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HomeMy WebLinkAbout6.B.(5) Real Estate Purcahse and Site Work Agreement~~ C s~~ 1200 County-City Building, 227 West Jefferson, South Bend, Indiana 46601-1830 • Phone 574/235-9371 • Fax 574/235-9021 To: Redevelopment Commission From: Ann Kolata~~~ ~~ ~ ~ Subject: A~•eement to Purchase Real Estate -The 1100 Corporation Date: March 31, 2009 Property to be Purchased by Commission: 1 100 Prairie Avenue, former Studebaker Foundry. The building contains approximately 450,000 square feet and is located on 19.19 acres. Property Owner: The 1100 Corporation -Don Nuner is the principal of this corporation Tenant: Underground Pipe c~. Valve, Inc. Terms of Purchase: • Commission will purchase the property for S 1,625,000 with a credit of $129,560 for a site in the Oliver Industrial Park. The net purchase price will be $1,495,440. • The 1100 Corporation will purchase 6.32 acres in the Oliver Industrial Park at a price of X20,500 per acre. • Connnission agrees to pay costs associated with ground compaction of the Oliver Industrial Park site. • The real estate closing on both properties will take place within two days of all conditions being met. The closing is to take place by July 1, 2009. • Underground Pipe & Valve will receive $205,000 in relocation payments once the move to the new location is complete. • The existing building will be leased back to The 1100 Corporation for $1 per month until the move to the new building is completed. • A Groundwater Monitoring Access Agreement (Exhibit G) will allow the Commission to monitor existing groundwater wells in the future. • The l 100 Corporation will not seek real property tax abatement for the initial 36,000 square foot building at the Oliver Industrial Park site. • The Connnission agrees to provide crushed stone to be used as base for the storage yard area that will be asphalted. There is a large amount of crushed concrete at the former stamping plant site that will be provided. This should be sufticient but the Agreement provides that the Connnission will pay for any additional crushed stone that is necessary for the base. The 1 100 Corporation will be allowed to excavate sand from an adjacent lot which is where the City's expansion of the existin~~ retention pond will take place. Consh•uction of the new building is to begin no later than August 1, 2009 and qualify for a Cei-titicate of Completion within 12 months. Description of Project: • The 1100 Corporation or a successor real estate holding company will construct a 36,000 s.f. building in the Oliver Indush•ial Park that will be leased to Underground Pipe and Valve, Inc. The building will be a single level pre-engineered steel building with two sections; a basic shop area and an office section. The majority of the shop area, 23,197 square feet, will be heated and cooled with the remaining shop area unheated. The office area will consist of 7,270 square feet. There will be 14 private offices with reception, conference, workroom, break room, and resti-oom uses. An asphalt parking area will sui7•ound all four sides of the building with the area to the north capable of handling heavy truck parking. The entire site will be fenced. Decorative masonry pillars will be located on the south fence line. • The estimated cost of the new construction is just over $2,000,000. • Underground Pipe & Valve, Inc. has been in business since 1977. The company is a distributor of pipes, valves, and lift station equipment. Other product lines include; automatic meter reading systems, line stops, PVC water and sewer pipe, fire hydrants, water meters, manhole frames and covers, back flow preventers, couplings and grinders. The company has distribution centers in Fort Wayne, Kalamazoo and Schererville. It has fifty employees, 27 of whom work at the Prairie Avenue location. Staff Comments: The purchase price of $1,625,000 was negotiated and includes compensation for the approximately five acres of heavy duty paving, additional fencing with masonry pillars on the south side of the property and landscaping that the City required for the storage yard. In addition, they have agreed to not request tax abatement for the construction of the 36,000 square foot building. A map showing the current and new location of Underground Pipe & Valve is attached to this report. Funding Source: Funds ti•om the U.S. Department of Housing and Urban Development for the Studebaker/Oliver Development Project will be used for property acquisition and relocation. The Section 108 Loan has funds budgeted for this acquisition and relocation. Additional funds fi•om HUD's Economic Development Initiative grant will be used for site prep at the Oliver site. Staff Recommendation: The staff recommends approval of the Agreement. Underground Pipe & Valve is a strong, locally owned business. This Agreement allows them to relocate to a nearby location in order to continue to serve their customers and provide tax base and jobs to the City of South Bend. Purchase of the former foundry will complete the Commission's acquisition of former Studebaker buildings south of Sample Street. It will further the goals of City Plan by redeveloping a brownfield site and retaining an existing business within South Bend. Underground Pipe & Valve REAL ESTATE PURCHASE AND SITE WORK AGREEMENT THIS REAL ESTATE PURCHASE AND SITE WORK AGREEMENT (this "Agreement") is made and entered into this day of March, 2009 (the "Effective Date"), by and among the CrrY oI SOUTH BEND, INDIANA with offices at 1400 County-City Building, South Bend, Indiana 46601 (the "City"), the SOUTH BEND REDEVELOPMENT COMMISSION with off ces at 1200 County-City Building, South Bend, Indiana 46601 (the "Commission," and together with the City, the "Public Entities") and THE 1100 CORPORATION, an Indiana corporation with offices at 1100 Prairie Avenue, South Bend, Indiana 46601 (the "Company") or its assigns. BACICGROUN D A. The Commission is the governing body of the City of South Bend Department of Redevelopment ("Department") and exists and operates under the provisions of IND. COD£; ~ 36- 7-14-1 et seg., commonly known as the "Redevelopment of Cities and Towns Act of 1953" as amended from time to time ("Act"); and B Pursuant to the Act, the Commission has the power to acquire by purchase and/or exchange and/or other means, interests in real property needed for the redevelopment of areas needing redevelopment located within the corporate boundaries of the City in order to promote land use to serve the best interests of the City and its residents; and C. Company owns certain real estate and improvements located thereon generally known as 1 l00 Prairie Avenue, South Bend, Indiana and legally described on Exhibit A attached hereto (the "Prairie Avenue Site"}, which Company leases to Underground Pipe & Valve Incorporated, an Indiana corporation ("UPV"); and D. The City, through the Commission, desires to (i) acquire and redevelop the Prairie Avenue Site (along with other property) in a manner that will reduce blight, promote responsible land use and development and serve the best interests of the City and its residents, and (ii) facilitate the relocation of UPV and its business operations to a site in a redevelopment area known as the Oliver Industrial Park; and E. Public Entities desire to purchase from Company and Company desires to sell to Public Entities, the Prairie Avenue Site all in accordance with and subject to the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Public Entities agree as follows: 1. Purchase and Sale of Prairie Avenue Site. On the Closing Date (as defined below), subject to the terms and conditions of this Agreement, Company agrees to sell, convey, assign and transfer to Commission and Commission agrees to purchase from Company, the Prairie Avenue Site including any and all structures, improvements and immovable fixtures thereon and all rights of way, easements, appurtenances, roads, streets and all shrubs, plants and trees located on such property which are not removed when UPV vacates the Prairie Avenue Site. At Closing (as defined below), Company shall convey the Prairie Avenue Site to Commission by Special REAL 1iSTATE PURCHASE AND SITE WORK AGREEMENT PAGL 1 Warranty Deed in the form attached hereto as Exhibit B conveying good and marketable title in fec simple, subject to applicable building setbacks, zoning laws and easements, restrictions and/or other encumbrances of public record shown in the Prairie Title Commitment (as defined below) but free of any and all recorded mortgage or judgment liens as may be reflected therein. 