Exhibit 10.114
Revised -- January 21, 2004
Xxx Xxxxxxx and Xxxx Xxxxxxxxx (Sellers)
Xxxxxxx & Associates
0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(000) 000-0000
RE: PARADISE VALLEY MARKETPLACE
PHOENIX, AZ
Dear Xx. Xxxxxxx and Xxxxxxxxx:
This letter represents this corporation's offer to purchase the Paradise
Valley Marketplace Shopping Center with approximately 82,258 net rentable square
feet, situated on approximately 10 acres of land, located at the northwest
corner of Xxxxx Road and Xxxx Avenue, Phoenix, AZ, as more particularly
described upon EXHIBIT A, attached hereto and made a part hereof (the
"Property").
The Property shall include all the land and buildings and common
facilities, as well as all of Seller's interest in all personalty within the
buildings and common areas, supplies, landscaping equipment, and any other items
presently used on the site and belonging to owner, and all of Seller's interest
in all intangible rights relating to the Property (including Seller's rights, if
any, in and to the name of the Property, "Paradise Valley Marketplace").
This corporation or its nominee will consummate this transaction on the
following basis:
1. The total purchase price shall be $28,510,000.00 all cash, plus or
minus prorations, WITH NO MORTGAGE CONTINGENCIES, to be paid at
CLOSING 30 BUSINESS DAYS following the acceptance of this agreement
(see Paragraph 10).
Purchaser shall allocate the land, building and depreciable
improvements prior to closing.
2. There are no real estate brokerage commissions involved in this
transaction, except as otherwise paid or to be paid by Seller pursuant
to a separate written agreement (Seller hereby agreeing to indemnify,
defend and hold harmless Buyer from and against any claim related to a
broker commission due and owing to any party through Seller).
3. Seller represents and warrants (to the best of the Seller's
knowledge), the Property is leased to the tenants described on Exhibit
A on triple net leases covering the building and all of the land,
parking areas, reciprocal easements and REA/OEA agreements (if any),
for the entire terms and option periods. Any monetary concessions
given to any tenants that extend beyond the closing day shall be
settled at closing by Seller giving a full cash credit to Purchaser
for any and all of those concessions.
4. Seller warrants and represents (to the best of the Seller's actual
knowledge), that the Property is now and as of closing shall be in
full compliance with Federal, State, City and County ordinances and
environmental laws, and no one has a lease that exceeds the lease term
stated in said leases, nor does anyone have an option or right of
first refusal to purchase or extend (except as provided in the lease),
nor is there any contemplated nor current condemnation of any part of
the Property, nor are there any current or contemplated assessments.
For the purposes hereof, Seller's actual knowledge shall be deemed to
be limited to the actual knowledge of Xxx Xxxxxxx and Xxxxxx Xxxxxxx,
Managers of Seller.
JANUARY 21, 2004
PAGE 2
5. Seller warrants and represents (to the best of the Seller's
knowledge), that during the term of the leases (other than any
outparcel tenants) the tenants and guarantors are responsible for and
pay all operating expenses relating to the Property on a prorata
basis, including but not limited to, real estate taxes, REA/OEA
agreements, if any, utilities (except as separately metered),
insurance, and all common area maintenance.
Prior to closing, Seller shall not enter into or extend any agreements
without Purchaser's approval and any contract presently in existence
not accepted by Purchaser shall be terminated by Seller. Any work
presently in progress on the Property shall be completed by Seller
prior to closing or as soon as reasonably possible following Closing,
but in no event later than August 31, 2004. Seller agrees to complete
the construction of the Property Improvements (as defined upon Exhibit
B) in accordance with the Seller's Development Covenants attached
hereto as Exhibit B, and made a part hereof.
