Illinois Conservative Network Revokes Patrick Hughes Endorsement

http://illinoisconservative.wordpress.com/2010/01/15/ican-switches-endorsement-to-don-lowery-for-u-s-senate/

ICAN Switches Endorsement to Don Lowery for U.S. Senate

January 15, 2010 by Jerry McDaniel

One of the most important Illinois races in the 2010 elections will be the race for the U.S. Senate. Popular wisdom has the contest between the candidates of the liberal wing of the Republican establishment, Mark Kirk, and the more conservative wing, Patrick Hughes. It is quite possible that the best candidate for the people of Illinois is to be found outside the regular Republican establishment.

Dr. Stringer and I had the rare opportunity to meet with two Republican candidates this week that was both eye opening and informative. The meeting was with Don Lowery, running for the U.S. Senate and Joe Walsh, running for Congress in the Eighth Congressional District. Lowery is a former downstate judge and Walsh is a former teacher.

The meeting was wide ranging and open with “no holds barred”. Dr Stringer and I agreed afterwards that if Congress was made up of patriots like these two men, America would not be experiencing the problems we now face. If you are familiar with Dr. Stringer, or if you have been a fan of this website, you know that our focus is first and always on the Constitution as our last bastion of defense against socialism and in defense of liberty.

On Judge Lowery’s website, he answers the key question, “Will you uphold the Constitution of the United States as it was written and intended by our founding fathers?” His answer:

“Absolutely! The Constitution is like granite rock. It sets forth the foundation of our government and our country. The forefathers designed it as a living document to be amended through very definite procedures; it is not to be circumvented in the legislative process nor changed by the mere whimsy of public opinion. The strength of the Constitution has sustained America for over 200 years. Now, as much as ever, American citizens and public officials should be mindful that it is our Constitution that gives us our rights and also protects them. With each right, there is responsibility to preserve our form of government that gets its form and strength from the U.S. Constitution“.

That is a pretty unambiguous statement; however, I have found that when it comes to political declarations it is best to be somewhat of a “nit picker”. I also know that when you ask a skilled politician a direct question you are likely to get back an answer designed to provide the one you are looking for as deduced from the implication in the question. To avoid this, our meeting was held to a casual conversation with only one or two direct questions. Here is what we learned as it applies to the above quote.

The Constitution is a “living document” only in the sense that it is enduring and that the Founders made provisions for its updating with the Fifth Amendment. It’s fundamental meaning or authority is not changed by either “legislative process” or judicial opinion. Our unalienable “rights” come from God and not the Constitution, the Constitution’s purpose is to protect them. On these points both Lowery and Walsh agreed. They also agreed in believing that the problems we currently have in health care, education, out of control spending, marriage and family issues, abortion, etc. have their root causes in the departure of our government from the plan put forth by the Founders in the Constitution or in a departure from the principles found in the Declaration of Independence.

If you believe, as we do, that the crucial task for us as citizens is to help return our government to the Constitutional Republic it was intended to be, when you go to the polls on February 2, vote for Don Lowery for Senate and if you live in the Eighth District, Joe Walsh for Congress. The primaries are the place where we need to stand on principles, regardless of outcome. In the general election, we may have to be more pragmatic in order to avoid a more ruinous outcome, but in the primary, we have the freedom to vote 100% on principle. Make it count.

Patrick Hughes Tries to Evict an Old Lady From Her Farm

ELDA ARNHOLD, and BYZANTIO, LLC, Plaintiffs, v. OCEAN ATLANTIC WOODLAND CORPORATION, Defendant.

No. 99 C 7953

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION

132 F. Supp. 2d 662; 2001 U.S. Dist. LEXIS 2202

February 28, 2001, Decided

March 1, 2001, Docketed

DISPOSITION: [**1] Defendant's Motion to Enforce Settlement Agreement DENIED.

CASE SUMMARY:

PROCEDURAL POSTURE: Defendant corporation filed a motion to enforce a settlement agreement entered into by defendant and plaintiff corporation regarding the purchase and sale of a piece of property.

OVERVIEW: Plaintiff corporation and defendant corporation entered into a settlement agreement regarding the purchase and sale of a piece of property. Defendant subsequently filed a motion to enforce the settlement agreement, claiming that it complied with the settlement agreement and that the purchase and sale of the subject property was required under the agreement. Plaintiff countered that defendant breached a provision of the agreement by failing to close by the required date, and, thus, the settlement agreement was terminated. The court denied the motion, holding that, because defendant failed to comply with an essential provision of the settlement agreement, the agreement was terminated, and defendant had no rights with respect to the subject property.

OUTCOME: Motion was denied because defendant corporation failed to comply with an essential provision of the settlement agreement, and, thus, the agreement was terminated.

COUNSEL: For ELDA ARNHOLD, BYZANTIO, LLC, plaintiffs: Ann C. Tighe, Theodore Thomas Poulos, Cotsirilos, Stephenson, Tighe & Streicker, Chicago, IL.

For ELDA ARNHOLD, plaintiff: John F Argoudelis, Dinverno & Foltz, Oak Brook, IL.

For ELDA ARNHOLD, plaintiff: George F. Mahoney, III, David Jon Silverman, Daniel F. D'Attomo, Gary K. Davidson, Mahoney, Silverman & Cross, Ltd., Joliet, IL.

For ELDA ARNHOLD, BYZANTIO, LLC, plaintiffs: Edward Petka, Plainfield, IL.

For BYZANTIO, LLC, plaintiff: Michael C. Foltz, John F Argoudelis, Dinverno & Foltz, Oak Brook, IL.

For OCEAN ATLANTIC WOODLAND CORPORATION, defendant: Michael Joseph Hayes, Michael J. Koenigsknecht, William Patrick Farrell, Jr., Gardner, Carton & Douglas, Chicago, IL.

For OCEAN ATLANTIC WOODLAND CORPORATION, defendant: Patrick Joseph Hughes, Law Office of Patrick J. Hughes, Chicago, IL.

JUDGES: ARLANDER KEYS, United States Magistrate Judge.

OPINION BY: ARLANDER KEYS

OPINION

[*663] MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Ocean Atlantic Woodland Corporation's ("Ocean Atlantic") Motion to Enforce Settlement Agreement. Because the Court finds [**2] that Ocean Atlantic breached a material term of the Settlement Agreement, and for the reasons set forth below, Ocean Atlantic's Motion is denied with prejudice. Furthermore, the Court finds that the Settlement Agreement, entered into between the parties on October 26, 2000, has been properly terminated, pursuant to its terms, and accordingly, Ocean Atlantic has no rights with respect to the Property at issue in the case sub judice.

FACTUAL BACKGROUND

This controversy illustrates the truth inherent in the cliche: "There are two sides to every story." After reading Ocean Atlantic's Memorandum in Support of its Motion To Enforce Settlement Agreement ("Def.'s Memo."), the Court was led to believe that there was no significant context to paragraph 15 ¹ of the October 26, 2000 Settlement Agreement, and that, therefore, Ocean Atlantic's noncompliance with the unambiguous terms of this paragraph was merely technical, and certainly not a material breach. However, after reading Plaintiff's Response, and carefully observing the testimonial demeanor of the witnesses at the February 14-15, 2001 hearing, the Court finds that paragraph 15 was not drafted in a vacuum, but rather has [**3] an almost four-year contentious history, and was certainly an essential (if not "the" essential) term of the Settlement Agreement.

1 Paragraph 15 of the Settlement Agreement, which is at the crux of this controversy, states: "It is intended by Sellers and Purchasers that January 25, 2001 shall be an absolute final date for Closing subject only to Sellers' default, as found by the Court, or Sellers' failure to participate in or fully cooperate with Purchaser to effectuate the Closing on the date selected by Purchaser, as found by the Court. If Closing has not occurred on or before January 25, 2001, for any reason other than Sellers' default, as found by the Court, or Sellers' failure to participate in or fully cooperate as set forth herein, as found by the Court, Purchaser shall have no right to purchase or otherwise encumber the Property or Homestead parcel, the Contract shall be terminated and Purchaser shall have no rights with respect to the Property or Homestead Parcel." (October 26, 2000 Settlement Agreement at P 15.)

[**4] While Ocean Atlantic requests the Court to enforce a Settlement Agreement that [*664] was entered into between the parties on October 26, 2000, the parties' real controversy, undisputedly, began in August 1997. This almost four-year raging battle, culminating in the year 2000 Settlement Agreement, concerns the purchase and sale of a certain parcel of farm land containing approximately 280.27 acres of land located in Plainfield Township, Will County, Illinois (hereinafter referred to as the "Property"). In order to fully understand the context surrounding the 2000 Settlement Agreement, it is necessary to give a brief synopsis of the ongoing disputes between the parties.

A. The Context Behind the Year 2000 Settlement Agreement

The Plaintiffs are Elda Arnhold, a 78-year-old woman and life-long farmer who owns and lives on her family farm outside of Plainfield, and Frank Argoudelis, also a life-long farmer, and his family ("Byzantio") who own a farm adjoining the Arnhold farm. On August 6, 1997, the Arnhold and Argoudelis families (hereinafter referred to collectively as the "Sellers" or "Plaintiffs") entered into a contract to sell their farm land (i.e. the Property) to Ocean Atlantic, [**5] a large land development company, for the purchase price of $ 7,560,000. This original contract contemplated an initial closing by November, 1997, and required that the initial closing, or specified conditions for closing, occur no later than August 6, 1998, or either party would have the right to terminate the contact. ²

2 The initial contract contemplated three separate closings regarding three separate parcels of the Property. The contract stated that, if the "First Closing" had not occurred - or if the conditions for closing had not been satisfied - within 12 months of the contract's effective date (which was August 6, 1997), then either party had the right to terminate the contract. (See Plaintiffs' Response, Exh. A, at 8(g)). As explained infra, the First Closing did not occur by August 6, 1998, and the initial contract was amended several times to extend the deadlines set forth in the contract.

Not surprisingly, the First Closing did not occur on August 6, 1998. According to Plaintiffs, Ocean [**6] Atlantic did not work diligently to facilitate closing and, consequently, failed to meet the deadlines set forth in the contract. Ocean Atlantic, on the other hand, claims that Plaintiffs refused to cooperate with needed steps to facilitate the First Closing. ³ Despite the abundant hearing testimony concerning these issues, it is not germane to the present controversy as to whom was at fault in these initial disagreements. The critical point is that, in 1998, the parties' business relationship deteriorated, and the First Closing did not occur. (Tr. at 100.) ⁴

3 The contract called for closing to occur after completion of certain events such as rezoning, annexation of the Property to the Village of Plainfield, and other developmental steps needed to transform the raw acreage into lots.

4 References are to the official transcript of the February 14-15, 2001 hearing.

Nevertheless, the parties agreed to a series of date extensions, which were embodied in the First Amendment, executed on November 10, 1997 ⁵ [**7] (Plaintiff's [*665] Exh. 2 ⁶ ), and then a Second Amendment, executed on or about April 14, 1999 (Plaintiff's Exh. 1). The Second Amendment extended the First Closing date to no later than November 30, 1999, but, once again, the First Closing did not occur by this date. According to Plaintiffs, Ocean Atlantic failed to abide by its promises and obligations, for example, by failing to seek final engineering approval from the Village of Plainfield, which would have triggered a mandatory closing date within 30 days thereafter. Conversely, on or about November 8, 1999, Ocean Atlantic maintained that the Village of Plainfield had imposed, on August 23, 1999, a moratorium on sewer permits until December 2001, which necessitated an extension of the November 30, 1999 closing date. ⁷

5 Apparently, after the First Amendment, Ocean Atlantic filed a federal lawsuit, in November 1998, requesting specific performance for Plaintiffs to sign the petition and annexation agreement, a necessary step for closing pursuant to the contract and First Amendment. According to Plaintiffs, they signed the petition and annexation agreement on December 1, 1998 (Pl.'s Exh. 6), but were, nonetheless, still served with the lawsuit in January 1999. (Tr. at 32, 292.) In April 1999, Ocean Atlantic voluntarily dismissed the lawsuit (and the Second Amendment was executed). The only relevance of this dispute to the present controversy is that it underscores the tension between the parties, and further illustrates, as will be discussed in more depth infra, that a specific closing date was always important to Plaintiffs. For instance, paragraph 13 of Ocean Atlantic's Complaint for Specific Performance, in case No. 98 C 7140, states that Plaintiffs refused to execute the necessary petition and annexation agreement unless Ocean Atlantic committed to a first closing date no later than December 31, 1998. Therefore, as early as November 1998, Ocean Atlantic knew that Plaintiffs were insistent on specific dates for closing.

[**8]

6 References to "Pl.'s Exh." or "Def.'s Exh." are exhibits that were entered into evidence at the hearing held on February 14-15, 2001.

7 Plaintiffs dispute that there was a "sewer moratorium" in effect in the Village of Plainfield. (Tr. at 299-301.) Again, it is irrelevant to the present controversy whether there was, indeed, a sewer moratorium that legitimately prevented the closing from occurring by November 30, 1999. As explained infra, Judge Holderman denied summary judgment on this issue, finding that there were factual issues surrounding whether there was a sewer moratorium. The overriding point is that the parties entered into an October 26, 2000 Settlement Agreement, which waived the past controversies, including the issue of the alleged sewer moratorium, and allowed one last chance to complete the closing by a "drop-dead" specified date.

Believing that Ocean Atlantic was concocting yet another delay tactic, on November 22, 1999, Plaintiffs filed a lawsuit in federal court for declaratory judgment that the contract would be terminated if the First Closing did not occur by [**9] November 30, 1999, pursuant to the Second Amendment. Ultimately, Judge Holderman denied Plaintiffs' summary judgment motion, and in the Fall of 2000, the parties settled the lawsuit by entering into the October 26, 2000 Settlement Agreement (also referred to as the Third Amendment), the relevant document at issue in this case.

B. The Settlement Agreement and Ensuing Controversy

A few days before the scheduled trial, the parties entered into the Settlement Agreement, and Plaintiffs dismissed their lawsuit with prejudice. Although Plaintiffs and Ocean Atlantic insist that different parts of the Settlement Agreement were material and significant, the Court finds, based on the almost four-year contentious background between the parties, the circumstances surrounding the execution of the Settlement Agreement (including letters written back and forth between the parties in negotiating the Settlement Agreement (discussed infra)), and the testimony at the hearing, that the following were material aspects of the Settlement Agreement: (1) there would be one closing for the full purchase price of the Property (as opposed to three, as the initial contract had contemplated); (2) [**10] there would be a final, "drop-dead" date for closing, the language of which was encompassed in paragraph 15; and (3) the issue of the sewer moratorium would be waived.

According to Plaintiffs, they would not have entered into the Settlement Agreement - and, correspondingly, dismissed their lawsuit with prejudice - if Ocean Atlantic had not agreed to paragraph 15, which stated in no uncertain terms that January 25, 2001 would be a final, absolute date for closing. (Tr. at 305-06, 313.) After an almost four-year relationship, involving several ineffectuated closing dates, two amendments to the initial contract, and two federal lawsuits, Plaintiffs wanted the certainty that by one particular date (in this case, January 25, 2001) ⁸, either a [*666] closing would occur, or the contract would be terminated. Indeed, the whole premise behind their lawsuit for declaratory judgment stemmed from Ocean Atlantic's failure to close by November 30, 1999, as set forth in the Second Amendment. Therefore, it is entirely believable that Plaintiffs would not have settled the lawsuit - and dismissed it with prejudice - unless they were guaranteed an absolute, final, "drop-dead" date for closing in the Settlement [**11] Agreement.

8 As explained by Mr. Argoudelis at the hearing, the specific date of January 25, 2001 - which was chosen by Ocean Atlantic - was not important per se. Rather, the significance lay in the certainty that, whatever date was selected, that date would become the final, "drop-dead" date. (Tr. at 325-26, 329.)

Besides the unambiguous language of paragraph 15, Plaintiffs' insistence on a final, "drop-dead" closing date can be gleaned from the correspondence between the parties during the settlement negotiations. For example, in a September 7, 2000 letter from William Farrell, counsel for Ocean Atlantic, to Theodore Poulos, counsel for Plaintiffs, Mr. Farrell acknowledged that Plaintiffs would consider settlement only if the agreement included: (1) an amendment to the existing contract setting a closing date or dates without the possibility of extensions or delays; (2) the absolute right of Plaintiffs to terminate the contract in the event of failure to close on the set closing date(s); (3) that such [**12] closing date(s) would occur "quickly"; and (4) that payment of the full purchase price would be made at closing. ⁹ (Pl.'s Response, Exh. D, Sept. 7, 2000 letter; Tr. at 308.) In this same letter, Mr. Farrell represented that Ocean Atlantic would agree to settlement on terms that included the following:

Ocean Atlantic will agree that failure to close within 45 days ¹⁰ of the execution of the amendment [i.e. settlement] shall result in Plaintiffs' unequivocal right to terminate the contract.

Id.