2. Cash and Other Consideration for Prairie Avenue Site. The parties agree that the consideration to be paid by Public Entities to Company for the Prairie Avenue Site ("Consideration") shall be, and be payable, as follows: (a} At Closing, Public Entities shall pay Company the sum of $1,625,000 ("Cash Payment"), less the purchase price for the Oliver Park Site and less the amount oi' any prorations credited against the Cash Payment under this Agreement, by certified check or other immediately available funds, and (b) At Closing, the Commission shall transfer to Company (or a designee oi~ Company) approximately 6.32 acres of real estate located in the Oliver Industrial Park, as generally depicted on Exhibit C attached hereto (the "Oliver Park Site") by Special Warranty Deed in the form attached as Exhibit D conveying good and marketable title in fee simple to the Oliver Park Site, free of any recorded mortgage liens and judgment liens subject to any exceptions shown in the Oliver Park Commitment (as defined below) and not objected to by Buyer as provided for in this Agreement. The parties acknowledge and agree that the boundary lines/description of the Oliver Park Site as generally shown on Exhibit C shall be determined and added to and included as part of Exhibit C as soon as reasonably practicable after the date hereof, to reflect the precise legal description of the Oliver Park Site prepared by Commission's surveyor in accordance with Section 4(b) below. The parties further acknowledge and agree that the value of the Oliver Park Site is $20,500 per acre. The Company shall perform all actions necessary so that the ground conditions at the Oliver Park Site are suitable for the construction of the anticipated improvements. That work will likely include soil compaction and subsurface conditions. All such work shall be performed at the City's expense. Prior to the Closing, the Company and the Public Entities shall agree on tl~e initial ground work to be performed and its price, The price will be paid to the Company at Closing. The parties understand and agree that the subsurface conditions may be such that additional work will be needed. If such work is needed, the Company shall present to the City its proposal for the work and the cost of such work. The City shall approve any such request which is reasonably necessary to be performed so that the ground conditions will be suitable for the construction of the anticipated improvements. The cost of the additional work shall be paid by the City at the time the extra work is approved by the City. 3. Closin The consummation of the transactions contemplated herein (the "Closing") shall take place in the offices of the Title Company (as defined below) at 10:00 a.m. on the second business day after the respective conditions to Closing of the parties listed in Sections 4 and 5 below have either been met or waived and the financing contingency described in Section 14 has been satisfied, or on such other date or at such other time or place or manner (e.g. by correspondence) as is mutually agreed upon by the parties (the "Closing Date"). ReAI. FSTATE PURCHASE AND SITE WORK AGREEMENT PAC;L 2 4. Title and Survey Matters. In addition to any other condition or contingency contained in this Agreement, the obligations of the Company and Public Entities, respectively, under this Agreement are subject to the satisfaction of the following conditions: (a) Evidence of Title. Within twenty (20) days after the Effective Date: (i) Company, at its sole cost and expense, shall cause to be furnished a copy of a commitment for an ALTA Owner's Title Insurance Policy from Meridian Title Corporation (the "Title Company"} in an insured amount determined by Commission (but not in excess of $1,625,000) regarding the Prairie Avenue Site (the "Prairie Title Commitment"). Prior to Closing, the Prairie Title Commitment shall show in Commission, good, merchantable and indefeasible title to the Prairie Avenue Site, in fee simple, free and clear of all liens and encumbrances other than the following exceptions: (a) the standard preprinted exceptions, (b) zoning and building setback laws, ordinances and regulations; (c) legal streets and highways; (d) covenants, restrictions, and easements of record which in Commission's discretion do not interfere with Commission's proposed use of the Prairie Avenue Site; and (e) the lien of real estate taxes which are not then due and payable (collectively, the "Prairie Permitted Exceptions"). The Prairie Title Commitment shall set forth the state of title to the Prairie Avenue Site, together with all exceptions or conditions to such title which would appear in an Owner's Title lnsurance Policy. After Closing, a Title Insurance Policy in conformance with the Prairie Title Commitment indicating the release of all mortgage and/or judgmenni liens, if any, shall be provided to Commission. (ii) The Commission, at its sole cost and expense, shall cause to be furnished to Company, a copy of a commitment for an ALTA Owner's Title Insurance Policy from Meridian Title Corporation (the "Title Company") in an insured amount determined by Company (but not in excess of $129,560) regarding the Oliver Park Site (the "Oliver Title Commitment"). Prior to Closing, the Oliver Title Commitment shall show in Company, good, merchantable and indefeasible title to the Oliver Park Site, in fee simple, free and clear of all liens and encumbrances other than the following exceptions: (a) the standard preprinted exceptions; (b) zoning and building setback laws, ordinances and regulations; (c) legal streets and highways; and (d) covenants, restrictions, and easements of- record which in Company's discretion do not interfere with Company's proposed use of the Oliver Park Site (collectively, the "Oliver Permitted Exceptions"). The Oliver Title Commitment shall sei forth the state of title to the Oliver Park Site, together with all exceptions or conditions to such title which would appear in an Owner's Title Insurance Policy. After Closing, a Title hnsurance Policy in conformance with the Oliver Title Commitment indicating the release of all mortgage and/or judgment liens, if any, shall be provided to Company. (b) Surve Within twenty (20) days after the Effective Date, the Commission, at its sole cost and expense, shall cause to be furnished to Company a current survey of the Oliver Park Site prepared by a licensed professional surveyor. The survey shall be to ALTA standards, set forth the boundaries and dimensions of the Oliver Park Site, showing all encroachments, easements and similar information, and shall provide a suitable legal REAL ES"rATE PURCHASE AND SITE WORK AGREEMENT PnGki 3 description of the Oliver Park Site, which description shall be used to amend Exhibit C attached hereto. (c} Cure of Certain Defects. If either (i) Commission, within ten (lU) business days after its receipt of the Prairie Title Commitment, or (ii) Company, within ten (]0) business days after its receipt of the Oliver Title Commitment or Oliver Survey, as the case may, provides written notice to the other party of any objection to the Title Commitment or Survey, as the case may be (a "Title Objection"}, the other party shall have twenty (20) days after receipt of the Objection to notify the objecting party that it will remove or cause the Title Company to insure against any such objectionable exceptions, in which event the parties agree to an extension of the Closing Date for such period as shall be required to effect such cure, but not beyond thirty (30) days. If a party which receives a Title Objection notifies the other that it cannot or will not cause an objectionable exception to be removed, the objecting party may proceed with the purchase/closing and take title to the Prairie Avenue Site or Oliver Park Site (as the case maybe} subject to such exceptions, or terminate this Agreement. In the event of a termination under this Section, the parties will have no further obligation hereunder. 