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HomeMy WebLinkAbout2024 - City of Lansing City Hall Project Unsigned Purchase Agreement-217 Capitol, LLC SITE PURCHASE AGREEMENT (City of Lansing City Hall Project) - H. This Site Purchase Agreement ("Purchase Agreement") is made and entered into as of the day of , 2024 ("Effective Date"), by and between 217 CAPITOL, LLC., a Michigan limited liability company ("Seller") and the City of Lansing, a Michigan municipal corporation ("Buyer"), and is as follows: ARTICLE I DEFINITIONS AND REFERENCES As used in this Purchase Agreement, the following terms shall have the meanings set forth below: Buyer's Representative: Kramer Management Group. Buyer's Notice of Intent to Close: Written notice from the Buyer to the Seller, to be delivered by the Buyer on or before July 31, 2024, indicating Buyer's intention to finalize the conditions to Closing. Closing: The consummation of Buyer's purchase of the Property in accordance with Article XI. Closing Date: Defined in Article XI of this Purchase Agreement. Commitment: The Preliminary ALTA 2021 Commitment of Title Insurance as designated in Article VII of this Purchase Agreement and provided by Seller to Buyer in the amount of the Purchase Price. Deed: A recordable warranty deed to be delivered by Seller to Buyer at Closing conveying the Property to Buyer, subject to the Permitted Exceptions. Effective Date Deposit: Defined in Section 4.03 of this Purchase Agreement. Investigation Period: Defined in Section 5.01 of this Purchase Agreement. Permitted Exceptions: collectively, in a form acceptable to Buyer: (i) easements, restrictions, covenants and agreements of record including, but not limited to, those appearing in Schedule B-II of the Commitment to which Buyer does not object in accordance with Article VII below and (ii) zoning ordinances. Property: The Real Property including all easements, tenements, hereditaments and appurtenances relating to said Real Property which are Permitted Exceptions or otherwise approved by Buyer; all fixtures and equipment relating to the improvements to the Real Property. Purchase Agreement: This Site Purchase Agreement including the following Exhibits attached hereto and incorporated herein by this reference: Exhibit A: Legal Description of the Real Property; Exhibit A-1: Depiction of the Real Property; Exhibit B: Seller's Neighboring Property; Exhibit C: Permitted Exceptions. Purchase Price: The total of the Purchase Price as stated in Article IV, plus or minus prorations and adjustments. Real Property: The approximately 0.3763 acres of land commonly known as 217 S. Capitol Avenue, Lansing, Michigan 4893, as more particularly described in Exhibit A and depicted in Exhibit A-1. Title Company: First American Title Insurance Company, 400 N. Water Street, Suite 100, Rochester, MI 48307, 248.540.8035, mlawless@firstam.com. ARTICLE II SALE AND PURCHASE Seller is the owner of the Property. Pursuant to this Purchase Agreement, on the Closing Date Seller agrees to sell and convey, and Buyer agrees to purchase, under the terms and provisions hereinafter provided, the Property. ARTICLE III DEVELOPMENT OF SELLER'S NEIGHBORING PROPERTY Seller owns property located immediately north of the Real Property and legally described on attached Exhibit B (the "Seller's Neighboring Property"). Seller covenants that, no less than sixty (60) days before developing or selling the Seller's Neighboring Property (such period, the "Easement Negotiation Period"), Seller will notify Buyer in writing, and Buyer will have the opportunity, until the expiration of the Easement Negotiation Period, to secure an easement or other rights, at a cost agreed upon among the parties, providing for limitations on the sale of or the construction of improvements to Seller's Neighboring Property, such that the view of and from the Real Property and the Buyer's use of the Property as ultimately improved will not be impaired by any development on the Seller's Neighboring Property (any such easement or other rights as negotiated, the "Visibility Easement"). Buyer and Seller may agree in writing to extend the Easement Negotiation Period. If Buyer and Seller are unable to execute the Visibility Easement prior to the expiration of the Easement Negotiation Period, as it might be extended, then Seller's obligations under this Article III shall be deemed satisfied, Seller shall have the right to develop or sell the Seller's Neighboring Property without regard to this Article III, and this Article III shall automatically be deemed of no further force or effect. This Article shall survive Closing and termination of this Agreement as a result of Closing. 2 ARTICLE IV PURCHASE PRICE; CERTAIN OTHER PAYMENTS AND EFFECTIVE DATE DEPOSIT 4.01 Purchase Price. The total "Purchase Price" for the Real Property shall be Three Million Six Hundred Fifty Thousand and No/100 Dollars ($3,650,000.00), subject to credit for the Effective Date Deposit (as defined in Section 4.03) and as adjusted by prorations determined in accordance with Purchase Agreement. The balance of the Purchase Price shall be paid at Closing as described in Article XII. 4.02 Deposit. (a) Within five (5) business days of the Effective Date, Buyer shall deposit with the Title Company the amount of Fifty Thousand and No/100 Dollars ($50,000.00) (the "Effective Date Deposit"). (b) The Effective Date Deposit shall be held pursuant to the standard form of strict joint order escrow instructions in use by the Title Company. Upon Buyer's direction and at its expense, the Title