REAL ESTATE PURCHASE AND SALE AGREEMENT
This agreement (the "Agreement") dated June 24, 1997 is made by and
between;
(a.) HAVANA STREET PARTNERSHIP, a general partnership, ("Seller
A") for purchase and sale of that certain real property
consisting of approximately 4.0 acres of vacant land shown
as Tract 4 ("Property A") on Exhibit A1 and;
(b.) ▇▇▇▇▇ ▇. FURSTENBERG, an individual, ("Seller B") for
purchase and sale of that certain real property consisting
of approximately 7.0 acres of vacant land shown as Tract 3
and the east 182.79 feet of Tract 2 ("Property B") on
Exhibit A1 and;
EAGLE HARDWARE & GARDEN, INC., a Washington corporation, ("Buyer") for purchase
and sale of that certain real property described in (a.) and (b.) above
consisting of an approximate total of 11.0 acres. The 11.0 acres is fronted by
Havana Street on the east, between East Mexico Avenue on the north and ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ on the south in the city of Aurora, Colorado. The legal
descriptions and tract map for the 11.0 acres are attached hereto as Exhibit A
and Exhibit A1, respectively, and are made a part of this Agreement by this
reference, and any improvements thereon and all rights appurtenant thereto (the
"Property A and B"). The Property and the improvements planned by Buyer are
shown on the proposed site plan dated May 12, 1997 and numbered X329A (the "Site
Plan") to be attached hereto as Exhibit B.
Seller agrees to sell, and Buyer agrees to buy, the Property upon and
subject to the terms and conditions set forth below:
1. PURCHASE PRICE; PAYMENT. The total purchase price for the
Property shall be based on Seven Dollars ($7.00) per square foot of land area.
It is estimated that the total Property contains 479,160 square feet and that
the purchase price will be Three Million Three Hundred Fifty-four Thousand One
Hundred Twenty Dollars ($3,354,120.00). The area of Property A and Property B
and the total purchase price for each shall be determined by a current ALTA/ACSM
survey showing each Property to be provided by its Seller. The purchase price
shall be adjusted to the final certified square footage, which amount, including
the Deposit and interest accrued thereon, shall be paid in cash upon closing.
1.1 ALLOCATION OF PURCHASE PRICE. For purposes of this Contract,
the purchase price payable hereunder shall be allocated and payable as follows:
(a) $2,554,120.00 shall be allocated to Property A and
shall be payable to Seller A.
(b) $800,000.00 shall be allocated to Property B and shall
be payable to Seller B.
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2. ▇▇▇▇▇▇▇ MONEY DEPOSIT. Within ten (10) business days after the
Effective Date, Buyer will deposit ▇▇▇▇▇▇▇ money of Forty-five Thousand Dollars
($45,000.00) for Property A and Five Thousand Dollars ($5,000.00) for Property B
(the "Deposits") with Chicago Title Insurance Company in Denver, Colorado (the
"Closing Agent"). The Closing Agent shall place the Deposits in an
interest-bearing account, with interest to accrue to Buyer's benefit. If this
transaction does not close for any reason other than default by Buyer under this
Agreement, the Deposits, and all interest accrued thereon, shall be returned to
Buyer. In the event of Buyer's default under this Agreement, Sellers shall have
as their sole remedy the right to terminate this Agreement and retain their
Deposits, together with accrued interest thereon, as liquidated damages.
3. TITLE INSURANCE AND SURVEY.
3.1 PRELIMINARY TITLE COMMITMENT. Within fifteen (15) days
after the Effective Date, Seller A and Seller B shall provide Buyer with current
preliminary commitments for owner's title insurance with extended coverage (ALTA
Form 1970-B, as revised in 1984, or if unavailable, Form B-1987) issued by
Chicago Title Insurance Company, with copies of all documents listed as
exceptions set forth therein for their respective Properties.
3.2 ALTA/ACSM SURVEY. Within thirty (30) days after the
Effective Date, Seller A and Seller B at their sole cost and expense shall
provide Buyer with one current ALTA/ACSM survey which shows both Property A and
Property B with a land area certification of their respective Properties. Buyer
and Seller agree that the legal descriptions of Property A and Property B shown
on the new ALTA/ACSM survey shall be the legal descriptions used for Exhibit A.
