Exhibit 10.419
SEPTEMBER 8, 2004
Fairway Investments, L.L.C. (Seller)
c/o Easlan Capital of Atlanta (Broker)
Attn: Xxxxxxx Xxxxxxxxx
0000 Xxxxxxxxx Xxxx XX
Xxxxx Xxxxx 000
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
RE: WINCHESTER COMMONS SHOPPING CENTER
MEMPHIS, TENNESSEE
Dear Xx.Xxxxxxxxx:
This letter represents this corporation's offer to purchase the Winchester
Commons Shopping Center with 93,024 net rentable square feet, situated on
approximately 12.5 acres of land, located at 0000 Xxxxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxx.
The above property shall include all the land and buildings and common
facilities, as well as all personalty within the buildings and common areas,
supplies, landscaping equipment, and any other items presently used on the site
and belonging to owner, and all intangible rights relating to the properties.
This corporation or its nominee will consummate this transaction on the
following basis:
1. The total purchase price shall be $13,072,687.00 all cash, plus or minus
prorations, WITH NO MORTGAGE CONTINGENCIES, to be paid at CLOSING 30
BUSINESS DAYS following the acceptance of this agreement (see Paragraph
10). Purchaser has previously deposited with the Escrowee named below an
xxxxxxx money deposit of $150,000.00.
Purchaser shall allocate the land, building and depreciable improvements
prior to closing.
2. Seller represents and warrants (TO SELLER'S ACTUAL KNOWLEDGE), that the
above referenced property is leased to the tenants described on Exhibit A
on triple net leases covering the building and all of the land, parking
areas, reciprocal easements and REA/OEA agreements (if any), for the entire
terms and option periods. Any concessions given to any tenants that extend
beyond the closing day shall be settled at closing by Seller giving a full
cash credit to Purchaser for any and all of those concessions.
3. Seller warrants and represents (TO SELLER'S ACTUAL KNOWLEDGE), that the
property is free of violations, and the interior and exterior structures
are in a good state of repair, free of leaks, structural problems, and
mold, and the property is in full compliance with Federal State, City and
County ordinances, environmental laws and concerns, and no one has a lease
that
[SEAL]
SEPTEMBER 8, 2004
PAGE 2
exceeds the lease term stated in said leases, nor does anyone have an
option or right of first refusal to purchase or extend, nor is there any
contemplated condemnation of any part of the property, nor are there any
current or contemplated assessments.
4. Seller warrants and represents (TO SELLER'S ACTUAL KNOWLEDGE), that during
the term of the leases the tenants and guarantors are responsible for and
pay all operating expenses relating to the property on a prorata basis,
including but not limited to, real estate taxes, REA/OEA agreements,
utilities, insurance, all common area maintenance, parking lot and the
building, etc. as set forth in the leases.
Prior to closing, Seller shall not enter into or extend any agreements
without Purchaser's approval (which shall not be unreasonably withheld) and
any contract presently in existence not accepted by Purchaser shall be
terminated by Seller. Any work presently in progress on the property shall
be completed by Seller prior to closing or, at Purchaser's option, Seller
may credit Purchaser in cash with an amount required to finish said work.
5. Ten (10) days prior to closing Seller shall furnish Purchaser with estoppel
letters acceptable to Purchaser from all tenants, guarantors, and parties
to reciprocal and/or operating easement agreements, if applicable. If
Seller is unable to obtain estoppel letters from all tenants, Purchaser
shall close provided Seller delivers estoppels certificates from Kroger and
75% of the non-Kroger leased area, together with Seller's estoppel
certificate covering all missing tenant estoppel certificates.
6. Seller is responsible for payment of any LEASING BROKERAGE FEES or
commissions which are due any leasing brokers for the existing leases
stated above or for any lease renewals which are executed prior to closing
including any commission payable in connection with renewal of the existing
Hallmark lease.
