FOURTH AMENDMENT TO CONSTRUCTION LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS BY AND BETWEEN TEXTURA CORPORATION AND FIRST MIDWEST BANK
Exhibit 10.29
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This instrument prepared by and when recorded return to: |
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Xxxx X. X’Xxxxx |
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Xxxxxxx and Xxxxxx LLP |
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Xxxxxxx, Xxxxxxxx 00000 |
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SPACE ABOVE THIS LINE RESERVED FOR RECORDER’S USE ONLY | ||
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FOURTH AMENDMENT TO
CONSTRUCTION LOAN AGREEMENT
AND THE OTHER LOAN DOCUMENTS
BY AND BETWEEN
TEXTURA CORPORATION
AND
FIRST MIDWEST BANK
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0000 Xxxx Xxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
PIN: 00-00-000-000
00-00-000-000
FOURTH AMENDMENT TO
CONSTRUCTION LOAN AGREEMENT
AND THE OTHER LOAN DOCUMENTS
This FOURTH AMENDMENT TO CONSTRUCTION LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS (this “Amendment”) is dated and effective as of September 10, 2013 (the “Effective Date”), between Textura Corporation, a Delaware corporation (the “Borrower”) and First Midwest Bank (the “Lender”).
A. The Borrower and Lender have entered into that certain (i) Construction Loan Agreement dated August 14, 2007, as amended (the “Loan Agreement”) and (ii) Construction Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture Filing dated as of August 14, 2007, as amended (the “Mortgage”), which such Mortgage was recorded in the Recorder of Deeds of Xxxx County, Illinois on August 17, 2007, as Document Number 0722733126, as modified by that certain Modification of Loan Documents dated as of August 14, 2009 and recorded with the Recorder of Deeds of Xxxx County, Illinois on August 20, 2009, as Document Number 092323306, as modified by that certain Second Modification of Loan Documents dated as of August 14, 2011 and recorded with the Recorder of Deeds of Xxxx County, Illinois on September 28, 2011 as Document Number 1127140037, as modified by that certain Third Modification of Construction Loan Agreement and the Other Loan Documents and Waiver effective as of May 17, 2013 and recorded with the Recorder of Deeds of Xxxx County, Illinois on May 30, 2013 as Document Number 1315016076, and which encumbers the property described on Exhibit A attached hereto; and
B. The Borrower has asked the Lender to make certain amendments to the Loan Agreement and the Mortgage, and the Lender is willing to do so on the terms and conditions set forth in this Amendment.
ARTICLE I
DEFINITIONS
Section 1.1. Use of Defined Terms. Unless otherwise defined or the context otherwise requires, terms for which meanings are provided in the Loan Agreement shall have such meanings when used in this Amendment.
ARTICLE II
AMENDMENT
Section 2.1. Amendments to the Definitions. Section 1.1 of the Loan Agreement shall be and hereby is amended by inserting new defined terms therein in their appropriate alphabetical order, each such defined term to read in its entirety as follows:
Subsequent Public Offering means the first underwritten public offering of the Borrower’s common stock which occurs after the IPO.
Section 2.2. Amendment to Default Section. Section 11.1(o) of the Loan Agreement shall be amended and restated to read in its entirety as follows:
(o) The failure of the Borrower to maintain all of its operating accounts with the Lender; provided, that it shall not be deemed an Event of Default under this Section 11.1(o) if the Borrower maintains any or all proceeds of the IPO or the Subsequent Public Offering with financial institutions other than the Lender so long as (i) the Borrower continues to maintain the FMB Accounts with the Lender, (ii) the Borrower continues to direct its account debtors to remit funds into the FMB Accounts, (iii) no other Event of Default has occurred and is continuing, and (iv) the only funds of the Borrower (and not funds held by the Borrower as custodian) not maintained in the FMB Accounts are proceeds from the IPO and the Subsequent Public Offering.
