05/15/98/Rogers,Arkansas/Agreement to Sell and Purchase Real Estate
EXHIBIT 10.3
AGREEMENT TO SELL AND PURCHASE REAL ESTATE
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THIS AGREEMENT TO SELL AND PURCHASE REAL ESTATE, hereinafter referred to as
"the Agreement" is made and entered into this the 18 day of May, 1998, by and
between NATIONAL HOME CENTERS, INC., an Arkansas corporation having its
principal office and place of business in Washington County, Arkansas,
hereinafter referred to as "Seller", and XXXX'X HOME CENTERS, INC., a
corporation having its principal office and place of business in Xxxxxx County,
North Carolina, and hereinafter referred to as "Buyer".
W I T N E S S E T H
WHEREAS, Seller has offered to sell and Buyer has agreed to purchase the
Premises described hereinafter subject to the terms of this agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions contained herein, the sufficiency of which consideration is
acknowledged by all parties hereto, IT IS HEREBY AGREED AS FOLLOWS:
1. DESCRIPTION. The "Property" which is to be purchased by Buyer includes
the Real Property, the Tangible Personal Property and the Intangible Property
located in Xxxxxx, Xxxxxx County, Arkansas and are particularly described as
follows:
(a) A tract of land containing approximately 14.77 acres in Xxxxxx
County, Arkansas, together with improvements thereon consisting of an
approximately 165,000 square foot building, plus an approximately 40,000 square
foot enclosed and attached greenhouse and lawn and garden area located at the
Xxxxxxxxx Xxxxxx xx Xxxxxxx 00X and U.S. Highway 71, Xxxxxx, Xxxxxx County,
Arkansas, more particularly described upon the attached Exhibit A which is
incorporated herein by reference, and together with any other improvements and
personal property currently located thereon and all and singular the rights,
privileges, advantages, reversionary interests and appurtenances belonging or in
anywise appertaining to the Premises, as well as all easements in or upon the
Premises and all roads, alleys, waters, streets, or rights-of-way bounding the
Premises (to the centerline thereof), and rights of ingress and egress thereto,
as well as any and all utility capacity and usage rights and easements, if any
(and to the extent transferable), including, without limitation, water,
drainage, stormwater detention and sanitary sewer, and other utility capacities
and facilities and rights relating thereto, affecting or applicable to the
Premises currently owned by Seller, as well as Seller's right, title and
interest in and to all zoning and utility capacity applications, if any (and to
the extent transferable), made to any governmental authority and all other
inchoate rights affecting or applicable to the Premises (including, without
limitation, any fees relating thereto and the benefits resulting therefrom) and
one hundred percent (100%) of the use and control of the surface of the Premises
free and clear of the rights of the owners of any mineral interests or the
lessees of any surface lease relating to the Premises (hereinafter referred to
as the "Real Property" or the "Premises"). This description is subject to a
boundary survey to be obtained by Buyer pursuant to the terms hereof.
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(b) All of Sellers right, title and interest in all appliances,
fixtures, equipment, machinery, supplies, and furniture at the Premises,
including but not limited to that property described and listed on Exhibit B
attached hereto, and all other personal property located on or about the Land
and the Improvements or used exclusively in the operation and maintenance
thereof (the "Tangible Personal Property"). The Tangible Personal Property shall
not include however, the property and assets described and listed on Exhibit C
attached hereto (the "Excluded Personal Property").
(c) All of Seller's right, title and interest in all intangible
property (the ("Intangible Property"), if any, pertaining to the Land,
Improvements, or the Tangible Personal Property or the use thereof, including,
without limitation, all Contracts and Warranties, as such terms are defined in
Section 4.2 hereof, all transferable telephone exchange numbers, construction
plans and specifications, designs, engineering plans and studies, surveys,
transferable permits and licenses related to the use and operation of the
Premises, floor plans and landscape plans, to be inventoried and listed in
written form to be attached to the assignment document to be delivered by Seller
to Buyer at Closing.
2. SURVEY AND TITLE INSURANCE.
(a) Within thirty (30) days of the date hereof Buyer shall obtain,
with a copy to be delivered to Seller, at Buyer's cost, an on-the-ground,
staked, boundary survey map of the Premises drawn in accordance with Buyer's
Survey Requirements which are attached hereto and labeled Exhibit D and prepared
by a surveyor or surveyors approved by Buyer (the "Survey"). The metes and
bounds description of the Premises resulting from the Survey, if and as accepted
by Buyer, shall upon such acceptance supersede and replace the description of
the Premises set forth in Paragraph (1) hereof for all purposes hereunder and
shall be the description of the Premises used in the General Warranty Deed, the
Title Commitment (as hereinafter defined) and Owner Policy of Title Insurance to
be furnished hereunder. Additionally, said metes and bounds description should
appear on the survey plat and be incorporated therein. The area defined by the
Survey of the Premises shall contain a minimum of 14.77 acres as delineated on
the attached Exhibit A.
(b) Title Insurance: Buyer shall be under no obligation to purchase
the Premises and other property hereunder from Seller unless Buyer can obtain
from the Title Company as hereinafter designated in Paragraph 4 hereof, at
Buyer's cost, a commitment and policy for satisfactory title insurance for the
subject Premises and the results of a search (including copies of the
instruments referenced in such search and affecting the Premises and personalty)
of the U.C.C. records of the Secretary of State of Arkansas and the U.C.C.
records of the county in which the Premises is situated (the "Title
Commitment"). Buyer shall obtain and review the Commitment from the Title
Company within thirty (30) days following the execution hereof. The Commitment
shall identify the Premises and easements appurtenant thereto by the legal
description(s) set forth on the Survey (as defined in Paragraph 2[a] above). The
Title Commitment shall be accompanied by legible copies of all exceptions to
title referred to therein. Seller hereby agrees to provide to the Title Company
any abstracts of title covering the Premises and/or any other form of title
evidence it may have obtained, including any prior attorney's title opinion or
any prior
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owner's title insurance policy. Buyer's decision as to whether "satisfactory"
title insurance can be obtained shall be final and shall not be subject to
question by Seller.
Buyer shall have a period of fifteen (15) days from receipt of the
Title Commitment, Survey and the documents referred to therein, whichever is
later, in which to review such items and to deliver to Seller in writing such
objections as Buyer may have to the Title Commitment, Survey, or the other
documents referred to therein. Any matters in the Title Commitment, or the
documents referred to therein to which Buyer does not object within the fifteen
(15) day period shall be deemed approved by Buyer and shall constitute
"Permitted Exceptions" (herein so called). In the event Buyer does timely object
to the Title Commitment, or the documents referred to therein as hereinbefore
provided, then and in such event, Seller shall have the right, but not the
obligation, for a period of fifteen (15) days (the "Cure Period") following the
receipt by Seller of Buyer's objections to attempt to cure such objections. In
the event Seller fails or refuses to cure such objections within such Cure
Period, then, and in such event, Buyer may either (i) waive such objections and
proceed to close; or (ii) terminate this Agreement, whereupon, in the latter
event, the Deposit shall be refunded to Buyer by the Title Company and the
parties hereto shall have no further rights or obligations hereunder except as
may specifically survive under the express terms hereof. Buyer's election to
cure or waive such objections or terminate this Agreement must be exercised
within ten (10) business days following the expiration of the Cure Period, and
Buyer's failure to exercise such election within the said ten (10) business day
period shall be deemed a waiver of such objections by Buyer, in which event all
such objections shall additionally be deemed "Permitted Exceptions".
