EXHIBIT 10.58
PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
Between
SCIOTO TRAIL COMPANY
as Seller
and
COLE TAKEDOWN, LLC
as Buyer
November 28, 2005
PURCHASE AGREEMENT AND ESCROW INSTRUCTIONS
DATED: Dated to be effective as of November 28, 2005 (the "Effective Date").
PARTIES: This Purchase Agreement and Escrow Instructions is between SCIOTO
TRAIL COMPANY, as "Seller", and COLE TAKEDOWN, LLC, as "Buyer".
WHEREAS, as of the Effective Date, Seller is the fee title owner of that
certain improved property located at 2812 Scioto Trail, Portsmouth, Ohio, as
legally described on Exhibit A attached hereto (the "Real Property");
WHEREAS, as of the Effective Date, the Real Property is improved with a
building containing approximately 10,125 square feet (the "Building") which
Building is leased to Revco Discount Drug Centers, Inc. ("Tenant") in accordance
with a written lease (the "Lease"). The lessee's obligations under the Lease are
guaranteed (the "Guaranty") by CVS Corporation. The Real Property, the Building,
the improvements to the Real Property (the "Improvements"), the personal
property, if any, of Seller located on the Real Property and Seller's interest
in the Lease and the Guaranty and all rents issued and profits due or to become
due after the COE (as hereafter defined) are hereinafter collectively referred
to as the "Property"; and
WHEREAS, Buyer desires to purchase the Property from Seller and Seller
desires to sell the Property to Buyer free and clear of all liens, all as more
particularly set forth in this Purchase Agreement and Escrow Instructions (the
"Agreement").
NOW THEREFORE, in consideration of the promises set forth in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Seller and Buyer (the "Parties" or a "Party")
hereby agree as follows:
1. INCORPORATION OF RECITALS. All of the foregoing Recitals are hereby
incorporated as agreements of the Parties.
2. BINDING AGREEMENT. This Agreement constitutes a binding agreement
between Seller and Buyer for the sale and purchase of the Property subject to
the terms set forth in this Agreement. Subject to the limitations set forth in
this Agreement, this Agreement shall bind and inure to the benefit of the
Parties and their respective successors and assigns. This Agreement supersedes
all other written or verbal agreements between the Parties concerning any
transaction embodied in this Agreement. No claim of waiver or modification
concerning the provision of this Agreement shall be made against a Party unless
based upon a written instrument signed by such Party.
3. INCLUSIONS IN PROPERTY.
(a) The Property. The term "Property" shall also include the
following:
(1) all tenements, hereditaments and appurtenances pertaining
to the Real Property;
(2) all mineral, water and irrigation rights, if any, running
with or otherwise pertaining to the Real Property;
(3) all interest, if any, of Seller in any road adjoining the
Real Property;
(4) all interest, if any, of Seller in any award made or to be
made or settlement in lieu thereof for damage to the Property by reason of
condemnation, eminent domain or exercise of police power;
(5) all of Seller's interest in the Building, the Improvements
and any other improvements and fixtures on the Real Property;
(6) all of Seller's interest, if any, in any equipment,
machinery and personal property on or used in connection with the Real Property
(the "Personalty");
(7) all of Seller's interest in the Lease and the Guaranty and
the security deposit, if any, now or hereafter due under the Lease; and,
(8) all of Seller's interest, to the extent transferable, in
all permits and licenses (the "Permits"), warranties, contractual rights and
intangibles (including rights to the name of the improvements as well as
architectural/engineering plans) with respect to the operation, maintenance,
repair or improvement of the Property (the "Contracts").
(b) The Transfer Documents. Except for the Personalty which shall be
transferred by that certain bill of sale from Seller to Buyer, a specimen of
which is attached hereto as Exhibit B (the "Bill of Sale"), the Lease and
Guaranty which are to be transferred by that certain assignment and assumption
of lease and guaranty, a specimen of which is attached hereto as Exhibit C (the
"Assignment of Lease"), the Permits and Contracts which are to be transferred by
that certain assignment agreement, a specimen of which is attached hereto as
Exhibit D (the "Assignment Agreement"), all components of the Property shall be
transferred and conveyed by execution and delivery of Seller's limited warranty
deed, a specimen of which is attached hereto as Exhibit E (the "Deed"). The Bill
of Sale, the Assignment of Lease, the Assignment Agreement and the Deed are
hereinafter collectively referred to as the "Transfer Documents".
4. PURCHASE PRICE. The price to be paid by Buyer to Seller for the
Property is TWO MILLION ONE HUNDRED NINETY-ONE THOUSAND and NO/100 DOLLARS
($2,191,000.00) (the "Purchase Price"), payable as follows:
(a) Fifty Thousand and no/100 Dollars ($50,000.00) earnest money
(the "Earnest Money Deposit") to be deposited in escrow with Fidelity National
Title Insurance Company, 40 North Central Avenue, Suite 2850, Phoenix, Arizona
85004, Attention: Ms. Mary L. Garcia ("Escrow Agent") not later than five (5)
business days following the receipt by Escrow Agent of a fully-executed original
of this Agreement (said receipt by Escrow Agent of both a fully-executed
original of this Agreement and the Earnest Money Deposit, the "Opening of
Escrow"), which Earnest Money Deposit is to be held by Escrow Agent until
released to Seller or Buyer as provided herein or paid to Seller at close of
escrow ("COE"); and
(b) Two Million One Hundred Forty-One Thousand and no/100 Dollars
($2,141,000.00) in additional cash, or other immediately available funds (as may
be increased or decreased by such sums as are required to take into account any
additional deposits, prorations, credits, or other adjustments required by this
Agreement), to be deposited in escrow with Escrow Agent on or before COE (the
"Additional Funds") which is to be held by Escrow Agent until cancellation of
this Agreement as provided herein or paid to Seller at COE.
