Exhibit 10.37
REAL ESTATE CONTRACT
This Contract is entered into by and between DB-KS, LLC., a Kansas limited
liability company ("Seller") and SERIES C, LLC, an Arizona limited liability
company, or its nominee or assigns ("Buyer"). The "Effective Date" of this
Contract is the last date upon which both Buyer and Seller have executed this
Contract.
1. Purchase and Sale. Seller hereby agrees to sell and convey and Buyer
agrees to purchase the real property and all improvements to be constructed
thereon consisting of a DAVID'S BRIDAL STORE building situated at 9310-9320
MARSHALL DRIVE, LENEXA, JOHNSON COUNTY, KANSAS, together with all and singular
the rights and appurtenances pertaining to the property, and all right, title
and interest of Seller in and to any equipment related to and attached to the
building owned by Seller, and any parking, adjacent streets, easements, and
rights of way (collectively the "Property"), and Seller's interest in that
certain Lease Agreement ("Lease") with DAVID'S BRIDAL, INC. ("Tenant"), upon the
terms and conditions set forth herein. The Property shall also include all of
Seller's interest, to the extent transferable, in all permits and licenses,
warranties (specifically including, without limitation, the general contractor's
construction warranty with respect to construction of improvements at the
Property and any warranty related to the roof of the building located at the
Property), contractual rights and intangibles (including
architectural/engineering plans) with respect to the operation, maintenance,
repair or improvement of the Property. The Property is legally described as
follows:
LOT 2, CROSSROADS OF LENEXA, A SUBDIVISION IN THE CITY OF LENEXA, JOHNSON
COUNTY, KANSAS
2. Purchase Price. The Purchase Price for the Property shall be
$3,280,000.00, and shall be paid as follows:
(a) Buyer agrees to deliver to and deposit with Chicago Title
Insurance Company, 106 West 11th Street, Suite 1800, Kansas City, Missouri
64105, Attention: Bonnie Vestal (the "Escrow Holder") the amount of $50,000.00
as an earnest money deposit ("Deposit") within five (5) business days of the
Effective Date. The Deposit shall be applied to the Purchase Price at Closing or
delivered to the party entitled to receive it pursuant to the terms of this
Contract. Buyer may instruct the Escrow Holder to deposit the Deposit in an
interest bearing account and shall be entitled to all accumulated interest. The
parties agree that Fidelity National Title Insurance Company, 40 N. Central
Avenue, Suite 2850, Phoenix, Arizona 85004, Attention: Ms. Mary Garcia (the
"Title Company") shall act as title company with respect to this transaction and
that the Closing shall occur through Title Company.
(b) The balance of the Purchase Price shall be paid in cash and
delivered at Closing.
3. Seller's Representations and Warranties. Seller makes the following
representations and warranties to Buyer which shall survive the Closing:
(a) Seller is a limited liability company in good standing under the
laws of the State of Kansas, and the person executing this Contract on behalf of
Seller is authorized to do so under the agreements governing the operation of
Seller's business.
(b) Seller is not a foreign person selling property as described in
the Foreign Investment in Real Property Tax Act ("FIRPTA") and agrees to deliver
an affidavit at Closing reflecting that Seller is not such a foreign person and
provide Seller's tax identification number ("Tax Affidavit").
(c) The improvements on the Property shall be completed in a good and
workmanlike manner, lien free, in accordance with the requirements of the Lease
and the requirements of governmental authorities.
(d) To Seller's actual knowledge, no notice of violation has been
issued to and received by Seller 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.
(e) To Seller's actual knowledge there are no suits or claims pending
or 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) This transaction will not in any way violate any other agreements
to which Seller is a party, and no consent of any third party is required in
order for Seller to enter into this Contract and perform Seller's obligations
hereunder.
(g) Without conducting any independent inquiry or investigations,
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.
(h) 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 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.
(i) Should Seller receive notice or knowledge of any information
regarding any of the matters set forth in this Section 3 after the Effective
Date and prior to Closing, Seller will immediately notify Buyer of the same in
writing.
