EXHIBIT 10(n)
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
▇. ▇. ▇▇▇▇▇▇▇▇, INC.,
AS PURCHASER
AND
▇▇▇▇▇ MIDWEST, L.L.C.,
AS SELLER
TABLE OF CONTENTS
Page No.
1. Purchase Price........................................................... 2
2. Transfer of Premises; Loan Assumption.................................... 2
3. Title Insurance.......................................................... 3
4. Default.................................................................. 4
5. Closing Date............................................................. 4
6. Representations and Warranties........................................... 4
7. Buyer's Conditions to Closing............................................ 8
8. Delivery of Documents.................................................... 9
9. Closing Procedure and Closing Costs...................................... 12
10. Condemnation and Casualty................................................ 13
11. As is" Sale.............................................................. 13
12. Notices.................................................................. 14
13. Adjustments and Prorations............................................... 15
14. Leasing Costs, Management Fees and Employees............................. 17
15. Brokers.................................................................. 17
16. Time of the Essence...................................................... 18
17. Successors and Assigns................................................... 18
18. Legal Costs.............................................................. 18
19. Construction............................................................. 18
20. Facsimile................................................................ 18
21. Entire Agreement......................................................... 18
22. Choice of Laws........................................................... 18
23. Counterparts............................................................. 19
24. Partial Enforceability................................................... 19
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of this 10th
day of December, 2003, by and between ▇▇▇▇▇ MIDWEST, L.L.C., a Michigan limited
liability company ("Seller") and ▇. ▇. ▇▇▇▇▇▇▇▇, INC., a Texas corporation,
and/or its assigns ("Buyer").
RECITALS
WHEREAS, the Seller owns the fee simple interest in (a) thirteen
properties consisting of developed commercial real estate located in the
following municipalities:
i. Benton Harbor, Michigan;
ii. Champaign, Illinois;
iii. Chanute, Kansas;
iv. Crawfordsville, Indiana;
v. Decatur, Illinois;
vi. Decatur, Indiana;
vii. El Dorado, Kansas;
viii. Huntington, Indiana;
ix. Jacksonville, Illinois;
x. Little Falls, Minnesota;
xi. Ontario, Ohio;
xii. Owosso, Michigan; and
xiii. Sturgis, Michigan;
all of which are more particularly described on Exhibit A attached hereto and
incorporated herein (collectively "Land"): (b) buildings and improvements
situated in, on and/or below the Land (collectively, "Buildings"); (c) all
rights, title and interest of Seller, if any, in and to the land lying in the
bed of any street or highway in front of or adjoining the land to the center
line thereof; (d) the appurtenances and all the estate and rights of Seller in
and to the Land and Buildings both tangible and intangible; and (e) all Seller's
right, title and interest in and to the fixtures, equipment and improvements
attached or appurtenant to the Land and Buildings, including, but not limited to
all heating, lighting, air conditioning, ventilating, plumbing, electrical or
other mechanical equipment and personal property (collectively, "Personal
Property"); (f) all Seller's right title and interest in and to all leases,
tenancies and rental or occupancy agreements, and reciprocal easement agreements
granting possessory rights in, or on or covering the Land or Buildings, together
with all modifications, extensions, amendments and guarantees thereof to the
extent set forth in Exhibit B attached hereto, together with all other leases as
may be made prior to Closing (defined below) and permitted herein (collectively,
"Leases"), and (g) all assignable Contracts (as hereinafter defined) which Buyer
elects to assume as provided in Section 13(I) hereof, and all assignable service
agreements, operating agreements and warranties respecting the Land, Building
and/or Personal Property ("Warranties"). The items referred to in subparagraphs
(a)-(f) are collectively referred to as the "Premises"; and
WHEREAS, the Seller desires to sell and the Buyer desires to purchase
the Premises on the terms and conditions set forth herein.
NOW THEREFORE, the parties hereto in consideration of the mutual
covenants and agreements set forth herein and for other good and valuable
consideration, the receipt of which is hereby acknowledged, agree as follows:
1. PURCHASE PRICE.
Seller shall sell to Buyer, and Buyer shall purchase from
Seller, the Premises at the price (the "Purchase Price") equal to (a)
Twenty-Nine Million Dollars ($29,000,000.00), less (b) the amount of any loan
assumption fee charged by Lender (hereinafter defined) (which amount shall not
exceed one percent (1%) of the outstanding principal balance of the Loans
(hereinafter defined)) (the "Loan Assumption Fee") in aggregate. The Purchase
Price shall be paid in full at the time of Closing. Buyer will deposit with
Commonwealth Land Title Insurance Company, National Commercial Services Office,
Troy, Michigan, as escrowee ("Escrowee"), the sum of One Hundred Thousand
Dollars ($100,000.00) ("▇▇▇▇▇▇▇ Money") within three (3) business days after
Buyer's receipt of a fully executed original of this Agreement by both parties,
which amount will be refundable as provided herein, including pursuant to
Section 7(c) herein. Within three (3) business days after completion of the Due
Diligence Period (defined below), Buyer shall deposit an additional Fifty
Thousand Dollars ($50,000.00) in escrow, as additional ▇▇▇▇▇▇▇ Money hereunder,
or Seller shall have the option to terminate this Agreement. Thereafter, the
total One Hundred Fifty Thousand Dollars ($150,000.00) ▇▇▇▇▇▇▇ Money will become
non-refundable, except as set forth herein to the contrary, and said sum is for
the benefit of Buyer to be applied to the Purchase Price or credited to Buyer
when this transaction is consummated. The ▇▇▇▇▇▇▇ Money shall be deposited in a
government insured interest bearing account with all interest accruing to the
Buyer, so long as the Buyer does not default hereunder, using joint order escrow
instructions attached hereto as Exhibit H.
2. TRANSFER OF PREMISES; LOAN ASSUMPTION.
A. Seller agrees to convey to Buyer fee simple interest in the
Land and Buildings by recordable Special Warranty Deeds (the "Deeds")
substantially in the form attached hereto as Exhibit I. Personal Property shall
be transferred by Bills of Sale with special warranty, but without warranty of
quality, fitness or merchantability (the "Bills of Sale") substantially in the
form attached hereto as Exhibit J. Seller's interest as Landlord under the
Leases, Contracts (hereafter defined) and Warranties will be conveyed by
Assignments and Assumption Agreements ("Assignments") substantially in the form
attached hereto as Exhibit K. The Deeds will be subject only to: (i) general
taxes for the year 2003 or the year of closing and subsequent years which are
not yet due and payable; (ii) acts done or suffered by Buyer and (iii) the
Permitted Exceptions (hereinafter defined). The Deeds, Assignments and Bills of
Sale are collectively referred to herein as the "Conveyance Documents."
B. Seller and Buyer acknowledge and agree that the Premises are
all encumbered by mortgages to ▇▇▇▇▇ Fargo Bank, as the successor to Broomfield
Acceptance Company, L.L.C. ("Lender") which secure two promissory notes
delivered from Seller to Lender (the "Loans"). Seller represents that the
current principal amount outstanding to Lender is approximately Nineteen Million
Nine Hundred Twenty One Thousand One Hundred Forty Two and 91/100
($19,921,142.91), which amount is the total of Seventeen Million Sixteen
Thousand One Hundred Sixty Eight and 99/100 Dollars ($17,016,168.99) owed
pursuant to the original note and
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Two Million Nine Hundred Four Thousand Nine Hundred Seventy Three and 92/100
Dollars ($2,904,973.92) owed pursuant to a second note (collectively, the
"Outstanding Indebtedness"). As a condition precedent to Closing, Seller, Buyer
and Lender shall have entered into an assignment and assumption agreement in
form and content reasonably acceptable to Seller, Buyer and the parties to the
financing, pursuant to which Buyer shall assume the Outstanding Indebtedness and
all obligations of Seller under the Broomfield Portfolio Loan financing
documents described in Exhibit K attached hereto (the "Loan Assumption"). Seller
agrees to authorize Lender to allow Buyer full access to all loan information,
and Seller hereby authorizes Buyer to meet with the Lender to negotiate the Loan
Assumption, provided that the terms of said Loan Assumption are consistent
herewith. Buyer and Seller shall negotiate reasonably and in good faith with
respect to any documents related to the Loan Assumption, which shall contain a
full release of Seller of all obligations related to the Outstanding
Indebtedness, including without limitation a release of ▇▇▇▇▇ Realty Investors,
Inc. from any guaranty of the Outstanding Indebtedness. Buyer agrees that it
will pay all fees and expenses charged by Lender in conjunction with the Loan
Assumption (including without limitation Lender's legal fees and expenses). In
the event that Lender does not approve the Loan Assumption by Buyer on terms
which are reasonably acceptable to Buyer, either Buyer or Seller may terminate
this Agreement, and Buyer shall be entitled to the return of all ▇▇▇▇▇▇▇ Money.
3. TITLE INSURANCE.
Within thirty (30) days, or as soon thereafter as is
reasonably possible after the execution of this Agreement, Seller, at Seller's
sole expense, shall deliver or cause to be delivered to Buyer or Buyer's Agent,
existing surveys of all properties comprising the Premises together with current
title insurance commitments in favor of Buyer (ALTA Form B or comparable form
acceptable to Buyer) ("Title Commitments(s)") and copies of all exception
documents described therein, issued by Commonwealth Land Title Insurance Company
(the "Title Company"), covering the date hereof, showing good and marketable
title to the Land and Buildings vested in Seller subject only to the matters
described in the Title Commitments. Seller shall within twenty (20) days or as
soon thereafter as reasonably possible deliver to Buyer its most current
ALTA/ACSM surveys of the Premises. Buyer shall be responsible for any further
updates to the surveys and certifications of the surveys to Buyer and Lender, at
Buyer's sole cost and expense. Within twenty-five (25) days after the later of
(a) receipt of the Title Commitments and the existing surveys from Seller or (b)
the date of this Agreement, Buyer shall notify Seller of any defects in title or
other objections to matters disclosed in the Title Commitment or Survey,
provided however, in the event any new survey reveals matters not previously
disclosed in the existing surveys, then Buyer shall have ten (10) days after
receipt of the new survey to notify Seller of said objections or defects. Upon
receipt of Buyer's notice of defects or objections in title and/or survey Seller
shall have until closing within which to cure such defects and to furnish an
updated Title Commitment or pro forma title policy showing such defects cured or
removed (with any matters insured over being disclosed to Buyer). If such
defects in title-cannot be cured on or before Closing, after using due diligence
and good faith, reasonable efforts by Seller, Buyer, at Buyer's election, may
(i) terminate this Agreement, or (ii) take the title as it then exists (with the
right to deduct from the Purchase Price liens or encumbrances of a definite or
ascertainable amount other than liens related to the Outstanding Indebtedness).
Any Title objections or exceptions that are raised by Buyer that are monetary in
nature and are susceptible to being cured by the payment of monies or by bonding
over shall be cured by Seller at or prior
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to Closing, other than the Outstanding Indebtedness. To the extent that the
Company agrees to issue a title policy to Buyer without reference to such
exception, such item shall be deemed cured for purposes hereof. If this
Agreement shall be terminated during the Due Diligence Period (hereinafter
defined), the ▇▇▇▇▇▇▇ Money shall be returned to Buyer. Any title or survey
matter to which Buyer does not timely object, or if Buyer waives its objections
to such matters, shall be deemed a "Permitted Exception" and Buyer shall take
title subject to all Permitted Exceptions. Immediately prior to closing, the
Title Company shall issue to Buyer an updated title commitment or a pro-forma
title policy which shall reflect all Permitted Exceptions.
Seller, at its sole cost and expense, shall cause to be delivered to
Buyer or Buyer's Agent, final owner's title insurance policies acceptable to
Buyer with normal and customary endorsements for each property conveyed, issued
by the Title Company, in the amount of the Purchase Price (as allocated by
property as acceptable to Buyer) dated as of recording of the deeds. Such
policies of title insurance shall indicate that clear and merchantable title,
as defined in Sections 2 and 3 above, has been transferred to Buyer.
Notwithstanding the foregoing, all costs related to extended coverage or any
endorsements to such policies shall be borne by Buyer.
4. DEFAULT.
If Seller defaults hereunder and fails to cure said default
within thirty (30) days after receipt of written notice hereof from Buyer (or
within two (2) business days after receipt of written notice, if such default
relates to the obligation to close on the Closing Date), Buyer may, at Buyer's
option, either (a) terminate this Agreement, and receive a return of the ▇▇▇▇▇▇▇
Money and any interest accruing thereon or (b) ▇▇▇ Seller for specific
performance and enforce the terms of this Contract, which Buyer agrees shall be
its sole and exclusive remedies in the event of Seller's default hereunder. If
Buyer defaults hereunder and fails to cure said default within thirty (30) days
after receipt of written notice thereof from Seller (or within two (2) business
days after receipt of written notice, if such default relates to the obligation
to close on the Closing Date), then the ▇▇▇▇▇▇▇ Money shall be forfeited as
liquidated damages as Seller's sole legal and equitable remedy, it being agreed
by the parties hereto that damages would be difficult if not impossible to
ascertain. In the event either party hires an attorney in connection with
enforcing its rights and remedies or in defending a claim by the other party in
a legal proceeding or otherwise, the non-prevailing party shall pay the
reasonable attorney's fees and expenses incurred by the prevailing party.
5. CLOSING DATE.
The date of Closing, unless otherwise agreed by the parties,
shall occur on or before February 16, 2004 ("Closing Date"), at such location
and time as is mutually agreed upon by Seller and Buyer; provided, however, that
either Purchaser or Seller may, by written notice to the other, extend the
Closing Date for up to sixty (60) days if reasonably necessary to facilitate the
Loan Assumption.
6. REPRESENTATIONS AND WARRANTIES.
A. Seller covenants, warrants and represents to Buyer that:
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(i) Seller has the power and authority to own
each of the properties comprising the
Premises and conduct its business in the
place where said properties are now owned or
such business is conducted, and has the
necessary power and authority to enter into
this Agreement and to consummate the
transaction contemplated hereby.
(ii) This Agreement has been duly executed on
behalf of Seller by individuals with
authority and capacity to do so and
constitutes the valid, legally binding
obligation of Seller.
(iii) The execution and delivery of this Agreement
and the consummation of the transactions
contemplated by this Agreement will not
conflict with, or result in breach of, or
constitute a default under any contract,
instrument or obligation to which Seller is
a party or is bound, or to which the
Premises being sold hereunder is subject,
nor, to Seller's Actual Knowledge, will this
Agreement violate any order, writ,
injunction or decree of any court,
administrative agency or governmental body.
(iv) To Seller's Actual Knowledge, neither Seller
nor its agents have received any written or
oral notification of any violations of any
statute, by-law, ordinance, rule or
regulation of any governmental authority
having jurisdiction arising from the current
ownership, occupancy or use of the Premises.
(v) Seller has no Actual Knowledge of any
proposal pending before any governmental
agency to change the current zoning of the
Premises.
(vi) To Seller's Actual Knowledge, and with the
exception of items set forth in the Title
Commitments, there are no encumbrances,
liens, claims, causes of action, lawsuits or
legal proceedings pending or threatened
regarding the ownership, use or possession
of the Premises, including any proposed
reassessments pending with respect to taxes
or proposed special assessments.
(vii) To Seller's Actual Knowledge, there are no
contracts or agreements affecting the
operation of the Land or the Buildings
(including management, maintenance, service,
supply, consulting, advertising, promotion,
public relations and construction contracts,
guarantees and warranties) which will
survive Closing and be binding upon Buyer
except as disclosed in Exhibit C attached
hereto and accepted by Buyer pursuant to
Section 13(I) hereof (the "Contracts") and
to Seller's Actual Knowledge, no party is in
default under any such Contracts.
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(viii) To Seller's Actual Knowledge, except as
shown on the rent roll attached hereto as
Exhibit D or the Title Commitments, there
are no persons in possession or occupancy of
the Land or Buildings, or any part thereof,
nor are there any persons who have
possessory rights with respect to the Land
or Buildings or any part thereof.
(ix) To Seller's Actual Knowledge, except as
disclosed in the Environmental Site
Assessments described in Exhibit E attached
hereto and made part hereof, during the
period of time that Seller has owned the
Premises, (1) Seller has not conducted or
authorized the generation, transportation,
storage, treatment or disposal at or from
the Premises of any Hazardous Substances (as
defined in Section 11) in violation of any
applicable Environmental Laws (also as
defined in Section 11), and (2) Seller has
not received any written notice of, any
generation, transportation, storage,
treatment or disposal at or from the
Premises of any Hazardous Substance in
violation of any applicable Environmental
Laws. Seller agrees to disclose to Buyer any
new environmental information affecting the
properties discovered between the effective
date of this Agreement and the date of
Closing.
(x) After execution of this Agreement, Seller
shall not agree to, negotiate, consent to or
enter into any new leases, lease amendments
or modifications or renewals of existing
leases encumbering the Premises (or
terminate any leases without notifying
Buyer) without the consent of the Buyer,
which consent will not be unreasonably
delayed, conditioned or withheld. Prior to
taking such action, Seller shall deliver to
Buyer for its review, a copy of the proposed
lease, modification, amendment, renewal, or
termination together with detailed economic
information regarding any broker's
commissions, tenant allowances, build out
costs and tenant financial information.
Buyer shall have five (5) business days to
notify Seller of its objections to the
proposed lease terms, with silence being
deemed acceptance. Prior to the expiration
of the Due Diligence Period, Buyer's
approval of any new lease, modifications,
renewals, etc. may be given or withheld at
Buyer's reasonable discretion. After the end
of the Due Diligence Period, Buyer's
approval to any new lease, modifications,
renewals, etc. may be given or withheld at
Buyer's sole discretion. The costs for any
new leases, modifications or renewals of
existing leases entered into during the term
of this Agreement, including without
limitation, broker's commissions, tenant
allowances and build out costs will be
amortized over the term of the applicable
lease and prorated between the parties at
Closing.
(xi) There is no current default, or condition,
the notice of which and passage of time
would constitute a default under the Loans.
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(xii) Seller has not received from any third party
a written notice of any structural defect,
building code or other violations relating
to all or any portion of the Premises,
including condemnation proceedings for any
portion of the Premises, and Seller is not a
party to any action which pertains to
alleged structural defects or building code
or other violations relating to all or any
portion of the Premises.
(xiii) Except as disclosed to Buyer, Seller has
received no notices from tenants alleging a
default by Seller, as landlord, or by any
tenant under the Leases. Except as disclosed
to Buyer, Seller has not notified any tenant
of any alleged default under the Leases.