7. This offer is subject to Seller supplying to Purchaser prior to closing a
certificate of insurance from the tenants and guarantors in the form and
coverage acceptable to Purchaser for the closing to the extent that tenants
are obligated under their respective leases to provide landlord with
certificates of insurance and to the extent tenants actually provide such
certificates.
8. Purchaser shall obtain, and each party shall pay one-half of the cost of a
certificate which must be acceptable to Purchaser from a certified
hygienist for environmental concerns that there is no asbestos, PCBs, or
hazardous substance in the buildings and on the property; in other words, a
Level 1 environmental audit (and Level 2 audit, if required).
9. The above sale of the real estate shall be consummated by conveyance of a
special warranty deed from Seller to Purchaser's designee, with the Seller
and Purchaser each paying one-half of any city, state, or county transfer
taxes for the closing, and Seller agrees to cooperate with Purchaser's
lender, if any, and the money lender's escrow.
10. The closing shall occur through Chicago Title & Trust Company, in Chicago,
Illinois with Xxxxx Xxxxxx as Escrowee, 30 business days following
acceptance of this agreement, at which time title to the above property
shall be marketable; i.e., free and clear of all liens, encroachments and
encumbrances, and an ALTA form B owner's title policy with complete
extended coverage and required endorsements, waiving off all construction,
including 3.1 zoning including parking and loading docks, and insuring all
improvements as legally conforming uses and not as non-conforming or
conditional uses, paid by one-half by Purchaser and one-half by Seller,
shall be issued, with all warranties and representations being true now and
at closing and surviving the closing for a period of six (6) months, and
each party shall be paid in cash their respective credits, including, but
not limited to, security deposits, rent and expenses, with a proration of
real estate taxes based (at Purchaser's option) on the greater of 110% of
the most recent bill or latest assessment, or the estimated assessments for
2003 and 2004 using the Assessor's formula for these sales transactions,
SEPTEMBER 8, 2004
PAGE 3
with a later reproration of taxes when the actual bills are received. At
closing, no credit will be given to Sellers for any past due, unpaid or
delinquent rents.
11. This offer is subject to Purchaser obtaining, prior to closing, an
appraisal of the property prepared by an MAI or other qualified appraiser,
acceptable to Purchaser or Purchaser's lender, if any, the cost of which
shall be shared equally by the parties.
12. It is a condition precedent to Purchaser's obligation to close that neither
Seller (Landlord) or any tenant and guarantor shall be in default on any
lease or agreement at closing, nor is there any threatened or pending
litigation.
13. Seller warrants and represents that he has paid all unemployment taxes to
date.
14. Prior to closing, Seller shall furnish to Purchaser copies of all
guarantees and warranties which Seller received from any and all
contractors and sub-contractors pertaining to the property. This offer is
subject to Purchaser's satisfaction that all guarantees and warranties
survive the closing and are assignable and transferable to any titleholder
now and in the future.
15. This offer is subject to the property being 100% occupied at the time of
closing, with all tenants occupying their space, open for business, and
paying full rent, including CAM, tax and insurance current, as shown on
Exhibit A attached. If the 1,400 sf. currently leased to Giant TV is not
leased and occupied at closing, Seller and Purchaser will establish at
closing, and Seller will fund from the proceeds of closing, a Master Lease
Escrow Agreement for three (3) months of base rent and additional changes
for such 1,400 sf. vacant space, at the rates for base rent and additional
rent shown on Exhibit A. If the lease for the 4,400 square foot Hallmark
store has not, by the closing date, been renewed for a term of at least
three (3) years, at a rent not less than $12.75 per square foot, then
Seller and Purchaser will establish at closing, and Seller will fund from
the proceeds of closing, a Master Lease Escrow Agreement for twelve (12)
months of base rent and additional charges for such 4,400 s.f. vacant
space, at the rates shown on Exhibit A, plus $5.00 per s.f. for tenant
improvements and $3.00 per s.f. for leasing commissions. Purchaser will
give Seller a license to lease such space on the terms specified above.