6. Five (5) days prior to closing Seller shall furnish Purchaser with
estoppel letters on the forms required by such tenants' leases or
otherwise reasonably acceptable to Purchaser from Whole Foods, Soma
Restaurant, Washington Mutual, Men's Wearhouse, and Beauty Brands
(collectively, the "Required Estoppels"), together with no less than
85% of all (after delivery of the Required Estoppels) Property tenants
and guarantors under leases (measured by square footage of respective
demised premises)(with a Seller estoppel being then delivered for the
difference between actual tenant estoppels and 100% estoppel
delivery), and all parties to reciprocal and/or operating easement
agreements, if applicable, affecting the Property.
7. Seller is responsible for payment of any LEASING BROKERAGE FEES or
commissions which are currently due any leasing brokers for the
existing lessee stated above, as such sums are described upon the Rent
Roll attached hereto as Exhibit A, and made a part hereof. Seller
hereby represents and warrants to Purchaser that there are no leasing
commissions due and payable by reason of a renewal of any Property
lease.
8. Seller will use its commercially reasonable efforts to supply to
Purchaser prior to closing a certificate of insurance from the tenants
and guarantors in the form and coverage pursuant to the Property
leases.
9. Seller shall supply to Purchaser 10 days prior to closing, and
Purchaser shall pay for at closing, a recertification of Seller's
Phase I environmental audit which must be addressed to Purchaser and
Purchaser's lender, if any (the "Phase I"). The Phase I must be
acceptable to Purchaser and shall verify that there are no asbestos,
PCBs, or hazardous substance in the buildings and/or on or under the
Property.
10. The above sale of the Property shall be consummated by conveyance of a
special or limited warranty deed from Seller to Purchaser's designee,
with the Seller paying one-half (1/2) and Purchaser paying one-half
(1/2) of any city, state, or county transfer taxes for the closing,
and Seller agrees to cooperate with Purchaser's lender, if any, and
the money lender's escrow.
11. The closing shall occur through Chicago Title & Trust Company, in
Chicago, Illinois with Xxxxx Xxxxxx as Escrowee, 30 business days
following acceptance of this agreement, at which time title to the
Property shall be free and clear of all liens and encroachments, and
an ALTA form B owner's title policy with complete extended coverage
and required endorsements, waiving off all new construction, including
3.1 zoning including parking and loading docks, and insuring all
improvements as legally conforming uses and not as non-conforming or
conditional uses, paid by Seller, shall be issued, with all warranties
and representations being true now and at closing and surviving the
closing for a period of six (6) months only, and each party shall be
paid in cash their respective credits, including, but not limited to,
security deposits, rent and expenses, and to the extent such taxes are
not paid the tenants at year-end, a proration of real estate taxes
based on the most recent bill or latest assessment, or the estimated
assessments for 2003 and 2004 using the Assessor's formula for these
sales transactions, with a later reproration of taxes when the actual
bills are received. At closing, no credit will be given to Sellers for
any past due, unpaid or delinquent rents.
JANUARY 21, 2004
PAGE 3
12. In the event that space designated as other than credit tenants on the
Rent Roll is less than 95% occupied and 95% gross rent collected, the
Seller shall escrow an amount equal to the rent and all reimbursable
expenses for any such non-credit vacancy and any non-credit tenant not
paying full rent current based on the attached rent roll up to 95% of
the income to be generated by all tenant spaces except the credit
tenants (each of which credit tenants shall then be paying rent and
recoverable expenses on a current basis) identified on the attached
Rent Roll (Exhibit A). The amount of the escrow shall be equal to one
year of these payments. As an example, if 1,000 square feet (below the
95% occupancy requirement described above) were vacant or not paying
rent at closing and the rent for the space was $10.00 per square foot
and the CAM, tax and insurance were an additional $2.00 per square
foot, then the escrow would be equivalent to $12.00 x 1,000 square
feet, or $12,000. Seller shall be responsible for leasing all space
involved with the above escrow and shall be responsible for all
leasing commissions, tenant improvements and all other costs
associated with placing a third party tenant into said space. Once a
tenant is acceptable to Purchaser is placed into said space and is
paying full rent current, then the Seller shall be paid from the
escrow any amount of funds unused for that space.
