PURCHASE/SALE AGREEMENT
THIS AGREEMENT (the "Agreement") is made this 14th day of
February, 1995, by and between Riverside Associates, a Michign
co-partnership, whose address is 00 Xxxxxx Xxxxx, Xx. Xxxxxxx,
Xxxxxxxx 00000 (the "Purchaser"), and Action Real Estate
Development, Inc., a Delaware corporation whose address is 000
Xxxxx Xxxx, Xxxxxxxx Xxxxxxxxxxxx 00000-0000 (the "Seller").
R E C I T A L S
A. Seller is the owner of certain vacant land located in the
City of Mt. Xxxxxxx, Macomb County, Michigan and more particularly
described on Exhibit A attached hereto (the "Property").
B. Seller desires to sell and Purchaser desires to purchase
the Property on the terms and subject to the conditions contained
in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the covenants, terms and
conditions contained in this Agreement, Seller and Purchaser agree
as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. When used herein, the following terms shall
have the respective meanings set forth opposite each such term:
Closing Date: June 1, 1995, or such earlier date as Purchaser
may designate by at least ten (10) days prior written notice to
Seller.
Deposit: The sum of $25,000.00 which shall be placed in
escrow as provided in Section 11.1 and held as xxxxxxx money
subject to the terms of this Agreement.
Effective Date: The date of the last party's execution of this
Agreement; provided, however, that if the last party does not
execute this Agreement and deliver a fully executed counterpart of
the same to the first signing party within five (5) days after the
first party's execution date, then the offer or commitment to be
bound hereby by the first executing party shall automatically be
revoked and withdrawn, whereupon neither party shall be bound
hereto.
Escrowee: Chicago Title and Trust Company, through its agent,
Xxxxxx Xxxxx Title Company.
Title Commitment: A commitment for an owner's title insurance
policy for the Property issued by the Title Insurer in the full
amount of the Purchase Price, covering title to the Property on or
after the date hereof, showing Seller as owner of the Property in
fee simple, subject to those exceptions which have been approved by
Purchaser or waived pursuant to Sections 4.1 or 5.1 (the "Permitted
Title Exceptions"), and other exceptions pertaining to liens or
encumbrances of a definite or ascertainable amount which may be
removed by the payment of money at closing and which Seller agrees
to so remove at closing (the "Removable Liens").
Title Insurer: Chicago Title Insurance Company, through its
agent, Xxxxxx Xxxxx Title Company.
ARTICLE 2
PURCHASE AND SALE
2.1 Purchase and Sale. On the terms and subject to the
conditions contained in this Agreement, Seller agrees to sell the
Property to Purchaser and Purchaser agrees to purchase the Property
from Seller for and in consideration of the Purchase Price.
ARTICLE 3
PURCHASE PRICE
3.1 Purchase Price. The Purchase Price shall be One Million
Fifty Thousand Dollars ($1,050,000.00) plus or minus prorations,
payable as follows:
(a) The Deposit shall be deposited with the Escrowee
and, on the Closing Date, shall applied against the Purchase
Price.
(b) On the Closing Date, Purchaser shall pay the balance
of the Purchase Price to Seller, plus or minus prorations, as
hereinafter provided.
ARTICLE 4
SURVEY
4.1 Survey. Seller shall provide to Purchaser a copy of
every survey now in its possession, within five (5) days after the
Effective Date. Purchaser, at its sole cost and expense, shall
have the right, but not the obligation, to obtain a survey (the
"Survey") sufficient to remove the survey exceptions of the Title
Commitment. In the event Purchaser elects not to obtain a Survey,
then the survey exceptions shall be deemed "Permitted Title
Exceptions" hereunder. In the event Purchaser obtains the Survey
and the Survey shows any encroachments, violation of building
lines, restrictions or easements or violations or other matters
indicating exceptions to title or possible rights to third parties,
then Purchaser shall notify Seller in writing on or before the
expiration of the Investigation Period (as defined in Article 10)
stating with specificity the nature of the claimed defect. Seller
shall have thirty (30) days from the date of the receipt of the
notice to have the claimed defect removed from the Survey, and to
deliver a revised Survey to Purchaser. If Seller fails to have the
claimed defect removed from the Survey within the thirty (30) day
period, Purchaser may elect, by the delivery of written notice
thereof to Seller within the following five (5) days, to (i)
terminate this Agreement, in which event the Deposit shall
forthwith be returned to Purchaser, as its sole and exclusive
remedy, and except for Purchaser's obligations under Sections 7.1
and 10.2, this Agreement shall terminate or (ii) accept the
Property subject to the claimed defect. If Purchaser fails to make
such election, Purchaser shall be deemed to have elected to accept
the Property in accordance with (ii) above.