All representations made in this Contract by Seller shall survive the
execution and delivery of this Contract and Closing for a period of six (6)
months.
Except as set forth above in this Section 3 and as otherwise
specifically represented in this Contract, the Property shall be conveyed
"AS-IS" and "WHERE-IS" AND SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OR
GUARANTIES, OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, CONCERNING THE
VALUE, CONDITION, MERCHANTABILITY, MARKETABILITY, PROFITABILITY, ENFORCEABILITY,
OR FITNESS OF THE PROPERTY OR THE LEASE.
4. Seller's Documents. (a) Seller shall, as soon as possible and not later
than FIFTEEN (15) days from the date this Contract is executed by Buyer, at
Seller's expense, deliver to Buyer legible, accurate and complete copies of the
following which are in Seller's possession (the "Delivery Items"): The Lease; a
standard form ALTA Owner's Title Commitment ("Title Commitment") covering the
Property and issued by the Title Company along with copies of all documents
referred to as exceptions therein; any existing surveys and site plans of the
Property; any environmental report; any existing soil reports in Seller's
possession or control. After completion of construction, Seller agrees to
deliver to Buyer the following: any engineering reports, architectural reports
and reviews, construction drawings, final
plans and specifications, and a certificate of occupancy.
(b) Upon substantial completion of the improvements on the Property, Seller
shall deliver to Buyer an ALTA as-built survey ("Survey") of the Property and
improvements. The Survey shall by certified to Seller, Buyer and the Title
Company, incorporate the Title Commitment and Buyer's survey requirements and
form of certification attached hereto as EXHIBIT F and made a part hereof, and
(i) plat and identify all easements, boundaries, restrictions, set-backs,
utilities, parking (but not the number of parking spaces), improvements,
driveways, streets, rights of way, and curb cuts, (ii) show thereon a legal
description of the Property, (iii) disclose whether the Property is in a flood
plain, (iv) show the total square feet of the Property, and (v) provide
recording information for all recorded documents, and (v) otherwise be in
sufficient detail to allow Buyer to remove the standard exceptions for surveys
in the title policy.
5. The Lease. (a) Seller shall perform (i) all obligations of the Landlord
under the Lease to be performed on or before the Closing, and (ii) all of
Seller's Construction Obligations (hereinafter defined) to be performed before
or after the Closing Date; and Seller shall indemnify and hold Buyer harmless
from and against all costs, expenses, claims, demands and liabilities which (1)
accrue or arise prior to the Closing Date under the Lease, and (2) accrue or
arise at any time, before or after the Closing Date, from any failure to perform
Seller's Construction Obligations. Buyer shall perform all obligations of the
Landlord under the Lease to be performed after the Closing Date except Seller's
Construction Obligations, and Buyer shall indemnify and hold Seller harmless
from and against all costs, expenses, claims, demands and liabilities which
accrue or arise after the Closing Date under the Lease except those which accrue
or arise from any failure to perform Seller's Construction Obligations.
(b) All obligations of the Landlord under the Lease relating to
construction, completion and delivery to the Tenant of the building and all
other improvements to be constructed by the Landlord under the Lease
(collectively, the "Improvements") and delivery to Tenant of
construction-related items are herein collectively called "Seller's Construction
Obligations." Seller shall be solely responsible, at Seller's sole cost and
expense, for performance and completion of Seller's Construction Obligations,
whether performed or to be performed before or after the Closing Date. Seller
covenants and agrees with Buyer that Seller will diligently and timely perform
all of Seller's Construction Obligations and will pay all costs and expenses
thereof.
(c) As soon as possible after completion of the Improvements, Seller
shall deliver to Buyer and the Title Company, final, unconditional lien waivers
for all work and materials incorporated into the Improvements and such other
documentation as may be reasonably required by Escrow Agent to allow for the
deletion of the mechanics' lien exception from the Title Policy (defined below).
