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1995-01-04 Cohen Option Agreement/~ KECK, MAHIN & GATE FILE NVMBER 14022004 DIRECT DIAL January 4, 1995 Mr. Leslie B. Cohen Cohen Development Company 406 SW Washington Street Peoria, Illinois 61602 RE: Albertville, Minnesota Project Dear Les: 331 FULTON STREET SUITE 640 PEO RlA,ILLiN OlS 61602-8866 (309) 673-1681 FAX (309) 673-1690 Enclosed are two (2) copies of the Option Agreement for the Albertville property. In addition to signing the Agreement, there are two places that need to be initialed (as marked). I have also enclosed a Memorandum of Agreement, which I recommend be executed and recorded. The Option should be signed and attested, and the Memorandum should be signed and notarized, and both should be returned to me at your earliest convenience. In addition, please return to me a check made payable to the Rodens in the amount of $2,000, as payment of the initial fee. An additional $2,000 will need to be paid to the Rodens on each May 1 and November 1 through the term of the option, beginning May 1, 1995. If this option amount is not paid, the option will terminate. If you have any questions or comments, please do not hesitate to call. Very tr,~ ~ou _s, " ~~~ / ~i r~~ Michael R. eghetti MRS~ckd 795-8.L Enclosures A LAW PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS CHICAGO, ILLINOIS WASHINGTON, D. C. HOUSTON, TEXAS LOS ANGELES, CALIFORNIA NEW YORK SAN FRANCISCO, CALIFORNIA OAKBROOK TERRACE, ILLINOIS SGHAUMBURG, ILLINOIS STATE OF ILLINOIS COUNTY OF PEORIA SS. I, the undersigned, a Notary Public in and for said County and State aforesaid, DO HEREBY CERTIFY that Leslie B. Cohen, personally known to me to be the Executive Vice President of Cohen Development Company, an Illinois corporation, and personally known to me to be the same person whose name is subscribed to the foregoing instrument as such Executive Vice President, appeared before me this day in person and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act as such Executive Vice President, and as the free and voluntary act of said corporation for the uses and purposes therein set forth; and on his oath stated that he was duly authorized to execute said instrument. GIVEN under my hand and notarial seal this ~~~~ day of ;~;::...___:A.D., 1995. OFFlCL4L SEAL Mary A. Hall Notary Public, State of I{tinois My Commission Expires 7-28-95 STATE OF, SS. COUNTY OF ) c Notar P~$Iic I, the undersigned, a Notary Public in and for said County in the State aforesaid, do hereby certify that Bernard J. Roden and Judith A. Roden, personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed and delivered said instrument as their free and voluntary act for the uses and purposes therein set forth, including the release and waiver of the right of homestead. GIVEN under my hand and notarial seal this day of A.D., 1995. Notary Public 795-7.A EXHIBIT A f" DESCRIPTION OF REAL PROPERTY A. T1iat part of the East Half of the Southwest Quarter and that r.~rt of the Southeast Quarter of the Northwest Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, lying north of the northerly right-of-way line of Interstate Highway Number 94. Containing 29.42 acres. B. That part of the North Half of the Southeast Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, lying northerly of Interstate Highway No. 94, subject to the i fight of way of Wright County ~iighway No. 19 over the east 41.25 feet thereof. Also that part of the South Half of the Northeast Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, descrik~ed as follows: Beginning at the southwest corner of said South Half of the Northeast Quarter; thence north along the west line of said South Half of the Northeast Quarter, a distance of 88.34 feet; thence southeasterly a distance of 179.25 feet to a point on the south line of said South Half of the Northeast Quarter, distant 156.96 feet east of the southwest corner of said South Half of the Northeast Quarter; thence west along said south line, a distance of 156.96 feet to the point of beginning. Containing 39.61 acres. C. The South Half of the Northeast Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, except the following tracts: .Except the East 660.00 feet of the South 660.00 feet of said South Half of the Northeast Quarter. Except the north 225.00 feet of the east 580.80 feet of said South Half of the Northeast Quarter. Except that part of said South Half of the Northeast Quarter described as follows: Beginning at the southwest corner of said South Half of the Northeast Quarter; thence north along the west line of said South Half of the Northeast Quarter, a distance of 88.34 feet; thence southeasterly a distance of 179.25 feet to a point on the south line of said South Half of the Northeast Quarter, distant 156.96 feet east of the southwest corner of said South Half of the Northeast Quarter; thence west along said south line, a distance of 156.96 feet to the point of beginning. 122294 =v t ' ~ k± t T .