EXHIBIT 10.20
REAL ESTATE SALES CONTRACT
(INDUSTRIAL)
1. AMI Partners, L.L.C., an Illinois limited liability company,
or nominee, ("Purchaser") agrees to purchase at a price of $2,000,000.00 on the
terms set forth herein, the following described real estate in West Chicago,
DuPage County, Illinois:
▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇, BEING A RESUBDIVISION
OF LOT 13 IN WESCOM INDUSTRIAL PARK, BEING A SUBDIVISION OF
PART OF THE SOUTH 1/2 OF SECTION 5, TOWNSHIP 39 NORTH, RANGE
9, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT
THEREOF RECORDED MARCH 31, 1988 AS DOCUMENT R88-031329, IN
DUPAGE COUNTY, ILLINOIS.
commonly known as ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (herein called
the "Premises"), with approximate lot dimensions of 500.17 ft. x 500.17 ft.,
improved with a one and 2 story industrial building presently used by Seller in
its circuit board manufacturing business, together with the following property
presently located thereon: All personal property presently on the premises and
used in the operation of the premises, including but not limited to supplies,
equipment and materials and all heating, cooling, plumbing and electrical
fixtures, as well as the following specific items:
2. M-Wave, Inc., a Delaware corporation, ("Seller") agrees to
sell the real estate and the property described above, at the price and terms
set forth herein, and to convey or cause to be conveyed to Purchaser or nominee
title thereto by a recordable warranty deed, subject only to real estate taxes
for the year 2003 and subsequent years, (a) covenants, conditions and
restrictions of record disclosed on Chicago Title Insurance Company owner's
title insurance policy No. 1410002002518UL; (b) private, public and utility
easements and roads and highways, if any; and (c) special taxes or assessments
for improvements not yet completed, if any. At closing Seller shall deliver a
proper ▇▇▇▇ of sale conveying to Purchaser all the above items of Personal
Property owned by Seller that are located on the Premises (the "Personal
Property").
3. Purchaser will pay no ▇▇▇▇▇▇▇ money toward the purchase price,
and shall pay the total amount of the purchase price plus or minus prorations,
at the time of closing.
4. The time of closing shall be on January 27, 2004, or on the
date, if any, to which such time is extended by reason of paragraph 9 on the
conditions and stipulations hereafter becoming operative (whichever date is the
later) unless subsequently mutually agreed otherwise, at the title company
issuing the title insurance for the transaction, or the mortgage lender, if any,
provided title is showing to be good or is accepted by the Purchaser. Possession
shall be simultaneous with closing.
5. Seller agrees to pay all brokers' commissions, if any relating
to this sale and to indemnify and hold Purchaser harmless for any and all
commissions. Purchaser warrants it has not used any broker.
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6. [If applicable: The ▇▇▇▇▇▇▇ money shall be held
by_________________, for the mutual benefit of the parties, interest to accrue
to Purchaser. Until the inspection and contingency periods set forth herein have
all expired, the ▇▇▇▇▇▇▇ money shall be disbursed upon the signature of
Purchaser's attorney only without consent of Seller or Seller's attorney].
7. A duplicate original of this contract, duly executed by the
Seller and its beneficiaries, if any, shall be delivered to the Purchaser by
5:00 p.m. on January____, 2004, otherwise, at the Purchaser's option, this
contract shall become null and void and the ▇▇▇▇▇▇▇ money shall be refunded to
the Purchaser.
8. Seller shall deliver or cause to be delivered to Purchaser or
Purchaser's agent, at Seller's expense, not less than 10 days prior to the time
of closing, a title commitment for an owner's ALTA title insurance policy issued
by a Title Company acceptable to Purchaser in the amount of the purchase price,
covering title to the real estate on or after the date hereof, showing title in
the intended grantor subject only to (a) the title exceptions set forth in
paragraph 2 above, and (b) title exceptions pertaining to liens or encumbrances
of a definite or ascertainable amount which shall be removed by Seller by the
payment of money at or before the time of closing and which the Seller may so
remove at or before that time by using the funds to be paid upon the delivery of
the deed (all of which are herein referred to as the permitted exceptions). The
title commitment shall be conclusive evidence of good title as therein shown as
to all matters insured by the policy, subject only to the exceptions as therein
stated. Seller also shall furnish Purchaser with an affidavit of title in
customary form covering the date of closing and showing title in Seller subject
only to the permitted exceptions in foregoing item (a) and (b) if any, as to
which the title insurer commits to extend insurance in the manner specified in
paragraph 9 below. The title policy shall include, at Seller's sole expense and
obligation, Location Note, Environmental Lien Endorsement, 3.1 Zoning
Endorsement with parking and Extended Coverage. The title policy shall also
affirmatively insure:
(i) Purchaser's unrestricted right to use any appurtenant
easements;
(ii) contiguity of any parcels comprising the Premises; and
(iii) that the Premises has the benefit of direct ingress and
egress, both pedestrian and vehicular, to and from a public
highway.