Section 2.3. Amendment to Prohibited Transfers. Section 14(a)(ii) of the Mortgage shall be amended as follows:
i. By deleting the word “and” at the end of Section (E) thereof;
ii. By inserting the word “and” at the end of Section (F) thereof; and
iii. By inserting a new Section (G) which reads as follows:
(G) the Mortgagor’s common stock in connection with the Subsequent Public Offering so long as (I) no Event of Default has occurred and is continuing or would result from the Subsequent Public Offering, (II) the amount of shares of the Mortgagor’s common stock issued, sold, conveyed, assigned or transferred by the Mortgagor to the underwriters in connection with the Subsequent Public Offering shall not exceed 2,500,000 shares in the aggregate, and (III) the Subsequent Public Offering closes on or before September 30, 2013;
Section 2.4. Amendment to Debt Service Coverage Ratio. Section 29(e)(ii) of the Mortgage shall be amended and restated to read in its entirety as follows:
(ii) “Net Cash Flow From Operations” shall mean, for any period, the net profit or loss for such period adjusted for the effects of: (a) the amount by which the sum of inventories and operating receivables less payables as of the last day of such period exceeds (or is less than) the sum of inventories and operating receivables less payables as of the first day of such period; (b) non-cash items such as depreciation, provisions, deferred taxes, accrued income (expenses) not yet received (paid) in cash, unrealized foreign currency gains and losses, undistributed profits of associates and non-controlled interest; and (c) all other items for which the cash effects relate to investing or financing; provided, that the (x) Net Cash Flow From Operations shall be calculated without giving effect to the net cash proceeds received from the IPO or the Subsequent Public Offering and (y) Net Cash Flow From Operations shall be calculated without giving effect to any cash received by the Mortgagor from any financings or additional Capital Stock issuances only if the outstanding principal amount of the Loan exceeds 75% of the fair market value of the Land and the Improvements thereon.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. Loan Agreement. In order to induce the Lender to enter into this Amendment, the Borrower hereby reaffirms, as of the Effective Date (after giving effect to this Amendment), (i) that the representations and warranties contained in Section 2.1 of the Loan Agreement are true, accurate and complete as of the Effective Date, (ii) no Default or Event of Default has occurred and is continuing, and (iii) the principal outstanding amount of the Loan as of September 6, 2013, is $10,215,624 and such amount (together with interest and fees thereon) is justly and truly owing by the Borrower without defense, offset or counterclaim.
Section 3.2. Due Authorization, Non-Contravention, etc. The execution, delivery and performance by the Borrower of this Amendment are within the Borrower’s powers, have been duly authorized by all necessary corporate action, and do not:
(a) contravene or constitute a default under any provision of law or any judgment, injunction, order or decree binding upon the Borrower which would reasonably be expected to have a material adverse effect on properties, business, prospects, operations or condition (financial or otherwise) of the Borrower, or any provision of the Borrower’s organizational documents (e.g., charter, certificate or articles of incorporation and by-laws, certificate or articles of association and operating agreement, partnership agreement, or other similar organizational documents);
(b) contravene or constitute a default under any covenant, indenture or agreement of or affecting the Borrower or any of its property, in each case where such contravention or default, individually or in the aggregate, would reasonably be expected to have a material adverse effect on properties, business, prospects, operations or condition (financial or otherwise) of the Borrower; or
(c) result in the creation or imposition of any lien on any property of the Borrower other than the liens granted in favor of the Lender pursuant to the Loan Documents.
Section 3.3. Government Approval, Regulation, etc. No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body or other Person is required for the due execution, delivery or performance by the Borrower of this Amendment.
Section 3.4. Validity, etc. The Loan Agreement and the other Loan Documents, as amended hereby, constitute the legal, valid and binding obligation of the Borrower enforceable in accordance with their terms, except as enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance or similar laws affecting creditors’ rights generally and general principles of equity (regardless of whether the application of such principles is considered in a proceeding in equity or at law).
ARTICLE IV
EFFECTIVENESS
This Amendment shall be effective as of the Effective Date.
ARTICLE V
MISCELLANEOUS PROVISIONS
Section 5.1. Ratification of and References to the Loan Agreement. Except for the amendments and waivers expressly set forth herein, the Loan Agreement, the Promissory Note, and each other Loan Document is hereby ratified, approved and confirmed in each and every respect. The Borrower hereby acknowledges and agrees that (i) the liens created and provided for by the Loan Documents continue to secure, among other things, the obligations, liabilities and indebtedness of the Borrower and to the Lender under the Loan Agreement and the other Loan Documents, and (ii) the Loan Documents and the rights and remedies of the Lender thereunder, the obligations of the Borrower thereunder, and the liens created and provided for thereunder, remain in full force and effect and shall not be amended, modified, affected, impaired or discharged hereby. Nothing herein contained shall in any manner affect or impair the priority of the liens and security interests created and provided for by the Loan Documents as to the indebtedness which would be secured thereby prior to giving effect to this Amendment. Reference to this specific Amendment need not be made in the Loan Agreement, the Promissory Note, the Mortgage, or any other instrument or document executed in connection therewith, or in any certificate, letter or communication issued or made pursuant to or with respect to the Loan Agreement. The Borrower acknowledges that this Amendment is a Loan Document under the Loan Agreement.
