EXHIBIT 10.12
LAND CONTRACT
00-000-000 (10/21/03) Xxxxxx X. Xxxxxx Title Company, Inc.
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THIS CONTRACT is effective as of this 15th day of July, 2004 (the "Effective
Date"), between Meadowbrook Insurance Group, Inc., a Michigan corporation,
hereinafter referred to as "SELLER", whose address is 00000 Xxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000-0000, and MB Center II LLC, a Michigan limited
liability company, hereinafter referred to as "PURCHASER", whose address is 000
Xxxx Xxx Xxxxxx Xxxx, Xxxxx 000, Xxxx, Xxxxxxxx 00000-0000.
WITNESSETH:
1. SELLER AGREES AS FOLLOWS:
(a) To sell and convey to Purchaser land in the City of Southfield,
Oakland County, Michigan, the Property ("Property") described as:
See Attached Exhibit "A"
Tax Parcel No.: Common Address:
Tax Parcel ID# Part of 00-00-000-000 Vacant Property
together with all tenements, hereditaments, improvements and appurtenances now
on the Property, and subject to all applicable building and use restrictions,
easements, and other matters of record, if any, affecting the Property as of the
date hereof, but free of liens and mortgages other than liens created by
Purchaser.
(b) That the consideration for the sale of the above described Property
to Purchaser is Three Million Three Hundred Fifty-Five Thousand Three Hundred
Ten and 00/100 ($3,355,310.00) Dollars, of which the sum of Six Hundred
Thirty-Three Thousand Two Hundred and 00/100 ($633,200.00) Dollars, has
heretofore been paid to Seller, the receipt of which is hereby acknowledged, and
the balance of Two Million Seven Hundred Twenty-Two Thousand One Hundred Ten and
00/100 ($2,722,110.00) Dollars ("Principal"), is to be paid to Seller, with
interest on any part thereof at any time unpaid at the rate of seven percent
(7%) per annum, simple interest. Purchaser shall make monthly payments of
interest only to the extent accrued on the first day of each calendar month.
Purchaser shall pay all accrued interest as of the Effective Date, in its first
monthly payment which is due and payable as of September 1, 2004 or the first
day of the month following the date the escrow is released, whichever is later.
This balance of purchase money and interest shall be paid in a balloon payment
prior to, but in no event later than thirty-six (36) months after the effective
date of this Land Contract.
(c) Upon receiving payment in full of all sums owing herein, less the
amount then due on any existing mortgage or mortgages, and the surrender of the
duplicate of this contract, to execute and deliver to Purchaser or Purchaser's
assigns, a good and sufficient Warranty Deed, subject to aforesaid restrictions,
easements, and matters of record as of the date hereof, and free from all other
encumbrances, except such as may be herein set forth, and except such
encumbrances as shall have accrued or attached since the date hereof through the
acts or omissions of persons other than Seller cr its assigns.
(d) To deliver to Purchaser as evidence of title, a Policy of Title
Insurance insuring Purchaser, the effective date of the policy to be the date of
this contract, and issued by XXXXXX X. XXXXXX TITLE COMPANY in the amount of the
purchase price without standard exceptions.
2. PURCHASER AGREES AS FOLLOWS:
(a) To purchase said land and pay Seller the sum aforesaid, with the
interest thereon as above provided.
(b) To use, maintain and occupy said Property in accordance with any
and all restrictions thereon.
(c) To keep the Property in accordance with all police, sanitary and
other regulations imposed by any governmental authority.
(d) To pay all taxes and assessments hereafter levied on said Property
before any penalty for non-payment attaches thereto. If separate tax bills are
not available, Seller will provide to Purchaser a notice of taxes due, in a
timely manner after the taxing authority has issued the xxxx to Seller. Seller
shall reasonably calculate the taxes due from Purchaser based on the square
footage of the Property and the cost of any improvements if separate tax bills
are not available. During the term of the Land Contract, Purchaser shall procure
and maintain public liability insurance with commercially reasonable coverage
amounts. Said insurance policy shall name Seller as an additional insured and
shall have policy limits of not less than Three Million Dollars ($3,000,000) per
occurrence. Proof of such insurance shall be delivered to Seller annually and
upon request. The insurance certificate shall state that it shall not be
terminated without at least thirty (30) days' prior notice to Seller.
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(e) That it has examined a Title Insurance Commitment dated effective
May 24, 2004, covering the above described Property, and is satisfied with the
marketability of the title shown thereby.
(f) To keep and maintain the Property in as good condition as it is at
the date hereof and not to commit waste, remove or demolish any improvements
thereon, or otherwise diminish the value of Seller's security, without the
written consent of Seller. Construction of improvements to the Property will not
constitute waste.