In the event the Title Commitment is due to expire prior to, on, or
within then (10) days prior to the expiration date of such Title Commitment,
Buyer may obtain an updated Title Commitment which shall be identical to the
previously issued Title Commitment except with respect to its effective date. In
the event any additional matters appear in the updated Title Commitment which
were not contained in the original Title Commitment such matters shall
automatically be deemed to be unacceptable to Buyer unless Buyer expressly
accepts such additional matters.
The Title Commitment must not contain any exceptions for liens,
encumbrances, claims, easements or other matters that would adversely affect
Buyer's intended use and operation of the subject Premises.
3. SELLER'S WARRANTIES OF TITLE. Seller warrants and covenants that it is
seized of the Premises in fee and has or will have sufficient title to convey
the same in fee simple, subject only to easements and other matters of record
acceptable to Buyer and agreements to be negotiated and agreed upon between the
parties pursuant to Paragraph 6 of this Agreement, and any other matters
approved in writing by Buyer.
Seller agrees that it will convey the Premises to Buyer by general
warranty deed containing covenants of title satisfactory to Buyer, which
covenants of title shall state that Seller is seized of the Premises in fee, and
that Seller has bargained, sold and conveyed unto Buyer and its successors
and/or assigns in title the Premises in fee simple, that the Premises are free
from encumbrances (other
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than matters approved by Buyer as Permitted Exceptions), and that Seller will
warrant and defend title against the claims of all persons or entities.
Seller further warrants and covenants that it is the owner and title holder
of the Tangible Personal Property and Intangible Property and shall convey the
same at Closing free of all liens or encumbrances.
4. TIME FOR PERFORMANCE. Seller shall convey the Premises to Buyer, for
the purchase price set forth in paragraph 5 below, at the earlier of:
(a) Sixty (60) days from the date of execution of this Agreement by
both parties; or
(b) Within five (5) business days after notification by Seller that
all of the inventory within the Premises has been sold and/or removed from the
Premises by Seller (the "Closing").
Seller shall have the right to extend the date of Closing for up to
thirty (30) additional days to effect the sale and/or removal of the inventory,
as necessary. Seller may exercise such extention right by giving Buyer written
notice thereof at least five (5) days prior to Closing.
As an inducement by Buyer to Seller to enter into this Agreement,
Buyer agrees to deposit in escrow with the Title Company, on or before the
expiration of the Inspection Period ( as hereinafter defined), the sum of
$1,500,000.00, which shall be an addition to and part of the Deposit (as defined
herein), but which shall apply to the purchase price set forth in Paragraph 5
below. This inducement is in exchange for Seller's agreement to immediately
begin liquidating its inventory at the Premises described in Paragraph 1 and to
use its best efforts in assisting Buyer in the transition period until Closing
in the process of disassembling Seller's fixtures presently in the facility, to
reasonably consolidate Seller's inventory to portions of the facility to
reasonably accommodate Buyer's fixturing and upfit of the facility for its own
use, and to make equipment, as it becomes available and no longer needed by
Seller during the liquidation process, available to Buyer for its use and
purchase.
Seller and Buyer shall each use their best efforts to effectuate a
mutually orderly transition.
5. PURCHASE PRICE.
(a) The total purchase price for the Premises and all other property
described in Paragraph 1 hereof shall be for the total consideration of TEN
MILLION EIGHT HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($10,850,000.00).
Within three (3) business days following the execution of this
Agreement by both parties, Buyer shall deposit in escrow with the Commonwealth
Land Title Insurance Company, Attention: Xxxxx Xxxxxx, 00000 Xxxxxx Xxxxxxx,
Xxxxx 000/XX-00, Xxxxxx, Xxxxx 00000 (the "Title Company"), as xxxxxxx money,
cash equal to or an irrevocable Letter of Credit in the amount of One Hundred
Thousand and No/100 Dollars ($100,000.00), said Letter of Credit to be in form
reasonably satisfactory to Seller that provides that if Buyer defaults under
this Agreement the Title Company may draw upon the Letter of Credit and deliver
the proceeds thereof or to Seller (the "Deposit").
The Deposit shall be returned (undrawn upon if in the form of a Letter
of Credit) to Buyer only in event Buyer rightfully elects to terminate this
Agreement within the Inspection Period or upon default of Seller as provided
under the terms and conditions defined herein or upon Buyer tendering to
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Seller the purchase price and purchasing the Premises at Closing.
Notwithstanding anything contained in this Agreement to the contrary, upon
expiration of the Inspection Period a deposit of the additional $1,500,000.00 as
herein provided. All escrow Deposit funds shall be deemed to be non-refundable
to Buyer, except only in the event of default by Seller. All escrow Deposit cash
funds shall be placed in an interest bearing account by the Title Company and
all interest earned thereon shall be paid to Buyer.
Buyer agrees to additionally deposit with the Title Company for the
benefit of Seller the sum of ONE HUNDRED DOLLARS ($100.00) within three (3)
banking days after the Effective Date of this Agreement in consideration for
Seller's execution of this Agreement (herein called the "Additional Deposit").
The adequacy of the Additional Deposit is expressly acknowledged by Seller by
Seller's execution of this Agreement. If the transaction contemplated by this
Agreement closes in accordance with the provisions of this Agreement, the
Additional Deposit shall either be credited against the purchase price or
returned to Buyer, at Buyer's election. Notwithstanding any provision of this
Agreement permitting the Buyer to terminate this Agreement and to thereupon
receive a return of the Deposit, if the transaction contemplated by this
Agreement does not close in accordance with the provisions of this Agreement and
such event is not the result of Seller's default or breach of this Agreement,
the Additional Deposit shall be deemed nonrefundable to Buyer and immediately
upon the occurrence of such event the Additional Deposit shall be disbursed by
the Title Company to the Seller.
6. BUYER'S REQUIREMENTS AND INSPECTION. Buyer shall be under no
obligation to consummate this Agreement unless and until Buyer has made
satisfactory inquiry into the requirements and matters contained in this
Paragraph 6. The decision as to whether the following requirements and matters
are met satisfactorily shall be the sole decision of Buyer, in the absolute
discretion of Buyer, with the Buyer's decision being final and binding upon both
parties. Buyer shall have thirty (30) days from the last execution of this
Agreement to notify Seller of its cancellation of this Agreement due to Buyer's
inspection of the Demised Premises and its determination as to the satisfaction
of the following requirements (the "Inspection Period"). If Buyer so elects to
cancel, the Title Company shall be obligated to return to Buyer the Deposit,
with neither party having any other rights or obligations under this Agreement.
