EXHIBIT 10.33
REAL ESTATE PURCHASE AGREEMENT
BY AND BETWEEN
AC PROPERTIES, L.L.C.
AND
THE PRIME GROUP, INC.
REAL ESTATE PURCHASE AGREEMENT
TABLE OF CONTENTS
PARAGRAPHS PAGE
1. Sale and Purchase...................................................... -1-
2. Purchase ▇▇▇▇▇, ▇▇▇▇▇▇▇ Money.......................................... -2-
3. Feasibility Period..................................................... -3-
4. Infrastructure Improvements and Reciprocal Easement Agreement.......... -4-
5. Conveyance; Permitted Title Exceptions................................. -11-
6. Closing................................................................ -11-
7. Method of Closing...................................................... -12-
8. Commitment and Survey.................................................. -12-
9. Title Policy........................................................... -13-
10. Correction of Defects.................................................. -14-
11. Seller's Deliveries; Inspection........................................ -14-
12. Seller's Covenants..................................................... -15-
13. Representations and Warranties......................................... -16-
14. Environmental Indemnity................................................ -21-
15. Conditions to Purchaser's Obligation to Close.......................... -22-
16. Provisions with Respect to Closing..................................... -24-
17. Closing Adjustments.................................................... -25-
18. Condemnation........................................................... -26-
19. Defaults and Remedies.................................................. -27-
20. Modification, Waiver, etc. ............................................ -27-
21. Notices................................................................ -28-
22. Governing Law.......................................................... -29-
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23. Counterparts........................................................ -29-
24. Captions............................................................ -29-
25. Construction........................................................ -29-
26. Assignability by Purchaser.......................................... -29-
27. Binding Effect...................................................... -30-
28. Partial Invalidity.................................................. -30-
29. Time is of the Essence.............................................. -30-
30. Confidentiality and Return of Documents............................. -30-
31. Force Majeure....................................................... -31-
32. Acceptance of Offer................................................. -31-
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REAL ESTATE PURCHASE AGREEMENT
------------------------------
THIS REAL ESTATE PURCHASE AGREEMENT (the "Agreement") is made and entered
into as of the 14th day of February, 1997, by and between THE PRIME GROUP, INC.,
an Illinois corporation ("Purchaser"), and AC PROPERTIES, L.L.C., a Michigan
limited liability company ("Seller").
In consideration of the mutual covenants, agreements, representations and
warranties set forth in this Agreement, and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Sale and Purchase.
Seller agrees to sell, convey and assign to Purchaser, and Purchaser agrees
to purchase and accept under the terms and conditions and for the purchase price
set forth below, the following:
(A) That portion of the land marked "PG" situated in Southfield, Michigan
(the "City"), depicted on the preliminary site plan attached hereto as
EXHIBIT A, consisting of approximately six (6) acres, together with any
improvements located on such land, all of the rights, privileges, easements
and appurtenances belonging or appertaining to such land, including any
right, title and interest in and to streets, alleys and rights-of-way
adjacent to such land (such land and all such rights, privileges, easements
and appurtenances are collectively referred to herein as the "Real
Estate"). Purchaser acknowledges that Seller is in the process of
developing approximately sixty (60) acres of land adjacent to the Real
Estate (the "ACP Development").
(B) All tangible or intangible personal property or interest therein, if
any, now or hereafter owned or held by Seller to the extent used solely in
connection with the Real Estate (or any portion thereof) or solely in
connection with the ownership, operation, management or use thereof
(hereafter the "Personal Property"). Upon reasonable notice and at
reasonable times, Seller shall make all such tangible and intangible
property that is held by Seller and used for the ACP Development available
to Purchaser provided such items relate to the Real Estate. The Personal
Property shall exclude all items that relate to the ACP Development. The
ownership of any and all such tangible and intangible personal property
that relates to both the Real Estate and the ACP Development shall remain
the property of Seller to the extent it relates to the ACP Development and
shall become the
property of Purchaser to the extent it solely relates to the Real Estate.
The Personal Property includes, but is not necessarily limited to, (i) all
licenses and other permits, approvals, applications, authorizations,
certificates, permissions, no action letters and similar assurances issued
by any private person or persons or by any governmental or quasi-
governmental authority or authorities to the extent relating solely to the
Real Estate, or any portion thereof, or the ownership, operation,
management or use thereof.
The Real Estate and the Personal Property are herein sometimes collectively
called the "Premises".
2. Purchase ▇▇▇▇▇, ▇▇▇▇▇▇▇ Money.
A. The purchase price (the "Purchase Price") for the Premises shall be One
Million Seven Hundred Seventy-Five Thousand and no/100 Dollars
($1,775,000.00) payable at the Closing as provided in this Agreement,
subject to prorations and adjustments as set forth in this Agreement.
B. Within five (5) Business Days following the execution and delivery of
this Agreement by Purchaser and Seller, Purchaser shall deposit the sum of
Ten Thousand and no/100 Dollars ($10,000.00), as initial ▇▇▇▇▇▇▇ money (the
"Initial ▇▇▇▇▇▇▇ Money") in an escrow ("Escrow") established with First
American Title Insurance Company (the "Title Company"). Within three (3)
Business Days following the expiration of the Feasibility Period (defined
below) provided this Agreement is not terminated in accordance with its
terms, Purchaser shall deposit in the Escrow the sum of Forty Thousand and
no/100 Dollars ($40,000.00), as additional ▇▇▇▇▇▇▇ money (the "Additional
▇▇▇▇▇▇▇ Money". The Initial ▇▇▇▇▇▇▇ Money, the Additional ▇▇▇▇▇▇▇ Money,
and any other ▇▇▇▇▇▇▇ money deposited pursuant to this Agreement, to the
extent deposited in Escrow at the relevant time, and all accrued interest
and other earnings on such amounts, are sometimes referred to herein
together as the "▇▇▇▇▇▇▇ Money". The ▇▇▇▇▇▇▇ Money shall be held by the
Title Company in accordance with escrow instructions substantially in the
form attached hereto as EXHIBIT B (the "Escrow Instructions"). The ▇▇▇▇▇▇▇
Money shall be invested in a money market fund or in such other investment
instrument or account designated by Purchaser. At the Closing, the ▇▇▇▇▇▇▇
Money shall be applied against the Purchase Price. In the event the
Closing does not occur and\or this Agreement is terminated for any reason
other than a Purchaser Default, the ▇▇▇▇▇▇▇ Money shall be returned to
Purchaser.
C. Seller has delivered to Purchaser (i) a copy of a title commitment for
a standard title insurance policy issued by the Title Company dated January
15, 1997 for the Real Estate and
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the "ACP Development", as hereafter defined (the "Prior Title Commitment"),
(ii) an ALTA Survey for the Real Estate and ACP Development (the "Prior
Survey") and (iii) a preliminary site plan for the Real Estate and the ACP
Development. Within three (3) days after the Effective Date, Seller will
provide Purchaser a computer disk containing information relative to the
regulated wetlands shown on the Property and the ACP Development. Seller
shall provide Purchaser with any information from the City's wetlands
consultant changing the scope of the regulated wetlands on the Real Estate
within three (3) days of Seller's receipt of such information. If any such
change in the configuration of the regulated wetlands has in Purchaser's
reasonable judgment a material adverse affect on development of Purchaser's
proposed project on the Real Estate, then Purchaser shall have the right
upon written notice to Seller to terminate this Agreement in which case the
▇▇▇▇▇▇▇ Money shall be returned to Seller. Purchaser and Seller agree that
they have approved the preliminary site plan for the Real Estate (the
"Preliminary Site Plan") attached hereto as EXHIBIT A. Seller intends to
use the Preliminary Site Plan along with its site plan for the ACP
Development to develop a master site plan (the "Master Plan") for the
Property and the ACP Development Property.
D. Notwithstanding any other provision of this Agreement, the ▇▇▇▇▇▇▇
Money shall be non-refundable to Purchaser in the event the Closing does
not occur because of a Purchaser Default after Purchaser has received the
Zoning Approvals specified in Paragraph 15(f) of this Agreement. Purchaser
shall be deemed to have been satisfied with the updated Commitment and
updated Survey unless objected to by Purchaser in writing pursuant to
Paragraph 10 of this Agreement.
3. Feasibility Period. This Agreement shall be contingent upon the
satisfactory inspection of the Premises by Purchaser, in its sole and absolute
discretion and judgment, during the period (the "Feasibility Period") commencing
on the date of Seller's execution and delivery to Purchaser of this Agreement,
and ending on the later of (i) the forty-fifth (45th) day after this Agreement
has been executed by, and a fully executed original copy has been delivered to,
both Seller and Purchaser (the "Effective Date") or (ii) the tenth (10) Business
Day after receipt by Purchaser of the last of the following:
(1) The updated Commitment (as defined below); and
(2) The updated Survey (as defined below).
During the Feasibility Period, Purchaser shall have the right to physically
inspect the condition of the Premises, to conduct various tests with respect to
the Premises, including, but not
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limited to, soil tests and environmental and hazardous and toxic waste tests and
to otherwise determine the feasibility (economic or otherwise) of the
acquisition, ownership and development of the Premises. Purchaser hereby agrees
to indemnify, protect and hold harmless Seller from and against any and all
claims, demands, losses, costs (including reasonable attorneys' fees), damages,
expenses or liabilities caused by Purchaser's inspection of the Premises or by
tests conducted on the Real Estate by or on behalf of Purchaser. In the event
Purchaser does not purchase the Real Estate, Purchaser agrees to restore the
Real Estate to substantially the same condition as existed prior to any such
testing on the Real Estate by Purchaser or its agents. The foregoing
indemnification and restoration obligations of Purchaser shall survive the
termination of this Agreement until such restoration is complete, and Purchaser
agrees that in the event Purchaser does not purchase the Real Estate, Purchaser
shall complete any such restoration within ten (10) days after written demand
from Seller. At any time during the Feasibility Period, Purchaser, in
Purchaser's sole and absolute discretion, may, upon written notice to Seller,
terminate this Agreement, in which event, all of the rights, duties and
obligations of the parties hereto shall immediately terminate, and this
Agreement shall be null, void and of no further force or effect, and the ▇▇▇▇▇▇▇
Money shall be returned to Purchaser. If, in Purchaser's sole judgment and
discretion, Purchaser decides that it does not wish to proceed with the
purchase, Purchaser shall give Seller written notice of such fact on or before
the end of the Feasibility Period. Seller, at no expense to Seller except as
provided in this Agreement, shall cooperate fully with Purchaser and Purchaser's
agents, employees and representatives in connection with Purchaser's
inspections, tests, surveys and studies of the Premises.
