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EXHIBIT 10.18
REAL ESTATE SALE AGREEMENT
THIS REAL ESTATE SALE AGREEMENT ("Agreement"), is entered into as of
the 20th day of August, 1996, by and between TELTREND, INC., a Delaware
Corporation ("Purchaser"), and Itasca Bank & Trust Co. as Trustee under Trust
Agreement dated June 29, 1992 and known as Trust No. 11038 ("Seller") and The
Xxxxx Road Business Park Joint Venture ("Seller's Beneficiary").
RECITALS:
A. Seller owns certain vacant land situated within the corporate
limits of the City of Geneva, County of Xxxx, State of Illinois ("City"),
consisting of approximately twenty-five (25) acres, as depicted on Exhibit "A"
attached hereto and made a part hereof ("Land"); and
B. Seller is agreeable to selling the Land, together with all
improvements located thereon [there are no buildings located on the Land] and
all rights, privileges, easements, and appurtenances thereto owned by Seller,
including, without limitation, all mineral rights; all easements,
rights-of-way, and other appurtenances used or connected with the beneficial
use or enjoyment of the Land; and all right, title, and interest in and to all
streets adjacent to, abutting, or serving the Land (collectively the
"Premises"); and
C. Purchaser desires to purchase the Premises provided the
contingencies herein are satisfied, and Seller desires to sell the Premises to
Purchaser; and
D. The Premises constitute a portion of a larger tract of land
consisting of approximately one hundred twelve (112) acres (including the
Premises), which tract in total is referred to herein as "Seller's Tract", and
the balance of which tract, after deducting the Premises is referred to as
"Seller's Remainder Tract".
NOW, THEREFORE, in consideration of the mutual undertakings
hereinafter set forth, the sufficiency of which is hereby acknowledged, the
parties hereto agree to be bound upon the following terms and conditions:
1. PURCHASE AND SALE. Seller shall sell to Purchaser, and
Purchaser shall purchase from Seller, the Premises strictly in accordance with
the terms, conditions, and provisions hereinafter set forth.
2. PURCHASE PRICE. The purchase price ("Purchase Price") for the
Premises shall be One and 60/100 Dollars ($1.60) per square foot of land
contained in the Premises, net of public roads and rights-of-way for public
roads [but not net of rights-of-way for utility, drainage and other easements]
as calculated pursuant to the survey to be delivered under Section 11 of this
Agreement.
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3. PAYMENT TERMS.
3.01 INITIAL XXXXXXX MONEY: Within five (5) business days
following the execution and delivery of this Agreement by Purchaser and Seller,
Purchaser shall deposit with Chicago Title and Trust Company, 0000 X.
Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx ("Deposit Escrowee"), under a strict joint
order escrow ("Deposit Escrow") executed by legal counsel for Seller and
Purchaser, the sum of Twenty Five Thousand and NO/100ths Dollars ($25,000.00)
("Initial Xxxxxxx Money"). The Deposit Escrowee shall invest the Initial
Xxxxxxx Money in an interest bearing federally insured money market account or
other investment device backed by the U.S. Government, as Seller and Purchaser
may from time to time jointly direct, to be held and administered in accordance
with the terms of this Agreement. The interest earned on the Initial Xxxxxxx
Money shall accrue to the benefit of Purchaser. The Initial Xxxxxxx Money
shall be fully refundable to Purchaser except as otherwise provided in Sections
3.02 and 27 of this Agreement.
3.02 ADDITIONAL XXXXXXX MONEY: Within five (5) business days
following the expiration of the Due Diligence Contingency Period, as defined in
Exhibit "C" attached hereto, provided Purchaser has not first terminated this
Agreement pursuant to the provisions of said Exhibit "C", Purchaser shall
deposit the additional sum of Seventy-Five Thousand and NO/100 Dollars
($75,000.00) into the Deposit Escrow ("Additional Xxxxxxx Money"). The Initial
Xxxxxxx Money and Additional Xxxxxxx Money are collectively referred to herein
as the Xxxxxxx Money. Upon the deposit of the Additional Xxxxxxx Money by
Purchaser, the entirety of the Xxxxxxx Money shall become non-refundable,
except in the event of a default by Seller or as otherwise provided in Section
5 of this Agreement, provided that in the event this transaction Closes, as
hereinafter defined, the Xxxxxxx Money and all interest earned thereon shall be
applied toward the Purchase Price. The Additional Xxxxxxx Money shall be
invested by the Deposit Escrowee in the same manner as provided for the Initial
Xxxxxxx Money, as from time to time jointly directed by Seller and Purchaser.
The Xxxxxxx Money and all interest earned on all or any portion thereof are
referred to collectively as the "Deposit".
3.03 BALANCE OF PURCHASE PRICE: The balance of the Purchase Price,
plus or minus prorations and credits, shall be paid to Seller in U.S. funds, in
cash, by cashier's check, or wire transfer of immediately available funds at
Closing.
4. TITLE AND DEED. Notwithstanding anything contained herein to
the contrary, Seller shall convey merchantable title to the Premises to
Purchaser at Closing by delivering a recordable Trustee's deed conveying title
to the Premises to Purchaser, or Purchaser's nominee as directed by Purchaser
by written notice to Seller, in fee simple, free and clear of all liens and
encumbrances, except those title exceptions set forth in Exhibit "B" attached
hereto and made a part hereof ("Permitted Exceptions").
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5. EVIDENCE OF TITLE. Within ten (10) business days following
the date of this Agreement, Seller shall deliver to Purchaser, at Seller's
expense, a current commitment for ALTA extended coverage title insurance, Form
B-1990 ("Commitment"), in the amount of Ten Thousand Dollars and NO/100
($10,000.00) issued by Chicago Title Insurance Company ("Title Company"),
covering the Seller's Tract and showing title in fee simple in Seller subject
only to (a) the Permitted Exceptions; (b) liens or encumbrances of a definite
and ascertainable amount ("Removable Exceptions"), which Removable Exceptions
to title shall be removed at the Closing and (c) standard general exceptions 1
through 5, which Seller will caused to be waived or insured over within 10
business days after Seller receives the survey to be provided by Purchaser
pursuant to Section 11. Not less than five (5) business days prior to the
Closing Date, as hereinafter defined, Seller shall furnish to Purchaser a
current date down of the Commitment limited to the Premises, in the amount of
the Purchase Price showing title in fee simple in Seller and subject only to
the Permitted Exceptions and the Removable Exceptions, the latter of which
shall be removed by Seller at the Closing. If the date down Commitment, or the
survey to be provided pursuant to Section 11 hereof, indicates that title to
all or any part of the Premises is subject to defects other than the Permitted
Exceptions, then Seller shall have a reasonable period of time (the "Cure
Period"), not to exceed thirty (30) days after delivery to Purchaser of the
Commitment date down, or the survey, as the case may be, during which to
remedy, in a manner reasonably satisfactory to Purchaser, or remove such
defect(s). In such event the Closing Date shall be extended for a period of
thirty-five (35) days to allow Seller to attempt to remedy the defects. Seller
shall deliver to Purchaser not later than four (4) days following the
expiration of the Cure Period, a further date down of the Commitment to verify
the removal of such defects. If Seller is unable or, with respect to matters
not resulting from Seller's acts or omissions, unwilling to remove such defects
or remedy the same in a manner reasonably satisfactory to Purchaser within the
Cure Period, Purchaser shall have the option of (a) proceeding with this
Agreement and adding such title defects to the Permitted Exceptions with the
right to deduct from the Purchase Price defects, liens or encumbrances of an
ascertainable amount, or (b) declaring this Agreement null and void in which
event Seller shall instruct the Deposit Escrowee to immediately thereupon cause
the refund of the Deposit to Purchaser, subject to Purchaser's compliance with
the requirements of Section 27 with respect to mechanics' liens. Seller shall
at all times during this Agreement act in good faith and shall not negligently
or willfully cause or allow any unpermitted exceptions to be brought against
title to the Premises, and the failure of Seller to comply with this provision
shall constitute a material default by Seller under this Agreement. The
Commitment shall be conclusive evidence of good title as to all matters insured
by the policy, subject to the Permitted Exceptions as therein stated. The
Commitment fee, title examination fee, Owner's title policy and recording fees
for any mortgage release deeds shall be paid by Seller. All loan policy
premiums and recording fees for the deed of conveyance and any documents
required for Purchaser's mortgage, if any, shall be paid by
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Purchaser. Seller shall direct the Title Company to deliver to Purchaser
copies of all title documents at the time the Commitment is first delivered to
Purchaser. Nothing herein contained shall be construed as requiring Seller to
spend more than $10,000 for the purpose of removing or curing title exceptions
or survey defects except liens or encumbrances of a definite or ascertainable
amount.