Company may deposit and hold the Effective Date Deposit in an interest-bearing account with interest accruing to the Buyer and invest such deposit in readily available funds at the direction of Buyer. Buyer shall receive a credit at Closing for the amount of the Effective Date Deposit. If the Effective Date Deposit is returned to the Seller, it shall not include interest earned as a result of Buyer's direction and expense. ARTICLE V ENTRY; INVESTIGATION PERIOD 5.01 Inspection; Right of Entry. (a) Within five (5) business days after the Effective Date, Seller shall, at Seller's sole cost and expense, provide to Buyer all feasibility studies, soil reports, environmental audits and other appraisals, inspections, permits, tests, reports, surveys or information in the possession or control of Seller with respect to the Property. (b) During the period commencing on the Effective Date and expiring one hundred and twenty (120) days after the Effective Date (the "Investigation Period"), at Buyer's sole expense, Buyer, Buyer's Representative or its authorized representatives, agents, employees, contractors, architects and engineers designated by Buyer (collectively, "Buyer's Consultants") may enter upon the Real Property at reasonable times and do and perform all surveying, engineering, soil borings, environmental and other tests and inspections deemed necessary by Buyer to satisfy Buyer that the Property is suitable for the uses and purposes intended by Buyer, including but not limited to: reviewing all building plans, construction specifications and any other physical or municipal components of the Property; performing a Phase I environmental assessment and a soil and geotechnical analysis; confirming all utilities and site conditions; conducting any other test, study, investigation, inspection or report Buyer deems advisable with 3 respect to the Property; provided however in no event shall Buyer be permitted to perform any physical or intrusive testing, including, without limitation, a Phase II environmental assessment or boring on the Property, without the prior written consent of Seller, which shall not be unreasonably withheld, conditioned or delayed. (c) Prior to Buyer, Buyer's Representative or Buyer's Consultants entering onto the Property, Buyer shall give Seller forty-eight (48) hours prior notice of such entry. Seller shall have the right (but not the obligation) to accompany Buyer, Buyer's Representative and Buyer's Consultants during such entry. Buyer shall take all steps reasonably necessary to protect the Property from damage by reason of its activities. Buyer shall repair any such damage to the Property resulting from Buyer's, Buyer's Representative's and/or Buyer's Consultants' activities on the Property, to the extent necessary, to the condition existing prior to such damage. (d) To the extent it would prevent a successful Closing, or prevent Seller from completing improvements contemplated for the Property, or otherwise impair Seller's current title to the Property, Buyer shall not permit any construction, mechanic's, materialman's or other lien to be filed against any of the Property as the result of any work, labor, service or materials performed or furnished by, for or to Buyer, Buyer's Representative's and/or Buyer's Consultants. If any such impairing lien shall at any time be filed against the Property, Buyer shall, without expense to Seller, cause the same to be discharged of record by payment, bonds, order of a court of competent jurisdiction or otherwise. (e) If the Closing does not occur, then upon Seller's request, Seller shall be entitled to receive copies of any inspection reports and studies of the Property obtained by Buyer with respect to the Property. Seller will reimburse Buyer for half of the cost of any such requested report or study. This subsection shall survive the termination of this Agreement. 5.02 Termination During Investigation Period. In the event that Buyer is not satisfied, in its sole and absolute discretion, with its inspections and tests of the Property, the physical condition of the Property or the fitness or feasibility of the Property for any reason whatsoever, Buyer may, by written notice to Seller, terminate this Purchase Agreement at any time on or prior to the expiration of the Investigation Period. In the event that Buyer so terminates this Purchase Agreement, Buyer and Seller shall have no further obligations hereunder except those that expressly survive termination and the Effective Date Deposit shall be promptly returned to Buyer. If Buyer does not timely give a notice of termination under this Section 5.02, then Buyer shall be deemed to have waived its conditions and rights under this Section only. ARTICLE VI RISK OF LOSS 4 Until the Closing, all risk of loss from any or all damage, injury, casualty and condemnation to the Property shall be borne by Seller, subject to the provisions of Articles XVII and XVIII. ARTICLE VII INITIAL REVIEW OF SURVEY AND TITLE COMMITMENT Within twenty (20) days after the Effective Date, Seller shall cause to be delivered to Buyer, at Seller's expense: (a) the initial Commitment; (b) full legible copies of all documents referred to in such Commitment as exceptions to title; and (c) a new or updated ALTA/NSPS survey of the Property (the "Updated Survey"). In the event that any exceptions or defects appear in the Commitment that are not Permitted Exceptions, or if the Updated Survey discloses defects, which, in Buyer's sole discretion, would adversely impact Buyer's proposed use of the Property or otherwise