(xiv) After the execution of this Agreement,
Seller agrees not to negotiate, consent to
or enter into any modification of the Loans
without Buyer's written consent, and Seller
agrees to make all payments and provide all
performance required to keep the Loans in
good standing and free of default.
(xv) After the execution of this Agreement,
Seller agrees to pay all bills and expenses
of the Premises as and when the same shall
be due and payable and to perform under all
Contracts and Leases in accordance with the
terms thereof, free from default.
(xvi) For the purpose of this Agreement, "Actual
Knowledge" shall mean the actual knowledge
of, without investigation or imputation, of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇, whom Seller represents are
the persons most likely to have such
knowledge.
(xvii) All the representations and warranties of
Seller contained in this paragraph 6 shall
not merge into the Deeds and shall survive
Closing for a period of nine (9) months.
B. Buyer covenants, warrants and represents to Seller that:
(i) Buyer has all necessary authority to enter
into this Agreement and to consummate the
transaction contemplated hereby.
(ii) This Agreement has been duly executed on
behalf of Buyer by individuals with
authority and capacity to do so and
constitutes the valid, legally binding
obligation of Buyer.
(iii) To Buyer's Actual Knowledge, the execution
and delivery of this Agreement and the
consummation of the transactions
contemplated by this Agreement will not
conflict, or result in breach of, or
constitute a default under any contract,
instrument, or obligation to which Buyer is
a party or is bound, nor will this Agreement
violate
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any order, writ, injunction, or decree of
any court, administrative agency or
governmental body.
7. BUYER'S CONDITIONS TO CLOSING.
A. Buyer shall have from the date of this Agreement through and
including January 31, 2004, (the "Due Diligence Period") to perform its due
diligence inspections and to conduct such investigations and tests as it may
determine advisable, including, but not limited to:
(i) reviewing existing soil tests, engineering
studies, environmental studies, surveys,
permits, title policies, rent rolls,
operating statements and performing at its
expense market studies, investment
evaluations, new soil tests, engineering, or
environmental studies that it deems
necessary;
(ii) reviewing all lease documents of current
tenants, ground leases and reciprocal
easement agreements;
(iii) performing at its expense structural
inspections and mechanical inspections of
all appropriate devices, including RTU's and
roof inspections;
(iv) reviewing governmental requirements relating
to special assessments, entitlements,
zoning, stormwater management issues, and
parking requirements, current and proposed;
(v) communicating with tenants and public
officials regarding the Premises; and
(vi) communicating with Lender (hereinafter
defined) regarding the Loan (hereafter
defined) and Buyer's assumption thereof.
B. In the conduct of its due diligence, Buyer agrees as follows:
(i) Such tests, inspections and investigations
on the Premises shall take place during
normal business hours upon reasonable notice
to Seller or its designated agents and
Seller's consent (which will not be
unreasonably withheld, delayed or
conditioned) shall be required prior to the
performance of any drilling, boring or other
invasive testing or procedures;
(ii) Except as may be required by Buyer to
complete its due diligence during the Due
Diligence Period, all information set forth
in the documents to be reviewed hereunder by
Buyer, its employees and agents, attorneys,
brokers and lenders shall be held in strict
confidence until Closing and thereafter in
the event that Closing does not occur;
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(iii) In the event the Closing does not occur,
Buyer shall promptly return to Seller any
documents obtained from Seller or Seller's
agents, and any documents obtained from
third parties which relate in any way to the
Premises;
(iv) Buyer shall not suffer or permit any lien,
claim or charge of any kind whatsoever to
attach to the Premises or any part thereof;
(v) Such tests, investigations and studies shall
be at Buyer's sole cost and expense and
shall not unreasonably interfere with the
operation of the Premises. In the event of
any damage to the Premises caused by Buyer,
its agents, engineers, employees,
contractors or surveyors (including, without
limitation, pavement, landscaping and
surface damage), Buyer shall pay the cost
incurred by Seller to restore the Premises
to the condition existing prior to the
performance of such tests, investigations or
studies; and
(vi) Buyer shall defend, indemnify and hold
Seller harmless from any and all liability,
cost and expense (including without
limitation, reasonable attorneys' fees,
court costs and costs of appeal) suffered or
incurred by Seller for injury to persons or
property caused by Buyer's investigations,
tests, studies and inspections of the
Premises, unless caused by the negligence or
intentional misconduct of Seller or any
Tenants.
C. In the sole discretion and at the sole election of Buyer,
Buyer may, during the Due Diligence Period, terminate this Agreement. If Buyer
notifies Seller, in writing, on or before 5:00 p.m. (Detroit time) on or before
last day of the Due Diligence Period of Buyer's election to terminate this
Agreement, this Agreement shall terminate, the ▇▇▇▇▇▇▇ Money and all interest
earned thereon shall be delivered to Buyer within two (2) business days, Buyer
shall promptly deliver to Seller all copies of documents, studies and reports
obtained by Buyer in connection with its Due Diligence, and the parties hereto
shall have no further obligations hereunder (except for obligations which are
expressly intended to survive termination of this Agreement). If Buyer fails to
notify Seller, in writing, on or before 5:00 p.m. (Detroit time) on the
aforesaid date of Buyer's election to terminate this Agreement, Buyer's right to
terminate this Agreement under this Section shall expire, Buyer shall be
obligated to post the additional $50,000 in ▇▇▇▇▇▇▇ Money (described in Section
1 hereof), and Buyer's ▇▇▇▇▇▇▇ Money shall become non-refundable, except as
specifically and otherwise set forth herein.
8. DELIVERY OF DOCUMENTS.
A. To the extent not already delivered to Buyer, together with
its execution of this Agreement, Seller shall deliver to Buyer the documents
listed below (except to the extent such documents are only available on
microfiche, in which case Seller shall make such documents available to Buyer
for review), to the extent that they are in the possession or control of Seller,
its agents, consultants or management companies:
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(i) The most recent real estate and personal
property tax bills, relating to the
Premises.
(ii) All surveys, certificates of occupancy,
certificates or other evidence of compliance
with applicable law, engineering data, floor
plans, "as built" or working drawings, site
plans, construction plans, specifications,
structural, roof and parking lot reports,
deferred maintenance information and title
policies relating to the Premises (plans may
be delivered in microfiche form).
(iii) The Leases and commission agreements,
schedule of commissions due together with
the most current Rent Roll for the Premises,
tenant aging/delinquency report, tenant
improvements made during the last three
years, and security deposit schedule. The
security deposit schedule shall include
itemizations of deposits required under the
leases and the current status of said
deposits.
(iv) The contracts, licenses and reciprocal
easements agreements affecting the Premises.
(v) All material audits, reports, test results,
notifications and correspondence relating to
the environmental condition or operation of
the Premises, including copies of existing
Environmental Site Assessments.
(vi) Financial statements for the past three
years, including but not limited to Tax, CAM
and Insurance charges and operating
statements.
(vii) Tenant ledgers showing tenant payment
histories for calendar years 2002 and 2003
(to date).
B. During the Due Diligence Period, Seller shall make
commercially reasonable efforts to deliver to Buyer estoppel certificates from
tenants occupying at least eighty-five percent (85%) of the gross leasable space
at each property comprising the Premises ("Tenant Estoppels"). The Tenant
Estoppels shall be in the form attached hereto as Exhibit G. or in the form set
forth in the relevant lease, or in other form reasonably acceptable to Buyer. In
the event that Seller is unable to procure necessary estoppels from tenants in
order to meet the foregoing requirements, Buyer, at its option, may (i)
terminate this Agreement and receive a refund of its ▇▇▇▇▇▇▇ Money; or (ii)
require Seller, as landlord, for any such tenant, to deliver an estoppel
certificate substantially in the form attached hereto as Exhibit G on such
tenant's behalf ("Landlord Estoppel"), which said representations and covenants
contained in any Landlord Estoppel shall survive Closing for a period of nine
(9) months. Notwithstanding the foregoing, Seller agrees to deliver a Landlord
Estoppel for any tenant who does not provide a Tenant Estoppel.
C. On or before the Closing Date, Seller shall deliver drafts of
the following documents (the "Closing Documents") to Buyer for Buyers review and
on or before Closing
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Date Seller shall deliver said Closing Documents, in form and substance
reasonably acceptable to Buyer all duly executed, where appropriate, each of
which shall be a condition precedent to Buyer's obligation to close the
transaction contemplated by this Agreement (and one or more of which may be
waived in writing by the Buyer on or prior to the Closing Date):
(i) The Conveyance Documents executed by Seller;
(ii) Tenant Estoppels and any Landlord Estoppels,
to the extent required by (B) above;
(iii) Documents to effectuate the Loan Assumption,
executed by Seller;
(iv) To the extent required by the Title Company
or reasonably required by Buyer, title
affidavits in customary form executed by
Seller;
(v) Seller's counterpart of a Closing and
proration statement, executed by Seller;
(vi) A certification of nonforeign status
satisfying Section 1445 of the Internal
Revenue Code of 1986, as amended, executed
by Seller;
(vii) Executed counterparts of real estate
transfer declarations, disclosures or forms
executed on behalf of Seller;
(viii) Evidence of Seller's existence and authority
to perform its obligations under this
Agreement, in form and substance reasonably
satisfactory to Buyer and Title Company;
(ix) If a New York Style Closing is used, (a) a
gap undertaking, executed by Seller, and (b)
the Title Commitments together with GAP
Endorsements hand-marked, initialed and
dated as of the Closing Date so as to be the
equivalent of the Title Policy (or a pro
forma title policy) subject only to the
Permitted Exceptions (the "Title Policy");
(x) At Closing, all keys and access cards to,
and combinations to locks and other security
devices located at, the Premises, if
applicable;
(xi) All of the original Leases, Contracts and
Licenses in possession of Seller, and
originals of all other materials delivered
pursuant to Section 8(a) above, where
available, together with (a) letters from
Seller advising the tenants under the Leases
of the assignment of their respective Leases
to Buyer and the manner in which rent is to
be paid subsequent to Closing; (b) evidence
of termination of Contracts designated by
Buyer, if applicable; and (c) a current Rent
Roll.
11
(xii) Such other documents, instruments, consents
or agreements as may be reasonably requested
by the Title Company or the escrow agent, in
order to issue the Title Policy, in the form
and with the endorsements required by this
Agreement, and to otherwise consummate the
Closing.
D. On the Closing Date, Buyer shall deliver the following to
Seller, in form and substance reasonably acceptable to Seller, all duly executed
where appropriate, each of which shall be a condition precedent to Seller's
obligation to close the transaction contemplated by this Agreement:
(i) Executed counterparts of the real estate
transfer declarations described above;
(ii) Counterparts of the Assignments executed by
Buyer;
(iii) Documents to effectuate the Loan Assumption,
executed by Buyer;
(iv) Counterparts of the Closing and proration
statement, executed by Buyer;
(v) A certified copy of the resolutions or
consent of Buyer authorizing the transaction
contemplated by this Agreement or other
satisfactory evidence of authorization;
(vi) The Purchase Price, plus or minus prorations
and adjustments; and
(vii) Such other documents, instruments or
agreements as may be reasonably requested by
(a) Seller, in order to consummate this
Agreement or (b) Title Company or the escrow
agent, in order to issue the Title Policy
free of any exceptions raised due to the
actions of Buyer, and to otherwise
consummate the Closing.
9. CLOSING PROCEDURE AND CLOSING COSTS.
The sale shall be closed at the office of the Title Company,
using its usual form of special warranty deed, money escrow, and Closing
procedure. Seller shall pay (a) the costs of recording, (b) Seller's attorneys'
fees, (c) one-half of all title company escrow and Closing fees, if any, (d)
one-half of related stamp tax, sales tax, documentary transfer tax or other tax
imposed on the transfer of the Premises, and (e) the costs of the Title
Commitments and the Title Policies (but not the cost of extended coverage on any
endorsements). Buyer shall pay: (i) Buyer's attorneys' fees (including, without
limitation, those attorneys' fees incurred by Buyer which relate to the Loan
Assumption), (ii) the Premises' due diligence expenses, including the costs of
any updated surveys or environmental site assessments, (iii) one-half of all
Title Company escrow and Closing fees, if any, (iv) one-half of related stamp
tax, documentary transfer tax or other tax imposed on the Premises, (v) costs
related to extended coverage on endorsements to any Title Policy, and (vi) all
fees and expenses charged by Lender in connection with the Loan Assumption.
12
10. CONDEMNATION AND CASUALTY.
A. In the event that proceedings to condemn any of the properties
constituting the Premises herein described or any material portions thereof are
legally commenced on or before the date herein set for Closing or such adjourned
dates as may be mutually agreed upon or to which either party may be entitled,
Buyer at any time after commencement of such proceedings, but not later than ten
(10) days after receipt or notification thereof from the Seller, may exclude the
affected property from this Agreement and in said event, the purchase price
shall be reduced by the value of the excluded property as set forth in Exhibit
E. In the event that Buyer does not elect to exclude the affected property from
this Agreement, Buyer shall be entitled to all awards for damages of any kind
and nature resulting from such proceedings.
B. The risk of loss or damage to the Premises by fire or
otherwise until the delivery of the deed upon Closing is assumed by the Seller.
In the event of loss or damage to the any of the properties constituting the
Premises, Buyer shall have the option to exclude the affected property from this
Agreement and in said event, the Purchase Price shall be reduced accordingly. If
Buyer does not elect to exclude the affected property, Seller shall assign to
Buyer, at the Closing, any and all claims under any then existing fire and
casualty insurance policies and Buyer shall take title to the Premises with the
assignment of any such claim or claims and subject to such damage or
destruction, and, in addition, will receive a proration credit upon Closing in
the amount of any insurance deductible.
11. AS IS" SALE
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLER SET
FORTH HEREIN, AND THE DOCUMENTS DELIVERED BY SELLER UNDER THIS AGREEMENT, BUYER
ACKNOWLEDGES AND AGREES THAT IT WILL BE PURCHASING THE PREMISES BASED SOLELY
UPON ITS INSPECTIONS AND INVESTIGATIONS OF THE PREMISES, AND THAT BUYER WILL BE
PURCHASING THE PREMISES "AS IS" AND "WITH ALL FAULTS", BASED UPON THE CONDITION
OF THE PREMISES AS OF THE DATE OF THIS AGREEMENT, ORDINARY WEAR AND TEAR AND
LOSS BY FIRE OR OTHER CASUALTY OR CONDEMNATION EXCEPTED AND THAT SELLER MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RESPECT OF THE PREMISES.
WITHOUT LIMITING THE FOREGOING, BUYER ACKNOWLEDGES THAT, EXCEPT AS MAY OTHERWISE
BE SPECIFICALLY SET FORTH ELSEWHERE IN THIS AGREEMENT, NEITHER SELLER NOR ITS
CONSULTANTS, BROKERS OR AGENTS HAVE MADE ANY REPRESENTATIONS OR WARRANTIES OF
ANY KIND UPON WHICH BUYER IS RELYING AS TO ANY MATTERS CONCERNING THE PREMISES,
INCLUDING, BUT NOT LIMITED TO: (I) THE CONDITION OF THE LAND OR ANY IMPROVEMENTS
COMPRISING THE PREMISES; (II) THE EXISTENCE OR NON-EXISTENCE OF ANY POLLUTANT,
TOXIC WASTE AND/OR ANY HAZARDOUS MATERIALS OR SUBSTANCES; (III) ECONOMIC
PROJECTIONS OR MARKET STUDIES CONCERNING THE PREMISES, OR THE INCOME TO BE
DERIVED FROM THE PREMISES; (IV) ANY DEVELOPMENT RIGHTS, TAXES, BONDS, COVENANTS,
CONDITIONS AND
13
RESTRICTIONS AFFECTING THE PREMISES; (V) THE NATURE AND EXTENT OF ANY RIGHT OF
WAY, LEASE, LIEN ENCUMBRANCE, LICENSE, RESERVATION OR OTHER TITLE MATTER; (VI)
WATER OR WATER RIGHTS, TOPOGRAPHY, GEOLOGY, DRAINAGE, SOIL OR SUBSOIL OF THE
PREMISES; (VII) THE UTILITIES SERVING THE PREMISES; (VIII) THE SUITABILITY OF
THE PREMISES FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY ELECT TO
CONDUCT THEREON; OR (IX) THE COMPLIANCE OF THE PREMISES WITH ANY ZONING,
ENVIRONMENTAL, BUILDING OR OTHER LAWS, RULES OR REGULATIONS AFFECTING THE
PREMISES. SELLER MAKES NO REPRESENTATION OR WARRANTY THAT THE PREMISES COMPLIES
WITH THE AMERICANS WITH DISABILITIES ACT OR ANY FIRE CODE OR BUILDING CODE. As
used herein, the term "Hazardous Materials or Substances" means (i) hazardous
wastes, hazardous substances, hazardous constituents, toxic substances or
related materials, whether solids, liquids or gases, including but not limited
to substances defined as "Hazardous wastes," "hazardous substances," "toxic
substances," "pollutants," "contaminants," "radioactive materials," or other
similar designations in, or otherwise subject to regulation under, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et seq.; the Clean Water Act, 33 U.S.C. Section
1251; the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air
Act, 42 U.S.C. Section 7401 et seq.; and in any permits, licenses, approvals,
plans, rules, regulations or ordinances adopted, or other criteria and
guidelines promulgated pursuant to the preceding laws or other similar federal,
state or local laws, regulations, rules or ordinance now or hereafter in effect
relating to environmental matters (collectively, "Environmental Laws"); and (ii)
any other substances, constituents or wastes subject to any applicable federal,
state or local law, regulation or ordinance, including any Environmental Law,
now or hereafter in effect, including but not limited to (A) petroleum, (B)
refined petroleum products, (C) waste oil, (D) waste aviation or motor vehicle
fuel and (E) asbestos. The provisions of this Section 11 shall survive the
Closing Date.
Buyer's Initials /s/ [ILLEGIBLE]
---------------
12. NOTICES.
All notices and demands herein required shall be in writing.
