AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
THIS AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY ("Agreement") is
entered into by NORTHGLENN PARTNERS, L.P., a California limited partnership
("Seller"), and EAGLE HARDWARE & GARDEN, INC., a Washington corporation
("Buyer").
RECITALS:
A. Seller owns certain real property, located in the City of Northglenn,
County of Xxxxx, Colorado, which is described on Exhibit A and as shown
outlined in red on Exhibit B consisting of nine and two tenths (9.2) acres.
Exhibit A and Exhibit B are attached hereto and made a part hereof, and which
together with all water and water rights, ditch and ditch rights, all coal,
oil, gas, and other minerals thereon or thereunder, and all easements,
rights-of-way, and other rights appurtenant thereto and the improvements
located thereon is hereinafter referred to as the "Property."
B. The Property is a part of a commercial development commonly known as
the "Mall of the Rockies" (the "Mall").
C. Seller desires to sell to Buyer, and Buyer desires to purchase from
Seller, the Property on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
1. PURCHASE AND SALE. Seller does hereby agree to sell, convey, transfer
and assign to Buyer, and Buyer does hereby agree to purchase from Seller, for
the consideration and subject to the terms and conditions hereinafter provided,
the Property, free and clear of all deeds of trust, mortgages, taxes and
special assessments whether assessed or not, security interests, encumbrances,
easements, restrictions, covenants, other rights, liability, and obligations
whatsoever except as hereinafter specifically identified.
2. PURCHASE PRICE. The purchase price for the Property shall be
$3,700,000, which is based on $9.23 per square foot of land. The purchase
price shall be adjusted at closing based on the actual square footage as
determined by the ALTA Survey and shall be payable as follows:
(a) $100,000.00 as an xxxxxxx money deposit (the "Xxxxxxx Money"), in
the form of a corporate check or wire transfer of funds which shall be
deposited with Chicago Title of Colorado, Inc. (the "Title Company"), as
escrow agent, no later than ten (10) days following the date when the last
party executes this Agreement (the "Effective Date"). The Xxxxxxx Money
shall be deposited by the Title Company in an interest bearing account. All
references herein to the Xxxxxxx Money shall include all interest earned
thereon; and
(b) $3,600,000.00 or an amount based on the adjustment of the
purchase price as set forth in Paragraph 2, in cash or wire transfer of funds
to be paid by Buyer at the time and place of closing (of which the Xxxxxxx
Money shall be a part).
3. DELIVERY OF DOCUMENTS AND INFORMATION BY SELLER. On or before
twenty-one (21) days following the Effective Date, Seller shall deliver the
following documents and information to Buyer:
(a) a current commitment for issuance of an ALTA Owner's Policy of
Title Insurance with extended coverage for the Property together with copies of
all documents listed as exceptions therein (the "Commitment"), issued by the
Title Company in the amount of the purchase price. Buyer shall pay at closing
the difference in cost between standard and extended coverage;
(b) a current boundary and improvements survey of the Property
complying with the standards for an ALTA/ACSM Class A survey and certified to
Seller and Buyer and the Title Company (the "Survey") which shall certify the
square footage of the property; and,
(c) existing Soils Tests and/or Phase I Environmental Assessments of
the Property in Seller's possession, if any.
4. BUYERS OBLIGATION TO PURCHASE.
(a) By accepting this Agreement, Seller agrees that Buyer's
obligations herein are conditional upon Buyer's review and approval, in its
sole discretion, of the documents and instruments to be delivered to Buyer
pursuant to paragraph 3, and such other inspections and evaluations as Buyer
may deem necessary or advisable on or before the expiration of ninety (90)
days following the Effective Date (the "Contingency Period"). Seller agrees
that Buyer and its agents shall have access to the Property at all reasonable
times that this Agreement is in effect for the purposes of conducting
inspections, testing and/or planning activities; provided, that Buyer shall
not have the right to conduct any drilling, sampling, or other invasive
environmental tests without Seller's prior written consent. Buyer agrees to
pay all expenses incurred in connection with such activities and inspections
and to indemnify and hold Seller harmless from any and all liabilities,
claims, damages, costs and expenses, including attorney's fees, incurred by
or asserted against Seller with respect thereto other than claims arising
from the mere discovery of hazardous substances or toxic waste in, on or
under the Property. The foregoing indemnification obligation shall expressly
survive the termination or expiration of this Agreement.