9 Ocean Atlantic attempts to minimize the significance of January 25, 2001 as a "drop-dead" date, by arguing that its selection was arbitrary, as evidenced, in part, by Mr. Argoudelis' hearing testimony that there was no particular significance to January 25, 2001, and that Plaintiffs likely would have agreed to January 26, 2001 as the "drop-dead" date. (Tr. at 228-31, 325-26.) Ocean Atlantic further contends that the key point of the Settlement Agreement was that a closing date be selected "quickly" (meaning approximately 90 days after the execution of the Settlement Agreement), and that the entire purchase price be paid at one closing. (Tr. at 229-30.) Despite Ocean Atlantic's attempt to minimize the significance of January 25th, the pivotal point is that, once Ocean Atlantic selected January 25, 2001 as the absolute, final "drop-dead" date, then January 25, 2001 became significant and material to the Settlement Agreement.

[**13]

10 As explained infra, the 45 days was ultimately changed to 90 days, and the "drop-dead" date of January 25, 2001 was actually 91 days after the execution of the Settlement Agreement.

As the parties finalized the specific terms of the Settlement Agreement, the significance of the "drop-dead" date for closing continued to be emphasized. In an October 23, 2000 letter to Ocean Atlantic's counsel, for instance, counsel for Sellers stated that an essential and material term of any settlement was that "if Ocean Atlantic, for any reason whatsoever, fails to close on the property within 90 days from the execution of [the] settlement document, it shall forfeit any and all rights it may have to purchase the property." (Pl.'s Response, Exh. E, Oct. 23, 2000 letter.) Significantly, in response, Ocean Atlantic sent Sellers a draft settlement agreement, which contained the precursor to paragraph 15 of the final Settlement Agreement, which stated:

13. If Closing has not occurred on or before January 25, 2001, for any reason other than Seller's failure to participate in a scheduled Closing, the [**14] Contract, as amended, shall terminate. It is intended by Sellers and Purchasers that January 25, 2001 shall be an absolute final date for Closing and control over any other provision herein.

(Pl.'s Response, Exh. F. Oct. 23, 2000 draft settlement agreement.) By comparison, [*667] paragraph 15 of the final Settlement Agreement reads:

It is intended by Sellers and Purchasers that January 25, 2001 shall be an absolute final date for Closing subject only to Sellers' default, as found by the Court, or Sellers' failure to participate in or fully cooperate with Purchaser to effectuate the Closing on the date selected by Purchaser, as found by the Court. If Closing has not occurred on or before January 25, 2001, for any reason other than Sellers' default, as found by the Court, or Sellers' failure to participate in or fully cooperate as set forth herein, as found by the Court, Purchaser shall have no right to purchase or otherwise encumber the Property or Homestead parcel, the Contract shall be terminated and Purchaser shall have no rights with respect to the Property or Homestead Parcel.

(October 26, 2000 Settlement Agreement at P 15.)

Therefore, Ocean Atlantic helped draft [**15] the very language that it now attacks as not material to the Settlement Agreement. Clearly, Ocean Atlantic knew - from the settlement negotiations - that a final, "drop-dead" closing date had to be an integral part of any final settlement agreement. Recognizing this, Ocean Atlantic drafted language that it hoped would motivate - or entice - Plaintiffs into settling the lawsuit.

On January 3, 2001, consistent with the provisions set forth in the Settlement Agreement, Ocean Atlantic selected January 24, 2001 - one day before the "drop-dead" date provided for in the Settlement Agreement - as the closing date. Although Ocean Atlantic had approximately seventy specific days from which to choose for its closing (before January 25, 2001), it chose the day before the last to commence closing. ¹¹

11 During the hearing, Mr. Farraguto, President of Ocean Atlantic, tried to explain why, essentially, 69 of those 70 days would not have worked as closing dates, as Ocean Atlantic needed time to coordinate the closing, which now involved paying the full purchase price for the Property in one closing (as opposed to three). (Tr. at 37-38, 179-80.) But, unclear to the Court (and apparently to Plaintiffs), is why Ocean Atlantic chose January 24, 2001 as the closing date, and otherwise agreed to a "drop-dead" final date for closing of January 25, 2001, if it knew that the complexity of the deal - encompassing loan guarantees, etc. - would likely - or even could potentially - pose a timing problem. In any event, as explained in more detail infra, Mr. Farraguto's testimony was largely incredible, and will only be credited to the extent that it is consistent with other evidence before the Court.

[**16] At all times, Plaintiffs made it explicitly clear that the closing needed to be finalized by the "drop-dead" date of January 25, 2001, as set forth in the Settlement Agreement. In a January 22, 2001 letter, Plaintiffs' counsel reaffirmed to Ocean Atlantic the significance of the "drop-dead" closing date: "If the closing does not occur in accordance with the terms of the settlement agreement, your clients will have no rights whatsoever to the property after January 25, 2001 as clearly spelled out in that same settlement agreement." (Pl.'s Response, Exh. J, Jan. 22, 2001 letter from Theodore Poulos to William Farrell.) Significantly, Ocean Atlantic - on that same day - acknowledged, by letter, the importance of closing on or before January 25, 2001: "Please be advised that Ocean Atlantic will fully participate in the scheduled closing this Wednesday [January 24, 2001] at 9:00 a.m. pursuant to the settlement agreement." (Pl.'s Response, Exh. K, Jan. 22, 2001 letter from William Farrell to Theodore Poulos.)

Nonetheless, closing did not occur on January 24, 2001 - the day selected by Ocean Atlantic - nor January 25, 2001, the absolute, final "drop-dead" date in the Settlement Agreement. [**17] It is undisputed that Plaintiffs (i.e. the Sellers) were entirely ready, willing and able to close on January 24, 2001. ¹² They arrived at 9:00 a.m. at [*668] Chicago Title and Trust Company in Wheaton, Illinois to close pursuant to the Settlement Agreement. On January 24, 2001, at 7:00 p.m., Plaintiffs were informed that the closing would not occur, as the funds would not be deposited in escrow that day. (Tr. at 322.) Yorkville National Bank - Ocean Atlantic's lender - had refused to give Ocean Atlantic the necessary loan, until Ocean Atlantic provided additional security in the form of a written guarantee from a third-party entity located in New York City (Black Acre Capital Group). (Tr. at 71.) Consequently, because Ocean Atlantic had not perfected its security, the funds were not placed in the escrow account for disbursement on January 24th - the day Ocean Atlantic had selected for the closing - nor on January 25, 2001, the absolute, final "drop-dead" date for closing. ¹³

12 Although Mr. Farraguto insinuated, at one point during the hearing, that Plaintiffs were in some way at fault in the failure to close on January 24, 2001 (Tr. at 109), his own attorneys admit that Plaintiffs fully cooperated with the closing on January 24, 2001. As explained infra, Mr. Farraguto's testimony is largely incredible, and the Court will dismiss his subtle accusations that Plaintiffs were, at some level, not fully cooperating. Indeed, there is evidence that Ocean Atlantic - perhaps, foreseeing that closing would be a problem on January 24, 2001 - tried to change material terms of the Settlement Agreement in the weeks before the "drop-dead" closing date. On January 18, 2001, for instance, Ocean Atlantic sent a letter to Sellers, claiming, for the first time, that Sellers were responsible for paying approximately $ 680,000 in development fees. (See Pl.'s Response, Exh. G, Draft Closing Statement; Tr. at 75-76, 314-16.) At one point, according to Mr. Argoudelis, Ocean Atlantic offered to drop its demand for the development fees if Sellers would agree to extend the closing date to May 1, 2001. (Tr. at 317.) Since paying these fees had never been discussed, nor embodied in the Settlement Agreement, Sellers refused to acquiesce, and ultimately (probably realizing the inherent weakness in trying to extort nearly 10% of the purchase price on the eve of closing), Ocean Atlantic retreated from this demand. (Id.) Moreover, there is evidence that, on January 24, 2001, Ocean Atlantic offered Plaintiffs approximately $ 200,000 (which they rejected) if they would agree to extend the "drop-dead" closing date to sometime in May. (Tr. 119, 321-23.) The point of these examples is that it was Ocean Atlantic - not Plaintiffs - that tried to alter material terms of the Settlement Agreement in the weeks before the absolute, final "drop-dead" date of January 25, 2001.

[**18]

13 Ocean Atlantic maintains that it had no way of foreseeing that its lender, Yorkville National Bank, would require additional security in the form of a third-party guarantee. (Tr. at 43-44.) Assuming this is true (the Court has its doubts), it is immaterial. Ocean Atlantic is a large, experienced land development company and either should not have waited until January 24, 2001 to commence closing, or should not have agreed to a final, "drop-dead" closing date of January 25, 2001, if it had any doubts as to whether it would be able to complete the necessary paperwork by this time.

Ocean Atlantic fervently maintains that it worked diligently from January 24, 2001 to January 26, 2001 to effectuate the closing, and that the process was completed on January 25, 2001 - with one exception: disbursement of the purchase funds to Sellers was not possible until January 26, 2001. ¹⁴ On January 26, 2001, however, Plaintiffs informed Ocean Atlantic that they were terminating the Settlement Agreement pursuant to its terms in paragraph 15, and that Ocean Atlantic had forfeited all rights to the Property. [**19]

14 Incredulously, Mr. Farraguto emphasized, at the hearing, that Ocean Atlantic had the check written out to Plaintiffs for the full purchase price of the Property on January 24, 2001 (see Def.'s Exh. 1), thereby insinuating that Ocean Atlantic had met its obligations to close under the Settlement Agreement. (Tr. at 41.) When the Court asked Mr. Farraguto if Plaintiffs could have negotiated, or deposited the check that day, Mr. Farraguto "clarified" and said that the check could not be released on January 24, 2001. (Id.)

On February 7, 2001, Ocean Atlantic filed its Motion to Enforce the Settlement Agreement, the present Motion before the Court. On February 13, 2001, Plaintiffs filed their Response, which provided the necessary background to the Settlement Agreement (and the other side to the story). On February 14 and 15, 2001, this Court held an evidentiary hearing, and heard from Mr. Farraguto, Ocean Atlantic's President, and Mr. Argoudelis, one of the Plaintiffs and an attorney of record for [*669] Plaintiffs. [**20] Both parties filed post-hearing briefs. The Court, after fully considering the briefs and the hearing testimony, concludes that Ocean Atlantic breached a material term of the Settlement Agreement, and accordingly, has forfeited all rights to the Property.

Before delving into the legal analysis, the Court will first comment on the hearing testimony provided by Mr. Farraguto and Mr. Argoudelis. After carefully observing the testimonial demeanor of both witnesses, the Court finds that the testimony of Mr. Farraguto was largely incredible, ¹⁵ and that the testimony of Mr. Argoudelis was entirely credible and consistent with the other evidence before the Court. Therefore, to the extent Mr. Farraguto and Mr. Argoudelis' testimony conflicts, the Court credits Mr. Argoudelis' testimony.

15 While there is practically a cornucopia of examples from which to choose, the Court provides a few examples of Mr. Farraguto's contradictions and misstatements at the hearing: Although Ocean Atlantic's attorneys tendered affidavits from Daniel J. Kramer, an attorney for Yorkville National Bank (Def.'s Exh. 3), and Gail Lulling, a closing officer at Chicago Title (Def.'s Exh. 4) stating that the loan proceeds were not deposited into escrow and available for disbursement until January 26, 2001, Mr. Farraguto, at the hearing, testified on direct examination that the money was actually put into escrow in the afternoon of January 25, 2001. (Tr. at 47.) On cross-examination, when confronted with these affidavits submitted by his own attorneys, he admitted that the money was not put into escrow until January 26, 2001. (Tr. at 110-11.) Of course, when the money was available for Plaintiffs to complete closing is the key issue in this controversy, and certainly Mr. Farraguto knew that the money was not placed in escrow and ready for disbursement until January 26, 2001. Furthermore, despite being an experienced real estate developer (Tr. at 24), Mr. Farraguto refused to admit that the definition of "closing" involved the purchaser giving a check (that could be cashed) to sellers for the purchase price of the property. (Tr. at 105.) Mr. Farraguto also stated that he had "insisted that 'time is of the essence' be taken out [of the Settlement Agreement]." (Tr. at 118.) But, when pressed, Mr. Farraguto reluctantly admitted that this clause "time is of the essence" had never been in one of the original drafts of the Settlement Agreement. (Id.) While there are a myriad of other examples of Mr. Farraguto's less than candid answers, these provide a taste of his incredible testimony.

[**21] ANALYSIS

A motion to enforce a settlement agreement is essentially the same as a motion to enforce a contract. Capri Sun, Inc. v. Beverage Pouch Systems, Inc., 2000 U.S. Dist. LEXIS 10966, No. C. 1961, 2000 WL 1036016, at *2 (N.D. Ill. July 21, 2000) (citing Allstate Financial Corp. v. Utility Trailer of Illinois, Inc., 936 F. Supp. 525, 527 (N.D. Ill. 1996)). Assuming that it has jurisdiction to enforce a settlement agreement, ¹⁶ a federal court will look to the applicable state law in construing the terms of the agreement. Id. In Illinois, ordinary contract construction rules apply to a settlement agreement. Id.

16 In the case sub judice, the Court has proper jurisdiction pursuant to 28 U.S.C. § 1332 based upon complete diversity of citizenship between Ocean Atlantic and Plaintiffs.

The crux of this case is whether paragraph 15 of the Settlement Agreement, which provides, in pertinent part, that, "January 25, 2001 shall be an absolute, final date for Closing" [**22] and that if "Closing has not occurred on or before January 25, 2001 . . . Purchaser shall have no right to purchase or otherwise encumber the Property", is a material part of the contract, thereby justifying non-performance by Plaintiffs, because of Ocean Atlantic's breach of that provision. See Arrow Master, Inc. v. Unique Forming Ltd., 12 F.3d 709, 714 (7th Cir. 1993) (stating black letter law that, in Illinois, only a material breach of a contract justifies non-performance by the other party). Under Illinois law, in determining whether failure of performance constitutes a material breach of the contract provision, the court asks whether performance of that provision was a sine qua non of the contract's fulfillment. Id. at 715; (citation omitted). [*670] In other words, would the parties have entered into the contract (in this case, the Settlement Agreement) without the particular provision at issue in the contract (in this case, paragraph 15).

In the case sub judice, there is no question that Plaintiffs would not have entered into the Settlement Agreement without paragraph 15, which unequivocally states that, "it is intended by Sellers and [**23] Purchaser that January 25, 2001 shall be an absolute final date for Closing." (Emphasis added.) Indeed, it is black letter law in Illinois that "the primary object in construing a contract is to give effect to the intention of the parties." Arrow Master, supra at 713 (citation omitted)(emphasis added). And, in the case at bar, paragraph 15 clearly states the intention of the parties. In fact, Mr. Farraguto, despite his best efforts, admitted as much at the hearing, conceding that one of the three reasons for the Settlement Agreement was for the closing to occur on or before January 25, 2001. (Tr. at 116.) Importantly, there is no law in Illinois that a contract cannot have more than one material provision.

Additionally, assuming that the language of paragraph 15 is ambiguous (which it is not), the prior dealings and almost four-year contentious history between the parties illustrates that uparagraph 15 was a material part of the contract. For instance, during settlement negotiations, the correspondence between the parties (discussed supra) clearly illustrates that Plaintiffs were primarily concerned with having a final, absolute date to close, as their [**24] lawsuit for declaratory judgment (which they subsequently dismissed with prejudice because of the Settlement Agreement) was solely concerned with Ocean Atlantic's refusal to close by November 30, 1999, pursuant to the Second Amendment. Quite telling is that Ocean Atlantic helped draft the precursor to paragraph 15, using language such as: "It is intended by Sellers and Purchasers that January 25, 2001 shall be the absolute final date for Closing and control over any other provision herein." (Pl.'s Response, Exh. F. Oct. 23, 2000 draft settlement agreement.) ¹⁷

17 Furthermore, as discussed supra, as early as November 1998, Ocean Atlantic knew that Plaintiffs wanted a final closing date, as Ocean Atlantic stated as much in paragraph 13 of its Complaint for Specific Performance in case No. 98 C 7140. In addition, Mr. Farraguto, on cross-examination, admitted that Mr. Argoudelis had told him, prior to November 30, 1999 (probably in October 1999), that if Ocean Atlantic did not complete the First Closing by November 30, 1999, Plaintiffs believed that they had a right to terminate the contract. (Tr. at 88-89.) There is also evidence that Mr. Petka (attorney of record for Plaintiffs) sent a letter to Mr. Farraguto, in August 1998, stating that ". . . time is of the essence in connection with the setting of a closing date . . .". (Tr. at 186-87.) Therefore, it is quite clear that Mr. Farraguto knew, in 1998, that setting a final closing date was a top priority for Plaintiffs.

