HomeMy WebLinkAboutOrdinances - 22-63 - 11/07/2022 - Purchase of 3519 Elm St CITY OF MCHENRY
MCHENRY COUNTY
STATE OF ILLINOIS
Ordinance 22-63
An Ordinance Authorizing the Purchase of and Accepting the
Real Estate Contract for 3519 Elm Street,McHenry, Illinois,
Between McHenry Bancorp, Inc. and the City of McHenry
Passed by the
Mayor and City Council
Of the
City of McHenry
McHenry County
State of Illinois
November 7, 2022
Published in pamphlet form by authority of the Mayor and City Council of the City
of McHenry, McHenry County, Illinois this 8th day of November 2022
ORDINANCE NO. 22-63
An Ordinance Authorizing the Purchase of and Accepting the
Real Estate Contract for 3519 Elm Street, McHenry, Illinois,
Between McHenry Bancorp,Inc. and the City of McHenry
WHEREAS,the City of McHenry,McHenry County,Illinois,is a home rule municipality as
contemplated under Article VII, Section 6, of the Constitution of the State of Illinois, and the
passage of this Ordinance constitutes an exercise of the City's home rule powers and functions as
granted in the Constitution of the State of Illinois; and
WHEREAS, the City Council believes it is in its best interest to accept the proposed real
estate contract between McHenry Bancorp, Inc. and the City of McHenry which provides for the
purchase of the property commonly known as 3519 Elm Street, McHenry, Illinois, and a purchase
price of$364,000, as set forth in Exhibit A; and
WHEREAS, the subject property is depicted in Exhibit B hereto.
NOW, THEREFORE, BE IT ORDAINED by the CITY COLTNCIL of the CITY OF
McHENRY, McHenry County, Illinois, as follows:
SECTION 1: The City hereby accepts the real estate contract attached hereto as Exhibit A
and authorizes the Mayor, City Attorney, and Deputy City Clerk to sign any and all documents
necessary to effectuate the closing on the property.
SECTION 2: If any section, paragraph, subdivision, clause, sentence or provision of this
Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid, such judgment
shall not affect,impair,invalidate or nullify the remainder thereof,which remainder shall remain and
continue in full force and effect.
SECTION 3:All ordinances or parts of ordinances in conflict herewith are hereby repealed to
the extent of such conflict.
SECTION 4: This Ordinance shall be in full force and effect upon its passage,approval and
publication in pamphlet fortn(which publication is hereby authorized) as provided by law.
Passed this 7th day of November, 2022.
Ayes Nays Absent Abstain
Alderman Devine X
Alderman Glab X
Alderman Harding X
Alderman Strach X
Alderwoman Miller X
Alderman Santi X
Alderman McClatchey X
Page 1
APPROVED:
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Mayor Wayne Jett
(SEAL)
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ATTEST:
Deputy City Clerk Monte Johnson
Page 2
CERTIFICATION
I,Monte Johnson,do hereby certify that I am the duly appointed,acting and qualified Deputy
Clerk of the City of McHenry,McHenry County,Illinois,and that as such Clerk,I am the keeper of
the records and minutes and proceedings of the Mayor and Aldermen of said City of McHenry.
I do hereby further certify that at a regular meeting of the Mayor and Aldermen of the City of
McHenry, held on the 7th day of November, 2022, the foregoing Ordinance entitled An Ordinance
Authorizing the Purchase of and Accepting the Real Estate Contractfor 3519 Elm Street„ McHenry,
Illinois, Between McHenry Bancorp, Inc. and the City of McHenry, was duly passed by the City
Council of the City of McHenry.
The pamphlet forrn of Ordinance No. 22-63, including the Ordinance and a cover sheet
thereof, was prepared, and a copy of such Ordinance was posted in the City Hall, commencing on
the 8th day of November 2022, and will continue for at least 10 days thereafter. Copies of such
Ordinance are also available for public inspection upon request in the office of the City Clerk.
I do further certify that the original, of which the attached is a true and correct copy, is
entrusted to me as the Clerk of said City for safekeeping, and that I am the lawful custodian and
keeper of the same.
GIVEN under my hand and seal this 8th day of November 2022.
