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EXHIBIT A
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REAL ESTATE PURCHASE CONTRACT
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THIS CONTRACT is made effective as of the 13th day of
November, 1995, by and between Tower Properties Company
("BUYER"), and OPBA Inc., a North Carolina corporation
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("SELLER").
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For and in consideration of mutual covenants, Buyer and
Seller hereby agree as follows:
SECTION 1. THE PROPERTY. For the price and upon and
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subject to the terms, conditions and provisions herein set forth,
Seller shall sell and convey to Buyer and Buyer shall purchase
from Seller the following property (collectively, the "Property")
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(a) The land in the City of Xxxxxxxx Xxxx, 00000, Xxxxxxx
Xxxxxx, Xxxxxx, having a street address of 0000 Xxxxxxx
Xxxxxxxxx, described in Exhibit A attached hereto and
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incorporated herein by reference (the "Land");
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(b) The office building containing approximately 101,241
square feet of floor area (the "Building"), adjacent parking
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facilities and all other structures and improvements now or on
the "Closing Date" (hereinafter defined) located on the Land (the
"Improvements");
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(c) All right, title and interest of Seller now owned or
acquired by Seller prior to the Closing Date in and to (i) all
public and xxxxxxx xxxxxxx, xxxxx, xxxxxxx, alleys and
passageways, opened or proposed, in front of or abutting the
Land, (ii) any award made or to be made and any unpaid award for
damage to the Land by reason of any change of grade of any such
street, road, avenue, alley or passageway, and (iii) any strips
or gores of land adjoining the Land;
(d) All equipment, machinery, appliances and appurtenances
thereto installed upon or located in and used in the maintenance
or operation of the Improvements including such of the foregoing
as are used in connection with generating or distributing air,
water, electricity, refrigeration and elevators and escalators
(collectively, the "Building Equipment"); and
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(e) All and singular the estates, rights, privileges,
easements and appurtenances belonging or in any way appertaining
to the Land and the Improvements.
The Property does not include Seller's personal property,
inventory or trade fixtures.
SECTION 2. PURCHASE PRICE.
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Purchase Price. The purchase price for the Property
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("Purchase Price") shall be $7,700,000.00. Buyer shall pay the
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Purchase Price, as follows: Fifty Thousand and 00/100 Dollars
($50,000.00) at the signing of the Contract as "Xxxxxxx Money" to
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be deposited upon execution of this contract in the insured trust
or escrow account of Chicago Title Insurance Company ("Title
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Company") as part of the consideration of the sale; the balance
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to be paid in the following manner: Seven Million Six Hundred
Fifty Thousand and 00/100 ($7,650,000.00) in guaranteed funds or
cashiers check at Closing (as defined in this Contract), adjusted
at Closing for prorations, closing costs and other agreed
expenses. All interest, if any, earned on the Xxxxxxx Money
shall be deemed to belong to Buyer who shall have the obligation
to pay any tax owed on the interest.
SECTION 3. TITLE AND DEED; SURVEY.
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A. Title and Deed. On the Closing Date, Seller shall sell
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and convey to Buyer good and marketable title to the Land and
Improvements ("Real Property") by special warranty deed in the
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form reasonably prescribed by Buyer (the "Deed"), subject to no
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liens, charges, claims, actions, encumbrances or title exceptions
of any kind whatsoever ("Encumbrances"), except for those matters
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approved by Buyer (the "Permitted Exceptions"), as hereinafter
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provided. Title to the Real Property as aforesaid shall be
insured by the "Title Company" as provided in Section 4.
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B. Survey. Seller shall, at Seller's sole expense, within
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20 days after the date of this Contract, obtain and deliver to
Buyer and the Title Company a current "as-built" survey of the
Real Property (the "Survey"). The Survey shall be prepared by a
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surveyor ("Surveyor") registered and licensed in the State in
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which the Real Property is located (the "State"), shall be
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certified to Buyer, other parties designated by Buyer, and to the
Title Company in a form reasonably satisfactory to each of them,
and shall meet the standards for an "Urban" survey as set forth
in the "Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys" as adopted by the American Land Title Association
and the American Congress on Surveying & Mapping in 1992,
including such items in Table A thereof as Buyer may reasonably
designate. The description of the Land in the Deed shall conform
to the legal description thereof contained in the Survey.
SECTION 4. TITLE INSURANCE.
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A. Commitment and Title Policy. Seller shall, at Seller's
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sole expense, within 20 days after the date of this Contract,
obtain and deliver to Buyer and to the Surveyor a title insurance
commitment (the "Commitment") issued by the Title Company,
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pursuant to which the Title Company shall agree to issue to
Buyer, at Seller's sole expense, an owner's policy of title
insurance (the "Title Policy") on the ALTA standard Form B-1970
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(amended 10-17-70) policy form (if reasonably available), or such
other form as may be acceptable to Buyer (except that the
standard exceptions relating to survey matters, rights of parties
in possession, easements or rights of parties in possession,
mechanic's liens, easements or claims of easements not of record,
and taxes and assessments not shown by the public records, shall
be eliminated), in the amount of the Purchase Price, insuring
marketable fee simple title to the Real Property in Buyer upon
recording of the Deed, subject only to the Permitted Exceptions
and no other matters. Seller shall cause the Title Company to
deliver to Buyer, with the Commitment, complete and legible
copies of all exception documents listed in the Commitment. The
Title Policy shall include the following endorsements (to the
extent they are reasonably available), all of which shall be in
form and substance satisfactory to Buyer in its sole discretion:
(a) An access endorsement insuring that the Land
has direct access to College Boulevard, Glenwood and
000xx Xxxxxx;
(b) A legal description endorsement insuring that
the legal description of the Land in Schedule A of the
Title Policy is accurate and correctly describes the
land shown on the Survey;
(c) A survey endorsement insuring that the land
described in the Title Policy is the same as the land
described and depicted in the Survey; that the
Survey accurately depicts the insured land and
improvements thereon and all easements and rights-of-
way to which said land is subject, shows the proper
dimensions of the boundaries of said land and said
easements and rights-of-way, and correctly reflects the
absence of any encroachments or easements not expressly
set forth in the Title Policy; and that the foundation
of the Building is within the lot lines and applicable
set-back lines;
(d) A tax lot endorsement affirmatively insuring
that the Land consists of one or more separate tax lots
and is assessed separately from all other property;
(e) Such other endorsements as Buyer may
reasonably request after receipt of the Survey, the
Commitment and copies of all of the exception
documents.