[**25] Ocean Atlantic, and Mr. Farraguto, apparently believe that the failure of paragraph 15 to state the talismanic phrase "time is of the essence" is significant, and defeats the otherwise unambiguous language of the parties. (Tr. at 132-33, 167, 181, 255.) However, this argument is simply not the law in Illinois. Indeed, it is axiomatic under Illinois law that "the precise phraseology is not important, and the intention of the parties as expressed by the agreement controls." Will v. Will Products, Inc., 109 Ill. App. 3d 778, 441 N.E.2d 343, 346, 65 Ill. Dec. 430 (Ill. App. Ct. 1982); see also Anest v. Bailey, 198 Ill. App. 3d 740, 556 N.E.2d 280, 283, 144 Ill. Dec. 813 (Ill. App. Ct. 1990) ("The court's inquiry cannot end with the mere recitation of contractual language stating that time is of the essence of the contract. As we have previously noted, the extent to which such a contractual provision should be strictly enforced depends upon the parties' intentions, which are to be determined both by the language used in the agreement and the circumstances surrounding the agreement."; Janssen Bros., Inc. v. Northbrook Trust & [*671] Sav. Bank, 12 Ill. App. 3d 840, 299 N.E.2d 431, 434 (Ill. App. Ct. 1973) [**26] ("The settlement agreement before us contained no express provision that time was of the essence, but the precise phraseology is not controlling. Parties to a contract may make timely performance material even though there is no express provision to that effect."); O'Malley v. Cummings, 86 Ill. App. 2d 446, 229 N.E.2d 878, 880 (Ill. App. Ct. 1967) ("The parties to a contract may make timely performance material even though there is no express provision to that effect.").

Therefore, even if the Settlement Agreement had contained the magical phrase "time is of the essence", this would not be dispositive or end the inquiry, as the Court would still need to look at the parties' intentions, the language of paragraph 15, and the surrounding circumstances - all of which, in this case, clearly show that time really was of the essence. Indeed, it is hard to imagine alternative language for paragraph 15 that could be clearer. Even Mr. Farraguto, again despite his best efforts, reluctantly admitted that the phrase "time is of the essence" actually means "absolute final dates." (Tr. at 184.) ¹⁸

18 Ocean Atlantic, quoting Sahadi v. Continental Illinois National Bank and Trust Co. of Chicago, 706 F.2d 193, 198 (7th Cir. 1983), also argues that time requirements, even when attached to explicit termination provisions, are by nature "accessory" rather than central aspects of most contacts. But, it is undisputed that, in Illinois, contracts may make a time requirement an essential part of the bargain. Indeed, in In re Krueger, 192 F.3d 733, 742 (7th Cir. 1999), the Seventh Circuit explicitly held that, under Illinois law, parties to a contact "may make timely performance a material element of the contract."

[**27] Ocean Atlantic relies on easily distinguishable cases to argue that its breach was non-material and should not excuse Plaintiffs' performance. For instance, Ocean Atlantic relies on Intervisual Communications, Inc. v. Volkert, 975 F. Supp. 1092, 1100 (N.D. Ill. 1997), for the well-known proposal that a minor, non-material breach does not preclude specific performance of contractual duties. But, Intervisual, as with all the cases Ocean Atlantic cites, must be considered in its appropriate context. ¹⁹ In Intervisual, this Court concluded that the plaintiff had waived his right to assert a breach based on the late payment of royalties, because he had acquiesced to late payments in the past. Id. at 1101. In the case sub judice, however, there is no issue of waiver, as a final closing date has always been a principal concern of Plaintiffs, as evidenced by the Second Amendment, declaratory judgment action, and Settlement Agreement - as well as the correspondence (discussed supra) written just days before January 25, 2001. Additionally, in Intervisual, this Court held that, even if there had been no waiver, it was highly unlikely that [**28] the agreement would have turned on the condition that all royalty payments be made within thirty days. Id. at 1101. Again, in the case at bar, it is quite apparent that Plaintiffs would never have dismissed their lawsuit with prejudice, and entered into the Settlement Agreement, if paragraph 15 - providing for a final, absolute closing date - had not been included.

19 Markoff-Fitzgerald Ass'n, Inc. v. Sable Corp., 1990 U.S. Dist. LEXIS 2875, No. 85 C 9184, 1990 WL 37669 (N.D. Ill. March 14, 1990) and Sahadi, supra, - other cases that Ocean Atlantic cites - can also be distinguished from the present controversy. Neither of these cases involve real estate contracts where closing dates had been pushed back numerous times. (Markoff-Fitzgerald concerns a garnishment action under the Illinois garnishment statute, and Sahadi concerns a failure to timely pay accrued interest on a loan agreement.)

Similarly, Chariot Holdings, Ltd. v. Eastmet Corp., 153 Ill. App. 3d 50, 505 N.E.2d 1076, 106 Ill. Dec. 285 (Ill. App. Ct. 1987) [**29] is distinguishable from the present controversy. In Chariot Holdings, although there was a contract provision that stated that closing must occur by a certain date or termination would result, there was no long and protracted relationship between the parties, where the closing date had been extended several times over the course of almost four years. Furthermore, there [*672] was no evidence that the closing date was an essential part of the contract. ²⁰

20 Moreover, as pointed out by Plaintiffs, Chariot Holdings actually supports Plaintiffs' position, in that it favorably cites Schneider v. Dumbarton Developers, Inc., 247 U.S. App. D.C. 217, 767 F.2d 1007 (D.C. Cir. 1985), a case strikingly similar to the one sub judice. In Schneider, a case with persuasive authority in this jurisdiction, the purchaser was given two postponements of the agreed-upon closing date, both of which the developer had failed to meet. After the purchaser announced that the sale had to be closed by a certain date - or the agreement would terminate - the developer failed to close a third time, and the purchaser sued to have the contract declared void. Similar to the case at hand, the parties in Schneider settled their controversy pursuant to a settlement agreement, in which the purchase had to be completed by or on a certain date, providing that, "the time for settlement may not be further extended for any reason whatsoever" and that time was of the essence. 767 F.2d at 1013. Although the purchasers were willing, ready and able to close at all times within the period allotted for closing (as in the case sub judice), the developer chose the last day allowed as the closing date. Identical to the case at hand, problems arose, and the developer was unable to deposit sufficient funds to complete the closing by the last day specified in the settlement agreement. Although the developer argued that its actions constituted substantial performance (after all, it was the disbursement of funds that was not completed), the trial court, nonetheless, held that the agreement was terminated, and the appellate court affirmed, arguing, inter alia, that the circumstances surrounding the settlement agreement, as well as the clear language of the agreement, showed that the parties intended time of performance to be a material term of the contract. Id. at 1013-14. Chariot Holdings, recognizing the distinction between Schneider and its facts, concluded that Schneider arose "against a substantially different background than the one before us." Chariot Holdings, 505 N.E.2d at 1083. Clearly, the case sub judice is more akin to Schneider than Chariot Holdings, in that the present controversy involves an almost four-year contentious history, with several failed closing dates, and a Settlement Agreement that contains similar language as that in Schneider. (Ocean Atlantic's attempt to distinguish Schneider is largely unavailing, as the existence of a second breach by the developers (in addition to the failure to disburse funds) in failing to inform the seller who the grantee would be, does not distinguish the case in any significant way. There is no evidence that the court's holding in Schneider would have been different if there had just been one material breach (as opposed to two).)

[**30] Finally, Ocean Atlantic asks the Court to apply the four prong-test often used in Illinois courts to determine materiality: (1) whether the breach defeated the bargained-for objective; (2) whether the breach caused a disproportionate prejudice to the non-breaching party; (3) whether custom and practice show, the breach to be material; and (4) whether allowance of reciprocal non-performance would result in an unreasonable and unfair advantage to either party. See Arrow Master, 12 F.3d at 715 (citation omitted). These factors, however, do not detract from the fundamental materiality inquiry: whether the parties would have entered into the contract without the particular provision at issue. Id. at 714; see also Francorp, Inc. v. Siebert, 126 F. Supp. 2d 543, 547 (N.D. Ill. 2000) ("The materiality of a breach depends on the 'inherent justice of the matter,' and on whether 'the matter, in respect to which the failure of performance occurs, is of such a nature and of such importance that the contract would not have been made without it.'")(citation omitted).

Nonetheless, even if the Court were to apply these four factors, three of the four [**31] undoubtedly favor Plaintiffs. First, Ocean Atlantic's failure to complete closing by January 25, 2001 - the absolute, final date provided for in the Settlement Agreement - defeated the bargained-for objective of the contract. While Ocean Atlantic, essentially, argues that most of the objectives were met (i.e. a "fairly quick" closing, the purchase price paid at one - instead of three - closings, a waiver of the sewer moratorium), the overriding point is that all of the material objectives were not met. As explained in depth supra, Plaintiffs would not have entered into the Settlement Agreement without the assurance of the finality provided by paragraph 15.

The second factor arguably favors Ocean Atlantic, as Plaintiffs were not financially [*673] prejudiced by the one-day delay in payment, while Ocean Atlantic forfeits, at a minimum, the $ 150,000 spent on the storm water detention easement and the $ 100,000 in earnest money. ²¹ Nonetheless, the Court does not find this prejudice to outweigh the other factors, or to negate the fundamental question regarding materiality: would Plaintiffs have dismissed their lawsuit and entered into the Settlement Agreement without the inclusion [**32] of paragraph 15.

21 At the hearing and in their briefs, Ocean Atlantic argues that it spent approximately 1.7 million dollars in developmental and professional fees necessary to entitle, improve and develop the Property. (Tr. at 50-53, 56-57.) Plaintiffs dispute this amount. In support of the 1.7 million dollar amount, Ocean Atlantic tendered a demonstrative exhibit at the hearing (Def.'s Exh. 2), which lists thirty items that it argues it spent money on to develop the acreage into lots. Plaintiffs objected to this exhibit, as it did not provide the underlying support/ documentation to justify Ocean Atlantic's assertion that it spent 1.7 million dollars in fees. (Tr. at 54-55.) Recognizing that discovery had not occurred, the Court held that - to the extent it mattered in the ultimate analysis (which it does not) - the Court would find that Ocean Atlantic had spent some amount of money. (Tr. at 55.) Nevertheless, giving Ocean Atlantic the benefit of the doubt (i.e. assuming that it did spend 1.7 million in developmental fees), this fact, as explained infra, would not change the Court's ultimate conclusion that Ocean Atlantic materially breached the Settlement Agreement.

[**33] Furthermore, although equity does abhor forfeitures, Illinois law does allow forfeiture where the contract provides for it, as the Settlement Agreement in this case does. ²² See, e.g., Hettermann v. Weingart, 120 Ill. App. 3d 683, 458 N.E.2d 616, 620, 76 Ill. Dec. 216 (Ill. App. Ct. 1983) ("although courts of equity abhor forfeitures, where a forfeiture has been declared in the manner prescribed by the parties to a contract the court will give effect to the contract.") (quotations and citations omitted); Kirkpatrick v. Petreikis, 44 Ill. App. 3d 575, 358 N.E.2d 679, 680, 3 Ill. Dec. 281 (Ill. App. Ct. 1976) (contemplating forfeiture where there is a valid contract containing forfeiture clause and the buyer is found actually in default).

22 Since paragraph 15 unequivocally states that, if closing had not occurred by January 25, 2001, the "Purchaser shall have no right to purchase or encumber the Property" and that the contract "shall be terminated and Purchaser shall have no rights with respect to the Property", and because Ocean Atlantic agreed (and even helped draft) this language, being well aware that it had already spent arguably 1.7 million dollars in fees, the Settlement Agreement provides for a forfeiture.

[**34] The third factor overwhelmingly favors Plaintiffs. The "custom and practices" prong only strengthens Plaintiffs' case, as the "custom and practice" - or prior dealings of the parties - was that a final, "drop-dead" closing date was the most essential priority for Plaintiffs, given the contentious, almost four-year history, two federal lawsuits, and several date extensions. Furthermore, Ocean Atlantic's assertion that a "one-day delay in the performance of a complex commercial real estate transaction is not an unusual occurrence and, therefore, will not normally preclude specific performance" (Def.'s Post-Hearing Brief at 7) is completely disingenuous, because, in this particular case, the unambiguous language of paragraph 15 (as well as the prior dealings) made a "one-day delay" significant.

Finally, the Court does not find that non-performance by Plaintiffs would result in an unreasonable and unfair advantage to Plaintiffs. Although Ocean Atlantic argues that it would suffer "unconscionable prejudice," the Court is not persuaded by that argument. Ocean Atlantic is a sophisticated and experienced land development company, which has been represented by counsel since the beginning [**35] of this controversy in 1997. Ocean Atlantic made this same "prejudicial" argument in its 1998 lawsuit against Plaintiffs for specific performance (a lawsuit that it eventually voluntarily dismissed). Indeed, paragraph 20 of Ocean Atlantic's Complaint for Specific Performance in that case references its "extensive expenditure of time, effort and [*674] money to prepare the Property for development." It is now 2001, and Ocean Atlantic is, essentially, making the same argument. If Ocean Atlantic did not want to lose its investment, then it either should not have agreed to paragraph 15 of the Settlement Agreement, or it should have complied with paragraph 15 of the Settlement Agreement (or at least selected a closing date that was not one day before the final, "drop-dead" closing date).

Furthermore, it is immaterial that Plaintiffs might (and most likely will) be able to sell the Property for considerably more money than the agreed-upon purchase price. Indeed, Plaintiffs' reaping the benefits of Ocean Atlantic's efforts to improve the land is a risk that Ocean Atlantic voluntarily undertook when it agreed to - and then breached - paragraph 15 of the Settlement Agreement. The Court sees no equitable [**36] impediment to Plaintiffs asking Ocean Atlantic to, essentially, rebid on the Property. (Tr. at 241, 265.) After all, the contract, as of the date of this opinion, has been legally terminated. It appears that, based entirely on Ocean Atlantic's conduct in this case, it will not be realizing the 15-20 percent profit it typically makes on its ventures. (Tr. at 122.)

CONCLUSION

For the foregoing reasons, the Court denies Defendant's Motion to Enforce Settlement Agreement, and declares that the Settlement Agreement has been properly terminated, and that Defendant has no rights with respect to the Property.

IT IS THEREFORE ORDERED that:

Defendant's Motion to Enforce Settlement Agreement, be, and the same hereby is, DENIED.

DATED: February 28, 2001

Enter:

ARLANDER KEYS

United States Magistrate Judge

Patrick Hughes Tries to Evict a Christian School

OCEAN ATLANTIC DEVELOPMENT CORPORATION, Plaintiff-Appellant, v. AURORA CHRISTIAN SCHOOLS, INC., Defendant-Appellee. OCEAN ATLANTIC CHICAGO CORPORATION, Plaintiff-Appellant, v. DALE KONICEK, WAYNE KONICEK, LOIS KONICEK, and ISENSTEIN-PASQUINELLI, L.L.C. Defendants-Appellees.

No. 01-2239, No. 01-3400

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

322 F.3d 983; 2003 U.S. App. LEXIS 4523

November 26, 2001, Argued; January 23, 2002, Submitted

March 14, 2003, Decided

PRIOR HISTORY: [**1] Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 8160. Charles P. Kocoras, Chief Judge. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 5677. James F. Holderman, Judge.

Ocean Atl. Dev. Corp. v. Aurora Christian Schs., Inc., 2001 U.S. Dist. LEXIS 11112 (N.D. Ill., May 3, 2001)

Ocean Atl. Chi. Corp. v. Konicek, 2001 U.S. Dist. LEXIS 4698 (N.D. Ill., Mar. 6, 2001)

DISPOSITION: Affirmed.

CASE SUMMARY:

PROCEDURAL POSTURE: Plaintiffs, development companies, appealed decisions of the United States District Court for the Northern District of Illinois, Eastern Division, granting summary judgments to defendant landowners in cases where the development companies alleged that letter offers signed by the landowners constituted binding sales agreements. The two cases were consolidated for decision.

OVERVIEW: The development companies tendered letter offers to the owners of undeveloped land that they wished to purchase and the owners signed them. Each offer expressly anticipated that the parties would, in due course, sign a contract for the purchase and sale of the properties. However, the ensuing negotiations did not produce a final contract in either case. From the landowners' perspective, this meant that they had no obligation to sell their properties. The development companies sued, contending that the signed offers themselves constituted binding agreements that entitled them to purchase the properties on the terms stated therein. In one of the cases, the district court's basis for granting summary judgment to the landowner was that the unambiguous language of the offer revealed no intent by the parties to be bound by its terms. Subsequently, the district court in the second case adopted the first court's reasoning. On appeal, the court stated that the first and most reliable indicator of the parties' intent was what the parties wrote, and the terms of the offers disclosed an intent to be bound not by those preliminary writings but only by the contracts that were never signed.

OUTCOME: The judgments were affirmed.

COUNSEL: For OCEAN ATLANTIC DEVELOPMENT CORPORATION, Plaintiff - Appellant (01-2239): Patrick J. Hughes, William P. Farrell, Jr., GARDNER, CARTON & DOUGLAS, Chicago, IL USA.

For AURORA CHRISTIAN SCHOOLS, INCORPORATED, Defendant - Appellee (01-2239): John A. Lipinsky, COMAN & ANDERSON, Naperville, IL.

