EXHIBIT 10.2
REINSTATEMENT AND AMENDMENT OF REAL ESTATE CONTRACT
REINSTATEMENT AND AMENDMENT
OF REAL ESTATE CONTRACT
THIS AGREEMENT is made and entered into as of this 12th day of June , 2000, by
and between L & F Land Company, a Kansas general partnership (the "Seller"), and
Dennis J. Eskie, not individually but solely as nominee for the benefit of
Church of the Resurrection-United Methodist, a Kansas not-for-profit corporation
("Buyer").
RECITALS:
A. Seller and Buyer entered into a Real Estate Contract dated as of January
24, 2000, a copy of which is attached hereto as Exhibit 1 (the "Contract").
B. Buyer terminated the Contract pursuant to a right to do so granted in
Paragraph 6 thereof due to failure to satisfy the financing contingency set
forth in said paragraph within the "Inspection Period" ended April 15,
2000.
C. The parties now desire to reinstate and amend the Contract as hereinafter
set forth.
NOW, THEREFORE, in consideration of the covenants contained in the Contract, as
hereby reinstated and amended, the parties hereto agree as follows:
1. REINSTATEMENT OF CONTRACT. The parties hereby reinstate the Contract, as
amended hereby, and agree and confirm that the Contract, as so amended, is and
shall be in full force and effect and binding upon the parties and their
respective successors and assigns in accordance with its terms.
2. EFFECTIVE DATE OF CONTRACT. The term "Effective Date" as used in the Contract
is hereby amended to mean the date of this Reinstatement and Amendment of Real
Estate Contract first hereinabove set forth.
3. PURCHASE PRICE. Paragraph 2 of the Contract is hereby restated in its
entirety as follows:
"2. Purchase Price. The purchase price (the 'Purchase Price') for the
Premises shall be TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($250,000.00) per acre, payable $4,000,000.00 in cash at closing and the
remaining balance of the Purchase Price (less the Earnest Money) deferred
and payable on January 2, 2001, together with interest on the deferred
portion at a rate of interest equal to the rate of interest payable by Bank
of America, N.A., on its money market accounts during the period from the
Closing Date to January 2, 2001. Buyer's obligation to pay said deferred
portion, together with interest thereon as aforesaid, shall be evidenced by
a promissory note (the 'Note') executed and delivered by Buyer to the order
of Seller on the Closing Date, and secured by a first mortgage on the
Premises executed, acknowledged and delivered by Buyer to Seller on the
Closing
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Date (the 'Mortgage'). The Note and Mortgage shall be in the forms attached
hereto as Exhibit W and Exhibit X, respectively."
4. EARNEST MONEY.
(A) The parties acknowledge that, pursuant to Paragraph 7 of the Contract,
Buyer has heretofore deposited with the Title Company the sum of $5,000.00
as the "Earnest Money" under the Contract. The parties further acknowledge
and agree that $3,444.00 of said sum shall be paid over to Seller as
reimbursement for the fees and expenses of Seller's legal counsel in
connection with the transaction contemplated by the Contract, and the
$1,556.00 balance shall be refunded to Buyer. A copy of this Reinstatement
and Amendment of Real Estate Contract shall be provided to the Title
Company and shall constitute the instructions of Buyer and Seller to the
Title Company to promptly pay said $5,000.00 Earnest Money deposit as above
provided in this paragraph.
(B) Paragraph 7 of the Contract is hereby restated in its entirety as follows:
"7. Earnest Money. On the Effective Date, Buyer shall pay to Seller,
by federal wire transfer of funds to an account designated by Seller to
Buyer in writing ('Seller's Account'), the sum of $150,000.00 as an earnest
money deposit. Said sum of $150,000.00, together with the 'First Extension
Payment' and the 'Second Extension Payment' (hereinafter defined), if and
to the extent subsequently paid by Buyer to Seller as hereinafter provided,
are herein collectively called the 'Earnest Money.' If this transaction
closes, the Earnest Money shall be applied to and shall reduce the Purchase
Price on the Closing Date. If this transaction does not close for any
reason whatsoever other than a default by Seller hereunder, the Earnest
Money shall be retained by Seller and shall be nonrefundable to Buyer.
