EXHIBIT 10.7
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
BETWEEN ORIX PRIME WEST BROOMFIELD VENTURE
AND
XXXXX DEVELOPMENT CORPORATION
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 11 day of February, 1998, by and between ORIX
PRIME WEST BROOMFIELD VENTURE, a Colorado general partnership (hereinafter
referred to as "Seller"), and XXXXX DEVELOPMENT CORPORATION, a Georgia
corporation (hereinafter referred to as "Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller desires to sell and Purchaser desires to purchase the Property
(as hereinafter defined) subject to the terms and conditions hereinafter set
forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the terms
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and provisions of this Agreement, Seller hereby agrees to sell to Purchaser and
Purchaser hereby agrees to purchase from Seller, the Property, which term
"Property" shall mean and include the following:
(a) all that tract or parcel of land located in the County of Boulder,
State of Colorado containing approximately 5.143 acres, and being more
particularly described on Exhibit "A" attached hereto and by this reference
made a part hereof (herein referred to as the "Land"); and
(b) Seller's interest in all rights, privileges, and easements appurtenant
to the Land, including all water rights, mineral rights, reversions, or other
appurtenances to said Land, and all right, title, and interest of Seller, if
any, in and to any land lying in the bed of any street, road, alley, or
right-of-way, open or proposed, adjacent to or abutting the Land; and
(c) all buildings, structures, and improvements situated on the Land,
including, without limitation, that certain 3 story office building (the
"Building") containing approximately 51,974 rentable square feet of office
space, the parking areas containing approximately 200 parking spaces and
other amenities constructed on the Land, and all apparatus, built-in
appliances, equipment, pumps, machinery, plumbing, heating, air conditioning,
electrical and other fixtures owned by Seller and located on or to be located
on the Land (all of which are herein collectively referred to as the
"Improvements"); and
(d) all personal property owned by Seller and located on or to be located
on or in, or used in connection with, the Land and Improvements (all of which
are herein collectively referred to as the "Personal Property"); and
(e) all of Seller's right, title, and interest, as landlord or lessor, in
and to the Leases (as hereinafter defined); and
(f) all of Seller's right, title, and interest, if any, in and to the
plans and specifications with respect to the Improvements and any
transferable guarantees, trademarks, rights of copyright, warranties, or
other rights related to the ownership of or use and operation of the Land,
Personal Property, or Improvements, all governmental licenses and permits,
and all intangibles associated with the Land, Personal Property, and
Improvements, including Seller's interest in the name of the Improvements and
the logo therefor, if any.
2. Xxxxxxx Money. Within two (2) business days after the Effective Date (as
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defined in Section 29), Purchaser shall deliver to Security Title Guaranty Co.
("Escrow Agent"), whose offices are at Orchard Place I, 0000 Xxxxxxxxx Xxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000-0000, Purchaser's check,
payable to Escrow Agent, in the amount of $50,000 (the "Xxxxxxx Money"). The
Xxxxxxx Money shall be held and disbursed by Escrow Agent pursuant to a written
Escrow Agreement, a copy of which is attached hereto as Exhibit "B" and by this
reference made a part hereof (the "Escrow Agreement"). The Xxxxxxx Money shall
be refunded by Escrow Agent to Purchaser at Closing (as hereinafter defined), or
shall otherwise be paid to Seller or refunded to Purchaser in accordance with
the terms of this Agreement and the Escrow Agreement. All interest and other
income from time to time earned on the Xxxxxxx Money shall belong to Purchaser
and shall be disbursed to Purchaser at any time and from time to time as
Purchaser shall direct Escrow Agent, all as provided in the Escrow Agreement. In
no event shall any such interest or other income be deemed a part of the Xxxxxxx
Money.
3. Purchase Price. Subject to adjustment and credits as otherwise specified
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in this Agreement, the purchase price (the "Purchase Price") to be paid by
Purchaser to Seller for the Property shall be EIGHT MILLION TWO HUNDRED SEVENTY
FIVE THOUSAND DOLLARS ($8,275,000.00). The Purchase Price shall be paid by
Purchaser to Seller at the Closing (as hereinafter defined) by wire transfer of
immediately available federal funds subject to prorations, adjustments and
credits as otherwise specified in this Agreement.
4. Purchaser's Inspection and Review Rights. Commencing on the Effective Date
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and ending on the date of Closing, and subject to the rights of the Tenants (as
hereinafter defined), Purchaser and its agents, engineers, or representatives,
with Seller's reasonable, good faith cooperation, shall have the privilege of
going upon the Property as needed to inspect, examine, test, and survey the
Property at all reasonable times and from time to time upon 24 hours advance
notice, which notice may be given to Prime West Real Estate Services, Inc. (the
"Manager"). Purchaser agrees not to interfere with the operation of Tenant's
business. Purchaser further agrees it will not enter the premises of any tenant
unless accompanied by a representative of Manager. Such privilege shall include
the right to make tests, borings, and other tests to obtain information
necessary to determine surface and subsurface conditions, provided, however,
that no borings shall be made without the advance consent of Seller, which
consent shall not be unreasonably withheld, and Purchaser shall provide a
certificate of insurance reasonably satisfactory to Seller prior to such tests.