For OCEAN ATLANTIC CHICAGO CORPORATION, Plaintiff - Appellant (01-3400): William P. Farrell, Jr., Submitted, GARDNER, CARTON & DOUGLAS, Chicago, IL USA.

For DALE KONICEK, WAYNE KONICEK, LOIS KONICEK, Defendants - Appellees (01-3400): Bruce A. Brown, GOLDSMITH, THELIN, DICKSON & BROWN, Aurora, IL USA.

For ISENSTEIN-PASQUINELLI, L.L.C., Defendant - Appellee (01-3400): Ronald Cope, John F. Donahue, ICE, MILLER, DONADIO & RYAN, Chicago, IL.

JUDGES: Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit Judges.

OPINION BY: ROVNER

OPINION

[*984] ROVNER, Circuit Judge. In these two cases, which we have consolidated for decision, the Ocean Atlantic Development Corporation and the Ocean Atlantic Chicago Corporation ("Ocean Atlantic") tendered letter offers to the owners of undeveloped land that Ocean Atlantic wished to purchase and the owners signed those offers. Each offer expressly anticipated that the parties would, in due course, sign a contract for the purchase and sale of the properties. As it turned out, however, the ensuing negotiations did not produce a final contract in either case. From the property owners' perspective, this meant that they had no obligation to sell their properties to Ocean Atlantic. But Ocean Atlantic, believing otherwise, filed suit, contending that the signed offers themselves constituted binding agreements that entitled the [**2] company to purchase the properties on the terms stated in those offers. In Ocean Atlantic's suit against Aurora Christian Schools ("Aurora Christian"), now-Chief Judge Kocoras granted summary judgment in favor of Aurora Christian, reasoning that the unambiguous language of the offer revealed no intent by the parties to be bound by its terms. Subsequently, [*985] in Ocean Atlantic's suit against Dale, Wayne, and Lois Konicek and Isenstein-Pasquinelli, L.L.C., Judge Holderman adopted Judge Kocoras's reasoning, likewise concluded that the offer did not amount to a binding agreement, and granted summary judgment in favor of the defendants on that basis. Because we agree that in neither instance did the offer constitute a binding agreement to sell the land to Ocean Atlantic, we affirm.

I.

A. Aurora Christian Schools

Ocean Atlantic is a real estate development company that is incorporated in Virginia and maintains its principal place of business in Alexandria, Virginia. Ocean Atlantic has purchased and developed land in DuPage, Kane, and Will Counties--three of the suburban "collar" counties that surround Chicago and Cook County.

In April 1999, Ocean Atlantic commenced discussions [**3] with Aurora Christian about purchasing land that Aurora Christian owned in Kane County near Aurora, Illinois. Aurora Christian is an Illinois not-for-profit corporation that provides Christian-oriented education to students in kindergarten through the twelfth grade. By letter offer dated June 9, 1999, Ocean Atlantic proposed to buy 116 acres of land from Aurora Christian at $ 35,000 per acre, for a total of $ 4,060,000. Aurora Christian App. A117. ¹ Aurora Christian rejected the offer and, among other things, sought an increase in the per-acre purchase price as well as a decrease in the acreage to be sold. On August 2, Ocean Atlantic submitted a revised offer to purchase 78 acres of land from Aurora Christian at $ 42,000 per acre for a total of $ 3,276,000. Aurora Christian App. A125. Aurora Christian again rejected the offer, still demanding a higher price. Three days later, on August 5, Ocean Atlantic tendered yet another offer to Aurora Christian proposing a per-acre purchase price of $ 45,000, for a total of $ 3,510,000. Aurora Christian App. A131. Aurora Christian found the third offer to its liking and on August 6, 1999, Aurora Christian President Paul House signed the offer. [**4] Aurora Christian App. A134. Later that same day, Aurora Christian Treasurer Keith Gibson faxed a copy of the signed offer to Ocean Atlantic along with a cover letter stating that "your captioned letter offer has been accepted" and "we look forward to an excellent relationship." Aurora Christian App. A141.

1 Nearly all of the pertinent documents, transcripts, and other record evidence in these appeals have been collected in the separate appendices filed by Ocean Atlantic and Aurora Christian in No. 01-2239 and by Ocean Atlantic in No. 01-3400. For ease of reference, we shall for the most part cite the appendices themselves as needed. References to the consecutively paginated appendices filed by Ocean Atlantic and Aurora Christian in No. 01-2239 shall be indicated by "Aurora Christian App. A___," whereas references to the appendix filed by Ocean Atlantic in No. 01-3400 shall be indicated by "Konicek App. A___." The district judges' opinions, along with documents not included in these appendices, shall be referenced by their record number designations. "Aurora Christian R.___" shall refer to opinions and documents in No. 01-2239, and "Konicek R.___" shall refer to opinions and documents in No. 01-3400.

[**5] The opening sentence of the August 5 offer that Aurora Christian signed indicated that "this Letter Offer . . . will serve to set forth some of the parameters for an offer from Ocean Atlantic Development Corp." to purchase from Aurora Christian the 78 acres of land identified in the letter's caption and in an exhibit attached to the letter. Aurora Christian App. A131. The offer then proceeded to identify the following parameters:

(1) Ocean Atlantic would purchase the property at a per-acre price of $ 45,000 for a total of $ 3,510,000, subject [*986] to verification of the total acreage.

(2) Ocean Atlantic would pay for the land wholly in cash on the closing date.

(3) The purchase of the land would be subject to a 90-day inspection period that would commence on the date that the parties signed a contract of purchase and sale. During that inspection period, Ocean Atlantic would have the right to enter the property in order to conduct soil, environmental, engineering, and other studies in order to determine whether the property was suitable for Ocean Atlantic's intended use.

(4) Within five business days after the parties executed a contract of purchase and sale, [**6] Ocean Atlantic would deposit into escrow $ 25,000 in earnest money toward the purchase of the property. In the event that Ocean Atlantic decided to terminate the contract during the inspection period, the deposit would be returned to Ocean Atlantic. However, if Ocean Atlantic elected upon expiration of the inspection period to proceed with the acquisition of the property, it would increase the earnest money deposit to a total of $ 100,000. This deposit was to serve as "full and complete liquidated damages" to Aurora Christian in the event that Ocean Atlantic defaulted on any of its obligations under the contract of purchase and sale.

(5) Upon satisfactory completion of the inspection period, Ocean Atlantic would have a six-month "entitlement period" in order to make arrangements with the appropriate municipal authorities for (a) rezoning and final plat approval for development of the property, (b) sufficient sanitary sewer and water capacity, and (c) necessary on- and off-site public improvements. The letter provided for a 60-day extension of the entitlement period in the event that Ocean Atlantic had completed its applications for rezoning and final plat approval within six [**7] months but was still waiting for approval or denial by local authorities. Ocean Atlantic also had the right to purchase additional 30-day extensions of the entitlement period for $ 5,000 each if it was still awaiting approvals.

(6) Closing of the purchase and sale was to occur within 30 days after Ocean Atlantic secured annexation, rezoning, and final plat approval for the property. Title to the property "shall be marketable and good of record and in fact and insurable as such at ordinary rates by a recognized title insurer free and clear of all liens and encumbrances or unacceptable exceptions."

(7) Ocean Atlantic had the right of first refusal with respect to the purchase of two additional, adjacent parcels of Aurora Christian property identified in the exhibit to the letter.

(8) Aurora Christian represented that it "will not further encumber the Property or negotiate, or agree to, its sale," that it would make no commitments or representations to other property owners or governmental authorities that would bind Ocean Atlantic or interfere with its ability to develop the property, and that it had no notice of any pending or threatened litigation, petition, proceeding [**8] or zoning application that would interfere with Ocean Atlantic's development plans.

(9) Ocean Atlantic and Aurora Christian warranted to one another that neither had a deal with any agent, broker, or finder other than the two [*987] brokers identified in the letter. Aurora Christian would pay a commission to those two brokers by separate agreement upon closing.

(10) "Upon such acceptance and return of this Offer, Purchaser shall prepare and present to the Seller a Contract of Purchase and Sale in accordance with the terms and provisions hereof. Purchaser and Seller shall work diligently to execute the Contract within Thirty (30) days of the execution of this Offer."

(11) The offer would become "null and void" if not executed by both Ocean Atlantic and Aurora Christian within 10 days.

Aurora Christian App. A131-34. Because it is the August 5 offer that Ocean Atlantic contends amounts to a binding agreement for the purchase and sale of Aurora Christian's property, we have reproduced the full text of the letter at Appendix A to this opinion.

After Aurora Christian signed the offer, Ocean Atlantic set to work drafting a contract for the purchase and sale of the [**9] land as called for in the offer. On August 25, 1999, Ocean Atlantic tendered a proposed contract to Aurora Christian, but the discussion and drafting process continued as the parties attempted to resolve outstanding issues. Aurora Christian App. A148. On October 29, Ocean Atlantic transmitted a final revised draft of the proposed contract to Aurora Christian. Aurora Christian App. A168. The terms of that draft were for the most part consistent with the parameters identified in the August 5, 1999 letter, but the draft contract also spelled out the terms of the purchase and sale in considerably greater detail. For example, the draft contract disclosed that it was Ocean Atlantic's intent to develop 30 acres of townhomes and 45 acres of single-family homes on the property and called for the parties to jointly prepare a master plan reflecting that and all other intended uses for the property. Aurora Christian App. A172-43 Or. 346, 73 P 5(a). Provisions were made for the examination and transfer of title to the property. Aurora Christian App. A176-144 Cal. 542, 78 P 7. Ocean Atlantic and Aurora Christian each made a number of representations, warranties, and covenants not included in the offer. Aurora Christian App. [**10] A180-83 PP 10, 11. Additional provisions also were included for the allocation of closing costs, compliance with governmental orders, defaults by either Ocean Atlantic or Aurora Christian, the possibility of condemnation, notices between the parties, and some 16 other miscellaneous topics. Aurora Christian App. A183-91 PP 14-17, 19, 21, 23. And in at least one respect, the terms of the draft contract also departed from those of the offer. Whereas the offer provided that upon expiration of the 90-day inspection period, the increased earnest money deposit of $ 100,000 would become non-refundable (Aurora Christian App. A132 P 4(b)), the October contract created an exception allowing a refund of the $ 100,000 to Ocean Atlantic in the event that Ocean Atlantic extended the entitlement period but failed to obtain annexation and final plat approval from local authorities and on that basis decided to terminate the contract. Aurora Christian App. A176 P 6.2. Ultimately, Aurora Christian refused to sign the contract.

On December 15, 1999, Ocean Atlantic filed a verified complaint against Aurora Christian in the district court invoking the court's diversity jurisdiction. Aurora Christian App. [**11] A14. Ocean Atlantic asserted that the signed August 5 offer "unambiguously contains all of the elements of the terms of parties' bargain" (Aurora Christian App. A16 P 8) and as such constituted a binding agreement for the purchase and sale of Aurora Christian's property. Aurora Christian had breached that [*988] agreement, according to Ocean Atlantic, by failing to make a good faith effort to arrive at a final contract of purchase and sale and by refusing to execute that contract even after all apparent points of disagreement between the parties had been resolved. Aurora Christian App. A19 P 19. By way of relief, Ocean Atlantic asked the district court to enter (1) a declaratory judgment holding the August 5 offer to constitute a valid and binding contract for the purchase and sale of the property, (2) a judgment of specific performance requiring Aurora Christian to fulfill its obligations under the August 5 offer by, inter alia, finalizing and executing a final contract for the purchase and sale of the property, (3) preliminary and permanent injunctive that would bring an end to Aurora Christian's refusal to execute a final contract and that would prohibit Aurora Christian from selling or [**12] taking other steps with respect to the property that might prevent it from honoring its purported obligations under the August 5 offer, and (4) alternatively, money damages for breach of contract in the event that equitable relief culminating in the sale of the land to Ocean Atlantic were not possible. Aurora Christian App. A19-23. The suit was assigned to Judge Kocoras.

Contending that the material facts were not in dispute, Ocean Atlantic subsequently filed a motion for partial summary judgment asserting that the August 5, 1999 offer amounted to a "binding, fully enforceable contract" (Aurora Christian App. A277) for the purchase and sale of Aurora Christian's property. Aurora Christian App. A268-78. Aurora Christian opposed the motion, contending that "the August 5 Letter was merely an offer to make an offer and the language of the Letter clearly demonstrates that the parties did not intend the August 5 Letter to be a binding enforceable contract . . . ." Aurora Christian App. A195. In addition to the language of the offer itself, Aurora Christian also cited the circumstances surrounding the parties' negotiations, including the conduct of the parties both prior to and after the [**13] August 5 letter, as evidence that the parties did not intend to be bound by the offer. See Aurora Christian App. A199-203. Judge Kocoras subsequently denied Ocean Atlantic's motion in a written opinion. Aurora Christian R.17. In relevant part, that opinion stated:

We find that the Letter contains ambiguities that present a disputed fact precluding summary judgment. Specifically, we believe factual questions remain as to whether Aurora Christian intended to be bound by the Letter. The very first sentence of the Letter undermines Ocean Atlantic's contention that it was a definitive offer. That sentence reads, "This Letter Offer ('Offer') will serve to set forth some of the parameters for an offer from the Ocean Atlantic Development Corp. ('Purchaser') to purchase the above-referenced property . . . ." (Pl. Ex. B. at 1) (emphasis added). One could reasonably construe these words as indicating that Ocean Atlantic may have intended to put together a complete offer at some later time but stopped short of doing so in the Letter.

In addition, the Letter appears to omit several critical items that one would expect to find in a definitive offer pertaining to a multi-million [**14] dollar land sale transaction. See Chicago Investment Corp. v. Dolins, 107 Ill. 2d 120, 481 N.E.2d 712, 715-16, 89 Ill. Dec. 869 (Ill. 1985) (upholding trial court's conclusion that writing's omission of several items normally included in real estate contracts, as well as other factors, indicated that writing was unenforceable). The Letter does not broach the topic of a consummation date for the sale, nor does it refer to tax prorations or the form of conveyance. In addition, the [*989] Letter makes no prospective purchaser or seller warranties and only limited seller representations related to zoning. One would expect to find these terms set forth in a transaction of this magnitude. Like the first sentence of the letter, these omissions raise factual questions as to whether Aurora Christian intended to be bound when its representative signed the Letter.

Aurora Christian R.17 at 4-5. At a hearing conducted on the day that he issued his written opinion, Judge Kocoras informed the parties' counsel that "you are facing a trial because I think the case deserves an elucidation of evidence, both whatever the writings were and anything that attends those writings, to decide [**15] whether you have a binding contract." Aurora Christian App. A57. "The material facts are in dispute," he emphasized. Aurora Christian App. A58.

Several months later, after the parties had engaged in limited, written discovery, Aurora Christian itself asked the court to enter summary judgment, positing that, as a matter of law, the offer did not amount to a binding and enforceable contract. Aurora Christian App. A213. ² In the first instance, Aurora Christian argued, the letter "omits or lacks certainty as to many material terms which are essential to a complex, multi-million dollar commercial real estate transaction." Aurora Christian App. A214. These included terms relating to the dates on which the sale would be consummated and Ocean Atlantic would take possession of the property, the proration of taxes, the form of conveyance to Ocean Atlantic, purchaser and seller warranties, forms of notice to the parties, and a guarantee title policy. Aurora Christian App. A216-22. Secondly, in Ocean Atlantic's view, the letter did not manifest an intent by the parties to be bound. The opening sentence of the letter, which noted that it served "to set forth some of the parameters for an offer, [**16] " suggested that it was merely an offer to make an offer rather than a binding agreement. Aurora Christian App. A225. At the same time, the letter called for the preparation of a formal contract of purchase and sale and tied the sale of the property to the execution of that contract. Aurora Christian App. A225-26. Subsequently prepared drafts of the formal contract, and the continuing negotiations attending those contracts, confirmed that the offer did not amount to a binding agreement. Aurora Christian App. A226-30.

2 Aurora Christian made a number of alternative arguments that we need not delve into here.

Judge Kocoras granted Aurora Christian's motion, agreeing that "the collective or cumulative terms of the Letter frustrate any notion of enforceability." R.29 at 8. Most important in the judge's mind was that the terms of the letter rendered the agreement for the purchase and sale of the property contingent upon the execution of a formalized contract.

Five provisions make this conclusion unambiguous. [**17] First, Ocean Atlantic furnished no earnest money at the time it submitted the Letter to Aurora Christian. Nor was earnest money due if Aurora Christian elected to sign the Letter. Rather, the earnest money was due only upon execution of the purchase contract. (Letter P 4(a).) Second, the inspection period would ensue only after the purchase contract was executed. (Id. P 3.) Third, because the six-month period during which Ocean Atlantic would seek local government approval for rezoning and final plat approval began upon completion of the inspection period, it too was contingent on the execution [*990] of a contract. (Id. P 5.) Fourth, because inspection and local government approval were prerequisites to closing, the closing too was contingent upon the purchase contract. Fifth, the default provision referred only to Ocean Atlantic's obligations under the anticipated purchase contract, not to any arising under the Letter. (Id. P 4.)