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(b) Seller further agrees that Buyer's obligations herein are
conditional upon issuance of any and all required governmental approvals
commonly associated with the operation of a typical Eagle Hardware & Garden
home improvement center including but not limited to PUD and replat of the
Property by City of Northglenn, subdivision approvals, rezoning approvals,
Colorado Department of Transportation highway access and traffic signal
approvals, building permits, use permits, site plan approvals, and approvals
of any kind from any and all governmental agencies having jurisdiction over
the Property, necessary for Buyer to develop, construct its building and site
improvements and operate its business on the Property. Buyer shall use its
best efforts to obtain all permits and approvals. The timing, conditions and
cost of the permits and approvals (including any mitigation fees) must be
satisfactory to Buyer on or before one hundred eighty (180) days following
the Effective Date (the "Approval Period").
(c) The conditions set forth in paragraph 4, and the obligations of
Seller hereunder, are for the sole benefit of Buyer. Buyer may, in its sole
discretion, waive the same without affecting its rights hereunder. If any of
the conditions identified in paragraph 4 are not satisfied prior to the
expiration of the Contingency Period or the Approval Period, whichever is
applicable, Buyer may, by written notice to Seller, terminate this Agreement.
Buyer's failure to deliver notification prior to the expiration of the
Contingency Period or the Approval Period, whichever is applicable, shall
constitute waiver of the conditions, and this Agreement shall remain in full
force and effect. Notwithstanding the foregoing, Buyer shall not have the
right to terminate this Agreement for the failure to obtain any permits or
approvals unless Buyer has given Seller not less than thirty (30) days
written notice so that Seller may assist Buyer in obtaining such permits or
approvals. In the event that this Agreement is terminated, the parties shall
be released of all obligations hereunder, and the Xxxxxxx Money made shall be
promptly returned to buyer.
5. SELLER'S OBLIGATION TO SELL.
(a) By accepting this Agreement, Buyer agrees that Seller's
obligations herein are conditional upon Seller having (i) obtained possession
and title to the Property pursuant to the NURA Condemnation (as defined below)
on terms and conditions acceptable to Seller, in its sole discretion, and (ii)
received full and final approval from all governmental authorities having
jurisdiction over the Mall for the redevelopment and replatting of the Mall as
may be necessary or appropriate, in Seller's sole discretion.
(b) The conditions set forth in subparagraph 5(a), and the
obligations of Buyer hereunder, are for the sole benefit of Seller. Seller
may, in its sole discretion, waive the same without affecting its rights
hereunder. If any of the conditions identified in subparagraph 5(a) are not
satisfied within eighty-five (85) days following the Effective Date, Seller
may, by written notice to Buyer, terminate this Agreement or extend for up to
an additional sixty-five (65) days, the timeframe within which to satisfy
such conditions. If Seller elects to extend the timeframe to satisfy the
conditions in subparagraph 5(a), such extension shall extend the Contingency
Period by an equal amount, without the requirement for Buyer to make the
Xxxxxxx Money non-refundable or deposit additional sums hereunder as
otherwise required by paragraph 4 above.
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Seller's failure to deliver notification within the prescribed period shall
constitute waiver of the conditions, and this Agreement shall remain in full
force and effect. In the event that this Agreement is terminated, the parties
shall be released of all obligations hereunder, and all the Xxxxxxx Money shall
be promptly returned to Buyer.
6. GRADING PLAN AND PERMITS. Within thirty (30) days following the
Effective Date, Seller shall provide Buyer with a grading and drainage plan
sufficient for and acceptable to Buyer to begin its construction drawings
("CDs"). Buyer agrees to submit its CDs and application for building permit to
the City of Northglenn within sixty (60) days following receipt of a sufficient
and acceptable grading and drainage plan from Seller. If the transaction
contemplated hereunder does not close due to Buyer's default, Buyer shall
reimburse Seller for the cost of said grading and drainage plan, to the extent
that it specifically applies to the Property.
