EXHIBIT 10.18
FORM 10-K
YEAR ENDED DECEMBER 31, 2001
AGREEMENT TO PURCHASE AND SELL INDUSTRIAL PROPERTY
Parties: BUCYRUS INTERNATIONAL, INC., a Delaware corporation
("Seller"); and INSITE REAL ESTATE DEVELOPMENT, L.L.C.
an Illinois limited liability company, or its nominees
("Purchaser").
Effective Date: October 25, 2001
ARTICLE 1
Purchase and Sale
1.1 In consideration of the mutual covenants of the parties
described in this Agreement, Seller agrees to sell and Purchaser agrees to
purchase all of the right, title, and interest of Seller in and to the
following:
(a) That certain parcel of land located at 1100 Milwaukee
Avenue, South Milwaukee, Wisconsin, legally described on the attached
Exhibit A, together with all rights and appurtenances pertaining to
such land, including, but not limited to, any right or interest of
Seller in and to adjacent streets, alleys, right-of-ways, easements,
railroad sidetrack agreements, utility agreements, and any other
rights or benefits relating to the land (collectively, the "Real
Property");
(b) All improvements or structures located on the Real
Property, specifically including a warehouse/office building
containing approximately 927,685 square feet of floor area, and
including, but not limited to, any boiler systems, plumbing systems,
sanitary systems, fuel oil systems, sprinkler systems, fire and
security protection systems, heating, ventilating and air
conditioning systems, electrical systems, lighting systems, wiring,
temperature controls, loading docks, dock levelers, railroad spur
tracks, cranes, and any other fixtures and systems presently located
on the Real Property, (collectively, the "Improvements");
(c) To the extent delivered to Purchaser hereunder, all copies
of any existing architectural and engineering plans, soil studies,
environmental studies and reports, surveys and all other plans,
studies or reports relating to the Real Property or the Improvements;
The Real Property, and the Improvements are collectively referred to
herein as the "Property".
1.2 Except as specifically provided herein, Purchaser shall not
assume, or become obligated with respect to, any obligations of Seller.
ARTICLE 2
Purchase Price
2.1 The purchase price for the Property is $7,210,000.00 (the
"Purchase Price"). The Purchase Price shall be payable as follows:
(a) Within three (3) business days following the Effective
Date, Purchaser shall deposit with Lawyers Title Insurance
Corporation, National Accounts Division, 10 South LaSalle, Suite
2500, Chicago, Illinois 60603, Attention: Shelly Norman (the "Escrow
Agent"), a promissory note in the form attached as Exhibit B (the
"Initial Earnest Money").
(b) At the end of the Review Period, as defined below, if
Purchaser has not elected to terminate this Agreement, Purchaser
shall replace the Initial Earnest Money with cash in the amount of
$100,000.00 (the "Cash Earnest Money"). The Cash Earnest Money shall
be subject to the terms and conditions of a Strict Joint Order Escrow
Trust Agreement among Seller, Purchaser and Escrow Agent, the terms
of which shall be mutually agreed upon but not inconsistent with any
of the terms and conditions of this Agreement. The Cash Earnest
Money shall be invested as directed in writing by Purchaser. All
investment income earned from the Cash Earnest Money shall be paid to
the party entitled to the Cash Earnest Money as provided in Article
10. If the transaction contemplated by this Agreement is
consummated, the Cash Earnest Money and any income earned thereon
shall be applied against the Purchase Price.
(c) The balance of the Purchase Price shall be payable in
cash on the Closing Date, subject to the closing adjustments as
provided for herein.
ARTICLE 3
Covenants of Seller
3.1 Seller hereby covenants and agrees with Purchaser as follows:
(a) Within ten (10) days following the Effective Date, Seller
shall deliver to Purchaser copies of all leases of the Property (the
"Subleases") and any of the following that cannot be terminated on
fewer than 121 days notice: maintenance, management, service, or
similar agreements affecting all or any part of the Property.
(b) At all times following the Effective Date to, and
including, the Closing Date, Seller shall cause to be maintained fire
and extended coverage insurance upon the Property in an amount equal
to the full replacement cost of the Property.
(c) Within ten (10) days following the Effective Date, Seller
shall furnish to Purchaser all certificates of occupancy and other
permits and licenses for all or any part of the Property.