R. 29 at 9. Furthermore, as the drafts of the never-executed contract revealed, the letter offer itself lacked a number of important terms that one would expect to find in an agreement governing a transaction of this magnitude, including [**18] a date for the consummation of the sale, provisions for tax proration and the form of conveyance, and warranties between the purchaser and seller. Id. at 10. Finally, the language found in the opening sentence of the letter "is the language of a preliminary negotiation tool, not a definitive offer." Id. at 10-11.

At a hearing called for the purpose of issuing his decision, Judge Kocoras explained why he had changed his mind about the ambiguity of the August 5, 1999 offer. Judge Kocoras indicated that after reviewing the parties' conduct--in particular, the subsequent drafting of a contract containing terms that the offer lacked--he revisited the language of the offer and concluded that "neither side ever intended this letter [offer] to be the final, definitive agreement[--]that what was going to follow was an elaborate document setting forth everything." Aurora Christian App. A115; see also id. at A114-15. Contrary to his initial impression, then, he concluded that the offer was not ambiguous. Based on the terms of the offer itself, and in light of events that followed, he found the record to be clear that the parties did not mean for the offer to bind them. Aurora [**19] Christian App. A114.

B. The Koniceks

Approximately one year after it first proposed to buy Aurora Christian's property, Ocean Atlantic commenced negotiations with Dale, Wayne, and Lois Konicek ³ to purchase approximately 158 acres of farm land that they owned in Kendall County, Illinois. By letter offer dated April 20, 2000, Ocean Atlantic proposed to purchase the property for a total of $ 3,768,000, or $ 24,000 per acre. Konicek App. A39. That offer was not acceptable to the Koniceks and they did not sign the letter. On April 26, Ocean Atlantic submitted a revised offer which reflected a higher purchase price of $ 25,000 per acre, for a total of$ 3,925,000; this second offer also incorporated other modifications that the Koniceks had requested. Konicek App. A43. Again, however, the Koniceks declined the offer, demanding a higher purchase price as well as other changes to the offer. On May 4, 2000, Ocean Atlantic tendered a third offer. This one proposed a total purchase price of $ 3,976,200, or roughly $ 25,225 per acre ⁴; other modifications were also incorporated in this offer at the Koniceks' request. Once again, however, the Koniceks held out for more money; their attorney [**20] also demanded the inclusion of provisions regarding insurance coverage and crop damage. On May 24, 2000, Ocean Atlantic tendered a fourth offer which upped the proposed per-acre price by $ 100 to $ 25,325, resulting in a total proposed purchase price of [*991] $ 3,992,233; the requested provisions for insurance coverage and crop damage were also included in this offer. Konicek App. A55. Apparently, the Koniceks were at last satisfied with these terms; they signed the offer one week later. Konicek App. A59, 61.

3 Wayne and Lois Konicek are husband and wife. They held a 50 percent ownership interest in the property that Ocean Atlantic wishes to buy, and Dale Konicek, Wayne's brother, held the other 50 percent interest in the property.

4 The offer itself indicates that Ocean Atlantic was offering to buy the Koniceks' property at a price of $ 25,325 per acre. Konicek App. A49 P 1. However, the total proposed purchase price of$ 3,976,200 corresponds to a per-acre price of just under $ 25,225.

Because Ocean Atlantic [**21] apparently employed a form document for its offers, the terms of its May 24, 2000 offer to the Koniceks were identical in many respects to the August 5, 1999 offer that Ocean Atlantic made to Aurora Christian. Thus, the opening sentence of the May 24 offer states that "this Letter Offer . . . will serve to set forth some of the parameters for an offer from Ocean Atlantic Chicago Corp." to purchase the Koniceks' land. The letter went on to identify the following parameters:

(1) Ocean Atlantic would purchase the property for a total of $ 3,992,233, subject to verification of the total acreage and based upon a purchase price of $ 25,325 per acre.

(2) Ocean Atlantic would pay for the land wholly in cash on the closing date.

(3) The purchase of the land would be subject to a 90-day inspection period that would commence on the date that the parties signed a contract of purchase and sale. During that inspection period, Ocean Atlantic would have the right to enter the property in order to conduct soil, environmental, engineering, and other studies in order to determine whether the property was suitable for Ocean Atlantic's intended use.

(4) Within five business [**22] days after the parties executed a contract of purchase and sale, Ocean Atlantic would deposit into escrow $ 50,000 in earnest money toward the purchase of the property. In the event that Ocean Atlantic decided to terminate the contract during the inspection period, the deposit would be returned to Ocean Atlantic. However, if Ocean Atlantic elected upon expiration of the inspection period to proceed with the acquisition of the property, it would increase the earnest money deposit to a non-refundable total of $ 100,000 and instruct the escrow agent to release $ 50,000 of the deposit to the Koniceks. The $ 100,000 deposit was to serve as "full and complete liquidated damages" to Aurora Christian in the event that Ocean Atlantic defaulted on any of its obligations under the contract of purchase and sale.

(5) Upon satisfactory completion of the inspection period, Ocean Atlantic would have a six-month "entitlement period" in which to make arrangements with the appropriate municipal authorities for (a) rezoning and final plat approval for development of the property, (b) sufficient sanitary sewer and water capacity, and (c) necessary on- and off-site public improvements. The letter [**23] provided for a 60-day extension of the entitlement period in the event that Ocean Atlantic had completed its applications for rezoning and final plat approval within six months but was still waiting for approval or denial by local authorities. Ocean Atlantic also had the right to purchase additional 30-day extensions of the entitlement period for $ 5,000 each if it was still awaiting approval.

(6) Closing of the purchase and sale was to occur within 30 days after Ocean Atlantic secured annexation, rezoning, and final plat approval for the property. Title to the property "shall be marketable and good of record and in fact and insurable as such at ordinary rates by a recognized [*992] title insurer free and clear of all liens and encumbrances or unacceptable exceptions."

(7) The Koniceks represented that they "[would] not further encumber the Property or negotiate, or agree to its sale," that they would make no commitments or representations to other property owners or governmental authorities that would bind Ocean Atlantic or interfere with its ability to develop the property, and that they had no notice of any pending or threatened litigation, petition, proceeding or zoning [**24] application that would interfere with Ocean Atlantic's development plans; and that they, along with Ocean Atlantic, would keep the terms of the offer confidential.

(8) Ocean Atlantic and the Koniceks warranted to one another that they had not dealt with any agent, broker, or finder other than the two individuals identified in the letter. Ocean Atlantic would pay a commission to those two persons by separate agreement upon closing.

(9) Ocean Atlantic, before initiating ingress or egress to the property, would obtain liability insurance in the amount of $ 1 million naming the Koniceks as additional insured parties. The Koniceks, in turn, would provide evidence of their own liability coverage to Ocean Atlantic.

(10) In the event that the crops on the land were damaged during inspection, Ocean Atlantic would reimburse the Koniceks at a rate of $ 350 per acre, with the affected acreage to be determined by an independent surveyor.

(11) Ocean Atlantic agreed to cooperate with the Koniceks to effect a "Like-Kind Exchange" as defined by section 1031 of the Internal Revenue Code, with the costs associated with that exchange to be borne by the Koniceks. [**25]

(12) "Upon such acceptance and return of this Offer, Purchaser shall prepare and present to the Sellers a Contract of Purchase and Sale in accordance with the terms and provisions hereof."

(13) The offer would become "null and void" if not executed by both Ocean Atlantic and the Koniceks within 5 days.

Konicek App. A55-59. Because it is the May 24 offer that in Ocean Atlantic's view amounts to a binding agreement for the purchase and sale of the Koniceks' property, we have reproduced the full text of the letter at Appendix B to this opinion.

In a cover letter to Ocean Atlantic's broker enclosing the signed offer, the Koniceks' attorney, Louis Neuendorf, wrote that "the inspection period, per the letter [offer],commences from the date of the letter to-wit, May 31,2000, and extends for a period of 90 days from said date, or to August 31, 2000." Konicek App. A61. Neuendorf also enclosed evidence of the Koniceks' current liability coverage. Konicek App. A62.

After the Koniceks signed the May 24 letter, Ocean Atlantic set about drafting a contract for the purchase and sale of the land. On or about June 21, 2000, Ocean Atlantic's attorney, Kevin Gensler, forwarded [**26] a first draft of the contract to the Koniceks. Konicek App. A64. On July 12, 2000, Neuendorf, on the Koniceks' behalf, wrote a four-page letter to Gensler requesting some 20 revisions to the terms of the proposed contract. Konicek App. A83. Gensler modified the proposed contract in response to Neuendorf's suggestions and returned a revised draft to Neuendorf on or about August 2, 2000. Konicek App. A87.

[*993] However, soon after the modified draft was sent to the Koniceks' attorney, the Koniceks received another offer to purchase their property from Isenstein-Pasquinelli, L.L.C., an Illinois corporation based in south-suburban Chicago. On August 8, 2000, Neuendorf informed Gensler by letter that the Koniceks had received another offer for their land that exceeded by more than $ 500,000 Ocean Atlantic's proposed purchase price. Konicek App. A108. After outlining the other terms of the offer, Neuendorf advised Gensler that if Ocean Atlantic "[would] enter into a contract with the same terms and conditions as the proposed contract of the other Purchaser, the Koniceks would proceed to sell the property to your client." Konicek App. A108-09. One week later, Gensler wrote back to Neuendorf [**27] rejecting the Koniceks' invitation to sweeten Ocean Atlantic's offer:

The purchase price has been agreed upon by the parties in the May 24, 2000 letter agreement. Ocean Atlantic Chicago Corp. expects the Koniceks to negotiate in good faith and in compliance with the letter agreement executed between all the parties. Paragraph 7A of the Agreement specifies that the Sellers will not further encumber or negotiate for the sale of the subject property. Please issue comments as to the latest draft of the agreement submitted for your review.

Konicek App. A115. On the following day, August 16, 2000, Neuendorf faxed a letter back to Gensler rejecting the notion that the May 24 offer constituted a binding agreement between the parties. Neuendorf wrote:

I do not consider a letter containing statements such as "this letter will serve to set forth some of the parameters for an offer from Ocean Atlantic," or that "purchaser and sellers agree to keep the terms and conditions, and all negotiations regarding this letter offer confidential" to result in a binding agreement to sell and purchase real estate.

Konicek App. A116 (emphasis in original). Neuendorf [**28] also averred in the letter that when he had received the May 24 offer, he had suggested to Gensler that rather than having the Koniceks execute a letter of intent to sell the property, the parties should simply proceed directly to the preparation and execution of a real estate contract. Id. But according to Neuendorf, Gensler had insisted on having a signed letter of intent before he would prepare a draft of the contract. Id. Gensler, who claims never to have spoken with Neuendorf, denies that this exchange ever took place. Konicek App. A130 P 5, A131 P 8.

Neuendorf reiterated that the Koniceks were prepared to proceed with the sale to Ocean Atlantic provided that Ocean Atlantic was prepared to match the terms of the competing offer they had received, Konicek App. A116-17, but Ocean Atlantic, believing that it had already had a deal with the Koniceks, declined. Talks between the parties came to an end, and Ocean Atlantic and the Koniceks never executed the contract for the purchase and sale of the Koniceks' property that the May 24 offer envisioned.

Lured by the more attractive offer, the Koniceks agreed to sell their property to Isenstein-Pasquinelli. On August 21, 2000, the [**29] Koniceks and Isenstein-Pasquinelli executed both a real estate sales contract and a rider to that contract. Konicek App. A124. Isenstein-Pasquinelli was aware that the Koniceks had signed Ocean Atlantic's May 24 offer; and both parties anticipated that Ocean Atlantic might file suit to enforce that offer. An addendum to the sales agreement and rider, also executed on August 21, provided:

The Seller [sic] has advised Purchaser that a letter of intent was entered into with Ocean Atlantic but no contract was [*994] ever executed, and that Seller has legal right to enter this contract with Purchaser.

If Ocean Atlantic should sue seller then Purchaser shall defend said lawsuit and pay costs of said defense but shall not be responsible if there are damages assessed against Seller. In the event such lawsuit is filed prior to time of closing then the time of closing shall be extended to a date thirty days after final adjudication of said lawsuit.

Konicek App. A128.

Ocean Atlantic filed suit against the Koniceks on September 15, 2000, seeking the same relief as to its May 24, 2000 offer to the Koniceks that it sought with respect to the August 5, 1999 offer to Aurora [**30] Christian. The case was assigned to Judge Holderman. Citing its contract to purchase the property from the Koniceks, Isenstein-Pasquinelli sought and obtained leave to intervene in the suit. Ocean Atlantic subsequently amended its complaint to include claims against Isenstein-Pasquinelli for tortious interference with contract and tortious interference with prospective economic advantage. Konicek R.14. Isenstein-Pasquinelli promptly moved to dismiss those claims, as well as all of the claims against the Koniceks, arguing that the May 24 offer on its face did not constitute an enforceable contract. Konicek App. A248. Although Judge Holderman dismissed the claim against Isenstein-Pasquinelli for tortious interference with prospective economic advantage, he denied the balance of the motion to dismiss, allowing the tortious interference with contract claim, along with all of the claims against the Koniceks, to stand. Konicek R.24, 34.

After the parties had conducted some amount of discovery, Isenstein-Pasquinelli, joined by the Koniceks, moved for summary judgment, in relevant part contending (again) that the May 24 offer was not an enforceable contract. Konicek App. A264. Among other [**31] authorities, they relied on Judge Kocoras's summary judgment ruling in favor of Aurora Christian, arguing that because the terms of the offer between the Koniceks and Ocean Atlantic did not materially differ from the terms of the offer between Aurora Christian and Ocean Atlantic, Judge Holderman should likewise conclude that the May 24 offer was not enforceable. After receiving Ocean Atlantic's response to the motion, Judge Holderman granted the motion in an oral ruling:

I have had an opportunity to review Ocean Atlantic's response to the defendants' motion for summary judgment and have reviewed carefully Judge Kocoras' decision in the Ocean Atlantic versus Aurora Christian Schools, and it seems to me that the distinctions between the two contracts are really not material.

The fact that this land that these parties were involved with was crop land and had provisions for crop damage and insurance coverage really does not materially change the impact of the language.

Plus, I have reviewed the deposition testimony, and it seems to me, looking at the intent of the parties as well as the language and substance of the letter agreement, that the deal was entirely contingent [**32] upon the execution of a purchase contract.

I agree with Judge Kocoras' analysis. Basically, that analysis could be laid on all fours with the facts here subject to those immaterial distinctions. Consequently, applying the analysis that Judge Kocoras used in the Aurora Christian Schools case, which deal with the same contract, somewhat in the same area, it seems to me that there was no contract between the parties in the letter agreement, that the letter agreement did contemplate a further contract being entered into which never was. And so, consequently, the defendants' [*995] motion for summary judgment will be granted here from the bench, adopting all of Judge Kocoras' analysis and with the minor distinctions that I have commented on here.

Konicek R.74 at 2-3. In response to follow-up questions and argument from Ocean Atlantic's counsel, Judge Holderman made two additional observations. First, although the parties had engaged in discovery and the judge had reviewed the deposition testimony submitted in connection with the summary judgment motion, Judge Holderman was relying on the language of the May 24 offer itself to conclude that the letter did not amount to a binding [**33] contract. Konicek R.74 at 5. Second, although there was deposition testimony suggesting that the parties believed some terms of the May 24 offer--in particular, those governing the inspection of the property and any crop damage that might result from such inspection--would take effect before a sales contract was negotiated and finalized, the judge did not believe that this extrinsic evidence raised a question of fact as to whether or not the parties had a binding contract for the purchase and sale of the property. Konicek R.74 at 7. Even if the parties had a binding agreement with respect to such matters as crop damage that might result from an inspection of the property, the judge reasoned, that did not establish that they had reached an agreement as to the purchase and sale of the property. Id. at 9-10.

II.

In granting summary judgment in favor of the sellers, Judges Kocoras and Holderman each concluded that no reasonable finder of fact could conclude that the offer amounted to a binding contract between Ocean Atlantic and the sellers. We review the district judges' decisions de novo, construing the facts in a light favorable to Ocean Atlantic. E.g., Stone v. Hamilton, 308 F.3d 751, 754 (7th Cir. 2002). [**34]

A.

The substantive law of Illinois governs the resolution of these diversity cases, as the parties agree. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Abbott Lab. v. Alpha Therapeutic Corp., 164 F.3d 385, 387 (7th Cir. 1999). Illinois conditions the enforceability of a putative contract on two predicates: a sufficiently concrete expression of the essential terms of the agreement, as well as an intent to be bound by that agreement. See Academy Chicago Publishers v. Cheever, 144 Ill. 2d 24, 578 N.E.2d 981, 983, 161 Ill. Dec. 335 (Ill. 1991); Ceres Illinois, Inc. v. Illinois Scrap Processing, Inc., 114 Ill. 2d 133, 500 N.E.2d 1, 4-5, 102 Ill. Dec. 379 (Ill. 1986); Morey v. Hoffman, 12 Ill. 2d 125, 145 N.E.2d 644, 647-48 (Ill. 1957); IK Corp. v. One Fin. Place P'ship, 200 Ill. App. 3d 802, 558 N.E.2d 161, 169, 146 Ill. Dec. 198 (Ill. App. Ct. 1990). For the reasons that follow, we find, primarily from the face of each offer, that the parties did not intend for the offer to constitute a binding agreement for the purchase and sale of either property.

