PURCHASE AND SALE OF REAL ESTATE AGREEMENT
THIS
PURCHASE AND SALE OF REAL ESTATE AGREEMENT (“Agreement”) is made this
16th
day of
February, 2006, by CITY
CENTRAL BANCORP, INC.,
a
Michigan corporation, or an affiliated entity, having an address at 0000
Xxxxxxxxxx Xxxx, Xxxx Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as
“Buyer”), and XXXX
X. XXXXXXX, AS TRUSTEE OF THE XXXX X. XXXXXXX REVOCABLE TRUST, U/A/D OCTOBER
6,
2000,
having
an address Xxxxxxxx-Xxxxx Realtors, 00000 Xxxxxxx Xxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000 (hereinafter referred to as the
“Seller”).
RECITALS:
A. Seller
is
the owner of two (2) parcels of real property located at the northeast corner
of
00 Xxxx Xxxx and Xxxxx Road in the City of Novi, County of Oakland, State of
Michigan, referred to as Parcel No. 50-22-10-400-012 and 50-22-10-400-013,
which
real property is more particularly described on Exhibit “A” attached hereto and
incorporated herein by reference (the “Property”); and
B. Buyer
desires to purchase from Seller and Seller desires to sell and convey to Buyer
a
Property, together with all structures, improvements, rights, easements and
appurtenances located thereon and appertaining thereto, in consideration of
the
purchase price and other covenants herein contained, all as hereinafter set
forth.
NOW,
THEREFORE, in consideration of and in reliance on the mutual promises and
undertakings herein made and the mutual benefits to be derived therefrom, the
parties hereto represent, covenant and agree as follows:
1. Sale
of Property.
Subject
to the terms and conditions herein set forth, Buyer shall purchase from Seller
and Seller shall sell and convey to Buyer the Property, subject to no liens,
restrictions or encumbrances excepting utility lines which service the subject
property and except such restrictions and easements of record as are approved
by
Buyer as provided in paragraph 3 and the right of the public in any street
or
highway forming a boundary of the Property. This sale includes all existing
structures and improvements located thereon, and all right, title and interest,
if any, of Seller in and to any land lying in the bed of any street or highway
opened or proposed, in front of or adjoining the Property to the center line
thereof.
Except
for the representations and warranties of Seller set forth in Paragraph 5 of
this Agreement, the subject property is being sold and purchased in an “as is”
condition, including the environmental condition thereof, with the specific
understanding by both Buyer and Seller that the Seller has made an initial
selling price reduction and that Seller shall not, except for any expenses
incurred by Buyer that arise out of a breach of any covenant, obligation,
representation or warranty of Seller contained in this Agreement or any document
executed by Seller in connection with the closing of this transaction, be
responsible for any expenses incurred by Buyer with respect to its due diligence
activities with respect to the Property, any required municipal approvals sought
by Buyer with respect to the Property or Buyer’s development of the Property,
including but not limited to expenses arising out of improvements required
by
the municipality, costs of conducting environmental investigations and tests
(including a BEA, if applicable), expenses of obtaining or vacating easements,
and expenses pertaining to road improvements and the dedication
thereof.
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Seller
has provided Buyer with time in which to do Buyer’s independent investigations
of the subject property and it shall be the responsibility of Buyer to make
its
independent investigations and determine if the subject property meets the
requirements of Buyer’s intended use or not. Buyer has the option under the
terms of this Agreement to find that the subject property meets the Buyer’s
requirement for it’s intended use and proceed to closing or if not meeting
requirements to withdraw from this Agreement in accordance with it’s terms and
conditions.
2. Purchase
Price.
The
total purchase price for the Property herein conveyed shall be EIGHT HUNDRED
FIFTY THOUSAND DOLLARS ($850,000) (the “Purchase Price”).
The
Purchase Price shall be payable as follows:
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a.
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Within
five (5) days after execution and delivery of this Agreement,
Buyer shall
deposit with Buyer’s Broker (hereinafter defined) a check in the amount of
Thirty Thousand Dollars ($30,000) to be held in escrow to be
applied to
the Purchase Price at closing, released to Seller, or refunded
to Buyer as
provided herein;
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b.