~ ~ 4 ' liabilities relating to Optionee's activities. Optionee shall further repair and restore any damage to the Property caused by or occurring during Optionee's testing and return the Property to substantially the same condition as existed prior to such entry. Soil Testing ContinQency. The Optionee shall have one (1) year from the date of this Agreement to perform soil tests for hazardous wastes and toxic substances and other environmental conditions. If the tests indicate that toxic substances, hazardous wastes or environmental conditions reasonably unacceptable to Optionee exist on the Property, the Optionor shall either make the corrections at Optionor's expense necessary to satisfy the Optionee that such hazardous waste and toxic substance has been removed, or elect not to make said corrections. In the event Optionor does not make said corrections or cannot complete said corrections to the reasonable satisfaction of the Optionee prior to closing, the Optionee may cancel this Agreement and all monies paid shall promptly be refunded to the Optionee. In the event Optionee does not exercise this Option and Purchase the Property, Optionee agrees upon the termination of the Option to provide to Optionor all test results, surveys, environmental reports and wetland delineation reports in regard to the Property. Hazardous waste. Optionor hereby represents, that to the best of Optionor's knowledge, Optionor has neither caused, permitted or have any knowledge of any storage, disposal, or dumping of hazardous substances on the Property in violation of Federal or State law. Posting of Proper. Optionor shall have the right to post the Property that ha.s been purchased by Optionee with the Notice contemplated by lKinn. Stat. 514.06 and Optionee shall keep and maintain said posted Notice in a conspicuous place on the Property at all times until all the Property has been purchased by Optionee from Optionor pursuant to this Agreement. Binding on Heirs and Assigns. The terms and agreements contained herein shall be; binding on Optionor, Optionor's heirs and Optionor's assigns. Memorandum of Agreement. Optionor and Optionee agree that upon the request of either party, they will execute a Memorandum of this Option Agreement which shall be in recordable form and shall set forth Optionee's rights to purchase the Property. Default Provision. If Optionor does not receive timely payment of the semi-annual Option Fees, Optionor agrees to send Optionee written notice citing the missed Option Fee. Optionee, upon receiving notice, must pay Optionor the missed payment, within ten (10) days, otherwise, Optionee is in default and this Agreement is terminated. If the Agreement is terminated, Optionee agrees to 122294 2 r execute and deliver to Optionor a Quit Claim Deed conveying to Optionor all of the Property that has not been purchased at the date of termination and Optionor will retain all Option Fees received to date of termination as liquidated damages. Termination of Option by Oationee. Optionee may terminate this Option Agreement at any time during the term of this Option Agreement by giving written notice to Optionor. Optionor will retain all Option Fees as liquidated damages. Optionee agrees to execute and deliver to Optionor a Quit Claim Deed conveying to Optionor all of the Property Optionee has not purchased from Optionor. Real Estate Taxes and Assessments. The Optionor agrees to pay all real estate taxes due in the years prior to the closing. Real estate taxes due in the year of closing shall be governed in accordance with the terms of the Purchase Agreement. Optionor further agrees to pay any special assessments levied as of the date of this Agreement. Any assessments levied after the date of this Agreement, whether it is the result of Optionee's activities in regard to the development of the property or not, shall be paid by Optionee in accordance with the terms of the Purchase Agreement. In the event that Optionee does not exercise the option provided for herein, Optionee shall not be responsible for paying any real estate taxes or special assessments. Notices. All notices required herein shall be in writing and delivered personally or mailed to the following addresses: Bernard J. Roden and Judith A. Roden 10395 - 70th Street N.E. Albertville, MN. 55301 with copy to John R. Gries, Esq., Foster, Waldeck, Lind & Gries, Ltd., 2300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, Minnesota 55402. with copy to RCI Properties, Mr. Mike Potter, 11650 - 57th Street N.E., Albertville, MN. 55301. Cohen Development Company Att: Mr. Les Cohen 406 South West Washington Street Peoria, I11. 61602 with copy to John S. Elias, Keck, Mahin & Cate, Suite 640, 331 Fulton Street, Peoria, I11. 61602. 122294 3 Time is of the Essence. Time is of the essence for all provisions of this Agreement. OPTIONORB: OPTIONEE: Bernard J. Roden Judith A. Roden Its: Dated: Cohen Development Company By: L~ ~~ Dated: 1 ~~ 122294 4 i ERXIBIT "A" Legal Description A. That part of the East Half of the Southwest Quarter and that part of the Southeast Quarter of the Northwest Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, lying north of the northerly right-of-way line of Interstate Highway Number 94. Containing 29.42 acres. B. That part of the North Half of the Southeast Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, lying northerly of Interstate Highway No. 94, subject to the right of way of Wright County Highway No. 19 over the east 41.25 feet thereof. Also that part of the South Half of the Northeast Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, described as follows: Beginning at the southwest corner of said South Half of the