Exhibit 10.2
PURCHASE AND SALE AGREEMENT, DATED APRIL 6, 2000, BY AND BETWEEN THE COMPANY AND
MGA DEVELOPMENT ASSOCIATES, L.P.
PURCHASE AND SALE AGREEMENT
Between
MGA DEVELOPMENT ASSOCIATES, L.P.,
a Colorado limited partnership
("Seller")
and
RHYTHMS NETCONNECTIONS, INC.,
a Delaware corporation
("Buyer")
Dated the 6th day of April, 2000
TABLE OF CONTENTS
Page
1. Sale of Property...................................................................................... 1
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1.1 The Property....................................................................................... 1
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2. Purchase Price........................................................................................ 2
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2.1 ▇▇▇▇▇▇▇ Money...................................................................................... 2
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2.2 Cash at Closing.................................................................................... 2
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3. Deliveries and Inspections............................................................................ 2
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3.1 Delivery of Survey................................................................................. 2
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3.2 Delivery of Title Commitment....................................................................... 2
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3.3 Delivery of Other Documents........................................................................ 3
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3.4 Evidence of Delivery............................................................................... 3
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4. Due Diligence Period.................................................................................. 4
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4.1 Property Inspection................................................................................... 4
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4.2 Title and Survey................................................................................... 4
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4.3 Condition of Property and Documents................................................................ 5
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4.4 Termination or Acceptance.......................................................................... 5
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4.5 Closing Documents.................................................................................. 6
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5. Representations and Warranties of Seller.............................................................. 6
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6. Environmental Matters................................................................................. 7
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7. Updating Representations.............................................................................. 8
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8. Representations and Warranties of Buyer............................................................... 8
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9. Covenants of Seller................................................................................... 8
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9.1 New Contracts...................................................................................... 8
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9.2 Non-Foreign Affidavit.............................................................................. 8
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9.3 No Further Encumbrances............................................................................ 9
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9.4 Compliance with Laws............................................................................... 9
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9.5 Preservation of Property........................................................................... 9
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9.6 Governmental Approvals............................................................................. 9
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10. Conditions to Closing................................................................................. 9
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10.1 Conditions Precedent to Buyer's Obligations..................................................... 9
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10.2 Conditions Precedent to Seller's Obligations.................................................... 10
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10.3 Waiver.......................................................................................... 11
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11. Closing............................................................................................... 11
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11.1 Pre-Closing..................................................................................... 11
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11.2 Closing Date.................................................................................... 11
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11.3 Closing Documents............................................................................... 11
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11.4 Possession...................................................................................... 12
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12. Adjustments and Prorations............................................................................ 12
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12.1 Real Estate Taxes and Assessments............................................................... 13
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12.2 Expenses........................................................................................ 13
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12.3 Documentary Fee................................................................................. 13
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12.4 Closing Costs................................................................................... 13
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12.5 Property and Liability Insurance................................................................ 13
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13. Default and Remedies..................................................................................... 13
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13.1 Seller's Default................................................................................... 13
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13.2 Buyer's Default.................................................................................... 14
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14. Indemnities.............................................................................................. 14
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14.1 Liens.............................................................................................. 14
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14.2 Representations.................................................................................... 14
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15. Commissions.............................................................................................. 14
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16. Condemnation............................................................................................. 15
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16.1 Notice of Condemnation............................................................................. 15
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16.2 Right of Termination upon Condemnation............................................................. 15
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17. Miscellaneous Provisions................................................................................. 16
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17.1 Time............................................................................................... 16
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17.2 Notices and Representatives........................................................................ 16
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17.3 Attorneys' Fees.................................................................................... 16
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17.4 Entire Agreement................................................................................... 16
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17.5 Binding Effect..................................................................................... 16
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17.6 Execution.......................................................................................... 16
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17.7 Assignment......................................................................................... 16
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17.8 Governing Law...................................................................................... 16
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17.9 Counterparts; Facsimile Signatures................................................................. 16
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17.10 Exhibits and Supplemental or Additional Exhibits................................................... 17
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17.11 Survival........................................................................................... 17
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PURCHASE AND SALE AGREEMENT
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THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the 6th day of
April, 2000 (the "Execution Date"), between MGA DEVELOPMENT ASSOCIATES, L.P., a
Colorado limited partnership ("Seller") and RHYTHMS NETCONNECTIONS, INC., a
Delaware corporation, or assigns ("Buyer").
R E C I T A L S:
A. Seller is the owner in fee simple of that certain real property
described Section 1.1 below, and all rights appurtenant to and associated
therewith and improvements, if any, thereon.
B. Buyer desires to purchase such property.
NOW, THEREFORE, for the mutual promises set forth herein and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties agree as follows (with the foregoing Recitals being deemed incorporated
hereinbelow by this reference):
1. Sale of Property. Seller agrees to sell and Buyer agrees to purchase
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on the terms and conditions hereafter stated all of Seller's right, title, and
interest in and to the Property:
1.1 The Property. The term "Property" shall mean for all purposes
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(a) the real property generally described as approximately 4.3 acres located
approximately at the northwest corner of East Mineral Avenue and South ▇▇▇▇▇▇▇
Street in Arapahoe County, Colorado as further described on the attached Exhibit
1.1, including all improvements, fixtures, hereditaments and easements
appurtenant thereto ("Real Property"); (b) all of Seller's rights under the
Density Transfer Agreement entered into as of September 29, 1999 by and between
Seller and PERA, a Colorado general partnership ("PERA") (the "PERA Agreement"),
all of Seller's rights under a License Agreement entered into as of September
29, 1999 between Seller and Cyprus Amax Minerals Company (the "Cyprus
Agreement"), all of Seller's rights under a Reciprocal Access Agreement entered
into as of September 29, 1999 between Seller and PERA (the "Reciprocal Access
Agreement"), and a Drainage Easement Agreement entered into as of September 29,
1999 between Seller and PERA (the "Drainage Agreement"); (c) all Seller's right,
title and interest in and to all assignable licenses, permits, certificates,
approvals, authorizations and variances issued for or with respect to the Real
Property by any governmental authority and/or third party, including Seller's
interest in plans submitted to ▇▇▇▇▇▇▇ County in connection with the Government
Approvals referred to in Section 9.6 ("Licenses"); (d) all of Seller's right,
title, and interest, if any, in and to all water and water rights, water ▇▇▇▇▇,
and well rights, whether tributary or non-tributary on, underlying, appurtenant
to or used on or in connection with the Real Property, whether appropriated,
conditionally appropriated, or unappropriated, and whether adjudicated or
unadjudicated, including, but not limited to, all well permits, decrees, and
pending water court applications, if any, and any well equipment or other
personalty or fixtures currently used for the supply, diversion, storage,
treatment or distribution of water on or in connection with the Real Property,
and all water and ditch stock relating thereto and all reserved water and sewer
taps associated with the Real Property ("Water Rights"); and (e) all mineral
rights owned by Seller relating to or in any way appertaining to the Real
Property ("Mineral Rights"). All of items (a) through (e) are collectively
referred to in this Agreement as the "Property."