13. This offer is subject to Seller delivering to Purchaser, prior to
closing, an appraisal of the Property prepared by an MAI or other
qualified appraiser, acceptable to Purchaser or Purchaser's lender, if
any, all at Purchaser's cost.
14. Neither Seller (Landlord) or any tenant and guarantor is now, nor at
the time of closing shall be, in default on any lease or agreement
(beyond any applicable cure period), nor is there any threatened (to
the best of Seller's actual knowledge) or pending litigation.
15. Seller warrants and represents that he has paid all unemployment taxes
to date.
16. Prior to closing, Seller shall furnish to Purchaser copies of all
guarantees and warranties which Seller received from any and all
contractors and sub-contractors pertaining to the Property. Prior to
closing, Seller, at its sole cost and expense, shall cause all roofing
material and service warranty providers to acknowledge the assignment
of the respective warranties to Purchaser's nominee.
17. If Purchaser elects to obtain an updated survey, ten (10) days prior
to closing, Purchaser will obtain a current Urban ALTA/ACSM spotted
survey of the Property in accordance with the Development Covenants
and the minimum standard detail requirements for ALTA/ACSM Land Title
surveys jointly established and adopted by ALTA and ACSM in 1999 and
includes all Table A optional survey responsibilities and acceptable
to Purchaser and the title company.
18. Seller agrees that prior to closing it shall put all vacant spaces
into so-called "vanilla box" rentable condition and ready for a new
tenant to occupy immediately in accordance with all applicable laws,
codes, etc., including all requirements for a certificate of occupancy
for said space. Alternatively, Seller may elect to escrow at closing,
pursuant to a mutually acceptable escrow agreement, an amount equal to
the cost necessary to bring such vacant space into a "vanilla box"
condition, such amounts to be available for future leasing
requirements and ultimately, returnable to Seller if such vacant space
does not require future improvements.
19. Xxxxxx agrees to immediately make available and disclose all
information that Purchaser needs to evaluate the Property, including
all inducements, abatements, concessions or cash payments given to
tenants, and for CAM, copies of the bills. Seller agrees to cooperate
fully with Purchaser and Purchaser's representatives to facilitate
Purchaser's evaluations and reports, including at least a one-year
audit of the books and records of the Property.
20. Purchaser has deposited the sum of One Hundred Thousand and no/100
Dollars ($100,000.00) with Chicago Title as an xxxxxxx money deposit
to ensure Purchaser's obligations hereunder. In the event of a default
in Purchaser's obligations under this agreement, Seller shall be
entitled to receive the xxxxxxx money deposit as liquidated
JANUARY 21, 2004
PAGE 4
damages in satisfaction of all of Seller's claims, the parties
acknowledging and agreeing that actual damages are and will be
difficult to ascertain.
This offer is, of course, predicated upon the Purchaser's review and
written approval prior to closing of the existing leases, new leases, lease
modifications (if any), all tenant correspondence, REA/OEA agreements, tenants'
and guarantors' financial statements, sales figures, representations of income
and expenses made by Seller, site inspection, environmental, appraisal, etc.,
and at least one year of audited operating statements on the Property is
required that qualify, comply with and can be used in a public offering.
If this offer is acceptable, please sign the original of this letter and
initial each page, keeping copies for your files and returning the original to
me by January 29, 2004.
Sincerely,
ACCEPTED INLAND REAL ESTATE ACQUISITIONS, INC.
or nominee
By: /s/ Xxxxxx X. Xxxxxxx, Manager /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Date: 1/29/04 Xxxxxx X. Xxxxxxx
-------------------------------- Sr. Vice President
Exhibit B
Seller's Development Covenants
Pursuant to the terms of Agreement Section 5, the following described provisions
shall apply to, and shall set forth the development covenants, and development
requirements and obligations of Seller, among other matters, all as described
herein.