Northeast Quarter; thence north along the west line of said South Half of the Northeast Quarter, a distance of 88.34 feet; thence southeasterly a distance of 179.25 feet to a point on the south line of said South Half of the Northeast Quarter, distant 156.96 feet east of the southwest corner of said South Half of the Northeast Quarter; thence west along said south line, a distance of 156.96 feet to the point of beginning. Containing 39.61 acres. C. The South Half of the Northeast Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, except the following tracts: Except the East 660.00 feet of the South 660.00 feet of said South Half of the Northeast Quarter. Except the north 225.00 feet of the east 580.80 feet of said South Half of the Northeast Quarter. Except that part of said South Half of the Northeast Quarter described as follows: Beginning at the southwest corner of said South Half of the Northeast Quarter; thence north along the west line of said South Half-of the Northeast Quarter, a distance of 88.34 feet; thence southeasterly a distance of 179.25 feet to a point on the south line of said South Half of the Northeast Quarter, distant 156.96 feet east of the southwest corner of said South Half of the Northeast Quarter; thence west along said south line, a distance of 156.96 feet to the point of beginning. 122294 5 Containing 67.12 acres and subject to the right-of-way of Wright County Highway No. 19 over the east 41.25 feet thereof. (See attached map) 122294 6 r S~~L•1"t~~:~J j~ ~T C~ w ~'J 1 r' ~ {~ 1 Z J ~~~ ~~•~~ ~ _ i • ~, 2~~N~,~1Gc2 Na~~~2 Ott=n_~tS RoDCN ~ L t ~ ~ ._..~ .c = ~.r .~TSFGc7'~ ~. ~ .~ ~ x : rya= p ; ... ~ ~ ~ ~~ t ~ c ' , I _ i c,_n~.i,v \ .. + ~ ~~,, ~ ~ ~ \ ~ \ ~~~ y ,z ~ ~ ~~~ ~ a~~ \ \ • s.,,r ~~ ~ ~ ~~ ~ ' .` . -~ ~ ~~ ~ ~~. ~ . , ~~ ~ Sys l~ v ~- ~= S ~ ~ y i t ~l EXHIBIT "B" j . AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY (the "Agreement") is made and entered into this. day of 199_, by and between ("Seller"), and ("Purchaser"). A I T N E S S E T H AHEREAS, Purchaser desires to purchase real property and appurtenances thereto belonging described in Section 1 below and in connection therewith Seller and Purchaser desire to enter into this Agreement to set forth the terms and conditions of such purchase and sale. NOA, THEREFORE, in consideration of the mutual premises, covenants and conditions herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows; 1. Bale Agreement. Seller hereby agrees to sell to Purchaser and Purchaser hereby agrees to purchase from Seller, subject to all of the terms and conditions of this Agreement, that certain real ' property located near Albertville, Minnesota described on Exhibit A attached hereto and incorporated herein, together with all privileges, rights, easements, hereditaments and appurtenances thereunto belonging (the "Real Property"). Seller shall convey merchantable title to the Real Property to Purchaser by general warranty deed, free and clear of all liens and encumbrances, and hot subject to any easements, covenants, restrictions, dedications or rights of way, or other matters affecting title to the Real Property or use of the Real Property, except for those title exceptions accepted by Purchaser pursuant to Section 3.1.1 hereof and the standard exceptions in 3.1 hereof (the "Permitted Objections"). 2. Purchase Price. The purchase price of the Reai Property ("Purchase Price") shall be Seven Hundred Thirty Three Thousand Eight Hundred Forty Eight and no/100 ($733,848.00) Dollars, less any Option Fees to be credited against the purchase price as provided in the Option Agreement. The balance of the purchase price shall be paid as follows: (a) Twelve Thousand ($12,000.00) Dollars in cash including any Option Fees to be applied to the purchase price as provided in the Option Agreement, upon execution of this Agreement as earnest money ("Earnest Money"); and 122294 7 /~ i'_ (b) The balance of the Purchase Price (in excess of the Earnest Money and Option Money) at Closing, plus or minus credits and prorations provided for herein, in cash or by certified, cashier's or escrowee check or bank wire transfer of collected federal funds. 3. Conditions Precedent. Purchaser's obligations under this Agreement shall be subject to the following conditions precedent being satisfied to the satisfaction of the Purchaser (or waived by Purchaser in writing): 3.1 Title Commitment and Policy. Purchaser shall be entitled to obtain a title commitment ('Title Commitment") for an ALTA Form B Owner's Title Insurance Policy ("Title Policy"), including extended coverage, issued by a Title Insurance Company licensed to do business in Minnesota, covering the real property in the amount of the purchase price showing merchantable record title to the Real .Property to be in Seller, subject to matters approved or waived in writing by the Purchaser (see 3.1.1 below) and the following standard exceptions: (a) Building and Zoning Laws, Ordinances, State and Federal Regulations. (b) Reservation of any minerals or mineral rights to the State of Minnesota. (c) Utility and drainage easements which do not interfere with present improvements. (d) Rights of Franklin Outdoor Advertising pursuant to Lease dated September 28, 1990. of tenants (see 5.2 below). 