Seller shall be entitled to retain all interest earned on the Earnest Money
in all events, and shall have no obligation or liability to Buyer for
interest thereon."
5. TITLE MATTERS. Paragraph 3.2 of the Contract is hereby restated in its
entirety as follows:
"3.2. All exceptions to title and other matters shown in the Title
Commitment (other than any existing mortgage on the Premises) and on the
'Survey' (hereinafter defined), and the 'Farm Lease' (hereinafter defined),
shall be 'Permitted Exceptions' hereunder. Buyer expressly acknowledges and
agrees that Seller shall have no obligation to cure or remove any such
title exceptions or matters, or to bring any action or proceeding, or
otherwise to incur any expense in connection therewith other than to cause
any existing mortgage on the Premises to be released and discharged on or
before the Closing Date, and that this Contract and the obligations of
Buyer hereunder are not conditioned upon Buyer's approval of the condition
of title as shown in the Title Commitment and on the Survey. Seller agrees
that during the period from the Effective Date to and including the Closing
Date, Seller shall not cause or permit the Premises or any part thereof to
be subjected to any additional
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easement, restriction, covenant, agreement or encumbrance which would be
binding on the Premises or Buyer after the Closing Date ('Additional
Encumbrance'), without first obtaining Buyer's written consent thereto
(which consent Buyer agrees shall not be unreasonably withheld). Any such
Additional Encumbrance to which Buyer shall consent shall be deemed a
Permitted Exception hereunder."
6. BUYER'S DUE DILIGENCE.
(A) The first sentence of Paragraph 5.1 of the Contract is hereby restated as
follows:
"Buyer shall have the right to conduct, at Buyer's sole cost and
expense, such due diligence investigation relating to the Premises as it
desires."
(B) Paragraph 5.3 of the Contract is hereby restated in its entirety as
follows:
"5.3. If, prior to July 1, 2000, Buyer determines in its sole and
unreviewable discretion that the results of any environmental investigation
of the Premises ('Environmental Review') are not totally acceptable to
Buyer, then Buyer shall have the right and option to terminate this
Contract by giving written notice of termination to Seller on or before
5:00 P.M. on July 1, 2000, in which event the Earnest Money shall be
retained by Seller and the parties shall be released from all obligations
hereunder except those herein expressly provided to survive the termination
of this Contract. If Buyer does not so terminate this Contract by 5:00 P.M.
on July 1, 2000, Buyer shall have no further right to terminate under this
Paragraph 5.3, time being of the essence hereunder. It is expressly
understood and agreed that, notwithstanding that Buyer has the right to
conduct any and all such investigation, inspection and review of the
Premises as it may desire in accordance with the provisions of Paragraphs
5.1 and 5.2 above, this Contract is not contingent upon Buyer's approval of
the results of any of its investigation, inspection or review except its
Environmental Review, and that Buyer has no right to terminate this
Contract under this Paragraph 5.3 except due to Buyer's disapproval of the
results of its Environmental Review."
(C) The following new Paragraph 5.4 is hereby added to the Contract, following
Paragraph 5.3:
"5.4. Buyer covenants and agrees that it will not, at any time prior
to full payment and satisfaction of the Note, take any irreversible or
irrevocable action with respect to the Premises, cause any final action to
be taken with respect to any platting, replotting, zoning or rezoning of
the Premises or any part thereof, subject the Premises to any easement,
agreement, restriction or encumbrance of any kind whatsoever, or record any
document or instrument with respect to the Premises."
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7. SEC APPROVAL CONTINGENCY. Paragraph 6 of the Contract is restated in its
entirety as follows:
"6. SEC Approval Contingency.
"6.1. This Contract and all obligations of Buyer hereunder are
conditioned upon 'Buyer's Assignee' (hereinafter defined in Paragraph 15)
having obtained, on or before August 1, 2000, approval from the Securities
and Exchange Commission ("SEC") for Buyer's Assignee's registration
statement to become effective in connection with the proposed public
offering of membership interests in Buyer's Assignee ("SEC Approval").
Buyer agrees to cause Buyer's Assignee to file a complete registration
statement for SEC Approval, together with payment of all required fees
relating thereto, on or before June 19, 2000, and thereafter to cause such
application to be diligently pursued in good faith. Buyer shall furnish
Seller copies of all submittals to the SEC, responses from the SEC and
other communications between Buyer's Assignee and the SEC, including (if
obtained) SEC Approval."