Notices shall be deemed delivered when actually received if personally
delivered; upon actual receipt if sent by facsimile; after one business day
after delivery by a nationally recognized overnight delivery service which
provides a receipt of service; or after three business days after deposit with
the United States Postal Service, certified mail, return receipt requested as
follows:
Seller: ▇▇▇▇▇ Midwest, L.L.C.
c/o Malan Realty Investors, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
14
Copy to: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ & Lardner
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
Buyer: ▇. ▇. ▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Phone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
13. ADJUSTMENTS AND PRORATIONS.
Adjustments and prorations with respect to the Premises shall
be computed and determined between the parties as of 12:01 a.m. on the Closing
Date as follows:
A. All real estate taxes and assessments, levied or assessed on
or against the Premises shall be prorated on an accrual basis as of the Closing
Date, it being the intent of the parties that neither party shall receive a
windfall. At the Closing, Buyer shall receive a credit against the Purchase
Price equal to all accrued and unpaid taxes and assessments attributable to a
period through the Closing Date (including, without limitation, all taxes and
assessments attributable to the year prior to the Closing but not payable until
after the Closing and all taxes and assessments attributable to the year in
which the Closing occurs but not payable until the following year), less
deposits paid by tenants (to the extent transferred to Buyer). The credit for
accrued taxes and assessments for which bills have not been issued as of the
Closing Date shall be based on the then most recent taxes and assessments. Buyer
agrees to reimburse Seller its pro rata share of taxes recovered from the
tenants under the Leases relating to any period prior to the Closing Date, as
and when Buyer actually collects such taxes from tenants, and Buyer agrees that
it will use commercially reasonable efforts to collect such amounts. All taxes
imposed due to a change of use of the Property after the Closing Date shall be
paid by the Buyer. If any taxes which have been apportioned shall subsequently
be reduced by abatement, the amount of such abatement, less the cost of
obtaining the same and after deduction of sums payable to tenants under Leases
or expired or terminated Leases, shall be equitably apportioned between the
parties hereto.
B. All rent, fees, charges, reimbursements, and other income and
charges due under the Leases, and any and all other income, profits, or revenue
arising out of the Premises ("Income") and received by the Seller on or before
Closing shall be prorated as of the Closing
15
Date with Seller receiving all income accruing through and including the day of
Closing. The parties agree to equitably and in good faith prorate and apportion
all Income, including without limitation percentage rent and tax reimbursements
that accrue prior to Closing but are not received by Seller as of the Closing
Date with Buyer remitting Seller's share to Seller within five (5) business days
of receipt. Provided, however, rent and other charges that are past due as of
Closing shall not be prorated on the settlement statement and any such amounts
collected by Buyer after Closing shall be first applied to amounts owed to Buyer
at the time of receipt, and any excess shall be remitted to Seller for payment
of such past due amounts which accrued prior to closing. Buyer shall not be
required to take any action to collect past due Income from tenants on Seller's
behalf, but if such amounts remain past due for sixty (60) days or more, Seller
shall be entitled to pursue legal action against such tenants at Seller's sole
cost and on Seller's behalf (and not as an agent of Buyer); provided Seller
shall not be entitled to pursue any remedy which results in tenant termination
or tenant eviction. Seller shall protect, indemnify, defend and hold Buyer
harmless for, from and against any and all damages, losses, or liabilities
arising out of claims and counterclaims pursued by such tenants in connection
with the legal action by Seller. With respect to percentage rent, if a portion
of the sales on which such percentage rent is based accrued prior to the Closing
Date, then for each such tenant, the percentage rent paid by such tenant and
collected by Buyer shall be prorated and adjusted when such percentage rent is
received by Buyer.
C. On the Closing Date, Seller will deliver to Buyer in cash, as
a credit against the Purchase Price or as an adjustment to the prorations
provided for elsewhere in this Section 13, as appropriate, an amount equal to
all security deposits made by tenants occupying the Premises which were paid to
Seller by such tenants and which have not been applied by Seller pursuant to the
Leases, together with interest owing thereon pursuant to the applicable Lease,
if any, and together with a listing of the tenants as to which such deposits and
interest being held.
D. All amounts payable, owing or incurred in connection with the
Premises under the Contracts to be assumed by Buyer shall be prorated as of the
Closing Date.
E. All costs and expenses with respect to the Premises, to the
extent Seller is required to pay such expenses pursuant to the Leases, (the
"Expenses"), shall be equitably and in good faith prorated as of the Closing
Date. Any Expenses which are prepaid as of the Closing Date shall be credited to
Seller. Buyer shall be responsible to pay Expenses accruing subsequent to the
Closing Date. Seller shall receive a credit at Closing to the extent Seller has
incurred any expenses for insurance or for maintaining the common areas, if such
expenses may be passes through to the tenants, but have not been reconciled;
provided, however, that Seller must provide Buyer with reasonable documentation
of such expenses, and management fees may be included only to the extent that
they are out-of-pocket expenses paid by Seller to an unaffiliated third party.
To the extent the Expenses can accurately be prorated on the Closing Date such
Expenses shall be prorated at the Closing. To the extent such Expenses cannot
accurately be prorated on the Closing Date (e.g., utility charges), such
Expenses shall be prorated and adjusted by Buyer as of the Closing Date when the
actual bills covering the period in which the closing Date occurs are received
by Buyer. Seller shall pay its share of such Expenses promptly upon receipt of a
statement from Buyer. Buyer shall have the right to offset Seller's share of
such Expenses against any income due Seller.
16
F. The ▇▇▇▇▇▇▇ Money shall be paid to Seller at Closing, and
Buyer shall be entitled to a credit against the Purchase Price in the amount
thereof.
G. Seller shall receive a credit at Closing in the amount of all
escrows and reserves being held by Lender pursuant to the Loans. Interest on the
Loans shall be prorted at Closing. Seller shall be responsible for all payments
on the Loans being timely made prior to the Closing Date.
H. All other items which are customarily prorated in transactions
similar to the transaction contemplated hereunder and which are not otherwise
addressed in this Agreement, will be prorated as of the Closing Date. In the
event any prorations or computations made under this Section 13 are based on
estimates or prove to be incorrect, then either party shall be entitled to an
adjustment to correct the same, provided that it makes written demand on the
party from whom it is entitled to such adjustment within six (6) months after
the end of the calendar year in which the Closing occurs. For purposes of
calculating the prorations provided for in this Agreement, Buyer shall be deemed
to be the owner of the Premises on the Closing Date.
I. Buyer shall notify Seller as to which of the Contracts it
desires to assume at Closing and which Contracts Buyer desires Seller to cancel
on or prior to the Closing Date by giving Seller written notice thereof no later
than the earlier of (a) the final day of the Due Diligence Period or (b) if any
Contract which Buyer desires Seller to terminate, by its terms, requires a
thirty-day notice period prior to termination, at least thirty-three (33) days
prior to the Closing Date. For any Contract which Buyer requests Seller to
terminate which requires a longer period than thirty-day's notice to terminate,
Seller will send a notice of termination within a reasonable time following
receipt of Buyer's request; however, Buyer shall be responsible for any
termination fees or other costs related to such termination; and Buyer shall be
assigned and shall assume said Contract at Closing.
14. LEASING COSTS, MANAGEMENT FEES AND EMPLOYEES.
Seller agrees to pay or discharge at or prior to Closing all
leasing commissions (including renewals), costs for tenant improvements, legal
fees and other costs and expenses (collectively, "Leasing Costs") with respect
to Leases in force as of or prior to execution of this Agreement. On the Closing
Date, Seller shall deliver evidence satisfactory to Buyer that, unless expressly
assumed by Buyer in writing, that all current management or leasing agreements
for the Premises have been terminated and that any managers and any brokers have
been paid all commissions or fees due and payable, except as provided in Section
15 hereof. Buyer is not required to continue the employment of any employees of
Seller or any property manager after the Closing Date. Seller shall satisfy all
obligations to all employees, if any, employed by Seller or otherwise in the
operation of the Premises and provide Buyer with evidence thereof satisfactory
to Buyer on the Closing Date.
15. BROKERS.
It is agreed that any and all commissions are to be the sole
responsibility of the Seller. Notwithstanding the aforesaid, each party
represents and covenants to the other that it has not dealt with any agent or
broker in connection with this transaction, except for ▇▇ ▇▇▇▇▇▇▇
17
▇▇▇▇▇ and AW ▇▇▇▇, Inc. and agrees to indemnify and hold harmless the other from
any and all loss, costs or expenses from any claim made for commission in
contravention of the representations and covenants set forth in this paragraph.
16. TIME OF THE ESSENCE.
It is agreed by all parties that time is of the essence in
respect to this Agreement and that failure of either Seller or Buyer to adhere
to the time schedules as set forth herein shall constitute a default by that
party to be treated in accordance with the terms as set forth in Section 4
above.
17. SUCCESSORS AND ASSIGNS.
This Agreement and all provisions hereof shall extend to, be
obligatory upon and inure to the benefit of the respective heirs, legatees,
successors and assigns of the parties hereto. As to each property comprising the
Premises, Buyer shall have the right to assign its interest in this Agreement to
one or more third parties (up to one assignee per property) upon written notice
to Seller, provided Buyer shall remain liable for all obligations of Buyer
hereunder.
18. LEGAL COSTS.
If either party institutes a legal action against the other
relating to this Agreement or any default hereunder, the unsuccessful party to
such action will reimburse the successful party for the reasonable expenses of
prosecuting or defending such action, including without limitation reasonable
attorneys' fees and disbursements and court costs. The obligations under this
Section 19 shall survive the termination of this Agreement.
19. CONSTRUCTION.
This Agreement shall not be construed more strictly against
one party than against the other merely by virtue of the fact that the Agreement
may have been prepared primarily by counsel for one of the parties, it being
recognized that both Buyer and Seller have contributed substantially and
materially to the preparation to this Agreement.
20. FACSIMILE.
A facsimile or photocopy signature of this Agreement, any
amendment hereto or any notice delivered hereunder shall have the same legal
effect as an original signature.
21. ENTIRE AGREEMENT.
This Agreement represents the entire agreement between the
parties and shall not be amended, modified or changed except by written
instrument executed by the party against whom such change is binding. The terms
set forth in the Letter of Intent and Confidentiality Agreement heretofore
entered into by the parties are merged into this Agreement and are thereby
extinguished.
18
22. CHOICE OF LAWS.
This Agreement shall be governed by the laws of the State of
Michigan.
23. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which
shall be deemed to constitute an original and all of which shall be deemed to
constitute the same instrument.
24. PARTIAL ENFORCEABILITY.
If any of the provisions of this Agreement or the application
thereof to any persons or circumstances shall, to any extent, be deemed invalid
or unenforceable, the remainder of this Agreement and the application of such
provisions to persons or circumstances other than those as to whom or which it
is held invalid or unenforceable shall not be affected thereby.
[Signature Page Follows]
19
IN WITNESS WHEREOF, Seller has executed and Buyer has executed
this Agreement, all as of the date and year set forth below.
SELLER BUYER:
▇▇▇▇▇ MIDWEST, L.L.C. D. J. CHRISTIE, INC.:
By: ▇▇▇▇▇ Midwest One Corp., its
managing member By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
By: /s/ [ILLEGIBLE]
--------------------------------- Date: 12/4/03
Authorized Officer
Date: 12/10/03
20
EXHIBIT A
LEGAL DESCRIPTIONS
BENTON HARBOR, MICHIGAN
▇▇▇▇ ▇, ▇▇▇-▇▇▇▇ ▇▇▇▇▇ -- ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, according to the Master Deed,
recorded December 30, 1994, in Liber 92 of Condominiums, Pages 1 through 31,
inclusive, Berrien County Records, and designated as Berrien County Condominium
Subdivision Plan No. 92; with rights in general common elements and limited
common elements as set forth in said Master Deed, in pursuance of the provisions
of the Michigan Condominium Act, being Act 59 of the Public Acts of 1978, as
amended;
Further described as:
Commencing at the North Quarter Post of Section 32, T.4S, R.18W., ▇▇▇▇▇▇
Township, Berrien County, Michigan;
Thence measure S. 00 degrees 24 minutes 12 seconds East 2630.91 feet to the
center of said Section 32; thence measure S. 00 degrees 24 minutes 12 seconds
East 690.05 feet; thence measure North 50 degrees 30 minutes 43 seconds East
1035.15 feet to the West line of Mall Drive; thence measure South 46 degrees 25
minutes 40 seconds East 147.82 feet along said West line, to the true point of
beginning of this description; thence South 46 degrees 25 minutes 40 seconds
East 255.14 feet, along said West line; thence South 50 degrees 30 minutes 43
seconds West 262.93 feet; thence North 46 degrees 25 minutes 40 seconds West
181.57 feet; thence North 43 degrees 13 minutes 15 seconds East 150.58 feet;
thence North 47 degrees 26 minutes 32 seconds West 40.42 feet; thence North 43
degrees 20 minutes 20 seconds East 111.14 feet, to the Point of Beginning.
Together with a non-exclusive easement for ingress and egress, described as
follows: Commencing at the North 1/4 post of said Section 32, thence along the
North and South 1/4 line of the Section South 00 degrees 24 minutes 12 seconds
East 2630.91 feet to the center of said Section, thence continuing South 00
degrees 24 minutes 12 seconds East 690.05 feet to a point 68 feet Southeasterly
of the center of an existing Indiana and Michigan Electric Co. transmission
line, thence North 50 degrees 30 minutes 43 seconds East parallel with said
transmission line, 717.00 feet to the true point of beginning of this
description, thence North 39 degrees 29 minutes 17 seconds West 80.00 feet to a
point, thence South 50 degrees 30 minutes 43 seconds West 88.40 feet to a point,
thence North 39 degrees 29 minutes 17 seconds West 56.00 feet to a point, thence
North 50 degrees 30 minutes 43 seconds East 50.00 feet to a point, thence South
39 degrees 29 minutes 17 seconds East 5.00 feet to a point, thence North 50
degrees 30 minutes 43 seconds East 340.60 feet to the Southwesterly line of Mall
Drive, thence along said street line South 46 degrees 25 minutes 40 seconds East
50.37 feet to a point, thence South 50 degrees 30 minutes 43 seconds West 209.77
feet to a point, thence South 11 degrees 21 minutes 44 seconds East 91.84 feet
to a point, thence South 46 degrees 25 minutes 40 seconds East 708.54 feet to a
point, thence South 50 degrees 29 minutes 30 seconds West 50.37 feet to a point,
thence North 46 degrees 25 minutes 40 seconds West 708.56 feet to a point,
thence South 50 degrees 30
Exhibit A - Page 1
minutes 43 seconds West 4.85 feet to the point of beginning, as created by
Access Easement, recorded December 30,1994, in Liber 1673, page 494, Berrien
County Records. And together with an appurtenant easement for cross access and
signage as more particularly described in Liber 1684, page 1275, dated March
29,1995.
CHAMPAIGN, ILLINOIS
Tract 1:
▇▇▇ ▇ ▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇ and Part of Lot 1 of
Wal-Mart/Sam's Subdivision, as per plat recorded in Book "BB" at page 296, as
amended by certificate of correction recorded May 10, 1994 in Book 2114 at page
644 as document no. 94R 12847, situated in the City of Champaign, in Champaign
County, Illinois.
Tract 2:
Easement for the benefit of Tract 1 created by Access Easement recorded May 24,
1994 as document 94R 14038 for passageway over the following land: A Part of the
Northeast Quarter of Section 2, Township 19 North, Range 8 East of the Third
Principal Meridian, as shown on plat recorded in the Champaign County Recorder's
Office in Book "BB" on page 145, situated within the limits of the City of
Champaign, Champaign County, Illinois.
Beginning at an Iron Pipe Survey Monument found at the Southwest corner of Lot 2
of Wal-Mart/Sam's Subdivision as recorded in Book "BB" on page 145 in the Office
of the Champaign County Recorder, said point also being coincident with the
southernmost corner of Wal-Mart Plaza Subdivision; thence West along a curve to
the right, convex to the South, an arc distance of 69.35 feet, said curve having
a radius of 12277.67 feet and a chord distance of 69.35 feet, and a chord
bearing of North 74degrees00'15" West; thence North 14degrees52'27" East, a
distance of 122.15 feet; thence North 4degrees57'34" East, a distance of 34.89
feet; thence South 88degrees24'48" East, a distance of 600.20 feet; thence
North 1degrees31'44" East, a distance of 741.17 feet: thence South 88degrees
17'28" East, a distance of 80.26 feet to a point of curvature; thence East along
a curve to the left, convex to the South, an arc distance of 54.44 feet, said
curve having a radius of 170.05 feet and a chord distance of 54.21 feet and a
chord bearing of North 81degrees10'58" East to a point of tangency; thence
North 69degrees20'07" East, a distance of 42.46 feet to a point on a curve,
convex to the Southwest having a radius of 417.97 feet, said point also being
situated on the Westerly right of way of Market View Drive; thence
Southeasterly, along said right of way and also along said curve to the left,
convex to the Southwest, an arc distance of 38.01 feet to a point on said curve
having a chord distance of 37.99 feet and a chord bearing of South 37degrees
50'07" East; thence South 69degrees20'07" West, a distance of 53.68 feet to a
point of curvature; thence West, along a curve to the right, convex to the South
an arc distance of 68.61 feet to a point of tangency, said curve having a radius
of 206.35 feet and a chord distance of 68.30 feet and a chord bearing of South
81degrees02'49" West, thence North 88degrees17'28" West, a distance of 18.98
feet to a point of curvature; thence Southwesterly along a curve to the left,
convex to the Northwest an arc distance of 55.39 feet to point of tangency, said
curve having a radius of 35.00 feet and a chord distance of 49.79 feet and a
chord bearing of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇'▇▇" ▇▇▇▇; thence South 1degrees02'31"
Exhibit A - Page 2
West, a distance of 345.54 feet; thence South 2degrees03'18" West, a distance
of 325.77 feet to a point of curvature: thence Southwesterly along a curve to
the right, convex to the Southeast having a radius of 25.00 feet and a chord
distance of 22.34 feet and a chord bearing of South 28degrees35'34" West, an
arc distance of 23.16 feet to a point on a curve convex to the West and having a
radius of 7.25 feet; thence South, along said curve to the left, convex to the
West an arc distance of 4.69 feet to a point on said curve, said point also
being situated on the North line of Ryan's First Addition as recorded in Book
"BB" on page 230 in the Office of the Champaign County Recorder, said curve also
having a chord distance of 4.61 feet and a chord bearing of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇'▇▇" ▇▇▇▇; thence North 88degrees35'38" West, along said North
line, a distance of 340.15 feet, to the Northeast corner of Wal-Mart Plaza
Subdivision; thence North 88degrees03'11" West, along the North line of said
Wal-Mart Plaza, a distance of 230.94 feet to a point of curvature; thence
Southwesterly, along said North line, along a curve to the left, convex to the
Northwest, an arc distance of 6.88 feet to a point of tangency, said point also
being situated on the West line of said Wal-Mart Plaza Subdivision, said curve
also having a radius of 5.00 feet and a chord distance of 6.35 feet and a chord
bearing of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇'▇▇" ▇▇▇▇; thence South 13degrees08'50" West,
along said West line, a distance of 11.01 feet; thence South 1degrees37'05"
West, along said West line, a distance of 12.79 feet; thence continuing South
1degrees37'05" West, along said West line, a distance of 117.44 feet to the
point of beginning. All situated within the limits of the City of Champaign,
Champaign County, Illinois.