A. "Completion of the Improvements" shall include satisfaction of the
following described requirements: (1) Seller shall have delivered to
Purchaser a final certificate of occupancy for each tenant space
included within the Property, and (2) certificates of substantial
completion (subject only to an attached punch list) as to Seller's
work for construction of the Improvements (as hereinafter defined) and
under any tenant lease shall have been issued and signed by the
project architect stating that: (A) Seller's work has been
substantially completed (subject only to an attached punch list) in
accordance with the plans and specifications reasonably approved by
Purchaser and required to bring the vacant space to a vanilla box
condition (the "Plans and Specifications") for the construction of the
improvements therein described (the "Improvements"), and (B) Seller's
work has been completed in accordance with the terms, conditions and
provisions of the terms of this Agreement, and (C) all applicable
governmental rules, regulations and requirements have been satisfied,
and (3) subject to completion of "punch list" items, each tenant under
Leases shall have accepted, in writing, the respective demised
premises "as is," and shall have opened for business to the public
and taken total possession and commenced rental payments per the
leases, including applicable reimbursements for maintenance,
insurance and real estate taxes in accordance with the terms of the
respective Leases, and (4) no tenant under Leases shall have filed for
bankruptcy, insolvency, or reorganization protection pursuant to any
statute either of the United States or any state, and (5)
intentionally deleted, and (6) Seller shall have delivered to the
Title Company lien waivers, and the Title Company shall have issued
its Title Policy in favor of Purchaser with all matters related to new
construction waived and/or insured over.
B. In addition to the foregoing, the following provisions shall apply to
the performance of Seller's work, and Completion of the Improvements,
and satisfaction of the Post-Closing Matters (as hereinafter defined):
a. To the fullest extent permitted by law, Seller hereby agrees to
indemnify, defend and hold Purchaser and its agents and
employees, harmless from and against any and all causes of
action, damages, losses, demands, judgments, liens, claims,
costs, and expenses (including reasonable attorney's fees and
court costs) which arise or occur in connection with: (1) any
matter related to bodily injury,
death or property damage arising in the performance of Xxxxxx's
work, and (2) any mechanics lien claim arising in the performance
of Seller's work, and (3) any matter related to the payment of
money owed for the obligations of Seller as described by the
Post-Closing Matters.
b. Seller, or Seller's contractor, shall purchase and maintain, in a
company or companies lawfully authorized to do business in the
State of Arizona, comprehensive general liability insurance and
insurance for protection from claims under worker's or xxxxxxx'x
compensation acts and other employee benefit acts which are
applicable, claims for damages because of bodily injury,
including death, and from claims for damages, other than for the
Seller's work itself, to property which may arise out of or
result from the performance of Seller's work, whether actually
performed by Seller or a contractor/subcontractor or anyone
directly or indirectly employed by any of them. This insurance
shall be written for not less than $2,000,000.00 and shall
include contractual liability insurance applicable to Seller's
obligations.
C. The following described developmental covenants and warranties shall
apply to Seller, the Property, the performance by Seller of Seller's
work, and Completion of the Improvements:
a. Seller shall provide and pay for labor, materials, equipment,
tools, construction equipment and machinery, water, heat,
utilities, transportation and other facilities and services
necessary for the proper execution and delivery of Seller's work,
whether temporary or permanent.
b. Seller covenants and agrees that Seller shall be solely liable
and responsible for completion of Seller's work and any and all
"punch list" items listed in the architects'/engineers'
certificates of substantial completion and Seller shall assign to
Purchaser all warranties in respect of Seller's work (including
the warranty of Seller's general contractor for Seller's work),
and Seller shall also be liable for correction of Seller's work
not found to be in accordance with the Plans and Specifications
and construction "call-backs" for one (1) year from and after the
date of Completion of the Improvements (the "Post Closing
Matters").
