1
4-1-00 (Optional Use Date) Information Professionals Company Fond du Lac, WI
9-1-00 (Mandatory Use Date) 800-655-2021
COMMERCIAL OFFER TO PURCHASE
Page 1 of 5, WB-15
1 ATTORNEY DRAFTING THIS OFFER 6/13/01 [DATE] IS/(AGENT OF SELLER)(AGENT
OF BUYER)(DUAL AGENT) STRIKE TWO
2 GENERAL PROVISIONS The Buyer, ESITEC, LLC
3 offers to purchase the Property known as [Street Address] 1915 MACARTHUR
ROAD and land in the
4 CITY AND TOWN of WAUKESHA, County of WAUKESHA, Wisconsin (Insert
additional
5 description, if any, at lines 293 - 297 or attach as an addendum, line
298), on the following terms: see additional at lines 293 - 295.
6 - PURCHASE PRICE: $1,350,000.00
7 ONE MILLION THREE HUNDRED FIFTY THOUSAND Dollars ($1,350,000.00).
8 - EARNEST MONEY of $ SEE ADDENDUM accompanies this Offer and earnest money
of $ SEE ADDENDUM
9 will be paid within 3 days of acceptance.
10 - THE BALANCE OF PURCHASE PRICE will be paid in cash or equivalent at
closing unless otherwise provided below.
11 - ADDITIONAL ITEMS INCLUDED IN PURCHASE PRICE: Seller shall include in the
purchase price and transfer, free and clear of encum-
12 brances, all fixtures, as defined at lines 117 - 120 and as may be on the
Property on the date of this Offer, unless excluded at lines 15 - 16, and
13 the following additional items: SEE ADDENDUM
14
15 - ITEMS NOT INCLUDED IN THE PURCHASE PRICE: CAUTION: ADDRESS RENTED
FIXTURES OR TRADE FIXTURES OWNED BY TENANTS, IF
16 APPLICABLE. OTHER PERSONAL PROPERTY OF SELLER
17 All personal property included in purchase price will be transferred by
bill of sale or .
18 ACCEPTANCE Acceptance occurs when all Buyers and Sellers have signed an
identical copy of the Offer, including signatures on separate
19 but identical copies of the Offer. CAUTION: DEADLINES IN THE OFFER ARE
COMMONLY CALCULATED FROM ACCEPTANCE. CONSIDER WHETHER SHORT TERM
20 DEADLINES RUNNING FROM ACCEPTANCE PROVIDE ADEQUATE TIME FOR BOTH BINDING
ACCEPTANCE AND PERFORMANCE.
21 BINDING ACCEPTANCE This Offer is binding upon both Parties only if a copy
of the accepted Offer is delivered to Buyer on or before
22 JULY 6, 2001. CAUTION: THIS OFFER MAY BE WITHDRAWN PRIOR TO DELIVERY OF
ACCEPTED OFFER.
23 DELIVERY OF DOCUMENTS AND WRITTEN NOTICES Unless otherwise stated in this
Offer, delivery of documents and written notices
24 to a party shall be effective only when accomplished by one of the methods
specified at lines 25 - 34.
25 (1) By depositing the document or written notice postage or fees prepaid in
the U.S. Mail or fees prepaid or charged to an account with a com-
26 mercial delivery service, addressed either to the Party, or to the Party's
recipient for delivery designated at lines 28 or 30 (if any), for delivery
to
27 the Party's delivery address at lines 29 or 31.
28 Seller's recipient for delivery (optional): JEFF NIGL
29 Seller's delivery address: ELECTRONIC TELE-COMMUNICATIONS, INC. 1915
MACARTHUR ROAD, WAUKESHA, WI 53186
30 Buyer's recipient for delivery (optional): Dean Danner for esitec, llc
31 Buyer's delivery address: esitec, llc 1915 MacArthur Road, Waukesha, WI
53186 Suite 1
32 (2) By giving the document or written notice personally to the Party or the
Party's recipient for delivery if an individual is designated at lines 28
or 30.
33 (3) By fax transmission of the document or written notice to the following
telephone number:
34 Buyer: ( 262 ) 542-5600 X242 Seller: ( 262 )542-1524
35 LEASED PROPERTY If Property is currently leased and lease(s) extended
beyond closing, Seller shall assign Seller's rights under said lease(s)
36 and transfer all security deposits and prepaid rents thereunder to Buyer at
closing. The terms of the //(written) (oral) STRIKE ONE lease(s), if any,
37 are SELLER IS ONLY TENANT, NO LEASE.
38 RENTAL WEATHERIZATION This transaction is STRIKE ONE exempt from State of
Wisconsin Rental Weatherization Standards
39 (Wisconsin Administrative Code, Comm 67). If not exempt, Seller STRIKE ONE
will be responsible for compliance, including all costs.
40 If Seller is responsible for compliance, Seller shall provide a Certificate
of Compliance at closing.
41 PLACE OF CLOSING This transaction is to be closed at the place designated
by Buyer's mortgagee or TIKALSKY, RAASCH & TIKALSKY
42 no later than SEE ADDENDUM, unless another date or place is agreed to in
writing.
