EXHIBIT 10.51
October 3, 1996
VIA FEDERAL EXPRESS
Xx. Xxxxxxx Xxxxxxxxxx
First Washington Realty Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
Re: Four Mile Fork Shopping Center, Fredericksburg, Virginia
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Dear Xxxx:
I am returning to you one fully executed copy of the Real Estate
Purchase Agreement dated October 3, 1996, along with two (2) additional copies.
The Agreement is being accepted by VOL Properties Corporation conditioned upon
your approval of the following modifications to the Agreement:
1. Seller has ordered and should be receiving shortly a Phase I
environmental study of the Property. A copy of that study will
be delivered to Purchaser on the condition that the contents
thereof are not to be disclosed to any person without the
prior written consent of Seller.
Notwithstanding any other provision to the contrary contained
in Section 13 or elsewhere in the Agreement, Purchaser will
not perform any subsurface testing of the Property without the
prior written consent of Seller.
2. In Section 12 of the Agreement, on the second line, delete the
words "recordation of the deed of conveyance" and insert the
word "Closing."
October 3, 1996
Page 2
3. In Section 17, on the third line, before the word "with",
insert the words "and the letter dated October 3, 1996 from
Xxxxxxx X. Xxxx to Xxxxxxx Xxxxxxxxxx constitute the entire
agreement between the parties."
4. In Exhibit B to the Agreement, Space 170-5043 correctly shows
monthly rental of $1,500. However, the area should be reduced
to 2,000 square feet, with the rent per square foot adjusted
accordingly. The additional 750 square feet represents space
170-5045, which is vacant.
If the foregoing is satisfactory, please sign and return a copy of this
at which time the Agreement shall be deemed to be binding on the parties. In
addition, return a copy of the Agreement after it has been signed by the Title
Company.
Very truly yours,
/s/
Xxxxxxx X. Xxxx
Agreed and Accepted this
4th day of October, 1996
/s/
------------------------
Agent for Purchaser
HJL/cod
Enclosures
cc: Xxxx Xxxxxx
Xxx Xxxxxxxxxx
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT is made and entered as the 3rd day of
October, 1996, by and between (i) VOL PROPERTIES CORPORATION, a Delaware
corporation, (hereinafter referred to as "Seller") and (ii) FIRST WASHINGTON
REALTY LIMITED PARTNERSHIP or its assignees (hereinafter referred to as
"Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the record and beneficial owner of all that certain real
property containing 10.339 acres and located in Fredericksburg, Spotsylvania
County, Virginia, as more particularly described on Exhibit A attached hereto
(the "Land") together with a shopping center commonly known as Four Mile Fork
Shopping Center containing approximately 96,720 square feet of net rentable area
and all other buildings and improvements situated thereon (collectively, the
"Building"), all personal property and fixtures located therein (the
"Personalty"), and all appurtenances, rights, easements, rights-of-way,
tenements and hereditaments incident thereto (the "Additional Property") (the
Land, Building, Personalty and Additional Property are hereinafter collectively
referred to as the "Property"); and
WHEREAS, Purchaser desires to purchase the Property from Seller and Seller
desires to sell and transfer the same to Purchaser.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Purchase and Sale. Purchaser agrees to buy and Seller agrees to sell
and convey the Property for and in consideration of the purchase price and upon
the terms and conditions set forth herein.
2. Purchase Price. The purchase price for the Property (the "Purchase
Price") shall be Five Million Seven Hundred Thousand Dollars ($5,700,000.00),
payable at Closing (as hereinafter defined) in cash, cashier's check, certified
check or bank wire transfer.
3. Deposit.
(a) Within one (1) business day after the date of delivery to
Purchaser of an original of this Agreement executed by Seller (the date of
such delivery by Seller being the "Acceptance Date"), Purchaser shall
deliver to Commercial Settlements, Inc., 0000 X Xxxxxx, X.X., Xxxxxxxxxx,
XX 00000
(the "Title Company"), as escrow agent, a deposit (the "Initial Deposit")
of Seventy-five Thousand Dollars ($75,000.00) by a check payable to the
Title Company. If Purchaser shall fail to deliver the Initial Deposit when
required to do so, this Agreement shall become null and void and the
parties hereto shall be relieved of all further liability and obligation to
each other.
(b) Within three (3) days after the end of the Feasibility Period (as
defined in Section 13(b)), Purchaser shall deliver to the Title Company, as
escrow agent, an additional deposit (the "Additional Deposit") of
Seventy-five Thousand Dollars ($75,000.00) by check payable to the Title
Company.
(c) The Initial Deposit and the Additional Deposit and all accrued
interest therein are hereinafter referred to collectively as the "Deposit."
The Title Company will immediately provide Seller with written evidence of
receipt of such Deposit. The Title Company shall place the Deposit in an
interest-bearing account within three (3) days after the date of receipt
thereof, and interest on the Deposit shall accrue to the benefit of
Purchaser. The Deposit shall be held by the Title Company pursuant to the
terms and conditions of this Agreement.
(d) In the event that, at any time prior to Closing, Seller or
Purchaser provides Title Company with a certification (a copy of which
shall be delivered contemporaneously to the other party) that the Seller or
Purchaser, as the case may be, is entitled to the Deposit pursuant to the
terms of this Agreement, Title Company shall deliver the Deposit to such
party within seven (7) business days after receipt of said notice, unless
the other party disputes such certification by written notice to Title
Company (a copy of which shall be delivered contemporaneously to the other
party) delivered within five (5) business days of Title Company's receipt
of the initial certification. In such event, Title Company shall hold the
Deposit pending resolution of such dispute.