B. Title Defects. If the Survey or the Commitment shall
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disclose Encumbrances which are unacceptable to Buyer
("Objectionable Encumbrances"), Buyer shall notify Seller thereof
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within 20 days after Buyer's receipt of the Commitment, Survey,
and copies of all exception documents. Within 10 days after
Seller's receipt of Buyer's notice of Objectionable Encumbrances,
Seller shall advise Buyer which, if any, of such Objectionable
Encumbrances Seller will endeavor to remedy (the "Curable
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Matters", it being agreed that liens for
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ascertainable amounts, such as mortgages or mechanic's liens, shall be
deemed Curable Matters, irrespective of whether Seller designates them
as such). With respect to the Curable Matters, Seller shall have a
reasonable period of time (not to exceed 20 days) within which to
cure such Curable Matters to the reasonable satisfaction of
Buyer. If there are any Objectionable Encumbrances which Seller
is unwilling or unable to cure, then Buyer shall have the option
of either (1) completing this transaction and accepting such
title as Seller is able to convey, without reduction of the
Purchase Price (unless such Encumbrances are liens or
encumbrances for ascertainable amounts, in which event the
amounts thereof shall be deducted from the Purchase Price), or
(2) terminating this Contract, in which event neither party shall
have any further obligation to the other hereunder; PROVIDED,
HOWEVER, that no such waiver or termination of this Contract
shall diminish Buyer's rights or remedies in the event Seller has
(i) willfully refused to execute and deliver any documents or
instruments required by this paragraph, by paragraph C below or
by any other provision of this Contract, or (ii) otherwise
breached or defaulted in its obligations hereunder.
C. Seller's Title Documents. Seller shall, at Seller's
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sole expense, execute, acknowledge and deliver or cause to be
executed, acknowledged and delivered to the Title Company, on or
before the Closing Date, such affidavits and other documents as
the Title Company shall reasonably require as a condition to
issuance of the Title Policy in the form herein provided
(collectively, "Seller's Title Documents").
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SECTION 5. INVESTIGATION BY BUYER.
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A. Due Diligence Material. Within 10 days after the date
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of this Contract, Seller shall furnish to Buyer (1) all plans and
specifications pursuant to which the Improvements and Building
Equipment were constructed ("Plans"), and all related
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architectural renderings, drawings and blueprints in Seller's
possession, (2) all licenses, permits and governmental
authorizations, (3) all engineering reports and information,
environmental reports and information, soil tests and photographs
in Seller's possession and, (4) Seller's 1995 financial
information. Seller shall make available for Buyer's review at
Seller's offices and during normal business hours all insurance
policies covering or relating to the Property or any part thereof
(collectively, the "Due Diligence Material").
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B. Investigation by Buyer. This Contract and all
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obligations of Buyer hereunder are expressly conditioned upon the
following conditions being in effect or complied with within 40
days of the date hereto: (i) Buyer shall have approved, in
Buyer's sole and absolute discretion, the Due Diligence Material
and any other materials, information or matters Buyer may deem
appropriate; and (ii) Buyer shall have conducted or caused to be
conducted such inspections, tests, studies and investigations of
the Property or any part thereof, and such other inquiries or
investigations concerning the Property or this transaction or any
aspect thereof, as Buyer may desire, and Buyer shall have
approved the results thereof in Buyer's sole and absolute
discretion; and if any aspect of any of the foregoing is not so
approved by Buyer, Buyer shall have the option of either (1)
waiving compliance with the foregoing condition precedent and
proceeding under this Contract, or (2) canceling this Contract
and thereafter neither party shall have any further obligation to
the other under this Contract, except for Buyer's indemnity
obligation under Paragraph C below and all xxxxxxx money shall be
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returned to Buyer.
C. Access by Buyer; Indemnity. Buyer and its agents and
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designees shall have the right, at reasonable times and upon
reasonable notice to Seller, to go upon the Property for the
purpose of inspecting the same and making such tests, inquiries
and examinations as Buyer shall deem necessary. Buyer shall use
all reasonable efforts to cause such inspections, tests,
inquiries and examinations to be conducted in a manner which will
minimize interference with the use and operation of the Property
by Seller, and upon completion thereof Buyer shall, at its sole
expense, cause the Property to be restored to substantially the
same condition it was in prior to such entry, including filling,
compaction and resodding of all excavations, and shall indemnify
and hold Seller harmless of and from all claims for bodily injury
or property damage which may be asserted against Seller by reason
of the foregoing entry and activities, such indemnity obligation
to survive the termination of this Contract, notwithstanding any
provision to the contrary herein.
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D. Confidentiality. In the event this Contract shall be
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terminated and the sale contemplated hereunder shall not close
for any reason, Buyer will promptly return all Due Diligence
Material to Seller and Buyer will request that its employees or
agents will not disclose the content thereof to any person.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF SELLER.
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Seller represents and warrants to Buyer the following as of the
date hereof and as of the Closing Date:
A. Zoning. That to the best of Seller's knowledge there
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is no zoning or other governmental restriction or prohibition
against the maintenance of the Improvements on the Land, nor
against the current use and occupancy thereof by Seller or Black
& Xxxxxx.
B. Consents. That to the best of the Seller's knowledge,
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the Seller has obtained all consents and permissions related to
the transactions contemplated by this Contract and all
agreements, instruments and documents herein provided to be
executed or caused to be executed by Seller ("Other Agreements")
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which are required under any covenant, agreement, encumbrance,
law or regulation to which Seller, any assets of Seller or the
Property (or any part thereof) are subject.
C. Environmental Compliance.
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(1) That to the best of Seller's knowledge (a) the
Property (including underlying groundwater) and the use and
operation thereof are currently in compliance with all applicable
laws, ordinances, rules and regulations (including consent
decrees and administrative orders) relating to public health and
safety and protection of the environment, including those
statutes, regulations and ordinances identified in subparagraph
(5) below, all as now and hereafter amended (collectively,
"Environmental Laws"), and (b) all permits, licenses and
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authorizations relating to the use and operation of the Property
required by applicable Environmental Laws are in effect.
