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EXHIBIT 10(r)
AGREEMENT OF SALE AND PURCHASE
BETWEEN
THOSE ENTITIES LISTED ON EXHIBIT "A"
ATTACHED HERETO AND MADE A PART HEREOF,
AS SELLER,
AND
XXXXX REALTY INVESTORS, INC.,
AS PURCHASER
DATED: _______________________, 1998
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TABLE OF CONTENTS
1. Agreement of Sale and Purchase . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Elimination of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Mortgagee Consents [INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . . . . . . . 4
5. Method of Consummation of Sale . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Condition of Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. Survey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8. Place and Time of Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
9. Right of Entry/Condition Precedent to Purchaser's Obligation to Close . . . . . . . 7
10. Documents to be Delivered at Closing . . . . . . . . . . . . . . . . . . . . . . . . 9
11. Decatur, Illinois . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12. Representations of Seller and Purchaser . . . . . . . . . . . . . . . . . . . . . . 12
13. Taxes, Prorated Items and Closing Costs . . . . . . . . . . . . . . . . . . . . . . 15
14. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
15. Brokerage Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
16. Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
17. Operation of Operating Properties . . . . . . . . . . . . . . . . . . . . . . . . . 19
18. Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
19. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
20. Survival of Representations and Warranties of Seller . . . . . . . . . . . . . . . . 21
21. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
22. No Recording of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
23. Deposit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
24. Method of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
25. Use of Words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
26. Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
27. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
28. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
29. Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
30. No Presumption Regarding Drafting . . . . . . . . . . . . . . . . . . . . . . . . . 25
31. Binding Effect and Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
32. Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
33. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
34. Separation of Individual Properties . . . . . . . . . . . . . . . . . . . . . . . . 25
34. 1031 Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
(i)
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SCHEDULE OF EXHIBITS
EXHIBIT "A": Entities Comprising Seller and Properties
EXHIBIT "B": Leases (defined on Page 2)
EXHIBIT "C": Violations and Condemnations (defined on Page 2)
EXHIBIT "D": Service Contracts (defined on Page 2)
EXHIBIT "E": Purchase Price for Each Property (defined on Page 3)
EXHIBIT "F": Designated Tenants (defined on Page 9)
EXHIBIT "G": Form of Estoppel Letter for Tenants (defined on Page 9)
(ii)
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement"), is made and
entered into as of the _______ day of _____________________, 1998, by and
between those entities listed on Exhibit "A", attached hereto and made a part
hereof, each of which entities has an office address in care of Sandor
Development Company, at 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 (which
entities are hereinafter collectively referred to as "Seller"), and XXXXX
REALTY INVESTORS, INC., a Michigan corporation, having an office at 00000
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000-0000 (the "Purchaser"), based
upon the following underlying recitals:
WITNESSETH:
A. Seller is the owner in fee simple of thirteen (13) improved
properties of B shop retail tenants, none of which include any property
occupied by Wal-Mart (hereinafter referred to collectively as the "Properties"
and individually as a "Property"), together with all buildings and other
improvements as may exist thereon and all easements, rights and privileges, if
any, appurtenant to such Properties (which Properties and the particular owner
thereof are listed on Exhibit "A", attached hereto and made a part hereof).
The Properties shall also include any right, title and
interest of Seller in and to: (i) any land lying in the bed of any street, road
or avenue opened or proposed, in front of or adjoining each of the Properties,
to the center line thereof, and all right, title and interest of Seller in and
to any award made or to be made in lieu thereof and in and to any unpaid award
for damage to any of the Properties by reason of change of grade of any street;
and Seller will execute and deliver to the Purchaser at the Closing, or
thereafter, on demand, all proper instruments for the conveyance of such title
and the assignment and collection of any such award; (ii) trade names
(excluding the name "Sandor Development Company"), permits, licenses and
utility agreements appurtenant to any of the Properties, if any; (iii)
fixtures,
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equipment and other personal property attached to and appurtenant to any of the
Properties and not owned by the Tenants (hereinafter defined), if any; and (iv)
the Leases (hereinafter defined) and security deposits held thereunder.
B. The Properties are subject, among other things, to certain
leases and occupancy agreements (which leases are sometimes hereinafter
referred to collectively as the "Leases" and individually as a "Lease")
currently in effect, which Leases are identified on Exhibit "B", attached
hereto and made a part hereof.
C. To the extent that Seller has received written notice of any
violations of applicable laws affecting any of the Properties (hereinafter
referred to collectively as the "Violations") or written notice of proposed
condemnations or takings under the power of eminent domain (hereinafter
referred to collectively as the "Condemnations"), such Violations and
Condemnations are identified on Exhibit "C", attached hereto and made a part
hereof.
D. The Seller (or its managing agent) is party to certain
existing service and/or maintenance contracts which (i) are not cancelable upon
thirty (30) days notice or less; and (ii) are for an annual amount in excess of
Two Thousand Five Hundred Dollars ($2,500.00) (hereinafter referred to
collectively as the "Service Contracts") affecting certain of the Properties,
which Service Contracts are generally identified on Exhibit "D", attached
hereto and made a part hereof.
E. Seller has agreed to sell to Purchaser, and Purchaser has
agreed to purchase from Seller all the Properties upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto hereby agree as follows:
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1. AGREEMENT OF SALE AND PURCHASE.
Subject to the terms and conditions hereof, and in reliance
upon the representations and warranties of the parties hereto contained herein,
Seller will sell to Purchaser, and Purchaser will purchase from Seller,
Seller's entire interest in the Properties.
2. PURCHASE PRICE.
The total purchase price (the "Purchase Price") for the
Properties is Thirty Three Million Seven Hundred Thousand and 00/100ths Dollars
($33,700,000.00), which is allocated among the Properties in the manner set
forth on Exhibit "E", attached hereto and made part hereof.