43 CLOSING PRORATIONS The following items shall be prorated at closing: real
estate taxes, rents, water and sewer usage charges, garbage pick-
44 up and other private and municipal charges, property owner's association
assessments, fuel, payments under governmental agricultural programs
45 and NONE. Any income, taxes or expenses shall accrue to Seller and be
prorated through
46 the day prior to closing. Net general real estate taxes shall be prorated
based on (the net general real estate taxes for the current year, if known,
47 otherwise on the net general real estate taxes for the preceding year)
TAXES SHALL BE RE-PRORATED UPON RECEIPT OF YEAR 2001 TAX BILL
48 ). STRIKE AND COMPLETE AS APPLICABLE CAUTION: IF PROPERTY
HAS NOT BEEN FULLY ASSESSED FOR
49 TAX PURPOSES (for example, recent land division or completed/pending
reassessment) or if proration on the basis of net general real
50 ESTATE taxes is not acceptable (for example, changing mill rate), insert
estimated annual tax or other basis for proration.
51 PROPERTY CONDITION PROVISIONS
52 - PROPERTY CONDITION REPRESENTATIONS: Seller represents to Buyer that as of
the date of acceptance Seller has no notice or
53 knowledge of conditions affecting the Property or transaction other than
those identified in Seller's Real Estate Condition Report
54 dated N/A, which was received by Buyer prior to Buyer signing this Offer
and which is made a part of this Offer by reference
55 COMPLETE DATE OR STRIKE AS APPLICABLE and See Addendum for disclosures.
56 INSERT CONDITIONS NOT ALREADY INCLUDED
IN THE CONDITION REPORT.
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57 - A "condition affecting the Property or transaction" is defined as
follows:
58 (a) planned or commenced public improvements which may result in special
assessments or otherwise materially affect the Property or the
59 present use of the Property;
60 (b) government agency or court order requiring repair, alteration or
correction of any existing condition;
61 (c) completed or pending reassessment of the Property for property tax
purposes;
62 (d) structural inadequacies which if not repaired will significantly
shorten the expected normal life of the Property;
63 (e) any land division involving the Property, for which required state or
local approvals had not been obtained;
64 (f) construction or remodeling on the Property for which required state or
local approvals were not obtained;
65 (g) any portion of the Property being in a 100 year floodplain, a wetland
or shoreland zoning area under local, state or federal regulations;
66 (h) that a structure on the Property is designated as a historic building
or that any part of the Property is in a historic district;
67 (i) material violations of environmental laws or other laws or agreements
regulating the use of the Property;
68 (j) conditions constituting a significant health or safety hazard for
occupants of the Property;
69 (k) underground or aboveground storage tanks for storage of flammable,
combustible or hazardous materials including but not limited to
gasoline
70 and heating oil, which are currently or which were previously located
on the Property; NOTE: THE WISCONSIN ADMINISTRATIVE CODE CONTAINS
71 REGISTRATION AND OPERATION RULES FOR SUCH UNDERGROUND AND ABOVEGROUND
STORAGE TANKS.
72 (l) high voltage electric (100 KV or greater) or steel natural gas
transmission lines located on but not directly serving the Property;
73 (m) material levels of hazardous substances located on Property or previous
storage of material amounts of hazardous substances on Property;
74 (n) other conditions or occurrences which would significantly reduce the
value of the Property to a reasonable person with knowledge of the
75 nature and scope of the condition or occurrence.
76 - PROPERTY DIMENSIONS AND SURVEYS: Buyer and Seller acknowledge that any
Property, building or room dimensions, or total acreage
77 or building square footage figures, provided to Buyer or Seller may be
approximate because of rounding or other reasons, unless verified by
78 survey or other means. Buyer also acknowledges that there are various
formulas used to calculate total square footage of buildings and that total
79 square footage figures will vary dependent upon the formula used. CAUTION:
BUYER SHOULD VERIFY TOTAL SQUARE FOOTAGE FORMULA, PROPERTY,
80 BUILDING OR ROOM DIMENSIONS, AND TOTAL ACREAGE OR SQUARE FOOTAGE FIGURES,
IF MATERIAL TO BUYER'S DECISION TO PURCHASE.
81 - INSPECTIONS: Seller agrees to allow Buyer's inspectors reasonable access
to the Property upon reasonable notice if the inspections are
82 reasonably necessary to satisfy the contingencies in this Offer. Buyer
agrees to promptly provide copies of all such inspection reports to Seller,
and
83 to listing broker if Property is listed. Furthermore, Buyer agrees to
promptly restore the Property to its original condition after Buyer's
inspections are
84 completed, unless otherwise agreed with Seller. An "inspection" is defined
as an observation of the Property which does not include testing of the
85 Property, other than testing for leaking carbon monoxide, or testing for
leaking LP gas or natural gas used as a fuel source, which are hereby
authorized.
86 - TESTING: Except as otherwise provided, Seller's authorization for
inspections does not authorize Buyer to conduct testing of the Property. A
87 "test" is defined as the taking of samples of materials such as soils,
water, air or building materials from the Property and the laboratory or
other
88 analysis of these materials. If Buyer requires testing, testing
contingencies must be specifically provided for at lines 293 - 297 or in an
addendum
89 per line 298. Note: Any contingency authorizing such tests should specify
the areas of the Property to be tested, the purpose of the test, (e.g., to
90 determine if environmental contamination is present), any limitations on
Buyer's testing and any other material terms of the contingency (e.g.,
91 Buyer's obligation to return the Property to its original condition).
Seller acknowledges that certain inspections or tests may detect
environmental
92 pollution which may be required to be reported to the Wisconsin Department
of Natural Resources.
93 - PRE-CLOSING INSPECTION: At a reasonable time, pre-approved by Seller or
Seller's agent, within 3 days before closing, Buyer shall have the
94 right to inspect the Property to determine that there has been no
significant change in the condition of the Property, except for ordinary
wear and
95 tear and changes approved by Buyer, and that any defects Seller has elected
to cure have been repaired in a good and workmanlike manner.
