Exhibit 10.3
REAL PROPERTY PURCHASE AGREEMENT
THIS REAL PROPERTY PURCHASE AGREEMENT (the "Agreement") is made and entered
into this 2nd day of July, 2002 by and between SHILOH OF MICHIGAN, L.L.C., a
Michigan limited liability company ("Seller"), and PLASTECH HOLDING CORPORATION,
a Michigan corporation ("Purchaser"), under the following circumstances:
RECITALS:
A. Purchaser is engaged in the purchasing, selling, and leasing of real
estate, and desires to purchase a manufacturing facility in Romulus,
Michigan.
B. Seller owns a vacant manufacturing facility located at 0000 Xxxxxxx
Xxxx, Xxxxxxx, Xxxxxxxx.
C. Seller desires to sell, transfer and assign to Purchaser, and
Purchaser desires to purchase from Seller, on the terms and conditions
set forth in this Agreement, the vacant manufacturing facility
described in Recital B above, including certain personal property
assets and real property described below.
NOW THEREFORE, for good and valuable consideration the receipt and adequacy
of which is hereby acknowledged, and further in consideration of the mutual
representations, warranties and covenants and subject to the conditions herein
contained, the parties hereto agree as follows:
1.0 Purchase and Sale of Premises. On the Closing Date (as hereinafter
defined), Seller agrees to and shall sell, convey, transfer, assign and deliver
to Purchaser, on the terms and conditions set forth in this Agreement, all of
Seller's right, title and interest in and to the Premises. For purposes of this
Agreement, the term "Premises" means, collectively, the following:
1.1 the land described in attached Exhibit A (the "Land"), and all
buildings and improvements located thereon (the "Buildings"), together with all
rights of Seller in and to all air, mineral and riparian rights and all
tenements, hereditaments, privileges and appurtenances belonging or in any way
appertaining thereto;
1.2 any land lying in the bed of any street, road or avenue adjoining the
Land, to the center line thereof, but only to the extent of Seller's interest,
if any, therein;
1.3 all easements, whether or not recorded, strips and rights-of-way
abutting, adjacent to, contiguous with or adjoining any of the Land, but only to
the extent of Seller's interest, if any, therein;
1.4 such machinery, fixtures, equipment, office furniture and furnishings,
and other tangible personalty, owned by Seller, identified in attached Exhibit B
and located on or about the Land and the Buildings (collectively, the
"Equipment");
1.5 all plans and specifications relating to the construction of any
improvements on the Land, and all unexpired warranties, if any, received by
Seller in connection with the construction, improvement or equipping of the Land
or Buildings; and
1.6 at Purchaser's option, Seller's interest, if assignable, in all
contracts and agreements associated with or used in the operation of the Land
and Buildings, all of which are described on attached Exhibit C (the
"Contracts").
2.0 Purchase Price; No Assumption of Liabilities or Successor
2.1 Purchase Price. The Purchase Price for the Premises shall be Nine
Million Five Hundred Thousand Dollars ($9,500,000), subject to adjustments and
apportionments as set forth in this Agreement (the "Purchase Price"). The
Purchase Price shall be allocated as follows: (i) Nine Million One Hundred
Thousand Dollars ($9,100,000) for the Buildings and Land; and (ii) Four Hundred
Thousand Dollars ($400,000) for the Equipment. Purchaser shall pay the Purchase
Price to Seller in immediately available United States funds at the Closing, as
hereinafter defined.
2.2 Prorations and Adjustments. Seller shall pay all expenses incurred in
connection with the Premises and the operation of the business at the Premises
covering all periods prior to Closing. Seller shall pay in full all real and
personal property taxes and assessments, whether general or special, that are a
lien against the Premises as of the Closing Date. Current real and personal
property taxes shall be prorated and adjusted as of the Closing Date in
accordance with the "due date" basis of the respective taxing authorities in
which the Premises are located. Seller shall pay all charges for electricity,
water, sewer, natural gas and sanitation until the Closing Date. All other items
customarily prorated or required by any other provisions of this Agreement to be
prorated or adjusted shall be so prorated or adjusted as of the Closing Date, as
hereinafter defined.
2.3 No Assumed Liabilities. All profits, losses, liabilities (including,
but not limited to utilities), claims, or injuries, or any damage or loss caused
by fire, storm, flood, theft or other casualty or cause, arising before the
Closing Date shall be solely to the benefit or risk of Seller, except as
otherwise stated in this Agreement. All such occurrences after transfer shall be
solely to the benefit or risk of Purchaser. Purchaser shall not assume or be
responsible for any of the day-to-day normal and reoccurring operating
liabilities or obligations of Seller relating to Seller's business operated on
the Premises prior to the Closing Date, including, but not limited to Seller's
obligations related to products manufactured, contracts (except for the
Contracts as provided herein), judgments, accounts payable, taxes, claims
relating to products liability, securities law violations, pension and welfare
plan contributions, and collective bargaining agreements.
2.4 No Successor. Purchaser shall not be a successor-in-interest to Seller
and shall have no successor liability to Seller or any creditor, shareholder,
officer or employee of Seller under any legal theory.
2.5 Xxxxxxx Money Deposit. If requested by Seller, upon execution of this
Agreement by the parties, Purchaser shall deposit into escrow with the Golden
Title Insurance Agency, Inc. (the "Title Company") the sum of Two Hundred
Thousand Dollars ($200,000.00), representing the xxxxxxx money deposit (the
"Xxxxxxx Money Deposit") under this Agreement. The Xxxxxxx Money Deposit shall
be held by the Title Company in an interest-bearing account (and the term
"Xxxxxxx
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Money Deposit shall include all interest accrued thereon) and shall be paid to
Seller at Closing or refunded to Purchaser in full if Closing does not occur by
July 3, 2002, or otherwise disposed of as provided in this Agreement. Purchaser
shall receive a credit in the amount of the Xxxxxxx Money Deposit against the
amount due at Closing.
3.0 Due Diligence, Title, Survey and Environmental
3.1 Due Diligence Period. Within five (5) days of the date of execution of
this Agreement, Seller shall deliver to Purchaser the following documents, which
shall be replaced from time to time by more current documents or otherwise
updated or recertified as provided herein:
(a) A copy of the most recent title report or title insurance policy
for the Premises, together with copies of all documents of record and
such other items shown as an easement, covenant, lien or encumbrance
in the title report.
(b) Copies of all Contracts listed on Exhibit C.
(c) Copies of all mortgages or deeds of trust, related notes,
security agreements, bond documents and financing statements now in
effect with respect to the Premises.
(d) Any "as built" survey and plans and specifications and
construction documents (including without limitation site plans,
building plans and specifications and change orders) for the Premises
that are in Seller's possession or are under Seller's control.
(e) Any engineering reports or other tests or studies (including any
traffic, soil and environmental audits or reports) that are in
Seller's possession or under Seller's control concerning the physical
condition and operation of the Premises or recommended improvements.