2. Purchase Price. Subject to the prorations hereafter described, the
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total purchase price to be paid by Buyer to Seller for the purchase of the
Property is the sum of $3,060,000.00. There shall be no adjustment based on
utility easements or roadway dedications. The Purchase Price shall be payable in
accordance with Sections 2.1, 2.2 and 2.3 below.
2.1 ▇▇▇▇▇▇▇ Money. Within three (3) business days of the execution
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hereof, Buyer shall deliver to National Title Insurance Company, 19th Floor,
Norwest Center, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Title Company"), a
cash deposit in the amount of $500,000.00; $485,000.00 of such deposit (the
"Initial Deposit") shall be considered an ▇▇▇▇▇▇▇ money deposit and $15,000.00
of such amount shall be deemed a non-refundable payment (the "Initial Payment"),
payable to Seller in the event this Agreement is terminated for any reason. If
the Closing occurs, the Initial Deposit, the Additional Deposit (as provided in
Section 4.4), and the Initial Payment shall be credited against the Purchase
Price. Collectively, the Initial Deposit and the Additional Deposit are referred
to as the "▇▇▇▇▇▇▇ Money." The Initial Deposit, Initial Payment and the
Additional Deposit (if applicable) shall held by the Title Company in an
interest bearing escrow account in accordance with Section 4.4 below, with any
interest earned thereon to be considered additional ▇▇▇▇▇▇▇ Money.
2.2 Cash at Closing. On the Closing Date (as defined in Section
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11.2), Buyer will pay to Seller the balance of the total purchase price in
immediately available funds (which amount shall be subject to adjustments in
accordance with Sections 11 and 12).
3. Deliveries and Inspections.
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3.1 Delivery of Survey. As soon as reasonably practicable following
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the Execution Date but not later than April 28, 2000, Seller shall, at Seller's
expense, deliver or cause to be delivered to Buyer an update of the existing
survey of the Real Property certified to Buyer and the Title Company made by a
duly licensed surveyor (the "Survey"). Such survey shall be an improvement
survey plat in accordance with any statutory requirements for an improvement
survey plat and with "Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys," jointly established and adopted by ALTA, ACSM and NSPS in 1997,
shall meet the requirements of the Urban Survey, as defined therein, and shall
include Table A items 1 through 16 with item 5 revised to require datum of
elevations only.
3.2 Delivery of Title Commitment. As soon as reasonably practicable
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following the Execution Date but not later than April 28, 2000, Seller shall, at
Seller's expense, deliver or cause to be delivered to Buyer:
(a) An Owner's title insurance commitment (the "Title
Commitment") covering the Real Property issued by the Title Company, pursuant to
which the Title Company agrees to insure title to the Real Property under an
ALTA (Form 1992) Owner's Title Insurance Policy in the full amount of the
purchase price, calling for standard printed Exceptions 1 through
5 to be deleted upon receipt of the Survey, a current tax certificate, and
mechanics' lien affidavits from Seller and Buyer (such affidavits to be in form
and content reasonably acceptable to Seller and Buyer respectively), with the
exception for taxes and assessments to be limited to Real Property taxes and
assessments for the year of closing not yet due and payable; and
(b) True and correct legible copies of any and all instruments
referred to in the Title Commitment as constituting exceptions or restrictions
upon the title of Seller to the Real Property.
3.3 Delivery of Other Documents. As soon as reasonably practicable
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following the Execution Date, Seller shall deliver copies of the following
records and documents in its possession or under its control, if any, pertaining
to the Real Property to Buyer :
(a) Any and all environmental audits or reports regarding the
environmental condition; any reports and documents prepared by any owner,
architects or engineers in connection with the Real Property, and any other
records concerning the physical condition of the Real Property.
(b) All soil reports and engineers', laboratory or other
technical reports relating to the Real Property or any condition on or affecting
the Real Property; all notices, reports, tests or other documents received from
governmental agencies or submitted to such entities.
(c) All written agreements with governmental agencies and
utility companies, and if not delivered with the Title Commitment all permits,
licenses, easements, rights-of-way and other agreements in effect pertaining to
use of the Real Property.
(d) All formation documents, service plans and other documents
pertaining to any Special Districts formed or to be formed by Seller.
(e) All final subdivision plats and agreements and the Seller's
submittal to amend the final Development Plan and related design development
package submitted to ▇▇▇▇▇▇▇ County by Seller.
(f) The Existing Survey and the Existing Title Commitment.
3.4 Evidence of Delivery. Seller shall evidence delivery of all of
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the items in its possession or under its control listed in Sections 3.1, 3.2 and
3.3 above by transmittals listing the documents being delivered and, at the ▇▇▇▇
▇▇▇▇▇▇ believes in good faith that it has satisfied its obligation to deliver
all such items, Seller shall notify Buyer in writing; delay beyond the deadlines
set forth in the respective Sections shall delay the expiration of the Due
Diligence Period and shall cause an equal delay in the Closing Date.
