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HomeMy WebLinkAboutMasterBrand Cabinets, Inc-11/21/2011CHICAGO TITLE INSURANCE COMPANY ILLINOIS FORM B REAL ESTATE SALE CONTRACT 1. In consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, the City of Waterloo, Iowa, a municipal corporation ("Purchaser"), agrees to purchase at a price of Sixty Five Thousand and No/100 Dollars ($65,000.00) ("Purchase Price"), on the terms set forth herein, the following described real estate in Waterloo, Black Hawk County, Iowa, commonly known as: 1001 Linden Avenue, Waterloo, Iowa, containing approximately 0.32 acres of land, as legally described on Exhibit "A" attached hereto ("Real Estate"), together with the following improvements presently located thereon: an approximately 15,000 square feet two (2) story concrete block building ("Building") (the Real Estate and Building are collectively, "Property"). 2. In consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the mutual receipt and legal sufficiency of which are hereby acknowledged, MasterBrand Cabinets, Inc., a Delaware corporation, or the owner of record ("Seller"), agrees to sell the real estate and the property described above at the price and terms set forth herein, and to convey or cause to be conveyed to Purchaser or nominee title thereto by a recordable special warranty deed or the equivalent, with release of homestead rights, if any, and a proper quit -claim bill of sale, subject only to: (a) covenants, conditions, and restrictions of record; (b) private, public, and utility easements and roads and highways, if any; (c) all other matters of record; (d) the Permitted Exceptions (as defined in the attached Rider); and (e) acts done, or suffered by Purchaser, all in accordance with the Rider attached hereto. 3. At Closing, Purchaser shall deposit with the Title Insurer (defined hereafter) the Purchase Price, by certified or cashier's check or by federal wire transfer to be paid to Seller at Closing (defined hereafter). The parties hereto acknowledge and agree that the Purchase Price is net to Seller of all expenses, fees, and costs, and, therefore, Seller shall receive the exact amount of Sixty Five Thousand and No/100 Dollars ($65,000) from Purchaser at Closing. (a) The payment of $ (b) The payment of $ and the balance payable as follows: lot dimensions of x together with following property presently located thereon: as Schedule B, or, in the absence of this attachment, the forms prepared by and identified as Nos. ,** and by a security agreement (as Commercial Code in order to make the lien created thereunder effective), and an assignment of rents, said security (**If a Schedule B is not attached and the blanks are not filled in, the note shall be secured by a trust deed, and the note and trust deed shall be in the forms used by The Chicago Trust Company.) (c) The acceptance of the title to the real estate by Purchaser subject to a mortgage or trust deed of record securing a principal indebtedness (which the Purchaser [does] [does not] agree to assume) aggregating $ bearing interest at the rate of % a year, and the payment of a sum which represents the difference between 4. Purchaser, at its own expense, may procure a current plat of survey of the above real estate made, and so certified by the surveyor as having been made, as well as a title policy in favor of Purchaser in the amount of the Purchase Price. The cost of the survey, title policy, and any endorsements to the policy shall be at Purchaser's sole cost. See Rider 5. The consummation of the Closing shall occur on the Closing Date (as defined in the Rider). See Rider 6. Upon full consummation of the Closing, Seller agrees to pay a broker's commission to (collectively, `Broker"), in accordance with a separate agreement. No third party shall be deemed a beneficiary of this Contract. 7. The Earnest Money shall be held by Agent. Except in the event of a termination of this Contract by Purchaser as Earnest Money shall be non refundable to Purchaser. This Contract is subject to the Conditions and Stipulations set forth on the following pages, which Conditions and Stipulations are made a part of this contract, as well as the Rider attached hereto, and made a part hereof. Dated 1i V 0VQ,!/4A, 2011 Purchaser: Seller: City of Wa-rloo, a municipal corpora By: Its: MasterBrand Cabinets, Inc., a Delaware corporation, or the owner of record Address: City of Waterloo 715 Mulberry Street Waterloo, IA 50703 Attn: Noel Anderson Community Planning & Development Director Address: MasterBrand Cabinets, Inc. One MasterBrand Cabinets Drive Jasper, IN 47546 Attn: Andrew Kordes VP Engineering industrial properties This is a modified Chicago Title Insurance Company form. Consult with your attorney before executing any legal documents. CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM CONDITIONS AND STIPULATIONS covering title to thc real estate on or after the date hereof, showing title in the intended grantor subject only to (a) the bele See Rider 2. If the title commitment or plat of survey (if one is required to be delivered ander the terms of this contract) by such exceptions or survey defects, and, in such event, thc time of Closing shall be 35 days after delivery of the does not so elect, this contract shall become null and void without further action of the parties. See Rider 3. General and special real estate taxes shall be adjusted ratably as of the time of not be prorated or credited by Seller at Closing. (a) 100% of the most recent ascertainable taxes (b) The most recent ascertainable taxes and subsequent readjustment thereof pursuant to the terms of reproration letter attached hereto and incorporated herein by reference. (c) [Other] All prorations are final. Purchaser shall pay the amount of any stamp tax imposed by state law on the transfer of the title, and shall furnish completed Real Estate Transfer Declarations signed by the Purchaser or the Purchaser's agent in the form(s) required by the State of Iowa and by Black Hawk County, if any, and shall furnish any declaration signed by the Purchaser or the Purchaser's agent or meet other requirements as established by any local ordinance with regard to a transfer or transaction tax; such tax required by local ordinance shall be paid by the Purchaser, regardless of the party upon whom such ordinance places `responsibility' therefor. If such ordinance does not so place responsibility, the tax shall be paid by the (Purchaser) (Seller). (Strike one.) See Rider 4.•- contract. any, to be retained by the Seller as liquidated damages. See Rider of thc escrow shall be divided equally between Seller and Purchaser. (Strike paragraph if inapplicable.) See Rider 7. Time is of the essence of this contract. 8. All notices herein required shall be in writing and shall be served on the parties at the addresses following their signatures. See Rider 9. Alternative 1: Seller represents that it is not a "foreign person" as defined in Section 1445 of the Internal Revenue Code and is therefore exempt from the withholding requirements of said Section. Seller will furnish Purchaser at Closing the Exemption Certification set forth in said Section. Alternative 2: Section and the sales price does not exceed $300,000. Alternative 3: With respect to Section 1415 of the Internal Revenue Code, the parties agree as follows: (Strike two of the three alternatives.) 