(e) The parties acknowledge that Title Company is acting solely as a
stakeholder at their request and for their convenience, that Title Company
shall not be deemed to be the agent of either of the parties, and Title
Company shall not be liable to either of the parties for any act or
omission on its part unless taken or suffered in bad faith, in willful
disregard to this Agreement or involving gross negligence. Seller and
Purchaser shall jointly and severally indemnify and hold Title Company
harmless from and against all costs, claims and expenses, including
reasonable attorneys' fees, incurred in connection with the performance of
Title Company's duties hereunder, except with respect to actions or
omissions taken or suffered by Title Company in bad faith, in willful
disregard of this Agreement or involving gross negligence on the part of
Title Company.
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4. Closing. Except as otherwise provided in this Agreement, the purchase
and sale contemplated herein shall be consummated at the "Closing", which shall
take place on the date (the "Closing Date") specified by Purchaser on not less
than ten (10) days notice to Seller, provided that the Closing Date shall not be
later than sixty (60) days after the end of the Feasibility Period (as defined
and described in Section 13(b) hereof). The Closing shall take place at the
offices of the Purchaser, or at such other place as may mutually agreed upon by
Seller and Purchaser. Notwithstanding anything to the contrary contained herein,
if Closing has not occurred by December 31, 1996 for any reason whatsoever
(other than as a result of the default of Seller), then Seller shall have the
right to terminate this Agreement, in which case the Deposit shall be returned
to Purchaser and neither party shall have any further liabilities or obligations
under this Agreement.
5. Representations and Warranties of Seller. In order to induce Purchaser
to enter into this Agreement and to purchase the Property, Seller hereby makes
the following representations and warranties, each of which is material and
shall, together with all covenants, agreements and indemnities set forth in or
made pursuant to this Agreement, survive Closing, notwithstanding any
investigation at any time made by or on behalf of Purchaser:
(a) Authority of Seller. Seller is a corporation duly organized and
existing and in good standing under the laws of the State of Delaware.
Seller has all necessary power and authority and has taken all necessary
partnership or corporate action to execute, deliver and perform this
Agreement and consummate all of the transactions contemplated by this
Agreement. This Agreement is the valid and binding obligation of Seller,
enforceable against it in accordance with its terms.
(b) Title. Seller is the sole owner of fee simple title to the
Property with the authority to sell and convey the Property to Purchaser
without the consent of any other party, and such title is marketable and
good of record and free and clear of all liens, encumbrances, covenants,
conditions, restrictions and other matters affecting title, except for the
Permitted Exceptions (as defined in Section 8(a)(iii)).
(c) Compliance with Existing Laws. To the best of Seller's knowledge,
Seller is not in violation of, and has complied with, any and all
applicable building, zoning, environmental or other ordinances, statutes or
regulations of any governmental agency, in respect to the ownership, use,
maintenance, condition and operation of the Property or any part thereof.
To the best of Seller's knowledge, Seller possesses all licenses,
certificates, permits and authorizations necessary for the use and
operation of the Property in the manner in which it is currently being
operated by Seller, and the requisite certificates of the fire marshalls or
board of fire underwriters have been issued for the Property. To the best
of Seller's knowledge, the Building and all related facilities are now in
conformance with all applicable zoning laws and no variance, exception or
other modification of such laws was necessary in order to authorize the use
or
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occupancy of any portion thereof.
(d) Leases. To the best of Seller's knowledge, true, correct and
complete copies of all of the leases of the Property and any amendments
thereto (collectively, the "Leases") have been delivered to Purchaser. To
the best of Seller's knowledge, attached hereto as Exhibit B is a
description of all of the Leases and a current rent schedule ("Rent
Schedule") covering the Leases. To the best of Seller's knowledge, there
are no leases or tenancies of any space in the Property other than those
set forth in Exhibit B or any subleases or subtenancies unless otherwise
noted therein. Except as otherwise set forth in Exhibit B or elsewhere in
this Agreement, to the best of Seller's knowledge:
(i) the Leases are in full force and effect and constitute a
legal, valid and binding obligation of Seller and are assignable by
Seller to Purchaser;
(ii) no tenant has an option to purchase the Property;
(iii) no renewal or expansion options have been granted to the
tenants, except as provided in the Leases;
(iv) to the best of Seller's knowledge, Seller is not in default
under the Leases;
(v) the rents set forth on the Rent Schedule are being collected
on a current basis and there are no arrearages in excess of one month
nor has any tenant paid any rent, additional rent or other charge of
any nature for a period of more than thirty (30) days in advance;
(vi) all work for tenant alterations and other work or materials
contracted for by Seller and any tenant has been completed by Seller,
and all work and materials have been fully paid for;
(viii) Seller has not sent written notice to any tenant claiming
that such tenant is in default, which default remains uncured, and to
the best of Seller's knowledge, no tenant is in default under its
Lease;
(ix) no action or proceeding instituted against Seller by any
tenant is presently pending in any court; and
(x) there are no security deposits other than those set forth in
Exhibit B.
(e) Service Contracts. To the best of Seller's knowledge, attached
hereto as Exhibit C is a complete and correct list of all contracts or
agreements relating
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to the management, leasing, operation, maintenance or repair of the
Property (the "Service Contracts"). To the best of Seller's knowledge, true
and correct copies of all of the Service Contracts have been delivered to
Purchaser. No Service Contract which Purchaser agrees to assume will be
terminated, amended, modified or supplemented after the end of the
Feasibility Period without Purchaser's prior written approval.
(f) Tax Bills. Attached hereto as Exhibit D are true and correct
copies of tax bills issued by any applicable federal, state or local
governmental authority to Seller with respect to the Property for the most
recent past and current tax years, and any new assessment received with
respect to a current or future tax year.
(g) Insurance. The Property is insured for its replacement value
against loss or damage sustained as a result of fire or other casualty.