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REAL ESTATE SALE AGREEMENT
THIS REAL ESTATE SALE AGREEMENT (this "Agreement"} is made as of October
2022 ("Effective Date"), by and between McHenry Bancorp, Inc. an Illinois corporation
("Seller"), and the City of McHenry, an Illinois municipal corporation, or its nominee ("Buyer").
RECITALS
Buyer desires to purchase and Seller desires to sell certain real property owned by Seller
located at 3519 Elm Street, McHenry, Illinois, as more particularly described herein.
In consideration of this Agreement, Seller and Buyer agree as follows:
l . Sale of Property: Seller agrees to sell to Buyer, and Buyer agrees to buy from Seller, the
following property (collectively, the "Property")
1.1. Real Property: The real property located in McHenry County, Illinois, commonly known as
3519 Elm Street, McHenry, Illinois 60050 with PINS 09-26454-018, 09-26-378-018, 09-
26-378-007, and 09-26454-004, legally described on Exhibit A, including any
improvements thereon ("Real Property"), together with all applicable and transferable
warranties ("Warranties"), and all public and private licenses, permits, authorizations, and
approvals pertaining to the ownership of and/or operation of the portions of the Real Property
(collectively, the "Licenses").
1.2. Personal Property: Ali personal property located in the Real Property ("Personal
Property"}.
2. Purchase Price and Manner of Payment: The total purchase price ("Purchase Price") to be paid
for the Property is $364,000.00. The Purchase Price shall be payable as follows:
a. Within two (2) days following the Effective Date, Buyer shall deliver to Chicago Title
Insurance Company (the "Title Company"), as escrowee, a deposit in the amount of
$3,500.00 ("Earnest Money") into escrow ("Earnest Money Escrow") pursuant to the Title
Company's standard form of earnest money escrow agreement, which each of the parties
hereto agree to execute and deliver upon Title Company's request.
b. The balance of the Purchase Price, as adjusted by prorations and adjustments described in
Section 5, at Closing in immediately available funds.
3. Conditions to Closing: The obligations of Buyer ("Buyer's Conditions") under this Agreement
are contingent upon each of the following:
3.1. Representations and Warranties: The representations and warranties of Seller contained in
this Agreement must be true now and on the Closing Date as if made on the Closing Date.
3.2. Title: Title Company is ready, willing, and able to issue Buyer an owner's policy of title
insurance subject only to the Permitted Encumbrances.
3.3. Buyer's Termination: Buyer shall have not exercised its right to terminate the Agreement
during the Due Diligence Period defined in Section 7.
In the event of the failure of any of the conditions set forth in this Section 3 in favor of Buyer, Buyer
may, at its option, terminate this Agreement and immediately receive a refund of the Earnest Money.
4. Closin : Subject to compliance by the parties hereto with their respective obligations to be
performed at or prior to the Closing and satisfaction of the respective conditions precedent to the
obligations of Buyer and Seller to consummate the transaction contemplated hereby,
consummation of the sale of the Property by Seller to Buyer under this Agreement (the "Closing")
shall occur within 14 days of a) the expiration of the Due Diligence Period defined in Section 7, or
b) Buyer waiving all contingencies ("Closing Date" or "Date of Closing"). The Closing shall take
place at the office of Title Company in Crystal Lake, IL, or such other location acceptable to Buyer
and Seller; provided, however, the physical attendance of the parties at Closing shall not be
required, and all documents and funds required hereby may be delivered to Title Company in
escrow. Seller agrees to deliver exclusive possession of the Property to Buyer, subject only to the
Permitted Encumbrances, on the Closing Date.
4.1. Seller's Closing Documents: On the Closing Date, Seller shall execute and deliver to Buyer
the following (collectively, "Seller's Closing Documents"), all in form and content reasonably
satisfactory to Buyer:
4.1.1. Deed: A Special Warranty Deed conveying the Real Property to Buyer, or Buyer's
nominee, free and clear of all encumbrances, except the Permitted Encumbrances
hereafter defined.
4.1.2. Bill of Sale: A bill of sale in customary form conveying the Personal Property to Buyer,
or Buyer's nominee.