16. Seller shall be responsible for payment of a real estate brokerage
commission, as per their agreement, to Easlan Capital of Atlanta in the
amount of $72,698.00. Seller and Purchaser each represent that they are not
aware of any other brokerage commission due in connection with this
transaction.
17. Fifteen (15) days prior to closing, Seller must provide the title as stated
above. Seller has previously delivered to Purchaser an existing (1999)
survey of the property. Purchaser shall, prior to closing update the
existing survey or obtain a new Urban ALTA/ACSM spotted survey in
accordance with the minimum standard detail requirements for ALTA/ACSM Land
Title surveys jointly established and adopted by ALTA and ACSM in 1999 and
includes all Table A optional survey responsibilities and acceptable to
Purchaser and the title company. The cost of title policy and the cost of
the updated or new survey will be paid equally by the parties.
18. Seller agrees that prior to closing it shall put all vacant spaces into
"vanilla box" condition and ready for a new tenant to occupy immediately in
accordance with all applicable laws, codes, etc., including all
requirements for a certificate of occupancy for said space.
19. Xxxxxx agrees to immediately make available and disclose all information
that Purchaser needs to evaluate the above property, including all
inducements, abatements, concessions or cash payments given to tenants, and
for CAM, copies of the bills. Seller agrees to cooperate fully with
Purchaser and Purchaser's representatives to facilitate Purchaser's
evaluations and
SEPTEMBER 8, 2004
PAGE 4
reports, including at least a one-year audit of the books and records of
the property, at Purchaser's expense.
20. It is understood that this offer is contingent upon Seller, at Seller's
expense, having "Fantastic Xxxx", and "For Your Eyes Only" renewing their
lease for at least three years, with rents at least equal to the amount
they are presently paying, all of which must be acceptable to Purchaser.
21. If this transaction does not close, Purchaser shall return to Seller
originals or photocopies of all information provided by Seller to Purchaser
in connection with this transaction.
22. THIS REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH IN THE CONTRACT OF
PURCHASE AND SALE ARE THE ONLY REPRESENTATIONS AND WARRANTIES GIVEN
CONCERNING THE PROPERTY AND THERE ARE NO OTHER WARRANTIES, EITHER EXPRESS
OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
Purchaser acknowledges that, If Purchaser proceeds with this transaction:
(i) Purchaser has been provided with the opportunity to fully examine all
aspects of the Property and is relying solely on its inspection based upon
its own knowledge and on the representations or warranties made by Seller
in this agreement; (ii) Purchaser is not relying upon, and, except as
specifically set forth in this Contract of Purchase and Sale, Seller and/or
any third party on behalf of the Seller, have made no representation or
warranty of any nature whatsoever, concerning the Property, including, but
not limited to: (a) the quantity, quality or physical or environmental
condition thereof; (b) the merchantability of the Property for any
particular purpose; or (c) the economic prospects thereof; and (iii) Buyer
is accepting the Property in as is, where is, and with all faults
condition.
With respect to Seller's representations and warranties contained in this
Agreement, if, during the course of its investigation, Purchaser obtains
actual knowledge that any representation or warranty is untrue, and
Purchaser nonetheless closes this transaction, then Purchaser may not
thereafter assert any claim against Seller for breach of such
representation or warranty.
23. Purchaser acknowledges and agrees that the Property which is the subject of
this sale does not include the Scoops Outparcel.
This offer is, of course, predicated upon the Purchaser's review and
written approval of the existing leases, new leases, lease modifications (if
any), all tenant correspondence, REA/OEA agreements, tenants' and guarantors'
financial statements, sales figures, representations of income and expenses made
by Seller, site inspection, environmental, appraisal, etc., and at least one
year of audited operating statements on said property is required that qualify,
comply with and can be used in a public offering.