Notwithstanding anything in this paragraph 8, paragraph 9 below or
elsewhere in this contract, Seller shall obtain the following endorsements from
the title insurance company all at Seller's expense:
(1) Endorsement waving general exception numbers 1-5
pertaining to the general exceptions set forth on Schedule B
(2) A creditors' rights endorsement.
(3) The above zoning endorsement insuring that among
other things that the land is classified as zone "M" Manufacturing
District and setting forth the uses in such district.
(4) Location endorsement - contiguity to street -
endorsement 6.
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(5) Location endorsement re survey - endorsement 5.
(6) PIN endorsement - endorsement 1.
All of said endorsements are presently attached to the policy No.
1410002002518UL and shall be in the same or expanded form.
9. If the title commitment discloses unpermitted exceptions,
Seller shall have 5 days from the date of delivery thereof to have the
exceptions removed from the commitment or to have the title insurer commit to
insure against loss or damage that may be occasioned by such exceptions, and, in
such event, the time of closing shall be 10 days after delivery of the
commitment but not later than the time specified in paragraph 4. If Seller fails
to have the exceptions removed, or in the alternative, to obtain the commitment
for title insurance specified above as to such exceptions within the specified
time, or to obtain the endorsement and coverage described above, Purchaser may
terminate this contract or may elect, upon notice to Seller within 10 days after
the expiration of the 10-day period, to take title as it then is with the right
to deduct from the purchase price liens or encumbrances of a definite or
ascertainable amount. If Purchaser does not so elect, this contract shall become
null and void without further action of the parties and all ▇▇▇▇▇▇▇ money and
interest accrued thereon shall be immediately returned to Purchaser.
10. Rents, water and other utility charges, fuels, prepaid service
contracts, general real estate taxes, and other similar items, shall be adjusted
ratably as of the time of closing. The amount of the current real estate taxes
not then ascertainable shall be adjusted on the basis of 110% of the most recent
ascertainable taxes. The real estate taxes shall be re-prorated immediately upon
issuance of the actual bills.
All prorations are final unless otherwise provided herein. Existing
leases, if any, shall be terminated as of the closing date. Seller shall pay the
amount of any stamp tax imposed by state, county or local law on the transfer
of the title, and shall furnish a completed Real Estate Transfer Declaration
signed by the Seller or the Seller's agent in the form required pursuant to the
Real Estate Transfer Tax Act of the State of Illinois, and shall furnish any
declaration signed by the Seller or the Seller's agent or meet other
requirements as established by any local ordinance with regard to a transfer or
transaction tax. Such tax required by local ordinance shall be paid by the
Seller.
Seller shall comply with all requirements of the City of West Chicago,
including but not limited to obtaining an occupancy inspection.
11. Except as provided below in this Paragraph, risk of loss until
the Closing Date shall be borne exclusively by the Seller. In the event of
damage or destruction to all or part of the premises, the replacement or
restoration cost of which exceeds Fifty Thousand Dollars ($50,000) (the
"Material Damage"), the Purchaser shall have the option of (i) terminating this
Agreement by written notice to Seller delivered within twenty (20) days after
the casualty; or (ii) accepting the Premises, together with an assignment by the
Seller of all of the Seller's rights under policies of insurance upon the
premises covering such damage or destruction, the Seller to pay the amount of
any deductible on the insurance. If Purchaser fails to deliver to Seller such
written notice within the twenty (20) day period, Purchaser shall be
conclusively deemed to have elected to terminate this Agreement. Notwithstanding
anything herein contained to the contrary, in the event that the
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Purchaser elects to terminate this Agreement pursuant to this Paragraph then all
funds paid or deposited by the Purchaser shall be returned to the Purchaser, and
the Seller shall pay all title and escrow costs incurred under this Agreement.
In the event that the damage or destruction to the Premises is less than
Material Damage, the Purchaser may not terminate this Agreement; provided,
however, the Seller shall assign all of the Seller's rights under policies of
insurance upon the Premises covering such damage or destruction and the Seller
to pay the amount of any deductible on the insurance.