(d) Seller shall make available to Purchaser, during the Review
Period and during normal business hours, all material architectural,
mechanical, electrical, plumbing, drainage, construction and similar
plans, specifications and blueprints maintained in Seller's current
files relating to the Property, for purposes of inspection and
copying.
(e) Within ten (10) days following the Effective Date, Seller
shall furnish to Purchaser all existing Phase I, Phase II or other
environmental reports or studies relating to the Property maintained
in Seller's current files.
(f) Within ten (10) days following the Effective Date, Seller
shall furnish to Purchaser an accurate legal description of the
Property.
3.2 At the time any of the above referenced documents are furnished
or delivered to Purchaser, Seller thereby covenants, warrants and
represents that such documents are true, accurate and complete copies of
the documents in Seller's files, and if Seller does not have in its
possession any of the requested documents or such documents do not exist
following due inquiry and investigation of Seller, Seller shall also
furnish a statement to that effect and the reason therefor.
ARTICLE 4
Representations and Warranties of Seller and Purchaser
4.1 Except as shown on Exhibit C attached hereto, Seller warrants
and represents to Purchaser that as of the Closing Date:
(a) The execution and delivery of this Agreement by Seller and
the consummation by Seller of the transaction contemplated hereby are
within Seller's powers and all requisite action has been taken to
make this Agreement valid and binding upon Seller in accordance with
its terms and conditions.
(b) To the best knowledge of John Bosbous and Peter Golden,
neither the execution nor delivery of this Agreement by Seller nor
its performance by Seller will conflict with or result in a violation
or breach of any law, regulation, order, writ, or injunction of any
court or governmental agency applicable to Seller, or of any term,
condition or any indenture or other contract or agreement to which
Seller is a party, or cause a default thereunder, or result in the
creation or imposition of any lien, charge or encumbrance of any
nature whatsoever on the Property pursuant to the terms of any such
agreement.
(c) Seller is the owner of good and marketable fee simple title
to the Property, free and clear of any and all liens, deeds of trust,
land trusts, mortgages, security interests, leases, or restrictions
of any kind, except as provided for in Article 5.
(d) Neither John Bosbous nor Peter Golden has knowledge of or
has received notice of any suits, judgments or material violations
relating to or at the Property of any zoning, building, fire, health,
pollution, environmental protection or waste disposal ordinance,
code, law or regulation which has not been heretofore corrected.
(e) There are no real estate commissions or leasing commissions
due, payable or outstanding with respect to the Property from and
after the Closing Date.
(f) To the best knowledge of John Bosbous and Peter Golden, the
Property materially complies with all laws, ordinances, and
regulations existing at the Closing Date of every governmental
authority or agent having jurisdiction over the Property.
(g) To the best knowledge of John Bosbous and Peter Golden,
there are no pending or contemplated eminent domain proceedings or
contemplated changes in the status of zoning for the Property.
As used in this Section 4.1 and in Section 4.2 below, "material"
means any violation, non-compliance, condition or situation that will
cost more than $25,000 to remedy.
4.2 Except as shown on Exhibit C attached hereto, Seller warrants
and represents to Purchaser the following environmental matters:
(a) Seller is not aware of any Hazardous Substances (as
hereinafter defined) located on, in, about, or under the Property or
the Improvements, except those used, stored and disposed of in the
ordinary course of business and in accordance with all applicable
statutes, laws, ordinances and governmental orders, rules and
regulations..
(b) To the best knowledge of John Bosbous and Peter Golden,
neither the Property nor the Improvements presently are or ever have
been utilized for the storage, manufacture, disposal, handling,
transportation or use of any Hazardous Substances, except in the
ordinary course of Seller's business and in accordance with all
applicable statutes, laws, ordinances and governmental orders, rules
and regulations.
(c) There are no past or present investigations, administrative
proceedings, litigation or other action proposed, threatened or
pending, alleging non-compliance with or violation of any Law or
Regulation (as hereinafter defined) relating to the Property or
Improvements or relating to any required environmental permits with
respect to the Property or Improvements. To the best knowledge of
John Bosbous and Peter Golden, neither Seller nor any third party,
violated any Law or Regulation with respect to the Property or
Improvements.
(d) For the purpose of this Agreement, the following
definitions are used:
(i) "Law or Regulation" means and includes the
Comprehensive Environmental Response and Liability Act ("CERLA"
or the Federal Superfund Act) as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("SARA") 42 U.S.C.
