EXHIBIT 10.22
REAL ESTATE CONTRACT
This Agreement ("Agreement") is entered into by and between Capitol
Development of Arkansas, Inc. (hereinafter referred to as "Seller") and Steve
Hockersmith, the agent for an unidentified Purchaser (hereinafter referred to as
"Purchase") pursuant to the following terms and conditions:
1. SALE AND PURCHASE Seller agrees to sell to Purchaser, and Purchaser agrees to
purchase from Seller, for the consideration and subject to the terms,
conditions, and provisions hereinafter stated, that certain real property (the
"Property") described as:
lands Lying in west half of Section 32, Township 3 north, range 13 west
Maumelle, Pulaski County, Arkansas, containing approximately 67.51 acres
more or less. (less attached legal Exhibit A.)
2. PURCHASE PRICE. The purchase price for the Property shall be approximately
one million five hundred fifty-two thousand seven hundred thirty dollars and
no/100 ($1,552,730.00). The exact purchase price shall be determined from the
new survey referred to in paragraphs 1 and 5 hereof, by multiplying the exact
acreage of the subject Property by twenty-three thousand dollars and no/100
($23,000.00) per acre.
3. PAYMENT OF PURCHASE PRICE. The purchase price shall be payable as follows:
Cash at Closing.
4. TITLE INSURANCE. Within twenty (20) business days of acceptance, Seller shall
furnish to Purchaser, at Seller's cost, a commitment for an American Land Title
Association (ALTA) owner's title insurance policy on the Property in the amount
of the purchase price issued by a company authorized to insure title to real
Property in the state of Arkansas and which company is reasonably acceptable to
Purchaser along with legible copies of any special exceptions referred to in the
title commitment.
Where the title commitment shows special exceptions to title other than
those standard exceptions contained in the ALTA commitment form, and where such
special exceptions relate to restrictions, conditions, defects or other matters
which would interfere with Purchaser's use or, in Purchaser's sole discretion,
adversely affect the value of the Property, then within ten (10) business days
of delivery of the title commitment, legible copies of any exceptions, and the
survey described in paragraph 5, Purchaser shall deliver written notice thereof
to Seller. Such notice shall state specifically those exceptions to which
Purchaser objects. All objections not specifically enumerated within such a
timely delivered notice shall be deemed to be waived by Purchaser.
Within twenty (20) business days of Purchaser to Seller, Seller may cure
such objections or have the exceptions waived or removed by the title company
issuing the commitment. If, within such twenty (20) business day period, Seller
fails to cure and/or have waived such objection and exceptions, or within that
period, Seller delivers written notice to Purchaser that it
will not so cure (whichever is applicable), Purchaser shall have the option to:
a. Terminate this Agreement by delivering written notice thereof to Seller, in
which event all sums paid or deposited by Purchaser shall be resumed to
Purchaser; or
b. Purchase the Property subject to such objections and exceptions with no
reduction in the purchase price; or
c. Agree to extend the Closing Date for thirty (30) days to give Seller
additional time to cure such objections.
If Purchaser fails to deliver notice of termination or grant an extension
of the Closing Date within that period, the objections shall be deemed to be
waived and the transaction shall close as scheduled.
Seller shall furnish the committed final owner's title policy as soon as
practicable after Closing, and shalt pay all expenses related to this title
insurance policy for a standard 3.0 policy. Said final owner's policy shall be
delivered with all general or so called standard exceptions deleted.
5. SURVEY. Within twenty (20) business days from Seller's acceptance of this
Agreement, Seller shall obtain at Seller's expense a current survey of the
Property, prepared by an Arkansas registered land surveyor, acceptable to
Purchaser, showing boundaries, dimensions, improvements, location of all
utilities, encroachments, legal description, and the surveyor's certification,
indicating that the survey has been prepared for the benefit of both Seller and
Purchaser, Purchaser's lender and the title company. The current survey shall be
prepared and certified in accordance with the ALTA standards so that the title
insurance issuer can remove the survey exception from the standard exceptions in
the title policactory to Purchaser. The survey shall indicate that all land
subject to this Agreement is located outside the "one hundred year flood plain"
as determined by the U.S. Army Corps of Engineers. If any of the Property is
shown to be in the "one hundred year flood plain", Purchaser can declare this
Agreement null and void and Purchaser's earnest money shall be promptly returned
to Purchaser. If within three (3) business days Purchaser has not objected to
the survey or any lands within the one hundred year flood plain then this
condition to Closing is waived by Purchaser.