3. ELIMINATION OF PROPERTIES.
If, for any reason, Seller is unable, with respect to any
Property, to: (a) obtain any required Designated Tenant Estoppel Letter, (as
hereinafter defined); (b) correct any material warranty or representation or
correct, to Purchaser's reasonable satisfaction, the condition of any Property
where hazardous materials exists; or (c) correct any defect in the condition of
title or the survey with respect to any Property, as hereinafter provided in
Paragraphs 6 and 7 hereof, respectively, so affected, upon written notice from
Purchaser to Seller, said property so affected shall be eliminated from this
Agreement without any further liability or obligation with respect thereto,
subject to Paragraph 34 below. However, in the event that any one of the
Properties located at (i) Decatur, Illinois; (ii) Decatur, Indiana; (iii)
Jacksonville, Illinois; (iv) Mansfield, Ohio; or (v) Owosso, Michigan are
eliminated from this Agreement by Purchaser as aforesaid, Purchaser shall have
the right to: (i) cancel and terminate this Agreement upon written notice to
Seller, in which event neither party hereto shall have any further liability or
obligation hereunder; or (ii) waive the necessity of any such material with
respect to any or all of such Properties and elect to proceed to close this
transaction and purchase any or all of such Properties so affected, at
Purchaser's sole option.
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In the event Purchaser cancels and terminates this Agreement pursuant to the
foregoing, Purchaser shall be entitled to the immediate return of its Deposit
hereunder, and neither Seller nor Purchaser shall have any further rights
against the other hereunder.
4. MORTGAGEE CONSENTS.
[INTENTIONALLY OMITTED.]
5. METHOD OF CONSUMMATION OF SALE.
At the closing of this transaction, Purchaser shall pay to
Seller the Purchase Price set forth on the attached Exhibit "E" for the
respective Properties being sold to Purchaser, as adjusted by any closing
adjustments provided for herein, and each party comprising Seller shall convey,
by Warranty Deed, to Purchaser the respective Properties, free and clear of all
claims, monetary liens, and/or charges, subject to such matters as are set
forth herein.
6. CONDITION OF TITLE.
As evidence of title to each Property, Seller shall obtain, at
Seller's expense, within thirty (30) days after the date hereof, a complete
commitment for a policy of title insurance (including copies of all documents
referred to thereon) (hereinafter referred to collectively as the "Title
Insurance Commitments" and individually as a "Title Insurance Commitment")
issued by Chicago Title Insurance Company (hereinafter referred to as the
"Title Company") covering each Property in an amount not less than the Purchase
Price allocable to such Property, as set forth on Exhibit "E". The Title
Insurance Commitments shall guarantee title in the condition required herein.
Purchaser shall obtain the issuance of the final Policy of Title Insurance
pursuant to the Title Insurance Commitments (with the so-called "Standard
Exceptions" deleted therefrom) at the closing and, if this transaction closes,
Seller shall be responsible for all charges relating to the Title Insurance
Commitments and the final Policies of Title Insurance issued pursuant thereto,
excepting only that Purchaser shall be responsible
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for the premium charged by the Title Company for any endorsements requested by
Purchaser.
If objection to the title to any Property is made by Purchaser
for the reason that the title is not in the condition required hereunder,
Seller shall have thirty (30) days from the date of written notification from
Purchaser of the particular defects claimed within which to cure such defects.
If Seller is unable to cure such defects within such period, Purchaser shall
have the option to: (a) waive the defects and proceed with the acquisition of
the affected Property in accordance with the terms hereof; or (b) cancel and
terminate this Agreement by written notice thereof as it applies to such
affected Property pursuant to the provisions of Paragraph 3 hereof, subject
to Paragraph 34 below. In the event of a cancellation and termination by
Purchaser pursuant to the foregoing, neither party shall have any further
liability or obligation hereunder as it relates to such affected Property.
In the event, however, that any of such defects are represented by liens or
encumbrances of an ascertainable amount, and Seller and Purchaser elect to
proceed to closing with regard to said Property. Purchaser shall deduct the
amount of such defect in title from the purchase price allocable to the
affected Property. In the event Seller cures such defect within the above
time period, Purchaser agrees to complete the transaction contemplated
hereunder, subject, however, to any and all other conditions herein contained.
7. SURVEY.
The exact legal description of each Property, including the
location of all buildings and other improvements, easements, rights-of-way,
flood plain areas, wetlands, restrictions, utility lines and other
encroachments, and other encumbrances on or against the Property, shall be
determined by a survey (the "Survey") prepared at the direction and expense of
Purchaser by a registered land surveyor or civil engineer, which Survey shall
be certified to Purchaser, Seller and the Title Company, and obtained by
Purchaser as soon as possible after the date hereof, but in any event prior to
the closing, as hereinafter defined. It is understood
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that Seller shall furnish to Purchaser, promptly after completion of execution
hereof, copies of any existing Surveys previously obtained by Seller.
The Survey shall also certify the total number of acres
contained in each Property. In the event a Survey for any such Property shall
disclose a material condition unacceptable to Purchaser, Purchaser shall have
the right to exclude the affected Property pursuant to the provisions of
Paragraph 3 hereof on written notice to Seller, subject to Paragraph 34 below.
Notwithstanding anything to the contrary contained herein, in
the event Purchaser has not received a survey for each Property prior to the
last day of the Inspection Period (as hereinafter defined) and the applicable
survey thereafter received discloses a condition which adversely affects
Seller's ability to convey title in the condition called for in this Agreement,
then Seller shall be obligated to correct such objection prior to Closing. In
the event Seller is unable to cure such defect within the thirty (30) day
period after Purchaser notifies Seller in writing of the particular defect
claimed, then Purchaser shall have the option to: (a) waive said defect and
proceed with the acquisition of the affected Property in accordance with the
terms hereof; or (b) cancel and terminate this Agreement by written notice
thereof as it applies to such affected Property pursuant to the provisions of
Paragraph 3 hereof, subject to the provisions of Paragraph 34 below.
8. PLACE AND TIME OF CLOSING.
The closing of the transactions contemplated by this Agreement
shall take place at the offices of Chicago Title Insurance Company, 000 Xxxx
Xxxx Xx., Xxxxx 000, Xxxxxxxxxxxx, XX 00000.
The closing shall take place at a time and on a date
designated by Purchaser, but in any event, not earlier than ten (10) days after
the date on which Seller has advised Purchaser, in writing, that all of the
mortgagee's consents referred to in Paragraph 4 above
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have been obtained. In the event the closing has not taken place by May 29,
1998, then this Agreement shall terminate, and, if the failure results from
Seller failing to comply with its pre-closing obligations contained herein,
Purchaser shall be entitled to the immediate return of its Deposit. In such
event, neither party shall be further obligated hereunder.