Such privilege shall also include the right to make any other tests deemed
reasonably necessary by Purchaser. Purchaser hereby agrees to indemnify and hold
Seller harmless from any liens, claims, liabilities, expenses and damages,
including, without limitation, reasonable attorney's fees, incurred through the
exercise of such privilege; Purchaser further agrees to repair any damage to the
Property caused by the exercise of such privilege; and said indemnities shall
survive any termination of this Agreement. At all reasonable times prior to the
Closing (as hereinafter defined), Seller shall make available to Purchaser, or
Purchaser's agents and representatives, at the offices of Manager and for
copying at Purchaser's expense, all books, records, and files in Seller's
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possession relating to the ownership (exclusive of partnership documentation)
and operation of the Property, including, without limitation, title matters,
surveys, tenant files, service and maintenance agreements, and other contracts,
books, records, operating statements, and other information relating to the
Property. Seller further agrees to in good faith assist and cooperate with
Purchaser in coming to a thorough understanding of the books, records, and files
relating to the Property. Seller further agrees to provide copies of any of such
books, records, and files as may be reasonably requested by Purchaser, with the
copying costs to be borne by Purchaser. Seller further agrees to provide to
Purchaser prior to the date which is five (5) business days after the Effective
Date the most current surveys of the Land and Improvements in the possession of
Seller. Seller further agrees to provide to Purchaser prior to the date which is
five (5) days after the Effective Date, a statement (the "Operating Statement")
setting forth all revenues from the Property and setting forth all costs and
expenses of operating, maintaining, and repairing the Property (and the costs of
replacing component parts thereof) incurred by Seller, in each case during the
entire period from the date the Building first went into operation, through
December 31, 1997.Seller shall also use its reasonable efforts during the
Inspection Period to cause Xxxxx, Xxx & Associates, Inc. to address its Phase I
Environmental Audit dated September, 1994 and its summary of pier drilling dated
August 11, 1995, to Purchaser in such a way that Purchaser shall be entitled to
rely on same.
5. Special Condition to Closing. Purchaser shall have 45 days after the
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Effective Date (the "Inspection Period") to make investigations, examinations,
inspections, market studies, feasibility studies, lease reviews, and tests
relating to the Property and the operation thereof in order to determine, in
Purchaser's sole opinion and discretion, the suitability of the Property for
acquisition by Purchaser. Purchaser shall have the right to terminate this
Agreement at any time prior to the expiration of the Inspection Period by giving
written notice to Seller of such election to terminate prior to 5:00 p.m.
Denver, Colorado time on the last day of the Inspection Period. In the event
this Agreement is so terminated, Seller shall be entitled to receive the sum of
One Hundred Dollars ($100), whereupon, except as expressly provided to the
contrary in this Agreement, no party hereto shall have any other or further
rights or obligations under this Agreement. Seller acknowledges that the sum of
$100 is good and adequate consideration for the termination rights granted to
Purchaser hereunder.
6. General Conditions Precedent to Purchaser's Obligations Regarding the
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Closing. In addition to any other conditions to Purchaser's obligations
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hereunder, the obligations and liabilities of Purchaser hereunder shall in all
respects be conditioned upon the satisfaction of each of the following
conditions prior to or simultaneously with the Closing (as hereinafter defined),
any of which may be waived by written notice from Purchaser to Seller:
(a) Seller shall have complied in all material respects with and otherwise
performed in all material respects each of the covenants and obligations of
Seller set forth in this Agreement.
(b) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the date
of Closing.
(c) There shall have been no material adverse change to the title to the
Property which has not been cured and the Title Company (as hereinafter
defined) shall have issued the Title Commitment (as hereinafter defined) on
the Land and Improvements without exceptions other than as have been
approved by Purchaser as Permitted Exceptions (as hereinafter defined) and
the Title Company shall be prepared to issue to Purchaser upon the Closing
a fee simple owner's title insurance policy on the Land and Improvements
pursuant to such Title Commitment.
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(d) Purchaser shall have received the Tenant Estoppel Certificates (as
hereinafter defined), duly executed by the Tenants (as hereinafter
defined), provided however that with respect to any tenants occupying less
than 5000 square feet of rentable floor space, Seller may substitute its
certification regarding such matters if Seller has not been able to obtain
a certificate from such tenant.
(e) Purchaser shall have received the Title Commitment, marked to change
the effective date thereof through the date and time of recording the Special
Warranty Deed from Seller to Purchaser, to reflect that Purchaser is vested
with the fee simple title to the Land and the Improvements, and to reflect
that all requirements for the issuance of the final title policy pursuant to
such Title Commitment have been satisfied.
(f) There shall have been no material adverse change in the condition of
the Property or the improvements thereon subsequent to the Inspection Period.
7. Title and Survey. Seller covenants and agrees that Seller, at its sole
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cost and expense, shall, on or before ten (10) days after the Effective Date of
this Agreement cause First American Title Insurance Company, or such other such
title insurance company acceptable to Purchaser (herein referred to as the
"Title Company"), to deliver to Purchaser its commitment (herein referred to as
the "Title Commitment") to issue to Purchaser, upon the recording of the Special
Warranty Deed conveying title to the Property from Seller to Purchaser, the
payment of the Purchase Price, and the payment to the Title Company of the
policy premium therefor, an owner's policy (ALTA 1992) of title insurance with
extended coverage, in the amount of the Purchase Price, insuring good and
marketable fee simple record title to the Property to be in Purchaser without
exception (including any general exception) except for matters set forth on
Exhibit "C" attached hereto and by this reference made a part thereof (herein
referred to as the "Permitted Exceptions"). The Title Policy to be issued shall
not contain any exception for mechanic's or materialman's liens or any exception
for unpaid taxes other than an exception for taxes not yet due and payable. Such
Title Policy shall not contain any exception for rights of parties in possession
other than an exception for the right of the Tenants (as hereinafter defined)
under the Leases. If the Title Commitment shall contain an exception for the
state of facts which would be disclosed by a survey of the Property or an "area
and boundaries" exception, the Title Commitment shall provide that such
exception will be deleted upon the presentation of an "as-built" survey, in
which case the Title Commitment shall be amended to contain an exception only
for the matters shown on the as-built survey which Seller shall obtain at its
sole cost and expense for the benefit of Purchaser. Seller shall also cause to
be delivered to Purchaser together with such Title Commitment, legible copies of
all documents and instruments referred to therein. Purchaser, upon receipt of
the Title Commitment and the copies of the documents and instruments referred to
therein, shall then have twenty (20) days from the later of the date of such
delivery or the Effective Date during which to examine the same, after which
Purchaser shall notify Seller of any defects or objections affecting the
marketability of the title to the Property including the Permitted Exceptions.