render title to the Property unmarketable or are otherwise deemed unacceptable to Buyer (collectively, "Unpermitted Exceptions"), then Buyer shall notify Seller in writing thereof within thirty (30) days after Buyer has received both the Commitment (and all underlying title documents) and the Updated Survey, but not later than the expiration date of the Investigation Period. If Buyer so notifies Seller of any Unpermitted Exceptions, Seller shall have fifteen (15) days thereafter to cure such matters or cause the Title Company to commit to insure against such matters in a manner which is reasonably satisfactory to Buyer. If, by the expiration of such fifteen (15) day period, Seller fails to have any such Unpermitted Exceptions so removed or satisfactorily insured over, Buyer may, by written notice to Seller given within thirty (30) days thereafter, elect to terminate this Purchase Agreement, in which event the Effective Date Deposit shall be returned to Buyer. All exceptions to title reflected on the Commitment or Survey which are not Unpermitted Exceptions shall be referred to hereinafter as "Permitted Exceptions" and shall be listed on Exhibit C which shall be attached to each fully-executed original of this Purchase Agreement within ten (10) days after expiration of the aforementioned fifteen (15) day curative period. In addition, Seller shall be obligated to remove at or prior to Closing, and at Seller's expense, (i) any mortgages or deeds of trust securing any financing obtained or expressly assumed by Seller; (ii) any mechanics or materialmen's liens for work done pursuant to a contract executed by Seller which remains unpaid; and (iii) any judgment liens, U.S. tax liens, or real property tax liens (except for any taxes not yet due and payable) not caused or created by Buyer (items (i) through (iii) are, collectively, the "Mandatory Cure Items"). Buyer shall have no obligation to object to any Mandatory Cure Items, and such Mandatory Cure Items shall not be or become Permitted Exceptions and shall be discharged by Seller at or before Closing. 5 ARTICLE VIII STATE OF TITLE Within three (3) business days after receipt of Buyer's Notice of Intent to Close, Seller shall cause to be delivered to Buyer an updated Commitment, effective as of such date. If any updated Commitment raises Unpermitted Exceptions or otherwise fails to comply with the Commitment as approved pursuant to Article VI I, Buyer shall give written notice thereof to Seller within fifteen (15) days after the delivery to Buyer of the updated Commitment. Seller shall use reasonable efforts to cure such objections or delete the matters objected to from such Commitment. If Buyer's objections are not cured or deleted at or prior to the scheduled Closing Date, then Buyer may, in addition to other remedies that may be available to it, either (i) terminate this Purchase Agreement, in which event the Effective Date Deposit shall be returned to Buyer, or (ii) elect to accept title as it then is with the right to deduct from the Purchase Price Unpermitted Exceptions caused by the Seller or Mandatory Cure Items of a definite or ascertainable amount. At Closing, Seller shall convey to Buyer, by delivery of the Deed, good and marketable fee title to the Property, subject only to the Permitted Exceptions. At Closing, Seller shall pay the premiums and all other expenses pertaining to the issuance of the Owner's Policy as hereinafter provided in Article XIX hereof; provided, however, that Buyer shall pay the cost of any endorsements it may request. ARTICLE IX PROBATIONS 9.01 Prorations. Real estate taxes and assessments for any period prior to Closing shall be prorated on a calendar year basis as of 11:59 P.M. on the Closing Date, on the basis of the most recent ascertainable amounts of such items and the net credit shall be a credit on the proration statement, to be re-prorated on receipt of a final bill for such period. 9.02 Utilities. Buyer and Seller shall cooperatively take all steps necessary to effectuate the transfer of all utilities for the Property from Seller to Buyer as of the Closing Date. Utilities shall be paid by Seller to and including the Closing Date, and by Buyer thereafter. Final meter readings shall be ordered by Seller and made on the Closing Date. To the extent any such expenses and charges are not determinable as of the Closing Date or Seller is not able to effectuate a meter reading on the Closing Date, such expenses and charges shall be paid promptly upon receipt of an invoice therefor by the party obligated for payment thereof. Seller shall be entitled to recover its previously paid deposits held by any utility company for the Property as of the Closing Date, to the extent not necessary to pay expenses and charges attributable to Seller on or before the Closing Date. ARTICLE X POSSESSION 6 Exclusive possession shall be delivered to Buyer at Closing concurrently with delivery to Buyer of the Deed subject only to Permitted Exceptions and delivery to Seller of the balance of the Purchase Price. ARTICLE XI CLOSING Unless Buyer and Seller otherwise agree in writing, the closing of the transaction contemplated herein (the "Closing") shall take place in escrow at the office of the Title Company on the date mutually agreed upon by the parties, but not more than thirty (30) days following the Buyer's Notice of Intent to Close (the "Closing Date"). Upon creation of the escrow, anything herein to the contrary notwithstanding, payment of the Purchase Price (less the Effective Date Deposit and as adjusted by prorations