3.3 TITLE AND SURVEY APPROVAL PERIODS. Buyer shall have
fifteen (15) days from the later receipt of either the preliminary commitments
or the survey (and any amendments, supplements and revisions to either in which
new or revised exceptions or items first appear) to notify Sellers of its
disapproval of any exceptions shown in the preliminary commitment or any items
on the survey. If, within twenty (20) days after the receipt of such notice
Sellers have not removed or given reasonable written assurances to Buyer that
such disapproved exceptions or items will be removed on or before closing, Buyer
may, at its option, at any time prior to such removal or receipt of such
reasonable written assurances, terminate this Agreement by giving notice of such
termination to both Sellers. On such termination Closing Agent shall refund the
Deposits and all interest accrued thereon to Buyer and all rights and
obligations of Sellers and Buyer under this Agreement shall terminate and be of
no further force or effect. NOTE LAST SENTENCE ADDED TO SECTION 3.3 TO AGREEMENT
PER LETTER DATED 7/3/97.
4. ADDITIONAL CONTINGENCIES. Buyer's obligation to purchase the
Property is subject to Buyer's satisfaction or waiver, in writing, of the
following conditions precedent, in Buyers sole and absolute discretion, on or
before the dates described below:
4.1 FEASIBILITY. Buyer's sole determination that its proposed
site plan, building plan, parking plan and access plan for the Property are
acceptable; that utilities are available of adequate capacity to serve the
Property; and that the Property is otherwise feasible for Buyer's intended use.
4.2 STUDIES. Buyer's approval of all soils, engineering,
seismic, environmental, topography, hazardous waste, geotechnical, wetlands,
drainage and other studies that may be deemed necessary by Buyer or required by
any governmental agency in connection with the Property and Buyer's planned
development and use of the Property.
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4.3 APPROVALS AND PERMITS. Issuance of any and all required or
applicable governmental approvals including but not limited to a PUD and plat of
the Property, subdivision approvals, zoning or rezoning approvals, Colorado
Department of Transportation highway access and traffic signal approvals (if
required), building permits, use permits, design review approvals, site plan
approvals, and approvals of any kind from any and all governmental agencies
having jurisdiction over the Property, necessary for Buyer to develop the
property, construct it's building and site improvements and operate its selected
business on the Property. The timing, conditions and cost of any or all of the
permits and approvals (including any mitigation fees) must be satisfactory to
Buyer in its sole discretion.
4.4 TIME PERIODS. Buyer shall have forty-five (45) days from
the Effective Date (the "Feasibility Period") to satisfy or waive in writing the
contingencies set forth in Sections 4.1 and 4.2 (the "Feasibility Period").
Buyer shall have one hundred fifty (150) days (the "Contingency Period") from
the end of the Effective Date to satisfy or waive in writing the contingencies
set forth in Section 4.3. If Buyer does not satisfy or waive the contingencies
by the applicable dates, the Deposits, with interest, shall be refunded to Buyer
and the Agreement shall terminate.
5. CLOSING.
5.1 TIME FOR CLOSING; TERMINATION DATE. This sale shall be
closed in the office of the Closing Agent within five (5) working days after
all of Buyer's conditions precedent have been satisfied or waived by Buyer. The
actual closing date shall be a date selected by Buyer and agreeable to Sellers.
Buyer and Sellers shall deposit in escrow with Closing Agent all instruments,
documents and monies necessary to complete the sale in accordance with this
Agreement. As used herein, "closing" or "date of closing" means the date on
which all appropriate documents are recorded and proceeds of sale are available
for disbursement to Sellers. If all of Buyer's conditions have been satisfied or
waived and all required instruments have been deposited into escrow with the
Closing Agent, Buyer shall use its best efforts to close the sale prior to
November 15, 1997. Funds held in reserve accounts pursuant to escrow
instructions shall be deemed, for purposes of this definition, as available for
disbursement to Sellers.
5.2 ACCEPTANCE OF EXCEPTIONS. Neither Sellers nor Buyer shall
be required to close, and the Deposit and all interest thereon shall be returned
to Buyer, if any exception or item contained in the preliminary commitments for
owner's title insurance is disapproved by Buyer as herein provided cannot be
removed by the date of closing; provided, however, that Buyer may elect to waive
any disapproved exceptions or items and close on the remaining terms.
Notwithstanding the foregoing, Sellers shall remove any defect or encumbrance
attaching by, through or under Sellers after the Effective Date of this
Agreement. Exceptions to be discharged by Sellers may be paid out of the
purchase price at closing.
