EXHIBIT 10.67
AGREEMENT FOR PURCHASE AND SALE OF
DELPHI BUILDING
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the _____ day of June, 2000, by and between TROY
DEVELOPMENT #2, LLC, a Colorado limited liability company ("Seller") and XXXXX
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("Purchaser").
W I T N E S S E T H:
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WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land (the "Land") located in Troy,
Oakland County, Michigan, generally located at the intersection of Long Lake
Road and Corporate Drive and being more particularly described on Exhibit "A"
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hereto; and
(b) all rights, privileges, and easements appurtenant to the Land,
including all water rights, mineral rights, reversions, or other appurtenances
to said Land to the extent owned by Seller, and all right, title, and interest
of Seller, if any, in and to any land lying in the bed of any street, road,
alley, or right-of-way, open or proposed, adjacent to or abutting the Land
(collectively, the "Appurtenances"); and
(c) all buildings, structures, and improvements situated on the Land,
including, without limitation, that certain three story building containing
approximately 107,152 rentable square feet, parking areas containing
approximately 403 parking spaces and other amenities to be constructed on the
Land and owned by Seller, and all apparatus, built-in appliances, equipment,
pumps, machinery, plumbing, heating, air conditioning, electrical and other
fixtures on the Land and owned by Seller (specifically excluding those owned by
any tenant) (all of which are herein collectively referred to as the
"Improvements"); and
(d) all personal property now owned by Seller and located on or to be
located on or in, the Land and Improvements (specifically excluding any and all
personal property owned by any tenant) ("Personal Property"); and
(e) all of Seller's right, title, and interest, as landlord or lessor,
in and to that certain lease agreement (the "Lease") with DELPHI AUTOMOTIVE
SYSTEMS LLC ("Tenant"), dated March 22, 2000; and
(f) all of Seller's right, title, and interest in and to the plans and
specifications with respect to the Improvements (the "Plans and Specifications")
and any guarantees, trademarks, rights of copyright, warranties, or other rights
related to the ownership of or use and operation of the Land, Personal Property,
or Improvements, all governmental licenses and permits, and all intangibles
associated with the Land, Personal Property, and Improvements, including the
name of the Improvements and the logo therefor, if any; and
(g) all of Seller's right, title and interest in and to the contracts
described on Exhibit "B" hereto (the "Contracts"), to the extent the same
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survive Closing or require performance after Closing.
2. Xxxxxxx Money. Within two (2) business days after the full execution
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of this Agreement, Purchaser shall deliver to Metropolitan Title Company
("Escrow Agent"), whose offices are at 0000 X. Xxxxxxxx, Xxxxx 000, Xxxxxxxxxx
Xxxxx, XX 00000, xxxxxxx money in the amount of $540,000 (which may be paid in
the form of a check payable to Escrow Agent)(the "Deposit"). Escrow Agent shall
immediately convert any portion of the Deposit paid by check, to cash and shall
hold the Deposit in an interest bearing account. The Deposit, together with all
interest accrued thereon shall hereinafter be referred to as the "Xxxxxxx
Money." Escrow Agent shall hold and disburse the Xxxxxxx Money in accordance
with this Agreement. The Xxxxxxx Money shall be paid by Escrow Agent to Seller
at Closing (as hereinafter defined) and shall be applied as a credit to the
Purchase Price (as hereinafter defined), or shall otherwise be paid to Seller or
refunded to Purchaser in accordance with the terms of this Agreement.
3. Purchase Price. Subject to adjustment and credits as otherwise
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specified in this Agreement, the purchase price (the "Purchase Price") to be
paid by Purchaser to Seller for the Property shall be NINETEEN MILLION EIGHT
HUNDRED THOUSAND AND 00/100 DOLLARS ($19,800,000.00). The Purchase Price shall
be paid by Purchaser to Seller at the Closing (as hereinafter defined) by wire
transfer of immediately available federal funds, less the amount of Xxxxxxx
Money and subject to prorations, adjustments and credits as otherwise specified
in this Agreement.
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4. Purchaser's Inspection and Review Rights. Purchaser and its agents,
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engineers, or representatives, with Seller's reasonable, good faith cooperation,
shall have the privilege of going upon the Property as needed to inspect,
examine, test, and survey the Property at all reasonable times and from time to
time provided Landlord's or Tenant's construction activities are in no manner
impaired by Purchaser. Purchaser hereby agrees to hold Seller harmless from any
liens, claims, liabilities, and damages incurred through the exercise of such
privilege, and Purchaser further agrees to repair any damage to the Property
caused by the exercise of such privilege. Upon 24 hours prior notice to Seller,
Seller shall make available to Purchaser, or Purchaser's agents and
representatives, for review and copying, at a reasonable time, all books,
records, and files in Seller's possession relating to the ownership and
operation of the Property, but specifically excluding Seller's internal books
and records such as budgets and proprietary information relating to the
construction of the Improvements, and specifically including, without
limitation, title matters, surveys, tenant files, the Plans and Specifications,
the Lease, any brokerage or other commission agreements relating to the Lease,
any financial statements of Tenant delivered in connection with the Lease,
service and maintenance agreements, architectural agreements relating to the
Improvements, and other contracts, books, records, operating statements, and
other information relating to the management of the Property. Seller further
agrees to in good faith assist and cooperate with Purchaser in its review of the
books, records, and files relating to the Property. Seller has provided
Purchaser with copies of recent surveys of the Land and Improvements and any
appraisals, building inspection reports and environmental reports relating
thereto and in the possession or under the control of Seller.
5. Special Condition to Closing. During the period commencing as of the
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effective date of this Agreement and ending on June 29, 2000 (the "Inspection
Period"), Purchaser shall have the right to make investigations, examinations,
inspections, market studies, feasibility studies, lease reviews, and tests
relating to the Property and the operation thereof in order to determine, in
Purchaser's sole opinion and discretion, the suitability of the Property for
acquisition by Purchaser. Such investigations may include, without limitation,
confirmation that all requisite zoning and other approvals relating to the Land
or to the construction of the Improvements have been obtainted, testing and
analysis as to the environmental condition of the Land and Improvements by an
environmental or geotechnical engineer satisfactory to Purchaser, and
confirmation that access to the Property is available by publicly dedicated
rights-of-way or other methods acceptable to Purchaser. Purchaser shall have the
right to terminate this Agreement at any time prior to the expiration of the
Inspection Period by giving written notice to Seller of such election to
terminate. In the event Purchaser so elects
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to terminate this Agreement, (i) Seller shall be entitled to receive and retain
the sum of Twenty-Five Dollars ($25.00) of the Xxxxxxx Money, (ii) the balance
of the Xxxxxxx Money shall be promptly refunded by Escrow Agent to Purchaser
(iii) except for those provisions which expressly survive termination in this
Agreement, no party hereto shall have any other or further rights or obligations
under this Agreement, and (iv) Purchaser shall return all information delivered
to Purchaser by Seller or copied by Purchaser from Seller's files and deliver to
Seller copies of any and all other materials prepared by or for Purchaser in
connection with the Land or Improvements. Seller acknowledges that the sum of
$25.00 is good and adequate consideration for the termination rights granted to
Purchaser hereunder. In the event Purchaser fails for any reason to timely
deliver written notice of its election to terminate prior to expiration of the
Inspection Period, Purchaser's right to terminate this Agreement pursuant to
this Paragraph shall expire and thereafter the Xxxxxxx Money shall become non-
refundable to Purchaser except in the event Seller is unable or unwilling to
deliver title to the Real Estate, subject only to the Permitted Exceptions (as
hereinafter defined) to Purchaser at Closing through no fault of Purchaser or
Seller is otherwise in default of its obligations hereunder.
6. General Conditions Precedent to Purchaser's Obligations Regarding the
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Closing. In addition to the condition to Purchaser's obligations set forth in
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Paragraph 5 above, the obligations and liabilities of Purchaser hereunder shall
in all respects be conditioned upon the satisfaction of each of the following
conditions, any of which may be waived by written notice from Purchaser to
Seller:
(a) Seller shall have complied in all material respects with and
otherwise performed in all material respects each of the covenants and
obligations of Seller set forth in this Agreement, as of the Closing Date (as
hereinafter defined).
(b) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the Closing
Date.
(c) There shall have been no adverse change to title to the Property
which has not been cured and Title Company (as hereinafter defined) shall have
issued the Title Commitment (as hereinafter defined) on the Land and
Improvements without exceptions other than as described in Section 7, and Title
Company shall be prepared to issue to Purchaser upon the Closing a fee simple
owner's title insurance policy on the Land and Improvements pursuant to such
Title Commitment.
(d) Purchaser shall have received a written
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statement signed by Tenant under the Lease certifying that the Lease is
unmodified and in full force and effect (or, if there have been modifications,
that the same is in full force and effect as modified stating the
modifications); that there have been no defaults of the Lease by Landlord or
Tenant; and the date to which rent has been paid in advance Seller shall request
that Tenant execute the form of Tenant Estoppel Certificate attached hereto as
Exhibit "E" (the "Tenant Estoppel Certificate"). Seller agrees to use
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commercially reasonable efforts to obtain the Tenant Estoppel Certificate from
Tenant. Purchaser agrees to accept Seller's certification as to matters therein
(other than those set forth in paragraphs 1,2 and 3 thereof) which Tenant
declines to give.
(e) Seller shall have caused the Lease to be amended or otherwise
obtained the written waiver signed by Tenant so that Article 58 and Exhibit K of
the Lease (relating to a right of first offer) shall have been waived, released
and deleted therefrom.
(f) Seller shall have caused its architect (the "Architect") to
execute and deliver to Purchaser a certificate in substantially the form and
content of Exhibit K hereto (the "Architect's Certificate").