or other deductions) and delivery of the Deed shall be made through the escrow. The escrow instructions shall be in the form customarily used by the Title Company for a Deed and money escrow with such special provisions added thereto as may be required to conform to the provisions of this Purchase Agreement, and at the option of either Buyer or Seller, shall provide for immediate disbursement of funds, both parties agreeing to provide such undertakings as may be required for such purpose. ARTICLE XII CLOSING DELIVERABLES 12.01 Closing Deliveries. The following deliveries shall be made at or before Closing. All of such deliveries to be made or caused to be made by either party shall, at the option of the other, be conditions precedent to such other party's obligation to close hereunder, any or all of which may be waived in writing by such other party. (a) Seller shall deliver or cause to be delivered to Title Company, for delivery to Buyer, the following certificates, documents, instruments and agreements: (i) The Deed and a real estate transfer tax valuation affidavit; (ii) A bill of sale conveying any items of personal property referred to in Article II, in their as-is condition, with such customary representations and warranties as may be contained in any bill of sale; (iii)An affidavit of Seller, acceptable to Buyer, dated the Closing Date, that there are no unsatisfied judgments, tax liens or bankruptcies involving the Seller and the Property, as applicable, together with any other customary affidavits requested by the Title Company to facilitate Closing, (iv) Assignment of all of Seller's right, title and interest in and to all assignable governmental permits and licenses, if any, issued in connection with the 7 Property together with originals, if held by Seller, or photocopies of the same; or, if there are none, an affidavit of Seller to that effect; (v) The Owner's Policy issued by the Title Company pursuant to the Commitment described in Article VII hereof for the full amount of the Purchase Price showing title to the Property in Buyer and subject only to the Permitted Exceptions (the "Owner's Policy"); (vi) An affidavit of Seller certifying that Seller is not a "foreign person" for purposes of Section 1445 of the Internal Revenue Code; (vii) Seller's certificate dated as of Closing confirming that all of Seller's representations and warranties contained in this Purchase Agreement are accurate, current and complete in all material respects; and (ix) Any and all other documents elsewhere described herein or as may be mutually agreed on between Buyer and Seller as are determined necessary in order to effectuate Closing, including, without limitation, an agreed proration statement, and including such undertakings as may be required by the Title Company to enable them to disburse funds immediately on recording the Deed and delivering the Owner's Policy. (b) Buyer shall deliver or cause to be delivered to Title Company, for delivery to Seller, the following: (i) The balance of the Purchase Price by wire transfer of funds (less the Effective Date Deposit and as adjusted by any prorations or other deductions); (ii)An original counterpart of the Assignments referred to in clauses (a)(iii) and (a)(iv) above, duly and properly executed and acknowledged by Buyer; (iii) Resolution(s) of the City of Lansing City Council sufficient to authorize the transactions contemplated by this Purchase Agreement (the "Resolution"); (iv) Any and all other documents elsewhere described herein or as may be mutually agreed on between Buyer and Seller as are determined to be reasonably necessary in order to effectuate the Closing of this transaction, including such reasonable undertakings as may be required by the Title Company to enable the Title Company's immediate disbursement of funds upon recording of the Deed and delivering the Owner's Policy. (c) Seller and Buyer shall deliver to each other and to Title Company at Closing an agreed settlement statement reflecting the adjustments and prorations pursuant to this Purchase Agreement. (d) Buyer shall have received State of Michigan appropriated funding intended to be used for development or redevelopment of a city hall administration building (the 8 "Appropriation"), and the City of Lansing City Council shall have approved receipt of such Appropriation. (e) Unless waived or otherwise agreed to in writing by the Buyer, Buyer shall have received from Seller, no less than 30 days prior to Closing, a Guaranteed Maximum Price Proposal in a mutually agreed upon format, for the development, design and construction of the Buyer's required improvements to the Property, in an amount acceptable to the parties. ARTICLE XIII REPRESENTATIONS AND WARRANTIES 13.01 Seller's Representations and Warranties. Without intending to limit any other provision of this Purchase Agreement, and as a material inducement to Buyer to enter into this Purchase Agreement, Seller represents and warrants, as of the Effective Date (except as otherwise expressly set forth below) and will again as of the Closing Date.