96 - ENVIRONMENTAL SITE ASSESSMENT: An "environmental site assessment" (also
known as a "Phase I Site Assessment") (see lines 279 to
97 283) may include, but is not limited to: (1) an inspection of the Property;
(2) a review of the ownership and use history of the Property, including a
98 search of title records showing private ownership of the Property for a
period of 80 years prior to the visual inspection; (3) a review of historic
and
99 recent aerial photographs of the Property, if available; (4) a review of
environmental licenses, permits or orders issued with respect to the
Property;
100 (5) an evaluation of results of any environmental sampling and analysis
that has been conducted on the Property; and (6) a review to determine
101 if the Property is listed in any of the written compilations of sites or
facilities considered to pose a threat to human health or the environment
includ-
102 ing the National Priorities List, the Department of Natural Resources'
(DNR) registry of Abandoned Landfills, the DNR's Registry of Leaking
103 Underground Storage Tanks, the DNR's most recent remedial response site
evaluation report (including the Inventory of Sites and Facilities Which
104 May Cause or Threaten to Cause Envirnomental Pollution). Any "Environmental
site assessment" performed under this Offer shall comply with
105 generally recognized industry standards (e.g. current American Society of
Testing and Materials "Standards for Environmental Site Assessments for
106 Commercial Real Estate"), and state and federal guidelines, as applicable.
CAUTION: UNLESS OTHERWISE AGREED AN
107 "ENVIRONMENTAL SITE ASSESSMENT" DOES NOT INCLUDE SUBSURFACE TESTING OF THE
SOIL OR GROUNDWATER OR OTHER TESTING OF THE PROPERTY FOR
108 ENVIRONMENTAL POLLUTION.
109 - PROPERTY DAMAGE BETWEEN ACCEPTANCE AND CLOSING: Seller shall maintain the
Property until the earlier of closing or occupancy
110 of Buyer in materially the same condition as of the date of acceptance of
this Offer, except for ordinary wear and tear. If, prior to closing, the
111 Property is damaged in an amount of not more than five per cent (5%) of the
selling price, Seller shall be obligated to repair the Property and
112 restore it to the same condition that it was on the day of this Offer. If
the damage shall exceed such sum, Seller shall promptly notify Buyer in
writ-
113 ing of the damage and this Offer may be canceled at the option of Buyer.
Should Buyer elect to carry out this Offer despite such damage, Buyer
114 shall be entitled to the insurance proceeds relating to the damage to the
Property, plus a credit towards the purchase price equal to the amount of
115 Seller's deductible on such policy. However, if this sale is financed by a
land contract or a mortgage to Seller, the insurance proceeds shall be
116 held in trust for the sole purpose of restoring the Property.
117 FIXTURES A "Fixture" is an item of property which is physically attached to
or so closely associated with land and improvements so as to be
118 treated as part of the real estate, including, without limitation,
physically attached items not easily removable without damage to the
Property, items
119 specifically adapted to the Property, and items customarily treated as
fixtures. A "fixture" does not include trade fixtures owned by tenants of
the
120 Property. See Lines 11 to 17.
121 OCCUPANCY Occupancy of the entire Property shall be given to Buyer at time
of closing unless otherwise provided in this Offer at lines 293 -
122 297 or in an addendum per line 298. Occupancy shall be given subject to
tenant's rights, if any.
123 SPECIAL ASSESSMENTS Special assessments, if any, for work actually
commenced or levied prior to date of this Offer shall be paid by Seller
124 no later than closing. All other special assessments shall be paid by
Buyer. CAUTION: Consider a special agreement if area assessments, prop-
125 erty owner's association assessments or other expenses are contemplated.
"Other expenses" are one-time charges or ongoing use fees for pub-
126 lic improvements (other than those resulting in special assessments)
relating to curb, gutter, street, sidewalk, sanitary and stormwater and
storm
127 sewer (including all sewer mains and hook-up and interceptor charges),
parks, street lighting and street trees, and impact fees for other public
128 facilities, as defined in Wis. Stat. ss. 66.55(1)(c) & (f).
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129 PROPERTY ADDRESS: 1915 MACARTHUR ROAD, WAUKESHA, WI
130 OPTIONAL FINANCING CONTINGENCY: THE CONTINGENCY AT LINES 132 THROUGH 160 IS
A PART OF THIS OFFER IF MARKED, SUCH
131 AS WITH AN "X," AT LINE 132. IT IS NOT PART OF THIS OFFER IF IT IS MARKED
N/A OR LEFT BLANK.
132 [X] FINANCING CONTINGENCY: This Offer is contingent upon Buyer being able
to obtain: CHECK APPLICABLE FINANCING BELOW
133 [ ] land contract financing from Seller at closing as further described
at lines 136 to 153 and 161 to 168.
134 [X] a CONVENTIONAL INSERT LOAN PROGRAM fixed STRIKE ONE rate first
mort-
135 gage loan commitment as further described at lines 136 to 149 and 154 to
178, within 20 days of acceptance of this Offer.
136 The financing selected shall be in an amount of not less than $900,00.00
for a term of not less than 5 years, amortized
137 over not less than 20 years. If the purchase price under this Offer is
modified, the financed amount, unless otherwise provided, shall be
138 adjusted to the same percentage of the purchase price as in this
contingency and the monthly payments shall be adjusted as necessary to
main-
139 tain the term and amortization stated above.
140 IF FINANCING IS FIXED RATE the annual rate of interest shall not exceed
8.5% and monthly payments of principal and interest shall
141 not exceed $ AS CALCULATED.