10. Purchaser and Seller agree that the disclosure requirements of the Illinois Responsible Property Transfer Act (do) (do not) apply to the transfer contemplated by this contract. 2 CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM RIDER This rider ("Rider"), is made and entered into as of the 01 day of / Vg -!2011 ("Effective Date"), by and between MasterBrand Cabinets, Inc., a Delaware corporation, or the owner of record ("Seller"), and the City of Waterloo, Iowa, a municipal corporation ("Purchaser"). This Rider amends and modifies that certain Real Estate Sale Contract dated as of the same date hereof, by and between Seller and Purchaser ("Contract"). In the event of a conflict between the terms and conditions of the Contract and this Rider, the terms and conditions of this Rider shall supersede and prevail. The Contract and the Rider are herein collectively referred to as the "Agreement". Rl. Closing. The consummation of the transaction contemplated herein ("Closing"), shall be held through First American Title Insurance Company ("Title Insurer"), at the Title Insurer's offices located at 30 North LaSalle Street, Suite 2700, Chicago, Illinois, on the date that is ten (10) business days following the expiration of the Title Commitment Period and Survey Period (defined hereafter), or such other earlier or later date mutually agreed, in writing, by Seller and Purchaser ("Closing Date"). The Closing shall be consummated by means of a Deed and Money "New York Style" Escrow, whereby the Title Insurer will insure Purchaser's title through the date of recording, whether on the Closing Date or subsequent thereto, and if subsequent, the Title Insurer will cover the "Gap" and disburse the proceeds of sale on the Closing Date, to be opened with Title Insurer, as escrowee, on the Closing Date, in accordance with a Deed and Money "New York Style" Escrow Agreement in customary form of the Title Insurer; provided, however, in the event of a conflict between the terms of this Agreement and the Closing Escrow, the terms of this Agreement shall control, unless the Closing escrow specifically provides otherwise. The cost of any Closing or escrow fees shall be paid solely by Purchaser. R2. Default. (a) In the event Seller shall fail to comply with any of its obligations to be performed by Seller hereunder on or prior to the Closing Date, and such failure continues for five (5) or more consecutive days after notice to Seller, then Purchaser shall be entitled to elect, by written notice to Seller, as Purchaser's sole and exclusive remedy hereunder, to terminate this Agreement, in which event, Purchaser shall be entitled to receive the sum of Five Hundred and No/100 Dollars ($500.00) from Seller, as liquidated damages, the parties acknowledge that Purchaser will suffer actual damages, and that Purchaser's actual damages in the event of a default by Seller under this Agreement will be difficult or impossible to ascertain, and that such liquidated damages represent the parties' best estimate of such damages. Purchaser shall have no, and hereby waives any, other rights or remedies it may have against Seller in law or in equity, including the right to seek, and/or receive, consequential, special, or punitive damages. (b) In the event Purchaser shall fail to comply with any of its obligations to be performed by Purchaser hereunder on, prior to, or anytime after the Closing Date, and such failure continues for five (5) or more consecutive days after notice to Purchaser (other than failure to consummate the transaction contemplated herein, for which there shall be no cure period), then, in addition to Seller's rights under Section R14 hereof, Seller shall be entitled to pursue any and all rights and remedies it may have against Purchaser in law or in equity, including, but not limited to, a lawsuit for specific performance and/or damages. All of Seller's rights and remedies provided in this Agreement are cumulative and the exercise of any one right or remedy will not preclude or waive Seller's right to pursue any other right or remedy. This Section R2(b) shall survive the Closing and the delivery of the deed. R3. Title and Survey; Environmental Inspection. (a) Title Commitment. Purchaser, at Purchaser's sole cost and expense, may procure an ALTA owner's coverage title commitment issued by the Title Insurer to insure title to the Real Estate ("Title Commitment") within thirty (30) days from the expiration of the Inspection Period (defined hereafter) ("Title Commitment Period"). Purchaser may elect, at its expense, to satisfy the Title Insurer's requirements for the issuance of an ALTA extended owner's coverage policy, including the addition of any endorsements, but if Purchaser does not satisfy any such requirements, the policy to be issued shall be a standard coverage policy ("Title Policy"). Should Purchaser desire an abstract of title ("Abstract") for its review, Purchaser may procure same at Purchaser's sole cost and expense. Without limitation of the foregoing, Purchaser shall pay the costs of abstracting and title examination, and/or any commitment or search fees, as applicable. (b) Survey. Purchaser, at Purchaser's sole cost and expense, may procure a current survey prepared by a land surveyor licensed in the State of Iowa ("Surveyor"), for the benefit of, and certified to, Purchaser, Purchaser's lender, if any, Seller, Vedder Price P.C., and the Title Insurer ("Survey") within thirty (30) days from the expiration of the Inspection Period ("Survey Period"). (c) Permitted Exceptions. At Closing, Seller shall transfer and convey its right, title, and interest in the Property to Purchaser subject to the Permitted Exceptions (defined hereafter). In the event the Title Commitment, Abstract or Survey discloses exceptions to title to which Purchaser objects and so notifies Seller in writing on or before the expiration of the Title Commitment Period and Survey Period, respectively ("Unpermitted Exceptions"), Seller shall have until the Closing Date (if Seller so elects in Seller's sole and absolute discretion) to have these exceptions removed from the Title Commitment, or to have the Title Insurer commit to insure against Loss or damage occasioned thereby (all exceptions of title not deemed Unpermitted Exceptions, as well as those exceptions set forth on Exhibit B attached hereto, shall collectively be defined as "Permitted Exceptions"). If Seller fails or is unwilling to have said Unpermitted Exceptions so removed, cured or corrected, or insured over within the period allowed to Seller set forth above, then Purchaser, at Purchaser's option, may elect one of the following as Purchaser's sole and exclusive remedy: (i) to terminate this Agreement, and neither party shall have any further liability hereunder except as otherwise stated herein; (ii) to consummate the transaction contemplated herein, and take title to the Real Estate and Building as they then are, without the right to deduct from the Purchase Price, liens or encumbrances; or (iii) to extend the time period allowed to Seller to have said exceptions removed, cured or corrected, or insured over as set forth above (and the scheduled Closing Date, if necessary) for a period of up to thirty (30) days. In no event shall Seller's failure or unwillingness to have the Unpermitted Exceptions removed or insured