Failure of Buyer to notify Seller of its election to terminate this Agreement
pursuant hereto on or before the date which is thirty (30) calendar days from
the last execution of this Agreement shall be deemed to be equivalent to notice
by Buyer that Buyer is satisfied that all said requirements have been satisfied
as of such date and the Deposit shall thereupon become nonrefundable to Buyer
(except as to default by Seller) but shall be applied towards the Purchase
Price.
Once a requirement is satisfied in the determination of Buyer then its
status must remain unchanged until Closing, and if the status should change
unsatisfactorily to Buyer, then Buyer shall have the right to terminate this
Agreement.
Requirements to be Accomplished
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(a) Environmental Conditions. Buyer must be satisfied that the
Premises is free of any pollutants, contaminants, chemical or industrial, toxic
or Hazardous Substances as defined in
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Paragraph 18. Seller must be willing to reaffirm and recertify as of the date of
Closing the matters set forth in Paragraph 18. Buyer shall order a Phase I
Environmental Survey, at Buyer's expense. Said Environmental Survey shall be
addressed to both Buyer and Seller, contain the legend on the first page
substantially the same as "COMPLIANCE REPORT: PRIVILEGED DOCUMENT".
(b) Zoning. The zoning classification of the Premises will have to
permit Buyer's intended use of the Premises and be satisfactory to Buyer as to
any zoning instructions.
7. DISCLOSURES BY SELLER.
(a) Documentation. Within ten (10) days of the date of last execution
of this Agreement, to the extent Seller has not already done so, Seller shall
make available to Buyer, for Buyer's review at either Seller's offices or at the
Premises, the Review Documents (as defined below), provided that Buyer provides
Seller with reasonable notice prior to the day Purchaser intends to conduct such
review. As used herein, the term "Review Documents" shall mean and refer to the
following:
(i) Contracts. Copies of all contracts pertaining to the
Premises, in Seller's possession as of the date of this Agreement (the
"Contracts"), if any, in the possession of Seller, including, but not limited
to, management contracts, service contracts, concession agreements, subleases,
equipment leases, maintenance contracts, security agreements and financing
statements regarding any personal property being conveyed to Buyer, and
regarding any transferable utility contracts.
(ii) Warranties. Copies of all warranties, guarantees and bonds
regarding the Premises and the Tangible Personal Property (the "Warranties"), if
any, in the possession of Seller as of the date of this Agreement.
(iii) Plans and Specifications. Copies of the construction plans
and drawings, architectural renderings, designs, as-built plans and
specifications for the Premises, if any, in the possession of Seller as of the
date of this Agreement.
(iv) Certificates of Occupancy, Permits and Licenses. Copies of
all permits, licenses or notices issued by any governmental authorities or
utility companies in connection with the occupancy and use of the improvements
(including certificates of occupancy or zoning notices), if any, in the
possession of Seller.
(v) Title Information. Copies of all title and survey
information pertaining to the Premises, and personal property if any, in the
possession of Seller, including title commitments, title policies, surveys, etc.
(vi) Environmental Site Assessments. Copies of all written
environmental site assessments, reports, letters and audits, if any, pertaining
to the Premises and prepared by independent consultants for or on behalf of
Seller.
(vii) Personal Property Inventory and Records. A verification of
the written inventory, and all maintenance records and other records relating
thereto, of all the Tangible Personal Property intending to be conveyed to Buyer
hereunder.
(viii) Insurance. Copies of all commercial property insurance
insuring the Premises and Tangible Personal Property for the past year.
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(ix) Tax Statements. Copies of all tax certificates and
statements regarding the real and personal property of the Premises for the
preceding two (2) years.
(x) Stormwater Detention Documents. Copies of all documents
relating to Seller's rights and interests in and to the use of the 1.97 acres
encompassing the stormwater detention pond and related facilities together with
the "Liability Shield" area abutting the other detention pond(s) on adjoining
property. Copies of all documents reflecting Seller's interests in Scottsdale
Center, L.L.C.
(b) HVAC and Equipment. Seller shall have all or allow Buyer to
have all heating, ventilation, air conditioning equipment and systems inspected
to insure their proper and effective operational capability within thirty (30)
days prior to Closing. In the event Seller has such inspections performed Seller
shall deliver to Buyer copies of all inspection reports related thereto.
(c) Plant Closing Act Compliance. Seller shall timely comply with
all notice requirements and all other requirements of the WARN Act and all
similar federal, state or local plant closing acts, laws or statutes.
8. POSSESSION. Buyer shall be given sole and exclusive possession of the
Premises at such time as a General Warranty Deed reasonably satisfactory to
Buyer is delivered by Seller to Buyer conveying the Premises in fee simple to
Buyer together with the other Closing documents listed in Paragraph 10 hereof
and Buyer pays the Purchase Price as described in Paragraph Five (5) of this
Agreement. Possession of the Premises shall be tendered by Seller to Buyer at
Closing in a good broom clean condition with all inventory having been removed
by Seller.
9. NON-COMPETITION. Seller acknowledges, covenants, and agrees that for a
period of five (5) years commencing on the date of Closing, neither Seller nor
any person, firm or corporation, directly or indirectly controlling or
controlled by, or under common control with, Seller (and also, in the event
Seller is a corporation, if any officer or director thereof or shareholder
owning more than ten (10) percent of the outstanding stock thereof, or parent,
subsidiary or related or affiliated corporation) either directly or indirectly,
commences operation or operates any retail home improvement store or otherwise
sells or offers for sale the selection of merchandise and services to be sold
by Buyer at the Premises or in any manner competes with Buyer's home improvement
business to be conducted by Buyer at the Premises, which store or operation
shall be placed or operated within twenty (20) miles of the Premises.
This provision shall not apply to any existing store presently being
operated by Seller as of the date hereof nor to any store operated by Seller
selling or offering for sale building supply merchandise to commercial or
contractor customers.
Buyer and Seller hereby acknowledge that monetary damages may not be a
sufficient remedy for any breach of the foregoing agreement that such a breach
could cause irreparable injury to Buyer and that Buyer shall therefore be
entitled, without waiving any other rights or remedies, to obtain injunctive and
equitable relief against actions of Seller in violation of the foregoing
covenants. This provision shall expressly survive the Closing, notwithstanding
anything to the contrary herein.
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Notwithstanding the foregoing, Seller shall not be prohibited from
acquiring or starting a building material supply company or operation which
derives at least seventy-five percent (75%) of its revenue from commercial or
contractor customers.