"6.2. If SEC Approval shall not be obtained on or before August 1,
2000, Buyer shall have the option, in Buyer's sole and absolute discretion,
by written notice to Seller given not later than 5:00 P.M. on August 1,
2000, to either (i) waive compliance with the foregoing condition precedent
and proceed under this Contract, or (ii) cancel this Contract, and in the
event of cancellation the Earnest Money shall be retained by Seller and the
parties shall be released from all obligations hereunder except those
herein expressly provided to survive the termination of this Contract, or
(iii) extend the time for obtaining SEC Approval for one month to and
including September 1, 2000 (said first additional period being herein
called the "First Extension Period") provided Buyer shall pay to Seller, by
federal wire transfer of funds to Seller's Account, on or before 5:00 P.M.
on August 1, 2000, the additional sum of $100,000.00 (the "First Extension
Payment"). The First Extension Payment shall be deemed part of the Earnest
Money hereunder and shall be applied to and shall reduce the Purchase Price
upon the closing of this transaction; however, if this transaction does not
close for any reason whatsoever other than a default by Seller hereunder,
all of the Earnest Money (including the First Extension Payment) shall be
retained by Seller. If Buyer shall fail to give Seller written notice of
Buyer's election under the foregoing provisions of this Paragraph 6.2 by
5:00 P.M. on August 1, 2000, Buyer shall automatically be deemed to have
waived compliance with the foregoing condition precedent, and thereafter
shall not have the right to cancel this Contract or so extend the time for
obtaining SEC Approval pursuant to this Section 6.2, time being of the
essence hereunder."
"6.3. If Buyer shall have extended for the First Extension Period, and
SEC Approval shall not be obtained within the First Extension Period, then
Buyer shall have the option, in Buyer's sole and absolute discretion, by
written notice to Seller given not later than 5:00 P.M. on September 1,
2000, to either (i) waive compliance with the foregoing condition precedent
and proceed under this Contract,
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or (ii) cancel this Contract, and in the event of cancellation the Earnest
Money (including the First Extension Payment) shall be retained by Seller
and the parties shall be released from all obligations hereunder except
those herein expressly provided to survive the termination of this
Contract, or (iii) further extend the time for obtaining SEC Approval for
one additional month to and including October 1, 2000 (said second
additional period being herein called the "Second Extension Period")
provided Buyer shall pay to Seller, by federal wire transfer of funds to
Seller's Account, on or before 5:00 P.M. on September 1, 2000, the
additional sum of $100,000.00 (the "Second Extension Payment"). The Second
Extension Payment shall be deemed part of the Earnest Money hereunder and
shall be applied to and shall reduce the Purchase Price upon the closing of
this transaction, but if this transaction does not close for any reason
whatsoever other than a default by Seller hereunder, all of the Earnest
Money (including the First Extension Payment and the Second Extension
Payment) shall be retained by Seller. If Buyer shall fail to give Seller
written notice of Buyer's election under the foregoing provisions of this
Paragraph 6.3 by 5:00 P.M. on September 1, 2000, Buyer shall automatically
be deemed to have waived compliance with the foregoing condition precedent,
and thereafter shall not have the right to cancel this Contract or so
extend the time for obtaining SEC Approval pursuant to this Paragraph 6.3,
time being of the essence hereunder."
"6.4. If Buyer shall have extended for the Second Extension Period,
and SEC Approval shall not be obtained within the Second Extension Period,
then either (i) Buyer shall, if it elects to do so in its sole and absolute
discretion, waive compliance with the foregoing condition precedent and
proceed under this Contract, by written notice to Seller given not later
than 5:00 P.M. on October 1, 2000, or (ii) this Contract shall
automatically be deemed cancelled, and in the event of cancellation the
Earnest Money (including the First Extension Payment and the Second
Extension Payment) shall be retained by Seller and the parties shall be
released from all obligations hereunder except those herein expressly
provided to survive the termination of this Contract."