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(g) The Tenant Improvements (as defined in the Lease) shall have been
completed, Tenant shall have executed and delivered the Commencement Memorandum
(as defined in the Lease), subject only to "punch list" items which the building
contractor estimates will have a cost to complete of not more than $100,000, and
payments of Base Rent (as defined in the Lease) shall have commenced.
(h) Seller shall have obtained and delivered to Purchaser, the
certificate of authorized persons to the effect that the Improvements have been
constructed in compliance with the requirements of the instruments listed as
items 7, 8 and 9 of Schedule B-II of the "Title Commitment" (as hereinafter
defined), any fees charges, assessments or the like have been paid and an
estimate of such charges which may become due in the future.
7. Special condition Precedent to Seller's Obligations Regarding the
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Closing. Seller's obligation to sell the Property to Purchaser as contemplated
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by this Agreement shall be expressly conditioned upon the amendment of the Lease
or Seller's having obtained a written waiver signed by Tenant so that Article 58
and Exhibit K of the Lease shall have been waived, released and deleted
therefrom.
8. Title and Survey.
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(a) Delivery of Title Commitment. Purchaser hereby
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covenants and agrees that it has received, from Metropolitan Title Company, in
its capacity as agent for First American Title Insurance Company of New York (in
such capacity the "Title Company"), title commitment number CM-348326, dated as
of May 11, 2000 (herein referred to as the "Title Commitment") together with
legible copies of all documents and instruments referred to therein. Seller
shall pay for the base premium of the Title Policy. Purchaser may, at its sole
cost and expense, request and obtain affirmative coverage over any mechanic's,
materialman's and subcontractor's liens and with full extended coverage over all
general exceptions, and any other endorsements reasonably requested by Purchaser
or Purchaser's lender, including without limitation, the following: zoning
(including affirmative coverage of compliance with and any recorded covenants
and restrictions), fairway, survey, contiguity, access and single tax parcel.
Seller agrees to take reasonable actions to cause (a) Title Company to modify
Schedule B-2 exception 1 to refer to taxes and assessments for 2000 and
subsequent years which are not yet due and payable,(b) exception 10 to refer
only to Tenant, and (c) to delete exception 11 in its entirety. Further, Seller
shall take reasonable actions to satisfy the Schedule B-1 requirements. All
other matters shown on the Title Commitment or the Survey, together with all
building restrictions, zoning regulations and all other applicable laws
heretofore or hereafter adopted by any public authority relating to the Real
Estate, and any matters arising by, through or under Purchaser are hereby
defined as the "Permitted Exceptions."
(b) Delivery of Survey. Purchaser hereby covenants and agrees that it
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has received from Seller, an as-built survey of the Land and the Improvements
prepared by Xxxxx & Fraus, dated _________ ___, 2000, and last updated June ___,
2000 (the "As-built Survey"). Seller shall cause the As-built Survey to be
certified to Purchaser and Title Company, and which certification shall be
sufficient to cause Title Company to delete its standard preprinted survey
exceptions.
(c) New Title Matters. "New Title Matters," as such term is used
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herein, shall mean only the following matters to the extent the same are not
caused by Purchaser: (i) new matters which affect the title to the Land which
were not set forth on the Title Commitment or the Survey, and (ii) any form of
litigation or bankruptcy which is commenced or filed against Seller. At such
time as either Seller or Purchaser gains actual knowledge of a New Title Matter,
the party gaining such knowledge shall give the other written notice of the such
new matter, providing such reasonable detail regarding such matters as may then
be available. If at any time any New Title Matters arise, the existence of such
New Title Matters shall constitute a defect in the title of the Land which may
be objected to by Purchaser in accordance with the provisions of Section 3(d)
except that Purchaser's time
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period to review and object to or accept any New Matter shall be ten (10) days
after giving or receipt of notice of the New Matter(s).
9. Representations and Warranties of Seller. Except as disclosed to
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Purchaser, made available to Purchaser for copy or discovered by Purchaser prior
to Closing, Seller hereby makes the following representations and warranties to
Purchaser, each of which shall be deemed material:
(a) Lease. Attached hereto as Exhibit "C" is a true and accurate copy
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of the Lease, together with all modifications and amendments (other than the
amendment required by this Agreement) thereto, which Lease is the only lease in
effect relating to the Property. Seller is the "landlord" under the Lease and
owns unencumbered legal and beneficial title to the Lease and the rents and
other income thereunder, subject only to the collateral assignment of the Lease
and the rents thereunder in favor of the holder of an existing mortgage or deed
of trust encumbering the Property, which mortgage or deed of trust shall be
cancelled and satisfied by Seller at the Closing.
(b) Lease - Assignment. To Seller's actual knowledge, Tenant has not
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assigned its interest in the Lease or sublet any portion of the premises leased
to Tenant under the Lease.
(c) Lease - Default.(i) Seller has not received any notice of
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termination or default under the Lease,(ii) to Seller's actual knowledge, there
are no events which with the passage of time or notice, or both, would
constitute a default by Seller or by Tenant, and Seller has complied with each
and every undertaking, covenant, and obligation of Seller under the Lease, and
(iii) Tenant has not asserted any defense, set-off, or counterclaim with respect
to its tenancy or its obligation to pay rent, additional rent, or other charges
pursuant to the Lease.
(d) Lease - Rents and Special Consideration. Tenant:(i) has not
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prepaid rent for more than the current month under the Lease, (ii) has not
received and is not entitled to receive any rent concession in connection with
its tenancy under the Lease other than as described in the Lease, (iii) except
for the construction of the improvements described therein, is not entitled to
any special work (not performed prior to the Closing Date),or consideration (not
yet given) in connection with its tenancy under the Lease, and (iv) does not
have any deed, option, or other evidence of any right or interest in or to the
Property, except for Tenant's tenancy as evidenced by the express terms of the
Lease, and except for the rights under Section 27 of the Lease which shall be
extinguished on or before Closing.
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(e) Lease - Commissions. All commissions payable under, relating to,
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or as a result of the Lease for the initial Lease Term will be cashed-out and
paid and satisfied in full by Seller at or prior to Closing.
(f) No Other Agreements. Other than the Lease, the Contracts and the
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Permitted Exceptions, Seller is not party to any other leases, service
contracts, management agreements, or other agreements or instruments in force
and effect, oral or written, that grant to any person whomsoever or any entity
whatsoever any right, title, interest or benefit in or to all or any part of the
Property or any rights relating to the use, operation, management, maintenance,
or repair of all or any part of the Property.
(g) No Litigation. There are no actions, suits, or proceedings
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pending, or, to Seller's actual knowledge, threatened by any organization,
person, individual, or governmental agency against Seller with respect to the
Property or against the Property, nor does Seller know of any basis for such
action. Seller is not a party to any pending or threatened application for
changes in the zoning applicable to the Property.
(h) Condemnation. Seller has not received any written notice from any
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governmental authority of any actual or threatened condemnation or other taking
by eminent domain of the Property or any portion thereof.
(i) Violations. Seller has received no written notice from any
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applicable governmental authority, which remains uncured, of any violations of
law, municipal or county ordinances, or other legal requirements with respect to
the Property.
(j) Bankruptcy. Seller is "solvent as said term is defined by
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"bankruptcy law" and has not made a general assignment for the benefit of
creditors nor been adjudicated a bankrupt or insolvent, nor has a receiver,
liquidator, or trustee for any of Seller's properties (including the Property)
been appointed or a petition filed by or against Seller for bankruptcy,
reorganization, or arrangement pursuant to the Federal Bankruptcy Act or any
similar Federal or state statute, or any proceeding instituted for the
dissolution or liquidation of Seller.
(k) Pre-existing Right to Acquire. Other than Purchaser, no person or
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entity has any right or option to acquire the Property or any portion thereof
which will have any force or effect after the execution of this Agreement, other
than Tenant (and the foreclosure rights of the lien holders referenced in the
Title Commitment), which rights will be extinguished prior to Closing.
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(l) Effect of Certification. To Seller's actual knowledge, neither
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this Agreement nor the transactions contemplated herein will constitute a breach
or violation of, or default under, or will be modified, restricted, or precluded
by the Lease.
(m) Authorization. Seller is a duly organized and validly existing
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limited liability company under the laws of the State of Colorado and is
qualified to do business in the State of Michigan. This Agreement has been duly
authorized and executed on behalf of Seller and constitutes the valid and
binding agreement of Seller, enforceable in accordance with its terms, and all
necessary action on the part of Seller to authorize the transactions herein
contemplated has been taken, and no further action is necessary for such
purpose.
(n) Seller Not a Foreign Person. Seller is not a "foreign person"
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which would subject Purchaser to the withholding tax provisions of Section 1445
of the Internal Revenue Code of 1986, as amended.
(o) Plans and Specifications. Attached hereto as Exhibit "D" is a
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complete list (to date) of all Plans and Specifications relating to the
Improvements, including all change orders, shop drawings, bulletins and other
documents varying or interpreting the architectural or other drawings.
(p) Contracts. Except as set forth on Exhibit B attached hereto,
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Seller is not party to any service, management or maintenance contract affecting
the Property unless such contract is either terminable by Seller (or, after the
Closing Date, by Purchaser) upon not more than thirty (30) days notice, or
which, by their terms, have been fully performed, complied with or terminated
(and are of no further force or effect) on or as of the Closing Date. Further,
Seller shall not enter into any service, management or maintenance contract, or
amend, cancel or otherwise revise any such contract or agreement currently in
effect, without the prior written consent of Purchaser, except that Seller shall
have the right, without the consent of Purchaser, to enter into any such
contracts which are either terminable by Seller (or, after the Closing Date, by
Purchaser) upon not more than thirty (30) days notice, or which, by their terms,
have been fully performed, complied with or terminated (and are of no further
force or effect) on or as of the Closing Date.