If Seller has complied with all of its pre-closing obligations
and the closing has not taken place because of failure by Purchaser to complete
its obligations hereunder, the Title Company shall disburse the Deposit (as
hereinafter defined) to Seller as liquidated damages in full termination of any
further obligation of Purchaser hereunder.
The closing shall take place in escrow with the Title Company
as the escrow agent. Seller shall deposit all of its closing documents, as set
forth in Paragraph 10 hereof, in escrow with the Title Company. At such time
as the Title Company is prepared to insure Purchaser's interest in each of the
Properties to be transferred at the conclusion of such closing in the condition
required herein, Purchaser will immediately deposit with the Title Company, as
escrow agent, all funds necessary to consummate its acquisition of the
Properties and execute and deliver all of its closing documents as set forth in
Paragraph 10 hereof.
9. RIGHT OF ENTRY/CONDITION PRECEDENT TO PURCHASER'S OBLIGATION
TO CLOSE.
Subject to the inspection provisions set forth in the Leases,
Purchaser and its agents and/or representatives shall have the right to enter
upon the Properties and the buildings located thereon at all reasonable times
for the purposes of inspecting the same, examining all books and records of the
business conducted thereon and making such soil tests, surveys, environmental
studies or tests, feasibility studies, architectural and engineering studies,
and such other tests and investigations as Purchaser may desire for the period
beginning on the date hereof and continuing until May 8, 1998 (the "Inspection
Period"). In connection with such activities, Purchaser shall exercise due
care to see that existing
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occupants are not inconvenienced. All such tests shall be at Purchaser's sole
expense, and Purchaser shall restore the Property to substantially the same
condition as existed before such tests occurred, including, without limitation,
the repair of any damage caused as a result of the performance of any such
tests. Seller hereby agrees to cooperate with Purchaser in connection with the
foregoing, and to make available to Purchaser any surveys, plans, contracts,
agreements, permits, certificates, licenses, and other documents, information
and data in Seller's possession relative to the Properties and the operation
thereof. In addition, within ten (10) days after the date hereof, Seller shall
deliver to Purchaser true, correct, and complete copies of the Contracts and
all documents with the holders of the Mortgages referred to in Paragraph 4
above. On or before the last day of the Inspection Period, Purchaser shall
notify Seller in writing of its election to proceed with the consummation of
this transaction. In the event Purchaser elects to proceed and so advises
Seller, the parties shall proceed to closing. If the Purchaser elects not to
proceed or fails to make any election prior to the last day of the Inspection
Period, then this Agreement shall thereupon terminate and, except for
Purchaser's liability under this Paragraph 9A, the parties shall be released
from any further liability hereunder, except that the Deposit shall be returned
to the Purchaser by the Title Company.
Notwithstanding anything contained herein to the contrary (a) prior to
entering upon any Property and at all times prior to the expiration of this
Agreement, Purchaser shall maintain with respect to each such entry public
liability insurance in an amount not less than $1,000,000.00 with Seller named
as an additional insured, (b) Purchaser agrees to indemnify, defend and hold
Seller harmless for all liability, claims, damages, and/or expenses (including,
without limitation, reasonable attorneys' fees) incurred by Seller as a result
of Purchaser's exercise of the inspection rights granted under this Paragraph,
and (c) Purchaser shall receive Seller's prior approval before conducting any
such physical tests or studies upon the Property,
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which approval shall not be withheld so long as the proposed tests and/or
studies will be conducted so as not to interfere with Seller's use of the
Properties or the rights of any tenants. Purchaser's obligation under this
Paragraph shall survive the expiration or termination of this Agreement or the
closing or sale of the Property to Purchaser.
10. DOCUMENTS TO BE DELIVERED AT CLOSING.
At the closing, the following documents will be executed and
delivered:
(a) A Warranty Deed, from Seller to Buyer, covering each
Property, in recordable form;
(b) A Xxxx of Sale, from Seller to Purchaser transferring
all right, title and interest in and to any of the personal property
owned by Seller and located at each Property;
(c) An assignment and assumption of all Leases in form
and substance acceptable to both parties;
(d) With respect to: (i) fifty percent (50%) of the
square footage of the tenants (the "Tenants") at the Properties; and
(ii) those tenants (the "Designated Tenants") under Leases at the
Properties set forth on Exhibit "F", attached hereto and made a part
hereof, Seller shall deliver to Purchaser an estoppel letter (the
"Estoppel Letter") substantially in the form of Exhibit "G", attached
hereto and made a part hereof, completed and executed by each Tenant
in a manner appropriate for such Tenant;
(e) The mortgage letters referred to in Paragraph 4
above;
(f) An Assignment and Assumption of Contracts in a form
acceptable to both parties;
(g) Originals or certified copies of all (i) the Leases,
(ii) Contracts, (iii) documents relating to the Mortgages referred to
in Paragraph 4 above, (iv) all lease
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files, keys, transferable warranties and guaranties, building plans,
blue prints, surveys, drawings, and other information or material
relating to the Properties in Seller's possession and (v) books and
records regarding the income, expenses, assets, and liabilities of the
Properties for the years 1996 and 1997;
(h) A Closing Statement for the sale of each Property;
(i) Letters signed by Seller addressed to all parties to
the Leases advising such parties of the sale of the Properties and
directing such parties to make all future payment thereunder to
Purchaser;
(j) An updated Rent Roll of the Properties, certified by
Seller to be true, correct and complete in all material respects as of
the day prior to Closing;
(k) The title insurance policy described in paragraph 6
above; and
(l) A non-foreign affidavit pursuant to Section 1445 of
the Internal Revenue Code of 1986, as amended (the "Code").
Each party agrees to execute and deliver all additional
documents which may be reasonably requested by the other party in order to
effectuate the purposes of this Agreement and the consummation of the
transactions contemplated hereby (i.e., such documents as may be reasonably
required by the Title Company to clear defects in title or to amend
certificates of partnership or LLC of any party comprising Seller); provided,
however, that the foregoing shall not be construed or deemed to expand the
obligations of any party hereunder or remove any limitations on the obligations
of any party hereunder.
In addition to the foregoing, prior to Closing, Seller shall
use its best efforts to obtain an estoppel letter from each party to any
reciprocal easement or similar type agreement affecting any Property stating
that there is no default thereunder and no money owed by Seller to any other
party to any such agreement.
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11. DECATUR, ILLINOIS.