4. Infrastructure Improvements and Reciprocal Easement Agreement.
A. Seller and Purchaser agree that in connection with the development of
the ACP Development by Seller and the development of the Premises by
Purchaser, Seller shall construct certain infrastructure improvements (the
"Infrastructure Improvements") which will benefit both the ACP Development
and the Premises. The Infrastructure Improvements consist of (i) all road
improvements to that portion of Eleven Mile Road fronting, and in the
vicinity of, the Real Estate and the ACP Development, required by the City
in connection with the approval of Seller's Master Plan, (ii) the
mitigation on the ACP Development of certain regulated wetlands currently
existing on the Premises, (iii) construction of a common storm water
detention system (the "Detention System") on the ACP Development serving
both the Premises and the ACP Development, and (iv) to the extent Purchaser
decides not to, or is unable to, connect to any or all utility services
directly from Eleven Mile Road, the construction of common utility lines
and
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facilities (the "Utility Lines") over the ACP Development to serve both the
ACP Development and the Premises. Seller may provide for the ongoing
maintenance of the Infrastructure Improvements by forming a site
condominium and a non-profit condominium association affecting the ACP
Development. Purchaser and Seller shall share in the "Shared Costs" (as
defined below) of the installation of the Infrastructure Improvements
referred to in clauses (i), (iii) and (iv) above and not in clause (ii)
above (the "Shared Improvements"), and the Purchaser and Seller shall
equitably share in funding the cost of maintenance of the Shared
Improvements, pursuant to the terms and conditions of a development and
reciprocal easement or similar agreement (the "REA Agreement") as described
below. The term "Shared Costs" shall mean the direct out-of-pocket costs
paid by Seller to JCCI, as hereinafter defined, and to unaffiliated third
parties for (s) hard construction costs incurred in connection with the
physical installation of such Shared Improvements, (t) utility relocation
costs directly related to the Shared Improvements, (u) professional fees
for the design and engineering of the Shared Improvements and "as built"
drawings, (v) the cost of obtaining the applicable building and/or grading
permits, (w) inspection/review and bond fees paid to governmental
authorities, (x) engineering layout and staking fees and (z) quality
control testing fees. Shared Costs specifically do not include legal fees
or expenses, or other soft costs not listed in the foregoing definition of
Shared Costs. Seller shall have the right to use JCCI and any other
affiliate to do the work for any Shared Improvements, provided Seller (a)
notifies Purchaser in advance of the use of such affiliate (except for the
construction management by JCCI), (b) gets a minimum of three (3) bids for
any work under any major contract from independent contractors, (c) if a
bidding process is required, Seller's affiliate matches the lowest bid plus
five percent (5%) and (d) in any event, such contract price to be paid to
Seller's affiliate (including JCCI) is not materially higher than the
prevailing market rates of qualified independent contractors in the
Southfield, Michigan area. Seller and Purchaser acknowledge and agree that
▇▇▇▇▇ Construction Company, Inc. ( "JCCI"), an affiliate of Seller, will be
acting as the construction manager for the construction of the Shared
Improvements, and that Seller shall not be required to solicit bids for
such services. However, the fees including general conditions charges as
described on EXHIBIT C attached hereto) payable to JCCI for such services
may not exceed an amount which is normal and customary in the Detroit
metropolitan area. The Shared Costs of the Shared Improvements shall be
shared by Seller and Purchaser on a pro-rata basis, based on the Net Usable
Acres of the Real Estate and the ACP Development. "Net Usable Acres" shall
mean the total gross acreage of a parcel less the area of any (i) roadways
(but not parking areas), (ii) regulated wetlands and
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(iii) stormwater detention and sedimentation areas. The Net Usable Acres of
the Real Estate shall be based on the final site plan as described in
Paragraph 15(F) below and the Net Usable Acres of the ACP Development will
be based on the final approved Master Plan. The allocation and payment of
costs, and a more detailed definition of the Net Usable Acres, shall be
included in the REA Agreement. If Seller is required to establish a
Completion Escrow (as defined below) for completion of the Shared
Improvements, then Purchaser shall at the same time contribute to the
Completion Escrow Purchaser's share of the anticipated costs, and any
excess contributed by Purchaser shall be returned to Purchaser once the
final Development Costs are known. Seller shall be entitled to draw, with
Purchaser's approval of each draw (or pursuant to another mechanism agreed
to by Purchaser and Seller), on the Completion Escrow for the costs of the
Shared Improvements on a construction loan draw basis. A "construction loan
basis" means that (i) Seller shall be obligated to provide appropriate
sworn owner's and contractors' statements, architect's or engineer's
certificates, and partial (or in the event of the final draw, final)
unconditional lien waivers for the previous draw, (ii) Seller and Purchaser
must first fund their relevant shares of any cost overuns in the
Development Costs prior to drawing on the Completion Escrow (although a
failure by Purchaser to fund shall not prevent a draw by Seller if Seller
has funded its share) and (iii) such draws may not occur more frequently
than monthly. Seller must complete the Shared Improvements lien free and
must immediately obtain the release of, or bond over to Purchaser's and
Purchaser's lender's satisfaction, any mechanics' or materialmens' liens
which are recorded against the Real Estate in connection with Seller's
work. Seller shall not be allowed to draw on the Completion Escrow while
any mechanics' or materialmens' liens are filed against the Real Estate in
connection with Seller's work which have not been released, or insured or
bonded over to Purchaser and Purchaser's lender's satisfaction, except to
the extent Seller has otherwise complied with its obligations under this
Paragraph 4(A) and simultaneously with such draw, any such mechanics' or
materialmens' liens are released or are insured over or bonded over as
described above. Except as agreed to by the parties in the REA Agreement,
Seller agrees that any "notice of commencement" filed by Seller in
connection with the Shared Improvements shall have a legal description
which does not include the Real Estate. Seller may request that Purchaser
include on the Premises any of the Detention System or Utility Lines so
that they are free-standing to support solely the project contemplated for
the Premises, which request shall be subject to Purchaser's approval, which
approval shall not be unreasonably withheld or delayed. In addition,
Purchaser shall have the right (i) unilaterally in Purchaser's sole
discretion, to include on the Premises any of the Utility
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Lines and (ii) with Seller's consent which shall not be unreasonably
withheld or delayed, to include on the Premises any of the Detention
System, so that such facilities serve solely the project contemplated for
the Premises. In either case, Purchaser shall not be required to pay Seller
for Development Costs relating to any such Detention System or Utility
Lines which are instead, pursuant to the foregoing, placed on the Premises.
In such event, any such Detention System or Utility Lines to be placed on
the Premises shall then be at the sole cost and expense of Purchaser,
without the obligation on the part of Seller to install or pay for same.
Seller and Purchaser agree that instead of providing for an allocation of
the Shared Costs as described above, Seller and Purchaser may decide to
agree on a stipulated sum for, and/or a cap on, Purchaser's share of the
Development Costs, in which case, the parties may agree that the REA
Agreement shall stipulate that certain of the requirements contained in
this Agreement (such as competitive bids, etc...) need not apply.
B. Seller shall prepare and deliver a draft of the REA Agreement to
Purchaser at least five (5) Business Days prior to the expiration of the
Feasibility Period. If the REA Agreement is not delivered by such date, the
Feasibility Period shall automatically be extended to the date which is
five (5) Business Days after the delivery by Seller of the REA Agreement to
Purchaser. Purchaser shall have the right after Purchaser's receipt of the
REA Agreement to negotiate any changes it determines to be appropriate with
Seller in order to finalize the REA Agreement in a form satisfactory to
Seller and Purchaser. Seller agrees to negotiate in good faith with
Purchaser, and promptly prepare revised drafts of the REA Agreement.
Purchaser and Seller agree to diligently work together in good faith and be
reasonable in their negotiations in order to attempt to finalize the REA
Agreement on or before the date which is thirty (30) days after Purchaser's
receipt of the first draft of the REA Agreement. The finalization of the
REA Agreement shall remain a condition precedent to Purchaser's obligation
to purchase the Premises and in the event the REA Agreement has not been
finalized in a form acceptable to both Purchaser and Seller within such
thirty (30) day period, then both Seller and Purchaser shall each have the
right to terminate this Agreement at any time after the expiration of such
thirty (30) day period and prior to the date the form of the REA Agreement
has been finalized and agreed to in writing by Purchaser and Seller.