(2) That to the best of the Seller's knowledge, the
Seller has not (a) released, generated, discharged, manufactured,
treated, transported or disposed of "Hazardous Material"
(hereinafter defined) in violation of Environmental Laws on, in,
under (including the underlying groundwater) or from the
Property, (b) placed or stored any Hazardous Material in
violation of Environmental Laws on the Property, or (c) installed
any underground storage tanks on the Property.
(3) That to the best of Seller's knowledge (a) no
release, generation, discharge, manufacture, treatment,
transportation or disposal of Hazardous Material in violation of
Environmental Laws has occurred on, in, under (including the
underlying groundwater) or from the Property, (b) no Hazardous
Material in violation of Environmental Laws is or has been stored
or otherwise located on, in or under the Property (including the
underlying groundwater), and (c) there are no underground storage
tanks present on the Property. Without limitation of the
foregoing, Seller will promptly notify Buyer in the event that
Seller has or acquires notice or knowledge that any Hazardous
Material in violation of Environmental Laws has been or is
threatened to be released, discharged, disposed of, transported
or stored on or about the Property on or before the Closing Date.
(4) That to the best of Seller's knowledge there are
no pending or threatened (a) requests for information, actions or
proceedings from or by any governmental agency or any other
person or entity regarding the condition or use of the Property
or the release, generation, discharge, manufacture, treatment,
transportation or disposal of Hazardous Material on, in, under
(including the underlying groundwater) or from the Property, or
regarding any Environmental Law, or (b) liens or governmental
actions, notices of violations, notices of noncompliance or other
proceedings of any kind with respect to the Property or Seller.
Seller shall immediately notify Buyer and provide copies upon
receipt of all written complaints, claims, citations, demands,
inquiries, reports or notices relating to the condition of the
Property or compliance with Environmental Laws (collectively,
"Environmental Notices") received after the date hereof.
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(5) That for purposes of this Agreement, "Hazardous
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Material" means (a) "hazardous substances" or "toxic substances"
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as those terms are defined by the Comprehen-sive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. Section
9601 et seq., or by the Hazardous Materials Transportation Act,
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49 U.S.C. Section 1802 et seq., all as now and hereafter
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amended; (b) "hazardous wastes", as that term is defined by the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6902
et seq., as now and hereafter amended; (c) any pollutant or
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contaminant or hazardous, dangerous or toxic chemicals, materials
or substances within the meaning of any other applicable federal,
state or local law, regulation, ordinance or requirement
(including consent decrees and administrative orders) relating to
or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste substances or materials, all
as now and hereafter amended; (d) crude oil or any fraction
thereof which is liquid at standard conditions of temperature and
pressure (60 degrees Fahrenheit and 14.7 pounds per square inch
absolute); (e) any radioactive material, including any source,
special nuclear or by-product material as defined at 42 U.S.C.
Section 2011 et seq., as now and hereafter amended; (f) asbestos
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in any form or condition except for the asbestos tile covering an
area of less than 500 square feet; and (g) polychlorinated
biphenyls ("PCBs") or substances or compounds containing PCBs.
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D. Construction, Use and Occupancy.
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(1) Plans; Operation; Compliance. That to the best of
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Seller's knowledge, the Plans Seller has heretofore delivered to
Buyer are complete and accurate plans and specifications pursuant
to which the Improvements and Building Equipment were
constructed; that to the best of Seller's knowledge the Plans are
free from defects and take into account all relevant
circumstances and conditions relating to the Land; that to the
best of Seller's knowledge the Improvements and Building
Equipment have been constructed and completed in a good,
workmanlike and substantial manner, free from material defects
and substantially in accordance with the Plans; and that the
Improvements have been operated at all times in accordance with
(and, without limitation on the foregoing, the same fully comply
with) all declarations, easements, covenants, restrictions and
other agreements affecting the Property ("Business Agreements"),
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and with all federal, state and local laws, ordinances, rules,
regulations and orders, including Environmental Laws and Title
III of the Americans with Disabilities Act ("Governmental
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Requirements").
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(2) Licenses, Permits, CO's, Etc. That to the best of
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Seller's knowledge all licenses, permits and governmental
authorizations required in connection with the construction, use
and occupancy of the Property have been obtained and are in
effect and in good standing; that valid final and unconditional
certificates of occupancy have been issued for the improvements
and each part thereof and no space therein has been occupied in
violation of any such certificates; and that Seller has
heretofore delivered or will deliver to Buyer complete and
accurate copies of all of the foregoing.
(3) Notices; Requests. That Seller has received no
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notice or knowledge of any claims of any governmental agency to
the effect that the construction of the Real Property or the
operation or use of the Property fail to comply with any
Governmental Requirement, or that any investigation has been
commenced or is contemplated respecting any such possible failure
of compliance; and that there are no unsatisfied requests for
repairs, restorations or improvements made by any person, entity
or authority, including any insurance carrier or governmental
authority.
(4) Maintenance. That to the best of Seller's
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knowledge the Improvements and Building Equipment are in good
condition and repair and free from material defects; and that
Seller will maintain the Property in good condition and repair
and free from material defects between the date hereof and the
Closing Date.
E. Status of Seller. That this Contract and the Other
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Agreements are duly authorized, executed and delivered by and
binding upon Seller; that Seller has the capacity and authority
to enter into this Contract and the Other Agreements to be
executed by Seller and to consummate the transactions herein and
therein contemplated, and nothing prohibits or restricts the
right or ability of Seller to close the transactions contemplated
herein and in the
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Other Agreements and to carry out the terms hereof and thereof; and
that neither this Contract nor any of the Other Agreements, nor
anything provided in or contemplated by this Contract or any of the
Other Agreements, does now or shall hereafter breach, invalidate,
cancel, make inoperative or interfere with, or result in the
acceleration of maturity of, any mortgage, contract, agreement, lease,
easement, right or interest affecting or relating to Seller, any
assets of Seller or the Property.