4.1.3. FIRPTA Affidavit: Anon -foreign affidavit, properly executed, containing such
information as is required by Internal Revenue Code Section 1445(b)(2) and its
regulations.
4.1.4. Affidavit of Title: A Seller's Affidavit of Title in customary form.
4.1.5. Other Documents: All other documents contemplated by this Agreement or reasonably
determined by Buyer or Title Company to be necessary to transfer the Property to
Buyer free and clear of all encumbrances.
4.1.6. ALTA: An ALTA statement or Owner's Affidavit in the form required by the Title
Company in order to issue the Title Policy.
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4.1.7. Transfer Tax: Completed declarations or statements, executed by or on behalf of
Seller, in the form prescribed by governmental authorities to be filed in connection with
the transfer tax imposed by governmental authority on transfer of title.
4.1.8. A33i6nm% n of Intangibles: An assignment of all of Seller's right, title, and interest, if
any, in and to Licenses, the Assumed Contracts, and all Warranties, if any, to the extent
assignable, together with an assumption by Buyer of the Assumed Contracts, to be
executed by Seller and Buyer.
4.1.9. Originals, Codes and Keys: The original Assumed Contracts, Licenses, and
Warranties, as well as keys to the Real Property, all to the extent in Seller's
possession and/or control.
4.2. Buyer's Closing Documents: On the Closing Date, Buyer will execute and deliver to Seller
the following (collectively, "Buyer's Closing Documents"):
4.2.1. Purchase Price: Funds representing the balance of Purchase Price due and payable on
Closing in wired funds to the Title Company,
4.2.2. ALTA: An ALTA statement or Owner's Affidavit in the form required by the Title
Company in order to issue the Title Policy.
4.2.3. Assignment of Intan ig tiles: An assignment of all of Seller's right, title, and interest, if
any, in and to Licenses, the Assumed Contracts, and all Warranties, if any, to the extent
assignable, together with an assumption by Buyer of the Assumed Contracts, to be
executed by Seller and Buyer.
5. Prorations and Adjustments: Seller and Buyer agree to the following pro -rations and allocation of
costs regarding this Agreement.
5.1. Title Insurance and Closing Fee: Seller will pay all costs of the Title Evidence, all title
commitment fees and all title insurance premiums insuring the Buyer as owner with extended
coverage. Buyer will pay for all premiums required for the issuance of any mortgagee's Title
if applicable and any additional endorsement Buyer may request.
Policy for Buyer's lender,
Seller shall pay any fees charged by the Title Company for any escrow required regarding
Buyer's Objections. Seller and Buyer shall split, on a 50150 basis, any escrow fees charged
by Title Company with respect to the holding of Earnest Money and the closing of the sale
transaction contemplated hereby. Buyer shall pay any of Title Company's fees related to any
loan to Buyer.
5.2. Transfer Taxes: Seller shall pay all transfer fees or taxes and any sales or income taxes
payable in connection with this transaction, except those that are required to be paid by Buyer
under state or local laws.
5.3. Real Estate Taxes and Special Assessments: All general real estate taxes, ad valorem taxes,
special or general assessments, personal property taxes, water and sewer rent rates and
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charges, vault charges, canopy permit fees, and other municipal permit fees shall be, to the
extent due and payable at Closing, paid by Seller, and otherwise apportioned between the
parties as of the Closing Date. If the amount of any of such items is not ascertainable on the
Closing Date, the credit therefore shall be based on one hundred percent (100%) of the most
recent available bill. All prorations shall be final.
5.4. Other Costs: All other operating costs of the Property (including any and all assessments
and other amounts due under any declaration or similar instrument affecting the Property)
shall be allocated between Seller and Buyer as of the Closing Date, so that Seller pays that
part of operating costs payable before the Closing Date, and Buyer pays that part of operating
costs payable from and after the Closing Date; provided, however, (a) insurance premiums
shall not be pro -rated, and (b) Buyer shall only pay its pro rata expenses under the Assumed
Contracts,
5.5. Attorneys' Fees: Each of the parties will pay its own attorneys fees, except that a party
defaulting under this Agreement or any Closing Document will pay the reasonable attorney's
fees and court costs incurred by the non -defaulting party to enforce its rights hereunder.