C. Seller agrees, and the REA Agreement shall further provide, that (i) all
plans and specifications, for the construction of the Shared Improvements,
and all modifications to such plans and specifications, and (ii) all
budgets for the
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Development Costs and any modifications to such budgets, shall be subject
to the advance written approval of Purchaser, which approval shall not be
unreasonably withheld or delayed. Seller agrees to provide to Purchaser
simultaneously with the delivery of the REA Agreement, a line item budget
estimating each major component and the total amount of the Development
Costs for the Shared Improvements (the "Budget"), which budget shall be
subject to Purchaser's written approval as part of the REA Agreement
approval process, which approval shall not unreasonably withheld or
delayed. When the Infrastructure Improvements have been completed and
accepted by and/or properly bonded to ("Accepted") all applicable
governmental authorities and utility companies, Seller shall provide
Purchaser with evidence reasonably acceptable to Purchaser (including but
not necessarily limited to sworn owner's and contractor's statements,
architect's and/or engineer's certificates, and lien waivers) (i)
substantiating the total amount of the Development Costs incurred by Seller
in connection with the construction of such Infrastructure Improvements and
(ii) proving that all such Development Costs have been paid by Seller and
that the Infrastructure Improvements have been completed and Accepted lien
free. If the Infrastructure Improvements are not completed and Accepted
lien free prior to the date of Closing, Purchaser shall have the right at
Closing to escrow a portion of the Purchase Price equal to Seller's share
of the estimated Shared Costs (less any Shared Costs previously paid for by
Seller) pursuant to the Budget in a strict joint order escrow (the
"Completion Escrow") with the Title Company, to secure Seller's obligation
to complete the Infrastructure Improvements. The Project Engineer (as
defined below) shall resolve any disputes between Seller and Purchaser
concerning the percentage completion of the Shared Improvements at any one
time. The "Project Engineer" shall be a licensed third-party engineer
unaffiliated with Seller or JCCI who is certifying the percentage
completion of the Shared Improvements. Purchaser shall contribute its share
of the Shared Costs to the Completion Escrow at the same time as Seller.
The escrow instructions for such Completion Escrow shall be in form and
substance reasonably specified by Purchaser and Seller during the
Feasibility Period. The funds in the Completion Escrow shall be released to
Seller no more than monthly on a construction loan basis. If the Closing
occurs on or before July 1, 1997, Seller shall complete the Infrastructure
Improvements lien free and have them Accepted on or before December 31,
1997. If the Closing occurs after July 1, 1997, Seller shall complete the
Infrastructure Improvements and have them Accepted within six (6) months of
Closing; provided however, that the period from November 15, 1997 to March
15, 1998 shall be excluded in calculating the six (6) months. Funds in the
Completion Escrow in excess of Purchaser's share deposited by Purchaser
shall be returned to Purchaser. If (i)
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the Infrastructure Improvements are not completed lien free and Accepted by
the foregoing dates, (ii) Seller has not commenced the construction of all
of the Shared Improvements in ▇▇▇▇▇▇▇ within thirty (30) days after Closing
or (iii) Seller commences construction of the Infrastructure Improvements
in ▇▇▇▇▇▇▇ within thirty (30) days after Closing but work on any or all of
the Shared Improvements ceases for more than thirty (30) consecutive days
or is not being diligently pursued by Seller on a schedule necessary in
Purchaser's reasonable discretion to meet the completion deadlines referred
to above, then, upon thirty (30) days prior written notice to Seller,
Purchaser shall have the right to (i) complete, in Purchaser's discretion,
all or any portion of the Infrastructure Improvements and cause them to be
Accepted, and (ii) draw all of the costs of completing such Infrastructure
Improvements from the Completion Escrow. Purchaser shall be entitled to
draw from the Completion Escrow monthly on a construction draw basis as the
Infrastructure Improvements are constructed provided the Purchaser shall
not be obligated as a condition to drawing on the Completion Escrow to (i)
fund any budget shortfall or (ii) obtain the releases of, or insure or bond
over, any liens related to Seller's construction of the Infrastructure
Improvements. Any excess amounts in the Completion Escrow shall be paid to
Seller and/or Purchaser based on their respective shares of the costs of
constructing the Shared Improvements. The REA Agreement shall include
temporary construction easements granting Purchaser access over the ACP
Development for the purpose of constructing the Infrastructure Improvements
if Seller does not. In addition, any mortgagee or other person or entity
holding any lien on the ACP Premises shall, at the Closing, sign the REA
Agreement for the purpose of subordinating its lien to Purchaser's rights
under the REA Agreement. Prior to the recording of the REA Agreement,
Seller agrees that it shall include in any documentation with any future
holder of a lien on all or any portion of the ACP Development a covenant
requiring such holder to so subordinate its lien to the REA Agreement.
D. In addition, the REA Agreement shall contain a restrictive covenant
affecting that portion of the ACP Development adjacent to the Premises
identified as the "Adjacent Property" on the Site Plan (the "Adjacent
Property"). The restrictive covenant shall list certain prohibited uses for
the Adjacent Property, but no such prohibited uses shall include uses
allowed under the current R-C (Regional Center District) zoning, including
those with a special use permit or variance (but not including variances as
to the actual use). The Adjacent Property may not be used for any of the
uses referred to in such restrictive covenant unless Purchaser grants its
prior written consent to Seller. Seller acknowledges that Purchaser intends
to develop the
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Premises as a senior and assisted living facility for elderly residents and
that it is important to Purchaser that the Adjacent Property not be used in
a manner which, in Purchaser's reasonable discretion, is not harmonious (in
an aesthetic and functional sense) with such a senior and assisted living
facility.
E. As a condition precedent to the Closing, (a) Seller must have obtained,
and must deliver copies to Purchaser of (i) wetlands mitigation permits,
(ii) wetlands crossing permits necessary for Purchaser's access road to
Eleven Mile Road and utility wetlands crossing permits for the Real Estate
(which wetlands crossing permits are specifically Seller's obligation to
obtain) and (iii) all permits relating to the stormwater Detention System,
or (b) Seller must have demonstrated to Purchaser's satisfaction that any
such permits and approvals not yet obtained will be obtained in a timely
manner. If Seller has not complied with the requirements of this Paragraph
4E by Closing, Purchaser shall have the right to terminate this Agreement
and all ▇▇▇▇▇▇▇ Money shall be returned to Purchaser.
F. The Real Estate shall be subject to a restrictive covenant to be placed
in the REA Agreement which provides that the initial development of the
Real Estate may only be for a senior and assisted living facility or such
other initial use consented to in writing by the Seller. Such restrictive
covenant shall in no way prohibit Purchaser from changing in the future the
use of the Real Estate after the development and opening of such senior
and/or assisted living facility. Any such change, other than uses permitted
under the current R-C (Regional Center District) Zoning, including those
uses permitted pursuant to a special use permit, shall require the Seller's
consent, which consent shall not be unreasonably withheld or delayed.
G. Purchaser shall not have the right under the REA Agreement to restrict
any future use of the ACP Development, except for a violation of the
restrictive covenant on the Adjacent Property. The foregoing shall in no
way affect Purchaser's rights independent of the REA Agreement. For
example, Purchaser shall have the right to object to a proposed rezoning of
any portion of the ACP Development at a City Board or Zoning Committee
meeting and proceed against a nuisance or illegal use on the ACP
Development. Notwithstanding the foregoing, Purchaser agrees that Purchaser
will not object to any use permitted under the current R-C zoning and any
special use permits or variances (other than a use variance) requested by
Seller under the current R-C (Regional Center District) zoning on any
portions of the ACP Development, other than the Adjacent Property as
described in Paragraph 4(D) above.
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H. If required by the City or any applicable public utility company, and
provided Seller gives written notice to Purchaser of any such required
easements promptly after Seller becomes aware of such requirement but in no
event less than thirty (30) days prior to Closing, Seller shall have the
right to retain easements for utilities on the Real Estate and ingress and
egress easements through (i) the northern portion of the Real Estate in
order for the ACP Development to have emergency access to Eleven Mile Road
from the ACP Development southern border across the service road on the
Real Estate exiting to Eleven Mile Road, (ii) only if Seller is prohibited
from getting a separate curb cut on Eleven Mile Road despite its good faith
reasonable efforts to do, the access drive located at the western border of
the Real Estate to enable the Adjacent Property to have access for ingress
and egress to the access drive to the Real Estate off of Eleven Mile Road,
and (iii) for a new emergency vehicle road if needed for the ACP
Development, but the exact location and terms and conditions of any such
easements shall be subject to the written approval of Purchaser. If any
such easements would materially interfere with the development or operation
of Purchaser's project on the Real Estate, Purchaser and Seller shall
mutually seek alternatives for such easements and in the event that within
thirty (30) days of Seller's request for such easements, Seller or
Purchaser is not reasonably satisfied with any such proposed alternatives,
Purchaser shall have the right to terminate this Agreement and obtain the
return of the ▇▇▇▇▇▇▇ Money. Purchaser shall have the right, subject to
City approval, to erect chains or gated barriers at any such emergency
access points.
5. Conveyance; Permitted Title Exceptions. Conveyance of the Real Estate
shall be by a general warranty deed delivered to Purchaser, or to a person or
entity designated by Purchaser ("Purchaser's Nominee"), in recordable form,
conveying to Purchaser or Purchaser's Nominee good, marketable and indefeasible
fee simple title to the Real Estate, subject only to (a) easements, covenants,
conditions and restrictions of record as revealed in the Commitment (defined
below) and not objected to in writing by Purchaser within the time period
described in Paragraph 10; and (b) general real estate taxes which are not yet
due and payable (hereinafter referred to collectively as the "Permitted Title
Exceptions"). Unless expressly agreed to by Purchaser in writing, in its sole
discretion, any title exceptions pertaining to liens or encumbrances of a
definite or ascertainable amount ("Removable Liens") shall be removed by Seller
by the payment of money on or before the date of Closing and shall not be
Permitted Title Exceptions hereunder.
6. Closing. When used herein the term "Closing" shall mean the
conveyance of the Premises to Purchaser, the payment of the Purchase Price to
Seller and the issuance to Purchaser of the title
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insurance policy described in Paragraph 9. The Closing shall take place on or
before the thirtieth (30th) day after receipt by Purchaser of all of the Zoning
Approvals described in Paragraph 15F hereof; provided, however, that all other
conditions to Purchaser's obligation to close under this Agreement have been
satisfied and provided that in no event shall Purchaser be required to close
prior to the expiration of the Feasibility Period.
