Exhibit 10.47
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
This Agreement of Purchase and Sale of Real Property and Joint Escrow
Instructions ("AGREEMENT") is dated, for reference purposes only, November 16,
2005 and is made by and between Shadrall Associates, a New York General
Partnership ("SELLER"), and Cole Takedown, LLC, a Delaware limited liability
company and/or its assignee ("BUYER"). Seller and Buyer shall individually
hereinafter be referred to as a "PARTY" and collectively as the "PARTIES".
RECITALS
A. Seller is the owner of certain improved real property commonly known as
4827 & 4887 S. Wadsworth Way, Denver, Colorado 80124, the legal description of
which is described in EXHIBIT "A" attached hereto (together with all buildings,
structures and improvements located thereon, the "REAL PROPERTY"). The Seller
may also be the owner of certain tangible personal property (the "PERSONAL
PROPERTY") located on and/or used in connection with the Real Property. The Real
Property, all permits, licenses and other matters related to the Real Property,
the Leases, the Personal Property, to the extent that the same exist and are
owned and transferable by Seller, and rights appurtenant thereto are referred to
collectively herein as the "PROPERTY"; and
B. Seller desires to sell the Property to Buyer, and Buyer desires to
purchase the Property from Seller, all on the terms and conditions contained
herein.
AGREEMENT
1. PURCHASE AND SALE.
1.1 AGREEMENT TO BUY AND SELL. On the terms and conditions contained in
this Agreement, Seller agrees to sell the Property to Buyer, and Buyer agrees to
purchase the Property from Seller, at the "CLOSING" (as hereinafter defined).
1.2 PURCHASE PRICE. The Purchase Price for the Property shall be Nineteen
Million One Hundred and Fifty Thousand Dollars ($19,150,000.00, the "PURCHASE
PRICE"). Buyer's purchase of the Property shall not be contingent on Buyer
obtaining any funds or financing commitments from any person or entity, and
Buyer shall have no right to terminate this Agreement based on any inability or
difficulty on its part to fund the Purchase Price or any part thereof.
1.3 PAYMENT OF THE PURCHASE PRICE. The Purchase Price shall be payable by
Buyer as follows:
(a) Within five (5) business days after the execution of this Agreement and
delivery by each Party to the other of an executed original or copy thereof
(with such date of delivery being hereinafter referred to as the "EFFECTIVE
DATE"), Buyer shall deposit for disbursement in accordance with the terms
and provisions set forth herein the sum of Five Hundred Thousand Dollars
($500,000.00) (the "INITIAL DEPOSIT"). The Initial Deposit shall be
non-refundable, subject only to the terms of this Agreement. The Initial
Deposit shall be held by "ESCROW" (as hereinafter defined) in an
interest-bearing account in accordance with the terms of this Agreement,
and the Initial Deposit, together with any interest accruing thereon, shall
hereinafter be referred to as the "ACCRUED DEPOSIT".
(b) Prior to the Closing, Buyer shall deliver or cause to be delivered to
Escrow, for the benefit of Seller, wire-transferred funds in the amount of
the balance of the Purchase Price and all other amounts payable by Buyer
hereunder, calculated by adjusting the Purchase Price for the sum of (i)
the Accrued Deposit and (ii) the amount, if any, by which credits to Buyer
exceed or are less than debits to Buyer by reason of the prorations set
forth in Section 4.2 of this Agreement.
1.4 EXPECTED CLOSING DATE. Subject to Section 2.9, the Closing shall be
December 28, 2005 (the "EXPECTED CLOSING DATE"). Buyer may extend the Closing
for up to an additional twenty (20) days upon delivery of written notice to
extend the Closing to Escrow and Seller prior to the original Closing Date and
by depositing an
additional Two Hundred Fifty Thousand and no/100 Dollars ($250,000.00) of
earnest money with Escrow. For purposes of this Agreement, any additional
earnest money deposited with Escrow pursuant to this Section 1.4 shall be added
to and become a part of the Accrued Deposit.
2. ESCROW; TITLE; BUYER'S AND SELLER'S RIGHTS AND OBLIGATIONS.
2.1 ESCROW. The terms and conditions set forth in this Agreement shall
constitute both an agreement between Seller and Buyer and Escrow instructions
for Escrow. If Escrow requires separate or additional Escrow instructions
("ADDITIONAL INSTRUCTIONS"), Seller and Buyer shall execute and deliver them to
Escrow promptly after any such request from Escrow. If there is any conflict or
inconsistency between this Agreement and the Additional Instructions, this
Agreement shall prevail. Escrow shall promptly place the Initial Deposit, when
received, in an interest-bearing account. At the Closing hereunder, the Accrued
Deposit shall be paid to Seller, and shall be a credit against the Purchase
Price. In the event of a default by Seller, or proper termination of this
Agreement by Buyer, the Accrued Deposit shall be paid to the Buyer; in the event
of default by Buyer or Closing pursuant to this Agreement, the Accrued Deposit
shall be paid to Seller. If either Buyer or Seller makes a written demand upon
Escrow for payment of the Accrued Deposit pursuant to this Agreement, Escrow
shall give written notice of such demand to the other Party; if no written
objection from such notified Party is received by Escrow within four (4)
business days thereafter, Escrow may make the payment so demanded. As used
herein, the term "ESCROW" or "ESCROW AGENT" shall refer to First American Title
Insurance Company, 2425 East Camelback Road, Suite 300, Phoenix, Arizona 85016,
Attention: Mr. Tom Anzaldua, Tel. No. (602) 567-8113, Fax No. (602) 567-8101.
2.2 CONDITION OF TITLE; TITLE INSURANCE. Within the time period set forth
in Section 2.4, below, Seller shall, at Seller's cost and expense, obtain from
First American Title Company ("TITLE COMPANY") and deliver to Buyer a current
preliminary title report for an ALTA extended coverage title insurance policy
for the Real Property, together with legible copies of all documents reflected
as exceptions to title to the Real Property (collectively, the "PRELIMINARY
TITLE REPORT"). Buyer shall, on or before the Due Diligence Expiration Date,
notify Seller and Escrow in writing of any objections which Buyer has to the
EXCEPTIONS to title, if any. "EXCEPTIONS" shall mean any exceptions in the
Preliminary Title Report other than (a) real estate taxes not yet due and
payable, (b) financing documents to which Seller is a party which shall be
removed at the Closing, and (c) any Exception arising from the action, inaction
or status of Buyer. If written notice of objection is not timely given by Buyer
to Seller pursuant to this Section 2.2, then Buyer shall be deemed to have
objected to all Exceptions. Seller shall have the right, but not the obligation,
to clear all disapproved Exceptions within ten (10) days after Seller's receipt
of Buyer's written objections thereto or, in the alternative, agree in writing
within such ten (10) day period that such Exceptions shall be cleared prior to
or at the Closing. Seller shall deliver at the Closing discharges, releases
and/or terminations of any financing documents to which Seller is a party and
which are of record and the same shall not be deemed PERMITTED EXCEPTIONS, as
such term is defined below. Seller shall not voluntarily place any lien,
encumbrance or other recorded document placed on record after the Effective Date
(hereinafter, the "POST-EFFECTIVE DATE LIEN(S)") that materially and adversely
affect the Real Property or the interest to be acquired by Buyer prior to the
Closing, and if any involuntary Post-Effective Date Liens are placed on the Real
Property, Seller shall forthwith notify Buyer and Seller shall use commercially
reasonable efforts to cause all said Post-Effective Date Liens to be
extinguished prior to Closing, and if Seller is unable to do so, Buyer may
terminate this Agreement. Notwithstanding the foregoing, if, at any time prior
to the Closing, Seller discovers that an involuntary or non-consensual lien in
excess of Fifty Thousand Dollars ($50,000.00) has been placed against the
Property, which lien Seller is unwilling to remove, Seller shall so notify Buyer
in writing, and Buyer shall have the option, as its sole and exclusive remedies
to either (a) terminate this Agreement, or (b) waive its objections to the
lien(s) in question. The failure by Buyer to give notice of its termination of
this Agreement within five (5) business days after receipt of such Seller's
notice shall be deemed to be Buyer's election to terminate this Agreement. If
Buyer elects to terminate this Agreement, the provisions of Section 2.6 shall
apply. At the Closing, the Title Company shall issue an ALTA extended coverage
policy of title insurance in an amount equal to the Purchase Price (the "OWNER'S
POLICY"). Those Exceptions to title set forth in the Preliminary Title Report to
which Buyer has not objected (or for which Buyer has waived its objection) shall
be referred to as the "PERMITTED EXCEPTIONS". Notwithstanding anything to the
contrary herein, the lien and encumbrance restrictions on Seller set forth in
this Section shall be lifted and of no further force or effect if the Closing
has not occurred prior to the date that is ninety (90) days after the Effective
Date.
