ORIGINAL
REAL ESTATE PURCHASE AND SALE AGREEMENT
This agreement (the "Agreement") is entered into as of the Effective Date,
as set forth in Section 21 of this Agreement, by and between JP NORTHGLENN LLC,
a Colorado limited liability company ("Seller") and EAGLE HARDWARE & GARDEN,
INC., a Washington corporation, or assigns ("Buyer") for purchase and sale of
certain real property situate in Xxxxx County, Colorado, consisting of
approximately 10.68 acres in the Marketplace at Northglenn shopping center
located in the northeast quadrant of the intersection of 104th Avenue and Melody
Drive in the City of Northglenn, Colorado, together with any improvements
thereon and all rights appurtenant thereto (the "Property"). The Property is
shown on Buyer's site plan dated 13 May, 1998 and numbered X337 (the "Site
Plan") and attached hereto as Exhibit A1. A plan of the entire shopping center
is attached hereto as Exhibit A2. The exact legal description of the Property
shall be attached to this Agreement as Exhibit B and made a part hereof upon
completion of the survey described below.
Seller agrees to sell, and Buyer agrees to buy, the Property upon and
subject to the terms and conditions set forth below:
1. PURCHASE PRICE; PAYMENT. The total purchase price for the Property
shall be seven dollars and twenty cents ($7.20) per square foot of land. It is
estimated that the Property contains approximately 465,221 square feet and that
the purchase price will be three million three hundred forty-nine thousand five
hundred ninety-one dollars ($3,349,591.00). The area of the Property and the
total purchase price shall be determined by the new ALTA/ACSM survey described
below. The purchase price shall be adjusted to the final certified square
footage, which amount, including the Deposit and interest accrued thereon, shall
be paid in cash upon closing.
2. XXXXXXX MONEY DEPOSIT. Within ten (10) business days after the
Effective Date, Buyer will deposit xxxxxxx money of fifty thousand dollars
($50,000) (the "Deposit") with Empire Title & Escrow Corporation as agent for
First American Title Insurance Company (the "Closing Agent"). The Closing Agent
shall place the Deposit in an interest-bearing account with interest to accrue
to Buyer's benefit. The Deposit shall be applied against and credited to the
purchase price. If this transaction does not close for any reason other than
default by Buyer under this Agreement, the Deposit, and all interest accrued
thereon, shall be returned to Buyer. In the event of Buyer's default under this
Agreement, Seller shall have as its sole remedy the right to terminate this
Agreement and retain the Deposit, together with accrued interest thereon, as
liquidated damages.
3. CONTINGENCIES. Buyer's obligation to purchase the Property is subject
to Buyer's satisfaction or waiver, in writing, of the following conditions
precedent, in Buyer's sole and absolute discretion, on or before expiration of
the applicable time periods described below:
3.1 PRELIMINARY TITLE INSURANCE COMMITMENT. Buyer's approval of title
and exceptions thereto. Within fifteen (15) days after the Effective Date,
Seller shall provide Buyer with a current preliminary commitment for owner's
title insurance with extended coverage (ALTA Form 1970-B, as revised in 1984 or
if unavailable, Form B-1987) issued by the Closing Agent, with copies of all
documents listed as exceptions set forth therein.
3.2 ALTA/ACSM SURVEY. Buyer's approval of a survey. Within twenty
(20) days after the Effective Date, Seller shall provide Buyer with a new
ALTA/ACSM survey with land area certification of the Property.
1
3.3 TITLE AND SURVEY APPROVAL PERIODS. Buyer shall have fifteen (15)
days from the later receipt of either the preliminary commitment or the final
completed survey (and any amendments, supplements and revisions to either in
which new or revised exceptions or items first appear) to notify Seller of its
disapproval or conditional approval of any exceptions shown in the preliminary
commitment or any items on the survey. If, within twenty (20) days after the
receipt of such notice Seller has not removed or given reasonable written
assurances to Buyer that such disapproved or conditionally approved exceptions
or items will be removed on or before closing, Buyer may, at its option, at any
time prior to such removal or receipt of such reasonable written assurances,
terminate this Agreement by giving a ten (10) day notice of such termination or
waiver to Seller. If, at any time, Seller gives written notice to Buyer that it
cannot or will not remove any title condition to which Buyer has given notice of
objection, Buyer shall have ten (10) days either to terminate this Agreement or
waive its objection. On any such termination Closing Agent shall refund the
Deposit and all interest accrued thereon to Buyer and all rights and obligations
of Seller and Buyer under this Agreement shall terminate and be of no further
force or effect.