Purchaser shall also have the right to object to any matters arising subsequent
to the date of the Title Commitment. Seller shall then have until the Closing to
cure such defects and objections and shall, in good faith, exercise reasonable
diligence to cure such defects and objections. If Seller fails to satisfy such
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defects or objections by the date of Closing, then, at the option of Purchaser:
(i) if any such defects or objections arose by, through, or under Seller or if
any such defects or objections consist of taxes, mortgages, deeds of trust,
deeds to secure debt, mechanic's or materialman's liens, or other such monetary
encumbrances, Purchaser shall have the right to cure such defects or objections,
in which event the Purchase Price shall be reduced by an amount equal to the
costs and expenses incurred by Purchaser in connection with the curing of such
defects or objections, and upon such curing, the Closing hereof shall proceed in
accordance with the terms of this Agreement; or (ii) Purchaser shall have the
right to terminate this Agreement by giving written notice of such termination
to Seller, whereupon any Xxxxxxx Money shall be refunded promptly to Purchaser,
and Purchaser and Seller shall have no further rights, obligations, or
liabilities hereunder, except as may be expressly provided to the contrary
herein; or (iii) Purchaser shall have the right to accept title to the Property
subject to such defects and objections with no reduction in the Purchase Price,
in which event such defects and objections shall be deemed "Permitted
Exceptions"; or (iv) Purchaser may elect to extend the Closing for thirty (30)
days in order to allow Seller additional time to satisfy such defects and
objections. If the Purchaser elects option (iv) above, and such defects and
objections are not cured by Seller to the satisfaction of Purchaser within such
extended time period, Purchaser shall then have the options set forth in items
(i), (ii), and (iii) above.
8. Representations and Warranties of Seller. Seller hereby makes the
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following representations and warranties to Purchaser:
(a) Leases. Attached hereto as Exhibit "D" and by this
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reference made a part hereof is a true and accurate rent roll relating to
the Property, including, without limitation, the name of each tenant
("Tenant" or "Tenants") and any guarantor, base rent and estimated
additional rent payable under each lease, the commencement and expiration
date, any concessions and any rent arrearages. Seller shall deliver to
Purchaser within five days of the Effective Date copies of all leases
described on the rent roll, together with all modifications and amendments
to such Leases (such leases, as modified and amended, being herein referred
to as the "Lease" or "Leases"). Seller is the "landlord" under the Leases
and owns unencumbered legal title to the Leases and the rents and other
income thereunder, except for such matters as shall be discharged by Seller
at Closing.
(b) Leases - Assignment. To Seller's knowledge, no Tenant has assigned
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its interest in its Lease or sublet any portion of the premises leased to
the Tenant under its Lease, except as set forth on Exhibit "D".
(c) Leases - Default. (i) Seller has not received any notice of
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termination or default under any Lease, (ii) there are no existing or
uncured defaults by Seller or, to the Seller=s knowledge, by the Tenant
under any Lease, (iii) there are no events which with the passage of time
or notice, or both, would constitute a default by Seller or, to the
Seller's knowledge, by any Tenant, and Seller has complied with each and
every undertaking, covenant, and obligation of Seller under the Leases, and
(iv) Seller has not received notice that any Tenant has asserted any
defense, set-off, or counterclaim with respect to its tenancy or its
obligation to pay rent, additional rent, or other charges pursuant to its
Lease.
(d) Leases - Rents and Special Consideration. No Tenant: (i) has prepaid
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rent for more than one month in advance under its Lease, (ii) has received
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or is entitled to receive any rent concession in connection with its
tenancy under its Lease, except as expressly set forth in its Lease (iii)
is entitled to any special work (not yet performed), or consideration (not
yet given) in connection with its tenancy under its Lease except as
reflected on Exhibit "D" and for which funds shall be escrowed at Closing;
and (iv) has any deed, option, or other evidence of any right or interest
in or to the Property, except as evidenced by the express terms of its
Lease. The parties acknowledge that the purchase price has been calculated
on the assumption that rent will be due and payable under all Leases
commencing no later than the date of Closing, and, in the event rent has
not commenced under the leases to Direct Marketing Technology and
Transecon, Inc. with respect to suites 108 and 105, respectively, by the
date of Closing, then, with respect to such Leases, Seller agrees to pay
the rent and other charges pursuant to a master lease or other arrangement
in the same manner as if such Leases had taken effect and rent had
commenced thereunder. The master lease or other arrangement shall terminate
with respect to each such lease when the tenant thereunder begins the
payment of rent.
(e) Leases - Commissions. All commissions payable under, relating to, or
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as a result of the Leases have been cashed-out and paid and satisfied in
full by Seller or by Seller's predecessor in title to the Property or will
be so satisfied on or before Closing.