CHANUTE, KANSAS
Parcel 1
BEGINNING at a point on the East right-of-way line of a county highway, said
point of beginning being East 50.00 feet and North 00degrees00'00" East, 850.70
feet from the Southwest corner of the Northwest Quarter (NW 1/4) of Section 33,
Township 27 South, Range 18 East of the Sixth P.M., Neosho County, Kansas,
thence North 00degrees00'00" East, 125 feet; thence North 89degrees14'50"
East, 225.02 feet; thence South 00degrees00'00" West, 127.96 feet, thence North
90degrees00'00" West, 225.00 feet to the POINT OF BEGINNING; and
Parcel 2
BEGINNING at a point on the East right-of-way line of a county highway, said
point of beginning being East 50.00 feet and North 00degrees00'00" East, 725.70
feet from the Southwest corner of the Northwest Quarter (NW 1/4) of Section 33,
Township 27 South, Range 18 East of the Sixth P.M., Neosho County, Kansas,
thence North 00degrees00'00" East, 125.00 feet; thence North 90degrees00'00"
East, 225.00 feet; thence South 00degrees00'00" West, 125.00 feet; thence North
90degrees00'00" West, 225.00 feet to the POINT OF BEGINNING; and
Parcel 3
INGRESS AND EGRESS over the following described tract, as set forth in
instrument dated June 21,1995, filed for record June 26, 1995 at 9:30 a.m., and
duly recorded in Misc. Book 122, Pages 1-10, of the records in the office of the
Register of Deeds of Neosho County, Kansas:
Exhibit A - Page 3
BEGINNING at a point on the East right-of-way line of County Highway 169, said
POINT OF BEGINNING being East 50.00 feet and North 00degrees00'00" East, 667.70
feet from the Southwest corner of the Northwest Quarter (NW 1/4) of Section 33,
Township 27 South, Range 18 East of the Sixth P.M., Neosho County, Kansas,
thence North 00degrees00'00" East, 59.00 feet along the East right-of-way line
of County Highway 169; thence North 90degrees00'00" East, 225.00; thence North
00degrees00'00" East, 252.96 feet; thence North 89degrees14'50" East, 34.00
feet; thence South 00degrees00'00" West, 311.41 feet; thence South
90degrees00'00" West, 259.00 feet to a point in the East right-of-way line of
County Highway 169 and the POINT OF BEGINNING.
CRAWFORDSVILLE, INDIANA
Tract I: All that piece, parcel or lot of land being located in the County of
▇▇▇▇▇▇▇▇▇▇, State of Indiana in the northeast quarter of the southeast quarter
of section 7, township 16 north, range 4 west of the Second Principal Meridian:
Beginning at the northeast corner of the northeast quarter of the southeast
quarter of section 7, township 18 north, range 4 west at a PK nail and running
south 00degrees36'25" east 852.56 feet to a point in or near the center of U.S.
Highway 231 which is the true point of beginning; thence running with the
property of Learning, et al south 89degrees54'05" west 1141.22 feet to a point;
thence north 00degrees36'25" west 120 feet to a point; thence north
89degrees54'05" east 55 feet to a point; thence north 00degrees36'25" west 65
feet to the point; thence north 89degrees54'05" east 236 feet to a point;
thence South 00degrees36'25" east 75 feet to a point; thence north
89degrees54'05" east 512 feet to a point; thence north 00degrees36'25" west
359.00 feet to a point; thence north 89degrees54'05" east 70 feet to a point at
the northwestern corner of out parcel #1; thence south 00degrees36'25" east 400
feet to a point at the southwestern corner of out parcel #2; thence north
89degrees54'05" east 268.22 feet to a point on or near the center of U.S.
Highway 231; thence with centerline south 00degrees36'25" east 69.88 feet to a
point on or near the center of Highway which is the point of beginning.
Tract II: Part of the northeast quarter of the southeast quarter of section
seven (7), township eighteen (18) north, range four (4) west, ▇▇▇▇▇▇▇▇▇▇ County,
Indiana, more particularly described as follows: Beginning at a 5/8" rebar on
the west line of said quarter section south 00 ▇▇▇▇▇▇▇▇▇' 25" east 857.46 feet
(south 00 degrees37 minutes 08 seconds east 857.69 feet, measured) from a PK
nail marking the northwest corner thereof and running thence north 89 degrees
54' 05" east 725.00 feet (north 89 ▇▇▇▇▇▇▇▇▇ minutes 07 seconds east 724.93
feet, measured) to a 5/8" rebar; thence south 00 ▇▇▇▇▇▇▇▇▇' 25" east 460.00
feet (south 00 degrees37 minutes 56 seconds east 460.31 feet, measured) to a
5/8" rebar; thence south 89 degrees54' 05" west 725.00 feet (south 89 degrees
53 minutes 19 seconds west 725.09 feet, measured) to a 5/8" rebar and the west
line of said quarter section; thence north 00 ▇▇▇▇▇▇▇▇▇' 25" west along said
west line 460.00 feet (north 00 ▇▇▇▇▇▇▇▇▇ minutes 25 seconds west 459.85 feet,
measured) to the point of beginning, containing 7.656 acres (7.657 acres,
measured), more or less.
TOGETHER with an appurtenant easement for roadways, walkways, ingress and
egress, parking, loading and unloading, and the use of facilities installed for
the convenience of customers, invitees, licensees, tenant and employees between
the Borrower's Property and the
Exhibit A - Page 4
Wal-Mart property, dated August 29, 1990, recorded November 1, 1990, in Deed
Record 271, page 17, in the Recorder's Office of ▇▇▇▇▇▇▇▇▇▇ County, Indiana.
DECATUR, ILLINOIS
Lots Eight (8) and Ten (10) of Wal-Mart's Third Addition, a Resubdivision of
Lots Seven (7), Eight (8) and Nine (9) of Wal-Mart's First Addition to the City
of Decatur, as per Plat recorded in Book 1832 Page 670 of the Records in the
Recorder's office of Macon County, situated in Macon County, Illinois.
As Known As:
Part of the West 1/2 of the Northwest 1/4 of Section 26, Township 17 North,
Range 2 East of the 3rd P.M. located in Decatur, Macon County, Illinois, being
more particularly described as:
Lot 8
Beginning at an iron pin at the Southeast corner of Lot 8 of Wal-Mart's third
addition, a resubdivision of Lots seven (7), eight (8), and nine (9) of
Wal-Mart's first addition to the City of Decatur, as per plat recorded in Book
1832, Page 670 of the records in the recorder's office of Macon County,
Illinois, said point being on the East right-of-way line of Prospect Avenue:
Thence North 0degrees-15'-0" West 236.00 feet along said East right-of-way to
an iron pin found:
Thence North 89degrees-45'-00" East 515.70 to a drill hole set;
Thence North 0degrees-10'-55" West 85 feet to an iron pin set;
Thence North 89degrees-45'-00" East 400 feet to an iron pin set on the West
right-of-way line of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇. Drive (MLK);
Thence South 00degrees-10'-55" East 152.60 feet along said West right-of-way of
MLK to an iron pin set;
Thence North 89degrees-45'-00" East 161.74 feet on an iron pin set;
Thence North 00degrees-15'-00" West 70.00 feet to an iron pin set;
Thence North 89degrees-45'-00" East 130.00 feet to a PK nail set;
Thence North 00degrees-I5-00" West 20.00 feet to a PK nail set;
Thence North 89degrees-45'-00" East 155.00 feet to a PK nail set;
Thence North 00degrees-15'-00" West 78.40 feet to a PK nail set;
Thence North 89degrees-45'-00" East 468.88 feet to the point of beginning.
Containing 4.453 Acres, 197,903.73 square feet.
The foregoing described property also being known as Lot 8 of Wal-Mart's
third addition.
Lot 10
Beginning at an iron pin at the Northwest ▇▇▇▇▇ of Lot 10 of Wal-Mart's third
addition, a resubdivision of Lots seven (7), eight (8), and nine (9) of
Wal-Mart's first addition to the City of
Exhibit A - Page 5
Decatur as per plat recorded in Book 1832, Page 670 of the records in the
Recorder's Office of Macon County, Illinois said point being on the East
right-of-way line of Prospect Avenue;
Thence North 88degrees-07'-59.4" East 315.13 feet to a PK nail set;
Thence South 00degrees-14'-59.7" East 200.08 feet to an iron pin set on the
North right-of-way line of Ash Avenue;
Thence South 88degrees-08'-02" West 255.13 feet, along said North right-of-way
line of Ash Avenue, to a drill hole set;
Thence North 46degrees-03'-29" West along said North right-of-way line of Ash
Avenue 83.65 feet to a pin found on the East right-of-way line of Prospect
Avenue;
Thence North 00degrees-15'-00" West along said North right-of-way line of
Prospect Avenue 140.07 feet to the point of beginning, containing 1.406 acres,
61,225.41 square feet.
DECATUR, INDIANA
TRACT 1
Portions of the southeast quarter of the southeast quarter of Section 33,
Township 28 North, Range 14 East, ▇▇▇▇▇ County, Indiana, more particularly
described as follows:
Commencing at a point on the north line of the southeast quarter of the
southeast quarter of Section 33, Township 28 North, Range 14 East, ▇▇▇▇▇ County,
Indiana, said point being located 90.77 feet westerly of the northeast corner of
said quarter of said quarter, said point also being located on the west line of
a 20 foot alley as platted in ▇▇▇▇▇▇▇▇▇'▇ First Addition to the City of Decatur,
Indiana; thence South 88degrees44'01" West along said North line 456.51 feet;
thence South 01degrees25'53" East and parallel to the east line of the real
estate described in Deed Record 166 at page 435 in the records of the ▇▇▇▇▇
County, Indiana, Recorder 156.72 feet; thence South 88degrees44'01" West 300.00
feet to the east line of said real estate; thence South 88degrees49'35" West
and parallel to the south line of said quarter 125.00 feet; thence South 01
degrees25'53" East 640.06 feet to a point on the north line of Villa Terrace
Addition, said point being located 530.00 feet north of the south line of said
quarter, thence North 88degrees49'35" East along said north line 125.00 feet to
the northeast corner of said Addition, said corner also being the true place of
beginning for the tract herein described; thence North 88degrees49'35" East
83.50 feet; thence North 01degrees15'59" West 117.28 feet; thence North
88degrees44'01" East 190.99 feet; thence North 01degrees43'53" West 53.32
feet; thence North 88degrees44'01" East 258.95 feet to a point, said point
being located 226.30 feet westerly of the west line of said alley and 701.35
feet northerly of the south line of said quarter; thence South 01degrees43'53"
East 339.35 feet; thence South 88degrees49'35" West 229.70 feet; thence South
01degrees43'53" East 332.00 feet to a point on the north right of way line of
U.S. Highway #224, said point being located 30.00 feet north of the south line
of said quarter; thence south 88degrees49'35" West along said right of way line
307.31 feet to the southeast corner of said Villa Terrace Addition; thence North
01degrees25'53" West along the east line of said Addition 500.00 feet to the
place of beginning;
CONTAINING: 5.94 acres, more or less.
Exhibit A - Page 6
EXCEPT THEREFROM:
A portion of the Southeast quarter of Section 33, Township 28 North, Range 14
East, ▇▇▇▇▇ County, Indiana, more particularly described as follows:
Commencing at the Southeast corner of Villa Terrace Addition in the Southeast
quarter of Section 33, Township 28 North, Range 14 East, ▇▇▇▇▇ County, Indiana,
thence easterly parallel with the South line of said quarter on an assumed
bearing of N 88degrees49'35"E a distance of 30.00 feet to a point, said point
being the point of beginning for the tract herein described; thence northerly
parallel with the East line of said Addition bearing N 01degrees25'53"W a
distance of 143.00 feet; thence easterly N 88degrees49'35"E, parallel with said
South line 213.35 feet; thence southwesterly on a non-tangent curve concave to
the northwest having a radius of 77.00 feet and a chord which bears S
47degrees31'10"W a distance of 44.67 feet along said curve; thence
southwesterly on a tangent curve concave to the southeast having a radius of
79.00 feet and a chord which bears S 35degrees19'50"W a distance of 79.44 feet
along said curve; thence southwesterly on a tangent line which bears S
06degrees31'20"W a distance of 7.80 feet; thence westerly S 88degrees49'35"W,
parallel with said South line 20.69 feet; thence Southerly S 01degrees25'53"E,
parallel with said East line 45.00 feet to a point 30.00 feet distant from said
South line; thence westerly S 88degrees49'35"W, parallel with said South line
112.80 feet to the point of beginning.
Containing approximately 0.48 Acre, more or less.
Subject to: All legal easements, right-of-ways, encumbrances and matters of
record.
TRACT 2
Commencing at a point on the north line of the Southeast Quarter of the
Southeast Quarter of Section 33, Township 28 North, Range 14 East, ▇▇▇▇▇ County,
Indiana, said point being located 90.77 feet westerly of the northeast corner of
said quarter of said quarter, said point also being located on the west line of
a 20 foot alley as platted in ▇▇▇▇▇▇▇▇▇'▇ First Addition to the City of Decatur,
Indiana; thence South 01 degrees 43 minutes 53 seconds East along said west line
156.33 feet to a point, said point being located 20.00 feet westerly of the
northwest corner of Lot 15 in said Addition; thence South 88 degrees 27 minutes
11 seconds west along the westerly projection of the north line of said Lot 15 a
distance of 80.00 feet; thence South 01 degrees 43 minutes 53 seconds East
131.29 feet to a point on the westerly projection of the south line of Lot 16 in
said Addition; thence North 88 degrees 39 minutes 18 seconds East along said
projection 80.00 feet to the west line of said alley; thence South 01 degrees 43
minutes 53 seconds East along said west line 293.15 feet; thence South 88
degrees 49 minutes 35 seconds West 226.30 feet; thence South 01 degrees 43
minutes 53 seconds east 45.65 feet; thence South 88 degrees 44 minutes 01
seconds West, 258.95 feet; thence South 01 degrees 43 minutes 53 seconds East,
53.32 feet; thence South 88 degrees 44 minutes 01 seconds West, 20.21 feet to
the point of beginning; thence continue South 88 degrees 44 minutes 01 seconds
West, 170.78 feet; thence North 01 degrees 15 minutes 59 seconds West, 88.01
feet; thence North 88 degrees 44 minutes 01 seconds East, 170.07 feet; thence
South 01 degrees 43 minutes 53 seconds East, 88.01 feet to the point of
beginning, said parcel containing 0.34 acre, more or less.
Exhibit A - Page 7
A Non-Exclusive Easement of access for purposes of ingress and egress, as shown
in the Easements with Covenants and Restriction Affecting Land, dated August 28,
1990, recorded October 31, 1990 in Deed Record 197, Pages 365-379 in the Office
of the Recorder of ▇▇▇▇▇ County, Decatur, Indiana.
EL DORADO, KANSAS
Lot Numbered 4, Block Numbered 1, in ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ADDITION to the City of El
Dorado, in ▇▇▇▇▇▇ County, Kansas. EXCEPT all the minerals underlying the surface
of said land and all rights and easements in favor of the estate of said
minerals.
TOGETHER WITH an appurtenant easement for ingress and egress as more
particularly described in Book 738 at Page 128 filed April 28, 1995.
HUNTINGTON, INDIANA
Part of Tract 7 in the Reserve of Ten Sections, Township 28 North, Range 9 East,
City of Huntington, Huntington County, Indiana, being Outlet #4 of the Secondary
Plat for Wal-Mart Stores, Inc. recorded in Microfilm Book M, Page 116 (all
references to deeds, plats, etc. refer to the Huntington County Recorder's
Office, unless noted otherwise) and being a portion of the land conveyed to
Wal-Mart Stores, Inc. by deeds recorded in Deed Book 254, Page 639 and Deed Book
254, Page 640, and bounded and described as follows:
Beginning at the intersection of the paper relocation of the centerline of State
Route 5 (as shown on sheets 19 and 20 of the Indiana Department of
Transportation, Project No. 888 (10)) with ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇);
thence along the centerline of said ▇▇▇▇▇▇▇▇▇▇ Road, South 55 degrees 33 minutes
50 seconds West for 481.28 feet to a railroad spike set; thence departing said
centerline, North 36 degrees 49 minutes 26 seconds West for 30.03 feet to an
iron pin set at the intersection of northwesterly right-of-way line of said
▇▇▇▇▇▇▇▇▇▇ Road with the easterly right-of-way of Wal-Mart Drive (50 foot R/W);
thence departing said easterly right-of-way line of Wal-Mart Drive, continuing
along said ▇▇▇▇▇▇▇▇▇▇ right-of-way, South 55 degrees 33 minutes 50 seconds West
for 230,52 feet to an iron pin set at the southerly corner of Outlot #3, also
being the TRUE POINT OF BEGINNING of the herein described parcel; thence
continuing along said northwesterly right-of-way line of ▇▇▇▇▇▇▇▇▇▇ Road, South
55 degrees 33 minutes 5C seconds West for 225.05 feet to an iron pin set; thence
departing said right-of-way line, by a new division line the following three (3)
courses:
1. North 34 degrees 26 minutes 10 seconds West for 202.00 feet to an iron
pin set;
2. North 55 degrees 33 minutes 50 seconds East for 225.05 feet to an iron
pin set at the westerly corner of Outlot #3;
Exhibit A - Page 8
3. along the southwesterly line of Outlot 3, South 34 degrees 26 minutes
10 seconds East for 202.00 feet to THE TRUE POINT OF BEGINNING, containing 1.044
acres, subject however to all covenants, conditions, restrictions, reservations,
and easements contained in any instrument of record pertaining to the above
described tract of land.