3.4 SITE SUITABILITY. Buyer's determination that the Property is
feasible in all respects for Buyer's intended use, including but not limited to,
the following: determining that Buyer's selected building configuration plan can
be satisfactorily adapted to the site; that Buyer's proposed parking plan, on
site vehicle and pedestrian circulation plan and street access plan for the
Property all meet or exceed Buyer's minimum criteria; that the applicable local
governmental requirements for landscaping, open area, building to land ratio,
set-backs and parking can be satisfied within Buyer's plans as shown on Exhibit
A; and that all utilities are available of adequate capacity to serve Buyer's
needs.
3.5 STUDIES. Satisfactory results of all soils, engineering,
environmental, topography, hazardous waste, geotechnical, hydrology, wetlands
and other studies or tests that may be deemed necessary by Buyer and/or required
by any governmental agency in connection with the Property and Buyer's planned
development and use of the Property. All such studies and tests shall be
acquired at Buyer's expense. Within ten (10) days from the Effective Date of
this Agreement, Seller will deliver to Buyer all information contained in
Seller's files or available to Seller with respect to the Property and, more
specifically, any material, data, filings, applications, P.U.D. information,
wetlands mitigations, topographic surveys, soils tests, environmental
assessments, environmental remediation and other information or data with
respect to the Property that will assist Buyer in its determination of the
suitability of the Property for an Eagle Hardware & Garden home improvement
center.
3.6 ENVIRONMENTAL MITIGATION. Seller shall not later than the end of
the Contingency Period described below, as extended, provide Buyer with copies
of all certifications and any other applicable documentation; i.e., "No Further
Action" letters, test results, etc. that are currently available from all
applicable local, state and federal agencies pertaining to (but not limited to)
the removal of all underground storage tanks, pipelines, all contaminated soils
and any other toxic or contaminated materials, hazardous wastes and other
related items governed by federal and state environmental protection agency
enforced laws, regulations, statutes, ordinances and requirements. If it is
discovered during Buyer's construction that any previously unaddressed
environmental clean-up or remediation is required, the costs of such clean-up or
mitigation shall be the responsibility of Seller and/or (if applicable) Seller's
predecessor in interest through Seller. This condition for Seller's
responsibility of additional environmental clean-up or mitigation costs during
Buyer's construction shall survive the closing.
2
3.7 APPROVALS AND PERMITS. Issuance of any and/or all required and/or
applicable governmental approvals (city and/or county) including but not limited
to the following: (i) PUD and/or replat, parcel consolidation and lot line
adjustment of the Property; (ii) subdivision approvals and/or rezoning
approvals; (iii) Colorado Department of Transportation highway access and
traffic signal approvals; (iv) City and/or County approvals, i.e.; building
permits, use permits, sign permits, design review approvals, site plan approvals
and parking variances; (v) any other applicable approvals, declarations and
determinations of any kind from any and all governmental agencies having
jurisdiction over the Property necessary for Buyer to develop and construct its
store building, garden yard, greenhouse and any other improvements that Buyer
deems necessary in its sole determination to conduct its selected business
operations on the Property and the affected areas of the shopping center all as
shown on Exhibits A and A1. The timing, conditions and cost of the permits and
approvals (including any mitigation fees) must be acceptable to Buyer.
3.8 TIME PERIODS. Buyer shall have sixty (60) days from the Effective
Date (the "Feasibility Period") to satisfy or waive the contingencies set forth
in Sections 3.4 and 3.5. Buyer shall have one hundred twenty (120) days (the
"Contingency Period") from the end of the Feasibility Period to waive the
contingencies set forth in Sections 3.6 and 3.7. If Buyer does not satisfy or
waive the contingencies in writing to Seller on or before the expiration of the
applicable time periods, the Deposit, with interest, shall be refunded to Buyer
and this Agreement shall terminate.
3.9 EXTENSION PERIODS. If Buyer has satisfied or waived the
contingencies set forth in Sections 3.4 and 3.5 and is diligently pursuing the
applicable required approvals and permits set forth in Sections 3.6 and 3.7,
Buyer shall be allowed two (2) separate thirty (30) day extensions of the
Contingency Period. Notice of the exercising of each of the extension periods
shall be given at least ten (10) days prior to the end of the Contingency Period
or the applicable extension period.