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On
or before the date of Close of Escrow (as hereinafter defined), Buyer
shall deposit into escrow any additional sum so that Buyer’s deposit(s)
plus the additional sum equals the Purchase Price, plus any costs
or
prorations which are Buyer’s responsibility under paragraph
10.
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3. Title/Survey.
Seller
shall furnish good, marketable and insurable title to the Property at closing.
“Insurable” as used herein is defined to mean title which is insurable by
Lawyers Title Insurance Corporations, c/o Xxxxxx Xxxxxxxx, 0000 Xxxxxxxx Xxxxx,
Xxxxx 000, Xxxx, XX 00000 (the “Title Company”) at its standard rates without
standard exceptions except for those exceptions, if any, approved in writing
by
Buyer after receipt of a title commitment from the Title Company dated after
the
date of this Agreement and accompanied by copies of all documents referred
to
therein and the survey referenced below which locates all easements and other
existing improvements. Buyer shall be responsible for any additional survey
work, or to re-certify the survey to Buyer and the Title Company, if desired
by
Buyer including any requirement of the title company for an ALTA survey in
order
to remove the standard title exceptions and to issue the title commitment and
subsequent title policy without standard exceptions.
Seller
shall deliver to Buyer within ten (10) days hereof, the title commitment
referenced above, that certain survey identified as Job No. 332-B, dated June
10, 2005 prepared by Boulder Design Services, LLC and copy of traffic study
from
2005 (“Seller Documents”). Buyer shall then have twenty (20) calendar days after
receipt of the Seller Documents in which to examine same. If Buyer finds any
defects or exceptions to Seller Documents which (a) render the title not
marketable or insurable or (b) render the Property unsuitable for the Intended
Use (hereinafter defined), Seller shall be furnished with a written statement
thereof prior to the expiration of the twenty (20) day period; and Seller shall
have fifteen (15) calendar days after receipt of Buyer’s notice in which to
correct or delete all such defects or exceptions. If Seller shall fail to
correct such defects or exceptions within such period, then Buyer shall have
an
additional fifteen (15) calendar days thereafter to either: (i) decline to
accept the Property with such defects or exceptions, terminate this Agreement,
and receive a refund of the deposit(s) made by Buyer hereunder together with
any
interest accrued thereon; or (ii) accepting the Property with such defects
and
exceptions, in the event they can be cured prior to the Close of Escrow. Upon
approval by Buyer of the title shown in the title commitment, as provided
herein, and the delivery to Buyer at the Seller’s expense at the Close of Escrow
of an ALTA owners title insurance policy Form 1992 (without standard or regional
exceptions) in the amount of the Purchase Price naming Buyer as the insured
and
as owner of fee simple title to the Property, subject only to those exceptions
approved by Buyer, Seller’s obligation hereunder to furnish good, marketable and
insurable title shall be satisfied. Seller has provided a survey identified
above as Job No. 332-B dated June 10, 2005 prepared by Boulder Design Services
LLC and Seller shall not be responsible for any additional survey costs other
than the survey already provided including any requirement by the Title Company
for an ALTA survey to issue the title commitment and policy without standard
exceptions.
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4. Conditions
Precedent to Performance of Agreement by Buyer.
Buyer
shall be obligated to complete this transaction only upon satisfaction of each
of the following conditions precedent, or the waiver thereof by Buyer, within
ninety (90) days (“Due Diligence Period”):
(a) Seller
is
able to convey good, marketable and insurable title to the Property as required
by paragraph 3.
(b) The
representations and warranties made by Seller in this Agreement are true on
and
as of the date of the Close of Escrow with the same effect as though such
representations and warranties had been made on and as of the date of the Close
of Escrow.