3. SELLER AND PURCHASER MUTUALLY AGREE AS FOLLOWS:
(a) That Seller may, at any time during the continuance of this
contract encumber said land by mortgage or mortgages, provided, at no time shall
the sum secured by the mortgage exceed eighty percent (80%) of the unpaid
balance of this land contract.
(b) That if Sellers interest in the land is now or hereafter encumbered
by mortgage, Seller shall meet the payments of principal and interest thereon as
they mature and produce evidence thereof to Purchaser on demand, and in default
of Seller, said Purchaser may pay the same. Such payments by Purchaser shall be
credited on the sums first maturing hereon, with interest at the rate provided
in paragraph 1(b) on payments so made. If proceedings are commenced to recover
possession or to enforce the payment of such contract or mortgage because of
Seller's default, Purchaser may, at any time thereafter while such proceedings
are pending, encumber said land by mortgage, securing such sum as can be
obtained, upon such terms as may be required, and with the proceeds, pay and
discharge such mortgage, or purchase money line. Any mortgage so given shall be
a first lien upon the land superior to the rights of Seller therein and
thereafter Purchaser shall pay the principal and interest on such mortgage so
given as they mature, which payments shall be credited on the sums matured or
first maturing hereon. Seller shall be responsible for payment of any prepayment
premium due under Seller's mortgage or the note it secures.
(c) That if default is made by Purchaser in the payment of any taxes,
assessments or insurance premiums, or in the delivery of any policy as
hereinbefore provided, and if Purchaser fails to cure the same within fifteen
(15) days after Seller serves notice reasonably describing Purchaser's default,
Seller may pay such taxes or premiums or procure such insurance and pay the
premium or premiums thereon, and any sum or sums so paid shall be a further lien
on the land and promises, payable by Purchaser to Seller forthwith with interest
at the rate as set forth in paragraph l(b) hereof.
(d) No assignment or conveyance by Purchaser shall create any liability
whatsoever against Seller until a duplicate thereof, duly witnessed and
acknowledged, together with the residence address of such assignee, shall be
delivered to Seller. Purchaser's liability hereunder shall not be released or
affected in any way by delivery of such assignment, or by Seller's endorsement
of receipt and/or acceptance thereon.
(e) Purchaser shall have the right to possession of the Property.
During the term of the Land Contract, Purchaser and its agents shall have
possession of the property and shall be permitted to conduct construction
activities as necessary for Purchasers development of the property in conformity
with all recorded restrictions, including, but not limited to, those
restrictions reflected in the Master Deed recorded in Liber 18714, Pages
477-520, inclusive, provided, however, Purchaser assumes all liability for
Purchaser's acts and omissions and the acts and omissions of any of its agents
who enter the Property and shall indemnify, defend and hold Seller harmless from
any loss, cost, damage or expense incurred by Seller as a result of such acts.
Purchaser shall maintain appropriate builders' risk insurance and xxxxxxx'x
compensation insurance and shall exhibit such to Seller upon request. In the
event Purchaser defaults under the Land Contract and the property is forfeited
back to Seller, Purchaser agrees that title to all improvements shall be vested
in Seller.
(f) If Purchaser shall fail to perform this contract or any part
thereof, Seller immediately after such default shall have the right to declare
the same forfeited and void by written notice in the form described below, and
retain whatever may have been paid hereon, and all improvements that may have
been made upon the Property, together with additions and accretions thereto, and
consider and treat Purchaser as its tenant holding over without permission and
may take immediate possession of the Property, and Purchaser and each and every
other occupant remove and put out. Every notice of forfeiture relied upon by
Seller to terminate rights hereunder shall specify all unpaid monies and other
breaches of this contract and shall declare forfeiture of this contract to be
effective fifteen (15) days after service, unless such money is paid and any
other breaches of this contract are cured within that time. The parties have
signed and recorded a memorandum of this Agreement, and Purchaser shall be
deemed to be in actual and constructive possession of the Property for all
purposes including the Michigan Summary Proceedings Act.
(g) If default is made by Purchaser and such default continues for a
period of fifteen (15) days or more after Seller notifies Purchaser in writing
of the nature of the default and states Seller's intention to foreclose, and
Seller desires to foreclose this contract in equity, then Seller shall have, at
its option, the right to declare the entire unpaid balance hereunder to be due
and payable forthwith, notwithstanding anything herein contained to the
contrary.
(h) Time shall be deemed to be of the essence of this contract.
(i) The individual parties hereto represent themselves to be of full
age, and the corporate parties hereto represent themselves to be valid existing
corporations with their charters in full force and effect.
(j) Replaced by paragraph (t).
(k) From and after the thirty-sixth (36th) month due date maturity of
this Land Contract, the principal and interest accrued as of the date of such
maturity shall bear interest at eleven percent (11%) simple interest per annum.
KH060795
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(l) If any action is brought by either party to enforce its rights
hereunder, the losing party shall pay the prevailing party's attorney fees and
court costs.