4. SITE WORK. Seller shall construct at Seller's sole cost and expense
coordinated on and off site improvements for the entire retail development of
the shopping center, excluding the Property, in accordance with plans and
specifications prepared by Seller and approved by Buyer and the City of
Northglenn. Seller shall by the later of (a) thirty (30) days after the
Effective Date, or (b) May 15, 1998, submit for Buyer's review and approval
acceptable engineered grading, utilities and drainage plans sufficient for
Buyer's use and incorporation in its site and building construction drawings
("CDs"). Seller's plans, specifications and construction scheduling shall be in
accordance with the following conditions:
4.1 Buyer's on site improvements outside of its Building Limit Line
shall coordinate and be compatible in all respects to Seller's shopping center
site plans; i.e., grading, drainage, parking, curbing, striping, asphalt paving,
landscaping, irrigation, lighting, traffic circulation and safety signing.
Buyer's plans shall provide for a minimum of five (5) parking spaces, including
handicapped parking and customer load areas, per one thousand (1,000) square
feet of retail area as calculated on one hundred forty-one thousand (141,000)
square feet. Buyer's building area shall be within the "Building Limit Line"
which is defined as (i) the outside curb face of any building perimeter
sidewalk; and (ii) five (5) feet from all exterior walls, garden yard enclosures
and truck xxxxx in the absence of a perimeter sidewalk; and (iii) five (5) feet
outside the drip line of all canopies, overhangs and covered area roof lines;
and (iv) the distance customarily allowed by standard industry practices and
applicable building codes where any exterior walls are abutted by an adjoining
building.
3
4.2 Seller shall complete all on and off site improvements necessary
for full ingress and egress through the shopping center from all planned access
points on 000xx Xxxxxx xxx Xxxxxx Xxxxx to the Property and completion of all on
site improvements outside of Buyer's Property as necessary to prevent any delay
of Buyer's receipt of an occupancy permit and Buyer's opening for business
including but not limited to parking lot paving, striping, lighting, perimeter
curb and gutter, all underground utility lines, site irrigation system, storm
drainage, landscaping, driveways, sidewalks and any other required pedestrian
amenities to provide Buyer's site with access and required support facilities.
Seller shall complete all items in this Section thirty (30) days prior to Buyer
opening for business, provided paved trucking access shall be completed to
connect to Buyer's truck docks and on grade delivery area not less than ninety
(90) days prior to Buyer's scheduled store opening. Seller shall have the right
to construct all other on site improvements for the balance of the shopping
center on a phased basis, provided that Seller has completed the above
improvements abutting Buyer's Property.
4.3 Utilities and surface water drainage lines shall be stubbed to
locations shown on Buyer's CDs at the Property lines by Seller as part of
Seller's site work in accordance with Section 4.2 as follows: (i) electrical
service - quantity and size of conduit as required by electrical utility company
to supply Buyer's minimum electrical requirement of a 2000 amp, 480 volt, 3
phase, 4 wire primary service for exterior (surface or underground) transformer;
(ii) domestic water service adequate for 1" line; (iii) separate line for site
irrigation; (iv) fire sprinkler line - 8" (detector check and PIV by Buyer); (v)
telephone - (2) 4" conduits; (vi) sewer service - 6" line. Buyer shall pay
Seller for all tap fees at the current rate charged by the City of Northglenn.
All items in Section 4.3 to be completed in advance of the date required by
Buyer's construction schedule.
4.4 Buyer's building pad area shall be rough graded by Buyer to
within 1/10 of one foot of finished subgrade elevation per Seller's site grading
plan as approved by Buyer. Buyer shall be responsible for non-environmental
soils conditions and soil stabilization related to the support of Buyer's
building foundations.