Seller shall maintain in full force and effect all hazard, liability and
other insurance policies currently in effect until the Closing Date and
shall cause its insurer to name Purchaser as an additional insured as a
contract party on its rent loss policy with respect to the Property.
(h) Condition. Possession of Property shall be delivered to Purchaser
at Closing in "as is, where is" condition as of the date of Purchaser's
execution of this Agreement. Seller has no knowledge (having made no
independent investigations) of any material defect in the condition of the
Property, the structural elements thereof or the mechanical systems therein
(other than a potential roof problem which has been disclosed to
Purchaser).
(i) Tenant Estoppel. Seller shall use commercially reasonable efforts
to obtain and deliver to Purchaser after the Feasibility Period and prior
to Closing, a tenant estoppel letter in the form attached hereto as Exhibit
F (or such other form as required by Purchaser's mortgage lender) from each
of the tenants of the Property.
(j) Condemnation Proceedings. No condemnation or eminent domain
proceedings are pending or, to the best of Seller's knowledge, threatened
against the Property or any part thereof, and Seller has made no
commitments to and has received no notice, oral or written, of the desire
of any public authority or other entity to take or use the Property or any
part thereof whether temporarily or permanently, for easements,
rights-of-way, or other public or quasi-public purposes. Seller has made no
independent investigations as to the matters contained on this subsection
5.(j).
(k) Litigation. No litigation is pending or, to the best of Seller's
knowledge, threatened, including administrative actions or orders relating
to governmental regulations, affecting the Property or any part thereof or
Seller's right to sell the Property.
(l) No Defaults. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will: (i) conflict
with, or result in
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a breach of, the terms, conditions or provisions of, or constitute a
default under, any agreement or instrument to which Seller is a party or by
which the Property is bound, (ii) violate any restriction, requirement,
covenant or condition to which the Seller is subject or by which the
Property is bound, (iii) constitute a violation of any applicable code,
resolution, law, statute, regulation, ordinance, rule, judgment, decree or
order, or (iv) result in the cancellation of any contract or lease
pertaining to the Property.
(m) Hazardous Waste. Seller has no actual knowledge (having made no
independent investigations) of any discharge, spillage, uncontrolled loss,
seepage or filtration (a "Spill") of oil, petroleum or chemical liquids or
solids, liquid or gaseous products or any hazardous waste or hazardous
substance (as those terms are used in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Resource
Conservation and Recovery Act of 1976, as amended, or in any other
applicable federal, state or local laws, ordinances, rules or regulations
relating to protection of public health, safety or the environment, as such
laws may be amended from time to time) at, upon, under or within the Land
or any contiguous real estate. Seller has not caused or permitted to occur,
and shall not permit to exist any condition which may cause a Spill at,
upon, under or within the Land or any contiguous real estate. To the best
of Seller's knowledge (having made no independent investigations), there is
no proceeding or action pending or threatened by any person or governmental
agency regarding the environmental condition of the Property.
(n) Certificates of Occupancy. Seller will not amend any certificates
of occupancy and will maintain them in full force and effect.
(o) Licenses and Permits. To the best of Seller's knowledge, all
licenses and permits have been issued to Seller by all applicable
governmental authorities which are necessary for the ownership, management
and operation of the Property (the "Licenses"). Seller has received no
notice, nor has any knowledge, that it is lacking any required permit or
license.
(p) Operating Statements. To the best of Seller's knowledge, attached
hereto as Exhibit H are true and correct operating statements of the
Property for 1993, 1994, 1995 and the indicated portion of 1996. Also
attached as Exhibit H is a copy of the 1996 operating budget detailed as to
amounts by month and operating department in reasonably sufficient detail.
(q) Utilities. To the best of Seller's knowledge (having made no
independent investigations), adequate, usable public sewers, public water
facilities, gas and electrical facilities necessary to the operation of the
Property are installed in and are duly connected to the Property and can be
used without any charge except the normal deposits, if any, and usual
metered utility charges and sewer charges.
(r) Personal Property. To the best of Seller's knowledge, attached
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hereto as Exhibit I is a true, correct and complete inventory of all
personal property ("Personal Property"), if any, used in the management,
maintenance and operation of the Property (other than trade fixtures or
personal property of tenants).
(s) Leasing Commissions. There are, and at Closing shall be, no
outstanding or contingent leasing commissions or fees payable with respect
to the Property.
For purposes of Section 5, the terms "best knowledge" or "knowledge" of Seller
shall mean the knowledge of Xxxxx Xxxxx, Xxxxxxx Xxxxxx and Dumbarton
Properties, Inc.
6. Obligations of Seller Pending Closing. From and after the date of this
Agreement through the Closing Date, Seller covenants and agrees as follows:
(a) Maintenance and Operation of Premises. Seller will cause the
Property to be maintained in its present order and condition, normal wear
and tear excepted, and will cause the continuation of the normal operation
thereof, including the purchase and replacement of fixtures and equipment,
and the continuation of the normal practice with respect to maintenance and
repairs so that the Property will, except for normal wear and tear, be in
substantially the same condition on the Closing Date as of the Acceptance
Date.
(b) Licenses. Seller shall use it best efforts to preserve in force
all Licenses and to cause those expiring to be renewed.
(c) Changes in Representations. Seller shall notify Purchaser
promptly, and Purchaser shall notify Seller promptly, if either becomes
aware of any occurrence prior to the Closing Date which would make any of
its representations, warranties or covenants contained herein not true in
any material respect.