5.3 SIMULTANEOUS CLOSINGS. Buyer shall not be required to
close on either Property A or Property B without the simultaneous closing of the
other Property. If this Agreement is terminated for any reason by Buyer and/or
Sellers with regards to Property A or Property B, the Agreement shall be
automatically terminated in its entirety in regards to both Property A and
Property B and all conditions or requirements affected by such termination shall
apply to both Seller A and Seller B as well as Property A and Property B. It is
intended that Closing shall occur simultaneously for both Properties and any
default or termination affecting one property shall automatically apply to the
other and vice versa.
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5.4 PRORATIONS; CLOSING COSTS. Taxes and assessments for the
current year and utilities constituting liens shall be prorated as of the date
of closing. Sellers shall pay the premium for the title insurance policy, real
estate excise, transfer and/or conveyance taxes, the cost of conveyance tax
stamps, if any, and one-half of Closing Agent's escrow fee. Buyer shall pay the
cost of recording the statutory warranty deed, one-half of Closing Agent's
escrow fee and the difference in the cost of the premium between standard
owner's and extended coverage.
5.5 POSSESSION. Buyer shall be entitled to possession of both
Properties upon closing.
6. CONVEYANCE OF TITLE. On closing, Sellers shall execute and
deliver to Buyer statutory warranty deeds conveying good and marketable title to
Property A and Property B free and clear of any defects or encumbrances except
for the lien of real estate taxes for the current calendar year not yet due and
payable, those defects or encumbrances appearing on the preliminary commitment
for title insurance that are approved by Buyer (the "Permitted Exceptions"), and
other encumbrances or defects approved by Buyer in writing.
As soon as available after closing, Sellers shall provide to Buyer
policys of title insurance pursuant to the preliminary commitments, dated as of
the closing date and insuring Buyer in the amount of the purchase price of each
Property against loss or damage by reason of defect in Buyer's title to the
Properties subject only to the printed exclusions and general exceptions
appearing in the policy form; any Permitted Exceptions; the exceptions specified
in the preliminary commitments which Buyer has not disapproved of as provided
herein; and real property taxes and assessments that are not delinquent.
7. RISK OF LOSS; CONDEMNATION. Risk of loss of or damage to the
Properties shall be borne by Sellers until the date of closing. Thereafter,
Buyer shall bear the risk of loss. In the event of material loss of or damage to
the Properties prior to the date upon which Buyer assumes the risk, Buyer may
terminate this Agreement by giving notice of such termination to Sellers and
Closing Agent, and such termination shall be effective and the Deposit and
interest thereon shall be refunded ten (10) days thereafter; provided, however,
that such termination shall not be effective if Sellers agree in writing within
such ten (10) day period to restore the affected Property substantially to its
present condition by the closing date.
If either or both Properties are or become the subject of a
condemnation proceeding prior to closing, Buyer may, at its option, terminate
this Agreement by giving notice of such termination to Sellers, and upon such
termination the Deposit and accrued interest shall be returned to Buyer and this
Agreement shall be of no further force or effect; provided, however, that Buyer
may elect to purchase the Properties, in which case the total purchase price
shall be reduced by the total of any condemnation award received by Sellers. On
closing, Sellers shall assign to Buyer all of Sellers' rights in and to any
future condemnation awards or other proceeds payable or to become payable by
reason of any taking. Sellers agree to notify Buyer of eminent domain
proceedings within five (5) days after Sellers learns thereof.
8. SELLERS' REPRESENTATIONS AND WARRANTIES. In addition to other
representations herein, Sellers represent and warrant to Buyer that at the date
of execution hereof and as of the date of closing:
8.1 Sellers, and the persons signing on behalf of Sellers, have
full power and authority to execute this Agreement and perform Sellers'
obligations hereunder, and all necessary actions to authorize this transaction
have been taken;
8.2 The Property is not subject to any leases, tenancies or
rights of persons in possession;
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8.3 Neither the Property nor the sale of the Property violates
any applicable statute, ordinance or regulation, nor any order of any court or
any governmental authority or agency, pertaining to the Property or the use
occupancy or condition thereof;
8.4 Sellers are unaware of any material defect in the Property;
8.5 All persons and entities supplying labor, materials and
equipment to the Properties have been paid and there are no claims or liens;
8.6 There are no currently due and payable assessments for
public improvements against the Properties and Sellers are not aware of any
local improvement district or other taxing authority having jurisdiction over
the Properties in the process of formation;
8.7 The Properties have legal access to all streets adjoining
the Property;
8.8 Sellers have good and marketable titles to the Properties;
8.9 Sellers are not "foreign persons" for purposes of Section
1445 of the Internal Revenue Code. Prior to closing, Sellers shall execute and
deliver to Closing Agent affidavits in order to meet the Foreign Investment in
Real Property Tax Act ("FIRPTA") requirements of I.R.C. # 1445; and
8.10 Sellers have not received notification of any kind from any
agency suggesting that the Properties are or may be targeted for a Superfund or
similar type of cleanup. To the best of Sellers' knowledge, neither the
Properties nor any portion thereof are or have been used (i) for the storage,
disposal or discharge of oil, solvents, fuel, chemicals or any type of toxic or
dangerous or hazardous waste or substance, (ii) as a landfill or waste disposal
site, and (iii) does not contain any underground storage tanks. Sellers agree to
indemnify, defend and hold Buyer harmless from and against any and all loss,
damage, claims, penalties, liability, suits, costs and expenses (including,
without limitation, reasonable attorneys' fees) and also including without
limitation, costs of remedial action or cleanup, suffered or incurred by Buyer
arising out of or related to any such use of the Properties, or portions
thereof, occurring prior to the conveyance to Buyer, about which Sellers knew or
reasonably should have known prior to closing.