4.5 Seller shall deliver the area of the Property from the east line
of the Property to a point 50 feet west of the westerly Building Limit Line of
Buyer's store location for the full north/south dimension of the Property free
of all demolished structures by the later of Buyer's receipt of its building
permit or August 1, 1998. Seller shall deliver the balance of the Property by
October 1, 1998. Buyer recognizes the fact that Seller must raze an existing
building which is located on the parking lot area of the Property. It is the
intent that Seller shall deliver the area of the Property described above in
this Section 4.5 at the earlier time so that Buyer may construct its building
while the existing building is being razed. It is recognized that the existing
building may contain hazardous materials including asbestos and that Seller in
its sole responsibility and cost shall remove all of the hazardous materials in
the existing building before razing it together with any hazardous materials or
contaminated soils that may be present in the ground after the demolished
building is removed.
5. CLOSING.
5.1 TIME FOR CLOSING; TERMINATION DATE. This sale shall be closed in
the office of the Closing Agent within fifteen (15) days after all of Buyer's
conditions precedent have been satisfied or waived by Buyer on a date mutually
agreeable to Buyer and Seller. Buyer and Seller shall deposit in escrow with
Closing Agent all instruments, documents and monies necessary to complete the
sale in accordance with this Agreement. As used herein, "closing", "Closing",
"Closing Date" or "date of closing" means the date on which all appropriate
documents are recorded and proceeds of sale are available for disbursement to
Seller. Funds held in reserve accounts pursuant to escrow instructions shall be
deemed, for purposes of this definition, as available for disbursement to
Seller. Buyer may not begin construction until after closing.
4
5.2 ACCEPTANCE OF EXCEPTIONS. Neither Seller nor Buyer shall be
required to close, and the Deposit and all interest thereon shall be returned to
Buyer, if any exception or item disapproved by Buyer as herein provided cannot
be removed by the date of closing; provided, however, that Buyer may elect to
waive any disapproved exceptions or items and close on the remaining terms.
Notwithstanding the foregoing, Seller shall remove any defect or encumbrance
attaching by, through or under Seller after the Effective Date of this
Agreement. Exceptions to be discharged by Seller may be paid out of the purchase
price at closing. If, at any time, Seller gives written notice to Buyer that it
cannot or will not remove any title condition to which Buyer has given notice of
objection, Buyer shall have ten (10) days either to terminate this Agreement or
waive its objection.
5.3 PRORATIONS; CLOSING COSTS. Taxes and assessments for the current
year and utilities constituting liens shall be prorated as of the date of
closing. Such proration shall be based upon a pro rata portion of the prior
year's taxes based upon the land area of the Property compared to the area of
the preceding year's tax parcel. Seller shall pay the standard portion of the
premium for the title insurance policy, real estate excise, transfer and/or
conveyance taxes, the cost of conveyance tax stamps, if any, and one-half of
Closing Agent's escrow fee. Buyer shall pay the cost of recording the deed,
one-half of Closing Agent's escrow fee and the difference in the cost of the
premium between standard owner's and extended coverage.
5.4 POSSESSION. Buyer shall be entitled to possession upon closing.
6. CONVEYANCE OF TITLE. On closing, Seller shall execute and deliver to
Buyer a special warranty deed conveying good and marketable title to the
Property free and clear of any defects or encumbrances except for the lien of
real estate taxes for the current calendar year not yet due and payable, those
defects or encumbrances appearing on the preliminary commitment for title
insurance that are approved by Buyer (the "Permitted Exceptions"), and other
encumbrances or defects approved by Buyer in writing.
As soon as available after closing, Seller shall provide to Buyer an
ALTA owners policy of title insurance with extended coverage pursuant to the
preliminary commitment, dated as of the closing date and insuring Buyer in the
amount of the purchase price against loss or damage by reason of defect in
Buyer's title to the Property subject only to the printed exclusions and general
exceptions appearing in the policy form; any Permitted Exceptions; the
exceptions specified in the preliminary commitment which Buyer has not
disapproved of (or conditionally approved unless the condition has been
satisfied) as provided herein; and real property taxes and assessments that are
not delinquent.
7. RISK OF LOSS: CONDEMNATION. Risk of loss of or damage to the Property
shall be borne by Seller until the date of closing. Thereafter, Buyer shall bear
the risk of loss. In the event of material loss of or damage to the Property
prior to the date upon which Buyer assumes the risk, Buyer may terminate this
Agreement by giving notice of such termination to Seller and Closing Agent, and
such termination shall be effective and the Deposits and interest thereon shall
be refunded ten (10) days thereafter; provided, however, that such termination
shall not be effective if Seller agrees in writing within such ten (10) day
period to restore the Property substantially to its present condition by the
closing date.