(q) Environmental Matters. Seller has not released any solid waste or
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hazardous or toxic chemicals or any other hazardous material (as such term is
defined in the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended (42 U.S.C. Section 9601, et seq.)) on the Land in
violation of any Environmental Laws. Further, Seller has received no notice from
any governmental authority having jurisdiction over the Land that the Land is
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in violation of any Environmental Laws. As used herein, the term "Environmental
Laws" shall mean and include: the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601, et
seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section
1801, et seq.), the Resource Conservation and Recovery Act of 1976, as amended
(42 U.S.C. Section 6901, et seq.), any of the regulations adopted or
publications promulgated pursuant thereto, or any, state or local laws,
ordinances, rules or regulations in effect on the date hereof relating to
protection of public health, safety or the environment. To Seller's actual
knowledge, except as may be disclosed in that certain environmental site
assessment prepared by NTH CONSULTANTS, LTD, dated APRIL 27, (i) no asbestos or
asbestos containing materials have been installed, used, incorporated into, or
disposed of on the Land, (ii) no polychlorinated biphenyls are located on or in
the Property in the form of electrical transformers, fluorescent light fixtures
with ballasts, cooling oils, or any other device or form, (iii) no underground
storage tanks are located on the Land or were located on the Land and
subsequently fremoved or filled, and (iv) the Property has not previously been
used as a landfill, cemetery or as a dump for garbage or refuse.
At Closing, Seller shall represent and warrant to Purchaser that all
representations and warranties of Seller in this Agreement remain true and
correct as of the date of the Closing, except for any changes in any such
representations or warranties that occur and are disclosed by Seller to
Purchaser expressly and in writing at any time and from time to time prior to
Closing upon their occurrence. Each and all of the express warranties,
covenants, and indemnifications made and given by Seller to Purchaser herein
shall survive the execution and delivery of the Warranty Deed by Seller to
Purchaser for nine months, except for subparagraph (q) which shall survive
indefinitely.
As used in this Agreement, to Seller's actual knowledge, or such other similar
term imparting knowledge to Seller, shall mean to the actual knowledge of Xxxx
Xxxxxx, Xxxx Xxxxxx and/or Xxxxxxx X. Xxxxx without investigation. As used in
this Agreement, where Seller has stated it has not received notice or written
notice, or such other similar term imparting receipt of notice to Seller, shall
mean that the actual notice has not been received by Xxxx Xxxxxx, Xxxx Xxxxxx
and/or Xxxxxxx X. Xxxxx.
EXCEPT AS PROVIDED EXPRESSLY HEREIN AND IN THE DEED, NEITHER SELLER NOR
ANYONE ACTING FOR OR ON BEHALF OF SELLER, HAS MADE ANY REPRESENTATION, WARRANTY,
STATEMENT OR PROMISE TO PURCHASER CONCERNING THE PROPERTY, THE QUALITY, VALUE,
PHYSICAL ASPECTS OR CONDITION THEREOF, ANY DIMENSIONS OR SPECIFICATIONS OF THE
LAND, THE IMPROVEMENTS, OR THE PERSONAL
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PROPERTY, THE FEASIBILITY, DESIRABILITY, CONVERTIBILITY OF THE PROPERTY FOR OR
INTO ANY PARTICULAR USE, THE CURRENT OR PROJECTED INCOME OR EXPENSES OF THE
PROPERTY, OR ANY OTHER MATTER WITH RESPECT TO THE PROPERTY; THAT ENTERING INTO
THIS AGREEMENT, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION AND HAS NOT
RELIED UPON ANY REPRESENTATION, STATEMENT OR WARRANTY OF SELLER OR ANYONE ACTING
FOR OR ON BEHALF OF SELLER, OTHER THAN AS EXPRESSLY CONTAINED IN THIS AGREEMENT
OR THE DEED AND IS THEREBY PURCHASING THE PROPERTY AS IS; AND THAT OTHER THAN AS
EXPRESSLY CONTAINED IN THIS AGREEMENT OR THE DEED PURCHASER DOES HEREBY WAIVE
AND SELLER DOES HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND OR TYPE WHATSOEVER
WITH RESPECT TO THE PROPERTY, WHETHER EXPRESSED OR IMPLIED, INCLUDING BY WAY OF
DESCRIPTION BUT NOT LIMITATION, THOSE OF MARKETABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TENANTABILITY, HABITABILITY, USE AND ALL WARRANTIES RELATING TO
COMPLIANCE BY THE PROPERTY WITH ANY APPLICABLE GOVERNMENTAL LAWS AND REGULATIONS
INCLUDING, WITHOUT LIMITATION, ZONING CODES, THE SOIL CONDITIONS OF THE
PROPERTY, AND THE COMPLIANCE BY THE PROPERTY, WITH ANY ENVIRONMENTAL
REQUIREMENTS. FURTHER, PURCHASER HEREBY SPECIFICALLY ASSUMES THE RISK OF
CONFIRMING THAT THE PROPERTY CAN BE SERVED BY SUFFICIENT UTILITIES INCLUDING,
WITHOUT LIMITATION, WATER, SANITARY AND STORM SEWER, GAS, ELECTRIC, AND
TELEPHONE OR ANY OTHER UTILITY IT REQUIRES OR DESIRES.
The terms of this Section 9 will survive the Closing and conveyance of the
Property to Purchaser by Seller.
10. Seller's Additional Covenants. Seller does hereby further covenant
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and agree as follows:
(a) Operation of Property. Seller hereby covenants that, from the
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date of this Agreement up to and including the Closing Date, Seller shall: (i)
not negotiate with any third party respecting the sale of the Property or any
interest therein, (ii) not modify, amend, or terminate the Lease or enter into
any new lease, contract, or other agreement respecting the Property, except as
permitted hereunder, (iii) not grant or otherwise create or consent to the
creation of any easement, restriction, lien, assessment, or encumbrance
respecting the Property, other than utility easements or ingress/egress
easements necessary for the Property's development.
(b) Preservation of Lease. Seller shall, from and after the date of
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this Agreement to the date of Closing, use its good faith efforts to perform and
discharge all of the duties and obligations and shall otherwise comply with
every covenant and agreement of the landlord under the Lease, at Seller's
expense, in the manner and within the time limits required thereunder.
(c) Insurance. From and after the date of this
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Agreement to the date and time of Closing, Seller shall, at its expense, cause
to be maintained in full force and effect the insurance coverage described in
Exhibit "F".
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(d) Permits, etc. At least five (5) days prior to the Closing Date,
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Seller shall obtain and deliver to Purchaser copies of (i) a certificate of
occupancy issued by the City of Troy, Michigan in connection with the
construction of the Improvements; (ii) true and correct copies of the most
recent real estate tax bills and notices of assessed valuation pertaining to the
Improvements; (iii) true and correct copies of all insurance policies and
certificates of insurance in Seller's possession relating to the Improvements or
delivered to Seller by Tenant.
(e) CAD Disk. On or before the Closing Date, Seller shall request
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that the Building's contractor deliver to Purchaser as-built drawings depicting
the Improvements as constructed, to be delivered on a CAD disk if reasonably
available.
(f) Assignment of Contracts. With respect to the Contracts and
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warranties which are being assigned to Purchaser which require the consent of
parties to the warranty or contract, there shall have been delivered to
Purchaser, at or prior to the Closing, written instruments from the contracting
parties whereby they consent to the assignment of the contract, warranties and
guaranties.
(g) Covenant to Satisfy Conditions; Effect of Failure to Satisfy.
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Seller hereby agrees to use commercially reasonable efforts to cause each of the
conditions precedent to the obligations of Purchaser to be fully satisfied,
performed and discharged, on and as of the Closing Date.
(h) Completion of Construction. Seller represents and warrants that it
--------------------------
has completed the construction of the core and shell portion of the Improvements
and has commenced construction of the Tenant Improvements to be constructed and
installed by Landlord pursuant to the Work Letter attached as Exhibit D to the
Lease, which Seller hereby agrees to diligently complete). Seller further agrees
to escrow with Title Company at Closing an amount equal to one hundred ten
percent (110%) of the amount of the "Allowance" (as defined in the Work Letter)
remaining available to Tenant as of the Closing Date, which escrowed amount
shall be paid to Landlord not later than 20 days following Seller's submission
to Purchaser and Title Company of statements and reasonable supporting
documentation (including conditional lien waivers, sworn statements and
underlying invoices for items for which payment is being requested. Upon
completion of the Tenant Improvements, including Punch list Items, which Seller
agrees to diligently complete, any funds remaining in such escrow shall be
released to Seller.
12
(i) Action with Respect to the Property. Seller shall not in any
-----------------------------------
manner sell, convey, assign, transfer or encumber the Improvements or the Lease
or any part thereof or interest therein (except to secure, refinance or extend
any existing construction loan which shall be paid off on or before Closing), or
otherwise dispose of the Improvements or the Lease, or any part thereof or
interest therein, or alter or amend the zoning classification of the
Improvements, or otherwise perform or permit any act or deed which shall
materially diminish, encumber or affect Seller's rights in and to the
Improvements or prevent it from performing fully its obligations hereunder, nor
enter into any agreement to do so.
(j) Books and Records. Seller shall continue to maintain its books and
-----------------
records with respect to the operation of Improvements, in the same manner as it
has prior to the date of this Agreement.