4. Due Diligence Period.
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4.1 Property Inspection. At any time prior to Closing (so long as
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this Agreement has not been terminated), Buyer or its designees shall have the
right, at Buyer's expense, to inspect the Property and perform any testing it
desires. Seller agrees to cooperate with Buyer and provide access to Buyer and
its designees to all areas of the Real Property upon reasonable advance notice
from Buyer. Buyer and its designees shall not park on the adjacent Lot 12 when
performing such inspections, nor shall Buyer, its designees or successors, have
any rights under this Agreement or the Closing Documents to park on such
adjacent Lot 12 following Closing for construction or other purposes. Buyer and
its designees shall also have the right to meet with Seller's employees,
management personnel, governmental agencies and such other third parties as
Buyer determines will be helpful in evaluating the Property. Buyer shall
indemnify, defend and hold Seller harmless from any claim by third parties for
injuries and for any mechanic's liens (including all costs and expenses such as
legal fees unless Buyer is providing a defense), asserted against Seller or the
Property resulting from any inspections of the Property by Buyer or its
designees prior to the applicable Closing.
4.2 Title and Survey. On or prior to 5:00 P.M. Mountain time on
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April 10, 2000, Buyer shall deliver in writing to Seller such objections as
Buyer may have to anything contained in the Survey or Title Commitment. If Buyer
has not yet received the Survey or Title Commitment by such deadline, Buyer
shall deliver objections to Seller based on the existing survey dated June 4,
1999 having a most recent revision date of August 19, 1999 (the "Existing
Survey") and Seller's existing title commitment with respect to the Real
Property (the "Existing Commitment"), with a right to update Buyer's objection
letter based on changes appearing in the Survey and Title Commitment when
received. Any such item disclosed in the Survey or the Title Commitment (or the
Existing Survey and Existing Commitment, if applicable) to which Buyer does not
object by such date shall be deemed a "Permitted Exception." Within five (5)
days of receipt of any notice of objections by Buyer (it being understood that
Buyer may deliver one or more such notices), Seller shall notify Buyer either
(i) of the actions that Seller will take to correct Buyer's objections, or (ii)
that Seller will not or cannot satisfy all or certain of the items of which
Buyer has given notice of objection. If Seller fails to timely respond, Seller
shall be deemed to have elected not to correct any such objections. Buyer shall,
within two (2) days after receipt or deemed receipt of Seller's notice that
Seller cannot or will not satisfy certain objections (the "Uncured Title
Objections"), either (a) waive such Uncured Title Objections, and proceed to
close this transaction (subject to Buyer's right to give notice of other
objections within the Due Diligence Period), or (b) terminate this Agreement by
giving written notice to Seller; provided, however, that Buyer shall have the
right to have any Uncured Title Objections constituting liens or monetary claims
satisfied out of the proceeds of the Purchase Price at Closing and receive a
credit for such amounts. If Buyer does not give notice of its election to waive
such Uncured Objections, it shall be presumed that Buyer has elected to
terminate pursuant to clause (b) above. Current Real Property taxes and
assessments not yet due and payable, any additional exceptions to be added to
the Title Commitment by the Title Company as disclosed by the Survey or upon
deletion of standard printed Exceptions Nos. 1 through 5 unless objected to by
Buyer as provided above shall be deemed to be Permitted Exceptions. If after
delivery of the Title Commitment and Survey and prior to Closing the Title
Company gives notice to Buyer of any additional exceptions to title, Buyer shall
have the right to give further
notice within five (5) business days that Buyer considers such exceptions
Uncured Title Objections ("Additional Uncured Title Objections") and the
foregoing procedures shall also be applicable to such Additional Uncured Title
Objections; provided, however, that (i) if the Closing would otherwise occur
before Buyer has had a full period for waiving the objections or terminating
this Agreement, Buyer shall have the right to extend the Closing to permit the
periods for notice as provided above; (ii) if Seller notifies Buyer that Seller
intends to take actions approved by Buyer (which approval shall not be
unreasonably withheld) to correct the Additional Uncured Title Objections,
Seller shall have the right to extend the Closing Date for up to sixty (60) days
for purposes of completing such actions, and (iii) if Seller fails to correct
the Additional Uncured Title Objections for any reason within the 60-day period,
if applicable, Buyer shall have the right to have any Additional Uncured Title
Objections constituting liens or monetary claims satisfied out of the proceeds
of the Purchase Price at Closing and receive a credit for such amounts. At
Closing, Seller shall pay for the costs of the owner's title policy for Buyer
issued in accordance with the Title Commitment and for any endorsements that
Seller has agreed to obtain to correct Buyer's objections as referred to above;
Buyer shall pay for any other endorsements or coverages that Buyer requires.
4.3 Condition of Property and Documents. If on or before April 17,
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2000 (the "Due Diligence Deadline") (the period from the Execution Date until
the Due Diligence Deadline being hereinafter referred to as the "Due Diligence
Period"), Buyer determines, for any reason in its sole discretion, that Buyer
does not desire to proceed with the purchase of the Property, Buyer shall have
the right to deliver written notice to Seller of Buyer's determination to that
effect during the Due Diligence Period, in which event this Agreement shall be
deemed terminated and Buyer's ▇▇▇▇▇▇▇ Money shall be returned to Buyer.
4.4 Termination or Acceptance. If Buyer gives written notice of
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termination pursuant to Section 4.2 or 4.3 or is deemed to have terminated in
accordance with Section 4.2 or 4.3 above, this Agreement shall terminate, the
▇▇▇▇▇▇▇ Money shall be immediately returned to Buyer, Buyer shall pay for
Seller's costs of updating its existing survey to create the Survey to meet the
requirements of Section 3.1, and thereafter Seller and Buyer shall have no
further obligations or liabilities one to the other under this Agreement (except
for those that survive termination as provided herein). Unless Buyer terminates
this Agreement, Buyer shall deliver to the Title Company concurrently with the
expiration of the Due Diligence Period $500,000.00 as an additional deposit (the
"Additional Deposit) to be held as ▇▇▇▇▇▇▇ Money, in addition to the Initial
Deposit; in such event, the ▇▇▇▇▇▇▇ Money shall become non-refundable except as
expressly provided herein.