As we recognized in Empro Mfg. Co. v. Ball-Co Mfg., Inc., 870 F.2d 423, 424 7th Cir. 1989), [**35] it is a common commercial practice for two negotiating parties to sign a letter of intent or an agreement in principal, signaling that they have come to a tentative agreement on the general outlines of a deal without having nailed down all of the details. Not infrequently, the negotiations that follow the execution of this document break down, prompting the disappointed party to sue on the theory that the preliminary document is binding. Id. Whether in fact the writing reflects a binding agreement between the parties, we explained, turns not on what the parties subjectively believed, but on what they expressly manifested in their writing. Id. at 425. As we went on to hold, a letter of [*996] intent or a similar preliminary writing that reflects a tentative agreement contingent upon the successful completion of negotiations that are ongoing, does not amount to a contract that binds the parties. Id. at 425-26. See also Murray v. Abt Assocs., Inc., 18 F.3d 1376, 1378-79 (7th Cir. 1994).

Again in Abbott Labs., we emphasized that it is the parties' objective intent as revealed by what they wrote, that determines whether or [**36] not they had come to a binding agreement:

Whether the parties had a "meeting of the minds" is determined not by their actual subjective intent, but by what they expressed to each other in their writings. Thus, the parties decide for themselves whether the results of preliminary negotiations bind them, and they do so through their words. See Empro Mfg. Co. v. Ball-Co Mfg., Inc., 870 F.2d 423, 425 (7th Cir. 1989) citing Chicago Inv. Corp. v. Dolins, 107 Ill. 2d 120, 89 Ill. Dec. 869, 481 N.E.2d 712, 715 (1985).

164 F.3d at 387. See also Venture Assoc. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir. 1993); Dresser Indus., Inc. v. Pyrrhus AG, 936 F.2d 921, 926 (7th Cir. 1991). If the parties' written words "do not show a clear intent to be bound," then they will not be held to a preliminary agreement. Abbott Lab., 164 F.3d at 388.

Thus, in deciding whether the offers at issue here constitute binding agreements for the purchase and sale of the two properties, our focus first and foremost is on what parties said in those offers. Id. at 387. If [**37] the terms of the offers unambiguously indicate that they were merely tentative agreements to agree, leaving material terms unresolved, then there was no binding contract and the district court in each case properly granted summary judgment in favor of the sellers. E.g., id. If, on the other hand, the offers appear to include all terms essential to the deal and manifest the parties' mutual intent to be bound by those terms, or at the least are ambiguous in that respect, then whether or not a binding agreement exists is a question that must be resolved at trial. See, e.g., Magallanes Inv., Inc. v. Circuit Sys., Inc., 994 F.2d 1214, 1218-19 (7th Cir. 1993).

B.

One question that we must address at the outset is whether Ocean Atlantic's offer to the Koniceks is necessarily a nullity because the Koniceks did not sign it until the offer, by its own terms, had already expired. The offer specified that if not signed and returned to Ocean Atlantic within five days, it "shall be null and void." Konicek App. A59 P 13. The offer was dated May 24, 2000, but the Koniceks did not sign it and return it to Ocean Atlantic until May 31, 2000--two days beyond the [**38] deadline for acceptance. See id. at A59. Isenstein-Pasquinelli and the Koniceks assert that this alone renders the offer unenforceable. See Waterman v. Banks, 144 U.S. 394, 402, 12 S. Ct. 646, 648, 36 L. Ed. 479 (1892) ("There can be no question but that when an offer is made for a time limited in the offer itself, no acceptance afterwards will make it binding.")(internal quotation marks and citation omitted); Fisher Iron & Steel Co. v. Elgin, Joliet & E. Ry. Co., 101 F.2d 373, 374-75 (7th Cir. 1939); Johnson v. Whitney Metal Tool Co., 342 Ill. App. 258, 96 N.E.2d 372, 377 (Ill. App. Ct. 1951). But as Ocean Atlantic aptly points out, a provision of this sort serves to protect the offeror, and the offeror may, should it so choose, elect to waive strict compliance with the time limit. See WILLISTON ON CONTRACTS § 5.5, at 656 (4th ed. 1990). Here it would appear that notwithstanding the Koniceks' failure to sign and return the offer within the time provided, Ocean Atlantic was nonetheless prepared to overlook their tardiness and proceed with the preparation of a contract. Under these circumstances, we cannot say, [*997] as a matter [**39] of law, that the offer was null and void simply because the Koniceks did not sign it in a timely fashion. We must instead look beyond the expiration provision to the other terms of each offer to determine whether the offer binds either the Koniceks or Aurora Christian.

C.

In both cases, the opening language of the offer suggests strongly that the parties did not intend for the offer to constitute a binding agreement. Each of the offers states that it "will serve to set forth some of the parameters for an offer . . . ." (Emphasis supplied.) Aurora Christian App. A131; Konicek App. A55. As Judge Kocoras observed, "This is the language of a preliminary negotiation tool, not a definitive offer." Aurora Christian R.29 at 10-11. It is tentative language, suggestive of ongoing negotiations rather than a meeting of the minds: the term "parameters" suggests the establishment of negotiating boundaries rather than final terms, and use of the word "some" suggests that any number of terms--including perhaps material terms--remained subject to negotiation. Cf. Abbott Lab., 164 F.3d at 388 (letter from party that reiterated "general terms" of proposal then on table, [**40] and attempting to identify "essential terms" from that party's perspective, gives rise to strong implication that letter author expected other party to counter with essential terms of its own); Empro Mfg., 870 F.2d at 425 (letter's recitation that it contains the "general terms and conditions" implies that each side retained the right to make (and stand on) additional demands); Chicago Inv. Corp. v. Dolins, 107 Ill. 2d 120, 481 N.E.2d 712, 716, 89 Ill. Dec. 869 (Ill. 1985) (fact that document was entitled "Letter of Intent" "suggests preliminary negotiations, as opposed to a final and binding contract").

Consistent with the proposition that negotiations were ongoing, and that the parties had not yet committed themselves to the purchase and sale of the property, is the express anticipation in each offer that a contract of purchase and sale would be executed. Aurora Christian App. A134 P 10; Konicek App. A59 P 12. It is true, as we recognized in Abbott Labs., that "anticipation of a more formal future writing does not nullify an otherwise binding agreement," 164 F.3d at 388, citing Dawson v. General Motors Corp., 977 F.2d 369, 374 (7th Cir. 1992); [**41] see also Magallanes Inv., 994 F.2d at 1218-19; Empro Mfg., 870 F.2d at 425. Nonetheless, when the parties make clear that their mutual obligations are dependent upon the execution of a final contract, their preliminary writing will not be deemed a binding agreement. See Venture Assocs., 987 F.2d at 432-33; IK, 558 N.E.2d at 166; Interway, Inc. v. Alagna, 85 Ill. App. 3d 1094, 407 N.E.2d 615, 618, 41 Ill. Dec. 117 (Ill. App. Ct. 1980). In this case, the parties' announced intent to prepare a contract serves to confirm that the offer itself did not constitute a binding agreement for the purchase and sale of the property.

Notably, under the terms of each offer, several key obligations and events with respect to the anticipated sale of the property, beginning with the inspection period, were to be triggered by the execution of the anticipated contract, rather than by the offer itself. The period during which Ocean Atlantic was to inspect each property and confirm that it was fit for the company's purposes did not begin to run until the contract for purchase and sale of the property had been signed. Aurora [**42] Christian App. A131 P 3; Konicek App. A55-56 P 3. ⁵ Ocean Atlantic notes that counsel for the Koniceks understood that [*998] the inspection period would start once the offer itself had been signed. See Konicek App. A61 (May 31, 2000 letter to Ocean Atlantic's broker from Konicek's counsel, asserting that 90-day inspection period commenced upon Koniceks' execution of offer). But that understanding is contrary to the plain terms of the offer itself--the offer states unequivocally that the inspection period would "commence upon the date that a Contract of Purchase and Sale ("Contract") has been executed by the parties hereto . . . ." Konicek App. A55 P 3; see also Aurora Christian App. A131 P 3.

5 With respect to the Aurora Christian purchase, the never-executed draft contract also provided that within 60 days of signing the contract, the parties would jointly prepare a master development plan for the property. That plan would provide not only for the townhouses and single family homes that Ocean Atlantic intended to construct on the purchased property, but also for ingress and egress through Aurora Christian's remaining adjacent properties and for Aurora Christian's intended use of those properties. See Aurora Christian App. A172-73.

[**43] Several other important obligations were in turn dependent upon the running of the inspection period. Only "upon the expiration of the Inspection Period and election of Purchaser to proceed with the acquisition of the Property" did Ocean Atlantic's deposit of earnest money become non-refundable. Aurora Christian App. A132 P 4(b); Konicek App. A56 P 4(b). ⁶ Indeed, the terms of the offer indicate that only a default by Ocean Atlantic under the contract, as opposed to the offer, would be compensable by a forfeiture of that earnest money. See Aurora Christian App. A132 P 4 (last grammatical paragraph); Konicek App. A56 P 4 (last grammatical paragraph). Moreover, not until the inspection period was "successfully" completed did the six-month entitlement period for Ocean Atlantic to obtain approvals and commitments as to such matters as the property's zoning, sewer and water capacity, and on-and off-site public improvements begin. Aurora Christian App. A132 P 5; Konicek App. A56 P 5. In turn, not until those government approvals had been obtained would the closing on the purchase and sale occur. Aurora Christian App. A133 P 6(a); Konicek App. A57 P 6(a).

6 At the same time, Ocean Atlantic became obligated to increase the amount of the earnest money deposit upon completion of the inspection period. Aurora Christian App. A26 P 4(b);Konicek App. A56 P 4(b).

[**44] Indeed, prior to the execution of a contract for the purchase and sale of the property, Ocean Atlantic had an unqualified right to walk away from the deal at no cost to itself. The offers imposed no obligation upon Ocean Atlantic to make a deposit of earnest money until a contract was signed; once a contract had been executed, Ocean Atlantic had five business days to make the initial, refundable deposit of earnest money. Aurora Christian App. A132P 4(a); Konicek App. A56 P 4(a). Even then, the deposit remained fully refundable to Ocean Atlantic pending the completion of the 90-day inspection period which, as we have noted, would not begin until the contract had been signed. See Aurora Christian App. A132 P 4(a) ("In the event that Purchaser elects to terminate the contract during the inspection period, the deposit shall be returned to the Purchaser by the escrow agent."); Konicek App. A56 P 4(a) (same). ⁷ It was, therefore, the execution [*999] of the contract that would initiate the sequence of events by which Ocean Atlantic would incur a binding obligation to purchase the two properties.

7 Our point is not that there could be no binding agreement between Ocean Atlantic and the sellers without a deposit of earnest money. See Magallanes Inv., 994 F.2d at 1218. Rather, the fact that Ocean Atlantic was not obligated to make such a deposit until a contract had been signed, against the backdrop of an offer that tied other key events and processes to the execution of a contract, is yet one more signal that the parties intended for the contract, rather than the offer, to bind them. See Berco Invs., Inc. v. Earle M. Jorgensen Co., 861 F. Supp. 705, 707(N.D. Ill. 1994).

[**45] True enough, as Ocean Atlantic is at pains to point out, neither of the offers contains a "subject to" clause explicitly stating that the parties' prospective agreement was conditioned upon the execution of a contract and/or that the offer itself was not binding. Such clauses are often found in letters of intent and the like, and the cases occasionally cite them as the "clincher" (to use Judge Kocoras' word) in finding that preliminary agreements lack binding force. Aurora Christian R.29 at 8; see, e.g., Venture Assoc., 987 F.2d at 432-33; Berco Invs., Inc. v. Earle M. Jorgensen Co., 861 F. Supp. 705, 708 (N.D. Ill.1994); IK, 558 N.E.2d at 167; Interway, 407 N.E.2d at 619-20. However, just as language anticipating the execution of a final contract does not rule out the possibility that the parties intended for their preliminary writing to bind them, see Magallanes Inv., 994 F.2d at 1218-19; Empro Mfg., 870 F.2d at 425, neither does the absence of a "subject to" clause carry talismanic significance. The parties may through other means make clear that they do not intend to [**46] be bound until a contract is executed. See Abbott Lab., 164 F.3d at 388-39. In this case, by making such key events as the inspection period dependent upon the subsequent execution of a contract for the purchase and sale of the properties, Ocean Atlantic and the sellers made clear that the offers were not to have binding force.

The terms of the offers are therefore inconsistent with the proposition that Ocean Atlantic and the sellers had reached final agreements. By tying material obligations vis a vis the purchase and sale to the subsequent execution of a contract, the offers suggest that the putative agreements were tentative and inchoate. As we recognized in Empro, contracting parties can and often do approach agreement by stages, 870 F.2d at 426, and here the offers on their face bespeak an agreement to come to terms at a later date rather than a binding agreement to sell the two properties to Ocean Atlantic.

D.

At the same time, and as Judge Kocoras pointed out, the offers omit terms one would expect to find in a multi-million dollar contract for the sale of real property. Aurora Christian R.29 at 10. Without undertaking to identify [**47] all such terms or to rank their relative importance, we cite several examples that strike us as potentially significant. First, the offers standing alone do not establish a closing date for the consummation of either sale; on the contrary, under the express terms of the offers, a closing could not occur without the execution of a contract. As we have noted, the closing date was contingent in each case upon a number of other events: the successful completion of the six-month period for obtaining local government approvals as to zoning and other matters, which in turn was dependent upon the successful completion of the 90-day inspection period (and Ocean Atlantic's election to proceed with the acquisition), which in turn was dependent upon the execution of a contract for the purchase and sale of the property. Second, the offers contain no warranties on behalf of Ocean Atlantic or the sellers; only limited seller representations with respect to the current zoning status of the properties are included. See Aurora Christian App. A134 P 8(c); Konicek App. A58 P 7(c). Third, beyond stating that "title to the Property at Closing shall be marketable and good of record and in fact," Aurora [**48] Christian App. A133 P 6(a)(ii); Konicek App. A57 P 6(a)(ii),the offers do not make the typical provisions for conveyance of either property, including [*1000] the form in which title was to be conveyed, title insurance, a title commitment, or which party was to pay the costs of curing any defects in the title. Fourth, neither offer makes any mention of taxes on the property or as to how responsibility for those taxes might be assigned. Fifth, the offers make no provision for the forms of notice to be used by the parties. Given the sums of money involved, the significant periods of time that the offers provided for the inspection of the properties and the solicitation of government approvals, Ocean Atlantic's right to extend the entitlement period, and Ocean Atlantic's right to back out of the purchases in the event that the inspection period or the entitlement period did not yield satisfactory results, one would expect a binding agreement to spell out the means by which the parties were to notify one another of contractually significant events.

We note that these were all subjects that were addressed in the draft contracts that Ocean Atlantic prepared. Although the contracts left a closing [**49] date contingent upon successful completion in turn of the inspection and government approval periods, upon execution the contracts would have made the timing and probability of a closing more ascertainable by causing these two periods, in turn, to commence. See Aurora Christian App. A152P 5 ("The acquisition of the Property by the Purchaser shall be subject to a feasibility period ("Study Period") . . .commencing upon the Contract Effective Date and shall expire ninety (90) days after the date of the contract."), id. at A173 P 5(b) (same); Konicek App. A67 P 5 (same); id. at A90 P 5 (same). Moreover, the draft contracts for the purchase of the Koniceks' property gave both parties the right to opt out of the transaction if the closing had not occurred within one year of the contract's effective date, a provision that provides a much firmer sense of how long the parties were willing to wait for closing to occur. Konicek App. A71 P 8 (last grammatical paragraph), id. at A94-37 Mont. 169, 95 P 8 (last grammatical paragraph). Buyer and seller warranties were set forth at length. Aurora Christian App. A157-60 PP 10, 11; id. at A180-83 PP 10, 11; Konicek App. A72-75 PP 10, 11; id. [**50] at A95-98 PP 10, 11. A title report was to be prepared and provided to Ocean Atlantic following execution of the contract, and at closing, title (in the same form and condition as during the inspection or "Study" period) was to be conveyed by "the usual Warranty Deed, with convenant of further assurances and the right to convey." Aurora Christian App. A154-55 P 7, 6 Cal. Unrep. 170, A156 P 8(e), A157 P 9; id. at A176-77 P 7, A179 PP 8(e) & 9; Konicek App. A68-70 P 7, A71 P 8(f), A72 P 9; id. at A91-93 P 7, A94 P 8(f), A95 P 9. Real estate taxes were to remain the responsibility of the sellers until the closing date, at which time the taxes would be adjusted pro rata and Ocean Atlantic would assume responsibility for them. Ocean Atlantic App. A158 P 10(f), A160 P 14; id. at A181 P 10(f), A184 P 14; Konicek App. A73 P 10(g), A75 P 14; id. at A96 P 10(g), A98-99 P 14. Finally, notices between the parties were to be conveyed to specified individuals and addresses by means of hand delivery, Federal Express or an equivalent courier, or by first class mail with return receipt requested. Aurora Christian App. A163-64 P 21; id. at A187-88 P 21; Konicek App. A78-79 P 21; id. at A102-03 P [**51] 21.