Notwithstanding anything to the contrary contained in this
Agreement, the parties acknowledge and agree that Seller is currently in the
process of redeveloping the Property located in Decatur, Illinois. In order to
accommodate the expansion of the adjacent WalMart store, Purchaser is
demolishing existing buildings containing approximately 24,935 square feet of
existing space and is constructing approximately 29,000 square feet of new
building area. Accordingly, the parties have agreed that the closing with
respect to such Property shall occur on November 30, 1998, unless Purchaser
elects to accelerate such closing by notice in writing to Seller.
Prior to the consummation of the sale of such Property, Seller
shall furnish to Purchaser: (i) a certificate of substantial completion with
respect to such buildings from Seller's architect; (ii) sworn statements and
waivers of lien showing that all construction of the new buildings has been
fully paid for; (iii) certificates of occupancy from the City of Decatur,
Illinois acknowledging that the buildings are approved for occupancy by
tenants; and (iv) estoppel certificates from tenants in possession of space in
such buildings consistent with the parameters set forth in Paragraph 10(d)
above. The purchase price allocated to such Property on Exhibit "E" shall be
increased by an amount which is the quotient, the numerator of which is the
increase in the net operating income for the expansion space over the current
net operating income for the current space and the denominator of which is ten
percent (10%). In determining net operating income for the purpose of the
foregoing computation, the existing net operating income shall be deemed to be
$423,185.00 and the net operating income for the new buildings shall be deemed
to be fixed minimum rents, less unrecoverable expenses (which shall include a
three percent (3%) management fee and a twelve cent (12 cents) per square foot
structural reserve). In any event, if the center is not 100% leased at closing
of the Decatur, IL property, Seller shall enter into a Master Lease of the
vacant space
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guaranteeing the rental allocable to that space at a rental rate of $13.00 per
square foot, triple net for a period of one (1) year subsequent to said
closing.
In connection with such reconstruction, it is understood and
agreed that Seller may attempt to negotiate a buyout of the existing lease with
Xx-Xxx Fabrics so that the new space may be re-leased at market rates. In the
event Seller is successful in negotiating such buyout, Purchaser agrees to
credit to Seller at closing of this Property one-half (1/2) of the amount of
such buyout, which credit shall not exceed the sum of Thirty-Seven Thousand
Five Hundred and 00/100ths Dollars ($37,500.00). In the event of such buyout,
for purposes of the foregoing Master Lease, the new Xx-Xxx Fabrics space shall
be deemed occupied with an assumed fully net rental of $6.74 per square foot.
12. REPRESENTATIONS OF SELLER AND PURCHASER.
(a) Each party comprising Seller severally represents,
warrants and covenants to Purchaser as to the respective property it owns as
follows:
(i) Provided the consents and approvals referred
to in Paragraph 4 of this Agreement are duly
obtained, neither the execution and delivery
of this Agreement by each such Seller, nor
the consummation of the transaction
contemplated hereby, nor the compliance by
each such Seller with any of the provisions
hereof will: (A) violate, conflict with or
result in a breach of any provisions of any
note, bond, mortgage, indenture, deed of
trust, lease, license, agreement or other
instrument or obligation to which any such
Seller is a party; or (B) violate any order,
writ, injunction, decree, statute, rule or
regulation applicable to Seller;
(ii) Except as set forth in this Agreement, no
consent or approval by, notice to, or
registration with, any person, entity,
regulatory body, administrative agency or
other governmental authority is required on
the part of any party comprising the Seller
in connection with the execution and delivery
of this Agreement by any such Seller or the
consummation by any such Seller of the
transactions contemplated hereby;
(iii) This Agreement is and all other documents
reflecting the transactions contemplated
herein to which any such Seller
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is a party (when executed) shall be legal,
valid and binding obligations of such Seller,
enforceable by Purchaser against such Seller
in accordance with their respective terms,
except as the same may be limited by
applicable bankruptcy, insolvency or similar
laws affecting the enforceability of
creditors' rights generally; and
(iv) No representation or warranty made by any
such Seller in this Agreement or in any
written statement or certificate furnished by
any such Seller to Purchaser in connection
with the transactions contemplated by this
Agreement contains or will contain any untrue
statement of a material fact or omits or will
omit to state a material fact necessary to
make the statements contained herein or
therein not false or misleading.
(b) Each party comprising Seller also represents to
Purchaser as follows:
(i) All of the material submitted to Purchaser
with respect to the Properties and all of the
books and records of each party comprising
Seller to which Purchaser has been given
access are materially true and correct;
(ii) To the extent known to Seller and not known
to Purchaser, no party comprising Seller is a
party to service and/or maintenance contracts
other than the Service Contracts, all of
which other contracts: (i) are cancelable
upon not more than thirty (30) days notice or
are for an amount less than Two Thousand Five
Hundred Dollars ($2,500.00) annually; and
(ii) were entered into in accordance with the
past business practice and standards of each
such party composing Seller;
(iii) As of the date of this Agreement, all
payments due under all Mortgages covering the
Properties (the "Properties") have been made
by each party comprising Seller, and each
party comprising Seller will continue to make
all payments due under the Mortgages prior to
the date of closing;
(iv) As of the date of this Agreement, to the
knowledge of each such party comprising
Seller, there is no material default by any
party comprising Seller under any of the
Mortgages;
(v) To the knowledge of Seller, there are no
leasing commissions due or owing in
connection with any of the existing Leases;
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(vi) There are no liens or encumbrances on any
interest of any party comprising Seller in
any of the Leases, except for the Mortgages
and the rights of the holders thereof;
(vii) To the knowledge of Seller, no party
comprising Seller has received from any of
the tenants under the Leases any notice of
default under the Leases;
(viii) No party comprising Seller has entered into
any agreement, oral or written, or is subject
to any judgment, order, writ, injunction,
decree, statute, rule, or regulation which
would limit or restrict its right to enter
into this Agreement and fulfill its
obligations hereunder;
(ix) From and after the date hereof, no party
comprising Seller will sell, convey, burden,
or further encumber any Property in any
manner whatsoever (whether by mortgage,
monetary lien, easement [except as disclosed
on Exhibit "C"], restriction, or otherwise)
other than in the ordinary course of business
including, but not limited to new Leases, and
Pylon Sign Agreements;
(x) This Agreement and all instruments executed
or to be executed in connection herewith are,
or when executed will be, legal, valid, and
binding instruments enforceable against each