4.5 Closing Documents. During the Due Diligence Period, Buyer,
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Seller and the Title Company shall approve the form of the Closing Documents
(including the Deed and License). Seller and Buyer shall not unreasonably
withhold or delay approval of the form of all documents to be delivered at
Closing.
5. Representations and Warranties of Seller. Seller represents and
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warrants to Buyer as follows:
5.1 Seller is a limited partnership duly organized and existing and
is in good standing under the laws of the State of Colorado. Seller has full
power and authority to enter into this Agreement and to fulfill its obligations
hereunder, and Seller has been duly authorized to execute this Agreement and to
consummate the transaction contemplated hereby.
5.2 No third party approval or consent is required for Seller to
enter into this Agreement or to consummate Seller's obligations contemplated
hereby, and the execution, delivery, and performance of this Agreement by Seller
will not result in a breach of, or constitute a default under, any instrument or
agreement to which Seller is bound.
5.3 To the best of Seller's knowledge, except as set forth on
Exhibit 5.3 hereto, there are no special assessments, special tax districts or
outstanding obligations (contingent or otherwise) to governmental entities
(collectively "Assessments") with respect to the Real Property or any part
thereof nor has Seller any knowledge of any Assessments being contemplated.
5.4 To the best of Seller's knowledge, except as set forth on
Exhibit 5.4 hereto, Seller has not received any written notices from any
governmental authority that the Property is presently in violation in any
material respect with any applicable statutes, ordinances, codes, rules, and
regulations of any governmental authority having jurisdiction over the Property
or is the subject of a condemnation proceeding.
5.5 To the best of Seller's knowledge, there are no filed legal
actions or proceedings, or written claims pending or threatened which would
adversely affect the Property or Lots or Seller's ability to convey title in
accordance with this Agreement.
5.6 The Real Property has full and free access and Seller has no
knowledge of any fact, condition, or action, present, contemplated, or
threatened, which would or may result in the termination or impairment of access
to and from the Real Property as such access presently exists and there are no
easements or rights-of-way affecting any or all of the Real Property, except as
shown on the Survey or in the Title Commitment.
5.7 To the best of Seller's knowledge, Seller is not in violation of
any easements, rights-of-way, conditions, covenants and restrictions, Licenses
or other agreements burdening the Property.
5.8 To the best of Seller's knowledge, there is no pending or
proposed governmental actions which would impair Buyer's ability to use the
Property as intended for development of office buildings on the Property and its
financing through a customary and usual trust deed loan.
5.9 Seller is not a "foreign person" within the meaning of Sections
1445(f)(3) and 7701(a)(30) of the Internal Revenue Code and Seller will furnish
to Buyer, at or prior to Closing, an affidavit in form reasonably satisfactory
to Buyer confirming the same.
5.10 Except as disclosed in the Title Commitment to be delivered
under Section 3.2, no commitments have been made to any governmental authority,
utility company, school board, church or other religious body, homeowner's
association, or any other organization, group or individual relating to the Real
Property which would impose any obligations upon Buyer as owner of the Property
or its successors and assigns to make any contribution or dedication of money or
land or to construct, install or maintain any improvements of a public or
private nature on or off the Real Property; and Seller has no knowledge that any
governmental authority has imposed any requirement that would bind Buyer to pay
directly or indirectly any special fees or contributions or incur any special
expenses or obligations in connection with the development of the Real Property
or any portion thereof.
5.11 Except as disclosed to Buyer prior to the Due Diligence
Deadline, Seller has not entered into any binding contracts or agreements that
would be binding on Buyer as owner of the Property upon Closing on the Property
under this Agreement.
6. Environmental Matters.
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6.1 Except as disclosed on Exhibit 6.1, to the best of Seller's
knowledge, the Real Property is in compliance with all applicable statutes,
laws, ordinances, rules and regulations of any federal, state, local or other
governmental agency having jurisdiction with respect to the use, generation,
storage, release, threatened release, or disposal of any Hazardous Material (as
hereinafter defined) exposure to which or the use, handling, storage or disposal
of which is prohibited, limited or regulated by any federal, state, county,
regional or local authority, or other governmental authority of any nature, that
has jurisdiction over the Real Property (herein collectively "Hazardous
Materials Laws"). As herein used Hazardous Materials shall include, but not be
limited to asbestos containing materials, petroleum, crude oil (any fraction
thereof), natural gas, natural gas liquids, and those substances defined as
"hazardous substances," "hazardous materials," "hazardous wastes," or other
similar designations in the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq., the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., and any
other applicable governmental statutes, laws, ordinances, rules, regulations,
and precautions.
6.2 Except as set forth on Exhibit 6.1, Seller knows of no Hazardous
Materials or aboveground or underground storage tanks, whether or not used for
the storage of Hazardous Materials, located on the Real Property. To Seller's
knowledge, the Real Property has never been used as a landfill or garbage dump.
6.3 Seller is unaware of any litigation brought or
threatened or of any settlements reached by or with any parties alleging the
presence, disposal, release or threatened release of any Hazardous Materials
from the operation of the Real Property or businesses thereon.
7. Updating Representations. All representations and warranties made by
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Seller in this Section 5 are made as of the date of this Agreement and shall be
deemed remade at Closing, subject to the following provisions, and shall survive
the Closing for a period of one (1) year,
and shall not be merged into any instrument of conveyance delivered at Closing.
If, prior to Closing, Seller believes or has knowledge that any representations
or warranties are not materially complete and accurate, Seller shall notify
Buyer of such changes as soon as reasonably practicable prior to Closing. At
Closing, Seller will provide to Buyer a supplemental certificate in form
reasonably satisfactory to Buyer reflecting any changes to any of the foregoing
representations and warranties as of the Closing Date and describing how such
changes were discovered, or stating that there are no such changes. In
accordance with Section 10 below, it shall be a condition for the benefit of
Buyer at Closing that there shall be no material adverse change in such
warranties and representations and that they be true and correct as of the
Closing.