(k) Purchaser's Access. At all reasonable times and upon the request
------------------
by Purchaser, Seller shall grant to Purchaser and its engineers, architects and
other agents or representatives of Purchaser, access to the Improvements for the
purpose of making a physical inspection thereof, and each of its component
parts; provided, however, all such persons shall comply with reasonable safety
requirements of Seller and shall not in any way interfere with the construction
or operations of Tenant, and Seller shall have no liability or obligation to any
of such persons for any injury or loss suffered while said persons are upon the
Improvements. Purchaser shall restore the Land to its condition existing
immediately before Purchaser's entry upon the Land, and Purchaser shall
indemnify and defend Seller against and hold Seller harmless from all claims,
demands, liabilities, losses, damages, costs and expenses, including reasonable
attorneys' fees and disbursements (collectively, "Claims"), in any manner
------
arising from or caused by Purchaser in connection with entry on the Land by
Purchaser pursuant hereto; provided, however, Purchaser's foregoing obligations
shall not include any obligation or duty with respect to Claims (including
Claims that the Land has declined in value) arising out of, resulting from or
incurred in connection with (i) the discovery or presence of any Hazardous
Substances on the Land not brought on the Land by Purchaser or the Release
(other than by Purchaser) of any Hazardous Substances on the Land, or (ii) the
results, findings, tests or analyses of Purchaser's environmental investigation
of the Land.
(l) Default Notices. Seller shall deliver or cause to be delivered to
---------------
Purchaser, promptly upon receipt thereof by Seller, copies of any written
notices of default, or the occurrence of any event which could result in a
Default under the Lease, or any construction loan, mortgage, lease, contract or
agreement now or at any time hereafter in effect with respect to the
Improvements, and shall report to
13
Purchaser, from time to time, the status of any alleged default thereunder.
Seller shall advise Purchaser in writing, promptly upon obtaining actual
knowledge of the occurrence of any event or circumstance which constitutes a
breach of any of the representations or warranties or covenants of Seller herein
contained, which notice shall describe the nature of such event or circumstance
in reasonable detail. Seller shall advise Purchaser promptly in writing of the
receipt, by Seller or any of its affiliates, of notice of: (i) the institution
or threatened institution of any judicial, quasi-judicial or administrative
inquiry or proceeding with respect to the Improvements; (ii) any notice of
violation issued by any governmental or quasi-governmental authority with
respect to the Improvements, (iii) any proposed special assessments, or (iv) any
defects or inadequacies in the Improvements or any part thereof issued by any
insurance company or fire rating bureau.
(m) Warranties. With respect to any warranties or guaranties relating
----------
to the Improvements which are assigned, or required to be assigned, to Purchaser
pursuant to Section 1(f), or otherwise, and which, by their terms or otherwise
expire, terminate or lapse at any time prior to the date which is one year
following the Substantial Completion Date (as defined in the Lease) (the
"Warranty Date"), Seller hereby assumes and agrees to pay, perform and discharge
all of the liabilities and obligations of the various contractors, suppliers and
others providing warranties or guarantees as above provided for the period from
the date of expiration thereof to and including the Warranty Date, it being the
intention of the parties hereto that such guarantees or warranties which have
expired, terminated or lapsed prior to the Warranty Date shall be extended by
the provisions of this Subsection and shall be the liability and obligation of
Seller during such extended period.
(n) Punch List Work. The parties acknowledge that certain portions of
---------------
the building and the building equipment constituting a part of the Improvements
may not have been finally completed on the Closing Date. Accordingly, the
Architect shall determine the amount (the "Punch List Amount") as may be
necessary to (i) satisfactorily complete any items of construction, or to
provide any items of building equipment, required by the Plans and
Specifications which, while substantially complete, have not been finally
completed or provided on the Closing Date; (ii) satisfactorily complete any
landscaping required by the Plans and Specifications which cannot then be
completed on account of weather or the season and (iii) correct any material
defects in the design or construction of the Improvements or the materials
incorporated therein (the "Punch List Work"). As expeditiously and prudently as
possible after the Closing Date, Seller shall complete, or cause to be
completed, all of the Punch List Work. Seller's covenant to complete the Punch
List Work shall
14
survive the Closing and any release of construction holdbacks by Tenant under
the Lease.
11. Closing. Provided that all of the conditions set forth in this
-------
Agreement are theretofore fully satisfied or performed, it being fully
understood and agreed, however, that Purchaser may expressly waive in writing,
at or prior to Closing, any conditions that are unsatisfied or unperformed at
such time, the consummation of the sale by Seller and purchase by Purchaser of
the Property (herein referred to as the "Closing") shall be held at 9:00 a.m.,
local time, on June 29, 2000, at the offices of Title Company, or at such
earlier time as shall be designated by Purchaser in a written notice to Seller
not less than two (2) business days prior to Closing. The date of Closing is
referred to herein as the "Closing Date." The Purchase Price shall arrive in
good funds no later than noon Central Standard Time on the Closing Date, or
prorations shall be adjusted by one day. The Closing shall take place through
an escrow established with Title Company (the "Escrow") by means of a so-called
New York style closing, with the concurrent delivery of Seller's deed and other
documents of title, the delivery of the Title Policy (or marked title
commitment) described below, and the payment of the Purchase Price.
12. Seller's Closing Documents. For and in consideration of, and as a
--------------------------
condition precedent to, Purchaser's delivery to Seller of the Purchase Price
described in Paragraph 3 hereof, Seller shall obtain or execute, at Seller's
expense, and deliver to Purchaser at Closing the following documents (all of
which shall be duly executed, acknowledged, and notarized where required and
shall survive the Closing):
(a) Special or Limited Warranty Deed. A Michigan statutory warranty
--------------------------------
deed in the form attached hereto as Exhibit "G"("Deed") conveying insurable fee
-----------
simple title to the Land, the Appurtenances, and the Improvements to Purchaser,
subject only to the Permitted Exceptions. The legal description set forth in the
Deed shall be as set forth on Exhibit "A". In the event Purchaser shall obtain a
-----------
new or updated survey of the Land and Improvements and the legal description set
forth in Purchaser's survey shall differ from the legal description set forth on
Exhibit "A", the Deed shall convey title by the legal description based upon
-----------
such survey, provided that in no event shall Seller be obligated to convey more
Land than it currently owns;
(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser title to the
------------
Personal Property in the form and substance of Exhibit "H";
-----------
(c) Blanket Transfer. A Blanket Transfer and Assignment in the form
----------------
and substance of Exhibit "I";
-----------
15
(d) Assignment and Assumption of Lease. An Assignment and Assumption
----------------------------------
of Lease in the form and substance of Exhibit "J", assigning to Purchaser all of
-----------
Seller's right, title, and interest in and to the Lease and the rents thereunder
and pursuant to which Purchaser shall assume all obligations under the Lease
accruing after the date of said assignment;
(e) Seller's Affidavit. A customary seller's affidavit in the form
------------------
requested by Title Company, with such modifications as are generally accepted by
Title Company;
(f) FIRPTA Certificate. A FIRPTA Certificate in evidencing that Seller
------------------
is not a non-United States company;
(g) Certificates of Occupancy. The original certificate of occupancy
-------------------------
on the core and shell of the Building, less tenant improvements which are the
responsibility of the Tenant under the Lease;
(h) Marked Title Commitment. The Title Commitment, marked to update
-----------------------
the effective date thereof through the date and time of recording the Deed from
Seller to Purchaser, to reflect that Purchaser is vested with fee simple title
to the Land, the Appurtenances and the Improvements, and to reflect that all
requirements for the issuance of the final title policy contemplated by the
Title Commitment have been satisfied.
(i) Keys and Records. The original tenant files and other books and
----------------
records (other than matters solely between Seller and the general contractor
relating to the construction contract) relating to the Property in Seller's
possession;
(j) Tenant Notice. Notice from Seller to Tenant of the sale of the
-------------
Property to Purchaser in such form as Purchaser shall reasonably approve;
(k) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement; and
(l) Other Documents. Such other documents as shall be reasonably
---------------
required by Purchaser's counsel.
13. Purchaser's Closing Documents. Purchaser shall obtain or execute and
-----------------------------
deliver to Seller at Closing the following documents, all of which shall be duly
executed and acknowledged where required and shall survive the Closing:
(a) Blanket Transfer. The Blanket Transfer and Assignment;
----------------
16
(b) Assignment and Assumption of Lease. The Assignment and Assumption
----------------------------------
of Lease;
(c) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement; and
(d) Other Documents. Such other documents as shall be reasonably
---------------
required by Seller's counsel.
14. Closing Costs. Seller shall pay the base premium for the Title Policy,
-------------
including the cost of the examination of title to the Property made in
connection therewith but excluding the cost of any endorsements requested by
Purchaser, one-half of the cost of any transfer or documentary tax imposed by
any jurisdiction in which the Property is located, the attorneys' fees of
Seller, and all other costs and expenses incurred by Seller in closing and
consummating the purchase and sale of the Property pursuant hereto. Purchaser
shall pay the attorneys' fees of Purchaser, one-half of the cost of any transfer
or documentary tax imposed by any jurisdiction in which the Property is located,
the cost of any endorsements it requires for the Title Policy, the cost of any
mortgagee Title Policy and all other costs and expenses incurred by Purchaser in
closing and consummating the purchase and sale of the Property pursuant hereto.
Each party shall pay one-half of any escrow fees.
15. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rents, additional rents, and other income of the Property
-----
(other than security deposits, which shall be assigned and paid over to
Purchaser) collected by Seller from Tenant for the month of Closing. Purchaser
shall also receive a credit against the Purchase Price payable by Purchaser to
Seller at Closing for any rents or other sums (not including security deposits)
prepaid by Tenant to Seller for any period following the month of Closing, or
otherwise.
(b) Property Taxes. Except for such taxes which are the responsibility
--------------
of Tenant, City, state, county, and school district ad valorem taxes based on
the ad valorem tax bills for the Property and routine annual special assessments
shall be prorated on a "due date basis", with the intent that, all taxes shall
be prorated such that Seller shall be obligated to pay all taxes attributable to
the Land prior to the date of Closing, and Purchaser shall be obligated to pay
all taxes attributable to the Land from and after the date of Closing. If
current year tax information is not then available, prorations shall be made on
the basis of the latest
17
available tax figures and information. Should such proration be based on the
latest available tax figures and information and prove to be inaccurate upon
receipt of the ad valorem tax bills for the Property for the year of Closing,
either Seller or Purchaser, as the case may be, may demand at any time after
Closing a payment from the other correcting such malapportionment. In addition,
if after Closing there is an adjustment or reassessment by any governmental
authority with respect to, or affecting, any ad valorem taxes for the Property
for the year of Closing or any prior year, Seller shall pay for any such
additional tax payment. The foregoing provisions shall expressly survive the
Closing.