party comprising Seller in accordance with
their respective terms and conditions;
(xi) Except as disclosed on Exhibit "C", to the
knowledge of Seller, there are no threatened
or pending material special assessment,
material condemnation, zoning, or any other
proceedings or litigation with respect to any
Property, and no party comprising Seller has
been advised, in writing, that any
governmental authority has determined or
threatened to determine that there are any
material violations or any statutes,
ordinances, or regulations relating to any
Property, and to the best of the knowledge of
any party comprising Seller, there are no
said violations;
(xii) To the knowledge of Seller, there are no
pollutants, contaminants, toxic wastes,
hazardous substances, or other such
environmental hazards at, on, or under any
Property or any parcel of land adjacent to
any Property, and no threatened or pending
proceedings involving any of the foregoing;
(xiii) To the best of the actual knowledge of each
party comprising Seller, no party comprising
Seller maintains or contributes to, nor has
it ever maintained, contributed to
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or been required to contribute to, any (i)
"employee pension benefit plan" as defined in
Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended
("ERISA"), (ii) "employee welfare benefit
plan" as defined in Section 3(1) of ERISA, or
(iii) "Multiemployer plan" (as defined in
Section 3(37)(A) or (D) of ERISA);
(xiv) To the best of Seller's knowledge, each party
comprising Seller (A) has duly prepared and
filed all tax reports and returns required to
be filed by it including, without limitation,
all Federal, state and local tax reports and
returns, and (B) has paid all assessments
shown to be due from each such party on such
reports and returns;
(xv) To the best of Seller's knowledge, there are
no tax liens upon any properties or assets of
any party comprising Seller; all information
contained in all income tax returns of each
party comprising Seller for all years, to and
including, the fiscal year ended December 31,
1997 is true and correct in all material
respects; and
(xvi) Each party comprising Seller does not
currently have, and since its organization,
has never had, any employees.
Notwithstanding any other provision hereof to the
contrary, no party comprising Seller shall be considered to be in breach of any
representation or warranty of a party comprising Seller if: (i) the matter
giving rise to such breach is known by Purchaser on the date hereof; or (ii) if
such matter is not known to Purchaser on the date hereof, it becomes known to
Purchaser prior to the closing and Purchaser does not exercise its right to
terminate this Agreement with respect to such affected Property or Properties.
(c) Purchaser hereby represents to Seller that this
Agreement and all instruments executed or to be executed in connection herewith
are, or will be legal, valid and binding instruments enforceable against
Purchaser in accordance with their respective terms and conditions.
13. TAXES, PRORATED ITEMS AND CLOSING COSTS.
(a) For purposes of the prorations and adjustments
described in this Xxxxxxxxx 00, Xxxxxxxxx shall be deemed to own the Properties
on the closing date and,
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accordingly, be charged with all expenses and receive all income accruing on or
with respect to the closing date.
(b) All taxes and assessments, including all unpaid
assessments and all assessments payable in installments to the extent such
installments are due on or before the closing date, which have become a lien
upon the Properties as of the date of closing or which have been confirmed by
any public authority at the date of closing and which are due and payable on or
before the closing date, shall be paid in full by Seller. Current taxes, to
the extent not reimbursed to Seller by Tenants, shall be prorated and adjusted
as of the closing date in accordance with the due date basis of the
municipality or taxing unit in which the Property is located.
(c) All fees charged by the Title Company in connection
with the holding of the Deposit in escrow, if any, shall be shared equally by
Seller and Purchaser.
(d) The state, county and city transfer taxes, if any,
that will be payable upon the transfer of title from Seller to Purchaser shall
be Seller's obligation and any revenue stamps shall be split evenly between
Purchaser and Seller.
(e) Purchaser and Seller shall be responsible for their
own attorney's fees incurred in connection with the preparation and negotiation
of this Agreement and the transaction contemplated hereby.
(f) All rent, fees, charges and other income due under
the Leases, and any and all other income, profits, or revenue accruing to
Seller or the Properties with respect to the Properties for the month, or other
applicable period, of the closing date, (the "Income"), and received by Seller
on or before the closing date, shall be prorated as of the closing date.
Accordingly, at closing Purchaser shall receive a credit equal to the amount of
all Income received by Seller with respect to the period on and after the
closing date. Any Income due and owing or accruing prior to the closing date
but not received by Seller as of the closing
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date shall not be prorated or adjusted, but rather such Income shall
periodically be prorated and adjusted as of the closing date by Purchaser if
and when Purchaser receives such Income. Purchaser agrees to use its good
faith efforts to collect all such Income. After closing, Seller shall not have
the right to pursue, collect or seek any Income from any of Seller's tenants.
If, however, Seller receives any such Income, Seller and Purchaser shall
promptly pro rate same (without reference to the costs of collection) in
accordance with this Agreement. In addition to the foregoing, if any Tenant at
the Properties is paying percentage rent at the time of closing or at any time
within one year thereafter, and if a portion of the sales on which such
percentage rent is based were generated prior to the closing date, then for
each such Tenant, the percentage rent paid by such Tenant shall be prorated and
adjusted when such percentage rent is received by Purchaser with Purchaser
being entitled to an amount equal to such percentage rent multiplied by a
fraction, the numerator of which is the number of days the Purchaser owned the
Property during the period in which such percentage rent is measured and the
denominator of which is 365. Notwithstanding anything to the contrary
hereinabove contained, it is understood and agreed by the parties that Seller
shall receive a credit at Closing for its prorated portion of all amounts owing
from Tenants that are not more than thirty (30) days past due. At the time
that said amounts are subsequently collected, the same shall be retained by
Purchaser.
(g) All costs and expenses of Seller or the Properties
with respect to each Property, to the extent not reimbursed by Tenants (the
"Expenses"), shall be prorated as of the closing date. To the extent the
Expenses can accurately be prorated on the closing date, such Expenses shall be
prorated at closing. To the extent such Expenses cannot accurately be prorated
on the closing date (e.g., utility charges), such Expenses shall be prorated
and adjusted by Purchaser as of the closing date when the actual bills covering
the period in which the closing date occurs are received by Purchaser. Seller
shall pay its share of such Expenses
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promptly upon receipt of a statement from Purchaser. Purchaser shall have the
right to offset against any Income due Seller Seller's share of such Expenses.