(d) Seller agrees to assign all construction warranties to Buyer.
6. Title Insurance. Buyer shall deliver to Seller its written objections to
any matters shown or indicated in the Title Commitment or the existing survey
prior to expiration of the Due Diligence Period. Items identified in the Title
Commitment or the Survey but not objected to in a timely manner shall be deemed
"Permitted Exceptions" (defined hereafter). Seller shall have until Closing to
remove all such defects or objections to Buyer's reasonable satisfaction. If the
Title Commitment is amended to include new exceptions that are not set forth in
a prior Title Commitment, Buyer shall have until the later of (i) the expiration
of the Due Diligence Period, or (ii) the date SEVEN (7) DAYS after Buyer's
receipt of the amended Title Commitment and copies of the documents identified
in the new exceptions or new requirements, within which to deliver to Seller its
written objections to any such new exceptions. Seller shall notify Buyer in
writing within FIVE (5) DAYS after receiving Buyer's written objections if
Seller does not intend to remove (or endorse over) any such objection. Seller's
lack of response shall be deemed as Seller's refusal to remove the objectionable
exceptions (or obtain title insurance endorsements over said objections, if
acceptable to Buyer) prior to Closing. In the event Seller is unable or
unwilling to cure or remove such objections to Buyer's reasonable satisfaction
prior to or at Closing, Buyer may, at its option, terminate this Contract and
receive a full refund of the Deposit or waive its objections and proceed to
Closing. Effective as of the date and time of recording of the Deed, there shall
be issued to Buyer by the Title Company an extended coverage ALTA Owner's Title
Insurance Policy
(the "Title Policy") in the amount of the Purchase Price. The Title Policy shall
insure good and marketable fee simple title to the Property. The Title Policy
shall contain as exceptions to title only those matters approved or waived by
Buyer ("Permitted Exceptions"). The costs and expenses of the standard coverage
Title Policy shall be paid by Seller and Buyer shall be responsible for the
additional cost of an extended coverage policy and for all endorsements.
7. Due Diligence Period. In addition to Seller's performance of its
obligations, including the delivery of all documents at Closing, Buyer's
obligation to purchase the Property is subject to Buyer's satisfaction in its
sole discretion with all inspections, the condition of the Property, the Lease,
and any other matters pertaining to the Property (other than Seller's
Construction Obligations), by no later than THIRTY (30) DAYS after the later of
(i) Buyer's receipt of the Delivery Items, and (ii) the Effective Date (the "Due
Diligence Period"). In the event Buyer fails to deliver its written notice of
acceptance of the Property at any time at or before 5:00 p.m. Phoenix, Arizona
time on the last day of the Due Diligence Period, this Contract shall be deemed
to be terminated and Buyer shall receive a return of its Deposit. In the event
Buyer does notify Seller in writing of its acceptance of the Property prior to
expiration of the Due Diligence Period, the Deposit shall be non-refundable,
subject to Seller's performance of its obligations herein and except as
otherwise specifically set forth in this Contract. In the event either party
terminates this Contract pursuant to the rights under this Contract, Buyer shall
return all Delivery Items to Seller.
8. Additional Conditions Precedent. Buyer's obligation to purchase the
Property and pay the Purchase Price is expressly conditioned upon (a) the
Improvements being completed in accordance with all requirements of the Lease,
(b) Tenant accepting the Leased Premises, (c) Tenant paying its first month of
base rent under the Lease, (d) no later than THIRTY (30) DAYS prior to Closing,
Tenant executing and delivering to Seller and Buyer an estoppel certificate in
form and substance reasonably acceptable to Buyer, naming Buyer (or its
designee) and Wachovia Bank, National Association as addressees, and without
identifying any remaining unfinished punch list items unless Seller agrees to
escrow 125% of the estimated completion costs of such items and diligently
completes same after Closing (the "Tenant Estoppel Certificate"); and (e) no
later than FIVE (5) BUSINESS DAYS prior to Closing, Tenant executing and
delivering to Seller and Buyer a subordination, non-disturbance and attornment
agreement, in form and substance reasonably acceptable to Tenant, for the
benefit of Wachovia Bank, National Association.