8. Representations and Warranties of Buyer. Buyer represents and
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warrants to Seller that Buyer is a duly formed and validly existing Delaware
corporation. Buyer has been duly authorized by all necessary action on the part
of Buyer to execute this Agreement and all of the documents required to
consummate the transaction contemplated hereby. The foregoing representation and
warranty made by Buyer shall be continuing and shall be deemed remade by Buyer
as of the date of Closing with the same force and effect as if made at and as of
that time, shall survive the Closing for a period of one (1) year, and shall not
be merged into any instrument of conveyance delivered at Closing.
9. Covenants of Seller. Seller hereby covenants with Buyer as follows:
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9.1 New Contracts. Seller shall not enter into any contract with
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respect to the Property which will survive the Closing or otherwise affect the
use, operation, or enjoyment of the Property after the Closing without Buyer's
prior written consent, which consent shall not be unreasonably withheld or
delayed. Seller shall terminate construction contracts entered into by Seller
for completion of construction on the Real Property; such contracts shall not be
assigned to Buyer and Buyer shall have no obligations under such contracts and
Seller shall have no obligation to deliver such contracts to Buyer.
9.2 Non-Foreign Affidavit. Seller shall deliver to Buyer at Closing
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a sworn statement of Seller complying with the provisions of Section 1.1445-
2(b)(2)(iii)(B) of the U.S. Income Tax Regulations and (i) stating that Seller
is not a "foreign person," within the meaning ascribed to such term in Sections
1445(f)(3) and 7701(a)(30) of the Internal Revenue Code; (ii) stating that
Seller is a U.S. corporation; and (iii) setting forth Seller's tax
identification number (the "Non-Foreign Affidavit").
9.3 No Further Encumbrances. From and after the date of this
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Agreement, Seller shall not grant, convey, transfer, or hypothecate any interest
in the Property to any party, including but not limited to any agreement,
encumbrance, lien, right-of-way, restriction, covenant, mortgage, deed of trust,
easement, ground lease, license, permit, ▇▇▇▇ of sale, form UCC-1 or convey or
transfer any other legal or beneficial interest in or to the Property, or do
anything else with respect to the Property which would in any way impair the
marketability of the title of Seller to the Property, without the prior written
consent of Buyer. Commencing with the Execution Date and until the final
Closing, or earlier termination of this Agreement by Buyer under Section 4.4,
Seller shall cease marketing the Property for sale or lease to third parties and
shall direct agents, employees and independent contractors of Seller not to
engage in further efforts to market the Property other than cooperating with
Buyer in accordance with this Agreement.
9.4 Compliance with Laws. Seller shall not violate any covenant,
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restriction, law, ordinance, rule, regulation, lease, or license affecting the
Property, and Seller shall deliver to Buyer promptly after Seller's receipt any
notices of alleged defaults under a License or alleged violations of
governmental requirements.
9.5 Preservation of Property. Seller shall do or cause to be done
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all things reasonably within its control to preserve intact and unimpaired any
and all rights-of-way, access, easements, grants, appurtenances, rights,
privileges, leases, contracts, agreements, and licenses in favor of, relating
to, or benefiting all or any portion of the Property.
9.6 Governmental Approvals. Seller has submitted a final development
----------------------
plan submittal and design development package to Arapahoe County in connection
with seeking approval for the development planned by Seller for the Real
Property. Seller makes no warranty concerning whether such approvals will be
issued or whether Buyer's intended use of the Real Property is permitted under
existing governmental requirements or such proposed approvals. Seller shall not
finalize such approvals without the consent of Buyer and upon closing, Buyer
shall assume all responsibility for obtaining governmental approvals required
for development of the Real Property.
10. Conditions to Closing.
---------------------
10.1 Conditions Precedent to Buyer's Obligations. The satisfaction
-------------------------------------------
of all of the following on or prior to the Closing Date shall be deemed
conditions precedent to the obligations of Buyer hereunder:
(a) All of the representations and warranties of Seller and the
factual statements contained therein shall be true and correct in all material
respects on and as of the Closing Date as though remade to Buyer on and as of
such date. If the representations and warranties of Seller are not true and
correct as of the Closing Date in all material respects as a result of events
not caused by Seller occurring subsequent to the execution date as reflected in
a Certificate of Seller and Seller should not have reasonably anticipated such
event on the Execution Date, and if Buyer closes notwithstanding such changes,
Buyer shall be deemed to have waived any rights to exercise its remedies
following the Closing for such breach of Seller's warranties and
representations. Except as provided above, if Buyer elects to close
notwithstanding any changes in representations and warranties or if any
representations and warranties are not true as of the Closing, Buyer shall not
be deemed to have elected to waive the right to exercise remedies following the
Closing for such breach of Seller's warranties and representations.
(b) Seller shall have performed and complied with all of
Seller's obligations and covenants. If Buyer elects to close notwithstanding
that Seller has breached any
of its obligations or covenants, Buyer may nevertheless pursue its remedies
following the Closing for such breaches.
(c) Seller shall have made the deliveries required under
Section 11 below.
(d) The Title Company (for itself and as agent for the title
insurance company issuing the owner's policy under the terms of the Title
Commitment) shall have either issued the required title policy with all
requested endorsements or entered into a binding agreement (in a form approved
by Buyer) to issue the title policy to Buyer in accordance with the Title
Commitment.
(e) There shall be no action, suit or proceeding which is
pending against Seller before any court under the bankruptcy or insolvency laws
of the United States or any state thereof.
10.2 Conditions Precedent to Seller's Obligations. The satisfaction
--------------------------------------------
of all of the following on or prior to Closing Date shall be deemed conditions
precedent to the obligations of Seller hereunder:
(a) Buyer shall have deposited the Purchase Price (with
adjustments in accordance with the proration provisions of Section 12 below)
with the Title Company and shall have made the deliveries required under Section
11 below.