8. CLOSING. Paragraph 8.1 of the Contract is hereby restated in its entirety
as follows:
"8.1. The closing (the 'Closing') of this transaction will take place
at the offices of the Title Company on the date which is 60 days after
Buyer's receipt of SEC Approval, or such earlier date as may be agreed upon
by the parties, unless this Contract is terminated by Buyer or Seller as
provided herein."
9. 137TH STREET IMPROVEMENTS AND ESCROW.
(A) The next-to-last sentence of Paragraph 10 of the Contract is hereby
restated as follows:
"The parties hereby agree that effective upon Buyer obtaining SEC
Approval (if SEC Approval be obtained), Seller shall deliver, and Buyer
shall cause Church of the Resurrection-United Methodist (the "Church")
to deliver, (a) an agreement in the
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form of Exhibit Y attached hereto (the 'Street Termination Agreement')
terminating the Street Agreement and releasing each party thereto from
all obligations and liability thereunder, whether accrued prior to the
date of such termination or to accrue thereafter under the Street
Agreement, and (b) joint instructions to Escrow Agent to immediately
deliver to each party free of escrow its respective Street Escrow
Deposit together with all interest earned thereon (the 'Street
Disbursement Instructions'), in the form of Exhibit Z attached hereto.
Seller and the Church have executed the Street Termination Agreement
and the Street Disbursement Instructions on the Effective Date hereof
and have deposited them with Escrow Agent, to automatically become
effective upon the issuance of SEC Approval. Buyer agrees, immediately
upon receipt of SEC Approval, to furnish copies thereof to Seller and
Escrow Agent."
(B) The last sentence of Paragraph 10 of the Contract is hereby restated as
follows:
"Notwithstanding any provision of the Street Agreement to the contrary,
Buyer agrees, effective as of the Effective Date, that it shall be
solely responsible, without contribution from Seller, for the payment
of all fees and expenses of Shafer, Kline & Warren, Inc. relating to
the proposed construction of 137th Street, including, without
limitation, preparation of plans for 137th Street and all revisions
thereto."
10. ASSIGNMENT BY BUYER. Paragraph 15 of the Contract is hereby restated in its
entirety as follows:
"15. Assignment. Buyer may transfer and assign this Contract and all
(but not less than all) of Buyer's rights, obligations and interests
hereunder at its discretion and without the prior approval of Seller, to
COR Development LLC, a Kansas limited liability company ('Buyer's
Assignee'), provided, however, that as a condition precedent to such
transfer and assignment, Buyer's Assignee shall assume all duties and
obligations of Buyer hereunder. Buyer shall not be released from its duties
or obligations under this Contract by virtue of such transfer or assignment
of this Contract. Buyer shall not otherwise transfer or assign its rights
or obligations under this Contract without the prior written consent of
Seller as hereinafter provided in this Section 15, and no such transfer or
assignment in violation of the foregoing shall be valid or enforceable.
Seller agrees that it shall consent to an assignment by Buyer to a person
or entity other than Buyer's Assignee provided the assignment and
assumption is being made effective at the closing upon all of the following
having occurred: (a) all contingencies applicable to Buyer's closing
obligations have been satisfied; (b) $4,000,000.00 of the Purchase Price
and the executed Note and Mortgage have been deposited into escrow with the
Title Company; (c) all of the Buyer's closing obligations have been
satisfied; and (d) the Buyer has irrevocably authorized and directed the
Title Company to proceed to close the escrow and administer the closing of
this transaction subject only to Seller making the deliveries required of
it pursuant to Paragraph 8.2 hereof and consenting to the assignment."
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11. TERMINATION OF RESALE COVENANT ON BUYER'S ADJACENT PROPERTY.