3.1.1. Objections to Title of Record. At least thirty (30) days prior to Closing, Purchaser shall furnish to Seller written notification of any objections to or defects in title of record set forth in the Title Commitment. If Purchaser fails to give said notice within said thirty (30) day period, Purchaser shall be deemed to have accepted all matters then affecting title to the Real Property set forth in the Title Commitment. If Purchaser does give said notice, Purchaser shall be deemed to have accepted all matters set forth in the Title Commitment not set forth in the notice (provided Purchaser shall not be deemed to have waived any General Exceptions other than as specifically provided in this Section 3 .1) . After receipt of said notice, Seller shall have the right, at its election, to endeavor to cure such objections to or defects in title set forth therein and shall notify Purchaser of such election within ten (10) days. If Seller does elect to endeavor to cure such objections to or 122294 $ defects in title, it shall promptly commence and diligently pursue. efforts to cure such objections. 3.1.2. Failure to Cure Objections. In the event Seller fails to cure Purchaser's objections to or defects in title within thirty (30) days of receiving notice of such objections to or defects in title, or if Seller shall determine that its efforts to cure will not be successful, Purchaser may either (i) waive such title objections to or defects in title and proceed with closing hereunder or (ii) terminate this Agreement and obtain an immediate return of the Earnest Money. In the event of termination, the parties shall have no further rights or liabilities under this Agreement. 3.2 Representations. The representations, covenants and warranties made by Seller, under Section 5 hereof shall be true and correct as of the Closing Date. If all of the conditions set forth in this Section 3 are not satisfied (or waived by Purchaser) on or before the Closing Date, then Purchaser may terminate this Agreement and obtain an immediate return of the Earnest Money. In the event of such termination, the paz•ties shall have no further rights or liability under this Agreement. 4. Closing Date. The Closing (.the "Closing") shall be on _ at .m., or such earlier date as may be agreed upon by Purchaser and Seller in advance (the "Closing Date"). The Closing shall be held at the offices of 4.2 seller's Deliveries. At Closing, Seller shall deliver to Purchaser the following: 4.2.1. Deed. An executed general warranty deed to the Real Property (in the form required by Section 1 hereof) prepared by Seller and in a form reasonably acceptable to Purchaser. 4.2.2. Title Policy. The Title Policy provided for in Section 3.1 hereof. 4.2.3. Alta Statement. An executed Alta Statement in the form required by the Title_ Insurer. 4.2,4. Non-Foreign Affidavit. An executed Non- Foreign Affidavit as required by Section 1445 of the Internal Revenue Code. 4.2.5. Seller's Certification. Seller's certification, dated the Closing Date, confirming that the 122294 g r representations, warranties and covenants of Seller set forth herein are true and correct and/or have been complied with as of the Closing Date. 4.2.6. Other Documents. Such other documents, instruments, certifications and confirmations as may be reasonably required by Purchaser to fully effect and consummate the transactions contemplated hereby. 4.3 Purchaser's Deliveries. At Closing, Purchaser shall deliver to Seller the following: 4.3.1. Purchase Price. The cash portion of the Purchase Price as set forth in Section 2 hereof, plus or minus prorations provided for herein. 4.3.2. Alta Statement. An Alta Statement in the form required by the Title Insurer. 4.3.3. Other Documents. Such other documents, instruments, certifications and confirmations as may reasonably be required by Seller to fully effect and consummate the transactions contemplated hereby. 4.3.4. Certified Resolutions. A certified copy of the resolutions of Purchaser's directors (and, if required, shareholders) authorizing Purchaser to enter into this Agreement and consummate the transactions contemplated hereby; and specifically authorizing Les Cohen to execute this Agreement and all related documents on behalf of Purchaser. 4.4 Joint Deliveries. At Closing, Seller and Purchaser shall jointly deliver to each other the following: 4.4.1. Closing Statement. An agreed upon closing statement. 4.4.2. Transfer Tax Filings. Executed documents complying with the provisions of all federal,. state, county and local law applicable to the determination of transfer taxes. 4.5 Possession. Sole and exclusive possession of the Real Property shall be delivered to Purchaser on the Closing Date. 4.6 Property Taxes. All real property taxes on the Real Property payable in all calendar years prior to the year of closing shall be paid by Seller prior to or at Closing. Real Property taxes on the Real Property payable in the year of closing shall be 122294 10 . . . . ~' ~~ prorated from January 1 of the year of Closing to the Closing Date based on the latest available tax statement. 