5. Other Conditions to Closing. In addition to any other condition or contingency contained in this Agreement, the obligations of Company and/or Public Entities to close the transactions contemplated hereunder are subject to the satisfaction of the following conditions, which conditions if not met (or waived) before the time-frames set forth for such items below, will constitute grounds for Company or Public Entities (as the case may be) to terminate this Agreement upon written notice to other: (a) Conditions to Public Entities' Obli atg_ions. Public Entities' obligations to close hereunder are subject to the following conditions, if not waived by Public Entities: (i) Company shall not be in default under any of the teens and conditions contained in this Agreement, and all representations and warranties contained herein shall be true and correct as of the date of this Agreement, and as of the date of Closing; (ii) At or prior to Closing, Company and UPV shall have entered into a Lease Termination Agreement, to terminate any lease that may be in existence between them for the use of the Prairie Avenue Site effective as of Closing ("Lease Termination"); and (iii) At Closing, UPV shall have agreed to enter into the form of Lease Agreement attached hereto as Exhibit E for a rent of One Dollar ($1.00) pet• month for UPV's continued use and operations of the Prairie Avenue Site until UPV is able to relocate its business to the Oliver Park Site (the "UPV Lease Agreement"), which agreement will also include provision for the payment by Public Entities to UPV of a total of $205,000 upon UPV's vacation and relocation from the Prairie Avenue Site. (b) Conditions to Company's Obligations. Company's obligations to close hereunder are subject to the following conditions, if not waived by Company: REAL ESTATE PURCHASE AND SITE WORK AGREEMENT PAGE 4 (i) Public Entities shall not be in default under any of the terms and conditions contained in this Agreement, and all representations and wan~antics contained herein shall be true and correct as of the date of this Agreement, and as of the date of Closing; (ii) At Closing, Public Entities shall have agreed to enter into the form of UPV Lease Agreement attached hereto as Exhibit E with UPV; (iii) At or prior to Closing, the Oliver Park Site shall: (A) constitute a single, self-contained and buildable "lot" for purposes of applicable zoning, subdivision and building laws within the City together with appropriate zoning for the operation of UPV's business on the Oliver Park Site as currently conducted on the Prairie Avenue Site; (B) have an approved access/curb-cut to the cul-de-sac located immediately Southeast of the Oliver Park Site; and (C) have a special exception or other zoning variance granted by the Common Council of the City of South Bend, to permit asphalt paving and outdoor storage on nearly the entire Oliver Park Site as shown on Exhibit C. (iv) Intentionally left blank. 6. Representations and Warranties of Parties. (a) By Public Entities. Public Entities represent and warrant to Company as the following matters regarding Public Entities and the Oliver Park Site: (i) Public Entities have full power and authority to enter into and carry out the teens and provisions of this Agreement and the transactions contemplated hereby. Each of Public Entities' execution, delivery and performance of this Agreement and all other agreements or instruments contemplated hereby, including the assignment, transfer, conveyance and delivery of the Oliver Park Site and its purchase of the Prairie Avenue Site, will be the legal, valid and binding obligations of Public Entities enforceable in accordance with their terms. (ii) Except for a project currently being undertaken pursuant to the Indiana Voluntary Retnediation Program, Public Entities have not received notice of any action, temporary restraining order, injunction, suit, proceeding, inquiry or investigation at law or in equity, or before or by a judicial or administrative court or agency, relating to the Oliver Park Site, including but not limited to the lJnited States Environmental Protection Agency, relating to hazardous substances or hazardous wastes having been placed, held, located, released, disposed, stored or dumped on or at the Oliver Park Site. RIAI_ ESTATE PURCHASE AND SITE WORK AGREEMENT PAGI 5 (iii) Except for this Agreement, Public Entities are not a party to any agreement to convey the Oliver Park Site, nor has Company sold, granted or otherwise agreed to sell or grant any party an existing option, right or commitment related to the sale of the Oliver Park Site. (iv) At Closing, Company and Public Entities shall enter into a form of Access and License Agreement in the form attached as Exhibit G for Public Entities' continued access to the Oliver Park Site to perform groundwater monitoring activities. (b) By Company. Company represents and warrants to Public Entities the following matters regarding Company and the Prairie Avenue Site: (i) Company has full power and authority to enter into and carry out the terms and provisions of this Agreement and the transactions contemplated hereby. Each of Company's execution, delivery and performance of this Agreement and all other agreements or instruments contemplated hereby, including the assignment, transfer, conveyance and delivery of the Prairie Avenue Site and its sale of the Prairie Avenue Site, will be the legal, valid and binding obligations of Company enforceable in accordance with their terms. {ii) Company has not received notice of any action, temporary restraining order, injunction, suit, proceeding, inquiry or investigation at law or in equity, or before or by a judicial or administrative court or agency, relating to the Prairie Avenue Site, including but not limited to the United States Environmental Protection Agency, relating to hazardous substances or hazardous wastes having been placed, held, located, released, disposed, stored or dumped on or at the Prairie Avenue Site. (iii) Except for this Agreement, Company is not a party to any agreement to convey the Prairie Avenue Site, nor has Company sold, granted or otherwise agreed to sell or grant any party an existing option, right or commitment related to the sale of the Prairie Avenue Site. (iv) Except as set forth in Schedule 6(b)(iv), Company has no knowledge of any environmental condition or contamination that would require the Company to notify local, state or federal agencies in connection therewith. 7. Covenants. (A) Prairie Avenue Site. With regard to any contamination which may exist at the Prairie Avenue Site as a result of a release of a hazardous substance or petroleum occurring prior to the date of closing, the Public Entities agree that, except as required by local, state or federal law, they will not report any existing contamination or seek to have the U.S. Environmental Protection Agency ("EPA"), or the Indiana Department of Environmental Management ("IDEM") inspect the Prairie Avenue Site; provided, however, that nothing herein shall prohibit the Public Entities from applying for or receiving any local, state or federal REAL ESTATE PURCHASE AND SITE WORK AGREEMENT PAGE 6 loans or grants, including without limitation, loans or grants from EPA or IDEM, for use at the Prairie Avenue Site. The Public Entities further release Company and UPV from any liability to the Public Entities with regard to the presence of any contamination at the Prairie Avenue Site as of the date of closing, and agrees that the Public Entities will not initiate, prosecute, or assert any claim or suit against Company or UPV for any such contamination, except as may be necessary to assert, and solely for the purpose of asserting, a claim against Company's or UPV's insurance policies. In any such case, the Public Entities shall not seek to recover from Company or UPV any portion of any judgment against Company or UPV, or its carriers, and the Public Entities hereby explicitly waive any right to do so. (B) Oliver Park Site, South Bend has informed the Company that there exists certain soil and groundwater contamination at the Oliver Park site to be purchased by Company. The Public Entities hereby agree to indemnify, defend and hold harmless Company fi-om and against any and all claims, suits, damages, costs, expenses, fees, and liability of- any kind whatsoever relating to or arising from the presence of contamination on the Oliver Park Site existing as of the date of closing. "fhe parties intend that the Public Entities' agreement to indemnify, defend and hold harmless shall be applicable to the Company's successors and assigns, shall run with the land and shall be evidenced in a separate document to be recorded with the deed in the form of Exhibit P attached hereto. Post-Closing Covenants. (A) As additional consideration for the transactions contemplated herein, Company covenants and agrees that it will not (and will cause its transferee of the Oliver Park Site, if any, to not) seek or otherwise apply for Real Property Tax Abatement on the initial construction of improvements to the Oliver Park Site, including Company's (or its designee's) anticipated construction of an approximately 36,000 square foot industrial and office building for UPV's operations. (B) At no cost to the Company, at such time as Company notifies Public Entities of the Company's need, Public Entities will provide so much of~ crushed stone as