Section 9601-9675; the Federal Resource Conservation and
Recovery Act of 1876 ("RCRA"); all applicable Wisconsin
environmental laws; the Clean Water Act 33 U.S.C. Section 1321
et seq.; the Clean Air Act 42 U.S.C. Section 7401 et seq., all
as amended, and any other existing federal, state, county,
municipal, local or other statute, law, ordinance or
regulations which may relate to or deal with human health or
the environment including, without limitation, all regulations
promulgated by a regulatory body pursuant to any such statute,
law or ordinance.
(ii) "Hazardous Substances" means asbestos, urea
formaldehyde, polychlorinated biphenyls, nuclear fuel or
materials, chemical waste radioactive materials, explosives,
known carcinogens, petroleum products or other dangerous,
toxic, or hazardous pollutant, contaminant, chemical, material
or substance defined as hazardous or as a pollutant or
contaminant in, or the release or disposal of which is
regulated by, any Law or Regulation.
4.3 All representations and warranties contained in Sections 4.1
and 4.2 shall be deemed to be continuing and shall survive the Closing for
a period of one year.
4.4 If any representation or warranty herein contained shall be or
be found to be false, inaccurate or misleading, then Purchaser shall be
entitled to terminate this Agreement or, if the Agreement has already been
consummated and provided that notice of Purchaser's claim is given to
Seller within the time limitation set forth in Section 4.3 above, to
recover as damages, in addition to all other damages legally recoverable,
all costs and expenses incurred in correcting or remedying such error,
including, without limitation, all costs of defending any regulatory or
governmental action resulting from such error, including, without
limitation, attorneys' and experts' fees, costs and disbursements.
4.5 Purchaser represents and warrants to Seller as follows:
(a) The execution and delivery of this Agreement by Purchaser
and the consummation by Purchaser of the transaction contemplated
hereby are within Purchaser's powers and all requisite action has
been taken to make this Agreement valid and binding upon Purchaser in
accordance with its terms and conditions.
(b) Neither the execution nor delivery of this Agreement by
Purchaser nor its performance by Purchaser will conflict with or
result in a violation or breach of any law, regulation, order, writ,
or injunction of any court or governmental agency applicable to
Purchaser, or of any term, condition or any indenture or other
contract or agreement to which Purchaser is a party, or cause a
default thereunder, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever on the Property
pursuant to the terms of any such agreement.
(c) Purchaser is purchasing the Property for its own account
(with title to be acquired by an entity controlled by the principals
of Purchaser) and not for or on behalf of any other party.
ARTICLE 5
Title and Survey Matters
5.1 Within thirty (30) days following the Effective Date, Purchaser
shall obtain a current survey of the Property (the "Survey") prepared by a
registered land surveyor licensed in the State in which the Property is
located, such Survey to be in full compliance with the Minimum Standard
Detail Requirements for land title surveys as adopted by the American Title
Association and the American Congress on Surveying and Mapping. The cost of
the Survey, up to $10,000, shall be paid for by Seller.
5.2 Within thirty (30) days following the Effective Date, Purchaser
shall obtain a current Title Commitment for an Owner's Title Policy and
legible copies of all documents referred to therein (the "Title
Commitment") issued by Lawyers Title Insurance Corporation, provided that
Lawyer's Title Insurance Corporation's quote therefor is comparable to the
amount that would be charged by another title company, and otherwise by a
national title company selected by Seller (the "Title Company"), showing
the status of title to Property, and committing to issue a standard
coverage Owner's Title Policy for the Property to Purchaser in the full
amount of the Purchase Price at the Closing. The cost of the Title
Commitment shall be paid for by Seller.