(c) Buyer
shall have: (1) obtained final approval of such changes in zoning, variances
in
zoning, special use permits or other orders appropriate under applicable zoning
laws and regulations as are required for Buyer’s intended use of the Property
which consists of the construction and operation of a bank with drive-through
lane (hereinafter referred to as the “Intended Use”); (ii) final site plan for a
building measuring approximately 4,500 square feet, with ample parking, and
at
least four (4) covered drive-through lanes as deemed satisfactory by Buyer
for
the Intended Use; and (iii) all government regulatory approvals of the location
for a bank and other approvals and requirements to operate the
bank.
(d) Buyer
shall have received evidence that all necessary utility services (including
storm drains, sanitary sewer, electricity, gas and water) are available in
sufficient quantity for the Intended Use and that the provision of said services
is in conformity with applicable zoning requirements and has been approved
by
the appropriate municipal officials and utility companies.
(e) Buyer
shall have received satisfactory evidence of access between the Property and
all
public streets bordering the Property, including the availability of curb cuts
for ingress-egress to and from the Property in sizes and at locations designated
by Buyer and approved by the appropriate governmental officials,
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(f) The
results of any inspection, soil tests, drainage test, survey, topographical
analysis, environmental investigations, engineering and/or architectural
drawings do not disclose that the Property is unsuitable in the judgment of
Buyer for the Intended Use. Seller hereby grants to Buyer, its agents and
contractors a license for access over and through the Property for the purposes
of conducting any of the foregoing tests, inspections or surveys provided that
Buyer shall hold Seller harmless from any liability, damage or expense which
Seller may incur by reason thereof. Buyer shall notify Seller at least 24 hours
in advance if access is needed to the building structures located on the
Property. Buyer shall during the initial ninety (90) day due diligence period
cause to be made by an Environmental Company a Phase I Environmental Assessment
and deliver a copy of such Assessment to the Seller, at no cost of Seller.
Further, Buyer shall also deliver to Seller copies of all test results and
studies caused to be made by Buyer on the subject property as such results
are
received by Buyer, at no cost to Seller.
Seller
hereby discloses to Buyer that Seller purchased the subject property for the
purpose of renting to tenants the houses that were existing on the property
at
the time that the Seller purchased the property. Seller has not personally
occupied the houses and has not made any independent investigation of whether
the houses existing on the subject property were ever serviced by heating oil
or
some other fuel that may have required an underground fuel oil supply tank.
If
it is found that one or more supply tanks exist on the subject property, Buyer
acknowledges said disclosure and understands and agrees that Seller shall not
be
responsible for any costs relating to such underground fuel oil supply tank
or
tanks Buyer shall investigate and satisfy itself as to whether any underground
fuel oil supply tanks exist on the subject property making the subject property
unsuitable in the judgment of the Buyer for its intended use.
(g) Seller
shall have complied, at Seller’s expense, with the provisions of any applicable
laws and ordinances relating to the subdividing of real property including
without limitation the preparation, final approval, and filing of any required
subdivision plat or land division application to legally separate the Property
from any larger parcel of land. Seller shall not be responsible for any
requirements or costs relating to the requirements to combine the two parcels
into one tax parcel which may be required as a part of the City of Novi Site
Plan Approval process.
(h) Buyer
has
obtained all necessary financing for acquisition of the Property and
construction of the improvements necessary for Buyer’s Intended
Use.
In
the
event that any contingency of this Agreement has not been either satisfied
or
waived by Buyer within ninety (90) days from the date of this Agreement, Buyer
shall have the option to further extend the Due Diligence Period for three
(3)
successive thirty (30) day periods upon notice to Seller and payment to Seller
of Ten Thousand Dollars ($10,000) from the original deposit held by Buyer’s
Broker, for each thirty (30) day extension. If Buyer elects to terminate this
Agreement prior to the expiration of the last extension of the Due Diligence
Period, Buyer and Seller shall be relieved of any further liability to the
other, and any remaining portion of the deposit held by Buyer’s Broker shall
thereupon be returned to Buyer. If Buyer has satisfied or waived any remaining
conditions prior to the expiration of the Due Diligence Period, as may be
extended, and closes on the Property, the entire amount of the original deposit
shall be applied to the Purchase Price. Any deposits paid to Seller for thirty
(30) day extensions defined above shall be non-refundable, except in the event
Buyer terminates this Agreement pursuant to Paragraph 8 of this Agreement,
but
applicable to the purchase price at closing.