(b) All of the representations and warranties of Buyer
hereunder shall be true and correct in all material respects on and as of the
Closing Date as though remade as of said date.
(c) Buyer shall have otherwise fully performed all of its
obligations in this Agreement to be performed prior to Closing.
(d) There shall be no action, suit or proceeding which is
pending against Buyer before any court under the bankruptcy or insolvency laws
of the United States or any state thereof.
10.3 Waiver. Each of the parties hereto shall have the right in its
------
sole and absolute discretion to waive compliance by the other party of any of
the conditions precedent to its obligations hereunder. Closing the transaction
contemplated hereby notwithstanding the failure of a condition to be satisfied
shall constitute a waiver thereof, except as otherwise provided in Section 10.1.
11. Closing. Buyer and Seller agree that the purchase will be consummated
-------
as follows:
11.1 Pre-Closing. Buyer and Seller agree that five (5) business days
-----------
prior to the Closing Date, representatives of the parties shall meet and review
all documents to be
executed at Closing for the purposes of reaching final agreement on the form
and content of all such documents to the extent that they are not required to
have been previously approved.
11.2 Closing Date. This transaction will close (hereinafter called
------------
the "Closing") on May 8, 2000 (the "Closing Date") unless the Closing Date is
extended in accordance with the express terms of this Agreement. If the Closing
Date is extended, the Pre-Closing shall likewise be automatically rescheduled to
occur five (5) business days prior to the Closing Date. The Closing shall take
place through an escrow with the Title Company acting as Escrow Agent pursuant
to escrow instructions agreed to by Seller, Buyer and Title Company during the
Due Diligence Period. The escrow instructions shall provide for all closing
deliveries to be made to the Title Company which shall be authorized to disburse
funds and record documents in accordance with this Agreement.
11.3 Closing Documents. Seller and Buyer will deliver or cause to be
-----------------
delivered to Title Company at Closing, as appropriate, the following items (all
documents will be duly executed and acknowledged where required):
(a) Deed. Seller shall deliver a special warranty deed for the
----
Real Property, Mineral Rights and Water Rights, conveying to Buyer fee simple
title in and to the Real Property, Mineral Rights and, if any, Water Rights,
unencumbered except for the Permitted Exceptions (the "Deed").
(b) Omnibus Assignment. To the extent that Seller owns Licenses
-------------------
or other Property (other than Real Property) and rights under the PERA
Agreement, the Cyprus Agreement, the Reciprocal Access Agreement and the
Drainage Agreement to be transferred at Closing, Buyer and Seller shall deliver
an omnibus assignment ("Omnibus Assignment") assigning the Property (other than
the Real Property) to Buyer. Seller will indemnify, defend and hold Buyer
harmless from and against any and all claims, damages, losses, costs, or
expenses, including reasonable attorneys' fees, with respect to such Property
with respect to acts, omissions or events occurring or arising prior to the
Closing Date, and Buyer will assume the obligations of Seller thereunder and
will indemnify, defend and hold Seller harmless from any and all claims,
damages, losses, costs, and expenses, including reasonable attorneys' fees,
under such Property with respect to acts, omissions or events occurring on or
after the Closing Date and during Buyer's ownership.
(c) Funds. Buyer shall deliver the funds to be paid at Closing
-----
to the Title Company by wire transfer or other immediately available funds.
(d) Title Policy. The Title Company shall either issue as of
-------------
the Closing Date, or as soon thereafter as possible, to Buyer at Seller's
expense, an owner's policy of title insurance on the Real Property in accordance
with the Title Commitment effective as of a time and date of the recording of
the Deed as provided above, if such policy will not be issued at Closing, Title
Company shall provide Buyer with reasonable written assurance that it will be
issued as soon as possible thereafter.
(e) Revised Exhibits; Documents. Seller shall deliver any
---------------------------
revised Exhibits as contemplated or permitted herein, and any supplemental
certificate(s) as to changes in any of the representations set forth herein.
Seller shall deliver originals of the items previously delivered in accordance
with Section 3.3 above.
(f) Non-Foreign Affidavit. Seller shall deliver the Non-Foreign
---------------------
Affidavit of Seller as contemplated by Section 5.9 hereof.
(g) Settlement Statements. Seller and Buyer shall each execute
---------------------
and deliver settlement statements ("Settlement Statements") and any additional
funds required to be paid by either party thereunder.
(h) Further Documents. Seller and Buyer shall each execute and
-----------------
deliver such other documents and take such other action at Closing as may be
reasonably necessary or appropriate to carry out their respective obligations
under this Agreement.
(i) Form 1099-B. Seller and Buyer agree to cause the Title
-----------
Company to prepare and file with the Internal Revenue Service a completed Form
▇▇▇▇-▇, ▇▇▇▇▇▇▇▇▇ for Recipients of Proceeds from Real Estate, Broker, and
Barter Exchange Transactions, together with the preparer's certification to the
effect that: (i) such Form 1099-B to the best knowledge of its preparer is
accurate and complete; (ii) such Form 1099-B will be timely filed by such
preparer; and (iii) a copy of such Form 1099-B has been furnished to Seller and
Buyer.
11.4 Possession. Effective on delivery to Buyer by the Title Company
----------
of the Deed to the Real Property, possession will pass from Seller to Buyer.
12. Adjustments and Prorations. The following adjustments and prorations
--------------------------
shall be made at the Closing and evidenced in the Settlement Statements:
12.1 Real Estate Taxes and Assessments. All real estate taxes and
---------------------------------
personal property taxes, if any, and assessments attributable to the Real
Property for the calendar year in which the Closing occurs shall be prorated at
Closing on the basis of the levy and assessment for the Real Property for the
preceding year, unless the real estate taxes and/or assessments for the current
year are known at the Closing Date. Final proration shall be based on the actual
amount of taxes and assessments due in respect of the Real Property for the
calendar year in which the Closing occurs. When the actual amount of taxes and
assessments due for the calendar year in which the Closing occurs are known to
Buyer, Buyer shall promptly deliver to Seller written notice together with
reasonable evidence of the amount and a calculation prorating such amount as of
the Closing Date. Any payment required pursuant hereto from either party shall
be made within ten (10) days after receipt by Seller of such written notice.