over constitute a default of Seller. (d) Informational Materials. Seller has delivered, or may deliver, to Purchaser for Purchaser's review, certain materials and information specifically related to the Property, including but not limited to materials and information relating to environmental conditions, if available to Seller regarding the Property and other information pertaining to the Property reasonably requested by Purchaser (collectively, "Property Information Materials"). Purchaser acknowledges and agrees that some or all of the Property Information Materials have been prepared by parties other than Seller, that Seller's internal reports and studies were not prepared for use in this transaction, and that Seller R-1 CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM makes no representation or warranty whatsoever, express or implied, as to the completeness, content, or accuracy of the Property Information Materials. If Purchaser determines that the Property Information Materials are inaccurate, incomplete, outdated, or otherwise insufficient for Purchaser's purposes, Seller shall have no obligation to supplement or update the Property Information Materials. Purchaser specifically releases Seller and all Seller Protected Parties (defined hereafter) from all liability in connection with any claims, demands, causes of action, judgments, losses, damages, liabilities, costs, and expenses (including attorneys' fees, whether suit is instituted or not), whether known or unknown, liquidated or contingent, asserted against or incurred by Purchaser by reason of the information contained in, or that should have been contained in, the Property Information Materials. Purchaser shall keep the existence and terms of the Property Informational Materials confidential, except that Purchaser may disclose same to its attorneys, agents, and consultants to the extent reasonably necessary. (e) Indemnity. To the fullest extent permitted by law, Purchaser agrees to keep the Property free and clear of all liens and claims arising out of Purchaser and/or Purchaser's surveyors, employees, and/or agents (each a "Purchaser Party," and collectively, "Purchaser Parties") access on the Property in connection with completing the Survey work, and Purchaser hereby indemnifies and holds Seller harmless from and against any and all damages, costs, losses, expenses (including, without limitation, reasonable attorneys' fees), claims, and/or demands incurred or suffered by, or made against, Seller by reason of injury to or death of persons, or damage to the Property by reason of, and caused by, any Purchaser Party, including, without limitation, any Survey work and/or any other entry upon, or use of, the Property by Purchaser and/or any Purchaser Party. In conducting the Survey work, Purchaser, and all Purchaser Parties shall comply with all applicable federal, state, and local laws, rules, and regulations. Purchaser shall restore or repair any damage to any of the above caused by any such Survey work to the condition the Property was in immediately prior to such Survey work. (f) Survival. The obligations of Purchaser under this Section R3 shall survive any termination of this Agreement and Closing, shall not be merged with the delivery of the deed, and Seller's rights against Purchaser for the breach of same shall not be limited by anything contained herein, in law, or in equity. R4. Notices. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or via a nationally recognized overnight air express service, and shall be addressed to the parties hereto at their respective addresses next to their signatures on the first page of the Contract. Notices shall be deemed given upon acceptance or refusal by the addressee. All notices to Seller shall also be sent to: William J. Lewis, Vedder Price P.C., 222 N. LaSalle Street, Suite 2600, Chicago, IL 60601, in order to be deemed validly given. Notice of change of address shall be given by written notice in the manner detailed in this Section. R5. Broker. Purchaser represents and warrants to Seller that no broker or finder has been engaged by Purchaser in connection with any of the transactions contemplated by this Agreement. Purchaser further represents and warrants that no other person or entity claims, or will claim, any commission, finder's fee, or other amounts by, through, under or as a result of any relationship with Purchaser because of such transactions. Purchaser agrees to indemnify, defend, and hold Seller harmless from and against the claims of all brokers, finders or other intermediaries, claiming to have had any dealings, negotiations or consultations with Purchaser or any agent of Purchaser in connection with this Agreement or the purchase of the Property or any part thereof. R6. Casualty or Condemnation. (a) If, prior to the Closing Date, the Building is fully or partially destroyed by fire or other casualty, then Purchaser shall have no right to terminate this Agreement and the transaction contemplated by this Agreement shall be consummated as otherwise provided herein. In such event, Seller shall be entitled to keep all physical damage proceeds of any insurance policy payable to Seller as a result of such fire or other casualty. If, prior to the Closing Date, excluding the Building, the full Property or a Material Part (defined hereafter) thereof is condemned, then Purchaser may elect to terminate this Agreement upon written notice of its election to Seller within ten (10) days after receiving notice or knowledge of such material damage or material condemnation. If Purchaser does not elect to give such written notice within such ten (10) day period, then the transaction contemplated by this Agreement shall be consummated as otherwise provided herein. In such event, Seller will assign to Purchaser at Closing Seller's portion of the condemnation award, pursuant to this Section R6 as applicable (less any costs or expenses paid by Seller in connection therewith). Notwithstanding anything to the contrary contained in this Agreement, Purchaser hereby covenants, represents and warrants to Seller, that it will not condemn or induce or encourage any other governmental entity to condemn, all or any portion of the Property so as to terminate this Agreement or abrogate any of its obligations or Sellers' rights under this Agreement. (b) As used in this Section, "Material Part" shall mean that the cost of restoring and/or repairing damage caused by the taking to the extent that such cost (as determined by Seller in its reasonable discretion) is in excess of Thirteen Thousand and No/100 Dollars ($13,000.00). (c) If, prior to Closing, less than a Material Part of the Property thereof is condemned, then the transaction contemplated by this Agreement shall be consummated as otherwise provided herein. Except as otherwise provided in Section R6(a), in the event of a casualty or condemnation, Seller shall assign to Purchaser at Closing the physical damage proceeds of any insurance policy payable to Seller, if any, or Seller's portion of the condemnation award, as applicable (less any costs or expenses paid by Seller in connection therewith). R7. Disclaimer and Release. PURCHASER REPRESENTS, WARRANTS, ACKNOWLEDGES, AND AGREES THAT IT IS RELYING SOLELY ON ITS OWN INSPECTION AND EXAMINATION IN PURCHASING THE PROPERTY; AND PURCHASER IS PURCHASING THE PROPERTY ON AN "AS -IS" BASIS, WITH ALL FAULTS AND DEFECTS NOW KNOWN OR HEREAFTER DISCOVERED BY PURCHASER, INCLUDING BUT NOT LIM1 hD TO ANY RELATING TO ENVIRONMENTAL CONDITIONS. NEITHER SELLER NOR ANY OF ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES MAKE ANY REPRESENTATION OR WARRANTY TO PURCHASER, EXPRESS OR IMPLIED, AS TO: (A) THE SUITABILITY OF THE PROPERTY FOR PURCHASERS INTENDED USE, OR ANY PARTICULAR PURPOSE OR THE MERCHANTABILITY OR FITNESS THEREOF; (B) THE PROFITABILITY OF THE OPERATION OF THE PROPERTY OR THE INCOME TO BE DERIVED THEREFROM; (C) THE ENVIRONMENTAL CONDITION OF THE PROPERTY OR ANY LIABILITY OR POTENTIAL LIABILITY RELATED THERETO OR TO OPERATIONS CONDUCTED ON THE PROPERTY; (D) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, INCLUDING THE POSSIBILITIES FOR FUTURE R-2 CH ICAGO/#2192202 .7/TEM P.TEMPORARY 10:OOAM DEVELOPMENT OF THE PROPERTY; (E) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS CURRENT OR INTENDED OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY (INCLUDING WITHOUT LIMITATION, THE FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT (42 U.S.0 SECTION 9601 ET SEQ.) AND OTHER ENVIRONMENTAL LAWS, RULES OR REGULATIONS) AND ANY CLAIMS MADE OR OBLIGATIONS OR LIABILITIES IMPOSED PURSUANT THERETO, AS WELL AS ANY ZONING ORDINANCES, AND/OR APPLICABLE BUILDING, SAFETY, FIRE, AND/OR HOUSING CODE REQUIREMENTS; (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY; (G) THE MANNER, QUALITY, STATE OF REPAIR, OR LACK OF REPAIR, OF THE PROPERTY; (H) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, EMANATING FROM, OR ADJACENT TO THE PROPERTY, OR ANY OTHER ENVIRONMENTAL MA ITER OR CONDITION OF THE PROPERTY OR ASSOCIATED WITH THE PROPERTY; (I) ANY OTHER MA1TE,R WITH RESPECT TO THE CONDITION OF THE PROPERTY; (J) ANY TAX CONSEQUENCES, FAVORABLE OR OTHERWISE, RESULTING FROM PURCHASER'S ACQUISITION OR OPERATION OF THE PROPERTY; (K) THE VALUE, NATURE, OR QUALITY OF THE PROPERTY; (L) THE WATER, STRUCTURAL INTEGRITY, SOIL, AND GEOLOGY OF THE PROPERTY; AND/OR (M) ANY REPRESENTATIONS OF SETT .FR DEEMED MADE BY LAW, AND/OR (N) ANY OTHER MA ITER WITH RESPECT TO, OR THAT MIGHT AFFECT, THE PROPERTY OR THE VALUE, REPAIR, EXPENSE OF OPERATION, INCOME POTENTIAL, OR OTHER CONDITION OF THE PROPERTY, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY SELLER. PURCHASER HEREBY RELEASES SELLER, PREDECESSORS, SHAREHOLDERS, SELLER'S DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES (COLLECTIVELY THE "SELLER PROTECTED PARTIES"), FROM ANY AND ALL RESPONSIBILITY AND LIABILITY IN RESPECT THEREOF. WITHOUT LIMITATION OF THE PROVISIONS ABOVE, PURCHASER HEREBY RELEASES SEI.T.FR AND THE OTHER SELLER PROTECTED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DAMAGES, OBLIGATIONS, PENALTIES, PROPERTY OR BODILY INJURY, OR LIABILITIES ARISING OUT OF OR RELATING DIRECTLY OR INDIRECTLY TO ANY KNOWN OR UNKNOWN ENVIRONMENTAL HAZARD (DEFINED HEREAFTER), AT, IN, ON, UNDER, OR EMANATING FROM, THE PROPERTY OR RELATED TO OPERATIONS THEREON. ANY REPRESENTATIONS, WARRANTIES, OR STATEMENTS MADE BY ANY MEMBER, EMPLOYEE, AGENT, OR REPRESENTATIVE OF SELLER MAY NOT BE RELIED UPON BY PURCHASER, AND DO NOT CONSTITUTE A PART OF THIS AGREEMENT. ANY INFORMATION PROVIDED BY, OR ON BEHALF OF, SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES, AND SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION, AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OR SUCH INFORMATION. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT PURCHASER IS A SOPHISTICATED AND EXPERIENCED PURCHASER OF PROPERTIES SUCH AS THE PROPERTY, AND HAS BEEN DULY REPRESENTED BY (OR HAS HAD THE OPPORTUNITY, BUT DECLINED, TO CONSULT WITH) COUNSEL IN CONNECTION WITH THE NEGOTIATION OF THIS AGREEMENT. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER HAS MADE NO AGREEMENT TO ALTER, REPAIR, OR IMPROVE ANY OF THE PROPERTY. ANY REPRESENTATIONS, WARRANTIES, OR STATEMENTS MADE BY ANY AGENT OR REPRESENTATIVE OF SELLER MAY NOT BE RELIED UPON BY PURCHASER AND DO NOT CONSTITUTE A PART OF THIS AGREEMENT. THE TERMS OF THIS SECTION SHALL SURVIVE THE CLOSING AND SHALL NOT BE MERGED WITH THE DELIVERY OF THE DEED, AND SHALL BE BINDING ON PURCHASER AND ITS SUCCESSORS AND ASSIGNS. R8. Assignment or Designation of Nominee/Like Kind Exchange. The parties hereto agree Seller shall have the right, prior to the Closing Date and without the consent of Purchaser, to assign this Agreement or to designate a nominee, including, without limitation, any assignment of this contract made in connection with Seller effectuating a like kind exchange of property under Section 1031 of the Internal Revenue Code. In addition to permitting the assignment of this Agreement, Purchaser agrees to cooperate with Seller in any other way reasonably required by Seller in order to effectuate a like kind exchange involving the Property. Purchaser shall not be permitted to assign this Agreement without the prior written consent of Seller. Seller shall be solely responsible for any costs, fees or expenses of any type or nature arising from or in connection with any transaction described in this Section R8. R9. Miscellaneous Closing Costs. Except as otherwise set forth in this Rider, Purchaser shall pay for all Closing costs including: (a) the costs associated with providing the Title Policy (including without limitation abstracting, title examination and commitment fee), as well as any premium due to obtaining extended coverage, and the cost of any other endorsements requested by Purchaser; (b) all real estate recording fees and documentary stamp taxes payable in .connection with the deed; (c) any fee for closing services, including any Escrow fees, which are charged by the Title Company; (d) all real estate taxes and assessments relating to the Property, whether due and payable prior to or after the Closing; (e) the cost of the Survey, and any updates thereto; and (f) any other cost, expense, or fees associated with the consummation of the Closing. The parties agree that the Purchase Price shall be net of all expenses, fees, and costs, such that Seller shall receive the exact amount of Sixty Five Thousand and No/100 Dollars ($65,000.00) from Purchaser at Closing. There shall be no real estate tax proration or like credit provided to Purchaser at Closing. Purchaser and Seller shall each pay its own fees and expenses incurred in the preparation, execution, and performance of their respective obligations under this Agreement. All other costs, if not expressly specified herein, shall be paid by Purchaser. R10. Environmental Matters. (a) Purchaser has made or will make, within the Title Commitment Period and pursuant to its exercise of access rights under the access agreement attached hereto as Exhibit D, such examination or inspection of the Property as Purchaser deemed sufficient to evaluate the environmental condition of the Property. Without limitation of, but rather in addition to, the provisions of Section R7 hereof, Purchaser hereby releases Seller, and the Seller Protected Parties, from any and all claims, causes of action, damages, obligations, penalties, property or bodily injury and/or liabilities arising out of, or relating directly or indirectly to, any known or unknown Environmental Hazard at, in, on, adjacent to, emanating from, or under the Property or related to operations thereon. As used herein, the term `Environmental R-3 CH