In the event of a taking prior to closing of all or any portion of the
Premises by reason of eminent domain, or deed in lieu thereof, the Purchaser
shall have the option of (i) terminating this Agreement, or (ii) accepting the
Premises together with an assignment by Seller of all of Seller's rights to the
proceeds of such taking or deed in lieu thereof. Notwithstanding anything herein
contained to the contrary, in the event that the Purchaser elects to terminate
the Agreement pursuant to this Paragraph, then all funds paid or deposited by
the Purchaser shall be returned to the Purchaser, and the Seller shall pay all
title, survey and escrow costs incurred under this Agreement.
12. If this contract is terminated without Purchaser's fault, the
▇▇▇▇▇▇▇ money and all interest accrued thereon shall be returned immediately to
the Purchaser without waiving any other rights of Purchaser. If the termination
is caused by the Purchaser's fault, then upon notice to the Purchaser, the
▇▇▇▇▇▇▇ money, if any, shall be forfeited to the Seller as full and complete
liquidated damages. Seller waives all other damages.
13. This sale shall be closed in a "New York Style" closing
through an escrow with the Title Company with such special provisions inserted
in the escrow agreement as may be required to conform with this contract. Upon
the creation of such an escrow, anything herein to the contrary notwithstanding,
payment of purchase price and delivery of deed shall be made through the escrow
and this contract and the ▇▇▇▇▇▇▇ money shall be deposited in the escrow. The
cost of the escrow shall be divided equally between the parties.
14. Time is of the essence of this contract. Seller understands
that Purchaser's mortgage commitment will expire on January 15, 2004.
15. All notices herein required shall be in writing and shall be
served on the parties and their attorneys at the addresses following their
signatures. The mailing of a notice by certified or registered mail, return
receipt requested, Federal Express or United Parcel Service, Facsimile or
personal delivery, whether accepted or not, shall be sufficient service.
16. Purchaser and Seller hereby agree to make all disclosures and
do all things necessary to comply with the applicable provisions of the Real
Estate Settlement Procedures Act of 1974. In the event that either party shall
fail to make appropriate disclosure when asked, such failure shall be considered
a breach on the part of said party.
17. Seller represents that it is not a "foreign person" as defined
in Section 1445 of the Internal Revenue Code and is therefore exempt from the
withholding requirements of said Section. Seller will furnish Purchaser at
closing the Exemption Certification set forth in said Section.
18. (a) This contract is subject to Purchaser's physical
inspection of the Premises
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with an engineer, architect or other representative of Purchaser within
20 days of Seller's acceptance of this contract. If within said 20 day
period Purchaser or Purchaser's representative in Purchaser's sole
discretion is unsatisfied with the condition of the Premises the
Purchaser shall have the right to terminate this contract and all
▇▇▇▇▇▇▇ and interest earned thereon shall be immediately returned to
Purchaser.
(b) This contract is subject to Purchaser's or its
lender's environmental inspection of the Premises including a Phase I
EPA study at Seller's expense within 20 days of Seller's acceptance of
this contract. If within said 20 day period Purchaser or lender in
Purchaser's or lender's sole discretion is unsatisfied with the Phase I
Report then Purchaser shall have the right to terminate this contract
and immediately receive all ▇▇▇▇▇▇▇ money and interest earned thereon.
If in Purchaser's sole discretion the results of the Phase 1 study
require a Phase II study, and if Purchaser has not terminated this
contract then this contingency shall be extended an additional 30 days
and the closing date shall also be extended an additional 30 days.
(c) This contract is subject to Purchaser's confirmation
within 20 days of acceptance that the Premises is zoned for a circuit
board manufacturing business. If within said 20 day period Purchaser
determines that the Premises is not zoned for a circuit board
manufacturing business, Purchaser shall have the right to terminate
this contract and immediately receive all ▇▇▇▇▇▇▇ money and interest
earned thereon.
19. The Seller hereby grants to the Purchaser the right to enter
the Premises, during Seller's regular business hours and upon reasonable advance
notice to Seller specifying the type and extent of investigations to be
conducted, for the purpose of conducting its inspections, tests and studies. The
right granted hereunder shall include, without limitation, the right to conduct
soil borings and other geological, environmental, engineering or architectural
studies including, without limitation, Phase I and Phase II environmental audits
and a wetlands study; to inquire regarding the status of zoning and the
availability of utilities; and to examine the building structure, building
foundation, roof and all fixtures, equipment, mechanical systems, electrical
systems, plumbing systems, heating systems, air conditioning systems and other
portions of the Premises deemed necessary by the Purchaser, in the Purchaser's
sole discretion. Purchaser shall not perform any soil borings or investigations
which would damage the Premises without Seller's prior consent, which consent
shall not be unreasonable withheld. The Seller agrees to cooperate with the
Purchaser, and to cause its agents, and employees to cooperate with the
Purchaser, in connection with the rights granted pursuant to this Paragraph 19.
