[*Letterhead of purchaser or its authorizes broker or other agent]
Please note that this document is a generic template that may not be appropriate for all situations and
circumstances. In addition, this document may be modified from time to time, at RACER's sole discretion, and
posted on the RACER website when effective. Potential buyers should not assume that this generic document
provides any guarantee to future terms for sale or lease.
PRIVILEGED AND CONFIDENTIAL
Revitalizing Auto Communities Environmental Response Trust
2930 Ecorse Road, Ypsilanti, MI 48197
Attention: Bruce Rasher, Redevelopment Manager
Re: Letter of Intent to Purchase Certain Real Property Located at [*address]
Dear Mr. Rasher:
On behalf of Purchaser,1 I submit this Letter of Intent (LOI) to identify certain material terms of Purchaser’s
proposal to purchase the Property described below from Seller.
Purchaser: [*Legal name of purchaser] , a [*type of entity and state of formation] ,
having its principal place of business at [*address]
Seller2: [*Revitalizing Auto Communities Environmental Response Trust, a Trust
created under the laws of New York State or RACER Properties LLC, a Delaware
limited liability company] (“RACER”).
Property: Approximately [*#] acres of land, located at [*address] and referenced as
Property Number [*#] in Appendix A of the Settlement Agreement.
Purchase Price: $ [*#] .
Deposit: Within 5 Business Days following execution and delivery of the Purchase and
Sale Agreement, Purchaser shall deposit with the Escrow Agent $ [*#] which
is 10% of the Purchase Price (“Deposit”).
Condition; Inspection: With the exception of RACER’s continuing Environmental Activities, the Property
is being sold in its “as is” and “whereas” condition, with no representations or
warranties by Seller, except as set forth on Exhibit B annexed hereto.
Purchaser may access the Property to inspect and conduct its Diligence Review,
as described in Exhibit B.
Closing Date: The Closing shall occur within 30 days after the Inspection Period in accordance
with Exhibit B.
Title: Seller shall convey to Purchaser fee simple title to the Property, subject to no
Liens except for Permitted Liens, and as described in Exhibit B.
Zoning & Land Use Seller makes no representation or warranty with respect to zoning or permitted
Matters: use of the Property, except as specifically set forth in Exhibit B.
Environmental Matters: Seller makes no representation or warranty with respect to the environmental
matters pertaining to the Property except as specifically set forth in Exhibit B.
Purchaser will provide post-Closing access to the Property to Seller to conduct
its Environmental Activities, as described in Exhibit B.
This and other capitalized terms are defined below and in Exhibit A, annexed. Wherever in this Letter of Intent brackets
“” and an asterisk “*” appear, Purchaser shall insert relevant information or terms in lieu thereof.
[*For Properties located in the states of Indiana, Kansas, Missouri and Wisconsin, title will come from, and this Letter of
Intent will be addressed to, the Trust. In all other States, title will come from, and this Letter of Intent will be addressed to,
RACER Properties LLC, a wholly-owned subsidiary of the Trust.]
Letter of Intent
Property Taxes and Property Taxes, Closing costs and any other apportionments shall be treated at
Closing Costs: Closing as set forth in Exhibit B.
Assignment: Purchaser may not assign this LOI without Seller’s prior written consent, to be
granted or withheld in its sole discretion.
Diligence: Seller and Purchaser shall provide each other with copies of all Diligence, as
required in Exhibit B. Such Diligence, and this Letter of Intent, are deemed
Confidential Information, subject to the Confidentiality Agreement.
Purchase Agreement: Within 5 Business Days following the execution and delivery to Seller of this
LOI, Seller shall provide the Purchase and Sale Agreement. The undersigned
hereby represents that it has read the Model Purchase and Sale Agreement
currently published on RACER’s website, and agrees that the Purchase and Sale
Agreement shall be in substantially the form of such model Purchase and Sale
Agreement, as may be modified in Exhibit B.
Broker’s Authorization & Seller shall pay any commission due to Seller’s Broker and shall have no
Fees: Liability for any commission payable to Purchaser’s Broker or any other broker.