7. Method of Closing. The Closing shall be pursuant to "New York style"
closing, pursuant to which the title insurance policy to be delivered to
Purchaser pursuant to this Agreement shall be delivered at the Closing and shall
be dated as of the date of Closing or pursuant to an escrow arrangement under
which the Title Company issues to Purchaser a "marked-up" original of the
Commitment, reflecting that all requirements of the Commitment have been
fulfilled or waived and eliminating the "gap exception", the standard ALTA
exceptions and all other exceptions other than the Permitted Title Exceptions
and extending the effective date of the coverage through the recording of the
deed of conveyance to Purchaser.
8. Commitment and Survey. Within fifteen (15) days after the Effective
Date, Seller, at Seller's sole cost and expense, shall deliver or cause to be
delivered to Purchaser, in form and substance reasonably satisfactory to
Purchaser:
A. An updated title commitment ("Commitment") to issue an ALTA owner's
title insurance policy for the Real Estate for the benefit of Purchaser,
issued by the Title Company in the amount of the Purchase Price covering
title to the Real Estate on or after the date hereof, showing good,
marketable and indefeasible fee simple title to the Real Estate in the
Seller. Seller shall also deliver to Purchaser, together with the
Commitment, a copy of all documents of record and all exceptions to title
to the Real Estate as indicated in the Commitment.
B. Six (6) copies of an updated ALTA-ACSM Class A "boundary" survey
("Survey") (including field notes) with respect to the Real Estate and any
improvements thereon, dated and certified as of a date subsequent to the
date of this Agreement, prepared by a public surveyor registered by the
State of Michigan, setting forth the legal description of the Real Estate,
showing the location of any improvements, and showing the size and location
of all easements, encroachments and encumbrances listed on the Commitment
(identifying each by liber and page reference, if applicable), reciting the
exact area of the Real Estate in acres and square feet, reciting the exact
area of each easement, encroachment and encumbrance, showing no portion of
the Real Estate situated in an area designated by the U.S. Secretary of
Housing and Urban Development (or by any other governmental or
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quasi-governmental agency or authority having jurisdiction over the Real
Estate) as a flood plain, special flood hazard area or general hazard area,
showing all visible utility lines upon the Real Estate, and showing the
location of any and all regulated wetlands on the Real Estate. The Survey
shall meet the accuracy requirements of an ALTA-ACSM Class A survey, and
contain a certificate specifically addressed to Purchaser, the Title
Company and any other party or parties designated by Purchaser reading as
follows:
"The undersigned does hereby certify that (i) this survey was
this day made upon the ground of the property reflected hereon, for
the benefit of and reliance by Seller, Purchaser, the Title Company
and all other parties listed above; (ii) the legal description
contained hereon is correct; (iii) the Real Estate has access to and
from a dedicated roadway as shown hereon; (iv) except as shown hereon,
there are no discrepancies, conflicts, shortages in area,
encroachments, improvements, overlapping of improvements, easements,
or roadways; (v) the total acreage and the gross square footage and
the square footage net of any portion of the property lying within
public roadways shown hereon are correct; (vi) none of the property
lies within the 100-year flood plain or any special flood hazard area
or general hazard area as designated by any governmental agency; and
(vii) this survey satisfies the accuracy requirements of an ALTA/ACSM
Class A "boundary" survey."
The Survey must be satisfactory to the Title Company so as to permit
it to delete the area and boundary exception in the Title Policy except for
"shortages in area."
If such Commitments or Survey are not delivered to Purchaser within the
specified time, then, without limiting other rights available to Purchaser
hereunder or under law, Purchaser may elect to terminate this Agreement by
written notice to Seller and, thereupon, this Agreement shall become null, void
and of no further force or effect, and the ▇▇▇▇▇▇▇ Money, together with all
interest and earnings accrued thereof, shall immediately be returned to
Purchaser. In the alternative, Purchaser may elect to extend the time for
delivery of the above-described items by up to a maximum of an additional thirty
(30) days, and the time for delivery of the above-described items shall be
deemed extended for such period of time specified by Purchaser.
9. Title Policy. Seller, at Seller's sole cost and expense, shall
deliver or cause the Title Company to deliver to Purchaser, prior to the
disbursement by the Title Company of the Purchase Price deposited by Purchaser,
an ALTA owner's title insurance policy (the "Title Policy"), or a "marked-up"
Commitment satisfying the requirements set forth in Paragraph 7 hereof, with
respect to
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the Real Estate, in the amount of the Purchase Price, in a form reasonably
acceptable to Purchaser, issued by the Title Company pursuant to the Commitment
containing no exceptions other than the Permitted Title Exceptions and insuring
fee simple title to the Real Estate in Purchaser or Purchaser's Nominee. The
Title Policy shall provide extended coverage over the general exceptions and
include the following endorsements: (i) zoning, (ii) access, (iii) contiguity,
if appropriate, (iv) location and (v) such other endorsements as reasonably
requested by Purchaser based on Purchaser's review of the Commitment and Survey
and other matters affecting title to the Real Estate of which Purchaser becomes
aware which are not reflected on the Commitment or on the Survey. Seller shall
pay for the costs of such endorsements up to a maximum of One Thousand Dollars
($1,000.00) and Purchaser shall pay for any costs above such amount.
10. Correction of Defects. If the Commitment, the Survey or the Searches
disclose exceptions to title or other matters which are not permitted hereunder
or which are otherwise objectionable to Purchaser, and Purchaser sends written
notice to Seller objecting to such matters within ten (10) Business Days after
the date of Purchaser's receipt of the last of the Commitment and Survey, then
Seller shall have ten (10) Business Days from delivery by Purchaser of such
notice in which to have such exceptions or other matters corrected, removed or
otherwise waived. The Feasibility Periods shall be extended for such period;
provided, however, the Feasibility Period shall not end before the day which is
ten (10) Business Days following the day on which Purchaser receives written
evidence, that such exceptions or other matters have been corrected, removed or
otherwise waived. If Purchaser does not receive written evidence, reasonably
satisfactory to Purchaser, that such unpermitted exceptions or other matters
have been corrected, removed or otherwise waived to Purchaser's reasonable
satisfaction within the permitted time or if Seller notifies Purchaser in
writing that Seller does not intend to or cannot correct or remove such
unpermitted exceptions or other matters, Purchaser may elect, upon written
notice delivered to Seller within fifteen (15) Business Days after the
expiration of the time permitted for curing such defects or after receipt of
such notice to terminate this Agreement, or to extend the time permitted for
such cure. Any extension or extensions of time permitted by this Paragraph
shall not affect any of Purchaser's rights under this Agreement.
11. Seller's Deliveries; Inspection.
A. Seller shall use reasonably diligent efforts to deliver to Purchaser
(i) no later than ten (10) days after the Effective Date with respect to
documents currently in existence, and (ii) within ten (10) days after
receipt by Seller (but in no event later than Closing) with respect to
documents not in existence as of the date hereof:
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(1) a true and correct copy of the real estate tax ▇▇▇▇ pertaining to
the Real Estate and/or the ACP Development for the most recent year,
including any pending tax protests or appeals, if any;
(2) to the extent any exist which relate to the Premises, true and
correct copies of all permits, licenses, authorizations and other
approvals, if any, issued with respect to the Premises or any proposed
development thereof (the "Permits and Approvals");
(3) to the extent in Seller's possession now or at any time up and
until Closing, "as-built" drawings of any underground utilities
(including storm sewer, sanitary sewer, water, and telephone electric
service cables) located under the Real Estate, and all other material
documents relating to the zoning and availability of utility services
to the Real Estate which would have any material adverse impact on the
Real Estate and/or Purchaser's proposed project; and
(4) any and all (whether existing now or prepared at any time up and
until Closing) (a) soil studies and reports, and any environmental
assessments, studies, tests, reports and analyses, and (b) all other
material data and information relating to the Premises, which Seller
has in Seller's possession or which were or are at any time up and
until Closing prepared for or on behalf of Seller and which would have
any material adverse impact on the Real Estate and/or Purchaser's
proposed project.
B. Purchaser, its agents, representatives and employees may, subject to
Purchaser's indemnification and restoration obligations under Paragraph 3
of this Agreement, during reasonable business hours and upon reasonable
advance notice to Seller, between the date of the Seller's execution of
this Agreement and the date of the Closing, inspect the Premises, and any
portion thereof, and conduct studies, tests and analyses with respect
thereto.
12. Seller's Covenants. Between the date of the execution of this
Agreement and the date of the Closing, Seller shall:
A. Keep and perform all of the material obligations to be performed by the
Seller under each and every agreement, contract and Permits and Approvals
relating to or affecting the Premises, or any portion thereof;
B. Not enter into, execute, extend or renew any lease, easement, license
or any other agreement or contract relating to or affecting the Premises,
or any portion thereof, or
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modify, amend or terminate any lease, contract or agreement to be assigned
to Purchaser pursuant to Paragraph 1B, without, in each case, Purchaser's
prior written consent and approval, which consent and approval will not
unreasonably be withheld, delayed or conditioned if, in the reasonable
judgment of Purchaser, any of the foregoing will not interfere with
Purchaser's intended use of Premises or the contemplated development of the
Real Estate and will not adversely affect the value of the Premises;
C. Not mortgage, hypothecate or further encumber the Premises or any
portion thereof or permit any liens on the Premises or any portion thereof
to arise by operation of law; provided, however that Seller may mortgage
the Real Estate if, under the terms thereof the mortgage will
unconditionally be released upon the payment of an amount not to exceed the
Purchase Price after all prorations and adjustments and less the amount of
any other Removable Liens (in which event the mortgage shall constitute a
Removable Lien);
D. Remedy, at Seller's own expense, all violations caused by Seller or
Seller's employees, officers, agents, contractors, or subcontractors, of
laws, ordinances, orders or other requirements relating to the ownership,
construction, development and operation of the Premises which have been or
may be imposed by any governmental authority having jurisdiction over, or
affecting, all or any part of the Premises prior to the date of the
Closing; and
E. Cooperate with Purchaser, at no expense to Seller, in obtaining all
permits and approvals (excluding building permits) described in Paragraph
15F hereof, and take all actions reasonably requested by Purchaser in
connection therewith; provided the foregoing do not burden the Real Estate
or result in costs to Seller.