Notwithstanding anything herein contained to the contrary, Purchaser's
investigations, tests, and studies, shall not be deemed to limit in any way the
scope or applicability of the Seller's representations and warranties contained
in this Agreement.
20. Purchaser shall be entitled to a walk through inspection 48
hours prior to Closing to determine that the improvement on the Premises and all
heating, cooling, ventilating, roof, lighting, and plumbing system, and all
fixtures, systems, appliances and Personal Property located in or on the
premises are in good working condition and repair. If at the time of Purchaser's
walk through inspection Purchaser is dissatisfied as to any of the above items,
Purchaser shall have the option of declaring this Contract null and void and
receiving the return of all ▇▇▇▇▇▇▇ money paid plus interest earned thereon or
of receiving a credit at Closing for the cost of repairing or replacing
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any of the above unacceptable items.
21. Seller shall deliver to Purchaser, at Seller's expense, within
5 days of Seller's acceptance of this Contract, an ALTA staked Survey dated
after the date of Seller's acceptance, in compliance with the Illinois Land
Survey Standards, certified to Purchaser, the Title Company and Purchaser's
lender showing, all improvements, easements, building lines existing as of the
date of this Agreement and shall show all encroachments onto the Premises and
any improvements on the Premises including parking areas encroaching onto
adjoining properties and streets, all of which shall be considered survey
defects. At closing Seller shall provide an affidavit verifying that no changes
in improvements have been made since the date of said survey and shall at its
expense obtain title coverage against any loss therefrom. In the event that said
survey discloses any defects for which the Title Company is not willing to
provide insurance coverage against any loss therefrom, or such loss is covered
by insurance but would result in a loss greater than 5% of usable square footage
of the improvement on the premises, at Purchaser's option this Contract shall be
null and void and Purchaser shall immediately be returned all ▇▇▇▇▇▇▇ money paid
plus interest earned thereon.
22. Seller shall deliver to Purchaser at Closing any and all
existing surveys, drawings, engineer reports, landscape surveys, and all other
related documents in Purchaser's possession with respect to the Premises.
23. The Seller represents and warrants as follows:
(a) Neither the execution, delivery nor performance of
this Agreement (or any instrument or document to be executed or
delivered pursuant to the terms hereof) will result in the violation of
any contractual obligation of the Seller to any third party; nor will
such execution, delivery or performance conflict with, constitute an
event of default under, or result in a breach of or violation of the
provisions of any agreement or other instrument to which the Seller is
a party or by which its properties or assets are bound, or of any
applicable law, judgment, order, writ, injunction, decree, rule or
regulation of any court, administrative agency or other governmental
authority, or any determination or award of any arbitrator.
(b) There are no outstanding agreements or liabilities of
any kind with respect to the Premises which will not be satisfied at
Closing.
(c) No party other than Purchaser has any claim to the
Premises by reason of any purchase agreement, option to purchase, right
of first refusal, land installment contract, lease or other similar
agreement or instrument entered into by Seller.
(d) The Seller owns the Personal Property free and clear
of any and all liens and encumbrances whatsoever, or other matters of
any nature affecting title, and the Seller has good right to sell the
Personal Property. Seller shall deliver UCC searches to Purchaser, at
Seller's expense, at closing indicating that there are no liens against
such Personal Property.
(e) To Seller's knowledge, no Hazardous Substances have
been used, manufactured, released, treated, stored or disposed of
beneath, on or at the Premises or off-
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site by Seller so as to affect the Premises. The term "Hazardous
Substance" includes, without limitation, those substances included
within the definitions of "Hazardous Substances," "Hazardous
Materials," "Toxic Substances," "Hazardous Waste," or "Solid Waste" in
any Environmental Law, and oil and petroleum products, asbestos,
polychlorinated biphenyls, urea formaldehyde and lead-based paint. The
term "Environmental Law" includes any federal, state or local law,
statute, ordinance or regulation pertaining to health, industrial
hygiene or the environmental conditions on, under or about the
Premises, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sections 9601 et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq., and Hazardous Material Transportation Act,
49 U.S.C. Section 1801, et seq. To Seller's knowledge, the Premises is
not subject to any federal, state or local liens, proceedings, claims,
liability or action, or the threat or likelihood thereof, for the
clean-up, removal or remediation of any Hazardous Substance from the
Premises pursuant to any Environmental Law.
(f) Seller has received no notice of any condemnation or
appropriation proceeding affecting the Premises or to Seller's
knowledge, is any such proceeding threatened.
(g) There are no assessments, which have become a lien
against the Premises, or any mechanic's or materialmen's liens filed or
threatened against the Premises, and no work has been performed by
Seller or materials provided for Seller for which a lien could be
filed.
