REAL ESTATE PURCHASE AND LEASEBACK AGREEMENT
THIS AGREEMENT, made and entered by and between Michigan Brewery, Inc., a
Michigan corporation, whose address is 000 X. Xxxxxxxxx, X.X. Xxx 0000, Xxxxxxx,
XX 00000 hereinafter referred to as "Seller" and Eyde Brothers Development
Company, a Michigan co-partnership whose address is 0000 X. Xxxxxxxx Xxxxxx,
Xxxxxxx, XX 00000 hereinafter referred to as "Purchaser".
WITNESSETH:
That the Seller hereby agrees to sell and lease back from Purchaser, and the
Purchaser hereby agrees to purchase and lease back to Seller the following
described real estate, hereinafter called the "Property", situated in the City
of Grand Rapids, County of Kent, State of Michigan, and further described as
follows:
SEE EXHIBIT "A" ATTACHED HERETO
together with all improvements and appurtenances thereto and all of the right,
title and interest of the Seller in and to the land lying in the streets and
roads abutting the Property, but excluding all personal property located
thereon, all in accordance with the terms and provisions hereinafter set forth.
PURCHASE PRICE: The purchase price shall be One Million Four Hundred Thousand
and no/100 Dollars ($1,400,000.00) payable by cashier's check or federal
funds wire transfer at closing.
USE OF THE PROPERTY: Seller intends leaseback to the Property from Purchaser,
and to construct and operate a microbrewery/restaurant as drawn on plans
and specifications prepared by Seller's licensed architect, including off
street parking and serving of food and all legal beverages on the Premises,
hereinafter referred to as Use.
This statement of contemplated Use shall be used solely in connection with
interpretation of conditions, representations and warranties set forth
herein, and shall not be construed to limit or defeat any contemplated Use
of the Property by the Seller.
DUE DILIGENCE PERIOD: Purchaser acknowledges that it has had sufficient
opportunity to inspect the Property to conduct such due diligence as
Purchaser deemed necessary to the Property, and that Purchaser is satisfied
with the condition of the Property and all improvements thereon.
UTILITIES: In order for the Seller to utilize the Property for its
contemplated Use, all necessary utilities, including, without limiting
same, electricity, water, sanitary and storm sewers and gas must be
available, at costs and with capacities acceptable to Seller as shown on
EXHIBIT "B" at or within the property line. If said utilities are not at or
within the property line of the Premises as above required, Seller shall
bring such utilities to the Premises at its sole cost and expense. The
obtaining of such utilities prior to closing is a condition precedent to
the obligation of the parties to close.
PERMITS: Seller will use best efforts to obtain at its sole cost and expense,
all necessary licenses, permits and other authorizations to utilize the
Premises for its contemplated Use as stated herein. Such approvals shall
be, without limiting same, curb cuts for reasonable ingress and egress to
the Premises, the right to erect signs acceptable to Seller, all building
and necessary construction permits and the appropriate alcoholic beverage
license issued directly by the appropriate governmental authorities at fees
set by statute, ordinance or regulation. Purchaser agrees to cooperate
with Seller (at no cost to Purchaser) and the state, county or municipal
authorities to obtain such permits and will execute any documents necessary
in this regard. The obtaining of all licenses and permits prior to closing
is a condition precedent to the obligation of the parties to close.
TITLE: Seller shall order a commitment for title insurance for the Property
from Transnation Title Insurance Company or a similar national reputable
title company acceptable to Seller. Prior to closing, such title
commitment must reveal marketable and insurable title in Seller and must be
free from all standard exceptions. Purchaser shall have a period of ten
(10) days after receipt of the above title commitment in which to give
written notice to Seller specifying Purchaser's objection to the status of
title to the Premises ("Objection Period"). At the end of the Objection
Period, Purchaser shall have no further right to object to the status of
Seller's title to the Property. In the event the above referenced title
insurance commitment shall reflect defects or other conditions which would
prevent an insurable and marketable title or prevent the Seller's
contemplated Use of the Property, Purchaser shall advise Seller, and Seller
shall proceed diligently and at its own expense to clear title to the
Premises within thirty (30) days from such notice; it being agreed and
understood that any defect or condition not so removed or cured if
otherwise approved or not objected to by Purchaser shall be deemed
Permitted
Title Exceptions to be attached hereto as EXHIBIT "C". If Seller is unable
to remedy the title within such thirty (30) day period, then Purchaser may
waive the defect and the parties shall proceed to closing, or Purchaser may
terminate this Agreement in which case the parties shall have no further
liability to each other. Marketable and insurable title for Seller's
contemplated Use prior to closing is a condition precedent to the
obligations of the parties to close.
LEASEBACK: Seller agrees to leaseback the Property from Purchaser in accordance
with the terms set forth in a Lease Agreement between Seller and Purchaser,
a copy of which is attached hereto as EXHIBIT "D". At closing, Purchaser
and Seller shall enter into the Lease Agreement in the form attached hereto
as EXHIBIT "D".
