AGREEMENT FOR THE PURCHASE AND SALE OF REAL ESTATE
AGREEMENT
FOR THE PURCHASE AND
SALE
OF REAL
ESTATE
THIS
AGREEMENT FOR THE PURCHASE AND SALE OF REAL ESTATE ("Agreement") is entered
into
as of June __7___, 2006 ("Effective Date") between M-Wave, Inc., a Delaware
corporation (“Seller”) and Xxxxx and Xxxxxxx Xxxxxxxx or their assignee
("Purchaser").
SECTION
1 SALE
OF
PROPERTY.
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:
The
land
legally described on Exhibit A attached hereto and made a part hereof and
commonly known as a site at Evergreen & Pine, Bensenville, Illinois (the
“Real Estate”), together with all right, title and interest of Seller in and to
all privileges, rights, easements, hereditaments, and appurtenances belonging
to
the land, and all right, title and interest of Seller in and to any streets,
alleys, passages and other rights-of-way included therein or adjacent thereto
(collectively, the “Property”).
SECTION
2 PURCHASE
PRICE.
The
purchase price to be paid by Purchaser to Seller for the Property is One Hundred
Seventy Thousand and 00/100 Dollars ($170,000.00) (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 Xxxxxxx
Money Deposit.
(a) Within
Five (5) business day after the Sellers acceptance of this Agreement, Purchaser
will deposit with the Title Company (as described below) in its customary joint
order escrow the amount of Five Thousand and 00/100 Dollars ($5,000.00) as
xxxxxxx money and as a deposit towards payment of the Purchase Price. If this
Agreement is not terminated during the Due Diligence Period as provided in
Section 3.4, then upon the expiration of the Due Diligence Period (as defined
below), such xxxxxxx money deposit, together with all interest earned thereon
(jointly, the “Xxxxxxx Money Deposit”) shall become non-refundable.
(b) All
escrow fees, if any, charged by the Title Company in respect of the Xxxxxxx
Money Deposit shall be paid for by Purchaser.
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, and cause the Title Company to
deliver the Xxxxxxx Money to Seller.
SECTION
3 TITLE
MATTERS; DUE DILIGENCE.
3.1 Title
Commitment; Survey.
Seller
will order and deliver to Purchaser upon receipt 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 Seller will
deliver an Alta form survey no more than six months old to purchaser certified
to purchaser tile company and purchasers lender its existing 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. Purchaser shall have the right to terminate this Agreement, if it is
not
satisfied with the Title Commitment or Survey, by notice in writing served
upon
Seller during the Due Diligence Period. If Purchaser fails to so serve said
notice of it upon Seller within such time, Purchaser shall be deemed to have
waived said right. Upon any termination of this Agreement pursuant to this
Section 3.2, the Xxxxxxx Money Deposit and interest earned thereon shall be
returned to Purchaser, and except as set forth in Section 3.4, neither party
shall have any further obligation hereunder.
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 Alta form Owner's Policy of Title Insurance including
zoning endorsement ("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 mechanics
and
materialman's lien affidavit and a standard parties in possession affidavit,
in
such forms as the Title Company shall reasonably and customarily require for
the
issuance of an extended coverage endorsement over those items (except to the
extent not caused by, through or under Seller) on the Title Policy. 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 Shall have 30 business days from sellers acceptance of agreement
to
conduct due diligence “Due diligence period” at any time during the due
diligence period the Purchaser shall have sole and exclusive right to terminate
this agreement for any reason for failure of Due Diligence and receive a full
return of xxxxxxx money deposit and 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 and Purchaser shall have no further rights of
Inspection. Purchaser shall deliver to Seller upon any termination of this
Agreement a copy of every report of findings which is issued as a result of
such
activities, and Purchaser shall cause the Property to be restored to its
condition prior to any of Purchaser's or its agents' activities which alter
the
condition of the Property. Purchaser shall hold confidential all information
it
has generated or received with respect to the Property and shall not disclose
same to any third party; and Purchaser shall cause its agents and employees
to
abide by such requirements. Seller shall deliver to purchaser within five (5)
business days of acceptance of contract any environmental report in seller
possession to the property and other notices and findings or request related
to
the property.
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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 members,
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/or may 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 any termination
of
this Agreement.
SECTION
4 CLOSING.
4.1 Closing
Date.
The
closing of the purchase and sale of the Property (the "Closing") shall take
place on July 26, 2006 (“Closing Date”). The Closing shall occur at 2:00 p.m. 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.
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(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 to Purchaser, together
with
the Seller’s right, title and interest in and to the rest of the Property,
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.
SECTION
5 SETTLEMENT
AND PRORATIONS.
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 110 % of the most recent issued
bills.
5.2 Miscellaneous
Closing Costs.
Seller
shall pay the customary premium associated with providing Purchaser with the
Title Policy described in subsection 3.3. 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.
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SECTION
6 CONDITION
OF PROPERTY; REPRESENTATIONS AND WARRANTIES
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
SHAREHOLDERS, OFFICERS, DIRECTORS, 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 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 SHAREHOLDERS, DIRECTORS, OFFICERS, MANAGER(S), AGENTS
AND EMPLOYEES (COLLECTIVELY THE "SELLER PROTECTED PARTIES") 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 MEMBER, 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. ANY
REPRESENTATIONS, WARRANTIES OR STATEMENTS MADE BY ANY AGENT OR REPRESENTATIVE
OF
SELLER, INCLUDING WITHOUT LIMITATION THE BROKERS (AS DEFINED BELOW), MAY NOT
BE
RELIED UPON BY PURCHASER AND DO NOT CONSTITUTE A PART OF THIS
AGREEMENT.