13. Representations and Warranties.
A. In order to induce Purchaser to enter into this Agreement, Seller
represents and warrants, and covenants as applicable, to Purchaser that on
the date hereof and on the date of the Closing:
(1) Seller has all necessary and requisite authority to enter into
this Agreement and to consummate all of the transactions contemplated
hereby, and the persons executing this Agreement and all other
documents required to consummate the transactions contemplated hereby
on behalf of Seller are duly authorized to execute this Agreement and
such other documents on behalf of Seller, and are authorized to bind
Seller.
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(2) Seller is a Michigan limited liability company duly formed and
validly existing under the laws of the State of Michigan.
(3) Seller is a "United States person", as defined by Internal Revenue
Code Section 1445 and Section 7701.
(4) The execution of this Agreement by Seller does not, and the
performance by Seller of the transactions contemplated by this
Agreement will not, violate or constitute a breach of the articles of
organization, operating agreement or any shareholders', directors', or
members' resolution of Seller,or any other organizational document
affecting Seller, or any contract, permit, license, order or decree to
which Seller is a party or by which Seller or its assets are bound.
(5) As of the date hereof, Seller has good, marketable and
indefeasible fee simple title to the Real Estate, subject only to the
matters disclosed in the Commitment.
(6) That to the best of Seller's knowledge after due inquiry, the
Premises and the operation thereof are not in violation of any
applicable federal or state law, or any ordinance, order or regulation
of any governmental or quasi-governmental agency having jurisdiction
over the Premises, and no proceedings of any type (including
condemnation or similar proceedings) have been instituted or to the
knowledge of the Seller are pending or contemplated against the Real
Estate or any part thereof or the Premises or any portion thereof.
(7) No party, person or entity is in possession of the Premises or any
portion thereof, and, no party, person or entity has any interest in
the Premises, or any portion thereof, except Seller and except for any
easements and restrictions disclosed in the Title Commitment, and
except for any future encumbrances relating to financing for the
Infrastructure Improvements (which must be released from the Real
Estate at or before Closing).
(8) From and after the Effective Date and through to Closing, there
will be no unrecorded liens or encumbrances, (including, but not
limited to, liens relating to environmental matters) against the
Premises or any portion thereof, other than (i) those arising from the
actions of Purchaser and (ii) those arising from the actions of third
parties unaffiliated with Seller; provided however that as of the date
of this Agreement to the best Seller's knowledge there are no such
unrecorded
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liens or encumbrances arising from the actions of third parties in
existence.
(9) That to the best of Seller's knowledge after due inquiry, there
are not presently pending any special assessments of any nature with
respect to the Real Estate or any portion thereof, nor has the Seller
received any written notice of nor has the Seller any actual knowledge
of any such special assessment being contemplated formally under
discussion or consideration.
(10) Except in connection with infrastructure improvements to be
constructed by Seller pursuant to the REA Agreement, there are no
outstanding contracts or commitments made by Seller (or any of its
agents or affiliates) for the work or materials in connection with the
Premises or for any improvements to the Premises which have not been,
or will not be on or before the date of the Closing, fully paid for on
a timely basis and there are no leases, contracts, commitments or
agreements which will bind Purchaser or the Premises from and after
Closing.
(11) No person or entity has any right or option to acquire all or any
portion of the Premises other than Purchaser pursuant to this
Agreement.
(12) There currently exist no events of default by Seller, or events
which with passage of time or notice or both would constitute events
of default by Seller, under the terms and provisions of any leases or
any other contracts or agreements with respect to the Premises to
which Seller is a party, or to Seller's best knowledge, by any other
party thereto.
(13) From and after the Effective Date and through to Closing, and if
and only to the extent any such Personal Property exists, Seller will
hold, good, valid and marketable title to the Personal Property, if
any, free and clear of any liens, encumbrances or adverse claims, and,
Seller has, and, at all times through the Closing will have, the right
and authority to convey or assign to Purchaser all of the Personal
Property.
(14) There are no violations by Seller or, to the best of Seller's
knowledge, by any other person or entity, of any restrictive covenants
or other matters affecting the Real Estate.
(15) There does not exist any litigation or governmental proceeding
(including, without limitation, any eminent domain proceeding)
affecting the Premises or any portion
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thereof, and to Seller's actual knowledge, no such litigation or
proceeding is pending, threatened or formally under discussion or
consideration.
(16) There are no buildings or other improvements or Personal Property
on the Premises, other than the old farm silos which may or may not be
on the Real Estate.
(17) Seller does not now owe and will not owe any taxes or any
penalties or interest thereon pursuant to any governmental law,
statute or regulation for which Purchaser is or will be obligated to
or liable for a withholding of funds from the Purchase Price pursuant
to any so called "bulk sales" law or other applicable law, statute or
regulation.
(18) (a) Excluding matters disclosed in Seller's Phase I Environmental
Site Assessment American Center Property, Southfield, Michigan
prepared by NTH Consultants, Ltd. and dated November 22, 1996 (the
"Environmental Report"), which Seller shall deliver to Purchaser
within ten (10) days after the Effective Date, Seller has not
generated, treated, stored or disposed of Hazardous Materials (as
defined below) in, under or upon the Real Estate (above or below
ground), or any portion thereof, or used any Hazardous Materials in or
on the Premises, or any portion thereof, in violation of any
Environmental Laws; (b) to the best of Seller's knowledge, except as
disclosed in the Environmental Report, no prior owner and no prior or
current occupant generated, treated, stored or disposed of such
Hazardous Materials in, under or upon the Real Estate, or used any
Hazardous Materials in or on the Premises, or any portion thereof, in
violation of any Environmental Laws; (c) to the best of Seller's
knowledge, except as previously disclosed in the Environmental Report,
no Hazardous Materials are present in, under or upon the Real Estate,
or any portion thereof; (d) to the best of Seller's knowledge, except
as previously disclosed in the Environmental Report, the Premises and
the use and operation of the Premises are not in violation of any
Environmental Laws (as defined below); (e) to the best of Seller's
knowledge, except as previously disclosed in the Environmental Report,
no portion of the Real Estate has ever been used as a sanitary
landfill or dump; (f) to the best of Seller's knowledge, except as
previously disclosed in the Environmental Report, no underground
storage tank or tanks are located on or under the Real Estate; and (g)
to the best of Seller's knowledge, except as previously disclosed in
the Environmental Report, no Hazardous Materials or underground
storage tanks are present in,
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under or upon any parcel of property immediately adjacent to the Real
Estate.
(19) If Seller does not furnish the "disclosure document" described in
Paragraph 15E hereof, then Seller represents and warrants that the
disclosure is not required by Seller in connection with the
transactions contemplated by this Agreement.
(20) Except as indicated on the Survey, no portion of the Premises is
a wetland designated by the United States Army Corp of Engineers or
other federal state or local body or agency having jurisdiction over
the Premises or any portion thereof.
(21) Seller purchased the Premises and the ACP Property "as is" and
did not obtain any environmental representations, warranties or
indemnifications relating to the Premises and/or the ACP Property from
the party who sold such property to Seller.
(22) No leases, contracts and agreements (other than this Agreement)
which would bind or encumber Purchaser or the Premises, have been
entered into by Seller or exist.
B. In the event at any time prior to Closing any of the aforesaid
representations and warranties is no longer true or valid, or any of the
aforesaid covenants have been breached, Seller shall immediately notify
Purchaser in writing and therein specify the factors rendering such
representations or warranties untrue or invalid or causing such covenants
to be breached. All representations and warranties contained in Paragraph
13 or elsewhere in this Agreement shall be deemed remade as of the date of
Closing and shall survive the Closing for fourteen (14) months following
the date of the Closing.
C. Each party hereunder represents to the other party that no party has
relied upon any real estate broker or other finder to consummate the
transactions contemplated by this Agreement other than ▇▇▇▇▇ Organization,
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇
("Broker"). Seller shall pay any and all real estate brokerage
commissions, finder fees and similar fees payable to Broker or any other
person or entity claiming through Broker by reason of the sale or purchase
of the Premises or by reason of any other transaction contemplated by this
Agreement. Seller and Purchaser shall indemnify, defend and hold harmless
the other from and against any and all losses, damages, costs and claims
suffered or incurred by the other as a result or by reason of or breach by
Seller or Purchaser, as the case may be, of the representation set forth in
the first sentence of this Paragraph 13C.
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D. Purchaser represents and warrants to Seller as of the date of this
Agreement and at Closing, that Purchaser has all necessary and requisite
authority to enter into this Agreement and to consummate all of the
transactions contemplated hereby, and the persons executing this Agreement
and all other documents required to consummate the transactions
contemplated hereby on behalf of Purchaser are duly authorized to execute
this Agreement and such other documents on behalf of Purchaser, and are
authorized to bind Purchaser.
E. When used in this Agreement, the terms "to the best of Seller's
knowledge" or "to Seller's actual knowledge", or similar terms, shall mean
to the best knowledge of ▇▇▇▇ ▇. ▇▇▇▇▇, the current President of Seller,
and ▇▇▇▇▇▇ ▇. ▇▇▇▇ of Williams, Williams, Ruby & ▇▇▇▇▇▇▇▇, Seller's
attorney, and any future President and/or future principal attorney (as
opposed to the knowledge of the entire law firm) of Seller as of the date
any representation or warranty is remade.