142 IF FINANCING IS ADJUSTABLE RATE the initial annual interest rate shall not
exceed %. The initial interest rate shall be fixed for
143 months, at which time the interest rate may be increased not more
than % per year. The maximum interest rate during the
144 mortgage term shall not exceed %. Initial monthly payments of
principal and interest shall not exceed $ . Monthly
145 payments of principal and interest may be adjusted to reflect interest
changes.
146 MONTHLY PAYMENTS MAY ALSO INCLUDE 1/12th of the estimated net annual real
estate taxes, hazard insurance premiums, and private
147 mortgage insurance premiums. The mortgage may not include a prepayment
premium. Buyer agrees to pay a loan fee in an amount not
148 to exceed 0% of the loan. (Loan fee refers to discount points and/or loan
origination fee, but DOES NOT include Buyer's other closing
149 costs.) Note: Unless otherwise agreed, Buyer's delivery of any document
labeled a loan commitment will satisfy this contingency.
150 IF FINANCING IS BY LAND CONTRACT $ shall be paid at closing (in
addition to earnest money), interest rate following payment
151 default shall be %, the default period shall be days for payments
and days for performance of any other
152 obligations. Interest shall be calculated on a prepaid basis. Any amount
may be prepaid on principal without penalty at any time. Buyer under-
153 stands that if the term of the land contract is shorter than the
amortization period a balloon payment will be due at the end of the term.
154 LOAN COMMITMENT: Buyer agrees to pay all customary financing costs
(including closing fees), to apply for financing promptly, and to provide
evidence of
155 application promptly upon request by Seller. If Buyer qualifies for the
financing described in this Offer or other financing acceptable to Buyer,
Buyer agrees
156 to deliver to Seller a copy of the written loan commitment no later than
the deadline for loan commitment at line 135. BUYER'S DELIVERY OF A COPY OF
157 ANY WRITTEN LOAN COMMITMENT (EVEN IF SUBJECT TO CONDITIONS) SHALL SATISFY
THE BUYER'S FINANCING CONTINGENCY UNLESS ACCOMPANIED BY A NOTICE
158 OF UNACCEPTABILITY. CAUTION: BUYER, BUYER'S LENDER AND AGENTS OF BUYER OR
SELLER SHOULD NOT DELIVER A LOAN COMMITMENT
159 TO SELLER WITHOUT BUYER'S PRIOR APPROVAL OR UNLESS ACCOMPANIED BY A NOTICE
OF UNACCEPTABILITY.
160 LAND CONTRACT: If this Offer provides for a land contract both Parties
agree to execute a State Bar of Wisconsin Form 11 Land Contract, the terms
of
161 which are incorporated into this Offer by reference. Prior to execution of
the land contract Seller shall provide the same evidence of mer-chantable
title as
162 required above and written proof, at or before execution, that the total
underlying indebtedness, if any, is not in excess of the pro-posed balance
of the land
163 contract, that the payments of the land contract are sufficient to meet all
of the obligations of Seller on the underlying indebtedness, and that all
creditors
164 whose consent is required have consented to the land contract sale. Seller
may terminate this Offer if creditor approval cannot be obtained. Seller
may
165 terminate this Offer if Buyer does not provide a written credit report
which indicates that Buyer is credit worthy based upon reasonable
underwriting
166 standards within 15 days of acceptance. Buyer shall pay all costs of
obtaining creditor approval and the credit report. Seller shall be
responsible for
167 preparation and the expense of preparation of all closing documentation,
including the land contract.
168 FINANCING UNAVAILABILITY: If financing is not available on the terms state
in this Offer (and Buyer has not already delivered an acceptable loan
169 commitment for other financing to Seller), Buyer shall promptly deliver
written notice to Seller of same including copies of lender(s)' rejection
letter(s) or
170 other evidence of unavailability. Unless a specific loan source is named in
the financing contingency, Seller shall then have 10 days to give Buyer
written
171 notice of Seller's decision to finance this transaction on the same terms
set forth in the financing contingency, and this Offer shall remain in full
force
172 and effect, with the time for closing extended accordingly. If Seller's
notice is not timely given, this Offer shall be null and void. Buyer
authorizes Seller to
173 obtain any credit information reasonably appropriate to determine Buyer's
credit worthiness for Seller financing.
174 SELLER TERMINATION RIGHTS: If Buyer does not make timely delivery of said
commitment, Seller may terminate this Offer provided that Seller
175 delivers a written notice of termination to Buyer prior to Seller's actual
receipt of a copy of Buyer's written loan commitment.
176 NOTE: IF PURCHASE IS CONDITIONED ON BUYER OBTAINING FINANCING FOR
OPERATIONS OR DEVELOPMENT CONSIDER ADDING A
177 CONTINGENCY FOR THAT PURPOSE.
178
179 TITLE EVIDENCE
180 - CONVEYANCE OF TITLE: Upon payment of the purchase price, Seller shall
convey the Property by warranty deed (or other conveyance as provided
181 herein) free and clear of all liens and encumbrances, except: municipal and
zoning ordinances and agreements entered under them, recorded easements
182 for the distribution of utility and municipal services, recorded building
and use restrictions and covenants, general taxes levied
183 in the year of closing and NONE
184 (provided none of the
185 foregoing prohibit present use of the Property), which constitutes
merchantable title for purposes of this transaction. Seller further agrees
to com-plete and
186 execute the documents necessary to record the conveyance. WARNING: IF BUYER
CONTEMPLATES IMPROVING OR DEVELOPING PROPERTY, OR A CHANGE IN
187 USE, BUYER MAY NEED TO ADDRESS MUNICIPAL AND ZONING ORDINANCES, RECORDED
BUILDING AND USE RESTRICTIONS, COVENANTS AND EASEMENTS WHICH
188 MAY PROHIBIT SOME IMPROVEMENTS OR USES. THE NEED FOR BUILDING PERMITS,
ZONING VARIANCES, ENVIRONMENTAL AUDITS,
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189 ETC., MAY NEED TO BE INVESTIGATED TO DETERMINE FEASIBILITY OF IMPROVEMENTS,
DEVELOPMENT OR USE CHANGES FOR PROPERTY. CONTINGENCIES FOR
190 INVESTIGATION OF THESE ISSUES MAY BE ADDED TO THIS OFFER. SEE LINES 293 TO
298.