(m) Purchaser and Seller's interest in this Land Contract may be
recorded in the form of a Memorandum of Land Contract.
(n) No breach of any express or implied warranty shall entitle
Purchaser to any delay or set off with regard to payments due under the Land
Contract unless and until a judgment based upon such breach has been rendered by
a court of competent jurisdiction and has become unappealable.
(o) Purchaser is acquiring the Property "As-Is" with all faults and
defects, and Purchaser acknowledges and agrees that Seller has not made, does
not make and specifically disclaims any representations, warranties, promises,
covenants, agreements or guarantees of any kind or character whatsoever whether
express or implied, oral or written, past, present or future, as to, concerning
or with respect to (A) the nature, quality or condition of the Property,
including, without limitation, the water, soil and geology, or the presence or
absence of any pollutant, hazardous waste, gas or substance or solid waste on or
about the Property, (B) the suitability of the Property for any and all
activities and uses which Purchaser may intend to conduct thereon, (C) the
compliance of or by the Property or its operation with any laws, rules,
ordinances or regulations of any governmental authority or body having
jurisdiction, including, without limitation, all applicable zoning laws, (D) the
habitability, merchantability or fitness for a particular purpose of the
Property, or (E) any other matter related to or concerning the Property, except
as expressly set forth in this Agreement; and Purchaser shall not seek recourse
against Seller on account of any loss, cost or expense suffered or incurred by
Purchaser with regard to any of the matters described in Clauses (A) through (E)
above. Purchaser acknowledges that Purchaser, having been given the opportunity
to inspect the Property, is relying solely on its own investigation of the
Property and not on any information provided or to be provided by or on behalf
of Seller. Purchaser further acknowledges that no independent investigation or
verification has been or will be made by Seller with respect to any information
supplied by or on behalf of Seller concerning the Property, and Seller makes no
representation as to the accuracy or completeness of such information, it being
intended by the parties that Purchaser shall verify the accuracy and
completeness of such information itself. Purchaser acknowledges that the
disclaimers, agreements and other statements set forth in this paragraph are an
integral portion of this Agreement and that Seller would not agree to sell the
Property to Purchaser for the purchase price without the disclaimers, agreements
and other statements set forth in this paragraph.
(p) If required by any governmental authorities as a condition of
Purchaser's development of the Property as contemplated in the reciprocal
easement agreement signed simultaneously with this land contract or as shown in
the site plan approved by the parties prior to the date hereof, the parties will
join in the granting of easements to such governmental authorities for access
and public utilities.
(q) Purchaser shall be entitled to receive all interest which has
accrued on its deposit of Fifty Thousand and 00/100 ($50,000.00) Dollars,
provided that such deposit was delivered into an interest bearing escrow
account.
(r) Purchaser, in its first interest payment to Seller due and payable
September 1, 2004, shall include all interest accrued on the Principal beginning
on the Effective Date.
(s) This Land Contract may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(t) Any notices or consents required or permitted to be given under the
terms of this Agreement shall be deemed delivered when actually received if
personally delivered; upon actual receipt at the addressee's fax machine (with
confirmation of successful transmission) if telecopied; or one (1) business day
after delivery of a copy to a nationally recognized overnight delivery service
which provides a receipt of service (other than an overnight delivery service
offered by the United States Postal Service), addressed to the respective
parties as follows:
If to Seller:
Meadowbrook Insurance Group, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
If to Purchaser:
Kirco Acquisition, LLC
Columbia Center-Suite 200
000 Xxxx Xxx Xxxxxx Xxxx
Xxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxxx X. Xxxxx
A. Xxxxxx Xxxxxxx, XX
Fax: (000) 000-0000
Page 3 of 5
with a copy to:
Butzel Long
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: X. Xxxxxxx Green
Fax: (000) 000-0000
or to such other party or address as shall be specified by like notice.
Nouns and pronouns will be deemed to refer to the masculine, feminine,
neuter, singular and plural, as the identity of the person or persons, firm or
corporation may in the context require. The covenants herein shall bind the
heirs, devisees, legatees, assigns, and successors of the respective parties.
IN WITNESS WHEREOF, the parties hereto have executed this contract in
duplicate the day and year first above written.
SELLER:
MEADOWBROOK INSURANCE GROUP, INC.,
a Michigan corporation
/s/ Xxxxxx X. Xxxxxx
--------------------------------------------
By: Xxxxxx X. Xxxxxx
Its: President & CEO
PURCHASER:
MB CENTER II, LLC, a Michigan limited liability
company
By: Kirco Development LLC, a Michigan limited
liability company
Its: Manager
---------------------------------------
By: A. Xxxxxx Xxxxxxx, XX
Its: President
State of Michigan )
) ss
County of Oakland )
-------------------
The foregoing instrument was acknowledged before me this 23rd day of
July, 2004, by Xxxxxx X. Xxxxxx, the President & CEO of Meadowbrook Insurance
Group, Inc., a Michigan corporation, on behalf of said corporation.