6. PERFORMANCE CONTINGENCIES. Purchaser's obligation to Close
this transaction and purchase the Premises shall be contingent upon the
satisfaction or waiver by Purchaser of those contingencies set forth in Exhibit
"C" attached hereto and made a part hereof ("Performance Contingencies"). All
Performance Contingencies set forth in Exhibit "C" shall remain in force and
effect for the specific period of time ("Contingency Period") identified in
Exhibit "C". In the event a Performance Contingency is not satisfied in the
manner and within the Contingency Period set forth in Exhibit "C", Purchaser
may, within five (5) business days following the expiration of the Contingency
Period, give written notice to Seller identifying Purchaser's inability to
satisfy such condition and expressly terminating this Agreement as a result
thereof ("Contingency Termination Notice"). In the event Purchaser serves a
Contingency Termination Notice upon Seller in a timely fashion this Agreement
shall thereupon terminate and be of no further force or effect. Failure of
Purchaser to serve Seller with a Contingency Termination Notice prior to the
expiration of the Contingency Period for any applicable Performance Contingency
shall constitute the irrevocable waiver of such Performance Contingency by
Purchaser. In the event a Contingency Termination Notice is given under the
Due Diligence Performance Contingency, the Initial Xxxxxxx Money and accrued
interest shall be refunded to Purchaser. In the event a Contingency
Termination Notice is given under the Governmental Approval Performance
Contingency, the Deposit shall not be refunded to Purchaser except as otherwise
expressly provided in Section 3.02 of this Agreement.
7. CLOSING.
7.01. CLOSING DATE: The date on which the transaction herein
described shall be consummated is herein referred to as the "Closing Date" and
the transaction in which Purchaser, or its nominee acquires title to the
Premises is referred to herein as the "Closing". Subject to the provisions of
Section 5 (Evidence of Title) and Section 6 (Performance Contingencies) of this
Agreement, the Closing of this transaction shall occur on February 3, 1997 or
such earlier or later date mutually agreed to in writing by Purchaser and
Seller, provided all terms, provisions, and conditions of this Agreement to be
performed by Seller have been satisfied by Seller or waived by Purchaser in
writing. If the Closing Date or any other date on which any payments,
deliveries, or actions are required herein shall fall on a Saturday, Sunday, or
legal holiday, the date contemplated thereby shall be extended to the next
business day thereafter. The Closing shall take place at the office of Chicago
Title Insurance Company, Wheaton, Illinois, through a deed and money escrow
("Closing Escrow") with the Title Company serving as the escrow agent ("Escrow
Agent"). At or prior
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to Closing, legal counsel for the parties shall execute the standard form deed
and money escrow instructions then in use by the Escrow Agent, amended to
conform to the terms of this Agreement. Upon the opening of the Closing
Escrow, anything herein to the contrary notwithstanding, payment of the
Purchase Price and delivery of the deed required under Section 4 hereof shall
be made through the Closing Escrow, and the Deposit shall be deposited into the
Closing Escrow pursuant to joint written direction given by Purchaser and
Seller to the Deposit Escrowee.
7.02. CLOSING DOCUMENTS:
7.02.1. In addition to the Commitment to be provided under Section 5,
Seller shall deliver to the Escrow Agent at Closing the following:
(i) Seller's recordable Trustee's deed conveying marketable fee
simple title of the Premises to Purchaser or Purchaser's
nominee, with plat act affidavit attached, if applicable.
(ii) Pay off letters or release deed(s) sufficient to release
mortgages of record as to the Premises, if any.
(iii) An affidavit of title in standard form.
(iv) ALTA statements in duplicate.
(v) Real estate transfer declarations for state, county and local
authorities.
(vi) Joint Direction to Deposit Escrowee to pay the Deposit into
the Closing Escrow.
(vii) The Survey as provided in Section II of this Agreement.
(viii) Closing Statement.
(ix) FIRPTA Statement certifying that Seller is not a "foreign
person", "foreign corporation", "foreign partnership", or
"foreign estate", as those terms are defined in Section 1445
of the Internal Revenue Code and the income tax regulations
promulgated thereunder.
(x) Personal Undertaking (GAP) as required by the Title Company.
(xi) Letter from the Illinois Department of Revenue, addressed to
Purchaser, certifying that Seller does not owe any taxes to
the State of Illinois which could result in liability to
Purchaser for failing to withhold proceeds of the sale of the
Premises to pay such taxes in accordance with Section 902(d)
of the Illinois Income Tax
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Act and Section 444(j) of the Retailer's Occupation Tax Act,
if applicable.
(xii) Such other customary documents as reasonably may be required
by Purchaser's attorney to consummate the transaction
contemplated by this Agreement.
7.02.2. The Purchaser shall deliver to the Escrow Agent at Closing the
following documents:
(i) ALTA statements in duplicate.
(ii) Executed counterpart of Seller's closing statement.
(iii) Joint Direction to Deposit Escrowee to pay Deposit into the
Closing Escrow.
(iv) Balance of Purchase Price by cash, cashier's check, or wire
transfer of immediately available funds.
(v) Such other customary documents as reasonably may be required
by Seller's attorney to consummate the transaction
contemplated by this Agreement.