(f) All real estate tax bills and assessments for the three (3) year
period prior to the date of this Agreement and any real estate tax
bills or notices of assessment received by Seller between the date of
this Agreement and the Closing Date.
(g) Any other documents or information currently in Seller's
possession or under Seller's control and that may be reasonably
requested by Purchaser.
Upon prior written notice or request from the Purchaser to the Seller,
at all reasonable times hereafter, (up to and including the Closing Date),
Seller shall (i) make available to, disclose to and instruct its accountants,
counsel, agents and employees to disclose to Purchaser, its counsel and/or
accountants, all engineering and soil reports concerning the Premises, and (ii)
afford Purchaser and any and all representatives of Purchaser free and full
access to the Land and Buildings being purchased pursuant to this Agreement, in
order to conduct such investigations (including soil and environmental tests and
studies) as Purchaser shall, in its sole and absolute discretion, deem pertinent
to Purchaser's acquisition and operation of the Premises. All documents supplied
to Purchaser will be at Seller's expense. All documents will be returned
promptly to Seller if the transaction contemplated by this Agreement is not
consummated and all information will be treated by Purchaser on a confidential
basis. Seller agrees that Seller will cooperate with Purchaser in
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connection with Purchaser's inspection of the Premises. Purchaser hereby agrees
to indemnify and hold harmless Seller with respect to any liability, including
but not limited to, personal injury or property damage, resulting from
Purchaser's activities at the Premises in connection with the foregoing right of
entry. The foregoing obligation of Purchaser shall survive the Closing or
termination of this Agreement.
If Purchaser determines, at any time prior to the expiration of the
period commencing on the date of this Agreement and ending at 5 p.m., Detroit,
Michigan time, on July 2, 2002 (the "Due Diligence Period"), that the results of
Purchaser's inspections, including without limitation the results of any soil or
other tests or studies performed by Purchaser with respect to the existence of
Hazardous Substances (as defined in this Agreement) on the Premises are not
satisfactory to Purchaser for any reason whatsoever, Purchaser shall have the
right, immediately upon written notice to Seller, to terminate this Agreement
and to receive a refund of the Xxxxxxx Money Deposit within five (5) business
days of Seller's receipt of said written notice, in which event neither party
hereto shall have any further rights or liabilities with respect to this
Agreement, except as specifically provided herein.
3.2 Title; Survey.
(a) As evidence of title, Seller shall furnish to Purchaser, as soon
as reasonably possible, but in any event, at least three (3) business
days prior to the end of the Due Diligence Period, a title insurance
commitment issued by the Title Company in the amount of the Purchase
Price and committing the Title Company to insure Purchaser's fee
simple title to the premises, without standard exceptions to the
extent the same can be deleted with the survey hereinafter provided or
a Seller affidavit, subject only to Permitted Exceptions (as defined
below), and including a parking endorsement, access endorsement,
completed structure zoning endorsement and such other title insurance
endorsements as are reasonably requested by Purchaser. The title
insurance commitment shall be accompanied by legible copies of any
instruments of record or other instruments concerning title as
reflected in the title insurance commitment. Purchaser shall have five
(5) business days after receipt of the title insurance commitment,
legible copies of the recorded instruments and the survey referred to
below in order to examine title to the Premises and notify Seller in
writing of Purchaser's disapproval of any matter shown on the title
insurance commitment. Upon notice from Purchaser of its disapproval of
any matter shown on the title commitment, Seller shall have until the
day immediately preceding the closing Date within which to cure or
eliminate such matters or, if Purchaser, in the exercise of its sole
discretion agrees, to obtain title insurance from the Title Company
that insures against such defects to Purchaser's sole satisfaction. If
Seller is unable to cure or eliminate such matters, or to obtain title
insurance that insures against such defects to Purchaser's sole
satisfaction, Purchaser shall have the right to elect to either of the
following as its sole remedy (i) waive in writing such defects, accept
title subject to such encumbrances and exceptions and proceed to
closing, in which case, the amount of any lien or monetary claim which
can be removed with the payment of monies shall, at Purchaser's
option, be deducted from the Purchase Price, or (ii) terminate this
Agreement and receive a full refund of the Xxxxxxx Money Deposit.
Concurrently with the Closing, Seller shall cause the Title Company to
issue to Purchaser the
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Title Company's ALTA Owner's title insurance policy issued pursuant to
the title commitment, including the special endorsements required
pursuant to this Agreement. Seller shall bear the cost of the title
policy, excluding the special endorsements; however, if the
transaction contemplated by this Agreement fails to close for any
reason other than as a result of a default by Seller under this
Agreement, each of Seller and Purchaser shall bear 50% of the
cancellation costs associated with the title commitment to be provided
pursuant to this Agreement. Notwithstanding the above, the full cost
of any lender's title insurance policy required or requested by
Purchaser or its secured lender, and any special endorsements
requested by the Purchaser in the ALTA Owner's title insurance policy
shall be paid for exclusively by the Purchaser. Any encumbrance on
title to which Purchaser does not object to as provided above or that
Purchaser waives in writing as provided above shall be deemed to be a
"Permitted Exception" pursuant to Section 5.2 of this Agreement.
(b) Seller will obtain and use its best efforts to provide to
Purchaser, at least one (1) day prior to the Closing Date, a Minimum
Standard (1999 Minimum Details) ALTA/ASCM survey of the Premises
prepared by a registered surveyor approved by Purchaser, and certified
to Purchaser, Purchaser's lender (if any), and the Title Company, in a
manner satisfactory to Purchaser and the Title Company. The survey
shall be dated a date not more than 180 days prior to the Closing
Date. Seller will also provide Purchaser with a legal description of
the Premises prepared in accordance with such survey. The survey
prepared shall be in accordance with the ALTA minimum survey standards
and contain the certifications and other information required by such
standards and the Title Company in order to (1) remove, to the extent
possible based upon such ALTA minimum survey, the standard pre-printed
exceptions relating to matters of survey, encroachments and the like,
and (2) issue the title insurance endorsements required pursuant to
this Agreement. The legal description so prepared shall be used in
Seller's deed. Seller shall bear the cost of the survey if this
transaction closes or if the transaction contemplated by this
Agreement fails to close as a result of a default by Seller under this
Agreement. If the transaction contemplated by this Agreement does not
close for any reason other than Seller's default, the costs of the
survey will be borne equally by Seller and Purchaser.
3.3 Environmental Site Assessment. Purchaser may, at Purchaser's expense,
obtain an Environmental Site Assessment for the Premises which provides a review
of environmental factors in respect of the subject property.
4.0 Closing
4.1 Time and Place of the Closing. The closing of the sale of the Premises
shall take place on or before the date that is one (1) business day after the
expiration of the Due Diligence Period or the satisfaction or waiver by
Purchaser of the conditions to Purchaser's obligations to close, whichever
occurs first, but in any event on or before July 3, 2002. The closing shall take
place at a mutually agreeable location. Throughout this Agreement, such event is
referred to as the "Closing" and such date and time are referred to as the
"Closing Date". All transactions
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contemplated in connection with this Agreement shall be considered to have taken
place simultaneously, and no delivery or payment shall be considered to have
been made until all steps required hereunder are completed.