9. BUYER'S AUTHORITY. Buyer represents and warrants to Sellers that
at the date of execution hereof and at the date of closing Buyer, and the person
signing on behalf of Buyer, has full power and authority to execute this
Agreement and to perform Buyer's obligations hereunder.
10. DEFAULT. If either Seller A or Seller B defaults hereunder, Buyer
may seek specific performance of this Agreement, damages or rescission and Buyer
shall be entitled to return of the Deposits with accrued interest, on demand. If
Buyer defaults, the Deposits and accrued interest shall be forfeited to Sellers
as liquidated damages and as Sellers' sole and exclusive remedy and upon payment
thereof to Sellers, Buyer shall have no further obligations or liability
hereunder. In any suit, action or appeal therefrom to enforce this Agreement or
any term or provision hereof, or to interpret this Agreement, the prevailing
party shall be entitled to recover its costs incurred therein, including
reasonable attorneys' fees.
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11. NOTICES. All notices, waivers, elections, approvals and demands
required or permitted to be given hereunder shall be in writing and shall be
personally delivered (by overnight courier service or other means of personal
service) or sent by United States certified mail, return receipt requested, to
the addressee's mailing address set forth on the signature page:
and, in the case of Buyer, a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and, in the case of Seller, a copy to:
▇▇▇▇▇ J FURSTENBERG
▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Either party hereto may, by proper notice to the other, designate any other
address for the giving of notice. Any notice shall be effective when personally
delivered or, if mailed as provided herein, on the date of actual receipt.
12. ASSIGNMENT. Buyer may assign its rights hereunder to any person
or entity provided that an Eagle Hardware & Garden store is constructed and
operated on the site. An assignment for any other use shall require Sellers'
consent which shall not be unreasonably withheld.
13. NO NEGOTIATIONS WITH THIRD PARTY. Sellers shall not negotiate nor
commit to sell, lease or otherwise transfer Property A or Property B or any
portions thereof to any other person or party as long as Buyer is proceeding in
good faith to perform its duties under this Agreement. This covenant shall
remain in full force and be legally binding upon Sellers until termination of
this Agreement.
14. EXCHANGE. Buyer acknowledges that Sellers may elect to sell
Property A and Property B pursuant to a transaction structured to qualify as a
like-kind exchange of real property within the meaning of Section 1031 of the
Internal Revenue Code of 1986, as amended (the "Code"), and any regulations
promulgated thereunder or under successor or similar federal or state statutes
involving exchange of ownership interests in real property, which transaction
contemplates the sale of both Properties in exchange for certain other parcels
of real property. Buyer shall fully (within commercial reasonableness) cooperate
with and accommodate Sellers in effecting a qualifying exchange through a trust,
escrow, multi-party transfer or other means as determined by Sellers, provided
that Buyer shall not be required to incur any obligation or liability to a third
party or take title to any property (other than Property A and Property B) in
connection with such exchange by Sellers nor shall the closing be delayed to
accommodate Sellers. In connection therewith, Sellers shall have the right to
assign their rights (but not their duties) under this Contract, in whole or in
part, to "qualified intermediary," as defined under current Code regulations
governing like-kind exchanges (the "Intermediary") or as otherwise necessary or
appropriate in Sellers' judgment to effectuate one or more like-kind exchanges.