(h) Not later than one (1) year after the closing date,
Purchaser shall submit to Seller a final statement regarding the proration of
Income and Expenses as of the closing date, together with a check in the amount
of any sum due to Seller. In the event such final Closing Statement discloses
that money is due to Purchaser from Seller, then Seller shall pay same to
Purchaser within thirty (30) days after receipt of such final Statement.
14. INDEMNIFICATION.
From and after the closing, each party comprising Seller
hereby severally covenants to defend, indemnify and hold harmless Purchaser,
and all officers, directors, partners, shareholders, agents or employees of
Purchaser, together with their respective heirs, executors, administrators,
legal representatives, distributees, successors and assigns (collectively, the
"Purchaser Group"), against, and pay the Purchaser Group in respect of, any and
all costs, expenses, actions, claims, losses, damages or deficiencies
including, without limitation, reasonable attorney's fees and disbursements
(collectively, "Damages") incurred or suffered by the Purchaser Group which
result from (i) any liability or obligation of the respective party comprising
Seller arising before the date hereof, or (ii) subject to the terms hereof, the
breach of any representation, warranty, agreement or covenant of such Seller or
the non-compliance by such Seller with any provision of this Agreement.
15. BROKERAGE COMMISSIONS.
Seller and Purchaser each hereby represent to the other that
(other than the brokerage commission to be paid by Seller to Xxxxx & Co.) they
have not retained the services of any broker or any other person or entity
(except each of their respective legal counsels) in connection with this
transaction, and shall indemnify and defend the other party against the claims
of any broker claiming to have represented the first party.
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16. POSSESSION.
At the closing of this transaction, Seller shall deliver and
Purchaser shall accept possession of the subject Properties, subject to the
rights of all existing tenants and such other matters as are disclosed on the
Title Insurance Commitments and as otherwise approved by Purchaser.
17. OPERATION OF OPERATING PROPERTIES.
Between the date hereof and the date of the closing of this
transaction, each party composing Seller agrees to continue to operate each
Property in accordance with its past business practice and standards. In
connection with the foregoing, each party comprising Seller agrees to:
(a) To the extent of Seller's responsibility with respect
thereto under existing Leases, keep each Property and all parts thereof in good
repair and condition, including making necessary repairs and replacements and
maintaining the same services to the tenants of the Properties, all in
accordance with Seller's past practices;
(b) To the extent Seller's responsibility with respect
thereto under existing Leases, comply with all state and municipal laws,
ordinances, regulations and orders or notices of violations relating to the
Properties to the extent that Seller has received written notices of the
violation of any of the foregoing;
(c) Comply with all the terms, conditions and provisions
of the Leases, and the Service Contracts, and make all payments due and suffer
no default thereunder; and
(d) Not to enter (other than in the ordinary course of
business) into any new contract or modify any existing contract which cannot be
terminated without charge, cost, penalty, or premium on or before the closing
without the written approval of Purchaser.
In addition to the foregoing, prior to entering into any new
leases in excess of 2,000 square feet with respect to any of the Properties,
each party comprising Seller agrees
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to submit to Purchaser for Purchaser's approval, an outline of the general
terms and conditions upon which it desires to enter into negotiations with a
prospective new tenant. Purchaser shall be deemed to have given its approval
of such general terms and conditions if it fails to notify such party
comprising Seller, in writing, of Purchaser's disapproval thereof within five
(5) days after Purchaser's receipt of such general terms and conditions. After
Purchaser's approval of such general terms and conditions, such party
comprising Seller may commence negotiations with such prospective tenant and
shall be authorized to execute and deliver a lease with such prospective tenant
upon terms and conditions substantially similar to the general terms and
conditions approved by Purchaser. Upon the execution and delivery of any such
new lease by such party comprising Seller, the same shall automatically be
deemed to be included among the Leases, as defined herein, for all purposes
under this Agreement. From and after the date hereof, any leasing commissions
to be paid by Seller to outside brokers, Xxx Xxxx or parties who are not
affiliated with Seller shall be pro rated as of the date of Closing.
18. RISK OF LOSS.
In the event any of the Properties are damaged or destroyed in
whole or in part by fire or other casualty prior to the date of the closing,
Seller agrees to give Purchaser written notice of such damage or destruction as
soon as possible thereafter. Purchaser shall have the right within fifteen
(15) days after its receipt of such notice as aforesaid to eliminate such
affected Property from this transaction by written notice thereof to Seller, in
which event neither party hereto shall have any further liability or obligation
with respect to such Property, subject to the provisions of Paragraph 34. In
the event Purchaser does not elect to eliminate such Property pursuant to its
right to do so as aforesaid, the affected party comprising Seller agrees to
deliver to Purchaser at closing either: (a) an assignment of all of such
party's right, title and interest in and to all applicable insurance policies
relating to such affected Property; or (b) the proceeds of such insurance
policies in the event they have been received by such
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party comprising Seller. In either event, any proceeds which have been
applied by such party comprising Seller to the rebuilding of any Property so
affected shall be deemed to be a credit against any amounts owing to Purchaser
pursuant to the foregoing.
19. DEFAULT.
In the event of default by Seller hereunder, Purchaser may, at
its option: (a) demand and be entitled to return of the Deposit; or (b)
exercise the remedy of specific performance, as its sole remedy.
In the event of default by Purchaser hereunder, Seller may
demand, and shall be entitled to, retain the Deposit in full termination of
this Agreement, the same to be Seller's sole remedy for any breach hereunder by
Purchaser.
20. SURVIVAL OF REPRESENTATIONS AND WARRANTIES OF SELLER.
Purchaser hereby acknowledges and agrees that Seller and each
party comprising Seller has made no agreements with or representations or
warranties to Purchaser, except for those specifically set forth in this
Agreement. The representations and warranties of Seller and each party
comprising Seller specifically set forth in this Agreement or in any document
delivered or to be delivered pursuant hereto shall survive the closing of the
transactions contemplated hereby for a period of one (1) year after the date of
closing and shall thereafter immediately and automatically expire, except for
the representation of both parties set forth in Paragraph 15 hereof which shall
survive the closing of the transactions contemplated hereby and shall not
expire.