TOGETHER with an appurtenant easement for Drainage and Detention Basin dated
August 11, 1995, recorded August 30, 1995, as document 172802, in Deed Book 256,
Page 696, and an access easement across Wal-Mart Stores, Inc. property, dated
August 11, 1995, and recorded August 30, 1995 as Document No. 172803, in Deed
Book 256, Page 703, of the records of the Recorder's ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
A part of Lot Two (2) of ▇ ▇ Subdivision, an Addition to the City of
Jacksonville, ▇▇▇▇▇▇ County, Illinois, as per Plat recorded May 31, 1990 as
Document #399939 described as follows, to wit, Beginning at an iron rod (found)
at the Southeast corner of said Lot 2 of ▇ ▇ Subdivision that is adjacent to the
South line of Lot 1 of said Subdivision; thence North 00 degrees 59'52" West
224.36 feet along the East line of said Lot 2 to an iron rod; thence North 89
degrees 00'08" East along the line of said Lot 2 a distance of 132.00 to the
East line of said Lot 2 (said point being the West wall of an existing Wal-Mart
Buildings ; thence North 00 degrees 59'52" West 170.00 feet along the line of
said Lot 2 to an iron rod; thence South 89 degrees 00'08" West 110.25 feet along
the line of said Lot 2 to an iron rod; thence North 00 degrees 59'52" West
343.97 feet along the line of said Lot 2 to a drill hole at the Northeast corner
of said Lot 2; thence South 89 degrees 00'08" West 413.36 feet along the North
line of said Lot 2 to an iron rod; thence South 01 degrees 10'06" East along the
edge of the existing building line and its extension thereof 574.56 feet; thence
North 89 degrees 00'08" East 111.40 feet to an iron rod; thence South 00 degrees
59'52" East 164.00 feet to an iron rod on the South line of said Lot 2; thence
North 88 degrees 57'15" East 278.50 feet along the South line of said Lot 2 to
the point of beginning; TOGETHER WITH AN EASEMENT FOR INGRESS AND EGRESS over
the following described parcel:
Part of Lot Two (2) in ▇ ▇ Subdivision as recorded on May 31, 1990 as Document
#399939 in the Office of the ▇▇▇▇▇▇ County Recorder of Deeds, being a part of
the North half of the Northeast quarter of Section Thirty (30), Township Fifteen
(15) North, Range Ten (10) West of the Third Principal Meridian in the City of
Jacksonville, ▇▇▇▇▇▇ County, Illinois, more particularly described as follows:
Commencing from a drill hole at the Northeast corner of said Lot 2, thence along
an assumed bearing South 89 degrees 00'08" West 413.36 feet along the North line
of said Lot 2 to an iron rod at the Northwest corner of Jacksonville Realty LLC;
thence South 01 degrees 10'06" East 1.7 feet along the West property line of
Jacksonville Realty LLC to the point of beginning; thence continuing South 01
degrees 10' 06" East 31.3 feet along the said West property line; thence South
89 degrees 00'08" West 30.0 feet; thence South 01 degrees 10'06" East 358.7 feet
along a line 30.0 feet normal distance Westerly of and parallel with the said
West property line; thence North 89 degrees 00'08" East 30.0 feet to a point on
the said West property line; thence South 01 degrees 10'06" East 27.0 feet along
said West property line; thence South 89 degrees 00'08" West 85.0 feet; thence
North 01 degrees 10'06" West 27.0 feet along a line
Exhibit A - Page 9
85.0 feet normal distance Westerly of and parallel with said West property
line; thence North 89 degrees 00'08" East 30.0 feet; thence North 01 degrees
10'06" West 358.7 feet along a line 55.0 feet normal distance Westerly of and
parallel with the said West property line; thence South 89 degrees 00'08" West
30.0 feet; thence North 01 degrees 10'06" West 38.5 feet along a line 85.0 feet
normal distance Westerly of and parallel with the said West property line;
thence Northeasterly along a curve to the left having a radius of 49.0 feet,
40.6 feet along said curve through a central angle of 47 degrees 28'10" the
chord of said curve bears North 22 degrees 44'13" East 39.4 feet; thence North
00 degrees 59'52" West 131.7 feet along a line 62.5 feet normal distance
Westerly of and parallel with the West line of Lot 5 in said ▇ ▇ Subdivision;
thence Northwesterly along a tangential curve to the left having a radius of
29.0 feet, 24.6 feet along said curve through a central angle of 48 degrees
32'30" to a point on the North line of said Lot 2; thence North 89 degrees
00'08" Fast 62.8 feet along the North line of said Lot 2; thence South 00
degrees 59'52" East 177.9 feet along a line 9.5 feet normal distance Westerly of
and parallel with the West line of said Lot 5; thence Southeasterly along a
tangential curve to the left having a radius of 19.0 feet, 27.0 feet along said
curve through a central angle of 81 degrees 21'29" to the point of beginning,
containing 0.57 acres, more or less.
TOGETHER WITH the right to use the easements for ingress and egress as set out
in Document recorded June 6, 1990 Document #400074.
TOGETHER WITH the right to use the easements for access and parking as set out
in Document recorded February 24, ▇▇▇▇ ▇▇▇▇▇▇▇▇ #▇▇▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇-▇▇▇▇ Subdivision, according to the plat thereof
on file or of record in the office of County Recorder, ▇▇▇▇▇▇▇▇ County,
Minnesota.
TOGETHER with appurtenant easements for ingress, egress, regress and parking as
more particularly described in Document Number 335829, dated 11-27-91 and filed
12-6-91; and storm water drainage as more particularly described in Document
Number 364097, dated 3-4-96 and filed 3-11-96.
ONTARIO, OHIO
Situated, lying, and being in the City of Ontario, County of Richland, State of
Ohio, as more particularly described as being a portion of a 25.617 acre parcel
and a 9.558 acre parcel conveyed to Wal-Mart Properties, Inc. by deeds recorded
in O.R. Vol. 39, pages 541-546, being also within the Northeast and Southeast
Quarters of Section ▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇, ▇▇▇-▇, Village of Ontario,
Richland County, Ohio, and more fully described as follows:
Commencing at the Southeast corner of the Northeast Quarter of Section 23, said
point also being on the centerline of Lexington-Springmill Road (C.H. 133);
Thence N 88 deg., 44' 35" W., on the south line of said Northeast Quarter,
passing through an iron pin found at 45.00 feet, a
Exhibit A - Page 10
total distance of 514.04 feet to an iron pin set at the Principal Place of
Beginning for the parcel described herein;
1. Thence S. 01 deg., 16' 33" W., passing through an iron pin set on the
north right of way line of Park Avenue West at 650.38 feet, a total distance of
685.41 feet to the centerline of Park Avenue West;
2. Thence N. 86 deg., 27' 00" W., on said centerline, 112.50 feet;
3. Thence N. 03 deg., 37' 57" E., passing through an iron pin set on the
north right of way line of Park Avenue West, at 35.00 feet, a total distance of
191.17 feet to an iron pin set;
4. Thence N. 88 deg. 21' 00" W., 83.64 feet to an iron pin set;
5. Thence N. 01 deg., 39' 00" E., 18.00 feet to an iron pin set;
6. Thence N. 88 deg., 21' 00" W., 195.00 feet to an iron pin set on the
east line of a 1 acre parcel conveyed to ▇.▇. ▇▇▇▇▇▇▇▇ by deed recorded in Vol.
845, page 38;
7. Thence N. 01 deg., 39' 00" E., on said east line, passing through an
iron pin found at 470.00 feet marking the northeast corner of said ▇▇▇▇▇▇▇▇
parcel and the south line of said Northeast Quarter, a total distance of 520.38
feet to the existing exterior face of the south wall of a building;
8. Thence S. 88 deg., 15' 39" E., along said building face, 242.40 feet to
the southeast ▇▇▇▇▇ of said building;
9. Thence S. 01 deg., 39' 00' W., 48.34 feet to an iron pin set on the
south line of said Northeast Quarter;
10. Thence S. 88 deg., 44' 35" E., on said south line, 137.59 feet to the
point of beginning enclosing an area of 4.9611 subject to all legal highways,
easement and use restrictions. 4.6864 acres are within the Southeast Quarter,
and 0.2747 acres are within the Northeast Quarter of said Section 23.
P.P. 038-60-175-15-002
AND
Being a portion of a 9.558 acre parcel conveyed to Wal-Mart Properties, Inc. by
deed recorded in OR. Vol. 39, pages 545 being also within the Southeast Quarter
of Section ▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇-▇, ▇▇▇-▇, Village of Ontario, Richland
County, Ohio, and more fully described as follows:
Commencing at the Northeast corner of the Southeast Quarter of Section 23, said
Point also being on the centerline of Lexington-Springmili Road (C.H. 133);
Thence N. 88 deg., 44' 35'
Exhibit A - Page 11
W., on the north line of said Southeast Quarter, passing through an iron pin
found at 45.00 feet, a total distance of 514.04 feet to an iron pin set at a
northeasterly corner of a 4.9611 acre parcel; Thence S. 01 deg., 16' 33" W., on
the east line of said 4.9611 acre parcel, passing through an iron pin set on the
north right of way line of Park Avenue West at 650.38 feet, a total distance of
685.41 feet to the centerline of Park Avenue West; Thence N. 86 deg., 27' 00"
W., on said centerline, 112.50 feet to a corner of said 4.9611 acre parcel,
being also the Principal Place of Beginning for the parcel described herein:
1. Thence N. 86 deg., 27' 00" W., continuing on said centerline, 272.18
feet to the southeast corner of a 1 acre parcel conveyed to ▇.▇. ▇▇▇▇▇▇▇▇ by
deed recorded in Vol. 845, page 38;
2. Thence N. 01 deg., 39' 00" E., on the east line of said ▇▇▇▇▇▇▇▇
parcel, passing through a pipe found at 30.03 feet, a total distance of 200.03
feet to an iron pin set on a southwest corner of said 4.9611 acre parcel;
3. Thence S. 88 deg., 21' 00" E., 195.00 feet to an iron pin set;
4. Thence S. 01 deg., 39' 00" W., 18.00 feet to an iron pin set;
5. Thence S. 88 deg., 21' 00" E., 83.64 feet to an iron pin set;
6. Thence S. 03 deg., 37' 57" W., passing through an iron pin set on the
north right of way line of Park Avenue West at 156.17 feet, a total distance of
191.17 feet to the point of beginning enclosing an area of 1.2600 acre subject
to all legal highways, easements and use restrictions.
ALSO KNOWN AS:
PARCEL 1
Situated, in the Village of Ontario, Township of Springfield, County of Richland
and State of Ohio and being part of the Northeast and Southeast Quarters of
Section 23, Township 21-N, Range 19-W and more particularly described as
follows:
Commencing at a P.K. nail found at the Southeast corner of the Northeast Quarter
of Section 23, said P.K. nail also being on the centerline of
Lexington-Springmill Road (C.H. 133);
Thence North 88 degrees 44' 35" West, with the south line of said Northeast
Quarter of Section 23, a distance of 514.04 feet to a survey marker set at the
Point of Beginning for the parcel described herein;
Thence South 01 degrees 16' 15" West, passing through a survey marker set at
650.30 feet, a total distance of 685.33 feet to a railroad spike set on the
centerline of Park Avenue West (S.R. 430);
Thence North 860 27' 00" West, with the centerline of Park Avenue West (S.R.
430), a distance of 112.56 feet to a railroad spike set;
Exhibit A - Page 12
Thence North 3 degrees 38' 33" East, passing through a survey marker found with
cap stamped "Seasly" at 35.01 feet, a total distance of 191.17 feet to a survey
marker found with cap stamped "Seasly";
Thence North 88 degrees 17' 17" West, a distance of 83.64 feet to a survey
marker set;
Thence North 1 degrees 39' 00" East, a distance of 18.00 feet to a survey marker
found with cap stamped "Seasly";
Thence North 88 degrees 22' 39" West, a distance of 194.91 feet to a survey
marker found with cap stamped "Seasly" on the east line of lands now or formerly
owned by ▇.▇. ▇▇▇▇▇▇▇▇ as recorded in Official Records Volume 169, Page 606;
Thence North 1 degrees 39' 32" East, along said ▇▇▇▇▇▇▇▇ east line, passing
through a survey marker found at a distance of 469.93 feet, a total distance of
519.93 feet to the existing exterior face of the south wall of the Wal-Mart
building;
Thence South 88 degrees 19' 41" East, along the existing exterior face of the
south wall of the Wal-Mart building, a distance of 242.21 feet to the southeast
corner of said Wal-Mart building;
Thence South 1 degrees 39' 19" West, a distance of 48.24 feet to an iron pin
found;
Thence South 88 degrees 44' 35" East with the south line of the Northeast
Quarter of Section 23, a distance of 137.59 feet to the survey marker set at the
point of beginning containing 4.957 acres of land, more or less, of which 4.684
acres are in the Southeast Quarter and 0.273 acres are in the Northeast Quarter
of said Section 23, subject to all highways, easements and use restrictions of
record.
AND
PARCEL 2
Situated, in the Village of Ontario, Township of Springfield, County of Richland
and State of Ohio and being part of the Southeast Quarter of Section 23,
Township 21-N, Range 19-W and more particularly described as follows:
Commencing at a P.K. nail found at southeast corner of the northeast Quarter of
Section 23, said point also being on the centerline of Lexington-Springmill Road
(C.H. 133);
Thence North 88 degrees 44' 35" West with the south line of said Northeast
Quarter of Section 23, a distance of 514.04 feet to a survey marker set;
Thence South 10 degrees 16' 15" West passing through a survey marker set at
650.30 feet, a total distance of 685.33 feet to a railroad spike set on the
centerline of Park Avenue West (S.R. 430);
Exhibit A - Page 13
Thence North 86 degrees 27' 00" West with the said centerline of Park Avenue
West (S.R. 430), a distance of 112.56 feet to a railroad spike set, being the
point of beginning of the parcel herein described;
Thence continuing North 86 degrees 27'00" West with the centerline of Park
Avenue West (S.R. 430), a distance of 272.08 feet to a railroad spike set at the
southeast corner of a 1 acre parcel now or formerly owned by ▇.▇. ▇▇▇▇▇▇▇▇ as
recorded in Official Records, Volume 169, Page 606;
Thence North 1 degrees 39' 32" East along said ▇▇▇▇▇▇▇▇ east line, passing
through a 1" water pipe found at 30.02 feet, a total distance of 200.03 feet to
a survey marker found with cap stamped "Seasly";
Thence South 88 degrees 22' 39" East a distance of 194.91 feet to a survey
marker found with cap stamped "Seasly";
Thence South 1 degrees 39' 00" West a distance of 18.00 feet to a survey marker
set;
Thence South 88 degrees 17' 17" East a distance of 83.64 feet to a survey marker
found with cap stamped "Seasly";
Thence South 3 degrees 38' 33" West, passing through a survey marker found with
cap stamped "Seasly" at a distance of 156.16 feet, a total distance of 191.17
feet to the railroad spike set at the point of beginning containing 1.260 acres
of land, more or less, subject to all highways, easements and use restrictions
of record.
Together with an appurtenant easement for parking, ingress, egress and access
over and across a portion of Tract 1, as more particularly described in Volume
212, Page 831 of Richland County Records.
OWOSSO, MICHIGAN
Land situated in the County of Shiawassee, Township of Caledonia, State of
Michigan, is described as follows:
Parcel 1:
Part of the Southwest 1/4 of the Southeast 1/4 of Section 17, Township 7 North,
Range 3 East, Caledonia Township, Shiawassee County, Michigan, described as
beginning at a point which is North 01 degrees 11 minutes 20 seconds West, 53.01
feet to the Northerly right-of-way line of Michigan State Highway M-21 and on
said Northerly right-of-way line North 87 degrees 48 minutes 06 seconds East,
269.36 feet and North 00 degrees 53 minutes 20 seconds East 15.02 feet and North
87 degrees 48 minutes 06 seconds East 34.76 feet from the South 1/4 corner of
said Section 17; thence from the point of beginning thus determined run North 00
degrees 00 minutes 00 seconds East 337.99 feet; thence South 87 degrees 48
minutes 06 seconds West, 125 feet, thence North 00 degrees 00 minutes 00 seconds
East 657.00 feet, thence East 450.00 feet to the East line of the West 1/2 of
the West 1/2 of the Southeast 1/4 of said Section 17; thence South 00
Exhibit A - Page 14
degrees 53 minutes 20 seconds West on said East line 993.44 feet to said
Northerly right-of-way line; thence on said Northerly right-of-way line South 87
degrees 48 minutes 06 seconds West 294.90 feet and North 00 degrees 53 minutes
and 20 seconds East 15.02 feet and South 87 degrees 48 minutes 06 seconds West,
15.24 feet to the point of beginning.
Parcel 2:
Part of the Southeast 1/4 of the Southwest 1/4 of Section 17, Township 7 North,
Range 3 East, Caledonia Township, Shiawassee County, Michigan, described as
beginning at a point on the Northerly right of way line of State ▇▇▇▇▇▇▇ ▇-▇▇,
which is North 90 degrees 00 minutes 00 seconds West on the South line of said
Section 17, a distance of 443.88 feet and North 00 degrees 00 minutes 00 seconds
East perpendicular to said South line a distance of 53.00 feet and North 90
degrees 00 minutes 00 seconds East parallel with said South line a distance of
85.00 feet from the South 1/4 corner of said Section 17, thence North 14 degrees
02 minutes 01 seconds West, 20.61 feet, thence North 00 degrees 00 minutes 00
seconds East, perpendicular to said South line a distance of 195.00 feet, thence
North 90 degrees 00 minutes 00 seconds East parallel with said South line a
distance of 195.00 feet, thence South 00 degrees 00 minutes 00 seconds West,
perpendicular to said South line, a distance of 215.00 feet to the Northerly
right of way line of State ▇▇▇▇▇▇▇ ▇-▇▇, thence South 90 degrees 00 minutes 00
seconds West, parallel with said South line a distance of 190.00 feet to the
point of beginning.
TOGETHER with an appurtenant easement for Access, Ingress and Egress and
Detention Basin recorded in Liber 759, page 60.