(h) Seller has received no notice of any suits, actions
or proceedings pending or to Seller's knowledge, threatened against or
concerning the Premises.
(i) All roadways and public utilities, including, without
limitation, sanitary and storm sewers, water, gas, electric and
telephone lines, necessary for the present operation of the Premises
are available at the perimeter of the Premises, are in good operating
condition and are of sufficient capacity for the current use of the
Premises. To Seller's knowledge, all permits and easements required in
connection therewith have been obtained and filed of record.
(j) To Seller's knowledge, there are no boundary disputes
with owners or tenants of adjacent properties.
(k) To Seller's knowledge, there are no gas, oil or water
▇▇▇▇▇ or mine shafts on the Premises, and no party has a right to
install any of the foregoing. To Seller's knowledge, there are no
sinkholes on the Premises or any site conditions which my give rise to
a sinkhole on the Premises.
(1) All improvements, including, without limiting the
generality of the foregoing, all mechanical, electrical, plumbing,
heating and cooling systems, water tanks, septic systems, roofs,
structural components and equipment, and every major item of Personal
Property, are in good working order and condition and free from leaks
and will be so at the time of closing and if not will be repaired at
Seller's expense prior to closing.
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(m) Seller has received no notices from any insurance
company of any defects or inadequacies in the Premises or any part of
the Premises which would adversely affect the insurability of the
Premises, and to Seller's knowledge, the Premises complies with all
requirements of any insurance carriers of the Premises.
(n) That the Seller or any agent of the Seller does not
employ any union employees at the Premises and there are no contracts
or disputes with any union employees in respect to the Premises.
(o) As of the date of Seller's acceptance and as of the
date of Closing, that there are no underground storage tanks of any
kind located in or on the Premises.
(p) The Premises has not flooded, experienced any roof
leakages, or any termite infestation with the last 5 years.
(q) The Premises is not currently in violation of any
zoning regulations and is not a permitted non-conforming use.
(r) Seller hereby warrants and represents that the real
estate and the improvements thereon are in compliance and will be in
compliance at closing with the Americans With Disabilities Act.
(s) That the general real estate taxes for the year 2002
were $56,046.20 and that the assessed value of the real estate as
improved for that year was approximately $661,000.
(t) There are no current obligations burdening the
property by a "Recapture Agreement" which will bind the Purchaser or
the property after the closing.
(u) Seller warrants that no part of the improvements on
the Premises lie within any Flood Plain.
24. Seller shall deliver and assign to Purchaser all warranties
relating to the improvements on the Premises and Personal Property being sold
hereunder.
25. Seller warrants that Seller, its officers, its beneficiaries
or agents have received no notices from the local, state, or United States or
other governmental authority of zoning, building, fire, health code, or
environmental violations in respect to the Premises that have not been
heretofore corrected. Seller warrants that the Premises is, as of Seller's
acceptance and shall be as of the date of closing, free from any violations of
any environmental laws or ordinances and Seller shall indemnify and hold
Purchaser harmless from any claims, causes, actions, damages and attorneys fees
brought or incurred as a result thereof.
26. The parties hereto represent and warrant that they have
authority to enter into this Agreement and perform its terms and that their
respective Boards of Directors have unanimously approved this Agreement and the
Sale of the Real Estate and Personal Property by Seller and their purchase by
Purchaser, respectively. Seller shall deliver at closing a certified copy of its
Board of Directors resolution approving this Agreement and the said sale.
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27. All provisions and warranties contained in this Agreement
shall be remade at and survive the closing of this transaction contemplated
herein.
28. Either party may elect to close this transaction as an
Internal Revenue Service Code Section 1031 trade and each party agrees to
reasonably cooperate with the other party and to execute all documents necessary
to effect said trade.
29. Between the date of this Agreement and the Closing Date, the
Seller agrees that it will:
(a) manage and operate the Premises only in the ordinary
and usual manner, maintain in full force and effect until the closing
date the insurance policies (and renewals thereof) presently insuring
the Premises;
(b) at its expense, maintain the Premises in its present
order and condition, and deliver the Premises on the closing date in
substantially the same condition it is in on the date of this
Agreement, reasonable wear and tear excepted;
(c) give prompt notice, by telephone, telegram or
telecopy, of any fire or other casualty affecting the Premises after
the date of this Agreement;
(d) deliver to the Purchaser, promptly after receipt by
the Seller, copies of all notices received by the Seller relevant to
any of the Premises, including, without limitation, notices of
violation issued by governmental authorities with respect to the
Premises received by the Seller after the date of this Agreement;
(e) promptly notify the Purchaser of any material change
in the facts underlying any representation or warranty and of any
material change in the condition or status of the Premises.