- (a) Except for any Permitted Exceptions, Seller is not subject to any other agreement or arrangement, including any rights of first refusal or option to acquire title, which would prevent Seller from selling the Property to Buyer or otherwise performing all of its obligations hereunder. (b) All necessary action has been taken by Seller to authorize the execution of this Purchase Agreement and the performance of its obligations required hereunder. (c) There is no litigation pending, and Seller has not received written notice of any claims, causes of action or other litigation or proceedings threatened in respect to the ownership or operation of the Property or any part thereof, or relating to Seller's ability to convey the Property to Buyer or perform any of its obligations or make any of its representations or warranties hereunder including, without limitation, disputes with tenants, mortgagees, governmental authorities, utilities, contractors, adjoining land owners and suppliers of goods and services. (d) This Purchase Agreement is valid and enforceable against Seller in accordance with its terms and each instrument executed and delivered by Seller pursuant hereto shall be valid and enforceable against Seller in accordance with its terms. (e) The Property is adequately insured against property damage and liability risks, and will continue to be so insured through the Closing Date, as evidenced by declarations copies provided to Buyer. (f) To Seller's knowledge, the Property is not in violation of any federal, state or local laws, rules, regulations, governmental permits or other binding determinations of any governmental authority relating to or addressing the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), 42 U.S.C. §9601, et seq., and the Resource Conservation and Recovery Act, as amended ("RCRA"), 42 U.S.C. §6901, et seq., (collectively, 9 "Environmental Laws") and Seller does not know of, and has not been advised of, any legal proceedings or claims under, any deviation from, or any violations or infractions of, any Environmental Laws in regard to the Property. The above representations and warranties shall survive the Closing for a period of twelve (12) months and shall not merge into any conveyance documents. It is a condition precedent to Buyer's obligation to close that each of the representations and warranties of Seller contained in this Purchase Agreement shall be accurate, current and complete in all material respects at Closing. If any of the same ceases to be accurate, current and complete prior to Closing in all material respects, Seller shall immediately (within five (5) days) inform Buyer thereof. In the event that Seller notifies Buyer that any of the warranties or representations of Seller contained in this Purchase Agreement are not accurate, current or complete in all material respects and further in the event that any such misrepresentation or breach of warranty is not the result of Seller's intentional act or failure to act, then Seller shall be afforded thirty (30) days from the date of such notice to Buyer in order to take any action necessary so that such representation and warranty is materially accurate, current and complete. If Seller fails to do so within such thirty (30) day period, then at the option of Buyer (which option shall be exercised in writing within thirty (30) days after the expiration of such thirty (30) day cure period), Buyer may exercise its remedies for a Seller's default as provided in Article XV. Buyer's failure to give such notice within said time period shall be conclusive evidence that Buyer has waived the option to terminate by reason of any such misrepresentation or breach of warranty of which it has received notice. In the event that any such misrepresentation or breach of warranty is the result of Seller's intentional act or failure to act, Seller covenants forthwith to take all action necessary so that each such warranty or representation so affected remains accurate, current and complete, regardless of any such notice. 13.02 Buyer's Representations and Warranties. Without intending to limit any other provision of this Purchase Agreement, Buyer represents and warrants, as of the Effective Date (except as otherwise expressly set forth below) and will again as of the Closing Date: (a)All necessary actions including adoption of the Resolution have been taken by Buyer to authorize the execution of this Purchase Agreement and the performance by the Buyer of its obligations required hereunder. (b) The execution, delivery and performance of this Purchase Agreement by Buyer and the consummation of the transactions contemplated herein will not, subject to the approval of this Purchase Agreement: (i) result in a breach or acceleration of or constitute a default or event of termination under the provisions of any agreement or any instruments by which Buyer is bound or affected which would have a material adverse impact on the ability of Buyer to close the acquisition of the Property pursuant to the terms of this Purchase Agreement, (ii) constitute or result in the violation or breach by Buyer of any 10 judgment, order, writ, injunction or decree issued against or imposed upon Buyer or result in the violation of any applicable law, rule or regulation of any governmental authority that, with respect to any of the foregoing, would have a material adverse impact on the ability of Buyer to timely complete the acquisition of the Property pursuant to this Purchase Agreement. ARTICLE XIV DISPUTE RESOLUTION Seller and Buyer agree to make good faith efforts to resolve any differences or disputes which may arise under this Purchase Agreement in an expeditious manner, especially those disputes specifically mentioned in other provisions of this Purchase Agreement which refer to this Article for resolution. Such good faith efforts shall include involvement of the Seller's and Buyer's counsel and other experts to assist in expeditious dispute resolution. If any dispute which may delay Closing is not resolved, such dispute