(f) Service Contracts. Attached hereto and incorporated herein by this
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reference as Exhibit "E" is a complete and accurate list and description of
all of the service contracts, management agreements, or other agreements
(other than the Leases) which are in effect and which relate to the
operation, management, or maintenance the Property (said agreements being
herein collectively referred to as the "Service Contracts"). Seller shall
provide Purchaser with complete and accurate copies of all Service
Contracts within five (5) business days after the Effective Date of this
Agreement. All such Service Contracts are in full force and effect in
accordance with their respective provisions, and to Seller=s knowledge
there is no default, or claim of default, or any event which with the
passage of time or notice, or both, would constitute a default on the part
of any party to any of such Service Contracts. Seller represents that all
Service Contracts are terminable on 30 days notice. Seller has canceled or
will cancel, effective as of the Closing, any agreement in the nature of a
management agreement or service contract between Seller and any party
affiliated with or related to Seller.
(g) No Other Agreements. Other than the Leases, the Service Contracts
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and the Permitted Exceptions, Seller has not entered into any leases,
service contracts, management agreements, or other agreements or
instruments, to which Seller is a party and that grant to any person
whomsoever or any entity whatsoever any right, title, interest or benefit
in or to all or any part of the Property or any rights relating to the use,
operation, management, maintenance, or repair of all or any part of the
Property.
(h) No Litigation. There are no actions, suits, or proceedings pending,
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or to Seller's knowledge, threatened by any organization, person,
individual, or governmental agency against Seller with respect to the
Property or against the Property, nor does Seller have any knowledge of any
basis for such action. Seller has no knowledge of any pending or threatened
application for changes in the zoning applicable to the Property or any
portion thereof.
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(i) Condemnation. To Seller's knowledge no condemnation or other taking
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by eminent domain of the Property or any portion thereof has been
instituted and, there are no pending or threatened condemnation or eminent
domain proceedings (or proceedings in the nature or in lieu thereof)
affecting the Property or any portion thereof or its use.
(j) Violations. Seller has not received written notice of any violations
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of law, municipal or county ordinances, or other legal requirements with
respect to the Property that remain uncured. Seller will obtain a letter
from applicable authorities addressed to Purchaser and confirming that the
Property is currently zoned in a classification such as will permit the
operation of the Property as an office building and the conditions, if any,
to the granting of the zoning of the Property have been satisfied.
(k) Employees. There are no employment, collective bargaining, or
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similar agreements or arrangements between Seller and any of its employees
or others which will be binding on Purchaser or any of Purchaser's
successors in title.
(l) Bankruptcy. Seller is solvent and has not made a general assignment
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for the benefit of creditors nor been adjudicated a bankrupt or insolvent,
nor has a receiver, liquidator, or trustee for any of Seller's properties
(including the Property) been appointed or a petition filed by or to
Seller's knowledge against Seller for bankruptcy, reorganization, or
arrangement pursuant to the Federal Bankruptcy Act or any similar Federal
or state statute, or any proceeding instituted for the dissolution or
liquidation of Seller.
(m) Pre-existing Right to Acquire. No person or entity has any right or
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option to acquire the Property or any portion thereof which will have any
force or effect after the execution of this Agreement, other than
Purchaser, except as set forth in the Leases.
(n) Effect of Certification. Neither this Agreement nor the transactions
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contemplated herein will constitute a breach or violation of, or default
under, or will be modified, restricted, or precluded by the Leases, the
Service Contracts, or the Permitted Exceptions.
(o) Authorization. This Agreement has been duly authorized and executed
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on behalf of Seller and constitutes the valid and binding agreement of
Seller, enforceable in accordance with its terms, and all necessary action
on the part of Seller to authorize the transactions herein contemplated has
been taken, and no further action is necessary for such purpose.
(p) Seller Not a Foreign Person. Seller is not a "foreign person" which
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would subject Purchaser to the withholding tax provisions of Section 1445
of the Internal Revenue Code of 1986, as amended.
(q) Utilities. All installation and connection charges for utilities
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serving the Property have been paid in full.
(r) Property Taxes. All property taxes required to be paid with respect
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to the Property under any law, ordinance rule, regulation, order, or
requirement of any governmental authority have been, or will be, as the
case may be, truthfully, correctly, and timely paid. Seller agrees to
provide copies of all ad valorem tax bills for 1997, within five business
days after the later of the Effective Date or receipt by Seller of such
bills.
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(s) Operating Statement. The Operating Statement delivered to Purchaser
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shall be true, correct and complete in all material respects.
At Closing, Seller shall represent and warrant to Purchaser that all
representations and warranties of Seller in this Agreement remain true and
correct as of the date of the Closing, except for any changes in any such
representations or warranties that occur and are disclosed by Seller to
Purchaser expressly and in writing at any time and from time to time prior to
Closing, which disclosures shall thereafter be updated by Seller to the date of
Closing. If there is any change in any representations or warranties and Seller
does not cure or correct such changes prior to Closing, then Purchaser may, at
Purchaser's option, (i) close and consummate the transaction contemplated by
this Agreement, or (ii) terminate this Agreement by written notice to Seller,
whereupon any Xxxxxxx Money shall be immediately returned by Escrow Agent to
Purchaser, and thereafter the parties hereto shall have no further rights or
obligations hereunder, except only for such rights or obligations that, by the
express terms hereof, survive any termination of this Agreement.