ARTICLE 5
TITLE COMMITMENT
5.1 Title Commitment. No later than thirty (30) days
following the Effective Date, Purchaser shall obtain the Title
Commitment and forward a copy of same to Seller, at Seller's sole
cost and expense. If the Title Commitment discloses exceptions to
title other than the Permitted Title Exceptions or the Removable
Liens, then Purchaser shall notify Seller in writing within ten
(10) days after the delivery of the Title Commitment identifying
with specificity the unpermitted exception. Seller shall have
thirty (30) days from the date of the delivery of the notice to
have the unpermitted exceptions removed from the Title Commitment
and to deliver a revised Title Commitment to Purchaser. If Seller
fails to provide Purchaser with the revised Title Commitment within
the thirty (30) day period, Purchaser may elect, by the delivery of
written notice thereof to Seller within the following five (5)
days, to (i) terminate this Agreement, in which event the Deposit
shall be forthwith returned to Purchaser, as its sole and exclusive
remedy, and except for Purchaser's obligations under Sections 7.1
and 10.2, this Agreement shall terminate or (ii) accept title
subject to the unpermitted exceptions which have not been removed
from the Title Commitment. If Purchaser fails to make such
election, Purchaser shall be deemed to have elected to accept title
in accordance with (ii) above. On the Closing Date, Seller shall,
at Seller's sole cost and expense, cause the Title Insurer to issue
an owner's title insurance policy or prepaid commitment therefor
(herein a "Title Policy") pursuant to and in accordance with the
Title Commitment, insuring fee simple title to the Property in
Purchaser, subject to the Permitted Title Exceptions.
ARTICLE 6
POSSESSION, PRORATIONS AND EXPENSES
6.1 Possession. Possession of the Property, subject to the
Permitted Title Exceptions, shall be delivered to Purchaser on the
Closing Date.
6.2 Prorations. All delinquent real estate taxes and
installments of special assessments, if any, including any interest
or penalty which is a lien or charge against the Property on the
Closing Date, shall be charged to Seller and paid in full at
Closing, unless Purchaser has agreed to take subject thereto, in
which case the Purchase Price shall be reduced by a credit for such
amount. Current real estate taxes and current installments of
special assessments, if any, shall be prorated as of the Closing
Date on the due date basis, it being agreed that such taxes and
assessments are paid in advance.
6.3 Expenses. Seller shall be responsible for the payment of
all transfer taxes, title insurance premiums and charges for the
issuance of the Title Policy. Purchaser shall be responsible for
payment of all recording fees (other than those incurred by Seller
in removing or releasing any unpermitted title exceptions) and all
costs of the Survey. Except as otherwise provided herein, the fees
and expenses of Seller's designated representatives, accountants
and attorneys shall be borne by Seller, and the fees and expenses
of Purchaser's designated representatives, accountants and
attorneys shall be borne by Purchaser.
ARTICLE 7
AFFIRMATIVE COVENANTS OF SELLER
7.1 Purchaser's Access to the Property. Seller shall permit
representatives, agents, employees, contractors, appraisers,
architects and engineers designated by Purchaser access to, and
entry upon, the Property to examine, inspect, measure and test the
Property for the purpose set forth in Section 10.1 hereof and for
all other reasonable purposes. Purchaser shall indemnify, defend
and hold Seller harmless from any loss, cost, damage, liability or
expense (including actual attorneys fees and litigation expenses)
caused by the activities of Purchaser or Purchaser's agents or
employees under this Section 7.1. Seller shall promptly notify
Purchaser in writing of any occurrence, after discovery by Seller,
which Seller believes would give rise to a claim under this
indemnity. If Purchaser fails to close this transaction, Purchaser
shall repair, in a commercially reasonable manner, any damage to
the Property caused by the activities of Purchaser, Purchaser's
agents or employees under this Section 7.1, and shall restore the
Property to its pre-existing condition.