needed by the Company to be delivered to the Oliver Park Site as a base for the area to he asphalted. It is the parties' intention that initially the pile of crushed stone located al the stamping plant at Cotter be used to satisfy this need. The Public Entities will supply so much of that existing pile as is necessary. If that pile is not sufficient and the Company needs additional crushed stone for the base for the asphalting, the Company will initially he responsible frn- the securing, purchasing and trucking of such additional crushed stone to the Oliver Park Site. Prior to the Company purchasing and delivering such additional crushed stone to the Site, the Company and Public F,ntities REAL. Es"rA"i'E PURCHASE AND SITE WORK AGREL:MEN"1' PAGE 7 will agree on the additional amount and price for the additional crushed stone. The Public Entities will reimburse the Company for this expense after the additional crushed stone is delivered to the Site. (C) At no cost to the Company, the Public Entity will snake available to the Company a parcel or parcels of real estate adjacent to the west side of the Oliver Park Site to allow the Company to secure sufficient clean sand fill as required to level the Oliver Park Site. "the Public Entity at its sole discretion will choose the adjacent lot or lots to be used. The Company will excavate the sand from the adjacent lot(s) and transport it to the Oliver Park Site. if the Public Entity determines that some or all of the required clean sand fill will come from locations which are not adjacent to the Oliver Park Site, the Public Entity will transport the sand from the non-adjacent lot(s) to the Oliver Park Site. (D) The Company shall have the right to place the top soil and/or other unusable material including, but not limited to, rocks, bricks, cement blocks and other scrap construction materials which is scraped ofi' the Oliver Park Site during the construction process on one of the adjacent lots owned by the City, the specific lot to be designated by the City. 9. Taxes. (a) Prairie Avenue Site. Real property taxes related to the Prairie Avenue Sitc for the 2009-pay-2010 tax year shall be prorated as of the Closing date based upon the latest official tax rates and credits and known assessed value of the Prairie Avenue Site. The Company's portion of such proration, as well as any and all unpaid taxes and assessments related to prior years, shall be paid prior to or credited to Public Entities (against the Cash Payment) at Closing. (b) Oliver Park Site. Real property taxes, if any, related to the Oliver Park Site for the 2009-pay-2010 tax year shall be prorated as of the Closing date based upon the latest official tax rates and credits and known assessed value of the Oliver Park Site. The Public Entities' portion of such proration, as well as any and all unpaid taxes and assessments related to prior years on the Oliver Park Site, shall be paid prior to or at Closing by Public Entities. 10. Closing Deliveries. (a) By Company. At or before Closing and as a condition to Public Entities' obligation to close hereunder, Company shall at its expense deliver (or cause to he delivered) to Public Entities each of the following items: (a} a Special Wan•anty Deed in the form attached hereto as Exhibit B (herein referred to as the "Deed"); (b) the Lease Termination, (c) the UPV Lease, (d) the License Agreement, (e) an affidavit regarding mechanic's and materialman's liens and other matters, including releases of mortgages and security interests as the Title Company may reasonably require in connection wit17 the issuance of an Owner's Policy of Title Insurance based on the Prairie "Title Commitment, and (f) a closing statement. KF.AL F,STATE PURCHASE AND SITE WORK AGREEMENT 1'nGG 8 (b) By Public Entities. At Closing and as a condition to Company's obligation to close hereunder, Public Entities shall deliver (or cause to be delivered) to Company the following items: (a) the Cash Payment due at Closing; (b) a Special Warranty Deed for the Oliver Park Site, (c) the UPV Lease, (d) the License Agreement, (e) an affidavit regarding mechanic's and materialman's liens and other matters, including releases of mortgages and security interests as the Title Company may reasonably require in connection with the issuance of an Owner's Policy of Title Insurance based on the Oliver Park Commitment, and (f) a closing statement. 11. Fees & Expenses. At Closing, the parties agree to share, equally, standard closing costs charged by the Title Company to close this transaction. Company agrees to pay for all costs of~ releasing and recording any releases related to the Prairie Avenue Site. Similarly, Public Entities agree to pay for all costs of releasing and recording any releases related to the Oliver Park Site. 12. Remedies. In the event of breach of this Agreement by either party, the other party shall have the right for specific performance and such additional remedies as otherwise are allowed by law or equity. The non-breaching party shall, in addition to the above remedies, be entitled to recover from the breaching party its attorney fees, expenses and costs arising from such breach and incurred in enforcing this Agreement. 13. Miscellaneous. (a) Termination. Notwithstanding anything to the contrary contained herein, either party may terminate this Agreement and have no further obligation hereunder in the event the Closing does not occur on or before July 1, 2009, unless such failure to close is due to a breach or fault of such party. (b) Possession. Company shall be entitled to full, complete and uninterrupted possession of the Oliver Park Site at Closing. Commission shall be entitled to possession of the Prairie Avenue Site at Closing, subject however, to the rights of UPV under the UPV Lease. (c) Brokers. Each party represents to the other that they have not engaged or employed any real estate agent or broker who is entitled to any commission or payment as a result of the sale of the Real Estate. (d) Expenses, Except as otherwise provided in this Agreement, each party to this Agreement shall bear their own expenses; provided however, the prevailing party in any suit brought to enforce the terms hereof shall be entitled to recover its costs and expenses, including reasonable attorneys' fees, related to such suit. (e) Notices. Any notice required or pern~itted to be delivered hereunder shall, except as otherwise expressly provided herein, be deemed to have been given upon the earlier to occur of (i) actual receipt by the addressee thereof; or (ii) three (3) days altei- deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to Company or Public Entities, as the case may be, at their address shown in the introductory paragraph to this Agreement. REAL ESTA"rE PURCHASE AND SITE WORK AGREEMENT YncE 9 (f) Parties Bound. This Agreement shall be binding upon, inure to the benefit of and be enforceable by and against Company and Public Entities, and their respective successors and assigns. (g) Counter Parts. This Agreement may be executed in counterparts, each of which shall constitute an original and all which taken together shall constitute a single agreement. The signature page to this Agreement and all other documents required to be executed at Closing may be delivered by facsimile and the signatures thereon shall he deemed effective upon receipt by the intended receiving party. (h) Governin Law. The laws of the State of Indiana shall govern the validity, construction, enforcement and interpretation of this Agreement. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any of the parties in the United States District Court for the Northern District of Indiana or the state courts in St. Joseph County, Indiana, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. (i) Entirety and Amendments. Time is of the essence with respect to all obligations under this Agreement. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements relating to the Assets, and Inay be amended or supplemented only by an instrument in writing executed by both parties hereto. (j) Construction of Improvements. The Company does hereby agree that the improvements to be constructed on the Oliver Park site shall be substantially of the sarnc size, scope and nature as has been detailed in the renderings of the proposed structure and improvements provided by the Company including, but not limited to, building elevations, fencing, landscaping and signage. The construction of the improvements on the Oliver Park site shall begin no later than August 1, 2009 and shall qualify for the award oi' a Certificate of Completion by the Commission, within twelve {12) months after commencement of the construction. Attached hereto and made a part hereof is an Exhibit detailing the description of the proposed improvements by the Company. (k) Compliance with Zoning Requirements. The Company does hereby agree that any and all improvements and the usage by the Company at the Oliver Park site shall be in compliance with all rules, regulations and zoning ordinances of the state and City oi~ South Bend. (1) Limitation on Transfer. Except for any transfer to Don Nuner, to the shareholders of Underground Pipe & Valve, lnc. or to UPV Land, LLC, the Company represents and agrees that it has not made or will not make, prior to the award of the Certificate of Completion by the Commission, any sale, assignment, transfer, conveyance or lease without the written consent of the Commission. (m) Survival. The provisions of paragraphs 6, 7, 8 and 13 shall survive the closing of this transaction. REAL ESTATE PURCIiASE AND SITE WORK AGREEMENT PAGE 10 14. Financing Contingency. The obligation of the Company to carry out its obligations under this Agreement is continent upon the Company receiving financing in a quantity and upon such terms as the Company deems adequate to construct a new building on the Oliver Park Site. If this contingency has not been satisfied by the 1st day of July, 2009, either party shall have the right to terminate this Agreement. The Commission is hereby allowed to cure any default by the Company or its mortgagee in regard to the mortgage encumbering the Oliver Park site. [SIGNATURE PAGE FOLLOWS] REAL ESTATE PURCHASE AND SITE WORK AGREEMEN"I' PAGi~: 11 IN WITNESS WHEREOF, the parties have executed this Agreement on the date or dates indicated below, effective as of the Effective Date. "PUBLIC ENTITIES" CITY OF SOUTH BEND, INDIANA Dated: BY~ Its: SOUTH BEND REDEVELOPMENT COMMISSION Dated: BY: Its: "COMPANY" THE 1100 CORPORATION Dated: BY~ Donald E. Nuner, President REAL F.,STATE PURCHASE AND SITE WORK AGREEMEN"I PAGI 12 EXHIBIT B FORM OF SPECIAL WARRANTY DEED_ FROM 1100 CORPORATION RECORDING REQUESTED BY AND I Parcel Key No.: 18-8021-08490? WI-IEN RECORDED RETURN TO: SVACG ~IBOVG'1'IiIS LI'~I: RI[S[RVGU PUK RHC'gRULR'S l'tiG SPECIAL WARRANTY DEED TI-IE 1100 CORPORATION, a corporation organized and existing under the laws of the State of Indiana ("Grantor") hereby CONVEYS, with limited covenants and warranties, to the CITY OF SOUTH BEND on behalf of the DEPARTMENT OF REDEVELOPMENT ("Grantee"), for the sum of Ten Dollars ($10.00) and other good and valuable consideration, that certain real property located in the City of South Bend, St. Joseph County, Indiana, which is more particularly described as follows (the "Property"}: [INSERT LEGAL DESCRIPTION] "I'he warranty of title by Grantor is limited to a warranty against the acts of Grantor during Grantor's period of ownership of the Property. The Property is conveyed in its "As [s, Where Is" condition. Except for the limited warranty of title made herein, Grantor makes no representations or warranties with respect to the Property, including without limitation, its habitability, merchantability, suitability or fitness for a particular use or purpose. The Property is conveyed subject to real estate taxes; to legal highways and rights-of- way; to building and zoning restrictions, easements, covenants, and other restrictions and matters of public record; and to all exceptions listed in that certain title insurance commitment issued by Meridian Title Corporation as Commitment No. _ dated ___, 2009, as revised. The undersigned person executing this Special Warranty Deed on behalf of Grantor represents and certifies that he is a duly elected officer of the duly authorized agent of~ Grantor and has been fully empowered, to execute and deliver this deed; that Grantor has full corporate capacity to convey the Property and that all necessary corporation action for the making of such conveyance has been taken and done. IN WITNESS WHEREOF, the Grantor has caused this Special Warranty Deed to be executed this day of , 2009. THE 1100 CORPORATION By: Donald E. Nuner, President STATF, OF INDIANA ) ss: COUNTY OF ST. JOSEPH ) Before me the undersigned, a Notary Public in and for said County and State, personally appeared Donald E. Nuner, the President of The 1100 Corporation, who acknowledged the execution of the foregoing Special Warranty Deed for and on behalf of said Grantor. Witness my hand and Notary Seal this day of , 2009. Notary Public (.Notarial Sealy Printed Name: Kesident of St Joseph County, IN My commission expires: This instrument prepared by Richard L. Mintz, Barnes & 1~hornburg LI_P, 600 l st Source Bank Center, 100 North Michigan Street, South Bend, Indiana 46601. I affirnl, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document. unless required by law. t§ R' _.11~' ~. t ~ 5Lz 7 - ~. '4 /~Q Q ~K Z ~~ 2Z Z '`~ U a i ~3 ~ O ~r~ "" o zz ow r m ~ w ~~ ~~ V V ~~/~V7 C>t Y~-t~ K W ~ OTC ~~i w 3 ~~ ~ o ~ ~' w S f- LL C F.g~tl~-BIT C c i~ i~ i~ 8~ t ~`'~ y+~~k; =r~t4t i `~k~~~ t ~~~ •z ~~YF3 ~E ~ F;~ ~_~ e e6oge S '~a~aF i ~~" .~ s a'Y s3e F'X'X1TT2iT it FORM OF SPECIAL WARRANTY DEED FROM SOUTH BEND REDEVELOPMENT COMMISSION RECORDING REQUESTED BY AND Parcel Key No.: 18-8021-084902 WHEN RECORDED RETURN TO: SPACE At30V[ "PHIS LNE KI?SiIKVIiU POK KHCOKUIik'ti ViG SPECIAL WARRANTY DEED The CITY OF SOUTH BEND on behalf of the DEPARTMENT OF REDEVELOPMENT ("Grantor") hereby CONVEYS, with limited covenants and warranties, to THE 1100 CORPORATION ("Grantee"), for the suin of Ten Dollars ($10.00) and other good and valuable consideration, that certain real property located in the City of South Bend, St. Joseph County, Indiana, which is more particularly described as follows (the "Property"): [INSERT LEGAL DESCRIPTION] The warranty of title by Grantor is limited to a warranty against the acts of Grantor during Grantor's period of ownership of the Property. The Property is conveyed in its "As ls, Where Is" condition. Except for the limited warranty of title made herein, Grantor makes no representations or warranties with respect to the Property, including without limitation, its habitability, merchantability, suitability or fitness for a particular use or purpose. The Property is conveyed subject to real estate taxes; to legal highways and rights-oi~- way; to building and coning restrictions, easements, covenants, and other restrictions and matters of public record; and to all exceptions listed in that certain title insurance commitment issued by Meridian Title Corporation as Commitment No. dated _ , 2009, as revised. The undersigned person executing this Special Warranty Deed on behalf of Grantor represents and certifies that he/she is a duly authorized agent of Grantor and has been fully empowered, to execute and deliver this deed; that Grantor has full capacity to convey the Property and that all necessary action for the making of such conveyance has been taken and done. IN WITNESS WHEREOF, the Grantor has caused this Special Warranty Deed to be executed this day of , 2009. CITY OF SOUTH BEND on behalf of the DEPARTMENT OF REDEVELOPMENT STATE OF INDIANA ) ss: COUNTY OF ST. JOSEPH ) By: Before me the undersigned, a Notary Public in and for said County and State, personally appeared , a duly authorized agent of City of South Bend on behalf of the Department of Redevelopment, who acknowledged the execution of the foregoing Special Warranty Deed for and on behalf of said Grantor. Witness my hand and Notary Seal this day of , 2009. [Notarial Seal] My commission expires: Notary Public Printed Name: Resident of St Joseph County, IN This instrument prepared by Richard L. Mintz, Barnes & Thornburg LI.P, 600 1st Source Bank Center, 100 North Michigan Street, South Bend, Indiana 46601. I affirm, under the penalties for perjury, that 1 have taken reasonable care to redact each Social Security number in this document, unless required by law. PROPOSED LOT 7 OLIVER PLOW WORKS MAJOR, SECTION TWO (UNDERGROUND PIPE AND VALUE) LEGAL DESCRIPTION THAT PART OF THE SOUTHWEST QUARTER OF SECTION 11, TOWNSHIP 37 NORTH, RANGE 2 EAST, PORTAGE TOWNSHIP, CITY OF SOUTH BEND, ST. JOSEPH COUNTY, INDIANA WHICH IS DESCRIBED AS: COMMENCING AT THE NORTHWESTERLY CORNER OF LOT # 3 OF THE PLAT OF "OLPVER PLOW WORKS FIItST MAJOR -SECTION ONE" AS RECORDED BY DOCUMENT N0.0403909 IN THE RECORDS OF THE ST. JOSEPH COUNTY, INDIANA RECORDER'S OFFICE, THENCE AROUND A 60.00 FT. RADIUS CURVE TO THE RIGHT AN ARC DISTANCE OF 51.57 FT TO THE END OF A CHORD WHICH BEARS N. 24°-48'-22" W. AND HAVING A DISTANCE OF 50.00 FT. TO THE TRUE POINT OF BEGINNING; THENCE S. 89°-49'-06" W., 370.72 FT.; THENCE N. 00°-03'-45" E., 711.29 FT.; TO A POINT ON THE SOUTH LINE OF THE