9. Seller's Additional Covenants. Seller does hereby further covenant and
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agree as follows:
(a) Operation of Property. Seller hereby covenants that, from the
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date of this Agreement up to and including the date of Closing or earlier
termination hereof, Seller shall: (i) not negotiate with any third party
respecting the sale of the Property or any interest therein, (ii) except
for an amendment to the Lease with Direct Marketing Technology, Inc. on
terms and conditions set forth in Exhibit "D", not modify, amend, or
terminate the Leases or enter into any new lease, contract, or other
agreement respecting the Property, without the consent of Purchaser, which
consent shall not be withheld or delayed and (iii) not grant or otherwise
create or consent to the creation of any easement, restriction, lien,
assessment, or encumbrance respecting the Property.
(b) Preservation of Leases. Seller shall, from and after the date of
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this Agreement to the date of Closing, use commercially reasonable efforts
to perform and discharge all of the duties and obligations and shall
otherwise comply with every covenant and agreement of the landlord under
the Leases, at Seller's expense, in the manner and within the time limits
required thereunder. Furthermore, Seller shall, for the same period of
time, use diligent and good faith efforts to cause the Tenants under the
Leases to perform all of its duties and obligations and otherwise comply
with each and every one of its covenants and agreements under such Leases
and shall take such actions as are reasonably necessary to enforce the
terms and provisions of the Leases.
(c) Tenant Estoppel Certificates. Subject to the provisions of
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subparagraph 6(d) above, prior to Closing, Seller shall use its best
efforts to obtain and deliver to Purchaser a fully completed and duly
executed estoppel certificate from each Tenant in the form attached hereto
as Exhibit "F" (herein referred to as the "Tenant Estoppel Certificates").
The Tenant Estoppel Certificates shall be executed as of a date not more
than thirty (30) days prior to Closing.
(d) Insurance. From and after the date of this Agreement to the
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date and time of Closing, Seller shall, at its expense, continue to
maintain the insurance policies covering the Property which are currently
in force and effect.
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(e) Securities Act Compliance. Seller acknowledges that Purchaser may be
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required by the Securities and Exchange Commission to file audited
financial statements for one to three years with regard to the Property. At
no cost or liability to Seller, Seller shall (i) cooperate with Purchaser,
its counsel, accountants, agents, and representatives, provide them with
access to Seller=s books and records with respect to the ownership,
management, maintenance, and operation of the Property for the applicable
period, and permit them to copy the same, (ii) execute a form of Arep@
letter in form and substance reasonably satisfactory to Seller, and (iii)
furnish Purchaser with such additional information concerning the same as
Purchaser shall reasonably request. Purchaser will pay the costs associated
with any such audit.
10. Closing. Provided that all of the conditions set forth in this Agreement
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are theretofore satisfied or performed in all material respects, it being fully
understood and agreed, however, that Purchaser may expressly waive in writing,
at or prior to Closing, any conditions that are unsatisfied or unperformed at
such time, the consummation of the sale by Seller and purchase by Purchaser of
the Property (herein referred to as the "Closing") shall be held on or before
March 31, 1998, and at such specific time and date as shall be designated by
Purchaser in a written notice to Seller not less than five (5) days prior to
Closing at the office of the Title Company, and, absent notice, at 10:00 a.m.,
local time, on March 31, 1998.
11. Seller's Closing Documents. For and in consideration of, and as a
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condition precedent to, Purchaser's delivery to Seller of the Purchase Price,
Seller shall obtain or execute, at Seller's expense, and deliver to Purchaser at
Closing the following documents (all of which shall be duly executed,
acknowledged, and notarized where required):
(a) Special Warranty Deed. A Special Warranty Deed ("Warranty Deed") in
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the form of Exhibit "G" hereto conveying to Purchaser marketable fee simple
title to the Land and Improvements, together with all rights, members,
easements, and appurtenances thereto, subject only to the Permitted
Exceptions. The legal description set forth in the Warranty Deed shall be
as set forth on Exhibit "A" attached hereto. In the event Purchaser shall
obtain a new or updated survey of the Land and Improvements and the legal
description set forth in Purchaser's survey shall differ from the legal
description set forth on Exhibit "A" hereto, Seller shall execute and
deliver to Purchaser a quitclaim deed containing a legal description based
upon such survey obtained by Purchaser;
(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser marketable title
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to the Personal Property in the form and substance of Exhibit "H" attached
hereto and by this reference made a part hereof;
(c) Blanket Transfer. A Blanket Transfer and Assignment in the form and
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substance of Exhibit "I" attached hereto and by this reference made a part
hereof;
(d) Assignment and Assumption of Leases. An Assignment and Assumption of
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Leases in the form and substance of Exhibit "J" attached hereto and by this
reference made a part hereof, assigning to Purchaser all of Seller's right,
title, and interest in and to the Leases and the rents thereunder;
(e) ALTA Affidavit. A customary ALTA affidavit in the form required by
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the Title Company;
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(f) FIRPTA Certificate. A FIRPTA Certificate in the form and substance
------------------
of Exhibit "K" attached hereto and by this reference made a part hereof;
(g) Surveys and Plans. Such surveys, site plans, plans and
-----------------
specifications, and other matters relating to the Property as are described
in subparagraph (a) of the Blanket Transfer and Assignment and are in the
possession of Seller or Seller's agents;
(h) Certificates of Occupancy. The original certificates of occupancy
-------------------------
for all space within the Improvements;
(i) Leases. An original executed counterpart or certified copy of the
------
Leases and all amendments to and modifications thereof;
(j) Estoppel Certificates. The Tenant Estoppel Certificates;
---------------------
(k) Keys and Records. All of the keys to any doors or locks on the
----------------
Property and the original tenant files and other books and records relating
to the Property (other than Seller=s partnership documents) in Seller's
possession;
(l) Tenant Notice. Notice from Seller to each Tenant of the
-------------
sale of the Property to Purchaser in the form of Exhibit "L" hereto;
(m) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(n) Assignment and Assumption of Service Contracts. An Assignment and
----------------------------------------------
Assumption of Service Contracts in the form and substance of Exhibit "EE"
hereto; and
(o) Other Documents. Such other documents as shall be reasonably
---------------
required by Purchaser's counsel.