Section 5.2. Headings. The various headings of this Amendment are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.
Section 5.3. Execution in Counterparts. This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single agreement.
Section 5.4. No Other Amendments. Except for the amendments expressly set forth above, the text of the Loan Agreement and the other Loan Documents shall remain unchanged and in full force and effect, and the Lender expressly reserve the right to require strict compliance with the terms of the Loan Agreement and the other Loan Documents. Nothing in this Amendment shall affect any waivers granted by the Lender to the Borrower prior to the Effective Date.
Section 5.5. Costs and Expenses. The Borrower agrees to pay on demand all costs and expenses of or incurred by the Lender in connection with the negotiation, preparation, execution and delivery of this Amendment, including the fees and expenses of counsel for the Lender.
Section 5.6. Governing Law. This Amendment shall be construed in accordance with and governed by the law of the State of Illinois.
Section 5.7. RELEASE. FOR VALUE RECEIVED, INCLUDING WITHOUT LIMITATION, THE AGREEMENTS AND WAIVERS OF THE LENDER IN THIS AMENDMENT, THE BORROWER HEREBY RELEASES THE LENDER, ITS CURRENT AND FORMER SHAREHOLDERS, DIRECTORS, OFFICERS, AGENTS, EMPLOYEES, ATTORNEYS, CONSULTANTS, AND PROFESSIONAL ADVISORS (COLLECTIVELY, THE “RELEASED PARTIES”) OF AND FROM ANY AND ALL DEMANDS, ACTIONS, CAUSES OF ACTION, SUITS, CONTROVERSIES, ACTS AND OMISSIONS, LIABILITIES, AND OTHER CLAIMS OF EVERY KIND OR NATURE WHATSOEVER, BOTH IN LAW AND IN EQUITY, KNOWN OR UNKNOWN, WHICH THE BORROWER HAS OR EVER HAD AGAINST THE RELEASED PARTIES (COLLECTIVELY, THE “CLAIMS”) FROM THE BEGINNING OF THE WORLD TO THE EFFECTIVE DATE, INCLUDING, WITHOUT LIMITATION, THOSE ARISING OUT OF THE EXISTING FINANCING ARRANGEMENTS BETWEEN THE BORROWER AND THE LENDER, BUT EXCLUDING CLAIMS AGAINST OR INVOLVING ANY RELEASED PARTY AS A STOCKHOLDER OF THE BORROWER, AND THE BORROWER FURTHER ACKNOWLEDGES THAT, AS OF THE EFFECTIVE DATE, IT DOES NOT HAVE ANY COUNTERCLAIM, SET-OFF, OR DEFENSE AGAINST THE RELEASED PARTIES (BUT EXCLUDING ANY COUNTERCLAIM, SET-OFF, OR DEFENSE AGAINST OR INVOLVING ANY RELEASED PARTY AS A STOCKHOLDER OF THE BORROWER) EACH OF WHICH THE BORROWER HEREBY EXPRESSLY WAIVES. THE BORROWER IS NOT AWARE OF ANY CLAIMS THAT IT HAS AGAINST ANY RELEASED PARTY AS A STOCKHOLDER OF THE BORROWER AS A RESULT OF ANY BREACH OF, OR ANY FAILURE BY ANY RELEASED PARTY TO PERFORM, ANY OF ITS OBLIGATIONS AS A STOCKHOLDER OF THE BORROWER.
[SIGNATURE PAGES TO FOLLOW]
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“BORROWER” | ||
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TEXTURA CORPORATION | ||
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By |
/s/ Xxxxxxx Xxxxxxx | |
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Name |
Xxxxxxx Xxxxxxx |
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Title |
CFO |
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“LENDER” | ||
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FIRST MIDWEST BANK | ||
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By |
/s/ Xxxx X Xxxxxx | |
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Name |
Xxxx Xxxxxx |
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Title |
President |
[Amendment to Loan Agreement]
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STATE OF ILLINOIS |
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COUNTY OF XXXX |
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The undersigned, a Notary Public in and for said County in the State aforesaid, does hereby certify that Xxxxxxx Xxxxxxx, the CFO of Textura Corporation, a Delaware corporation, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that she/he signed and delivered the said instrument as her/his own free and voluntary act, and as the free and voluntary act of said corporation for the purposes therein set forth.