ARTICLE 8
REPRESENTATIONS AND WARRANTIES OF SELLER
8.1 Representations and Warranties of Seller. Seller
represents and warrants to Purchaser on and as of the Effective
Date that:
(a) Authorization. Seller has full capacity, right,
power and authority to execute, deliver and perform this
Agreement and all documents to be executed by Seller pursuant
hereto, and all required action and approvals therefor have
been duly taken and obtained. The individuals signing this
Agreement and all other documents executed or to be executed
pursuant hereto on behalf of Seller are and shall be duly
authorized to sign the same on Seller's behalf and to bind
Seller thereto. This Agreement and all documents to be
executed pursuant hereto by Seller are and shall be binding
upon and enforceable against Seller in accordance with their
respective terms.
(b) Violations. Buyer and Seller acknowledge that the
Property may be contaminated with certain "hazardous wastes or
materials" regulated under certain federal and/or state
environmental or other laws. As soon as practicable after the
Effective Date (but in no event later than five (5) days after
the Effective Date), Seller shall deliver copies of the
environmental site reports listed on Exhibit B attached hereto
(the "Environmental Reports"). Seller represents and warrants
that the Environmental Reports are the only written reports of
the environmental condition of the Property it obtained in
connection with its ownership of the Property. If the
contents of the Environmental Reports are objectionable to
Purchaser, Purchaser shall have the right to terminate this
Agreement by the deliver of written notice thereof to Seller
on or before April 15, 1995, and each party, except for
Purchaser's obligations under Sections 7.1 and 10.2, shall be
released therefrom, in which event the Deposit shall be
forthwith returned to Purchaser, as its sole and exclusive
remedy.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES OF PURCHASER
9.1 Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller of the Effective Date that
Purchaser has full capacity, right, power, and authority to
execute, deliver and perform this Agreement and all documents to be
executed by Purchaser pursuant hereto, and all required actions and
approvals therefor have been duly taken and obtained. The
individuals signing this Agreement and all other documents executed
or to be executed pursuant hereto on behalf of Purchaser are and
shall be duly authorized to sign the same on Purchaser's behalf and
to bind Purchaser thereto. This Agreement and all documents to be
executed pursuant hereto by Purchaser are and shall be binding upon
and enforceable against Purchaser in accordance with their
respective terms.
ARTICLE 10
CONDITIONS PRECEDENT AND TERMINATION; OTHER COVENANTS OF
PURCHASER
10.1 Conditions Precedent. Purchaser contemplates acquiring
the Property for the construction and operation of a commercial
development (the "Intended Use"). Purchaser's obligations under
this Agreement are subject to Purchaser's satisfaction (or waiver)
that all of the following conditions (the "Conditions") have been
fulfilled on or before April 15, 1995 (the "Investigation Period"):
(a) Purchaser may accept or waive the Survey and Title
Commitment requirements at the times and in the manner set
forth in Sections 4.1 and 5.1;
(b) Purchaser may obtain soil tests, soil borings and
percolation tests showing that the physical aspects and the
condition of the Property are suitable for the Intended Use
and determined that water (fire and domestic), electricity,
telephone, gas and sanitary and storm sewer services presently
exist at the perimeter of the Property, and that all such
utilities have sufficient capacity to service the Intended
Use;
(c) Purchaser may obtain any additional environmental
tests or studies confirming the absence, presence or extent of
any hazardous waste or materials at, in under, on or near the
Property and that the costs of remediation shall not be
excessive, as determined in Purchaser's sole and absolute
discretion;
(d) Purchaser may confirm that the Property is not a
designated wetland that would prevent Purchaser from the
Intended Use nor are there conditions and obligations required
by the Michigan Department of Natural Resources (the "DNR") or
United States Environmental Protection Agency (the "EPA")
which Purchaser reasonably believes would impair its value or
use;
(e) Purchaser may confirm that the Intended Use will not
violate any zoning classification, land use classification, or
any other building classification or requirement and that the
adjoining roads and streets (existing) can be abandoned, to
create a contiguous parcel for development; and
(f) Purchaser may obtain financing for the acquisition
of the Property.