(c) Utility Charges. Except for utilities which are the responsibility
---------------
of Tenant, Seller shall pay all utility bills received prior to Closing and
shall be responsible for utilities furnished to the Property prior to Closing.
Purchaser shall be responsible for the payment of all bills for utilities
furnished to the Property subsequent to the Closing. Seller and Purchaser hereby
agree to prorate and pay their respective shares of all utility bills received
subsequent to Closing, which agreement shall survive Closing.
16. Purchaser's Default. If Seller has performed all of its obligations
-------------------
hereunder and Purchaser fails, within the time limits provided herein, to (i)
make any payment; (ii) perform any obligation or covenant; (iii) close this
transaction on or before the Closing Date; or (iv) satisfy any condition of this
Agreement, or if Purchaser otherwise defaults under this Agreement, then Seller
shall, as its sole remedy, have the right to terminate this Agreement and in
such event (a) Seller shall retain the Xxxxxxx Money, as liquidated damages and
(b) Purchaser shall promptly return all information delivered to Purchaser by
Seller and any and all other materials prepared by or for Purchaser in
connection with the Land. This remedy is independent of any indemnity
obligations of Purchaser hereunder. It is hereby agreed that Seller's damages
will be difficult to ascertain and that the Xxxxxxx Money constitutes a
reasonable liquidation thereof and is intended not as a penalty, but as fully
liquidated damages. Seller agrees that in the event of a default by Purchaser,
it shall not initiate any proceeding to recover damages from Purchaser, but
shall limit its recovery to the retention of the Xxxxxxx Money.
Seller's Initial _____ Purchaser's Initials /s/ DW
------
17. Seller's Default. In the event of default by Seller under the terms
----------------
of this Agreement, and Purchaser is otherwise, ready willing and able to timely
perform all of its obligations hereunder, at Purchaser's option: (i) if any such
defects or objections consist of taxes, mortgages, deeds of trust, deeds to
secure debt, mechanic's or materialman's liens, or other monetary encumbrances,
Seller authorizes Title Company to withhold from Seller's proceeds at Closing
amounts
18
sufficient to cure such defects or objections, and upon such cure, Closing shall
proceed in accordance with the terms of this Agreement, or (ii) Purchaser shall
have the right to terminate this Agreement by giving written notice of such
termination to Seller, whereupon Escrow Agent shall promptly refund all Xxxxxxx
Money to Purchaser, and Purchaser and Seller shall have no further rights,
obligations, or liabilities hereunder, except for those provisions which
specifically survive termination including any Purchaser indemnity obligations;
(iii) Purchaser may elect to close the transaction notwithstanding such defaults
in which event such defaults (other than those obligations of Seller which are
to be performed after Closing) shall be waived, or (iv) Purchaser may elect to
seek specific performance of this Agreement.
18. Condemnation. If, prior to the Closing, all or any part of the
------------
Property (which part allows Tenant under the Lease to terminate the Lease or
otherwise reduce the rent payable thereunder) is subjected to a bona fide threat
of condemnation by a body having the power of eminent domain or is taken by
eminent domain or condemnation (or sale in lieu thereof), or if Seller has
received notice that any condemnation action or proceeding with respect to the
Property is contemplated by a body having the power of eminent domain, Seller
shall give Purchaser immediate written notice of such threatened or contemplated
condemnation or of such taking or sale, and Purchaser may by written notice to
Seller given within thirty (30) days of the receipt of such notice from Seller,
elect to cancel this Agreement. If Purchaser chooses to cancel this Agreement in
accordance with this Paragraph 17, then the Xxxxxxx Money shall be returned
immediately to Purchaser by Escrow Agent and the rights, duties, obligations,
and liabilities of the parties hereunder shall immediately terminate and be of
no further force and effect. If Purchaser does not elect to cancel this
Agreement in accordance herewith, this Agreement shall remain in full force and
effect and the sale of the Property contemplated by this Agreement, less any
interest taken by eminent domain or condemnation, or sale in lieu thereof, shall
be effected with no further adjustment and without reduction of the Purchase
Price, and at the Closing, Seller shall assign, transfer, and set over to
Purchaser all of the right, title, and interest of Seller in and to any awards
that have been or that may thereafter be made for such taking.
19. Damage or Destruction. If any of the Improvements shall be destroyed
---------------------
or damaged prior to the Closing, and the estimated cost of repair or replacement
exceeds Two Hundred Fifty Thousand Dollars ($250,000.00) or if the Lease shall
terminate as a result of such damage, Purchaser may, by written notice given to
Seller within twenty (20) days after receipt of written notice from Seller of
such damage or destruction, elect to terminate this Agreement, in which event
the Xxxxxxx Money shall immediately be returned by Escrow
19
Agent to Purchaser and except as expressly provided herein to the contrary, the
rights, duties, obligations, and liabilities of all parties hereunder shall
immediately terminate and be of no further force or effect. If Purchaser does
not elect to terminate this Agreement pursuant to this Paragraph 18, or has no
right to terminate this Agreement (because the damage or destruction does not
exceed $250,000.00 and the Lease remains in full force and effect), and the sale
of the Property is consummated, Purchaser shall be entitled to receive all
insurance proceeds paid or payable to Seller by reason of such destruction or
damage under the insurance required to be maintained by Seller pursuant to
Paragraph 9(d) hereof (less amounts of insurance theretofore received and
applied by Seller to restoration). If the amount of said casualty or rent loss
insurance proceeds is not settled by the date of Closing, Seller shall execute
at Closing all proofs of loss, assignments of claim, and other similar
instruments to ensure that Purchaser shall receive all of Seller's right, title,
and interest in and under said insurance proceeds.
20. Intentionally Deleted.
---------------------
21. Assignment. Purchaser's rights and duties under this Agreement shall
----------
not be assignable without the consent of Seller which consent shall not be
unreasonably withheld; provided, however, Purchaser may assign its rights
hereunder to an affiliate of Purchaser; provided, further, that in the event of
any assignment hereunder, Purchaser shall continue to be primarily liable for
the obligations of the "Purchaser" under this Agreement.
22. Broker's Commission. Seller has by separate agreement agreed to pay a
-------------------
brokerage commission to and Capital Development, LLC (the "Broker"). Purchaser
and Seller hereby represent each to the other that they have not discussed this
Agreement or the subject matter hereof with any real estate broker or agent
other than Broker so as to create any legal right in any such broker or agent to
claim a real estate commission with respect to the conveyance of the Property
contemplated by this Agreement. Seller shall and does hereby indemnify and hold
harmless Purchaser from and against any claim, whether or not meritorious, for
any real estate sales commission, finder's fees, or like compensation in
connection with the sale contemplated hereby and arising out of any act or
agreement of Seller, including any claim asserted by Broker and any broker or
agent claiming under Brokers. Likewise, Purchaser shall and does hereby
indemnify and hold harmless Seller from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Purchaser, except any such claim asserted by Broker and
any broker or agent claiming under Brokers. This Paragraph 21 shall survive the
Closing or any termination of this Agreement.
20
23. Notices. Wherever any notice or other communication is required
-------
or permitted hereunder, such notice or other communication shall be in writing
and shall be delivered by overnight courier, by hand, or sent by U.S. registered
or certified mail, return receipt requested, postage prepaid, to the addresses
set out below or at such other addresses as are specified by written notice
delivered in accordance herewith:
PURCHASER: c/x Xxxxx Capital, Inc.
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
with a copy to: X'Xxxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx, X. X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxxxxx, Esq.
SELLER: Xxxx Development #2, LLC
c/o Xxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Fax No.: (000) 000-0000
With a copy to: Xxxxxxxx Xxxx Killin Brittan & Ray, LLC
000 Xx. Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxxxx X. Xxxxxx, Esq.
Fax No: (000) 000-0000
Any notice or other communication mailed as hereinabove provided shall be deemed
effectively given or received on the date of delivery, if delivered by hand or
by overnight courier, or otherwise on the third (3rd) business day following the
postmark date of such notice or other communication.
24. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
25. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
27. Survival of Provisions. All covenants, warranties, and agreements set
----------------------
forth in this Agreement shall survive the execution or delivery of any and all
deeds and other documents at any time executed or delivered under, pursuant to,
or by reason of this Agreement, and shall survive the payment of all
21
monies made under, pursuant to, or by reason of this Agreement for a period of
nine months from Closing, except as otherwise expressly provided herein.
28. Severability. This Agreement is intended to be performed in accordance
------------
with, and only to the extent permitted by, all applicable laws, ordinances,
rules, and regulations. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall, for any reason and to any extent
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby but rather shall be enforced to the greatest extent permitted by law.
29. Authorization. Purchaser represents to Seller that this Agreement has
-------------
been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in accordance with its
terms, and all necessary action on the part of Purchaser to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
30. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. The headings inserted at the beginning of each paragraph are
for convenience only, and do not add to or subtract from the meaning of the
contents of each paragraph. This Agreement shall be construed and interpreted
under the laws of the State of Michigan. Except as otherwise provided herein,
all rights, powers, and privileges conferred hereunder upon the parties shall be
cumulative but not restrictive to those given by law. All personal pronouns used
in this Agreement, whether used in the masculine, feminine, or neuter gender
shall include all genders, and all references herein to the singular shall
include the plural and vice versa.
22
31. Effective Date. The "effective date" of this Agreement shall be deemed
--------------
to be the date this Agreement is fully executed by both Purchaser and Seller and
a fully executed original counterpart of this Agreement has been received by
both Purchaser and Seller.