GRAND TRUNK WESTERN RAILROAD AND THE CONRAIL RAILROAD (FORMERLY PENN CENTRAL RAILROAD); THENCE ALONG SAID SOUTH LINE FOR THE NEXT NINE (9) COURSES, S. 73 -11'-44" E., 88.49 FT. AND S. 73°-06'- 44" E., 50.00 FT. AND S. 72°-59-44" E., 50.00 FT. AND S. 73°-04'-44" E., 50.00 FT. AND S. 73°-02'- 44" E., 50.00 FT. AND S. 73°-14'-44" E., 50.00 F'I'. AND S. 72°-57'-44" E., 50.00 FT. AND S. 69°-16'- 44" E., 49.52 FT AND S. 69°-43'-44" E, 13.33 FT.; THENCE S. 00°-03'-37" W., 514.85 FT. TO A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF OLIVER PLOW COURT; THENCE ALONG SAID NORTHERLY LINE AROUND A 60.00 RADIUS CURVE TO THE LEFT AN ARC DISTANCE OF 94.50 FT. TO THE END OF A CHORD WHICH BEARS S. 44°-56'-21" W. AND HAVING A DISTANCE OF 85.03 FT. TO THE POINT OF BEGINNING. CONTAINING 6.31 ACRES MORE OR LESS ALSO TO BE KNOWN AS PROPOSED LOT 7 OLIVER PLOW WORKS MAJOR SUBDIVISION, SECTION TWO. SUBJECT TO ALL LEGAL HIGHWAYS, EASEMENTS AND RESTRICTIONS OF RECORD. EXHIBIT E UPV LEASE AGREEMENT [PLEASE SEE ATTACI~Ell~ EXHIBIT F INDEMNITY AGREEMENT This Indemnity Agreement (the "Al~reement") is made and entered into this _ day of _ , 2009, by and among the CITY oI~ SOUTI-~ BIND, INDIANA (the "City"), the SOUI l1 BEND REDEVELOPMENT COMMISSION (the "Commission", and together with the City, the "Public Entities"), THE 1100 CORPORATION, an Indiana corporation (the "Company"), and UPV LAND, L.LC, an Indiana limited liability company ("UPV Land"). BACKGROUND A. The Public Entities and the Company are parties to that certain Real Estate Purchase and Site Work Agreement dated _ , 2009 (the "Purchase Agreement") pursuant to which the Public Entities are acquiring certain real estate and improvements located thereon generally known as 1100 Prairie Avenue, South Bend, Indiana. B. As part of the purchase contemplated by the Purchase Agreement, the Commission agreed to sell certain property located in the Oliver Industrial Park and legally described on Exhibit A attached hereto (the "Oliver Park Site") to the Company. C. The City informed the Company that certain soil and groundwater contamination exists at the Oliver Park Site (the "Contamination"). D. The Public Entities have agreed to indemnify, defend and hold harmless Company fi-om and against any and all claims, suits, damages, costs, expenses, fees, and liability of any kind whatsoever relating to or arising from the Contamination existing as at, on or under the Oliver Park Site of the closing date of the transfer of the Oliver Park Site to the Company. E. It is anticipated that ownership of the Oliver Park Site will be transferred to UPV Land. F. The parties desire to enter into this Agreement to set forth their understandings related to liability for any and all claims relating to the Contamination. NOW THEREFORE, in consideration of the mutual promises and covenants contained in the Purchase Agreement and in this Agreement, the parties agree as follows: The above recitals shall become a part of this Agreement as if set forth verbatim herein. 2. The Public Entities, jointly and severally, agree to indemnify, defend and hold harmless the Company and UPV Land, their successors and assigns (and their officers, directors, employees, affiliates and insurers) from any and all claims, suits, costs, losses, damages, fees and expenses (including reasonable attorneys' fees} (collectively, "Damages") resulting from or relating to the presence of Contamination existing at the Oliver Park Site as of the date hereof. by: 3. This Agreement inures to the benefit of and binds the undersigned and their respective successors in interest and assigns. Nothing contained in this Agreement shall prcvcnt a third-party from relying on the provisions hereof: IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date or dates below, effective as of the date first above written. UPV LAND, LLC Donald E. Nuner, President dated: STATE OF INDIANA ) ss: COtJNTY OF ST. JOSEPH ) THE 1100 CORPORATION by: Donald E. Nuner, President dated: Before me the undersigned, a Notary Public in and for said County and State, personally appeared Donald E. Nuner, the President of the UPV Land, LLC and The 1100 Corporation, who acknowledged the execution of the foregoing Indemnity Agreement. Witness my hand and Notary Seal this Notary Public [Notarial Seal] My commission expires: day of , 2009. Printed Name: Resident of County, CITY OF SOUTH BEND, INDIANA by: printed: _ its; dated: STATE OF INDIANA ) ss: COUNTY OF ST. JOSEPH ) Before me the undersigned, a Notary Public in and for said County and State, personally appeared __ ,the of the City of South Bend, Indiana, who acknowledged the execution of the foregoing Indemnity Agreement. Witness my hand and Notary Seal this day of , 2009. Notary Public [Notarial Seal] Printed Name: Resident of County, ____ __ My commission expires: i SOUTH BEND REDEVELOPMENT COMMISSION by: _ printed: its: dated: STATE OF INDIANA ) ss: COUNTY OF ST. JOSEPH ) Before me the undersigned, a Notary Public in and for said County and State, personally appeared _ ,the of the South Bend Redevelopment Commission, who acknowledged the execution of the foregoing Indemnity Agreement. Witness my hand and Notary Seal this Notary Public [Notarial Seal] day of , 2009. Printed Name: Resident of County, My commission expires: This instrument prepared by Timothy A. Emerick, Barnes & Thornburg LLP, b00 1st Source Bcrnk Center, IUII North Michigan Street, South Bend, Indiana 46601. 1 affirm, under the penalties for perjury, that 1 hcn~e taken reasonable care to redact each Social Security number in this document, unless required by lcnv. Timothy A. Emerick ~IBIT A PROJECT: Sampie.Ewing Development Area StudebakerlOliver Project PROPERTY ADDRESS: 1100 Prairie Avenue TAX KEY NUMBER: ~ 18-8021-0$902 SELLER: 1100 Carporatian LEGAL DESCRlPT10N A part of the Northeast Quarter of Section 14, Township 37 North, Range 2 East, more particu(arty described as follows: Commencing at the rntersecEion of the North line of the Michigan Central Railrpad Right-oF Way and the East Ilne of Kendatl Street, said point being the Southwest comer of`'1'ract No. 4 of the Studebaker Corporakion Replat, as recorded in Ptat Book 11, page 184 in the Clffce of the Recorder of St. Joseph County, Indiana; thence North along the East line of Kendatl Street a distance of 6'1.23 feet to the point of beginning; thence North 54°21'30' East a distance of 754.07 feet to a point; thence North 00°00'00" East a distance of 1298.97 feet to a point thence South B9°55'34" East a distance oF227.00 Feet tp a point; thence North Oa°04'26" East a distance of 174.05 Feet to e point; thence North 86°32'07" West S distance of 552.38 feet to a paint thence South 72°39'53° West a distance of 96.00 feeh thence North 64°4Ttt3" West a distance of 76.63 feat to a paint on the East line of Prairie Avenue, sand f=ast line being also the W esterly line of said Tract No. 4 of the Studebaker Corporation Replat, thence South 28°14'42" West along Bard East tine of Prairie Avenue a distance of 1099.71 feet to the Inters®ction of said East line of Prairie Avenue and the North line of Cotter Street; thence South 89°46'S5' East along said North line of Cotter Street a distance of 85T.96 feel to the intersection of said North line ^f Cotter Street and the East tine of Kendall Street; Ihence South 00°05'31" West along said East Ilne of Kendall Street a distance aF Sti&.19 feet fo the point of beginning. EXHIBIT B FORM OF SPECIAL WARRANTY DEED FROM 1100 CORPORATION RECORDING REQUESTED BY AND Parcel Key No.: 1 8-802 1-0 84902 WHEN RECORDED RETURN TO: SPACE ABOVE THIS LINE RESERVED FOR RL-CORDER'S USE SPECIAL WARRANTY DEED THE 1100 CORPORATION, a corporation organized and existing under the laws of the State of Indiana ("Grantor") hereby CONVEYS, with limited covenants and warranties, to the CITY OF SOUTH BEND on behalf of the DEPARTMENT OF REDEVELOPMENT ("Grantee"), for the sum of Ten Dollars ($10.00) and other good and valuable consideration, that certain real property located in the City of South Bend, St. Joseph County, Indiana, which is more particularly described as follows (the "Property"): [INSERT LEGAL DESCRIPTION] The warranty of title by Grantor is limited to a warranty against the acts of Grantor during Grantor's period of ownership of the Property. The Property is conveyed in its "As Is, Where Is" condition. Except for the limited warranty of title made herein, Grantor makes no representations or warranties with respect to the Property, including without limitation, its habitability, merchantability, suitability or fitness for a particular use or purpose. The Property is conveyed subject to real estate taxes; to legal highways