Paragraph 65: Purchaser acknowledges that its proposal must satisfy the Sales Criteria, which
Sales Criteria are incorporated herein by reference. Purchaser shall include in
this LOI, by attaching as Exhibit C hereto, such information and responses to
the requisite Sales Criteria, as is necessary to demonstrate, in Seller’s sole
discretion, that its proposal herein meets such Sales Criteria.
Authorization: The undersigned is duly authorized and empowered to enter into this LOI on
behalf of Purchaser.
Non-Binding Agreement: This LOI broadly outlines certain material terms of the Proposal for discussion
purposes only. It shall have no binding force or effect, nor confer any rights or
impose any obligations upon any party, unless and until the execution and
delivery of the Purchase Agreement. The undersigned acknowledges that it is
Seller’s intent to explore alternative potential purchasers for the Property.
Effective Date: The date on which the latter of the two -- Purchaser and Seller -- executes this
Letter of Intent.
Please indicate your acceptance by executing in the space provided below and distributing one executed copy
to all Parties and brokers on or before Noon EST [*date] , 2011. In the event that Purchaser has not
received Seller’s acceptance by that time, this Agreement shall be deemed null and void.
Revitalizing Auto Communities
Environmental Response Trust
[*Revitalizing Auto Communities
Environmental Response Trust
or RACER Properties LLC] 3
By: ________________________ ___________
[*For Properties located in the states of Indiana, Kansas, Missouri and Wisconsin, the signatory will be the Trust. In all
other States, the signatory will be RACER Properties LLC, a wholly-owned subsidiary of the Trust.]
Letter of Intent
The following terms shall have the meaning ascribed thereto below, where used in this Letter of Intent,
including any other Exhibit hereto, or document delivered pursuant hereto (to the extent not defined therein).
Any other capitalized terms used in this LOI which are not defined here, shall have the meaning ascribed
thereto in the Settlement Agreement.
(a) “Access Agreement” means an agreement in form acceptable to the Parties, pursuant to
which Purchaser shall be granted access to the Property prior to the [*execution of the Purchase and Sale
Agreement or Closing] to inspect the Property and conduct its Diligence Review.
(b) “Business Day” means any day other than (i) a Saturday, Sunday or federal holiday or (ii) a
day on which commercial banks in [Detroit, MI], are authorized or required to be closed for all or any portion
of the normal business hours of the day.
(c) “Claim” means any claim, action, cause of action, suit, inquiry, judicial and administrative
proceeding, determination, hearing, order, decree, judgment, settlement, grievance, mediation or arbitration.
(d) “Closing” means the date on which the Sale is consummated in accordance with the Purchase
(e) “Confidentiality Agreement” means the Confidentiality Agreement signed and delivered by
(f) “Confidential Information” means as defined in the Confidentiality Agreement signed and
delivered by the Parties.
(g) “Diligence” means any and all Confidential Information of Seller pertaining to the Property
and its condition, use and title.
(h) “Diligence Review” means any and all inspections and assessments of the Property and the
physical condition thereof and title thereto, including without limitation, engineering reports, survey,
environmental site assessments and title reports, but excluding in any event, any Invasive Work, unless
expressly authorized by Seller and in accordance with the conditions thereof.
(i) “Environmental Actions” means any response, removal, investigation, sampling,
remediation, reclamation, closure, post-closure, corrective action, engineering controls, institutional controls,
deed restrictions, overnight costs and OMM activities authorized or required under Law with respect to the
(j) “Environmental Activity” means any and all Environmental Actions which RACER has
undertaken, and/or may undertake, on, under or at the Property (or any portion thereof) to address any and
all Existing Environmental Conditions for which RACER is responsible under the Settlement Agreement,
including such monitoring, testing and other activities as are required or reasonably appropriate to achieve
regulatory approval or closure in connection therewith, all as Seller shall agree, in its sole discretion, with
(k) “Environmental Condition” means any Release or other event, circumstance and/or
condition existing at, on, in or under the Property, or the ambient air around the Real Property.
(l) “Environmental Easement Agreement” means that certain Environmental Easement and
Use Restriction Agreement to be entered into between Seller and Purchaser as a condition to Closing, which
Environmental Easement Agreement, among other things, will set forth any Restrictions applicable to the
Property in connection with the Environmental Activities, and grants to Seller post-Closing access to the
Property to conduct and complete such Environmental Activities.