2.3 CONDITION OF PROPERTY/ AS IS, WHERE IS CONDITION. It is understood,
acknowledged and agreed by Buyer that, except as otherwise herein expressly
provided, Seller is not making, and specifically disclaims, any
representations, warranties or covenants of any kind or character, express or
implied, with respect to the economic, functional, environmental and physical
condition of the Property, including, but not limited to, representations,
warranties or covenants as to: (i) matters of title (other than Seller's
warranty of title set forth in the grant deed to be delivered at the Close of
Escrow), zoning, tax consequences, physical or environmental conditions,
availability of access, ingress or egress, operating history or projections,
valuation, governmental approvals, governmental regulations or any other matter
or thing relating to or affecting the economical, functional, environmental, or
physical condition of the Property; (ii) the value, condition, merchantability,
marketability, profitability, suitability or fitness for a particular use or
purpose of the Property; (iii) the manner or quality of the construction or
materials incorporated into any of the Property; (iv) the manner, quality, state
of repair, or lack of repair of the Property. Buyer further agrees that with
respect to the Property, except as expressly set forth in this Agreement, Buyer
has not relied upon and will not rely upon, either directly or indirectly, any
representation or warranty of Seller and/or any agent, representative or servant
of Seller regarding any environmental obligations, liabilities, conditions or
other matters ("ENVIRONMENTAL MATTERS"), including but not limited to any
matters under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Section 9601 et seq, as amended or as it may
hereafter be amended, supplemented or replaced, and any other federal, state or
local environmental law, statute, ordinance, code, rule, regulation or order now
or hereafter in effect. Buyer represents and warrants to Seller that: (i) Buyer
is a knowledgeable purchaser of real estate; (ii) except for those
representations and warranties of Seller expressly set forth in this Agreement,
Buyer is relying solely on Buyer's own expertise and that of Buyer's consultants
with respect to the economic, functional, environmental and physical condition
of the Property; (iii) Buyer has conducted such inspections, tests, studies and
investigations of the Property (including, but not limited to, the physical and
environmental conditions thereof) as Buyer has deemed appropriate and shall rely
upon the same; and (iv) upon Closing, Buyer shall assume the risk that adverse
matters (including, but not limited to, adverse physical or environmental
conditions) may not have been revealed by Buyer's inspections, tests, studies
and investigations of the Property. BUYER ACKNOWLEDGES AND AGREES THAT UPON
CLOSING, SELLER SHALL SELL AND CONVEY TO BUYER, AND BUYER SHALL ACCEPT THE
PROPERTY IN AN "AS IS, WHERE IS" CONDITION WITH ALL FAULTS, AND THAT, EXCEPT FOR
ANY CLAIM OR CLAIMS ARISING OUT OF A BREACH BY SELLER OF ANY REPRESENTATION OR
WARRANTY OF SELLER EXPRESSLY SET FORTH IN THIS AGREEMENT, BUYER RELEASES SELLER
FROM, AND WAIVES ALL RIGHTS AND CLAIMS AGAINST SELLER ARISING FROM, RELATING TO
OR IN CONNECTION WITH SUCH MATTERS (INCLUDING, BUT NOT LIMITED TO, ALL CLAIMS
FOR INDEMNITY AND/OR CONTRIBUTION, HOWEVER ARISING, INCLUDING ALL CLAIMS RELATED
TO ENVIRONMENTAL MATTERS) AND THAT THERE ARE NO ORAL AGREEMENTS,
REPRESENTATIONS, WARRANTIES OR COVENANTS COLLATERAL TO OR AFFECTING THE
PROPERTY, BY SELLER AND/OR ANY AGENT, REPRESENTATIVE OR SERVANT OF SELLER OR BY
ANY OTHER PERSON. BUYER EXPRESSLY AGREES THAT THE TERMS AND CONDITIONS OF THIS
SECTION SHALL SURVIVE CLOSING OR ANY TERMINATION OF THIS AGREEMENT BEFORE
CLOSING, AND THAT SELLER IS NOT LIABLE OR BOUND IN ANY MANNER WHATSOEVER BY ANY
VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE
PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER
PERSON, UNLESS THE SAME ARE EXPRESSLY SET FORTH AND REFERRED TO HEREIN. FURTHER,
IF BUYER, PRIOR TO THE CLOSING, DISCOVERS THAT ANY WARRANTY OR REPRESENTATION
MADE BY SELLER IS UNTRUE, INACCURATE AND/OR INCOMPLETE, OR THAT SELLER HAS
BREACHED ANY TERM CONTAINED IN THIS AGREEMENT, AND BUYER ELECTS TO PROCEED WITH
THE ACQUISITION OF THE PROPERTY AND DOES, IN FACT, ACQUIRE TITLE TO THE
PROPERTY, THEN BUYER SHALL BE DEEMED TO HAVE WAIVED ANY CLAIMS IT HAD OR MAY
HAVE IN REGARD TO THE WARRANTY, REPRESENTATION OR BREACH DISCOVERED,
NOTWITHSTANDING ANY STATEMENT OF PROTEST, NON-WAIVER OR PRESERVATION OF RIGHTS
BY BUYER, THE FILING BY IT OF LITIGATION OR ANY OTHER ACT TAKEN OR STATEMENT
MADE BY BUYER IN AN ATTEMPT TO AVOID THE FOREGOING ABSOLUTE WAIVER OF RIGHTS.
BUYER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE FOREGOING PROVISIONS IN
THIS SECTION 2.3, AND BY ITS INITIALS IMMEDIATELY BELOW, AGREES TO BE BOUND BY
ITS TERMS.
BUYER: JMP
2.4 PROPERTY DOCUMENTS. Not later than five (5) days after the Effective
Date, Seller shall deliver to Buyer or Buyer's agent, or make available to them,
copies of the documents and other records hereinafter described (to the extent
that same are in Seller's possession or reasonably under its control) that
relate to the Real Property, all of which documents and records shall
collectively hereinafter be referred to as the "PROPERTY DOCUMENTS". The
Property Documents referred to herein, all of which are to be delivered to Buyer
without warranty as to their content, accuracy or completeness, are:
(a) TITLE. The Preliminary Title Report.
(b) LEASES, RENTAL STATEMENTS, CONTRACTS. All leases, lease amendments,
renewals and rental agreements relating to any space within the Real
Property currently leased or licensed to any person or entity
(collectively, the "LEASES"); rental statements reflecting the Leases,
including, to the extent such information is kept in the normal course of
business by or on behalf of Seller, the names and locations of each tenant
(each, a "TENANT"), the scheduled rent, the actual collected rent, the
dates of any rental increases, aging reports for each Tenant, and the
amounts of any security and other types of deposits; and all service and
related contracts (including, but not limited to, personnel contracts,
janitorial and laundry agreements, landscaping, trash removal, parking lot
maintenance, management and insurance contracts) affecting the Real
Property.
(c) FINANCIAL AND OTHER RECORDS. For the twelve (12) month period
immediately preceding the Effective Date: Seller's IRS Forms 825; existing
income and expense operating statements for the Property kept in the normal
course of business by or on behalf of Seller; utility bills; CAM
reconciliation worksheets; and the property tax bills, including appeals
and pending or threatened assessments, if any. Seller shall also provide: a
written inventory of personal property, including furniture and appliances,
at the Real Property or used in conjunction with its maintenance; and a
schedule, including a brief summary/explanation of all pending or
threatened litigation with respect to the Property.
(d) RECORDS, PLANS AND DRAWINGS. Any soils, environmental and/or geological
reports; architectural and engineering building plans, permits,
entitlements and notices received from any governmental entity for the two
(2) year period immediately preceding the Effective Date; and any drawings,
documents and/or correspondence relating to any planned, pending or
conceptualized development of the Real Property.
(e) SURVEY. The ALTA/ACSM Land Title Survey Prepared for Shadrall
Associates and Others Dated September 22, 2000 and Revised October 16, 2000
(the "SURVEY"), a copy of which has been delivered to Buyer. Buyer may, at
Buyer's sole cost and expense, obtain an update to the Survey. The legal
description in the Survey, as and if updated, shall control over the
description in Exhibit "A" attached hereto to the extent, if any, such
descriptions may be inconsistent.
2.5 BUYER'S INSPECTION/TESTING. Buyer shall have the right, but not the
obligation, at its sole cost and expense, but not as a condition of this
Agreement, to obtain the following (all of which, collectively, shall
hereinafter be referred to as "BUYER'S INSPECTIONS"): (a) a soils' test report;
(b) an ALTA title supplement based upon the Survey; (c) an inspection of the
physical aspects and condition of the Real Property; (d) a report on the
applicable zoning ordinances affecting the Real Property or the use thereof; and
(e) a review of the Property Documents and the financial feasibility of Buyer's
potential acquisition of the Property. As an additional Buyer's Inspection,
Buyer shall have the option, at its sole cost and expense, to obtain, prior to
the Due Diligence Expiration Date, a Phase I Hazardous Substance Conditions
Report concerning the Real Property and relevant adjoining properties (as used
herein, a "HAZARDOUS SUBSTANCE" shall mean any substance whose nature and/or
quantity of existence, use, manufacture, disposal or effect render it subject to
federal, state or local regulation, investigation, remediation or removal as
potentially injurious to public health or welfare, and shall further mean any
flammables, explosives, radioactive materials, hazardous wastes, hazardous and
toxic substances or related materials, asbestos or any material containing
asbestos (including, without limitation, vinyl asbestos tile), or any other
substance or material, defined as a "hazardous substance" by any federal, state,
or local environmental law, ordinance, rule or regulation including, without
limitation, the Federal Comprehensive Environmental Response Compensation and
Liability Act of 1980, as amended, the Federal Hazardous Materials
Transportation Act, as amended, the Federal Resource Conservation and Recovery
Act, as amended, and the rules and regulations adopted and promulgated pursuant
to each of the foregoing). Buyer shall undertake all such inspections and
testing in a manner which is not
disruptive to any Tenant's activities at the Real Property; such inspections and
testing shall be non-destructive; and Buyer shall immediately repair any and all
damage caused by such inspections or testing or caused by Buyer, or its agents,
contractors or employees, and Buyer shall, at its sole cost and expense, restore
the Real Property to the condition in which it existed immediately prior to the
testing or inspection or Buyer's entry onto the Real Property. Seller shall use
commercially reasonable efforts to allow Buyer to have access to the Real
Property (with Seller reserving the right to be present on all occasions
whenever Buyer is at the Real Property), however, Seller shall not be
responsible or liable for any failure or refusal by any of the Tenants at the
Real Property to allow Buyer to have access to all or any portion of the Real
Property. All persons and entities performing any testing at the Real Property
(hereinafter, the "CONTRACTORS") shall be properly licensed and qualified, shall
have obtained all permits necessary to conduct such testing.