14. Environmental Indemnity. Seller hereby agrees to indemnify, defend
and hold harmless Purchaser from and against any and all losses, liabilities,
damages, injuries, costs, expenses and claims of any and every kind whatsoever
paid, incurred or suffered by or asserted against Purchaser for, with respect
to, or as a direct or indirect result of Seller's breach of any of the
warranties and representations stated in Paragraph 12A(18) hereof (including,
without limitation, any such losses, liabilities, damages, injuries, costs,
expenses or claims asserted or arising under any Environmental Laws). For
purposes of this Agreement, "Hazardous Material" means and includes any waste
material or other substance defined as hazardous in 42 U.S.C. Sec. 9601(14) or
any related or applicable federal, state or local statute, law, regulation or
ordinance, pollutants or contaminants (as defined in 42 U.S.C. Sec. 9601(33),
petroleum (including crude oil or any fraction thereof), any form of natural or
synthetic gas, sludge (as defined in 42 U.S.C. Sec. 6903(26A), radioactive
substances, hazardous waste (as defined in 42 U.S.C. Sec. 6903(27)) and any
other hazardous wastes, hazardous substances, contaminants or pollutants as
defined or described in any of the Environmental Laws. As used in this
Agreement, "Environmental Laws" means all federal, state and local environmental
laws, and any rule or regulation promulgated thereunder and any order, standard,
interim regulation, moratorium, policy or guideline of or pertaining to any
federal, state or local government, department or agency, including but not
limited to the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA"), the Superfund Amendments and Reauthorization
Act of 1986 ("▇▇▇▇"), the Clean Water Act, the Clean Air Act, the Toxic
Substances Control Act, the Occupational Safety and Health Act, the Federal
Insecticide, Fungicide and Rodenticide Act, the Marine Protection, Research, and
Sanctuaries Act, the National environmental Policy Act, the Noise Control Act,
the Safe Drinking Water Act, the
-21-
Resource Conservation and Recovery Act ("RCRA"), as amended, the Hazardous
Material Transportation Act, the Refuse Act, the Uranium Mill Tailings Radiation
Control Act and the Atomic Energy Act and regulations of the Nuclear Regulatory
Agency, and all state and local counterparts or related statutes, laws,
regulations, and order and treaties of the United States. The indemnification
hereunder shall include and benefit Purchaser's lender, all subsidiaries,
affiliates or corporations connected with such lender or Purchaser, and their
respective agents, representatives, employees, officers, insurers, directors,
stockholders, successors and assigns.
15. Conditions to Purchaser's Obligation to Close. The obligations of
Purchaser to close the transactions contemplated by this Agreement and to pay
the Purchase Price are conditioned upon and subject to the satisfaction on or
before the date of Closing (or waiver by Purchaser) of each of the following
conditions:
A. Seller shall have performed and complied with all agreements, covenants
and conditions to be performed or complied with prior to and/or on the date
of the Closing.
B. All of Seller's representations and warranties set forth in this
Agreement shall be true and correct as of the date of the Closing.
C. Seller shall have complied with all procedures reasonably required by
the Title Company or which are customary or appropriate in transactions
similar to the transactions contemplated hereby in connection with the
consummation of all transactions contemplated hereby.
D. The Title Company shall be prepared to issue the Title Policy in
accordance with this Agreement upon conveyance of the Premises to Purchaser
and payment of the Purchase Price to Seller.
E. Seller shall have delivered to Purchaser a copy of any "disclosure
document" required to be delivered by Seller by any applicable state or
federal law relating to environmental matters, together with evidence,
reasonably acceptable to Purchaser, indicating that such document has been
properly and timely filed.
F. The Premises shall have been properly zoned, and Purchaser shall have
received final site plan approval from all applicable governmental
authorities exercising jurisdiction over the site plan for the Real Estate
(not including building permits) to permit the development of a senior and
assisted living facility on the Premises and the operation thereof as
contemplated by Purchaser (collectively, the "Zoning Approvals"). Such
Zoning Approvals shall include
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zoning approvals, approvals of the final site plan, and final approval by
the City and preliminary approvals by the County of the proposed curb cut
for the access road to Eleven Mile Road. The Zoning Approvals received by
Purchaser must be without any material conditions attached or modifications
requested or mandated in order for Purchaser to be bound to proceed to
Closing. In the event that Purchaser has (x) not received the Zoning
Approvals by the "Zoning Deadline" (as defined below) or (y) Seller has not
obtained the final approval by the City of the "Master Plan" (as defined
below) by the date which is two hundred and ten (210) days after the
Effective Date, then both Seller and Purchaser shall each have the right at
any time after the occurrence of such Zoning Deadline and prior to the
receipt of the Zoning Approvals and final approval of the Master Plan, to
terminate this Agreement, in which case the ▇▇▇▇▇▇▇ Money shall be returned
to Purchaser. Notwithstanding the foregoing, the approval of the Master
Plan shall not be a condition to Purchaser's obligation to close and the
parties shall not be able to terminate this Agreement because of the
failure of the Master Plan to be approved if (i) Purchaser is able to
obtain its Zoning Approvals and will be able to develop and operate its
facility notwithstanding the failure of Seller to obtain Master Plan
approval and (ii) if Seller is able to obtain prior to Closing all of the
permits and approvals referred to in Paragraph 4(E) of this Agreement. The
term "Zoning Deadline" shall mean the date which is one hundred and twenty
(120) days after the expiration of the Feasibility Period; provided,
however that Purchaser shall have the right to extend the Zoning Deadline
for up to two (2) additional thirty (30) day periods (for a maximum of up
to sixty (60) days) upon written notice to Seller and the deposit by
Purchaser prior to the then scheduled Zoning Deadline into the escrow of an
additional ten thousand dollars ($10,000.00) of ▇▇▇▇▇▇▇ Money for each such
extension. Purchaser shall have the right, upon written notice to Seller,
to further extend the Zoning Deadline an additional thirty (30) days after
the final expiration date specified by the foregoing sentence, provided
that Purchaser deposits prior to the then scheduled Zoning Deadline an
additional Thirty Thousand and no/100 Dollars ($30,000.00) of ▇▇▇▇▇▇▇ Money
into the Escrow, at which time all of the ▇▇▇▇▇▇▇ Money shall become non-
refundable to Purchaser except in the event of a Seller Default or as
otherwise provided in this Agreement. If Purchaser closes the transaction,
Purchaser shall receive credit of the ▇▇▇▇▇▇▇ Money against the Purchase
Price; however, if Purchaser does not close, except in the event of a
Seller Default or as otherwise provided in this Agreement, then as Seller's
sole and exclusive remedy under this Agreement, at law and in equity, the
▇▇▇▇▇▇▇ Money shall be paid to Seller as full and final liquidated damages
and in full termination of Purchaser's rights to the Premises, it being
agreed to by the
-23-
parties that Seller's actual damages would be difficult or impossible to
accurately ascertain.
G. From and after the Effective Date and through to the Closing, there
will be no unrecorded liens or encumbrances (including, but not limited to,
liens relating to environmental matters) against the Premises or any
portion thereof, other than those arising from the actions of Purchaser.
16. Provisions with Respect to Closing. At the Closing, Seller shall
deliver to Purchaser the following, all in form and substance reasonably
satisfactory to Purchaser:
(1) a general warranty deed, duly executed and acknowledged by Seller,
conveying to Purchaser, or Purchaser's Nominee, good, marketable and
indefeasible fee simple title to the Real Estate, improvements and any
fixtures located thereon, in proper form for recording and subject
only to the Permitted Title Exceptions;
(2) general warranty assignments or bills of sale, as appropriate,
duly executed and acknowledged by Seller, conveying to Purchaser title
to the Personal Property, if any, free and clear of all liens,
encumbrances, claims and security interests, with express warranties
of good title;
(3) an affidavit executed by Seller, stating Seller's U.S. Taxpayer
identification number and that Seller is not a "foreign person" or a
"foreign corporation" (as defined under Internal Revenue Code Section
1445 and Section 7701), and that Purchaser is not required to withhold
any portion of the Purchase Price under the provisions of such Act;
(4) the Title Policy in the form required under Paragraph 9;
(5) a certificate executed by Seller to the effect that the
representations and warranties made by Seller to Purchaser are true
and correct in all material respects on and as of the date of the
Closing; and
(6) all such further instruments and documents as are normally made or
delivered in connection with the sale of Property similar to the
Premises in the county and state where the Premises is located or as
may be necessary, expedient, proper, or appropriate in the reasonable
opinion of Purchaser's or Seller's counsel, in order to complete the
transactions contemplated hereby.
-24-
B. On the date of the Closing, and provided that all conditions precedent
to Purchaser's obligations under this Agreement are satisfied, Purchaser
shall deliver to the Title Company, as escrowee, the amount of the Purchase
Price (less the ▇▇▇▇▇▇▇ Money and credits, adjustments and prorations in
accordance with this Agreement) by wire transfer (sent on or before 1:00
p.m. Detroit time on the date of the Closing) or other immediately
available funds.
C. On the date of Closing the Title Company shall disburse the Purchase
Price (as adjusted by prorations and credits and Seller's closing costs) to
Seller and refund the ▇▇▇▇▇▇▇ Money (together with all interest and
earnings accrued thereon) to Purchaser, and Seller shall deliver possession
of the Premises to Purchaser in the same condition as the Premises exists
on the date hereof, ordinary wear and tear excepted.
D. Seller shall pay: (i) any state or local transfer or stamp taxes or
similar charges; (ii) the cost of recording the REA Agreement and any
releases of Removable Liens or other unpermitted exceptions; (iii) the cost
of issuing the Title Policy and (iv) its legal fees. Purchaser shall pay
the cost of recording any instruments of conveyance or instruments securing
financing of Purchaser's acquisition and its legal fees. The cost of the
Escrow and all other closing costs shall be borne one-half by each of
Purchaser and Seller.
17. Closing Adjustments.
-------------------
A. Adjustments shall be made between Seller and Purchaser for the
following items, prorated on a per diem basis, as of midnight of the day
preceding the date of the Closing:
(1) All taxes and assessments which have become a lien upon the land,
whether recorded or not recorded, at the date of this Agreement shall
be paid by the Seller. Current taxes, if any, shall be prorated and
adjusted as of the date of Closing in accordance with DUE date basis
of the municipality or taxing unit in which the Premises is located
without regard to Public Act 80 or 297 of 1994, as amended. For
purposes of this Agreement, all real property taxes are to be
considered and paid in advance.