10.2 Non-Disclosure, Purchaser's Investigation and Inspection.
Although Purchaser may disclose the contents of the Environmental
Reports to its environmental consultant, attorneys and financial
consultants, prior to the Closing Date it may not and shall not
disclose the Environmental Reports to DNR, EPA or any other person
or entity without first obtaining the prior written consent of
Seller. In lieu of granting such consent, Seller may, in its sole
and absolute discretion, terminate this Agreement, in which event
the Deposit shall be forthwith returned to Purchaser, as its sole
and exclusive remedy. Nothing set forth in this Section 10.2 shall
prohibit Purchaser from reporting any fact or condition which
Purchaser has been advised in writing it has a legal obligation to
report provided Purchaser first notifies Seller of such fact or
condition and of Purchaser's intention to report the fact or
condition at least twenty-four (24) hours prior to Purchaser's
report. If Purchaser terminates this Agreement pursuant to this
Article 10 or otherwise, Purchaser shall deliver to Seller all
copies of the Environmental Reports it or its environmental
consultant may have together with copies of all reports,
certificates and other documentation obtained by Purchaser with
respect to the Property during Purchaser's due diligence review of
the Property.
10.3 Diligence and Environmental Remediation . Purchaser
agrees to diligently pursue satisfying the Conditions it is
required to fulfill. On the Closing Date Purchaser shall enter
into an environmental remediation agreement with the Seller and its
affiliates, a draft of which shall be provided to Purchaser prior
to the expiration of the Investigation Period (the "Remediation
Agreement"), whereby Purchaser will agree to undertake and perform
an environmental remediation of the Property in full accordance
with all federal and state laws, including the submission of the
remediation plan to the DNR, and clean-up consistent with an
approved plan. The Remediation Agreement will further provide that
Purchaser will protect Seller and its affiliates from any liability
in connection with the environmental condition of the Property.
The protection may be in the form of a hold harmless and
indemnification agreement, appropriate bonding or insurance
coverage (the terms of which shall be acceptable to Purchaser), but
must be satisfactory protection in Seller's sole and absolute
discretion.
10.4 Satisfaction of Conditions. If all the Conditions have
been satisfied or waived on or before the expiration of the
Investigation Period, then Deposit shall become non-refundable,
except as set forth in Section 11.1, and shall be delivered to
Seller at closing. If any of the Conditions are not satisfied on
or before the expiration of the Investigation Period, then
Purchaser may, at its option, elect to terminate this Agreement by
notice given to Seller not later the expiration of the
Investigation Period, in which event the Deposit shall be
immediately returned to Purchaser, and thereupon neither party
shall have any further rights or obligations hereunder, except for
Purchaser's obligations under Sections 7.1 and 10.2. If Purchaser
does not elect to terminate this Agreement as herein provided, then
the Conditions shall be deemed satisfied or waived and the Deposit
shall become non-refundable, except as set forth in 11.1.
ARTICLE 11
ESCROW AND DEPOSITS
11.1 Escrow and Deposits.
(a) Deposit. Purchaser shall make the Deposit in Escrow
with Escrowee within two (2) days after the Effective Date,
which sums shall be refundable or non-refundable in accordance
with Section 10.4. The Deposit shall be applicable to the
Purchase Price at Closing.
(b) Disbursements. The Deposit shall be retained by
Escrowee for the benefit of Seller in accordance with the
provisions of this Agreement. Seller shall have the right to
direct Escrowee to invest the Deposit in interest-bearing
securities, bank deposits and/or so-called "money market
funds" established and managed by nationally recognized firms;
provided, however, that the primary objective of such
investment shall be to preserve the principal and insure that
the same shall be timely available for disbursement as herein
provided. Seller and Purchaser further agree to execute any
and all directions in a timely fashion that are necessary to
cause Escrowee to disburse the Deposit and any and all
interest earned on the Deposit as required by any provision of
this Agreement and in the following circumstances:
(i) if Purchaser defaults in its obligations
hereunder, the Deposit and the interest thereon, if any,
shall be disbursed to and retained by Seller; and
(ii) if Seller defaults in its obligations
hereunder, the Deposit and the interest thereon, if any,
shall be disbursed to and paid to Purchaser.