10. CLOSING. Seller shall prepare at its cost, the General Warranty Deed
conveying the Premises to Buyer in fee simple. In addition, Seller shall have
the responsibility of paying all state or county transfer taxes and documentary
stamps, if any, occasioned by the conveyance of the Premises and other personal
property as well as any notary fees incurred. All unpaid ad valorem taxes for
the current year shall be prorated between Seller and Buyer as of the date of
Closing. Seller shall pay all rollback taxes, if any, recoupment fees or taxes
occasioned by a change in use of the Premises. Buyer shall pay all title
insurance costs and premiums and the cost of the survey required hereunder.
Seller and Buyer shall each be responsible for any and all Realtor commissions
incurred on their own behalf. Seller shall pay a commission to The Meara Company
of Dallas, Texas. Seller agrees to promptly forward to Buyer any Premises tax
statements on the Premises received by Seller after Closing and if Seller fails
to do so, Seller shall be liable for any penalties Buyer has to pay because of
Seller's failure.
At Closing Seller shall deliver or tender in escrow to the Title Company
tax certificates from all applicable taxing authorities having jurisdiction over
the Premises evidencing payment of all ad valorem taxes applicable to the
Premises through the calendar year immediately preceding the calendar year
during which the Closing occurs.
All rents, concession or license fees, derived from the Premises (if any),
utilities expenses with respect to the Premises (if utilities service is
transferred to Buyer) for the month in which the Closing occurs, and real estate
and personal property taxes and other assessments with respect to the Premises
for the year in which the Closing occurs, shall be prorated as of the date of
Closing.
Seller shall have final readings of utility meters made as of the date of
Closing and to cause the public utility companies to forward final xxxxxxxx to
Seller, which Seller shall promptly pay.
Seller shall execute and deliver to Buyer the following at Closing:
(a) Xxxx of Sale. A Xxxx of Sale and Assignment (the "Xxxx of Sale") as to
the Tangible Personal Property and Intangible Property, free and clear of all
liens and encumbrances, executed by Seller assigning to Purchaser the Tangible
Personal Property and the Intangible Property, in the form attached to this
Agreement as Exhibit E.
(b) Contracts. The originals of all of the contracts relating to the
Premises (including construction, improvement, repair or design thereof) listed
on Exhibit E attached hereto, if any, in the possession of Seller and an
assignment of such contracts as part of the Xxxx of Sale.
(c) Warranties and Guarantees. The originals of all warranties and
guarantees regarding the Premises (including construction, improvement, repair
or design thereof) and the Tangible Personal Property, if any, in the possession
of Seller, and an Assignment of Warranties and Guarantees in the form attached
to this Agreement as Exhibit F.
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(d) Liens. Evidence satisfactory to Buyer that there are no financing
statements on file in the U.C.C. Records of the Secretary of State of Arkansas
and in Xxxxxx County, Arkansas (the county in which the Premises is located) as
to any personal property or fixtures being conveyed to Buyer.
(e) Deed. Seller shall convey marketable title to the Premises in fee
simple by means of a General Warranty Deed, free and clear of any and all liens,
mortgages, deeds of trust, security interests, covenants, conditions,
restrictions, easements, right-of-way, licenses, encroachments, judgments or
encumbrances of any kind except:
(i) the lien of real estate taxes not yet due and payable; and
(ii) Permitted Exceptions previously approved by Buyer.
Any affidavit or lien waiver reasonably requested by Buyer's title insurer,
a non-foreign affidavit, and a certification restating Seller's representations
and warranties in this Agreement as of the date of Closing.
(f) Security. All keys, combinations, passwords, access cards or other
security access devices related to the Premises or other property to be conveyed
hereunder.
(g) Title Documents. All original documents of title for titled vehicles,
if any, conveyed as part of the Tangible Personal Property, free and clear of
all liens and encumbrances, duly endorsed and notarized by Seller.
(h) Stormwater Detention and Drainage Facilities Documents. Document(s)
duly executed and acknowledged by Seller and all other parties required to do
so, which are necessary and effective to convey, grant and transfer to Buyer
permanent easement and other related rights to use the stormwater detention pond
and related drainage facilities on the adjoining 1.97 acres of land, which land
was previously conveyed to Scottsdale Center, L.L.C. by Seller.
Seller and Buyer agree that Buyer may extend any Closing date set for up to
an additional ten (10) days if necessary to complete all documentation and title
examination necessary for Closing. This ten (10) day extension may extend beyond
the time set in Paragraph Four (4).
In the event of any discrepancies in the inventory of Tangible Personal
Property to be conveyed to Buyer hereunder, equitable adjustments to the
Purchase Price shall be made by Buyer and Seller at Closing.
Upon closing, Seller shall notify all its vendors and suppliers that had
provided goods, merchandise and services to the Premises that Seller no longer
does business at the Premises and of Seller's new address for deliveries. Seller
shall also provide to Buyer the names, addresses and telephone numbers of its
representatives to whom Buyer may refer issues and forward mail or deliveries
relating to the Seller or business transacted by Seller at or from the Premises.
11. ASSIGNMENT BY BUYER. This Agreement may not be assigned by Buyer
except that Buyer may freely assign this Agreement to a corporate, parent,
subsidiary or affiliate of Buyer.
12. NOTICES. All notices sent pursuant to this agreement shall be writing
and shall be sent by Certified Mail - Return Receipt Requested:
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To Seller: National Home Centers, Inc.
Xxxxxxx 000 Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
with a copy to: Xxx Xxxxx
The Meara Company
0000 X. Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
To Buyer: Xxxx'x Home Centers, Inc.
X.X. Xxx 0000
(1203 School Street, Wilkesboro, NC 28697)
North Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Property Management Department (REO)
with a copy to: Xxxx'x Home Centers, Inc.
X.X. Xxx 0000
(1203 School Street, Wilkesboro, NC 28697)
North Xxxxxxxxxx Xxxxx Xxxxxxxx 00000
Attention: Legal Department (REO)
Notice shall be deemed given when deposited in the United States Postal Service
by Certified Mail - Return Receipt Requested, postage prepaid and properly
addressed as set forth above.
Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice was given shall be deemed to be receipt of
the notice, request or other communication. By giving at least five (5) days
prior written notice thereof, any party may from time to time at any time change
its mailing address hereunder.
13. EMINENT DOMAIN. Prior to the Closing of this transaction, Seller will
be solely responsible for any and all damages sustained by the Premises as a
result of eminent domain proceedings. In the event that damage is sustained by
reason of eminent domain, Seller shall notify Buyer of the damage and Buyer will
then have the option of canceling or terminating this Agreement with the return
of the Deposit to Buyer. If Buyer elects not to terminate this Agreement, then
Buyer may proceed with its purchase of the Premises, with Seller being obligated
to pay to Buyer all consideration it has received or assign to Buyer any right
to consideration by virtue of eminent domain proceedings, provided that the only
consideration payable to Buyer shall be that consideration received by or due
Seller for the taking of the Premises which is the subject of this Agreement.