5. DISPOSITION OF EARNEST MONEY DEPOSIT Seller and Buyer hereby instruct
Escrow Agent to place the Earnest Money Deposit in a federally insured
interest-bearing passbook account on behalf of Seller and Buyer. The Earnest
Money Deposit and interest thereon shall be applied as follows:
(a) if Buyer cancels this Agreement as Buyer is so entitled to do as
provided in this Agreement, the Earnest Money Deposit and all interest earned to
the effective date of withdrawal shall be paid to Buyer after Escrow Agent has
provided Seller with ten (10) days notice of its intent to pay the Earnest Money
Deposit to Buyer;
(b) if the Earnest Money Deposit is forfeited by Buyer pursuant to
this Agreement, such Earnest Money Deposit and all interest earned to the date
of withdrawal shall be paid to Seller as Seller's agreed and total liquidated
damages, it being acknowledged and agreed that it would be difficult or
impossible to determine Seller's exact damages; and
(c) if escrow closes, the Earnest Money Deposit and all interest
earned to COE shall be credited to Buyer, automatically applied against the
Purchase Price and paid to Seller at COE.
6. PRELIMINARY TITLE REPORT AND OBJECTIONS. Within ten (10) days after the
Opening of Escrow, Escrow Agent shall deliver a current Preliminary Title Report
(the "Report") for an ALTA extended coverage title insurance policy (the
"Owner's Policy") on the Property to Buyer and Seller. The Report shall show the
status of title to the Property as of the date of the Report and shall also
describe the requirements of Escrow Agent for the issuance of the Owner's Policy
as described herein. One-half of the cost of the Owner's Policy shall be paid by
Seller, one-half of the cost of the Owner's Policy shall be paid by Buyer, and
any additional costs for an extended coverage policy shall be paid by Buyer. In
addition to the Report, Escrow Agent shall simultaneously deliver to Buyer and
Seller legible copies of all documents identified in Part Two of Schedule B of
the Report. If Buyer is dissatisfied with any exception to title as shown in the
Report, then Buyer may either, by giving written notice thereof to Escrow Agent
(i) on or before expiration of the Study Period (as defined below) or (ii) ten
(10) days from Buyer's receipt of the Report, whichever is later, (a) cancel
this Agreement, whereupon the Earnest Money Deposit plus interest shall be
returned to Buyer together with all documents deposited in escrow by Buyer, or
(b) provisionally accept the title subject to Seller's agreement to cause the
removal of any disapproved exceptions or objections, in which case Seller shall
(at its sole cost) remove the exceptions or objections (or, if acceptable to
Buyer, obtain title insurance endorsements over the exceptions and objections)
before COE. Seller shall notify Buyer in writing within five (5) days after
receiving Buyer's written notice of disapproval of any exception, if Seller does
not intend to remove (or endorse over) any such exception and/or objection.
Seller's lack of response shall be deemed as Seller's affirmative commitment to
remove the objectionable exceptions (or obtain title insurance endorsements over
said exceptions and objections, if acceptable to Buyer) prior to COE. In the
event the Report is amended to include new exceptions that are not set forth in
a prior Report, Buyer shall have until the later of (i) the expiration of the
Study Period, or (ii) the date seven (7) days after Buyer's receipt of the
amended Report and copies of the documents identified in the new exceptions or
new requirements, within which to cancel this Agreement and receive a refund of
the Earnest Money Deposit plus interest or to provisionally accept the title
subject to Seller's agreement to cause the removal of any disapproved exceptions
or objections. If Seller serves notice to Buyer that Seller does not intend to
remove such exceptions and objections before COE, Buyer shall, within ten (10)
days thereafter, notify Seller and Escrow Agent in writing of Buyer's election
to either (i) terminate this Agreement, whereupon the Earnest Money Deposit plus
interest shall be returned to Buyer and all obligations shall terminate, or (ii)
Buyer may waive such objections and the transaction shall close as scheduled. If
written notice of dissatisfaction is not timely given by Buyer to Seller
pursuant to this Section 6, then Buyer shall be deemed to have disapproved of
the condition of the title of the Property as shown by the Report and shall have
elected to terminate this Agreement.
7. BUYER'S STUDY PERIOD.
(a) The Study Period. Buyer shall have until the later of 5:00 p.m.