9. Closing. This Contract shall close on or before (a) THIRTY (30) DAYS
after expiration of the Due Diligence Period, and (b) satisfaction of the
conditions described in Section 8 above, or such earlier date as may be agreed
upon by the parties ("Closing Date"). Buyer may extend the Closing Date an
additional ten (10) days upon delivery of written notice to Seller and Title
Company prior to the original Closing Date and by depositing an additional
non-refundable $50,000.00 Deposit (which shall make the entire $100,000.00
non-refundable, subject to Seller's performance of its obligations). Seller
agrees to provide Buyer with at least ten (10) days written notice of
satisfaction of all conditions to Closing. The Closing shall occur in escrow at
the Title Company. Seller and Buyer shall equally share all escrow fees and
closing costs but Buyer shall be fully responsible for all fees and expenses in
connection with its lender and recording the deed, and Seller shall be fully
responsible for the costs of releasing all monetary liens, judgments, and other
encumbrances that are to be released and of recording such releases. Each party
shall be responsible for and shall pay for its own legal fees. At Closing:
(a) Seller shall deliver to Buyer the following, and Buyer's
obligations to perform under this Contract and to close escrow are expressly
subject to delivery of same:
(i) A Special Warranty Deed in the form attached hereto as
Exhibit A (the "Deed"), duly executed and acknowledged by Seller, conveying fee
simple title to Buyer free and clear of any lien, encumbrance or exception other
than the matters of record, the Lease, unpaid taxes and assessments not yet due
and payable, all matters visible upon physical inspection, and matters disclosed
by an accurate survey. Seller shall not attach the Permitted Exceptions to the
Deed nor warrant that the exceptions disclosed in the title commitment are the
only matters of record.
(ii) A Bill of Sale and Assignment in the form attached hereto as
Exhibit B (the "Bill of Sale") acceptable to Buyer and Seller (but without
recourse or warranty) duly executed and acknowledged by Seller,
conveying to Buyer all personalty, permits and construction warranties, if any.
(iii) An assignment of Seller's interest as landlord in and to
the Lease in the form attached hereto as Exhibit C (the "Lease Assignment") duly
executed and acknowledged by Seller.
(iv) The Title Policy.
(vi) Possession of the Property subject to the Tenant's rights
under the Lease.
(vi) The original Lease.
(vii) Mechanic's lien and extended coverage affidavit of Seller.
(viii) The FIRPTA Tax Affidavit.
(ix) Notice letter to Tenant advising of the sale and authorizing
rent to be paid to Buyer after Closing.
(x) Copies of all completed construction drawings, building
plans, architectural drawings, warranties, and relevant information pertaining
to the Property in Seller's possession.
(xi) The Tenant Estoppel Certificate.
(xii) The delivery by Seller to Buyer at Closing 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 Purchase Price.
(xiii) The delivery by Seller to Buyer of the Certificate of
Occupancy for the improvements located at the Property.
(xiv) The delivery by Seller to Buyer of an architect's affidavit
in the form attached hereto as Exhibit D.
(xv) The 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 Closing.
If the foregoing conditions have not been satisfied by the
specified date or Closing and such failure continues for five (5) days after
written notice to Seller, then Buyer shall have the right, at Buyer's sole
option, by giving written notice to Seller and Title Company, to cancel this
Contract, whereupon the Deposit shall be paid immediately by Title Company to
Buyer and, except as otherwise provided in this Contract, neither of the parties
shall have any further liability or obligation under this Contract.
(b) Buyer shall deliver to Seller the following:
(i) The consideration required pursuant to Section 2 above, in
cash or by Buyer's certified or cashier's check in U.S. funds available
immediately to Seller.
(ii) The Lease Assignment, duly executed and acknowledged by
Buyer.