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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) Since
Seller has owned the Property, Seller has not received any written notice from
any municipal, county, state or other governmental agency or body stating that
the Property, or any part thereof, is or will become the subject of condemnation
proceedings.
(c) Option.
No person, firm or corporation or other entity has any right or option to
acquire the Property, or any part thereof.
(d) 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) Authority.
Purchaser has all requisite power and authority to enter into and perform its
obligations under 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 LOSS
OR
CASUALTY.
In
the
event of substantial damage to, or the destruction of, all or any part of the
Property prior to the Closing Date, Purchaser may terminate this Agreement
and
receive a return of its Xxxxxxx Money Deposit, or, at its option, Purchaser
may
elect to closing the purchase and sale pursuant to this Agreement without
deduction from the Purchase Price, in which event Seller shall use good faith
efforts to provide to Purchaser any insurance proceeds received or to be
received by Seller for damage to the Property on account of such fire or other
casualty. Seller makes no representation that it does or will carry any such
insurance, or if it does, the terms thereof.
SECTION
8 CONDEMNATION.
If,
between the Effective Date of this Agreement and Closing, all or any portion
of
the Property is taken in condemnation or a written notice ("Condemnation
Notice") from a governmental authority is received by Seller indicating its
intention to take all or a portion of the Property, in condemnation, Purchaser
shall have the option to terminate this Agreement. If Purchaser exercises its
option to terminate in accordance with this Section 8, Seller shall return
the
Xxxxxxx Money Deposit to Purchaser, and neither party shall have any further
obligation hereunder except as set forth in Section 3.4. If Purchaser does
not
so exercise its option to terminate as provided in this Section 8, this
Agreement shall continue in full force and effect and title shall be subject
thereto. In such event, the Purchase Price shall be paid by Purchaser at Closing
without reduction, but Seller shall remit to Purchaser all awards received
by
Seller as a result of the condemnation. Seller shall notify Purchaser
immediately upon receipt by Seller of any Condemnation Notice.
SECTION
9 DEFAULT
AND REMEDIES.
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.
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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.
SECTION
10 BROKERS.
Seller
represents and 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 __Kip
Hennelly_______________ (none if left blank) (“Purchaser’s Broker”). Seller
shall pay Seller’s Broker 6% of the of the Purchase Price, to be split equally
between Seller’s Broker and, if any, Purchaser’s Broker. (If there is no
Purchaser’s broker, all will go to Seller’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.
SECTION
11 ASSIGNMENT.
Seller
shall not 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. Any assignment in violation of this Section shall be
void.
SECTION
12 MISCELLANEOUS.
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:
If
intended for Seller, to:
M-Wave,
Inc.
000
Xxxxxxxxxx Xxxxx
Xxxx
Xxxxxxx, XX 00000
Attn:
Xxx
Xxxxx
Facsimile:
000-000-0000
with
a
copy in each case to:
(Seller
Attorney)
If
intended for Purchaser, to:
Xxxxx
Xxxxxxxx MD. And Xxxxxxx Xxxxxxxx
00
X. 000
Xxxxxx Xx Tours
Xxxxxxxx,
Xxxxxxxx 00000
Facsimile:
000 000 0000
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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.
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.
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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:
(a) enter
into any leases affecting the Property;
(b) 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.
SIGNATURE
PAGE TO FOLLOW
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This
Agreement has been executed as of the date first appearing above.
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SELLER:
M-WAVE,
INC.,
a
Delaware corporation
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PURCHASER:
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By:
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Its:
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Xxxxx
Xxxxxxxx MD. and Xxxxxxx Xxxxxxxx
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EXHIBITS
TO
AGREEMENT
FOR THE PURCHASE
AND
SALE
OF REAL ESTATE
Exhibit
A Legal
Description of Property
Exhibit
B Permitted
Exceptions
EXHIBIT
A
Legal
Description
Lots
4,
5, 6, 7, 8 and 9, and the Northwesterly one-half of the vacated alley lying
Southeasterly and adjoining Lots 4, 5 and 6, and the Southeasterly one-half
of
the vacated alley lying Northwesterly and adjoining Lots 7, 8 and 9, and all
of
the vacated alley lying between Lots 7 and 8, all in Block 4, in Xxxxxxx X.
Xxxxxxxxx’x Addition to Bensenville, in the Southwest quarter of Xxxxxxx 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 00, Xxxx of the Third Principal Meridian, according
to
the Plat thereof recorded January 3, 1893 as document 50837, in DuPage County,
Illinois.
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Tax
Parcel ID Nos.
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00-00-000-000
|
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00-00-000-000
|
|
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00-00-000-000
|
|
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00-00-000-000
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|
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00-00-000-000
|
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00-00-000-000
|
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Property
Address:
|
000
Xxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxx
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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 mechanics and matieralmen’s lien affidavit and
parties in possession affidavit as 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
shown on the Survey or which an accurate survey would otherwise
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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