30. Between the date of this Agreement and the closing date, the
Seller agrees that, without the Purchaser's written consent in each case, it
will not:
(a) grant, modify, create, assume or permit to exist any
mortgage, lien, encumbrance, easement, covenant, condition, right of way or
restriction upon the Premises other than those presently existing or voluntarily
take any action adversely affecting the title to the Premises as it exists on
the date of this Agreement;
(b) remove any Personal Property unless the same is
replaced with a similar item of equal or better quality prior to Closing Date.
31. In the event of the breach of any representation or warranty
contained herein by either party, the party committing the breach shall
indemnify and hold harmless the other party for all damages, liabilities,
penalties, fines, assessments, interest, judgments, claims, construction costs,
restoration costs, removal costs, loss of rents, other costs, and attorney fees
resulting from such breach. The Seller acknowledges that the representations and
warranties made by it in this Agreement are a material inducement for Purchaser
to enter into this Agreement.
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32. The respective attorneys for Purchaser and Seller shall have 7
business days from Seller's acceptance to approve or disapprove of this
Contract, other than the purchase price. If within 7 business days of Seller's
acceptance written agreement on the proposed modifications cannot be reached,
this Contract shall be null and void and any ▇▇▇▇▇▇▇ Money immediately returned
to Purchaser.
33. This Contract is subject to the condition that Purchaser
procure by January 15, 2004, , an unconditional mortgage commitment for a loan
to be secured by a mortgage on the Premises in accordance with the terms of the
American Chartered Bank loan proposal dated November 7, 2003, and which
commitment shall remain in affect until the closing. In the event Purchaser does
not receive such mortgage for any reason, this Contract shall be null and void
and Purchaser shall receive the immediate return of any ▇▇▇▇▇▇▇ money.
34. This Contract is also subject to the condition that AMI
Partners, L.L.C. by closing date, enter into a mutually acceptable lease for the
second floor of the Premises with M-Wave Inc subject to the closing of this
purchase of the Premises. The lease shall be a triple net lease meaning that
M-Wave shall pay one-half (1/2) of all costs and expenses in maintaining the
premises including but not limited to repairs, replacements, real estate taxes,
snow removal, utilities, and in addition shall pay the Lessor as rent the sum of
$6,326 per month each month in advance. The lease shall be for a period of 5
years and M-Wave shall post an amount equal to two (2) months rent as a security
deposit to guarantee its performance of the lease which amount shall not be
offset by M-Wave in payment of rent and to the extent the security deposit has
been used in whole or in part by the Lessor for any obligation of M-Wave, M-Wave
shall immediately on demand pay Lessor an amount sufficient to bring the deposit
back up to two (2) months rent.
35. Purchaser is hereby granted the right to terminate this
contract without liability to Seller in the event that Purchaser is unable to
obtain fire and extended coverage and comprehensive public liability insurance
at standard rates for the Premises.
36. Notwithstanding anything in this Agreement to the contrary
Purchaser may assign this Agreement to a third party, but this Agreement may not
be assigned by Seller.
37. Notwithstanding anything in this Agreement to the contrary it
is hereby understood and agreed between the parties that Purchaser or its
nominee is purchasing the Premises (i) solely in order to enable M-Wave to have
sufficient funds in order to repay its loan to Bank One, and M-Wave hereby
warrants that the funds to be received from the sale proceeds will be sufficient
to enable it to pay the balance of said loan in full, and all costs of this sale
and (ii) in order to enable American Standard Circuits Inc., an affiliate of
Purchaser to continue manufacturing circuit boards for M-Wave under that certain
Interim Strategic Operating Alliance Agreement between American Standard
Circuits Inc. and M-Wave, Inc. dated September 2, 2003, which shall be replaced
by a final signed Strategic Operating Alliance Agreement by closing. This
agreement and the consummation of the purchase by Purchaser of the Premises is
conditioned upon the foregoing.
38. This Contract and all of its terms and provisions shall
survive the closing of Purchaser's purchase of the Premises.
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1/23/04
SELLER:
M-WAVE, INC.
Date: January 28, 2004 By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
cc: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(▇▇▇)▇▇▇-▇▇▇▇
PURCHASER:
AMI PARTNERS, L.L.C.
Date: January 28, 2004 By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, Manager
Address: c/o American Standard Circuits, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇)▇▇▇-▇▇▇▇
cc: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇-▇▇-▇▇-▇▇
11
RIDER TO
REAL ESTATE INDUSTRIAL SALES CONTRACT
This Rider to Real Estate Industrial Sales Contract ("Rider") is dated
January _____, 2004 by and between M-Wave, Inc., a Delaware corporation
("Seller) and AMI Partners, L.L.C., an Illinois limited liability company
("Purchaser").