14. DAMAGES. One of the purposes of this Agreement is to bind Seller to
sell the Premises and other property described in Paragraph One (1). Buyer and
Seller agree that they are legally bound to comply with all terms and conditions
of this Agreement. If Buyer has not exercised its right to terminate this
Agreement within the time defined in Paragraph Six (6) or as elsewhere provided
in this Agreement, then, in the event Buyer fails to purchase the Premises and
other property under this Agreement, Seller shall be entitled to the Deposit as
liquidated and stipulated damages and Buyer shall have no further liability to
Seller for damages or performance under this Agreement.
10
05/15/98/Rogers, Arkansas/Agreement to Sell and Purchase Real Estate
If the sale and purchase of the Premises and other property
contemplated by this Agreement is not consummated on account of Seller's default
hereunder, the Deposit shall be delivered back to Buyer (undrawn if in the form
of a Letter of Credit) on notice by Buyer to the Title Company holding such
Deposit and the Agreement shall be terminated and neither party shall have any
further obligation one to the other or Buyer may elect to enforce this Agreement
by specific performance.
15. COVENANTS TO SURVIVE CLOSING. Wherever in this Agreement Seller or
Buyer shall have agreed or promised to perform certain acts or grant certain
easements or other rights where the context of the agreement would require such
performance or grants to occur after the Closing of the purchase of the Premises
and other property, then those agreements and covenants expressed herein shall
survive Closing and continue to bind Seller and Buyer.
16. EASEMENTS AND RIGHT-OF-WAYS. Seller covenants and agrees that during
the term of this Agreement, that it shall not grant or enter into any liens,
easements, right-of-ways, contracts for work, or other Agreements affecting the
Premises, or the title thereto, which would adversely affect Buyer's intended
use and renovation of the Premises, without first obtaining the prior written
consent of Buyer. Seller shall use reasonable efforts to provide Buyer with
copies of all easements, right of ways and other encumbrances granted by Seller
affectiuig the Premises if and as the same are granted.
17. WARRANTIES, REPRESENTATIONS AND COVENANTS TO SURVIVE CLOSING. The
warranties, representations and covenants made by the parties shall survive the
Closing of this Agreement and the Closing date and shall continue in full force
and effect without termination. Also, wherever in this Agreement Seller or Buyer
shall have agreed or promised to perform certain acts or grant certain easements
or other rights where the context of the Agreement would require such
performance or grants to occur after the Closing, then those Agreements and
covenants expressed herein shall survive Closing and continue to bind Seller and
Buyer. In addition, the warranties, representations and covenants made by the
parties shall survive the Closing of the purchase of the Premises and other
property, and shall continue to bind Seller and Buyer, but shall be limited to a
period of one (1) year from the Closing date except for warranties of title for
which no limitation shall apply and except as specifically hereunder.
18. SELLER'S WARRANTIES, REPRESENTATIONS AND COVENANTS. As an inducement
to Buyer to enter into this Agreement and to purchase the Premises, Seller
warrants, represents and covenants to Buyer, to the actual knowledge and belief
of Seller, as follows:
(a) Authority. Seller, as of the Closing date, has the authority
and power to enter into this Agreement and to consummate the transactions
contemplated herein; and upon execution hereof will be legally obligated to
Buyer in accordance with the terms and provisions of this Agreement.
(b) Condemnation. Seller has received no notice of any pending,
threatened or contemplated action by any governmental authority or agency having
the power of eminent domain, which might result in any part of the Premises
being taken by condemnation or conveyed in lieu thereof.
(c) Litigation. There is no action, suit or proceeding pending (or,
to Seller's actual knowledge, suits or actions threatened by or against or
affecting Seller or the Premises and other property to be conveyed hereunder)
which does or will involve or affect the Premises and other property to be
11
05/15/98/Rogers, Arkansas/Agreement to Sell and Purchase Real Estate
conveyed hereunder or title thereto. Seller will, promptly upon receiving any
such notice or learning of any such contemplated or threatened action, give
Buyer written notice thereof. There are no attachments, executions, assignments
for the benefit of creditors, or voluntary or involuntary proceedings in
bankruptcy or under any other debtor relief laws contemplated by or pending or
threatened against Seller or the Premises and other property to be conveyed
hereunder.
(d) Assessments and Taxes. No assessments have been made against
any portion of the Premises or other property to be conveyed hereunder which are
unpaid (except ad valorem taxes for the current year), whether or not they have
become liens; and Seller shall notify Buyer of any such assessments which are
brought to Seller's attention after the execution of this Agreement. Seller will
pay or cause to be paid promptly all city, state and county ad valorem taxes and
similar taxes and assessments, all sewer and water charges and all other
governmental charges levied or imposed upon or assessed against the Premises or
other property to be conveyed hereunder and due on or prior to the Closing date
with the exception of customary, permit and impact fees related specifically to
Buyer's intended use.
(e) No Violations. Seller has received no notice (oral or written)
that any municipality or governmental or quasi-governmental authority has
determined that there are violations of state or federal law, municipal or
county ordinances, or other legal requirements with respect to the Premises or
other property to be conveyed hereunder. In the event Seller receives notice of
any such violations prior to the Closing affecting the Premises, or other
property to be conveyed hereunder, Seller shall promptly notify Buyer thereof,
and shall promptly and diligently defend any prosecution thereof and take any
and all reasonable actions to eliminate said violations.
(f) Foreign Ownership. Seller is not a "foreign person" as that
term is defined in the U.S. Internal Revenue Code of 1986, as amended, and the
regulahons promulgated pursuant thereto, and Buyer has no obligation under
Section 1445 of the U;S. Internal Revenue Code of 1986, as amended, to withhold
and pay over to the U. S. Internal Revenue Service any part of the "amount
realized" by Seller in the transaction contemplated hereby (as such term is
defined in the regulations issued under said Section 1445).
(g) Prior Options. No prior options or rights of first refusal have
been granted by Seller to any third parties to purchase or lease any interest in
the Premises, or other property to be conveyed hereunder or any part thereof,
which are effective as of the execution date.
(h) Mechanics and Materialman. On the Closing date, neither Seller
nor Seller's contractors will not be indebted to any contractor, laborer,
mechanic, materialmen, architect or engineer for work, labor or services
performed or rendered, or for materials supplied or furnished, in connection
with the Premises for which any person could claim a lien against the Premises
and shall not have done any work on the Premises within one hundred eighty (180)
days prior to the Closing date without the consent of Buyer.
(i) Future Operations. From the date of this Agreement until the
Closing or earlier termination of this Agreement, Seller will (a) keep and
maintain the Premises, and all Tangible Personal
12
05/15/98/Rogers, Arkansas/Agreement to Sell and Purchase Real Estate
Property in substantially the same condition as of the date of this Agreement,
(excluding casualty occurrences and damage resulting therefrom, and excluding
reasonable wear and tear), and (b) promptly advise Purchaser of any litigation,
arbitration or administrative hearing concerning the Property, Tangible Personal
Property, or Intangible Property arising or threatened of which Seller shall
receive written notice.