STURGIS, MICHIGAN
The land referred to in this Commitment, situated in the County of St. ▇▇▇▇▇▇,
Township of Sturgis, State of Michigan, is described as follows:
PARCEL A:
All that part of the Southwest 1/4 of Section ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 10
West, Sturgis Township, St. ▇▇▇▇▇▇ County, Michigan described as follows:
Commencing at the Southwest ▇▇▇▇▇ of said Section 12 and running thence North 00
degrees 23 minutes 14 seconds West, along the Section line, 882.43 feet to the
point of beginning of this description; the boundary runs thence North 00
degrees 23 minutes 14 seconds West, along the Section line, 180.0 feet; thence
North 89 degrees 52 minutes 47 seconds East, parallel with the South line of
said Section, 246.0 feet; thence South 00 degrees 23 minutes 14 seconds East,
180.00; feet thence South 89 degrees 52 minutes 47 seconds West, 246.0 feet to
the point of beginning.
PARCEL B:
Situated in the ▇▇▇▇▇▇▇▇▇ ▇/▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 10 West,
Sturgis Township, St. ▇▇▇▇▇▇ County, Michigan, being an easement over existing
drives and parking lot on parts of tracts described in Deed Records Volume 620,
page 590, and Deed Records Volume 620, page 591, in the office of the St. ▇▇▇▇▇▇
County Recorder, said easement being more particularly described as follows:
Commencing at a monument box found at the Southwest corner of said 1/4; thence
North 00 degrees 23 minutes 14 seconds West 838.19 feet along the
Exhibit A - Page 15
West line of said 1/4, in Centreville Road, to a point, being the True Point of
beginning for the easement herein described; thence North 89 degrees 52 minutes
47 seconds East 250.88 feet to a point of curve; thence along said curve,
concave Northwesterly having a radius of 25.00 feet, through a central angle of
90 degrees 16 minutes 01 seconds, an arc distance of 39.39 feet to a point;
thence North 00 degrees 23 minutes 14 seconds West 169.13 feet, to a point;
thence South 89 degrees 52 minutes 47 seconds West 30.00 feet, to a point;
thence North 00 degrees 23 minutes 14 seconds West 30.00 feet along the East
line of a 1.017 acre tract, to a point; thence North 89 degrees 52 minutes 47
seconds East 30.00 feet, to a point; thence North 00 degrees 23 minutes 14
seconds West 135.72 feet, to a point of curve; thence along said curve, concave
Southwesterly, having a radius of 25.00 feet through a central angle of 89
degrees 36 minutes 46 seconds an arc distance of 39.10 feet, to a point; thence
South 90 degrees 00 minutes 00 seconds West 167.87 feet to a point of curve;
thence along said curve, concave Southeasterly, having a radius of 45.00 feet,
through a central angle of 90 degrees 23 minutes 14 seconds, an arc distance of
70.99 feet, to a point; thence South 89 degrees 36 minutes 46 seconds West 38.00
feet to a point; thence North 00 degrees 23 minutes 14 seconds West 115.56 feet,
along the West line of said 1/4 in said road, to a point; thence North 90
degrees 00 minutes 00 seconds West 26.00 feet to a point of curve; thence along
said curve, concave Northeasterly, having a radius of 30.00 feet, through a
central angle of 90 degrees 00 minutes 00 seconds, an arc distance of 47.12
feet, to a point; thence North 90 degrees 00 minutes 00 seconds East 250.20
feet, to a point; thence South 00 degrees 23 minutes 14 seconds East 464.73
feet, to a point; thence South 89 degrees 52 minutes 47 seconds West 222.79 feet
to a point of curve; thence along said curve, concave Southeasterly, having a
radius of 45.00 feet, through a central angle of 80 degrees 32 minutes 38
seconds, an arc distance of 63.26 feet, to a point thence South 89 degrees 52
minutes 47 seconds West 38.65 feet, to a point; thence North 00 degrees 23
minutes 14 seconds West 77.61 feet, along the West line of said 1/4 in said
road, to the point of beginning.
PARCEL C:
Situated in the ▇▇▇▇▇▇▇▇▇ ▇/▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 10 West,
Sturgis Township, St. ▇▇▇▇▇▇ County, Michigan, being a parking easement over
part of a tract described in Deed Records Volume 620, page 591, in the Office of
the St. ▇▇▇▇▇▇ County Recorder, and said easement being more particularly
described as follows: Commencing at a monument box found at the Southwest corner
of said 1/4; thence North 00 degrees 23 minutes 14 seconds West 838.19 feet
along the West line of said 1/4, in Centreville Road, to a point, being the True
point of beginning for the easement herein described; thence continuing North 00
degrees 23 minutes 14 seconds West 44.24 feet along the West line of said 1/4,
in Centreville Road, to a point, witness and iron pin set North 89 degrees 52
minutes 47 seconds East 50.00 feet; thence North 89 degrees 52 minutes 47
seconds East 246.00 feet along the South line of a 1.017 acre tract to an iron
pin set; thence South 00 degrees 23 minutes 14 seconds East 44.24 feet to a
point; thence South 89 degrees 52 minutes 47 seconds West 246.00 feet, to the
point of beginning.
Also known as:
The land situated in the County of St. ▇▇▇▇▇▇, Township of Sturgis, State of
Michigan, is described as follows:
Exhibit A - Page 16
PARCEL A:
All that part of the Southwest 1/4 of Section ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 10
West, Sturgis Township, St. ▇▇▇▇▇▇ County, Michigan described as follows:
Commencing at the Southwest corner of said Section 12 and running thence North
00 degrees 23 minutes 14 seconds West, along the Section line, 882.43 feet to
the point of beginning of this description; the boundary runs thence North 00
degrees 23 minutes 14 seconds West, along the Section line, 180.0 feet; thence
South 89 degrees 44 minutes 48 seconds East, parallel with the South line of
said Section, 246.0 feet; thence South 00 degrees 00 minutes 49 seconds East,
180.00 feet; thence South 89 degrees 44 minutes 48 seconds West, 246.0 feet to
the point of beginning.
PARCEL B:
Situated in the ▇▇▇▇▇▇▇▇▇ ▇/▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 10 West,
Sturgis Township, St. ▇▇▇▇▇▇ County, Michigan, being an easement over existing
drives and parking lot on parts of tracts described in Deed Records Volume 620,
page 590, and Deed Records Volume 620, page 591, in the office of the St. ▇▇▇▇▇▇
County Recorder, said easement being more particularly described as follows:
Commencing at a monument box found at the Southwest corner of said 1/4; thence
North 00 degrees 23 minutes 14 seconds West 838.19 feet along the West line of
said 1/4, in Centreville Road, to a point, being the True Point of beginning for
the easement herein described; thence North 89 degrees 44 minutes 48 seconds
East 250.88 feet to a point of curve; thence along said curve, concave
Northwesterly having a radius of 25.00 feet, through a central angle of 90
degrees 16 minutes 01 seconds, an arc distance of 35.44 feet to a point; thence
North 00 degrees 00 minutes 49 seconds West 169.13 feet, to a point; thence
South 89 degrees 52 minutes 47 seconds West 30.00 feet, to a point; thence South
00 degrees 00 minutes 49 seconds West 29.99 feet along the East line of a 1.017
acre tract, to a point; thence South 89 degrees 44 minutes 48 seconds East 30.00
feet, to a point; thence North 00 degrees 00 minutes 49 seconds West 135.72
feet, to a point of curve; thence along said curve, concave Southwesterly,
having a radius of 25.00 feet through a central angle of 89 degrees 36 minutes
46 seconds an arc distance of 35.24 feet, to a point; thence North 89 degrees 37
minutes 35 seconds West 167.87 feet to a point of curve; thence along said
curve, concave Southeasterly, having a radius of 45.00 feet, through a central
angle of 90 degrees 23 minutes 14 seconds, an arc distance of 63.85 feet, to a
point; thence North 89 degrees 37 minutes 35 seconds West 38.00 feet to a point;
thence North 00 degrees 23 minutes 14 seconds West 115.56 feet, along the West
line of said 1/4 in said road, to a point; thence South 89 degrees 37 minutes 35
seconds East 26.00 feet to a point of curve; thence along said curve, concave
Northeasterly, having a radius of 30.00 feet, through a central angle of 90
degrees 00 minutes 00 seconds, an arc distance of 42.43 feet, to a point; thence
South 89 degrees 37 minutes 35 seconds East 250.20 feet, to a point; thence
South 00 degrees 00 minutes 49 seconds East 464.73 feet, to a point; thence
North 89 degrees 44 minutes 48 seconds West 222.79 feet to a point of curve;
thence along said curve, concave Southeasterly, having a radius of 45.00 feet,
through a central angle of 80 degrees 32 minutes 38 seconds, an arc distance of
58.18 feet, to a point thence North 89 degrees 44 minutes 48 seconds West 38.65
feet, to a point; thence North 00 degrees 23 minutes 14 seconds West 77.61 feet,
along the West line of said 1/4 in said road, to the point of beginning.
PARCEL C:
Situated in the ▇▇▇▇▇▇▇▇▇ ▇/▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 10 West,
Sturgis Township, St. ▇▇▇▇▇▇ County, Michigan, being a parking easement over
part of a tract described
Exhibit A - Page 17
in Deed Records Volume 620, page 591, in the Office of the St. ▇▇▇▇▇▇ County
Recorder, and said easement being more particularly described as follows:
Commencing at a monument box found at the Southwest corner of said 1/4; thence
North 00 degrees 23 minutes 14 seconds West 838.19 feet along the West line of
said 1/4, in Centreville Road, to a point, being the True point of beginning for
the easement herein described; thence continuing North 00 degrees 23 minutes 14
seconds West 44.24 feet along the West line of said 1/4, in Centreville Road, to
a point, witness and iron pin set North 89 degrees 44 minutes 48 seconds East
50.00 feet; thence North 89 degrees 44 minutes 48 seconds East 246.00 feet along
the South line of a 1.017 acre tract to an iron pin set; thence South 00 degrees
00 minutes 49 seconds East 44.24 feet to a point; thence South 89 degrees 44
minutes 48 seconds East 246.00 feet, to the point of beginning.
TOGETHER with an appurtenant Multiple Easement Agreement for Access, Parking,
Storm Water Drainage and Utilities recorded March 22,1994, in Liber 699, page
597.
Exhibit A - Page ▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Rent Way #209
U.S. Nails (Nail Salon)
Advance America #1353
Dollar Tree Store #1125
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Tax Service
Subway #▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ Music
Big Kids CD's Games Inc.
Lovely Nail
Casual Male (Big & Tall) #9484
CHANUTE, KANSAS
Maurices # 1081
The Musicland Group Inc (On Cue) AKA ▇▇▇ ▇▇▇▇▇
Global Communications
GNC # ▇▇▇▇
▇▇▇▇▇▇ # ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇'▇ Jewelers
Sears Optical #1430
Fiesta Salons, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Tax Service
CATO #410
Teacher's Credit Union
Radio Shack #01-6738
GNC #5621
Advance America #5561
American Rentals (Note: Received Closing Notice letter from American
Rentals dated 3/4/03)
DECATUR, ILLINOIS
Sears Optical # 1433
Famous Hair #75
On Cue/The Musicland Group, Inc./▇▇▇ ▇▇▇▇▇
Cato # 409
Exhibit B - Page 1
DECATUR, INDIANA
Dollar Tree # 448
Maurices # 1242
EL DORADO, KANSAS
Maurices # 1081
The Musicland Group Inc (On Cue) AKA ▇▇▇ ▇▇▇▇▇
Global Communications
GNC # ▇▇▇▇
▇▇▇▇▇▇ # ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Sears Optical # 1433
Famous Hair #75
On Cue/The Musicland Group, Inc./▇▇▇ ▇▇▇▇▇
▇▇▇▇ # ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Famous Footwear # 1389
Payless ShoeSource # 833
GNC # 3617
Cingular Wireless
Bath & Body Works #42016729
Big Kids CD's & Games
Godfather's Pizza # 14003
Fashion Bug # 3054
▇▇▇▇▇▇▇▇ Check Advance # ▇▇▇▇
▇▇▇▇-▇ ▇▇▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇ Buffet
Heights Finance
BoRics # ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Vista Acquisitions, Inc.
Fantastic ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Dollar Tree # 813
Maurices # 1310
Exhibit B - Page 2
ONTARIO, OHIO
Dollar Tree Stores # 039
Fashion Bug # 2779
Famous Footwear # 973
Heavenly Ham
▇▇▇▇▇ ▇▇▇▇▇ #00238733
Famous Hair #66
Shawnee Optical
It's About Games
American General Finance
Hong Kong Buffet
Car Audio
Play It Again Sports
Subway #13971
Beneficial Ohio Co. (Household Finance)
Rent Way #294
Advanced America #401
Scrap N Stamp Inc
VIP Nails (Q Nails)
OWOSSO, MICHIGAN
Rent-a-Center # 1679
Grondin's
Quality Temp
▇▇▇▇▇ Beauty # 1611
Maurices # 0731
GNC # 3568
Dollar Tree # 408
Fashion Bug # 2956
Navy/Marines (#110 & 116 one lease)
Musicland Group Inc. (On Cue)
Admiral Discount Tobacco
▇▇▇▇▇▇▇ Insurance
American General Finance
Check 'n Go of Michigan
Fantastic ▇▇▇▇
Bath & Body Works # 42015219
STURGIS, MICHIGAN
Rentway
Mauricea
Exhibit B - Page ▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Snow Maintenance Contract - Moo Moo Lawn Care: Fall 2002 thru Spring
2003
Parking Lot Sweeping - Jack's Excavating & Trucking LLC: Proposal dated
03/17/03
Lawn Mowing - Earthscapes Landscaping Inc.: Purchase Order dated
04/22/03
Roof Warranty - Duro-Last 15 Year Warranty #107401 dated 05/12/95
Electric - American Electric Power: Invoices dated 03/21/01 through
09/18/03.
Sanitation - ▇▇▇▇▇▇ Charter Township: Invoices from 04/01/01 to
04/30/02 (when vacant). Currently paid by tenant.
Gas - Michigan Gas Utilities: Invoices from 04/06/01 to 03/11/02 (when
vacant).
Currently paid by tenant.
CHAMPAIGN, ILLINOIS
Snow Maintenance Contract - C-U Maintenance, Inc.: Fall 2001 through
Spring 2002 contract with renewal letter dated 10/15/02.
Parking Lot Sweeping; Snow Plowing; Lawn Mowing - C-U Maintenance,
Inc.: Invoices dated 052/05/02 through 03/06/03.
Roof Warranty - Duro-Last 15 Year Roof Warranty #95495 dated 09/01/94
Electric - Illinois Power: Invoices from 03/01/01 through 09/04/03
(payment posted date).
Water & Sewer - Urbana & Champaign Sanitary District: Invoices from
01/05/01 to 09/03/03
CHANUTE, KANSAS
Snow Maintenance Contract - ▇▇▇▇▇▇▇▇ Lawn & Snow Removal Service Fall
2002 thru Spring 2003
Parking Lot Sweeping - Adam's Parking Lot Service Invoices dated
04/25/02 thru 03/26/03
Lawn Mowing - ▇▇▇▇▇▇▇▇'▇ Mowing Service Invoices dated 05/06/02 thru
09/01/02
Roof Warranty - Duro-Last 15 Year Warranty #000866 dated 08/28/95
Electric, Water & Sewer, Gas - City of Chanute: Invoices dated 02/08/01
through 09/09/03.
CRAWFORDSVILLE, INDIANA
Snow Maintenance Contract with The Yard ▇▇▇▇▇▇ - Fall 2003 through
Spring 2004
Parking Lot Sweeping, Lawn Mowing, etc. with The Yard ▇▇▇▇▇▇ (as
needed, per invoice)
Parking Lot Sweeping, Lawn Mowing, etc. with The Yard ▇▇▇▇▇▇ (as
needed, per invoice)
Window Cleaning with ▇▇▇▇ ▇▇▇▇▇ Window Cleaning (as needed, per
invoice)
Exhibit C - Page 1
Roof warranty from Red Shield Firestone Building Products Company (10
year warranty #E43104 beginning September 21,1996)
Electric service from Crawfordsville Electric Light & Power (usage
basis)
Gas service from Vectren Energy Delivery (usage basis)
DECATUR, ILLINOIS
Snow Maintenance Contract - ▇▇▇▇▇▇ Developing - Fall 2003 thru Spring
2004
Snow Maintenance Contract - ▇▇▇▇▇▇ Developing - Fall 2002 thru Spring
2003
Parking Lot Sweeping, Lawn Mowing Etc - ▇▇▇▇▇▇▇ Management Services
Inc. Invoices dated 04/12/02 thru 10/01/03
Roof Warranty - Duro-Last 15 Year Warranty # 003042 dated 11/09/95
Electric - Cinergy: Invoices dated 10/01/01 through 09/09/03
DECATUR, INDIANA
Snow Maintenance Contract - ▇▇▇▇▇▇▇▇'▇ Landscaping, Inc.: Contract
dated October 24, 2003. (Note: ▇▇▇▇▇▇▇▇' Landscaping operating in
Decatur, IN has been purchased by R & M Landscaping and Excavating LLC.
The new contractor will be under the original ▇▇▇▇▇ snow contract)
Parking Lot Sweeping & Lawn Care - ▇▇▇▇▇▇▇ Services, Inc.: Invoices
dated 04/01/02 through 09/30/03.
Roof Warranty - Duro-Last Roofing 15 Year Roofing Warranty # 193207
dated 07/25/97.
Roof Warranty - Duro-Last Roofing 15 Year Roofing Warranty # 156885
dated 08/13/96.
Electric- Illinois Power: Invoices from 03/23/01 through 10/01/03.
Gas -Nipsco: Invoices from 06/05/01 to 09/03/03.
EL DORADO, KANSAS
Snow Maintenance Contract - Custom Lawn Services Inc.: Contract dated
October 23, 2003.
Parking Lot Sweeping - Sparkle Cleaning: Invoices dated Dec 2002
through Sept 2003.
Lawn Maintenance - Custom Lawn Services Inc.: Invoices dated 09/01/03
through 09/01/03.
Roof Warranty - Duro-Last Roofing 15 Year Roofing Warranty #5050 dated
01/31/96.
Electric & Gas - Kansas Gas Service/Westar Energy: Invoices from
02/01/01 through 09/08/03.
Water & Sewer - City of El Dorado: Invoices from 02/14/01 to 09/18/03.