Xxxxxx X. Xxxxxxx
------------------------------------
, Notary Public
---------------------
County, Michigan
--------------------
My commission expires
---------------
Acting in the County of Oakland .
------------
State of Michigan ) XXXXXX X. XXXXXXX
) ss NOTARY PUBLIC OAKLAND CO., MI
County of ) MY COMMISSION EXPIRES MAY 2, 2006
-------------------
The foregoing instrument was acknowledged before me this th day of
July, 2004, by A. Xxxxxx Xxxxxxx, XX, the President of Kirco Development LLC, a
Michigan limited liability company, the Manager of MB Center II, LLC, a Michigan
limited liability company, on behalf of said limited liability company.
------------------------------------
, Notary Public
---------------------
County, Michigan
--------------------
My commission expires
---------------
Acting in the County of .
------------
DRAFTED BY:
Xxxxxx X. Xxxxxxx
XXXXXXX XXXXXX P.C.
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxx 00000-0000
(000) 000-0000
(000) 000-0000 (fax)
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with a copy to:
Butzel Long
000 Xxxxxxxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: X. Xxxxxxx Green
Fax: (000) 000-0000
or to such other party or address as shall be specified by like notice.
Nouns and pronouns will be deemed to refer to the masculine, feminine,
neuter, singular and plural, as the identity of the person or persons, firm or
corporation may in the context require. The covenants herein shall bind the
heirs, devisees, legatees, assigns, and successors of the respective parties.
IN WITNESS WHEREOF, the parties hereto have executed this contract in
duplicate the day and year first above written.
SELLER:
MEADOWBROOK INSURANCE GROUP, INC.,
a Michigan corporation
--------------------------------------------
By: Xxxxxx X. Xxxxxx
Its: President & CEO
PURCHASER:
MB CENTER II, LLC, a Michigan limited liability
company
By: Kirco Development LLC, a Michigan limited
liability company
Its: Manager
/s/ A. Xxxxxx Xxxxxxx, XX
---------------------------------------
By: A. Xxxxxx Xxxxxxx, XX
Its: President
State of Michigan )
) ss
County of )
-------------------
The foregoing instrument was acknowledged before me this th day of
July, 2004, by Xxxxxx X. Xxxxxx, the President & CEO of Meadowbrook Insurance
Group, Inc., a Michigan corporation, on behalf of said corporation.
------------------------------------
, Notary Public
---------------------
County, Michigan
--------------------
My commission expires
---------------
Acting in the County of
------------
State of Michigan )
) ss
County of Oakland )
-------------------
The foregoing instrument was acknowledged before me this 23th day of
July, 2004, by A. Xxxxxx Xxxxxxx, XX, the President of Kirco Development LLC, a
Michigan limited liability company, the Manager of MB Center II, LLC, a Michigan
limited liability company, on behalf of said limited liability company.
Xxxxx Xxxxxxxxxx
------------------------------------
, Notary Public
---------------------
County, Michigan
--------------------
My commission expires
---------------
Acting in the County of .
------------
XXXXX XXXXXXXXXX
NOTARY PUBLIC XXXXX CO., MI
MY COMMISSION EXPIRES JUL 16, 2007
ACTING IN OAKLAND COUNTY, MI
DRAFTED BY:
Xxxxxx X. Xxxxxxx
XXXXXXX XXXXXX P.C.
00000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx Xxx, Xxxxxxxx 00000-0000
(000) 000-0000
(000) 000-0000 (fax)
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EXHIBIT "A"
LEGAL DESCRIPTION
Xxxx 00 of the American Commerce Centre, according to Master Deed recorded in
Liber 18714, Pages 477 through 520, inclusive, Oakland County Records, as
amended by First Amendment to Master Deed recorded in Liber 19915, Page 599,
Oakland County Records, Second Amendment to Master Deed recorded in Liber 20091,
Page 811, Oakland County Records, Third Amendment to Master Deed recorded in
Liber 20131, Page 335, Oakland County Records, Fourth Amendment to Master Deed
recorded in Liber 20998, Page 689, Oakland County Records, Fifth Amendment to
Master Deed recorded in Liber 22509, Page 798, Oakland County Records, and Sixth
Amendment to Master Deed to be recorded, Oakland County Records, and designated
as Oakland County Condominium Subdivision Plan No. 1121, together with rights in
common elements and limited common elements as set forth in the above described
Master Deed (and Amendment thereto) and as described in Act 59 of the Public
Acts of 1978, as amended.
City of Southfield, County of Oakland, Michigan
Tax Identification Number: Part of 00-00-000-000
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