7. CLOSING. The closing and the transfer of the possession of the
Property shall occur on or before fifteen (15) days following the issuance of
any and all necessary permits and approvals as set forth in Paragraph 4b, but
in no event later than two hundred and ten (210) days following the Effective
Date, or such earlier date mutually agreeable to the parties, at a time and
place agreed to by Seller and Buyer.
8. TITLE INSURANCE AND SURVEY. Buyer shall have thirty (30) days
following receipt of the latter of the Commitment and the Survey in which to
notify Seller in writing of any objections to any exceptions, items or
matters identified in the Commitment or the Survey, and Seller shall have
until thirty (30) days after the receipt of such objections to correct such
objections. The same thirty (30) days timeframes shall apply to any
supplements, amendments or revisions to the Commitment or the Survey that
introduce new exceptions, items or matters or modify previously identified
exceptions, items or matters. Seller shall not be under any obligation to
cure any objections of Buyer. In the event that Seller fails to cure any
objections, this Agreement shall, at the option of Buyer, become null and
void if Buyer elects to terminate this Agreement prior to the expiration of
the Contingency Period. Buyer shall also have the right to terminate this
Agreement after expiration of the Contingency Period as to any new or
modified exceptions, items or matters, provided Buyer gives Seller notice of
termination no later than twenty (20) days after Seller fails to cure any
such objection. At closing, Seller shall pay the premium of and deliver to
Buyer an ALTA Form 1970-B, as revised in 1984 (or if unavailable, the Form
B-1987) of Owner's Policy of Title Insurance in an amount equal to the
purchase price, issued by the Title Company, and Buyer shall be solely
responsible for the cost of any endorsements requested by Buyer.
9. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Buyer as of the date of this Agreement and on the date of closing,
the following shall be true and correct:
(a) SELLER'S AUTHORITY. The execution, delivery and performance of this
Agreement by Seller has been duly authorized by all requisite action on the
part of Seller and will not conflict with or result in any breach of the
terms of any instrument or agreement to which Seller is a party.
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(b) TITLE TO PROPERTY. At Closing, Seller will have good and
marketable title to the Property subject to no mortgage, pledge, lien,
encumbrance, encroachment, security interest or other charge, which will not be
released at or prior to the closing.
(c) LABOR AND MATERIALS. All bills for work done or materials
furnished with respect to the Property have been paid in full or will be paid
in full and discharged by the date and time of closing.
(d) LITIGATION. There is no litigation or other proceeding pending
or, to the knowledge of Seller, threatened against or relating to the
Property. There are no pending proceedings for condemnation of the Property,
except for the NURA Condemnation, defined below. The NURA Condemnation will
not diminish the size of the Property (except de minimus) nor have any effect
whatsoever upon Buyer's intended use of and plans for the Property.
(e) TAXES AND ASSESSMENTS. All general taxes payable with respect to
calendar years prior to the year of closing shall have been paid on or prior to
closing. All assessments due prior to closing shall have been paid on or prior
to closing.
(f) NO VIOLATIONS OF LAWS. Seller has not received any written
notice from any governmental agency claiming that the Property is in violation
of any laws or regulations.
BUYER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR
WRITTEN, OF, AS TO, CONCERNING, OR WITH RESPECT TO (i) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PROPERTY INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY, (ii) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH MAY BE CONDUCTED THEREON, (iii) THE COMPLIANCE OF
OR BY THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY
APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (iv) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY OR (v) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY,
AND SPECIFICALLY, THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
NEGATES AND DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES REGARDING COMPLIANCE
OF THE PROPERTY WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE
LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, OR THE DISPOSAL OR
EXISTENCE, IN OR ON THE PROPERTY, OF ANY HAZARDOUS SUBSTANCES AS DEFINED BY
THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF
1980, AS AMENDED, AND THE REGULATIONS PROMULGATED THEREUNDER. BUYER SHALL
RELY SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY INCLUDING ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER. SELLER SHALL NOT BE LIABLE
OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN
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STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR THE
OPERATION THEREOF, FURNISHED BY ANY PARTY PURPORTING TO ACT ON BEHALF OF SELLER
UNLESS EXPRESSLY AUTHORIZED TO DO SO BY SELLER.