32. Duties as Escrow Agent. In performing its duties hereunder, Escrow
----------------------
Agent shall not incur any liability to anyone for any damages, losses or
expenses, except for its gross negligence or willful misconduct, and it shall
accordingly not incur any such liability with respect to any action taken or
omitted in good faith upon advice of its counsel or in reliance upon any
instrument, including any written notice or instruction provided for in this
Agreement, not only as to its due execution and the validity and effectiveness
of its provision, but also as to the truth and accuracy of any information
contained therein that Escrow Agent shall in good faith believe to be genuine,
to have been signed or presented by a proper person and to conform to the
provisions of this Agreement. Seller and Purchaser hereby agree to indemnify and
hold harmless Escrow Agent against any and all losses, claims, damages,
liabilities and expenses, including reasonable costs of investigation and legal
fees and disbursements, that may be imposed upon Escrow Agent or incurred by
Escrow Agent in connection with its acceptance or performance of its duties
hereunder as escrow agent, including without limitation, any litigation arising
out of this Agreement. If any dispute shall arise between Seller and Purchaser
sufficient in the discretion of Escrow Agent to justify its doing so, Escrow
Agent shall be entitled to tender into the registry or custody of the clerk of
the Court for the county in which the Property is located or the clerk for the
United States District Court having jurisdiction over the county in which the
Property is located, any or all money (less any sums required to pay Escrow
Agent's attorneys' fees in filing such action), property or documents in its
hands relating to this Agreement, together with such pleadings as it shall deem
appropriate, and thereupon be discharged from all further duties under this
Agreement. Seller and Purchaser shall bear all costs and expenses of any such
legal proceedings.
Remainder of this page is intentionally left blank.
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
TROY DEVELOPMENT #2, LLC,
a Colorado limited liability company
By: Xxxx Equities, LLC, a Colorado
Limited liability company
By: /s/ [ILLEGIBLE]
------------------------------
Its: Authorized Signatory
"PURCHASER":
XXXXX OPERATING PARTNERSHIP, L.P.
a Delaware limited partnership
By: Xxxxx Real Estate Investment Trust, Inc.
a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------
Its: Executive Vice President
-----------------------------
"ESCROW AGENT":
METROPOLITAN TITLE COMPANY
By: ___________________________________
Its: ___________________________________
24
Schedule of Exhibits
--------------------
Exhibit "A" - Description of Land
Exhibit "B" - Contracts
Exhibit "C" - Copy of Lease
Exhibit "D" - List of Plans and Specifications
Exhibit "E" - Form of Tenant Estoppel Certificate
Exhibit "F" - Schedule of Insurance Policies
Exhibit "G" - Deed Form
Exhibit "H" - Xxxx of Sale Form
Exhibit "I" - Blanket Transfer and Assignment Form
Exhibit "J" - Assignment and Assumption of Lease Form
Exhibit "K" - Form of Architect's Certificate
EXHIBIT A
LEGAL DESCRIPTION
Commitment No.: CM-348326
Land in the City of Xxxx, Oakland County, Michigan, described as follows:
Xxxxx 0 xxx 0, XXXXXXXXXX XXXXXXX CONDOMINIUM, according to the Master Deed
recorded in Liber 17223, pages 2 through 24, inclusive, Oakland County Records,
and designated as Oakland County Condominium Subdivision Plan No. 1042,
together with rights in general common elements and limited common elements, as
set forth in the above Master Deed and as described in Act 59 of the Public Acts
of 1978, as amended.
EASEMENT PARCEL:
Easement for access, ingress and egress and utilities as created, limited and
defined in the Declaration of Easements recorded August 4, 1987, in Liber 10041,
page 264, and as amended by the First Amendment to Declaration of Easements
recorded June 15, 1992, in Liber 12684, page 552, Oakland County Records.
Tax Item No.(s): 00-00-000-000, 00-00-000-000
EXHIBIT "B"
LIST OF CONTRACTS
. Management Agreement with Signature Associates, dated 12/1/99, terminate on
30-day notice or immediately on sale.
. General Contractor for Core & Shell - XX Xxxxx Corporation, Contract dated
October 15, 1998
. General Contractor for Tenant Finish - XX Xxxxx Corporation, Contract dated
March 6, 2000
EXHIBIT "C"
LEASE AGREEMENT
EXHIBIT "D"
LIST OF PLANS & SPECIFICATIONS
NORTHFIELD CROSSING
DRAWING INDEX
ARCHITECTURAL
Drawing No Date Description
---------- ---- -----------
A1-1 4/9/99 General Project Information
A1-2 4/9/99 Door Schedule and General Information
A1-3 4/9/99 Room Finish Schedule & General Information
A2-1 6/30/99 Site Plan
A2-1-S 6/30/99 Building Sign
A2-2 4/9/99 Site Detail and Information
A2-3 4/9/99 Site Detail and Information
A2-4 4/9/99 Site Detail and Information
A3-1 4/9/99 Basement & Ground Level Plans
A3-2 4/9/99 Second & Third Level Plans
A3-3 4/9/99 Roof Level and Detail Roof Plans
A3-4 4/9/99 Detail Core Plans
A3-5 4/9/99 Detail Core Plans 2nd Level
A3-6 4/9/99 Detail Core Xxxxx 0xx Xxxxx & Xxxxxxxxx
X0-0 0/0/00 Detail Plans
A4-1 4/9/99 Basement & Ground Level Reflected Ceiling Plans
A4-2 4/9/99 Second and Third Level Reflected Ceiling Plans
A4-3 4/9/99 Detail Ceiling Plan at Ground Floor
A4-4 4/9/99 Detail Ceiling Plan at Second Level
A4-5 4/9/99 Detail Ceiling Plan at Third Floor & Parking Xxxxx
X0-0 0/0/00 Xxxxxxxx Xxxxxxxxxx
X0-0 0/0/00 Xxxxxxxx Sections
A5-3 4/9/99 Detail Ramp Sections
A5-4 4/9/99 Exterior Elevation
A5-5 4/9/99 Exterior Elevation
A5-6 4/9/99 Exterior Elevation
A5-7 4/9/99 Exterior Elevation
A6-1 4/9/99 Exterior Wall Sections
A6-2 4/9/99 Detail Sections
A6-3 4/9/99 Detail Sections
A6-4 4/9/99 Detail Sections
A6-5 4/9/99 Detail Sections
A6-6 4/9/99 Detail Sections
A6-7 4/9/99 Roof Details and Information
A7-1 4/9/99 Stair Sections
A7-2 4/9/99 Stair Details
A7-3 4/9/99 Elevator Hoistway Section Details
A7-4 4/9/99 Elevator Cab and Hoistway Details
A7-5 4/9/99 Interior Details
A7-6 4/9/99 Interior Details
A8-1 4/9/99 Interior Elevations
A8-2 4/9/99 Interior Elevations
A8-3 4/9/99 Floor Finish Patterns
A8-4 4/9/99 Interior Details
A8-5 4/9/99 Interior Details
A8-6 4/9/99 Interior Signage Information
A8-7 4/9/99 Interior Signage Information
NORTHFIELD CROSSING
DRAWING INDEX - PAGE 2
STRUCTURAL
Drawing No Date Description
---------- ---- -----------
S-1 4/9/99 Foundation Plan and Schedules
S-2 4/9/99 First and Second Floor Framing Plans
S-3 4/9/99 Roof and Third Floor Framing Plans
S-4 4/9/99 Column Schedule, General Notes & Foundation Details
S-5 4/9/99 Foundation and First Floor Details
S-6 4/9/99 Framing Details
MECHANICAL
Drawing No Date Description
---------- ---- -----------
FP-1 1/29/99 Basement and Ground Level Plans - Fire Protection
FP-2 1/29/99 Second and Third Level Plans - Fire Protection
M-0 2/26/99 Foundation Plan - Plumbing
M-1 3/3/99 Basement and Ground Level Plans - Plumbing
M-2 1/29/99 Second and Third Level Plans - Plumbing
M-3 4/9/99 Basement and Ground Level Plans - HVAC
M-4 2/26/99 Second and Third Level Plans - HVAC
M-5 2/26/99 Roof Plan - Mechanical
M-6 2/26/99 Enlarged Toilet Plans - Plumbing
M-7 2/26/99 Mechanical Details
M-8 3/30/99 Mechanical Schedules
M-9 3/30/99 Mechanical Schedules
M-10 1/29/99 Sanitary and Vent Risers Diagram
M-11 1/29/99 Hot and Cold Water Risers Diagram
ELECTRICAL
Drawing No Date Description
---------- ---- -----------
SE-1 6/30/99 Electrical Site Plan
E-1 4/9/99 Electrical Riser Diagram and Schedules
E3-1 4/9/99 Basement and Ground Level Electrical Plans
E3-2 4/9/99 Second and Third Level Electrical Plans
E3-3 4/9/99 Roof Electrical Plan
CIVIL
Drawing No Date Description
---------- ---- -----------
C-1 8/31/98 Boundary/Topographic Survey/Demolition Plan
C-2 1/29/99 Paving/Grading Plan
C-3 6/30/99 Utility Plan
C-4 1/29/99 Profile Plan
C-5 1/29/99 Soil Erosion/Drainage Area Plan
C-6 1/29/99 Project Notes/Details
CT 1/3/96 Water Main Details (City of Xxxx)
CT 4/19/93 Storm Details (City of Xxxx)
CT 10/95 Sanitary Details (City of Xxxx)
CT 10/95 Sanitary Sewer Details for Truss Pipe (City of Xxxx)
CONVEYING SYSTEM
Drawing No Date Description
---------- ---- -----------
VT-1 12/22/99 General Elevator Information (Owner Furnished Documents)
VT-2 12/22/99 Hoistway, Pit Machine Room Plans & Hoistway Section
Elev. 1 and 2 (Owner Furnished Documents)
NORTHFIELD CROSSING
DRAWING INDEX - PAGE 3
LANDSCAPING
Drawing No Date Description
---------- ---- -----------
L-1 4/9/99 Planting Plan
L-2 2/22/99 Site Details
IRRIGATION
Drawing No Date Description
---------- ---- -----------
I-1 2/22/99 Irrigation Plan
I-2 2/22/99 Irrigation Details
EXHIBIT "E"
TENANT ESTOPPEL CERTIFICATE
Xxxxx Operating Partnership, L.P.