2.6 TERMINATION BY BUYER. If Buyer timely elects to terminate this
Agreement in accordance with Sections 2.2, 2.7(a), 3.1(b) or (d), 3.3 or 6.1 of
this Agreement, Buyer shall so notify Seller and Escrow in writing, whereupon
(a) Seller and Escrow shall immediately and without any further instructions
return to Buyer the Accrued Deposit net of disbursements, if any, (b) this
Agreement shall terminate, and (c) neither Party shall have any further rights
or obligations under this Agreement, except for such indemnity obligations and
other obligations that have been expressly declared herein to survive the
termination of this Agreement. Buyer shall be responsible for all of its
expenses and costs incurred through the termination of Escrow as well as Buyer's
share of the costs under Section 4.3, below, which costs may include any
cancellation charges assessed by Escrow and/or the Title Company. Except as set
forth in Sections 2.2, 2.7(a), 3.1(b) or (d), 3.3 or 6.1, Buyer shall have no
right to terminate this Agreement. Upon a termination of this Agreement for any
reason, and at Seller's request and Seller's sole cost and expense, Buyer shall:
(x) execute and deliver to Seller such instruments, including a quitclaim deed,
as are necessary or convenient to confirm such termination as well as the fact
that Buyer has no right to possession of nor maintains any interest in or to the
Property; and (y) inform Seller of the existence of any reports, tests,
materials, studies and the like in Buyer's possession that relate to the Real
Property and/or Buyer's Inspections, including, but not limited to, the Phase I
Hazardous Substance Conditions Report referenced in Section 2.5, above
(collectively, "BUYER'S REPORT(S)"), the cost thereof and a general overview or
summary of the results or findings contained in Buyer's Reports. At Seller's
request and upon payment by Seller to Buyer of one-half of Buyer's acquisition
cost for each Buyer's Report requested by Seller, Buyer shall deliver to Seller
a copy of each Buyer's Report requested,. Buyer shall also return to Seller all
of the Property Documents that were previously provided or made available to
Buyer.
2.7 OPERATION OF THE PROPERTY; RISK OF LOSS.
(a) RISK OF LOSS. Until Closing, risk of loss to the Real Property shall
remain with Seller. If the Real Property shall suffer damage prior to
Closing whereby Seller reasonably estimates that the cost of repair will be
less than One Hundred Thousand Dollars ($100,000.00) and require less than
ninety (90) days to rebuild, repair or restore, then Seller, at its
election, may either (i) repair and restore the Real Property to the
condition existing prior to the casualty (as near as practicable), or (ii)
assign to Buyer the right to receive insurance proceeds relating to the
damage (including any available rent loss insurance proceeds covering
post-Closing losses, to the extent that Buyer sustains or will sustain any
such losses, but under no circumstances shall the assigned insurance
proceeds exceed the Purchase Price), in which event Buyer shall accept
possession of the Real Property at Closing "AS IS, WHERE IS." If Seller
reasonably estimates that the cost of repair will be One Hundred Thousand
Dollars ($100,000.00) or more or require ninety (90) or more days to
rebuild, repair or restore, and Buyer is not then in default hereunder
beyond any applicable cure period, Buyer, at its option to be exercised by
written notice given to Seller within five (5) business days after Buyer's
receipt of written notice from Seller of such damage and the estimated cost
of and time to repair the damage, may either (i) terminate this Agreement
and receive the return of the Accrued Deposit, or (ii) waive such right to
terminate and proceed to Closing in accordance with the provisions of this
Section 2.7. If Buyer does not give timely notice of its intent to waive
its right to terminate pursuant to sub-part (ii) above, Buyer shall be
deemed to have terminated this Agreement pursuant to sub-part (i) above, in
which case the provisions of Section 2.6 of this Agreement shall control.
If Buyer waives its right to terminate this Agreement, this Agreement shall
remain in full force and effect, and as Seller's sole obligation hereunder,
Seller shall assign to Buyer the right to receive any applicable insurance
proceeds, effective and contingent upon the transfer of title to Buyer, and
Buyer shall accept the Property "AS IS, WHERE IS". In the event that Seller
assigns insurance proceeds to Buyer pursuant to this Section, but such
proceeds are, (i) subject to a deductible, and (ii) insufficient, after
reducing the proceeds by the deductible,
to repair the damage and/or compensate Buyer for the loss, then Seller
shall, at Closing, credit Buyer with the amount of the deductible (to the
extent necessary to fully compensate Buyer for the damage or loss), but
under no circumstances shall such credit exceed Twenty-Five Thousand
Dollars ($25,000.00).
(b) ONGOING OPERATIONS. During the pendency of this Agreement, but subject
to the limitations set forth below, Seller shall carry on its businesses
and activities relating to the Real Property substantially in the same
manner as it did before the Effective Date of this Agreement.
(c) NEW AND EXISTING CONTRACTS. Until such time as Buyer has waived all of
its rights to terminate this Agreement, Seller may, without Buyer's
consent, enter into contracts relating to the Real Property, provided that
Seller shall provide Buyer with written notice if such contracts will
remain in effect after the Close of Escrow. Following the Due Diligence
Expiration Date and through the Close of Escrow, and provided Buyer is not
in default or breach hereunder and has not terminated this Agreement,
Seller will not enter into any contract that will be an obligation
affecting the Real Property subsequent to the Close of Escrow (except
contracts entered into in the ordinary course of business that are
terminable without cause on thirty (30) days' notice or less) without the
prior written consent of the Buyer, which consent shall not be unreasonably
withheld, delayed or conditioned. Buyer shall assume the obligations of
Seller, and hold Seller harmless from any obligations arising from and
after the Closing Date of any existing or new contract entered into by
Seller or that relate to the Real Property. Seller shall hold Buyer
harmless from any obligations arising before the Closing Date of any
existing or new contract entered into by Seller or that relate to the Real
Property. Prior to the Closing, Seller shall provide to Buyer copies of all
such new contracts that relate to the Real Property. Notwithstanding
anything to the contrary herein, the restrictions on Seller set forth in
this Section shall be lifted and of no further force or effect if the
Closing has not occurred prior to the date that is ninety (90) days after
the Effective Date.
(d) LEASING ARRANGEMENTS. Following the Effective Date and through the
Close of Escrow, and provided Buyer is not in default or breach hereunder
and has not terminated this Agreement, and except for any leasing action
involving a leasable area within the Real Property having a total square
footage of twenty-five hundred (2,500) square feet or less (which spaces
will be exempt from the consent requirement hereinafter described), Seller
shall obtain Buyer's written consent, which Buyer shall not unreasonably
withhold, condition or delay, before entering into any new Lease for space
in the Real Property and before entering into a Lease amendment, expansion,
or renewal of any Lease. At the Closing, Buyer shall, on a pro-rata basis
based on the amount of time from the date the expense was incurred through
the Closing Date, as compared to the amount of time remaining on the Lease
following the Closing Date, reimburse Seller for all commissions, legal
fees, the cost of tenant improvements, and all other leasing costs and
expenses paid or incurred by Seller with respect to all Lease amendments,
expansions, renewals or new Leases that were entered into after the
Effective Date, and, at the Closing, Buyer shall assume in writing Seller's
obligations and hold Seller harmless from any obligations arising from or
after the Closing Date under all existing and new Leases and Leases
amendments, expansions or renewals, while Seller shall remain liable for
and hold Buyer harmless from all obligations under the Leases that arose
and were required to be performed by Seller prior to the Closing Date.
Notwithstanding anything to the contrary herein, the restrictions on Seller
set forth in this Section shall be lifted and of no further force or effect
if the Closing has not occurred prior to the date that is ninety (90) days
after the Effective Date.
2.8 DELIVERIES BY SELLER TO BUYER AT CLOSING. Prior to, and as a condition
of, the Closing, Seller shall deliver to Escrow (a) a duly executed general bill
of sale and assignment of all items of tangible and intangible Personal
Property, if any (the "BILL OF SALE"); (b) a duly executed and acknowledged
grant deed (the "DEED"); (c) financing document lien releases for Seller's
mortgage, if any; (d) a duly executed assignment and assumption of lease, in
recordable form, with respect to each of the Leases; (e) a duly executed
assignment and assumption of all permits, warranties, guaranties (including,
without limitation, any guaranty of a Tenant's obligations under one of the
Leases) and contracts relating to the Real Property; (f) a letter from Seller to
each Tenant requesting that future rent under the Leases be paid to Buyer; (g) a
non-foreign seller affidavit, as required by Section 1445 of the Internal
Revenue Code: (h) the final Certificate of Occupancy for all buildings,
structures and improvements comprising the Real Property (or, if unavailable, a
copy thereof); (i) an executed affidavit of Seller and such other documentation
as may be reasonably required by Escrow to allow for the deletion of the
mechanics' lien exception from the Owner's Policy; (j) delivery of the SEC
Filing Information and the SEC Filings Letter by Seller to Buyer not less than
five (5)
days prior to Closing; (k) originals of the Leases, the contracts, warranties,
guaranties and permits, if any, in the possession of Seller or Seller's agents,
and any correspondence with respect thereto, together with such non-proprietary
leasing and property manuals, files and records which are material in connection
with the continued operation, leasing and maintenance of the Property; and (l)
such other closing documents as are contemplated or necessary under the terms of
this Agreement or as may reasonably be requested by Escrow to effect the Closing
hereof, all of the foregoing being herein referred to as the "CLOSING
DOCUMENTS".
2.9 CLOSING. The terms "CLOSING", "CLOSE OF ESCROW" and "CLOSING DATE"
shall mean the date on which the Deed is recorded in the official records of the
County of Arapahoe, Closing Documents are delivered to or at the direction of
Escrow and the balance of the Purchase Price and any other monies due Seller at
the Closing are delivered by Escrow to Seller. Closing shall occur on the
Expected Closing Date, but notwithstanding the foregoing, the Closing may occur
on such other date as Buyer and Seller may hereafter agree. Buyer and Seller may
modify the manner or time of Closing only by written agreement.
2.10 BUYER'S INDEMNITY AND RELATED OBLIGATIONS. Buyer agrees to indemnify
and hold Seller and its general and limited partners, officers, directors,
shareholders, members, managers, beneficiaries, successors, related entities,
agents and employees (collectively hereinafter the "SELLER RELEASEES") harmless
from any and all injuries, losses, liens, claims, judgments, obligations,
liabilities, costs, expenses or damages (including reasonable attorney's fees
and court costs) sustained by the Seller Releasees to the extent same results
from or arises out of any of Buyer's Inspections or by any of its
representatives pursuant to Section 2.5, above; provided, however, Buyer shall
not have any indemnification obligation or liability to Seller or any third
parties for merely discovering any preexisting condition at the Real Property.
The covenants contained in this Section shall survive the Close of Escrow and
the termination of this Agreement.