6. WARRANTY DEED AND POSSESSION. At the time of the Closing, Seller shall
deliver to Purchaser a general warranty deed conveying the Property to
Purchaser, free of any liens, encumbrances and mortgages of any kind whatsoever.
7. TAXES. Seller warrants that all taxes, charges and other assessments on the
Property are paid (or will be paid at the "Closing") including the immediate
past real estate tax year for his or her respective tracts. Taxes for the
current real estate tax year shall be prorated between Seller and Purchaser as
of the Closing Date, based on most current statements.
8. CLOSING. Closing (hereinafter referred to as the "Closing") shall take
place at Beach
Abstract & Guaranty company in Little Rock, Arkansas on or before
ten (10) days after removal of said conditions, or at such other place, time and
date as Seller and Purchaser may agree upon (said date is herein referred to as
the "Closing Date"). Closing date shall be no later than April 15, 1997 (see
paragraph 13).
9. COMMISSIONS. In the event this transaction closes, and only in that event,
Seller agrees to pay a five percent (5%) fee for professional services rendered
in connection with this contract at Closing to Vogel-Jones Realty Company
(Broker) of Little Rock, Arkansas. Vogel-Jones Realty Company (Broker) shall
receive 4.25% and John W. DeHaven, (co-broker), shall receive .75%. Each of the
parties hereto agrees to indemnify, protect, defend and hold harmless the other
estate commissions arising from this transaction and the conduct of the
indemnifying party, except the above stated fees due by Seller and Broker.
10. EARNEST MONEY. Upon acceptance of this Contract, Purchaser agrees to deposit
a check for twenty thousand dollars and no/100 ($20,000.00) as earnest money
which shall apply to the purchase price. Earnest money shall be held in escrow
by Beach Abstract & Guaranty Company in an interest bearing account. If title
requirements are not fulfilled, or if the contingencies described in paragraphs
4, 5 and 13 are not removed, then the earnest money deposit together with the
interest earned thereon shall be refunded to Purchaser. If Seller has complied
with all of its obligations herein contained, and all of the conditions herein
have been met to Purchaser's satisfaction or waived in writing by Purchaser, but
Purchaser fails to proceed with the purchase of said Property, then Seller shall
have as its sole and exclusive remedy the right to declare the earnest money
forfeited to Seller as liquidated damages.
11. CLOSING COSTS. Seller shall pay for the cost of title insurance, all tax
certificates, real estate transfer taxes attributable to Seller, and its share
of prorated real estate taxes and special assessments. Purchaser shall pay for
its prorated real estate taxes, special assessments and the recording fee for
the deed and mortgage and real estate transfer taxes attributable to Purchaser.
Should there be any title curative instruments, same shall be prepared and
recorded at Seller's expense. Seller and Purchaser agree to pay their own
respective attorney's fees. Additionally, any expenses, charges and fees of the
Closing, not specifically allocated herein, shall be born by the parties
according to n Little Rock, Arkansas.
12. CONDEMNATION. In the event that during the period of time after the date of
this Agreement and prior to the Closing Date, any portions of the Property taken
in condemnation or under right of eminent domain (or conveyed in lieu thereof),
Seller shall notify Purchaser in writing of such condemnation or conveyance in
lieu thereof, and Purchaser may, at its option, either:
a. terminate this Agreement in which case neither party shall have any further
liability under this Agreement; or
b. receive a pro-rata reduction in such purchase price, based on a revised
survey, and proceed to consummate this Agreement as to the remaining portion of
the Property in accordance with the terms and provisions of this Agreement.
13. ENGINEERING AND FEASIBILITY STUDY. Purchaser, at its expense, may conduct
such soil, engineering, environmental and feasibility tests and permit request
submissions as Purchaser may deem appropriate to determine whether or not the
Property is suitable for Purchaser's intended use at costs which Purchaser deems
acceptable in its sole judgment. If such tests or studies, etc. indicate, in
Purchaser's sole judgment, that the Property is not suitable for Purchaser's
intended use, Purchaser shall have the right to terminate this Agreement by
sending written notice to Seller within forty-five (45) days from the date the
conditions in paragraph 4 and 5 hereof have been removed by Seller. In the event
this Agreement is terminated pursuant to this paragraph, the earnest money
deposit together with interest earned therein shall be refunded to Purchaser,
except actual costs incurred by Seller for the preliminary title commitment and
survey which shall be paid to Seller out of such earnest money deposit. Seller
hereby indemnifies Purchaser and holds Purchaser harmless from and against any
and all claims and liabilities arising in any manner whatsoever out of any
hazardous waste on, about, incident upon or in the location affecting the
Property. This indemnity shall survind delivery of the warranty deed herein
required. Closing date shall be no later than April 15, 1997. In the event
closing does not occur by April 15, 1997, the purchase price shall increase to
$1,600,000.00 and all other terms and conditions shall remain in effect until
May 15, 1997. If transaction is not closed by May 15, 1997, this contract shall
become null and void.