shall be resolved in the State Courts sitting in Ingham County, Michigan. This Article shall survive the termination of this Agreement. ARTICLE XV DEFAULT Subject to the limitations set forth below, if Seller shall have failed to perform any term or condition hereof required to be so performed by it on or prior to Closing, and such failure is not the result of a default or failure by Buyer to perform pursuant to this Purchase Agreement, Buyer may, as its sole remedies pursuant to this Purchase Agreement (i) terminate this Purchase Agreement by written notice to Seller and the Effective Date Deposit shall be promptly returned to Buyer; or (ii) elect to pursue a claim for specific performance of this Purchase Agreement against Seller. Any action for specific performance shall be commenced on or before the date that is sixty (60) days after the cure period has expired for the alleged breach. If Buyer shall have failed to perform any term and condition hereof required to be so performed by it on or prior to Closing, and such failure is not the result of a default or failure to perform by Seller, then Seller may retain the Effective Date Deposit as its sole and exclusive remedy, the amount thereof being fixed and liquidated damages, it being understood that Seller's actual damages in the event of such default are difficult to ascertain and that such proceeds represent the parties' best current estimate of such damages, and this Purchase Agreement shall terminate and become null and void and of no effect and the parties shall be released from all further obligations hereunder, except for any representations, warranties or obligations which expressly survive Closing. This Article shall survive the termination of this Purchase Agreement. ARTICLE XVI 11 BROKERS Each of the Seller and Buyer represents and warrants to the other that it has not dealt with any broker or finder in the location of the Property or the negotiation of this sale. Seller hereby agrees to indemnify Buyer for any claim for brokerage commission or finder's fee asserted by a person, firm or corporation, claiming to have been engaged by Seller and for any and all loss, damage, liability and expense (including, without limitation, attorneys' fees and other litigation expenses through and including any appellate proceedings) Buyer may suffer, sustain or incur as a result of any misrepresentation or breach of warranty by Seller under this Article XVI. ARTICLE XVII DAMAGE AND DESTRUCTION If, prior to Closing, the Property shall be destroyed or damaged by fire or other casualty, then Seller shall give written notice to Buyer of the occurrence thereof within forty-eight (48) hours of Seller's receipt of any such notification or learning of the occurrence thereof, and Buyer shall be entitled to the following options.. (i) terminate this Purchase Agreement and receive a refund of the Deposit, (ii) receive at Closing an absolute assignment from Seller of any interest Seller may have otherwise had in the proceeds of any insurance on the Property (including any rent loss insurance allocable to the period from and after the Closing Date) less any reasonable costs incurred by Seller in securing such proceeds and/or adjusting the loss and/or in undertaking any required repairs at Seller's expense, and Buyer shall proceed with the Closing on the Property in its then "as-is" condition with no reduction in the Purchase Price, or (iii) if the repairs can be completed prior to Closing or are necessary to secure or protect the Property, Seller shall proceed to complete such repairs prior to Closing based upon a work plan reasonably satisfactory to Buyer and Seller, including adjusting the Closing Date as reasonably necessary in the event Buyer has already issued its Notice of Intent to Close, and Seller shall use the insurance proceeds toward payment for such repair costs. ARTICLE XVIII CONDEMNATION In the event of the institution of any proceeding, judicial, administrative or otherwise, prior to Closing, which shall relate to the proposed taking of any substantial portion of the Property by condemnation or eminent domain or any action in the nature of eminent domain, or the taking or closing of any right of access to the Property, Seller shall immediately give written notice to Buyer of the occurrence thereof, and thereafter this Purchase Agreement, at the option of Buyer shall become null and void, the Effective Date Deposit shall be refunded to Buyer and any documents deposited hereunder or in the escrow contemplated hereby shall be returned to the respective parties. Seller hereby agrees to furnish Buyer written notification with respect to any such taking or proceedings within forty-eight (48) hours of Seller's receipt of any such notification or learning of the occurrence or institution thereof. Should Buyer elect to so terminate this Purchase 12 Agreement, the parties hereto shall be released from any and all further obligations hereunder except those provided for in this Purchase Agreement including the return to Buyer of the Effective Date Deposit. Notwithstanding the foregoing, if such proceeding by way of condemnation or eminent domain shall be"insubstantial," Buyer shall not have the right to terminate this Purchase Agreement but shall be credited with or assigned all Seller's right to any proceeds therefrom. An "insubstantial" proceeding shall be one which (i) does not relate to the taking or closing of any immediate right of access to the Property or any parking at the Property and (ii) affects only the perimeter of the Property and