3. CONDITIONS TO CLOSING.
3.1 SELLER'S OBLIGATIONS. Except as set forth in Section 3.1(d), below, the
Closing and Buyer's obligation to perform at Closing pursuant to this Agreement
are conditioned upon the fulfillment of each and all of the following:
(a) DUE PERFORMANCE. Seller shall have timely delivered to Escrow such
Closing Documents as are contemplated or necessary under the terms of this
Agreement or as may reasonably be requested by Escrow to effect the Closing
hereof, and Seller shall have duly performed all of Seller's obligations
under this Agreement.
(b) CONDEMNATION. No condemnation or eminent domain action which would
materially and adversely affect the Real Property shall have been
commenced, and no notice of intent to so commence an action, to acquire the
Real Property or any portion of the Real Property, shall have been received
by Seller; provided, however, that in the event a condemnation or eminent
domain action is commenced or notice of intent to so commence has been
received by Seller against the Real Property or any portion of the Real
Property, then Seller may terminate this Agreement by written notice to
Buyer, or in the event Seller does not terminate this Agreement, Buyer may,
at its option (i) terminate this Agreement by giving written notice within
five (5) business days of receipt of notice by Buyer of such action or
intention from Seller, or (ii) elect (in writing) to close Escrow and have
all condemnation proceeds payable to Buyer. Notwithstanding the foregoing,
neither Seller nor Buyer shall have the right to terminate this Agreement
if the proposed taking (x) does not materially and adversely affect any of
the buildings, structures or improvements that comprise the Real Property,
(y) does not have a material adverse affect on any point of ingress, egress
or access to or from the Real Property, and (z) amounts to less than ten
percent (10%) of the actual square footage of the unimproved land
comprising the Real Property.
(c) BANKRUPTCY. No action or proceeding shall have been commenced by or
against Seller under the federal bankruptcy code or any state law for the
relief of debtors, nor shall the Property be subject to an action for the
enforcement of the rights of creditors.
(d) TENANT ESTOPPEL CERTIFICATES. As of the Effective Date, there are two
Tenants occupying the Real Property. The Parties acknowledge that Seller
may be unable to provide a "TENANT ESTOPPEL
CERTIFICATE" (in substantially the same form and substance as the Tenant's
Estoppel Certificate attached hereto as EXHIBIT "B") from both Tenants
prior to the Closing, and the Parties agree that Seller's failure to obtain
such a Tenant Estoppel Certificate from both Tenants shall not be a default
under this Agreement, however, Buyer shall have the right to terminate this
Agreement pursuant to Section 2.6, above, in the event that either or both
Tenants fail to deliver a Tenant Estoppel Certificate not less than three
(3) business days prior to the Closing. Seller shall use commercially
reasonable efforts to obtain and deliver to Buyer, prior to the Closing, a
Tenant Estoppel Certificate from each Tenant dated no earlier than thirty
(30) calendar days prior to the Closing Date, confirming the rent and other
payments due and alleging no defaults, offsets, or claims against Seller,
or if there any, setting forth such defaults, offsets, or claims against
Seller. If both Tenant Estoppel Certificates are timely delivered to Buyer
and both reflect terms materially consistent with the terms of each such
Tenant's Lease, and neither of such Tenant Estoppel Certificates alleges a
material variance from any rent roll delivered to Buyer or a material
default by Seller under a Lease (unless such variance and/or default was
disclosed, in writing, to Buyer not later than five (5) business days prior
to the Due Diligence Expiration Date), then Buyer shall have no right to
terminate this Agreement under this Subsection 3.1(d). Additionally, and if
requested by Buyer, Seller shall request that each Tenant execute and
return to Seller, Buyer and/or Escrow, not later than five (5) business
days prior to Closing, a subordination, non-disturbance and attornment
agreement, in form and substance reasonably acceptable to such Tenant (the
"SNDA"), for the benefit of Wachovia Bank, National Association, however,
the execution and/or delivery of the SNDA by each Tenant shall not be a
condition or contingency of this Agreement.
(e) WAIVER OF RIGHT OF FIRST REFUSAL. The deposit with Escrow and Buyer
prior to the Due Diligence Expiration Date of an executed waiver by each
Tenant of any right of first refusal under such Tenant's Lease.
(f) ISSUANCE OF OWNER'S POLICY. The issuance of the Owner's Policy (or a
written commitment therefor) subject only to those matters approved or
deemed approved by Buyer pursuant to this Agreement.
(g) DELIVERY OF SECURITY DEPOSITS AND/OR PREPAID RENTS. The delivery by
Seller to Buyer at Closing of all security deposits and pre-paid/abated
rents under the Leases, if any, in the form of a credit in favor of Buyer
against the Purchase Price.
3.2 BUYER'S OBLIGATIONS. The Closing and Seller's obligation to perform at
Closing pursuant to this Agreement are conditioned upon the fulfillment of the
following:
(a) PAYMENT OF PURCHASE PRICE. Buyer shall have timely delivered to Escrow
the Purchase Price, adjusted as provided in this Agreement.
(b) DUE PERFORMANCE. Buyer shall have timely delivered to Escrow originals
of the documents described in Section 2.8(d) and (e), duly executed
originals by Buyer, and such Closing Documents as are contemplated or
necessary under the terms of this Agreement or as may reasonably be
requested by Escrow to effect the Closing hereof, and Buyer shall have duly
performed all of Buyer's obligations under this Agreement.
3.3 DUE DILIGENCE CONTINGENCY. The "DUE DILIGENCE CONTINGENCY PERIOD" means
the period commencing on the Effective Date and ending at 6:00 p.m. (Colorado
time) on December 5, 2005 (such latter time and date being hereinafter known as
the "DUE DILIGENCE EXPIRATION DATE"). Buyer, at any time during the Due
Diligence Contingency Period, may, in its sole and absolute discretion, by
written notice to Seller and Escrow, terminate this Agreement and receive back
its Accrued Deposit. If Buyer does not, prior to the expiration of the Due
Diligence Expiration Date, give Escrow and Seller written notice of Buyer's
approval of the Property and election to waive the contingency set forth in this
Section 3.3 (and which notice must be received by Escrow and Seller prior to the
Due Diligence Expiration Date), Buyer will be conclusively deemed to have
elected to terminate the Agreement under this Section, in which case the
provisions of Section 2.6 of this Agreement shall control. Buyer shall have the
right, in the exercise of its sole discretion, to end the Due Diligence
Contingency Period prior to the Due Diligence Expiration Date by delivering not
less than forty-eight (48) hours' prior written notice to Seller of Buyer's
election to waive this contingency.
4. INSTRUCTIONS ON CLOSING.
4.1 RECORDATION AND DELIVERY. When all conditions precedent to the Closing
have been satisfied or waived as provided herein:
(a) GRANT DEED. Escrow shall cause the Deed to be recorded in the official
records of the County of Arapahoe.
(b) PURCHASE PRICE. Escrow shall deliver to Seller funds in the amount of
the Purchase Price, less or plus the net debit or credit to Seller by
reason of the proration and allocation of Closing Costs provided for in
this Agreement.
(c) CLOSING DOCUMENTS. Escrow shall deliver to Buyer and/or Seller the
other Closing Documents as appropriate.
4.2 PRORATIONS. The prorations set forth below shall be made as of the date
of Closing, on which date Seller shall be deemed to own the Property:
(a) COLLECTED AND UNCOLLECTED RENT. All collected and uncollected rent
(including, without limitation, all base rents, additional rents and
retroactive rents (hereinafter collectively referred to as "RENT") for the
Leases at the Real Property in effect on the Closing Date shall be prorated
as of the Close of Escrow. Any prepaid Rent for the period following the
Closing Date shall be paid over or credited by Seller to Buyer
(b) OPERATING COSTS AND ADDITIONAL RENT RECONCILIATION. Seller, as landlord
under the Leases, is or may be collecting from the Tenants an additional
estimated amount of Rent to cover common area maintenance charges,
insurance, taxes and related expenses ("OPERATING COSTS", with the
estimated additional amounts paid by the Tenants hereinafter referred to as
"ADDITIONAL RENT") in connection with the ownership, operations,
maintenance and management of the Real Property. To the extent that any
Additional Rent is paid by the Tenants to the Seller under the Leases based
on an estimated payment basis for which a future reconciliation of actual
Operating Costs to estimated payments is required to be performed at the
end of a reconciliation period, Buyer and Seller shall make an adjustment
to the Purchase Price at the Close of Escrow for the applicable
reconciliation period based on a comparison of the actual Operating Costs
to the estimated payments at the Close of Escrow. If, as of the Close of
Escrow, Seller has received Operating Costs' payments in excess of the
amount that the Tenants will be required to pay, based on the actual
Operating Costs as of the Close of Escrow, Buyer shall receive a credit in
the amount of such excess. If, as of the Close of Escrow, Seller has
received Operating Costs' payments that are less that the amount that the
Tenants would be required to pay based on the actual Operating Costs as of
the Close of Escrow, the Purchase Price shall be increased by the estimated
amount of the underpayments. Operating Costs that are not payable by the
Tenants either directly or reimbursable under the Leases shall be prorated
between Seller and Buyer and shall be reasonably estimated by the Parties
if final bills are not available.
(c) TAXES AND ASSESSMENTS. Real estate taxes and assessments imposed by any
governmental authority ("TAXES") with respect to the Real Property for the
relevant tax year in which the Real Property is being sold that are not yet
due and payable or that have not yet been paid and that are not (and will
not be) payable or reimbursable by the Tenants under their Leases as
Operating Costs shall be prorated as of the Close of Escrow based upon the
most recent ascertainable assessed values and tax rates and based upon the
number of days Buyer and Seller will have owned the Real Property during
such relevant tax year. Seller shall receive a credit for any Taxes paid by
Seller and applicable to any period after the Close of Escrow.
(d) LEASING COMMISSIONS AND TENANT IMPROVEMENTS. At the Close of Escrow,
Buyer shall assume the obligation to pay all (i) leasing costs that are due
or become due on or after the Closing Date to the extent that the same
arise from a new Lease or any Lease amendment, extension or expansion
hereafter entered into by Seller pursuant to Section 2.7(d), above and (ii)
leasing costs that are due after the Closing Date (subject to Buyer's
consent rights pursuant to Section 2.7(d), above).