8. APPORTIONMENTS.
8.01. REAL ESTATE TAXES: Current real estate taxes and special
assessments, if any, on the Premises shall be apportioned on an accrual basis
as of the Closing Date. Proration of taxes for 1996 and 1997, if applicable,
shall be calculated based upon one hundred and ten (110%) of the latest known
assessed valuation, tax rate, and state and county equalization rates
applicable to the Premises. In the event the applicable tax xxxx combines the
Premises with other property, the parties shall break out the portion thereof
attributable to the Premises for vacant land under agricultural use based upon
the number of square feet contained in the portion of the Premises affected by
such tax xxxx divided by the total number of square feet of land included in
such tax xxxx. Seller and Purchaser shall have the right and authority to file
and prosecute tax assessment objections for tax years for which each shall have
a continuing tax liability. Purchaser shall cooperate with Seller concerning
any such tax objection. Any reduction in taxes resulting from such tax
objection shall be divided between the parties on a basis commensurate with the
proration of taxes provided hereunder, after first deducting the costs and
expenses, including reasonable attorney's fees, incurred in the prosecution of
such tax objection. The parties shall reprorate taxes upon the issuance of the
tax xxxx and any party owing additional taxes as a result thereof shall
reimburse the other party in such amount within ten (10) business days
following the issuance of such tax xxxx. The parties shall fully cooperate in
attempting to obtain an expected tax division of the Premises from the Seller's
Remainder Tract. So long as the tax xxxx(s) are issued on a combined basis,
each party shall fully cooperate in the timely payment of its
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proportionate share of such xxxx, to the extent prorations were not otherwise
provided at closing.
8.02. ESCROW FEE: Escrow fees for the Deposit Escrow and Closing
Escrow shall be paid by Seller and Purchaser in equal shares. Purchaser shall
pay all fees pertaining to Purchaser's money lender's escrow, if any.
8.03. COSTS OF DOCUMENT PREPARATION AND ATTORNEYS FEES: Each party
shall pay the fees of its attorney and the cost of preparing all documents
which this Agreement requires such party to furnish.
9. POSSESSION. Possession of the Premises shall be given to
Purchaser at the time of Closing and delivery of the Trustee's deed.
10. TRANSFER TAXES. The expense and cost of all federal, state,
and county documentary stamps and transfer taxes, if any, relating to the sale
and conveyance of the Premises shall be borne and remitted by the Seller at
Closing. The expense and cost of any municipal documentary stamp or transfer
tax shall be borne and remitted by the party against whom such tax is assessed
pursuant to the ordinance establishing the same, provided that if such
ordinance is silent in such regard, said tax shall be paid by Purchaser.
11. SURVEY. During the Due Diligence Contingency Period
Purchaser shall, at its initial expense, procure a survey of the Premises as
finally configured pursuant to the provisions of Section 22 of this Agreement.
The survey shall be an ALTA/ACSM extended boundary survey of the Premises
prepared by an Illinois registered land surveyor in accordance with the
Illinois Land Survey Standards. Such survey shall be certified to Purchaser or
Purchaser's nominee, Purchaser's lending institution, and the Title Company.
Such survey shall be prepared in accordance with the minimum detail
requirements established by ALTA/ACSM in 1986 (with respect to a "Class A"
survey) or the Illinois Land Survey Standards, whichever is more inclusive, and
therefore, shall include, without limitation, the spotting and location of all
fences, drainage and utility easements [nothing herein contained shall require
the "spotting" of underground drain or farm tile], public rights-of-way or
center line recordations, encroachments, building set back requirements of
record, private roads, other easements, improvements constructed thereon, if
any, and all other matters required for such survey, or such lesser standards
as Purchaser may approve in its sole discretion. The survey shall also include
a flood plain and wetland certification by the surveyor certifying the absence
of the same from any portion of the Premises, and shall certify the square foot
area of land, net of public roads and rights-of way for public roads, [but not
net of rights-of-way for utility, drainage and other easements], contained in
the Premises to be used in calculating the Purchase Price pursuant to Section 2
of this Agreement. The survey shall be certified accurate as of the Closing
Date by the surveyor. All
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costs incurred by Purchaser with respect to the survey shall be reimbursed or
paid by Seller at Closing. In the event the survey reflects easements,
encroachments, overlaps, or other defects not contained in the Permitted
Exceptions to title, Seller shall have the same rights and duties relating to
the remedy of such survey defects as are provided in Section 5 pertaining to
the remedy of title defects; provided, however, that in no event shall Seller
be required to spend more than $10,000 for the purpose of removing or curing
easements, encroachments, gaps, overlaps or other survey defects. In the event
Seller is unable or, with respect to survey defects not caused by Seller's acts
or omissions, unwilling to so remedy such survey defects, Purchaser shall have
the same rights and options (relating to the termination of this Agreement and
the right to proceed and reduce the Purchase Price for defects curable by the
payment of ascertainable amounts) as provided in Section 5 hereof pertaining to
Seller's failure to cure title defects.
12. REAL ESTATE COMMISSIONS. Each party represents to the other
that it has not incurred and will not incur any liability for brokerage fees or
commissions as a result of this transaction except as expressly provided
herein, and agrees to hold the other party harmless from and against all such
claims for fees or commissions purported to be due insofar as any such claim is
based upon any conversation or contract with the indemnifying party. Seller
acknowledges that Xxxxxxxx Associates, Inc. ("Xxxxxxxx"), and Xxxxxx X. Xxxxx
("Xxxxx") and Company ("Brokers") brought about this sale, and Seller shall pay
the entirety of the real estate sale commission owed to Brokers in an amount
equal to six per cent (6%) of the Purchase Price [to be divided equally between
the Brokers], to be paid in cash or check at the Closing of this transaction,
and Seller shall hold Purchaser harmless and indemnified from such commission.
Said commission shall become due and payable only in the event this transaction
Closes. Purchaser represents that no real estate broker except Xxxxx has shown
the Premises to Purchaser, its officers, employees, agents and representatives,
or any of them, and that it has dealt with no other broker except Xxxxxxxx in
connection with this transaction. Purchaser has disclosed that it had initial
contact with Xxxxx & Xxxxx pursuant to signage that was located on the
property.
13. SELLER'S REPRESENTATIONS AND COVENANTS. Seller and Seller's
Beneficiary represent and covenant to Purchaser that to the best of their
actual knowledge:
13.01. Seller is the sole owner of fee simple title to the Premises
and has full and unlimited power and authority to enter into this Agreement,
bind the Premises to the commitments made hereunder, and convey or cause the
conveyance of the Premises to Purchaser, or Purchaser's nominee.
13.02. This Agreement shall not constitute or cause a default or
breach of any agreement or undertaking of Seller heretofore entered into
concerning the Premises.
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13.03. Seller has no actual knowledge and has received no actual
notice of any claim, demand, damage, action, or cause of action of any person,
entity, or governmental agency or instrumentality affecting the Premises not
otherwise expressly provided for herein.
13.04. The Premises is located within the corporate boundaries of
the City, and is not subject to or bound by any annexation agreement,
subdivision improvement agreement, special service area agreement or ordinance,
recapture or reimbursement agreement for any public or private utilities, or
any other form of contractual commitment, except as expressly set forth in
Exhibit "D" attached hereto.
13.05. Except as otherwise expressly set forth in Exhibit "D"
attached hereto, the Premises is not subject to any lease agreement, no parties
are in possession of the Premises other than Seller, and sole and exclusive
possession of the Premises shall be delivered to Purchaser at Closing.