(m) “Environmental Law” means any and all Laws relating to pollution, noise and/or odor
control, wetlands pollution, the protection or restoration of health, safety or the environment, natural
resources, and/or the use, transportation, presence, storage, handling, disposal, discharge, recycling,
treatment, generation, processing, labeling, production, release, contamination or disposal of threatened
Letter of Intent
Release of Hazardous Substance, including, without limitation, the following: (a) the Clean Air Act, 42 U.S.C.
Section 7401; (b) the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq.; (c) the
Comprehensive Environmental Response Conservation and Liability Act, 42 U.S.C. Section 9601 et seq.; (d)
the Federal Water Pollution Control Act, 33 U.S.C Section 1251 et seq.; (e) the Toxic Substances Control Act,
15 U.S.C. Section 2601 et seq.; (f) the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; (g) OSHA, 29
U.S.C. 651 et seq.; (h) the Emergency Planning and Community Right to Know Act, 42 U.S.C. Section 11001
et seq.; and (i) the Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq.; as any of the foregoing has
been, and may be, amended, supplemented and/or replaced from time to time, as in effect on the date
hereof, and including the analogous Laws of the State and applicable local Law or applicable Tribal Law.
(n) “Existing Environmental Condition” means any Environmental Condition existing as of the
date hereof for which Seller is obligated to perform Environmental Actions under the Settlement Agreement.
(o) “Force Majeure” means any act of God, war, terrorism, civil commotion, governmental
embargo or moratorium, casualty, labor dispute not within the direct control of a Party, unavailability or
shortages of labor, materials or equipment which would not reasonably be foreseeable, or any other cause or
event which would not reasonably foreseeable or is beyond a Person’s reasonable ability to control (except
financial inability or matters arising from or related to a default, with respect to any defaulting Party).
(p) “Governmental Authority” means any federal, tribal, state or local governmental or quasi-
governmental authority, body, department, commission, board, bureau, agency, division, court or other
instrumentality, whether foreign or domestic, of any country, nation, republic, federation or similar entity or
any state, county, parish or municipality, jurisdiction or other political subdivision thereof.
(q) “Hazardous Substances” shall have the meaning set forth in the Settlement Agreement.
(r) “Inspection Period” means the time period within which Purchaser has to conduct and
complete its Diligence Review with respect to each phase thereof (an Inspection Period), and collectively (the
Inspection Period); provided that the Inspection Period shall expire on [*Outside Date] , unless otherwise
extended in accordance herewith.
(s) “Intended Use” means industrial redevelopment uses only, as defined under applicable
(t) “Invasive Work” means, collectively, any physically intrusive work, such as boring, drilling,
sampling, moving, disturbing or removing any portion of the Property or otherwise affecting the Property.
(u) “Laws” means all applicable laws, statutes, ordinances, rules, regulations, codes, Permits,
judgments, administrative or court orders, decrees, injunctions, technical or other standards, policies,
determinations, writs, and other requirements of any Governmental Authority, having jurisdiction over the
Property, or the use or operation thereof, together with any applicable Executive Order of the President of the
United States and common law.
(v) “Letter of Intent” or “LOI” means the Letter of Intent to which this Exhibit A is attached.
(w) “Liens” means, with respect to the Property (or any portion thereof, or interest therein), any
mortgage, lien (statutory or otherwise), Claim, pledge, charge, option, assessment, levy, easement, covenant,
condition, reservation, restriction, right-of-way, exception, limitation, violation, charge, security interest or
other encumbrance affecting the Property or any portion thereof or interest therein.
(x) “OMM” means the operation, monitoring and maintenance activities required under the
Settlement Agreement as Environmental Action.
(y) “Parties” means Seller and Purchaser, collectively.
(z) “Permits” means all licenses, permits, approvals, authorizations, certificates and consents
pertaining to the Access, and the use and/or performance of any work required by any Governmental
Authority in connection therewith, including, without limitation, state and local health and environmental
department licenses, or otherwise required by Law in connection therewith.