MST on (i) the thirtieth (30th) day after the Opening of Escrow, (ii) that day
which is thirty (30) days from Buyer's receipt of all deliveries of Seller's
Diligence Materials (as hereinafter defined), or (iii) that day which is ten
(10) days from Buyer's receipt of the Survey (as hereinafter defined) (the
"Study Period"), at Buyer's sole cost, within which to conduct and approve any
investigations, studies or tests deemed necessary by Buyer, in Buyer's sole
discretion, to determine the feasibility of acquiring the Property, including,
without limitation, Buyer's right to: (i) review and approve the Survey, the
Lease, Seller's operating statements with respect to the Property, and the
Contracts; (ii) meet and confer with Tenant; and, (iii) obtain, review and
approve an environmental study of the Real Property and Building (collectively,
"Buyer's Diligence").
(b) Right of Entry. Subject to the prior rights of the Tenant of the
Property, Seller hereby grants to Buyer and Buyer's agents, employees and
contractors the right to enter upon the Property, at any time or times during
the Study Period, to conduct Buyer's Diligence. In consideration therefor, Buyer
shall and does hereby agree to indemnify and hold Seller harmless from any and
all liabilities, claims, losses or damages, including, but not limited to, court
costs and attorneys' fees, which may be incurred by Seller as a direct result of
Buyer's Diligence. Buyer's indemnity and hold harmless obligation shall survive
cancellation of this Agreement or COE.
(c) Cancellation. Unless Buyer notifies Seller or Escrow Agent, in
writing, on or before the end of the Study Period of Buyer's acceptance of
Buyer's Diligence and waiver of the contingencies as set forth in this Section
7, this Agreement shall be deemed canceled and the Earnest Money Deposit plus
interest shall be returned immediately to Buyer (subject to Section 5 (a)) and,
except as otherwise provided in this Agreement, neither of the Parties shall
have any further liability or obligation under this Agreement.
8. DELIVERY OF SELLER'S DILIGENCE MATERIALS.
(a) Deliveries to Buyer. Seller agrees to deliver to Buyer
contemporaneously with the Opening of Escrow all information in Seller's
possession or control relating to the leasing, operating, maintenance, repair,
zoning (including any zoning verification letters), platting, engineering, soil
tests, water tests, environmental tests, construction (including the Certificate
of Occupancy for the Property), master planning, architectural drawings and like
matters regarding the Property (collectively, "Seller's Diligence Materials"),
all at no cost to Buyer. The foregoing deliveries shall include, but not be
limited to, copies of all: (i) books of account and records for the Property for
the last twenty-four (24) months (including year-end Tenant CAM expense
reconciliations); (ii) the Lease and a copy of the leasehold title insurance
policy delivered to Tenant; (iii) a detailed listing of all capital expenditures
on the Property for the last thirty-six (36) months; (iv) the maintenance
history of the Property for the last twenty-four (24) months; (v) current
maintenance, management, and listing contracts for the Property including any
amendments thereto; (vi) all claims or suits by Tenant or third parties
involving the Property or the Lease or any Contracts (whether or not covered by
insurance); (vii) a list of all claims or suits by or against Seller regarding
the Property for the last thirty-six (36) months; (viii) any appraisals of the
Property; (ix) the site plan with respect to the Property; and (x) any other
documents or other information in the possession of Seller or its agents
pertaining to the Property that Buyer may reasonably request in writing.
(b) Delivery by Buyer. If this Agreement is canceled for any reason,
except Seller's willful default hereunder, Buyer agrees to deliver to Seller
upon payment by Seller to Buyer of Buyer's cost thereof, copies of those
investigations, studies and/or tests which Buyer may have elected to obtain.
9. THE SURVEY. Seller, at Seller's cost, shall, within fifteen (15) days
of Opening of Escrow, cause a certified ALTA survey of the Real Property,
Building and Improvements (the "Survey") to be completed by a surveyor licensed
in the State of Ohio and delivered to Escrow Agent and Buyer, whereupon the
legal description in the Survey shall control over the description in Exhibit A
attached hereto to the extent they may be inconsistent. The Survey shall set
forth the legal description and boundaries of the Property and all easements,
encroachments and improvements thereon.
10. IRS SECTION 1445. Seller shall furnish to Buyer in escrow by COE a
sworn affidavit (the "Non-Foreign Affidavit") stating under penalty of perjury
that Seller is not a "foreign person" as such term is defined in Section
1445(f)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). If
Seller does not timely furnish the Non-Foreign Affidavit, Buyer may withhold (or
direct Escrow Agent to withhold) from the Earnest Money Deposit and/or the
Additional Funds, an amount equal to the amount required to be so withheld
pursuant to Section 1445(a) of the Code, and such withheld funds shall be
deposited with the Internal Revenue Service as required by such Section 1445(a)
and the regulations promulgated thereunder. The amount withheld, if any, shall
nevertheless be deemed to be part of the Purchase Price paid to Seller.
11. DELIVERY OF POSSESSION. Seller shall deliver possession of the
Property to Buyer at COE subject only to the rights of Tenant under the Lease.
12. CONDITIONS PRECEDENT.
(a) Seller's Conditions Precedent. In addition to all other
conditions precedent set forth in this Agreement, Seller's obligation to perform
under this Agreement and to close escrow are expressly subject to the total
payoff of the outstanding indebtedness owed by Seller to Midland Loan Services,
as a servicer, being in an amount equal to or less than $1,600,000, including a
prepayment premium equal to or less than $420,000.