4.7 Closing Costs. Seller shall pay the following costs: Seller's attorneys fees, brokerage commissions set forth in Section 4.8 hereof, any transfer taxes or documentary stamps and cost of Abstract extension. Purchaser shall pay the following costs: Purchaser's attorneys fees, title commitment fees, title closing costs, recording fees. In addition, both parties shall pay other expenses normally incurred by Sellers and Buyer respectfully in similar transactions in the State of Minnesota. !.8 Brokerage Commission. Seller represents to Purchaser that no real estate broker has been engaged by Seller with regard to this transaction except RCI Properties, which shall be entitled to a commission equal to seven (7~) percent of the Purchase Price, which commission shall be paid by Seller at Closing. Purchaser represents to Seller that no real estate broker has been engaged by Purchaser with regard to this transaction except Craig K. Anderson who shall be paid by Purchaser. Each party (the "Indemnifying Party") agrees to indemnify and hold the other harmless against any brokerage commissions due to any real estate broker claiming to have been engaged by the Indemnifying Party with regard to this transaction. 4.9 Special Assessments. Seller will pay any unpaid special assessments levied prior to October 15, 1994, including any deferred assessments for impravments installed prior to October 15, 1994. Any special assessments levied after October 15, 1994, or improvements to be installed after that date, shall be paid by Purchaser. The Seller is unaware of any special assessments to be levied against the Subject Premises as of the date of this Agreement. 5. Seller's Representations, Rarranties and Covenants. In addition to all other representations, covenants and warranties by Seller herein, Seller hereby represents, covenants and warrants as of the date hereof and as of the Closing Date, as follows: 5.1 Ownership. Seller is the sole owner of and has good and merchantable fee simple title to the Real Property, free and clear of all liens, encumbrances, easements, covenants, restrictions, dedications or rights-of way, or other matters affecting title to the Real Property or use of the Real Property, except the Permitted Objections and other matters approved in writing by Purchaser. 5.2 Liens and Liabilities. (a) Except for the Permitted Objections, the Real Property is not subject to any liens, encumbrances, security interests, liabilities, easements, covenants, restrictions, dedications, rights-of-way, leases or 122294 11 r judgments of any kind whatsoever except also the Lease in favor of Franklin Outdoor Advertising dated September 28, 1990. (b) Seller shall be responsible for all debts, claims, contracts and liabilities in any way connected with the conduct of its operations on the Real Property, and Purchaser shall have no liability for Seller's operations conducted on the Real Property or otherwise or for any liabilities, known, unknown, contingent or otherwise, of Seller. (c) Purchaser agrees to allow to Sellers access across the Property to Seller's remaining property located to the west and north of the Property. Said access shall be at locations designated by Purchaser. Purchaser shall not be required to construct any additional roadways pursuant to this section. 5.3 Notice of Litigation or violation. Seller has received no notice, nor has Seller any knowledge, of any actions or claims filed or threatened by anyone against the Real Property or Seller in connection with any injury or damages sustained incidental to the use or occupancy of the Real Property. Seller shall promptly notify Purchaser of any such notice received between the date hereof and the Closing Date. Seller knows of no violation of any federal, state, county or municipal law, ordinance, order, rule of regulation affecting the Real Property, and Seller has received no notice of any such violation issued by any governmental authority. 5.4 Ricihts in Real Property. There are no options, purchase contracts, or other agreements of any kind or nature, written or oral, whereunder or whereby any party could claim or assert any right, title or interest in the Real Property. 5.5 Governmental Regulation. The Real Property complies in all respects with all statutes, ordinances, regulations and administrative or judicial orders or holdings, whether or not appearing in public records, and the consummation of the transactions contemplated by this Agreement shall not violate any such statutes, ordinances, regulations and administrative or judicial orders or holdings or any other agreement or indenture by which Seller is bound. 5.6 Hazardous Substance. (a) Seller has not: (i) conducted or authorized the storage, treatment, or disposal on the Real Property of any hazardous substances, (ii) handled, treated, stored, transported, released or disposed of any hazardous or toxic materials, substances, pollutants, contaminants or wastes on the Real Property, (iii) to the best of Seller's knowledge allowed the migration of any hazardous substance from the Real Property onto any neighboring property, (iv) became aware of any pending or threatened litigation 122294 12 ,- or proceedings before any court or any administrative agency in which any person or entity alleges the release or threat of release, on or in the Real Property of any hazardous substance, (v) received actual or constructive knowledge that any governmental or quasi-governmental authority or agency (federal, state or local) or any employee or agent thereof has determined, or threatens to determine, that there is a release or threat of release on or in