(d) Obligations as to Leases. From the Acceptance Date to the
expiration of the Feasibility Period provided for in Section 13, Seller
shall have the right to enter into new leases for space at the Property
("New Lease(s)") or to amend, modify, renew, supplement or extend any Lease
in any respect or approve any assignment of leases or subletting of leased
space, or terminate any Lease (with respect to any provision amending,
modifying, renewing, supplementing or extending, etc. above, "Amended
Lease(s)"), and as to any Amended or New Leases entered into by the Seller
during this period, the Seller shall give Purchaser notice (including
therewith copies of the New Leases and all relevant data related to the
particular Amended or New Lease) of such Amended and/or New Leases within
three (3) days after the entry into any Amended or New Lease, but, in any
event, not later than seven (7) days prior to the expiration of the
Feasibility Period. After the expiration of the Feasibility Period, Seller
shall not, without Purchaser's prior written consent (which consent shall
not be unreasonably withheld or delayed), amend, modify, renew or
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extend any Lease in any respect unless required by law, or enter into new
leases or approve any assignment of leases or subletting of leased space,
or terminate any Lease. Seller hereby further agrees that if any space is
vacant on the Closing Date, Purchaser shall accept the Property subject to
such vacancy, provided that the vacancy was not permitted or created by
Seller in violation of any restrictions contained in this Agreement. Prior
to Closing, Seller shall not apply all or any part of the security deposit
of any tenant unless such tenant has vacated the Property or defaulted
under its Lease, in which case Seller may deal with the security deposit of
such tenant in a prudent business manner.
7. Representations and Warranties of Purchaser. In order to induce Seller
to enter into this Agreement and to sell the Property, Purchaser hereby makes
the following representations and warranties, each of which is material and
shall survive Closing, notwithstanding any investigation at any time made by or
on behalf of Seller:
(a) Authority of Purchaser. Purchaser is a limited partnership duly
organized and existing and in good standing under the laws of the State of
Maryland. Purchaser has all necessary power and authority to execute,
deliver and perform this Agreement and consummate all of the transactions
contemplated by this Agreement. This Agreement is the valid and binding
obligation of Purchaser, enforceable against it in accordance with its
terms.
(b) No Defaults. Neither the execution of this Agreement nor the
consummation of the transactions contemplated hereby will: (i) conflict
with, or result in a breach of, the terms, conditions or provisions of, or
constitute a default under, any agreement or instrument to which Purchaser
is a party, (ii) violate any restriction, requirement, covenant or
condition to which the Purchaser is subject, and (iii) constitute a
violation of any applicable code, resolution, law, statute, regulation,
ordinance, rule, judgment, decree or order.
8. Conditions Precedent to Closing.
(a) It shall be a condition precedent of Purchaser's obligation to
make a full settlement hereunder that each and every one of the following
conditions shall exist on the Closing Date:
(i) Representations and Warranties. Seller's representations and
warranties hereunder shall be true and correct in the same manner and
with the same effect as though such representations and warranties had
been made on and as of the Closing.
(ii) Zoning. No proceedings shall have occurred or be pending to
change, redesignate or redefine the zoning classification of the
Property to a more restrictive classification than presently exists on
the
-8-
date of Purchaser's execution of this Agreement.
(iii) Title. Title to the Property shall be marketable, good of
record, and insurable by the Title Company at standard rates or less,
pursuant to a full coverage ALTA Form-B (Rev. 1970 and 1984) owner's
title insurance policy in the amount of the Purchase Price (or an
unconditional commitment therefor) without any exceptions ("Printed
form" or otherwise) other than the Permitted Exceptions, and in
addition, providing affirmative coverage satisfactory to Purchaser
insuring against any mechanic's or materialmen's lien arising from
goods, labor or materials provided to the Property prior to the
Closing Date. The "Permitted Exceptions" are:
(A) the lien of current real estate taxes and special
assessments not yet due and payable; and
(B) such other matters which are not unacceptable to
Purchaser under this subsection B. Promptly after the date of
execution of this Agreement by Seller, Purchaser shall request an
interim title binder from the Title Company and within fifteen
(15) days after receipt thereof shall notify Seller of all
exceptions to title to the Property which are unacceptable to
Purchaser, in its sole discretion. Seller shall act diligently,
and its sole expense, to correct such conditions at least thirty
(30) days prior the Closing Date. If such conditions are not
corrected by thirty (30) days prior to the Closing Date
hereunder, Purchaser, in addition to any other rights it may
have, shall have the right and option (i) to terminate this
Agreement, or (ii) to extend the Closing Date for a period not to
exceed one (1) month until such time as Seller has corrected such
defects, or (iii) to close on the purchase of the Property and
waive such defects in title. In the event of termination of this
Agreement, Seller and Purchaser shall be relieved of all
liabilities under this Agreement and the Deposit shall be
returned to Purchaser.
(iv) Existing Mortgages. Seller shall have delivered to the Title
Company such releases or other instruments necessary to release of
record and beneficially any and all existing mortgages, deeds of
trust, financing statements or other security documents affecting the
Property (collectively, the "Existing Mortgages").
(v) Intentionally Omitted.
(vi) Leasing Brokerage and Property Management Agreements. Seller
shall have terminated any and all leasing brokerage and property
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management agreements with respect to the Property effective as of the
Closing. All responsibility for dealings with any such brokers,
including the payment of any claims (if deemed warranted by Seller)
shall be the sole responsibility of Seller. Seller agrees that it will
indemnify and hold Purchaser, its successors, assigns, partners,
agents and employees, harmless against any such claims and/or losses
which might be incurred by such indemnitees in connection with any
additional and/or contingent leasing commissions or fees or management
fees. The provisions of this subparagraph (vi) shall survive Closing.
(vii) Performance by Seller. Seller shall have complied with and
not be in breach of any of its covenants or obligations under this
Agreement.