ARTICLE 12
BROKERAGE
12.1 Brokerage. Seller hereby represents and warrants to
Purchaser that Seller has not dealt with any broker or finder with
respect to the transaction contemplated hereby other than Anton,
Xxxx & Associates (the "Broker"), whose commission shall be paid by
Seller pursuant to the terms of a separate agreement. Seller
hereby agrees to indemnify, defend and hold Purchaser harmless from
and against any claim for brokerage commission or finder's fee
asserted by any other person, firm or corporation claiming to have
been engaged by Seller. Purchaser hereby represents and warrants
to Seller that Purchaser has not dealt with any broker or finder
with respect to the transaction contemplated hereby other than the
Broker, and Purchaser hereby agrees to indemnify, defend and hold
Seller harmless from and against any other claim for brokerage
commission or finder's fee asserted by any person, firm or
corporation, claiming to have been engaged by Purchaser. Purchaser
hereby discloses and Seller acknowledges that Xxxxxx X. Xxxxx, one
of the principal owners of the Broker, is a general partner in a
limited partnership which owns a twenty-five percent (25%) interest
in Purchaser.
ARTICLE 13
CONDEMNATION
13.1 Condemnation. If any material portion of the Property is
condemned or access thereto is taken prior to the Closing Date,
then either Seller or Purchaser may terminate this Agreement by
notifying the other in writing of such termination within thirty
(30) days after learning of such condemnation action, in which
event the Deposit shall be returned to Purchaser. If the Agreement
is not terminated pursuant to the preceding sentence, the Purchase
Price of the Property shall not be affected, it being agreed that
if the award is paid prior to the Closing Date of this transaction,
such amount shall be held in escrow and delivered to Purchaser at
the time of closing; and if the award has not been paid prior to
the Closing Date, then at the closing Seller shall assign to
Purchaser all of Seller's right, title and interest with respect to
such award and shall further execute any other instrument requested
by Purchaser to assure that such award is paid to Purchaser. If
Purchaser does not terminate this Agreement, it shall have the
right to contest the condemnation of the Property and/or the award
resulting therefrom.
ARTICLE 14
CLOSING
14.1 Closing. The transaction contemplated hereby shall close
at 10:00 A.M. on the Closing Date at the offices of the Escrowee at
000 Xxxx, Xx. Xxxxxxx, Xxxxxxxx 00000 or on such other date, time
and place as the parties may mutually agree.
14.2 Seller's Deliveries. On the Closing Date, Seller shall
deliver to the Purchaser and in exchange for the payment to Seller
of the Purchaser Price (plus or minus prorations) the following
closing documents:
(a) A covenant deed from Seller conveying to Purchaser
fee simple title to the Property, subject only to the
Permitted Title Exceptions;
(b) The Remediation Agreement;
(c) The Title Commitment recertified and updated to the
Closing Date, and the Seller shall cause the Title Policy to
be issued pursuant to the Title Commitment, at Seller's sole
cost and expense;
(d) A Closing Statement showing the computation of funds
payable to Seller; and
(e) Such other documents, instruments, certifications
and confirmations as may be reasonably required and designated
by Purchaser, Seller or the Title Insurer to fully effect and
consummate the transactions contemplated hereby and/or to
issue the Title Policy which, in the other parties' counsel's
opinion, does not increase such party's liability or decrease
such party's rights.
14.3 Purchaser's Deliveries. On the Closing Date, Purchaser
shall deliver to the Seller in exchange for Seller's deliveries as
aforesaid the following:
(a) A Closing Statement showing the computation of funds
payable to Seller;
(b) The Remediation Agreement;
(c) The balance of the Purchase Price as provided in
Section 3.1 by Purchaser's certified check or wire transfer of
available funds; and
(d) Such other documents, instruments, certifications
and confirmations as may be reasonably required and designated
by Purchaser, Seller or the Title Insurer to fully effect and
consummate the transactions contemplated hereby and/or to
issue the Title Policy which, in the other parties' counsel's
opinion, does not increase such party's liability or decrease
such party's rights.