10. Entry on Property. Subject to the rights of Tenant, Buyer, its agents,
employees, and representatives, are hereby granted the right to immediately
enter on all or any portion of the Property for the purpose of making any
structural, mechanical, engineering, geological, ecological, environmental,
soil, surveying, or other inspections, tests, or work as Buyer, in its
discretion, may deem necessary or appropriate. Buyer agrees to indemnify and
hold Seller harmless
for all liabilities, damages and claims arising out of injury to persons or
property as a result of Buyer's inspection. Buyer's obligations hereunder shall
survive termination and Closing of this Contract.
11. Prorations and Taxes. Rental income, real property taxes, installments
of current year special assessments, utility charges and other operating income
or expenses shall be prorated to the Closing, based upon actual days involved.
Seller shall be responsible for all taxes, installments of special assessments,
and any other charges and shall receive all income accruing from the Property
for any period prior to the date of Closing. Buyer shall be responsible for all
taxes, installments of special assessments, and any other charges and shall
receive all income accruing from the Property as of the date of Closing and for
any period after the date of Closing. The parties agree to make a good faith and
equitable allocation of all income and expenses and other charges addressed in
the Lease at least ten (10) days prior to Closing, and such allocation shall be
reflected on the closing statement to be agreed upon and signed by the parties
at Closing. If after Closing, 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 11 shall
survive Closing except that no adjustment shall be made later than TWO (2)
MONTHS after Closing 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. If escrow fails to close because of Seller's default, Seller
shall be liable for any cancellation charges of Title Company. If escrow fails
to close because of Buyer's default, Buyer shall be liable for any cancellation
charges of Title Company. If escrow fails to close for any other reason, Seller
and Buyer shall each be liable for one-half of any cancellation charges of Title
Company.
12. Notices. All notices, deliveries or other communications required or
permitted to be given hereunder shall be in writing and shall be faxed, hand
delivered, mailed by registered or certified mail, postage prepaid, or sent by
overnight delivery service, to the following addresses:
Seller: DB-KS, LLC Buyer: Series C, LLC
128 S. Dellrose 2555 E. Camelback Road, Suite 400
Wichita, Kansas 67218 Phoenix, Arizona 85016
Attn: Thomas W. Boyd Attn: Legal Department
Fax #: (316) 685-9898 Fax #: 602-778-8780
Copy to: Bennett Wheeler Lytle & Cartwright, PLC
3838 N. Central Ave., Suite 1120
Phoenix, Arizona 85012
Attn: J. Craig Cartwright
Fax #: 602-266-9119
13. Brokers. The parties each represent and warrant to the other that no
real estate broker, salesman or finder has been involved in this transaction
except for JEFF BERG OF CB RICHARD ELLIS (Seller's broker). Seller shall be
responsible for payment of the real estate commission at Closing pursuant to a
separate agreement with the Seller's broker. If any other claim for brokerage
fees in connection with this transaction is made by any broker, salesman or
finder claiming to have dealt through or on behalf of one of the parties hereto,
such party shall indemnify, defend and hold harmless the other party hereunder
from and against all liabilities, damages, claims, costs, fees and expenses
whatsoever with respect to said claim for brokerage fees. THE PRINCIPALS OF
SELLER ARE REAL ESTATE BROKERS LICENSED IN THE STATE OF KANSAS.
14. Risk of Loss. As between Buyer (and its assigns) and Seller, all risk
of loss shall be borne by Seller until the date of Closing. Seller agrees to
give Buyer prompt written notice of any fire or other casualty affecting the
Property between the date hereof and Closing or of any actual or threatened
taking or condemnation of all or any portion of the Property. If prior to the
Closing there shall occur any such damage, or actual or threatened taking or
condemnation, then in any such event Buyer may at its option terminate this
Contract by notice to Seller within TWENTY
(20) DAYS after Buyer has received the notice referred to above or at the
Closing, whichever is earlier. If Buyer does not so elect to terminate this
Contract, then the Closing shall take place as provided herein without abatement
of the Purchase Price, and there shall be assigned to Buyer at the Closing all
of Seller's interest in and to all insurance proceeds or condemnation award.