4.2 Procedure at the Closing. At the Closing, the parties agree to take
the following steps in the order listed below (provided, however, that upon
their completion all such steps shall be deemed to have occurred
simultaneously):
(a) Seller shall deliver to Purchaser evidence, in such form as in
each case is reasonably satisfactory to Purchaser, that each of the
conditions to the obligation of Purchaser to purchase the Premises
from Seller which is set forth in this Agreement has been satisfied.
(b) Purchaser shall deliver to Seller evidence, in such form as in
each case is reasonably satisfactory to Seller, that each of the
conditions to the obligations of Seller to sell the Premises to
Purchaser which is set forth in this Agreement has been satisfied.
(c) Seller shall deliver to Purchaser such deeds, bills of sale,
endorsements, assignments and other instruments, in such form as in
each case is reasonably satisfactory to Purchaser, as shall be
sufficient to vest in Purchaser good and marketable title to the
Premises, free and clear of all liens, mortgages, pledges,
encumbrances, claims, charges and interests of every kind, except
Permitted Exceptions.
(d) Seller shall deliver to Purchaser the following:
(i) A warranty deed in proper, recordable statutory form
conveying to Purchaser good and marketable fee simple title to
the Premises, free and clear of all liens, encumbrances,
assessments and restrictions, except Permitted Exceptions. Such
deed shall also convey to Purchaser all rights, easements and
privileges appurtenant to the Premises, to the extent Seller has
an interest therein;
(ii) A warranty xxxx of sale, in form reasonably acceptable to
Purchaser, conveying to Purchaser title to the Equipment, free
and clear of all liens and encumbrances;
(iii) An assignment and assumption agreement, in form reasonably
acceptable to Seller and Purchaser, conveying to Purchaser all of
Seller's right, title and interest in the Contracts that
Purchaser has elected to assume;
(iv) An affidavit, in form satisfactory to Purchaser and
provided by Purchaser, stating that Seller is not a foreign
person under Internal Revenue Code Section 1445.
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(v) A customary owner's affidavit as to mechanic's and
materialmen's liens and persons in possession of the Premises
required by the Title Company as a condition to its agreement to
delete the printed General Exceptions related to such liens and
possession from the Commitment.
(vi) An owner's policy of title insurance insuring Purchaser's
fee simple title to the Premises, without standard exceptions but
including the endorsements required pursuant to this Agreement,
in the amount of Nine Million One Hundred Thousand Dollars
($9,100,000).
(vii) If required by the Title Company in order to issue the
completed structure zoning endorsement required pursuant to this
Agreement, a zoning letter executed by the municipality in which
the Premises are located indicating that the Premises and the use
thereof comply with the zoning ordinances of the municipality and
do not constitute a non-conforming use.
(e) Purchaser shall pay the balance of the Purchase Price as provided
in Paragraph 2, subject to the adjustments and prorations set forth
below:
(i) The prorations and adjustments required pursuant to Section
2.2 of this Agreement;
(ii) The Completion Holdback, if any, required pursuant to
Section 6.3 below shall be deposited into escrow with the Title
Company pursuant to an escrow agreement reasonable acceptable to
Seller, Purchaser and the Title Company.
(f) Purchaser and Seller shall execute and deliver a cross receipt
acknowledging receipt from the other, respectively, of the Premises
and the Purchase Price.
(g) Seller shall pay for the owner's title policy, survey, transfer
taxes, and one-half of all escrow fees. Purchaser shall pay for
one-half of all escrow fees, the cost of the lender's policy and the
cost for any special endorsements requested by the Purchaser in the
ALTA Owner's title insurance policy.
5.0 Representations and Warranties of Seller
In order to induce Purchaser to enter into this Agreement and to consummate
the transactions contemplated hereunder, Seller makes the following
representations and warranties:
5.1 Power and Authority of Seller.
(a) Seller is a limited liability company duly organized and legally
existing in good standing under the laws of the State of Michigan.
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(b) Seller has the power and authority to execute and perform this
Agreement and all documents and instruments to be executed by Seller
pursuant to this Agreement (collectively, "Seller's Ancillary
Documents"). This Agreement has been, and Seller's Ancillary Documents
will be, duly executed and delivered by a duly authorized
representative of Seller and such documents constitute or will
constitute the enforceable obligations of Seller.
5.2 Good Title. Seller has good and marketable title to the Premises and
shall, except as otherwise provided herein, at Closing, transfer to the
Purchaser fee simple title to the Premises, free and clear of any and all liens,
mortgages, security interests, leases, conditions, restrictions, easements,
options, claims, unrecorded agreements, or other encumbrances of any kind,
except for the following "Permitted Exceptions":
(a) Those created or assumed by Purchaser;
(b) Zoning ordinances;
(c) Real estate taxes which are a lien on the Premises but which are
not yet due and payable as of the Closing Date;
(d) Those items approved or waived by Purchaser in writing or to
which Purchaser does not object pursuant to this Agreement.
5.3 Litigation Involving Seller. There are no actions, suits, claims,
governmental investigations or arbitration proceedings pending or, to the
knowledge of Seller, threatened against or affecting the Premises and, to the
best of Seller's knowledge, there is no basis for any of the foregoing. To the
best of Seller's knowledge, there are no outstanding orders, decrees or
stipulations issued by any federal, state, local or foreign judicial or
administrative authority in any proceeding to which Seller is or was a party
affecting the Premises.
5.4 Accuracy of Information Furnished by Seller. To the knowledge of
Seller no representation, statement or information made or furnished by Seller
to Purchaser, including but not limited to those contained in this Agreement and
the other information and statements referred to herein and previously furnished
by Seller to Purchaser pursuant hereto, contains or shall contain any untrue
statement of a material fact or omits or shall omit any material fact necessary
to make the information contained therein not misleading.
5.5 Environmental
(a) Seller represents and warrants, to the best of Seller's knowledge
having made reasonably prudent inquiry and investigation into the
environmental compliance of the Premises and the business conducted on
the Premises by the Seller, that the Premises, and the use of the
Premises by Seller, were and are in compliance in all material
respects with all Environmental Laws (as hereinafter defined)
applicable to the Premises and the business conducted on the Premises.
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(b) Seller represents and warrants, to the best of Seller's knowledge
having made reasonably prudent inquiry and investigation into the
environmental compliance of the Premises and the business conducted on
the Premises by the Seller, that there is no Environmental Claim
pending or threatened against Seller, its subsidiaries, parent, or
affiliates concerning the Premises, or otherwise involving the
Premises. "Environmental Claim" means any written claim, action, cause
of action, investigation or notice by any person or entity alleging
potential liability (including, without limitation, potential
liability for investigatory costs, cleanup costs, governmental
response costs, natural resources damages, property damages, personal
injuries, or penalties) arising out of, based on or resulting from (i)
the presence, or release into the environment, of any Hazardous
Substances, or (ii) any violation of any Environmental Laws.