(e) TENANT DEPOSITS. The Tenants' security deposits, if any, not heretofore
applied to their obligations under their respective Leases shall be
transferred or credited to Buyer at the Close of Escrow. As of the Close of
Escrow, Buyer shall assume all of Seller's obligations related to the
security deposits.
(f) UTILITIES AND UTILITY DEPOSITS. Utilities for the Real Property
(excluding utilities for which payment is made directly by Tenants),
including water, sewer, electric, and gas, based upon the last reading of
meters prior to the Close of Escrow, shall be prorated. Seller shall be
entitled to a credit for all security deposits and Owner Deposits (as
hereinafter defined) held by any of the utility companies providing service
to the Real Property; provided, however, Seller must deliver evidence of
such deposits reasonably satisfactory to Buyer and to Escrow not later than
five (5) business days prior to Closing to receive such credit. Seller
shall endeavor to obtain meter readings on the day before the Closing Date,
and if such readings are obtained, there shall be no proration of such
items and Seller shall pay at Close of Escrow the bills therefor through
the Closing Date, and Buyer shall pay the bills therefor for the period
subsequent thereto. If the utility company will not issue separate bills,
Buyer will receive a credit against the Purchase Price for Seller's portion
and will pay the entire bill prior to delinquency after Close of Escrow.
Buyer shall be responsible for paying any security deposits and Owner
Deposits required by utility companies providing service to the Real
Property.
(g) OWNER DEPOSITS. Seller shall receive a credit at the Close of Escrow
for all bonds, deposits, letters of credit, set aside letters or other
similar items, if any, that are outstanding with respect to the Real
Property that have been provided by Seller or any of its affiliates to any
governmental agency, public utility or similar entity (collectively, "OWNER
DEPOSITS") to the extent assignable to Buyer. To the extent any Owner
Deposits are not assignable to Buyer, Buyer shall replace such Owner
Deposits and obtain the release of Seller (or its affiliates) from any
obligations under such Owner Deposits. To the extent that any funds are
released as a result of the termination of any Owner Deposits for which
Seller did not get a credit, such funds shall be delivered to Seller
immediately upon their receipt.
(h) FINAL ADJUSTMENT AFTER CLOSING. If final prorations cannot be made at
the Close of Escrow for any item being prorated under this Section 4.2,
then for any such proration ("POST CLOSING PRORATION"), Buyer and Seller
agree to allocate such items on a fair and equitable basis as soon as
invoices or bills are available and applicable reconciliation with Tenants
have been completed, with final adjustment and payment to be made as soon
as reasonably possible after the Close of Escrow (but in no event later
than sixty (60) days after the Close of Escrow), to the effect that income
and expenses are received and paid by the Parties on a accrual basis with
respect to their period of ownership.
4.3 PAYMENT OF CLOSING COSTS. Except as may be expressly set forth in this
Agreement to the contrary, Seller shall pay: the recording and/or filing fees
necessary to discharge liens pursuant to Seller's obligations in Section 2.2,
above; the cost of the Preliminary Title Report, if any; the cost of a standard
coverage owner's policy of title insurance, subject to Section 2.2, above; all
city and county documentary transfer taxes; and one-half of the amount of all
fees and costs charged by Escrow, including the cost of recording the Deed.
Buyer shall pay: all costs incurred by Buyer in investigating the Property and
preparing to take title to the Real Property; the excess cost of an ALTA
extended coverage policy of title insurance, as compared to the cost of a
standard coverage policy; and one-half of the amount of all fees and costs
charged by Escrow, including the cost of recording the Deed.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS.
5.1 SELLER. Seller makes the following representations and warranties to
Buyer, which representations and warranties shall be true and correct both as of
the date of this Agreement and as of the Closing, and upon which representations
and warranties Buyer shall be entitled to rely except to the extent that any
inspection or investigation made by Buyer reveals information to the contrary:
(a) AUTHORITY. This Agreement and all Closing Documents shall be duly
authorized and executed and when delivered by Seller will be valid, binding
and enforceable obligations of Seller, and that Seller has the legal
authority and ability to sell the Property pursuant to this Agreement.
(b) COMPLIANCE WITH LAWS. Except as set forth herein, Seller has received
no written notice that any governmental agency considers the Real Property
or the operation or use thereof to have failed to comply with any law,
ordinance, regulation or order.
(c) STATUS OF PROPERTY. Seller has received no written notice regarding
cancellation of any casualty insurance on the Real Property, or requiring
performance of any repairs, alterations or other work thereon in order to
obtain or maintain casualty insurance on the Real Property.
(d) NO SUITS OR CLAIMS. To Seller's actual knowledge and without
investigation or inquiry, there are no suits or claims pending or to
Seller's knowledge, threatened with respect to or in any manner affecting
the Property, nor does Seller have actual knowledge of any circumstances
which should or could reasonably form the basis for any such suits or
claims which have not been disclosed in writing to Buyer by Seller.
(e) NO ACTION TO CHANGE ZONING OR PERMITTED USES. Seller has not and will
not, without the prior written consent of Purchaser, take any action before
any governmental authority having jurisdiction thereover, the object of
which would be to change the present zoning of or other land-use
limitations, upon the Property, or any portion thereof, or its potential
use,. Notwithstanding anything to the contrary herein, the restrictions on
Seller set forth in this Section shall be lifted and of no further force or
effect if the Closing has not occurred prior to the date that is ninety
(90) days after the Effective Date.
(f) PAYMENT OF PROPERTY EXPENSES. Except for any item to be prorated at
Closing or paid by Buyer in accordance with this Agreement, all bills or
other charges, costs or expenses arising out of or in connection with or
resulting from Seller's use, ownership, or operation of the Property up to
Closing shall be paid in full by Seller.
(g) PAYMENT OF TAXES. All general real estate taxes, assessments and
personal property taxes that have become due with respect to the Property
(except for those that will be prorated at Closing) have been paid or will
be so paid by Seller prior to Closing.
(h) NO UNRECORDED TITLE DEFECTS. To Seller's actual knowledge, and except
as is disclosed in the Preliminary Title Report, there are no unrecorded
leases (other than the Leases), liens or encumbrances which may affect
title to the Property.
(i) NO INTENDED PUBLIC IMPROVEMENTS. To Seller's actual knowledge, Seller
has not received any written notice that there are any intended public
improvements which will or could result in any charges being assessed
against the Property which will result in a lien upon the Property.
(j) NO CONDEMNATION. To Seller's actual knowledge, Seller has not received
any written notice that there is any impending or contemplated condemnation
or taking by inverse condemnation of the Property, or any portion thereof,
by any governmental authorities.
(k) NO OTHER AGREEMENTS. Seller has not entered into and there is not
existing any other agreement, written or oral, under which Seller is or
could become obligated to sell the Property, or any portion thereof, to a
third party, and Seller will not enter into nor execute any such agreement
without Buyer's prior written consent. Notwithstanding anything to the
contrary herein, the restriction on Seller set forth in this Section shall
be lifted and of no further force or effect on the occurrence of the
earliest of the following events: (i) Buyer's termination of this
Agreement; or (ii) if the Closing has not occurred by January 17, 2006
(unless the Parties have agreed, in writing, to extend the Closing Date to
a later date, in which event the restriction on Seller shall be lifted on
the day immediately following the extended Closing Date).
(L) ENVIRONMENTAL. Except as otherwise disclosed in the Property Documents,
and to Seller's actual knowledge, Seller has not received any written
notice that there exists or has existed, or that Seller itself has caused
any generation, production, location, transportation, storage, treatment,
discharge, disposal, release or threatened release upon, under or about the
Property of any Hazardous Substances.
(m) To Seller's actual knowledge, except as otherwise disclosed in the
Property Documents, Seller has not received any written notice that there
is now, or there has ever been, on or in the Property any underground
storage tanks, any asbestos-containing materials or any polychlorinated
biphenyls, including those used in hydraulic oils, electric transformers,
or other equipment. Seller hereby assigns to Purchaser, effective as of
Closing, all claims, counterclaims, defenses, or actions, whether at common
law, or pursuant to any other applicable federal or state or other laws
which Seller may have against any third parties relating to the existence
of any Hazardous Materials in, at, on, under or about the Property
(including Hazardous Materials released on the Property prior to Closing
and continuing in existence on the Property at Closing).
(m) NO INCREASED ASSESSED VALUATION. To Seller's actual knowledge, there
are no proceedings pending for the increase of the assessed valuation of
the Property.
(n) DUTY TO SUPPLEMENT. Should Seller receive notice or knowledge of any
information regarding any of the matters set forth in this Section 5.1
after the Effective Date and prior to Closing, Seller will immediately
notify Purchaser of the same in writing.
5.2 BUYER. Buyer represents and warrants that this Agreement and all
Closing Documents shall be duly authorized and executed and when delivered by
Buyer will be valid, binding and enforceable obligations of Buyer, and that
Buyer has the legal authority and ability to purchase the Property pursuant to
this Agreement.
5.3 SURVIVAL. Seller's representations, warranties and covenants, if any,
set forth in Sections 2.4, 3.1 and 5.1 shall terminate and be of no further
force or effect immediately upon the Closing. The representations and
warranties, if any, of Seller elsewhere contained in this Agreement shall
survive for a period of twelve (12) months following the Closing Date.
6. REMEDIES.
6.1 BUYER'S REMEDIES. In the event that Seller fails to consummate this
Agreement for any reason, except Buyer's default or a termination of this
Agreement by Buyer or Seller pursuant to a right to do so under the provisions
hereof, Buyer shall have one, but not both, of the following remedies, and no
others:
(A) BUYER MAY TERMINATE THIS AGREEMENT, IN WHICH CASE AND UPON
EXECUTION OF CANCELLATION INSTRUCTIONS BY BUYER, ESCROW SHALL IMMEDIATELY RETURN
THE ACCRUED DEPOSIT TO BUYER, AND SELLER SHALL PAY ANY ESCROW CANCELLATION
CHARGES.