ICAGO/#2192202.7/TEM P.TEMPORARY 10:OOAM Hazard" shall mean any Hazardous Material, or the storage, handling, use, manufacturing, recycling, migration, production, disposal, treatment or release thereof; and the term "Hazardous Material" shall mean: (a) any hazardous waste, any extremely hazardous waste, or any restricted hazardous waste, or words of similar import, as defined in the Resource Conservation and Recovery Act (42 U.S. C. Section 6901 et seq.); (b) any hazardous substances as defined in the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S. C. Section 9601 et seq.); (c) any toxic substances as defined in the Toxic Substances Control Act (15 U.S. C. Section 2601 et seq.); (d) any pollutant as defined in the Clean Water Act (33 U.S. C. Section 1251 et seq.); (e) gasoline, petroleum, or other hydrocarbon products or by-products; (1) asbestos; (g) any other materials, substances, or wastes subject to environmental regulation under any applicable federal, state, or local law, regulation, or ordinance now or hereafter in effect; or (h) any gas, solid, or liquid on, and/or released from, the Property. The term "Environmental Laws" shall mean all statutes specifically described in the foregoing sentence and all federal, state and local environmental health and safety statutes, ordinances, codes, rules, regulations, orders and decrees regulating, relating to or imposing liability or standards concerning or in connection with Hazardous Materials or the protection of the environment or worker health and safety. This Section R10(a) shall survive the Closing and not merge with the delivery of the deed, and shall be binding on Purchaser and its successors and assigns. (b) To the fullest extent permitted by law, Purchaser shall indemnify, defend, and hold Seller and Seller Protected Parties and the Property harmless from and against: (i) any loss, damage, cost, expense, injury, obligation, assessment, penalty, property or bodily injury, or liability (including, without limitation, attorneys' fees and court costs), arising from the imposition or recording of a lien against the Property, or from the assessment against Seller, claims against Seller, or the incurrence by Seller of any investigation, response, clean-up and removal costs or defense costs under any hazardous waste, environmental protection, spill compensation, clean air and water, or other Environmental Laws, with respect to the Property or operations thereon, or from any liability or claim asserted against Seller by any third party in connection with any violation of an Environmental Law or statute or other action by Seller or its agents with respect to the Property whether or not such loss, damage, cost, expense, injury, or liability was caused directly or indirectly by Seller or any Seller Protected Parties; (ii) any loss of value in the Property as a result of any such lien, such investigation, response, clean-up, and/or removal costs, or such other liability; (iii) any loss, damage, cost, expense, injury, or liability arising from any failure or defect in title occasioned by any applicable statute; and (iv) all costs and expenses, including attorneys' fees, related to any action, suits, or judgments incident to any of the foregoing. This Section R10(b) shall survive the Closing and not merge with the delivery of the deed, and shall be binding on Purchaser and its successors and assigns. At Closing, Purchaser shall sign and deliver to Seller, a Reaffirmation and Acknowledgement of Indemnity and Hold Harmless Obligations in the form attached hereto as Exhibit "C". R11. Jury Trial Waiver. Purchaser and Seller waive the right to a trial by jury in any action or proceeding based upon, or related to, the subject matter of this Agreement. This waiver is knowingly, intentionally, and voluntarily made by each party and each party expressly acknowledges that neither the other party nor any person acting on behalf of the other party has made any representations of fact to induce this waiver of trial by jury or in any way to modify or nullify its effect. Each party acknowledges to the other that it has read and understands the meaning and effect of this waiver provision. R12. Reliance on the Title Policy. Notwithstanding anything contained in this Agreement to the contrary, with respect to all matters affecting title to the Property, and any liens or other encumbrances affecting the Property, Purchaser acknowledges and agrees that it is solely relying upon the Title Policy. If Purchaser has a claim under the Title Policy, and the subject matter of that claim also constitutes a breach of any representation, warranty, or covenant made by Seller in this Agreement or the deed, Purchaser agrees that it will look solely to the Title Policy for recovery on such claim, and Purchaser shall not assert any claim against Seller for a breach of a representation, warranty, or covenant with respect to such claim. This Section shall survive Closing and the delivery of the deed. R13. Unenforceable Provisions. If any provision of this Agreement, or the application thereof to any person or situation, shall be held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to persons or situations other than those to which it shall have been held invalid or unenforceable, shall continue to be valid and enforceable to the fullest extent permitted by law. R14. Attorneys' Fees and Costs. In the event of litigation, arbitration, and/or mediation between Seller and Purchaser arising out of this Agreement, the prevailing party shall be entitled to court costs and reasonable attorneys' fees from the non -prevailing party. R15. Governing Law; Construction of Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa. Seller and Purchaser and their respective counsel have reviewed, revised, and approved this Agreement. Accordingly, the normal rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement, or any amendments or exhibits hereto. Unless otherwise specified, references to section numbers herein refer to sections of this Agreement. R16. Execution in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute one Agreement. R17. Business Days. If the final day of any period or any date of performance under this Agreement falls on a Saturday, Sunday or legal holiday, then the final day of the period or the date of performance shall be extended to the next day which is not a Saturday, Sunday or legal holiday. R18. Captions. The captions in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope of this Agreement or the scope or content of any of its provisions. R19. Purchaser Authority. Purchaser represents and warrants to Seller that: (a) this Agreement has been duly authorized, executed, and delivered by the Purchaser and is binding upon Purchaser in accordance with its terms; and (b) all requisite action has been taken by Purchaser to enable it legally to fulfill the obligations incurred by it under the provisions of this Agreement. R-4 CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM R2O. Seller Authority. Seller represents and warrants to Purchaser that: (a) this Agreement has been duly authorized, executed, and delivered by the Seller and is binding upon Seller in accordance with its terms; and (b) all requisite action has been taken by Seller to enable it legally to fulfill the obligations incurred by it under the provisions of this