(viii) Tenant Estoppels. Purchaser shall have received (A) a
tenant estoppel letter in the form attached hereto as Exhibit F from,
at a minimum, each of those tenants satisfying the requirements
described on Exhibit F-1 (or from such tenants and in such form as
required by Purchaser's mortgage lender), confirming the information
set forth in Section 4(d) hereof and in the Lease and Rent Schedule
attached hereto as Exhibit B for such tenants and containing no
material changes from the Rent Schedule, and (B) any subordination and
attornment agreements required by Purchaser's mortgage lender.
(b) Failure of Condition. In the event of the failure by the Closing
Date of any condition precedent set forth above, then Purchaser, at its
sole election, may (a) terminate this Agreement, in which event the Deposit
and any interest thereon shall be returned to Purchaser and, except as
otherwise provided in Paragraph 16 hereof upon a default by Seller, neither
party shall have any further obligations or liabilities to the other; or
(b) proceed to Closing; or (c) extend the Closing Date for such reasonable
time period as may be determined by Purchaser (but in no event for more
than one (1) month from the Closing Date then in effect) in order to permit
the satisfaction of any condition precedent not so fulfilled.
9. Seller's Deliveries. Seller shall execute, acknowledge and deliver to
Purchaser at the Closing the following documents, dated on the Closing Date:
(a) a special warranty deed, in form and substance satisfactory to
Purchaser and Title Company, conveying good and marketable fee simple title
to the Property, free and clear of all liens, encumbrances, easements and
restrictions of every nature and description, except for the Permitted
Exceptions;
(b) a xxxx of sale which shall convey to Purchaser good title to all
the Personalty, free and clear of all liens and encumbrances;
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(c) an affidavit setting forth that all of Seller's representations
and warranties are true and correct in all material respects on the Closing
Date;
(d) an assignment of the Leases and security deposits, together with
all originally executed Leases (to the extent in Seller's possession or
control), and the security deposits shall be paid to Purchaser;
(e) an assignment of Licenses and Service Contracts, if any, which are
to be assumed by Purchaser at Purchaser's request, together with the
originally executed Service Contracts (to the extent in Seller's possession
or control) which are to be assumed;
(f) a schedule updating the Rent Schedule and setting forth all
arrearages in rents and all prepayments of rents;
(g) copies of books, records, operating reports, files and other
materials related to the ownership, use and operation of the Property, to
the extent that any exist and are in the possession of Seller, which
obligation shall survive Closing;
(h) Tenant estoppel letters and subordination and attornment
agreements as required in Section 8(a)(viii);
(i) an original letter executed by Seller advising the tenants of the
sale of the Property to Purchaser and directing that rents and other
payments thereafter be sent to Purchaser or as Purchaser may direct;
(j) possession of the Property in the condition required by this
Agreement, and the keys therefore;
(k) the Certification of Non-foreign Status as provided in Treas. Reg.
1.1445-2T(b)(2)(iii)(B) or in any other form as may be required by the
Internal Revenue Code or the regulations issued thereunder;
(l) such other items and instruments as shall be required by the Title
Company in connection with the issuance of its title insurance policy to
Purchaser pursuant to Section 8(a)(iii) (including customary Seller's or
owner's affidavit) or as shall be reasonably requested by counsel to
Purchaser and consistent with the terms of this Agreement;
(m) any and all documents necessary to release the cash constituting
the Deposit from escrow with the Title Company and to have said cash
returned to Purchaser; and
(n) any other documents required by this Agreement to be delivered by
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Seller.
10. Purchaser's Performance. At Closing, simultaneously with the deliveries
of Seller pursuant to the provisions of Xxxxxxxxx 0, Xxxxxxxxx shall pay to
Seller the Purchase Price in the manner specified in Paragraph 2, whereupon the
Deposit, and any interest accrued thereon, shall be returned to Purchaser by the
Title Company or, at the option of Purchaser, shall be applied against the
payment of Purchase Price.
11. Settlement Charges; Prorations and Adjustments. Purchaser shall pay for
the title examination, the title insurance premium, notary fees and other such
charges incident to Closing. The cost of preparation of the deed for the
Property shall be borne by Seller. Any real estate transfer and recording fees
and taxes and documentary stamps in connection with this transaction shall be
borne equally by Seller and by Purchaser. Purchaser and Seller shall each pay
its own legal fees related to the preparation of this Agreement and all
documents required to settle the transaction contemplated hereby. In addition to
the foregoing, at the Closing, the following adjustments and prorations shall be
computed as of the Closing Date and the Purchase Price shall be adjusted to
reflect such prorations, as follows:
(a) Taxes. Real estate and personal property taxes shall be
apportioned as of the Closing Date.
(b) Assessments. All special assessments and other similar charges
which have become or may become a lien upon the Property or any part
thereof at the Closing Date, whether or not same are then past due or are
payable thereafter (in installments or otherwise), or which have been
confirmed by a public authority at the Closing Date, shall, at Purchaser's
option, either be paid in full by Seller at the Closing or credited against
the cash portion of the Purchase Price and assumed by Purchaser.
(c) Rent. Rent for the month of Closing and any month thereafter
collected by Seller prior to Closing shall be apportioned as of the Closing
Date. If any tenant is in arrears in the payment of rent on the Closing
Date, rents received from such tenant after the Closing shall be applied in
the following order of priority: (a) first, to the payment of current rent
then due; (b) second, to delinquent rent for any period after the Closing
Date; and (c) third, to delinquent rent for any period prior to the Closing
Date. Purchaser does not guarantee or undertake any obligation to xxx or
take other action for collection of arrearages in rents due from tenants as
of the Closing Date; provided, however, Seller shall have the right to
pursue and collect such delinquent rents from such tenants. If rents or any
portion thereof received by Seller or Purchaser after the Closing Date are
payable to the other party by reason of this allocation, the appropriate
sum, less a proportionate share of any reasonable attorneys' fee, costs and
expenses of collection thereof, shall be promptly paid to the other party,
which obligation shall survive the Closing.