ARTICLE 15
DEFAULT
15.1 Default by Purchaser. In the event of a default by
Purchaser of any of Purchaser's obligations under this Agreement,
Seller shall have only the right to demand and obtain the Deposit
from Escrowee, and, in the event of a default under Sections 7.1 or
10.2, the right to seek specific performance and xxx for money
damages for a default under Section 7.1 or 10.2.
15.2 Default by Seller. In the event of a default by Seller
of any of Seller's obligations under this Agreement, Purchaser
shall have the right as it sole and exclusive remedy to either: (i)
to terminate this Agreement, in which event neither party shall
have any further rights or obligations hereunder and the Deposit
shall be paid to Purchaser; or (ii) seek specific performance of
Seller's obligations hereunder.
ARTICLE 16
NOTICES
16.1 Notices. Any notice, request, demand, instruction or
other document to be given or served hereunder or under any
document or instrument executed pursuant to hereto shall be in
writing and shall be delivered personally with a receipt requested
therefor or sent by a recognized overnight courier service or by
United States registered or certified mail, return receipt
requested, postage prepaid, or by telecopy and, in each case,
addressed to the parties at their respective addresses set forth
below, and the same shall be effective (a) upon telecopy
transmission if sent via telecopy , or receipt or refusal if
delivered personally; (b) one (1) business day after depositing
with such an overnight courier service; or (c) two (2) business
days after deposit in the mail if mailed. A party may change its
address for receipt of notices by service of a notice of such
change in accordance herewith.
If to Purchaser: Riverside Associates
00 Xxxxxx Xxxxx
Xx. Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy Number: (000) 000-0000
With a required copy to:
Xxxxxxxx, Staugaard & Xxxxxxx, P.C.
00 Xxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
Telecopy Number: (000) 000-0000
If to Seller: Action Real Estate Development, Inc
000 Xxxxx Xxxx
Xxxxxxxx Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
Telecopy Number: (000) 000-0000
With a required copy to:
Jaffe, Raitt, Heuer & Xxxxx,
Professional Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telecopy Number: (000) 000-0000
ARTICLE 17
MISCELLANEOUS
17.1 Entire Agreement, Amendments and Waivers. This Agreement
contains the entire agreement and understanding of the parties with
respect to the subject matter hereof, and all previous negotiations
and understandings between Seller and Purchaser or their respective
agents and employees with respect to the transaction set forth
herein are merged in this Agreement. Further, this Agreement may
not be amended, modified or discharged nor may any of its terms be
waived except by an instrument in writing signed by the party to be
bound thereby.
17.2 Further Assurances. The parties each agree to do,
execute, acknowledge and deliver all such further acts, instruments
and assurances and to take all such further actions before or after
the closing as shall be necessary or desirable to fully carry out
this Agreement and to fully consummate and effect the transactions
contemplated hereby.
17.3 Survival and Benefit. All representations, warranties,
agreements, indemnifications and obligations of the party shall,
notwithstanding any investigation made by any party hereto, survive
the closing and the same shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties.
The obligations of the parties to return or deliver or cause to be
returned or delivered the Deposit, shall survive any termination of
this Agreement.
17.4 No Third Party Benefits; Assignment. This Agreement is
for the sole and exclusive benefit of the parties hereto and their
permitted successors and assigns, and no third party is intended to
or shall have any rights hereunder. Seller shall have the right to
assign its interest under this Agreement without the consent of
Purchaser provided the Assignee is also the fee owner of the
Property. Otherwise, neither Seller nor Purchaser shall have the
right to assign its interest under this Agreement without first
obtaining the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed.
17.5 Interpretation.
(a) The headings and captions herein are inserted for
convenience reference only and the same shall not limit or
construe the paragraphs or sections to which they apply or
otherwise affect the interpretation hereof.
(b) The terms "hereby", "hereof", "herein", "hereunder"
and any similar terms shall refer to this Agreement, and the
term "hereafter" shall mean after, and the term "heretofore"
shall mean before, the Effective date.
(c) Words of the masculine, feminine or neuter gender
shall mean and include the correlative words of the other
genders, and words importing the singular number shall mean
and include the plural number and vice versa.