10. SELLER'S CONSTRUCTION OBLIGATIONS. Seller shall complete the
following improvements as described in Exhibit C attached hereto and made a
part hereof ("Seller's Construction") upon or related to the Property.
(a) the Property shall consist of a graded to plus or minus 1/10th of
an inch to the elevation shown on Buyer's grading plan for the building pad,
graded to 90% compaction;
(b) the utilities listed on Exhibit C shall be stubbed within five
feet (5') of the building footprint at the locations shown on Buyer's plans for
each specific utility;
(c) the off-site improvements identified on Exhibit C; and
(d) all on-site improvements identified on Exhibit C.
The Seller's Construction of items 10.(a).and 10.(b) shall be completed at
Seller's sole cost and expense on or before one hundred fifty (150) days
following the Closing. Seller's construction of items 10.(c) and 10.(d)
shall be completed at Seller's sole cost and expense on or before one hundred
twenty (120) days following closing. Seller's affirmative covenant to
provide such Seller Construction shall survive Closing. If Seller does not
substantially complete Seller's Construction within the applicable time
periods following Closing, Buyer shall have the right, upon thirty (30) days
written notice to Seller, to enter upon the Property and take all steps
reasonably necessary to complete Seller's Construction unless within said
thirty (30) day period Seller has substantially completed Seller's
Construction. Costs incurred by Buyer in completing Seller's Construction
shall be payable by Seller within ten (10) days following written demand
therefor, when accompanied by documentation evidencing such costs and the
full and final payment by Buyer (as evidenced by appropriate lien waivers) of
all. such amounts. At closing, Seller shall obtain, at its sole cost and
expense, a payment and performance bond equal to 125% of the cost to complete
Seller's Construction (as mutually determined by Buyer and Seller) which will
enable Buyer to make a claim thereunder if the Seller's Construction has not
been substantially completed by Seller within the thirty (30) day notice and
cure period set forth above.
11. RISK OF LOSS - CASUALTY AND CONDEMNATION.
(a) The risk of loss or damage to the Property as a result of
casualty shall be retained by Seller, provided, that if casualty delays or
interferes with the completion of Seller's Construction, Seller shall have a
reasonable extension of time to account for such delay or interference. In the
event a casualty affecting the Property materially delays or interferes with
Buyer's ability to construct its own improvements on the Property, Buyer may
terminate this Agreement by written notice to Seller within thirty (30) days
after Buyer is notified in writing of the nature and extent of the
casualty.
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(b) If any eminent domain or condemnation proceeding pertaining to
all or any portion of the Property is threatened or commenced prior to
closing, except for the pending condemnation initiated by the Northglenn
Urban Renewal Authority (the "NURA Condemnation"), there shall be no
disposition or settlement thereof by Seller without the prior written consent
of Buyer such consent not to be unreasonably withheld or delayed, and Buyer
at its sole option may: (i) terminate this Agreement by written notice to
Seller within 30 days of Buyer's receipt of notice of such condemnation or
eminent domain proceeding, in which case all monies received hereunder shall
be returned to Buyer and the parties shall have no further rights against
each other; or (ii) proceed to closing and apply the proceeds received from
such condemnation or eminent domain proceeding against the purchase price of
the Property. If such proceeding has not been concluded as of the closing,
and no money has been paid to Seller by the condemning authority, Buyer shall
pay Seller the entire purchase price and all amounts thereafter awarded
relating to the Property shall belong to Buyer, and Seller shall assign all
of its rights therein to Buyer at closing.
(c) Buyer acknowledges and agrees that it shall have no right to
participate in the NURA Condemnation, shall have no right to any proceeds or
compensation related thereto, and the NURA Condemnation shall have no effect
upon the transaction contemplated by this Agreement, except as represented in
paragraph 9(d) above.