(j) Insurance Notices. No notice has been given by any insurance
company which has issued a policy with respect to any portion of the Premises or
by a board of fire underwriters (or other body exercising similar functions)
requesting the performance of any repairs, alterations, or other work with which
Seller has not complied or relating to an increase in the insurance premiums
applicable to the Premises.
(k) Building Defects. The Improvements, including, but not limited
to, the foundation, roof, walls, superstructure, plumbing, air-conditioning,
heating, and mechanical equipment, electrical wiring, boilers, hot water
heaters, etc., are structurally sound, do not have material defects, latent or
patent, which would render the Premises unfit for use as a first class retail
facility, are in good working order and are in a state of good repair. In the
event that medical deficiencies or defects to any of the above are discovered by
Buyer during the Inspection Period, Seller shall, prior to Closing, have repairs
made which are necessary to correct the same.
(l) Equipment. At the time of Closing all heating, ventilation, air
conditioning, water heaters and other mechanical equipment shall be in a good
properly functioning condition. Seller will maintain all mechanical equipment,
exhaust fans, heating and air conditioning systems, hot water heaters, windows,
doors, locks, glass panes, mail boxes, window screens, plumbing and electrical
equipment, etc. in the normal manner of a normal owner through the date of
Closing. Any such equipment failing to function properly and effectively prior
to or at the time of Closing will be repaired by Seller.
(m) Operation Liabilities. All obligations of Seller arising from
the ownership and operation of the Subject Property and business operated
thereon, including, but not limited to salaries, taxes, leasing commissions, and
the like, have been paid as they became due or will be paid at or prior to the
date of Closing. Except for obligations for which provisions are herein made for
proration or other adjustment at Closing and the indebtedness evidenced by the
Prior Note, there will be no obligations or liabilities of Seller with respect
to the other property to be conveyed hereunder outstanding as of the date of
Closing.
19. ENVIRONMENTAL REPRESENTATIONS. Seller shall provide to Buyer within
fifteen (15) days of the execution of this Agreement, copies of any and all
Phase I or Phase II environmental audits performed on behalf of Seller or any
Lender of Seller which Seller may have in his possession. Seller further
warrants that it has not received any notice or information from any official
governmental agency or other persons such as consulting engineers regarding any
existing contamination on or pollution of the Premises nor any notice of any
violation of, or pending or threatened investigation or inquiry by any
governmental authority or to any remedial obligations under any applicable
federal, state or local laws, regulations or ordinances pertaining to health or
the environmental, including without limitation CERCLA and RCRA.
13
05/15/98/Rogers, Arkansas/Agreement to Sell and Purchase Real Estate
In the event Buyer notifies Seller, prior to Closing, that any
contamination or pollution exists and such notice is accompanied by a report
from an engineering company with experience in evaluating such matters, then
Buyer shall have the option of: (i) proceeding with the Closing; or (ii)
canceling this Agreement and receiving a return of the Deposit.
For purposes of this Paragraph 18, the term "contamination" shall mean the
presence of Hazardous Substances at the Premises or any improvements thereon
that requires any remedial action under any of the Environmental Statutes. As
used in this Agreement, the term "Hazardous Substance" shall mean any substance
which: (a) constitutes a hazardous waste or substance under any applicable
federal, state or local law, rule, order or regulation now adopted; (b)
constitutes a "hazardous substance" under the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. 6991) and the regulations
promulgated thereunder; (c) constitutes a pollutant, contaminant, chemical or
industrial, toxic or hazardous substance or waste; (d) exhibits any of the
characteristics enumerated in 40 C.F.R. Sections 261.20-261.24 inclusive; (e)
those extremely hazardous substances listed in 302 of the Superfund Amendments
and Reauthorization Act of 1986 (Public Law 99-499, 100 Stat. 1613) which are
present in threshold planning or reportable quantities as defined under such
act; (f) toxic or hazardous chemical substances which are present in quantities
which exceed exposure standards as those terms are defined under Sections 6 and
8 of the Occupational Safety and Health Act, as amended (29 U.S.C. 655 and 657
and 29 C.F.R. Part 1910 subpart 2); and (g) any asbestos, petroleum-based
products or underground or above ground storage tanks. As used herein, the term
"Environmental Statutes" shall mean the statutes, laws, rules, order and
regulations referred to in (a) through (g) inclusive, in the preceding sentence.
As used herein, contamination by a Hazardous Substance shall include
contamination arising from the presence, creation, production, collection,
treatment, disposal, discharge, release, storage, transport or transfer of any
Hazardous Substance.
20. ENVIRONMENTAL DISCLOSURE AND INVESTIGATION. The parties expressly
confirm and agree that having been given the opportunity to inspect the land and
improvements comprising the Premises, if Buyer does not terminate this Agreement
under the provisions of this Paragraph 6 or as elsewhere provided herein, Buyer
shall be conclusively deemed to have satisfied itself as to the land and
improvements comprising the Premises and to have accepted the Land in its
present "As Is" condition. BUYER SPECIFICALLY REPRESENTS AND AGREES THAT IT
HAVING BEEN GIVEN THE OPPORTUNITY TO CONDUCT SUCH TESTS, STUDIES AND
INVESTIGATIONS AS BUYER DEEMS NECESSARY AND APPROPRIATE, IS RELYING SOLELY UPON
ITS OWN INVESTIGATION OF THE PHYSICAL CONDITION OF THE REAL PROPERTY AND NOT ON
ANY INFORMATION PROVIDED BY SELLER. BUYER FURTHER AGREES THAT IN THE EVENT BUYER
FAILS TO TERMINATE THE AGREEMENT AS PROVIDED HEREIN, BUYER HAS AGREED TO
PURCHASE THE REAL PROPERTY IN ITS CURRENT "AS IS" CONDITION, AND TO HAVE ASSUMED
THE RISK OF ANY MATTER OR CONDITION THAT COULD HAVE BEEN REVEALED BY ITS
INVESTIGATIONS. EXCEPT FOR THE SPECIAL WARRANTIES OF TITLE CONTAINED IN THE
DEED, XXXX OF SALE AND ASSIGNMENT DOCUMENTS AND AS OTHERWISE EXPRESSLY SET FORTH
HEREIN, SELLER HAS NOT MADE
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05/15/98/Rogers, Arkansas/Agreement to Sell and Purchase Real Estate
(AND IS SELLING THE PROPERTY WITHOUT) ANY REPRESENTATIONS OR WARRANTIES, AS TO
THE CONDITION, SUITABILITY, OR FITNESS OF THE REAL PROPERTY, OR COMPLIANCE OF
THE REAL PROPERTY.