(c) Seller represents and warrants, to the best of Seller's knowledge
having made reasonably prudent inquiry and investigation into the
environmental compliance of the Premises and the business conducted on
the Premises by the Seller, that (i) no portion of the Premises has
been used for the handling, processing, storage or disposal of
Hazardous Substances except in accordance in all material respects
with applicable Environmental Laws, (ii) no underground tank or other
underground storage receptacle for Hazardous Substances is located on
the Premises; (iii) in the course of any activities conducted on the
Premises, no Hazardous Substances have been generated or are being
used except in accordance in all material respects with applicable
Environmental Laws; (iv) there have been no Releases or threatened
Releases (as defined in applicable Environmental Laws) of Hazardous
Substances on, upon, into or from the Premises which singly or in the
aggregate might reasonably be expected to have a material adverse
effect on the value of the Premises; and (v) any Hazardous Substances
generated by Seller at the Premises have been transported offsite only
by properly licensed carriers. Further to the best of Seller's
knowledge without verification thereof, any Hazardous Substances
transported offsite by licensed carriers have been disposed of
properly under applicable Environmental Laws.
(d) "Environmental Laws" means all federal and state laws,
regulations, judgments, decrees, orders, permits, licenses, and rules
relating to pollution or protection of human health or the environment
(including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata), including, without
limitation, laws and regulations relating to emissions, discharges,
releases or threatened releases of Hazardous Substances, or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Substances.
(e) "Hazardous Substances" means any hazardous waste as defined by 42
U.S.C. Sec. 6903(5), any hazardous substance as defined by 42 U.S.C.
Sec 9601(14); any pollutant or contaminant as defined by 42 U.S.C.
Sec. 9601 (33), and any toxic substance, oil or hazardous material or
other chemical or substance regulated by any Environmental Law.
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Notwithstanding the above, nothing set forth, disclosed or contained
in the Environmental Report, as hereinafter defined, in the phase II
environmental site assessment performed by Purchaser as provided in Section 6.4,
in Exhibit J attached hereto or in the environmental reports disclosed by Seller
to Purchaser shall be a breach of any of the representations and/or warranties
of the Seller hereunder.
5.6 Cranes. To the knowledge of Seller, except as noted in the Exhibit K,
after reasonably prudent inquiry and investigation, the cranes located in the
Buildings are in good operating condition, are in compliance with all applicable
safety laws, rules and regulations and are operational in all bays in the
Buildings. Exhibit K attached hereto is a copy of an inspection report of the
cranes in the Buildings performed by Xxxxxxxx Xxxxx & Hoist ("Xxxxxxxx") for the
Purchaser. Xxxxxxxx has estimated that the cost to perform all of the repairs
and maintenance noted in the inspection report will not exceed $12,000.00. After
the Closing, Purchaser shall have all of the repairs and maintenance noted in
the inspection report performed at its cost. Upon receipt of the invoice from
Xxxxxxxx related to the repairs and maintenance noted in the inspection report
attached hereto as Exhibit K, Purchaser shall send a copy of the invoice to the
Seller and Seller upon receipt of the same will pay to the Purchaser in a timely
manner the lesser of:
(i) one-half (1/2) of the invoice; or
(ii) $6,000.00.
5.7 Transfer Tax. Seller shall be responsible for, and shall pay when due,
any and all excise, sales, value added, use, registration, stamp, franchise,
property transfer, gains, transfer and similar taxes, levies, charges and fees
(including all real estate transfer taxes) incurred in connection with the
transaction contemplated by this Agreement. Purchaser and Seller agree to
cooperate in the filing of all necessary documentation and tax returns with
respect to all such taxes, including, without limitation, any pre-sale filing
procedure.
5.8 Miscellaneous.
(a) With respect to the Premises, Seller has received no notice or
order from any governmental authority of a violation of any zoning,
subdivision, building or fire code, or any other similar ordinance,
statute, regulation or requirement of any governmental authority
having jurisdiction thereof.
(b) As of the date of Closing, the Premises shall be free from
mechanic's liens or the possibility of the rightful filing thereof. If
any material or labor has been furnished to the Premises within the
sixty (60) day period immediately preceding the date of Closing,
Seller shall furnish evidence reasonably satisfactory to Purchaser and
Title Company that the payment in full for all such material and labor
has been made or provided for.
(c) There are no pending lawsuits, no threatened lawsuits, and no
asserted or threatened violations which may affect the Premises or any
part thereof or Seller's ability to perform this Agreement.
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(d) To Seller' knowledge there are no private restrictions or
conditions by deed or contract relating to the Premises which do not
appear of record.
(e) Electricity, water and gas are available to the Premises,
installed, and serving the manufacturing Facility on the Premises.
(f) Seller is not a foreign person under Section 1445 of the Internal
Revenue Code.
(g) Seller has full authority to enter into and carry out the terms
of this Agreement.
(h) To Seller's knowledge the Buildings are in good condition and
repair.
(i) Seller is not aware of any fact or circumstances that would
prevent or delay Purchaser from obtaining any licenses and approvals
that are required for Purchaser's operation of the Premises as a
plastics injection molding facility.
Provided that the Closing hereunder occurs, Seller agrees to indemnify and hold
harmless Purchaser from and against any loss, cost, liability or expense
(including reasonable attorneys' fees) incurred by Purchaser as a result of a
breach of any of the representations and warranties contained in this Agreement
including but not limited to Section 5 of this Agreement. The foregoing
obligation to indemnify Purchaser shall survive the Closing for a period of
twelve (12) months. (i.e., in order for Purchaser to make a claim thereunder,
Purchaser shall notify Seller [in accordance with the notice procedures hereof]
of its claim within twelve (12) months after the Closing, failing of which,
Seller shall have no further right or obligation hereunder to Purchaser and
Purchaser shall have no right or remedy against Seller hereunder, or for a
breach of any representations or warranties hereunder.
EXCEPT AS PROVIDED IN SECTION 4.2(d(ii) AND SECTION 5.6, PURCHASER
ACKNOWLEDGES AND AGREES THAT SELLER DOES NOT MAKE, HAS NOT MADE, NOR SHALL BE
DEEMED TO MAKE OR HAVE MADE ANY WARRANTY OR REPRESENTATION TO PURCHASER, EITHER
EXPRESSED OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE EQUIPMENT OR ANY
COMPONENT THEREOF INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO THE
CONSTRUCTION, DESIGN, COMPLIANCE WITH SPECIFICATIONS OR LAWS, QUALITY OF
MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR
OPERATION. PURCHASER ACKNOWLEDGES AND AGREES THAT THE EQUIPMENT IS USED
EQUIPMENT AND PURCHASER AGREES TO ACCEPT THE EQUIPMENT AS USED EQUIPMENT, IN AS
IS CONDITION, AND WITH ALL FAULTS ASSUMED.
6.0 Additional Covenants of Seller
6.1 Best Efforts. Seller will use its best efforts to cause to be
satisfied as soon as practicable and prior to the Closing Date all of the
conditions to the obligation of Purchaser to purchase the Premises, except as
otherwise specified in this Agreement.