(aa) “Permitted Liens” means any and all Liens and other matters affecting, or which may affect,
title to the Property (or any portion thereof), or which would otherwise be disclosed by an accurate survey or
Letter of Intent
visual inspection of the Property, including without limitation: (A) Liens existing as of the date title to the
Property was conveyed to Seller, except as otherwise provided under the Purchase and Sale Agreement; (B)
Utility easements and other access easements, licenses and rights of way entered into in the ordinary course
of Seller’s management of the Property or conduct of any Environmental Activities; (C) Liens of which the
conveyance of the Property to Seller was ordered by the Bankruptcy Court to be made free and clear; (D)
Liens which would not reasonably be expected to have a material adverse effect on the Property for the
Intended Use; and (E) any and all Restrictions provided under the Purchase Agreement; but excluding any
and all (i) monetary Liens for a liquidated sum, to the extent such Liens were created by or on behalf of
Seller; (ii) Liens in favor of the United States Treasury; and (iii) Liens for which Seller is responsible for
removing or causing to be insured over, under the Purchase and Sale Agreement.
(bb) “Property Taxes” means all taxes, assessments (including all assessments for public
improvements or benefits), excises, levies, fees, charges, water, sewer or similar rents, rates and charges
(including county, school, town and special district taxes), together with associated inspection fees of any kind
or nature whatsoever, general or special, ordinary or extraordinary, foreseen or unforeseen, secured or
unsecured, whether or not now customary or within the contemplation of Seller and Purchaser, that are
levied, assessed, charged, confirmed, or imposed by any Governmental Authority on or against, or otherwise
with respect to, the Property and/or the use, operation and occupancy thereof (and any tax, assessment,
excise, levy, fee, or charge levied wholly or partly in lieu thereof or as a substitute therefor).
(cc) “Purchase and Sale Agreement” means that certain Purchase and Sale Agreement to be
entered into between Seller and Purchaser, incorporating the terms and conditions of this LOI, and any other
terms and conditions Seller deems necessary or appropriate, which are not inconsistent with the terms hereof.
(dd) “Purchaser’s Broker” means [*Name of Brokerage Company] , and is representing
Purchaser in connection with the Sale.
(ee) “RACER” means [*Revitalizing Auto Communities Environmental Response Trust, a Trust
created under the laws of New York or RACER Properties LLC, a Delaware limited liability company] 4 .
(ff) “Release” means releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing, transporting or dumping of Hazardous Substances, or as
otherwise defined under or otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Substances.
(gg) “Representatives” means, with respect to each Party, its affiliates, agents, employees,
contractors, subcontractors, representatives, servants, licensees, sublicensees, invitees, officers, directors,
shareholders, members, advisers and stakeholders, and such other persons over which said Party exerts
(hh) “Restrictions” means those restrictions, covenants, conditions, reservations, controls
(engineering, land use, institutional and otherwise), conditions, easements or rights-of-way, affecting the
future use of, access to, or activities on the Property, relating to the ongoing Environmental Activities on, at or
under the Property, and otherwise limiting the use and/or development of the Property to the Intended Use in
order to implement the Settlement Agreement.
(ii) “Sale” means the sale by Seller to Purchaser of the Property for the Purchase Price.
(jj) “Sales Criteria” means those certain six (6) criteria Seller must consider when evaluating any
offer for the sale or lease of the Property, in accordance with Paragraph 65 of the Settlement Agreement,
which are described on RACER’s website, along with its guidance on various factors which may be taken into
account with respect thereto (www.racertrust.org/Properties/Sales_Criteria).
(kk) “Seller’s Broker” means [*Name of Brokerage Company] , through [*Name of its Agent, if
any] , its authorized agent, and is representing Seller in connection with the Sale.
[*For Properties located in the states of Indiana, Kansas, Missouri and Wisconsin, “RACER” will refer to the Trust. In all
other States, “RACER” will refer to RACER Properties LLC, a wholly-owned subsidiary of the Trust.]
Letter of Intent
(ll) “Settlement Agreement” means the Environmental Response Trust Consent Decree and
Settlement Agreement that established the Trust, notice of which was published in the 75 Fed. Reg. 66390
(Oct. 28, 2010), and a copy of which is available on the Trust’s website at
(mm) “State” means the state in which the Property is located.
(nn) “Title Company” means First American Title Insurance Company or Fidelity National Title
Insurance Company, through the national representative provided by Seller, which may utilize a duly
authorized local agent thereof requested by Purchaser and approved by Seller.