Agreement. R21. Entire Agreement. This Agreement constitutes the entire agreement of Purchaser and Seller with respect to the purchase and sale of the Property and supersedes any prior or contemporaneous agreement with respect thereto. No amendment or modification of this Agreement shall be binding upon the Parties unless made in writing and signed by Seller and Purchaser. R22. Inspection. Commencing on the Effective Date, and ending forty-five (45) days thereafter ("Inspection Period"), Purchaser, and Purchaser's employees, agents, and/or independent contractors (collectively, "Purchaser Parties"), may, upon at least two (2) days prior notice to Seller, and during normal business hours, make any inspections, applications, reviews, studies, evaluations, or surveys (collectively, "Inspections"), reasonably required to satisfy Purchaser as to the acceptability and suitability of the Property for its purchase; provided, however, Purchaser shall serve prior notice thereof to Seller and provide an opportunity for Seller to be present and share in the results of the surveys, engineering studies, and similar investigations; and as to all Inspections, Purchaser shall deliver to Seller immediately upon Purchaser's receipt thereof, a copy of all third party studies, investigations, and reports which are issued as a result of such activities (including, without limitation, all documents provided to Purchaser by Seller). In conducting any Inspections, all Purchaser Parties(i) shall fully comply with all laws, ordinances, rules, and regulations in connection with such inspections; (ii) shall not permit any inspections, investigations, or other due diligence activities to result in any liens, judgments, or other encumbrances being filed against the Property or Seller, and shall, at Purchaser's sole cost and expense, promptly discharge of record any such liens or encumbrances that are so filed or recorded; (iii) shall return to Seller all materials with respect to the Property provided by Seller, and/or procured or produced by or for, Purchaser, but only if Purchaser fails to acquire the Property for any reason; (iv) prior to commencing any entry on the Property shall furnish Seller with reasonably satisfactory evidence of insurance, which shall include comprehensive general liability insurance in the amount of at least One Million and No/100 Dollars ($1,000,000.00), to cover the cost of any damage by Purchaser Parties to the Property, naming Seller as an additional insured; (v) shall not make or cause to be made any borings in, or other intrusive testing on or to, any Property without Seller's prior written consent, which consent Seller may withhold in its discretion; and (vi) shall not cause any injury to the Property that cannot otherwise be restored. The obligations of the Purchaser under this Section shall survive the termination of the Agreement. Purchaser shall have the right to terminate this Agreement for any reason to be determined in Purchaser's sole and absolute discretion by written notice to Seller at any time up until 5:00 PM Central Time, on the last day of the Inspection Period, in which event neither party shall have any further obligations to the other party, other than those specifically stated herein to survive. Purchaser agrees to keep the Property free and clear of liens and claims arising out of its Inspections, and hereby indemnifies and holds Seller harmless from and against any and all damages, costs, losses, expenses (including, without limitation, reasonable attorneys' fees), claims, and/or demands incurred or suffered by, or made against, Seller by reason of injury to or death of persons, or damage to the Property by reason of, and caused by, any such Inspections, including, without limitation, any environmental inspections, tests, surveys, studies, or any other entry upon, or use of, the Property by Purchaser or its agents. In exercising the Inspections, Purchaser, and the Purchaser Parties shall comply with all applicable federal, state, and local laws, rules, and regulations. Purchaser shall restore or repair any damage to any of the above caused by any such tests or any investigations to substantially the condition same were in immediately prior to such inspections, tests, or investigations. The obligations of Purchaser under this Section shall survive any termination of this Agreement and Closing, shall not be merged with the delivery of the Deed, and Seller's rights against Purchaser for the breach of same shall not be limited by anything contained herein, in law, or in equity, notwithstanding the terms of Section R2 hereof. [THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK] R-5 CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM IN WITNESS WHEREOF, the parties hereto have caused this Rider to be executed as of the date first written above. SELLER: MASTERBRAND CABINETS, Inc., a Delaware corporation, or the owner of cord R-6 CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM PURCHASER: WATERLOO, IO A, a m i cipal corporation EXHIBIT A LEGAL DESCRIPTION [SELLER TO INSERT PRIOR TO CLOSING UPON AGREEMENT BY SELLER AND PURCHASER] A-1 CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM EXHIBIT B PERMITTED EXCEPTIONS 1. The exclusions and general exceptions (except those relating to the mechanics lien claims caused by, through, or under Seller) in the Title Commitment. 2. The specific exceptions in the Title Commitment. 3. Items which a correct Survey or physical inspection would show. 4. All Real estate taxes and special assessments. 5. Matters learned by or described to Purchaser or its agents prior to the expiration of the Closing. 6. Environmental, building code, land use, and zoning matters. 7. Matters caused by, through, or under Purchaser. 8. Matters the Title Insurer agrees to endorse over. 9. Exceptions created by Seller's predecessor in title. [REMAINDER TO BE INSERTED BY SELLER UPON AGREEMENT BY PURCHASER AND SELLER] B-1 CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM EXHIBIT C REAFFIRMATION AND ACKNOWLEDGEMENT OF INDEMNITY AND HOLD HARMLESS OBLIGATIONS MasterBrand Cabinets, Inc., a Delaware corporation ("Seller") and the City of Waterloo, a municipal corporation ("Purchaser"), entered into that certain Real Estate Sale Contract and Rider dated N.JV o2 d , 2011 ("Agreement") for the purchase and sale of the Property as defined therein. Purchaser is executing this Reaffirmation and Acknowledgement of Indemnity and Hold Harmless Obligations ("Reaffirmation and Acknowledgement") pursuant to Section R10(b) of the Agreement. All capitalized terms which are not defined herein shall have the meanings ascribed thereto in the Agreement. Purchaser hereby reaffirms, acknowledges, and agrees to be bound by, all of the terms, provisions, liabilities, agreements, covenants, and obligations of Purchaser pursuant to Sections R7 and R10 in the Purchase Agreement, the specific language of which is set forth below as follows: R7. Disclaimer and Release. PURCHASER REPRESENTS, WARRANTS, ACKNOWLEDGES, AND AGREES THAT IT IS RELYING SOLELY ON ITS OWN INSPECTION AND EXAMINATION IN PURCHASING THE PROPERTY; AND PURCHASER IS PURCHASING THE PROPERTY ON AN "AS -IS" BASIS, WITH ALL FAULTS AND DEFECTS NOW KNOWN OR HEREAFTER DISCOVERED BY PURCHASER, INCLUDING BUT NOT LIMITED TO ANY RELATING TO ENVIRONMENTAL CONDITIONS. NEITHER SELLER NOR ANY OF