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5. Representations
and Warranties of Seller.
Seller
represents and warrants to and agrees with Buyer as follows:
(a) Seller
is
the trustee of a trust, duly created, validly existing, and Seller has the
power
to own the Property and to enter into this Agreement to sell the
Property.
(b) The
execution of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by the Trust and constitutes
the
binding obligation of Seller without any third-party or beneficiary
approval.
(c) The
transfer and delivery by Seller of the Property to Buyer as provided hereunder
and the execution of any other agreements contemplated herein will not conflict
with or result in the breach (which breach will affect its ability to perform
hereunder) of any of the terms of any agreement or instrument to which Seller
is
a party or by which it is or may be bound or constitute a default thereunder,
or
violate any state or federal governmental law, statute, ordinance or
regulation.
(d) Seller
has no actual knowledge of any encroachments of buildings, structures or
improvements located on the Property onto adjoining property.
(e) Seller
is
not involved in, nor aware of, any pending or threatened litigation which does
or may affect the Property and there are no actions or proceedings pending
or
threatened against Seller before any court or administrative agency in any
way
connected with the Property.
(f) Seller
is
not a foreign corporation, foreign partnership, foreign trust or foreign estate
(as defined in the Internal Revenue Code) and consequently Buyer need not
withhold any portion of the purchase price as provided in Section 1445 of the
Internal Revenue Code and Seller will so certify on Close of
Escrow.
(g) To
the
best of Sellers knowledge, without Seller making any independent investigations,
that the Property (including the land, surface, water, ground water and any
improvements) does not contain any underground storage tanks, asbestos,
substantial amounts of waste or debris, or contamination. The representations
contained in this paragraph shall survive the Close of Escrow and the
recordation of the Deed. The Seller in this Agreement provided for the Buyer
with due diligence time to perform the Buyers independent investigations as
to
the conditions of the Property including environmental conditions. Although
the
Seller is unaware of any contamination or hazardous waste being on the Property,
the Seller must leave it to the Buyer to do it’s own independent investigation
and thereby to make its independent determination as to the environmental
condition of the Property and the Property meeting the requirements of the
Buyer
for it’s intended use.
6. Establishment
of Escrow and Close of Escrow; Extension of Close of Escrow.
Upon
execution of this Agreement by both parties, the parties shall open an escrow
the Title Company in order to consummate the purchase in accordance with the
terms and provisions hereof The provisions hereof shall constitute joint
instructions to the Title Company; provided, however, that the parties shall
execute such additional instructions as requested by the Title Company not
inconsistent with the provisions hereof. Said escrow instructions shall provide
for closing (the “Close of Escrow”) by recordation of a Warranty Deed from
Seller to Buyer, and delivery of other documents and performance of other
conditions required by this Agreement, within thirty (30) days after the
expiration of the Due Diligence Period, as may be extended, and the vacation
of
the month-to-month tenancy of the occupants of the houses, said date being
the
“Closing Date”. If the Closing Date falls on a Saturday, Sunday or legal
holiday, then in such event the date for Close of Escrow should be automatically
extended to the next following business day.
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7. Deed;
Possession.
Upon
the Close of Escrow, Seller shall convey fee title to the Property to Buyer
by
general Warranty Deed, whereupon Seller shall deliver and Buyer shall accept
quiet and peaceable possession of the Property, free of any tenants or
occupants.
8. Default.
In the
event of any default by Seller hereunder, Buyer may, at its option, elect to
enforce the terms of this Agreement through specific performance, or demand,
and
be entitled to, an immediate refund in full all deposit(s) by Buyer hereunder
in
full termination of this Agreement. In the event of any default by Buyer
hereunder, Buyer and Seller agree that the actual damages, including any
attorney’s fees and any damage for withdrawing the Property from the market for
Buyer’s failure to perform hereunder by reason of any default of Buyer would be
extremely difficult to measure, and that the amount of the deposits) by Buyer
provided for herein is a reasonable estimate of such damages. In the event
that
Buyer defaults hereunder, Seller shall be paid the deposit(s) as its sole right
to damages or other relief.