12. TERMINATION OF AGREEMENT AND REMEDIES.
(a) BUYER'S DEFAULT. In the event Buyer shall fail to perform
Buyer's obligations hereunder, Seller shall have the option to waive such
default or to terminate this Agreement by written notice to Buyer, and on
such termination Seller, as its sole and exclusive remedy, shall be entitled
to retain the xxxxxxx money deposit as liquidated damages. On such
termination, the parties shall be discharged from any further obligations and
liabilities hereunder. It is the intent of the parties notwithstanding the
use of the words "Agreement," "Buyer," and "Seller," that in the event of
default by Buyer, Seller's remedy, if any, shall be limited to retention of
the xxxxxxx money deposit as liquidated damages. The parties have agreed
that Sellers actual damages, in the event of default by Buyer, would be
extremely difficult or impracticable to determine. Therefore, the parties
acknowledge that the Xxxxxxx Money has been agreed upon, after negotiation,
as the parties' reasonable estimate of Seller's damages if Buyer defaults.
(b) AFTER EXPIRATION OF THE CONTINGENCY PERIOD. Buyer acknowledges that
following the expiration of the Contingency Period, Seller shall undertake
significant redevelopment efforts associated with the Mall. Accordingly, if
Buyer willfully fails to perform its obligations hereunder at any time
following the expiration of the Contingency Period (as opposed to
inadvertence or a condition not being satisfied, in particular the conditions
set forth in paragraph 4), Seller shall have the right to retain the Xxxxxxx
Money, and in addition, shall have the right to seek recovery of its actual
damages in excess of the amount of the Xxxxxxx Money, up to a maximum of
$250,000.00 in the aggregate, including the Xxxxxxx Money.
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(c) SELLER'S DEFAULT. In the event that Seller shall fail to perform
Seller's obligations hereunder, Buyer shall have the option to waive such
default in writing, or terminate this Agreement by written notice to Seller.
In the event of termination of this Agreement due to Seller's default, the
Xxxxxxx Money shall be remitted to Buyer Upon such termination and the return
of the Xxxxxxx Money, the parties shall be discharged from any further
obligations and liabilities hereunder, except that Buyer may seek recovery of
actual damages (but not specific performance) in an amount not to exceed the
Xxxxxxx Money.
(d) Neither Seller nor Buyer shall be deemed in default hereunder
unless written notice of the alleged default has been sent pursuant to paragraph
14 hereof, and ten (10) days has elapsed without the default having been cured;
provided, however, that in no event shall the time to cure any default extend
beyond the outside closing date set forth in paragraph 7 above.
13. TRANSACTIONS AT CLOSING. The following transactions shall occur at
closing:
(a) DEED TO PROPERTY. A special warranty deed in form satisfactory
to counsel for Buyer shall be executed and delivered to Buyer by Seller. The
special warranty deed shall convey title to the Property free and clear of all
taxes and assessments, except the general taxes for the year of closing, and
free and clear of all liens and encumbrances, except those set forth in the
Commitment as approved by Buyer in accordance with paragraph 8.
(b) XXXX OF SALE. Seller shall execute and deliver to Buyer a xxxx
of sale covering all personal property owned by Seller and located at the
Property, if any, and Buyer shall pay any sales or use tax in conjunction with
transfer of such personal property to Buyer. The personal property shall be
conveyed "as-is" without any warranties of any kind.
(c) CASH. There shall be paid to Seller by Buyer the sum of
$3,600,000.00 as adjusted as set forth in Paragraph 2, in cash or wire transfer
of funds (subject to closing adjustments and prorations), which shall include
the Xxxxxxx Money.
(d) DOCUMENTARY STAMPS. Buyer shall pay all sums necessary for the
purchase of documentary or tax stamps required to be affixed to the warranty
deed under the laws of the State of Colorado.