ITS EMPLOYEES, AGENTS, OR REPRESENTATIVES MAKE ANY REPRESENTATION OR WARRANTY TO PURCHASER, EXPRESS OR IMPLIED, AS TO: (A) THE SUITABILITY OF THE PROPERTY FOR PURCHASERS INTENDED USE, OR ANY PARTICULAR PURPOSE OR THE MERCHANTABILITY OR FITNESS THEREOF; (B) THE PROFITABILITY OF THE OPERATION OF THE PROPERTY OR THE INCOME TO BE DERIVED THEREFROM; (C) THE ENVIRONMENTAL CONDITION OF THE PROPERTY OR ANY LIABILITY OR POTENTIAL LIABILITY RELATED THERETO OR TO OPERATIONS CONDUCTED ON THE PROPERTY; (D) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE PROPERTY; (E) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS CURRENT OR INTENDED OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY (INCLUDING WITHOUT LIMITATION, THE FEDERAL COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT (42 U.S.0 SECTION 9601 ET SEQ.) AND OTHER ENVIRONMENTAL LAWS, RULES OR REGULATIONS) AND ANY CLAIMS MADE OR OBLIGATIONS OR LIABILITIES IMPOSED PURSUANT THERETO, AS WELL AS ANY ZONING ORDINANCES, AND/OR APPLICABLE BUILDING, SAFETY, FIRE, AND/OR HOUSING CODE REQUIREMENTS; (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY; (G) THE MANNER, QUALITY, STATE OF REPAIR, OR LACK OF REPAIR, OF THE PROPERTY; (H) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, EMANATING FROM, OR ADJACENT TO THE PROPERTY, OR ANY OTHER ENVIRONMENTAL MATTER OR CONDITION OF THE PROPERTY OR ASSOCIATED WITH THE PROPERTY; (I) ANY OTHER MATTER WITH RESPECT TO THE CONDITION OF THE PROPERTY; (J) ANY TAX CONSEQUENCES, FAVORABLE OR OTHERWISE, RESULTING FROM PURCHASER'S ACQUISITION OR OPERATION OF THE PROPERTY; (K) THE VALUE, NATURE, OR QUALITY OF THE PROPERTY; (L) THE WATER, STRUCTURAL INTEGRITY, SOIL, AND GEOLOGY OF THE PROPERTY; AND/OR (M) ANY REPRESENTATIONS OF SELLFR .FR DEEMED MADE BY LAW, AND/OR (N) ANY OTHER MATTER WITH RESPECT TO, OR THAT MIGHT AFFECT, THE PROPERTY OR THE VALUE, REPAIR, EXPENSE OF OPERATION, INCOME POTENTIAL, OR OTHER CONDITION OF THE PROPERTY, AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY SELLER. PURCHASER HEREBY RELEASES SELLER, PREDECESSORS, SHAREHOLDERS, SELLER'S DIRECTORS, OFFICERS, AGENTS, AND EMPLOYEES (COLLECTIVELY THE "SEI .JFR PROTECTED PARTIES"), FROM ANY AND ALL RESPONSIBILITY AND LIABILITY IN RESPECT THEREOF. WITHOUT LIMITATION OF THE PROVISIONS ABOVE, PURCHASER HEREBY RELEASES SELLER AND THE OTHER SELLER PROTECTED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, CAUSES OF ACTION, DAMAGES, OBLIGATIONS, PENALTIES, PROPERTY OR BODILY INJURY, OR LIABILITIES ARISING OUT OF OR RELATING DIRECTLY OR INDIRECTLY TO ANY KNOWN OR UNKNOWN ENVIRONMENTAL HAZARD (DEFINED HEREAFTER), AT, IN, ON, UNDER, OR EMANATING FROM, THE PROPERTY OR RELATED TO OPERATIONS THEREON. ANY REPRESENTATIONS, WARRANTIES, OR STATEMENTS MADE BY ANY MEMBER, EMPLOYEE, AGENT, OR REPRESENTATIVE OF SELLER MAY NOT BE RELIED UPON BY PURCHASER, AND DO NOT CONSTITUTE A PART OF THIS AGREEMENT. ANY INFORMATION PROVIDED BY, OR ON BEHALF OF, SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES, AND SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION, AND MAKES NO WARRANTY OR REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OR SUCH INFORMATION. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT PURCHASER IS A SOPHISTICATED AND EXPERIENCED PURCHASER OF PROPERTIES SUCH AS THE PROPERTY, AND HAS BEEN DULY REPRESENTED BY (OR HAS HAD THE OPPORTUNITY, BUT DECLINED, TO CONSULT WITH) COUNSEL IN CONNECTION WITH THE NEGOTIATION OF THIS AGREEMENT. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER HAS MADE NO AGREEMENT TO ALTER, REPAIR, OR IMPROVE ANY OF THE PROPERTY. ANY REPRESENTATIONS, WARRANTIES, OR STATEMENTS MADE BY ANY AGENT OR REPRESENTATIVE OF SELLER MAY NOT BE RELIED UPON BY PURCHASER AND DO NOT CONSTITUTE A PART OF THIS AGREEMENT. THE TERMS OF THIS SECTION SHALL SURVIVE THE CLOSING AND SHALL NOT BE MERGED WITH THE DELIVERY OF THE DEED, AND SHALL BE BINDING ON PURCHASER AND ITS SUCCESSORS AND ASSIGNS. R10. Environmental Matters. (a) Purchaser has made such examination or inspection of the Property as Purchaser deemed sufficient to evaluate the environmental condition of the Property. Without limitation of, but rather in addition to, the provisions of Section R7 hereof, Purchaser hereby releases Seller, and the Seller Protected Parties, from any and all claims, causes of action, damages, obligations, penalties, property or bodily injury and/or liabilities arising out of, or relating directly or indirectly to, any known or unknown Environmental Hazard at, in, on, adjacent to, emanating from, or under the Property or related to operations thereon. As used herein, the term "Environmental Hazard" shall mean any Hazardous Material, or C-1 CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM the storage, handling, use, manufacturing, recycling, migration, production, disposal, treatment or release thereof; and the term "Hazardous Material" shall mean: (a) any hazardous waste, any extremely hazardous waste, or any restricted hazardous waste, or words of similar import, as defined in the Resource Conservation and Recovery Act (42 U.S. C. Section 6901 et seq.); (b) any hazardous substances as defined in the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S. C. Section 9601 et seq.); (c) any toxic substances as defined in the Toxic Substances Control Act (15 U.S. C. Section 2601 et seq.); (d) any pollutant as defined in the Clean Water Act (33 U.S. C. Section 1251 et seq.); (e) gasoline, petroleum, or other hydrocarbon products or by-products; (f) asbestos; (g) any other materials, substances, or wastes subject to environmental regulation under any applicable federal, state, or local law, regulation, or ordinance now or hereafter in effect; or (h) any gas, solid, or liquid on, and/or released from, the Property. The term "Environmental Laws" shall mean all statutes specifically described in the foregoing sentence and all federal, state and local environmental health and safety statutes, ordinances, codes, rules, regulations, orders and decrees regulating, relating to or imposing liability or standards concerning or in connection with Hazardous Materials or the protection of the environment or worker health and safety. This Section R10(a) shall survive the Closing and not merge with the delivery of the deed, and shall be binding on Purchaser and its successors and assigns. (b) To the fullest extent permitted by law, Purchaser shall indemnify, defend, and hold Seller and Seller Protected Parties and the Property harmless from and against: (i) any loss, damage, cost, expense, injury, obligation, assessment, penalty, property or bodily injury, or liability (including, without limitation, attorneys' fees and court costs), arising from the imposition or recording of a lien against the Property, or from the assessment against Seller, claims against Seller, or the incurrence by Seller of any investigation, response, clean-up and removal costs or defense costs under any hazardous waste, environmental protection, spill compensation, clean air and water, or other Environmental Laws, with respect to the Property or operations thereon, or from any liability or claim asserted against Seller by any third party in connection with any violation of an Environmental Law or statute or other action by Seller or its agents with respect to the Property whether or not such loss, damage, cost, expense, injury, or liability