(b) Buyer's Conditions Precedent. In addition to all other
conditions precedent set forth in this Agreement, Buyer's obligations to perform
under this Agreement and to close escrow are expressly subject to the following:
(i) the delivery by Seller to Escrow Agent, for delivery to
Buyer at COE, of the executed original Transfer Documents;
(ii) 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;
(iii) the delivery by Seller to Buyer at COE of all security
deposits and pre-paid/abated rents under the Lease, if any, in the form of a
credit in favor of Buyer against the Additional Funds;
(iv) the deposit by Seller with Buyer not later than five (5)
business days prior to COE of (y) an original estoppel certificate naming Buyer
(or its designee) and Wachovia Bank, National Association as addressees, which
certificate must be reasonably acceptable to Buyer, in Tenant's standard form,
and (z) a subordination, non-disturbance and attornment agreement, in form and
substance reasonably acceptable to Tenant, for the benefit of Wachovia Bank,
National Association, both executed by Tenant under the Lease;
(v) the deposit with Escrow Agent and Buyer prior to the
expiration of the Study Period of an executed waiver by Tenant of any right of
first refusal under the Lease;
(vi) the deposit with Escrow Agent of an executed affidavit of
Seller and such other documentation as may be reasonably required by Escrow
Agent to allow for the deletion of the mechanics' lien exception from the
Owner's Policy;
(vii) the delivery by Seller to Buyer of a copy of the
Certificate of Occupancy for the Improvements;
(viii) the deposit with Escrow Agent of a letter from Seller
to Tenant requesting that future rent under the Lease be paid to Buyer;
(ix) delivery of the SEC Filing Information (as hereinafter
defined) and the SEC Filings Letter (as hereinafter defined) by Seller to Buyer
not less than five (5) days prior to COE; and
(x) delivery to Buyer of originals of the Lease, the
Contracts, 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.
If the foregoing conditions have not been satisfied by the specified date or COE
as the case may be, then Buyer shall have the right, at Buyer's sole option, by
giving written notice to Seller and Escrow Agent, to cancel this Agreement,
whereupon the Earnest Money Deposit plus interest shall be paid immediately by
Escrow Agent to Buyer and, except as otherwise provided in this Agreement,
neither of the Parties shall have any further liability or obligation under this
Agreement.
13. SELLER'S WARRANTIES. Seller hereby represents and warrants to Buyer as
of the Effective Date and again as of COE that:
(a) there are no unrecorded leases (other than the Lease), liens or
encumbrances which may affect title to the Property;
(b) to Seller's actual knowledge, no notice of violation has been
issued with regard to any applicable regulation, ordinance, requirement,
covenant, condition or restriction relating to the present use or occupancy of
the Property by any person, authority or agency having jurisdiction;
(c) to Seller's actual knowledge, there are no 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;
(d) to Seller's actual knowledge, there is no impending or
contemplated condemnation or taking by inverse condemnation of the Property, or
any portion thereof, by any governmental authorities;
(e) there are no suits or claims pending or to Seller's actual
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;
(f) 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;
(g) Seller has not and will not, without the prior written consent
of Buyer, 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, and, to Seller's actual knowledge, there are no pending
proceedings, the object of which would be to change the present zoning or other
land-use limitations;
(h) this transaction will not in any way violate any other
agreements to which Seller is a party;
(i) Seller has full power and authority to execute, deliver and
perform under this Agreement as well as under the Transfer Documents, specimens
of which are attached hereto as Exhibits;
(j) no default of Seller exists under any of the Contracts and, to
Seller's actual knowledge, no default of the other parties exists under any of
the Contracts;
(k) no consent of any third party is required in order for Seller to
enter into this Agreement and perform Seller's obligations hereunder;
(l) except for any item to be prorated at COE 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 COE shall be paid, when due, in full by Seller;
(m) all general real estate taxes, assessments and personal property
taxes that have become due with respect to the Property have been paid or will
be so paid by Seller prior to COE;
(n) from the Effective Date hereof until COE or the earlier
termination of this Agreement, Seller shall (i) operate and maintain the
Property in a manner generally consistent with the manner in which Seller has
operated and maintained the Property prior to the date hereof, and shall perform
in all material respects, its obligations under the Lease, (ii) not amend,
modify or waive any material rights under the Lease, and (iii) maintain the
existing or comparable insurance coverage, if any, for the Improvements which
Seller is obligated to maintain under the Lease;
(o) Except as set forth in this paragraph 13 (o), Seller has no
actual knowledge that there exists or has existed, and Seller itself has not
caused any generation, production, location, transportation, storage, treatment,
discharge, disposal, release or threatened release upon, under or about the
Property of any Hazardous Materials. "Hazardous Materials" shall 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;
(p) Except as set forth in this paragraph 13 (p), to Seller's actual
knowledge, there is not now, nor has there ever been, on or in the Property
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 Buyer, effective as of COE, 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
COE and continuing in existence on the Property at COE);
(q) to Seller's actual knowledge there are no proceedings pending
for the increase of the assessed valuation of the Real Property;
(r) should Seller receive notice or knowledge of any information
regarding any of the matters set forth in this Section 13 after the Effective
Date and prior to COE, Seller will immediately notify Buyer of the same in
writing;
(s) the execution, delivery and performance of this Agreement and
the Transfer Documents, specimens of which are attached hereto as Exhibits, have
not and will not constitute a breach or default under any other agreement, law
or court order under which Seller is a party or may be bound; and
(t) all representations made in this Agreement by Seller shall
survive the execution and delivery of this Agreement for one (1) year after the
COE. Seller shall and does hereby indemnify against and hold Buyer harmless from
any loss, damage, liability and expense, together with all court costs and
attorneys' fees which Buyer may incur, by reason of any material
misrepresentation by Seller or any material breach of any of Seller's
warranties. Seller's indemnity and hold harmless obligations shall survive for
one (1) year after the COE.