13.06. Seller has no actual knowledge of and has received no actual
notice concerning any existing or proposed special assessments, special taxing
districts, or utility or governmental service moratoriums effecting the
Premises. Seller makes no representations as to when City sanitary sewer and
water will be available at the Premises.
13.07. Seller has no actual knowledge of any substandard load bearing
soil and has received no actual notice from any governmental authority of any
toxic or hazardous waste, substance or material (as defined by any applicable
federal, state or local law, ordinance or regulation) contained or located
within the Premises, and Seller is not in possession of, nor has any actual
knowledge of, any ground water study, soil test, environmental audit, or other
soil information concerning the Premises which Seller has not delivered to
Purchaser upon the execution of this Agreement and listed in Exhibit "D"
attached hereto. Seller and its beneficiaries have received no actual notice
from any governmental entity that the Premises have been, or are being, owned,
leased, used and operated otherwise than in compliance with all applicable
federal, state and local environmental laws as enacted, amended or
reauthorized. Neither Seller nor any of its trust beneficiaries, nor any
member of their families, have ever lived upon or farmed the Premises.
Accordingly, Seller makes no representations as to the non-existence of any
underground storage tanks located on the Premises.
13.08. No portion of the Premises has been condemned or otherwise
taken by any public authority, and Seller has no actual knowledge that any such
condemnation is threatened or contemplated.
13.09. Seller has no actual knowledge of and has received no actual
notice from any governmental body claiming any violation by the Premises of any
law, ordinance, code or regulation.
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13.10. Between the date of this Agreement and the Closing, Seller
shall:
(i) not knowingly violate any laws, ordinances, regulations, and
restrictions affecting the Premises and its use;
(ii) not create, incur, or suffer to exist any mortgage, lien,
pledge, or other encumbrance in any way affecting the Premises;
(iii) not commit any waste or nuisance upon the Premises; and
(iv) not, without first obtaining the written consent of Purchaser,
enter into any contracts or agreements pertaining to the
Premises which can not be terminated at Closing without cost
to Purchaser.
14. PURCHASER'S REPRESENTATIONS AND COVENANTS. Purchaser
represents and covenants to Seller that:
14.01. To the best of Purchaser's knowledge, no consent by anyone,
other than Seller, to the transaction contemplated by this Agreement is
required, and Purchaser has the power and authority to execute and deliver this
Agreement and all other documents to be executed by it in connection herewith
and to perform the obligations hereunder and under such other documents.
14.02. The execution of this Agreement by Purchaser is the duly
authorized and legally binding action of Purchaser, and upon execution hereof,
Purchaser shall be bound by and subject to the terms and provisions of this
Agreement.
15. SURVIVAL OF REPRESENTATIONS AND COVENANTS. The
representations and covenants of the parties contained in this Agreement,
including, without limitation, the provisions of Sections 13 and 14 hereof,
shall be deemed to be continuing representations and covenants up to and
including the Closing Date, with the same force and effect as though such
representations and covenants had been made on and as of Closing. The
representations and covenants of the parties shall further survive the Closing
hereunder, shall not merge with any deed of conveyance, and shall be continuing
representations and covenants of the parties hereto for a period of three (3)
years following the Closing Date; provided, however, that the three-year time
limitation set forth above shall not apply in the case of fraud or an
intentional misrepresentation. Each party hereby agrees to reimburse and
indemnify, defend and hold harmless the other party and its beneficiaries, and
their respective successors and assigns, from and against all liability,
damages and losses whatsoever, including reasonable attorneys' fees, resulting
from any misrepresentation or breach of covenant made by the indemnifying party
in this Agreement or in any document, certificate or exhibit given or delivered
to the other party pursuant to this Agreement.
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16. EMINENT DOMAIN/CONDEMNATION. In the event that at any time
prior to Closing proceedings are instituted or threatened for the condemnation
of any part of the Premises by any governmental body or authority having the
power of eminent domain, Seller agrees immediately to notify Purchaser of such
action or threatened action [provided Seller has actual notice of any such
threatened condemnation action] and Purchaser, at Purchaser's election, may (1)
participate in such condemnation proceedings negotiations or, (2) at the time
of such notice or at any time during the pendency of such condemnation
proceeding, terminate this Agreement , in which event the Deposit shall be
immediately repaid to Purchaser, anything contained to the contrary in this
Agreement notwithstanding. In the event that Purchaser does not elect to
terminate this Agreement, any monies that are paid as a result of such
condemnation proceedings either prior to or after the Closing shall be paid to
Purchaser on or after the Closing Date, and Seller shall have no claim with
respect thereto, provided this transaction Closes.
17. ILLINOIS INCOME TAX WITHHOLDING. At least fifteen (15) days
prior to Closing, Seller shall deliver to Purchaser evidence that the sale of
the Premises to Purchaser hereunder is not subject to, and does not subject
Purchaser to liability under Section 902(d) of the Illinois Income Tax Act or
Section 444(j) of the Retailers Occupation Tax Act, if applicable (herein
referred to as the "Acts") and that at least thirty (30) days prior to the
Closing, Seller shall have notified the Illinois Department of Revenue (herein
referred to as the "Department") of the intended sale and requested the
Department to make a determination as to whether the Seller has an assessed,
but unpaid, amount of tax, penalties, or interest under the Acts. Seller
agrees that, in the absence of a release letter from the Department, Purchaser
may, at the Closing, deduct and withhold from the proceeds that are due Seller
the amount necessary to comply with the withholding requirements imposed by the
Act. Purchaser shall deposit the amount so withheld in a separate escrow with
the Title Company pursuant to the terms and conditions acceptable to Seller and
Purchaser, but in any event, complying with the Act.
18. NON-FOREIGN CERTIFICATE. Seller shall provide Purchaser, on
or before the Closing Date, with a non-foreign certificate sufficient in form
and substance to relieve Purchaser of any and all withholding obligations under
federal law, which certificate shall be reasonably satisfactory to Purchaser
and the Title Company. In the event that Seller does not furnish Purchaser
with said certificate or if Purchaser has reason to believe that said
certificate would be wholly or partially false if given and so notifies Seller,
in writing, on or before the Closing Date, Purchaser shall be entitled to
withhold up to ten (10%) percent of the Purchase Price in an escrow account to
be held by Title Company until such time as Seller furnishes Purchaser with a
qualifying statement from the Internal Revenue Service sufficient to relieve
Purchaser of any and all withholding obligations under federal law, or until
Purchaser is required to deliver said funds to the Internal Revenue Service,
whichever first occurs.
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19. PERMIT FEES AND MUNICIPAL CONTRIBUTIONS. Purchaser shall be
responsible for, and shall pay, all building and occupancy permit fees and
connection and extension fees payable to the City as a part of Purchaser's
improvement of the Premises.