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6.2 Conveyance of Title to Premises. Upon the payment of the portion of
the Purchase Price payable at Closing, Seller shall convey title to Purchaser of
the Premises in fee simple, free and clear of any and all liens, mortgages,
security interests, leases, conditions, restrictions, easements, options,
claims, unrecorded agreements, or other encumbrances of any kind, except for
Permitted Exceptions.
6.3 Maintenance of Properties. Seller will maintain the Premises in
customary repair, order and condition, reasonable wear and use and damage by
unavoidable casualty excepted, until the Closing Date. As applicable, Seller
will power sweep and/or vacuum all floors in the building prior to the Closing
Date, including all floors in the factory and the offices. Further, Seller will,
at its expense have the repairs, cleaning and/or maintenance set forth on
attached Exhibit D performed and completed, and will use its best efforts to
complete the same prior to July 15, 2002 (except as expressly noted by the
Seller or otherwise agreed to by the parties). In addition, Seller immediately
shall, at Seller's sole cost and expense, commence and diligently pursue to
completion the filling of all press pits, utility trenches and the scale pit in
the Building, including the pits identified in Exhibit E attached hereto. All
pits and trenches shall be appropriately cleaned prior to being filled and the
scale shall be removed from the scale pit prior to such pit being filled. The
fill for the press pits shall be compacted granular material (minimum 95
Modified Xxxxxxx) or low density concrete. The replacement floor over the press
pits shall consist of 10" thick reinforced slab. The reinforced slab for the
press pits shall consist of two mats of # 6 rebar at 18" on top and # 8 rebar at
18" on the bottom of the reinforced slabs. The replacement floor area over the
utility trenches shall be 10" thick slab with 6x6x6/6 road mesh. All floor
concrete to be 4000 psi design, mix cured with a water base. The replacement
floor area shall have a smooth troweled finish to match the existing floor. All
recessed areas around the pits and/or trenches which are to be filled as set
forth above, shall be filled with 3/4" plate welded to the edge angle on both
edges.
In addition the Seller shall also at its sole cost and expense,
commence and diligently pursue the filling with bar stock and/or epoxy of all
grooves or holes around the small rails embedded in the floor of the Building,
including those small rails identified in Exhibit F, so that such rails are
level with the existing floor and no gaps exist between the rails and the
existing floor.
In addition, the Seller shall at its sole cost and expense, commence
and diligently pursue the removal of the existing large rails including but not
limited to those identified in Exhibit G attached hereto and repair the floor as
required after such removal in order to make the floor flush and level.
Additionally, all rail studs associated with the large rails shall be cut so
that they are level with the existing floor in the Building. Further, Seller
shall at its sole cost and expense cut off the tops of all other studs in the
floor of the Building so as to make such studs level with the existing floor and
shall remove the guard rail and cut the guard rail stud depicted in Exhibit H to
make it level with the existing floor in the Building. Finally, the Seller shall
remove all scrap bins and racks from the Premises prior to August 15, 2002.
Seller will not have completed all the above work (the "Work") on or before the
Closing Date, and as a result, Purchaser shall deposit into escrow with the
Title Company at Closing an amount (the "Completion Holdback") equal to $68,000
which amount is approximately 110% of the cost, as reasonably estimated by
Seller, of completing the following Work:
(i) The filling and capping of the press pits -- $50,000.00;
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(ii) Garage door, panel, window seal repairs -- $3,000.00;
(iii) Interior and exterior foundation wall and siding repair --
$4,000.00; and
(iv) Small rail filling -- $5,000.00.
The Completion Holdback and/or any applicable part thereof, shall be disbursed
to Seller upon receipt by the Title Company of certification by Purchaser that
the Work has been completed to Purchaser's satisfaction; such satisfaction not
to be unreasonably withheld, provided, however, that if Seller has not completed
the Work identified in items (i) through (iv) above on or before August 15,
2002, the applicable part or parts of the Completion Holdback relating to such
unperformed Work shall be disbursed to Purchaser, the part related to such
performed Work shall be disbursed to Seller, and Purchaser shall be entitled to
cause the Work to be completed using such contractors as Purchaser may
designate.
On and after the Closing hereunder, Purchaser shall permit the Seller
to utilize until August 15, 2002, without cost or expense, up to 33,000 square
feet of storage area within the Building and located at the western end of the
current soil storage area for the storage of equipment which Seller is removing
from the Building.
6.4 Hazardous Material Clean-Up/Environmental Remediation. Except for any
PCB's in the transformers servicing the Buildings, if any, Seller shall remove
from the Premises any and all hazardous liquids and materials prior to the
Closing Date. Further on June 4, 2002, Purchaser received a Phase I
environmental site assessment report from its environmental consultant, Xxxxxxx
Group Services (the "Environmental Report"). A copy of the Executive Summary of
the Environmental Report is attached hereto as Exhibit I. The Executive Summary
of the Environmental Report identified three (3) potential recognized
environmental conditions associated with the Premises. Purchaser's lender has
required that Purchaser conduct additional investigation and assessment, as
provided in the Executive Summary related to the three (3) potential recognized
environmental conditions noted in the Environmental Report. Based upon the
Executive Summary, Purchaser's secured lender required that Purchaser conduct
additional investigation and assessment of the Premises. As a result, Purchaser
had its environmental consultant, Xxxxxxx Group Services ("Xxxxxxx") perform a
phase II environmental site assessment of the Premises, based upon the Executive
Summary, which additional investigation included the taking of eight soil
borings from the Premises. The results of the eight soil borings taken from the
Premises, upon such soil borings being analyzed by Xxxxxxx are attached hereto
as Exhibit J.
Based upon the phase II environmental site assessment mentioned above
and the results set forth in Exhibit J, the Purchaser shall after the Closing
prepare and file with the Michigan Department of Environmental Quality ("MDEQ")
a Baseline Environmental Assessment together with a Section 20107a Compliance
Analysis (the "BEA"). All costs and expenses associated with the preparation and
filing of the BEA shall be the sole responsibility of the Purchaser.
The parties hereto acknowledge and agree that the BEA will be filed
with the MDEQ for disclosure purposes only and not for determination purposes or
response purposes. A copy of
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the BEA and the phase II environmental site
assessment performed by Xxxxxxx for the Purchaser as provided above, shall be
provided to the Seller upon completion and/or filing as applicable.
If the MDEQ and/or any other governmental authority or other third
party initiates or commences an enforcement, remediation, reimbursement or other
action against the Seller or the Purchaser based upon the BEA, the Seller shall
diligently defend and/or resolve the same at its initial cost and expense,
provided however, that if Seller's reasonable cost and expense in defending
and/or resolving any of the above actions exceeds $75,000.00, Purchaser shall
indemnify, hold harmless and reimburse Seller for any and all costs and expenses
incurred by Seller which exceeds $75,000.00 or in the alternative, at the
election of the Seller, Purchaser shall pay directly any and all costs and
expenses which exceed $75,000.00.