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Re: Lease Agreement (the "Lease") by and between TROY DEVELOPMENT #2, LLC
("Landlord") and DELPHI AUTOMOTIVE SYSTEMS LLC dated March 22,2000
Ladies and Gentlemen:
The undersigned Tenant understands that Landlord intends to convey certain
real property in Troy, Michigan, known as "Northfield Crossing" and generally
located at the intersection of Long Lake Road and Corporate Drive (the
"Property"), to Xxxxx Operating Partnership, L.P., or assigns ("Purchaser").
Tenant will lease the entire premises within the Property.
In connection with such conveyance, Tenant hereby acknowledges and agrees
that:
1. The documents attached hereto as Exhibit A constitute complete and
accurate copies of all addenda, amendments, modifications, agreements, or other
changes to the Lease, and there are no other amendments or agreements to which
Tenant is a party which are binding upon Landlord and relate to the Property
other than as expressly set forth therein or herein.
2. The term of the Lease commenced on May 1, 2000, and will terminate on
April 30, 2007, subject to Tenant's renewal rights set forth in the Option
Agreement attached as Exhibit J to the Lease.
3. The Lease is in full force and effect and Tenant has not given
Landlord any notice of termination or default thereunder.
4. Except for "punch list" items set forth on Exhibit B hereto ("Punch
list Items"), to the best of Tenant's knowledge, no uncured breaches or defaults
exist under the Lease, no facts or circumstances exist which will constitute a
breach or default under the Lease and no offsets, defenses or claims are
presently available to Landlord or Tenant under the Lease.
5. Tenant is in full and complete possession of the premises leased by
Tenant under in the Lease and except for the Punch list Items has accepted the
premises, including the work of Landlord performed therein pursuant to any terms
and provisions of the Lease, and all other improved areas located on the
Property (including, without limitation, parking spaces, access ways, and
landscaping) as being complete, in compliance with the Lease, and satisfactory
for Tenant's purposes.
6. The premises contain 107,152 rentable square feet.
7. Beginning May 1, 2000, Tenant will begin paying monthly base rental
under the Lease in the amount of $154,089.94, and increasing thereafter as
provided in the Lease.
8. Tenant has not prepaid any rent or other charge under the Lease to
Landlord other than rent for __________, 2000.
10. No security deposit has been paid to or is presently held by the
Landlord under the Lease, and Tenant has not rendered to Landlord any other
security or similar deposit with respect to its tenancy under the Lease.
11. Tenant covenants and agrees that it has not dealt with any agents or
brokers in such a way as to cause any brokerage commissions to be due and
payable with respect to the Lease.
12. Tenant has not assigned all or any part of its interest in and to the
Lease as security or otherwise and has not subleased all or any part of the
premises leased by Tenant under the Lease.
13. Upon receipt of written notice from the Landlord that it has
transferred the Property to Purchaser, Tenant shall attorn to and recognize
Purchaser as Landlord under the Lease and the Lease shall remain in full force
and effect. Any notices to Landlord under the Lease shall following conveyance
of the Property to Purchaser be given c/x Xxxxx Capital, Inc., 0000 Xxx Xxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000, Attention: Property Management.
14. There has not been filed by or against Tenant a petition in
bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors,
any petition seeking reorganization or arrangement under the bankruptcy laws of
the United State, or any state thereof, or any other action brought under said
bankruptcy laws with respect to Tenant.
15. The insurance coverage which Tenant is required to obtain under the
Lease is in full force and effect and upon receipt of written notice from the
Landlord that it has transferred the Property to Purchaser, Tenant agrees to
cause Purchaser to be named as an additional insured. Tenant has not given or
received written notice that Tenant's insurance coverage will be canceled or
will not be renewed.
16. To Tenant's knowledge, there are no structural or other defects, in
the improvements located on the Property, and the heating, ventilating, air
conditioning, electrical, plumbing, water, elevator(s), roofing, storm drainage
and sanitary sewer systems at or servicing the Land and Improvements are in good
condition and working order.
17. Upon Completion of Construction, there will be in effect permanent
certificates of occupancy, licenses, and permits as may be required for the
Property, and the use and occupancy of the
Property will be in compliance and conformity with the certificates of occupancy
and all licenses and permits, and there will be no notice or request of any
municipal department, insurance company or board of fire underwriters (or
organization exercising functions similar thereto), or mortgagee requesting the
performance of any work or alteration to the Property which has not been
complied with.
18. The undersigned is duly authorized to execute and deliver this
certificate for and on behalf of Tenant.
Tenant hereby acknowledges and agrees that Purchaser, and any lender making
a loan secured by the Property, shall be entitled to rely on the truth and
accuracy of the foregoing certifications made by Tenant. Tenant further agrees
for a period of thirty (30) days from the date hereof to notify Purchaser in
writing at the address set forth above of any changes in the truth and accuracy
of any of the certifications contained herein promptly upon Tenant learning of
such change.
Dated this ____ day of ________________, 2000.
Very truly yours,
TENANT:
DELPHI AUTOMOTIVE SYSTEMS LLC
By:_________________________________
Title:______________________________
EXHIBIT "F"
LIST OF INSURANCE POLICIES
EXHIBIT "F"
LIST OF INSURANCE POLICIES
PAULS EQUITIES
TROY DEVELOPMENT #2, LLC
COMPANY: HARTFORD FIRE INSURANCE COMPANY
POLICY NUMBER: 34 UUC RC1436
POLICY PERIOD: 6/1/99 - 6/1/00
LOCATION: XXXX XXXX XXXX XXX XXXXXXXXXX XXXXXXX, XXXX, XX
COVERAGE:
PROPERTY (SPECIAL)
BOILER AND MACHINERY
LIABILITY
LIMITS:
$13,250,000 PROPERTY
BUSINESS INCOME (TBD)
LIABILITY:
$1,000,000 EACH OCCURRENCE
$ 300,000 FIRE DAMAGE
$ 10,000 MEDICAL EXPENSE
$1,000,000 PERSONAL AND ADVERTISING INJURY
$2,000,000 GENERAL AGGREGATE
$2,000,000 PRODUCTS AND COMPLETED OPERATIONS AGGREGATE
EXHIBIT "G"
FORM DEED
---------
LIMITED WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS: That LONG LAKE/NORTHFIELD, L.L.C., a
Michigan limited liability company, whose address is 000 Xxxxxxxxx Xxxxxxx,
Xxxxx 000, Xxxx, Xxxxxxxx 00000, conveys and warrants to TROY DEVELOPMENT #2,
L.L.C. a Colorado limited liability company, whose address is 0000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, the following described premises
situated in the City of Xxxx, County of Oakland and State of Michigan, to-wit:
Xxxxx 0 xxx 0, XXXXXXXXXX XXXXXXX CONDOMINIUM, according to the Master Deed
recorded in Liber 17223, Pages 2 through 24, inclusive, Oakland County
Records, and designated Oakland County Condominium Subdivision Plan No.
1042, together with rights in general common elements and limited common
elements, as set forth in the above described Master Deed, and as described
in Act 59 of the Public Acts of 1978, as amended.
$1.00 and other good and valuable considerations.
EASEMENT PARCEL:
Easement for access, ingress and egress and utilities as created, limited
and defined in the Declaration of Easements recorded August 4, 1987, in
Liber 10041, page 264, and as amended by the First Amendment to Declaration
of Easements recorded June 15, 1992, in Liber 12684, page 552.
Tax Item No. 00-00-000-000, as to Xxxx 0
Tax Item No. 00-00-000-000, as to Unit 4
This property may be located within the vicinity of farmland or a farm
operation. Generally accepted agricultural and management practices which may
generate noise dust, odors, and other associated conditions may be used and are
protected by the Michigan Right to Farm Act.
See Real Estate Transfer Tax Valuation Affidavit for consideration.
Subject to those Permitted Exceptions set forth in Exhibit "A" and the
covenants, terms and provisions of the aforesaid Master Deed and the Exhibits
attached thereto and to easements, restrictions and other limitations of record
and all applicable laws and governmental regulations.
Dated this 20 day of July, 1998.
Witnesses: LONG LAKE/NORTHFIELD, L.L.C.
a Michigan limited liability company
/s/ Xxxxx Xxxxxxxx By: Damone Holdings, Inc.,
--------------------------------
Xxxxx Xxxxxxxx Managing Member
/s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------- -------------------------
Xxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx
Chairman
STATE OF MICHIGAN )
)ss
COUNTY OF OAKLAND )
Xxxxxx Xxxxxxx pllc page 2 deed 7/20/98
--------------------------------------------
Long Lake/Xxxx Development
The foregoing instrument was acknowledged before me this 20 day of
--
July, 1998, by Xxxxxxx X. Xxxxxx who is the Chairman of Damone Holdings, Inc.,
the Managing Member of Long Lake/Northfield, L.L.C., on behalf of
Long Lake/Northfield, L.L.C.
/s/ Xxxxxxxxx X. Xxxxx
--------------------------
Notary Public, __________ County, Michigan
My commission expires: XXXXXXXXX X. XXXXX
----------------------------
Notary Public
County, ??
My Commission Expires Nov.