5.3 Purchaser shall have fifteen (15) days after its receipt of the
Survey and Title Commitment (the "Review Date") to review the Survey and
Title Commitment and notify Seller, in writing, of any exceptions shown on
the Survey or Title Commitment that are unacceptable to Purchaser (the
"Unpermitted Exceptions"). All matters shown on the Survey or Title
Commitment and not so objected to by Purchaser on or before the Review Date
are called the "Permitted Exceptions". Seller shall have ten (10) days (the
"Cure Period") after receipt of Purchaser's notice to either (i) remove any
Unpermitted Exceptions, or (ii) cause the Title Company to insure or
endorse over such Unpermitted Exceptions, in form and substance
satisfactory to Purchaser. The cost of (i) or (ii) in the preceding
sentence shall be at the sole cost and expense of Seller and shall be in
addition to the cost of the Owner's Title Policy referred to in Section
5.2. If such Unpermitted Exceptions are not cured as provided for above
within the Cure Period, Purchaser shall have the option, at its sole
election, to:
(a) terminate this Agreement by giving written notice of
termination to Seller within ten (10) days after the expiration of
the Cure Period. Upon such termination, Purchaser shall be entitled
to the immediate return of the Initial Earnest Money or the Cash
Earnest Money, as the case may be, and all investment income earned
thereon; or
(b) waive such Unpermitted Exceptions, and proceed to close
the transaction contemplated by this Agreement, subject to such
Unpermitted Exceptions.
If any additional exceptions appear in any updated Title Commitment or
Survey after the Review Date, Seller shall cause the same to be removed or
cause the Title Company to endorse or insure over the same at or prior to
the Closing. If Seller fails or elects not to cause such exceptions to be
removed or insured over, Purchaser may accept title to the Property subject
to such additional exceptions and proceed to close the transactions
contemplated hereby, or else Purchaser may terminate this Agreement by
giving written notice thereof to Seller, in which event the Earnest Money
and all accrued interest thereon shall be refunded to Purchaser, and Seller
shall pay to Purchaser a termination fee as Purchaser's sole and exclusive
compensation for Seller's failure or election not to cause such exceptions
to be removed or insured over as follows: (a) if the appearance or
existence of the additional exception was and is not within the control of
Seller, such payment shall equal the sum (the "Aggregate Payment") of (i)
$200,000, plus (ii) the amount of all costs and expenses incurred by
Purchaser in connection with this Agreement and the transactions
contemplated hereby, up to a maximum Aggregate Payment of $500,000, or (b)
if the appearance or existence of the additional exception was or is within
the control of Seller, such payment shall equal $500,000.
5.4 At Closing, Seller shall convey to Purchaser by general
warranty deed, good and marketable title in fee simple to the Property,
free and clear of any and all liens, deeds of trust, land trusts,
mortgages, pledges, security interest, leases (other than the Subleases),
charges, encumbrances, easements, assessments, restrictions and other
conditions, except for the Permitted Exceptions.
5.5 At Closing, Seller shall cause to be delivered to Purchaser, at
Seller's sole cost and expense, the Owner's Title Policy described in
Section 5.1, subject only the Permitted Exceptions.
ARTICLE 6
Review Period
6.1 Purchaser shall have sixty (60) days from the Effective Date
(the "Initial Review Period") to review and approve the content of
documents and materials to be delivered to Purchaser listed above, review
the planning and zoning of the Property, to make its own independent
physical inspection of the Property and make such further investigations as
Purchaser shall desire (herein referred to as the "Review Period").
Purchaser shall have the right to have performed any and all necessary
physical and mechanical inspections, and roof and structural inspections of
the Property as Purchaser deems necessary or appropriate. If Purchaser
wishes to terminate this Agreement within the Review Period for any reason
whatsoever, or for no reason, Purchaser may do so by written notice to
Seller and thereupon Purchaser shall be entitled to the immediate return of
the Initial Earnest Money and all investment income thereon. If Purchaser
fails to timely give such written notice on or before the end of the Review
Period, then Purchaser shall be deemed to have waived its right to
terminate this Agreement pursuant to this Section 6.1.
6.2 Within the Review Period, Purchaser shall be given unrestricted
access to the Property for the purposes of investigation and testing to
determine the present or past existence of Hazardous Substances. Such
tests shall include, without limitation, soil tests, chemical tests and
other tests as may be reasonably suggested by an independent environmental
engineer or consultant. Purchaser shall pay all costs of such
investigation and testing and shall indemnify and hold Seller and the
Property harmless from such entry and testing and any injury to person or
damage to property caused thereby.
6.3 Notwithstanding anything to the contrary contained in this
Agreement, it is an express condition precedent to Seller's and Purchaser's
obligations under this Agreement that at Closing, Purchaser and Seller
shall execute a lease in the form of Exhibit D attached hereto (the
"Lease"). At the Closing, Purchaser and Seller also shall execute a
memorandum of said Lease in the form attached hereto as Exhibit E, which
Purchaser may cause to be recorded against the Property.