6.5 No-Shop/Exclusivity. Upon the parties' execution of this Agreement and
through Closing or the termination of this Agreement as provided herein, Seller
will not solicit, initiate, or encourage the submission of any additional
proposals or offers from any persons other than Purchaser relating to the
acquisition of the Premises or participate in any additional discussions or
negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner any effort or attempt by any
person other than Purchaser to acquire the Property.
7.0 Representations and Warranties of Purchaser
7.1 Authority. Purchaser is a corporation that is duly organized, validly
existing and in good standing under the laws of the State of Michigan. Purchaser
has full corporate power to enter into the transactions contemplated by this
Agreement. Purchaser has duly authorized the execution and delivery of this
Agreement.
7.2 No Untrue Representation. To Purchaser's knowledge, no representation
or warranty made by Purchaser in this Agreement, or in any certificate furnished
or to be furnished to Seller pursuant hereto or in connection with the
transactions contemplated hereby, contains or will contain any untrue statement
of a material fact.
8.0 Conditions to the Obligation of Purchaser
The obligation of Purchaser to purchase the Premises shall be subject to
the fulfillment at or prior to the Closing Date (except as otherwise specified)
of each of the following conditions:
8.1 Accuracy of Seller's Representations and Warranties and Compliance by
Seller with Its Obligations. The representations and warranties of Seller
contained in this Agreement shall have been true and correct in all material
respects at and as of the date hereof, and they shall be true and correct in all
material respects at and as of the Closing Date with the same force and effect
as though made at and as of that time. Subject to Section 6.3, Seller shall have
performed and complied with all of its obligations required by this Agreement to
be performed or complied with at or prior to the Closing Date.
8.2 Receipt of Necessary Consents. All necessary consents or approvals
needed to be obtained by Seller hereunder of third parties to any of the
transactions contemplated hereby, the
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absence of which would materially affect Purchaser's rights hereunder, shall
have been obtained and shown by written evidence satisfactory to Purchaser.
8.3 No Adverse Litigation. There shall not be pending or threatened any
action or proceeding by or before any court or other governmental body which
shall seek to restrain, prohibit or invalidate the sale of the Premises to
Purchaser or any other transaction contemplated hereby, or which might affect
the right of Purchaser to own the Premises.
8.4 Building Deficiencies. On June 7, 2002, Purchaser notified Seller in
writing of certain deficiencies with the Building. As a result of such notice,
Seller has agreed to correct prior to Closing, the deficiencies noted and set
forth in Exhibit D attached hereto. Any other deficiencies noted in the written
notice from Purchaser to Seller and not corrected or addressed as set forth in
Exhibit D shall be waived by Purchaser and the Building accepted AS IS and with
such uncorrected deficiencies. Further, as provided in Section 6.3, Seller has
also agreed to diligently pursue and complete the matters referred to in
Exhibits E, F, G and H of this Agreement.
9.0 Conditions to Obligations of Seller
9.1 The obligation of Seller to consummate the purchase and sale of the
Premises as contemplated hereby is subject to the fulfillment of the conditions
set forth in this Section 9.0 at or prior to the Closing, any of which may be
waived by Seller in its sole discretion.
(a) All of the agreements and covenants contained in this Agreement
that are to be complied with, satisfied and performed by Purchaser on
or before the Closing Date shall, in all material respects have been
complied with, satisfied and performed.
(b) All of the representations and warranties made by Purchaser in
this Agreement or in any certificate or document furnished or to be
furnished to Seller hereunder, shall be true and correct in all
material respects both on and as of the date of this Agreement, and on
and as of the Closing Date.
10.0 Certain Actions After the Closing From and after the Closing Date, upon the
reasonable request of Purchaser, Seller shall execute, acknowledge and deliver
all such further acts, deeds, bills of sale, assignments, transfers,
conveyances, powers of attorney and assurances as may be reasonably required to
convey and transfer to and vest in Purchaser and protect its right, title and
interest in all of the Premises, and as may be appropriate otherwise to carry
out the transactions contemplated by this Agreement.
11.0 Termination.
11.1 Anything to the contrary herein notwithstanding, this Agreement may be
terminated and the transaction contemplated hereby may be abandoned:
(a) By the mutual written consent of all of the parties hereto at any
time prior to the Closing Date, in which case the Xxxxxxx Money
Deposit shall be returned to Purchaser within five (5) business days;
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(b) By Purchaser at any time prior to the Closing Date if there shall
be a pending or threatened action or proceeding by or before any court
or other governmental body which shall seek to restrain, prohibit or
invalidate the sale of the Premises to Purchaser. In the event of a
threatened action or proceeding, Seller shall provide notice with all
information in its possession. Purchaser may postpone the closing and
shall have fifteen (15) business days to terminate this Agreement
under this subsection. If Purchaser terminates this Agreement pursuant
to this Section 11.1(b), the Xxxxxxx Money Deposit shall be returned
to Purchaser within five (5) business days. If Purchaser fails to do
so, Purchaser's rights hereunder with respect to the disclosed action
shall be deemed waived;
(c) By either party in writing, without liability to the terminating
party on account of such termination (provided the terminating party
is not otherwise in default or in breach of this Agreement), if the
other party, as the case may be, shall (i) fail to perform in any
material respect its obligations contained herein required to be
performed prior to the Closing Date, or (ii) materially breaches any
of its representations, warranties, or covenants contained herein,
which breach is not remedied by the breaching party after receipt of
notice thereof from the terminating party and prior to the Closing
Date; provided that if Seller terminates this Agreement as a result of
a failure by Purchaser described in clause (i) or clause (ii) above,
the Xxxxxxx Money Deposit paid by Purchaser pursuant to this agreement
shall be forfeited to Seller and paid to Seller, as Seller's exclusive
remedy hereunder, within five (5) business days; and provided further
that if Purchaser terminates this Agreement as a result of a failure
by Seller described in clause (i) or clause (ii) above, the Xxxxxxx
Money Deposit shall be returned to Purchaser within five (5) business
days;
(d) By Seller if any condition set forth in Section 9.0 hereof shall
not have been met as of the Closing Date, in which case the Xxxxxxx
Money Deposit shall be forfeited to Seller and paid to Seller within
five (5) business days;
(e) By Purchaser if any condition set forth in Section 8.0 hereof
shall not have been met as of the Closing Date, in which case the
Xxxxxxx Money Deposit shall be returned to Purchaser within five (5)
business days; or
(f) By Purchaser upon written notice to Seller during the Due
Diligence Period if Purchaser is, in its sole discretion, dissatisfied
with the results of its due diligence review, in which case the
Xxxxxxx Money Deposit shall be returned to Purchaser within five (5)
business days.