does not involve more than the equivalent of $100,000.00 in value. In the event the parties hereto are unable to agree on the "substantiality" of the aforesaid taking within thirty (30) days after the date of Buyer's receipt of written notice thereof, then the determination of said issue will be in accordance with the provisions of Article XIV. ARTICLE XIX COSTS (a) At or prior to Closing, Seller shall pay the following: (i) all real estate transfer taxes; (ii) all title insurance premiums and expenses respecting the Commitment and Owner's Policy, including extended coverage but excluding any endorsements thereto required by Buyer; (iii) one-half (1/2) of the Title Company escrow charges; (iv) the fee for the Surveys including the Updated Survey; and (v) other customary Seller's charges. (b) At or prior to Closing, Buyer shall pay the following: (i) the costs of any endorsements to the Owner's Policy required by Buyer; (ii) one-half (1/2) of the Title Company escrow charges; (iii) the cost of recording the Deed; and (iv) other customary Buyer's charges. ARTICLE XX NOTICES All notices required or permitted to be given under this Purchase Agreement shall be in writing and shall be sent or delivered to the addresses set forth below (or such other address as may be hereafter specified): To Seller: 217 CAPITOL, LLC 124 W. Allegan 13 21 st Floor Lansing, Michigan 48933 Attn: John N. Hindo, President E: JHindo@bojigroup.com With a copy to: Honigman LLP Attn: Lowell D. Salesin, Esq. 39400 Woodward Avenue, Suite 101 Bloomfield Hills, Michigan 48304 E-Mail: Isalesin@honigman.com To Buyer: Office of the Mayor, City of Lansing 124 W Michigan Avenue, 9th Floor Lansing, MI 48933 Attn- Mayor Andy Schor lansing.mayor@lansingmi.gov With a copy to: Office of the City Attorney, City of Lansing 124 W Michigan Avenue, 5th Floor Lansing, MI 48933 Attn: Jim Smiertka, City Attorney jim.smiertka@lansingmi.gov Notices shall be sent either by personal delivery, overnight courier guaranteeing next day delivery or email and shall be deemed given one (1) business day following deposit if delivered to an overnight courier guaranteeing next day delivery or on the same day if sent by personal delivery or email (with proof of transmission). Notices may also be delivered by email or facsimile and shall be deemed received upon proof of transmission. Attorneys for each party shall be authorized to give notices for such party. ARTICLE XXI ADDITIONAL COVENANTS In addition, the parties agree as follows: (a) Authority to Sign. Each person signing this Purchase Agreement for Seller and for Buyer warrants, by his or her signature, that he or she has full authority to enter into this Purchase Agreement on behalf of the party for whom he or she signs. (b) Written Agreement and Exhibits. This Purchase Agreement and any exhibits attached hereto set forth the entire understanding between the parties with respect to the transactions contemplated herein, and supersede all previous agreements, discussions and representations. This Purchase Agreement may not be modified except in writing, signed by Buyer and Seller. 14 (c) Headings. The paragraph headings used in this Purchase Agreement are for the convenience of the parties only, do not constitute part of the contract herein set forth, and shall not be relied on in interpreting or construing any provision hereof. (d) Attorneys' Fees. In the event Buyer finds it necessary to employ legal counsel or to commence litigation or other proceedings against Seller with respect to or on account of this Purchase Agreement, Buyer shall be entitled to recover from Seller all fees, charges, costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) incurred by the Buyer in connection with actual or contemplated enforcement of its rights and remedies hereunder (which costs, expenses, fees and charges shall be included in the amount of any judgment rendered). This subsection shall survive termination of this Purchase Agreement. (e) Time Periods. Time is of the essence of this Purchase Agreement. Except as otherwise specifically provided in this Purchase Agreement, all time periods provided for herein shall refer to calendar days and shall expire at 11:59 P.M. Eastern Time on the last of such days; provided, however, that if the time of the performance of any obligation under this Purchase Agreement expires on a Saturday, Sunday or legal holiday, the time for performance shall be extended to the next succeeding day which is not a Saturday, Sunday or legal holiday. (f) Construction of Agreement. Buyer and Seller confirm to each other that both they and their respective counsel have reviewed and revised this Purchase Agreement and that any presumption or other rule of construction to the effect that ambiguities are to be resolved against the party with primary drafting responsibility therefor shall not apply to this Purchase Agreement or to any provision hereof. Subject to the foregoing, this Purchase Agreement shall be construed as a whole in accordance with its fair meaning. (g) Waiver. Except as otherwise may be expressly provided to the contrary herein: (i) no failure to exercise or delay in exercising by any party hereto of any right or remedy consequent upon a breach, and no failure to insist on or delay in insisting on the strict performance, of any provision of this Purchase Agreement shall constitute or operate as a waiver thereof or of any other right or remedy or of any other provision hereof or of any subsequent breach of the same or any other provision hereof, and such party shall retain all