6. Title Examination: Title Examination will be conducted as follows:
6.1. Title Evidence: Seller shall, within ten (10) days after the Effective Date, furnish the
following (collectively, "Title Evidence") to Buyer: (a) at Seller's cost, a commitment for
title insurance issued by the Title Company; and (b) at Buyer's cost, such other
information and containing such other matters as Buyer or Buyer's lender may reasonably
request.
6.2. Buyer's Objections: Within ten (10) days prior to the expiration of the Due Diligence Period,
Buyer may make written objections ("Objections") to the form and/or contents of the Title
Evidence and Buyer's new survey (if any). Buyer shall have the continuing right to object to
any matter first appearing in any update of its title commitment, and such matters objected
to by Buyer shall be deemed Objections. Seller will have ten (10) days after receipt of the
Objections to notify Buyer whether Seller agrees to satisfy, cure, and remove such
Objections, and the failure of Seller to respond shall be deemed a rejection by Seller of
Buyer's request to satisfy the Objected Exceptions. If Seller elects to cure any Objections but
does not cause the deletion of the Objections by Closing, Buyer may elect, as its sole
remedies, (a) to exercise its remedies pursuant to Section 15 hereof, (b) to extend the date of
Closing for up to 30 days and require Seller to use reasonable commercial efforts to remedy
the Objections, or (iii) to waive any or all of the Objections. Seller shall use its best efforts to
correct any Objections. As used herein, the term "Permitted Objections" shall mean (A) ad
valorem real property taxes not yet due or payable on the date of Closing; and (B) matters of
record affecting the Property, as of the date of this Agreement as which Buyer does not timely
object, or as to which Seller does not agree to cure pursuant to this Section 6.2, and further,
that in no event will the Permitted Encumbrances include any Monetary Encumbrances.
Notwithstanding any to the contrary herein, Seller shall, prior to or at closing, satisfy and
terminate of record (or release the Property of record therefrom) any and all liens, mortgages,
judgments, and other encumbrances of a monetary nature which affect the Property
(collectively, "Monetary Encumbrances"), and further, in the event Seller fails to do so,
Buyer shall have the right to apply a portion of the cash payable to Seller at the Closing to
the satisfaction of such Objection, and the amount so applied shall reduce the amount of the
Purchase Price payable to Seller at the Closing.
7. Due Diligence: The inspection of the Property will be conducted as follows:
7.1.1. Buyer shall have until the earlier of (1) 11:59 p.m. CST on the sixtieth (60th)
day following the Effective Date, or (2) Buyer providing written notice to Seller
that it is satisfied with the condition of the Property (the "Due Diligence
Period"), at Buyer's sole cost, within which Buyer shall have the right to inspect
the Real Property and perform any studies as Buyer deems appropriate, including
without limitations, any of the following: physically inspect the Property,
including performance of any engineering tests, physical and structural condition
of the building, and environmental studies; review such other information with
respect to the Property, as Buyer deems necessary to verify its satisfaction that
the Property, in Buyer's sole discretion, is suitable for purchase and Buyer's
intended use of retail redevelopment (collectively, "Buyer's Diligence").
7.1.2. If at any time prior to the expiration of the Due Diligence Period, Buyer
determines it is not satisfied with the condition of the Property as it deems, in its
sole, exclusive and unfettered discretion, to be necessary for its intended use of
the Property, this Agreement may, at Buyer's sole election, be terminated. Such
termination shall be effected by written notice thereof to Seller given prior to the
expiration of the Approval Period, and shall have the effect of rendering this
Agreement null and void, whereupon the full amount of the Earnest Money shall
be immediately returned to Buyer. Notwithstanding the foregoing, if Buyer
terminates this Agreement, Buyer shall, following Seller's request, deliver to
Seller copies of all studies conducted by or on behalf of Buyer on the Property,
except for any market or financial studies or analyses.