9. Condition
of Property.
The
Property shall be delivered to Buyer at the Close of Escrow in the same physical
condition as of the date hereof. In the event there occurs any material change
in the physical condition of the Property, Seller shall immediately notify
Buyer
thereof and this Agreement shall, at Buyer’s election, immediately become null
and void. If Buyer elects to accept the Property in its then condition, all
proceeds of insurance, if any, or claims for damages payable to Seller by reason
of such damage shall be paid to or assigned to Buyer.
10. Prorations
and Expenses.
All
taxes and assessments (including all unpaid assessments, whether or not due)
which have become a lien on the Property at the date of the Close of Escrow
shall be paid by Seller. Current real property taxes and rentals shall be
prorated between Buyer and Seller as of the date of the Close of Escrow. Seller
shall pay the cost of any documentary transfer tax levied in accordance with
requirements of lawful authority. Seller shall pay all costs of preparing and
recording any documents required to remove title exceptions, and the premium
for
the owner’s policy of title insurance. Buyer and Seller shall each pay one-half
of the escrow fee. Buyer shall pay the recording fee for the deed and any costs
relating to the requirements of the City of Novi to combine the parcels into
one
tax parcel which may be required as a part of the site plan approval
process.
Seller
is
aware and hereby discloses to Purchaser that sanitary sewer was installed in
Section 10 of the City of Novi by a Xxxxxxxx Xxxxxxx Xxxxxxxxxx Xxxxxxxx #
00.
The property owned by Seller being sold to Buyer was not assessed nor included
in the sanitary sewer Contract Special Assessment District # 94 and there may
be
tap in fees or connection fees for the sewer to service this property which
may
result in the Buyer having to pay additional or increased sewer connection
or
tap in fees as a result of the subject property not being included or assessed
as part of the Sanitary Sewer Contract Special Assessment District # 94. Seller
shall not be responsible for any of these costs related to the sanitary sewer
connections which may or may not be considered an assessment.
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11. Brokers;
Indemnification by Seller.
Seller
shall indemnify and hold Buyer harmless against any and all commissions, fees,
costs or expenses incurred by or due to any real estate broker engaged by Seller
for or by reason of Seller’s sale of the Property and against any claims,
damages, loss, cost or expense, including attorneys’ fees, or other liability of
any nature incurred by reason of the breach by Seller of any warranty or
representation contained in this Agreement or any warranty or representation
of
Seller being untrue. All representations, warranties and indemnities made by
Seller in this Agreement or pursuant hereto shall survive the Close of Escrow
and the consummation of the transaction contemplated by this Agreement,
notwithstanding any investigation theretofore or thereafter made by or on behalf
of Buyer. Notwithstanding the foregoing, Buyer and Seller acknowledge and agree
that Seller is represented by Xxxxxxxx-Xxxxx Realtors, and the six percent
(6%)
commission payable by Seller at closing shall be equally shared with Xxx Xxxxxx
Inc. Realtors, acting as Buyer’s Broker.
12. Counterparts.
This
Agreement may be executed in one or more counterparts and shall become effective
when one or more counterparts have been signed by all of the parties; each
counterpart shall be deemed an original but all counterparts shall constitute
a
single instrument.
13. Assignment.
This
Agreement may be assigned by either party without the prior written consent
of
the other party hereto and such assignment of this Agreement by either party
hereto shall relieve it of its obligations hereunder upon receipt of written
notice of such assignment by the other party. Subject to the foregoing, this
Agreement shall be binding upon the heirs, executors, administrators and
successors to the parties hereto.