12. Purchaser's Closing Documents. Purchaser shall deliver the balance of
-----------------------------
the Purchase Price and shall obtain or execute and deliver to Seller at Closing
the following documents, all of which shall be duly executed and acknowledged
where required and shall survive the Closing:
(a) Assignment and Assumption of Leases. The Assignment and Assumption
-----------------------------------
of Leases in the form and substance of Exhibit "J" hereto;
(b) Settlement Statement. A settlement statement setting forth the
--------------------
amounts paid by or on behalf of and/or credited to each of Purchaser and
Seller pursuant to this Agreement;
(c) Assignment and Assumption of Service Contracts. An Assignment and
----------------------------------------------
Assumption of Service Contracts in the form and substance of Exhibit "EE"
hereto.
(d) Other Documents. Such other documents as shall be reasonably
---------------
required by Seller's counsel.
13. Closing Costs. Seller shall pay the cost of the Title Commitment,
-------------
including the cost of the examination of title to the Property made in
connection therewith, the premium for the owner's policy of title insurance
issued pursuant thereto (with extended coverage but not with endorsements not
expressly called for herein), the cost of the as-built survey, the cost (to the
10
extent it is customary for Seller to pay such costs) of any documentary,
transfer, recording or other similar tax imposed by the State of Colorado,
Boulder County and local transfer taxes, if any, upon the conveyance of the
Property pursuant hereto, the attorneys' fees of Seller, one-half of any escrow
fee and all other costs and expenses incurred by Seller in Closing and
consummating the purchase and sale of the Property pursuant hereto. Purchaser
shall pay its attorneys' fees, the cost (to the extent it is customary for
Purchaser to pay such costs) of any documentary, transfer, recording or other
similar tax imposed by the State of Colorado, Boulder County and local transfer
taxes, if any, upon the conveyance of the Property pursuant hereto, the costs
of any endorsements to the Title Policy not expressly provided for herein, one-
half of any escrow fee and all other costs and expenses incurred by Purchaser
in Closing and consummating the purchase and sale of the Property pursuant
hereto.
14. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rents, additional rents, operating costs, and other income
-----
of the Property (other than security deposits which shall be credited or
assigned to Purchaser at Closing) collected by Seller from Tenants for the
month of Closing. Purchaser shall also receive a credit against the
Purchase Price payable by Purchaser to Seller at Closing for any rents or
other sums (not including security deposits) prepaid by any Tenant for any
period following the month of Closing. Seller hereby acknowledges that
Purchaser shall not be legally responsible to Seller for the collection of
any uncollected rent or other income under the Leases that is past due or
otherwise due and payable as of the date of Closing. Purchaser agrees that
if (i) any Tenant is in arrears on the date of Closing in the payment of
rent or other charges under its Lease, and (ii) upon Purchaser's receipt of
any rental or other payment from such Tenant, such Tenant is, or after
application of a portion of such payment will be, current under its Lease
in the payment of all accrued rental and other charges that become due and
payable on the date of Closing or thereafter and in the payment of any
other obligations of Tenant to Purchaser, then Purchaser shall refund to
Seller, out of and to the extent of the portion of such payment remaining
after Purchaser deducts therefrom any and all sums due and owing to
Purchaser from Tenant from and after the date of Closing, an amount up to
the full amount of any arrearage existing on the date of Closing. With
respect to additional rents and operating costs, the parties anticipate
that a reconciliation for the calender year 1997 will be completed in
March, 1998, and the parties agree to cooperate in dealing with Tenants
regarding any shortages or overages. The parties also acknowledge that the
reconciliation of such items for calender year 1998 will not occur until
approximately March, 1999. At Closing, Seller shall transfer and assign to
Purchaser that portion of additional rents and operating expenses received
by Seller for 1998 and not applied by it to the payment of such expenses
accruing prior to Closing, and Purchaser shall arrange with Tenants the
reconciliation for 1998. For example, Seller will have collected from
Tenants ad valorem taxes for a portion of 1998 for taxes not payable until
after Closing, and Seller shall transfer such funds to Purchaser.
(b) Property Taxes. City, state, county, and school district ad valorem
--------------
taxes for 1997 based on the ad valorem tax bills for the Property, if then
available, or if not, then on the basis of the latest available tax figures
and information. Should such proration be based on such latest available
tax figures and information and prove to be inaccurate upon receipt of the
11
ad valorem tax bills for the Property for the year of Closing, either
Seller or Purchaser, as the case may be, may demand at any time after
Closing a payment from the other correcting such malapportionment (after
adjusting for any Tenant recoveries). In addition, if after Closing there
is an adjustment or reassessment by any governmental authority with respect
to, or affecting, any ad valorem taxes for the Property for the year of
Closing or any prior year, any additional tax payment or refund for the
Property required to be paid or refunded with respect to the year of
Closing shall be prorated between Purchaser and Seller and any such
additional tax payment or refund for the Property for any year prior to the
year of Closing shall be paid by or to Seller, as the case may be (after
adjusting for any Tenant recoveries). As Seller is delivering all tax
deposits received from Tenants for 1998 to Purchaser at Closing, the
parties anticipate that the only proration for 1998 taxes will relate to
space with respect to which Leases commenced after January 1, 1998.