and rights-of- way; to building and zoning restrictions, easements, covenants, and other restrictions and matters of public record; and to all exceptions listed in that certain title insurance cornrnitment issued by Meridian Title Corporation as Commitment No. dated , 2009, as revised. The undersigned person executing this Special Warranty Deed on behalf of Grantor represents and certifies that he is a duly elected officer of the duly authorized agent of Grantor and has been fully empowered, to execute and deliver this deed; that Grantor has full corporate capacity to convey the Property and that all necessary corporation action for the making of such conveyance has been taken and done. IN WITNESS WHEREOF, the Grantor has caused this Special WaiTanty Deed to be executed this day of , 2009. By: STATE OF INDIANA ) ss: COUNTY OF ST. JOSEPH ) THE 1100 CORPORATION Donald E. Nurser, President Before me the undersigned, a Notary Public in and for said County and State, personally appeared Donald E. Nurser, the President of The 1100 Corporation, who acknowledged the execution of the foregoing Special Wan-anty Deed for and on behalf of said Grantor. Witness my hand and Notary Seal this day of , 2009. Notary Public [Notarial Seal] Printed Natiie: Resident of St Joseph County, IN My commission expires: This instrument prepared by Richard L. Mintz, Barnes & Thornburg LLP, 600 1st Source Bank Center, 100 North Michigan Street, South Bend, Indiana 46601. 1 affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. EXHIBIT C GENERAL DIAGRAM OF OLNER PARK SITE [PLEASE SEE ATTACHED] EXHIBIT D FORM OF SPECIAL WARRANTY DEED FROM SOUTH BEND REDEVELOPMENT COMMISSION RECORDING REQUESTED 13Y AND ~ Parcel Key No.: 1 8-802 1-084902 WHLN RECORDED RETURN TO: SPACE AHOV[ THIS LWL KGSERVLD POR R[CORDGK'S USG SPECIAL WARRANTY DEED The CITY OF SOUTH BEND on behalf of the DEPARTMENT OF REDEVELOPMENT ("Grantor") hereby CONVEYS, with limited covenants and warranties, to THE 1100 CORPORATION ("Grantee"), for the sum of Ten Dollars ($10.00) and other good and valuable consideration, that certain real property located in the City of South Bend, St. Joseph County, Indiana, which is more particularly described as follows (the "Property"): [INSERT LEGAL DESCRIPTIO\'] The warranty of title by Grantor is limited to a wan-anty against the acts of Grantor during Grantor's period of ownership of the Property. The Property is conveyed in its "As ls, Where Is" condition. Except for the limited warranty of title made herein, Grantor makes no representations or warranties with respect to the Property, including without limitation, its habitability, merchantability, suitability or fitness for a particular use or purpose. The Property is conveyed subject to real estate taxes; to legal highways and rights-of= way; to building and zoning restrictions, easements, covenants, and other restrictions and matters of public record; and to all exceptions listed in that certain title insurance commitment issued by Meridian Title Corporation as Commitment No. dated , 2009, as revised. The undersigned person executing this Special Wan-anty Deed on behalf of Grantor represents and certifies that he/she is a duly authorized agent of Grantor and has been fiilly empowered, to execute and deliver this deed; that Grantor has full capacity to convey the Property and that all necessary action for the making of such conveyance has been taken and done. IN WITNESS WHEREOF, the Grantor has caused this Special Warranty Deed to be executed this day of , 2009. CITY Oh SOUTH BEND on behalf of the DEPARTMENT OF REDEVELOPMENT By: STATE OF INDIANA ) ss: COUNTY OF ST. JOSEPH ) Before me the undersigned, a Notary Public in and for said County and State, personally appeared , a duly authorized agent of City of South Bend on behali- of the Department of Redevelopment, who acknowledged the execution of the foregoing Special Warranty Deed for and on behalf of said Grantor. Witness my hand and Notary Seal this day of , 2009. [Notarial Seal] Notary Public Printed Name: Resident of St Joseph County, IN My commission expires: This instrument prepared by Richard L. Mintz, Barnes & Thornburg LLY, 600 1st Source Bank Center, 100 North Michigan Street, South Bend, Indiana 46601. I affirm, under the penalties for perjury, that I have taken reasonable care to redact each Social Security number in this document, unless required by law. EXHIBIT E COMMERCIAL LEASE This Lease is entered into between the SOUTH BEND REDEVELOPMENT COMMISSION ("Landlord") and TxE 1100 CORPORATION, an Indiana corporation ("Tenant"). Recitals: A. Tenant owns the land and all buildings and improvements thereon located at 1100 Prairie Avenue, South Bend, Indiana 46601 (the "Property") B. Tenant leases the Property to Underground Pipe & Valve Incorporated, an Indiana corporation ("UPV") C. Pursuant to the terms of that certain Real Estate Purchase and Site Work Agreement dated , 2009 by and among Landlord, Tenant, and the City of South Bend (the "Purchase Agreement"), Landlord agreed to purchase the Property from Tenant. D. The Purchase Agreement provides that Landlord shall lease the Property back to Tenant in accordance with the terms of this Lease until such time as UPV is able to relocate its business to a new building located on a site to be provided by Landlord in the Oliver- Industrial Park (the "Oliver Park Building"). NOW, THEREFORE, in consideration of the foregoing recitals, which are hereby incorporated by reference into this Lease, the parties agree as follows: 1. Agreement to Lease. Subject to all the provisions of this Lease, Landlord leases to "Tenant and Tenant leases from Landlord the Property. 2. Term. This Lease shall begin on the date of the closing of the Landlord's purchase of the Property ("Lease Commencement Date") and end on the date that is thirty days after the completion of construction of the Oliver Park Building ("Lease Termination Date") 3. Use. Tenant shall continue to lease the Property to UPV pursuant to the teens oI~ the lease between Tenant and UPV as such maybe amended from time to time. 4. Rent. As rent for use of the Property, Tenant agrees to pay Or7e Dollar ($ l .OU). The rent shall be due on the Lease Commencement Date. 5. Additional Expenses. a. Utilities. All utility bills, including water, sewerage, gas, electricity, telephone and similar services shall be paid by Tenant. Landlord shall not be liable to Tenant in damages or otherwise for any utilities or services, whether or not furnished by Landlord hereunder, which are interrupted or terminated for any reason, including repairs, installations, improvements, energy emergency or shortage. b. Taxes and Assessments. Landlord shall pay all real estate taxes ("Taxes"), assessments and any other governmental charges ("Assessments") on the Property as they come due during the term of the Lease. Tenant shall within ten (10) days after written demand reimburse Landlord for all Taxes paid with respect to the period of time this Lease remains in effect. Landlord agrees to furnish Tenant with copies of official statements from the County Treasurer or other taxing authority reflecting the Taxes due on the Property. c. Maintenance by Landlord and Tenant. Pursuant to the terms of the Purchase Agreement, the building located on the Property is to be purchased by Landlord and demolished following the Lease Termination Date. Therefore, except as specifically provided in this Lease, neither Landlord nor Tenant shall be obligated to make repairs, replacements, preventative maintenance, or improvements of any kind upon the Property, or to any equipment, merchandise, stock in trade, facilities or fixtures therein. 6. Acceptance of Property. Tenant acknowledges that no representations as to the condition of the Property have been made by Landlord. 7. Alterations. Landlord hereby consents to and gives Tenant the right to install or provide any alterations to the Property, which Tenant may find necessary or desirable foi• operation of its business. All changes to the Property, whether structural or nonstructural, shall be made at Tenant's own expense. Tenant shall not be required to restore the Property to its original condition following the Lease Termination Date. Tenant shall promptly pay for all materials and labor im~olved in making such changes or restoration and shall not permit any liens, claims or demands ("Claim") to exist against the Landlord or the Property. lf• a Claim is filed or made against the Landlord or the Property, Tenant shall defend the same at its own expense and indemnify and hold Landlord harmless from all liability and expenses arising by virtue of the Claim (unless the Claim arose because of the fault of the Landlord). 