HUNTINGTON, INDIANA
Snow Maintenance Contract - ▇▇▇▇▇▇ Developing - Fall 2003 thru Spring
2004
Snow Maintenance Contract - ▇▇▇▇▇▇ Developing - Fall 2002 thru Spring
2003
Exhibit C - Page 2
Parking Lot Sweeping, Lawn Mowing Etc - ▇▇▇▇▇▇▇ Management Services
Inc. Invoices dated 04/12/02 thru 10/01/03
Roof Warranty - Duro-Last 15 Year Warranty # 003042 dated 11/09/95
Electric - Cinergy: Invoices dated 10/01/01 through 09/09/03
JACKSONVILLE, ILLINOIS
Snow Maintenance Contract - Hembrough Inc - Fall 2003 thru Spring 2004
Lawn Maintenance: Hembrough Inc - 2003 Service Contract dated 03/27/03
Parking Lot Sweeping - ▇▇▇▇▇▇'▇ Sweeping Service - Invoices dated
04/2002 thru 08/2003
Alarm Monitoring - Central Illinois Security Invoices dated 05/01/02
to 09/01/03
Utilities -- ▇▇▇▇-▇▇▇▇▇▇ General Contractors: Invoices dated 04/16/02
to 07/14/03
Roof Warranty - Duro-Last 15 Year Warranty # 159854 dated
09-28-95
Electric - Illinois Power: Invoices dated 03/21/01 to 09/15/03
Water & Sewer - Municipal Utilities/City of Jacksonville: Invoices
dated 02/15/01 to 08/29/03
LITTLE FALLS, MINNESOTA
Snow Maintenance Contract - Richard's Lawn & Garden Service - Fall 2003
thru Spring 2004
Snow Maintenance Contract - Richard's Lawn & Garden Service - Fall 2001
thru Spring 2002 with Renewal letter dated 10/15/02 and invoices dated
12/01/02 to 03/01/03
Parking Lot Sweeping, Lawn Mowing Etc - Richard's Lawn & Garden Service
Work Order dated 05/10/02 to 10/14/02 and 04/21/02 thru 08/12/03
Roof Warranty - Duro-Last 15 Year Limited Warranty # RD008439 beginning
10/25/96 Paid by tenants
ONTARIO, OHIO
Snow Maintenance Contract - ▇▇▇▇▇ Sweeping - Fall 2003 thru Spring 2004
Parking Lot Sweeping - ▇▇▇▇ ▇▇▇▇▇ Sweeping & Snow plowing - Invoices
dated 01/01/03 thru 09/01/03
Fire Line - Sprint: Invoices dated 05/10/02 to 09/10/03
Roof Warranty - Duro-Last 15 Year Warranty # DL211900 dated 03-09-98
Roof Warranty - Duro-Last 15 Year Warranty # 74870 dated 07-28-93
Electric - Ohio Edison: Invoices dated 03/19/01 to 09/17/03
Water & Sewer - Village of Ontario: Invoices dated 09/04/01 to 12/04/01
OWOSSO, MICHIGAN
Snow Maintenance Contract - Sunburst Garden, Inc. - Fall 2003 thru
Spring 2004
Snow & Lawn Maintenance: Sunburst Garden, Inc. - Invoices dated
01/10/03 through 08/19/03
Parking Lot Sweeping: Curbco: Invoices dated 07/07/03 to 09/03/03
Exhibit C - Page 3
Roof Warranty - Duro-Last 15 Year Warranty # 102654 dated 09-23-94
Roof Warranty - Duro-Last 15 Year Warranty # DL76900 dated 11-18-93
Electric - Consumer Energy: Invoices dated 04/02/01 to 09/30/03
Township Utility Authority: Owosso Twp-Caledonia Twp Utility Dept:
Invoice dated 04/01/03 to 09/30/03
STURGIS, MICHIGAN
Snow Maintenance Contract - Boo Boo's Lawn & Snowplowing - Fall 2003
thru Spring 2004
Lawn Maintenance: ▇▇▇▇▇▇'▇ Lawn Care & Snowplowing - Invoices dated
04/28/02 through 10/27/02 and 04/25/03 to 09/25/03
Roof Warranty - Duro-Last 15 Year Warranty # DL94780 dated 06-01-94
Electric - City of Sturgis: Invoices showing usage from Mar/Apr 2001
through 09/09/03
Exhibit C - Page 4
EXHIBIT D
RENT ROLL
[To be attached.]
Exhibit D - Page 1
EXHIBIT E
ENVIRONMENTAL ASSESSMENTS
BENTON HARBOR, MICHIGAN
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 28,1998.
Addendum to Phase I ESA report prepared by Abonmarche Environmental
Inc. dated May 22,1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated September 30,2002.
CHAMPAIGN, ILLINOIS
Phase I Environmental Site Assessment prepared by Abonmarche
Environmental Inc. dated April 24,1998.
Addendum to the Phase I ESA Report prepared by Abonmarche Environmental
Inc. dated May 27,1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated November 27, 2002.
Potential Phase II ESA Activities and Supplemental Services letter
submitted by The Mannik & ▇▇▇▇▇ Group, Inc. dated January 16,2003.
Subsurface Investigation Report prepared by The Mannik & ▇▇▇▇▇ Group,
Inc. dated April 30, 2003.
CHANUTE, KANSAS
Phase I Environmental Site Assessment prepared by Abonmarche
Environmental Inc. dated April 24,1998.
Addendum to Phase I ESA Report prepared by Abonmarche Environmental
Inc. dated May 27,1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated October 25,2002.
CRAWFORDSVILLE, INDIANA
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 24,1998.
Addendum to Phase I ESA report prepared by Abonmarche Environmental
Inc. dated May 27, 1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated November 15,2002.
Exhibit E - Page 1
DECATUR, ILLINOIS
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 24,1998.
Addendum to Phase I ESA report prepared by Abonmarche Environmental
Inc. dated May 27,1998.
Phase I Environmental Site Assessment prepared by Abonmarche
Environmental Inc. dated March 29,1999.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated November 1, 2002.
Proposal for Limited Subsurface Investigation prepared by The Mannik &
▇▇▇▇▇ Group, Inc. dated January 16,2003.
Revision to Phase I ESA prepared by The Mannik & ▇▇▇▇▇ Group, Inc.
dated April 3, 2003.
DECATUR, INDIANA
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 28, 1998.
Addendum to Phase I ESA report prepared by Abonmarche Environmental
Inc. dated May 22, 1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated November 8, 2002.
EL DORADO, KANSAS
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 24,1998.
Addendum to Phase I ESA report prepared by Abonmarche Environmental
Inc. dated May 27,1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated October 25,2002.
HUNTINGTON, INDIANA
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 28,1998.
Addendum to Phase I ESA report prepared by Abonmarche Environmental
Inc. dated May 22,1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated November 8,2002.
JACKSONVILLE, ILLINOIS
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 24,1998.
Addendum-to Phase I FSA report prepared by Abonmarche Environmental
Inc. dated May 27, 1998.
Exhibit E - Page 2
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated October 25,2002.
LITTLE FALLS, MINNESOTA
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 24,1998.
Addendum to Phase I ESA report prepared by Abonmarche Environmental
Inc. dated May 28,1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated October 15,2002.
Potential Phase II Activities and Supplemental Services letter from The
Mannik & ▇▇▇▇▇ Group, Inc. dated December 18,2002.
Resolution of Potential Former Residential Heating Oil Tank as a REC
letter from The Mannik & ▇▇▇▇▇ Group, Inc. dated January 6, 2003.
ONTARIO, OHIO
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 30,1998.
Addendum to Phase I ESA report prepared by Abonmarche Environmental
Inc. dated May 22,1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated October 15,2002.
OWOSSO, MICHIGAN
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 27,1998.
Addendum to Phase I ESA report prepared by Abonmarche Environmental
Inc. dated May 22,1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated September 30,2002.
STURGIS, MICHIGAN
Phase I Environmental Site Assessment report prepared by Abonmarche
Environmental Inc. dated April 29, 1998.
Addendum to Phase I ESA report prepared by Abonmarche Environmental
Inc. dated May 28, 1998.
Phase I Environmental Site Assessment prepared by The Mannik & ▇▇▇▇▇
Group, Inc. dated September 30,2002.
Exhibit E - Page 3
EXHIBIT F
ESTOPPEL FORM
[Date]
To: ▇. ▇. ▇▇▇▇▇▇▇▇, Inc., or its assigns ("Buyer")
▇▇▇▇▇ Fargo Bank ("Lender")
Re: Lease dated ___________________, ______ (the "Lease") executed between
____________________, as landlord, and_____________ ("Tenant"), for
those premises located at______________________
Gentlemen:
The undersigned Tenant understands that you or your assigns intend to
acquire that property located in_____________________________________commonly
known as ____________________________(the "Property"), from ▇▇▇▇▇ Midwest,
L.L.C. ("Landlord"). The undersigned Tenant does hereby certify to you as
follows:
A. The Lease consists only of the documents identified
in items 1 and 2 on Schedule A attached hereto ("Schedule A").
B. The Lease is in full force and effect and has not
been modified, supplemented, or amended except as indicated in Item 2 on
Schedule A.
C. Tenant has not given Landlord written notice of any
dispute between Landlord and Tenant, and there are no uncured defaults on the
part of Landlord under the Lease or any events that have occurred that, with the
giving of notice or the passage of time, or both, would result in a default by
Landlord under the Lease.
D. Tenant does not claim any offsets or credits against
rents payable under the Lease.
E. Tenant has not paid a security or other deposit with
respect to the Lease, except as shown in Item 3 on Schedule A.
F. The current base rent, percentage rent and operating
cost reimbursements under the Lease is as shown in Item 4 on Schedule A.
G. Tenant has not paid any rentals in advance except for
the current month of __________ 200_, and there is no free rent or other
concession remaining under the Lease.
H. The term of the lease will terminate on the dates
indicated in Item 5 on Schedule A. There are no rights to renew or extend the
initial term of the Lease, except as set forth in Item 5 on Schedule A.
Exhibit F - Page 1
I. Except as shown in Item 6 on Schedule A, Tenant has
no right of first refusal or option to lease space in addition to the premises
demised under the Lease.
J. Except as shown in Item 6 on Schedule A, Tenant has
no right of first refusal or option to purchase the Property or any part
thereof.
K. Tenant is not the subject of a bankruptcy case or any
other insolvency proceeding and does not presently contemplate filing for relief
under the Bankruptcy Code or any other debtor relief law.
L. Landlord has completed all construction and Landlord
has no current obligation to pay for any tenant improvements or allowances,
except as set forth in Item 7 on Schedule A.
M. Tenant is in possession under the terms of the Lease.
N. The person executing this certification is duly
authorized to execute the same on behalf of Tenant, and this certificate is and
shall be binding on the Tenant, its successors and assigns.
O. Tenant acknowledges that Buyer and Lender will rely
on the statements contained herein in purchasing the property which is the
subject of this Lease. This certification is for the benefit of the Buyer, and
its successors and assigns, and any lender of Buyer or its successors and
assigns.
________________________________
By:_____________________________
Title: _________________________
Exhibit F - Page 2
SCHEDULE A
1. Lease:
Landlord: ________________________
Tenant: ________________________
Premises ________________________
Date: ________________________
2. Modifications and/or Amendments
(a) Date: ________________________
(b) Date: ________________________
(c) Date: ________________________
3. Security Deposit
(currently held by
Landlord) $________________________
4. Monthly Base Rent
for current term
of Lease $________________________
Percentage Rent ________________________%
Operating Cost
Reimbursement $________________________ per month for current year
5. Commencement Date ________________________
Expiration Date ________________________
Renewal Options: ________________________
6. Right of First Refusal to Lease to Purchase
or option ___________ ___________
(if none, state "None")
If "yes", does such right or option still exist or has such right or
option been exercised or waived?
Still Exists _______ Exercised _________ Waived ___________
7. Unpaid Tenant Improvements or Allowances ______________________________
_______________________________________________________________________
Schedule A - Page 1
EXHIBIT G
JOINT ESCROW INSTRUCTIONS
This ESCROW AGREEMENT (the "Escrow Agreement") is made and entered into
on this____________day of July, 2003, by and among ▇▇▇▇▇ Midwest, L.L.C., a
Michigan limited liability company ("Seller"), ▇. ▇. ▇▇▇▇▇▇▇▇, Inc. ("Buyer"),
and Commonwealth Land Title Insurance Company ("Escrow Agent").
RECITALS
Seller and Buyer have entered into that certain Purchase and Sale
Agreement dated of even date herewith, (the "Agreement"), providing for the sale
by Seller of the Property described in the Agreement (collectively, the
"Properties"): and
The parties wish to enter into this Escrow Agreement to provide for (1)
the holding and disposition of the ▇▇▇▇▇▇▇ money under the Agreement, and (2)
the closing of the transactions contemplated by the Agreement; and
Capitalized terms used but not defined herein shall have the meanings
set forth in the Agreement.
NOW, THEREFORE, in consideration of the mutual undertakings hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged, the parties hereto agree
as follows:
1. On or before__________200_, Buyer shall deliver to Escrow
Agent funds in the amount of $100,000 (the "Initial ▇▇▇▇▇▇▇ Money").
2. On or before January 6, 2004 at 5:00 p.m. (Chicago time) (the
"Approval Date") Buyer may deliver to Escrow Agent a notice in the form of
Schedule 1 attached hereto that Buyer has elected to terminate the Agreement
pursuant to its terms (the "Termination Notice"). In the event that Buyer shall
deliver to Escrow Agent the Termination Notice on or before the Approval Date,
Escrow Agent shall promptly deliver to Buyer the ▇▇▇▇▇▇▇ Money, together with
all interest earned thereon, and this Escrow Agreement shall terminate. If Buyer
elects to proceed with the purchase, Buyer shall also deposit with the Escrow
Agent no later than January 6, 2004, the additional sum of $50,000 (the
"Additional ▇▇▇▇▇▇▇ Money") to be added to the Initial ▇▇▇▇▇▇▇ Money
(collectively, the "▇▇▇▇▇▇▇ Money"). In the event Buyer either (i) fails to
notify the Seller of the Buyer's election to terminate the Agreement prior to
the Approval Date; or (ii) fails to deposit the Additional ▇▇▇▇▇▇▇ Money as
required in accordance with the terms of the Agreement, Escrow Agent shall
promptly deliver to Buyer the ▇▇▇▇▇▇▇ Money, together with all interest earned
thereon, and this Escrow Agreement shall terminate.
3. Unless terminated pursuant to Paragraph 2 above, on the
applicable Closing Dates set forth in the Agreement, the respective parties
shall perform the following obligations:
Exhibit G - Page 1
(a) Seller will deposit or will cause to be deposited
with the Escrow Agent the documents required by Section 8(C)
of the Agreement.
(b) Buyer will deposit or will cause to be deposited the
following:
(i) Those documents required by Section 8(D) of
the Agreement; and
(ii) Wire transfer of funds in the amount
required to close as shown on the Closing Statement (as
hereinafter defined), pursuant to the wire transfer
instructions as shown on Schedule 2 attached hereto.
(c) Buyer and Seller (or their respective attorneys) will
jointly deposit a Closing and Proration Statement (the
"Closing Statement").
4. When Escrow Agent has received all of the deposits listed in
Section 3 above and is prepared to issue Commonwealth Land Title Insurance
Company Owner's Policies of Title Insurance ("Title Policies") having effective
dates as of the date the Deeds are recorded, in the amount of the Allocated
Purchase Price and insuring the title of Buyer in the applicable Property in
accordance with instructions of Buyer, Escrow Agent is then authorized and
instructed to proceed as follows:
(a) Record the Deeds.
(b) Pay the disbursements as shown on the Closing
Statement from the funds deposited by Buyer.
(c) Deliver to Buyer the Title Policies, the recorded
Deeds, one original of each Assignment and Assumption, and
where available originals of all other Closing Documents and
when not, copies thereof.
(d) Deliver to Seller one original of each Assignment and
Assumption and copies of all other deposits made hereunder.
5. In the event all escrow deposits have not been received or if
Escrow Agent is not prepared to issue the Title Policies or to comply with the
other instructions contained herein on or before 5:00 p.m. on the Closing Date,
Escrow Agent is hereby authorized and directed to continue to comply with this
Escrow Agreement until it has received a written demand from any party hereto
for the return of the deposits made hereunder by said party. Upon receipt of
such demand, Escrow Agent is hereby authorized and directed to return to the
party making such demand the deposits made by such party without notice to any
other party and may return all remaining deposits to the respective depositors
thereof, except that, notwithstanding the terms hereof, (A) joint deposits shall
be retained by Escrow Agent, until it receives a joint instruction executed by
Buyer and Seller, and (B) the ▇▇▇▇▇▇▇ Money, together with interest earned
thereon, shall be retained by Escrow Agent, until it receives a joint
instruction executed by Buyer and Seller. Notwithstanding the foregoing, if the
Deeds have not been recorded, then prior to returning any deposits to Buyer,
Escrow Agent must receive and record quit claim deeds of reconveying the
Properties to the grantor in the Deeds deposited by Seller, and Escrow Agent
must be prepared to issue owners policies of title insurance in the amount
stated herein insuring
Exhibit G - Page 2
the title of Seller, free and clear of acts done or suffered by or judgments
against Buyer. Seller shall pay for the recording of the reconveyance deeds and
the title policies.
6. Escrow Agent shall invest all funds held hereunder in such
investments, or types thereof, as shall be designated in writing by Seller and
Buyer. If no investments are specifically designated by Seller and Buyer, then
the funds shall be held by Escrow Agent in an interest bearing account, in a
financial institution which has FDIC insurance covering up to [$100,000] of such
funds. Interest shall accrue to the benefit of Buyer, except as otherwise
provided in the Agreement.
7. It is agreed that the Escrow Agent shall have no obligation or
liability hereunder except as a depository to retain the cash which may be
deposited with it hereunder and to dispose of the same in accordance with the
terms hereof, so long as it acts in a good faith and in a commercially
reasonable manner. The Escrow Agent shall be entitled to rely and act upon any
written instrument received by it from either party, and if a corporation,
purporting to be executed by an officer thereof, and if a partnership,
purporting to be executed by a general partner thereof and if a limited
liability company, purporting to be executed by an officer, member or manager
and Escrow Agent shall not be required to inquire into the authority of such
officer or partner or the correctness of the facts stated in said instrument. By
acceptance of this agreement, Escrow Agent agrees to use its best judgment and
good faith in the performance of any of its obligations and duties under this
Agreement and shall incur no liability to any person for its acts or omissions
hereunder, except for those acts or omissions which may result from its gross
negligence or willful misconduct. Upon disposition by the Escrow Agent, in
accordance with the terms hereof, of the cash deposited with the Escrow Agent
hereunder, the Escrow Agent shall be fully and finally released and discharged
from any and all duties, obligations, and liabilities hereunder.