(d) Words importing persons shall include firms,
associations, partnerships (including limited partnerships),
trusts, corporations and other legal entities, including
public bodies, as well as natural persons.
(e) The terms "include", "including" and similar terms
shall be construed as if followed by the phrase "without being
limited to".
(f) This Agreement and any document or instrument
executed pursuant hereto may be executed in any number of
counterparts each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
(g) Whenever under the terms of this Agreement the time
for performance of a covenant or condition falls on a
Saturday, Sunday or legal holiday, such time for performance
shall be extended to the next business day; otherwise all
references herein to "days" shall mean calendar days.
(h) This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan.
(i) Time is of the essence of this Agreement.
(j) For the purposes of this Agreement, the phrases, "to
the best of Seller's knowledge", "to Seller's knowledge" and
similar phrases shall mean all facts actually known by Seller,
without any duty to investigate.
(k) This Agreement shall not be construed more strictly
against one party than against the other merely by virtue of
the fact that it may have been prepared primarily by counsel
for one of the parties, it being recognized that both
Purchaser and Seller have contributed substantially and
materially to the preparation of this Agreement.
17.6 Foreign Seller Affidavit. Pursuant to Section 1445 of
the Internal Revenue Code of 1986, as amended, and the regulations
promulgated thereunder (the "Code"), Seller agrees to deliver to
Purchaser, at or prior to the Closing Date, a certification as
required by the Code.
17.7 Disclosure to Internal Revenue Service. Each of Seller
and Purchaser agree to cooperate fully with the other in completing
of filing any disclosure documents or in otherwise satisfying any
disclosure requirements of the Code.
17.8 Discrepancy in Legal Description. The parties intend
that the Property which is the subject matter hereof include all of
the real property and all interest held by Seller therein.
Accordingly, if prior to the delivery of the deed, it appears that
the legal description of the Property set forth on Exhibit A does
not include or correctly describe all such real property or
interests therein or appurtenances thereto owned by Seller, the
legal description of the Property to be conveyed by Seller to
Purchaser hereunder shall be modified, at Seller's sole cost and
expense, to correctly describe the same.
17.9 Confidentiality. Purchaser shall not disclose the
existence of this Agreement or any of the terms and provisions
hereof without the prior written approval of the Seller and
Purchaser shall use all reasonable efforts to keep the details of
the transaction contemplated hereby strictly confidential.
17.10 Authority. The undersigned person signing on behalf
of Purchaser represents and warrants to Seller that he has the
authority to act for and on behalf of Purchaser and bind Purchaser.
IN WITNESS WHEREOF, Purchaser and Seller have caused this
Agreement to be executed by their duly authorized representatives,
intending to be legally bound by the provisions herein contained.
PURCHASER:
Riverside Associates, a
Michigan co-partnership
Dated: February 9, 1995 By: XXXXXXXXX XXXXXXX
Xxxxxxxxx Xxxxxxx, Partner
SELLER:
Action Real Estate Development,
Inc.
Dated: February 14, 1995 By: XXXXXXX X. XXXXXXXX
Its: Treasurer
RECEIPT OF DEPOSIT
The undersigned does hereby acknowledge receipt of the sum of
$25,000.00) Dollars, to be deposited in an interest bearing account
and to be held pursuant to the terms and conditions in this
Purchase Agreement.
CHICAGO TITLE AND TRUST COMPANY
By: Xxxxxx Xxxxx Title Company,
Agent
Dated: February 15, 1995 By: XXXXXX MAEDIL
EXHIBIT A
Legal Description
Land in the City of Mt. Xxxxxxx, Macomb County, Michigan described
as:
PARCEL 1-A: Lots 145 through 150, both inclusive, the Wood
Subdivision, according to the plat thereof as recorded in liber 2,
page 100 of Plats, Macomb County Records.
PARCEL 1-B: Lots 151 through 156, both inclusive, the Wood
Subdivision, according to the plat thereof as recorded in liber 2,
page 100 of Plats, Macomb County Records.
PARCEL 1-C: Lots 157 through 162, both inclusive, the Wood
Subdivision, according to the plat thereof as recorded in liber 2,
page 100 of Plats, Macomb County Records.