-12-
If any tenants are required to pay percentage rents, escalation
charges for real estate taxes, operating expenses, cost-of-living
adjustments or other charges of a similar nature ("Additional Rents") and
any Additional Rents are collected by Purchaser after the Closing which are
attributable in whole or in part to any period prior to the Closing, then
Purchaser shall promptly pay to Seller's's proportionate share thereof,
less a proportionate share of any reasonable attorneys' fees, costs and
expenses of collection thereof, if and when the tenant paying the same has
made all payments of rents and Additional Rent then due to Purchaser
pursuant to the tenant's Lease, which obligation shall survive the Closing.
(d) Miscellaneous. All other charges and fees customarily prorated and
adjusted in similar transactions, including utilities, insurance premiums
and charges for Service Contracts to be assumed by Purchaser, shall be
prorated as of the Closing Date. In the event that accurate prorations and
other adjustments cannot be made at Closing because current bills are not
obtainable or the amount to be adjusted is not yet ascertainable (as, for
example, in the case of utility bills) the parties shall prorate on the
best available information, subject to further adjustment promptly upon
receipt of the final xxxx or upon completion of final computations. Seller
agrees that an appropriate amount in respect of water consumption charges
may be held in escrow by the Title Company in connection with its issuance
of a title insurance policy to Purchaser. Seller shall use its best efforts
to have all utility meters read on the Closing Date so as to accurately
determine its share of current utility bills. If any claims or liabilities
are asserted at any time subsequent to Closing against the Property or the
Purchaser, which were not taken into consideration for adjustment
hereunder, including without limitation, claims by governmental agencies,
and if such claims or liabilities are based upon or arise out of any
occurrence prior to Closing or any act or omission by Seller, Seller shall
satisfy such claims or liabilities and shall indemnify and hold Purchaser
harmless therefrom.
12. Risk of Loss. The risk of loss or damage to the Property by fire or
other casualty until recordation of the deed of conveyance shall be borne by
Seller. If prior to Closing (i) condemnation proceedings are commenced against
all or any portion of the Property, or (ii) if the Property is damaged by fire
or other casualty to the extent that the cost of repairing such damage shall be
One Hundred Thousand Dollars ($100,000.00) or more, or (iii) if the Property is
damaged by an uninsured risk; or (iv) the Property becomes subject to litigation
which may deprive Purchaser of any material benefit to which it would become
entitled pursuant to this Agreement, then Purchaser shall have the right, upon
notice in writing to the Seller delivered within thirty (30) days after actual
notice of such condemnation or fire or other casualty or litigation, to
terminate this Agreement, and thereupon the parties shall be released and
discharged from any further obligations to each other and the discharged from
any further obligations to each other and the Deposit shall be refunded to
Purchaser. If Purchaser does not elect to terminate this Agreement or in the
event of fire or other casualty not giving rise to a right to terminate this
Agreement by Purchaser, this Agreement shall continue in full
-13-
force and effect and the Purchase Price shall not be reduced except as
hereinafter set forth, but Purchaser shall be entitled to an assignment of all
of Seller's share of the proceeds of fire or other casualty insurance and rent
insurance proceeds payable with respect to the period after Closing or of the
condemnation award, as the case may be, and Seller shall have no obligation to
repair or restore the Property; provided, however, that the Purchase Price shall
be reduced by an amount equal to the sum of (a) the "deductible" applied by
Seller's insurance policy, or (c) if Seller is self-insured, the cost of
repairing such damage. Purchaser shall have the right to participate in the
negotiation and settlement of any litigation, casualty or condemnation-related
claim.
13. Inspection of Property.
(a) Purchaser's Right of Inspection. Purchaser shall have the right,
at its own risk, cost and expense, at any time or times prior to Closing,
to enter, or cause its agents or representatives to enter, upon the
Property for the purpose of making surveys, or any tests, investigations
and/or studies (lien free) relating to the Property or Purchaser's intended
acquisition thereof which Purchaser deems appropriate, in its sole
discretion, during reasonable hours and upon reasonable notice to Seller.
Purchaser shall further have complete access to all documentation,
agreements and other information in the possession of Seller related to the
ownership, use and operation of the Property, to the extent it is readily
available to Seller, and shall have the right to make copies of same.
Purchaser agrees to repair any damage to the Property that may be caused by
its inspections and to indemnify and defend Seller and hold Seller harmless
against any property damage or physical injury suffered as a result of such
inspections.
(b) Feasibility Period. Any other provisions of this Agreement to the
contrary notwithstanding, Purchaser may, prior to the expiration of sixty
(60) days after the Acceptance Date (such 60-day period herein referred to
as the "Feasibility Period"), cause at Purchaser's sole cost and expense
(lien free), such boring, engineering, economic, water, sanitary and storm
sewer, utilities, topographic, structural, environmental and other tests,
investigations, market studies and other studies as Purchaser shall elect.
In the event that any of such tests, investigations and/or studies
indicate, in Purchaser's sole discretion, that Purchaser's plans for the
Property would not be feasible for any reason, then Purchaser shall have
the right, at its sole election on or before the last day of the
Feasibility Period, to terminate this Agreement by giving written notice
thereof to Seller, in which event this Agreement shall terminate, the
Deposit shall be returned to Purchaser and neither party shall have any
further liabilities or obligations to each other, and Purchaser shall
provide copies of third-party studies to Seller, if permitted to do so by
the parties who prepared those studies.