F. Financial Matters. That all financial statements and
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information delivered to Buyer at any time heretofore,
concurrently herewith or hereafter are full, true and correct in
all material respects and have been and will be prepared in
accordance with generally accepted accounting principles
consistently applied; and that all such financial statements and
information fairly present the respective financial conditions of
the subjects thereof as of the respective dates thereof and no
material adverse change has occurred since the respective dates
thereof.
G. Default. That Seller is not in default in respect of
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any of its obligations or liabilities pertaining to the Property;
that without limitation of the foregoing, the other Business
Agreements and Permitted Exceptions are free from default by
Seller, and, to the best knowledge of Seller, by any other party
thereto and that there is no state of facts or circumstance or
condition or event which, after notice or lapse of time, or both,
would constitute or result in any default by Seller under its
said obligations or liabilities or, to the best knowledge of
Seller, by any other party, under or related to the Business
Agreements or the Permitted Exceptions.
H. Litigation; Condemnation. That there are no actions,
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suits or proceedings pending, or to the best knowledge of Seller,
threatened, before or by any judicial body or any governmental
authority, against or affecting the Property, or which would
affect Seller's ability to consummate the transactions
contemplated by this Contract; and that to the best knowledge of
Seller, there is no existing, proposed or contemplated eminent
domain or similar proceedings which would affect the Real
Property in any way whatsoever.
I. Independent Facility. That the Real Property does not
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rely on any drainage, sewer, access, utility or other facilities
(other than the facilities of public utility and public water
companies located in public streets which are adjacent to such
Building) to fulfill any zoning, building code or other
Governmental Requirement, and that no other property relies on
any part of the Real Property to fulfill any zoning, building
code or other Governmental Requirement.
J. FIRPTA. That Seller is not a "foreign corporation",
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"foreign partnership" or "foreign estate" as those terms are
defined in the Internal Revenue Code of 1986, as amended, and
that Seller will furnish to Buyer such further assurances with
respect to this representation and warranty as Buyer shall
reasonably request.
SECTION 7. TAXES AND ASSESSMENTS. There shall be no
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proration of real property taxes and assessments (collectively,
"Taxes"), nor of any other income or expense relating to the
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ownership or operation of the Property, it being agreed that the
"Seller" or "Tenant" under the "Lease" (as those terms are
hereinafter defined) shall be solely responsible for the
satisfaction of any such obligations and liabilities.
SECTION 8. CLOSING COSTS.
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A. Seller's Costs. Seller shall pay the cost of (1) all
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federal, state and local documentary stamps and transfer, sale
and other taxes relating to the sale and conveyance of the
Property, and the demise of the Property to the Tenant pursuant
to the Lease, (2) recording all instruments to be recorded in
connection with such sale, conveyance, and demise, (3) the
Commitment and Title Policy, (4) the Survey, (5) Seller's Title
Documents, (6) one-half the Title Company's fee for acting as
escrow agent in connection with this transaction ("Escrow Fee"),
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if any, (7) all other certificates, instruments and documents
which Seller is required to deliver or cause to be delivered, and
(8) without limitation, performance by Seller of all of its
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obligations hereunder, including any prepayment penalties
required to discharge any existing Encumbrance on the Property.
B. Buyer's Costs. Buyer shall pay the cost of (1) one-
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half the Escrow Fee, if any, (2) all certificates, instruments
and documents which Buyer is required to deliver or cause to be
delivered, and (3) without limitation, performance by Buyer of
all of its obligations hereunder.
SECTION 9. FIRE OR OTHER CASUALTY; SELLER'S INSURANCE.
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A. Major Damage. If, prior to the Closing Date, all or
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any part of the Improvements or Building Equipment shall be
destroyed or damaged by fire or other casualty and such damage
("Material Damage") cannot be fully restored prior to the Closing
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Date (as reasonably determined by Buyer), then neither Seller nor
Buyer shall have any liability to the other by reason of such
destruction or damage, and this Contract shall terminate, in
which event neither party shall have any further obligation to
the other hereunder, except that the Xxxxxxx Money shall be
returned to Buyer. However, Buyer may elect to close and receive
Insurance proceeds from Seller or insurance company, which
proceeds shall be used to restore the damaged Improvements or
Building Equipment so that Tenant (as hereafter defined) shall
have use of same under the terms of the Lease (described in
Section 11 below).
B. Minor Damage. If, prior to the Closing Date, all or
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any part of the Improvements or Building Equipment shall be
destroyed or damaged by fire or other casualty not constituting
Material Damage, then Seller shall with due diligence repair and
restore the Improvements and Building Equipment, in which event
(i) Seller shall be entitled to receive and retain all insurance
proceeds with respect to such loss, and (ii) Seller shall, at
Seller's sole expense, repair and restore the Improvements and
Building Equipment, using such design, contractors and materials
as Buyer approves (such approval not to be unreasonably withheld
or delayed), to the end that as of the Closing Date, the
Improvements and Building Equipment shall have been fully
restored, and Seller shall be in lawful occupancy and conducting
its customary business operations from the Property. Nothing set
forth in this Paragraph (or any course of conduct pursuant
hereto) shall be deemed a waiver or modification of the
representations and warranties set forth in Section 6.
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SECTION 10. CONDEMNATION. If, prior to the Closing Date,
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all or any part of the Real Property shall be condemned by
governmental or other lawful authority, Buyer shall have the
option of either (a) completing this transaction, in which event
(i) there shall be no reduction of the Purchase Price, (ii)
Seller shall have no duty to repair or restore, (iii) Seller
shall pay to Buyer all condemnation proceeds received by Seller
with respect to such condemnation, (iv) Seller shall assign to
Buyer all rights of Seller in and to such condemnation proceeds,
(v) Seller shall furnish to Buyer such documents, cooperation and
assistance as Buyer requires to enforce the rights of Seller with
respect thereto, and (vi) Buyer shall repair or restore the
Property to the extent required under the Lease; or (b) canceling
this Contract, in which event neither party shall have any
further obligation to the other hereunder, except that Xxxxxxx
Money will be returned to Buyer.