3, 1999
AFTER RECORDING RETURN TO:
J. Xxxxx Xxx, Esq.
Xxxxxxxx, Xxxx & Xxxxxxx
000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Drafted By:
/s/ Xxxxx X. [ILLEGIBLE]
Xxxxxx Xxxxxxx
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
EXHIBIT "H"
STATE OF _______________
COUNTY OF ______________
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that TROY DEVELOPMENT #2, LLC, a Colorado
limited liability company ("Seller"), for and in consideration of the sum of Ten
and No/100 Dollars ($10.00), lawful money, and other good and valuable
consideration unto it paid by Xxxxx Operating Partnership, L.P., a Delaware
limited partnership ("Purchaser"), the receipt and sufficiency of which are
hereby acknowledged by Seller, has granted, bargained, sold, transferred, set
over and delivered, and by these presents does grant, bargain, sell, transfer,
set over and deliver unto Purchaser, its successors and assigns, all of its
right, title and interest in and to all equipment, fittings, appliances, shades,
wall-to-wall carpet, draperies, screens and screening, art, awning, plants,
shrubbery, landscaping, lawn care and building maintenance equipment, vending
machines and other furnishings or items of personal property owned by Seller and
used or to be used in connection with the ownership and operation of the
premises known as __________________, Troy, Michigan, (all of which are herein
collectively referred to as the "Personal Property").
EXCEPT AS EXPRESSLY SET FORTH IN THE CONTRACT BETWEEN BUYER AND SELLER IN
CONNECTION WITH THE SALE OF THE PROPERTY, BUYER ACKNOWLEDGES AND AGREES THAT
SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTEES, PROVISIONS, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR, CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE,
NATURE, QUALITY OR CONDITION OF THE PROPERTY, (B) THE INCOME TO BE DERIVED FROM
THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND
USES WHICH BUYER MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY
OF ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE MERCHANTABILITY,
MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, (F) THE MANNER OR QUALITY, OR THE CONSTRUCTION OF, MATERIALS, IF ANY,
INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK
OF REPAIR OF THE PROPERTY, OR (H) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, SUBJECT TO SELLER WARRANTIES AND
REPRESENTATIONS CONTAINED IN THE PURCHASE AND SALE AGREEMENT BETWEEN BUYER AND
SELLER WITH RESPECT TO THE PROPERTY, SALE OF THE PROPERTY AS PROVIDED FOR HEREIN
IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL FAULTS.
TO HAVE AND TO HOLD THE SAME unto the Buyer, its successors and assigns
forever. And Seller, for itself and its successors and assigns, does hereby
covenant and agree to and with Buyer, its successors and assigns, that Seller is
the lawful owner of said Property and has good right to sell the same as
aforesaid; that the same are free from all encumbrances, except as shown on
Exhibit B
EXHIBIT "I"
STATE OF ___________
COUNTY OF __________
BLANKET TRANSFER AND ASSIGNMENT
THIS BLANKET TRANSFER AND ASSIGNMENT, made and entered into as of the
____ day of ____________, 2000, by and between TROY DEVELOPMENT #2, LLC, a
Colorado limited liability company (hereinafter referred to as "Assignor"), and
Xxxxx Operating Partnership, L.P., a Delaware limited partnership (hereinafter
referred to as "Assignee").
W I T N E S S E T H:
For and in consideration of the sum of Ten and No/100 Dollars
($10.00), the premises, the conveyance by Assignor to Assignee of the improved
real property more particularly described on Exhibit "A" attached hereto and
incorporated herein by this reference (hereinafter referred to as the
"Property"), and the mutual covenants herein contained, the receipt, adequacy
and sufficiency of the foregoing consideration being hereby acknowledged by the
parties hereto, Assignor hereby transfers, grants conveys and assigns to
Assignee, the following, to-wit:
(a) All of the right, title, interest and benefit of Assignor in, to
and under any and all site plans, construction and development drawings, plans
and specifications, documents, surveys, engineering and soil reports and
studies, marketing studies, licenses, permits, zoning approvals, sewer and water
permits and licenses, building permits, certificates of occupancy, demolition
and excavation permits, curb cut and right-of-way permits, utility permits,
drainage rights, permits and agreements, and similar or equivalent private and
governmental documents of every kind and character whatsoever pertaining or
applicable to or in any way connected with the development, construction,
ownership or operation of the Property, including all buildings and other
improvements thereon or thereunder, and all right, title and interest of
Assignor in and to all fees and deposits heretofore paid by Assignor with
respect thereto;
(b) All of the right, title and interest of Assignor in and to the
items of intangible personal property, including trademarks or trade names and
other items that are owned by Assignor and, as of the date hereof, are used in
connection with the Property, except for the names "The Pauls Corporation" or
"Troy Development #2" or any derivative thereof; and
(c) All of the right, title interest and benefit of Assignor in, to,
and under any and all contracts, guaranties, warranties, affidavits, lien
waivers and agreements given heretofore and with respect to the construction or
composition of all improvements located in, on, upon or under and comprising a
part of the Property or with respect to any of the tangible and intangible
property relating thereto.
It is specifically agreed that Assignor shall not be responsible for the
discharge and performance of any and all duties and obligations to be performed
and/or discharged by the owner of the Property or the Assignor for the period
from and after the date hereof. By accepting this Blanket Transfer and
Assignment and by its execution hereof, Assignee hereby assumes and agrees to
perform all of the terms, covenants and conditions of the contracts on the part
of the property owner therein required to be performed, for the period from and
after the date hereof, but not prior thereto.
All of the covenants, terms and conditions set forth herein shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, successors and assigns.
This Blanket Transfer and Assignment shall be governed by, and
construed under, the laws of the State of Michigan. This Blanket Transfer and
Assignment shall inure to the benefit of, and be binding upon, the respective
legal representatives, successors, and assigns of the parties hereto.
IN WITNESS WHEREOF, Assignor has caused this instrument to be properly
executed and his seal affixed hereto the day, month and year first above
written.
TROY DEVELOPMENT #2, LLC
a Colorado limited liability company
By:__________________________________
Its: Authorized Manager
EXHIBIT "J"
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT, made and entered into this ____ day of____________
,2000, by and between TROY DEVELOPMENT #2, LLC, a Colorao limited liability
company ("Assignor"), and Xxxxx Operating Partnership, L.P., a Delaware limited
partnership ("Assignee").
W I T N E S S E T H:
For and in consideration of the sum of Ten and No/100 Dollars
($10.00), the premises, the conveyance by Assignor to Assignee of all the
improved real property more particularly described on Exhibit "A", attached
hereto and incorporated herein by this reference (hereinafter referred to as the
"Property"), and the mutual covenants herein contained, the receipt and
sufficiency of the foregoing consideration being hereby acknowledged by the
parties hereto, Assignor hereby transfers, grants, conveys and assigns to
Assignee all of Assignor's right, title and interest in and to the Lease
Agreement (the "Lease") between Assignor and DELPHI AUTOMOTIVE SYSTEMS LLC,
dated March 22, 2000.
Assignor does hereby warrant and represent that Assignor owns the
rights, title and interest of the landlord under the Lease.
Assignee, by its acceptance hereof, does hereby assume and agree to
perform any and all obligations and duties of Assignor as landlord under the
Lease first arising after the date hereof, except for "Punch List" items which
remain the responsibility of Assignor pursuant to a separate agreement between
the parties. Assignor hereby indemnifies and agrees to hold Assignee harmless
from and against any claims, defaults or other liabilities (including, without
limitation, court costs and attorneys' fees) under the Lease first arising or
accruing on or before, or any events first occurring at any time on or before,
the date hereof, including "Punch List" items. Assignee indemnifies and agrees
to hold Assignor harmless from and against any claims, defaults or other
liabilities (including, without limitation, court costs and attorneys' fees)
under the Lease first arising or accruing after, or any events first occurring
after, the date hereof, except for "Punch List" items.
This Assignment shall inure to the benefit of, and be binding upon,
the respective legal representatives, successors, assigns of the parties hereto.
This Assignment shall be governed by, and construed under the laws of
the State of Michigan.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed and their seals to be affixed hereto the day, month and year
first above written.
"Assignor":
XXXX DEVELOPMENT #2 LLC, a Colorado
limited liability company
By: __________________________
Name: __________________________
Its: Authorized Manager
"Assignee":
____________________________________,
a __________________________________
By: __________________________________
Its: __________________________________
EXHIBIT "K"
ARCHITECT'S CERTIFICATION
THIS ARCHITECT'S CERTIFICATION is made this ____ day of June, 2000, by
_________________________________________________, (hereinafter referred to as
"Architect") to and for the benefit of Xxxxx Operating Partnership, L.P.
("Purchaser"), any lender ("Lender") making a loan secured by the Property (as
hereinafter defined) and the successors and assigns of each.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Xxxx Development # 2, LLC ("Seller") has contracted with Architect
pursuant to that certain Agreement between Owner and Architect dated as of
____________________________ (the "Architect Contract") to provide certain
general architectural services in connection with the improvement of that
certain real property located at 0000 Xxxx Xxxx Xxxx Xxxx, Xxxx, Xxxxxxxx
(the "Property"); and
WHEREAS, Seller has agreed to sell the Property to Purchaser, and as a
condition to the closing of such sale, Purchaser has required that Seller obtain
this Agreement from Architect.
NOW, THEREFORE, for and in consideration of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Architect makes the following certifications and
representations to Purchaser and Lender:
1. Architect hereby certifies that the improvements constructed on the
Property have been constructed in accordance with the plans and specifications
and in compliance with all applicable laws, rules and regulations governing the
design, construction and use of a project of such type.
2. Architect hereby further certifies that the building constructed on
the Property contains ________________ rentable square feet.
IN WITNESS WHEREOF, Architect has caused this Agreement to be duly executed
as of the day, month and year first above written.
ARCHITECT:
__________________________________
By:_______________________________
Title:____________________________