(c) Utility Charges. Seller shall pay all utility bills received prior
---------------
to Closing and shall be responsible for utilities furnished to the Property
prior to Closing. Purchaser shall be responsible for the payment of all
bills for utilities furnished to the Property subsequent to the Closing.
Seller and Purchaser hereby agree to prorate and pay their respective
shares of all utility bills received subsequent to Closing.
(d) Service Contracts. Charges under any Service Contracts
-----------------
shall be prorated as of Midnight preceding the date of Closing.
15. Purchaser's Default. In the event of default by Purchaser under the
-------------------
terms of this Agreement, Seller's sole and exclusive remedy shall be to receive
the Xxxxxxx Money as liquidated damages and thereafter the parties hereto shall
have no further rights or obligations hereunder whatsoever. It is hereby agreed
that Seller's damages will be difficult to ascertain and that said sum
constitutes a reasonable liquidation thereof and is intended not as a penalty,
but as fully liquidated damages.
16. Seller's Default. In the event of default by Seller under the terms of
----------------
this Agreement, and in addition to the other remedies specifically set forth
herein, at Purchaser's option: (i) Purchaser may terminate this Agreement by
written notice to Seller, whereupon any Xxxxxxx Money shall be immediately
returned by Escrow Agent to Purchaser, and the parties hereto shall have no
further rights or obligations hereunder whatsoever, or (ii) Purchaser shall be
entitled to pursue the remedy of specific performance as its sole and exclusive
remedy, and to the extent consistent therewith to receive an immediate refund of
any Xxxxxxx Money.
17. Condemnation. If, prior to the Closing, all or any part of the Property
------------
valued at more than $100,000 is subjected to a bona fide threat of condemnation
by a body having the power of eminent domain or is taken by eminent domain or
condemnation (or sale in lieu thereof), or if Seller has received notice that
any condemnation action or proceeding with respect to the Property is
contemplated by a body having the power of eminent domain, Seller shall give
Purchaser immediate written notice of such threatened or contemplated
condemnation or of such taking or sale, and Purchaser may by written notice to
Seller given within ten (10) days of the receipt of such notice from Seller,
elect to cancel this Agreement. If Purchaser chooses to cancel this Agreement in
accordance with this Paragraph, then any Xxxxxxx Money shall be returned
immediately to Purchaser and except as otherwise provided herein, the rights,
duties, obligations, and liabilities of the parties hereunder shall immediately
terminate and be of no further force and effect. If Purchaser does not elect to
12
cancel this Agreement in accordance herewith or the portion of the Property in
question is valued at less than $100,000, this Agreement shall remain in full
force and effect and the sale of the Property contemplated by this Agreement,
less any interest taken by eminent domain or condemnation, or sale in lieu
thereof, shall be effected with no further adjustment and without reduction of
the Purchase Price, and at the Closing, Seller shall assign, transfer, and set
over to Purchaser all of the right, title, and interest of Seller in and to any
awards that have been or that may thereafter be made for such taking.
18. Damage or Destruction. If any of the Improvements shall be destroyed or
---------------------
damaged prior to the Closing, and the estimated cost of repair or replacement
exceeds One Hundred Thousand Dollars ($100,000) or if any Lease shall terminate
as a result of such damage, Purchaser may, by written notice given to Seller
within ten (10) days after receipt of written notice from Seller of such damage
or destruction, elect to terminate this Agreement, in which event any Xxxxxxx
Money shall immediately be returned to Purchaser and except as expressly
provided herein to the contrary, the rights, duties, obligations, and
liabilities of all parties hereunder shall immediately terminate and be of no
further force or effect. If Purchaser does not elect to terminate this Agreement
pursuant to this Paragraph, or has no right to terminate this Agreement (because
the damage or destruction does not exceed $100,000 and the Leases remain in full
force and effect), and the sale of the Property is consummated, Purchaser shall
be entitled to receive all insurance proceeds paid or payable to Seller by
reason of such destruction or damage under the insurance required to be
maintained by Seller pursuant to Paragraph 9(d) hereof (less amounts of
insurance theretofore received and applied by Seller to restoration) and Seller
shall pay to Purchaser the amount of any deductible thereunder. If the amount of
said casualty or rent loss insurance proceeds is not settled by the date of
Closing, Seller shall execute at Closing all proofs of loss, assignments of
claim, and other similar instruments to ensure that Purchaser shall receive all
of Seller's right, title, and interest in and under said insurance proceeds
other than rent loss proceeds attributable to the period prior to Closing.
19. Hazardous Substances. To the Seller's knowledge: (a) there are not
--------------------
"hazardous substances" (as defined in Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq. as
------
amended) at the Property; (b) there has been no release or threat of release of
any such hazardous substance; (c) the Property is not subject to regulation by
any governmental entity as result of the presence of (i) stored, leaked or
spilled petroleum products, (ii) underground storage tanks, (iii) an
accumulation of rubbish, debris or other solid waste, or because of the
presence, release, threat of release, discharge, storage, treatment, generation
or disposal of any "hazardous waste" (as defined in the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended), or "toxic
------
substance" (as defined in the Toxic Substance Control Act, 15 U.S.C. Section
2601 et seq., as amended), including without limitation asbestos and items or
------
equipment containing polychlorinated biphenyls (PCBs) in excess of 50 parts per
million; and (d) no environmental condition exists on the Property that either
(X) requires the owner of the Property to report such condition to any authority
or agency of the State of Colorado or (Y) requires the owner of the Property to
make a notation of such condition in any public records or conveyancing
instrument upon the conveyance of the Property. Seller covenants during the
period of this Agreement not to discharge or store any such materials on the
Property.