21. ASSIGNMENT.
This Agreement may only be assigned by Purchaser to a
corporation, partnership, or other entity which is affiliated with Purchaser so
long as Purchaser remains primarily liable hereunder. Any such assignee shall
deliver to Seller the written agreement of
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such assignee, in form and substance satisfactory to Seller, pursuant to which
such assignee shall agree to assume all of the obligations of Purchaser under
this Agreement.
22. NO RECORDING OF AGREEMENT.
Neither this Agreement, nor any other document which shall
assert an interest of Purchaser in any of the Properties shall be recorded in
the public records of any jurisdiction in which any of the Properties are
located. Violation of the foregoing provision by Purchaser shall, at Seller's
election, render this Agreement null and void ab initio, and shall entitle
Seller to retain the Deposit as liquidated damages hereunder, in which event
neither party shall have any further liability or obligation hereunder.
Purchaser acknowledges that Seller shall have the right to record an
affidavit(s) confirming its election to render this Agreement null and void ab
initio, which affidavit(s) shall negate and render ineffective any document
previously recorded by Purchaser and that subsequent parties shall have the
right to rely on such affidavit(s).
23. DEPOSIT.
Simultaneously with the execution hereof, Purchaser, as
evidence of its good faith, agrees to submit the sum of Two Hundred Thousand
and 00/100ths Dollars ($200,000.00) as a Deposit hereunder, which Deposit shall
be held in escrow by the Title Company. Upon completion of the Inspection
Period and a decision by Purchaser to consummate this transaction, Purchaser
shall deposit the additional sum of One Million Five Hundred Thousand Dollars
($1,500,000.00) with the Title Company, (which sum, together with the earlier
deposit, shall herein collectively be referred to as the "Deposit"). The
aforesaid Deposit shall be returned to Purchaser upon the completion of the
closing of this transaction or otherwise pursuant to the provisions hereof.
The aforesaid Deposit shall be delivered to Seller in the event of any default
by Purchaser hereunder or as otherwise provided herein. The Title Company
shall deliver the Deposit to the party entitled to same upon receipt
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of a written notice from both parties indicating which party is entitled to
receive such Deposit pursuant to the terms of this Agreement.
24. METHOD OF PAYMENT.
All payments from Purchaser to Seller hereunder shall be paid
in immediately available funds in the form of cash, certified check, bank
cashier's check or wire transfer of federal funds, as requested.
25. USE OF WORDS.
As used herein, the singular shall include the plural, and
vice versa, and the use of any gender shall include all genders.
26. NOTICE.
Any notice or other communication required or desired to be
given hereunder shall be deemed to have been sufficiently given for all
purposes if: (a) delivered personally to the party to whom the same is
directed; or (b) sent by registered or certified mail, postage and charges
prepaid, return receipt requested, addressed to the party to whom the same is
directed; or (c) sent by a recognized national overnight delivery service
addressed to the party to whom the same is directed, at the address of such
party as follows:
If to Seller, to:
Xxx X. Xxxxx
Xxxxxx Development Company
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
with a copy sent simultaneously to:
Xxxxx X. Xxxxxxxx
Xxxxxx Development Company
0000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
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If to Purchaser, to:
Xxxxx Realty Investors, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attn: Xx. Xxxxxxx X. Xxxxxx, Vice President
with a copy sent simultaneously to:
Xxxxxxxx X. Xxxxxxx, Esq.
Xxxx Xxxxxx & Xxxxxx, P.C.
000 X. Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000-0000.
Any notice which is served personally shall be deemed to be
given on the date on which the same is actually served, and any notice which is
sent by mail or by overnight delivery service shall be deemed given on the
earlier of: (y) the date on which the same is actually received; or (z) the
date two (2) days after the same is deposited in a regularly maintained
receptacle for the deposit of United States mail or delivered to the overnight
delivery service. Any party may change its address for purposes of this
Agreement by giving the other parties notice thereof in the manner hereinbefore
provided for the giving of notices.
27. GOVERNING LAW.
This Agreement shall be interpreted under and governed by the
laws of the State of Michigan.
28. ENTIRE AGREEMENT.
This Agreement may be amended or modified only by the written
agreement of all of the parties hereto and the same constitutes the entire
agreement between the parties hereto relating to the subject matter hereof and
all prior negotiations are hereby merged herein.
29. CAPTIONS.
All titles and captions contained in this Agreement and in the
Index are for reference purposes only and shall not be deemed to have any
substantive effect.
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30. NO PRESUMPTION REGARDING DRAFTING.
It is acknowledged that the substance and form of this
Agreement have been fully reviewed and negotiated by the parties hereto and
approved as to form by their respective counsel. It is further acknowledged
and agreed that no presumption shall exist against either party hereto by
virtue of this Agreement being considered to have been drafted by counsel for
either party thereto, the drafting of this Agreement being the joint effort of
the parties hereto and their respective counsel.
31. BINDING EFFECT AND BENEFITS.
The terms and conditions of this Agreement shall be binding
upon and shall insure to the benefit of the parties hereto and their respective
heirs, representatives, successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to confer on any person other than
the parties hereto, or their respective heirs, representatives, successors and
permitted assigns, any rights, remedies, obligations or liabilities.
32. TIME.
Time is of the essence with respect to this Agreement.
33. COUNTERPARTS.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together
shall be deemed to be one in the same instrument.
34. SEPARATION OF INDIVIDUAL PROPERTIES.
In the event Purchaser elects to eliminate one or more
Properties containing at least 20,000 or more square feet from the purchase
contemplated hereby or terminates this Agreement with regard thereto pursuant
to Paragraphs 3, 6, 7, or 18 above, Seller shall have the right to terminate
this contract in its entirety, in which event neither party shall have any
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future rights or obligations hereunder and the Deposit shall be returned to
Purchaser. In such event, Purchaser shall then have seven (7) days to
reinstate this Agreement and the Deposit and proceed to closing, waiving such
condition or defect with regard to said individual Property or Properties,
purchasing all Properties hereunder.
35. 1031 EXCHANGE.
Seller hereunder desires to exchange, for other property of
like kind and qualifying use within the meaning of Section 1031 of the Internal
Revenue Code of 1986, as amended and the Regulations promulgated thereunder,
fee title in the Property. Seller expressly reserves the right to assign its
rights, but not its obligations, hereunder to a Qualified Intermediary as
provided in IRC Reg 1.1031(k) - 1((g)(4) on or before the Closing Date.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Sale and Purchase as of the day and year first above written.