14. PURCHASER'S RIGHT TO ENTER PROPERTY. Purchaser and its employees and
agents shall have the right and permission from the date hereof while this
Agreement is in effect to enter upon the Property or any part thereof at all
reasonable times and from time to time for the purpose, at Purchaser's cost and
expense, of making all engineering and other tests or studies both surface and
subsurface required for the completion of the engineering and feasibility work
specified in paragraph 13; however, Purchaser shall indemnify and hold harmless
Seller from and against any mechanics or any other liens or claims of any nature
that may be filed or asserted against the Property or Seller by anyone
performing such work for Purchaser.
15. UTILITIES SUFFICIENT. Seller warrants and represents that there are water,
sewer, gas and electricity lines to the Property which are available for
connection by Purchaser at standard rates. This warranty shall be deemed made by
Seller and confirmed as of the Closing Date and shall be deemed to survive the
Closing Date.
16. REPRESENTATIONS AND WARRANTIES. Seller hereby represents and warrants to
Purchaser, which representations and shall be deemed made by Seller to Purchaser
as of the Closing Date, that:
a. Restrictions. There are no recorded or unrecorded deed restrictions affecting
any portion of the Property.
b. Condemnation or Assessment. There is not pending or threatened condemnation
or similar proceeding or assessment affecting the Property, or any part thereof,
nor to the best knowledge and belief of Seller is any such proceeding or
assessment contemplated by any governmental authority, other thnt districts that
may affect the Property.
c. Compliance. To the best of its knowledge, Seller has complied with applicable
laws, ordinances, regulations, statutes, rules and restrictions relating to the
Property and every part thereof.
d. Litigation. There is no litigation or actual knowledge of threatened
litigation affecting Seller or the Property which would in any way constitute a
lien, claim, or obligation of any kind against the Property.
e. Contamination. To the best of its knowledge, Seller believes that subject
Property is free from any and all environmental hazards, toxic substances and
hazardous wastes.
17. COVENANTS. Seller covenants and agrees as follows
a. From the date hereof to the date of Closing, Seller will perform all of its
monetary and non-monetary obligations under any prior lien indebtedness(es) and
the liens securing same, if any.
b. From the date hereof to the date of Closing, Seller will not allow any lien
to be attached to the Property or any part thereof except the lien for ad
valorem taxes and special assessments which are not due and payable, nor will
Seller grant, create, or voluntarily allow the creation of, or amend, modify or
change, any easement, right-of-way, encumbrances, restriction, covenant, lease
or other right affecting the Property or any part thereof.
c. From the date hereof to the date of Closing, Seller will maintain the
Property in good order and condition and in substantially the condition that
exists on the date hereof.
d. From the date hereof to the date of Closing Seller will notify Purchaser of
any event affecting the Property or any part thereof promptly upon learning of
the occurrence of such event.
In the event of default by Seller in the performance of its obligations
under this paragraph 18. Purchaser (without any obligations to do so) may cure
such default and may offset the cost doing so against the purchase price.
18. CONTINGENCIES. The Closing of this Contact is subject to and expressly
contingent upon:
a. The agreement of both parties as to the exact location and dimensions of the
Property, as outlined in paragraph 1 and 5 hereof within twenty (20) days from
the acceptance of this Agreement.
b. Purchaser shall have obtained suitable, in Purchaser's sole opinion,
financing to purchase the Property and develop the improvements thereon prior to
Closing.
c. Purchaser shall have obtained suitable, in Purchaser and lender's sole
opinion, an appraisal report for the 67.51 acres in an amount to be no less than
one million, five hundred fifty-two thousand, seven hundred thirty dollars and
no/100 ($1,552,730.00) prior to Closing.
d. Verification from the City of Maumelle allowing R-1 residential use.
19. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
20. ASSIGNMENT Agreement may be assigned by Purchaser and all powers, rights and
privileges herein reserved and given to Purchaser or the Seller shall inure to
the benefit of and be held by the respective successors and assigns of the
parties, and all liabilities or obligations imposed on each shall be binding
upon the respective successors and assigns of the parties.
21. NOTICE. Any notice, demand or request which may be permitted, required or
desired to be given in connection herewith shall be in writing and deemed given
when directed to the Seller and Purchaser by certified mail, return receipt
requested, postage prepaid, at the respective addresses stated on the signature
line of this Agreement. In the event such notice or other communication is
effective by personal delivery, the date and hour of actual delivery shall fix
the time of notice.