rights and remedies provided for herein or now or hereafter existing at law or in equity with respect to the same or any subsequent act or omission which constitutes such breach or nonperformance; and (ii) no partial exercise of any right or remedy shall preclude any other or further exercise thereof or the exercise of any other right or remedy provided for herein or now or hereafter existing at law, in equity or otherwise. A waiver in one or more instances of any provision hereof or breach thereof shall apply to the particular instance and at the particular time only, and no such waiver shall be deemed a continuing waiver, nor shall any waiver of a Closing delivery to be provided hereunder operate to preclude the party waiving such delivery from commencing any action after Closing as to a breach of warranty or representation which breach would have been 15 disclosed by the delivery of such item. No provision of this Purchase Agreement to be performed or complied with by any party, and no breach thereof, shall be waived, altered or terminated except by a written instrument executed by the other party. No course of dealing between the parties shall operate as waiver of any of their respective rights, powers or privileges under this Purchase Agreement. (h) Further Assurances. As and to the extent otherwise contemplated by this Purchase Agreement, each party to this Purchase Agreement agrees that at any time and from time to time after the date hereof it will, at its own sole cost and expense, immediately following the reasonable request of the other party hereto, promptly execute, acknowledge (if necessary) and deliver or cause to be promptly executed, acknowledged (if necessary) and delivered, such agreements, certificates, statements, instruments and documents, and promptly take, or promptly cause to be taken, such other and further steps and actions, in either case as may be required by law or as reasonably shall be deemed necessary by the other party in order to more fully effect, evidence or carry out the intent and purpose of this Purchase Agreement or as shall be essential to satisfy Title Company's requirements. (i) Invalidity of Particular Provisions. If any provision contained in this Purchase Agreement or the application thereof to any person, entity or circumstance shall, for any reason or to any extent, be held to be invalid, illegal or unenforceable in any respect, all other provisions hereof, as well as the application of the affected provision to persons, entities or circumstances other than those as to which it is held to be invalid, illegal or unenforceable, shall not be affected thereby and, to the extent permitted by law, this Purchase Agreement shall be legal and valid and enforced to the fullest extent permitted by law as if such invalid, illegal or unenforceable provision had never been included herein; it being intended by the parties hereto that each of the provisions hereof shall be severable. Moreover, it is the intention of the parties hereto that if any provision of this Purchase Agreement is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. 0) Gender and Number. This Purchase Agreement shall be so construed that whenever applicable the use of the singular number shall include the plural number, the use of the plural number shall include the singular number, and the use of the feminine, masculine or neuter gender shall include the other genders. (k) Applicable Law. This Purchase Agreement shall be governed by and construed and enforced in accordance with, the laws of the State of Michigan applicable to agreements made and to be performed wholly therein. (1) Successor and Assigns. This Purchase Agreement shall be binding upon and inure to the benefit of Buyer, Seller and their respective heirs, executors, personal representatives, successors and assigns. Either party hereto may assign its rights hereunder to an entity owned or controlled by such party at any time prior to Closing by 16 giving notice thereof to each of the other party hereto and Title Company. However, following any such assignment, the assigning party shall not be released from its obligations hereunder thereafter accruing. (m) Counterparts; Multiple Originals. For the convenience of the parties, this Purchase Agreement may be executed in any number of separate identical counterparts. Any counterpart or set of identical counterparts containing original signatures for both Buyer and Seller shall constitute an original agreement for all purposes. Although there may be multiple originals, all of them together shall constitute in the aggregate but one and the same instrument. 17 IN WITNESS WHEREOF, the parties hereto have caused this Purchase Agreement to be executed and delivered as of the day and year first above written. SELLER: 217 CAPITOL, LLC, a Michigan limited liability company By: Name: Ronnie J. Boji Its: Authorized Representative BUYER: City of Lansing, Counties of Ingham and Eaton, State of Michigan By: Name: Andy Schor Its.. Mayor EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Land Situated in the State of Michigan, County of Ingham, City of Lansing. The South 52 feet of Lot 9; the North 14 feet of Lot 9, and the South 33 1/6 feet of Lot 10, block 115, Original Plat. City of Lansing, Ingham County, Michigan, according to the Plat thereof,as recorded in Liber 2 of Plats, Page 36, Ingham County Records. EXHIBIT A-1 DEPICTION OF THE PROPERTY [To be inserted] EXHIBIT B SELLER'S NEIGHBORING PROPERTY EXHIBIT C PERMITTED EXCEPTIONS [To be inserted] 076492.000039 4869-2524-4037.11