Sellers shall bear any additional transaction costs attributable to exchange
procedures in any exchange transaction requested or implemented by Sellers or
its partners, and shall be solely responsible for assuring the effectiveness of
the exchange for Sellers' purposes.
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15. OBLIGATION OF SELLERS. Buyer acknowledges and agrees that Sellers
are comprised of Havana Street Partnership, a general partnership ("Seller A"),
and ▇▇▇▇▇ ▇. Furstenberg, an individual ("Seller B"), and that Seller A will
convey title to the Property shown on Exhibit A1 as Tract 4 ("Property A") to
Buyer at closing, and that "Seller B" will convey title to the Property shown on
Exhibit A1 as the East 182.79 feet of Tract 2 and all of Tract 3 ("Property B")
to Buyer at closing. Accordingly, any and all obligations, covenants,
agreements, representations and warranties of Sellers with respect to the
Property A and Property B hereunder shall be deemed to be those of Seller A only
with respect to Property A, and to be those of Seller B only with respect to
Property B. The obligations of Seller A and Seller B hereunder shall not be
joint and several, except where the context clearly so indicates.
16. GENERAL. This is the entire agreement of Buyer and Sellers with
respect to the matters covered hereby and supersedes all prior agreements
between them, written or oral. This Agreement may be modified only in writing,
signed by Buyer and Sellers. Any waivers hereunder must be in writing. No waive
of any right or remedy in the event of default hereunder shall constitute a
waiver of such right or remedy in the event of any subsequent default. This
Agreement is for the benefit only of the parties hereto and shall inure to the
benefit of and bind the heirs, personal representatives, successors and assigns
of the parties hereto. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision hereof.
17. SURVIVAL OF WARRANTIES. The terms, covenants, representations and
warranties shall not merge in the deed of conveyance, but shall survive closing.
18. COMMISSIONS. All real estate commissions and/or brokers' fees
shall be payable by Seller at closing to H. C. Properties, Ltd. (the "Broker")
and ▇▇▇▇▇▇▇ Realty ("▇▇▇▇▇▇▇").. Such commissions and/or fees shall be agreed
upon in separate agreements between Sellers, Broker and ▇▇▇▇▇▇▇. Each party
represents to the other that it has engaged no other broker or agent in
connection with the negotiations leading to this Agreement. Sellers agree to
indemnify and hold Buyer harmless from and against all claims and demands of any
and all brokers or agents with respect to the Property.
19. EXHIBITS. Exhibits A and B attached hereto are incorporated
herein as if fully set forth.
Exhibit A - Legal Description
Exhibit B - Site Plan
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20. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Colorado.
21. EFFECTIVE DATE. The later of the Buyer's signature date and the
Sellers' signature date, set forth below, shall be the "Effective Date" of this
Agreement.
BUYER: EAGLE HARDWARE & GARDEN, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Typed name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
June 02 , 1997 Its: Vice President
-----------------------
Buyer's signature date
Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SELLER A: HAVANA STREET PARTNERSHIP,
a General Partnership
By: /s/ ▇▇▇▇▇ ▇. Furstenberg
--------------------------------
Typed name: ▇▇▇▇▇ ▇. Furstenberg
June 4 , 1997 It's: Managing General Partner
-----------------------
Seller A signature date
Address:
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SELLER B: ▇▇▇▇▇ ▇. FURSTENBERG,
an Individual
By: /s/ ▇▇▇▇▇ ▇. Furstenberg
--------------------------------
Typed name: ▇▇▇▇▇ ▇. Furstenberg
June 4 , 1997 Its: an Individual
-----------------------
Seller B signature date
Address:
▇/▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partnership
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Subject to Terms of counter offer PJF
---
FVF
---
As Revised June 24, 1997 PJF
---
FVF
---
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EXHIBIT A
LEGAL DESCRIPTION
PROPERTY A (ALL OF TRACT 4)
AND
PROPERTY B (PORTION OF TRACT 2 AND ALL OF
TRACT 3)
(To be provided by Seller upon completion of the ALTA/ACSM Class A survey as set
forth in Section 3).
EXHIBIT "A"
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EXHIBIT "A"1
[TRACT MAP]
EXHIBIT "B"
[SITE PLAN]
COUNTEROFFER
This is a Counteroffer to that certain Real Estate Purchase and Sale
Agreement between Havana Street Partnership and ▇▇▇▇▇ ▇. Furstenberg
(collectively as "Sellers") and Eagle Hardware & Garden, Inc., as Buyer
("Buyer") for certain real property described on Exhibit A-1 (the "Agreement").