8. The Escrow Agent shall be reimbursed for any reasonable
expenses incurred by it hereunder, including the reasonable fees of any
attorneys which it may wish to consult in connection with the performance of its
duties hereunder. Such compensation and expenses shall be paid and reimbursed to
the Escrow Agent one-half by Buyer and one-half by Seller.
9. In the event of a dispute between any of the parties hereto as
to their respective rights and interests hereunder, the Escrow Agent shall be
entitled to hold any and all cash then in its possession hereunder until such
dispute shall have been resolved by the parties in dispute and the Escrow Agent
shall have been notified by instrument jointly signed by all of the parties in
dispute, or until such dispute shall have been finally adjudicated by a court of
competent jurisdiction.
10. Any notice which any party may be required or may desire to
give hereunder shall be deemed to be given as and when and in accordance with
the Agreement (and if to Escrow Agent sent to the address set forth below), or
to such other address as a party hereto may designate by a notice to the other
parties.
11. The Escrow Agent hereby consents and agrees to all of the
provisions hereof, and agrees to accept, as Escrow Agent hereunder, all cash and
documents deposited hereunder, and
Exhibit G - Page 3
agrees to hold and dispose of said cash and documents deposited hereunder in
accordance with the terms and provisions hereof.
12. This Escrow Agreement and all of the provisions hereof shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective legal representatives, successors and assigns.
13. This Escrow Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
14. A facsimile or photocopy signature on this Escrow Agreement,
any amendment hereto or any notice delivered hereunder shall have the same legal
effect as an original signature.
[Signature Page Follows]
Exhibit G - Page 4
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be duly executed the day and year first above written.
SELLER:
▇▇▇▇▇ MIDWEST, L.L.C.
BY: ▇▇▇▇▇ MIDWEST ONE CORP., ITS
MANAGING MEMBER
By:_________________________________
Name:____________________________
Its: ____________________________
BUYER:
▇. ▇. ▇▇▇▇▇▇▇▇, INC.
By:_________________________________
Name:____________________________
Its: ____________________________
ESCROW AGENT:
COMMONWEALTH LAND TITLE
INSURANCE COMPANY
By: _______________________
Its: Authorized Agent
Exhibit G - Page 5
SCHEDULE 1 TO ESCROW AGREEMENT
TERMINATION NOTICE
State of_________________)
) SS.
County of______________ )
The undersigned, having been first sworn, does hereby affirm, depose
and state that _________________________, as Buyer under that certain Purchase
and Sale Agreement dated________________, 2003 providing for the sale of
property commonly known as _________________________ has terminated the
Agreement pursuant to Paragraph 6(e) thereof.
The undersigned hereby demands return of all ▇▇▇▇▇▇▇ money deposited
under the Agreement, including interest thereon, in accordance with the
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Affidavit on this
____ day of_________, 2003.
BUYER:
▇. ▇. ▇▇▇▇▇▇▇▇, INC.
By:_________________________________
Name:____________________________
Its: ____________________________
Schedule 1 to Escrow Agreement - Page 1
SCHEDULE 2 TO ESCROW AGREEMENT
WIRE TRANSFER INSTRUCTIONS
LANDAMERICA FINANCIAL GROUP, INC.
National Commercial Services
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇)▇▇▇-▇▇▇▇ Fax: (▇▇▇)▇▇▇-▇▇▇▇
WIRE TRANSFER INSTRUCTIONS
WIRE TO: COMERICA BANK, DETROIT, MI
ABA NUMBER: ▇▇▇▇▇▇▇▇▇
LANDAMERICA FINANCIAL GROUP, INC. -- NCS
ACCOUNT NUMBER: 1851230431
LOCATION NUMBER: 00422
PLEASE REFERENCE OUR CASE NUMBER ON ALL WIRES_______
CUTOFF TIME FOR
WIRES IS 4:00 P.M.
Schedule 2 to Escrow Agreement - Page 1
EXHIBIT H
SPECIAL WARRANTY DEED
STATE OF____________________
COUNTY OF ___________________
KNOW ALL MEN BY THESE PRESENTS THAT ▇▇▇▇▇ Midwest, L.L.C., a Michigan
limited liability company ("Grantor"), for and in consideration of the sum of
Ten and No/100 Dollars ($10.00) cash and other good and valuable consideration
to Grantor paid by ____________________, a ______________, having an address of
("Grantee"), the receipt and sufficiency of which is hereby acknowledged, has
GRANTED, BARGAINED, SOLD and CONVEYED and by these presents does GRANT, BARGAIN,
SELL AND CONVEY unto Grantee (i) all of that certain tract or parcel of land
commonly known as the ____________________ and legally described on Exhibit A
attached hereto, together with all improvements thereon and rights and
appurtenances with respect thereto, including but not limited to all rights of
way, tenements, hereditaments, easements, minerals and mineral rights, water and
water rights, utility capacity and appurtenances, if any, in any way belonging
or appertaining to the land and the improvements and (ii) all of Grantor's
right, title and interest in and to all adjoining streets, alleys, private
roads, parking areas, curbs, curb cuts, sidewalks, landscaping, signage, sewers
and public ways and rights and interests relating thereto (the "Premises").
This conveyance is made subject to all matters described on Exhibit B
attached hereto.
TO HAVE AND TO HOLD the Premises, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee and Grantee's
successors and assigns forever; and it is agreed that Grantor and Grantor's
successors and assigns are hereby bound to warrant and forever defend, all and
singular, the Premises, unto Grantee and Grantee's successors and assigns
against every person whomsoever lawfully claiming or to claim the same, or any
part thereof by, through or under Grantor, but not otherwise.
Executed as of the day of________, 2003.
▇▇▇▇▇ MIDWEST, L.L.C., a Michigan
limited liability company
By: ▇▇▇▇▇ MIDWEST ONE CORP.,
a Michigan corporation, its managing
member
By: ___________________________________
Name: __________________________________
Its: ___________________________________
Exhibit H - Page 1
STATE OF ______________
COUNTY OF ______________
THIS INSTRUMENT was acknowledged before me on_____________ , 2003, by
_________________, the _________________ of ▇▇▇▇▇ Midwest One Corp., the
managing member of ▇▇▇▇▇ Midwest, L.L.C., who executed the instrument on behalf
of said limited liability company.
Notary Public in and for
The State of_________________
My Commission Expires:
_____________________________
This Instrument was prepared by and upon
recording should be returned to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Exhibit H - Page 2
EXHIBIT A TO SPECIAL WARRANTY DEED
LEGAL DESCRIPTION
Exhibit A to Special Warranty Deed - Page 1
EXHIBIT B TO SPECIAL WARRANTY DEED
PERMITTED EXCEPTIONS
Exhibit B to Special Warranty Deed - Page 1
EXHIBIT I
▇▇▇▇ OF SALE
▇▇▇▇▇ Midwest, L.L.C., a Michigan limited liability company ("Seller"),
in consideration of the sum of Ten and No/100 Dollars ($10.00), in hand paid,
and other good and valuable consideration, the receipt, adequacy and sufficiency
of which are hereby acknowledged, does hereby sell, assign, transfer, and set
over to ______, a ______________________ ("Buyer") (i) all equipment, fixtures
and personal property owned by Seller and located at or used in connection with
the ownership, operation and maintenance of the real estate commonly known as
_______________ and legally described on Exhibit A attached hereto, including
without limitation, all heating, lighting, air conditioning, ventilating,
plumbing, electrical or other mechanical equipment, furniture, furnishings,
carpeting, appliances, tools, inventory, supplies, signs, draperies and other
equipment and personal property at such real estate, and (ii) the equipment,
fixtures and personal property listed in Exhibit B attached hereto (the
"Personal Property").
EXCEPT AS OTHERWISE SET FORTH IN ANY OF THE REPRESENTATIONS OR
WARRANTIES CONTAINED IN THE PURCHASE AND SALE AGREEMENT BETWEEN SELLER AND BUYER
DATED AS OF _______________, 2003, SELLER HEREBY DISCLAIMS, AND BUYER HEREBY
WAIVES ANY AND ALL WARRANTIES OF MERCHANTABILITY OR WARRANTIES OF FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE PERSONAL PROPERTY BEING TRANSFERRED BY
THIS INSTRUMENT.
EXECUTED this__________________day of______, 2003.
▇▇▇▇▇ MIDWEST, L.L.C., a Michigan
limited liability company
By: ▇▇▇▇▇ MIDWEST ONE CORP.,
a Michigan corporation, its managing
member
By: ____________________________________
Name: ___________________________________
Its: ____________________________________
Exhibit I - Page 1
EXHIBIT A TO ▇▇▇▇ OF SALE
LEGAL DESCRIPTION
Exhibit A to ▇▇▇▇ of Sale - Page 1
EXHIBIT B TO ▇▇▇▇ OF SALE
PERSONAL PROPERTY
Exhibit B to ▇▇▇▇ of Sale - Page 1
EXHIBIT J
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Agreement'") is entered
into as of this__________day of_____________, 2003 by and between ▇▇▇▇▇ Midwest,
L.L.C., a Michigan limited liability company ("Assignor") and ______________, a
____________________("Assignee").
WHEREAS, Assignor and Assignee are parties to that certain Purchase and
Sale Agreement dated_______________, 2003 (the "Underlying Agreement"), pursuant
to which Assignor has agreed to assign to Assignee its right, title and interest
in certain Assigned Property (defined below). Capitalized terms used but not
otherwise defined herein shall have the meanings given such terms in the
Underlying Agreement.
WHEREAS, pursuant to the Underlying Agreement, Assignee has agreed to
assume all of Assignor's rights and obligations with respect to the Assigned
Property in accordance with the terms hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor and Assignee do hereby
agree as follows:
1. Assignor hereby sells, transfers, conveys, assigns and sets
over unto Assignee the following described property (collectively, the "Assigned
Property"):
(a) All of Assignor's right, title and interest, as lessor, in and
to all leases, licenses and other agreements (collectively, "Leases") to occupy
all or any portion of the real estate described on Schedule 1 attached hereto
(the "Property"), including without limitation, the Leases listed on Schedule 2
attached hereto together with all rents due, or to become due under each such
lease, license and agreement on or after the date hereof and all guaranties by
third parties of the tenants' obligations thereunder;
(b) all refundable lease security deposits under the Leases (to
the extent sums are being paid to Assignee on the date hereof);
(c) all of Assignor's right, title and interest in and to all
contracts, agreements, guarantees, warranties and indemnities, written or oral,
affecting the ownership, operation, management and maintenance of the Property
listed on Schedule 3 attached hereto (collectively, the "Contracts");
(d) to the extent assignable without the payment of any fee or the
occurrence of any obligation, or the execution of any documents (other than this
Assignment and Assumption) which create liability or reserve against the
Assignor, all of Assignor's right, title and interest in and to all (i) to the
extent in Assignor's possession or control, plans, models, drawings,
specifications, blueprints, surveys, engineering reports, environmental reports
and other technical descriptions or materials relating in any way to the
Property, and (ii) licenses, franchises, certificates, occupancy and use
certificates, permits, authorizations, consents, variances, waivers, approvals
and the like from any federal, state, county, municipal or other governmental or
quasi-
Exhibit J - Assignment and Assumption Agreement - Page 1
governmental body, agency, department, board, commission, bureau or other entity
or instrumentality affecting the ownership, operation or maintenance of the
Property, including without limitation the items listed on Schedule 4 attached
hereto; and
(e) to the extent assignable, all of Assignor's right, title and
interest in and to all designs, plans, drawings, specifications, and other
intangible property used by Assignor in connection with the ownership, operation
and maintenance of the Property.
2. Assignor does hereby covenant with Buyer that at the time of
delivery of this Assignment and Assumption, the Leases and Contracts are free
from all encumbrances made by Assignor and that Assignor will warrant and defend
the same against the lawful claims and demands of all persons claiming by,
through or under Assignor, but against none other. Except as to the special
warranty of title and any representation and warranty expressly set forth in the
Underlying Agreement between Assignor and Assignee, the Assigned Property is
conveyed "as is" and Assignor makes no warranty with respect thereto; provided,
however, that the representations and warranties made in the Underlying
Agreement are ratified and restated as of the date hereof and shall survive for
a period of six (6) months.
3. Assignee hereby accepts the foregoing assignment as of the
date hereof and as of such date hereby assumes the performance of all the terms,
covenants and conditions of the Assigned Property, including, without
limitation, the obligation to return the refundable lease security deposits
under the Leases to the extent the same are received as a credit at Closing,
with respect to the period from and after the date hereof.
4. Each of the parties hereby agrees to indemnify, defend and
hold the other party harmless for any claim, loss, cost, expense or liability
resulting from the breach of Assignor's or Assignee's respective obligations in
paragraphs 2 and 3 above for a period of six (6) months from the Closing Date.
In addition, Assignor hereby agrees to indemnify and hold Assignee harmless from
and against any claim, loss, expense or liability resulting from Assignor's
failure to perform all of the terms, covenants and conditions of the Assigned
Property with respect to the period prior to the date hereof, and Assignee
hereby agrees to indemnify and hold Assignor harmless from and against any
claim, loss, expense or liability resulting from Assignee's failure to perform
all of the terms, covenants and conditions of the Assigned Property with respect
to the period beginning on the date hereof and thereafter.
5. This Agreement may be executed in multiple counterparts, each
of which, taken together shall constitute an original Agreement.
[Signature page follows.]
Exhibit J - Assignment and Assumption Agreement - Page 2
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ASSIGNOR:
▇▇▇▇▇ MIDWEST, L.L.C., a Michigan
limited liability company
By: ▇▇▇▇▇ MIDWEST ONE CORP.,
a Michigan corporation, its managing
member
By: ____________________________________
Name: ___________________________________
Its: ____________________________________
ASSIGNEE:
By: ____________________________________
Name: ______________________________
Its: _______________________________
Exhibit J - Assignment and Assumption Agreement - Page 3
SCHEDULE 1 TO ASSIGNMENT AND ASSUMPTION
LEGAL DESCRIPTION
Schedule 1 to Assignment and Assumption - Page 1
SCHEDULE 2 TO ASSIGNMENT AND ASSUMPTION
RENT ROLL
Schedule 2 to Assignment and Assumption - Page 1
SCHEDULE 3 TO ASSIGNMENT AND ASSUMPTION
CONTRACTS
Schedule 3 to Assignment and Assumption - Page 1
SCHEDULE 4 TO ASSIGNMENT AND ASSUMPTION
LICENSES
Exhibit B to Special Warranty Deed - Page 1
EXHIBIT K
BLOOMFIELD PORTFOLIO LOAN DOCUMENTS
For purposes of this exhibit, the term "Borrower" means ▇▇▇▇▇
Midwest, L.L.C., and the term "Lender" means Bloomfield Acceptance Company,
L.L.C.
Original Funding - May 29,1998
1. Loan Commitment dated May 8,1998;
2. Borrower's Request and Authorization for Rate Lock, dated May
27,1998;
3. Settlement Statement (Loan Closing);
4. Loan Agreement;
5. Mortgage Note for $ 18,000,000;
6. Mortgages:
A. Crawfordsville, Indiana
B. Decatur, Indiana
C. Huntington, Indiana
D. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
F. Sturgis, Michigan
G. Champaign, Illinois
H. Jacksonville, Illinois
I. Chanute, Kansas
J. El Dorado, Kansas
K. Little Falls, Minnesota
L. Ontario, Ohio
7. Assignments of Leases and Rents:
A. Crawfordsville, Indiana
B. Decatur, Indiana
C. Huntington, Indiana
D. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
F. Sturgis, Michigan
G. Champaign, Illinois
H. Jacksonville, Illinois
I. Chanute, Kansas
J. El Dorado, Kansas
K. Little Falls, Minnesota
L. Ontario, Ohio
Schedule 4 to Assignment and Assumption - Page 1
8. Environmental And Hazardous Substance Indemnification
Agreement;
9. Guaranty from ▇▇▇▇▇ Realty Investors, Inc.;
10. UCC Financing Statements:
A. Crawfordsville, Indiana
B. Decatur, Indiana
C. Huntington, Indiana
D. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
F. Sturgis, Michigan
G. Champaign, Illinois
H. Jacksonville, Illinois
I. Chanute, Kansas'
J. ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
L. Ontario, Ohio
11. Lockbox Agreement; and
12. Manager's Consent and Subordination of Management Agreement.
Amendment - April 15, 1999
1. Amended & Restated Loan Agreement;
2. Mortgage Note for $3,000,000 from Borrower to Lender;
3. Amended and Restated Note for $ 17,702,260.85 from Borrower to
Lender;
4. Mortgage for Decatur, Illinois property given by Borrower to
Lender;
5. Amended Mortgages/Deeds of Trust of each of the 12 other
Properties;
A. Crawfordsville, Indiana
B. Decatur, Indiana
C. Huntington, Indiana
D. Bentori Harbor, M
E. Owosso, Michigan
F. Sturgis, Michigan
G. Champaign, Illinois
H. Jacksonville, Illinois
I. Chanute, Kansas
J. El Dorado, Kansas
K. Little Falls, Minnesota
L. Ontario, Ohio
Schedule 3 to Assignment and Assumption - Page 2
6. Assignment of Leases and Rents from Borrower to Lender,
concerning the Decatur, Illinois Property;
7. Amended Assignment of Leases and Rents from Borrower to Lender
for each of the 12 other Properties;
A. Crawfordsville Indiana
B. Decatur, Indiana
C. Huntington Indiana
D. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
F. Sturgis, Michigan
G. Champaign, Illinois
H. Jacksonville, Illinois
I. Chanute, Kansas
J. El Dorado, Kansas
K. Little Falls, Minnesota
L. Ontario Ohio
8. Amendment and Reaffirmation of Guaranty from ▇▇▇▇▇ Realty
Investors, Inc.;
9. Master Amendment to Loan Documents;
10. Amended and Restated Manager's Consent and Subordination of
Management Agreement executed by Borrower and ▇▇▇▇▇ Realty Investors, Inc.
11. Amended and Restated Manager's Consent and Subordination of
Management Agreement, executed by Borrower and ▇▇▇▇▇ Realty Investors, Inc.;
12. (2) UCC-1 and (2) UCC-1 A Financing Statements from Borrower
(as Debtor) to Lender (as Secured Party);
13. Closing Letter between Lender and Borrower, with respect to
various issues; and
14. Settlement Statement.
Schedule 3 to Assignment and Assumption - Page 3