191 - FORM OF TITLE EVIDENCE: Seller shall give evidence of title in the form
of an owner's policy of title insurance in the amount of the purchase price
on
192 a current ALTA form issued by an insurer licensed to write title insurance
in Wisconsin. CAUTION: IF TITLE EVIDENCE WILL BE GIVEN BY ABSTRACT,
193 STRIKE TITLE INSURANCE PROVISIONS AND INSERT ABSTRACT PROVISIONS.
194 - PROVISION OF MERCHANTABLE TITLE: Seller shall pay all costs of providing
title evidence. For purposes of closing, title evidence shall be acceptable
195 if the commitment for the required title insurance is delivered to Buyer's
attorney or Buyer not less than 3 business days before clos- ing, showing
title to
196 the Property as of a date no more than 15 days before delivery of such
title evidence to be merchantable, subject only to liens which will be paid
out of the
197 proceeds of closing and standard abstract certificate limitations or
standard title insurance requirements and excep-tions, as appropriate.
CAUTION: BUYER
198 SHOULD CONSIDER UPDATING THE EFFECTIVE DATE OF THE TITLE COMMITMENT PRIOR
TO CLOSING, A "GAP ENDORSEMENT" TO THE
199 TITLE COMMITMENT OR AN ESCROW CLOSING.
200 - TITLE ACCEPTABLE FOR CLOSING: If title is not acceptable for closing,
Buyer shall notify Seller in writing of objections to title by the time set
for closing.
201 In such event, Seller shall have a reasonable time, but not exceeding 15
days, to remove the objections, and the time for closing shall be
extend- ed as necessary
202 for this purpose. In the event that Seller is unable to remove the
objections, Buyer shall have 5 days from receipt of notice thereof, to
deliver written notice waiving
203 the objections, and the time for closing shall be extended accordingly. If
Buyer does not waive the objections, this offer shall be null and void.
Providing title
204 evidence acceptable for closing does not extinguish Seller's obligations to
give merchantable title to Buyer.
205 DELIVERY/RECEIPT Unless otherwise stated in this Offer, any signed document
transmitted by facsimile machine (fax) shall be treated in all man-ner
206 and respects as an original document and the signature of any Party upon a
document transmitted by fax shall be considered an original sig-
207 nature. Personal delivery to, or actual receipt by, any named Buyer or
Seller constitutes personal delivery to, or actual receipt by Buyer or
Seller. Once
208 received, a notice cannot be withdrawn by the Party delivering the notice
without the consent of the Party receiving the notice. A Party may not
unilaterally
209 reinstate a contingency after a notice of a contingency waiver has been
received by the other Party. THE DELIVERY/RECEIPT PROVI-SIONS IN THIS OFFER
MAY
210 BE MODIFIED WHEN APPROPRIATE (E.G., WHEN MAIL DELIVERY IS NOT DESIRABLE
(SEE LINES 25 - 31)). Buyer and Seller author-ize the agents of Buyer and
Seller
211 to distribute copies of the Offer to Buyer's lender, appraisers,
title insurance companies and any other settle- ment service providers for
the transaction.
212
213 DATES AND DEADLINES Deadlines expressed as a number of "days" from an
event, such as acceptance, are calculated by excluding the day the event
214 occurred and by counting subsequent calendar days. The deadline expires at
midnight on the last day. Deadlines expressed as a specific num-ber of
"business
215 days" exclude Saturdays, Sundays, any legal holiday under Wisconsin or
Federal law, and other day designated by the President such that the postal
service
216 does not receive registered mail or make regular deliveries on that day.
Deadlines expressed as a specific number of "hours" from the occurrence of
an event, such
217 as receipt of a notice, are calculated from the exact time of the event,
and by counting 24 hours per calendar day. Deadlines expressed as a
specific day of the
218 calendar year or as the day of a specific event, such as closing, expire at
midnight of that day.
219 DEFAULT Seller and Buyer each have the legal duty to use good faith and due
diligence in completing the terms and conditions of this Offer. A material
failure
220 to perform any obligation under this Offer is a default which may subject
the defaulting party to liability for damages or other legal remedies.
221 If Buyer defaults, Seller may:
222 (1) sue for specific performance and request the earnest money as
partial payment of the purchase price; or
223 (2) terminate the Offer and have the option to: (a) request the
earnest money as liquidated damages; or (b) direct Broker to
return the
224 earnest money and have the option to sue for actual damages.
225 If Seller defaults, Buyer may:
226 (1) sue for specific performance; or
227 (2) terminate the Offer and request the return of the earnest money,
sue for actual damages, or both.
228 In addition, the Parties may seek any other remedies available in law
or equity.
229 The Parties understand the availability of any judicial remedy will depend
upon the circumstances of the situation and the discretion of the courts.