14. BUYER'S WARRANTIES. Buyer hereby represents to Seller as of the
Effective Date and again as of COE that:
(a) Buyer has full power and authority to execute, deliver and
perform under this Agreement as well as under the Transfer Documents, specimens
of which are attached hereto as Exhibits;
(b) there are no actions or proceedings pending or to Buyer's
knowledge, threatened against Buyer which may in any manner whatsoever affect
the validity or enforceability of this Agreement or any of the documents,
specimens of which are attached hereto as Exhibits;
(c) the execution, delivery and performance of this Agreement and
the Transfer Documents, specimens of which are attached hereto as Exhibits, have
not and will not constitute a breach or default under any other agreement, law
or court order under which Buyer is a party or may be bound;
(d) should Buyer receive notice or knowledge of any information
regarding any of the matters set forth in this Section 14 after the Effective
Date and prior to COE, Buyer will promptly notify Seller of the same in writing;
and
(e) all representations made in this Agreement by Buyer shall
survive the execution and delivery of this Agreement and COE. Buyer shall and
does hereby indemnify against and hold Seller harmless from any loss, damage,
liability and expense, together with all court costs and attorneys' fees, if
awarded by a court of law, which Seller may incur, by reason of any material
misrepresentation by Buyer or any material breach of any of Buyer's warranties.
Buyer's indemnity and hold harmless obligations shall survive COE.
15. RENTS AND DEPOSITS. Seller and Buyer agree that, in addition to all
other conditions and covenants contained herein, Seller shall deposit with Buyer
and Escrow Agent on the day immediately prior to COE any advance rents
paid/abatements, if any, and a statement as to the date to which all rents have
been paid.
16. BROKER'S COMMISSION. Concerning any brokerage commission, the Parties
agree as follows:
(a) the Parties warrant to one another that they have not dealt with
any finder, broker or realtor in connection with this Agreement; and
(b) if any person shall assert a claim to a finder's fee or
brokerage commission on account of alleged employment as a finder or broker in
connection with this Agreement, the Party under whom the finder or broker is
claiming shall indemnify and hold the other Party harmless from and against any
such claim and all costs, expenses and liabilities incurred in connection with
such claim or any action or proceeding brought on such claim, including, but not
limited to, counsel and witness fees and court costs in defending against such
claim. The provisions of this subsection shall survive cancellation of this
Agreement or COE.
17. CLOSE OF ESCROW. COE shall be on or before 5:00 p.m. MST on the
thirtieth (30th) day after the expiration of the Study Period or such earlier
date as Buyer may choose by giving not less than five (5) days prior written
notice to Seller and Escrow Agent. Buyer may extend the COE date for up to an
additional fifteen (15) days upon delivery of written notice to extend the COE
date to Escrow Agent prior to the original COE date and by depositing an
additional One Hundred Thousand and no/100 Dollars ($100,000.00) of earnest
money with Escrow Agent. For purposes of this Agreement, any additional earnest
money deposited with Escrow Agent pursuant to this Section 17 shall be added to
and become a part of the Earnest Money Deposit. Notwithstanding the foregoing,
in no event shall COE occur on or before January 2, 2006.
Not later than one (1) business day prior to COE, Buyer and Seller shall
submit a Closing Statement to Escrow Agent signed by both Buyer and Seller which
sets forth all funds received or to be received by Escrow Agent and instructions
to the Escrow Agent regarding how and to what entity the disbursement of funds
is to be made by the Escrow Agent at the COE ("Closing Statement").
18. ASSIGNMENT. This Agreement may not be assigned by Seller without the
prior written consent of Buyer which consent shall not be unreasonably withheld.
Buyer may assign its rights under this Agreement to an affiliate of Buyer
without seeking or obtaining Seller's consent. Such assignment shall not become
effective until the assignee executes an instrument whereby such assignee
expressly assumes each of the obligations of Buyer under this Agreement,
including specifically, without limitation, all obligations concerning the
Earnest Money Deposit. Buyer may also designate someone other than Buyer, as
grantee and/or assignee, under the Transfer Documents by providing written
notice of such designation at least five (5) days prior to COE. No assignment
shall release or otherwise relieve Buyer from any obligations hereunder.