7.2 Inspection Costs: Buyer shall pay all costs and expenses of all investigation and testing
of the Property, shall restore the Property, in the event of any damage to the Property
caused by Buyer's investigation, to the Property's condition existing immediately prior to
such damage, and shall hold Seller and the Property harmless from all costs and liabilities
relating to Buyer's environmental assessment investigation activities and results
therefrom. Notwithstanding anything to the contrary in this Agreement, Buyer and Seller's
ill survive closing or termination of this Agreement.
obligations under this Paragraph 7.2 w
7.3 Documents: Seller shall, within five (5) days after the Effective Date, deliver to Buyer the
following to the extent they are in Seller's possession or control (collectively, "Seller
Documents"),
7.3.1. All licenses, permits, authorizations, and approvals, if any, required by law and
issued by all governmental authorities having jurisdiction over the Property and in
the possession of Seller.
5
7.3.2. All leases, service and executory contracts, if any, affecting the Property.
7.3.3. Any and all title documents in the possession of Seller, including but not limited to
any existing title policy, later title commitment, surveys, topographic surveys and
studies and documents affecting title, whether or not said documents are specified
in any such policy or commitment.
7.3.4. All annexation, development and recapture agreements affecting the Property in
Seller's possession or control.
7.3.5. Copies of any environmental reports (and any "closure" letter, "no further action"
letters, and any other documentation relating to the environmental condition of the
Property or any remediation thereof) and structural reports and appraisals affecting
the Property.
7.3.6. Copies of all pleadings and other documents dealing with any real estate tax appeal
or litigation or any special assessment or any increase in assessment of valuation
or tax rate for the Property.
7.3.7. Copies of the real estate tax bills for the Property for the current tax year and the
prior two tax years and any pending special taxes or assessments affecting the
Property
7.3.8. Any and all studies of the Property previously conducted by or in possession of
Seller.
7.4. Bu era's Rights: If Buyer determines there is a condition on the Property which Buyer has
determined will interfere with Buyer's intended use of the Property, Buyer shall provide
notice to Seller within the time period stated in Section 7.1 of such objection, and Buyer may
either terminate this Agreement and immediately receive a full refund of the Earnest Money,
receive an agreed upon Purchase Price reduction or waive the condition and proceed to
closing. In the event the Agreement is terminated for any reason, Buyer shall promptly return
all of the Seller Reports, and all copies of the same, to Seller.
8. Survey: Prior to Closing, Seller shall provide a new AT TA survey of the property, at Seller's
expense, satisfactory to the title company to issue extended coverage and certified to the Buyer
and the Title Company,
9. Seller Representations and Warranties: In order to induce Buyer to enter into this Agreement,
Seller hereby represents and warrants to, to the best of Seller' actual knowledge, Buyer as follows,
and all of the foregoing and following representations and warranties shall be true and correct as
of the Effective Date and at the Closing Date (and the truth and accuracy of which shall constitute
a condition to the disbursement of the Purchase Price) and shall survive the Closing of this
transaction:
0
9.1. This Agreement has been duly authorized and executed on behalf of Seller and constitutes a
valid and binding agreement, enforceable in accordance with its terms, and does not violate
the provisions of any agreement as to which Seller is a party or by which Seller is bound.
9.2. Seller is the sole owner of good and marketable indefeasible fee simple title in and to the
Property. The Property is comprised of one distinct, legally -subdivided parcel taxed
separately from any other property, and, to Seller's knowledge, no subdivision thereof is
required to convey the Property in accordance with this Agreement.
9.3. Other than Seller, there are no parties in possession of the Property, nor any parties with
any leases, licenses, or other rights to occupy and/or possess any portion of the Property,
and no person or entity has any right with respect to all or any portion of the Property
(whether by option to purchase, right of first refusal, contract, or otherwise) that would
prevent or interfere with Buyer taking title to, and exclusive possession of, all of the
Property at Closing.
9.4. Seller is not subject to any judgment or decree of a court of competent jurisdiction or
governmental agency that would limit or restrict Seller's right to enter into and carry out
this Agreement, and neither the execution of this Agreement nor the consummation of the
transactions contemplated herein will constitute a breach under any contract or agreement
to which Seller is a party or by which Seller is bound or affected or which affects the
Property or any part thereof.