12.2 Expenses. Seller shall pay all utility charges and other
--------
expenses attributable to the Real Property to, but not including, the Closing
Date.
12.3 Documentary Fee. Buyer shall be responsible for the payment of
---------------
any documentary fee with respect to the contemplated purchase and sale
transaction.
12.4 Closing Costs. Seller shall pay all charges specified to be paid
-------------
by Seller under other provisions of this Agreement, the title insurance to be
paid for by Seller in accordance with Section 4.2, Seller's attorneys' fees, and
one-half (1/2) of any closing fee charged by the Title Company. Buyer shall pay
all charges specified to be paid by Buyer under other provisions of this
Agreement, the title insurance to be paid for by Buyer in accordance with
Section 4.2 (if any), Buyer's attorneys' fees, any fees incurred in recording
the Deeds, and one-half (1/2) of any closing fee charged by the Title Company.
Any other expenses or charges in connection with the Closing of this transaction
shall be paid or prorated between the parties as is customary in real estate
transactions in Colorado.
12.5 Property and Liability Insurance. All property and liability
--------------------------------
insurance currently being carried by Seller on the Real Property will be
canceled at Closing, and Buyer shall be responsible for obtaining its own
insurance coverage for the Real Property as of the Closing Date.
13. Default and Remedies.
--------------------
13.1 Seller's Default. If Seller fails to perform any of the material
----------------
covenants and/or agreements contained herein which are to be performed by Seller
on or before Closing, Buyer shall have the right (i) to treat this Agreement as
terminated and receive an immediate refund of the ▇▇▇▇▇▇▇ Money, or (ii) to
treat this Agreement as being in full force and effect and obtain any equitable
or legal remedy for such default, including, but not limited to, specific
performance and money damages. If Seller defaults in any of its Post-Closing
obligations, Buyer shall have the right to obtain any equitable or legal remedy
for such default, including, but not limited to, specific performance and money
damages; provided, however, that Seller's warranties and representations shall
survive Closing only for a period of one (1) year.
13.2 Buyer's Default. If Buyer fails to perform any of the material
---------------
covenants and/or agreements contained herein which are to be performed by Buyer
on or before Closing, and if Seller is not then in default of any of its
material obligations hereunder, Seller shall have the right to terminate this
Agreement and retain the ▇▇▇▇▇▇▇ Money as liquidated damages as Seller's sole
and exclusive remedy. Seller and Buyer agree that Seller's actual damages in the
event of a default by Buyer would be extremely difficult or impractical to
determine. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE
THAT THE ▇▇▇▇▇▇▇ MONEY HAS BEEN AGREED UPON AFTER NEGOTIATION AS THE PARTIES'
REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS SELLER'S EXCLUSIVE REMEDY AGAINST
BUYER AT LAW OR IN EQUITY IN THE EVENT OF A DEFAULT BY BUYER UNDER THIS
AGREEMENT ON OR BEFORE CLOSING. If Buyer defaults in any of its Post-Closing
obligations (including obligations under Sections 4.1, 8, 11.3(b), 12.1 and 15),
Seller shall have the right to obtain any equitable or legal remedy for such
default, including, but not limited to, specific performance and money damages;
provided, however, that Buyer's warranties and representations shall survive
Closing only for a period of one (1) year.
Initials: Seller__________ Buyer__________
14. Indemnities.
-----------
14.1 Liens. Subject to the provisions below, Seller shall
-----
defend, indemnify and hold Buyer harmless from any and all claims, demands,
liabilities, and costs and expenses, including reasonable attorneys' fees as a
result of the nonpayment for improvements to the Property, or for materials,
labor, or services provided to the Property including those provided to or for
any tenants of the Real Property at the instance of Seller, its agents,
employees, or independent contractors prior to the Closing Date, if any. If a
mechanic's lien, notice of intent to file a mechanic's lien or similar document
is filed against the whole or any portion of the Real Property, Seller shall
cause the removal of such lien or other document by provision of a bond or
otherwise at Seller's expense within 15 days after Seller is notified by Buyer.
14.2 Representations. Seller shall indemnify, defend and hold
---------------
Buyer harmless from and against any and all liabilities, losses, claims,
damages, costs or expenses (including, without limitation, reasonable attorneys'
fees and expenses) arising out of, or related to Seller's representations or
warranties being incorrect or untrue as of the date made or as of the Closing
Date.
15. Commissions. Seller and Buyer each represents to the other that it
-----------
has not engaged or otherwise used the services of a real estate broker, salesman
or other party entitled to any broker's, finder's, or similar fee in connection
with this transaction, except for ▇▇▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇ & ▇▇▇▇▇, who is acting
as agent on behalf of Buyer, who will be paid a commission by Buyer. Seller
agrees to indemnify Buyer and hold Buyer harmless from any loss, liability,
damage, cost, or expense (including, without limitation, reasonable attorneys'
fees) paid or incurred by Buyer by reason of any claim for any broker's,
finder's, or other fee in connection with this transaction by any party claiming
by, through, or under Seller. Buyer agrees to indemnify Seller and hold Seller
harmless from any loss, liability, damage, cost, or expense (including, without
limitation, reasonable attorneys' fees) paid or incurred by Seller by reason of
any claim for any broker's, finder's, or other fee in connection with this
transaction by any party claiming by, through, or under Buyer.
16. Condemnation.
------------
16.1 Notice of Condemnation. Seller agrees to give Buyer prompt
----------------------
notice of any actual or threatened taking in condemnation or by eminent domain
(including a sale or transfer in lieu thereof) of all or any part of the Real
Property.