CORPORATE APPROVAL: This Agreement is conditional upon the approval of this
transaction by President of Seller. The Seller shall have ten (10) days
from the date of execution hereof to obtain said approval. In the event
Seller does not terminate this Agreement pursuant to this Article on or
before said date, Seller's right to do so hereunder shall be deemed waived.
Purchaser shall have the right to rely on any communication executed by an
officer of Seller in furtherance of this Article.
CLOSING: Closing will take place at the offices of Transnation Title Insurance
Company, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, XX 00000, or at such
other location that is mutually acceptable to the parties within five (5)
days after notice from Seller to Purchaser that it is undertaking to close
hereunder. Conveyance will be by a limited or special warranty deed.
Seller shall bear the expense for the preparation of the deed including,
but not limited to, any applicable conveyance taxes. Seller shall bear the
expense of the title policy. Each party shall bear their own legal fees.
Real estate taxes shall not be prorated. All existing mortgages and liens
shall be discharged by the Seller prior to or at closing. In addition to
the deed, the Seller shall deliver at closing an affidavit of possession
and a no lien affidavit and, if appropriate, an affidavit in compliance
with Section 1445 of the Internal Revenue Code, reasonably acceptable to
Purchaser. The parties shall execute and deliver the Lease in the form
attached hereto as Exhibit "D" at closing. The parties agree to execute
and provide such other and further documents as may be required either by
law or custom and usage in the jurisdiction in furtherance of Closing
hereunder.
DEFAULT: In the event all conditions of this Agreement have been satisfied and
in the event Seller refuses to close, Purchaser may seek specific
performance or any other legal or equitable remedies available and recover
reasonable attorney's fees. In the event all conditions of this Agreement
have been satisfied and in the event Purchaser refuses to close, Seller may
seek specific performance or any other legal or equitable remedies
available and recover reasonable attorney's fees.
AMENDMENTS: This Agreement once properly signed by both parties can be
changed only by a document of equal dignity, executed by an authorized
representative of the respective parties hereto.
NOTICES: All notices, requests, demands or other communications hereunder shall
be in writing and deemed given when delivered personally, when telefaxed,
when sent by nationally known courier or express mail service, or on the
day said communication is deposited in the U.S. mail, by registered or
certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to Seller: Michigan Brewery
000 X. Xxxxxxxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
With a copy to: Xxxx X. Xxxxxx, Esq.
Butzel Long
00000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Purchaser: Eyde Brothers Development Company
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Professional Building
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
or to such other address as the parties may from time-to-time designate by
notice in writing to the other parties.
APPLICATION: This Agreement will be binding on the heirs, executors,
administrators, successors and assigns of the parties hereof and shall be
deemed effective for the purpose of each party undertaking its obligation
herein as of the
last date of execution as set forth below.
OFFER: The offer extended by one party signing this Agreement shall expire
after five (5) business days unless accepted, rejected or revoked prior to
such expiration.
SURVIVAL: All representations, warranties and obligations of Seller as set forth
herein shall survive the Closing of this transaction.
EFFECTIVE DATE: This Agreement shall become effective when signed by all
parties hereto upon the date of the last party signing or initialing
hereunder. In the event Purchaser shall execute this Agreement first and
thereafter Seller shall execute same and said fully Agreements are not
received by Purchaser from Seller within five (5) business days from the
date of the last signing or initialing thereof, the conditions precedent as
herein defined shall be calculated from the date of receipt of fully
executed Agreements by Purchaser.
FORCE MAJEURE: Anything contained herein to the contrary notwithstanding, Seller
and/or Purchaser shall be excused for the period of delay in the
performance of any and all of their obligations under this Agreement, and
shall not be considered in default when prevented from so performing by
cause or causes beyond Seller's or Purchaser's control, including, but not
limited to, war, fire or other casualty, government regulations or through
act of God.
NO BROKER: Purchaser and Seller represent to each other that they have not
utilized the services of any broker in connection with the transaction
evidenced by this Agreement. Accordingly, Seller agrees to indemnify and
hold harmless Purchaser from payment of any brokerage fees or any liability
or obligation therefor to any person or party claiming a fee or commission
through Seller and Purchaser agrees to indemnify and hold harmless Seller
from payment of any brokerage fees or any liability or obligation therefor
to any person or party claiming a fee or commission through Purchaser.
MISCELLANEOUS: This Agreement consists of 6 pages (excluding any Rider,
Addendum and Exhibit attached hereto). TIME IS OF THE ESSENCE. The laws of
the State of Michigan shall govern and control the interpretation and
enforcement of the terms and provisions of this Agreement. This Agreement
shall not be recorded.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals.
SELLER: PURCHASER:
Michigan Brewery, Eyde Brothers Development Company
a Michigan Corporation a Michigan co-partnership
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx
----------------------------- ------------------------------
Its : President Its: Owner
----------------------------- ------------------------------
Date: April 11, 1997 Date: April 11, 1997
----------------------------- ------------------------------