SECTION 11. CERTIFICATES AND OTHER ASSURANCES. Seller
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shall furnish the following to Buyer on or before the Closing
Date:
A. Closing Certificate. A certificate of Seller, dated as
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of the Closing Date, confirming (without exception or
qualification) that (1) Seller is in full compliance with all of
its obligations under this Contract, and (2) all of the
representations and warranties of Seller contained in this
Contract are true and correct as of the Closing Date as if made
on and as of the Closing Date.
B. Further Instruments and Assurances. Such other and
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further documents, instruments, certificates and assurances as
shall be reasonably required to consummate the transactions
contemplated by this Contract, including a blanket xxxx of sale
and conveyance of the Building Equipment and all construction and
similar warranties relating to the Improvements and Building
Equipment ("Xxxx of Sale").
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C. The Lease. A triple net lease (the "Lease") in form
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and content acceptable to Buyer and Seller containing
substantially those terms set forth in the attached Exhibit B,
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fully executed by Black & Xxxxx, a Missouri general partnership,
as lessee ("Tenant"), under which lease Buyer shall be the
"Landlord".
SECTION 12. CONDITIONS PRECEDENT. This Contract and all
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obligations of Buyer hereunder are expressly conditioned on the
following conditions precedent being in effect or complied with
on and as of the Closing Date:
A. Condition of Title. The Commitment, as redated to the
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Closing Date, shall disclose good and marketable title to the
Real Property vested in Seller, free and clear of all
Encumbrances except the Permitted Exceptions; and the Title
Company shall be prepared to issue the Title Policy to Buyer in
the form required by Section 4 immediately upon recording of the
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Deed.
B. Environmental Notices. Seller shall not have received
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any Environmental Notices.
C. Seller's Representations and Warranties. Seller's
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representations and warranties set forth in Section 6 shall
remain true and correct in all material respects.
D. No Bankruptcy or Dissolution. At no time on or before
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the Closing Date shall any of the following have been done by or
against or with respect to Seller or Tenant:
(1) The commencement of a case under Title 11 of the
U.S. Code, as now constituted and hereafter amended, or under any
other applicable federal or state bankruptcy law or other similar
law;
(2) The appointment of a trustee or receiver of any
property interest;
(3) An assignment for the benefit of creditors
generally;
(4) An attachment, execution or other judicial seizure
of any property interest which, in Buyer's reasonable opinion,
would materially adversely affect the ability of the affected
party to meet his or its financial obligations as they accrue;
(5) The taking of, failure to take or submission to
any action indicating an inability of the affected party to meet
his or its financial obligations as they accrue; or
(6) A dissolution or the disposition of a substantial
portion of the affected party's assets.
E. Deliveries by Seller. Seller shall have executed and
--------------------
delivered or caused to be executed and delivered to Buyer and/or
the Title Company, as herein provided, all documents, instruments
and information required to be delivered by Seller and Tenant as
herein provided.
F. Other Obligations of Seller. Seller shall have
---------------------------
complied with all of its other obligations under this Contract.
G. Lease. The parties agreeing on a Lease containing
-----
those provisions reflected on Exhibit B.
If any one or more of the conditions precedent hereinabove
set forth shall not be in effect or complied with on the Closing
Date, Buyer shall have the option of either (a) waiving
compliance with any one or more of said conditions precedent and
closing this transaction , or (b) canceling this Contract, in
which event neither party shall have any further obligation to
the other hereunder, except that the Xxxxxxx Money shall be
refunded to Buyer. Buyer may at any time and from time to time,
at Buyer's election, waive any one or more of the foregoing
conditions precedent, but any such waiver shall be effective only
if contained in a writing
8
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signed by Buyer. No such waiver shall diminish Buyer's rights or
remedies in the event (i) this transaction does not close and Seller
has willfully (x) refused to execute and deliver the documents
required hereunder to close the transaction contemplated hereby, or
(y) taken any action which renders impossible the satisfaction of any
such condition by the Closing Date, or (z) otherwise breached or
defaulted in its obligations hereunder, or (ii) this transaction
closes and Seller breaches or defaults in any of its obligations to be
performed after the Closing Date. If for any reason any item
required to be delivered to Buyer or the Title Company hereunder
shall not be delivered when required, Seller shall nevertheless
remain obligated to deliver the same to Buyer or the Title
Company, and nothing (including the closing of the transaction
contemplated hereunder) except a specific written waiver shall be
deemed a waiver of any such requirement.
SECTION 13. CLOSING.
---------- -------
A. Closing Date. Provided all conditions to closing set
------------
forth in this Contract have been satisfied or waived by Buyer and
Seller, and this Contract has not been terminated by either party
in accordance with provisions herein set forth, the transaction
contemplated herein shall be closed on the earlier of (1) ten
(10) days after Buyer gives notice to Seller that Buyer is
prepared to close, or (2) December 22, 1995. Such date for the
closing of title is herein called the "Closing Date".
------------
B. Closing Procedure. The transaction contemplated herein
-----------------
shall be closed ("Closing") in escrow through the Title Company
-------
in accordance with the following procedure:
(1) Closing Statements. Not less than 10 days prior
------------------
to the Closing Date, Buyer shall cause the Title Company to
prepare and deliver to Buyer and Seller a preliminary closing
statement for each party, showing all amounts due from each
party, including all closing costs and expenses computed as set
forth in this Contract.
(2) Delivery of Documents by Seller. On or before the
-------------------------------
Closing Date, Seller shall deliver or cause to be delivered to
the Title Company the following, all of which documents shall be
duly executed and, if required, acknowledged and otherwise in
proper form for recording:
(a) Full releases of all mortgages, deeds of
trust and other financing instruments affecting the
Property.
(b) The Deed and Xxxx of Sale.
(c) The Lease.
(d) Seller's Title Documents.
(e) Such instruments and documents relating to
the organization, existence and authority of Seller and
the Tenant as the Title Company and Buyer shall
reasonably require.
(f) Such other documents, instruments,
certificates and assurances as shall be required by the
provisions of this Contract.
(g) Seller's closing statement.
(h) Such escrow instructions to the Title Company
as Seller shall desire, which shall not be inconsistent
with the provisions of this Contract ("Seller's
--------
Instructions").