20. IRPTA COMPLIANCE. Purchaser understands that Seller has never
farmed the Subject Property and has no idea as to whether or not any "hazardous
substances" are, or ever have been, on or under the surface of the Subject
Property. Purchaser shall, at its sole cost and expense, be entitled to have
an environmental professional who meets the minimum qualifications of 415 ILCS
5/22.2(j)(6)(E)(iii) perform such environmental audits as Purchaser deems
advisable. Nevertheless, Seller presents to the best of Seller's actual
knowledge, the Subject Property (i) does not contain any facilities which are
subject to reporting under Section 312 of the Federal Emergency Planning and
Community Right-to-Know Act of 1986 (and federal regulations promulgated
thereunder), and (ii) does not have located upon it any underground storage
tanks which require notification under the Federal Solid Waste Disposal Act
(either of which being hereinafter referred to as an "IRPTA Condition"). Based
on the Seller's actual knowledge as aforesaid, the Subject Property does not
fall within the definition of "Real Property" set forth in the Illinois
Responsible Property Transfer Act of 1988, as amended, 765 ILCS 90/1, et seq.
(hereinafter referred to as "IRPTA") and Seller shall not provide any
Disclosure Document as required by IRPTA. If, as a result of any environmental
audit, inspection or tests conducted by Purchaser or its agents on the Subject
Property, Purchaser determines that any IRPTA Condition is present, Purchaser
shall promptly (but in no event later than ten (10) days prior to the Closing
hereunder) notify Seller of same and provide to Seller the portions of such
test reports and such other information as may be relevant to the presence,
nature and extent of such IRPTA Condition. Thereafter, if Seller concurs with
Purchaser's assertion that an IRPTA Condition exists, then:
a. Seller shall deliver to Purchaser on or before the
Closing a Disclosure Document as required by IRPTA (the date of delivery of
same being hereinafter called the "Disclosure Document Delivery Date"); and
b. Purchaser shall, on or before the Closing, notify
Seller as to whether Purchaser intends to terminate this Contract pursuant to
the provisions of IRPTA. If Purchaser makes such election to terminate, then
the Deposit shall be refunded to Purchaser, subject to Purchaser's compliance
with the requirements of Section 27 with respect to mechanics' liens, anything
to the contrary in this Agreement. If Purchaser does not elect to terminate
this Contract, then:
(1) Purchaser shall be deemed to have elected to take the
Subject Property subject to the matters set forth on said Disclosure
Document; and
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(2) Closing hereunder shall occur on the date specified
in paragraph 7.01; and
(3) At the closing, the parties shall cause the title
insurer to record the Disclosure Document and to file an additional
copy thereof with the Illinois Environmental Protection Agency as
required by IRPTA, all at Seller's expense.
21. DIVISION OF SELLERS' TRACT. The parties intend that the
Premises shall be divided from the Seller's Remainder Tract by the deed of
conveyance to be delivered at Closing, utilizing a metes and bounds description
established by the surveyor on the survey to be provided under Section 11 of
this Agreement. In the event the use of a metes and bounds description is not
permitted by any governmental authority with jurisdiction thereover, Purchaser
may [and Seller shall give Purchaser a credit in the amount of the reasonable
cost thereof at closing] (i) cause to be prepared a final plat of subdivision
subdividing the Premises from Seller's Remainder Tract, (ii) obtain the City's
approval and execution of said final plat, and (iii) obtain all other necessary
approvals and signatures for said final plat and record the same on or before
closing.
22. SIZE AND CONFIGURATION OF PREMISES. Seller understands and
agrees that Purchaser has not yet determined the exact size and configuration
of the Premises required for Purchaser's intended use thereof. Purchaser shall
have the right to make such determination during the Due Diligence Contingency
Period, as defined in Exhibit "C" attached hereto, based upon site data and
engineering information obtained by Purchaser during said time period.
Purchaser estimates that approximately twenty five (25) acres will be required
for Purchaser's intended use in general conformity with the configuration
identified in Exhibit "A" attached hereto. However, Purchaser may increase or
decrease the square foot area of land contained within the Premises up to
twenty percent (20%) and adjust the configuration thereof ("Premises
Adjustment") by giving Seller written notice of the same ("Premises Adjustment
Notice") prior to the expiration of the Due Diligence Contingency Period,
provided that any such Premises Adjustment (i) shall establish a westerly
boundary line for the Premises which is essentially straight and on a course
parallel with the easterly boundary line, and (ii) shall not create any gaps
between the northerly boundary of the Premises and the southerly right-of-way
line of Xxxxxxx Road, except for the out parcel located adjacent to the
northeasterly portion of the Premises which is not owned by Seller ("Out
Parcel"). The location of the Xxxxxxx Road right-of-way shall be established
in compliance with the Plat of Dedication prepared by Xxxxx-Xxxxxxx & Co. and
dated by Xxxxx X. Xxxxxxxxxx, as surveyor, July 16, 1996, a copy of which is
attached hereto as Exhibit "E" ("Plat of Dedication"). The Premises Adjustment
shall be identified in the survey prepared by Purchaser pursuant to Section 23
hereof and a copy of said survey shall accompany the Premises Adjustment
Notice. Any Premises Adjustment moving the
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westerly boundary of the Premises to the west shall be configured so as to
square off the adjacent portions of Seller's Remainder Tract in a manner which
avoids unusable appendages of land.
23. XXXXXXX ROAD.
23.01. AVERILL ROAD EXTENSION: Provided this transaction closes,
Purchaser agrees to design and construct Xxxxxxx Road from the west property
line of Seller's Tract to, and including, its intersection with Xxxxx Road
within the right-of-way established therefor pursuant to the Plat of Dedication
("Xxxxxxx Road Extension"). Seller shall, at Seller's expense, cause the Plat
of Dedication to be recorded with the Xxxx County Recorder's office on or
before the Closing Date. The design and specifications for the improvements to
be constructed as the Xxxxxxx Road Extension shall be as required and approved
by the City ("Xxxxxxx Road Improvements").
23.02. DETERMINATION OF COST: Seller's and Purchaser's obligation
to close this transaction shall be conditioned upon Xxxxx-Xxxxxxx & Co.
("Seller's Engineer") determining, through a properly prepared engineer's
estimate of probable costs, utilizing generally accepted standards in the civil
engineering profession ("Seller's Xxxxxxx Cost Estimate"), that the estimated
cost of the Xxxxxxx Road Extension, consisting of (i) the preparation of final
engineering plans, (ii) construction supervision, (iii) construction of all
improvements, and (iv) repair and maintenance during the one year maintenance
guarantee following the City's acceptance of said road (collectively "Xxxxxxx
Road Costs") will not exceed $900,000.00 ("Averill Cost Cap"). Seller shall
cause the Seller's Averill Cost Estimate to be prepared and delivered to
Purchaser and Seller within 14 days following Purchaser's delivery of the
Xxxxxxx Studies, as hereinafter defined, to Seller's Engineer ("Averill
Estimate Due Date"). In the event the Seller's Averill Cost Estimate estimates
that the Xxxxxxx Road Costs will exceed the Averill Cost Cap, either Seller or
Purchaser may terminate this Agreement by giving written notice thereof
("Xxxxxxx Termination Notice") to the other party within ten (10) business days
following the Xxxxxxx Estimate Due Date. In such event, this Agreement shall
become null and void and the Deposit shall be refunded to Purchaser. In the
event the Seller's Xxxxxxx Cost Estimate does not estimate a total cost
exceeding the Xxxxxxx Cost Cap, or in the event neither Purchaser or Seller
deliver an Xxxxxxx Termination Notice in a timely manner, the aforesaid
condition precedent shall be deemed irrevocably waived and, provided this
transaction Closes, the Xxxxxxx Road Costs actually incurred in completing the
Xxxxxxx Road Extension shall be shared by the parties in accordance with the
provisions of Exhibit "F" attached hereto. The portion of the Xxxxxxx Road
Costs allocated to Seller in Exhibit "F" is referred to herein as "Seller's
Xxxxxxx Road Contribution". The portion of the Averill Road Costs allocated to
Purchaser in Exhibit "F" is referred to herein as "Purchaser's Xxxxxxx Road
Contribution".