(B) BUYER MAY BRING AN ACTION FOR SPECIFIC PERFORMANCE AGAINST
SELLER WITH RESPECT TO THIS AGREEMENT, BUT IN SUCH EVENT, AND EXCEPT FOR THE
ATTORNEY'S FEES AND COSTS ALLOWABLE UNDER SECTION 7.3, BELOW, BUYER MAY NOT SEEK
ANY DAMAGES, GENERAL, SPECIAL OR CONSEQUENTIAL, SUFFERED OR CLAIMED TO HAVE BEEN
SUFFERED BY IT, AND THE COURT SHALL NOT HAVE ANY POWER OR RIGHT TO AWARD ANY
SUCH DAMAGES. ANY CLAIM OR DEMAND FOR SPECIFIC PERFORMANCE SHALL BE ABSOLUTELY
BARRED UNLESS BUYER COMMENCES AN ACTION THEREON WITHIN NINETY (90) DAYS AFTER
THE DATE OF THE INACTION, OMISSION, EVENT, OR DEFAULT OF SELLER THAT GAVE RISE
TO SUCH CLAIM FOR SPECIFIC PERFORMANCE. BUYER ACKNOWLEDGES AND UNDERSTANDS,
AFTER HAVING CONSULTED WITH ITS LEGAL COUNSEL, THAT THE PURPOSE OF THE FOREGOING
IS TO SHORTEN THE PERIOD WITHIN WHICH BUYER WOULD OTHERWISE HAVE TO BRING A
CLAIM FOR SPECIFIC PERFORMANCE.
NOTWITHSTANDING THE FOREGOING, IF SPECIFIC PERFORMANCE IS UNAVAILABLE AS A
REMEDY TO BUYER BECAUSE OF SELLER'S AFFIRMATIVE ACTS, BUYER SHALL BE ENTITLED TO
PURSUE ALL RIGHTS AND REMEDIES AVAILABLE AT LAW OR IN EQUITY, HOWEVER, IN SUCH
EVENT, BUYER'S DAMAGES SHALL BE LIMITED TO THE LESSER OF ITS ACTUAL DAMAGES OR
FIVE HUNDRED THOUSAND DOLLARS ($500,000.00), AND NO TRIBUNAL
OR COURT SHALL HAVE JURISDICTION OR AUTHORITY TO ISSUE AN AWARD IN EXCESS OF
SUCH AMOUNT .
6.2 SELLER'S REMEDIES. THE PARTIES AGREE THAT SELLER WILL SUFFER DAMAGES IN
THE EVENT OF BUYER'S DEFAULT UNDER OR BREACH OF THE TERMS OF THIS AGREEMENT,
ALTHOUGH THE AMOUNT OF SUCH DAMAGES IS DIFFICULT OR IMPOSSIBLE TO DETERMINE. IF
BUYER SHOULD FAIL TO CONSUMMATE THIS AGREEMENT AS A RESULT OF BUYER'S DEFAULT
UNDER OR BREACH OF THE TERMS OF THIS AGREEMENT, THEN SELLER MAY TERMINATE THIS
AGREEMENT BY NOTIFYING BUYER AND ESCROW AND SELLER SHALL RECEIVE OR RETAIN THE
ACCRUED DEPOSIT AS LIQUIDATED DAMAGES, BUT NOT AS A PENALTY. THE PARTIES AGREE
THAT THE AMOUNT OF THE ACCRUED DEPOSIT IS A REASONABLE ESTIMATE OF SELLER'S LOSS
IN THE EVENT OF BUYER'S DEFAULT. SELLER HEREBY ACKNOWLEDGES AND AGREES THAT
EXCEPT FOR BUYER'S REPAIR AND INDEMNITY OBLIGATIONS SET FORTH IN SECTIONS 2.5
AND 2.10 AND ELSEWHERE IN THIS AGREEMENT, AND EXCEPT FOR THE ATTORNEY'S FEES AND
COSTS ALLOWABLE UNDER SECTION 7.3, BELOW, SUCH LIQUIDATED DAMAGES SHALL
CONSTITUTE SELLER'S SOLE AND EXCLUSIVE REMEDY AGAINST BUYER.
SELLER AND BUYER ACKNOWLEDGE THAT THEY HAVE READ AND UNDERSTAND THE
FOREGOING PROVISIONS IN SECTIONS 6.1 AND 6.2, AND BY THEIR INITIALS IMMEDIATELY
BELOW, AGREE TO BE BOUND BY THEIR TERMS.
SELLER: SW BUYER: JMP
6.3 LIMITATION OF SELLER'S LIABILITY. Notwithstanding anything to the
contrary in this Agreement, any judgment obtained by Buyer against Seller shall
be satisfied only out of Seller's interest in the Real Property and the rents
receivable by Seller therefrom. The Seller Releasees shall not have any personal
liability for any matter in connection with this Agreement or for the
obligations of the Seller. Buyer shall not institute, seek or enforce any
personal or deficiency judgment against Seller or any of the Seller Releasees,
and none of their property, except the Real Property, shall be available to
satisfy any judgment hereunder. The covenants contained in this Section shall
survive the Close of Escrow and the termination of this Agreement.
6.4 BUYER'S GENERAL INDEMNITY. Buyer will defend, indemnify and hold the
Seller Releasees harmless from and against: (a) any and all injuries, losses,
liens, claims, judgments, obligations, liabilities, costs, expenses or damages
arising from any breach of the warranties or representations of Buyer contained
in this Agreement; and (b) any and all injuries, losses, liens, claims,
judgments, obligations, liabilities, costs, expenses or damages arising after
the Closing Date regarding the Property or arising as a result of Buyer's
failure to pay all taxes, assessments, fees and other government charges levied
upon or otherwise relating or attributable to the Property or the operations
conducted thereon arising after the Closing Date. The covenants contained in
this Section shall survive the Close of Escrow and the termination of this
Agreement.
6.5 SELLER'S GENERAL INDEMNITY. Seller will defend, indemnify and hold the
Buyer and its general and limited partners, officers, directors, shareholders,
members, managers, beneficiaries, successors, related entities, agents and
employees (collectively hereinafter the "BUYER RELEASEES") harmless from and
against: (a) any and all injuries, losses, liens, claims, judgments,
obligations, liabilities, costs, expenses or damages arising from any breach of
the warranties or representations of Seller contained in this Agreement; and (b)
any and all injuries, losses, liens, claims, judgments, obligations,
liabilities, costs, expenses or damages arising prior the Closing Date regarding
the Property or arising as a result of Seller's failure to pay all taxes,
assessments, fees and other government charges levied upon or otherwise relating
or attributable to the Property or the operations conducted thereon arising
prior to the Closing Date. The covenants contained in this Section shall survive
the Close of Escrow and the termination of this Agreement. Notwithstanding the
foregoing, Seller shall have no obligation to defend, indemnify or hold the
Buyer Releasees harmless from or against any condition, injury, claim, loss,
expense, cost or damage for which, under Section 2.3, above, Buyer has released
Seller.
7. GENERAL PROVISIONS.
7.1 BROKERS AND FINDERS. Seller and Buyer each represent that other than as
set forth herein, neither has dealt with any broker or finder with regard to the
within described transaction or the Property. Seller and Buyer shall each
indemnify the other and the Property from and against any loss, damage or
expense resulting from any claims by any other person or other legal entity with
which such indemnifying Party has had contact, discussion or negotiations
pertaining to the Property for any such brokerage commissions or fees alleged to
have been earned at the request of such indemnifying Party. Seller has used the
services of Patrick Devereaux of Cushman & Wakefield of Colorado, Inc.
("BROKER"), and Buyer has not used the services of any real estate broker or
salesperson in connection with this transaction, and upon the successful Close
of Escrow pursuant to the terms contained herein, Seller shall pay to Broker a
commission pursuant to a separate agreement as Broker's total, and sole,
compensation for the brokerage services rendered in connection with this
Agreement. Broker shall return the foregoing commission upon Seller's demand in
the event that after the Close of Escrow, (a) Seller and Buyer agree to a
rescission of the Agreement and/or a court of competent jurisdiction orders the
rescission of this Agreement, and (b) title to the Property is returned to
Seller. Nothing herein is intended to give Broker any rights under this
Agreement, and Broker shall not be deemed to be a third party beneficiary
hereunder.
7.2 NOTICES. Any notice, request, demand, instruction or other document to
be given hereunder or pursuant hereto shall be in writing and shall be
personally delivered or sent by registered or certified mail, postage prepaid,
return receipt requested or by nationally recognized overnight delivery service
(such as Federal Express), or facsimile, as follows:
If to Seller to: c/o Auburndale Properties, Inc.
2951 28th Street, Suite 2050
Santa Monica, CA 90405
ATTN: Mrs. Chris Felix
Facsimile No.: (310) 396-8306
cfelix@aubproperties.com
With a copy to:
c/o Auburndale Properties, Inc.
50 Tice Boulevard
Woodcliff Lake, New Jersey 07675
ATTN: Mr. Shalom Wall
Facsimile No.: (201) 930-1833
swall@aubproperties.com
With a copy to:
Leo A. Schwarz, Esq.
P.O. Box 8340
Calabasas, CA 91372-8340
Facsimile No.: (818) 222-2993
leolaw@gte.net & wfigueroa@sbcglobal.net
If to Buyer to: Cole Takedown, LLC
2555 E. Camelback Road, Suite 400
Phoenix, AZ 85016
ATTN: Todd J. Weiss, Esq.
Facsimile No.: (602) 778-8780
TWeiss@ColeCapital.com
With a copy to:
Bennett Wheeler Lytle & Cartwright, PLC
3838 N. Central Avenue, Suite 1120
Phoenix, AZ 85012
ATTN: Kevin T. Lytle, Esq.
Facsimile No.: (602) 266-9119
klytle@bwlclaw.com
If to Escrow to: First American Title Insurance Company
2425 E. Camelback Road, Suite 300
Phoenix, AZ 85016
ATTN: Mr. Tom Anzaldua
Facsimile No.: (602) 567-8101
tanzaldua@firstam.com
Notice shall be deemed to have been given upon receipt or refusal to accept
delivery. The addresses and addressees for purposes of this paragraph may be
changed by giving written notice of such change in the manner provided herein
for giving notice. Unless and until such written notice is received, the last
address and addressee stated by written notice, or provided herein if no written
change has been sent or received, shall be deemed to continue in effect for all
purposes hereunder. Any notice sent by facsimile shall be effective when
received, provided, however, the sending Party immediately thereafter delivers a
copy of the notice to the other Party via one of the other methods of providing
notice set forth above.