14. Notices.
All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed by registered
or
certified mail with postage prepaid, or deposited, prepaid, with an overnight
delivery service, in each case, within such period as is reasonable under the
circumstances, addressed to each party as provided on the first page of this
Agreement, and a copy sent to the following:
(a) If
to
Seller, copy to:
Xxxxxxxx-Xxxxx
Realtors
00000
Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx
Xxxxx, Xxxxxxxx 00000
Attn:
Xxxxxxx X. Xxxxxx Xx.
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(b) If
to
Buyer, copy to:
Xxxxx
Xxxx PLC
000
X.
Xxx Xxxxxxxx, Xxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Attn:
Xxxx XxXxxxx, Esq.
or
to
such other addressees as shall be furnished in writing by either party to the
other.
15. Miscellaneous.
This
Agreement and all certificates, instruments and other papers furnished in
connection with this Agreement set forth the entire understanding and agreement
between the parties with reference to the subject matter hereof. This Agreement
shall be construed and interpreted and the rights of the parties determined
and
enforced in accordance with the laws of the state wherein the Property is
located. The headings for the various articles of this Agreement are used only
as a matter of convenience for reference and are not to be considered a part
of
this Agreement or to be used in determining the intent of the parties to this
Agreement.
16. Time
of the Essence.
Time is
of the essence in this Agreement. If counterparts to this Agreement have not
been executed and returned to both parties as presented within ten (10) calendar
days of the date delivered by the first to sign, this Agreement and offer
becomes null and void and of no further force or effect.
17. Tax
Deferred Exchange.
The
Buyer is aware that the Seller is participating in a tax deferred exchange
as
defined under Section 1031 of the Internal Revenue Code and that this property
is being sold in connection with that transaction. The Buyer agrees to cooperate
in the transaction for the benefit of the Seller. The Buyer will incur no
additional expense or obligation in connection with fulfilling the requirements
of the exchange. The Buyer will have no liability or responsibility in
connection with the exchange portion of the transaction.
THE
UNDERSIGNED individuals have been duly authorized to bind the respective parties
to this Agreement as of the day and year so indicated.
| Date: February 16, 2006 | BUYER: | |
| CITY CENTRAL BANCORP, INC. | ||
| |
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| By: | /s/ Xxxxxx Xxxxx | |
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|
Name:
|
Xxxxxx Xxxxx
|
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| Its: | President & CEO | |
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| Date: February 11, 2006 | SELLER: | |
| |
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| By: | /s/ Xxxx Xxxxxxx | |
|
Xxxx
X. Xxxxxxx, as trustee of the Xxxx X.
Xxxxxxx
Revocable Trust, U/A/D June 6, 2000
|
||
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EXHIBIT
A
Legal
Description of Property
Commonly
known as: 00000
Xxxxxx Xxxx Xxxx, Xxxx, XX
Tax
Parcel Nos.: (Parcel
1) 50-22-10-400-012
(Parcel
2) 50-2210-400-013
Legal
Descriptions:
Parcel
1:
Part
of
the Southeast 1/4 of Section 10, Town I North, Range 8 East, City of Novi,
Oakland County, Michigan, described as: Commencing at the South 1/4 corner
of
said section; thence North 00 degrees 52 minutes 00 seconds West, 300 feet
to
the Point of Beginning, thence North 00 degrees 52 minutes 00 seconds West,
165
feet; thence East 264 feet; thence South 00 degrees 52 minutes 00 seconds East,
165 feet; thence West 264 feet to the Point of Beginning.
Parcel
2:
Part
of
the Southeast 1/4 of Xxxxxxx 00, Xxxx 0 Xxxxx, Xxxxx 0 Xxxx, Xxxx of Novi,
Oakland County, Michigan, described as: Commencing at the South 1/4 corner
of
said section; thence North 00 degrees 52 minutes 00 seconds West, 75.01 feet
to
the Point of Beginning, thence North 00 degrees 52 minutes 00 seconds West,
254.99 feet; thence East 264 feet; thence South 00 degrees 52 minutes 00 seconds
East, 254.99 feet; thence West 264 feet to the Point of
Beginning.
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