WITNESSES:
___________________________________ BY:____________________________________
___________________________________ ITS:___________________________________
ON BEHALF OF AND AS AUTHORIZED AGENT
FOR THOSE ENTITIES LISTED ON
EXHIBIT "A", ATTACHED HERETO AND MADE
A PART HEREOF
"SELLER"
XXXXX REALTY INVESTORS, INC.,
A MICHIGAN CORPORATION
___________________________________ BY: __________________________________
XXXXXXX X. XXXXXX
___________________________________ ITS: VICE PRESIDENT
"PURCHASER"
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EXHIBIT "A"
ENTITIES COMPRISING SELLER AND PROPERTIES
Location Owner
-------- -----
Benton Harbor, Michigan Xxxxxx Harbor Realty LLC
Chanute, Kansas Chanute Realty LLC
Champaign, Illinois Champaign Realty LLC
Crawfordsville, Indiana Crawfordsville Realty LLC
Sedd Realty Company
Decatur, Illinois Sedd-J Realty Company
Decatur, Indiana Decatur Realty LLC
El Dorado, Kansas El Dorado Realty LLC
Huntington, Indiana Huntington Realty LLC
Jacksonville, Illinois Jacksonville Realty LLC
Little Falls, Minnesota Little Falls Realty LLC
Mansfield, Ohio Sedd-J Realty Company
Owosso, Michigan Sedd-J Realty Company
Sturgis, Michigan Sedd-J Realty Company
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EXHIBIT "B"
LEASES
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EXHIBIT "C"
VIOLATIONS AND CONDEMNATIONS
1. With regard to Sedd Realty Company and Crawfordsville Realty
LLC (collectively the "Crawfordsville Entities"), Purchaser acknowledges and
Seller discloses that the Crawfordsville Entities disclose that they have had
meetings with certain public officials of the City of Crawfordsville, the
Indiana Department of Transportation and adjacent landowners as to the
possibility of installing a traffic signal in front of the Shopping Center, for
which some contribution would be expected of the Crawfordsville Entities or
their successor.
2. With reference to Article 12, Paragraph (b)(ix), Seller
discloses and Purchaser acknowledges that the Crawfordsville Entities has made
a verbal commitment to Ameritech for the expansion of its existing easement to
include an additional area of 80' x 30', which area is currently covered by
grass. Ameritech plans to place a 3' x 4' x 5' phone box and surround said
area with shrubs. The easement agreement is scheduled to be finalized the week
of April 30, 1998.
3. There is a proposed special assessment in Berrien Township,
Benton Harbor, Michigan for the widening of Mall Drive which affects Xxxxxx
Harbor Realty LLC. To the best of Seller's knowledge, the anticipated cost
related to the Property is an annual amount less than Seven Hundred Fifty
Dollars ($750.00) which Seller believes would pass through to tenants.
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EXHIBIT "D"
SERVICE CONTRACTS
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EXHIBIT "E"
PURCHASE PRICE FOR EACH PROPERTY
Location Purchase Price
-------- --------------
Benton Harbor, Michigan $1,433,000.00
Chanute, Kansas $1,237,000.00
Champaign, Illinois $1,097,000.00
Crawfordsville, Indiana $1,995,000.00
Decatur, Illinois $4,230,000.00
Decatur, Indiana $2,962,000.00
El Dorado, Kansas $1,526,000.00
Huntington, Indiana $1,155,000.00
Jacksonville, Illinois $4,856,000.00
Little Falls, Minnesota $ 957,000.00
Mansfield, Ohio $5,745,000.00
Owosso, Michigan $5,287,000.00
Sturgis, Michigan $1,220,000.00
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EXHIBIT "F"
DESIGNATED TENANTS
Maurices
Fashion Bug
Dollar Tree
On Cue Records
Rentway
Famous Footwear
GNC
Toyworks
XxXxx Fabrics
Petcare
Xxxxx Beauty Supply
Play It Again Sports
Xxxxxx Music
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EXHIBIT "G"
TENANT ESTOPPEL CERTIFICATE
(To be transcribed on tenant letterhead)
____________________________, 0000
Xxxxx Realty Investors, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Re: __________________________________
__________________________________
(the "Shopping Center")
Gentlemen:
The undersigned hereby certifies to you and your successors and
assigns that:
1. The undersigned is the Tenant under that certain lease,
dated __________________, 19_____, between _______________________________, as
Landlord, and the undersigned, as Tenant, covering those certain premises (the
"Premises") located in the Shopping Center, as is more particularly described
in such lease.
2. Such lease is the only lease or agreement between the
undersigned and the Landlord affecting the Premises or the development in which
the Premises are located (the "Development") and such lease has not been
assigned, modified, changed, altered or amended in any respect, except as
follows (as so assigned, modified, changed, altered or amended, the "Lease"):
___________________________________________________________.
3. The undersigned has accepted possession of and now occupies
the Premises and is open for business with the general public; the lease term
commenced on __________________________ and expires on ______________________;
and there are no renewal options.
4. All rent, common area maintenance charges, taxes and other
payments due under the Lease have been paid to and including ___________, 19__;
there has been no prepayment of rent, common area maintenance charges, taxes
and other payments; and the current minimum rent being paid under the Lease is
$_______________ per annum.
5. The Lease is in full force and effect and constitutes a
legally valid instrument, binding and enforceable against the undersigned in
accordance with its terms. As of the date
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_____________________________________
_______________________________, 1998
Page Two
hereof, the undersigned is entitled to no credit, offset or deduction in rent
or other charges due thereunder, including, without limitation, any recapture
of percentage rent.
6. Neither Tenant nor Landlord is in default in any manner in
the performance of any of the terms, covenants or provisions of the Lease, nor
does any event or circumstance exist which, with the giving of notice or the
passage of time, or both, would result in a default under the Lease, on the
part of Tenant or Landlord.
7. The undersigned has no right to terminate the Lease.
8. No security has been deposited with Landlord under the
Lease, except as follows: ___________________________________________________.
The undersigned agrees that this letter shall inure to the
benefit of and is being relied upon by you and your lenders, mortgagees,
successors and assigns.
Very truly yours,
________________________________________
a_______________________________________
By:_____________________________________
Its:____________________________________
"Tenant"
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