(2) To the extent there are any charges for water, electricity, sewer
rental, gas, telephone and other utilities for the Premises or related
assessments for utility capacity (normally billed to Seller, not to
tenants) will be paid by Seller on a per diem basis on the basis of
the most recent available bills (subject to readjustment on receipt of
bills covering the period in
-25-
which the Closing occurs), provided that Seller shall use its best
efforts to procure final meter readings of such utilities as of the
date of the Closing (if such reading is obtained, no proration of
utilities shall be necessary) and to have such bills rendered directly
to Seller (Seller will deliver to Purchaser copies of any such bills
rendered to Seller within five (5) days of Seller's receipt thereof).
To the extent deposits held on Seller's behalf by utility companies
are transferable to Purchaser, Seller shall receive a credit at
Closing in the amount of such deposits and such deposits shall be
transferred and placed in the name of Purchaser. Otherwise, Seller
shall receive a refund of such deposits and Purchaser shall have no
claim with regard to the same.
18. Condemnation. In the event between the date of this Agreement and the
date of the Closing Seller receives written notice that any condemnation or
eminent domain proceedings are threatened or initiated which might result in the
taking of any material part of the Real Estate, Purchaser may within Fifteen
(15) Business Days after notice thereof:
A. terminate this Agreement, in which event, the ▇▇▇▇▇▇▇ Money, together
with all interest accrued thereon, shall promptly be returned to Purchaser
and all rights and obligations of the parties hereunder shall cease; or
B. consummate the transactions contemplated by this Agreement, in which
event Seller shall assign to Purchaser all of Seller's right, title and
interest in and to any award made in connection with such condemnation or
eminent domain proceedings.
Seller shall immediately notify Purchaser in writing of the threat or the
occurrence of any condemnation or eminent domain proceedings. Purchaser shall
then notify Seller within fifteen (15) Business Days after the date of
Purchaser's receipt of Seller's notice of such condemnation or eminent domain
proceedings whether Purchaser elects to exercise its right under Subparagraph A
or B of this Paragraph. In the event Purchaser receives written notice of the
threat or occurrence of such condemnation or eminent domain proceedings within
fifteen (15) Business Days of the date of Closing, and Purchaser elects to
consummate the transactions contemplated by this Agreement within the time
period provided above, the date of the Closing shall be adjusted accordingly.
In the event Purchaser does not make a timely election, Purchaser shall be
deemed to have elected to terminate this Agreement. Notwithstanding the
foregoing, Seller shall be required to proceed under Paragraph 18(B) above in
the event of any condemnation or threatened condemnation relating to the
widening of Eleven Mile
-26-
Road, provided any such taking will not materially adversely affect Purchaser's
ability to develop and operate its facility on the Real Estate.
19. Defaults and Remedies.
A. If Seller should breach any of its representations, warranties,
covenants or agreements contained in this Agreement or in any other
agreement, instrument, certificate or other document delivered pursuant to
this Agreement or if Seller should fail to consummate the sale contemplated
herein for any reason other than Purchaser's Default, (a "Seller Default"),
Purchaser may avail itself of any and all of the following rights and
remedies: (1) cancel this Agreement and receive the prompt return of the
▇▇▇▇▇▇▇ Money, together with all interest and earnings accrued thereon; (2)
collect monetary damages from Seller not to exceed Fifty Thousand and
no/100 Dollars ($50,000.00); and/or (3) enforce specific performance of
this Agreement. The foregoing rights and remedies shall be Purchaser's sole
rights and remedies at law and in equity.
B. If all of the conditions to Purchaser's obligations to purchase the
Premises have been satisfied or waived in writing by Purchaser and Seller
is not in default of or under any of Seller's agreements, covenants or
obligations hereunder and Purchaser should fail to consummate the purchase
contemplated hereby for any reasons other than Seller's Default, (a
"Purchaser Default"), Seller, as Seller's sole and exclusive remedy, may
receive the ▇▇▇▇▇▇▇ Money, as full and final liquidated damages, Purchaser
and Seller hereby acknowledging that, in the event of Purchaser's failure
to consummate the sale contemplated hereby, actual damages suffered by
Seller would be difficult and/or inconvenient to determine or ascertain;
and, thereafter, there shall be no further liability hereunder on the part
of either party or the other party.
C. If either Purchaser or Seller brings an action to enforce its rights
under this Agreement, the successful party shall be reimbursed by the
unsuccessful party for all costs of enforcement, including reasonable
attorneys' fees and court costs, which amounts shall be, in the case of any
recovery by Purchaser, in excess of, and not subject to, the dollar
limitation referred to in Section 19(A) above. Tender of deed or purchase
money shall not be necessary where the other party has defaulted.
20. Modification, Waiver, etc.
A. No waiver of any condition under, and no modification, amendment,
discharge or changes of or to this Agreement shall
-27-
be valid unless the same is in writing and signed by the party against
which the enforcement of such modification, waiver, amendment, discharge,
or change is sought.
B. This Agreement contains the entire agreement between the parties
relating to the transactions contemplated hereby and all prior or
contemporaneous agreements, understandings, representations and statements,
oral or written, are merged herein.
21. Notices. All notices, demands, requests and other communications
under this Agreement shall be in writing and shall be deemed properly served
when delivered, if delivered by hand to the party to whose attention it is
directed, or three (3) Business Days after delivery to a United States Post
Office properly addressed, if mailed postage prepaid or one (1) Business Day
after delivery to the courier if sent by private receipt courier guaranteeing
next day delivery, delivery charges prepaid, or upon transmittal if delivered by
facsimile provided receipt of the notice is confirmed in writing, by the
sender's facsimile machine, as the case may be, and in each case, addressed as
follows:
A. If intended for Seller, to:
AC Properties, LLC
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
B. If intended for Purchaser, to:
Brookdale Living Communities, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
-28-
with a copy to:
Brookdale Living Communities, Inc.
▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address or to such other party which any party entitled to
receive notice hereunder designates to the others in writing.
22. Governing Law. The validity, meaning and effect of this Agreement
shall be determined in accordance with the laws of the State of Michigan,
applicable to contracts made and to be performed in that State.
23. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
24. Captions. The captions of this Agreement are inserted for convenience
of reference only and in no way define, describe or limit the scope or intent of
this Agreement or any of the provisions hereof.
25. Construction. As used herein, the terms (a) "person" shall mean an
individual, a corporation, a partnership, a trust, an unincorporated
organization or any agency or political subdivision thereof; (b) "including"
shall mean including, without limiting the generality of the foregoing; (c) the
masculine shall include the feminine and the neuter; (d) "the best knowledge" or
any similar phrase shall mean best knowledge with independent investigation; and
(e) "Business Day" shall mean any calendar day other than Saturday, Sunday,
holiday and any day on which national banks in Chicago, Illinois or Detroit
Michigan are closed.
26. Assignability by Purchaser. This Agreement and any of the Purchaser's
rights hereunder may be, upon written notice to Seller and without the prior
written consent of the Seller, assigned by Purchaser to Brookdale Living
Communities, Inc. ("Brookdale") or any other entity (i) affiliated with or
related to Brookdale or Purchaser, or (ii) created in connection with the
issuance of stock or other ownership interests in Brookdale or Purchaser's
senior housing division. In addition, this Agreement and any of the Purchaser's
rights hereunder may be assigned by Purchaser to any other person or entity upon
written notice to Seller and without the prior consent of the Seller provided
that such assignment must be to a creditworthy and experienced transferee, as
determined by Seller in Seller's reasonable discretion, which determination
shall not be unreasonably withheld
-29-
or delayed. Any such assignment may provide that Purchaser's nominee or
assignee assumes all of the provisions of the Agreement to be performed by
Purchaser; provided, however, that Purchaser shall not be released and
discharged of its liabilities or obligations under the Agreement without the
prior consent of Seller, which consent shall not unreasonably be withheld. All
references to Purchaser in this Agreement shall be deemed to include references
to Purchaser's nominee.
27. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
28. Partial Invalidity. If any provision or provisions, or any portion of
any provision or provisions, of this Agreement is found by a court of law to be
in violation of any applicable local, state or federal ordinance, statute, law,
administrative or judicial decision, or public policy, and if such court should
declare such portion, provision or provisions of this Agreement to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent both
of Seller and Purchaser that any portion, provision or provisions shall be given
force to the fullest possible extent that they are legal, valid and enforceable,
that the remainder of this Agreement shall be construed as if such illegal,
invalid, unlawful, void or unenforceable portion, provision or provisions were
not contained herein, and that the rights, obligations and interest of Seller
and Purchaser under the remainder of this Agreement shall continue in full force
and effect.
29. Time is of the Essence. Time is of the essence of this Agreement.
30. Confidentiality and Return of Documents. Seller and Purchaser agree
to keep confidential the information relating to the Property and the ACP
Development prior to Closing. Purchaser agrees to keep the information related
to the ACP Development confidential for a period of three (3) years after
Closing and Seller agrees to keep the information related to the Purchaser's
development of the Property confidential for a period of three (3) years after
Closing. If the Agreement is terminated without Purchaser closing, or Purchaser
fails to close for any reason other than a Seller Default, then Purchaser shall
maintain the confidentiality of all documents relating to the Property and the
ACP Development and shall return to Seller copies of all documents and materials
in its possession related to the Property and ACP Development without cost.
Purchaser's agreement to keep the foregoing information confidential shall not
apply to information which:
(i) is now in or hereafter enters the public domain from sources
other than Purchaser or without Purchaser's violation of this
Paragraph 31;
-30-
(ii) is compelled to be disclosed through no fault of Purchaser by a
court order or other binding order (an "Order") of a governmental
authority with jurisdiction, provided that Purchaser promptly notifies
Seller after Purchaser becomes aware of the existence, or the
potential of the issuance of, any such Order and provided that
Purchaser cooperates in good faith with Seller, and at no cost to
Purchaser, in Seller's attempts to legally contest, before and/or
after its issuance, any such Order;
(iii) is required to be disclosed to the City or other governmental
authority in connection with the public approval process; or
(iv) is necessary to be disclosed by Purchaser to any lender or
potential lender or any purchaser or potential purchaser relating to
the Real Estate.
