FIRST AMENDMENT TO AGREEMENT OF SALE AND ESCROW AGREEMENT
THIS FIRST AMENDMENT TO AGREEMENT OF SALE AND ESCROW AGREEMENT (this
"Amendment") is made and entered into on this 2 day of July, 1997, by and among
ARBORLAND ASSOCIATES LIMITED PARTNERSHIP, a Michigan limited partnership
("Seller"), FREMONT ARBORLAND, LLC, a Connecticut limited liability company
("Purchaser") and NEAR NORTH NATIONAL TITLE INSURANCE CORPORATION (the "Escrow
Agent");
WITNESSETH:
WHEREAS, Seller and Purchaser are parties to that certain Agreement of
Sale, dated as of June 17, 1997, (the "Agreement"), pursuant to which Purchaser
has agreed to purchase and Seller has agreed to sell certain Property (as
defined in the Agreement) legally described and depicted on Exhibit A attached
to the Agreement;
WHEREAS, Seller, Purchaser and Escrow Agent are parties to that certain
Escrow Agreement, dated as of June 26, 1997, (the "Escrow Agreement"); and
WHEREAS, Seller and Purchaser desire to amend the Agreement and the Escrow
Agreement in accordance with the terms of this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. All terms not otherwise defined herein hall have the meanings ascribed to
each in the Agreement and Escrow Agreement.
2. The Purchase Price is hereby amended to Seven Million and No/100 Dollars
($7,000,000.00).
3. Purchaser shall receive a credit at Closing in the amount of Seven Hundred
Thousand and No/100 Dollars ($700,000.00) for work relating to asbestos and
underground storage tank removal.
4. Seller has contracted with EMG to conduct a Phase II environmental site
assessment of the Property (the "New Phase II") to define and delineate the
nature, extent (vertical and horizonial) and distribution (in soil and
groundwater) of any contamination and chemical contaminants in and from the
vicinity of the former dry cleaner facility the current dry cleaner and the
former underground storage tanks and piping and at the Property and any related
condition or contamination. Seller agrees that the New Phase II will be
conducted in accordance with any applicable rules and all standards and
guidelines of the Michigan Department of Environmental Quality ("MDEO") for
investigation of such matters such that the New Phase II would meet MDEO
standards and quidelines for such definition and delineation of contamination
in connection with use of the New Phase II and the information contained
therein in a Type C Baseline Environmental Assessment ("BEA") for the benefit
of Purchaser. The New Phase II will be certified to Purchaser and its mortgage
lender. Seller agrees to provide EMG's scope of work for the New Phase II to
Purchaser for comment. If the parties do not agree upon the scope of work
prior to the end of the business day Monday, July 14, 1997, the Agreement of
Sale shall be terminated and Purchaser's deposit shall be refunded. EMG shall
notify Purchaser's consultant of test dates and permit Purchaser's consultant
to monitor the testing procedures. The New Phase II will specify an estimate
of the costs associated with curing any problems it reveals. Seller agrees
that the estimate will be based on clean-up and other remedial activities
including but not limited to removal and off-site disposal of materials and
installation of engineered fill material, necessary to achieve MDEO generic
commercial clean-up criteria as well as, if more stringent, MDEO's generic
groundwater contact criteria, utility worker groundwater direct contact
risk-based screening levels and indoor air quality criteria and restoration of
the Property. The estimate will also include the cost of a post remediaiton
closure report. This number, subject to the reasonable approval of an
environmental consultant designated by the Purchaser, multiplied by 110% shall
equal the "Environmental Escrow Sum." In the event that the Purchaser's
consultant and the Seller's consultant are unable to agree upon an appropriate
sum, then they shall each (in good faith) submit an estimate, the mathematical
average of which shall be multiplied by 110% to arrive at the Environmental
Escrow Sum. If the Environmental Escrow Sum exceeds $600,000.00 then either
Purchaser or Seller may elect to terminate this Agreement; provided, however,
that if Purchaser elects to terminate under the terms of this paragraph, then
Seller shall have the right to approve the Environmental Escrow Sum,
notwithstanding the fact that it is in excess of $600,000.00, and the parties
shall then proceed to Closing. The Environmental Escrow Sum shall be held out
of Closing and deposited into escrow subject to specific instructions to be
mutually agreed upon by Seller and Purchaser, if, and when, necessary (the
"Environmental Escrow Instructions"). The Environmental Escrow Instructions
shall include the following concepts: a) the New Phase II does not reveal
contamination at the Property above the generic residential criteria of the
MDEO and Purchaser's consultant reasonably agrees that the New Phase II was
performed in accordance with the requirements of this Amendment, then the
Environmental Escrow Sum shall be immediately released to the Seller; and b) if
the issues raised by the New Phase II can be remediated to the MDEO criteria
and screening levels identified above and the Property restored, then Purchaser
shall cause such work to be performed and paid for out of the Environmental
Escrow Sum.