If either
230 Party defaults, the Parties may renegotiate the Offer or seek nonjudicial
dispute resolution instead of the remedies outlined above. By agreeing to
binding
231 arbitration, the Parties may lose the right to litigate in court of law
those disputes covered by the arbitration agreement. NOTE: IF ACCEPTED,
THIS OFFER
232 CAN CREATE A LEGALLY ENFORCEABLE CONTRACT. BOTH PARTIES SHOULD READ THIS
DOCUMENT CAREFULLY. BROKERS MAY PROVIDE
233 A GENERAL EXPLANATION OF THE PROVISIONS OF THE OFFER BUT ARE PROHIBITED BY
LAW FROM GIVING ADVICE OR OPINIONS
234 CONCERNING YOUR LEGAL RIGHTS UNDER THIS OFFER OR HOW TITLE SHOULD BE TAKEN
AT CLOSING. AN ATTORNEY SHOULD BE
235 CONSULTED IF LEGAL ADVICE IS NEEDED.
236 EARNEST MONEY
237 - HELD BY: Unless otherwise agreed, earnest money shall be paid to and held
in the trust account of the listing broker (buyer's agent if Property is
not
238 listed or seller if no broker is involved), until applied to purchase price
or otherwise disbursed as provided in the Offer. CAUTION: SHOULD PERSONS
OTHER
239 THAN BROKER HOLD EARNEST MONEY, AN ESCROW AGREEMENT SHOULD BE DRAFTED BY
THE PARTIES OR AN ATTORNEY. IF SOMEONE OTHER THAN BUYER MAKES
240 PAYMENT OF EARNEST MONEY, CONSIDER A SPECIAL DISBURSEMENT AGREEMENT.
241 - DISBURSEMENT: If negotiations do not result in an accepted offer, the
earnest money shall be promptly disbursed (after clearance from payor's
242 depository institution if earnest money is paid by check) to the person(s)
who paid the earnest money. At closing, earnest money shall be disbursed
243 according to the closing statement. If this Offer does not close, the
earnest money shall be disbursed according to a written disbursement
agreement signed
244 by all Parties to this Offer (Note: Wis. Adm. Code ss.RL 18.09(1)(b)
provides that an offer to purchase is not a written disbursement agreement
pursuant to which
245 the broker may disburse). If the disbursement agreement has not been
delivered to broker within 60 days after the date set for closing, broker
may disburse
246 the earnest money: (1) as directed by an attorney who has reviewed the
transaction and does not represent Buyer or Seller; (2) into a court
hearing a lawsuit
247 involving the earnest money and all Parties to this Offer; (3) as directed
by court order; or (4) any other disbursement required or allowed by law.
Broker may
248 retain legal services to direct disbursement per (1) or to file an
interpleader action per (2) and broker may deduct from the earnest money
any costs and
249 reasonable attorneys fees, not to exceed $250, prior to disbursement.
250 - LEGAL RIGHTS/ACTION: Broker's disbursement of earnest money does not
determine the legal rights of the Parties in relation to this Offer.
Buyer's
251 or Seller's legal right to earnest money cannot be determined by broker. At
least 30 days prior to disbursement per (1) or (4) above, broker shall send
Buyer
252 and Seller notice of the disbursement by certified mail. If Buyer or Seller
disagree with broker's proposed disbursement, a lawsuit may be filed to
obtain
253 a court order regarding disbursement. Small Claims Court has jurisdiction
over all earnest money disputes arising out of the sale of residential
property with
254 1-4 dwelling units and certain other earnest money disputes. The Buyer and
Seller should consider consulting attor-neys regarding their legal rights
under
255 this Offer in case of a dispute. Both Parties agree to hold the broker
harmless from any liability for good faith disbursement of earnest money in
accordance
256 with this Offer or applicable Department of Regulation and Licensing
regulations concerning earnest money. See Wis. Adm. Code Ch. RL 18. NOTE:
257 WISCONSIN LICENSE LAW PROHIBITS A BROKER FROM GIVING ADVICE OR OPINIONS
CON-CERNING THE LEGAL RIGHTS OR OBLIGATIONS
258 OF PARTIES TO A TRANSACTION OR THE LEGAL EFFECT OF A SPECIFIC CONTRACT OR
CONVEYANCE. AN ATTORNEY SHOULD BE CONSULTED
259 IF LEGAL ADVICE IS REQUIRED.
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[page 5 of 5, WB-15]
260 PROPERTY ADDRESS: 1915 MACARTHUR ROAD, WAUKESHA, WI
261 TIME IS OF THE ESSENCE "TIME IS OF THE ESSENCE" as to: (1) earnest money
payment(s); (2) binding acceptance; (3) occupancy;
262 (4) date of closing; (5) contingency deadlines STRIKE AS APPLICABLE and all
other dates and deadlines in this Offer except:
263 NONE. If "Time is of the Essence"
264 applies to a date or deadline, failure to perform by the exact date or
deadline is a breach of contract. If "Time is of the Essence" does not
apply
265 to a date or deadline, then performance within a reasonable time of the
date or deadline is allowed before a breach occurs.
266 [X] DOCUMENT REVIEW CONTINGENCY: This Offer is contingent upon Seller
delivering the following documents to Buyer within
267 15 days of acceptance: CHECK THOSE THAT APPLY
268 [X] Documents evidencing that the sale of the Property has been properly
authorized, if Seller is a business entity.
269 [ ] A complete inventory of all furniture, fixtures and equipment
included in this transaction which is consistent with
270 representations made prior to and in this Offer.
271 [ ] Uniform Commercial Code lien search as to the personal property
included in the purchase price, showing the Property
272 to be free and clear of all liens, other than liens to be released
prior to or at closing.
273 [ ] Other //
274 .