7.3 ATTORNEY'S FEES. If there is any litigation to enforce any provisions
or rights arising herein, the unsuccessful party in such litigation, as
determined by the court, agrees to pay the successful party, as determined by
the court, all costs and expenses, including, but not limited to, reasonable
attorneys' fees incurred by the successful party, such fees to be determined by
the court.
7.4 ENTIRE AGREEMENT. This Agreement is intended by the Parties as a final
expression and a complete and exclusive statement of the entire agreement of the
Parties with respect to the subject matter hereof, and, as such, this Agreement
supersedes all prior understandings and agreements, whether oral or in writing,
between the Parties respecting the subject matter of this Agreement.
7.5 SEVERABILITY. In the event any portion of this Agreement shall be
declared by any court of competent jurisdiction to be invalid, illegal or
unenforceable, such portion shall be severed from this Agreement, and the
remaining parts hereof will remain in full force and effect, as fully as if such
invalid, illegal or unenforceable portion had never been part of this Agreement.
7.6 AMENDMENTS. This Agreement may be amended at any time only by the
written agreement of Seller and Buyer. All amendments, changes, revisions and
discharges of this Agreement, in whole or in part, and from time to time, shall
be binding upon the Parties despite any lack of legal consideration, so long as
the same shall be in writing and executed by the Parties.
7.7 NO THIRD PARTY BENEFIT. This Agreement is intended to benefit only the
Parties to this Agreement, their successors and assigns, and no person or entity
has or shall acquire any rights under this Agreement except other than such
successors or assigns.
7.8 TIME OF THE ESSENCE. Time shall be of the essence as to all dates and
times of performance, whether contained in this Agreement or contained in any
Escrow instructions to be executed pursuant to this Agreement, and all Escrow
instructions shall be deemed to contain a provision to this effect. If any date
upon which any Party hereto is required to act shall fall on a Saturday, Sunday
or national holiday, the date as to which action applies shall be deemed to be
the next following business day.
7.9 FURTHER ACTION. Each Party agrees to execute such further documents or
Escrow instructions and to take such further action as may be reasonably
necessary or desirable to effectuate the intent and purposes of this Agreement
and to consummate the transactions contemplated herein.
7.10 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which when executed shall be an original and all of which together shall
constitute one and the same Agreement. A signature transmitted
by facsimile shall for all intents and purposes be treated as an original,
however, the Party transmitting such signature by facsimile shall concurrently
deliver to the other, by overnight delivery service, the executed original of
this Agreement.
7.11 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon, and
enforceable by and shall inure to the benefit of the successors and assigns of
the Parties hereto. Except as set forth in Section 7.15, below, Buyer shall not
assign this Agreement without the prior written consent of Seller, which consent
may be withheld by Seller for any reason or for no reason, provided, however
that Buyer may assign this Agreement to an entity wholly owned or controlled by
Buyer (hereinafter, a "RELATED ENTITY"), but in such event (a) the assignee
shall assume in writing all of Buyer's obligations and duties under this
Agreement, (b) Buyer shall provide to Seller evidence reasonably satisfactory to
Seller that the assignee is a Related Entity, and (c) Buyer shall promptly
provide Seller with written notice of such assignment, together with a true,
correct and complete copy of the assignment agreement. In no event shall Buyer
be released from or relieved of any of its obligations, duties or liabilities
hereunder for or on account of such assignment.
7.12 CONSTRUCTION; CHOICE OF LAW. This Agreement shall be construed fairly
and equally as to Seller and Buyer and without regard to which Party drafted the
same. All exhibits to which reference is made in this Agreement are deemed
incorporated in this Agreement, whether or not actually attached. Section
headings contained in this Agreement are for the purposes of reference and
convenience only and shall not limit or otherwise affect the meaning hereof.
This Agreement has been executed and is to be performed in the County of
Arapahoe, and this Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Colorado.
7.13 WAIVER OF JURY TRIAL. SELLER AND BUYER ACKNOWLEDGE AND AGREE THAT
RECENT CASES HAVE DETERMINED THAT CONTRACTUAL WAIVERS OF A PARTY'S RIGHT TO A
JURY TRIAL MAY BE INVALID, ALTHOUGH FURTHER REVIEW OF THESE HOLDINGS ARE OR MAY
BE PENDING. NOTWITHSTANDING THE ABOVE-REFERENCED HOLDINGS, SELLER AND BUYER EACH
DESIRE TO INCLUDE A JURY TRIAL WAIVER IN THIS AGREEMENT, AND EACH COVENANTS TO
DO SUCH FURTHER ACTS AND TAKE SUCH ADDITIONAL ACTION AS IS HEREAFTER REQUIRED TO
VALIDATE AND/OR ENFORCE THIS WAIVER. BY INITIALING BELOW, SELLER AND BUYER
HEREBY ACKNOWLEDGE THAT EACH WAIVES THE RIGHT TO A TRIAL BY JURY OF ANY ISSUE OR
ACTION BETWEEN THEM RELATING TO THIS AGREEMENT OR THE PROPERTY OR THE
NEGOTIATIONS THAT PRECEDED THIS AGREEMENT.
SW JMP
SELLER BUYER
7.14 SELLER'S ELECTION OF IRC SECTION 1031 EXCHANGE. Seller may elect to
effect a tax-deferred exchange under Section 1031 of the Internal Revenue Code
by designating other real property (the "EXCHANGE PROPERTY") to be acquired by
an intermediary selected by Seller ("INTERMEDIARY") in exchange for the Real
Property. In such event, Seller shall enter into an exchange agreement with the
Intermediary prior to the Closing by the terms of which the Intermediary shall
receive the sale proceeds of the Real Property, and Seller may transfer this
Agreement to the Intermediary for such purpose, but all transfer documents shall
be executed by Seller and Seller shall remain solely responsible for Seller's
obligations under this Agreement. Notwithstanding Seller's election to effect a
tax-deferred exchange, such an exchange by Seller shall not interfere with or
excuse Seller's obligations under this Agreement, and Seller shall be required
to sell such Real Property to Buyer and Buyer shall be required to purchase the
Real Property for the price and on the terms set forth in this Agreement. In no
event shall Buyer be required (a) to take title to any property other than the
Real Property described herein, or (b) to pay funds in addition to those called
for elsewhere in this Agreement. Buyer shall execute such documents and
undertake such acts as are reasonably necessary and/or convenient to facilitate
the foregoing tax-deferred exchange, but Buyer shall not be required to be
involved in such exchange other than as specified herein.
7.15 BUYER'S ELECTION OF IRC SECTION 1031 EXCHANGE. Buyer may elect to
effect a tax-deferred exchange under Section 1031 of the Internal Revenue Code
by designating an Intermediary to acquire the Real Property in exchange for
other real property owned by Buyer ("BUYER'S PROPERTY"). In such event, Buyer
shall enter into an exchange agreement with the Intermediary prior to the
Closing by the terms of which the Intermediary shall use the sale proceeds from
Buyer's Property to acquire the Real Property, and Buyer may transfer this
Agreement to the Intermediary for such purpose, but all transfer documents shall
be executed by Buyer and Buyer shall remain solely responsible for Buyer's
obligations under this Agreement. Notwithstanding Buyer's election to effect a
tax-deferred exchange, such an exchange by Buyer shall not interfere with or
excuse Buyer's obligations under this Agreement, and Buyer shall be required to
buy the Real Property from Seller and Seller shall be required to sell the Real
Property for the price and on the terms set forth in this Agreement. In no event
shall Seller be required (a) to take title to any other property other, or (b)
to pay funds in addition to those called for elsewhere in this Agreement. Seller
shall execute such documents and undertake such acts as are reasonably necessary
and/or convenient to facilitate the foregoing tax-deferred exchange, but Seller
shall not be required to be involved in such exchange other than as specified
herein.
7.16 CONFIDENTIALITY. Seller and Buyer and on behalf of their agents,
representatives and assigns, agree and warrant that they understand and agree
that as a material condition of this Agreement, and in exchange for
consideration hereunder, the negotiations preceding this Agreement and any that
may hereafter take place, the contents of the Property Documents and any other
documents hereafter disclosed to either Party, any financial information
provided to either Party by the other, and the existence of this Agreement
together with its terms and conditions (collectively, the "CONFIDENTIAL
INFORMATION"), are to remain strictly private and confidential to the extent
permitted by law. Seller and Buyer expressly agree that they will not disclose,
request or consent to disclosure or otherwise disseminate the Confidential
Information to anyone with the sole exceptions of their attorneys, accountants,
lenders or tax preparers, and they shall instruct their attorneys, accountants,
lenders or tax preparers not to disclose the Confidential Information to anyone,
unless specifically permitted or required by law, and in that event, only such
information as the law permits or requires to be disclosed. Seller and Buyer,
and on behalf of their agents, representatives and assigns, agree that they
shall not at any time do anything or take any action or make any statement,
written or oral, inconsistent with the terms and provisions of this Agreement.
Seller and Buyer understand that the "lid" on publicity and all other terms
hereof will be enforced and that a breach of this Agreement will make them
responsible for all damages occasioned thereby, including, but not limited to,
attorney's fees incurred therefrom. Notwithstanding the foregoing, each Party,
on or after the Closing, may issue a press release generally describing the sale
and/or acquisition of the Property, but the Purchase Price and financial terms
of this Agreement shall not be disclosed.