In addition, in the event that it is not required or necessary for any such
items to be disclosed to the City, any other governmental authority, or any
lender, purchaser or potential lender or purchaser, but Purchaser desires to do
so, Purchaser may disclose such information with Seller's written consent, which
consent shall not be unreasonably withheld or delayed.
31. Force Majeure. If either party is delayed in the performance of any
work or delayed in the performance of any services required by this Agreement
because of the occurrence of any fire, lightning, earthquake, cyclone, strikes,
moratoriums, extraordinary weather conditions, unanticipated governmental
delays, restrictions, shortages of materials or supplies, or such other acts of
God completely beyond the control of the party required to perform, then the
time for completion of such work or service shall be extended for a period
equivalent to the time lost by reason of any of the aforesaid causes; provided,
however, that the party requesting any such extension must give written notice
to the other party notifying the other party of such Force Majeure within
fifteen (15) days after the commencement of such Force Majeure. If such a
notice is not given within fifteen (15) days of the commencement of such Force
Majeure, then the affected party shall not be entitled to an extension because
of such Force Majeure. An extension of time for completing the work or service
to be performed by such party whose performance is delayed shall be such party's
sole remedy for any and all claims that it might have on account of such delay.
32. Acceptance of Offer. The offer to purchase the Premises made by
Purchaser by the delivery of a copy of this Agreement as executed on behalf of
Purchaser shall automatically terminate and expire at 5:00 p.m. C.S.T. on
February ___, 1997, unless said offer is accepted earlier by Seller's execution
of this Agreement, or a counterpart hereof, and by the return to Purchaser of a
fully
-31-
executed copy of this Agreement on or before the date and time aforementioned.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
PURCHASER:
THE PRIME GROUP, INC., an Illinois corporation
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Its: EXEC. VICE PRESIDENT
-------------------------------
SELLER:
AC PROPERTIES, LLC.,
a Michigan limited liability company
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Its: President
-32-
EXHIBIT A
---------
PRELIMINARY SITE PLAN
EXHIBIT A - PAGE 1
[SITE PLAN APPEARS HERE]
BROOKDALE LIVING COMMUNITIES
SOUTHFIELD, MICHIGAN
EXHIBIT B
---------
Escrow Trust Instructions
▇▇▇▇▇▇▇ MONEY ESCROW AGREEMENT
EXHIBIT B - PAGE 1
ESCROW AGREEMENT
----------------
TO: FIRST AMERICAN TITLE INSURANCE COMPANY ("Escrow Agent")
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Escrow No.______
Seller: AC PROPERTIES, L.L.C.,
a Michigan Limited Liability Company
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Purchaser: THE PRIME GROUP, INC.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Dated: February __, 1997
Dear Sir or Madam:
Purchaser hereby deposits with you, as Escrow Agent, Ten Thousand Dollars
($10,000.00) (including interest thereon is hereafter referred to as the
"Deposit") with respect to real property located in the City of Southfield,
County of Oakland, State of Michigan, more particularly described in a certain
agreement between Purchaser and Seller dated February __, 1997 (the "Purchase
Agreement"). The Deposit shall be placed in an interest bearing account in a
federally insured bank and is to be held by you in escrow for delivery under the
following terms and conditions.
1. Escrow Agent. Escrow Agent shall hold the Deposit in accordance with the
provisions of the Purchase Agreement. The Deposit shall not be released except
pursuant to the written direction of both Seller and Purchaser, or a court
order.
2. Termination of Escrow. Upon Escrow Agent making delivery of the entire
Deposit and performance of any other services as stated above, this Escrow
Agreement shall terminate, the Escrow Agent shall be released from any further
liability, it being expressly understood that Escrow Agent's liability is
limited by the terms and provisions set forth herein.
3. Amendments. Any changes in the terms or conditions herein may only be
made in writing and signed by all of the parties to this Agreement.
4. Escrow Agent and Limitation of Liability. Unless otherwise herein
expressly provided, the Escrow Agent shall:
(a) Be entitled to deem the signatories of any documents, instruments or
checks submitted to it hereunder as being those purported to be authorized to
sign such documents or instruments on behalf of the parties hereto and shall be
entitled to rely upon the genuineness of the signatures of such signatories
without inquiry and without requiring substantiating evidence of any kind;
(b) the Escrow Agent may resign, as such, following the giving of prior
written notice to the other parties hereto. In that event, Successor Escrow
Agent shall be appointed by mutual agreement of the parties. If the parties are
unable to agree upon a successor, or shall fail to appoint a successor prior to
the expiration of ten (10) days following the date of the notice of resignation,
the then acting Escrow Agent may petition any court of competent jurisdiction
for the appointment of a
1
Successor Escrow Agent or other appropriate relief; and such resulting
appointment shall be binding upon all the parties hereto. Upon acknowledgment
of any Successor Escrow Agent of the receipt of the escrowed property and
documents, the then acting Escrow Agent shall be fully released and relieved of
all duties, responsibilities and obligations under this Agreement except for
negligence of malfeasance;
(c) Seller and Purchaser each waive all claims and actions, of any
kind or nature, each may have against the Escrow Agent, now or hereafter
existing, arising out of this Escrow, except for the negligence or malfeasance
of the Escrow Agent;
(d) the Escrow Agent shall be paid a fee of $____, to be paid equally
by Seller and Purchaser.;
(e) the Escrow Agent shall be, and hereby is, jointly and severally
indemnified and held harmless, by the Seller and Purchaser, from all losses,
costs, diminution of the collateral, and expenses which may be incurred by the
Escrow Agent as a result of its involvement in any litigation arising from
performance of its duties hereunder, provided that such litigation shall not
result from any action taken or levied by the Escrow Agent for which he shall
have been adjudged negligent.
(f) Have the right at any time to interplead the Deposit and any other
assets held by the Escrow Agent pursuant to this Agreement with an arbitrator or
court of competent jurisdiction for disposition by the arbitrator or court and
upon delivery of the Deposit and other assets to the arbitrator or court, Escrow
Agent shall be relieved of any further liability in connection with this
Agreement. Further, Escrow Agent shall be relieved of any further liability in
connection with this Agreement upon compliance with an order of a court of
competent jurisdiction directing payment of the Deposit.
(g) Implementation of Escrow. Each party shall, and at any time, from
time to time hereafter, take any and all steps and execute, acknowledge and
deliver to the other parties, all instruments and assurances that the other
party may reasonably require for the purposes of giving full force and effect to
this Escrow Agreement, including certifications of the existence and continuing
validity of this Agreement.
5. Binding Effect. This Agreement shall be binding upon, and inure to
the benefit of, the parties and their executors, administrators and successors,
heirs and permitted assigns.
6. Waiver. The failure of either party to enforce any covenant, condition
or right of this Agreement shall not be deemed a waiver thereof or of the right
of either party to enforce each and every covenant, condition or right of this
Agreement. No provision of this Agreement shall be deemed to have been waived
unless such waiver be in writing.
7. Notices. Any notice, demand, waiver or consent required or permitted
hereunder shall be in writing and shall be deemed to have been duly delivered if
delivered personally or mailed by registered mail, certified mail, express mail,
federal express or other overnight guaranteed mail service, postage prepaid, to
the addresses set forth at the beginning of this Agreement or to such other
addresses as any party may request by notifying the other parties in writing.
8. Governing Law. This Agreement made in the State of Michigan and shall
be governed by the laws of said State.
2
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
SELLER:
AC PROPERTIES, L.L.C.
BY:
-------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Its: President
PURCHASER:
THE PRIME GROUP, INC.
BY:
-------------------------------
Its:
--------------------------
ACCEPTANCE OF ESCROW
--------------------
First American Title Insurance Company hereby accepts the above Escrow
under the terms and conditions herein set forth and acknowledges receipt of the
Deposit of Ten Thousand Dollars ($10,000.00) from the Purchaser.
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
BY:
-------------------------------
Its:
---------------------------
-3-
EXHIBIT C
---------
GENERAL CONDITIONS
EXHIBIT C - PAGE 1
DIVISION NO. 1000 DIVISION 1 - GENERAL CONDITIONS
================================================================================
SUBDIVISION TRADE
================================================================================
1000 DIVISION 1 - GENERAL CONDITIONS
1002 EXTRA DRAWINGS
1012 PERMENANT UTILITY FEE
1015 BUILDING PERMIT
1031 FIELD ENGINEERING & LAYOUT
1037 INSURANCE
1050 QUALITY CONTROL & TESTING
1060 FIELD SECRETARY
1062 SUPERVISION
1063 LABORERS
1067 SAFETY
1082 OFFICE TRAILER & FURNITURE
1083 TEMP. STORAGE TRAILER
1089 TEMP. FENCE & PED. PRODUCTS
1090 PROJECT SIGN
1091 TEMP. SIGNS
1092 TELEPHONE
1093 TEMP. ELECTRICITY & LIGHT
1096 WINTER CONDITIONS & TEMP. HEAT
1212 TEMP. WATER
1213 FIELD COMPUTER
1215 FIELD COPY & FAX
1216 TEMP. TOILETS
1219 DUMPSTER
1220 CLEAN-UP LABOR
1221 FINAL CLEAN-UP
1226 TEMP. ELEVATOR
1227 GARBAGE CHUTES
1233 TRAVEL EXPENSE
1234 MISC. GENERAL CONDITIONS
1236 CONTINGENCY
1239 SECURITY/WATCHMAN
1240 HAND TOOLS & EQUIPMENT
1241 PHOTOS
1242 POSTAGE & EXPRESS MAIL
1246 MOBILIZATION