(A) Seller and Buyer acknowledge that, pursuant to a Real Estate Contract dated
as of April 23, 1998 (the "South Parcel Contract"), between Seller and
Church of the Resurrection-United Methodist (the "Church"), the Church
purchased from Seller the property to the south of the Premises, now
platted as Lot 2, Church of the Resurrection Second Plat, a subdivision in
the City of Leawood, Johnson County, Kansas (the "South Parcel"). The
parties further acknowledge that Paragraph 18 of the South Parcel Contract
contains the following provisions (collectively, the "South Parcel Resale
Covenant"):
"18. Resale of Premises by Buyer. In the event that, prior to the
expiration of ten (10) years from and after the date of recording of the
Warranty Deed in the real property records of Johnson County, Kansas, Buyer
shall sell, ground lease or otherwise transfer or convey, assign or dispose
of (any of the foregoing herein called a 'Disposition') all or any part of
the Premises to any party which is not a 'Buyer Affiliate' (as defined in
Paragraph 21), the Net Proceeds resulting from such Disposition shall be
distributed between Seller and Buyer as follows: (i) Buyer shall be
entitled to retain that portion of the Net Proceeds as shall equal
SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($75,000.00) per acre, prorated
for any fraction of an acre, of the land which is the subject of the
Disposition (the 'Subject Property') plus all interest paid by Buyer from
and after the Closing Date as interest on loan proceeds used by Buyer for
the purchase of the Premises at the Closing of this transaction or a
proportionate part of such interest if the Subject Property is less than
all of the Premises (herein referred to as 'Buyer's Return of Costs'); (ii)
Seller shall be entitled to receive and shall be paid all Net Proceeds
resulting from such Disposition in excess of Buyer's Return of Costs up to
but no more than an amount equal to TEN THOUSAND AND NO/100 DOLLARS
($10,000.00) per acre, prorated for any fraction of an acre, of land
constituting the Subject Property (herein referred to as 'Seller's Retained
Profit Interest'); and (iii) Buyer shall be entitled to receive and Seller
shall have no right, title, or interest in all or any portion of the Net
Proceeds resulting from such Disposition in excess of Buyer's Return of
Costs plus Seller's Retained Profit Interest. To the extent that any
portion of the Net Proceeds resulting from such Disposition shall be
deferred until after the date of the closing of such Disposition, Buyer and
Seller shall be entitled to receive and be paid their respective interests
in such Net Proceeds when due and paid by the buyer of the Subject
Property. 'Net Proceeds' shall mean the gross proceeds resulting from such
Disposition payable to Buyer (which for a ground lease shall mean the
aggregate gross amount payable by the lessee thereunder for the entire term
of the lease including extension options) less usual and customary costs
and expenses of the Disposition payable by Buyer, such as title insurance
premiums, survey costs, recording fees, and escrow closing fees, but
excluding attorneys' fees and due diligence costs incurred by Buyer. Until
the expiration of ten (10) years from
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and after the date of recording of the Warranty Deed in the real property
records of Johnson County, Kansas, the obligations of the parties under
this Paragraph 18 shall run with the land and shall be binding upon all
successors in interest to each of Buyer and Seller, and each covenants and
agrees to so advise its successors in interest in writing, cause said
successors to agree in writing to be bound hereby, and provide the other
party copies of the foregoing; provided, however, it is expressly agreed by
and between the parties, that any and all rights or interests of Seller in
and to the Net Proceeds resulting from such a Disposition shall expire and
be forever extinguished as of the 10th anniversary of the date of recording
of the Warranty Deed."
Seller and Buyer acknowledge that the term "Buyer Affiliate" as defined in
Paragraph 21 of the South Parcel Contract means a not-for-profit entity
affiliated with the Church or The United Methodist Church.
(B) Seller agrees with Buyer that, effective upon (but not until) the closing
of the transaction contemplated in the Contract, as herein reinstated and
amended, and recording of the deed conveying title to the Premises to
Buyer, the South Parcel Resale Covenant shall automatically terminate in
its entirety and thereafter shall be of no force or effect. Seller shall
execute and deliver to Buyer on the Closing Date a written confirmation of
such termination, in form and substance reasonably satisfactory to Seller
and Buyer.
IN WITNESS WHEREOF, Seller and Buyer have executed this Reinstatement and
Amendment of Real Estate Contract as of the date first above written.
SELLER:
L&F LAND COMPANY, a Kansas general partnership
By: LANER REAL ESTATE HOLDINGS, L.L.C., a
Missouri limited liability company,
its General Partner
By: /s/ Harlan S. Laner
Harlan S. Laner, Managing Member
BUYER:
/s/ Dennis J. Eskie
DENNIS J. ESKIE, not individually but solely as
nominee for the benefit of CHURCH OF THE
RESURRECTION - UNITED METHODIST, a Kansas
not-for-profit corporation
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