19. RISK OF LOSS. Seller shall bear all risk of loss, damage or taking of
the Property which may occur prior to COE. In the event of any loss, damage or
taking prior to COE, Buyer may, at Buyer's sole option, by written notice to
Seller and Escrow Agent, cancel this Agreement whereupon the Earnest Money
Deposit plus interest shall be paid immediately by Escrow Agent to Buyer and,
except as otherwise provided in this Agreement, neither of the Parties shall
have any further liability or obligation hereunder. In the alternative, Buyer
may attempt to negotiate an appropriate downward adjustment of the Price. If
Seller and Buyer cannot agree upon such a downward adjustment within a
reasonable period (not to exceed ten (10) days from the date Buyer receives
notice of the loss) Buyer may cancel this Agreement as provided above. If Buyer
waives any such loss or damage to the Property and closes escrow, Seller shall
at COE and as a condition precedent thereto, pay Buyer or credit Buyer against
the Additional Funds the amount of any insurance or condemnation proceeds, or
assign to Buyer, as of COE and in a form acceptable to Buyer, all rights or
claims for relief to the same.
20. REMEDIES.
(a) Seller's Breach. If Seller breaches this Agreement, Buyer may,
at Buyer's sole option, either: (i) by written notice to Seller and Escrow
Agent, cancel this Agreement whereupon the Earnest Money Deposit plus interest
shall be paid immediately by Escrow Agent to Buyer and, except as otherwise
provided in this Agreement, neither of the Parties shall have any further
liability or obligation hereunder; or, (ii) seek specific performance against
Seller in which event COE shall be automatically extended as necessary.
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.
(b) Buyer's Breach. If Buyer breaches this Agreement, as its sole
remedy Seller shall be entitled to retain the Earnest Money Deposit in
accordance with subsection 5(b) as Seller's agreed and total liquidated damages.
Seller hereby waives any right to seek any equitable or legal remedies against
Buyer.
21. ATTORNEYS' 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.
22. NOTICES.
(a) Addresses. Except as otherwise required by law, any notice
required or permitted hereunder shall be in writing and shall be given by
personal delivery, or by deposit in the U.S. Mail, certified or registered,
return receipt requested, postage prepaid, addressed to the Parties at the
addresses set forth below, or at such other address as a Party may designate in
writing pursuant hereto, or tested telex, or telegram, or telecopies (fax), or
any express or overnight delivery service (e.g., Federal Express), delivery
charges prepaid:
if to Seller: Scioto Trail Company
711 Second Street
Portsmouth, OH 45662
Attn: Jeffrey P. Albrecht
Tel.: (740) 354-7711
Fax: (740) 353-1539
with copies to: Dinsmore & Shohl LLP
Attn: Mark C. Bissinger
1900 Chemed Center
255 East Fifth Street
Cincinnati, OH 45202
Tel.: (513) 977-8118
Fax: (513) 977-8141
if to Buyer: Cole Takedown, LLC
2555 E. Camelback Road, Suite 400
Phoenix, AZ 85016
Attn: Legal Department
Tel.: (602) 778-8700
Fax: (602) 778-8780
with copies to: Bennett Wheeler Lytle & Cartwright, PLC
3838 North Central Avenue, Suite 1120
Phoenix, AZ 85012
Attn: Kevin T. Lytle, Esq.
Tel.: (602) 445-3434
Fax: (602) 266-9119
If to Escrow Agent: Fidelity National Title Insurance Company
40 North Central Avenue, Suite 2850
Phoenix, AZ 85004
Attn: Ms. Mary L. Garcia
Tel.: (602) 343-7571
Fax: (602) 343-7564
(b) Effective Date of Notices. Notice shall be deemed to have been
given on the date on which notice is delivered, if notice is given by personal
delivery, telex, telegrams or telecopies, and on the date of deposit in the
mail, if mailed or deposited with the overnight carrier, if used. Notice shall
be deemed to have been received on the date on which the notice is received, if
notice is given by personal delivery, and on the second (2nd) day following
deposit in the U.S. Mail, if notice is mailed. If escrow has opened, a copy of
any notice given to a party shall also be given to Escrow Agent by regular U.S.
Mail or by any other method provided for herein.
23. CLOSING COSTS.
(a) Closing Costs. Seller and Buyer agree to pay closing costs as
indicated in this Agreement and in the escrow instructions attached hereto as
Exhibit F, and by this reference incorporated herein (the "Escrow
Instructions"). At COE, Seller shall pay (i) the costs of releasing all liens,
judgments, and other encumbrances that are to be released and of recording such
releases, (ii) one-half of the fees and costs due Escrow Agent for its services;
(iii) the transfer tax associated with the sale of the Property, if any, and
(iv) all other costs to be paid by Seller under this Agreement. Buyer shall pay
one-half of the fees and costs due Escrow Agent for its services. Except as
otherwise provided for in this Agreement, Seller and Buyer will each be solely
responsible for and bear all of their own respective expenses, including,
without limitation, expenses of legal counsel, accountants, and other advisors
incurred at any time in connection with pursuing or consummating the transaction
contemplated herein. Real estate taxes shall not be prorated since the real
estate taxes are reimbursed by Tenant pursuant to the Lease. All prorations
shall be calculated through escrow as of COE based upon the latest available
information, including, without limitation, a credit to Buyer for any rent
prepaid by Tenant for the period beginning with and including the date on which
the closing occurs through and including the last day of the month in which the
closing occurs. All other credits to Buyer shall be similarly prorated. Any
other closing costs not specifically designated as the responsibility of either
Party in the Escrow Instructions or in this Agreement shall be paid by Seller
and Buyer according to the usual and customary allocation of the same by Escrow
Agent. Seller agrees that all closing costs payable by Seller shall be deducted
from Seller's proceeds otherwise payable to Seller at COE. Buyer shall deposit
with Escrow Agent sufficient cash to pay all of Buyer's closing costs. Except as
provided in this Section 23(a), Seller and Buyer shall each bear their own costs
in regard to this Agreement. Escrow Agent shall disburse the funds strictly in
accordance with the Closing Statement.