Given under my hand and notarial seal this 9 day of September, 2013.
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[Notary Seal] |
/s/ Xxxx X. Xxxxx |
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Notary Public |
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Xxxx X. Xxxxx |
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(Type or Print Name) |
My commission expires:
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STATE OF ILLINOIS |
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COUNTY OF XXXX |
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The undersigned, a Notary Public in and for said County in the State aforesaid, does hereby certify that Xxxx X Xxxxxx, the president of First Midwest Bank, an Illinois banking corporation, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that she/he signed and delivered the said instrument as her/his own free and voluntary act, and as the free and voluntary act of said corporation for the purposes therein set forth.
Given under my hand and notarial seal this 10 day of September, 2013.
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/s/ Xxxxxxxxx X. Xxxxx | ||
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Notary Public | ||
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Printed Name: |
Xxxxxxxxx X Xxxxx | |
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My commission expires: |
3/2/16 |
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EXHIBIT “A”
LEGAL DESCRIPTION OF THE PROPERTY
PARCEL 1:
XXX 0 XX XXXX-XXXX XXXX XXXXXXXXXX XXXX, X SUBDIVISION OF PART OF THE NORTHWEST 1/4 AND THE NORTHWEST 1/4 OF SECTION 5, TOWNSHIP 42 NORTH, RANGE 12 EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT OF SUBDIVISION RECORDED IN THE OFFICE OF THE XXXX COUNTY RECORDER OF DEEDS ON FEBRUARY 18, 1982 AS DOCUMENT NO. 26147952, (EXCEPTING AND EXCLUDING FROM SAID LOT 2 THAT PORTION DESCRIBED AS FOLLOWS: BEGINNING AT THE SOUTHEAST CORNER OF SAID LOT 2: THENCE NORTH 00 DEGREES 24 MINUTES 37 SECONDS EAST ON A BEARING BASED ON THE ILLINOIS STATE PLANE COORDINATE SYSTEM NAD 83 EAST ZONE ALONG THE EAST LINE OF SAID XXX 0, X XXXXXXXX XX 00.00 XXXX; THENCE SOUTH 89 DEGREES 52 MINUTES 08 SECONDS WEST, 464.17 FEET; THENCE SOUTH 88 DEGREES 25 MINUTES 45 SECONDS WEST, 85.23 FEET TO THE WEST LINE OF SAID LOT 2; THENCE SOUTH 00 DEGREES 24 MINUTES 24 SECONDS WEST ALONG SAID WEST LINE, 14.53 FEET TO THE SOUTH LINE OF SAID XXX 0, XXXXXX XXXXX 00 DEGREES 53 MINUTES 55 SECONDS EAST ALONG SAID SOUTH LINE 549.35 FEET TO THE POINT OF BEGINNING) IN XXXX COUNTY, ILLINOIS.
PARCEL 2:
EASEMENT FOR THE BENEFIT OF PARCELS 1 AND 2 AFORESAID FOR INGRESS AND EGRESS AND ACCESS FOR CONSTRUCTION, INSTALLATION, USE, MAINTENANCE, REPAIR AND REPLACEMENT OF FRONTAGE ROAD DESCRIBED IN AND AS CREATED BY DECLARATION AND GRANT OF EASEMENT MADE BY LASALLE NATIONAL BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED OCTOBER 30, 1972 AND KNOWN AS TRUST NUMBER 44913 DATED AUGUST 1, 1981 AND RECORDED SEPTEMBER 2, 1981 AS DOCUMENT 25987860 OVER THE FOLLOWING DESCRIBED PARCELS OF LAND:
PARCEL 2A:
THE SOUTH 60 FEET OF THE NORTH 120.0 FEET OF THE “PARCEL OF LAND” HEREINAFTER DESCRIBED, IN XXXX COUNTY, ILLINOIS.