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23.03. AVERILL STUDIES: To facilitate the preparation of
Seller's Averill Cost Estimate, within thirty (30) days following the date of
this Agreement Purchaser shall, at Purchaser's expense, obtain and deliver to
Seller and Seller's Engineer (i) soil boring tests every 300 feet along the
proposed centerline of the Xxxxxxx Road Extension ("Soil Tests"), and (ii)
preliminary engineering plans for the Xxxxxxx Road Extension ("Preliminary
Averill Plans") prepared by Cemcon, Ltd. ("Purchaser's Engineer"). The Soil
Tests and Preliminary Averill Plans are collectively referred to herein as the
"Xxxxxxx Studies". In the event this transaction Closes, the cost incurred by
Purchaser for the Xxxxxxx Studies, not to exceed $12,000.00 ("Xxxxxxx Studies
Costs"), shall be credited to Purchaser agaianst the Purchase Price at Closing
("Xxxxxxx Studies Closing Credit"). In the event this Agreement is terminated
for any reason other than Purchaser's default, Seller shall reimburse Purchaser
for the Xxxxxxx Studies Costs (not to exceed $12,000.00) within five (5)
business days following such termination.
23.04. GOVERNMENT FUNDING: In the event the City or any other
governmental body or agency obtains grants for, or otherwise provides funding
for all or any portion of the Xxxxxxx Road Costs (excluding any portion of such
funding collected from property owners within the Seller's Tract benefitted by
Xxxxxxx Road through recapture ordinance, special assessment or other
extraordinary funding method), each parties aggregate Xxxxxxx Road Contribution
shall be reduced by a percentage amount equal to the percentage of the Xxxxxxx
Road Costs paid by the City or other governmental body or agency. For example,
if such governmental funding pays fifty percent (50%) of the Xxxxxxx Road
Costs, each parties aggregate Averill Road Contribution shall be reduced by
fifty percent. The amount of any goverment payment of the Xxxxxxx Road Costs
funded through recapture ordinance, special assessment or other extraordinary
funding method applied to Seller's Tract shall constitute a credit toward each
parties Xxxxxxx Road Contribution in the amount to be thereby collected from
each party, excluding interest and administrative costs. In no event, however,
shall governmental funding through the use of recapture ordinance, special
assessment or other extraordinary method cause a parties Xxxxxxx Road
Contribution to be increased beyond the amount provided in Exhibit "F" attached
to this Agreement.
23.05. POSTING OF SECURITY: Provided this transaction Closes,
Purchaser shall be responsible for posting all letters of credit or other
security devices required by the City pertaining to the Xxxxxxx Road
Improvements (including the security for the one year maintenance guarantee
following City acceptance of the Xxxxxxx Road Improvements), to guarantee said
improvements will be completed and fully paid for, free and clear of Mechanic's
Lien claims against the Premises and Seller's Remiander Tract. The cost of all
such letters of credit and other security devices incurred by Purchaser shall
be included in the Xxxxxxx Road Costs, and shared by the Parties pursuant to
Exhibit "F" attached hereto.
23.06. CREDIT AT CLOSING/POST CLOSING ADJUSTMENT: At Closing
Purchaser shall receive a credit against the Purchase Price
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in an amount equal to the estimated Seller's Xxxxxxx Road Share, as calculated
by applying (i) one hundred ten percent (110%) of the average total costs
estimated in the Seller's Xxxxxxx Cost Estimate and the estimate of the Xxxxxxx
Road Costs prepared by Purchaser's Engineer,to (ii) the share allocations set
forth in Exhibit "F" attached hereto ("Xxxxxxx Closing Credit"). Purchaser
shall pay the Xxxxxxx Road Costs in a timely manner as they became due and
owing, utilizing the Xxxxxxx Closing Credit and Purchaser's Xxxxxxx Road
Contribution. If at anytime during the construction or maintenance guarantee
period of the Xxxxxxx Road Extension, the Averill Closing Credit becomes
insufficient to cover Seller's Xxxxxxx Road Contribution, Purchaser shall
notify Seller thereof, with written verification of such deficiency attached
("Deficiency Notice"), and Seller shall thereafter promptly pay to Purchaser
such additional amounts of Seller's Xxxxxxx Road Contribution from time to time
required to provide for the timely payment of bills for the Xxxxxxx Road Costs.
In the event Purchaser is required to advance any portion of Seller's Xxxxxxx
Road Contibution beyond the amount of the Xxxxxxx Closing Credit to make timely
payment of an Xxxxxxx Road Cost, all such advanced funds shall accrue interest
at the rate of fifteen percent (15%) per annum, compounded monthly, from the
date of payment by Purchaser to the date of reimbursement by Seller, and shall
constitute a lien against that portion of Seller's Remainder Tract then owned
by Seller upon the filing of a notice of lien by Purchaser against such
property. In the event the final Seller's Xxxxxxx Road Contribution,
calculated using the actual Averill Road Costs following (i) completion of the
Xxxxxxx Road Improvements, (ii) acceptance thereof by the City and (iii)
release by the City of all security posted by the Purchaser for Xxxxxxx Road
(items (i), (ii) and (iii) collectively the "Completion Events"), is less than
the Xxxxxxx Closing Credit, Purchaser shall, within twenty (20) business days
following the occurance of all of the Completion Events, pay the entirety of
the excess of the Xxxxxxx Closing Credit to Seller.
24. DEFAULT/REMEDY.
24.01. DEFAULT BY PURCHASER: In the event of a default by Purchaser
of any of Purchaser's obligations under this Agreement, and the failure of
Purchaser to cure such default within fifteen (15) days after Seller notifies
Purchaser in writing of such default (the "Purchaser Cure Period"), Seller
shall be entitled to seek all remedies available to it in equity and at law,
including the specific performance of Purchaser's obligations hereunder.
24.02. DEFAULT BY SELLER: In the event of a default by Seller of any
of Seller's obligations under this Agreement, and the failure of Seller To cure
such default within fifteen (15) days after Purchaser notifies Seller in
writing of such default (the "Seller Cure Period") Purchaser may, at its
option, pursue any one of the following remedies either separately or
cumulatively:
(a) to terminate this Agreement, in which event neither party
shall have any further rights or obligations hereunder and the
Deposit shall be paid to Purchaser;
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(b) to enforce specific performance of Seller's obligations
hereunder, including specifically the conveyance of the
Premises in the condition required hereby; and/or
(c) to pursue any other legal or equitable remedies available to
Purchaser; provided that in no event shall Purchaser be
entitled to recover damages in excess of $10,000 for Seller's
failure to clear title or cure survey defects or remedy
environmental problems.