(oo) “Utilities” means any and all water, gas, electric, stormwater, compressed air, steam,
sanitary, waste water and fire suppression (as applicable) systems and other utilities, and their infrastructure,
serving or encumbering the Property, or any portion thereof, including drains, pipes, ditches, culverts, wires,
cabling, poles, and retention and detention ponds.
Letter of Intent
ADDITIONAL LETTER OF INTENT TERMS
The Purchase Agreement shall be in substantially the form, terms and conditions, set forth in the Model PSA,
and include the following, which are provided for informational purposes:
1. Deposit. The Deposit may be delivered in cash or by irrevocable letter of credit, at Purchaser’s
discretion, provided that the issuer and terms of issuance of any letter of credit shall be acceptable to
Seller. The Deposit shall be deposited and held by Seller in accordance with the terms set forth in the
Purchase and Sale Agreement. The Deposit shall be non-refundable, except as provided in the Purchase
and Sale Agreement, and in the event of a default by Purchaser under the Purchase and Sale Agreement,
the Deposit, together with any and all interest accrued thereon, shall be payable to Seller. Seller and
Purchaser shall enter into an escrow agreement with Title Company in form and substance reasonably
acceptable to the parties thereto and in accordance with the Purchase and Sale Agreement, and which
shall govern the holding and disbursement of the Deposit and Purchase Price by the Title Company.
2. Payment of the Purchase Price; Financing. At the Closing, Purchaser shall remit the Purchase Price,
less the Deposit, and as may be adjusted in accordance with the Purchase and Sale Agreement, by wire
transfer of immediately available funds to the Title Company for the account of Seller, unless otherwise
directed by Seller or provided in the Purchase and Sale Agreement. There shall be no financing
3. Condition. The Property shall be conveyed in its “as is” and “whereas” condition, subject to ongoing
Remediation Activities by RACER and ordinary wear and tear, and without the following, except to the
extent otherwise provided in the Purchase Agreement: (a) reliance upon any representation or warranty
whatsoever with respect to physical condition, fitness for a particular use or economic viability, including
without limitation, the (i) quality, nature, adequacy and physical condition and repair of the Property, or
any part thereof, including the structural elements, foundations, roofs, appurtenances, access,
landscaping, parking facilities and the electrical, mechanical, HVAC, plumbing, sewage, drainage and
utility systems, facilities and appliances; (ii) compliance of the Property or its operation with any
applicable Laws; (iii) existence or non-existence of underground storage tanks; (iv) availability, quality,
nature, adequacy and physical condition of any sewers, public or private utilities or other services to the
Property; (v) the habitability, merchantability, fitness, suitability, functionality, value or adequacy of the
Property or any component or system thereof, for the Intended Use; (vi) current and future quality and
nature of any groundwater or other water sources; or (vii) presence or existence of any Hazardous
Materials or other Environmental Condition on, in, under or about the Property or any nearby property or
the compliance of the Property with Environmental Laws. Purchaser further expressly acknowledges and
agrees that it is relying upon its own investigation of the physical, economic use, compliance and legal
condition of the Property.
4. Access; Diligence Review.
(a) On condition that Purchaser has executed and delivered the Access Agreement and Confidentiality
Agreement, and has obtained and maintains all requisite Permits and insurance, and subject to the
terms thereof, during the Inspection Period, Purchaser shall be granted access to, on, in or at the
Property, in order to conduct its Diligence Review, subject to and as set forth in the Access
Agreement; provided, however, that Purchaser shall not be permitted to conduct Invasive Work
without Seller’s approval, to be granted or withheld in its sole discretion. Seller shall cooperate in all
reasonable respects, at no cost to Seller, with Purchaser in facilitating such Diligence Review.
Purchaser shall indemnify, defend and hold harmless Seller and Seller’ Representatives from any and
all Liabilities and Liens arising from or related to Purchaser’s access to the Property, and/or the
performance of its Diligence Review, including without limitation, for any Environmental Condition
disturbed or exacerbated, or Environmental Activities disrupted or interfered with, during such access
and/or Diligence Review.
