unenforceable, shall
continue to be valid and enforceable to the fullest extent permitted by
law.
12.7 Time
of the Essence.
Time is
strictly of the essence with respect to each and every term, condition,
obligation and provision of this Agreement, and the failure to timely perform
any of the terms, conditions, obligations or provisions hereunder by either
party shall constitute a breach of and a default under this Agreement by the
party so failing to perform. In calculating any period of time provided for
in
this Agreement, the number of days allowed shall refer to calendar and not
business days. If any day scheduled for performance of any obligation hereunder
shall occur on a weekend or legal holiday, the time period allowed and day
for
performance shall be continued to the next business day.
12.8 Attorneys'
Fees and Costs.
In the
event of litigation between Seller and Purchaser arising out of the enforcement
of or a default under this Agreement, the prevailing party shall be entitled
to
judgment for court costs and reasonable attorneys' fees in an amount to be
determined by the court.
12.9 Governing
Law; Construction of Agreement.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Illinois. Seller and Purchaser and their respective counsel have
reviewed, revised and approved this Agreement. Accordingly, the normal rule
of
construction 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.
12.10 Knowledge.
There
shall be no liability on the part of Seller, whether prior to or after Closing,
for breaches of any of its representations, warranties or covenants (i) if
Purchaser had actual knowledge thereof prior to the Effective Date, or (ii)
if
Purchaser first had actual knowledge thereof after the Effective Date and prior
to expiration of the Due Diligence Period and failed to terminate this Agreement
during such period, or (iii) if Purchaser first had actual knowledge thereof
after the Due Diligence Period and prior to Closing and failed to terminate
this
Agreement during such period.
12.11 Prior
to Closing.
From
the Effective Date through the Closing Date Seller shall not:
-9-
(a) enter
into any leases affecting the Property;
(b) make
or
permit any alterations to the Real Estate or Improvements or any portion thereof
without Purchaser’s prior written consent; or
(c) enter
into any other contracts, including, without limitation, service contracts,
affecting the Property, without Purchaser’s prior written consent, unless the
contract can be terminated by Purchaser at Closing without
penalty.
-10-
This
Agreement has been executed as of the date first appearing above.
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SELLER:
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PURCHASER:
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M-WAVE,
INC.,
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/s/Xxxxx
Xxxxxxxxx
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a
Delaware corporation
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Xxxxx
Xxxxxxxxx
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By:/s/
Xxx Xxxxx
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-11-
EXHIBITS
TO
AGREEMENT
FOR THE PURCHASE
AND
SALE
OF REAL ESTATE
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Exhibit
A
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Legal
Description of Real Estate
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Exhibit
B
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Permitted
Exceptions
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EXHIBIT
A
LEGAL
DESCRIPTION
LOTS
18,
19, 20 AND 21 (EXCEPT THE NORTH 29.0 FEET THEREOF) AND ALSO THE WEST ½ OF
VACATED ALLEY LYING EAST OF AND ADJOINING SAID LOTS IN XXXXXXXX’X ADDITION TO
BENSENVILLE, BEING A SUBDIVISION IN THE SOUTHWEST ¼ OF SECTION 13, TOWNSHIP 40
NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT
THEREOF RECORDED JULY 9, 1912 AS DOCUMENT 108683, IN DU PAGE COUNTY, ILLINOIS.
EXHIBIT
B
PERMITTED
EXCEPTIONS
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1.
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The
exclusions, general exceptions (except for the items removed pursuant
to
delivery of Seller’s ALTA Statement provided in Section 3.3), and special
exceptions shown on the Title Commitment (except for any mortgage
lien of
Seller’s lender, which shall be paid off at
Closing).
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2.
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Real
estate taxes and assessments not yet due and payable as of Closing,
and
subsequent years.
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3.
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Matters
which an accurate survey would
show.
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4.
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Building,
zoning, health and other laws and
ordinances.
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5.
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Environmental
matters.
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6.
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Matters
caused by, through or under Purchaser, or otherwise known by
Purchaser.
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7.
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Matters
over include the Title Company will issue an
endorsement.
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