------------
(3) Deliveries by Buyer. On or before the Closing Date,
-------------------
Buyer shall deliver or cause to be delivered to the Title Company
the following, all of which documents shall be duly executed and,
if required, acknowledged and otherwise in proper form for
recording:
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(a) By federal wire transfer of funds to the
Title Company's escrow account, an amount equal to (i)
the Purchase Price due at Closing, adjusted as herein
provided, plus (ii) the aggregate amount of closing
costs for which Buyer is responsible as provided
herein, all as shown on Buyer's closing statement.
(b) Such instruments and documents relating to
the organization, existence and authority of Buyer as
the Title Company shall require.
(c) Buyer's closing statement.
(d) The Lease.
(e) Such escrow instructions to the Title Company
as Buyer shall desire, which shall not be inconsistent
with the provisions of this Contract ("Buyer's
-------
Instructions").
------------
(4) Closing Effected. The parties shall obtain the
----------------
advice of the Title Company as to whether it is in a position to
(a) cause the Deed to be immediately recorded in the real estate
records, and (b) immediately issue the Title Policy to Buyer. If
the Title Company shall advise affirmatively on the foregoing
matters, then the parties shall instruct the Title Company to
proceed to close the escrow in accordance with Seller's
Instructions and Buyer's Instructions.
SECTION 14. POSSESSION. Exclusive possession of the
---------- ----------
Property shall be delivered to Buyer on the Closing Date, subject
to the rights of the Tenant under the Lease.
SECTION 15. BROKERAGE. Seller and Buyer agree that MC
---------- ---------
Realty, Inc. ("Broker"), identified in the Real Estate Agency
------
Disclosure(s) attached to this Contract, is the only real estate
broker negotiating this sale, and Seller agrees to pay to Broker
a sales commission of $130,000. Any party to this Contract
through whom a claim to any broker's, finder's or other fee is
made, contrary to the representations made above in this
paragraph, shall indemnify, defend and hold harmless the other
party to this Contract from any other loss, liability, damage,
cost or expense, including, without limitation, reasonable
attorneys' fees, court costs and other legal expenses paid or
incurred by the other party, that is in any way related to such a
claim. The provisions of this paragraph shall survive Closing or
termination of this Contract.
SECTION 16. INDEMNIFICATION BY SELLER. Seller shall hold
---------- -------------------------
harmless, indemnify and defend Buyer from and against:
A. Any and all obligations, liabilities, claims, liens or
encumbrances, whether direct, contingent or consequential, in any
way related to or arising from any act, occurrence, conduct,
omission, contract or commitment of Seller which relate to the
Property at any time or times on or before the Closing Date;
B. Any loss or damage to Buyer resulting from any
inaccuracy in or breach of any representation or warranty of
Seller or resulting from any breach or default by Seller under
this Contract; and
C. All costs and expenses, including court costs and
reasonable attorneys' fees, related to any actions, suits or
judgments incident to any of the foregoing.
SECTION 17. SURVIVAL. All warranties, representations,
---------- --------
covenants, obligations and agreements contained in this Contract
shall survive the closing hereunder and the transfer and
conveyance of the Property and any and all performances hereunder
for a period of three (3) years after the Closing Date. All
warranties and representations shall be effective regardless of
any investigation made or which could have been made.
SECTION 18. FURTHER ASSURANCES. Each party agrees to
---------- ------------------
execute and deliver such other and further agreements, documents,
instruments, notices, certificates, affidavits and
10
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further assurances, and to take such other and further actions,
whether before or after the Closing Date, as may be necessary to
carry out the intent of this Contract and cause the obligations
of such party under this Contract to be fully performed.
SECTION 19. NO PUBLIC STATEMENT. Except as may be
---------- -------------------
required by law, neither party shall make any public announcement
or statement concerning the transaction contemplated hereby
unless the parties agree on the form of a joint press release to
be issued on the Closing Date.
SECTION 20. ATTORNEYS' FEES. If either party obtains a
---------- ---------------
judgment against the other party by reason of a breach of this
Contract, a reasonable attorneys' fee as fixed by the court shall
be included in such judgment.
SECTION 21. TIME. Time is of the essence of this
---------- ----
Contract.
SECTION 22. DEFAULT. If Seller shall tender the Deed, Xxxx
---------- -------
of Sale and all other documents required under this Contract to
be delivered by Seller on or before the Closing Date and Buyer
shall fail or refuse to close as required hereunder, or if Buyer
otherwise defaults hereunder so that Seller has the right to
refuse to close, then the Escrow Money shall be paid to Seller by
the Title Company (who is hereby authorized to release the same
to the Seller if Buyer defaults) as liquidated damages for the
Buyer's default. In connection with the foregoing, the parties
recognize that Seller will incur expense in connection with the
transaction contemplated by this Contract, that the Property will
be removed from the market and that it is extremely difficult and
impractical to ascertain the extent of damage to Seller caused by
Buyer's default hereunder and its failure to close. In the event
the sale shall not close because of Buyer's default, then
Seller's sole and exclusive remedy shall be the retention of the
Xxxxxxx Money plus any interest earned thereon (notwithstanding
the provisions of Section 2 above) in lieu of any other monetary
or other relief.
If Buyer has fully performed and Seller defaults, then Buyer's
exclusive remedies shall be either to:
1. Cancel the Contract and receive $50,000 from Seller, which
Seller agrees to pay or
2. Assert a claim against Seller for specific performance, at
Buyer's option.
SECTION 23. REMEDIES CUMULATIVE. Except as herein
---------- -------------------
expressly set forth, no remedy conferred upon a party by this
Contract is intended to be exclusive of any other remedy herein
or by law provided or permitted, but each shall be cumulative and
shall be in addition to every other remedy given herein or now or
hereafter existing at law, in equity or by statute.
SECTION 24. NO WAIVER. Except as herein expressly
---------- ---------
provided, no waiver by a party of any breach of this Contract or
of any warranty or representation hereunder by the other party
shall be deemed to be a waiver of any other breach by the other
party (whether preceding or succeeding and whether or not of the
same or similar nature), and no acceptance of payment or
performance by a party after any breach by the other party shall
be deemed to be a waiver of any breach of this Contract or of any
representation or warranty hereunder by such other party, whether
or not the first party knows of such breach at the time it
accepts such payment or performance. No failure or delay by a
party to exercise any right it may have by reason of the default
of the other party shall operate as a waiver of default or
modification of this Contract or shall prevent the exercise of
any right by the first party while the other party continues to
be so in default.