20. Assignment. Purchaser's rights and duties under this Agreement shall be
----------
freely transferable and assignable by Purchaser, but in the event of any such
transfer or assignment, Purchaser shall remain liable for the performance of all
obligations, covenants, conditions, and agreements imposed upon Purchaser
pursuant to the terms of this Agreement.
13
21. Broker's Commission. Purchaser and Seller hereby represent each to the
-------------------
other that they have not discussed this Agreement or the subject matter hereof
with any real estate broker or agent so as to create any legal right in any such
broker or agent to claim a real estate commission with respect to the
conveyance of the Property contemplated by this Agreement. Seller shall and does
hereby indemnify and hold harmless Purchaser from and against any claim, whether
or not meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Seller. Likewise, Purchaser shall and does hereby
indemnify and hold harmless Seller from and against any claim, whether or not
meritorious, for any real estate sales commission, finder's fees, or like
compensation in connection with the sale contemplated hereby and arising out of
any act or agreement of Purchaser, except any such claim asserted by Prime West
Real Estate Services, Inc. or any broker or agent claiming thereunder.
22. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by nationally recognized overnight courier, by facsimile
(provided written confirmation of transmission is available) by hand, or sent by
U.S. registered or certified mail, return receipt requested, postage prepaid, to
the addresses set out below or at such other addresses as are specified by
written notice delivered in accordance herewith:
PURCHASER: Xxxxx Development Corporation
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to: X'Xxxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxxxxx, Xx., Esq.
Facsimile: (000) 000-0000
SELLER: ORIX BROOMFIELD, INC,
000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
and Prime West Broomfield, Inc.
0000 Xxxxx Xxxxxx Xx., Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with copy to: Xxxx Xxxxxxx & Xxxxxxxx
000 X. Xxxxxx Xxxxx. Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Any notice or other communication given as hereinabove provided shall be deemed
effectively given or received on the date of delivery.
14
23. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Leases and the Permitted
Exceptions.
24. Time Periods. If the time period by which any right, option, or election
------------
provided under this Agreement must be exercised, or by which any act required
hereunder must be performed, or by which the Closing must be held, expires on a
Saturday, Sunday, or holiday, then such time period shall be automatically
extended through the close of business on the next regularly scheduled business
day in Denver, Colorado.
25. Survival of Provisions. All covenants, warranties, and agreements set
----------------------
forth in this Agreement shall survive the execution or delivery of any and all
deeds and other documents at any time executed or delivered under, pursuant to,
or by reason of this Agreement, and shall survive the payment of all monies made
under, pursuant to, or by reason of this Agreement, for a period of 18 months.
26. Severability. This Agreement is intended to be performed in accordance
------------
with, and only to the extent permitted by, all applicable laws, ordinances,
rules, and regulations. If any provision of this Agreement, or the application
thereof to any person or circumstance, shall, for any reason and to any extent
be invalid or unenforceable, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby but rather shall be enforced to the greatest extent permitted by law.
27. Authorization. Purchaser represents to Seller that this Agreement has
-------------
been duly authorized and executed on behalf of Purchaser and constitutes the
valid and binding agreement of Purchaser, enforceable in accordance with its
terms, and all necessary action on the part of Purchaser to authorize the
transactions herein contemplated has been taken, and no further action is
necessary for such purpose.
28. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements,
oral or otherwise, between the parties not embodied herein shall be of any force
or effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective, permitted heirs, legal
representatives, successors, and assigns. Time is of the essence of this
Agreement. This Agreement may be executed in multiple counterparts, each of
which shall constitute an original, but all of which taken together shall
constitute one and the same agreement. The headings inserted at the beginning of
each paragraph are for convenience only, and do not add to or subtract from the
meaning of the contents of each paragraph. This Agreement shall be construed and
interpreted under the laws of the State of Colorado. Except as otherwise
provided herein, all rights, powers, and privileges conferred hereunder upon the
parties shall be cumulative but not restrictive to those given by law. All
personal pronouns used in this Agreement, whether used in the masculine,
feminine, or neuter gender shall include all genders, and all references herein
to the singular shall include the plural and vice versa.
15
29. Effective Date. The "Effective Date" of this Agreement shall be deemed
--------------
to be the date this Agreement is fully executed by both Purchaser and Seller and
a fully executed original counterpart of this Agreement has been received by
both Purchaser and Seller. If the Effective Date does not occur on or before
February 16, 1998, this Agreement shall be null and void and of no further force
and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and their respective seals to be affixed hereunto as of the day, month
and year first above written.
"SELLER":
ORIX PRIME WEST BROOMFIELD VENTURE, a
Colorado general partnership
By: Prime West Broomfield, Inc.
General Partner
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Title: President
------------------
(CORPORATE SEAL)
By: ORIX Broomfield, Inc.
General Partner
By: /s/ Xxxxx Primi
---------------------
Title: Deputy President
------------------
(CORPORATE SEAL)
"PURCHASER":
XXXXX DEVELOPMENT CORPORATION
a Georgia corporation
By: /s/ Xxx X. Xxxxx, III
---------------------
Title: President
-------------------
(CORPORATE SEAL)
16