If the Property is or becomes the subject of a condemnation proceeding
prior to closing, Buyer may, at its option, terminate this Agreement by giving
notice of such termination to Seller, and upon such termination the Deposit and
accrued interest shall be returned to Buyer and this Agreement shall be of no
further force or effect; provided, however, that Buyer may elect to purchase the
Property, in which case the total purchase price shall be reduced by the total
of any condemnation award received by Seller. On closing, Seller shall assign to
Buyer all Seller's rights in and to any future condemnation awards or other
proceeds payable or to become payable by reason of any taking. Seller agrees to
notify Buyer of eminent domain proceedings within five (5) days after Seller
learns thereof.
5
8. SELLER'S REPRESENTATIONS AND WARRANTIES. In addition to other
representations herein, Seller represents and warrants to Buyer as of the date
of closing that:
8.1 Seller has full power and authority to execute this Agreement and
perform Seller's obligations and duties hereunder;
8.2 The Property is not subject to any leases, tenancies or rights of
persons in possession;
8.3 Neither the Property nor the sale of the Property violates any
applicable statute, ordinance or regulation, nor any order of any court or any
governmental authority or agency, pertaining to the Property or the use
occupancy or condition thereof;
8.4 Seller is unaware of any material defect in the Property;
8.5 All persons and entities supplying labor, materials and equipment
to the Property have been paid and there are no claims or liens, except for work
in process or for which payment is not yet due, and except for bona fide
disputes which Seller covenants that it shall cause the Closing Agent to waive
its standard mechanic's lien exception;
8.6 There are no currently due and payable assessments for public
improvements against the Property and Seller is not aware of any local
improvement district or other taxing authority having jurisdiction over the
Property in the process of formation;
8.7 The Property has legal access to all streets adjoining the
Property;
8.8 Seller has no reason to think that it may not have good and
marketable title to the property;
8.9 Seller is not a "foreign person" for purposes of Section 1445 of
the Internal Revenue Code. Prior to closing, Seller shall execute and deliver to
Closing Agent an affidavit in order to meet the Foreign Investment in Real
Property Tax Act ("FIRPTA") requirements of I.R.C. # 1445; and
8.10 Seller has not received notification of any kind from any agency
suggesting that the Property is or may be targeted for a Superfund or similar
type of cleanup. To the best of Seller's knowledge, neither the Property nor any
portion thereof is or has been used (i) for the storage, disposal or discharge
of oil, solvents, fuel, chemicals or any type of toxic or dangerous or hazardous
waste or substance, (ii) as a landfill or waste disposal site, and (iii) does
not contain any underground storage tanks. Seller hereby discloses that the
existing mall structure, which will be demolished, contains asbestos and that a
portion of the structure is located on a portion of the property that will
become a portion of Buyer's parking lot. Seller covenants that all the asbestos
shall be removed by a certified environmental contractor prior to the
demolition. Seller also discloses that other areas of the shopping center have
been affected by hazardous materials contamination and all required remediation
will be performed. Seller agrees to indemnify, defend and hold Buyer harmless
from and against any and all loss, damage, claims, penalties, liability, suits,
costs and expenses (including, without limitation, reasonable attorneys' fees)
and also including without limitation, costs of remedial action or cleanup,
suffered or incurred by Buyer arising out of or related to such asbestos and
other contamination and any such use of the Property, or portion thereof,
occurring prior to the conveyance to Buyer, about which Seller knew or
reasonably should have known prior to Closing and did not disclose to Buyer.
9. BUYER'S AUTHORITY. Buyer represents and warrants to Seller that at the
date of execution hereof and at the date of closing Buyer, and the person
signing on behalf of Buyer, has full power and authority to execute this
Agreement and to perform Buyer's obligations hereunder.
6
10. DEFAULT. If Seller defaults hereunder, Buyer may seek specific
performance of this Agreement, damages or rescission and Buyer shall be entitled
to return of the deposit with accrued interest, on demand. If Buyer defaults,
the Deposit and accrued interest shall be forfeited to Seller as reasonable
liquidated damages and as Seller's sole and exclusive remedy and upon payment
thereof to Seller, Buyer shall have no further obligations or liability
hereunder. If any legal action or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be entitled.
If any party makes a written settlement offer pursuant to C.R.S. 00-00-000,
subpart (1)(b) of that statute notwithstanding, which is not accepted by the
other party, then if the amount recovered by such other party is less than the
amount of the settlement offer the party making the settlement offer shall be
considered the prevailing party.
11. NOTICES. All notices, waivers, elections, approvals and demands
required or permitted to be given hereunder shall be in writing and shall be
personally delivered (by overnight courier service or other means of personal
service) or sent by United States certified mail, return receipt requested, to
the addressee's mailing address set forth on the signature page:
and, in the case of Buyer, a copy to: Xxxxxxx X. Xxxxxxx
0000 XX Xxxx Xx.
Xxxxxxxxxx Xxxxxx, XX 00000
and, in the case of Seller, a copy to: Xxxxxxx X. Xxxxxxxxx
Xxxxxxxxx & Xxxxx, Attorneys at Law
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Either party hereto may, by proper notice to the other, designate any
other address for the giving of notice. Any notice shall be effective when
personally delivered or, if mailed as provided herein, on the date of actual
receipt.
12. RECIPROCAL EASEMENT AGREEMENT/INTEGRATION INTO SHOPPING CENTER. If
Buyer satisfies or waives the Feasibility Period contingencies, then, within ten
(10) days thereafter, Seller shall provide for Buyer's review a Reciprocal
Easement Agreement (the "REA") for the entire shopping center for reciprocal
vehicular and pedestrian ingress and egress over the common areas in the
shopping center. It is a condition to Closing that the parties reach agreement
on the REA within sixty (60) days after Buyer is provided a draft or by the
closing date, whichever first occurs. The REA shall be executed by all required
parties and shall be recorded as a condition of closing. The REA shall provide
that the areas of the Property outside of the Building Limit Line described area
shall be common area. The common area will be subjected to reasonable rules and
regulations imposed by Seller subject to Buyer's reasonable approval. Seller
will provide for the routine maintenance of the common area for the shopping
center and Buyer will pay its pro rata share of the expense which shall include
a 10% administrative charge. Seller shall also procure insurance for the common
area and Buyer shall pay its pro rata share thereof except Buyer reserves the
right to provide its own insurance coverage for the Property in lieu of the
common area insurance coverage pertaining only to the Property and Seller and
other parties designated by Seller shall be named as additional insured on
Buyer's policy. Buyer's building exterior shall be of the same construction
materials and architectural design concept as the exteriors of new buildings to
be constructed in the shopping center as much as possible without compromising,
in Buyer's sole and unfettered determination, Buyer's standard chain-wide
identity colors, signage and architectural design features. The architectural
theme or design details shall be harmonious in design with the new buildings as
much as possible subject to the Buyer identity criteria above.
7
13. USE AND NON-COMPETE. Seller and Buyer and the other parties to the REA
shall agree on a list of obnoxious uses which shall not be permitted in the
shopping center. Buyer shall agree in the REA that the Property shall be used as
an Eagle Hardware & Garden store selling home improvement merchandise and
related goods and services including but not limited to any item which is sold
at any of the other existing or future Colorado front range Eagle stores. Buyer
agrees that the Property will not be used for a movie theater or for the sale of
popcorn. Seller shall be restricted from leasing or selling any part of the
shopping center to any retail entity that (a) carries more than ten percent
(10%) of its inventory in any home improvement, garden, nursery and building
materials products and any other related goods and services typically provided
by Eagle; and (b) the square footage of their sales and storage area (building,
yard, etc.) exceeds six thousand (6,000) square feet. This restriction on Seller
shall apply only so long as Buyer is not in default on its obligations under the
REA and only so long as the Property is being used primarily as an Eagle
Hardware store, or by a successor in essentially the same type of business. The
presently existing Mervyns and Gart Sporting Goods stores shall be exempt from
the above non-compete conditions. Buyer recognizes that the existing Gart
Sporting Goods store will be relocating in connection with the redevelopment.
14. NO NEGOTIATION WITH THIRD PARTY. From the effective date of the Letter
of Intent between the parties dated April 14, 1998, Seller shall not negotiate
nor commit to sell, lease or otherwise transfer the Property or any portion
thereof to any other party as long as the parties are proceeding in good faith
to perform under the Purchase Agreement. During the same time period, Buyer
shall not negotiate for the purchase or lease of any other location within a
five (5) mile radius of the Property. From the earliest date of signing of the
Letter of Intent until the termination of this Agreement, these covenants shall
be in full force and effect.
15. GENERAL. This is the entire agreement of Buyer and Seller with respect
to the matters covered hereby and supersedes all prior agreements between them,
written or oral. This Agreement may be modified only in writing, signed by Buyer
and Seller. Any waivers hereunder must be in writing. No waive of any right or
remedy in the event of default hereunder shall constitute a waiver of such right
or remedy in the event of any subsequent default. This Agreement is for the
benefit only of the parties hereto and shall inure to the benefit of and bind
the heirs, personal representatives, successors and assigns of the parties
hereto. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision hereof.
If the date for performance or giving notice under this Agreement is a Saturday,
Sunday or banking holiday in Colorado, the date for performance or notice shall
be extended until the next day that is not a Saturday, Sunday or banking
holiday.
16. SURVIVAL OF WARRANTIES. The terms, covenants, representations and
warranties shall not merge in the deed of conveyance, but shall survive closing.
17. BROKER'S FEE. All real estate commissions and/or broker's fees shall
be payable by Seller at closing to Xxxxxxx X. Xxxxxx of X. X. Properties, Ltd.
(the "Broker"). Said commission and/or broker's fee shall be as agreed upon in a
separate agreement between Seller and the Broker. Said agreement shall hold
Buyer harmless from any obligation for payment of any and all real estate
commissions and/or broker's fees and the conditions shall survive closing. Each
party agrees to indemnify, defend and hold harmless the other party against any
claims for broker's fees claimed to be owed through the broker's relationship
with the indemnifying party.
8
18. CONFIDENTIALITY. Each party agrees not to directly or indirectly,
through agents or otherwise, provide any information about the Property and/or
the sale of the Property or to discuss any of the terms of this Agreement and
the timing of the project or any other items regarding the transaction with any
other person or entity unless and until either party receives notice from the
other party in writing that the transaction cannot be consummated. The foregoing
notwithstanding, either party may provide information to its consultants,
lenders and the City of Northglenn. Seller may show site plans to other
prospective tenants at the shopping center which site plans show the Property
and identifies Buyer, and Seller may disclose that the parties have entered into
a contract and the anticipated opening date of Buyer's approximately 134,000
square foot store.
19. REPURCHASE OF PROPERTY. If Buyer should voluntarily cease to operate
its business and close its store and decides to sell the Property only (not as
an ongoing business), Seller shall have the right of first refusal to match any
bona fide offer from a third party to purchase the Property at a price agreed to
by Buyer and the third party on the terms and conditions of such agreed to sale.
Buyer agrees to provide such information to Seller promptly. Seller shall then
have ten (10) days after receiving such information in which to exercise this
right of first refusal and must do so in writing.
20. EXHIBITS. Exhibits A, A1 and B attached hereto are incorporated herein
as if fully set forth.
Exhibit A - Site Plan
Exhibit A1 - Plan of the Shopping Center
Exhibit B - Legal Description of the Property
21. EFFECTIVE DATE. The later of the Buyer's signature date and the
Seller's signature date, set forth below, shall be the "Effective Date" of this
Agreement.
BUYER: EAGLE HARDWARE & GARDEN, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Typed name: Xxxx X. Xxxxxx
May 13 , 1998 Its: Vice President
-----------------------
Buyer's Signature date
Address: 000 Xxxxxx Xxxxxx X.X.
Xxxxxx, XX 00000
SELLER: JP NORTHGLENN LLC
May 15 , 1998 By: /s/ Xxxxxx Xxxxxxxxxx
------------------------ -------------------------------
Seller's signature date Typed name: Xxxxxx Xxxxxxxxxx
Its: Manager
Address: Xxxxxx Xxxxxxxxxx &
Company
0000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
9
EXHIBIT A1
BUYER'S SITE PLAN
(TO BE PROVIDED BY BUYER)
EXHIBIT A1
10
EXHIBIT A2
SHOPPING CENTER PLAN
(TO BE PROVIDED BY BUYER)
EXHIBIT A2
11
EXHIBIT B
(LEGAL DESCRIPTION OF PROPERTY)
(TO BE ATTACHED BY SELLER UPON COMPLETION
OF ALTA/ACSM SURVEY OF BUYER'S PROPERTY)
EXHIBIT B
12