11.2 The risk of any loss to the Premises to be sold by Seller hereunder
and all liability with respect to injury and damage occurring in connection
therewith shall be the sole responsibility of Seller until the completion
of the Closing, except as otherwise set forth in this Agreement, and shall
be that of Purchaser thereafter. If any material part of said Premises
shall be damaged by fire or other casualty prior to the Closing Date
hereunder, Purchaser shall have the right and option:
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(a) to terminate this Agreement, without liability to any party
thereto, in which case the Xxxxxxx Money Deposit shall be
returned to Purchaser within five (5) business days, or
(b) to proceed with the Closing hereunder, in which event Purchaser
shall be entitled to receive and retain the insurance proceeds
arising from such casualty, plus a payment from the Seller equal
to the insurance deductible related to such fire or casualty.
12.0 Default. In addition to the remedies set forth in Section 11.1(c),
Purchaser shall have the right, if Seller shall (a) fail to perform in any
material respect the obligations that it is require to perform prior to the
Closing Date, or (b) materially breaches any of its representations, warranties,
or covenants contained herein and fails to remedy the breach promptly after
receipt of notice thereof from Purchaser, to pursue any one of the following:
(i) specific performance hereunder, and/or (ii) claim for damages provided
however such claim for damages shall not under any circumstances exceed the
amount of the Xxxxxxx Money Deposit.
13.0 Miscellaneous
13.1 Brokers' Commission. Seller engaged the services of a real estate
agent and/or broker in connection with the transaction contemplated by this
Agreement, and will be responsible for the payment of all fees, costs, and
commissions claimed by such agent/broker. Seller will indemnify and hold
harmless Purchaser from the commission, fee or claim of any person, firm or
corporation employed or retained or claiming to be employed or retained by
Seller to bring about, or to represent it in, the transactions contemplated
hereby. Purchaser will indemnify and hold harmless Seller from any commission,
fee or claim of any person, firm or corporation employed or retained or claiming
to be employed or retained by Purchaser to bring about or to represent it in the
transactions contemplated hereby.
13.2 Amendment and Modification. The parties hereto may amend, modify and
supplement this Agreement in such manner as may be agreed upon by them in
writing signed by both parties.
13.3 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns, heirs
and legal representatives.
13.4 Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the purchase of the Premises and the other
transactions contemplated herein, and supersede all prior understandings and
agreements of the parties with respect to the subject matter hereof.
13.5 Waivers. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof.
13.6 Possession. Possession of the Premises shall be delivered to Purchaser
at the Closing.
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13.7 Headings. The descriptive headings in this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
13.8 Execution In Counterpart. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original.
13.9 Notices. Any notice, request, information or other document to be
given hereunder to any of the parties by any other party shall be in writing and
delivered personally or sent by certified mail, postage prepaid, as follows:
If to Seller, addressed to:
Shiloh of Michigan, L.L.C.
c/o Xxxxxxx X. Xxxxxx, Chief Financial Officer
Shiloh Industries, Inc.
0000 Xxxx 000/xx/ Xxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx, Xxxxxxx & Xxxxxxxxxx
0000 Xxxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
If to Purchaser, addressed to:
Xxxxx X. Xxxxx
Plastech Holding Corporation
00000 Xxxxxxxx
Xxxxxxxx, XX 00000
with a copy to:
Xxxxxx X. Xxxxxxxx
Plastech Engineered Products, Inc.
00000 Xxxxxxxx
Xxxxxxxx, XX 00000
Any party may change the address to which notices hereunder are to be sent
to it by giving written notice of such change of address in the manner herein
provided for giving notice. Any notice delivered personally shall be deemed to
have been given on the date it is so delivered, and any notice delivered by
registered or certified mail shall be deemed to have been given on the date it
is received.
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13.10 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan applicable to contracts made
and to be performed therein, and excluding conflicts of laws principles.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SHILOH OF MICHIGAN, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Shiloh Corporation, its Member
PLASTECH HOLDING CORPORATION
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Its:__________________________________
duly authorized officer
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Exhibit A
The Land
Situated in the Northeast Quarter of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx,
Xxxx of Xxxxxxx, Xxxxx County, Michigan:
Commencing at the East quarter corner of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 0
Xxxx; thence North 89(degree)45'0" West, 60.00 feet on the East and West
quarter line of Section 13 to a point of intersection with the West
right-of-way line of Inkster Road and the Point of Beginning of the parcel
described herein; thence continuing North 89(degree)45'05" West, 1073.97
feet on the East and West quarter line of Section 13 to a point; thence
North 00(degree)34'08" East, 970.73 feet to a point; thence South
88(degree)55'27" East 1073.00 feet to a point; thence South
00(degree)30'30" West, 955.24 feet on the West right-of-way line of Inkster
Road and a line being 60.00 feet West of and parallel with the East line of
the Northeast quarter of Section 13, to the Point of Beginning. Containing
23.7309 acres of land, more or less. Subject to easements and road
right-of-way's of record.
0000 Xxxxxxx Xx.
Xxxxxxx No. 80-049-99-0001-707
Exhibit B
The Equipment
All overhead cranes
All heating, lighting, plumbing and air conditioning fixtures
The telephone system, and approximately 26 telephones
The truck xxxxx and Rite-Xxxx dock levelers and dock locks
Hot water heater
All existing carpeting
All appliances in the kitchen owned by the Seller
All restroom fixtures
The fire sprinkling system
The electrical transformers at the Buildings
All office furniture, including desks, chairs, filing cabinets, storage
lockers/cabinets, bookcases, and tables
Modular cubicles, including desks, chairs, and storage
All conference room furniture, including tables, chairs, storage, and pull down
screen
All Board Room furniture, including table, chairs, storage, appliances, and
electronic screen
All data processing/IT wiring left intact
Closed circuit TV system
Keys to all offices and lockable furniture
All open shelving
Trash compactor
Two Liebert enclosure cabinets
Exhibit C
Contracts
None
Exhibit D
Repairs, Maintenance, Service
(a) Replace the broken glass window on the roll up garage door located on the
northwest side of the Building (see photograph S3-S4);
(b) Have all restrooms and offices in the Building cleaned;
(c) Replace the missing ceiling tile located in the office area of the
Building;
(d) Replace and/or repair the damaged ceiling tile in the copy room;
(e) Repair the wall near the slop sink;
(f) Repair the block wall in the southwest section of the Building (see
photograph L20-K20);
(g) Repair/replace the weather stripping on roll up garage door located on the
north side of the Building (see photograph E8-E7);
(h) Remove all dead bolt locks;
(i) Repair all interior exist signs and emergency lights so they are
illuminated and/or operating;
(j) Have the HVAC system inspected by a licensed contractor and serviced if
necessary so as to be operable;
(k) All air filters in the Building to be replaced;
(l) All existing fire extinguishers in the Building to be tested and serviced
so as to be operable;
(m) Existing fire suppression system in the Building to be inspected and
serviced if needed so as to be operable;
(n) At the request of Purchaser, remove and discard all portable offices within
the shop area and under equipment mezzanines; and
(o) Remove the guardrail near the roll up garage door (see photograph E8-F8).