Buyer agrees to pay all of the costs and expenses associated with any
environmental investigation and testing undertaken by or on behalf of Buyer and
to repair and restore any damage to the Premises caused by Buyer's
investigations or testing, at Buyer's expense. Buyer also agrees to defend and
hold Seller harmless from all costs, expenses and liabilities arising out of
Buyer's negligence or willful misconduct or that of its employees, agents,
consultants or contractors in performing its evaluation of the Premises, except
that Buyer shall have no responsibility to Seller and Seller hereby releases
Buyer and agrees to defend and hold Buyer harmless from all costs, expenses and
liabilities arising in connection with environmental conditions, Hazardous
Materials Release or underground structures or utilities that were not disclosed
to Buyer.
Soil, rock, water, asbestos, and other samples taken from the Premises
shall remain the property of Seller. At Seller's request and expense, Buyer will
assist in making arrangements for the lawful disposal of any contaminated
samples and will pay any related transportation of disposal fees, but only if
Seller signs the manifest and any other documents required in connection with
the disposal of contaminated samples. If Seller is not willing to sign the
required documentation, Buyer's only obligation shall be to return the
contaminated samples to Seller.
21. EMPLOYEES. Following the expiration of the Inspection Period, or as
may be earlier agreed by the parties, and with the cooperation of and
coordination with the Seller, Buyer shall have the right to contact and
communicate with Seller's employees at the Premises for the purpose of
initiating discussions involving their potential future employment with the
Buyer.
In fact, it is expressly agreed by the parties hereto that, upon
announcement of this Agreement to the public, Buyer shall immediately dispatch
at least two (2) of its representatives from Buyer's human resources department
to assist Seller in explaining and discussing the transition contemplated by
this Agreement with Seller's employees, and shall initiate procedures for
interviewing Seller's employees at the facility regarding their potential future
employment with Buyer.
However, Buyer expressly makes no representation or warranty, express
or implied, that any of Seller's current employees may or may not be offered
positions with Buyer.
22. POST CLOSING MATTERS. Seller shall be responsible for all the
merchandise return, repair, service and product or service warranties relating
to goods, merchandise or services purchased by its customers at or from the
premises from the Seller.
23. BUYER'S PREMISES FIXTURING. As Seller sells down or removes its
inventory from the Premises thereby creating empty or available space within the
building, Seller shall allow Buyer to enter the building prior to Closing for
the purpose of commencing its fixturing and upfit to ready the premises for use
by Buyer following the Closing. In conjunction therewith, Seller agrees, from
time to time prior to Closing, to consolidate remaining inventory into specific
areas of the building in order to
15
05/15/98/Rogers, Arkansas/Agreement to Sell and Purchase Real Estate
facilitate Buyer's fixturing and upfit of as much of the building as possible.
In undertaking such work Buyer agrees to not interfere with Seller's sales or
removal activities.
24. DATE FOR PERFORMANCE. If the time period by which any right, option or
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday or legal or bank holiday, then such time period
will be automatically extended through the close of business on the next
following business day.
25. AUTHORITY. The undersigned officers of Seller and Buyer, if any,
hereby represent, covenant and warrant that all actions necessary by their
respective Board of Directors and shareholders and partners will have been
obtained and that they will have been specifically authorized to enter into this
Agreement and that no additional action will be necessary by them in order to
make this Agreement legally binding upon them in all respects. Buyer and Seller
covenant to provide written evidence of compliance with this Paragraph 24
acceptable to Title Company prior to or at Closing.
26. SUCCESSORS AND ASSIGNS. The designations Seller and Buyer as used
herein shall include said parties, their heirs, successors and assigns, and
shall include singular, plural, masculine, feminine or neuter as required by
context. Notwithstanding the foregoing, except for assignments made to a
corporate parent, subsidiary or affiliate, Buyer shall be required to obtain
Seller's written consent prior to any assignment of this Agreement by Buyer.
27. WHOLE AGREEMENT. This agreement shall constitute the entire agreement
between the parties and no prior verbal or written agreement shall survive the
execution of this Agreement. In the event of an alteration of this Agreement,
the alteration must be in writing and must be signed by all the parties or their
agents in order for the same to be binding upon the parties.
(SIGNATURES ON FOLLOWING PAGE)
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05/15/98/Rogers, Arkansas/Agreement to Sell and Purchase Real Estate
IN WITNESS WHEREOF, the parties hereto have acknowledged this agreement
under seal as of the date first above written.
ATTEST SELLER:
NATIONAL HOME CENTERS, INC.
By:/s/ XXXXX X. XXXXX By:/s/ XXXXX X. XXXXXX
------------------------------- -------------------------------
Xxxxx X. Xxxxx Xxxxx X. Xxxxxx
Executive Vice President and Chairman and Chief Executive Officer
Chief Financial Officer
(CORPORATE SEAL)
ATTEST: BUYER:
XXXX'X HOME CENTERS, INC.
By:/s/ XXXXX X. XXXXXXX By:/s/ XXXXX X. XXXXXXX
------------------------------ ------------------------------
Xxxxx X. Xxxxxxx Xxxxx X. Xxxxxxx
Assistant Secretary Senior Vice President
(CORPORATE SEAL)
(ACKNOWLEDGMENTS ON FOLLOWING PAGE)
05/15/98/Rogers, Arkansas/Agreement to Sell and Purchase Real Estate
STATE OF ARKANSAS
COUNTY OF WASHINGTON
On this 18 day of MAY, 1998, before me XXXXX XXXX, a Notary Public duly
commissioned, qualified and acting, within and for the said County and State,
appeared in person the within named Xxxxx X. Xxxxxx and Xxxxx X. Xxxxx to me
personally well known, and who stated that they were the Chairman and Chief
Executive Officer and Executive Vice President and Chief Financial Officer of
NATIONAL HOME CENTERS, INC., a corporation, and were duly authorized in their
respective capacities to execute the foregoing instrument for and in the name
and behalf of said corporation, and further stated and acknowledged that they
had so signed, executed and delivered said foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth.
In Testimony Whereof I have hereunto set my hand and official seal this
18 day of MAY, 1998.
My commission expires: 4-26-2000 /s/ XXXXX XXXX
-----------------------------------
Notary Public
[NOTARY SEAL APPEARS HERE]
STATE OF NORTH CAROLINA
COUNTY OF XXXXXX
On this 18th day of MAY, 1998, before me XXXXXX X. XXXXXXX,a Notary Public
duly commissioned, qualified and acting, within and for the said County and
State, appeared in person the within named Xxxxx X. Xxxxxxx and Xxxxx X.
Xxxxxxx to me personally well known, and who stated that they were the Senior
Vice President and Assistant Secretary of XXXX'X HOME CENTERS, INC., a
corporation, and were duly authorized in their respective capacities to
execute the foregoing instrument for and in the name and behalf of said
corporation, and further stated and acknowledged that they had so signed,
executed and delivered said foregoing instrument for the consideration, uses
and purposes therein mentioned and set forth.