9.5. There are no actions, suits or proceedings pending, or to the actual knowledge of Seller
threatened, before any judicial body or any governmental authority or any order, writ,
injunction, decree or demand of any court or any governmental authority relating to the
Property or any part thereof, or relating to Seller which could affect the Property, Seller's
title thereto, or this Agreement, and the Property is in compliance with all laws, rules,
regulations and orders applicable thereto. Seller has no knowledge of any uncured
violations of applicable law, ordinance, regulations, or legal requirements with respect to
the Property.
9.6. Seller has not received a notice of noncompliance with environmental laws for the
Property, and Seller has not treated, stored or disposed of Hazardous Materials on the
Property and to the best of Seller's knowledge no such Hazardous Materials have been
used at the Property. As used herein, the term "Hazardous Materials" means any
hazardous substances, pollutant or contaminant regulated under CERCLA; oil and
petroleum products and natural gas, natural gas liquids, liquefied natural gas, and synthetic
gas useable for fuel; pesticides regulated under FIFRA; asbestos, PCBs and other
substances regulated under TSCA; source material, special nuclear material and byproduct
materials regulated under the Atomic Energy Act; and industrial process and pollution
control wastes whether or not hazardous within the mean of RCRA.
OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN THE
CLOSING DOCUMENTS DELIVERED BY SELLER AT CLOSING, SELLER MAKES
NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR
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IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF FITNESS FOR
A PARTICULAR PURPOSE. THIS AGREEMENT IS FOR THE SALE AND PURCHASE
OF THE PROPERTY IN THEIR "AS IS" CONDITION AS OF THE DATE OF
EXECUTION. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR
1 1I 1 kCKNOWLEDGES THAT NO REPRESENTATIONS, WARRANTIES OR
:;UARANTEES WITH RESPECT TO THE CONDITION OF THE PROPERTY HAVE
MADE BY DEFECTS,
I)ISCLOSED BY
10. Broker's Commission: Buyer represents that it has dealt with no brokers and no finders or the like
in connection with this transaction. Seller has retained the services of a broker in connection with
tA"is transaction and will be solely responsible for the payment of any commissions and fees due
under its separate agreement with its broker. Seller and Buyer agree to indemnify and hold each
other harmless from all claims, damages, costs or expenses of or for any other such fees or
commissions resulting from their actions or agreements regarding the execution or performance of
this Agreement, and will pay all costs of defending any action or lawsuit brought to recover any
such fees or commissions incurred by the other party, including reasonable attorneys' fees.
11. Assignment: Neither this Agreement nor any of the rights, interests nor obligations hereunder may
ithout the prior written consent of the other party hereto, which be assigned by either party hereto w
consent will not be unreasonably withheld. Buyer shall give Seller prompt notice of any such
approved assignment by Buyer, together with a copy of the executed assignment and assumption
agreement, and, if requested by Buyer, Seller agrees to execute and deliver to Buyer an instrument
reasonably acceptable to Buyer documenting the release provided for in this paragraph.
12. Survival: All of the terms of this Agreement and warranties and representations herein contained
shall survive and be enforceable after the Closing for a period of twelve (12) months.
13. Notices: Any notice required or permitted hereunder shall be given by personal delivery upon an
authorized representative of a party hereto; or if mailed by United States registered or certified
mail, return receipt requested, postage prepaid, or if deposited cost paid with a nationally
recognized, reputable overnight courier, properly addressed as follows:
If to Buyer: City of McHenry
Attn: Ross Polerecky, Director of Community Development
333 S. Green Street
McHenry, Illinois 60050
With a copy to: Ryan P. Farrell
Zukowski, Rogers, Flood & McArdle
50 Virginia Street
Crystal Lake, IL 60014
Office: 815459-2050
Mobile: 815404-8068
Email: rfarrell cr,zrfmlaw.com
If to Seller. McHenry Bancorp, Inc.
Donald H. Wilson, Chairman, President and CEO
353 Bank Drive
McHenry, IL 60050
Office: 815-331-6487
Mobile: 414-699-3299
Email: dwilson@mchenrysavings.com
With a copy to : Craig S . Krandel
Timm & Garfinkel, LLC
407 Congress Parkway, Ste. E
Crystal Lake, IL 60014
Office: 815477-7476
Mobile: 815482-0208
Email: ckrandel@ltglegal.com
Notices shall be deemed effective on the date of receipt, regardless of whether delivery is refused
by the addressee. Any party may change its address for the service of notice by giving notice of
such change five (5) days prior to the effective date of such change.