was caused directly or indirectly by Seller or any Seller Protected Parties; (ii) any loss of value in the Property as a result of any such lien, such investigation, response, clean-up, and/or removal costs, or such other liability; (iii) any loss, damage, cost, expense, injury, or liability arising from any failure or defect in title occasioned by any applicable statute; and (iv) all costs and expenses, including attorneys' fees, related to any action, suits, or judgments incident to any of the foregoing. This Section R10(b) shall survive the Closing and not merge with the delivery of the deed, and shall be binding on Purchaser and its successors and assigns. At Closing, Purchaser shall sign and deliver to Seller, a Reaffirmation and Acknowledgement of Indemnity and Hold Harmless Obligations in the form attached hereto as Exhibit "C". Purchaser hereby acknowledges and agrees that Seller shall be entitled to all of the rights and protections afforded Seller pursuant to Sections R7 and R10 of the Agreement, as more fully set forth above and that the terms of this Reaffirmation and Acknowledgement shall survive the Closing and delivery of the deed to Purchaser. This Reaffirmation and Acknowledgement shall be binding on Purchaser and its successors and assigns. ACK]VOWLEDGED and AGREED to this S t1ay of //\ kVQ, 1.62.x, 2011 CITY OF WA By: Name: elrA.est (i • C(cv-{L— OOf, unci corporation Its: C-2 CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM EXHIBIT D RIGHT OF ENTRY AND DUE DILIGENCE AGREEMENT THIS RIGHT OF ENTRY AND DUE DILIGENCE AGREEMENT ("Agreement"), is entered into as of kiedh r AL 2011 ("Effective Date"), by and between MASTERBRAND CABINETS, INC., a Delaware corporation, or the Owner of Record ("Seller"), and CITY OF WATERLOO, IOWA, a municipal corporation ("Purchaser"). AGREEMENT WHEREAS, Seller and Purchaser are contemplating entering into an Agreement for the Real Estate Sale Contract ("Purchase Agreement"), in which Seller would sell to Purchaser, and Purchaser would purchase from Seller, that certain real property commonly known 1001 Linden Avenue, Waterloo, Iowa (collectively, "Property"); and WHEREAS, Purchaser desires to have a right of entry onto the Property for limited purposes, and Seller is willing to grant such right of entry to Purchaser to enter the Property in accordance with the terms of the Agreement. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser agree as follows: 1. Right of Entry. During the period which commences on the Effective Date, and which terminates on the forty-fifth (45th) day after the Effective Date ("Inspection Period"), Purchaser, and Purchaser's employees, agents, and/or independent contractors (collectively, "Purchaser Parties"), may, upon at least one (1) day prior notice to Seller, during normal business hours, and at Purchaser's sole cost and expense, make any inspections, applications, reviews, studies, evaluations, or surveys (collectively, "Inspections"), required to satisfy Purchaser as to the acceptability and suitability of the Property for its purchase; provided, however, Purchaser shall serve prior notice thereof to Seller and provide an opportunity for Seller to be present and share in the results of the surveys, engineering studies, and similar investigations. In conducting any Inspections, all Purchaser Parties: (i) shall fully comply with all laws, ordinances, rules, and regulations in connection with such inspections; (ii) shall not permit any inspections, investigations, or other due diligence activities to result in any liens, judgments, or other encumbrances being filed against the Property or Seller, and shall, at Purchaser's sole cost and expense, promptly discharge of record any such liens or encumbrances that are so filed or recorded; (iii) shall return to Seller all materials with respect to the Property provided by Seller, and/or procured or produced by or for, Purchaser, but only if Purchaser fails to acquire the Property for any reason; (iv) prior to commencing any entry on the Property shall furnish Seller with reasonably satisfactory evidence of insurance, which shall include comprehensive general liability insurance in the amount of at least One Million and No/100 Dollars ($1,000,000.00), to cover the cost of any damage by Purchaser Parties to the Property, naming Seller as an additional insured; (v) shall not make or cause to be made any borings in, or other intrusive testing on or to, any Property without Seller's prior written consent, which consent Seller may withhold in its discretion; and (vi) shall not cause any injury to the Property that cannot otherwise be restored. 2. Insurance and Indemnity. Each Purchaser Party desiring entry onto the Property shall maintain the aforementioned insurance naming Seller as an additional insured, covering the acts and omissions of each such Purchaser Party while present on or about the Property. Purchaser agrees to keep the Property free and clear of liens and claims arising out of its Inspections, and hereby indemnifies and holds Seller harmless from and against any and all damages, costs, losses, expenses (including, without limitation, reasonable attorneys' fees), claims, and/or demands incurred or suffered by, or made against, Seller by reason of injury to or death of persons, or damage to the Property by reason of, and caused by, any such Inspections, including, without limitation, any environmental inspections, tests, surveys, studies, or any other entry upon, or use of, the Property by Purchaser or any Purchaser Parties. In exercising the Inspections, Purchaser, its employees, agents, and contractors, shall comply with all applicable federal, state, and local laws, rules, and regulations. Purchaser shall restore or repair any damage to any of the above caused by any such tests or any investigations to substantially the condition same were in immediately prior to such inspections, tests, or investigations. The obligations of Purchaser under this Section 2 shall survive any termination of this Agreement, and Seller's rights against Purchaser for the breach of same shall not be limited by anything contained herein, in law, or in equity. 3. Termination of Rights. Purchaser's rights, but not its obligations, under this Agreement shall automatically terminate upon the earlier of: (a) the termination of negotiation between the parties for the purchase and sale of the Property; or (b) the parties' mutual execution and delivery of the Purchase Agreement. 4. Miscellaneous. This Agreement may be executed in counterparts, each of which shall be deemed an original, and each of which together shall constitute one and the same Agreement. This Agreement may be executed by signatures transmitted via facsimile or electronic transmission, such as a "pdf' document transmitted through electronic mail, which shall have the same force and effect as an original signature. This Agreement shall be governed in accordance with the laws of the State of Iowa. [SIGNATURE PAGE FOLLOWS] D-1 CHICAGO/#2192202.7/TEMP.TEMPORARY 10:OOAM IN WITNESS WHEREOF, Seller and Purchaser have caused this Agreement to be executed under their respective seals as of the date first above written. SELLER: MASTERBRAND CABINETS, INC., PURCHASER: CITY OF WATERLOO, IOWA, a Delaware corporation a municip - orporation D-2 CH ICAGO/#2192202.7/TEM P.TEMPORARY 10:OOAM By Its: Date: