Exhibit 10.261
Blytheville, AR
REAL ESTATE PURCHASE CONTRACT
THIS REAL ESTATE PURCHASE CONTRACT (the "Agreement") is made and entered
into as of the Effective Date (as defined in Paragraph 29 below) by and between
WESTMINSTER PLAZA LIMITED LIABILITY COMPANY, C.C. INVESTMENTS, INC., SUPERIOR
INVESTMENTS X, INC. AND XXXXXXXXX-MELBOURNE, LLC, as Tenants-in-Common,
(hereinafter referred to as "Seller"), and INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation (hereinafter referred to as "Purchaser").
WITNESSETH:
For and in consideration of TEN AND 00/100 DOLLARS ($10.00), the
agreements made herein, and other good and valuable considerations, the receipt
and legal sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
1. THE PROPERTY. Seller hereby agrees to sell to Purchaser, and
Purchaser hereby agrees to purchase from Seller, upon and subject to the terms
and conditions herein set forth, certain property more particularly described
in EXHIBIT "A" (the "Property"), together with all improvements located thereon,
and all rights, hereditaments and appurtenances thereto, but subject only to
that certain Lease Agreement dated September 18, 1998 as amended (the "Lease")
with Wal-Mart Stores, Inc. ("Tenant") and "Permitted Exceptions".
2. PURCHASE PRICE.
(a) The purchase price (the "Purchase Price") for Property
shall be TWELVE MILLION NINE HUNDRED THIRTY-FIVE THOUSAND AND NO/100 DOLLARS
($12,935,000.00) subject to adjustments and prorations as provided herein. The
Purchase Price shall be paid in cash by Purchaser to Seller at Closing (as
defined in Paragraph 10 below) by wire transfer to Escrow Agent (as defined in
Paragraph 3 below), and the Closing shall occur pursuant to the terms of this
Agreement and a customary deed and money escrow agreement (the "Deed and Money
Escrow Agreement") to be entered into among Seller, Purchaser and Escrow Agent.
3. XXXXXXX MONEY. Within three (3) business days of the Effective
Date of this Agreement, Purchaser shall deposit the sum of THREE HUNDRED
THOUSAND AND 00/100 DOLLARS ($300,000.00) as xxxxxxx money (the "Xxxxxxx Money")
with Chicago Title Insurance Company-National Division, Chicago, Illinois (the
"Escrow Agent"), which sum shall be held by Escrow Agent, in escrow, pursuant to
the terms of a modified joint order escrow agreement (the "Escrow Agreement"),
subject, however, to disbursement in accordance with the terms and provisions of
such escrow agreement. The Escrow Agreement shall provide that disbursement of
the Xxxxxxx Money (and any interest earned thereon) shall not be made without
the joint direction of Seller and Purchaser; provided, however, that Purchaser
shall have the unilateral right, at any time
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prior to the expiration of the Inspection Period or Additional Inspection
Period, as applicable, (as defined in Paragraph 4 below), to direct disbursement
of the Xxxxxxx Money (and any interest earned thereon) to Purchaser. Provided
that Purchaser furnishes Escrow Agent with a form W-9 containing Purchaser's
U.S. Taxpayer Identification Number, the Xxxxxxx Money shall, at Purchaser's
election, be held by Escrow Agent in an interest bearing money market savings
and interest earned thereon shall be reported under Purchaser's U.S. Taxpayer
Identification Number. Except as otherwise provided in this Agreement, the
Xxxxxxx Money shall be credited to and considered as payment of part of the
Purchase Price at the time of and upon consummation of the Closing hereunder,
and the interest earned thereon shall be delivered to Purchaser by Escrow Agent.
4. INSPECTION PERIOD. Subject to rights of Tenant and the
limitations, if any, imposed on the landlord's right of entry under the Lease,
Purchaser and its agents, employees, representatives, consultants and
independent contractors shall have until May 27, 2004 (the "Inspection Period")
in which to conduct, at Purchaser's sole expense, such physical, environmental,
engineering and feasibility reports, inspections, examinations, tests and
studies as Purchaser deems appropriate (including, without limitation,
interviews of Tenant) in an effort to determine whether the Property is suitable
for Purchaser's intended uses of the Property including, without limitation,
those matters disclosed by any survey of the Property as provided in Paragraph 5
and those matters related to the title to the Property as provided in Paragraph
5 hereof. Notwithstanding the foregoing, the Inspection Period for title, survey
and environmental matters ("Additional Inspection Period") shall expire on June
7, 2004. In connection with Purchaser's investigation of the Property, at all
times prior to the Closing, Seller shall provide access to Purchaser to the
following items (which Seller shall update from time to time prior to the
Closing Date as and when Seller shall receive any more current or accurate
information or materials) to the extent the same are in Seller's possession or
are readily available to Seller: (i) any existing title commitments for the
Property (and to the extent not delivered by the Title Insurer (as defined in
Paragraph 5 below) pursuant to Paragraph 5 below, legible copies of any title
exception documents thereto), (ii) the Lease, (iii) any existing surveys of the
Property, (iv) any existing appraisals of the Property, (v) any Phase I and
other environmental reports or relating to the Property, (vi) all other third
party reports with the respect to the Property, (vii) the most recent real
estate tax bills relating to the Property, (viii) as built plans and
specifications for the improvements, if any, on and to be constructed upon the
Property, (ix) all written (and including all amendments thereto and
modifications thereof) guarantees and warranties in effect with respect to the
Property or any portion thereof, which shall survive the closing hereunder, if
any; (x) all licenses, certifications, authorizations, approvals, applications,
variances and permits issued or approved by any governmental authority and
relating to the operation, ownership, design, development, construction, repair
and maintenance of the Property or any part thereof, including, without
limitation, machinery and building permits, zoning variances and approvals,
business licenses, ingress and egress permits and the like, and any and all
amendments to or modifications of any of the foregoing (collectively, the
"Licenses"), if any; and (xi) all essential data, correspondence, documents,
agreements, waivers, notices, applications and other records in respect to the
ownership, operation, design, development, construction, repair and maintenance
of the Property (including, without limitation, any such materials relating to
transactions with taxing
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authorities, governmental agencies, utilities, vendors, Tenant, mortgagees and
others with whom Purchaser may be dealing subsequent to closing) (all items
referred to in clauses (i) through (xi) shall hereinafter sometime be referred
to collectively as the "Existing Due Diligence Items"). At any time prior to the
Closing, Purchaser, Purchaser's agents, employees, representatives, consultants
and independent contractors shall have the right, subject to rights of Tenant
and the limitations, if any, imposed on the landlord's right of entry under the
Lease, to come onto the Property, at such time as reasonably designated by
Seller, for the purpose of conducting the foregoing reports, inspections,
examinations, tests and studies, and updating such reports, inspections,
examinations, tests and studies as provided in Paragraph 7 below. No such
report, inspection, examination, test or study shall unreasonably interfere with
uses of the Property by Seller or Tenant or violate any law or regulation of any
governmental entity having jurisdiction over the Property. Notwithstanding the
foregoing, Purchaser shall not conduct any invasive testing without Seller's
prior consent, such consent not to be unreasonably withheld or delayed, and
subject to the rights of the Tenant under the Lease. Upon the completion of any
inspection, examination, test or study, if any, and provided that Purchaser
elects not to acquire the Property pursuant to this Agreement, Purchaser shall
promptly restore the Property to substantially the condition that existed
immediately prior to such inspection, examination, test or study. Purchaser
agrees to indemnify, defend and hold Seller and Tenant harmless from any and all
actual, out-of-pocket loss and expense (including, without limitation,
reasonable attorney's fees) resulting from claims and damages (including, but
not limited to, injury to, or death of persons, loss or damage to property, the
performance of any labor or services for the Purchaser, or the release, escape,
discharge, emission, spillage, seepage or leakage by Purchaser on or from the
Property of any hazardous substance brought upon the Property by Purchaser or
any other violation by Purchaser of any environmental law applicable to the
Property) directly caused by, arising out of, or incurred in connection with the
exercise by Purchaser of Purchaser's rights under this Paragraph 4. Any
provision of this Agreement to the contrary notwithstanding, the indemnification
obligation of Purchaser under this Paragraph 4 shall survive the Closing or any
earlier termination of this Agreement.
5. TITLE/SURVEY. No later than three (3) days following the
Effective Date, Purchaser shall, at its sole cost and expense, order the
following: (a) the As-Built Survey, as hereinafter defined, and (b) a commitment
from the Title Insurer (as defined hereinbelow) for an ALTA Owner's Title
Insurance Policy (the "Title Commitment") for the Property, together with
legible copies of any and all title exception documents referenced therein,
issued by Chicago Title Insurance Company (the "Title Insurer") in the amount of
the Purchase Price of the Property on or after the date hereof, showing Seller
as owner of the Property in fee simple, subject only to the title exceptions
approved or deemed approved by Purchaser pursuant to this Paragraph 5 or
Paragraph 6 below (each a "PERMITTED EXCEPTION"), and other exceptions
pertaining to liens or encumbrances of a definite or ascertainable amount
(which, in the aggregate, do not exceed that portion of the Purchase Price
payable to Seller on the Closing Date) which may be removed by the payment of
money at closing and which Seller shall so remove (excluding, however, liens for
any special assessments or taxes not yet due and payable), and providing for
full extended coverage over all general title exceptions contained in such
Policy and the following special endorsements (collectively, the "SPECIAL TITLE
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ENDORSEMENTS"): Zoning Endorsement 3.1 (amended to include parking), owner's
comprehensive, access, survey (legal description equivalency), separate tax
parcel, contiguity (if applicable), waiver of creditor's rights, environmental
protection lien, encroachment (if applicable), utility facility, subdivision,
location, deletion of the arbitration provision, and any other endorsements
required by Purchaser. Seller has provided Purchaser with its existing survey
(the "Survey") of the Property and its existing title insurance policy
("Existing Title Policy") insuring Seller's interest in the Property, Prior to
the expiration of the Additional Inspection Period, Purchaser may deliver to
Seller a notice (the "TITLE AND SURVEY NOTICE") identifying any matters
contained in or disclosed by any of the Title Policy, Title Commitment and/or
the Survey and As-Built Survey that are not acceptable to Purchaser in its sole
and absolute discretion (each, a "TITLE/SURVEY OBJECTION", and collectively, the
"TITLE/SURVEY OBJECTIONS"). Purchaser's failure to deliver the Title and Survey
Notice as aforesaid shall be deemed Purchaser's approval and acceptance of the
Title Commitment and the Survey, and all matters shown and referenced thereon
and therein shall be deemed Permitted Exceptions. Additionally, Purchaser's
failure to object to any matters disclosed by the Title Commitment and/or the
Survey in a Title and Survey Notice shall be deemed Purchaser's acceptance of
such matters, and such matters shall be deemed Permitted Exceptions. If
Purchaser shall deliver the Title and Survey Notice to Seller as aforesaid,
Seller shall, within five (5) days after receipt of the same, notify Purchaser,
with respect to each Title/Survey Objection, whether Seller intends to either
(a) cause the Title/Survey Objection to be removed, (b) have the Title Insurer
issue a title endorsement insuring against damage and loss caused by any
Title/Survey Objection (which endorsement shall be subject to the review and
approval of Purchaser), or (c) take no further action regarding such
Title/Survey Objection in which event, subject to the immediately following
sentence, such Title/Survey Objection shall become a Permitted Exception.
Notwithstanding the foregoing, Seller shall at Closing, at its expense, remove
(or cause to be removed) or cause the Title Insurer to insure over any
Title/Survey Objection appearing on the Title Commitment that is any of the
following: (1) judgments against Seller, and/or (2) mortgages or monetary liens,
defects, obligations or exceptions of a definite and ascertainable amount that
can be satisfied solely by the payment of money (items (1) and (2) above to be
hereinafter referred to collectively as "MONETARY EXCEPTIONS") or (3) matters
caused by Seller's intentional actions ("Seller's Exception"). If Seller elects,
or is deemed to have elected, item (c) above, then Purchaser shall have the
right, by delivering notice to Seller within three (3) business days after the
expiration of the aforementioned five (5) day period to either (i) terminate
this Agreement in which event the Xxxxxxx Money (and any interest earned
thereon) shall be immediately returned to Purchaser and thereupon neither Seller
nor Purchaser shall have any further rights, duties or obligations under this
Agreement, or (ii) waive its objection and accept title to the Property subject
to such Title/Survey Objections, in which event this Agreement shall remain in
full force and effect. Seller's failure to notify Purchaser within the
aforementioned five (5) day period of which foregoing course of action Seller
elects to take with respect to a Title/Survey Objection shall be deemed Seller's
election of item (c) above. With respect to any Title/Survey Objection that
Seller has elected or is deemed to have elected not to take any further action,
Purchaser's failure to terminate this Agreement on or before the expiration of
the aforementioned three (3) business day period as aforesaid shall be deemed
Purchaser's waiver of its objection as provided in (ii) above. If the Title
Commitment discloses judgments, bankruptcies or other matters against other
persons
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having names the same as or similar to that of Seller, Seller, on the Title
Insurer's request, shall deliver to the Title Insurer affidavits or other
evidence reasonably acceptable to the Title Insurer showing and/or confirming
that such judgments, bankruptcies or other matters are not against Seller, or
any affiliates.
Notwithstanding anything in this Section or Agreement to the contrary,
Seller may elect to not pay off any mechanic's or materialman's lien filed
against the Property in connection with the construction provided Seller bonds
any such lien to the reasonable satisfaction of Purchaser and the Title Insurer
and further provided that the Title Insurer issues, at Seller's cost, an
endorsement to Purchaser's final Owner's Title Policy to be issued pursuant to
Section 10(c) below insuring against any loss or damage arising on account of
such lien.
6. UPDATED TITLE AND SURVEY. In the event the As-Built Survey is
not received prior to May 28, 2004, Purchaser will have five (5) business days
following receipt of the As-Built Survey but in no event later than June 17,
2004 to review the As-Built Survey and any date down of the Title Commitment
which contains changes to the exceptions shown on the Title Commitment initially
reviewed by Purchaser. If either (i) the As-Built Survey shows any encroachments
onto the Property from any adjacent property, any encroachments by or from the
Property onto any adjacent property, or any violation of or encroachments upon
any recorded building lines, restrictions or easements affecting the Property
that are not Permitted Exceptions or any other matters that are not disclosed by
the original Survey, or (ii) such updated Title Commitment contains any
exception to title or reference any other matter that is not a Permitted
Exception or otherwise is not reflected in the original Title Commitment (any
such matters referenced in clauses (i) and (ii) above to be hereinafter
referenced to as, a "NEW TITLE/SURVEY EXCEPTION"), then Purchaser may, not later
than five (5) business days after receipt of the last of the As-Built Survey and
updated Title Commitment (including legible copies of any new title exception
documents not disclosed in the initial Title Commitment), (but in no event later
than June 17, 2004) deliver to Seller a notice (the "NEW TITLE AND SURVEY
NOTICE") identifying such New Title/Survey Exceptions and Purchaser's objections
thereto. Purchaser's failure to deliver the New Title and Survey Notice as
aforesaid shall be deemed Purchaser's approval and acceptance of the As-Built
Survey and updated Title Commitment, and all matters shown and referenced
thereon and therein shall be deemed Permitted Exceptions. Purchaser's failure to
raise in the New Title and Survey Notice any matters that constitute New
Title/Survey Exceptions as aforesaid shall be deemed Purchaser's approval and
acceptance such matters and such matters shall be deemed Permitted Exceptions.
If Purchaser shall deliver the New Title and Survey Notice to Seller as
aforesaid, then Seller shall, within two (2) business days after receipt of the
same, notify Purchaser, with respect to each new Title/Survey Exception, whether
Seller intends to either (a) cause any New Title/Survey Exception, to be
removed, (b) have the Title Insurer issue a title endorsement insuring against
damage caused by any New Title/Survey Exception (which endorsement shall be
subject to the review and approval of Purchaser), or (c) take no further action
regarding such New Title/Survey Exception in which event, subject to the
immediately following sentence, such New Title/Survey Exception shall become a
Permitted Exception. Notwithstanding the foregoing, Seller shall, at its
expense, remove (or cause to be removed) or cause
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the Title Insurer to insure over any New Title/Survey Exception that constitutes
a Monetary Exception or Seller's Exception. If Seller elects, or is deemed to
have elected, item (c) above, then Purchaser shall have the right, by delivering
notice to Seller within three (3) days after the expiration of the
aforementioned two (2) business day period (and the Closing Date shall be
extended accordingly to afford Purchaser such three (3) business day period),
and without waiving any rights of Purchaser for a Seller default under this
Agreement, to either (i) terminate this Agreement in which event the Xxxxxxx
Money (and any interest earned thereon) shall be immediately returned to
Purchaser and thereupon neither Seller nor Purchaser shall have any further
rights, duties or obligations under this Agreement, or (ii) waive its objection
and accept title to the applicable Property subject to such New Title/Survey
Exception, in which event this Agreement shall remain in full force and effect.
Seller's failure to notify Purchaser within the aforementioned two (2) business
day period of which foregoing course of action Seller elects to take with
respect to a New Title/Survey Exception shall be deemed Seller's election of
item (c) above. With respect to any New Title/Survey Objection that Seller has
elected or is deemed to have elected not to take any further action, Purchaser's
failure to terminate this Agreement on or before the expiration of the
aforementioned three (3) business day period as aforesaid shall be deemed
Purchaser's waiver of its objection as provided in (ii) above. If the updated
Title Commitment discloses judgments, bankruptcies or other matters against
other persons having names the same as or similar to that of Seller, Seller, on
the Title Insurer's request, shall deliver to the Title Insurer affidavits or
other evidence reasonably acceptable to the Title Insurer showing and/or
confirming that such judgments, bankruptcies or other matters are not against
Seller, or any affiliates.
If Seller has elected or, with respect to Monetary Exceptions or
Seller's Exception is required, to cure any Title/Survey Objection or any New
Title/Survey Exception as provided above (whether by removal of, or obtaining
title insurance over, the same), but failed to cure any such matters on or prior
to the Closing Date, then Purchaser, and without waiving any rights of Purchaser
for a Seller default under this Agreement, may elect to either (i) terminate
this Agreement in which event the Xxxxxxx Money shall be immediately returned to
Purchaser and thereupon neither Seller nor Purchaser shall have any further
rights, duties or obligations under this Agreement, (ii) waive its objection and
accept the Property subject to such Title/Survey Objection or New Title/Survey
Exception, in which event this Agreement shall remain in full force and effect;
provided, however, that if the Title/Survey Objection or New Title/Survey
Exception, is a Monetary Exception, then Purchaser shall have the right to
deduct from the Purchase Price the amount of such Monetary Exception, and any
amount so deducted from the Purchase Price shall be paid to the appropriate
party in exchange for the removal of such Monetary Exceptions; or (iii) xxx
Seller for specific performance. Notwithstanding anything in this Section or
Agreement to the contrary, Seller may elect to not pay off any mechanic's or
materialman's lien filed or other Monetary Exception against the Property
provided Seller bonds any such lien to the reasonable satisfaction of the Title
Insurer and further provided that the Title Insurer issues, at Seller's cost, an
endorsement to Purchaser's final Owner's Title Policy to be issued pursuant to
Section 10(c) below insuring against any loss or damage arising on account of
such lien.
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Blytheville, AR
7. OBJECTIONS TO INVESTIGATIONS. In the event that the results of
the inspections, investigations, reviews and feasibility studies to which
reference is made in Paragraph 4 above are, in Purchaser's sole opinion and
within Purchaser's sole discretion, unacceptable to Purchaser for any or no
reason whatsoever, and Purchaser so notifies Seller of the fact on or before the
expiration of the Inspection Period provided in Paragraph 4 hereof, or if the
Purchaser has terminated the Agreement pursuant to Paragraph 6, then the Xxxxxxx
Money deposited by Purchaser with Escrow Agent hereunder, together with all
interest earned thereon, shall immediately be returned to Purchaser upon
Purchaser's demand, and this Agreement shall thereupon be terminated in its
entirety, and shall be of no further force and effect and all parties hereto
shall thereupon be relieved and absolved of any further liabilities or
obligations whatsoever to each other hereunder, except with respect to those
liabilities or obligations hereunder which are expressly stated to survive the
termination of this Agreement. The failure of the Purchaser to notify Seller of
the unacceptability of any such inspections, investigations, reviews and
feasibility studies prior to the expiration of the Inspection Period (or sooner
as required by Paragraph 4) or timely terminate the Agreement pursuant to
Paragraph 6 shall constitute a waiver of Purchaser's right to terminate this
Agreement, in which event the Xxxxxxx Money shall be non-refundable to
Purchaser. Except in the event of a default hereunder by Seller or the failure
of a condition precedent contained in this Agreement to Purchaser's obligation
to close the transaction contemplated by this Agreement, the Xxxxxxx Money and
all interest earned thereon shall be delivered to Seller at Closing as and for
damages pursuant to Paragraph 17. Within five (5) days of termination of this
Agreement by Purchaser pursuant to this Xxxxxxxxx 0, Xxxxxxxxx shall deliver to
Seller the Existing Due Diligence Items, but such delivery shall not be a
condition to the return of the Xxxxxxx Money to Purchaser.
Seller shall be responsible for the payment of any and all amounts due
and payable under any such property management and/or leasing agreements
relating to the Property, as well as any leasing commissions due any brokers in
connection with the Lease.
8. APPRAISAL/ENVIRONMENTAL REPORTS. Purchaser, at its option, shall
cause the aforementioned existing environmental reports and assessments relating
to the Property to be updated and re-certified to Purchaser and Purchaser's
lender, if any. Purchaser shall be responsible to pay for the costs of such
update and re-certification. Purchaser, at its option, shall have new appraisals
of the Property prepared and issued to and in the name of Purchaser, and
Purchaser's lender, if any. Purchaser shall be responsible to pay for the costs
of such appraisals.
9. DELIVERIES AT CLOSING.
(a) At the time of closing hereunder, Seller shall deliver
the following original documents for the Property:
(i) Special warranty deed conveying title to the
Property to Purchaser (or its nominee, assignee or the entities
designated by Purchaser as taking title to the Property) in the
form attached hereto as EXHIBIT "B" (modified as necessary to
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conform to local law) free and clear of all liens, encumbrances
and exceptions whatsoever, save and except only for the
Permitted Exceptions.
(ii) Duly executed Quit-Claim Xxxx of Sale in the
form attached as EXHIBIT "C".
(iii) Appropriate "Seller's Affidavit" or other
acceptable evidence addressed to the Title Insurer attesting to
the absence of liens, lien rights, rights of parties in
possession (other than Tenant) and other encumbrances arising
under Seller (other than the Permitted Exceptions) so as to
enable Title Insurer to delete the "standard" exceptions far
such matters from Purchaser's owner's policy of title insurance
for the Property and otherwise insure any "gap" period occurring
between the closing and the recordation of the closing
documents.
(iv) Duly executed Assignment and Assumption of
Agreement for each the Lease (the "Lease Assignment") in the
form attached as EXHIBIT "D", together with all of the documents
assigned thereby.
(v) An estoppel certificate relating to the Lease
from Tenant in the form and substance required by the Lease. The
estoppel certificate shall be certified to Purchaser and its
nominee, assignee and/or the entities designated by Purchaser
not later than five (5) days after the Effective Date. At a
minimum, the estoppel certificate must be certified to Inland
Western Blytheville, L.L.C, a Delaware limited liability
company, its lenders, successors and assigns
(vi) Duly executed Assignment of Licenses, Permits,
Plans, Contracts, Warranties, and Intangible Property (the
"License Assignment") in the form attached as EXHIBIT "E",
together with the consent of the issuer thereof to such
assignment if required by the terms of the applicable warranty;
in the event that the issuer of any warranty charges a fee in
connection with the assignment or requires that any work be
performed in connection with the assignment, then such fee and
the cost of work shall be paid by the Seller at the Closing.
Purchaser shall advise Seller in writing by the end of the
Inspection Period as to whether or not Purchaser accepts
Exhibits B and C of the License Assignment and Seller shall then
advise Purchaser in writing whether or not Seller will revise
said exhibits. If Purchaser gives no such notice by the end of
the Inspection Period, then Purchaser shall be deemed to have
approved said exhibits.
(vii) Notice addressed to Tenant, signed by Seller,
providing notice of the sale of the Property and directing
Tenant to send future rent and notices to Purchaser.
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(viii) Originals of the Lease and any guaranty
agreements thereto and any originals of the Contracts and
Licenses (to the extent the same are in Seller's possession).
(ix) To the extent in the possession of Seller, a
letter from the applicable zoning authority for the Property
confirming that the Property is zoned for its current use.
Purchaser may obtain any current letters that it desires,
provided, however, Seller agrees to reasonably cooperate with
Purchaser in obtaining any of the aforementioned current zoning
letters.
(x) Estoppel Certificates, if any, from all parties
to any operating agreements and/or reciprocal easement
agreements to the extent such parties are obligated to provide
the same under the said agreements confirming the terms of the
operating agreements and/or reciprocal easement agreements and
confirming that there exist no defaults under the such documents
and no event or circumstance has occurred that, with the giving
of notice or passage of time, could result in a default under
such documents, which estoppel certificates shall be certified
to Purchaser and its nominee, assignee and/or the entities
designated by Purchaser as taking title to the Property and
Purchaser's lender (and their respective successors and
assigns), if any. Purchaser shall give Seller in writing by the
end of the Inspection Period the operating agreements and/or
reciprocal easement agreements for which Purchaser wants
estoppel certificates or Seller shall have no obligation to
furnish Purchaser any estoppel certificates.
(xi) Unqualified, final Certificates of Occupancy (or
temporary certificates of occupancy acceptable to Purchaser) for
the Property, if in Seller's possession.
(xii) An appropriate FIRPTA Affidavit or Certificate
by Seller, evidencing that Seller is not a foreign person or
entity under Section 1445(f)(3) of the Internal Revenue Code, as
amended.
(xiii) INTENTIONALLY OMITTED.
(xiv) A duly executed counterpart of the closing
statement.
(xv) A certificate of Seller verifying that the
representations and warranties made in this Agreement are true
and correct at the time of Closing hereunder as modified by
Seller pursuant to Seller's Covenant contained in Paragraph
15(2).
(xvi) To the extent in Seller's possession, all
security cards and passes and keys to the Property and
improvements located thereon.
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(xvii) To the extent in Seller's possession, to the
extent not delivered to Purchaser prior to the Closing Date,
originals (or if Seller does not have the original, copies
certified by Seller as being true, complete and correct copies
of what Seller possesses in its files) of all (a) as-built plans
and specifications, surveys, site plans, engineering plans and
studies, utility plans and development plans related to the
Property, (ii) all guaranties and warranties relating to the
construction of the improvements located upon the Property
(including, without limitation, construction warranties provided
by the general contractor and any subcontractors of any tier,
and all of Seller's rights, if any, in any roof warranty
relating to the Leased Premises provided to the Tenant), and
(iii) all governmental licenses and permits relating to the
Property.
(xvviii) INTENTIONALLY OMITTED.
(xix) Such other closing documents as are reasonably
necessary and proper in order to consummate the transaction
contemplated by this Agreement.
(b) At the time of closing hereunder, Purchaser shall
deliver the following original documents for each Property:
(i) Duly executed Lease Assignment.
(ii) A duly executed counterpart of the closing
statement.
(iii) Notice addressed to Tenant, signed by Purchaser,
providing notice of the sale of the Property and directing
Tenant to send future rent and notices to Purchaser.
(iv) Such other closing documents as are reasonably
necessary and proper in order to consummate the transaction
contemplated by this Agreement.
(v) Purchase price in cash.
10. CLOSING. The Purchase Price and the aforesaid executed closing
documents shall be delivered, and the purchase and sale transaction contemplated
in this Agreement shall otherwise be consummated subject to the other terms and
provisions of, and satisfaction of all conditions to Closing contained in, this
Agreement (the "Closing"), June 21, 2004 (the "Closing Date") provided, at
Seller's option exercised not later than ten (10) days before the scheduled
Closing Date, Seller may extend the Closing Date to a date thirty (30) days
after the scheduled Closing Date. The Closing shall occur by mail to the offices
of Escrow Agent. Notwithstanding anything contained in this Agreement to the
contrary, Purchaser's obligation to close hereunder is conditioned upon all of
the following:
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Blytheville, AR
(a) All Rent shall be current under the Lease with no
delinquencies as to any Rent due and payable on or before the Closing
Date.
(b) All representations and warranties of Seller set forth
in Paragraph 15 contained in this Agreement being true and correct and
unmodified at and as of the Closing Date, and all obligations of Seller
to have been performed on or before the Closing Date having been timely
and duly performed.
(c) The issuance of a final ALTA title insurance policy (or
a marked commitment therefor, with the original title insurance policy
to follow) pursuant to and in accordance with the updated Title
Commitment (in form and substance approved by Purchaser, including the
issuance of all endorsements thereto and the removal of any of Purchaser
objections pursuant to Paragraphs 5 and/or 6 above) insuring fee simple
title to the Property in Purchaser (or the entity that takes title to
the applicable Property) as of the Closing Date in the amount of the
Purchase Price, subject only to the Permitted Exceptions, and containing
no exception for mechanics' liens (unless appropriately bonded by
Seller) and containing such affirmative insurance as may be available in
the state in which the Property is located insuring that the Purchaser's
fee title shall not be subject to any mechanics' liens.
(d) Purchaser's receipt of any and all estoppel certificates
required to be delivered by Seller which (i) confirms the Lease
information, (ii) is not inconsistent with any of Seller's
representations set forth in this Agreement and (iii) does not allege
any default by any party to the Lease, all in form and substance
reasonably acceptable to Purchaser.
(e) Seller's delivery of all of the closing documents
described in Paragraph 9 above in a form reasonably acceptable to
Purchaser.
(f) The Property will be delivered to Purchaser in
materially the same condition as of the date hereof ordinary wear and
tear excepted.
If any of the conditions precedent (a) through (f) above shall not be
satisfied or waived by the Closing Date, then Purchaser as its sole remedy,
except as set forth below, by notice to Seller on or before the Closing Date may
elect to terminate this Agreement and receive a refund of the Xxxxxxx Money and
any interest earned thereon and all other funds and documents theretofore
delivered hereunder or deposited in escrow by either party shall be forthwith
returned to such party. In the Event, however, that (i) the representations and
warranties of Seller set forth in Paragraph 15 were not accurate when made
(either as of Seller's execution of the Agreement or at Closing as the case may
be), or (ii) the Covenants of Seller set forth in Paragraph 15 are not satisfied
at Closing, or (iii) Seller fails to deliver the Closing Documents set forth in
Paragraph 9, except for such documents which are not in Seller's control, or
(iv) Seller's wrongful actions, and Purchaser either does not
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Blytheville, AR
close as a result thereof or otherwise suffers damages as a result thereof, then
in that event Purchaser shall have the remedies set forth in Paragraph 18.
11. CLOSING COSTS. Seller shall pay for (i) one-half of any escrow
fee, not to exceed TWO HUNDRED FIFTY AND 00/100 DOLLARS ($250.00); and (ii) any
other costs customarily paid by sellers of similar property; and (iii) the costs
of recording any corrective title instruments and costs to remove, or costs of
endorsements providing insurance coverage over any Title/Survey Objection or New
Title/Survey Exception (other than the Special Title Endorsements). Purchaser
shall pay for (i) documentary stamp taxes or any other state, county and/or
local transfer taxes required to be paid with respect to the warranty deeds, if
any; (ii) the cost of recording the warranty deed; (iii) the premiums for the
owner's title insurance policy to be issued pursuant to the updated Title
Commitment, including any charges for any extended coverage and/or the Special
Title Endorsements to the title insurance policies; (iv) the costs of the
appraisals, and environmental reports relating to the Property; (v) the costs of
the As-Built Survey relating to the Property; (vi) the costs of the Title
Commitment (including all updates thereof) and the Survey of the Property; (vii)
one-half of any escrow fee, not to exceed TWO HUNDRED FIFTY AND 00/100 DOLLARS
($250.00); and (viii) any other costs customarily paid by purchasers of similar
Property. Each of Purchaser and Seller shall bear its own attorneys' fees.
12. PRORATIONS. The following prorations shall be made between
Purchaser and Seller as of the date of Closing (for the purposes of the
following prorations, Purchaser shall be deemed to be the owner of the Property
for the entire Closing Date):
(a) Purchaser shall receive a credit, if any, for any ad
valorem taxes, assessments, maintenance costs or other costs and
expenses, if any, prepaid by Tenant to Seller (i) that relate to the
Closing Date and period subsequent to the Closing Date, or (ii) are (or
may become) owed by Seller to Tenant pursuant to the Lease, but have not
been paid to Tenant as of the Closing Date.
(b) Purchaser shall receive a credit against the Purchase
Price in an amount equal to the sum of (i) any and all leasing or other
commissions due and payable (or that may become due and payable) in
connection with the Lease, (ii) any and all tenant improvement and other
allowances and concessions due, payable or owed (or that may become due,
payable or owed) under the Lease, and (iii) any and all budgeted capital
expenditures relating to the Property that have not been paid as of the
Closing Date.
(c) All Rent and other amounts payable by the Tenant to the
Landlord under the Lease attributable to the period prior to the Closing
Date shall be the property of Seller, and all Rent and other amounts
payable by the Tenant to the Landlord under the Lease attributable to
the Closing Date and the period subsequent thereto shall be the property
of Purchaser. If Rent due for the month in which the Closing Date occurs
has been paid by Tenant to Seller prior to the Closing Date, then such
Rent shall be the property of Seller and
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Blytheville, AR
Purchaser shall receive a credit for all such Rent attributable to the
Closing Date and the period subsequent thereto. If Rent due for the
month in which the Closing Date occurs has not been paid by Tenant to
Seller prior to the Closing Date, then such Rent shall be the property
of Purchaser and Seller shall receive a credit for all such Rent
attributable to the period prior to the Closing Date when and if
received by Purchaser. Purchaser and Seller each agree to remit to the
other, within thirty (30) days after receipt of same, all Rent received
by them after the Closing Date which is defined as the property of the
other party pursuant to the terms of this subparagraph, which obligation
shall expressly survive Closing hereunder. Purchaser shall receive a
credit against the Purchase Price in an amount equal to all security
deposits, if any, required under the Lease, provided however, Purchaser
shall assume all obligations of the aforementioned security deposits as
required under the Leases.
(d) As of the Closing, any and all ad valorem taxes and
assessments attributable to the Property (collectively, "Taxes") for
calendar year 2003 and all prior calendar years shall be paid by Seller.
Taxes for calendar year 2004 that remain unpaid as of the Closing shall
be prorated as between Seller and Purchaser as follows: (a) Seller shall
be responsible for the aggregate amount of Taxes (less any portion
thereof payable by the Tenant pursuant to the Lease) levied or assessed
against the Property during, or attributable to the Property for,
calendar year 2004, multiplied by a fraction, the numerator of which
shall be the number of days during calendar year 2004 that Seller owned
the Property, and the denominator of which shall be 365; and (b)
Purchaser shall be responsible for the aggregate amount of Taxes (less
any portion thereof payable by the Tenant pursuant to the Lease) levied
or assessed against the Property during, or attributable to the Property
for, calendar year 2004, multiplied by a fraction, the numerator of
which shall be the number of days during calendar year 2004 that
Purchaser owned, the Property, and the denominator of which shall be
365. Any Taxes attributable to calendar year 2004 that are due and
payable as of the Closing Date shall be paid by Seller as of the Closing
Date as part of the proration of Taxes, payable by Seller pursuant to
the prior sentence. If the final amount of Taxes for calendar year 2004
are not known at the Closing, then Seller and Purchaser shall, in good
faith, estimate the amount of same at Closing, and shall re-prorate such
Taxes within thirty (30) days of the date that the final amount shall be
determined (i.e., issuance of the final Tax xxxx for calendar year
2003).
(f) Any other items of revenue, income and expense not
prorated pursuant to any of clauses (a) through (e) above shall be
prorated as of the Closing Date such that (i) Seller shall receive the
benefit of all revenue and income, and shall be obligated for the
payment of all expenses, attributable to the period of time prior to the
Closing Date, and (ii) Purchaser shall receive the benefit of all
revenue and income, and shall be obligated for the payment of all
expenses, attributable to the Closing Date and the period of time after
the Closing Date.
(g) If the actual amount of any item to be prorated/credited
pursuant to this Section 12 cannot be determined as of the Closing Date,
then Seller and Purchaser shall, in good faith, estimate the amount of
such item, and shall re-prorate such item within thirty (30)
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Blytheville, AR
days after the date that the actual amount of such item is determined
except as set forth above.
13. COMMISSIONS. Seller hereby represents and warrants to Purchaser
that Seller has not dealt with any broker or finder with respect to the
transaction contemplated hereby except Prime Net Realty Advisers, Inc.
("Prime"). Seller hereby agrees to indemnify Purchaser for any claim for
brokerage commission or finder's fee asserted by any person, firm or corporation
claiming to have been engaged by Seller other than Prime. Purchaser hereby
represents and warrants to Seller that Purchaser has not dealt with any broker
or finder in respect to the transaction contemplated hereby, Prime and Purchaser
hereby agrees to indemnify Seller for any claim for brokerage commission or
finder's fee asserted by any person, firm or corporation claiming to have been
engaged by Purchaser other than Prime. Purchaser shall pay Prime a commission
through the Closing escrow in an amount per separate agreement.
14. PROPERTY SOLD "AS-IS". EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, THE PROPERTY SHALL BE SOLD AND CONVEYED BY SELLER AND ACCEPTED BY
PURCHASER IN "AS IS" CONDITION WITHOUT ANY WARRANTY OR REPRESENTATION WHATSOEVER
ON THE PART OF SELLER, EXPRESS OR IMPLIED, AS TO THEIR CONDITION,
CLASSIFICATION, PAST OR PRESENT USE, OR MERCHANTABILITY, FITNESS OR SUITABILITY
FOR ANY PARTICULAR PURPOSE, USE, DESIGN, CONSTRUCTION OR DEVELOPMENT, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OR REPRESENTATION AS TO SURFACE OR SUBSURFACE
CONDITION, ZONING, OR THE SUFFICIENCY, ACCESSIBILITY AND CAPACITY OF UTILITIES
FOR PURCHASER'S INTENDED USE OF THE PROPERTY, IT BEING AGREED THAT, EXCEPT FOR
SELLER'S REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, ALL SUCH
RISKS ARE TO BE BORNE BY PURCHASER AND THAT PURCHASER IS RELYING SOLELY ON ITS
OWN INSPECTION AND INVESTIGATION OF THE PROPERTY WITH RESPECT THERETO AND NOT ON
ANY STATEMENT, REPRESENTATION OR WARRANTY MADE BY SELLER OR ANYONE ACTING OR
CLAIMING TO ACT ON BEHALF OF SELLER.
15. REPRESENTATIONS AND WARRANTIES; COVENANTS. Each party warrants
and represents the following to the other that:
(a) It shall perform its duties and obligations under this
Agreement in accordance with the terms and conditions of this Agreement.
(b) This Agreement constitutes the valid and binding
obligation of each party, enforceable against each party in accordance
with the Agreement's terms. All actions required to be taken by each
party to authorize it to enter into and carry out this Agreement have
been, or prior to the date of closing hereunder shall be, duly and
validly taken.
Seller further represents and warrants to Purchaser that as of
the date of Seller's execution of this Agreement:
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Blytheville, AR
(i) to the actual knowledge of Seller, without duty
of inquiry, that there are no pending, existing, or threatened:
(a) condemnation proceedings against the Property or any
portions thereof, (b) widening, change of grade or limitation on
use of streets abutting the Property, (c) special tax or
assessment to be levied against the Property, (d) change in the
zoning classification of the Property, or (e) change in the tax
assessment of the Property.
(ii) to the best of Seller's knowledge, the Property
is leased as Wal-Mart Stores, Inc., for a term expiring April
20, 2019 at the annualized base rental payments of $903,230.00
as a triple net lease covering the building and all of the real
property and parking areas located on the Property, together
with the reciprocal easements and REA/OEA agreements (if any)
affecting the Property, for the entire terms and option periods
thereof.
(iii) to the best of Seller's actual knowledge (based
solely upon the fact that Seller has received no written notice
to the contrary and without duty of inquiry or investigation of
any kind or nature) and subject to anything contained in the
Existing Due Diligence Documents, the Property and the Leased
Premises are free of violations, and the interior and exterior
structures are free of leaks, structural defects and mold, and
that the Property are and at Closing shall be in full compliance
with federal, state, city and county ordinances, environmental
laws, and that no third party has an option or right of first
refusal to purchase the Property except as stated in the Leases
nor are there any current or contemplated special assessments.
(iv) neither Seller nor, to the best of Seller's
knowledge, Tenant (or any guarantor thereof) are in default on
the Lease nor is there any threatened or pending litigation
against the Seller or the Property. In addition, the Lease is
the only occupancy or lease agreement in effect for or on the
Property.
(v) Seller owns the Property and is the landlord
under the Lease.
(vi) To the best of Seller's knowledge, the Lease is
in good standing and full force and effect, and no rights or
interests of the landlord thereunder have been waived or
released. Seller has no knowledge of any circumstances affecting
the financial condition of any tenant of the Property which
would prevent such tenant from fulfilling and complying with the
obligations under its Lease. To the best of Seller's actual
knowledge without duty of inquiry, except for Seller and Tenant
pursuant to the Lease, there are no persons in possession or
occupancy of the Property or any part thereof, nor are there any
persons who have possessory rights in respect to the Property or
any part thereof. And Tenant is open and operating its business
at the Leased Premises. Seller has no knowledge of Tenant's
intent, if any, to abandon operations at the Leased Premises.
Except as provided in the Existing
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Blytheville, AR
Due Diligence Items provided to Purchaser and to the best
knowledge of Seller: (a) there are no leasing or other
commissions due and payable in connection with the Lease; (b)
there are no tenant improvement or other allowances or
concessions due, payable or owed, or that may become due,
payable or owing, to Tenant under the Lease; and (c) there are
no budgeted capital improvements or other capital expenditures
that Seller anticipates making or incurring with respect to the
Property.
(vii) except to the extent disclosed on EXHIBIT "F"
attached hereto and made a part hereof, to the best of Seller's
knowledge, prior to and during Seller's ownership of the
Property, (i) no hazardous substances, materials or waste which
is regulated by any governmental authority have been located on
the Property or have been released into the environment, or
discharged, placed or disposed of at, on or under the Property;
(ii) no underground storage tanks have been located on the
Property; (iii) the Property has never been used as a dump for
waste material; and (iv) the Property and its prior uses comply
with and at all times have complied with, any applicable
governmental law, regulation or requirement relating to
environmental and occupational health and safety matters.
(viii) to the best of Seller's knowledge, Seller has
complied with all terms and provisions of the Lease to have been
complied with as of the date this representation is made, and
Seller has satisfied any and all conditions and requirements of
the Lease to have been satisfied as of the date this
representation is made.
(ix) Seller has no management, leasing, service,
maintenance, operating, repair, consulting, professional
service, advertising, promotion, public relations, construction,
development, architect's, contractors, sub-contractors, vendors,
suppliers, materialmen and other contracts and commitments
(excluding the Lease) in any way relating to the Property or any
part thereof which shall survive the Closing (again, however,
subject to the Lease or any agreements of record); no equipment
leases, rights and options, including rights to renew or extend
the term or purchase the leased equipment, relating to equipment
or property located in or upon the Property or used in
connection therewith which shall survive the Closing;
(x) Seller has received no warranty conceding the
construction of the Improvements. In addition, Seller does not
have any plans, guaranties or roof warranties, relating to the
Property other than as furnished or assigned to Purchaser at the
Closing.
(xi) To Seller's knowledge the Property is not
encumbered by any property management agreement except such
management agreement as will be terminated by
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Blytheville, AR
Seller at Closing and Seller has not engaged for or placed at
the Property any property manager, employees or leasing agent or
broker.
Each representation and warranty of each party contained in this
Agreement shall be true and accurate as of the date hereof, shall be deemed to
have been made again at and as of Closing modified, however, to contain changes
thereto disclosed to Purchaser pursuant to Seller's covenants identified in
subparagraph (2) hereinbelow, and shall then be true and accurate in all
material respects, and shall survive the Closing, provided however, such
representations and warranties shall not survive beyond nine (9) months after
the Closing Date.
Seller hereby covenants that:
(1) Seller, at Seller's sole cost and expense, shall keep and
perform (or cause to be performed) all obligations of the landlord under the
Lease, and all obligations of the Property owner or its agents under the
Contracts and Licenses, to and including the Closing Date or termination of this
Agreement. On the Closing Date, Seller shall tender possession of the Property
to Purchaser in the same condition the Property was in when last inspected by
Purchaser, except for ordinary wear and tear, casualty loss and condemnation,
actions of unaffiliated third parties (including governmental impositions) which
are not the responsibility of Seller and any actions of Tenant without Seller's
consent. Not less than ten (10) days prior to the Closing Date, Seller shall
deliver to Purchaser, for Purchaser's review and approval, executed copies of
all estoppel certificates to be delivered at Closing pursuant to Paragraph 9
hereof. At Closing, Seller shall, at its sole cost and expense, terminate any
property management agreement, leasing agreement and/or insurance policies
maintained by Seller related to the Property.
(2) Seller shall notify Purchaser promptly if Seller becomes aware
of any transaction or occurrence prior to the Closing Date which would make any
of the representations or warranties of Seller contained in this Agreement not
true and correct in any respect. Additionally, Seller promptly shall deliver to
Purchaser any notices and written communications sent to or received from
Tenant.
(3) From the date of this Agreement, without the prior written
consent of Purchaser, Seller shall not do, suffer or permit, or agree to do, any
of the following:
(A) enter into any transaction in respect to or affecting
the Property out of the ordinary course of business:
(B) sell, encumber or grant any interest in the Property or
any part thereof in any form or manner whatsoever, or otherwise perform
or permit any act which will diminish or otherwise affect Purchaser's
interest under this Agreement or in or to the Property or which will
prevent Seller's full performance of its obligations hereunder; or
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Blytheville, AR
(C) enter into, amend, waive any rights under, terminate or
extend any Contract or the Lease.
16. DAMAGE AND CONDEMNATION. Seller shall notify Purchaser upon the
occurrence of any damage, destruction, taking or threat of taking affecting any
of the Property. In the event of any material damage to or destruction of a
Property, or any portions thereof, or in the event of any material takings or
threats of taking of any Property, or any portions thereof, by exercise of the
power of eminent domain, Purchaser may elect to: (i) terminate this Agreement by
giving notice thereof to Seller within ten (10) days of receipt of notice from
Seller, whereupon this Agreement shall become null and void and the parties
shall be relieved of and released from any and all further rights, duties,
obligations and liabilities hereunder, except for those obligations which
survive the termination of this Agreement, or (ii) consummate the purchase of
all of the Property subject to the said damage, destruction, or condemnation
whereupon, at Closing, Seller shall, subject to Purchaser's assumption of the
Landlord's obligations, if any, under the Lease with respect thereto, assign any
rights to any insurance proceeds or condemnations awards, subject to the rights
of Tenant and obligations of Landlord under the Lease. Seller shall provide
Purchaser with all information received by Seller regarding any such damage,
destruction, taking or threat of taking which is reasonably necessary or useful
to Purchaser in making the election between such alternative. For the purposes
of this paragraph, "material" shall mean any damage, destruction or taking (i)
which would allow Tenant to terminate the Leases or xxxxx, or reduce the amount
of, the rents due under the Leases, or (ii) which would cause damage to the
Property or Property in excess of ONE HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS
($150,000.00), or (iii) which would unreasonably interfere with the access
provided to the Property.
17. DEFAULT BY PURCHASER; SELLER'S REMEDIES. If the purchase and
sale of the Property is not consummated in accordance with the terms and
conditions of this Agreement due to default or breach on the part of Purchaser,
then Seller, at its election, may, as its sole remedy hereunder and at law or
equity, terminate this Agreement and obtain as valid liquidated damages the
entire Xxxxxxx Money and any interest earned thereon, provided however, Seller
shall first provide written notice to Purchaser of said default and afford
Purchaser five (5) days to cure such default. In no event whatsoever shall the
Xxxxxxx Money, or the provisions of this Section 17, in any way limit
Purchaser's obligations to Seller with respect to any indemnities or repair
obligations under Paragraph 4 of this Agreement. The right to cure and notice
should not apply to Purchaser's failure to timely deliver the Purchase Price.
18. DEFAULT BY SELLER; PURCHASER'S REMEDIES. If the purchase and
sale of the Property is not consummated in accordance with the terms and
conditions of this Agreement due to default or breach on the part of Seller,
then Purchaser, at its election, may, provided Purchaser shall first provide
written notice to Seller of said default and afford Seller five (5) days to cure
such default, (i) avail itself of the remedy of specific performance and recover
any and all costs of obtaining specific performance, or (ii) terminate this
Agreement and receive a refund of the Xxxxxxx Money and interest earned thereon
and Seller shall reimburse Purchaser for any and all out-of-pocket costs and
expenses
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Blytheville, AR
incurred by Purchaser in connection with the transaction contemplated by this
Agreement (including, without limitation, any and all due diligence costs,
attorneys' fees and lender's costs and fees) but in no event in excess of
$300,000.00. The foregoing sentence shall limit Purchaser's remedies under any
Seller indemnity contained in this Agreement or for a breach of any Seller
representation or warranty contained in this Agreement.
19. INTENTIONALLY DELETED.
20. ASSIGNMENT. Purchaser may assign its interest under this
Agreement in whole or in part. Upon any assignment by Purchaser, Purchaser shall
not be entitled to a release or substitution of the Xxxxxxx Money, but shall
seek reimbursement of same from Purchaser's assignee. Seller shall not assign
this Agreement or any of Seller's interests herein without Purchaser's prior
written consent.
21. NOTICES. Any notice, request, demand, tender or other
communication under this Agreement shall be in writing, and shall be deemed to
have been duly given at the time and on the date when personally delivered, or
upon being delivered to a nationally recognized commercial courier for next day
delivery, to the address for each party set forth below, or upon delivery if
deposited in the United States Mail, Certified Mail, Return Receipt Requested,
with all postage prepaid, to the address for each party set forth below, or by
facsimile with proof of delivery of same. The time period in which a response
must be made, or action taken, by a party receiving such communication shall
commence on the date of actual receipt by such party. Rejection or other refusal
to accept or inability to deliver because of changed address of which no notice
was given shall be deemed to be receipt of such communication. By giving prior
notice to all other parties, any party may designate a different address for
receiving notices.
Notices to Seller: Colorado & Santa Fe Real Estate Company
0000 Xxxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Notices to Purchaser: Inland Real Estate Acquisitions, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: G. Xxxxxx Xxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
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Blytheville, AR
With a copy to: Xxxx Xxxxxxx, Esquire
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: (000)000-0000
Facsimile: (000)000-0000
22. GOVERNING LAW AND BINDING EFFECT. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Florida and shall be binding upon, inure to the benefit of, and be
enforceable by the parties hereto as well as their respective heirs, personal
representatives, successors and assigns.
23. TIME OF ESSENCE. Time shall be of the essence in the performance
of the terms and conditions of this Agreement, In the event any time period
specified in this Agreement expires on a Saturday, Sunday or bank holiday on
which national banks in Denver, Colorado, are closed for business, then the time
period shall be extended so as to expire on the next business day immediately
succeeding such Saturday, Sunday or bank holiday.
24. CAPTIONS. All captions, headings, paragraph and subparagraph
numbers and letters and other reference numbers or letters are solely for the
purpose of facilitating references to this Agreement and shall not supplement,
limit or otherwise vary in any respect the text of this Agreement. All
references to particular paragraphs and subparagraphs by number refer to the
paragraph or subparagraph so numbered in this Agreement.
25. ENTIRE AGREEMENT. This Agreement supersedes all prior
discussions and agreements between Seller and Purchaser with respect to the
purchase and sale of the Property. This Agreement contains the sole and entire
understanding between Seller and Purchaser with respect to the transactions
contemplated by this Agreement, and all promises, inducements, offers,
solicitations, agreements, representations and warranties heretofore made
between the parties are merged into this Agreement. This Agreement shall not be
modified or amended in any respect except by a written agreement executed by or
on behalf of the parties to this Agreement in the same manner as this Agreement
is executed.
26. SURVIVAL OF PROVISIONS. The warranties, representations,
agreements, covenants and indemnities of the Seller and Purchaser provided for
in this Agreement shall survive the Closing under or termination of this
Agreement only to the extent expressly provided herein.
27. VALIDITY. In the event any term or provision of this Agreement
is determined by the appropriate judicial authority to be illegal or otherwise
invalid, such provision shall be given its nearest legal meaning or be construed
or deleted as such authority determines, and the remainder of this Agreement
shall remain in full force and effect.
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Blytheville, AR
28. ATTORNEY'S FEES. In the event of any litigation arising out of
this Agreement, the party prevailing (as determined by the court) in obtaining
the relief sought, in addition to all other sums that it may be entitled to
recover, shall be entitled to recover from the other party its reasonable
attorney's fees and expenses incurred as a result of such litigation.
29. EFFECTIVE DATE. This Agreement shall be effective on the date
that the last of both parties have executed this Agreement, as evidenced by the
date set forth beneath their signatures hereinbelow (the "Effective Date").
30. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become a binding agreement when one or more counterparts have been signed
by each of the parties and delivered to the other party.
31. NO RECORDATION. Neither this Agreement nor any notice or
memorandum thereof shall be recorded in the public records of any jurisdiction.
32. TAX DEFERRED EXCHANGE. Seller and Purchaser agree to reasonably
cooperate with each other in effecting for the benefit of either party a delayed
like-kind exchange of real property pursuant to Section 1031 of the United
States Internal Revenue Code and similar provisions of applicable state law;
provided that (i) neither party shall be obligated to delay the closing
hereunder and (ii) neither party shall be obligated to execute any note,
contract, deed or other document not otherwise expressly provided for in this
Agreement providing for any personal liability, nor shall either party be
obligated to take title to any property other than the Property as otherwise
contemplated in this Agreement or incur additional expense for the benefit of
the other party. Each party shall indemnify and hold the other harmless against
any liability which arises or is claimed to have arisen on account of any
exchange proceeding which is initiated on behalf of the indemnifying party.
Additionally, the party effectuating any such like-kind exchange shall reimburse
the other party for such other party's actual, out-of-pocket costs and expenses
with respect to such like-kind exchange.
33. CONFIDENTIALITY. Purchaser acknowledges that all Confidential
Information is the confidential, proprietary, and commercial or financial trade
secret information of Seller, and Purchaser agrees to hold all Confidential
Information in strict confidence. Until Closing, all Confidential Information is
and shall remain the sole property of Seller and may be used only for the
purposes set forth in this Agreement. Purchaser agrees that, during the term of
this Agreement not to exceed the Closing Date, Purchaser will not directly or
indirectly disclose, duplicate, reproduce, distribute, disseminate, transmit,
discuss, or otherwise communicate, either verbally or in writing to any person
or entity other than its responsible shareholders, directors, officers,
employees, attorneys, accountants, consultants, agents, and other authorized
representatives (collectively "Authorized Persons") any Confidential Information
or documents or information derived from Confidential Information, nor use or
allow the use of any Confidential Information for any purpose other than
evaluating a possible purchase of the Property from Seller, except if required
by court order or by
21
Blytheville, AR
applicable law. Prior to any such disclosure Purchaser shall inform the
Authorized Persons by instruction, agreement, or otherwise that the Confidential
Information is the confidential, proprietary, and trade secret information of
Seller and may not be further disseminated to other persons or entities without
prior written consent, which must be requested from, and may be given or
withheld at the sole discretion of, Seller.
The term "Confidential Information" means any and all documents or
information received directly or indirectly at any time by Purchaser, verbally
or in writing, from Seller relating to Seller or the Property (the terms
"Purchaser" and "Seller" as used by this Paragraph 33 shall include their
respective subsidiaries, affiliates, shareholders, directors, officers,
employees, attorneys, accountants, consultants, agents, or other representatives
and their successors and assigns), but does not mean matters which are
previously known to the public.
Notwithstanding the foregoing, to the extent any Leases or agreements
with Tenants impose on Sellers any confidentiality obligations which are more
restrictive than the confidentiality provision contained herein, Seller shall be
bound by the terms and conditions of such confidentiality provisions and shall
not be obligated hereunder to violate or breach such obligations.
34. JOINT AND SEVERAL LIABILITY. The Sellers will each jointly and
severally liable for Seller's obligations under this Agreement, but only to the
extent Seller is liable therefore.
The parties have each caused this Real Estate Purchase Contract to be
executed on their behalf as of the date set forth beneath their respective
signatures below.
[SIGNATURES ON NEXT PAGE]
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Blytheville, AR
Signed, sealed and delivered in the "SELLER":
presence of the following witnesses: WESTMINSTER PLAZA LIMITED
LIABILITY COMPANY
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------ ----------------------------------
Signature of Witness Printed Name: Xxxxxx X. Xxxxxx
------------------------
Title: Manager
Xxxxx X. Xxxxxx -------------------------------
------------------------------------
Printed Name of Witness Date: 05/14/04
-------------------------------
C.C. INVESTMENTS, INC.
/s/ Xxxxxx Xxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------------ ----------------------------------
Signature of Witness Printed Name: Xxxxxx X. Xxxxxx
------------------------
Title: Vice President
Xxxxxx Xxxx Xxxxxx -------------------------------
------------------------------------
Printed Name of Witness Date: 05/14/04
-------------------------------
SUPERIOR INVESTMENTS X, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Printed Name: Xxxxxx X. Xxxxxx
------------------------
Title: Vice President
-------------------------------
Date: 05/14/04
-------------------------------
XXXXXXXXX-MELBOURNE, LLC
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Printed Name: Xxxxxx X. Xxxxxx
------------------------
Title: Manager
-------------------------------
Date: 05/14/04
-------------------------------
23
Blytheville, AR
Signed, sealed and delivered in the "PURCHASER":
presence of the following witnesses:
INLAND REAL ESTATE ACQUISITIONS,
INC., an Illinois corporation
/s/ Xxxxxxx Xxxxxxx
------------------------------------
Signature of Witness
By: /s/ G. Xxxxxx Xxxxxxx
------------------------------------
Xxxxxxx Xxxxxxx Printed Name: G. Xxxxxx Xxxxxxx
------------------------------------ --------------------------
Printed Name of Witness Title: President
---------------------------------
Date: May 14, 2004
---------------------------------
/s/ Xxxxxxx Xxxxx
------------------------------------
Signature of Witness
Xxxxxxx Xxxxx
------------------------------------
Printed Name of Witness
24
Blytheville, AR
EXHIBIT "A"
PROPERTY ADDRESS (LEGAL DESCRIPTION TO BE ATTACHED)
--------------------------------
--------------------------------
Legal Description is Attached.
25
Blytheville, AR
EXHIBIT "B"
This instrument was prepared
by and should be returned to:
Xxxx Xxxxxxx, Esquire
The Inland Real Estate Group, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
SPECIAL WARRANTY DEED
THIS SPECIAL WARRANTY DEED, made and executed as of the _____ day of
_____________, 20__, by _____________________________, a _____________________,
whose address is ________________________________ (hereinafter referred to as
the "Grantor") to ________________, a ________________, whose address is
______________________________ (hereinafter referred to as the "Grantee");
WITNESSETH:
That the Grantor, for and in consideration of the sum of TEN DOLLARS
($10.00) and other valuable considerations, the receipt and sufficiency of which
are hereby acknowledged by these presents does grant, bargain, sell, alien,
remise, release, convey, and confirm unto the Grantee that certain piece, parcel
or tract of land situated in _______ County, ______________ particularly
described as follows, to wit:
INSERT LEGAL DESCRIPTION
(hereinafter referred to as the "Subject Property");
TOGETHER WITH all the tenements, hereditaments, easements and
appurtenances, including riparian rights, if any, thereto belonging or in
anywise appertaining;
TO HAVE AND TO HOLD the Subject Property in fee simple forever.
AND the Grantor does hereby covenant with and warrant to the Grantee
that the Grantor is lawfully seized of the Subject Property in fee simple; that
the Grantor has good right and lawful
26
Blytheville, AR
authority to sell and convey the Subject Property; and that the Grantor will
warrant and defend title to the Subject Property against claims or encumbrances
done or suffered by Grantor or any person claiming by, through or under Grantor.
THE conveyance made herein, however, is expressly made SUBJECT TO ad
valorem real property taxes and assessments for the year 20__ and thereafter,
and easements and restrictions of record, if any, the reference to which shall
not operate to reimpose the same and the Permitted Exceptions listed on
Exhibit B.
IN WITNESS WHEREOF, the Grantor has caused these presents to be executed
in manner and form sufficient to bind it as of the day and year first above
written.
Signed, sealed and delivered in the
presence of the following witnesses:
By:
------------------------------------- ------------------------------
Signature of Witness Printed Name:
---------------------
Title:
-----------------------
Address:
------------------------------------- -------------------------
Printed Name of Witness
-------------------------
-------------------------------------
Signature of Witness
-------------------------------------
Printed Name of Witness
27
Blytheville, AR
STATE OF _____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me this __ day of
_____________, 20__ by ________________, as ______________________, a
_________________, on behalf of the ____________. He (She) is personally known
to me or has produced __________________ as identification.
--------------------------------
(NOTARY SEAL) Signature of Notary Public
Typed or Printed Notary Name
Notary Public-State of
-----------------
Commission No.:
------------------------
28
Blytheville, AR
EXHIBIT "C"
QUIT-CLAIM XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS:
THAT, * __________________________, whose address is
_____________________________________ (hereinafter referred to as "Seller"), for
and in consideration of the sum of *________________ AND ____/100 DOLLARS
($*_________) paid by *_______________________, a *______________________, whose
address is *_____________________________ (hereinafter referred to as
"Purchaser"), the sufficiency and receipt of which is hereby acknowledged, has
granted, bargained, sold, transferred and delivered, and by these presents does
grant, bargain, sell, transfer and deliver unto the Purchaser, its successors
and assigns, all of its right, title and interest in and to such items, goods,
chattels and equipment which are presently existing and located at the property
described in Exhibit "A" attached hereto and by this reference incorporated
herein subject, however, to any and all claims, liens or encumbrances which have
been or may be made against said personal property, items, goods, chattels and
equipment, AND WITHOUT WARRANTY OF TITLE, FITNESS OR MERCHANTABILITY.
TO HAVE AND TO HOLD the same unto the Purchaser, its successors and
assigns forever.
IN WITNESS WHEREOF, the Seller has caused these presents to be executed
as of this ____ day of ____________, 2004.
Signed, sealed and delivered
in the presence of: , a
------------------------------------
----------------------------------------
By:
-------------------------------------
Name: Name:
--------------------------- -----------------------------------
Its:
------------------------------------
Name: (CORPORATE SEAL)
---------------------------
1
Blytheville, AR
EXHIBIT "D"
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") is made and
entered into as of the *___ day of *___________, 2004, by and between
*____________________, a *_____________________, having a mailing address at
*________________________________ ("Assignee"), and
*________________________________, a ___________________, having a mailing
address at _______________________________ ("Assignor").
WITNESSETH:
WHEREAS, Assignor has this day conveyed to Assignee certain real
properly situate in *_________ County, State of *_________, more particularly
described on EXHIBIT A attached hereto and made a part hereof, together with all
improvements thereon (the "Real Property") pursuant to that certain Real Estate
Purchase Contract "Contract"); and
WHEREAS, the Real Property is subject to a certain Lease Agreement dated
*______________, between Assignor, as Landlord and *______________, as Tenant
(the "Lease"); and
WHEREAS, in conjunction with the conveyance of the Real Property,
Assignor has agreed to assign all of its right, title and interest in and to the
Lease to Assignee, and Assignee has agreed to assume and perform certain of
Assignor's liabilities and obligations arising under the Lease on and after the
date hereof, all in accordance with this Assignment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
a. ASSIGNMENT. Assignor does, to the extent permitted by law,
hereby transfer, assign and set over to Assignee to the extent
assignable all of Assignor's right, title and interest in and to the
Lease. Assignor does hereby agree to indemnify, hold harmless and defend
Assignee and its successors and assigns harmless from and against all
claims, damages, losses, liabilities, costs and expenses (including but
not limited to reasonable attorneys' fees and expenses) arising under or
in connection with the Lease prior to the date hereof. Assignee does
hereby agree to indemnify, hold harmless and defend Assignor and its
successors and assigns harmless from and against all claims, damages,
losses, liabilities, costs and expenses (including but not limited to
reasonable attorneys' fees and expenses) arising under or in connection
with the Lease after the date hereof without warranty, express or
implied, except as set forth in the Contract and subject to the
limitation of liability and other terms set forth in the Xxxxxxxx.
0
Xxxxxxxxxxx, XX
b. ASSUMPTION. Subject Assignee hereby assumes all liabilities
and obligations of Assignor under the Lease which arise on or after the
date hereof and agrees to perform all obligations of Assignor under the
Lease which are to be performed or which become due on or after the date
hereof.
c. COUNTERPARTS. This Assignment maybe executed by the parties
in counterparts, in which event the signature pages thereof shall be
combined in order to constitute a single original document.
d. BINDING EFFECT. This Assignment shall be binding upon and
inure to the benefit of Assignor, Assignee and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date set forth above.
[SIGNATURES ON NEXT PAGE]
2
Blytheville, AR
Signed, sealed and delivered
in the presence of: ---------------------------------------,
a
---------------------------------------
Name:
-----------------------------------
Name: Title:
--------------------------- ----------------------------------
Its:
------------------------------------
Name: (CORPORATE SEAL)
---------------------------
---------------------------------------,
a
---------------------------------------
Name:
-----------------------------------
Name: Title:
--------------------------- ----------------------------------
Its:
------------------------------------
Name: (CORPORATE SEAL)
---------------------------
STATE OF ___________
COUNTY OF __________
The foregoing instrument was acknowledged before me this ____ day of
_______, 2004 by ___________, as _________________ of ______________________, a
______________________, on behalf of the ______________________. He/She is
personally known to me or has produced ___________________________ as
identification.
----------------------------------------
(NOTARY SEAL) Signature of Notary Public
----------------------------------------
Typed or Printed Name of Notary
Commission No.:
------------------------
My Commission Expires:
-----------------
3
Blytheville, AR
STATE OF ___________
COUNTY OF __________
The foregoing instrument was acknowledged before me this ____ day of
_______, 2004 by ___________, as _________________ of ______________________, a
______________________ on behalf of the ______________________. He/She is
personally known to me or has produced ___________________________ as
identification.
----------------------------------------
(NOTARY SEAL) Signature of Notary Public
----------------------------------------
Typed or Printed Name of Notary
Commission No.:
------------------------
My Commission Expires:
-----------------
4
Blytheville, AR
EXHIBIT "E"
ASSIGNMENT OF LICENSES, PERMITS, PLANS, CONTRACTS, WARRANTIES
AND INTANGIBLE PROPERTY
THIS ASSIGNMENT OF LICENSES, PERMITS, PLANS, CONTRACTS AND WARRANTIES
(this "Assignment") is made and entered into as of the ____ day of __________,
2004, by *_____________________, a _____________________, having a mailing
address at __________________________________________ ("Assignor"), in favor of
*_____________________, a _________________, having a mailing address at
______________________________________________________ ("Assignee");
WITNESSETH:
WHEREAS, Assignor has this day conveyed to Assignee certain real
property situate in _______________ County, ___________, more particularly
described on SCHEDULE A attached hereto and made a part hereof, together with
all improvements thereon (the "Real Property"); and
WHEREAS, in conjunction with the conveyance of the Real Property,
Assignor has agreed to assign all of its right, title and interest in and to
certain licenses, permits, plans, contracts and warranties relating to the
design, development, construction, ownership, operation, management and use of
the Real Property.
WHEREAS, in conjunction with the conveyance of the Real Property,
Assignor has agreed to assign all of its right, title and interest, if any, in
and to the following (collectively, the "Assigned Property"):
(i) all logos, designs, trade names, trademarks,
service marks, copyrights and other intellectual property used
by Assignor in connection with the ownership and operation of
the Real Property or any part thereof, together with the
goodwill of the business appurtenant thereto;
(ii) the contracts, commitments, equipment leases,
guaranties, payment and performance bonds, warranties and other
agreements (excluding, however, for the purposes of this
Assignment, any tenant leases relating to the Real Property) set
forth on Exhibit B attached hereto and made a part hereof, which
are all of the contracts, commitments, equipment leases,
guaranties, warranties and other agreements (excluding, however,
for the purposes of this Assignment, any tenant leases relating
to the Real Property) relating to the Real Property;
1
Blytheville, AR
(iii) the licenses, certifications, authorizations,
approvals, certificates of occupancy, zoning variances,
building, use and other permits set forth on Exhibit C attached
hereto and made a part hereof, which licenses, certifications,
authorizations, approvals and permits constitute all of the
licenses, certifications, authorizations, approvals and permits
issued or approved by any governmental authority and relating to
the operation, ownership and maintenance of the Real Property or
any part thereof; and
(iv) all architectural drawings, plans,
specifications, soil tests, feasibility studies, appraisals,
engineering reports and similar materials relating to the Real
Property, including, without limitation, all as built plans and
specifications for the improvements on the Real Property,
including any plans and specifications for and a complete
description of all existing renovations to the Real Property and
the rentable space therein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
1. ASSIGNMENT. Assignor does, to the extent permitted, by law,
hereby quit claims, transfers, assigns and sets over to Assignee to the extent
assignable all of Assignor's right, title and interest, if any, in and to all of
the Assigned Property. Assignor does hereby agree to indemnify, hold harmless
and defend Assignee and its successors and assigns harmless from and against all
claims, damages, losses, liabilities, costs and expenses (including but not
limited to reasonable attorneys' fees and expenses) arising under or in
connection with the Assigned Property prior to the date hereof. Assignee does
hereby agree to indemnify, hold harmless and defend Assignor and its successors
and assigns harmless from and against all claims, damages, losses, liabilities,
costs and expenses (including but not limited to reasonable attorneys' fees and
expenses) arising under or in connection with the Assigned Property after the
date hereof.
2. BINDING EFFECT. This Assignment shall be binding upon and inure
to the benefit of Assignor, Assignee and their respective successors and
assigns.
IN WITNESS WHEREOF, Assignor has executed this Assignment as of the date
set forth above.
ATTEST:
---------------------------------------,
a
--------------------------------
By: By:
-------------------------------- -------------------------------------
Name: Name:
----------------------------- ----------------------------------
Its: Its:
------------------------------- ------------------------------------
2
Blytheville, AR
EXHIBIT F
ENVIRONMENTAL DISCLOSURE
The Phase I Environmental Site Assessment dated April 12, 2002 was
completed by PSI.
1
MAY 6, 0000
Xxxxxxxxxxx Xxxxx Limited Liability Company, Superior Investments X, Inc.,
Xxxxxxxxx-Melbourne, LLC, and C.C. Investments, Inc. (as tenants-in-common)
(Seller)
c/o Prime Net Realty Advisors, Inc. (Broker)
Attn: Xxxxx Xxxxxxx, President
0000 Xxxxxx Xxxx Xxxx
Xxx Xxxxx, XX 00000
RE: WAL-MART SUPERCENTER STORE
BLYTHEVILLE, ARKANSAS
Dear Leith:
This letter represents this corporation's offer to purchase the Wal-Mart
Supercenter Store with 183,047 net rentable square feet, situated on
approximately 366,645 sf of land, located at Porters Commons Shopping Center,
0000 Xxxxxxx 00, Xxxxxxxxxxx, XX 00000.
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 property.
This corporation or its nominee will consummate this transaction on the
following basis:
1. The total purchase price shall be $12,935,000.00 all cash, plus
or minus prorations, WITH NO MORTGAGE CONTINGENCIES, to be paid
at CLOSING 46 DAYS following the acceptance of this Letter (see
Paragraph 10).
Purchaser shall allocate the land, building and depreciable
improvements prior to closing.
2. Seller represents and warrants (TO THE BEST OF THE SELLER'S
KNOWLEDGE), that the above referenced property is leased to
Wal-Mart Stores, Inc. on an absolute triple net lease with a
current MONTHLY base rental PAYMENT of $75,269.19 which is an
ANNUAILZED base rental PAYMENT OF $903,320.00 until April 20,
2019 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 THE BEST OF THE 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 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, *based solely on the fact that it has
received no written notice to the contrary and without any duty
of inquiry or investigation of any kind or nature.
4. Seller warrants and represents (TO THE BEST OF THE SELLER'S
KNOWLEDGE), that during the term of the leases the tenants and
guarantors are responsible for and pay all operating expenses
WAL-MART SUPERCENTER STORE - BLYTHEVILLE, ARKANSAS PAGE 2
MAY 3, 2004
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.
Prior to closing, Seller shall not enter into or extend any
agreements without Purchaser's approval and any contract
presently in existence not accepted by Purchaser shall be
terminated by Seller. Any work presently in progress on the
property by Seller shall be completed by Seller prior to
closing.
5. Ten (10) days prior to closing Seller shall furnish Purchaser
with Wal-Mart's standard estoppel letters.
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 the renewal of same.
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 required by the existing
lease.
8. It is understood that Seller has in its possession Level 1
Environmental Reports which Seller will supply to Purchaser
within 5 days of execution of a mutually agreeable contract.
Purchaser shall have said reports, which must be acceptable to
Purchaser, updated and re-certified to Purchaser at closing, all
at Purchaser's cost.
9. The above sale of the real estate shall be consummated by
conveyance of a special/limited warranty deed from Seller to
Purchaser's designee, with the Purchaser paying any city, state,
or county transfer taxes for the closing if any, 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, 46 days
following acceptance of this Letter, at which time title to the
above property shall be subject only to mutually agreed upon
"permitted exceptions", 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 Purchaser, shall be issued, with all warranties,
and representations being true now and at closing and surviving
the closing, and each party shall be paid in cash their
respective credits, including, but not limited to, security
deposits, rent and expenses, with Wall-Mart Company, Inc. paying
all real estate taxes current. At closing, no credit will be
given to Sellers for any past due, unpaid or delinquent rents.
11. It is understood that the Seller has in its possession an
appraisal of the property prepared by an MAI or other qualified
appraiser, and shall deliver a copy of such appraisal to
Purchaser within 10 days of the acceptance of this offer which
Purchaser shall have the right to approve and update at its
expense during the due diligence period.
12. Neither Seller (Landlord) or any tenant and guarantor shall be
in default on any lease or agreement at closing, nor to seller's
actual knowledge is there any threatened or litigation.
13. Seller warrants and represents that he has paid all unemployment
taxes to date.
WAL-MART SUPERCENTER STORE - BLYTHEVILLE, ARKANSAS PAGE 3
MAY 3, 2004
14. Prior to closing, Seller shall furnish to Purchaser copies of
all guarantees and warranties 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 Wal-Mart Company, Inc. occupying their
space, open for business, and paying full rent, including CAM,
tax and insurance current.
16. Buyer shall be responsible for payment of a real estate
brokerage commission, as per their agreement, to Prime Net
Realty Advisors, Inc. Said commission shall be paid through the
closing escrow.
17. Fifteen (15) days prior to closing, Seller must provide the
title commitment as stated above existing 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 which Purchaser and
the title company have the right to approve and update at
Purchaser's cost and expense.
18. Seller 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
reports, including at least a one-year audit of the books and
records of the property.
19. The Contract shall provide for a due diligence period of
twenty-one (21) days, after which the xxxxxxx money shall be
non-refundable (except for the estoppel certificate or Seller's
default). Closing shall be fifteen (15) days thereafter.
However, the Seller shall have a one-time right to a thirty (30)
day extension closing.
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 operating statements on said property.
If this offer is acceptable, please HAVE THE SELLER sign the original of
this letter and initial each page, keeping copies for your files and returning
the original to me by MAY 6, 2004. Notwithstanding the offer and acceptance
hereof, we mutually agree that this Letter does not constitute a contract of
purchase and sale, and that our respective obligations to buy and sell the
Property shall arise only upon mutual execution and delivery of a agreement of
purchase and sale. We mutually agree that upon acceptance of this Letter, both
Purchaser and Seller shall negotiate in good faith, and only with each other,
to execute a Purchase and Sale Agreement within five (5) days after mutual
execution hereof.
Sincerely,
ACCEPTED: INLAND REAL ESTATE ACQUISITIONS, INC.
or nominee
By: /s/ Xxxxxx X. Xxxxxx, Manager
-------------------------------
Date: 5-6-04 /s/ G. Xxxxxx Xxxxxxx
------------------------------- -------------------------------
G. Xxxxxx Xxxxxxx
Vice Chairman