(b) Post-Closing Adjustment. If after COE, the parties discover any
errors in adjustments and apportionments or additional information becomes
available which would render the closing prorations materially inaccurate, the
same shall be corrected as soon after their discovery as possible. The provision
of this Section 23(b) shall survive COE except that no adjustment shall be made
later than two (2) months after COE unless prior to such date the Party seeking
the adjustment shall have delivered a written notice to the other Party
specifying the nature and basis for such claim. In the event that such claim is
valid, the Party against whom the claim is sought shall have ten (10) days in
which to remit any adjustment due.
(c) Instructions. This Agreement, together with the Escrow
Instructions, shall constitute escrow instructions for the transaction
contemplated herein. Such escrow instructions shall be construed as applying
principally to Escrow Agent's employment.
24. ESCROW CANCELLATION CHARGES. If escrow fails to close because of
Seller's default, Seller shall be liable for any cancellation charges of Escrow
Agent. If escrow fails to close because of Buyer's default, Buyer shall be
liable for any cancellation charges of Escrow Agent. If escrow fails to close
for any other reason, Seller and Buyer shall each be liable for one-half of any
cancellation charges of Escrow Agent. The provisions of this Section 24 shall
survive cancellation of this Agreement.
25. APPROVALS. Concerning all matters in this Agreement requiring the
consent or approval of any Party, the Parties agree that any such consent or
approval shall not be unreasonably withheld unless otherwise provided in this
Agreement.
26. SELLER OR BUYER EXCHANGE. Should either Buyer or Seller choose to
exchange for other property of like kind, each agrees to cooperate in this
exchange under IRS Section 1031. This contemplated exchange shall not impose
upon either Party any additional liability or financial obligation, and each
agrees to hold the other harmless from any liability that might arise from such
exchange. This Agreement is not subject to or contingent upon either parties
ability to acquire a suitable exchange property or effectuate an exchange. In
the event any exchange contemplated by either party should fail to occur, for
whatever reason, the sale of the Property shall nonetheless be consummated as
provided herein.
27. ADDITIONAL ACTS. The Parties agree to execute promptly such other
documents and to perform such other acts as may be reasonably necessary to carry
out the purpose and intent of this Agreement.
28. GOVERNING LAW/JURISDICTION/VENUE. This Agreement shall be governed by
and construed or enforced in accordance with the laws of the State of Ohio. In
regard to any litigation which may arise in regard to this Agreement, the
Parties shall and do hereby submit to the jurisdiction of and the Parties hereby
agree that the proper venue shall be in the United States District Court for the
Southern District of Ohio and in the Common Pleas Court of Sciota County, Ohio.
29. CONSTRUCTION. The terms and provisions of this Agreement represent the
results of negotiations among the Parties, each of which has been represented by
counsel of its own choosing, and neither of which has acted under any duress or
compulsion, whether legal, economic or otherwise. Consequently, the terms and
provisions of this Agreement shall be interpreted and construed in accordance
with their usual and customary meanings, and the Parties each hereby waive the
application of any rule of law which would otherwise be applicable in connection
with the interpretation and construction of this Agreement that ambiguous or
conflicting terms or provisions contained in this Agreement shall be interpreted
or construed against the Party whose attorney prepared the executed Agreement or
any earlier draft of the same.
30. TIME OF ESSENCE. Time is of the essence of this Agreement. However, if
this Agreement requires any act to be done or action to be taken on a date which
is a Saturday, Sunday or legal holiday, such act or action shall be deemed to
have been validly done or taken if done or taken on the next succeeding day
which is not a Saturday, Sunday or legal holiday, and the successive periods
shall be deemed extended accordingly.
31. INTERPRETATION. If there is any specific and direct conflict between,
or any ambiguity resulting from, the terms and provisions of this Agreement and
the terms and provisions of any document, instrument or other agreement executed
in connection herewith or in furtherance hereof, including any Exhibits hereto,
the same shall be consistently interpreted in such manner as to give effect to
the general purposes and intention as expressed in this Agreement which shall be
deemed to prevail and control.
32. HEADINGS. The headings of this Agreement are for reference only and
shall not limit or define the meaning of any provision of this Agreement.
33. FAX AND COUNTERPARTS. This Agreement may be executed by facsimile
and/or in any number of counterparts. Each party may rely upon any facsimile or
counterpart copy as if it were one original document.
34. INCORPORATION OF EXHIBITS BY REFERENCE. All Exhibits to this Agreement
are fully incorporated herein as though set forth at length herein.
35. SEVERABILITY. If any provision of this Agreement is unenforceable, the
remaining provisions shall nevertheless be kept in effect.
36. ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the Parties and supersedes all prior agreements, oral or written, with respect
to the subject matter hereof. The provisions of this Agreement shall be
construed as a whole and not strictly for or against any Party.
37. 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"). 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 G; 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 37 shall survive the COE for a period of one (1)
year.
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of
the Effective Date.