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SECTION 25. INSTRUMENTS IN WRITING. No agreement,
---------- -----------------------
consent, approval, notice, amendment, modification, understanding
or waiver of or with respect to this Contract or any agreement,
instrument or document entered into pursuant to or with respect
to this Contract, or any term provision, covenant or condition
hereof or thereof, nor any approval or consent given under or
with respect to any of the foregoing, shall be effective for any
purpose unless contained in a writing signed by the party against
which such agreement, amendment, modification, understanding,
waiver, approval or consent is asserted.
SECTION 26. TERMINOLOGY. The words "include", "includes"
---------- -----------
and "including" shall be deemed to be followed by the phrase
"without limitation". The words "herein", "hereof", "hereunder"
and similar terms shall refer to this Contract unless the context
requires otherwise. Whenever the context so requires, the neuter
gender includes the masculine and/or feminine gender, and the
singular number includes the plural and vice versa.
SECTION 27. SUCCESSORS AND ASSIGNS. Seller shall not
---------- ----------------------
assign or transfer its rights or obligations under this Contract
without the prior written consent of Buyer (in which event the
transferee shall assume in writing all of Seller's obligations
hereunder). No consent given to any transfer or assignment of
rights or obligations hereunder shall be construed as a consent
to any other transfer or assignment of rights or obligations
hereunder. No transfer or assignment in violation of the
provisions hereof shall be valid or enforceable. Subject to the
foregoing, this Contract shall inure to the benefit of and be
binding upon the successors and assigns of the parties.
SECTION 28. NOTICES. All notices hereunder shall be sent
---------- -------
by nationally recognized overnight delivery service or mailed by
registered or certified mail, postage prepaid, return receipt
requested, addressed as follows:
If to Buyer: Xx. Xxxxxxxx X. Xxxxx
Executive Vice President
Tower Properties Company
000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
with a copy to: Xx. Xxxxxxx X. Xxxxxxxx
Van Osdol, Magruder, Xxxxxxxx
and Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
with a copy to: Xx. Xxxxxxx X. Xxxxxx
Xx. Xxxxxx X. Xxxxxxx
Xxxxxxxxx Xxxxxxx Xxxxxxx Weary
and Xxxxxxxx X.X.
Suite 1100 0000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
If to Seller: OPBA Inc.
0000 Xxxx Xxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Mr. Xxxx Xxxxxxx
Either party may designate a different address or addresses
for itself by notice similarly given. Any notice given by
registered or certified mail shall be deemed to have been given
on the third day after the same is deposited in the mail, and any
notice not so given shall be deemed to have been given upon
receipt of the same by the party to whom the same is to be given.
SECTION 29. ENTIRE AGREEMENT. This Contract and the
---------- ----------------
Other Agreements contain the entire agreement with respect to the
transactions contemplated herein and therein, and there are no
other terms, conditions, promises, understandings, statements or
representations, express or implied, concerning the same.
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SECTION 30. HEADINGS. The headings in this Contract have
---------- --------
been inserted for convenience of reference only, and shall not be
deemed to modify or restrict any provision hereof, nor be used to
construe any such provision.
SECTION 31. GOVERNING LAW. This Contract shall be
---------- -------------
governed by and construed in accordance with the laws of the
State.
SECTION 32. ESTOPPEL. Each party confirms and agrees
---------- --------
that (a) it has read and understood all of the provisions of this
Contract; (b) it is an experienced real estate investor; (c) it
has negotiated with the other party at arm's length with equal
bargaining power; and (d) it has been advised by competent legal
counsel of its own choosing.
SECTION 33. WAIVER OF JURY TRIAL. EACH PARTY HEREBY
---------- --------------------
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY ON ANY MATTER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS CONTRACT OR THE
OTHER AGREEMENTS.
IN WITNESS WHEREOF, the parties have executed this Contract
as of the date first above written.
BUYER:
-----
Tower Properties Company
By: /s/ Xxxxxxx Xxxxxxx, Xx.
------------------------------
Name: Xxxxxxx Xxxxxxx, Xx.
----------------------------
Title: Vice-President & Secretary
---------------------------
SELLER:
------
OPBA Inc.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------
Title: President
---------------------------
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EXHIBIT A
---------
Attached to and forming a part of
Real Estate Purchase Contract
dated as of November, 1995,
between Tower Properties, as Buyer,
----------------
and OPBA Inc., a corporation, as Seller
LEGAL DESCRIPTION OF THE LAND
-----------------------------
All of Xxxxx 0, XXXXXXXX XXXX XXXXX II, a subdivision of land now
in the City of Overland Park, Xxxxxxx County, Kansas, that lies
West of the following described line: Beginning at a point on
the South line of said Block 2, and 585 feet West of the
Southeast corner thereof, as measured along said South Line;
thence Northerly, along a line parallel with the East line of the
NW 1/4 of Section 17, Township 13, Range 25, now in the City of
Overland Park, Xxxxxxx County, Kansas, a distance of 578.64 feet,
to a point on the North line of said Block 2.
Subject to a Non-exclusive easement Appurtenant for ingress
and egress established by Declaration of Joint Easement recorded
as Document No. 1264067, Block 1540, Page 761, over the following
described property:
All that part of Xxxxx 0, XXXXXXXX XXXX XXXXX II, a subdivision
of land now in the City of Overland Park, Xxxxxxx County, Kansas,
more particularly described as follows: Beginning at a point on
the South line of said Block 2, and 585 feet West of Southeast
corner thereof, as measured along said South line; thence
Northerly, along a line parallel with the East line of the
Northwest quarter of Section 17, Township 13, Range 25, now in
the City of Overland Park, Xxxxxxx County, Kansas, a distance of
578.64 feet to a point on the North line of said Block 2; thence
Westerly along the North line of said Block 2, a distance of 55
feet; thence Southerly, to a point of the South line of said
Block 2 and 630 feet West of the Southeast corner thereof, as
measured along said South line; thence Easterly along the South
line of said Block 2, a distance of 45 feet, to the point of
beginning.