(b) Purchaser shall have the following Inspection Periods within which to complete the following phases of
its Diligence Review, should it choose to do so, subject to revision in Purchase and Sale Agreement:
(i) Title: Within 5 Business Days following delivery of a commitment for the issuance of title
insurance (the “Commitment”), with copies of all exceptions thereto, to the extent obtainable,
so long as Purchaser has obtained same within twenty (20) days of the Effective Date.
Letter of Intent
(ii) ALTA/ACSM Survey: Within thirty (30) days after receipt of the Commitment and all
exceptions thereto, to the extent obtainable.
(iii) Geotechnical Studies: Within forty-five (45) days following execution of the Purchase
(iv) Environmental Site Assessment Phase I: Within thirty (30) days following execution of the
(v) Development Concept Site Plan: Within sixty (60) days following receipt of the Survey, if
(vi) Governmental Incentives: Within ninety (90) days following delivery to Purchaser of the
ESA to determine the feasibility of any future development of the Property.
(c) Purchaser will have the right and option to extend the Inspection Period for up to two (2) additional
periods of thirty days (30) each (individually and collectively the “Extension Period”); so long as:
(i) Purchaser delivers notice of such Extension Period to Seller, at least 3 Business Days prior the
expiration of the applicable Diligence Period or Extension Period, as applicable; and
(ii) No default by Purchaser has occurred under the Access Agreement or Confidentiality
(iii) Purchaser has used all best efforts to meet the foregoing Inspection Periods, subject to Force
(iv) Purchaser has delivered to Seller to hold in escrow with the Deposit, for each Extension Period,
the sum of $25,000 (the “Extension Fee”), representing a non-refundable fee payable in
consideration of extending the Inspection Period, which Extension Fee shall be reflected as a
credit to the Purchase Price in Purchaser’s favor at Closing, but shall be payable to Seller in
the event a Closing does not occur for any reason other than Seller’s default thereunder.
(d) In the event Purchaser, in its sole discretion, is unable to satisfy itself with respect to the conditions of
the Property during the Inspection Period, Purchaser shall have the right to terminate the Purchase
and Sale Agreement before the end of the Inspection Period, without penalty, and the Deposit shall be
returned to Purchaser, except for any Extension Fee. If the Purchase and Sale Agreement is not
terminated on or before the last day of the Inspection Period, Purchaser shall have no right to delay
the Closing or terminate the Purchase and Sale Agreement, except to the extent otherwise provided in
the Purchase and Sale Agreement.
(a) Within 10 Business Days after the due execution and delivery by Purchaser of a countersigned copy of
this LOI, and the delivery by the undersigned of a Confidentiality Agreement, Seller shall provide, or
cause to be provided, to Purchaser, copies of all Diligence, to the extent existing and in Seller’s
possession or under its control, and not set forth on RACER’s website. All Diligence provided to
Purchaser shall be for informational purposes only and may not be relied on by Purchaser. With
respect to all Confidential Information pertaining, or otherwise relating, to any Hazardous Substances
or other matters governed under Environmental Laws pertaining to all or any part of the Property,
such Confidential Information shall be treated as required under the Confidentiality Agreement.
(b) Thereafter, so long as this LOI or a Purchase and Sale Agreement is in force and effect, Seller shall
promptly after receipt, provide a copy to Purchaser of any and all additional Diligence.
6. Title Matters.
(a) At Closing, Seller shall convey to Purchaser, all of its right, title and interest, if any, in and to the
Property, subject to no Liens other than Permitted Liens, pursuant to a quitclaim deed with limited
warranties as to Seller’s acts only, as more particularly described in the Purchase and Sale Agreement.
Purchaser acknowledges that Seller acquired the Property pursuant to a quitclaim deed, and
accordingly, that Seller makes no representation or warranty that it actually owns the entire Property
in fee simple.
(b) It shall be a condition to Closing, that Seller obtains any releases of Liens of the United States
Treasury, other than Permitted Liens.
(c) Purchaser, at its option, shall have an ALTA title insurance policy issued by the Title Company, in the
amount of the Purchaser Price, insuring its fee simple title interest in the Property, free and clear of all
Letter of Intent
Liens and Claims, other than Permitted Liens; provided, however, the failure of Title Company to issue
such title insurance policy, or of Seller to have fee simple title in and to all of the Property, shall not
entitle Purchaser to delay the Closing or terminate the Purchase and Sale Agreement, unless and to
the extent Purchaser has objected thereto during the relevant Inspection Period, and Seller has
agreed to cure. Purchaser shall pay all title insurance premiums in connection with such policy.