the Real Property of any hazardous substance. There have been no communications of agreement with any governmental or quasi- governmental authority or agency (federal, state or local) or any person or entity, including, but not limited to, any prior owners of the Real Property relating in any way to the release or threat of release, on or in any part of the Real Property of any hazardous substance. For purposes of this Agreement, "hazardous substance" shall mean any matter giving rise to liability under the Resource, Conservation, Recovery Act, 42 U.S.C. Section 6901 et seg., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et sea., any state or local law regulating hazardous or toxic waste, asbestos, environmental protection, spill compensation, clean air and water, or under any common law theory based on nuisance or strict liability; (b) There are no underground storage tanks located on the Real property; and (c) To the best of Seller's knowledge, no polychlorinated biphenyls, asbestos, or hazardous substances were stored, treated or disposed of on the Real Property, and that there currently are no polychlorinated biphenyls, asbestos or hazardous substances located on the Real Property. 5.7 Leases. No persons are in possession of the Real Property under any oral or written leases except (See 5.2 above). 5.8 Encroachments. No improvements upon the Real Property encroach upon adjoining real estate, nor do any improvements upon adjoining real estate encroach upon the Real Property. 6. Indemnity. Seller hereby agrees to indemnify, defend and hold harmless Purchaser and its officers, shareholders, directors, employees, agents and beneficiaries against any and all losses, liabilities, fines, penalties and damages (including attorneys' fees), (including, without limitation, any damage or injury to persons, property or the environment provided herein) incurred by Purchaser as a result of matters with respect to the real property, arising prior to the closing date, except for liabilities specifically assumed by the Purchaser, pursuant to the terms of this Agreement. 7. Default. If Seller wrongfully refuses to close the sale of the Real Property to Purchaser or is unable to close the sale of 21 294 13 /,_ q,~c4 1'~.t n ~"F -1-o recpver ;. as c~.a 2~t.nnt'''~ °-~ i -h c~a~ ages, recs ~^•aWt a tt~*'A^1 S -~~ av eR C~}-r- k~ C~ s ~"S a~ c4 a ! ( o ~.et~ cQar- C ~-.,,1, -fy, o,(. P~.rzl~es.tr- ..~,Il Sv~.r aS o ~S"'t ~~ Se.1ta.~-S br4cC1.. ar ~~~ t.lc ~n2rQ.~.n/t~t.~` the Real Property under the terms of this Agreement, the ame shall constitute a breach of this Agreement and Purchaser shall be entitled to all remedies under Minnesota law at the ime of the L~ breach, including, without limitation, terminatio of this Agreement and return of the Earnest Money; specific performance, with the rights, but not the obligatio , to perform Seller's covenants and agreements hereunder and to de ct the costs and expense of such performance, including reasonab a attorneys' fees, from the Purchase Price payable hereunder If Purchaser wrongfully refuses to close the purchase of the Real Property and pay the Purchase Price to Seller, the same shall constitute a breach of this Agreement and Seller shall be entitled to retain the Earnest Money as liquidated damages and as its sole and exclusive remedy hereunder in lieu of any and all other remedies at law or in equity. 8. Assignment. Purchaser may assign its rights under this Agreement with prior written notice to Seller. 9. Condemnation. If any portion or portions of the Real Property sh.al.l be taken by condemnation or any other proceeding in the nature of eminent domain from and after the date hereof, unless said condemnation or proceeding was initiated by Purchaser, Furchaser, within fifteen (15 ) days after Purchaser receives notice of such taking, shall be entitled to declare this Agreement null and void upon fifteen (15) days' written notice to Seller. In the evert of termination, the parties shall have no further rights or liak~ilities under this Agreement and the Earnest Money shall be returned to Purchaser. If Purchaser has not notified Seller of its election to terminate within the aforesaid time period, this Agreement shall continue in full force and effect and there shall be not abatement of the Purchase Price. Seller shall be relieved, however, of the duty to convey title to the portion or portions of the Real Property so taken, but Seller shall, at Closing, assign to Purchaser all of Seller's rights and claims in and to any unpaid awards arising from such taking and credit to Purchaser on account of the Purchase Price all awards therefor collected by Seller (less all reasonable costs and expenses, including, without limitation, attorneys fees, expenses and court costs incurred by Seller to collect such awards). 10. Exchange. In the event Sellers are able to locate suitable replacement real estate, Purchasers agree to cooperate with Sellers in regard to an exchange of the replacement property for the Subject Property, the value of the replacement property to apply against the Purchase Price, so long as Purchasers ability to assign its rights hereunder or proceed with its project would not be impaired. Sellers agree to indemnify and hold Purchasers harmless in regard to all matters regarding the replacement property including closing costs including attorneys' fees (attorneys' fees not to exceed $300.00). 