PARCEL 2B:
THAT PART OF THE NORTH 60 FEET OF SAID “PARCEL OF LAND” BOUNDED ON THE WEST BY THE WEST LINE OF THE 80.00 FOOT RIGHT OF WAY OF PINE STREET (AS SHOWN ON THE THIRD ADDITION TO DEERFIELD PARK UNIT NO. 1, BEING A
SUBDIVISION IN THE SOUTHEAST 1/4 OF SECTION 32, TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN LAKE COUNTY, ILLINOIS, RECORDED DECEMBER 22, 1958 AS DOCUMENT 1015141) EXTENDED SOUTH; BOUNDED ON THE EAST BY THE EAST LINE OF THE AFOREMENTIONED PINE STREET, EXTENDED SOUTH, FALLING IN XXXX COUNTY, ILLINOIS;
PARCEL 2C:
THAT PART OF THE NORTH 60.00 FEET OF THE SAID “PARCEL OF LAND”; BOUNDED ON THE WEST BY THE WEST LINE OF THE 60.00 FOOT RIGHT OF WAY OF THE NOW NAMED BIRCHWOOD AVENUE (AS SHOWN AS PHEASANT STREET ON A SUBDIVISION OF X.X. XXXXXXX’X FIRST ADDITION TO DEERFIELD, BEING A SUBDIVISION IN THE SOUTHWEST 1/4 OF SECTION 32, TOWNSHIP 43 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN, IN LAKE COUNTY, ILLINOIS RECORDED NOVEMBER 7, 1924 AS DOCUMENT 248380), EXTENDED SOUTH; AND BOUNDED ON THE EAST BY THE EAST LINE OF THE AFOREMENTIONED BIRCHWOOD AVENUE, EXTENDED SOUTH, IN XXXX COUNTY, ILLINOIS.
LEGAL DESCRIPTION OF “PARCEL OF LAND”
THAT PART OF THE EAST 1/2 OF GOVERNMENT XXX 0 XX XXX XXXXXXXXX 0/0 XX XXXXXXX 5, TOWNSHIP 42 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN AND ALSO THE WEST 1/2 OF GOVERNMENT LOT 2 (EXCEPT THE EAST 878.25 FEET, AS MEASURED ALONG THE NORTH LINE THEREOF) IN THE NORTHEAST 1/4 OF SAID SECTION 5, ALL TAKEN AS TRACT, LYING NORTH OF THE NORTH LINE OF TOLLWAY PARCEL T-11-B-2 AS DESCRIBED IN SUPERIOR COURT CASE 56S19626 DATED NOVEMBER 9, 1956 LYING NORTHERLY OF TOLLWAY PARCEL T-11-B-2 AS DESCRIBED IN SUPERIOR COURT CASE 56S19626 DATED FEBRUARY 5, 1957 AND LYING SOUTH OF THE SOUTH LINE OF LAKE XXXX ROAD, BEING A LINE 50.00 FEET SOUTH OF AND PARALLEL WITH THE NORTH LINE OF BOTH IN THE NORTHWEST 1/4 OF THE NORTHEAST 1/4 OF SAID SECTION 5;
ALSO
THAT PART OF THE EAST 878.26 FEET (AS MEASURED ALONG THE NORTH LINE) EXCEPT THE NORTH 873.00 FEET OF THE EAST 20.00 FEET OF THE WEST 1/2 OF GOVERNMENT XXX 0 XX XXX XXXXXXXXX 0/0 XX XXXXXXX 5, TOWNSHIP 42 NORTH, RANGE 12, EAST OF THE THIRD PRINCIPAL MERIDIAN, LYING NORTH OF THE NORTH LINE OF TOLLWAY PARCEL T-11-B-2 AS DESCRIBED IN SUPERIOR COURT CASE 56Sl9626 DATED NOVEMBER 9, 1956 LYING SOUTH OF THE SOUTH LINE OF LAKE-COOK ROAD BEING A LINE 50.00 FEET SOUTH OF AND PARALLEL WITH THE NORTH LINE OF THE NORTHEAST 1/4 OF SAID SECTION 5;
ALSO
THE SOUTH 200 FEET OF THE NORTH 1073.00 FEET OF THE WEST 3 ACRES OF THE NORTHEAST 1/4 OF THE NORTHEAST 1/4 OF SECTION 5 AFORESAID, ALL IN XXXX COUNTY, ILLINOIS (EXCEPTING THEREFROM THAT PART OF SAID EASEMENT FALLING WITHIN PARCEL 1).
P.I.N.: 00-00-000-000
00-00-000-000