7. Zoning and Land Use Matters. Purchaser acknowledges and agrees that: (a) Seller makes no
representations or warranties about the current zoning, permitted use or other matters affecting, or which
may affect, Purchaser’s use or operation of the Property; (b) the Property may be conveyed subject to
Restrictions, and/or such other restrictions, limitations and/or requirements as may be imposed on the
Property and/or the development, redevelopment, use, reuse or operation thereof, by the Settlement
Agreement or by Governmental Authorities, and/or as otherwise agreed by the Parties under the Purchase
and Sale Agreement and/or the Environmental Easement and Use Restriction Agreement, with respect to
any Environmental Conditions pertaining to the Property; and (c) Purchaser’s use of the Property may be
limited to the Intended Use. Furthermore, if the Property shares Utilities with adjoining or other land,
Purchaser shall, at its cost and expense, arrange and implement, working in good faith cooperation with
such other land owner, for the separation of such Utilities effective as of the Closing Date (except as
otherwise provided in the Purchase and Sale Agreement) in accordance with applicable Laws and any
existing agreements pertaining to such Utilities and/or their separation, copies of which have been
provided to Purchaser.
8. Environmental Matters. Purchaser acknowledged and agrees that: (a) Environmental Conditions exist
at, or, under or about the Property; (b) under the Settlement Agreement, and the other documentation
described therein or delivered pursuant thereto, Seller may have continuing responsibility to conduct,
manage and/or fund Environmental Actions with respect thereto, with the objective that the Property be
put to productive or beneficial use; (c) in furtherance thereof, Seller (and its Representatives and
applicable Governmental Authorities) may need access to, and the right to conduct Environmental Actions
at, the Property from and after the date hereof, and after the Closing Date, as more particularly described
in the Purchase and Sale Agreement and/or the Environmental Easement and Use Restriction Agreement;
and (d) that Purchaser shall cooperate in obtaining any requisite approvals, and/or overcoming any
objections, of any Governmental Authorities to the Sale.
9. Property Taxes, Closing Costs and other Apportionments.
(a) All expense items customarily adjusted upon the sale of a property similar to the Property, shall be
adjusted between Seller and Purchaser in accordance with local custom, as of the date of Closing, and
thereafter re-prorated based upon the actual amounts due and payable, except as otherwise provided
herein or in the Purchase and Sale Agreement, and subject to the terms thereof; provided, however,
Seller shall have no responsibility for title insurance premiums or survey costs. Credits in favor of
Purchaser shall be deducted from the Purchase Price and credits in favor of Seller shall be added to
the Purchase Price.
(b) Notwithstanding the foregoing, Purchaser acknowledges and agrees that Seller reserves the right to
refrain from paying or adjusting at Closing for any Taxes which are not yet due and payable or which
are, or may be, contested by Seller in good faith and in accordance with appropriate Laws
(collectively, the “Holdback Taxes”), which Holdback Taxes shall: (i) not be the subject of a Purchase
Price credit to Purchaser, but shall be paid by Purchaser at Closing from the balance of the Purchase
Price payable to Seller, into escrow with Title Company pursuant to the terms of a mutually acceptable
Tax Escrow Agreement; and (ii) be paid to the appropriate Governmental Authority either, at Seller’s
direction, when such Holdback Taxes are due and payable, or if Seller has decided to contest such
payment, when a non-appealable determination has been made by the appropriate Governmental
Authority regarding the disposition of such Holdback Taxes, whereupon, the balance of such Holdback
Taxes remaining after payment of the amount due, or so determined to be due, and payable shall be
released and disbursed to Seller; provided, however, should Seller determine to contest any payment
of Holdback Taxes, Seller shall indemnify Purchaser for any penalties assessed or Liens incurred as a
(c) Except as otherwise provided in the Purchase and Sale Agreement, each Party shall be responsible for
its own transaction costs.
10. Purchaser acknowledges and agrees that this LOI, the Sale and the terms and conditions thereof are
subject to the Confidentiality Agreement.