7.17 SEC S-X 3-14 AUDIT. Seller acknowledges that Buyer may elect to assign
all of its right, title and interest in and to this Agreement to a company that
is subject to the reporting requirements of the Securities Exchange Act of 1934,
as amended ("REGISTERED COMPANY"), promoted by the Buyer or to an affiliate of a
Registered Company (a "REGISTERED COMPANY AFFILIATE"). In the event Buyer's
assignee under this Agreement is a Registered Company or a Registered Company
Affiliate, the Registered Company will be required to make certain filings with
the U.S. Securities and Exchange Commission required under SEC Rule 3-14 of
Regulation S-X (the "SEC FILINGS") that relate to the most recent
pre-acquisition fiscal year (the "AUDITED YEAR") for the Property. To assist the
Registered Company with the preparation of the SEC Filings, Seller agrees to
provide Buyer and the Registered Company with financial information regarding
the Property for the Audited Year requested by Buyer, the Registered Company,
and/or Buyer's or the Registered Company's auditors. Such information may
include, but is not limited to, bank statements, operating statements, general
ledgers, cash receipts schedules, invoices for expenses and capital
improvements, insurance documentation, and accounts receivable aging related to
the Property ("SEC FILING INFORMATION"). Notwithstanding the foregoing, under no
circumstances shall Seller be required to deliver or disclose any of its tax
returns or any information that is privileged by law from disclosure, provided,
however, Seller agrees to deliver or disclose to Buyer such component
information used in connection with the preparation of said tax returns as is
necessary for Buyer to satisfy the SEC Filings requirements. Seller shall
deliver the SEC Filing Information requested by Buyer, the Registered Company
and/or Buyer's or the Registered Company's auditors prior to the expiration of
the Study Period, and Seller agrees to cooperate with Buyer, the Registered
Company and Buyer's or the Registered Company's auditors regarding any inquiries
by Buyer, the Registered Company and Buyer's or the Registered Company's
auditors following receipt of such information, including delivery by Seller of
an executed representation letter prior to COE in form and substance requested
by Buyer's or the Registered Company's auditors ("SEC FILINGS LETTER"). A sample
SEC Filings Letter is attached to the Purchase Agreement as Exhibit "C";
however, Buyer's and/or the Registered Company's auditors may require additions
and/or revisions to such letter following review of the SEC Filing Information
provided by Seller. Seller consents to the disclosure of the SEC Filing
Information in any SEC Filings by the Registered Company. Buyer shall reimburse
Seller for Seller's reasonable costs associated with providing the SEC Filing
Information. The provisions of this Section 7.17 shall survive the Closing for a
period of one (1) year.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date(s)
written below.
SELLER: SHADRALL ASSOCIATES, A NEW YORK GENERAL
PARTNERSHIP
By its Managing General Partner,
Shadrall Corp., a
Massachusetts Corporation
By: /s/ Shalom Wall
-----------------------------------
Shalom Wall, Vice President
Dated: 11-16-05
BUYER: COLE TAKEDOWN, LLC, A DELAWARE LIMITED
LIABILITY COMPANY
/s/ John M. Pons
---------------------------------------
BY: John M. Pons
ITS: Senior Vice President
Dated: November 16, 2005
AMENDMENT TO PURCHASE AGREEMENT
This Amendment to Purchase Agreement (this "Amendment") is made and entered
into effective as of the 29th day of November, 2005, by and between SHADRALL
ASSOCIATES ("Seller") and COLE TAKEDOWN, LLC ("Buyer") and provides as follows:
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Agreement for Purchase
and Sale of Real Property and Joint Escrow Instructions dated as of November 16,
2005 (the "Purchase Agreement"); and
WHEREAS, Seller and Buyer desire to amend the Purchase Agreement as
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties hereto hereby agree as follows:
1. The first sentence of Section 3.3 of the Purchase Agreement is hereby
amended by deleting the entirety thereof and substituting the following in lieu
thereof:
THE "Due Diligence Contingency Period" MEANS THE PERIOD COMMENCING ON
THE EFFECTIVE DATE AND ENDING AT 6:00 P.M. (COLORADO TIME) ON DECEMBER
7, 2005 (SUCH LATTER TIME AND DATE BEING HEREINAFTER KNOWN AS THE "Due
Diligence Expiration Date").
2. Except as specifically amended herein, all of the terms and provisions
of the Purchase Agreement are hereby ratified and affirmed to be in full force
and effect as of the date hereof. To the extent of any conflict between the
Purchase Agreement and this Amendment, the terms and provisions of this
Amendment shall govern and control.
3. This Amendment may be executed in one or more counterparts, each of
which shall be an original, but all of which when taken together shall
constitute one and the same instrument binding on all parties. Delivery of a
signed counterpart by facsimile transmission shall be effective as delivery of a
manually signed counterpart of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date set forth above.
BUYER: SELLER:
COLE TAKEDOWN, LLC, a Delaware limited SHADRALL ASSOCIATES, a New York general
liability company partnership
By: /s/ John M. Pons By: Shadrall Corp., a Massachusetts
---------------------------------- corporation
John M. Pons Its General Partner
Its Senior Vice President
By: /s/ Shalom Wall
-----------------------------------
Shalom Wall
Its Vice President
REINSTATEMENT OF AND FIRST AMENDMENT TO
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AND JOINT ESCROW INSTRUCTIONS
THIS REINSTATEMENT OF AND FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND
SALE OF REAL PROPERTY AND JOINT ESCROW INSTRUCTIONS (this "Amendment") dated as
of the 3rd day of January, 2006, is executed by and between SHADRALL ASSOCIATES,
a New York general partnership ("Seller"), and COLE TAKEDOWN, LLC, a Delaware
limited liability company ("Buyer").
RECITALS
A. Seller and Buyer have heretofore entered into a certain Agreement for
Purchase and Sale of Real Property and Joint Escrow Instructions dated November
16, 2005 (the "Agreement"). Unless otherwise defined herein, terms used herein
with initial capital letters shall have the same meanings assigned to such terms
in the Agreement.
B. Buyer did not approve the Property pursuant to Section 3.3 of the
Agreement or waive the contingencies set forth therein, which, pursuant to said
Section 3.3, was deemed to be an election by Buyer to terminate the Agreement.
Buyer and Seller acknowledge and agree, however, that the Accrued Deposit was
not returned to Buyer as contemplated by Section 2.6 of the Agreement and is
still held in escrow by Escrow.
C. Seller and Buyer now wish to reinstate the Agreement and to amend
certain of the terms thereof.
NOW, THEREFORE, for and in consideration of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer hereby agree as follows:
1. Seller and Buyer hereby reinstate the Agreement and acknowledge that the
Agreement is in full force and effect as of the date hereof. Buyer hereby
waives its right to terminate the Agreement pursuant to Section 3.3.
2. The Purchase Price shall be $18,500,000.00.
3. Not later than three (3) business days after the full execution and
delivery of the Amendment to Escrow, Buyer shall deliver to Escrow
additional earnest money in the amount of Five Hundred Thousand and No/100
Dollars ($500,000.00), which amount shall be added to and be a part of the
Accrued Deposit.
4. Section 1.4 of the Agreement is deleted in its entirety and replaced by the
following:
"1.4 EXPECTED CLOSING DATE. Subject to Section 2.9, the Closing shall be
January 17, 2006 (the "EXPECTED CLOSING DATE"). Buyer may extend the
Closing for up to an additional twenty (20) days upon delivery of written
notice to extend the Closing to Escrow and Seller prior to the original
Closing Date."
5. Seller's has responded to Buyer's written objections to the Exceptions
pursuant to Section 2.2 of the Agreement by notifying Buyer that Seller
will not cure, clear correct or remove any Exceptions to which Buyer
objected. The parties hereby acknowledge and agree that Buyer shall have
the option, exercisable by giving written notice thereof to Seller on or
before 5 p.m. Phoenix, Arizona time on January 9, 2006, to terminate the
Agreement under Section 2.2 if Buyer is unable to clear, correct or remove
the Exceptions to which it has objected. If Buyer elects to terminate the
Agreement, the provisions of Section 2.6 shall apply. If Buyer fails to
provide timely written notice of its election to terminate the Agreement,
Buyer shall be deemed to have waived its objections to the Exceptions.
6. As reinstated and amended hereby, the Agreement remains in full force and
effect.
7. In order to facilitate execution, (a) this Amendment may be executed in as
many counterparts as may be convenient or required, (b) all counterparts
shall collectively constitute a single instrument, (c) any signature page
to any counterpart may be detached from such counterpart without impairing
the legal effect of the signatures thereon and thereafter attached to
another counterpart identical thereto except having attached to it
additional signature pages and (d) delivery of an executed counterpart of
this Amendment by facsimile shall be binding on the parties so delivering.
EXECUTED AND DELIVERED as of the date first above written.
SELLER:
SHADRALL ASSOCIATES,
a New York general partnership
By its Managing General Partner,
Shadrall Corp., a Massachusetts
corporation
By /s/ Shalom Wall
------------------------------------
Shalom Wall, Vice President
BUYER:
COLE TAKEDOWN, LLC,
a Delaware limited liability company
By: /s/ John M. Pons
-----------------------------------
Print: John M. Pons
Its: Senior Vice President
ASSIGNMENT OF AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY AND JOINT
ESCROW INSTRUCTIONS
SHADRALL ASSOCIATES, AS SELLER
AND
COLE TAKEDOWN, LLC, AS BUYER
ASSIGNOR, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, does hereby assign all of its right, title and
interest in that certain Agreement for Purchase and Sale of Real Property and
Joint Escrow Instructions ("Purchase Agreement") described herein, to ASSIGNEE
and its successors and assigns. The Purchase Agreement is described as follows:
DATE OF AGREEMENT: November 16, 2005, as amended and reinstated
ORIGINAL BUYER: Cole Takedown, LLC
ASSIGNED TO: Cole MT Denver CO, LLC
PROPERTY ADDRESS: 4827 and 4887 South Wadsworth Way, Denver, Colorado
ASSIGNOR acknowledges that it is not released from any and all obligations
or liabilities under said Purchase Agreement with the exception of the earnest
money deposit which is currently in escrow.
ASSIGNEE hereby agrees to assume and be responsible for all obligations and
liabilities under said Purchase Agreement. This Assignment shall be in full
force and effect upon its full execution.
Executed this 6th day of February, 2006.
ASSIGNOR: ASSIGNEE:
COLE TAKEDOWN, LLC COLE MT DENVER CO, LLC
By: Cole REIT Advisors II, LLC,
its Manager
By: /s/ John M. Pons By: /s/ John M. Pons
--------------------------------- ------------------------------------
John M. Pons John M. Pons
Senior Vice President Senior Vice President