The Sellers do hereby accept the Agreement subject to the following
modifications and amendments:
PARAGRAPHS 2 AND 4.4. Shall be amended to provide that the ▇▇▇▇▇▇▇
Money Deposit shall become non-refundable after ninety (90) days from the
Effective Date except in the event Buyer is unable to obtain approval from the
City of Aurora to open an Eagle Hardware & Garden store on the site, or Seller's
are unable to deliver title to either Property A or Property B at closing or
otherwise fail to perform under this Agreement.
PARAGRAPH 3.3.
PARAGRAPH 6. Shall be amended to provide that the Deed shall be by
Special Warranty Deed.
PARAGRAPHS 8.3, 8.5, 8.6, 8.7, AND. These Sections are modified to
provide to the best of Sellers' knowledge and/or except as provided in the
preliminary title report.
PARAGRAPH 15. Shall be amended to add the following language: "Buyer
acknowledges and agrees that Seller B as Buyer has entered into a Vacant
Land/Farm and Ranch Contact to Buy and Sell Real Estate dated as of February 19,
1997 with ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ as Seller as amended providing for the sale to
Seller B of Property B ("▇▇▇▇▇ Contract"). Seller B shall deliver true and
correct copies of the ▇▇▇▇▇ Contract together with any amendments thereto to
Buyer from time to time. Seller B shall have no obligation to close the
transaction provided for herein if the closing of title under the ▇▇▇▇▇ Contract
fails to occur for any reason pursuant to the terms and conditions of the ▇▇▇▇▇
Contract, except for Seller's default thereunder."
PARAGRAPH 17. The following language is added to Paragraph 17 "for a
period of one year from closing."
The following additional provisions are added to the Agreement:
(a) "Except as set forth in this Agreement, Buyer acknowledges and
agrees that Buyer is purchasing the Property on a "AS IS" basis without any
warranties or representation express or implied with respect to any aspect,
portion or component of the Property."
(b)
(c) To the extent not otherwise defined herein, all capitalized terms
used herein shall have the same definition as in the Agreement
This Counteroffer shall expire unless accepted in writing by Buyer as
evidenced by its signature below and delivered to Sellers on or before June 30,
1997.
BUYER: EAGLE HARDWARE & GARDEN, INC.
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇
June 24, 1997 -------------------------------------
------------------------- ▇▇▇▇▇▇ ▇▇▇▇▇, Vice President
Date
SELLER A: HAVANA STREET PARTNERSHIP,
a General Partnership
By: /s/▇▇▇▇▇ ▇. Furstenberg
June 4, 1997 -------------------------------------
------------------------- ▇▇▇▇▇ ▇. Furstenberg
Date Managing General Partner
SELLER B: ▇▇▇▇▇ ▇. FURSTENBERG,
an Individual
By: /s/▇▇▇▇▇ ▇. Furstenberg
June 4, 1997 -------------------------------------
------------------------- ▇▇▇▇▇ ▇. Furstenberg, an Individual
Date
2
July 3, 1997
VIA FACSIMILE
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Store Development Project Coordinator
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Real Estate Purchase and Sale Agreement for the Approximate Total of
11 Acres of Vacant Land fronting the west side of Havana Street
between East Mexico Avenue on the north and East, Colorado Avenue on
the south
Dear ▇▇▇▇▇:
Based on the discussion between our respective attorneys, we have agreed on
adding the following language in the last sentence to Section 3.3 of the
Contract as follows:
"In the event Seller has notified Buyer in writing that they do not
intend to remove certain exceptions and/or items, Buyer shall have 30
days after receipt of such notice to either terminate the Agreement or
to waive such exceptions and/or items where upon such exceptions
and/or items shall be deemed to be "Permitted Exceptions" under Section
6 herein."
Please sign on the signature line below to evidence your written agreement
to this paragraph.
Sincerely,
HAVANA STREET PARTNERSHIP
By /s/▇▇▇▇▇ ▇. Furstenberg
--------------------------------------
▇▇▇▇▇ ▇. Furstenberg,
Managing General Partner
By /s/▇▇▇▇▇ ▇. Furstenberg
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▇▇▇▇▇ ▇. Furstenberg, an Individual
ACCEPTED:
EAGLE HARDWARE AND GARDEN, INC
By /s/▇▇▇▇ ▇. ▇▇▇▇▇▇ 7/7/97
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▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
cc: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