This Rider is attached to and made a part of that certain Real Estate
Sales Contract (the "Contract") dated of even date herewith by and between
Seller and Purchaser. To the extent of any conflict between the terms of the
Contract and this Rider, the terms of this Rider shall control. All terms herein
that are capitalized but not defined shall have the meaning in respect thereof
set forth in the Contract.
R-1 The personal property that is included within the Contract is
solely the HVAC equipment and systems at the Premises, and any
maintenance supplies.
R-2 Title at Closing shall be subject to the items set forth in
Paragraph 2 of the Contract, with the following corrections
and additions thereto:
a. The title insurance policy reference shall be changed
to Chicago Title Insurance Company Title Insurance
Policy No. 002002518 dated November 20, 2000.
b. Additional matters to which title may be subject are:
(i) Matters caused by, through or under Purchaser;
(ii) Matters known to Purchaser;
(iii) The leases and other matters set forth in or
pursuant to the documents executed
concurrent with the Contract and this Rider;
and
(iv) Customary operations contracts in respect of
the Premises.
R-3 The endorsements to be set forth in the title insurance policy
issued at Closing will be the same as set forth in the above
referred to title insurance commitment except that the
creditor's rights endorsement need not be issued, and the
survey endorsement need not be issued if Seller delivers at
Closing to Purchaser the certificate of Seller that there have
been no changes to the Premises or the Improvements thereon
since the date shown on North Survey, Ltd. No. 31786 dated
June 1, 2000 and revised October 26, 2000. Further, in case
Seller delivers such certificate, Seller will not be obligated
to provide to Purchaser an updated survey. If Seller fails to
deliver the title insurance policy as required herein, or if
the title insurer will not accept the Seller's certificate to
issue its extended coverage endorsement over Survey matters,
then the sole remedy of Purchaser in respect thereto shall be
to terminate the Contract, as amended by this Rider, and to
terminate the other documents to be executed concurrent
herewith, as its sole remedy.
R-4 All references to ▇▇▇▇▇▇▇ money shall be deleted. The
following paragraph numbers of the Contract are hereby
deleted: 3, 6, 7, 9, 11, 12, 18, 19, 23, 24, 25, 27 - 31, 36,
37.
R-5 Seller has delivered to Purchaser a copy of Seller's most
recent environmental report on the Premises. Such report and
any other reports or documents ("Reports") 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 documents or 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, 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.
R-6 If Purchaser is not satisfied with the condition of the
Premises, or its HVAC and other fixtures, systems or
appliances, at the time of Closing, then the sole remedy of
Purchaser in respect thereof shall be to terminate the
Contract.
R-7 Seller is selling the Premises without representation or
warranty, and except as otherwise set forth in the Contract
(as amended hereby) or this Rider, Seller shall have no
obligation to make any repairs, pay for any environmental or
other inspections or reports, or do or perform any
environmental or other work in or on or under the Premises.
Seller also shall not be responsible for any violations of
laws or ordinances. Without limiting the generality of the
foregoing, Purchaser is relying solely on its own inspection
and examination in purchasing the Premises; and is purchasing
the Premises on an "as-is" basis and condition with all faults
and defects now known or hereafter discovered by Purchaser.
Neither Seller nor any of its agents or representatives make
any representation or warranty to Purchaser, express or
implied, as to (a) the suitability of the Premises for
Purchaser's intended use, or any particular purpose or the
merchantability thereof, (b) the profitability of the
operation of the Premises or the income to be derived
herefrom, (c) the environmental condition of the Premises, (d)
the suitability of the Premises for any and all activities and
uses which Purchaser may conduct thereon, including the
possibilities for future development of the Premises, (e) the
compliance of or by the Premises or their operation with any
laws, rules,
2
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, (f)
the manner or quality of the construction or materials, if
any, incorporated into the Premises, (g) the manner, quality,
state of repair or lack of repair of the Premises, (h) the
presence or absence of hazardous materials at, in, on, under,
or adjacent to the Premises or any other environmental matter
or condition of the Premises, (i) any other matter with
respect to the condition of the Premises, and (j) any tax
consequences, favorable or otherwise, resulting from
Purchaser's acquisition or operation of the Premises; and all
such representations and warranties are hereby expressly
disclaimed by Seller, and Purchaser hereby releases Seller
from any and all responsibility and liability in respect
thereof, including without limitation any claims, causes of
action or liability arising out of or relating directly or
indirectly to any known or unknown hazardous materials at, in,
on, under or adjacent to the Premises. Any representations,
warranties or statements made by any agent or representative
of Seller, including without limitation any broker, may not be
relied upon by Purchaser and do not constitute a part of the
Contract or this Rider.