(e) PRORATIONS. The following items shall be prorated to the date of
closing:
(i) All general taxes (including without limitation, real and
personal property taxes), special assessments, utilities, interest,
insurance, service and maintenance contracts and other similar items accruing
or assessed with respect to the Property or personal property located
thereon. Seller shall cause all utility meters to be read as of the closing
date, and Seller agrees to pay at closing all utility bills and charges
accruing up to and including the date of closing; and,
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(ii) General taxes not assessed for the year of closing
shall be prorated on the basis of the taxes levied and assessed with respect
to the calendar year prior to the year of closing, unless the valuation or
mill levy for the present year is available, in which event the amounts for
the year of closing shall be used. Upon reassessment, the tax prorations
shall be readjusted through the date of closing. Any additional amounts
owing by Buyer or Seller as a result thereof shall be paid upon demand by the
other.
(f) TRANSFER TAXES. Seller shall pay any excise, transfer or
conveyance taxes imposed on the sale of the Property.
14. NOTICES. All notices required herein shall be in writing and shall be
sufficient if delivered personally, sent by a nationally recognized overnight
courier, with proof of receipt or if sent by registered or certified United
States mail, return receipt requested, postage prepaid, addressed as
described below or to such other address as the party concerned xxx
substitute by written notice to the other as provided herein. Buyer and
Seller, and their respective counsel, hereby agree that notices may be given
hereunder by the parties' respective counsel, and that if any communication
is to be given hereunder by Buyer's or Seller's counsel, such counsel may
communicate directly with all principals, as required to comply with the
foregoing provisions.
To Seller: Northglenn Partners, L.P.
00000 Xxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx Xxxxx, Executive Vice President
with a copy to: Xxxxxxxxxx Xxxxx Xxxxxx & Xxxxxxxxxx
000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
To Buyer: Eagle Hardware & Garden, Inc.
000 Xxxxxx Xxxxxx X.X.
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, President
with a copy to: Xxxxxxx X. Xxxxxxx
0000 XX Xxxx Xxxx
Xxxxxxxxxx Xxxxxx, XX 00000
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15. OPERATION OF THE PROPERTY FOLLOWING CLOSING.
(a) buyer covenants that its present good faith intent is to open an
Eagle Hardware & Garden retail store of not less than 125,000 square feet
(the "Eagle Store") no later than one hundred eighty (180) days following the
receipt of all approvals and permits required under section 4 above and the
substantial completion of Seller's construction, whichever shall occur the
later, and to operate the Eagle Store continuously (except for any
circumstances beyond Buyer's control which prevent such continuous
operations), with a full line of inventory and adequate staffing, for not
less than ten (10) years following the Closing. Notwithstanding the
foregoing, Buyer agrees that it shall, without regard to intent, continuously
operate the Eagle Store for the first five (5) years after the opening
thereof; provided that Buyer shall have the right to sell or lease the
Property to another national retailer of similar reputation and financial
condition for the primary purpose of the operation of a hardware, garden or
home improvement center.
(b) At closing, Seller and Buyer shall enter into a reciprocal
easement agreement (the "REA") for the Property and the balance of the real
property comprising the Mall. The REA shall be prepared by Seller and
delivered in draft form to Buyer no later than sixty (60) days following the
Effective Date. The REA shall provide, among other things, for (i) the
common area maintenance of the Mall, which shall be assessed against Buyer
based upon Buyer's land area as a percentage of the total land area of the
Mall, and (ii) reciprocal ingress, egress, construction, utility and parking
easements, and appropriate provisions to provide for specific "Protected
Areas" of parking fronting the full length of the South, West and North sides
of Buyer's store building and in the areas of Buyer's designated truck well,
on grade unloading areas and customer loading area. The form of the REA
shall be subject to Buyer's reasonable approval and any objections thereto
shall be delivered by Buyer to Seller no later than fifteen (15) days after
Buyer's receipt of the REA.
16. BROKER'S FEE. Seller agrees to pay a brokerage fee at closing to HC
Properties, Ltd. and Mile High Properties, LLC ("Mile High"). The brokerage fee
payable to HC Properties, Ltd. shall be payable only if the closing occurs
hereunder, and shall be in the amount $150,000. The fee payable to Mile High
shall be as set forth in a separate agreement between Seller and Mile High.