122294 14 i~ li. Miscellaneous. It is further understood and agreed as follows: 11.1 Counterparts. This Agreement may be .executed in any number of counterparts, each of which shall be an original, and such counterparts together shall constitute one and the same instrument. 11.2 Survival. The representations, warranties, covenants and agreements contained in this Agreement shall survive the Closing and the delivery of the deed without limitation. 11.3 severability. If any provisions of this Agreement shall be held to be void or unenforceable for any reason, the remaining terms and provisions hereof shall not be affected thereby. 11.4 Time. Time is of the essence of this Agreement. 11.5 Bindinq Effect. The provisions of this Agreement shall inure to the benefit of and bind the successors and assigns of the parties hereto. 11.6 Amendment and Waiver. This Agreement may be amended at any time in any respect only by an instrument in writing executed by Seller and Purchaser. Either party may waive any requirement to be performed by the other hereunder, provided that said waiver shall be in writing and executed by the party waiving the requirement. 11.7 Integrated Agreement. This Agreement constitutes the entire agreement between Purchaser and Seller relating to the purchase of the Real Property, and there are no agreements, understandings, restrictions, warranties or representations between Purchaser and Seller other than those set forth herein. 11.8 Choice of Law. It is the intention of Seller and Purchaser that the laws of Minnesota shall govern the validity of this Agreement, the construction of its terms and interpretation of the rights and duties of Purchaser and Seller. 11.9 Notices. All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing (including telex and telegraphic communication) and shall be (as elected by the person giving such notice) hand delivered by messenger or courier service, telecommunicated, or mailed (airmail if international) by registered or certified mail (postage prepaid), return receipt requested, addressed to: 122294 15 ~, ~ i. If to Seller: Mr. Bernard J. Roden 10395 - 70th Street N.E. Albertville, MN 55301 With copy to: Mr. John Gries, Esq. Foster, Waldeck, Lind &Gries, Ltd. 2300 Metropolitan Centre 333 South Seventh Street Minneapolis, MN 55402 (612) 375-1550 and RCI Properties Attn: Mr. Mike Potter 11650 - 57th St. N.E. Albertville, MN 55301 If to Purchaser: Cohen Development Company Attn: Mr. Les Cohen 406 South West Washington Street Peoria, I11 61602 (309) 673-0790 (309) 673-4308 (fax) With copy to: John S. Elias Keck, Mahlin & Cate Suite 640 331 Fulton Street Peoria, I11 61602 Telefax: (309) 673-1690 or to such other address as any party may designate by notice complying with the terms of this paragraph. Each such notice shall be deemed delivered (a) on the date delivered if by personal delivery; (b) on the date of transmission with confirmed answer back if by telex, telefax or other telegraphic method; and (c) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not. deliverable, as the case may be, if mailed. .11.10 Waiver of Tender. Formal tender of an executed deed and the Purchase Price each is hereby waived. 11.11 Disarepancy in Description. - At Purchaser's request, if the description of the Real Property on Exhibit A attached hereto does not correctly describe the Real Property to be purchased hereunder, as legally described in the survey to be provided by Seller to Purchaser hereunder, the description of the Real Property on Exhibit A shall be modified to correctly describe the same in accordance with the survey. 122294 16 i~ IN WITNESS WHEREOF, the parties have caused this Agreement to be executed, as of the day and year first above written. SELLER : PURCHASER : j~t~,V ~~ 1/J~LF38~- ~e -~~0~f Bernard J. Roden Judith A. Roden Attest: By: Name : -` Title Attest: 2~ 294 17 r~- EXHIBIT A DESCRIPTION OF REAL PROPERTY A. That part of the East Half of the Southwest Quarter and that part of the Southeast Quarter of the Northwest Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, lying north of the northerly right-of-way line of Interstate Highway Number 94. Containing 29.42 acres. B. That part of the North Half of the Southeast Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, Lying northerly of Interstate Highway No. 94, subject to the right of way of Wright County Highway No. 19 over the east 41.25 feet thereof. Also that part of the South Half of the Northeast Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, described as follows: Beginning at the southwest corner of said South Half of the Northeast Quarter; thence north along the west line of said South Half of the Northeast Quarter, a distance of 88.34 feet; thence southeasterly a distance of 179.25 feet to a point on the south line of said South Half of the Northeast Quarter, distant 156.96 feet east of the southwest corner of said South Half of the Northeast Quarter; thence west along said south line, a distance of 156.96 feet to the point of beginning. Containing 39.61 acres. C. The South Half of the Northeast Quarter of Section 35, Township 121, Range 24, Wright County, Minnesota, except the following tracts: Except the East 660.00 feet of the South 660.00 feet of said South Half of the Northeast Quarter. Except the north 225.00 feet of the east 580.80 feet of said South Half of the Northeast Quarter. Except that part of said South Half of the Northeast Quarter described as follows: Beginning at the southwest corner of said South Half of the Northeast Quarter; thence north along the west line of said South Half of the Northeast Quarter, a distance of 88.34 feet; thence southeasterly a distance of 179.25 feet to a point on the south Line of said South Half of the Northeast Quarter, distant 156.96 feet east of the southwest corner of said South Half of the Northeast Quarter; thence west along said south line, a distance of 156.96 feet to the point of beginning. 