(c) Audit. Seller hereby agrees to allow its books and records related
to the Property to be audited (at Purchaser's sole expense) by an
independent, certified public accounting firm selected by Purchaser, and
Seller will cooperate and cause its
-14-
employees and other agents to cooperate in such auditing process. Purchaser
shall provide Seller with prior notice of such audit.
14. Indemnifications.
(a) Indemnification by Seller. Seller hereby indemnifies and agrees to
defend and hold harmless Purchaser and its partners and subsidiaries, and
any officer, director, employee or agent of any of them, and their
respective successors and assigns, from and against any and all claims,
expenses, costs, damages, losses and liabilities (including reasonable
attorneys' fees) which may at any time be asserted against or suffered by
Purchaser or the Property, or any part thereof, whether before or after the
Closing Date, as a result of, on account of or arising from (a) any breach
of any covenant, representation, warranty or agreement on the part of
Seller made herein or in any instrument or document delivered pursuant to
this Agreement, and/or (b) any obligation, claims, suit, liability,
contract, agreement, debt or encumbrance or other occurrence (other than
encumbrances expressly approved by Purchaser) created, arising or accruing
prior to the Closing Date, regardless of when asserted and relating to the
Property or its operations.
(b) Intentionally Omitted.
(c) Indemnification by Purchaser. Purchaser hereby indemnifies and
agrees to defend and hold harmless Seller and its partners and
subsidiaries, and any officer, director, employee or agent of any of them,
and their respective successors and assigns, from and against any and all
claims, expenses, costs, damages, losses and liabilities (including
reasonable attorneys' fees) which may at any time be asserted against or
suffered by Seller as a result of, on account of or arising from (a) any
breach of any covenant, representation, warranty or agreement on the part
of Purchaser made herein or in any instrument or document delivered
pursuant to this Agreement, and/or (b) any obligation, claims, suit,
liability, contract, agreement, debt or encumbrance or other occurrence
created, arising or accruing after the Closing Date and relating to the
Property or its operations.
15. Brokerage Commission. Purchaser and Seller each recognize First Capital
Realty, Inc. (the "Broker") as the sole agent for this transaction. Any
commission due the Broker in connection with this transaction shall be paid by
Purchaser pursuant to a separate agreement with each Broker. Seller shall not be
obligated to pay for any commission or fee to the Broker. Seller and Purchaser
represent and warrant to each other that no other brokerage fee or real estate
commission is or shall be due or owing in connection with this transaction, and
Seller and Purchaser hereby indemnify and hold the other harmless from any and
all claims of any other broker or agent so claiming based on action or alleged
action of the other.
16. Default Provisions; Remedies.
-15-
(a) Purchaser's Default. If Purchaser fails to consummate the purchase
and sale contemplated herein when required to do so pursuant to the
provisions hereof, then the Title Company shall deliver the Deposit to
Seller as full and complete liquidated damages, and as the exclusive and
sole right and remedy of Seller, whereupon this Agreement shall terminate
and neither party shall have any further obligations or liabilities to any
other party.
(b) Seller's Default. Except for any breaches waived in writing by
Purchaser, if Seller has breached any of its covenants or obligations under
this Agreement or has failed, refused or is unable to consummate the
purchase and sale contemplated herein by the Closing Date or if any of the
representations and warranties made by Seller under this Agreement shall be
inaccurate or incorrect, then Purchaser shall be entitled to (i) waive such
breach, default or failure, (ii) extend the Closing for such reasonable
time or times (but in no event for more than one (1) month from the Closing
Date then in effect) as may be necessary in order to enable Seller to
remedy such breach, default or failure, (iii) terminate this Contract and
obtain the return of the Deposit, and/or (iv) pursue an action for specific
performance. In the event that Purchaser elects to pursue specific
performance and Purchaser prevails in such litigation, Seller shall be
obligated to pay all reasonable legal fees, costs and expenses incurred by
Purchaser.
17. Miscellaneous Provisions.
(a) Completeness and Modification. This Agreement (together with
Exhibits A to I attached hereto, all of which shall be attached within
seven (7) days of the Acceptance Date, to the extent not attached as of the
Acceptance Date) with respect to the transactions contemplated herein, and
it supersedes all prior discussions, understandings or agreements between
the parties. This Agreement shall not be modified or amended except by an
instrument in writing signed by all of the parties hereto.
(b) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, and their respective successors and
assigns.
(c) Assignment. This Agreement shall not be assignable by Purchaser
without the consent of Seller, provided that this Agreement may be assigned
at Closing without Seller's consent to an entity controlled by, controlling
or under common control with Purchaser. This Agreement shall not be
assignable by Seller.
(d) Waiver; Modification. Failure by Purchaser or Seller to insist
upon or enforce any of its rights hereto shall not constitute a waiver or
modification thereof.
(e) Governing Law. This Agreement shall be governed by and construed
under the laws of the Commonwealth of Virginia.
-16-
(f) Headings. The headings are herein used for convenience or
reference only and shall not be deemed to vary the content of this
Agreement or the covenants, agreements, representations and warranties
herein set forth, or the scope of any provision hereof.
(g) Continuing Documentation and Access. From and after Closing,
Seller shall afford Purchaser reasonable access to any and all information
in its possession concerning the ownership, use and operation of the
Property (including the right to copy same at the expense of Purchaser) for
purposes of any tax examination or audit or other similar purpose, subject
to the agreements of Purchaser concerning confidentiality set forth herein.
(h) Intentionally Omitted.
(i) Counterparts. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required; it shall be sufficient
that the signature of, or on behalf of, each party, or that the signatures
of the persons required to bind any party, appear on one or more such
counterparts. All counterparts shall collectively constitute a single
agreement.