14. Miscellaneous: The paragraph headings or captions appearing in this Agreement are for
convenience only, are not a part of this Agreement, and are not to be considered in interpreting this
Agreement. This written Agreement constitutes the complete agreement between the parties and
supersedes any prior oral or written agreements between the parties regarding the Property. This
Agreement can only be modified by a writing signed by all parties, and no waiver of any of its
terms will be effective unless in writing executed by the party waiving the term. This Agreement
binds and benefits the parties and their successors and assigns. This Agreement has been made
under the laws of the State of Illinois, and such laws will control its interpretation.
15. Remedies: If there is a default by the Buyer under the Agreement, and such default continues for
more than five (5) days after Seller provides Buyer with written notice of default, Seller may
terminate this Agreement by giving written notice of termination to the Buyer, and on such
termination, all payments made hereunder may be retained by Seller as liquidated damages, time
being the essence hereof. If there is a default by the Seller under the Agreement, and such default
continues for more than five (5) days after Buyer provides Seller written notice of default, Buyer
may 1) terminate this Agreement by giving written notice of termination to the Seller, in which
event the Earnest Money shall be immediately returned to Buyer, and Seller shall refund to Buyer
all of Buyer's documented out-of-pocket expenses incurred in connection with its negotiation of
this Agreement, and its pursuit and due diligence activities in connection with its intended
acquisition of the Property (which obligation to reimburse shall survive the termination hereof) or
2) seek specific performance of this Agreement, one of the foregoing remedies being the sole
remedy of Buyer for Seller's default; provided, however, if specific performance is not reasonably
available to Buyer a result of Seller's act or omission, then Buyer shall have all rights and remedies
at law or in equity for Seller's breach hereof. All disputes shall be venued in McHenry County,
Illinois and all disputes shall be resolved under and pursuant to Illinois law.
16. Seller's Covenants. At all times prior to Closing, Seller shall not enter into any lease of any portion
of the Property, or enter into any other agreement with respect to the Property which cannot be
terminated prior to Closing, or any new encumbrance or other matter of record title, or make
application for any rezoning or other land use modification with respect to the Property, in any
case, without the prior written approval of Buyer, which approval shall be requested by Seller to
Buyer in writing. At all times prior to Closing, Seller shall operate and manage the Property in
accordance with its prior practices, and in a good faith and commercially reasonable manner, and
shall, without limitation of the foregoing, maintain the Property in its current condition.
17. Service Contracts. Buyer shall not be obligated to assume any service contracts in connection with
the Property unless Buyer has provided written notice of Buyer's intent to assume same not later
than thirty (30) days prior to Closing, and Seller shall terminate at Closing, at Seller's expense, any
such service contracts not so assumed by Buyer (the Service Contracts expressly assumed by Buyer
hereunder are collectively, the "Assumed Contracts"). Notwithstanding anything contained herein
to the contrary, Seller shall, effective at or prior to Closing, terminate all leasing and management
contracts (if any) with respect to the Property.
18. Electronic Si ng atures. This Agreement may be executed electronically and/or with digital
signatures, each of which shall be of the same legal effect, validity, or enforceability as a manually
executed signature or the use of a paper -based record keeping system, as the case may be, to the
extent and as provided for in any applicable law, including the Federal Electronic Signatures in
Global and National Commerce Act, and any applicable state laws based on the Uniform
Electronic Transactions Act.
[SIGNATURE PAGE TO FOLLOW]
Seller and Buyer have executed this Agreement effective as of the date first written above.
BUYER:
Citq
By:
SELLER:
McHenry Bancorp, Inc.
By:
Donald H. Wilson, Chairman, President &CEO
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Seller and Buyer have executed this Agreement effective as of the date first written above.
City of McHenry
By:
Wayne Jett, Mayor
SELLER:
McHenry Bancorp, Inc.
By:
Donald H. Wilson, Chairman, President &CEO
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EXHIBIT A
Description of
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