122294 18 ?' r r ~. r ". ~- Containing 67.12 acres and subject to the right-of-way of Wright County Highway No. 19 over the east 41.25 feet thereof . 122294 19 i ~ ~ 1 ~~,~~ ...1 ~ IG ~ ~ O-~i ~ "~ ~ I ' I ~l0 ~f~w~~>h. ~ ~ IZI Na~~~2 i + 3~.6 ; ~o~.+.=~ -----~ T'oc:.- :- _Ncl,t~...'v __t_. f ~~ \ ~~ r.U 1 ~V Containing 67.12 acres and subject to the right-of-way of Wright County Nighway No. 19 over the east 41.25 feet thereof . 122294 f ~~ s ~ ~. 1'.~ :~J j ~ ~ C~ w r.l ~ t-+ I~ I Z j ' ~ r- ~yl ! ~0.~~ ~ ~ ~ N a~ ~~2 t ~Ir=2vr5 Qo~Cnl i ;- _ .. i ~ ~.7=K=.`. ~ ~ ~ _ i G - -~. ra~ti:.-: ~--~ ~ i ~ .' ~ ~i . ~--~\ . , ~. (~ ~ ~:~\ ,. ~' > ~ ~$~~ ~J~•6 ; t i \~ S ,~ ~< ,~ . `-: ' ~ _` Syc- W E ~ r~ r.tJ i ~~: =. i c~~ OPTION AGREEMENT Ta,.iu ~ry S', I q 4 S The effective date of this Agreement is Ae~~„w,,,,.. --~°:~ between Bernard J. Roden and Judith A. Roden, husband and wife, (the "Optionors"), and Cohen Development Company, an Illinois Corporation and/or assigns, ("Optionee"). For and in consideration of $2,000.00 ("Option Fee") the receipt whereof is hereby acknowledged by Optionor, Optionor grants to Optionee the exclusive option to purchase the real estate described in Exhibit "A" ("Property") for $733,848.00 ("Purchase Price"). Said Option shall extend from the date hereof to and including May 1, 1995, at 5:00 p.m. The Option may be extended for successive six (6) month periods in consideration for an additional Option Fee of $2,000.00 for each six (6) month extension until November 1, 1997. Any additional Option Fee must be paid prior to 5:00 p.m. on the last day of any six (6) month Option or this Option shall terminate. Price. The purchase price under this Option shall be $733,848.00. The purchase price is based on a per acre price of $5,390.00 for 136.15 acres. Ap_pl.ication of Opt-ion Fee. In the event the Option is exercised on or before December 31, 1996, any Option Fees paid by Optionee to Optionor shall apply toward the purchase price. In the event the Option is extended, as provided above, beyond December 31, 1996, and is exercised after December 31, 1996, then none of the Option Fees paid by Optionee to Optionor shall apply toward the purchase price. Exercising Option. Optionee shall exercise its option to purchase the Property by completing and signing a Purchase Agreement substantially in the form of Exhibit "B" attached hereto but with the blanks filled in and delivering it to Optionor together with the additional earnest money. Optionor shall promptly sign the Purchase Agreement and return one fully executed copy to Optionee. The closing date shall be a date no more than sixty (60) days from the date the Option is exercised. The Title Company shall be a Title Company licensed to do business in the State of Minnesota. Survey by Seller. Optionor agrees to provide Optionee with a survey of the property within thirty (30) days of the execution of this Agreement at Optionors expense. - Inspection, Testing and Surveying. Optionor shall allow Optionee and Optionee's agents access to the Property without charge and at all reasonable times for the purpose of Optionee's investigation, testing and surveying of the Property. Optionee shall pay all costs and expenses in such investigation, testing and surveying and shall hold Optionor and the Property harmless from all costs and 122294 i. Document No. filed for Record in Recorder's Office of Wright County, Minnesota at o'clock .m. MEMORANDUM OF OPTION AGREEMENT Recorder of Deeds TAKE NOTICE that the undersigned have entered into an Option Agreement dated as of January 5, 1995 regarding the property more particularly described on Exhibit A attached hereto and made a part hereof. Said option, with its extensions, expires on November 1, 1997. Dated: January 5, 1995 SELLER: BUYER: COHEN DEVELOPMENT COMPANY By: ~~ Bernard J. Roden es i B. Cohen - Exe tive Vice Pr Judith A. Roden Prepared by and when recorded return to: Michael R. Seghetti Keck, Mahin & Cate 331 Fulton Street Suite 640 Peoria, IL 61602-8866 *,Cohen Development Company - __ ~~r. .. _.._ .-_..-L,.. _... __ ..,..... ... .. _.......:~.r.~.,-z...v ~'"'~t Att.; :i: ....... Frst of Nneriea Bank. ~ dinaa, N.A ' 'i Cohen Development Company Paa~ ~ a,~, 70-4,7„ -_, ~ - ' - ', 406 S.W. Washin on SL (309) 673-0790 - _ _ - Peoria, 1L 6160 _ _ _ _. . ppTE CFiEC7C NUMBER - AMOUNT - - 1-04-95 7024 *******$2 000.00=` PAY EXACTLY *****$2,000 DOLLARS AND NO CENTS - _ =r- - _ _. To 1~-tE RODEN, BERNARD J. & JUDITH A. _ _ ; - r ,_-,. . -=---- ORDER 10 3 9 5 7 0TH STREET N . E . _ - -.-: of ALBERTVILLE, MN 55301 - ~: n'0000 70 24~~' ~0 7 L L00049~: 00 L00 29 9 ~~'