Exhibit E
Pits to be Filled
(M10 - O11)
(I12 - H12)
(E6 - F7)
(O5 - L6)
Exhibit F
Small Rails to be Filled
See photographs (I4)
Exhibit G
Large Rails to be Removed
(See attached photographs)
See photographs (O14 - O13)
(O14 - P16)
Exhibit H
Guard Rail to be Removed and Studs Cut
(See attached photograph G8)
Exhibit I
Executive Summary
Xx. Xxxx Xxxxxxx, Tax Manager with Plastech Engineered Products, retained
Xxxxxxx Group Services, Inc. ("Xxxxxxx") to conduct a Phase I environmental site
assessment and limited suspect asbestos-containing materials ("ACM") assessment
of the light industrial property located at 0000 Xxxxxxx Xxxx in Romulus (Xxxxx
County), Michigan. Xxxxxxx performed the Phase I environmental assessment and
limited suspect ACM assessment in conformance with the scope and limitations of
American Society for Testing and Materials ("ASTM") Standard Practice E-1527-00
and Comerica Bank's Guidance Document dated June, 1997.
The objective of the assessment was to provide an independent, professional
opinion regarding recognized environmental conditions (as defined by ASTM), if
any, associated with the site. The scope of services provided by Xxxxxxx is
described in Xxxxxxx'x proposal (No. 02-DetES-1590) dated May 10, 2002, and
addressed to Xx. Xxxxxxx. The terms and conditions under which the project was
conducted were included in Xxxxxxx'x proposal.
In the professional opinion of Xxxxxxx, an appropriate level of inquiry has
been made into the previous ownership and uses of the property consistent with
good commercial and customary practice in an effort to minimize liability, and
no evidence or indication of recognized environmental conditions has been
revealed, except for the following:
. The former operation of a steam clean area within the machine and die
shop
This area contains a concrete floor, a single-floor drain and
associated sump, which discharge to an adjacent above ground storage
tank ("AST"), and was used to steam clean press dies and other
equipment utilized within the subject building. Minor staining of the
concrete flooring was noted in this area.
. The presence of ten machine pits and four machine trenches within the
shop area
According to Xx. Xxxxxx Xxxxxx, Director of Health, Safety and
Environmental for Shiloh Industries, Inc. (the current owner and
previous occupant of the subject property), these trenches and pits
are not known to have been constructed with a liner, and several of
the pits are believed to contain collection sumps. These pits were
used to house press equipment and to contain associated fluids (i.e.,
cutting fluid and lubricant).
. The presence of staining near and a visible oil sheen within the
southern-most floor drain located within the receiving area of the
subject building.
This staining and sheen may have resulted from a potentially hazardous
material released from containers handled in this portion of the
building.
Because recognized environmental conditions were identified during the
performance of the Phase I environmental site assessment, further investigation
and/or assessment is warranted in order to determine the nature, extent,
magnitude, and materiality of recognized environmental conditions at the
property. The estimated cost of the additional investigation, which we believe
to be necessary, ranges from $9,600 if groundwater is not encountered to $13,400
if groundwater is encountered. This investigation will include:
. Drilling 8 soil borings to a maximum depth of 16 feet below ground
surface
. Collecting soil samples from each soil boring
. Collecting a groundwater sample from each boring, if groundwater is
encountered
. Analyzing soil and groundwater samples for one or more of the
following: volatile organic compounds (VOCs), polynuclear aromatic
hydrocarbons (PNAs), polychlorinated biphenyls (PCBs), and metals
(arsenic, barium, cadmium, chromium, copper, lead, mercury, selenium,
silver, and zinc)
. Preparing a report documenting subsurface investigation activities
Xxxxxxx failed to observe evidence of gross material non-compliance
associated with the subject property at the time of the site walkthrough.
A subsurface investigation of the subject property was not undertaken as
part of this assessment. Access to the subject property was not limited at the
time of the assessment, with the exception of several machine pits and trenches
within the building which were covered either with machinery or steel plates.
The information and opinions presented in this Phase I environmental site
assessment report should not be misconstrued as information and opinions
normally pertaining to a formal environmental compliance audit.
Exhibit J
Intentionally Omitted
Exhibit K
Date: 06/21/02
PROPOSAL #: 062102TM
FROM: XXXXXXXX XXXXX & HOIST TO: PLAS-TECH ENGINEERED PROD.
00000 XXXXXXXXX XXXXX PHONE: 000 000-0000 XXX. # 0000
XXXXXXX, XX 00000 FAX: 000 000-0000
PHONE: 000 000-0000, EXT. #562 ATTN: XXXX XXXX
FAX: 000 000-0000
C/O: XXX XXXXX
IN REGARDS TO OUR INSPECTIONS ON 6/20/02, WE ARE PLEASED TO PROPOSE THE
FOLLOWING FOR YOUR CONSIDERATION:
PART #1, UNIT #1:
MISC. INFO: P & H SERIAL #CO-30802 & CO-30802T, 40 TON.
LABOR/MILEAGE/PARTS TO REPAIR THE ABOVE MENTIONED XXXX x XXX XXXXX
XXXX #0, XXXX #0:
MISC. INFO: XXXXXXXX XXXXX SERIAL #VC-96-789, ACE ENG, TROLLEY SERIAL # 1635,30
TON
LABOR/MILEAGE/PARTS TO REPAIR THE ABOVE MENTIONED XXXX x XXX XXXXX
XXXX #0, XXXX #0:
MISC. INFO: P & X XXXXXX # XX-00000 & XX-00000X, 00 XXX.
LABOR/MILEAGE/PARTS TO REPAIR THE ABOVE MENTIONED XXXX x XXX XXXXX
XXXX #0, XXXX #0:
MISC. INFO: XXXXXXXX XXXXX SERIAL #VC-96-790, ACE ENG, TROLLEY SERIAL # 1634,30
TON
LABOR/MILEAGE/PARTS TO REPAIR THE ABOVE MENTIONED XXXX x XXX XXXXX
XXXX #0, XXXX #0:
MISC. INFO: P & H SERIAL #CO-30803 & CO-30803T, 30 TON.
LABOR/MILEAGE/PARTS TO REPAIR THE ABOVE MENTIONED XXXX x XXX XXXXX
XXXX #0, XXXX #0:
MISC. INFO: P & H SERIAL #CO-30804 & CO-30804T, 30 TON.
LABOR/MILEAGE/PARTS TO REPAIR THE ABOVE MENTIONED UNIT = SEE BELOW
TOTAL TO REPAIR ALL UNITS: NOT TO EXCEED $12,000.00, BASED ON INSPECTION REPORTS
TERMS: (SEE ATTACHED)
AVAILABILITY: APPROX. 3 - 4 WEEKS
FOB: SHIPPING POINT
TAXES: NOT INCLUDED
NOTE: ALL CURRENCY TO BE IN U.S. DOLLARS
THANK YOU FOR THE OPPORTUNITY TO QUOTE THESE REPAIRS FOR YOU. IF YOU HAVE ANY
QUESTIONS PLEASE FEEL FREE TO CONTACT ME AT 000 000-0000, XXX. # 000.
THANK YOU FOR YOUR VALUED BUSINESS,
XXX XXXXX