Each party represents that no other broker's, finder's or similar fee or
commission is due in connection with the transaction contemplated herein and
hereby agrees to indemnify and hold harmless each other from any claim,
expense or cost (including attorney's fees whether suit be brought or not)
resulting from any claim for such fee or commission.
17. MISCELLANEOUS
(a) ATTORNEY'S FEES. In the event of any litigation between Buyer or
Seller concerning this transaction, the prevailing party shall be entitled to
court costs and reasonable attorney's fees.
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(b) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Seller as made herein shall survive the closing for a period
of one (1) year thereafter.
(c) ASSIGNMENT. Buyer shall have the right to assign this Agreement
to an affiliated entity under common control with Buyer or to an unrelated
entity for the purpose of engaging in a sale-leaseback or other financing
arrangement provided Buyer remains secondarily liable hereunder and Buyer
continues to comply with the covenants in paragraph 15(a) above.
(d) ENTIRE AGREEMENT. This Agreement embodies all of the
representations, warranties and agreements of the parties, and it may not be
altered or modified, except by an instrument in writing signed by both parties.
(e) BENEFIT OF AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective heirs, successors and
assigns.
(f) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Colorado applicable to contracts
made and performed entirely therein.
(g) TIME OF THE ESSENCE. Time shall be of the essence with respect
to performance by the parties of their respective obligations hereunder.
(h) CAPTIONS. The captions of the paragraphs of this Agreement are
inserted only as a matter of convenience and for reference, and in no way
define, limit, or describe the scope of this Agreement, or the intent of any
provision thereof.
(i) SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal,
or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal, or unenforceable provision had
never been contained herein.
(j) CONSIDERATION. Each party agrees that the covenants and promises
contained herein are good and sufficient consideration for the respective
obligations required hereunder.
(k) PROVISIONS NEGOTIATED AND INDEPENDENT. Each and every provision
of this Agreement has been independently, separately and freely negotiated by
the parties as if this Agreement were drafted by all parties hereto. The
parties, therefore, waive any statutory or common law presumption which would
serve to have this document construed in favor of, or against, either party.
18. ACCEPTANCE. Upon execution of this Agreement by Buyer and Seller this
Agreement shall become a binding contract and shall inure to the benefit of the
parties and their heirs, executors or assigns. The Effective Date (the
"Effective Date") of this Agreement shall be the later of Buyer's or Seller's
execution date shown below.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
specified below.
SELLER: BUYER:
NORTHGLENN PARTNERS, L.P. EAGLE HARDWARE & GARDEN, INC.
a California limited partnership a Washington corporation
By: HRBF NORTHGLENN NO. 3, L.P., By: /s/ Xxxx X. Xxxxxx
a California limited partnership, -----------------------
its General Partner XXXX X. XXXXXX
Title: Vice President
---------------------
By: Northglenn-LRP, Inc., Date: September 3, 1996
a California corporation, ---------------------
its General Partner
By: /s/ Illegible
----------------------------
Its: Vice President
----------------------------
Date: September 5, 1996
-------------------------------
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EXHIBIT A
LEGAL DESCRIPTION of the PROPERTY
(To be provided by seller upon completion of the ALTA/ACSM Class A survey as set
forth in paragraph 3(b).
EXHIBIT "A"
13
EXHIBIT "B"
MALL OF THE
ROCKIES
AT NORTHGLENN
DENVER COLORADO
SUMMIT COMMERCIAL
A Highridge Partners Company
DEVELOPMENT SYNOPSIS
CRITERIA #34
[SITE PLAN]
EXHIBIT "B"
14
EXHIBIT C
SELLER'S CONSTRUCTION OBLIGATIONS
The Obligations of Seller as set forth in paragraph 10, 10(a), 10(b), 10(c) and
10(d) shall be described herein in detail.
(To be prepared by Seller, subject to Buyer's review and acceptance by
initialing, prior to attachment. Exhibit C shall be completed and approved on
or before thirty (30) days following the Effective Date).
EXHIBIT "C"
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