R-8 Purchaser has satisfied itself as to any required approvals,
permits, inspections and licenses from the City of West
Chicago in respect of the Premises and the operations thereof.
Seller shall have no responsibility in this respect.
R-9 Seller represents and warrants as follows:
a. Neither the execution, delivery nor performance of
this Agreement (or any instrument or document to be
executed or delivered pursuant to the terms hereof)
will result in the violation of any contractual
obligation of the Seller to any third party; nor will
such execution, delivery or performance conflict
with, constitute an event of default under, or result
in a breach of or violation of the provisions of any
agreement or other instrument to which the Seller is
a party or by which its properties or assets are
bound, or of any applicable law, judgment, order,
writ, injunction, decree, rule or regulation of any
court, administrative agency or other governmental
authority, or any determination or award of any
arbitrator.
b. No party other than Purchaser has any claim to the
Premises by reason of any purchase agreement, option
to purchase, right of first refusal, land installment
contract, lease or other similar agreement or
instrument entered into by Seller.
c. To the knowledge of Seller, no written notice of a
violation of any Environmental Law has been received
by Seller from any governmental authority that has
not been corrected. The foregoing representation and
warranty is subject to matters known to Purchaser,
including without limitation matters contained or
referred to in all Reports described in
3
Paragraph R-5 and in the document recorded in the
Office of the Recorder of Deeds of DuPage County,
Illinois as Document No. R2002-136175. The term
"Environmental Law" includes any federal, state or
local law, statute, ordinance or regulation
pertaining to health, industrial hygiene or the
environmental conditions on, under or about the
Premises, including, without limitation, the
Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. Sections 9601 et seq.,
the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901 et seq., and Hazardous Material
Transportation Act, 49 U.S.C. Section 1801, et seq.
d. To Seller's knowledge it has received no written
notice of any actual or threatened condemnation or
appropriation proceeding affecting the Premises.
e. There are no assessments, which have become a lien
against the Premises, or any mechanic's or
materialmen's liens filed or threatened against the
Premises, and no work has been performed by Seller or
materials provided for Seller for which a lien could
be filed.
f. To Seller's knowledge, it has received no written
notice from its insurance company of any defects or
inadequacies in the Premises or any part thereof
which would adversely affect the insurability of the
Premises.
g. To Seller's knowledge, it has received no written
notice from any local, state or United States or
other governmental authority of any zoning, building,
fire, health code or environmental violations in
respect of the Premises that have not been heretofore
corrected.
R-10 The parties hereto represent and warrant that they have
authority to enter into this Agreement and perform its terms
and that their respective Boards of Directors have unanimously
approved this Agreement and the Sale of the Real Estate and
Personal Property by Seller and their purchase by Purchaser,
respectively. Seller shall deliver at closing a certified copy
of its Board of Directors resolution approving this Agreement
and the said sale.
R-11 If there shall be any breach of any of the representations and
warranties set forth herein and/or in the Contract, as amended
hereby, and/or the closing documents, Purchaser shall be
required to act, if at all, on said breach by giving notice
thereof to Seller within one (1) year after the date hereof
and by filing action against Seller in court in respect
thereof within one (1) year after the date hereof. Further,
there shall be no liability of Seller in respect of any breach
of representation and warranty set forth herein and/or the
Contract, as amended hereby, and/or the closing documents in
respect of claims which together with all other claims
pursuant hereto exceed an aggregate of $100,000; and there
shall be no liability of Seller in respect of any breach of
representation and warranty set forth herein and/or the
Contract, as amended hereby and/or the closing documents in
respect
4
of claims which together with all other claims in respect
thereof do not exceed in the aggregate $5,000. Further, no
representation or warranty of Seller hereunder and/or in the
Contract, as amended hereby, and/or the closing documents
shall be deemed to have been breached if Purchaser closes the
purchase and sale contemplated hereby with knowledge by it or
its agents of any such breach.
R-12 It is understood between the parties that the documents listed
on Exhibit A attached hereto and made a part hereof are being
executed concurrent herewith.
R-13 Real estate taxes shall be prorated on the basis of 100% of
the most recent ascertainable taxes and shall be reprorated
upon the basis and on the issuance of the final ▇▇▇▇ for 2003.
R-14 The Closing Date set forth in Paragraph 4 of the Contract
shall be January 26, 2004.
SELLER: PURCHASER:
M-Wave, Inc. AMI Partners, L.L.C.
By: ___________________________ By: ____________________________________
Gurdhan ▇▇▇▇▇, its ______________
Its: President
5