275 This contingency shall be deemed satisfied unless Buyer, within days
of the earlier of receipt of the final record to be delivered or the dead-
276 line for delivery of the documents, delivers to Seller a written notice
indicating that this contingency has not been satisfied. The notice shall
iden-
277 tify which document(s) have not been timely delivered or do not meet the
standard set forth for the document(s).
278 [X] ENVIRONMENTAL EVALUATION/INSPECTION CONTINGENCY: This Offer is
contingent upon: CHECK THOSE THAT APPLY
279 [X] A qualified independent environmental consultant of Buyer's choice
conducting an environmental site assessment of the Property (see
280 lines 96 to 108), at Buyer's expense STRIKE ONE, which discloses no
defects. A defect is defined as a material violation of
281 environmental laws, a material contingent liability affecting the
Property arising under any environmental laws, the presence of an
282 underground storage tanks(s) or material levels of hazardous
substances either on the Property or presenting a significant risk of
contaminating the
283 Property due to future migration from other properties to include
phase I and limited phase II environmental site assessment.
284 [ ] A qualified independent inspector of Buyer's choice conducting an
inspection of the Property and ITS SYSTEMS
285 , at Buyer's ) expense STRIKE ONE, which discloses no defects.
286 A defect is defined as a structural, mechanical or other condition
that would have a significant adverse effect on the value of the
Property; that
287 would significantly impair the health and safety of future occupants
of the Property; or that if not repaired, removed or replaced would
288 significantly shorten or have a significantly adverse effect on the
expected normal life of the Property.
289 This contingency shall be deemed satisfied unless Buyer, within SEE
ADDENDUM days of acceptance, delivers to Seller a copy of the environmental
site
290 assessment/inspection report(s) and a written notice listing the defect(s)
identified in the environmental site assessment/inspection report(s) to
291 which Buyer objects. Defects do not include conditions the nature and
extent of which Buyer had actual knowledge or written notice before
292 signing the Offer. Buyer agrees to deliver a copy of the report and notice
to listing broker, if Property is listed, promptly upon delivery to Seller.
293 ADDITIONAL PROVISIONS/CONTINGENCIES ADDITIONAL PROVISIONS FROM LINE 4.: AND
ADJACENT VACANT LAND IN THE TOWN OF WAUKESHA,
294 WAUKESHA COUNTY, WISCONSIN, BEING ALL OF THE PROPERTY OWNED BY THE SELLER
AND THE CITY AND TOWN OF WAUKESHA ADJACENT TO THE PREVIOUSLY
295 STATED STREET ADDRESS.
296
297
298 [X] ADDENDA: The attached ADDENDUM TO COMMERCIAL OFFER TO PURCHASE is/are
made part of this Offer.
299 THIS OFFER, INCLUDING ANY AMENDMENTS TO IT, CONTAINS THE ENTIRE AGREEMENT
OF THE BUYER AND SELLER REGARDING THE
300 TRANSACTION. ALL PRIOR NEGOTIATIONS AND DISCUSSIONS HAVE BEEN MERGED INTO
THIS OFFER. THIS AGREEMENT BINDS AND
301 INURES TO THE BENEFIT OF THE PARTIES TO THIS OFFER AND THEIR SUCCESSORS IN
INTEREST.
302 This Offer was drafted on 6/13/01 [date] by [Licensee and firm] J. STEVEN
TIKALSKY OF TIKALSKY, RAASCH & TIKALSKY
303 (x) /s/ Dean W. Danner 7/5/01
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304 Buyer's Signature - Print Name Here: -> ESITEC, LLC BY DEAN DANNER, MANAGER Social Security No. or FEIN (Optional)/\ Date/\
305 (x)
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306 Buyer's Signature - Print Name Here: -> Social Security No. or FEIN (Optional)/\ Date /\
307 EARNEST MONEY RECEIPT Broker acknowledges receipt of earnest money as per
line 8 of the above Offer. (See lines 236 - 259)
308 Broker (By)
------------------------ ----------------------------------
309 SELLER ACCEPTS THIS OFFER. THE WARRANTIES, REPRESENTATIONS AND COVENANTS
MADE IN THIS OFFER SURVIVE CLOSING AND
310 THE CONVEYANCE OF THE PROPERTY. SELLER AGREES TO CONVEY THE PROPERTY ON THE
TERMS AND CONDITIONS AS SET FORTH
311 HEREIN AND ACKNOWLEDGES RECEIPT OF A COPY OF THIS OFFER.
312 (x) /s/ Jeffrey M. Nigl 7/5/2001
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313 Seller's Signature - Print Name Here: -> Social Security No. or FEIN (Optional)/\ Date/\
ELECTRONIC TELE-COMMUNICATIONS BY JEFF NIGL
314 (x)
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315 Seller's Signature - Print Name Here: -> Social Security No. or FEIN (Optional)/\ Date/\
316 This Offer was presented to Seller by on , , at a.m/p.m.
----- --- ---- ----
317 THIS OFFER IS REJECTED THIS OFFER IS COUNTERED [See attached counter]
--------------- ---- --------------- ----
318 Seller Initials/\ Date/\ Seller Initials/\ Date/\
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ADDENDUM TO COMMERCIAL OFFER TO PURCHASE
The attached Commercial Offer to Purchase dated June 13, 2001, by
esitec, llc ("Buyer"), and Electronic Tele-Communications, Inc. ("Seller"), for
the property located at 1915 MacArthur Road and land, City and Town of Waukesha,
Waukesha County, Wisconsin includes the following terms and conditions as though
fully stated in said Offer to Purchase.
1. ENVIRONMENTAL INSPECTION
The Environmental Inspection at Line 278 and thereafter of the Offer to
Purchase is to include a Phase I and partial Phase II Environmental Audit
acceptable to the financing institution providing the mortgage. The time for
waiver of this contingency shall be immediately after the time for finally
obtaining financing pursuant to the financing contingency.