14
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EXHIBIT B
---------
Attached to and forming a part of
Real Estate Purchase Contract
dated as of November, 1995,
between Tower Properties, as Buyer,
----------------
and OPBA Inc., a corporation, as Seller
PROVISIONS OF TRIPLE NET LEASE
------------------------------
1. Parties to the lease to be Tower Properties
Company,"Landlord", and Black & Xxxxxx, a general partnership,
"Tenant".
2. Lease to cover 101,241 square feet office building
(Black & Xxxxxx Building at 0000 Xxxxxxx Xxxxxxxxx) including
approximately nine (9) acres of land.
3. Rent to be $804,865.95 per year with term to be 15
years.
4. Lease to be triple net with Tenant paying all real
estate taxes, casualty and liability insurance, repairs, interior
and exterior, and exterior maintenance. Tenant to maintain
improvements and grounds as a first class office building in
Xxxxxxx County, Kansas, pursuant to Landlord's reasonable
requirement.
5. General lease terms to be on Net Lease form dated
October 10, 1995 with reasonable modification.
15
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AGENCY DISCLOSURE/ADDENDUM
SELLER/LESSOR: OPBA INC.
---------
BUYER/LESSEE: TOWER PROPERTIES COMPANY
------------------------
PROPERTY ADDRESS: 0000 XXXXXXX XXXXXXXXX, XXXXXXXX XXXX, XXXXXX
---------------------------------------------
THE FOLLOWING IS A DISCLOSURE STATEMENT IN COMPLIANCE WITH THE
MISSOURI REAL ESTATE COMMISSION RULES AND REGULATIONS, 4 C.S.R.
250-8.095 AND KANSAS STATUTE, K.S.A. SECTION 58-3062(A)(14-16).
1. MC REALTY, INC. AND ITS SALES ASSOCIATE XXXXXX X.
---------
X'XXXXXX, JR. ARE ACTING AS AGENT FOR: (CHECK
-------------
APPLICABLE BOX)
(X) BUYER/LESSEE ONLY AND NOT AS AGENT FOR SELLER/LESSOR
("BUYER/LESSEE'S AGENT").
( ) SELLER/LESSOR ONLY AND NOT AS AGENT FOR BUYER/LESSEE
("SELLER/LESSOR'S AGENT").
( ) BOTH BUYER/LESSEE AND SELLER/LESSOR ("DUAL AGENT").
2. N/A AND ITS SALES ASSOCIATE N/A ARE ACTING AS AGENT
--- ---
FOR: (CHECK APPLICABLE BOX)
( ) BUYER/LESSEE ONLY AND NOT AS AGENT FOR SELLER/LESSOR
("BUYER/LESSEE'S AGENT").
( ) SELLER/LESSOR ONLY AND NOT AS AGENT FOR BUYER/LESSEE
("SELLER/LESSOR'S AGENT").
3. DISCLOSURE OF INFORMATION.
A. A BUYER/LESSEE'S AGENT MAY DISCLOSE TO THE
BUYER/LESSEE ANY INFORMATION GIVEN TO THEM BY THE
SELLER/LESSOR.
B. A SELLER/LESSOR'S AGENT MAY DISCLOSE TO THE
SELLER/LESSOR ANY INFORMATION GIVEN TO THEM BY THE
BUYER/LESSEE.
C. A DUAL AGENT WILL ENDEAVOR TO BE IMPARTIAL AS
BETWEEN SELLER/LESSOR AND BUYER/LESSEE. A DUAL
AGENT WILL DISCLOSE TO BOTH SELLER/LESSOR AND
BUYER/LESSEE ALL FACTS AND INFORMATION KNOWN BY
AGENT WHICH AGENT BELIEVES MIGHT INFLUENCE
SELLER/LESSOR'S OR BUYER/LESSEE'S DECISIONS WITH
RESPECT TO THIS TRANSACTION. A DUAL AGENT WILL
NOT WITHOUT THE EXPRESS PERMISSION OF THE
SELLER/LESSOR, DISCLOSE TO BUYER/LESSEE WHETHER
SELLER/LESSOR MAY BE WILLING TO SELL/LEASE THE
PROPERTY FOR LESS THAN THE LISTING PRICE. A DUAL
AGENT WILL NOT WITHOUT THE EXPRESS PERMISSION OF
BUYER/LESSEE, DISCLOSE TO THE SELLER/LESSOR
WHETHER BUYER/LESSEE MAY BE WILLING TO PAY MORE
THAN ANY PRICE OR LEASE TERMS OFFERED IN WRITING
BY BUYER/LESSEE.
4. PAYMENT OF COMMISSION. AGENT WILL RECEIVE A COMMISSION
ON THE CLOSING OF THE SALE OF THE PROPERTY. AGREEMENT
AS FOLLOWS:
A. A BUYER/LESSEE'S AGENT WILL RECEIVE AN AMOUNT
EQUAL TO THE COMMISSION WHICH WOULD HAVE BEEN PAID
TO A SUB-AGENT PROCURING A BUYER/LESSEE FOR THE
LISTING.
B. A SELLER/LESSOR'S AGENT WILL RECEIVE THE AMOUNT
DUE UNDER THE APPLICABLE LISTING AGREEMENT LESS
ANY AMOUNT DUE A BUYER/LESSEE'S AGENT HEREUNDER.
C. A DUAL AGENT WILL RECEIVE THE ENTIRE COMMISSION
DUE FROM THE SELLER/LESSOR UNDER THE APPLICABLE
LISTING AGREEMENT.
5. SIGNATURES
BUYER/LESSEE SELLER/LESSOR
/s/ Xxxxxxx Xxxxxxx Xx. /s/ Xxxxxx X. Xxxxxxx
------------------------ -----------------------
Vice President President
------------------------ -----------------------
DATE 11/14 , 1995 DATE November 13, 1995
------------- --- ------------ ---
SELLING/LEASING BROKER---------------- LISTING BROKER---------------
BY------------------------------------ BY---------------------------
16