In Testimony Whereof, I have hereunto set my hand and official seal this
18th day of MAY, 1998.
My commission expires:____________ /s/ XXXXXX X. XXXXXXX
------------------------------------
Notary Public
[NOTARY SEAL APPEARS HERE]
18
05/15/98/Rogers, Arkansas/Agreement to Sell and Purchase Real Estate
EXHIBIT A
Legal Description
19
EXHIBIT A - LEGAL DESCRIPTION
XXX 0X XXXXXXXXXXX
X XXXX XX XXXXX 0 OF THE TRACT SPLIT FOR NATIONAL HOME CENTER RECORDED IN
PLAT RECORD BOOK 21L AT PAGE 31 DESCRIBED AS:
FROM THE NORTHEASTERLY MOST CORNER OF SAID TRACT 2 ON THE SOUTHEASTERLY
RIGHT-OF-WAY LINE OF NORTH 46th. STREET RUN 155.01 FEET ALONG A CURVE TO
THE RIGHT WITH A 310.00 FOOT RADIUS AND A S 42 DEGREES 36'34" W 153.40 FOOT
CHORD ALONG SAID RIGHT-OF-WAY LINE TO THE POINT OF BEGINNING;
THENCE S 80 DEGREES 58'39" E 33.50 FEET;
THENCE S 02 DEGREES 32'26" W 278.26 FEET;
THENCE N 86 DEGREES 21'02" W 277.61 FEET;
THENCE S 02 DEGREES 34'50" W 12.00 FEET;
THENCE S 02 DEGREES 34'50" W 278.48 FEET;
THENCE 23.15 FEET ALONG A CURVE TO THE RIGHT WITH A 25.00 FOOT RADIUS AND A
N 23 DEGREES 59'03" W 22.36 FOOT CHORD TO THE SAID SOUTHEASTERLY RIGHT-OF-
WAY LINE OF NORTH 46th. STREET;
THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT 4 COURSES:
N 02 DEGREES 34'50" E 258.45 FEET;
THENCE 269.61 FEET ALONG A CURVE TO THE RIGHT WITH A 250.00 FOOT RADIUS AND
A N 33 DEGREES 28'33" E 256.73 FOOT CHORD;
THENCE N 64 DEGREES 22'15" E 100.00 FEET;
THENCE 40.24 FEET ALONG A CURVE TO THE LEFT WITH A 310.00 FOOT RADIUS AND A
N 60 DEGREES 39'09" E 40.21 FOOT CHORD TO THE POINT OF BEGINNING CONTAINING
(61,350 SQ.FT.) 1.41 ACRES MORE OR LESS. SUBJECT TO ANY AND ALL LEGAL
EASEMENTS AND OR RIGHTS-OF-WAY.
TRACT 3 DESCRIPTION
A PART OF THE E1/2 OF THE NW 1/4 OR SECTION 0, X-00-X, X-00-X, XXXXXX XXXXXX,
XXXXXXXX, DESCRIBED AS:
FROM THE NORTH 1/4 CORNER OF SAID SECTION 9, RUN S 02 DEGREES 12'58" W 1311.19
FEET; THENCE N 85 DEGREES 42'24" W 29.84 FEET TO A POINT ON THE WESTERLY RIGHT
XX XXX XXXX XX XXXXX 00XX XXXXXX FOR THE POINT OF BEGINNING; THENCE S 02 DEGREES
52'11" W 444.60 FEET ALONG SAID RIGHT OF WAY LINE; THENCE ALONG SAID RIGHT OF
WAY LINE 268.35 FEET WITH A CURVE TO THE RIGHT HAVING A 250.00 FOOT RADIUS AND A
S 33 DEGREES 37'13" W 255.65 FOOT CHORD; THENCE S 64 DEGREES 22'15" W 100.00
FEET ALONG SAID RIGHT OF WAY LINE; THENCE ALONG SAID RIGHT OF WAY LINE 334.32
FEET WITH A CURVE TO THE LEFT HAVING A 310.00 FOOT RADIUS AND A S 33 DEGREES
28'33" W 318.35 FOOT CHORD; THENCE LEAVING SAID RIGHT OF WAY LINE N 85 DEGREES
44'51" W 199.28 FEET; THENCE N 85 DEGREES 1O'56" W 202.95 FEET; THENCE N 01
DEGREES 17'46" E 96,49 FEET; THENCE N 01 DEGREES 21'26" E 410.32 FEET; THENCE N
07 DEGREES 35'15" E 302.06 FEET; THENCE N 13 DEGREES 31'28" E 191.79 FEET;
THENCE S 85 DEGREES 42'24" E 736.24 FEET TO THE POINT OF BEGINNING, CONTAINING
15.330 ACRES (667764.53 SQ.FT.), MORE OR LESS, BEING SUBJECT TO ANY AND ALL
EASEMENTS AND RIGHTS OF WAY OF RECORD OR OF FACT.
BASIS OF BEARING
BASIS OF BEARINGS IS THE ARKANSAS XXXXX XXXXX XXXXXXXXX XXXXXX, XXXXX XXXX,
XXX-00, FROM THE ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENTS
MONUMENTS 9304009 & 9304009A, GPS CONTROL.
EXHIBIT A-1: (WATER RETENTION POND)
LESS AND EXCEPT:
TRACT 2: A PART OF TRACT 3 OF THE TRACT SPLIT FOR NATIONAL HOME CENTER RECORDED
IN PLAT RECORD BOOK 21L AT PAGE 31 DESCRIBED AS:
BEGINNING AT THE NORTHEAST CORNER OF SAID TRACT 3 ON THE WESTERLY
XXXXX-XX-XXX XXXX XX XXXXX 00XX XXXXXX: THENCE S 02 DEGREES 52' 11" W
20.00 FEET ALONG SAID RIGHT-OF-WAY LINE; THENCE N 85 DEGREES 42'24" W
255.66 FEET; THENCE S 04 DEGRESS 17'36"W 125.91 FEET; THENCE S 12
DEGREES 43'44" W 21.01 FEET; THENCE N 86 DEGREES 59'21" W 211.68
FEET; THENCE N 75 DEGREES 37'48" W 96.28 FEET; THENCE N 86 DEGREES
59'21" W 197,47 FEET TO THE EASTERLY RIGHT-OF-WAY LINE OF U.S.
HIGHWAY 71; THENCE N 13 DEGREES 31'28" E 161.08 FEET ALONG SAID
EASTERLY RIGHT-OF-WAY LINE TO THE NORTHWEST CORNER OF SAID TRACT 3;
THENCE S 85 DEGREES 42'24" E 736.24 FEET ALONG THE NORTH LINE THEREOF
TO THE POINT OF BEGINNING CONTAINING (85,715 SQ. FT.) 1.97 ACRES MORE
OR LESS, SUBJECT TO ANY AND ALL LEGAL EASEMENTS AND-OR RIGHTS-OF-WAY.