But are these terms material, such that the offers would be unenforceable without them, even if the parties meant for the signed offers to bind them? See Academy Chicago Publishers v. Cheever, supra, 578 N.E.2d at 983 ("[even if] the parties may have had and manifested the intent to make a contract, if the content of their agreement is unduly certain and indefinite, no contract is formed"). Dolins, 481 N.E.2d at 715-16, suggests that such terms might be material [*1001] vis a vis the purchase and sale of real estate, but the opinion stops short of saying that they are inevitably material. ⁸ After a lengthy bench trial, the trial court in Dolins had concluded that a letter of intent regarding the purchase of real estate did not constitute a binding agreement, and among the circumstances that it cited in support of that determination was the omission of the types of terms we have cited here. "While all of the foregoing omissions are not equally material," the Illinois Supreme Court observed in summarizing the lower court's holding, "the trial judge specifically found that cumulatively they were significant." Id. at 716. Without undertaking [**52] to endorse each aspect of the trial court's analysis, the state's high court concluded that the trial judge's ultimate determination that the parties had not entered into an enforceable contract, "was not against the manifest weight of the evidence." Id. As such, the court's opinion supplies scant support for the proposition that the omission of terms establishing a closing date, buyer and seller warranties, form of title, proration of taxes, and forms of notice render a real estate sales agreement unenforceable as a matter of law. For its part, Ocean Atlantic contends that these types of terms were of relatively minor importance here, and their omission would not prevent a court from enforcing the essential provisions spelled out in the offers, supplementing them as necessary by consulting terms customarily used in real estate transactions.

8 See also Morey v. Hoffman, supra, 145 N.E.2d at 648 (no enforceable contract for the sale of apartment hotel building where parties had not yet resolved such matters as possession, inventory, interim management, and disposition of interim profits).

[**53] We need not, and do not, decide whether the omission of any of the terms we have discussed--singly or collectively--renders either of the two offers unenforceable. See IK, 558 N.E.2d at 169 ("even where essential terms have been agreed upon, if the clear intent of the parties is that neither will be bound until the execution and delivery of a written [contract], no contract exists until execution and delivery"). We do, however, take the opportunity to reiterate one point that has to do with the absence of a specified closing date from either of the offers. We agree with Ocean Atlantic that the omission of a date certain for closing would not necessarily be fatal to the enforceability of an agreement. Where, as here, the consummation of the contract is contingent upon the satisfactory completion of intermediate processes, the length and outcome of which cannot be predicted in advance, it may well be impossible for the parties to name a particular date for closing. What they can do is identify the prerequisites to closing, specify the length of time that they will allow for those prerequisites to be satisfied, and so forth. That is what the parties did here. But, [**54] once again, the prerequisites that they identified in each offer make clear that the execution of a contract for the purchase and sale of the property was indispensable to consummation of the transactions: closing of each purchase and sale was contingent upon the successful completion of the entitlements period, which in turn was contingent upon the satisfactory completion of the inspection period, which in turn did not commence until the parties had executed the contract.

In sum, the express terms of the offers make plain that the parties did not intend for those offers to constitute binding agreements for the purchase and sale of the two properties. Key milestones in the progress toward consummation of each purchase and sale were made contingent upon the subsequent execution of a formal contract. Because the parties never executed [*1002] such a contract, Ocean Atlantic lacks an enforceable right to purchase the properties.

E.

Ocean Atlantic contends that the offers are, at the least, intrinsically ambiguous as to the parties' intent, thereby necessitating a trial at which the finder of fact could sort out those ambiguities. It notes, for example, that each offer contains all of [**55] the terms necessary (in its view) to enforce a contract for the purchase and sale of real estate--including the names of the purchaser and seller(s), the price, the central terms and conditions of the sale, and a description of the property, see Santo v. Santo, 146 Ill. App. 3d 774, 497 N.E.2d 492, 494, 100 Ill. Dec. 514 (Ill. App. Ct. 1986) (to be specifically enforceable, letter agreement for sale of land must contain essential terms such as these), citing Inland Real Estate Corp. v. Christoph, 107 Ill. App. 3d 183, 437 N.E.2d 658, 661, 63 Ill. Dec. 9 (Ill. App. Ct. 1981)--and that the offers use the words "offer" and "acceptance," which are classic contractual terms that indicate a meeting of the minds, see Magallanes Inv., 994 F.2d at 1219. It also points out that each offer contains a provision stating that it will be "null and void" unless "accepted" within a specified time. See Inland Real Estate at 660-61 (concluding that "null and void" clause gave rise to ambiguity as to parties' intent because it was consistent with intent to be bound). Aurora Christian and the Koniceks alike signaled their acceptance by signing and [**56] returning the offer to Ocean Atlantic (although, as discussed earlier, the Koniceks failed to do so within the specified time limit). Finally, Ocean Atlantic reiterates that neither offer contains a "subject to" clause indicating that the subsequent execution of a more comprehensive contract was essential to purchase and sale of the property. See supra at 30-31; Magallanes Inv., 994 F.2d at 1218; Evans, Inc. v. Tiffany, 416 F. Supp. 224, 239 (N.D. Ill. 1976) (failure to include such a clause suggests intent to be bound). Each of these circumstances suggests to Ocean Atlantic that the parties shared an intent to be bound by the offer.

As the foregoing analysis makes plain, however, we discern no ambiguity in the offers vis a vis the parties' intent. The offers no doubt reveal that the parties had come to terms on "some of " the parameters for the purchase and sale of the two properties--perhaps even the most important terms. At the same time, the offers admittedly lack language making Ocean Atlantic's agreement to purchase the properties, and the owners' agreement to sell the land, contingent upon the execution of a final contract. But by postponing [**57] until execution of such a contract the inspection and entitlement periods on which consummation of the two transactions hinged, the offers make plain that they did not represent definitive agreements between Ocean Atlantic and the sellers. The parties structured each of the transactions in such a way that preparation and execution of a more comprehensive contract was a signally important prerequisite to the ultimate purchase and sale of the land. By doing so, the parties made plain that they did not mean to be bound to the terms set forth in the offer.

F.

Ocean Atlantic also invites the court's attention to a series of circumstances beyond four corners of the offers themselves which it believes gives rise to an extrinsic ambiguity as to whether the offers were binding. It notes, in the first instance, that each offer was the product of months of negotiations with the prospective sellers. Indeed, in both cases, Ocean Atlantic submitted multiple offers, each reflecting revisions it made in response to the sellers' demands, before securing acceptance from [*1003] Aurora Christian and the Koniceks: Aurora Christian had negotiated for both increases in the purchase price as well as a decrease [**58] in the acreage to be sold; and the Koniceks had asked for increases in the purchase price, the addition of provisions for crop damage and insurance coverage, and the addition of signature lines for Wayne and Lois Konicek (the original offer had named Dale Konicek alone as the property owner). The extent and substance of these interchanges suggest to Ocean Atlantic that the parties viewed the offer as the embodiment of their agreement and not just an interim summary of negotiations that were ongoing. Consistent with this view, Ocean Atlantic points to minutes from an Aurora Christian board of directors meeting indicating that the board had chosen to pursue Ocean Atlantic's offer from among several it had received on its property, that the board weighed and rejected various changes it might ask Ocean Atlantic to make to the offer, and that it considered what effect its acceptance of Ocean Atlantic's offer would have on Aurora Christian's other development plans. See Aurora Christian App. A122-23. When Aurora Christian's president signed Ocean Atlantic's third offer, Aurora Christian's treasurer returned it to Ocean Atlantic with a note indicating that "your . . . letter offer has [**59] been accepted." Aurora Christian App. A141. Aurora Christian subsequently informed another bidder that it had reached an agreement with Ocean Atlantic. Aurora Christian App. A147. Each of these facts suggests to Ocean Atlantic that Aurora Christian understood and treated the accepted offer as a binding contract. In a like vein, Ocean Atlantic highlights testimony from the Koniceks to the effect that they wanted terms regarding insurance and crop damage included in the offer so that those provisions would be in place in the event that the inspection period began immediately upon acceptance of the offer. See Konicek App. A165 (deposition of Wayne Konicek), A151 (deposition of Dale Konicek). Indeed, when the Koniceks' attorney returned the signed offer to Ocean Atlantic, his cover letter indicated that "per the letter [offer], "the inspection period was to commence immediately, as of the date the offer was signed; he also enclosed proof of the Koniceks' liability insurance coverage. See Konicek App. A61. That understanding is, as we have noted, inconsistent with the terms of the offer itself, but Ocean Atlantic argues that the court is bound to consider it as proof that the [**60] offers are not as clear as they might at first blush appear. And, lest we view all of this evidence as insufficient to establish an extrinsic ambiguity in the offers, Ocean Atlantic contends that it should be given the opportunity to engage in further discovery so that it might marshal additional evidence.

None of the evidence to which Ocean Atlantic has pointed us, however, constitutes admissible evidence of an extrinsic ambiguity in either offer. An extrinsic ambiguity is one that is not apparent from the face of a document, one that requires evidence from other sources to establish. See, e.g., United States v. Rand Motors, 305 F.3d 770, 774-75 (7th Cir. 2002); Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 706 N.E.2d 882, 885, 236 Ill. Dec. 8 (Ill. 1999). Whereas we have construed the offers to constitute preliminary, non-binding writings that conditioned the purchase and sale of the properties upon the subsequent execution of more complete contracts, Ocean Atlantic points to extrinsic evidence of the kind we have just discussed as proof that the parties themselves believed that the offers bound them. But the general rule in [**61] Illinois is that only objective evidence supplied by disinterested third parties may establish an extrinsic ambiguity in a contract. See AM Int'l, Inc. v. Graphic [*1004] Mgmt. Assocs., Inc., 44 F.3d 572, 575 (7th Cir. 1995); but see also Dispatch Automation, Inc. v. Richards, 280 F.3d 1116, 1121 (7th Cir. 2002) (assuming that written admission by opposing party as to meaning of contract might constitute objective evidence of external ambiguity). Ocean Atlantic's proof, by contrast, focuses on the parties' own, subjective construction of the offers and whether or not they were binding. The evidence does not suggest that the terms of the offers carried a unique, contextual meaning not apparent from the face of each offer, nor does it give us reason to question what the offers plainly said. See AM Int'l, 44 F.3d at 575. As such, this evidence does not create doubt about the meaning of the offers, nor does it demonstrate a need for further discovery. Our focus remains within the four corners of the offers, and within those boundaries we discern no ambiguity. ⁹

9 In both cases, Ocean Atlantic also notes that its practice has been to insist on a signed letter offer before it starts work on drafting a contract. Drafting a contract for the purchase of properties worth in excess of $ 1 million "is a time-consuming and costly process," its president notes. Aurora Christian App. A143 P 9 (deposition of Michael Ferraguto, Jr.). Making sure by way of a signed offer that the parties are of one mind on the essential terms of the deal before they set to work on writing the contract "assures Ocean Atlantic that its time and financial investment [are] not wasted, particularly in an improving real estate market." Aurora Christian App. A144 P 10; see also Konicek App. A131 P 9 (affidavit of Kevin Gensler) ("the purpose of such letter agreements is to bind the parties to the major business terms of the sale prior to expending money on legal and other fees to negotiate the minor details of the more formal contract"). Ocean Atlantic's desire to avoid wasting its time and resources negotiating a contract that a seller might or might not sign is understandable. Even so, the expenditures of time and money that Ocean Atlantic made in an effort to finalize agreements with Aurora Christian and the Koniceks are hardly so significant or unusual as to raise doubt about whether the parties intended for the offers to be binding. As we observed in Empro Mfg., "outlays of this sort cannot bind the other side any more than paying an expert to tell you whether the painting at the auction is a genuine Rembrandt compels the auctioneer to accept your bid." 870 F.2d at 426.

[**62] G.

Ocean Atlantic seizes upon Judge Holderman's observation that the Koniceks and Ocean Atlantic might have reached an agreement that was binding in certain respects--in particular, as to Ocean Atlantic's right to inspect the property and its liability for any crop damage resulting from the inspection--as yet another signal that the terms of the Konicek offer, at least, are ambiguous with respect to the parties' intent. We disagree. In a colloquy with Judge Holderman, Ocean Atlantic's counsel highlighted some of the extrinsic evidence that we have just finished discussing--specifically, that the Koniceks as well as their attorney had believed that an inspection of the property would or might take place before a contract for the purchase and sale of the property was finalized, and that provisions for such things as insurance and crop damage had been included in the offer to account for that possibility. See Konicek R.74 at 5-6. Judge Holderman observed that evidence of this sort was immaterial to a determination of whether the parties had reached a binding agreement for the purchase and sale of the property. Id. at 6. The most that it might show, if read favorably to [**63] Ocean Atlantic, was that the parties had agreed to proceed with an inspection before signing a contract; but an agreement to that limited extent did not, in the judge's view, suggest that the parties had also bound themselves to the purchase and sale of the property:

Before someone purchases property, they usually want to inspect it, they want to evaluate it. If it was a car, [*1005] you'd want to take it for a test-drive, but that doesn't mean you bought it.

Id. at 7. Notably, Judge Holderman did not find that the subjective understanding of the parties gave rise to any ambiguity in the offer itself, nor did he find that the offer actually permitted an inspection prior to the execution of a contract for the purchase and sale of the property. He was discussing what the extrinsic evidence, taken alone, might establish, not what the written offer itself--on which he based his ruling (see id. at 5)--actually provided. As our earlier discussion makes clear, the offer on its face makes plain that an inspection would not occur until the parties had first executed a contract, and that condition was never satisfied. The apparent belief of the Koniceks and their counsel that [**64] an inspection could or would occur in the absence of the contract envisioned by the offer was flatly inconsistent with the offer itself. ¹⁰ And because evidence of this belief does not constitute proper evidence of an extrinsic ambiguity in the offer, it is the language of the offer on which we rest rather than the parties' private expectations and assumptions.

10 Of course, the parties might have elected to proceed with an inspection without first signing a contract as the offer specified. It is certainly not unusual for parties to depart from the terms of their writings in practice (although that is not what occurred here). The Koniceks' anticipation of that possibility does not undermine the offer's explicit requirement that the parties enter into a contract nor does it otherwise bestow binding force on the offer itself.

H.

In the Aurora Christian case, Judge Kocoras ultimately held that the terms of the offer between Ocean Atlantic and Aurora Christian unambiguously revealed the lack of an intent [**65] to be bound; for that reason, he entered summary judgment in favor of Aurora Christian. Earlier in the litigation, however, in denying Ocean Atlantic's own motion for partial summary judgment, the judge had described the offer as ambiguous vis a vis the parties'intent. Aurora Christian R.17 at 4-5. In view of that ruling, as well as arguments that Aurora Christian asserted (successfully) in opposition to Ocean Atlantic's request for summary judgment, Ocean Atlantic asserts that Aurora Christian was foreclosed from subsequently arguing, and Judge Kocoras was foreclosed from subsequently holding, that the offer was unambiguous. In support of this contention, Ocean Atlantic relies on the doctrines of judicial estoppel, mend the hold, and law of the case.

Ocean Atlantic forfeited these arguments by failing to assert them below, however. Its memorandum in opposition to Aurora Christian's summary judgment motion took passing note of the contentions that Aurora Christian had previously made and noted as well that the court had already deemed the offer to be ambiguous. See Aurora Christian App. A279-80, 290. But nowhere in the memorandum did Ocean Atlantic contend that the arguments [**66] Aurora Christian was asserting in support of its motion for summary judgment were barred by the doctrines of judicial estoppel or mend the hold, nor did Ocean Atlantic anywhere suggest that the law of the case doctrine bound Judge Kocoras to his own prior ruling. Although forfeited arguments typically remain subject to review for plain error in criminal cases, the plain error doctrine will rarely permit this court to reach forfeited arguments in civil litigation. See, e.g., McKinney v. Indiana Michigan Power Co., 113 F.3d 770, 774 (7th Cir. 1997). As there is no extraordinary circumstance warranting plain error review here, we do not address Ocean Atlantic's judicial estoppel, mend the hold, and law of the case theories.

[*1006] I.