SELLER: SCIOTO TRAIL COMPANY, an Ohio corporation
By: /s/ Jeff Albrecht
-----------------------------------
Name: Jeff Albrecht
Its: President
BUYER: COLE TAKEDOWN, LLC, an Arizona corporation
By: /s/ John M. Pons
-----------------------------------
Name: John M. Pons
Its: Senior Vice President
ESCROW AGENT: FIDELITY NATIONAL TITLE INSURANCE COMPANY
By: /s/ M. Burton
-----------------------------------
Name: M. Burton
Its: Asst. Commercial Escrow Officer
ESCROW AGENT'S ACCEPTANCE
The foregoing fully executed Agreement together with the Earnest Money
Deposit is accepted by the undersigned this 5 day of December, 2005, which for
the purposes of this Agreement shall be deemed to be the date of Opening of
Escrow. Escrow Agent hereby accepts the engagement to handle the escrow
established by this Agreement in accordance with the terms set forth in this
Agreement.
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By /s/ M. Burton
-----------------------------------
Name M. Burton
Its Asst. Commercial Escrow Officer
AMENDMENT TO PURCHASE AGREEMENT
This Amendment to Purchase Agreement (this "Amendment") is made and
entered into effective as of the 19th day of January, 2006, by and between
SCIOTO TRAIL COMPANY, an Ohio corporation ("Seller") and COLE TAKEDOWN, LLC, a
Delaware limited liability company ("Buyer") and provides as follows:
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Purchase Agreement and
Escrow Instructions dated as of November 28, 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. Section 4 of the Purchase Agreement is amended by deleting the current
provision in its entirety and substituting the following in lieu thereof:
PURCHASE PRICE. The price to be paid by Buyer to Seller for the
Property is TWO MILLION ONE HUNDRED SIXTY-SIX THOUSAND and NO/100
DOLLARS ($2,166,000.00) (the "Purchase Price"), payable as follows:
(a) Fifty Thousand and no/100 Dollars ($50,000.00) earnest
money (the "Earnest Money Deposit") to be deposited in escrow with
Fidelity National Title Insurance Company, 40 North Central Avenue,
Suite 2850, Phoenix, Arizona 85004, Attention: Ms. Mary L. Garcia
("Escrow Agent") not later than five (5) business days following the
receipt by Escrow Agent of a fully-executed original of this
Agreement (said receipt by Escrow Agent of both a fully-executed
original of this Agreement and the Earnest Money Deposit, the
"Opening of Escrow"), which Earnest Money Deposit is to be held by
Escrow Agent until released to Seller or Buyer as provided herein or
paid to Seller at close of escrow ("COE"); and
(b) Two Million One Hundred Sixteen Thousand and no/100
Dollars ($2,116,000.00) in additional cash, or other immediately
available funds (as may be increased or decreased by such sums as
are required to take into account any additional deposits,
prorations, credits, or other adjustments required by this
Agreement), to be deposited in escrow with Escrow Agent on or before
COE (the "Additional Funds") which is to be held by Escrow Agent
until cancellation of this Agreement as provided herein or paid to
Seller at COE.
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.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date set forth above.
BUYER: SELLER:
COLE TAKEDOWN, LLC, an Arizona SCIOTO TRAIL COMPANY, an Ohio corporation
corporation
By: /s/ John M. Pons By: /s/ Jeff Albrecht
------------------------ -----------------------------
Name: John M. Pons Name: Jeff Albrecht
Its: Senior Vice President Its: President
ASSIGNMENT OF PURCHASE AGREEMENT
AND ESCROW INSTRUCTIONS
Cole Acquisitions I, LLC, as Assignor
and
Cole CV Scioto Trail OH, LLC, as Assignee
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, to and under that certain Purchase Agreement and Escrow
Instructions (the "Purchase Agreement") described herein, including, without
limitation, Assignor's right, title and interest in and to the Earnest Money
Deposit, to Assignee and its successors and assigns. The Purchase Agreement is
described as follows:
DATE OF AGREEMENT: November 28, 2005
ORIGINAL BUYER: Cole Acquisitions I, LLC (f/k/a Cole Takedown, LLC)
ASSIGNED TO: Cole CV Scioto Trail OH, LLC
PROPERTY ADDRESS: 2812 Scioto Trail, Portsmouth, OH 45662
Assignor acknowledges that it is not released from any obligations or
liabilities under said Purchase Agreement, with the exception of the obligation
to deliver the Earnest Money Deposit which has been delivered into escrow by
Assignor.
Assignee hereby agrees to assume and be responsible for all obligations
and liabilities under said Purchase Agreement, with the exception of the
obligation to deliver the Earnest Money Deposit which has been delivered into
escrow by Assignor. This Assignment shall be in full force and effect upon its
full execution.
Executed this 6th day of March, 2006.
ASSIGNOR: ASSIGNEE:
COLE ACQUISITIONS I, LLC, COLE CV SCIOTO TRAIL OH, LLC,
a Delaware limited liability company a Delaware limited liability company
By: COLE REIT ADVISORS II, LLC,
a Delaware limited liability company,
its Manager
By: /s/ John M. Pons
------------------------------
John M. Pons By: /s/ John M. Pons
------------------------
Authorized Officer John M. Pons
Its: Senior Vice President