16.2 Right of Termination upon Condemnation. Any actual or
--------------------------------------
threatened taking or condemnation for any public or quasi-public purpose or use
by any competent authority in appropriate proceedings or by any right of eminent
domain of all or any part of the Real Property between the date of this
Agreement and the time for Closing shall, at Buyer's option, cause a termination
of this Agreement. Such election must be exercised by Buyer (or will be deemed
to have been waived) by notice to Seller within ten (10) days following Buyer's
receipt of Seller's notice pursuant to Section 16.1. If Buyer does not elect to
terminate this Agreement,
or if an immaterial taking occurs or is threatened, i.e., one that will not
adversely affect the continued operation of the Real Property in the same manner
and will not permit a tenant to terminate its Lease, Seller shall not be
required to convey title to the Real Property taken or condemned, but Buyer will
be entitled to all proceeds of any such taking or condemnation if Buyer
consummates the contemplated transaction. In this event, Seller will make no
adjustment or settlement of such taking or condemnation proceeding without
Buyer's consent and will at Closing take all necessary action to assign to Buyer
its entire interest in any such award or give Buyer an equivalent credit. Buyer
shall also have the right of termination to the extent that adjacent roads or
rights-of-way are the subject of a condemnation proceeding, either actual or
threatened, if Buyer reasonably concludes it will adversely affect the
development and/or value of the Real Property.
17. Miscellaneous Provisions.
------------------------
17.1 Time. Time is of the essence of this Agreement. For
----
purposes of this Agreement, "days" means calendar days and "business days"
means days other than Saturday, Sunday, and holidays on which national banks
in Colorado are closed. All times referred to herein shall mean "Mountain time."
17.2 Notices and Representatives.
---------------------------
(a) Notices. Any notice, request, demand, or other
-------
communication to be given to either party hereunder, except those required to be
delivered at Closing, shall be in writing, and shall be addressed as follows:
If to Seller: MGA Development Associates, L.P.
c/o Miller Global Properties, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: Isaacson, Rosenbaum, ▇▇▇▇▇ & Levy, P.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Buyer: Rhythms NetConnections, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:___________________
Phone: ______________________
Fax: ________________________
With copy to: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The addresses and parties listed above may be changed by either party by giving
notice to the other party in the manner provided herein for giving notice. Any
notice delivered by mail in accordance with this Section shall be deemed to have
been duly given on the third business day after the same is deposited in any
post office or postal box regularly maintained by the United States postal
service. Any notice delivered by telecopier in accordance with this Section
shall be deemed to have been duly given upon receipt if concurrently with
sending by telecopier receipt is confirmed and a copy is sent by mail on the
same day to the intended recipient. Any notice delivered by hand or commercial
carrier shall be deemed to have been duly given upon actual receipt.
17.3 Attorneys' Fees. If either party commences an action to enforce
---------------
this Agreement or any provisions contained herein and/or to collect damages as a
result of an alleged breach, the prevailing party shall be entitled to recover
in addition to all other remedies or damages reasonable attorneys' fees and
costs incurred in such suit.
17.4 Entire Agreement. This Agreement, together with all Exhibits and
----------------
supplements and additional exhibits constitutes the entire agreement between
Buyer and Seller, and there are no other agreements, understandings, warranties,
or representations between Buyer and Seller. This Agreement cannot be amended
except in writing executed by Buyer and Seller.
17.5 Binding Effect. Subject to Section 17.7, this Agreement shall
--------------
inure to the benefit of and bind the respective successors and permitted assigns
of the parties hereto.
17.6 Execution. This Agreement has been executed by the parties on
---------
the dates set forth below their respective signatures.
17.7 Assignment. Buyer shall have a right to assign its interest in
----------
this Agreement provided Buyer or its constituent partners has not less than a
fifty percent (50%) interest in the assignee.
17.8 Governing Law. This Agreement shall be construed, interpreted,
-------------
and enforced in accordance with the laws of the State of Colorado.
17.9 Counterparts; Facsimile Signatures. This Agreement may be
----------------------------------
executed in counterparts, each of which (or any combination of which) when
signed by all of the parties shall be deemed an original, but all of which when
taken together shall constitute but one agreement. Any one or more of such
duplicate signature pages may be removed from any one or more of such
counterparts and annexed to other counterparts and duplicate signature pages to
form a
completely executed original instrument. Signatures to this document transmitted
by telecopy (facsimile) shall be as fully binding as original signatures.
17.10 Exhibits and Supplemental or Additional Exhibits. Wherever
------------------------------------------------
reference is made herein to an exhibit or to an additional or supplemental
exhibit to be attached and incorporated herein, such exhibit shall be deemed
attached hereto and incorporated herein by reference when the parties have
initialed and delivered to each other copies of such exhibit or additional or
supplemental exhibits whether or not the same are attached to the counterparts
of this Agreement in the possession of each party.
17.11 Survival. Any provisions hereof which require performance
--------
or observance subsequent to Closing shall survive Closing and continue to be
binding on the parties in accordance with their terms.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on the
dates shown below.
SELLER:
MGA DEVELOPMENT ASSOCIATES, L.P., a
Colorado limited partnership
By
_____________________________
Authorized Signatory
Date of Execution:
______________
BUYER:
RHYTHMS NETCONNECTIONS, INC., a
Delaware corporation
By:
________________________
Title:
________________________
Date of Execution:
______________
EXHIBIT 1.1
TO
PURCHASE AND SALE AGREEMENT
Real Property Description
Township 5 South, Range 67 West, 6th P.M.
Section 34: ▇▇▇ ▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ I, the plat of which
was recorded October 9, 1987, under Reception ▇▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
EXHIBIT 5.3
TO
PURCHASE AND SALE AGREEMENT
Assessments
None
EXHIBIT 5.4
TO
PURCHASE AND SALE AGREEMENT
Written Notices From Any Governmental Authority
None
EXHIBIT 6.1
TO
PURCHASE AND SALE AGREEMENT
Hazardous Materials
None