In the Konicek litigation, Ocean Atlantic not only sought relief in contract from the Koniceks, but relief on the theory of tortious interference with contract from Isenstein-Pasquinelli. To prevail against Isenstein-Pasquinelli, Ocean Atlantic would have to prove that there was, in fact, a binding agreement between the Koniceks and Ocean Atlantic for the purchase and sale of the property. See, e.g., Auston v. Schubnell, 116 F.3d 251, 255 (7th Cir. 1997); [**67] Stafford v. Puro, 63 F.3d 1436, 1441 (7th Cir. 1995). We have concluded otherwise, of course, and this dooms the claims against Isenstein-Pasquinelli as well as those against the Koniceks.

J.

It is not hard to appreciate why Ocean Atlantic may have thought that all but the formalities were over once it had secured signatures on the offers it had extended to Aurora Christian and the Koniceks. The offers arguably covered the most salient aspects of Ocean Atlantic's proposed purchase of the two properties. All that remained in each case was for Ocean Atlantic to draft and the parties to execute a contract consistent with the parameters specified in the offer and otherwise flesh out the logistics of the purchase and sale. But each offer makes clear that the execution of such a contract was no mere formality. Each offer describes itself as a memorialization of "some of the parameters" for Ocean Atlantic's proposed purchase of the property. Each offer also conditions the sequence of events that would culminate in the closing of the purchase upon the execution of a separate contract. Not until that contract was signed would Ocean Atlantic undertake the inspection [**68] of the property in order to confirm that the land would suit its needs, and not until that inspection was satisfactorily completed would Ocean Atlantic begin to secure the approvals it needed from local authorities to develop the property as it hoped. By conditioning the purchase and sale of each property upon the subsequent execution of a contract, the parties left themselves room to walk away from the deal. This was their right:

Illinois law recognizes the prerogative [of contracting parties] to agree to further negotiations, even after most essential contract terms have been settled, while remaining free to back out of a pending deal until the occurrence of some later event.

Venture Assoc., 987 F.2d at 432; see also Empro Mfg., 870 F.2d at 426; Feldman v. Allegheny Int'l, Inc., 850 F.2d 1217, 1221 (7th Cir. 1988). In this case, it is true, the parties did not state expressly that their agreement was contingent upon the subsequent execution of a contract. But they might just as well have, given that key milestones toward the purchase of each property, including the preliminary and necessary step of inspecting the [**69] property, were dependent upon the contract. The first and most reliable indicator of the parties' intent is what the parties wrote, see, e.g., Venture Assoc., 987 F.2d at 432, and here the terms of the offers disclose an intent to be bound not by those preliminary writings but only by the contracts that were never signed. It is therefore our task to send Ocean Atlantic home disappointed. Empro Mfg. Co., 870 F.2d at 426.

III.

We AFFIRM the judgments below.

APPENDIX A

August 5, 1999

VIA FACSIMILE/FEDERAL EXPRESS

Aurora Christian Schools, Inc.

[*1007] 15 Blackhawk Street

Aurora, Illinois 60506

Re: Proposed Purchase and Sale of Approximately 78 Acres of Land Located on the West Side of Deerpath Road, North of I-88 in Kane County, Illinois, and Further Described as Parcel Number 1 on Exhibit "A" (Attached).

Gentlemen:

This Letter Offer ("Offer") will serve to set forth some of the parameters for an offer from Ocean Atlantic Development Corp., ("Purchaser") to purchase the above-referenced property (herein referred to as the "Property") from the Aurora Christian Schools, Inc. ("Seller"):

1.) PURCHASE [**70] PRICE. The purchase price shall be THREE MILLION FIVE HUNDRED AND TEN THOU-SAND DOLLARS ($ 3,510,000) subject to the verification of acreage and based upon a pro rata purchase price of $ 45,000 per acre (the "Purchase Price").

2.) TERMS OF PAYMENT. The Purchaser shall pay the entire Purchase Price, less the Deposit, in cash on the Closing Date.

3.) INSPECTION PERIOD. The acquisition of the Property by the Purchaser shall be subject to an inspection period ("Inspection Period") commencing upon the date that a Contract of Purchase and Sale ("Contract") has been executed by the parties hereto and extending for a period of ninety (90) days. During the Inspection Period, the Purchaser, at its sole cost and expense, will have complete access to the Property for the purpose of conducting such soil borings, engineering tests, environmental studies, and other studies as required with respect to the Property in order to determine if the Property is suitable for the Purchaser's intended use, provided, however, that Purchaser will be responsible for restoring the Property to the condition as it existed when such tests commenced. Purchaser agrees that it shall enter upon the Property [**71] at is own risk, cost and expense, together with the liability responsibility for itself, its agents and any other person or persons involved in the inspection of the Property.

4.) DEPOSIT.

a) Within Five (5) business days of the execution of the Contract of Purchase and Sale, the Purchaser shall deliver to Chicago Title & Trust ("Escrow Agent") a cash deposit, in the amount of TWENTY-FIVE THOUSAND DOLLARS ($ 25,000). In the event that Purchaser elects to terminate the contract during the inspection period, the deposit shall be returned to the Purchaser by the escrow agent.

b) Upon the expiration of the Inspection Period and election of Purchaser to proceed with the acquisition of the Property, the earnest money deposit shall be increased to a total of ONE HUNDRED THOUSAND DOLLARS ($ 100,000) and shall become non-refundable subject to the provisions hereto.

In the event Purchaser defaults in the performance of any of its obligations under the Contract of Sale, the above-mentioned Deposit shall constitute full and complete liquidated damages to the Seller on account of Purchaser's default and Seller shall have no other claims against Purchaser.

5.) ENTITLEMENTS AND GOVERNMENT [**72] APPROVALS. Upon the satisfactory completion of the Inspection Period, Purchaser shall have no more than six (6) months to complete the following:

a) Apply to local municipality to obtain rezoning and final plat approval for the development.

[*1008] b) Reach an agreement with the local municipality and all other applicable governing agencies to supply the Property with sufficient sanitary sewer and water capacity to accommodate the development.

c) Reach an agreement with the local municipality on the requirements for all on-site and off-site public improvements required for the development of the Property, as well as the amount of all fees that will be required.

If, after six (6) months, Purchaser has completed all of its applications for rezoning and final plat approval, and is only waiting for approval or denial, then Seller shall grant Purchaser an additional sixty (60) day period to satisfy conditions for Closing. If, after the additional sixty (60) day extension period, Purchaser has not received approval or denial, then the Purchaser shall have the option to extend the Entitlement Period beyond the additional sixty (60) day period for extended term intervals of thirty (30) days [**73] each. Purchaser shall pay Seller a non-refundable fee of FIVE THOUSAND DOLLARS ($ 5,000) for each thirty(30) day extension that Purchaser seeks. Such extension fee shall not be credited to the purchase price at closing.

6.) CLOSING.

a) The Closing shall occur with thirty (30) days of the annexation, rezoning and final plat approval of the Property, as defined in paragraph 5 hereto.

The Closing shall be subject to the satisfaction of the following conditions:

i.) The conditions set forth in paragraph 5 hereto.

ii.) Title to the Property at Closing shall be marketable and good of record and in fact and insurable as such at ordinary rates by a recognized title insurer free and clear of all liens and encumbrances or unacceptable exceptions.

7.) RIGHT OF FIRST REFUSAL. Purchaser shall have the right of first refusal to purchase Parcel(s) 2 and/or 3 in the event that Seller shall elect to sell either or both parcels.

8.) SELLER'S REPRESENTATIONS.

a) Seller will not further encumber the Property or negotiate, or agree to, its sale.

b) Seller will not make any written or oral commitments or representations to the applicable governmental authorities [**74] or any adjoining or surrounding property owners which would in any manner be binding upon Purchaser or interfere with Purchaser's ability to improve the Property.

c) Seller has no notice of any pending or threatened suit, petition, proceeding or application to modify or affect the zoning of the Property in a manner which would prohibit or restrict the intended use as described herein.

9.) BROKERAGE. Seller and Purchaser each warrant to the other that neither has dealt with any agent, broker, or finder with respect to the transaction contemplated by this Offer, other than Anderson & Associates and Grubb & Ellis who will be paid a commission by the Seller, under separate agreement which commission shall be earned, due and payable only in the event that closing occurs hereunder. Seller and Purchaser shall indemnify each other against any brokerage claims.

10.) CONTRACT OF SALE. Upon such acceptance and return of this Offer, Purchaser shall prepare and present to the Seller a Contract of Purchase and Sale in accordance with the terms and provisions hereof. Purchaser and Seller shall work diligently to execute the Contract within [*1009] Thirty (30) days of the execution of this [**75] Offer.

11.) EXPIRATION. Unless this Offer is signed by Purchaser and Seller, accepting and agreeing to its terms and provisions, returned to and received by the Purchaser by 5:00 p.m., on the tenth day after the date hereof this Offer shall be null and void.

IN WITNESS HEREOF, the parties hereto have set their hands and seals this [6th] day of August, 1999.

________________________________________________________________________________

SELLER:	PURCHASER:
AURORA CHRISTIAN	OCEAN ATLANTIC
SCHOOLS, INC.	DEVELOPMENT CORP.
By: [Paul House]	By: [John C. Carroll]
	John C. Carroll
	Executive Vice President
Its: [President]
Date: [8/6/99]	Date: [8/5/99]

________________________________________________________________________________

cc: Kevin Gensler, Esq. - Dommermuth, Brestal, Cobine & West Ltd. (w/encl.) via facsimile Kane Kiernan - Grubb & Ellis (w/encl.) via facsimile

APPENDIX B

May 24, 2000

VIA FACSIMILE/FEDERAL EXPRESS

Mr. Dale Konicek

Mr. & Mrs. Wayne Konicek c/o Jim Angelotti

CB Richard Ellis

1400 West 16th Street, Suite 350

Oak Brook, ILL [sic] 60523-1447

Re: Revised Proposal for the Purchase and Sale of Approximately 157.64 acres of Land Located on the North Side Ogden Avenue (Rt. 34) at its Intersection with Bristol Road and South [**76] of Kennedy Road, in Kendall County, Illinois as Set Forth on: i.) Tax Map Numbers 02-14-352-001, 02-15-477-001, 02-23-126-001; and, ii.)Exhibit "A" Attached

Dear Mrs. Konicek and Mssrs Konicek:

This Letter Offer ("Offer") will serve to set forth some of the parameters for an offer from Ocean Atlantic Chicago Corp., ("Purchaser") to purchase the above-referenced property (herein referred to as the "Property") from Dale Konicek, and Wayne and Lois Konicek ("Sellers"):

1.) PURCHASE PRICE. The purchase price shall be THREE MILLION NINE HUNDRED NINETY TWO THOUSAND TWO HUNDRED AND THIRTY-THREE DOLLARS ($ 3,992,233) subject to the verification of acreage and based upon a prorata purchase price of $ 25,325 per acre (the "Purchase Price").

2.) TERMS OF PAYMENT. The Purchaser shall pay the entire Purchase Price, less the Deposit, in cash on the Closing Date.

3.) INSPECTION PERIOD. The acquisition of the Property by the Purchaser shall be subject to an inspection period ("Inspection Period") commencing upon the date that a Contract of Purchase and Sale ("Contract") has been executed by the parties hereto and extending for a period of ninety (90) days. Until Closing, the [**77] Purchaser, at its sole cost and expense, will have complete access to the Property for the purpose of conducting such soil borings, engineering tests, environmental studies, and other studies as required with respect to the Property in order to determine if the Property is suitable for the [*1010] Purchaser's intended use, provided, however, that Purchaser will be responsible for restoring the Property to the condition as it existed when such tests commenced. Purchaser agrees that it shall enter upon the Property at its own risk, cost and expense, together with the liability responsibility for itself, its agents and any other person or persons involved in the inspection of the Property.

4.) DEPOSIT.

a) Within Five (5) business days of the execution of the Contract of Purchase and Sale, the Purchaser shall deliver to Chicago Title & Trust ("Escrow Agent") a cash deposit, in the amount of FIFTY THOUSAND DOLLARS($ 50,000). In the event that Purchaser elects to terminate the contract during the inspection period, the deposit shall be returned to the Purchaser by the escrow agent.

b) Upon the expiration of the Inspection Period and election of Purchaser to proceed with the acquisition of [**78] the Property, the earnest money deposit shall be increased to a total of ONE HUNDRED THOUSAND DOLLARS ($ 100,000) and shall become non-refundable subject to the provisions hereto. Purchaser shall instruct the Escrow

Agent to release FIFTY THOUSAND DOLLARS ($ 50,000) of the Deposit to the Sellers.

In the event Purchaser defaults in the performance of any of its obligations under the Contract, the above-mentioned Deposit shall constitute full and complete liquidated damages to the Sellers on account of Purchaser's default and Sellers shall have no other claims against Purchaser.

5.) ENTITLEMENTS AND GOVERNMENT APPROVALS. Upon the satisfactory completion of the Inspection Period, Purchaser shall have no more than six (6) months to complete the following:

a) Apply to local municipality to obtain rezoning and final plat approval for the development.

b) Reach an agreement with the local municipality and all other applicable governing agencies to supply the Property with sufficient sanitary sewer and water capacity to accommodate the development.

c) Reach an agreement with the local municipality on the requirements for all on-site and off-site public improvements required for the [**79] development of the Property, as well as the amount of all fees that will be required.

If, after six (6) months, Purchaser has completed all of its applications for rezoning and final plat approval, and is only waiting for approval or denial, then Sellers shall grant Purchaser an additional sixty (60) day period to satisfy conditions for Closing. If, after the additional sixty(60) day extension period, Purchaser has not received approval or denial, then the Purchaser shall have the option to extend the Entitlement Period beyond the additional sixty (60) day period for extended term intervals of thirty(30) days each. Purchaser shall pay Sellers a non-refundable fee of FIVE THOUSAND DOLLARS ($ 5,000) for each thirty (30) day extension that Purchaser seeks.

6.) CLOSING.

a) The Closing shall occur within thirty (30) days of the annexation, rezoning and final plat approval of the Property, as defined in paragraph 5 hereto.

b) The Closing shall be subject to the satisfaction of the following conditions:

i.) The conditions set forth in paragraph 5 hereto.

ii.) Title to the Property at Closing shall be marketable and good of record and in fact and insurable as such at ordinary [**80] rates by a recognized title [*1011] insurer free and clear of all liens and encumbrances or unacceptable exceptions.

7.) SELLER'S REPRESENTATIONS.

a) Sellers will not further encumber the Property or negotiate, or agree to, its sale.

b) Sellers will not make any written or oral commitments or representations to the applicable governmental authorities or any adjoining or surrounding property owners which would in any manner be binding upon Purchaser or interfere with Purchaser's ability to improve the Property.

c) Seller [sic] has no notice of any pending or threatened suit, petition, proceeding or application to modify or affect the zoning of the Property in a manner which would prohibit or restrict the intended use as described herein.

d) Purchaser and Sellers agree to keep the terms and conditions and all negotiations regarding this Letter Offer confidential.

8.) BROKERAGE. Sellers and Purchaser each warrant to the other that neither has dealt with any agent, broker, or finder with respect to the transaction contemplated by this Offer, other than Jim Angelotti and Tony Gange of CB Richard Ellis who will be paid a commission by the Purchaser, under separate agreement which [**81] commission shall be earned, due and payable only in the event that closing occurs hereunder. Sellers and Purchaser shall indemnify each other against any brokerage claims.

9.) INSURANCE COVERAGE. Prior to the initiation of any ingress or egress to the Property the Purchaser shall obtain liability insurance in the amount of $ 1,000,000 naming the Seller [sic] as an additional insured party. Similarly, the Seller shall provide evidence of current liability coverage to the Purchaser.

10.) CROP DAMAGE. In the event that there is any damage to existing crops, the Purchaser shall reimburse the Seller [sic] $ 350 per acre, the acreage affected shall be determined by an independent surveyor.

11.) LIKE-KIND EXCHANGE. Purchaser agrees to cooperate with Sellers to effect a Like-Kind Exchange, as defined within Internal Revenue Code 1031. All costs associated with the Like-Kind Exchange shall be paid by Sellers.

12.) CONTRACT OF SALE. Upon such acceptance and return of this Offer, Purchaser shall prepare and present to the Sellers a Contract of Purchase and Sale in accordance with the terms and provisions hereof.

13.) EXPIRATION. Unless this [**82] Offer is signed by Purchaser and Sellers, accepting and agreeing to its terms and provisions, returned to and received by the Purchaser by 5:00 p.m., on the fifth day after the date hereof this Offer shall be null and void.

IN WITNESS WHEREOF, the parties hereto have set their hands and seals this [31st] day of May, 2000.

________________________________________________________________________________

SELLERS:	PURCHASERS:
	OCEAN ATLANTIC
	CHICAGO CORP.
[Dale Konicek]	By: [John C. Carroll]
Dale Konicek	John C. Carroll
	Executive Vice President
Date: [5/31/2000]	Date: [5/24/2000]
[Wayne Konicek]
Wayne Konicek
Date: [5/3
[Lois Konicek]
Lois Konicek
Date: [5/3

________________________________________________________________________________