ARTICLE 7
Closing
7.1 The consummation of the transaction contemplated by this
Agreement (the "Closing") shall be held on or before the date fifteen (15)
days following the end of the Review Period, at the offices of the Escrow
Agent or at such other place and hour as may be agreed upon in writing by
the Seller and Purchaser. The date and hour of Closing are herein referred
to as the "Closing Date."
7.2 At the Closing:
(a) Seller shall at its sole cost and expense deliver the
following documents and instruments:
(1) A General Warranty Deed for the Real Property (the
"Deed"), duly executed and acknowledged by Seller and in
recordable form.
(2) Such evidence of existence, good standing, and
authority to consummate this transaction and to execute the
documents therefor as may be required by the Title Company.
(3) A duly executed FIRPTA Certificate pursuant to
Internal Revenue Code Section 1445.
(4) An ALTA Statement and all other documents required
by the Title Company so as to issue the Owner's Title Policy,
as set forth in Section 4.1.
(5) Documents necessary to comply with any state or
local act regarding transfer of environmentally sensitive
properties.
(6) Evidence that the general ad valorem real estate
taxes for the Property for 2000 and all special assessments
shall have been paid in full on or before the Closing Date or
an adjustment for same be made on the closing statement.
(b) Purchaser shall at its sole cost and expense cause to be
delivered all of the following:
(1) Such evidence of existence, good standing, and
authority to consummate the transaction contemplated hereby as
may be required by the Title Company.
(2) Cash funds as required in Section 2.1(c).
(c) Seller shall pay all costs, expenses, and premiums
charged by the Title Company for the Owner's Title Policy pursuant to
Article 5. Purchaser shall bear any additional cost for extended
coverage or other endorsements required by Purchaser. Any and all
transfer and conveyance taxes and/or documentary stamps shall be paid
for by Seller. Seller and Purchaser shall share equally the cost of
all escrow or other fees of the Title Company. Seller and Purchaser
shall pay for all the costs and expenses of their respective legal
counsel and consultants. Seller shall acknowledge that Seller will
continue to pay the real property taxes under the Lease.
ARTICLE 8
Casualty Loss
8.1 If any of the Improvements are partially or totally damaged by
fire or other casualty, Seller shall give immediate written notice thereof
to Purchaser. Subject to Purchaser's rights under the following sentence,
Seller or Purchaser may terminate this Agreement within ten (10) days
following receipt of any such notice, by giving written notice to the other
party, in which case, unless Purchaser elects to proceed in accordance with
the following sentence, Seller and Purchaser shall have no further
obligation or liabilities hereunder, and Purchaser shall be entitled to the
immediate return of the Initial Earnest Money or the Cash Earnest Money, as
the case may be, and the investment income thereon. In the event Purchaser
does not elect to terminate this Agreement as aforesaid, or if Seller
elects to terminate but Purchaser wishes to proceed to close on its
purchase of the Property hereunder and so notifies Seller within ten (10)
days after receipt of Seller's notice, Seller's notice shall be for naught,
the transactions contemplated hereby shall be closed, and the Purchase
Price shall not be reduced, but all insurance proceeds that Seller is
entitled to receive as a result of such damage shall be delivered to
Purchaser and shall be applied to the extent necessary to restore the
Property.
ARTICLE 9
Commissions
9.1 Seller hereby represents and warrants to Purchaser that Seller
has not dealt with any broker or finder in connection with this transaction
and Seller hereby agrees to indemnify Purchaser for any claim for brokerage
commission or finder s fee asserted by a person, firm or corporation
claiming to have been engaged by Seller. Purchaser hereby represents and
warrants to Seller that Purchaser has not dealt with any broker or finder
in connection with this transaction and Purchaser hereby agrees to
indemnify Seller for any claim for brokerage commission or finder s fee
asserted by a person, firm or corporation claiming to have been engaged by
Purchaser.
ARTICLES 10
Termination and Remedies
10.1 If this transaction is not terminated by Purchaser on or before
the end of the Review Period, and Purchaser thereafter fails to consummate
this transaction for any reason, other than Seller's default, and such
default continues for thirty (30) days following notice by Seller to
Purchaser, Seller shall be entitled to terminate this Agreement and receive
the Cash Earnest Money and the investment income earned thereon, as
liquidated damages, as Seller's sole and exclusive remedy. Seller waives
any right to enforce specific performance of this Agreement, or to bring a
suit for damages incurred by Seller as a result of such default by
Purchaser.