5. The Closing Date for the transaction shall be twenty-one (21) days
following the determination of the Environmental Escrow Sum.
6. The terms of that certain Memorandum From Xxxxxx X. Xxxxxxx To Xxx Xxxxxxx
dated June 26, 1997 (attached hereto as Exhibit A) are hereby incorporated by
reference.
7. Except as amended hereby, the Agreement shall be and remain unchanged and
in full force and effect in accordance with its terms.
8. This Amendment may be executed in counterparts each of which shall be
deemed an original, but all of which, when taken together shall constitute one
and the same instrument. To facilitate the execution of this Amendment, Seller
and Purchaser may execute and exchange by telephone facsimile counterparts of
the signature pages, with each facsimile being deemed an "Original" for all
purposes.
[EXECUTION PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed the day and year first above written.
PURCHASER:
FREMONT ARBORLAND, LLC, a Connecticut
limited liability company
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
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Its: Member
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SELLER:
ARBORLAND ASSOCIATES LIMITED PARTNERSHIP,
a Michigan limited partnership
By: Labroc III Limited Partnership, an Illinois
limited partnership, a general partner
By: Balcor Equity Partners-III, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, a partner
By: /s/ Xxxx X. Xxxxxx, Xx.
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Name: Xxxx X. Xxxxxx, Xx.
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Its: Senior Vice President
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By: Balcor Equity Pension Investors-III A Real
Estate Limited Partnership, a general partner
By: Balcor Equity Partners-III, an Illinois
general partnership, its general partner
By: The Balcor Company, a Delaware
corporation, a partner
By: /s/ Xxxx X. Xxxxxx, Xx.
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Name: Xxxx X. Xxxxxx, Xx.
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Its: Senior Vice President
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ESCROW AGENT:
NEAR NORTH NATIONAL TITLE INSURANCE CORPORATION
By:
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Its: Authorized Agent
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EXHIBIT A
MEMORANDUM
TO: Xxx Xxxxxxx
FROM: Xxxxxx X. Xxxxxxx
RE: Arborland
DATE: June 26, 1997
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The following is a summary of the title and survey matters which remain.
I suggest that this memorandum be included by reference in the amendment to
this purchase and sale agreement. They are matters which must be satisfied as
a condition of closing. I realize some of this is redundant to the existing
purchase agreement.
1. The survey will be certified to Purchaser and its mortgage lender.
2. The survey will bear a legal description set out in text in addition
to the legal that now follows the contours of the drawing.
3. "Standard Exceptions" will be deleted and the Seller will furnish
the customary affidavit.
4. The tenant list will be updated. The Seller will furnish an
affidavit to the title company listing the tenants of record who are no longer
in the Shopping Center.
5. The Detroit Edison easement (Item 4 of Schedule B-2) Liber 450, page
134 will be located on the survey. The location will not substantially impair
the right to use the Shopping Center as it is now used.
6. The highway easement (Item 9) will be located in the survey, Liber
966, page 79. The location will not substanially impair the right to use the
Shopping Center as it is now used.
7. The Bridgestone/Firestone right of first refusal will be waived at
least as to the present transaction.
8. Items 18. 19 and 20 (notice of commenoement and mechanics liens) will
be deleted.
9. Water bills will be paid or prorated based on statements to be
obtained prior to closing.
10. At the west of the Property are a water main, a storm sewer and a
sanitary sewer which enter not from a public road right of way but across other
private property. Purchaser will obtain evidence that these are there pursuant
to valid easements for the benefit of the Property or held by municipal
authorities.
11. A bus stop shelter is shown on the survey. Purchaser will receive a
certificaiton from Seller that the shelter is or is not there pursuant to an
unrecorded agreement. If there is an agreement, it will be furnished to
Purchaser and it will be terminable at will or upon short notice.