PARCEL 2: Xxx 0, Xxxxxxxxx Xxxx no. 17A, according to the plat
thereof as recorded in liber 16, page 20 of Plats, Macomb County
Records.
PARCEL 3: Xxx 0, Xxxxxxxxx Xxxx xx. 00X, (xxxxx re-plat of
Assessors Plat no. 17), according to the plat thereof as recorded
in liber 16, page 20 of Plats, Macomb County Records, excepting the
south 250.0 feet of said Lot 7, said exception being more
particularly described as: Beginning at a point on the west side of
Floral Avenue south 12 degrees 19 minutes west 266.2 feet from the
southwest corner of Church and Floral Avenues: thence south 12
degrees 19 minutes west 250 feet along Floral Avenue: thence north
75 degrees 58 minutes west 727.16 feet; thence north 37 degrees 05
minutes east 271.06 feet; thence south 75 degrees 58 minutes west
613.8 feet to the point of beginning.
PARCEL 4: Xxx 0, Xxxxxxxxx Xxxx no. 21, according to the plat
thereof as recorded in liber 13, page 38 of Plats, Macomb County
Records.
EXHIBIT B
ENVIRONMENTAL REPORTS
Date Name of Firm Title or Nature of Report
12-12-88 Earth Science Letter report of environmental site
Consultants, Inc. investigation
06-14-90 WMMC, Incorporated Letter report of site investigation
and remediation activities
10-23-90 Testing Engineers Phase I and II Environmental
& Consultants, Inc. Site Assessments
11-15-90 Testing Engineers Phase III Environmental Site
& Consultants, Inc. Assessment
03-08-91 ASTI Subsurface
03-12-91 ASTI Remedial Action Plan Outline
(Revised)*
04-05-91 Michigan Depart- Letter citing interior violations
ment of Natural
Resources
00-00-00 Xxxxx Xxxxxx Letter response to MDNR
Rooney & Xxxxxxxxx
06-19-91 WMMC, Incorporated Analytical results from samples
collected at site
00-00-00 Xxxxx Xxxxxx Xxxxxx to MDNR
Rooney & Xxxxxxxxx
07-23-91 NTH Consultants, Contamination Assessment and Pro-
LTD. posed Remedial Option (missing
exhibits were not provided to
seller)*
00-00-00 Xxxxx Xxxxxx Xxxxxx to MDNR
Rooney & Xxxxxxxxx
08-02-91 WMMC, Incorporated Water analysis
10-23-91 The Dragun Corpor- Letter review of NTH report
ation
01-08-92 NTH Consultants, Additional Investigation Outline
LTD.
02-06-92 The Dragun Corpor- Letter of review of NTH work plan
ation
03-09-92 NTH Consultants, Letter of response to Dragun letter
LTD.
03-16-92 NTH Consultants, Letter review of quality control
LTD. data
02-02-94 Wm. Xxxxxx Demoli- Letter of comment on environmental
tion & Salvage Co. Reports*
* Reports previously delivered to and received by Purchaser.
April 7, 1995
Action Real Estate Development, Inc.
000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx
RE: Purchase Agreement dated February 14, 1995 between
Riverside Associates, a Michigan co-partnership (the
"Purchaser"), and Action Real Estate Development, Inc.,
a Delaware corporation (the "Seller"), covering premises
in the City of Mt. Xxxxxxx, Macomb County, State of
Michigan
Dear Xx. Xxxxxxx:
This letter, when signed by you, will confirm our agreement to
extend the Inspection Period (as defined in Section 10.1 of the
Purchase Agreement) to May 15, 1995. Except as amended hereby, the
Purchase Agreement shall remain in full force and effect.
If the foregoing correctly sets forth our agreement regarding
this matter, please signify below in the space provided therefore.
Sincerely,
Riverside Associates,
a Michigan co-partnership
XXXXXX X. XXXXX
Xxxxxx X. Xxxxx, Partner
The foregoing is accepted and agreed to:
Action Real Estate Development, Inc.
By: XXXXX X. XXXXXXX
Xxxxx X. Xxxxxxx, Secretary
Dated: April 10, 1995