10.2 Seller may terminate this Agreement or declare this Agreement
terminated by written notice to Purchaser within thirty (30) days after the
date hereof, and in such event this Agreement shall be of no further force
or effect, provided that if Seller is not entitled to terminate this
Agreement except for this Section 10.2, then all earnest money and interest
accrued thereon shall be returned to Purchaser and Seller shall pay to
Purchaser a termination fee of $300,000. If more than thirty (30) days
after the date hereof Seller fails to consummate this transaction for any
reason, other than Purchaser's default, and such default continues for
thirty (30) days following notice by Purchaser to Seller, this Agreement
shall terminate and neither party shall have any further right or
obligation hereunder, except that all earnest money and all accrued
interest thereon shall be refunded to Purchaser and Seller shall pay to
Purchaser a termination fee of $500,000.
ARTICLES 11
Notices
11.1 Any notice, request, demand, instruction, or other
communication to be given to either party hereunder, except those required
to be delivered at Closing, shall be in writing and shall be deemed to be
delivered when sent by registered or certified mail, return receipt
requested, or by overnight courier service (such as Federal Express,
Express Mail, etc.) as follows, or such other address as either party may
provide:
If to Purchaser: InSite Real Estate Development, L.L.C.
1603 W. 16th Street
Oak Brook, Illinois 60523
Attention: Gerald J. Kostelny
With a copy to: InSite Real Estate Development, L.L.C.
1603 W. 16th Street
Oak Brook, Illinois 60523
Attention: General Counsel
If to Seller: Bucyrus International, Inc.
1100 Milwaukee Avenue
South Milwaukee, Wisconsin 53172
Attention: John F. Bosbous
With a copy to: Bucyrus International, Inc.
1100 Milwaukee Avenue
South Milwaukee, Wisconsin 53172
Attention: General Counsel
ARTICLE 12
Miscellaneous
12.1 This Agreement embodies the entire agreement between the
parties and cannot be modified or waived except by the written agreement of
the parties.
12.2 Time shall be of the essence of this Agreement.
12.3 Except as provided for herein, the representations, warranties,
agreements, indemnities and covenants of Seller and Purchaser herein
contained shall survive the Closing. Seller and Purchaser shall each
indemnify and defend the other against any breach by the respective parties
of any such representations, warranties, agreements, indemnities and
covenants as may be asserted or claimed by a third party.
12.4 The captions used in connection with the articles of this
Agreement are for convenience only and shall not be deemed to construe or
to limit the meaning of the language of this Agreement.
12.5 All references in this Agreement to "the Effective Date" shall
be deemed to refer to that date set forth in the introductory clause of
this Agreement.
12.6 This Agreement may be executed in any number of counterparts,
each of which shall be an original, but such counterparts together shall
constitute one and the same instrument.
12.7 This Agreement shall be governed by and construed in accordance
with the laws of the State in which the Property is located.
12.8 If Purchaser elects to conduct this transaction as part of a
like kind exchange pursuant to Section 1031 of the Internal Revenue Code,
Seller shall cooperate with Purchaser to effectuate the same, including,
without limitation, the execution of any necessary documents or
instruments, at no cost or expense to Seller.
12.9 The following Exhibits are attached to this Agreement and are
by this reference incorporated herein for all purposes:
Exhibit A Legal Description of the Real Property
Exhibit B Initial Earnest Money Promissory Note
Exhibit C Exceptions to Warranties
Exhibit D Lease
Exhibit E Memorandum of Lease
[ REGISTRANT HEREBY UNDERTAKES TO FURNISH
[ TO THE COMMISSION COPIES OF ANY OF THE
[ ABOVE-LISTED SCHEDULES AND EXHIBITS UPON
[ REQUEST.
IN WITNESS WHEREOF, this Agreement has been signed and sealed on the
day and year first above written.
INSITE REAL ESTATE BUCYRUS INTERNATIONAL, INC., a
DEVELOPMENT, L.L.C., an Illinois Delaware Corporation
limited liability company
By: /s/ Gerald J. Kostelny By: /s/Timothy W. Sullivan
Gerald J. Kostelny, Manager Its: President & Chief Operating Officer