24.03. All costs and expenses, including reasonable attorney's fees,
incurred by a non-defaulting party as a result of the default of another party
shall be paid by the defaulting party.
25. MISCELLANEOUS.
25.01. NOTICES: Any notice required or desired to be given under
this Agreement shall be in writing and shall be deemed to have been given when
delivered personally, on the date of confirmed facsimile transmission, or on
the date deposited in a United States Post Office, registered or certified
mail, postage prepaid, return receipt requested, and addressed as follows:
If to Seller: Itasca Bank & Trust Co.
000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxx, Xxxxxxxx, 00000
Attention: Xxxx Xxxxx
Phone: (708) - 000-0000
Fax: (708) - 000-0000
With a copy to: Mrs. Xxxxx Xxxxxxx
38 W 000 Xxxxxx Xxxx
Xx. Xxxxxxx, Xxxxxxxx, 00000
Phone: (708) - 000-0000
Fax: (708) - 000-0000
With a copy to: Law Offices of Xxxxx X. Xxxx & Associates
Attention: Xxxxxx X. Xxxx
000 Xxxx Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxx, 00000
Phone: (708) - 000-0000
Fax: (708) - 000-0000
If to Purchaser: Teltrend, Inc.
000 Xxxxxxx
Xx. Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Phone: (708) - 000-0000
Fax: (708) - 000-0000
With a copy to: Rathje, Woodward, Xxxx & Xxxx
000 X. Xxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxx 00000
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Attention: Xxxxx X. Xxxxxxxxx III
Phone: (708) - 000-0000
Fax: (708) - 000-0000
or to such other address as either party may from time to time specify in
writing to the other in accordance with the terms hereof.
25.02. ASSIGNMENT: Neither Seller nor Purchaser shall have the right
to assign this Agreement or any right or interest hereunder without the prior
written consent of the other party. Notwithstanding the foregoing, Purchaser
shall have the right and authority to assign this Agreement, and all rights
[but not Purchaser's duties without Seller's express written consent] of
Purchaser hereunder, to an entity "affiliated" with Purchaser or owned by
Purchaser, in whole or in part, without further consent by Seller.
25.03. SUCCESSORS AND ASSIGNS: This Agreement shall be binding
upon, and inure to the benefit of the parties hereto and their respective
grantees, successors and assigns.
25.04. AMENDMENTS: Except as otherwise provided herein, this
Agreement may be amended or modified by, and only by, a written instrument duly
authorized and executed by Seller and Purchaser.
25.05. GOVERNING LAW AND INTERPRETATION: This Agreement shall be
governed by the laws of the State of Illinois. The terms "hereby," "hereof,"
"hereto," "herein," "hereunder," and any similar terms shall refer to this
Agreement, and the term "hereafter" shall mean after, and the term "heretofore"
shall mean before, the date of this Agreement. Words of the masculine,
feminine, or neuter gender shall mean and include the correlative words of
other genders, and the words importing the singular number shall mean and
include the plural number and vice versa. Words importing persons shall
include firms, associations, partnerships (including limited partnerships),
trusts, corporations, and other legal entities, including public bodies, as
well as natural persons. The terms "include," "including," and similar terms
shall be construed as if followed by the phrase "without being limited to."
25.06. SECTION HEADINGS: The section headings inserted in this
Agreement are for convenience only and are not intended to, and shall not be
construed to, limit, enlarge or affect the scope or intent of this Agreement
nor the meaning of any provision hereof.
25.07. COUNTERPARTS: This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
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25.08. MERGER OF PRIOR AGREEMENTS: This Agreement supersedes all
prior agreements and understandings, written and oral, between the parties
hereto relating to the subject matter hereof.
25.09. EFFECTIVE DATE: The effective date of this Agreement shall be
the date first above set forth on the first page of this Agreement.
25.10. TIME OF ESSENCE: Time is of the essence of this Agreement.
25.11. RECITALS AND EXHIBITS: The recitals set forth at the
beginning of this Agreement and the exhibits attached hereto are hereby
incorporated into this Agreement and made a part of the substance hereof.
25.12. EXPIRATION OF OFFER: This Agreement when executed by
Purchaser shall constitute an offer to purchase the Premises by Purchaser,
which offer shall be effective for a period of twenty-one (21) days following
the date of delivery hereof to Seller. In the event Seller fails to execute
and deliver this Agreement to Purchaser within said twenty-one day period, this
offer to purchase shall automatically expire and be of no force or effect,
regardless of Seller's execution hereof following said time period, unless this
Agreement is re-executed and dated by Purchaser verifying Purchaser's
acceptance thereof.
26. TAX FREE EXCHANGE: Purchaser agrees to use all reasonable
efforts to cooperate with Seller in trading the Premises pursuant to Section
1031 of the Internal Revenue Code for other real estate to be designated by
Seller prior to or at the Closing Date; provided, however, that in no event
shall Purchaser incur any additional out of pocket expenses, including, but not
limited to, attorney's fees, brokers' commissions, title charges, recording
charges, and escrow fees, which are not reimbursed at the Closing. In
particular, Purchaser shall confirm the Closing Date by written notice at least
90 days prior thereto so that Seller can identify the trade property, and, if
requested by Seller, to sign an option contract, reasonably approved by
Purchaser's attorney, for the purchase of the trade property. In no event
shall Purchaser be obligated to pay any option money or take legal title to the
trade property. The Seller shall be solely responsible for the exchange
transaction complying with the requirements of IRC Section 1031. This
transaction is not conditioned upon the effectuation of a tax free exchange.
27. MECHANICS' LIEN CLAIMS: In no event shall the Deposit or any
Xxxxxxx Money be refunded to Purchaser until it has delivered to CTI such sworn
statements, mechanics' lien waivers and other documents as CTI may require to
insure Sellers Title to the Seller's Tract, including the Premises and Seller's
Remainder Tract, free and clear of mechanics' lien claims arising out of the
activities of Purchaser and its surveyors, architects, planners, engineers,
soils consultants, any other consultants or experts
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retained by Purchaser, or any of them, on or with respect to Seller's Tract.
IN WITNESS WHEREOF, the parties hereto have placed their hands and
seals to this Agreement as of the date first above written.
PURCHASER: SELLER:
Teltrend, Inc., a Delaware Itasca Bank & Trust Co. as
corporation Trustee u/t/a dated 6/29/92
a/k/a Trust No. 11038
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxxx
--------------------------- ---------------------------
Title: V.P. Financial Title: Vice President and
Senior Trust Officer
Attest: /s/ Xxxxxx X. Xxxxxx Attest: /s/ A. Preb
--------------------------- ------------------------
Title: Administrative Assistant Title: Assistant Secretary
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SCHEDULE OF EXHIBITS
EXHIBIT "A": Depiction of Premises
EXHIBIT "B": Permitted Exceptions to Title
EXHIBIT "C": Performance Contingencies
EXHIBIT "D": Miscellaneous Disclosures
EXHIBIT "E": Xxxxxxx Road Plat of Dedication
EXHIBIT "F": Averill Road Cost Allocation
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EXHIBIT "A"
DEPICTION OF PREMISES*
A drawing showing the approximate location of the boundary lines of
the Premises is appended hereto as Exhibit A1, expressly incorporated herein by
this reference.