(j) Notices. All notices, requests, consents and other communications
hereunder shall be in writing and shall be personally delivered or mailed
by first-class registered or certified mail, return receipt requested,
postage prepaid or delivered by commercial courier, telecopy or overnight
courier (e.g., Federal Express), against receipt, to the addresses
indicated below:
(i) if to Purchaser:
First Washington Realty Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxxxxx, Esquire
First Washington Realty Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
-17-
(ii) if to Seller:
VOL Properties Corporation
c/o Ares Realty Capital, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
with a copy to:
c/o Xxxxxxx Xxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Telecopy: (000) 000-0000
Such notice shall be deemed given ont he date of receipt by the
addressee or the date receipt would have been effectuated if delivery
were not refused. Each party may designate a new address by written
notice to the other in accordance with this Paragraph 17(j).
(k) Business Days. A "business day" shall be Mondays through Fridays,
less and expecting all legal holidays observed by the United States
Government or the Government of the State of Maryland. Any date specified
in this Agreement which does not fall on a business day shall be
automatically extended until the first business day after such date.
-18-
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase Agreement as of the day and year first written above.
PURCHASER:
----------
FIRST WASHINGTON REALTY
LIMITED PARTNERSHIP
By: First Washington Realty Trust, Inc.,
WITNESS: Its general partner
By: /s/
----------------------------------- --------------------------------
Xxxxxxx X. Xxxxx
President
Date of execution by
Purchaser: September 27, 1996
SELLER:
-------
WITNESS: VOL PROPERTIES CORPORATION
By: /s/
----------------------------------- ---------------------------------
Name:
Title:
Date of execution by
Seller: October 3, 1996
-19-
ACKNOWLEDGE BY TITLE COMPANY
The undersigned Title Company executes this Real Estate Purchase Agreement
solely to acknowledge receipt of the Deposit pursuant to Paragraph 3 hereof and
to evidence its agreement to serve as escrow agent pursuant to the terms of the
foregoing Agreement.
COMMERCIAL SETTLEMENTS, INC.
By: /s/
----------------------------------- ---------------------------------
Name:
Title:
Date: October 7, 1996
-------------------------------
-20-
LIST OF EXHIBITS
EXHIBIT A. Legal Description of Land Recitals
EXHIBIT B. Leases and Rent Schedule Section 5(d)
EXHIBIT C. Service Contracts Section 5(e)
EXHIBIT D. Tax Bills Section 5(f)
EXHIBIT E. Intentionally Omitted
EXHIBIT F. Form of Tenant Estoppel Section 5(i)
EXHIBIT F-1 Tenant Estoppels Section 8(a)(viii)
EXHIBIT G. Intentionally Omitted
EXHIBIT H. Operating Statements and Operating Budget Section 5(p)
EXHIBIT I. Personal Property Section 5(r)
[Seller to Attach Foregoing at Acceptance of this Agreement]
EXHIBIT A
LEGAL DESCRIPTION OF LAND
EXHIBIT B
LEASES AND RENT SCHEDULE
EXHIBIT C
SERVICE CONTRACTS
EXHIBIT D
TAX BILLS
EXHIBIT E
INTENTIONALLY OMITTED
EXHIBIT F
[Form of Tenant Estoppel]
ESTOPPEL CERTIFICATE
, 199
First Washington Realty Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Re: Four Mile Fork Shopping Center
Lease dated 19 , with [name of Tenant]
----------------------------------------------------------
Gentlemen:
Please be advised that the undersigned tenant hereby certifies as of
the date hereof as follows with respect to the Lease:
Name of Tenant:
Description of Leased Premises:
Date of Commencement of Lease:
Date of Termination of Lease:
Options to Renew:
Base Rental: Annual Rental of $ , payable monthly in advance.
-------------
Real Estate Tax Charges: pro rata: yes no.
Percentage Rent: % of Gross Receipts over $
------
Common Area Maintenance Charges: pro rata: yes no.
Tenant in possession of the premises under the Lease?: Yes
The Lease is unmodified and in full force and effect except for modifications,
listed by number and date on Exhibit A attached hereto.
Amount of rent paid in advance: $
Amount of Security Deposit: $
-i-
Compliance with Construction Requirements: Landlord has complied with all
construction requirements of Tenant, and Tenant has accepted all of the leased
premises under the Lease.
Tenant has not made any claims against Landlord and has no knowledge of any
uncured default on the part of Landlord (If there is knowledge of any uncured
default, please note and attach separate sheet).
Tenant's Right to Purchase: Tenant has no option or right in the nature of a
right of first refusal to purchase or otherwise acquire any interest in the
leased premises.
Tenant's Right of Premature Termination or Option to Renew: Tenant has no right
to premature termination and no right or option to renew or extend the term
beyond its present term and no option to lease additional space, except as
expressly set forth in the Lease.
TENANT:
[Name of Tenant]
By:
Name:
Title:
STATE OF )
) ss:
COUNTY OF )
Signed and sealed in my presence this day of , 199 .
---- ------------ ---
Notary Public
[SEAL]
My Commission Expires:
-ii-
EXHIBIT F-1
TENANT ESTOPPELS
o Safeway 31,238 s.f.
o CVS/Pharmacy 11,025 s.f.
o Fashion Bug 7,000 s.f.
o Merchant's Tire 5,080 s.f.
54,343 s.f.
o Tenant's occupying at least 80% of
the remaining space at the Property.
[(96,720 s.f. - 54,343 s.f.) x 80% = 33,902 s.f.]
-iii-
EXHIBIT G
INTENTIONALLY OMITTED
EXHIBIT H
OPERATING STATEMENTS AND OPERATING BUDGET
EXHIBIT I
PERSONAL PROPERTY
NONE