8. Return of Property. Upon the termination of the Lease, Tenant shall be able to remove any and all improvements, equipment, fixtures, or personal property from the Property as Tenant, in its sole discretion sees fit. Since Landlord will demolish the Property at the end of the Lease term, Tenant shall not be required to leave the Property in good condition and repair. 9. Termination Payment. As provided in the Purchase Agreement, upon delivery of possession of the Property to Landlord on the Lease Termination Date, Landlord shall pay to UPV in cash or other readily available funds, Two Hundred Five Thousand Dollars ($205,000). 10. Casualty Loss. If the Property is damaged or destroyed by fire or other casualty, the Tenant may, but shall not be required to, terminate the Lease. If Tenant elects to terminate the Lease, Landlord shall make the payment required under Section 10 as soon as practical, but in no event later than thirty (30) days following the date of the fire or other casualty. Landlord shall have no obligation to repair or rebuild the Property. 11. Landlord's Title. Landlord's title is and always shall be paramount to the title of~ 'Tenant, and nothing contained in this Lease authorizes Tenant to do any act which may encumber the title of Landlord. 12. Si ~s. The Tenant may install and maintain appropriate signs on the Property. "Tenant shall not be responsible for any damage to the Property caused by the erection, maintenance or removal of such signs. 13. Landlord's Right to Enter. Upon reasonable notice, Landlord shall have the right and ability to enter upon the Property and to perform any such tasks as are reasonably necessary in preparation for the demolition of the building located on the Property at any time, so long as Landlord's entry and performance of such tasks does not interfere with UPV's ability to conduct its business as presently conducted. 14. Liability and Indemnification. a. By Tenant. Landlord shall not be liable to Tenant for any damage or injury to Tenant or Tenant's property arising out of or in any way related to the condition of the Property. Tenant shall indemnify, defend and hold Landlord harmless against all liabilities, losses, claims, costs, expenses and judgments of any nature arising from or in connection with injuries to persons or damage to property arising from or connected with Tenant's use of the Property. b. By Landlord. Tenant shall not be liable to Landlord, or any of its employees or agents for any damage or injury to Landlord or Landlord's property arising out of Landlord's entry onto the Property. Landlord shall indemnify, defend and hold Tenant harmless against all liabilities, losses, claims, costs, expenses and judgments of any nature arising from or in connection with injuries to persons or damage to property arising from or connected with Landlord's use of the Property. 15. Holding Over. a. Without Consent. At the termination of this Lease, by lapse of tune or otherwise, Tenant will yield up immediate possession to Landlord. If Tenant fails to do so, Tenant will pay as liquidated damages for each day such possession is withheld Two I-Iundred Dollars ($200.00). However, this provision shall not be construed as a waiver by Landlord of~ any rights of re-entry provided in this Lease nor shall the receipt of rent (or any portion thereof) or any other act in apparent affirmation of tenancy operate as a waiver of Landlord's right to terminate this Lease and the term of any unexpired period hereby granted as remedy for Tenant's breach of any of the Lease covenants. 16. Miscellaneous. a. Quiet Enio~ment. So long as Tenant performs and observes all the provisions of this Lease, Landlord covenants and promises that Tenant shall have peaceful enjoyment of the Property. b. Notice. Notice from one party to another relating to this Lease shall be deemed effective if made in writing (including telecommunications) and delivered to the recipient's address, telex number or facsimile number set forth under its naive by any of the following means: (a) hand delivery, (b) registered or certified snail, postage prepaid, with return receipt requested (c) first class or express mail, postage prepaid, (d) Federal Express or like overnight courier service or (e) facsimile, telex or other wire transmission with request foi• assurance of receipt in a manner typical with respect to communications of that type. Notice made in accordance with this paragraph shall be deemed delivered on receipt if delivered by hand or wire transmission, on the third business day after mailing if mailed by fast class, registered or certified mail, or nn the next business day after mailing or deposit with an overnight courier service if delivered by express mail or overnight courier. The current addresses of the parties are as follows: Landlord Tenant South Bend Redevelopment Commission The 1100 Corporation 1200 County City Building 1100 Prairie Avenue South Bend, IN 46601 South Bend, IN 46601 c. Severability. If any provision of this Lease becomes invalid or unenforceable, the remainder of the Lease shall not be affected and the balance of the Lease provisions shall be valid and enforceable to the fullest extent permitted bylaw. d. Successors. The provisions of this Lease shall be binding upon the successors in interest of both Landlord and Tenant. e. Headings. The paragraph headings contained in this Lease are f~~r reference purposes only and shall not affect in any way the meaning or interpretation oi' this Lease. f. Counterparts. This Lease may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. g. Entire Agreement. This Lease is intended by the parties to and does constitute the entire agreement of the parties with respect to the rental of the Property. This Lease supersedes any and all prior understandings, written or oral, between the parties hereto with respect to the subject matter hereof. Landlord and Tenant now sign this Lease to be effective the day of ___> 2009. LANDLORD SOUTH BEND REDEVELOPMENT COMMISSION By: Printed: Its: SL3ll502 "rEMER1CK 385828v4 TENANT THE 1100 CORPORATION By: Donald E. Nuner, President EXHIBIT F FORM OF INDEMNITY AGREEMIJNT EXHIBIT G GROUNDWATER MONITORING LICENSE AGREEMENT The teens of this Exhibit I ("License for Access to Premises for Groundwater Monitoring" or "License") are incorporated into that certain Real Estate Purchase and Site Work Agreement (the "Purchase Agreement") entered into by and among the CITY OF SOUTH BEND, INllIANA with offices at 1400 County-City Building, South Bend, Indiana 46601 (the "City"), the SOUrI-~ I31:;;D REDEVELOPMENT COMMISSION with offices at 1200 County-City Building, South Bend Indiana 46601 (the "Commission," and together with the City, the "Public Entities") and THE 1100 CORPORATION, an Indiana corporation with offices at 61229 Oak Road, South Bend, Indiana 46614 (the "Company"). Terms used but not defined herein shall have the meaning given io them under the Purchase Agreement. The parties contemplated under the Purchase Agreement that Public Entities will need to gain access to the Oliver Park Site (after Closing) tv perform certain groundwater monitoring activities. Company has agreed to permit Public Entities (as a "Licensee") and IDEM to gain access to the Oliver Park Site solely in accordance and subject to the terms of this License for Access to Premises for Groundwater Monitoring. As a condition hereto, Public Entities hereby agrees at its sole expense to reconfigure the existing above groundwater monitoring wells to flush mounted wells. In addition, Public Entities shall provide the Company with forty-eight (48) hours notice of Public Entities, or its agents, oi- IDEM's intent to take groundwater samples with such sampling to be conducted only during normal business hours, except in the event of an emergency. Public Entities also agree to reimburse Company for any expense incurred by Company associated with moving of Company's materials to provide access to Public Entities or IDEM for purposes of conducting the groundwater monitoring activities contemplated hereunder. Attached hereto as Schedule 1 is a GPS drawing depicting the existing location of the six (6) groundwater monitoring wells. SCHEDULE I PROJECT SCHEDULE A. Execution of Agreement: As soon as possible. B. Closin ~ on Property: No later than sixty (6U) days after execution of Agreement. C. State of Construction: April I, 2009. D. Completion of Construction: Date unknown but will likely be October, 2009. E. Vacation of 1 l0U Prairie: Thirty (30) days after completion of construction. F. Completion of Project: December 31, 2009. St3DS02 IZJU 374407v 12