* The legal description of the Premises shall be inserted on
receipt of the survey as provided for under Sections 11 and 22
of this Agreement.
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EXHIBIT "B"
PERMITTED EXCEPTIONS
Matters set forth in Special Exceptions 3, 4 (which will be waived
upon delivery of the Trustee's Deed), 5, 7, 8 (which shall be limited to Xxxxx
and Xxxxxxx Roads), 9, 10, 12, 13, and 14 set forth in Chicago Title Insurance
Company's ("CTI") Commitment for Title Insurance No. 1410 000430830 Xxxx dated
May 20, 1996, and to the Exclusions from Coverage and Conditions and
Stipulations as contained in CTI's ALTA Owners 1992 Policies, and to the
Commitment Conditions and Stipulations incorporated by reference in that
Commitment.
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EXHIBIT "C"
PERFORMANCE CONTINGENCIES
The obligation of Purchaser to Close on the sale and purchase of the
Premises shall be conditioned upon the following Performance Contingencies:
A. ITEMIZATION OF PERFORMANCE CONTINGENCIES:
(1) Purchaser having obtained title documents, soil
tests, soil borings, percolation tests, environmental
audits, and other feasibility tests, engineering
studies,[ ] location studies, and market studies
showing that the permitted title exceptions, physical
aspects, location, access to public rights-of-way,
and the condition of the Premises are acceptable to
Purchaser and suitable for Purchaser's intended use
of the Premises and that the intended use is
economically feasible, in Purchaser's sole and
absolute discretion ("Purchaser's Due Diligence
Performance Contingency");
(2) Purchaser having obtained all necessary and
appropriate approvals and permits from the City for
zoning, final planned unit development plans and
final engineering for the Premises; approval for
perimeter road curb cuts from the City and City of
West Chicago; and the enforceable commitment of the
City that it will, at its expense, install, not later
than the three (3) months following the Closing Date
the electrical system, sanitary sewer lines, and
water mains through [ ] the Seller's Tract
("Utilities") so as to bring the utilities to the
property line of the Premises in operating condition
with sufficient capacity to service the Premises when
developed for Purchaser's intended use ("Governmental
Approvals") as reasonably necessary to effectuate
Purchaser's intended use of the Premises
("Governmental Approval Performance Contingency").
Seller shall cooperate with Purchaser in a prompt and
timely manner with respect to Purchaser's efforts to
obtain the Governmental Approvals, and Seller shall
execute all necessary and appropriate petitions,
authorizations and other documents associated
therewith; provided, however, that in no event shall
Seller be required to execute any petition,
authorization or other document which might, in the
reasonable opinion of Seller's tax counsel, result in
disqualification under Section 1031 of the Internal
Revenue Code. Seller shall appear at
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meetings and public hearings before the Corporate
Authorities of the City to give testimony in support
of Purchaser's applications if requested by
Purchaser. All costs arising from or pertaining to
the Governmental Approvals shall be paid by
Purchaser. Purchaser shall exercise due diligence
and good faith in seeking to obtain the Governmental
Approvals prior to the expiration of the Governmental
Approval Contingency Period.
B. CONTINGENCY PERIODS:
(1) Purchaser shall have ninety (90) days following the
date of this Agreement to satisfy the Due Diligence
Performance Contingency ("Purchaser's Due Diligence
Contingency Period").
(2) Purchaser shall have one hundred twenty (120) days
following the expiration of the Purchaser's Due
Diligence Contingency Period to satisfy the
Governmental Approval Performance Contingency
("Governmental Approval Contingency Period"). The
Due Diligence Contingency Period and Governmental
Approval Contingency Period are sometimes referred to
herein collectively as the "Contingency Periods".
C. PURCHASER'S INTENDED USE:
For purposes of this Agreement, all references to Purchaser's intended
use shall mean the use of the Premises for the construction, use and
maintenance of not less than 350,000 square feet of manufacturing, office and
warehouse space, with appropriate on-site parking, for the relocation of
Purchaser's existing operations.
D. ENGINEERING AND OTHER FEASIBILITY TESTS AND RIGHT OF ENTRY:
From and after the date of this Agreement, and at all times prior to
the expiration of the Contingency Periods, Purchaser, its representatives, and
agents shall have the right to enter upon the Premises (i) to examine, inspect,
and make tests as to the feasibility and adaptability of the Premises for
Purchaser's intended use thereof, such tests to include, without limitation,
test borings, soil tests, topographical studies, engineering analysis and
environmental audits; and (ii) for the collection of all information that is
necessary or appropriate in connection with the foregoing or for Purchaser's
intended use of the Premises (all of the foregoing examinations, inspections,
studies, and tests being hereinafter referred to as the "Studies"). All such
Studies are to be made at Purchaser's expense. Purchaser shall repair, to the
extent reasonably practicable, any damage caused to the
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Premises as a result of such Studies, and Purchaser shall indemnify, save, hold
harmless, and defend Seller from any claim of loss or damage made by any third
party arising from the entry onto the Premises by Purchaser, its
representatives, or agents. Purchaser shall not cause or allow any lien claim
to be filed against the Premises as a result of said Studies, and shall remove
any such lien claim so filed within ten (10) days following its filing of
record. Purchaser shall at all times during the Contingency Periods carry
comprehensive general liability insurance with combined single limit coverage
of not less than $2,000,000.00, naming Seller as an additional insured, and
shall deliver to Seller a certificate of insurance verifying the existence of
such coverage prior to entering upon the Premises.
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EXHIBIT "D"
MISCELLANEOUS DISCLOSURES
To be completed by Seller prior to execution. If no additional
disclosures or document identifications are required, state "None". Absent any
items set forth herein by Seller following Seller's execution of this
Agreement, the inclusion of the word "None" shall be implied. If additional
disclosures are listed, this Agreement shall not be deemed effective until this
Exhibit "D" is reviewed by Purchaser and each disclosure set forth herein
approved by Purchaser, as evidenced by Purchaser's initials opposite each
disclosure.
1. Annexation Agreement between Seller and the City of Geneva, Illinois,
recorded as Document No. 94K066055, in Xxxx County, Illinois.
2. Phase One Environmental Audit prepared by Xxxxxx Xxxxx & Associates.
3. Farm Lease between Seller and Xxxxxx Brothers.
4.
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EXHIBIT "E"
XXXXXXX ROAD PLAT OF DEDICATION
(See following sheet)
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EXHIBIT "F"
XXXXXXX ROAD COST ALLOCATION
Cumulative Dollar Expended Seller's Share Purchaser's Share
-------------------------- -------------- -----------------
1. $ 0 through $100,000 0% 100%
2. $101,000 through $700,000 100% 0%
3. $700,001 through $800,000 0% 100%
4. $800,001 through $900,000 100% 0%
5. over $900,000 50% 50%