22. ENTIRE AGREEMENT. This Agreement shall represent the entire agreement by and
between the parties hereto, except as otherwise provided for herein and it may
not be changed except by written agreement duly executed by the parties hereto.
23. CAPTIONS. The headings in this Agreement have been used for administrative
convenience only, and shall not be used in interpreting or construing the
meaning of any provision of this Agreement.
24. FURTHER. In the event any supplemental agreement or writing contemplated
hereunder is not executed at or prior to the Closing through oversight or
otherwise, the terms and provisions of this Agreement shall nevertheless survive
the Closing of the sale and purchase and shall continue in full force and effect
until all such obligations are fully performed and satisfied.
25. SURVIVAL OF COVENANTS. The respective obligations and covenants herein
contained are of a continuing nature and shall survive the Closing Date.
26. AUTHORITY. All parties to this Agreement warrant and represent that they
have the power and authority to enter into this Agreement in the names, titles
and capacities herein stated and on behalf of any entities, persons represented
by such person, and that all formal requirements necessary or required by any
state or federal law in order for Seller to enter into this Agreement have been
complied with fully. Seller hereby further represents, warrants and covenants to
and for the benefit of Purchaser, its successors and assigns that Seller's
entering into, execution and performance of this Contract has been duty
authorized by its Board of Directors, and will not violate or contravene any
statute, regulations, agreement, contract, indenture or similar instrument,
written or oral, to which Seller or any subsidiary company or agent of Seller or
the Property is bound or by which they (it) may be affected.
27. SEVERABILITY. If any provisions of this Agreement shall, for any reason, be
held violative of any applicable law, and so much of said Agreement is held to
be unenforceable, then the
invalidity of such specific provisions herein shalt not be held to invalidate
any other provisions herein which shall remain in full force and effect.
28. AGENCY. Purchaser and Seller acknowledge Vogel-Jones Realty Company is
representing the Purchaser in this transaction. All licensed personnel
associated with Vogel-Jones Realty Company represent and are responsible to the
Purchaser.
Steve Hockersmith, as agent for an unidentified Purchaser, is a licensed real
estate salesman in Little Rock, Arkansas.
Executed by Purchaser in multiple original copies effective the 28th day of
February, 1997.
This Agreement is binding if executed by Seller by 5:00 p.m. Wednesday, February
28th, 1997.
This Agreement is accepted by Seller at 3:30 p.m., Feb. 28, 1997.
SELLER: PURCHASER:
CAPITOL DEVELOPMENT OF
ARKANSAS INC.
By: /s/ David Paes By: /s/ Steve Hockersmith
David Paes Steve Hockersmith
Vice President Agent for unidentified Buyer
Agents: Vogel-Jones Realty Company
By Steve Hockersmith
11219 Financial Centre Parkway,
Suite 300
Little Rock, Arkansas 72211
Phone: (501)225-6018
Fax: (501)225-6308
Principal Broker:
/s/ Robert A. Vogel 2-28-97
Robert A. Vogel Date
Vogel-Jones Realty
LANDS LYING IN THE WEST HALF OF SECTION 32. TOWNSHIP 3 NORTH, RANGE 13
WEST. Maumelle LE. PULASKI COUNTY, ARKANSAS BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
Commencing at the Southeast Corner of said Section 32; thence along the South
line of said West half of Section 32 South 88 31' 15' East, 716.72 feet, thence
leaving said South line North 01, 28' 45 29.64 feet to the point of beginning
thence North 39 05' 24" West. 351 16 feet: thence North 47 13 58- West, 671 55
feet; thence North 08 15'04" East 334.46 feet; thence North 56 45'32" East,
176.95 feet; thence North 08 35'01 West, 268 00 feet; thence North 39 29'12"
East. 183.99 feet; thence South 82 48'03" East. 95.75 feet; thence North 08
01'21" East. 300.95 feet: thence North 0l 47'04" West. 642.31 feet; thence North
31 24' 23' East. 466.32 feet; thence South 51 20'25" East. 204.90 feet; thence
South 66 34 '37" East. 163.43 feet; thence North 77 39' 39" East. 163.78 feet;
thence North 49 26' 33" East. 274.32 feet to a Point on the South Right of Way
line of South Odom Boulevard; thence along said South Right of Way l in along a
6.8606 degree curve to the left 560.43 feet to a point which has a chord bearing
and distance of South 52 27' 51" East. 549.97 feet thence South 67 48'01" East.