2. DESCRIPTION OF LAND
The property building, approximately 28,511 square feet, known as 1915
MacArthur Road, City of Waukesha, Waukesha, Wisconsin, and adjacent land in the
Town of Waukesha owned by Seller, including all outbuildings subject to
easements and restrictions of record as approved by Buyer's representative.
3. PERSONAL PROPERTY INCLUDED
Furnishings in northwest corner office to be included in sale at no
value will include the following: Desk and file cabinet unit, conference table,
three bookcases, corner cabinet, desk chair, seven conference table chairs, two
side chairs.
4. FINANCING TERMS
i. $60,000.00 within 3 days of acceptance.
ii. $858,000.00 at closing subject to adjustments and prorations
for closing.
iii. $210,000 within 90 days of closing.
iv. Prepaid rent for the year 2001 at the rate of $17,000.00 per
month for a maximum of $102,000.00. Remaining rent to be paid
as it becomes due.
v. Prepaid rent for the year 2002 and 2003 at the rate of
$5,000.00 per month for a total of $120,000.00.
vi. Any remaining amount due to be paid in cash at closing.
5. LEASE
(A) Seller shall lease from Buyer the entire main building and storage
building on the adjacent land in the Town of Waukesha, excluding approximately
400 square feet of office space in the northwest corner of the building,
including the northwest corner office along with reasonable rights of access to
those offices and the rights to use of restrooms and other common areas of the
building. Seller shall be offered a first opportunity to lease this office at
the then current rates if Buyer chooses to no longer reserve it for its use.
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(B) Seller shall be provided a minimum of three parking spaces per 1000
square feet of building leased.
(C) The lease shall be for a term of approximately 6.5 years commencing
at closing and terminating no later than December 31, 2007.
(D) The lease shall be a true triple net lease with Seller/tenant being
responsible for all maintenance, repairs and replacement of the buildings,
parking lots and adjacent land subject only to normal wear and tear. Buyer shall
be responsible for maintaining the interior of its approximately 400 square feet
of previously identified office space. Any damage caused other than by Buyer
shall be Seller's responsibility under the lease.
(E) Seller shall be permitted the use for parking and other noninvasive
purposes that portion of the Town of Waukesha land as is presently paved and
used for parking. Seller shall be responsible for such maintenance of the
parking area and a reasonable mowed area around the parking area.
(F) Base rent from Seller to Buyer shall be at the rate of $7.40 per
square foot per year for the 28,111 square feet of rented space in the main
building (Gross monthly rent in whole dollars only) or $17,335.00 per month. Use
of the storage building is included in the rent of the main building. For rent
due on and after the 1st day of January, 2003, base rent shall increase at the
rate of 3% over the prior base rent annually.
(G) Seller shall provide Buyer with availability and reasonable use of
the phone system in the building and be responsible for its reasonable
maintenance, except Buyer shall be responsible for any long distance phone
charges. The Seller shall also provide Buyer with reasonable internet services
including access to the internet, web page hosting and e-mail support.
(H) Lease shall include other generally accepted provisions for triple
net lease to landlord including general maintenance issues and insurance
coverage for the property. Buyer shall carry insurance on the building, but
Buyer shall not be required to insure any of Seller's property in or out of the
building.
(I) Seller/tenant shall be responsible for all real estate taxes on
building including landlord's office space. Real estate taxes for the adjacent
vacant land in the Town of Waukesha shall be paid by Seller/tenant, until Buyer
makes use of this land at which time the taxes shall be prorated.
(J) Seller/tenant shall have a right of first refusal to extend the
lease under new lease terms to be negotiated at the time of the termination of
the existing lease at then market rates.
(K) Seller/tenant shall not have a right to assign or sublet any
portion of the leased premises. Buyer/landlord shall have a right to withhold
permission for assignment or subletting unless arrangements are made for excess
income to be paid to landlord/Buyer.
2
8
(L) Should the Seller default on the lease and to the extent that Buyer
is able to lease the main building to other parties during 2002 and 2003, the
Buyer will reimburse Seller those amounts of prepaid rent that the Buyer is able
to collect from the new tenant after expenses.
6. CLOSING
The closing shall be held on or before July 15, 2001. If Buyer cannot
complete all requirements of its financing and other contract requirements, the
closing shall be extended until 30 days after all contract requirements have
been completed, but no later than August 31, 2001.
7. SELLER REPRESENTATION AND WARRANTIES
As to Seller's representation of conditions as set out in lines 52 -
75, the Offer is amended as follows:
At Line 65, Buyer acknowledges that a portion of the vacant land in the
Town of Waukesha is in the 100 year floodplain.
At Line 69, it is disclosed that the Qwik Trip Gas Station at the
corner of MacArthur Road had previously had a gas leak which is being
remediated, but the pollution plume crosses into the property of Seller. Seller
is not aware of any liability that will be imposed upon Seller. Buyer further,
acknowledges that there is some contamination from an underground gas tank of a
prior owner of the building which tank had been removed before the Seller owned
the building. Seller and Buyer agree if remediation is required with respect to
these matters, they will negotiate in good faith on remediation to be done and
the cost to be incurred by any party.
BUYER: SELLER:
/s/ Dean W. Danner /s/ Jeffrey M. Nigl
- ----------------------------------- -----------------------------------------
esitec, llc Electronic Tele-Communications
by: Dean Danner, Manager by: Jeff Nigl, CFO
Date: 7/5/2001 Date: 7/5 , 2001
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