105.60 feet: thence leaving said South Right of Way line South 34 10' 37" West.
207 84 feet; thence South 27 4 '21" West. 800.00 feet; thence South 64 10' 59"
East. 150.09 feet; thence South 04 15' 28" West. 339.65 feet thence South 67 03'
45" West. 223.64 feet; thence South 23 56' 24" West. 710.90 feet; thence South
62 30' 03" East. 493.10 feet; thence South 49 19' 45" West. 111.30 feet thence
South 70 38' 07" West. 645.93 feet to the point of beginning containing 67.51
acres, more or less.
EXHIBIT "A"
AMENDMENT TO REAL ESTATE CONTRACT
This Amendment to Real Estate Contract (this "Amendment") is entered into
by and between Capitol Development of Arkansas, Inc. (hereinafter referred to as
"Seller'') and Steve Hockersmith, the agent for an unidentified purchaser
(hereinafter referred to as "Purchaser"). Seller and Purchaser entered into a
Real Estate Contract for the sale of approximately 67.51 acres dated effective
February, 28, 1997 for the sale of a certain tract of land containing
approximately 67.51 acres more or less, and described on Exhibit "A", attached
hereto (the "Contract").
Purchaser has notified Seller this date by letter from its attorney which
is marked Schedule "B" and affixed hereto that Purchaser is ready, willing and
able to close the purchase, but Seller requires additional time in order to
obtain all necessary documents for closing the transaction.
The last three sentences of Section 13 of the Contract provides, "Closing
date shall be no later than April 15, 1997. If closing does not occur by April
15, 1997, the purchase price shall increase to $1,600,000.00, and that all other
conditions shall remain in effect until April 15, 1997. If the Contract does not
close by May 15, 1997, this Contract shall become null." The quoted last three
sentences of said Section 13 are hereby stricken and are hereby revised to
provide as follows:
"Closing date shall be no later than April 30, 1997. In the event closing does
not occur by April 30, 1997, the Purchase Price shall increase to $1,600,000.00,
and all other terms and conditions shall remain in effect until May 30, 1997. If
the transaction is not closed by May 30, 1997, this Contract shall become null
and void."
The parties agree that all other terms and conditions, except as amended
herein, are hereby confirmed and affirmed.
IN WITNESS WHEREOF, the Purchaser and Seller have executed this Amendment
effective this 14th day of April, 1997.
CAPITOL DEVELOPMENT OF ARKANSAS, INC.
BY: /s/ Michael G. Todd
Michael FOR
UNIDENTIFIED PURCHASER
SECOND AMENDMENT TO REAL ESTATE CONTRACT
This Second Amendment to Real Estate Contract (this "Second Amendment") is
entered into by and between Capitol Development of Arkansas, Inc (hereinafter
referred to as "Seller") and Steve Hockersmith, the agent for an unidentified
purchaser (hereinafter referred to as "Purchaser"). Seller and Purchaser entered
into a Real Estate Contract for the sale of approximately 67.51 acres dated
effective February 28, 1997 for the sale of a certain tract of land containing
approximately 67.51 acres more or less, and described on Exhibit "A", attached
hereto (the "Contract"), and amended same by an Amendment to Real Estate
(contract dated April 14, 1997 (the "First Amendment")).
Purchaser has notified Seller by letter from its attorney which is marked
Schedule "B" and affixed hereto that Purchaser is ready, willing and able to
close the purchase, but Seller requires additional time in order to obtain all
necessary documents for closing the transaction.
The last three sentences of Section 13 of the Contract, as amended by the
First Amendment, provides, "Closing date shall be no later than April 30, 1997.
If closing does not occur by April 30 1997, the purchase price shall increase
to $1,600,000.00, and that all other conditions shall remain in effect until May
30, 1997. If the Contract does not close by May 30, 1997, this Contract shall
become null." The quoted last three sentences of said Section 13 are hereby
stricken and are hereby revised to provide as follows:
"Closing date shall be no later than May 15, 1997. In the event closing does
not occur by May 15, 1997, the purchase Price shall increase to $1,600,000.00,
and all other terms and conditions shall remain in effect until June 15, 1997.
If the transaction is not closed by June 15, 1997, this Contract shall become
null and void."
The parties agree that all other terms and conditions, except as amended
herein) are hereby confirmed and affirmed.
IN WIT Amendment effective this 29th day of April, 1997.
CAPITOL DEVELOPMENT OF ARKANSAS, INC.
BY: /s/ Michael G. Todd
Michael G. Todd, President
/s/ Steve Hockersmith
STEVE HOCKERSMITH, AGENT FOR
UNIDENTIFIED PURCHASER