15. Default and Remedies. If Seller defaults hereunder, Buyer may (a)
terminate this Contract by written notice delivered to Seller at or prior to the
Closing, whereupon the Deposit shall immediately be returned to Buyer, or (b)
pursue an action for specific performance against Seller. Notwithstanding the
foregoing, if specific performance is unavailable as a remedy to Buyer because
of Seller's affirmative acts which constitute a default herein, Buyer shall be
entitled to pursue damages against Seller in an amount not to exceed $50,000. If
Buyer defaults hereunder, Seller, as Seller's sole and exclusive remedy for such
default, shall be entitled to terminate this Contract by notice to Buyer and
retain Buyer's Deposit, it being agreed between Buyer and Seller that such sum
shall be liquidated damages for a default of Buyer hereunder because of the
difficulty, inconvenience, and the uncertainty of ascertaining actual damages
for such default. If either Buyer or Seller obtains a judgment against the other
party, reasonable attorney's fees incurred by the prevailing party, as fixed by
the court, shall be included in such judgment and paid by the non-prevailing
party.
16. Exchange. Each party hereby consents to the other party including this
transaction as part of a tax deferred exchange under Section 1031 of the
Internal Revenue Code and agrees to reasonably cooperate with the other party,
at no cost to the cooperating party, including the execution of any standard
notices and consent forms required by law, provided such forms shall not, in the
reasonable estimation of the non-exchanging party, expand or increase any
obligations or liabilities of such non-exchanging party hereunder. The parties
acknowledge and agree that assigning its rights to a third party intermediary
for purposes of effecting the exchange shall not release such party of its
obligations hereunder.
17. Assignment. Buyer may assign its rights under this Contract 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 Contract, including specifically, without limitation, all obligations
concerning the Deposit. Buyer may also designate someone other than Buyer, as
grantee and/or assignee, under the conveyance documents by providing written
notice of such designation at least FIVE (5) DAYS prior to Closing. No
assignment shall release or otherwise relieve Buyer from any obligations
hereunder.
18. Miscellaneous. This Contract shall be construed and governed in
accordance with the laws of the State of Kansas. All the parties to this
Contract have participated fully in the negotiation and preparation hereof; and
accordingly, this Contract shall not be more strictly construed against any one
of the parties hereto. In the event any term or provision of this Contract is
determined by an appropriate judicial authority to be illegal or otherwise
invalid, such provision shall be construed as such authority determines, and the
remainder of this Contract shall be construed to be in full force and effect. In
construing this Contract, the singular shall be held to include the plural, the
plural shall be held to include the singular, the use of any gender shall be
held to include every other and all genders, and captions and paragraph headings
shall be disregarded. All exhibits attached hereto are incorporated in, and made
a part of, this Contract. This Contract constitutes the entire understanding and
agreement between the parties, and there are no understandings, agreements,
representations or warranties except as specifically set forth herein. This
Contract may not be changed, altered or modified except by an instrument in
writing signed by the party against whom enforcement such change would be
sought. This Contract shall be binding upon the parties hereto and their
respective successors and assigns. Time is of the essence of this Contract. All
obligations hereunder which by their nature or by any provision of this Contract
involve performance after the Closing Date, shall survive the Closing and
delivery of the Deed. In the event Buyer assigns this Contract to another party,
Buyer shall remain obligated to perform its obligations hereunder.
19. 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 Contract to a publicly
registered company ("Registered Company") promoted by Buyer. In the event
Buyer's assignee under this Contract is a Registered Company, such Registered
Company will be required to make certain filings with the U.S. Securities and
Exchange Commission required under SEC Rule S-X 3-14 (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 with financial
information regarding the Property for the Audited Year requested by Buyer
and/or Buyer'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 prior to the
expiration of the Due Diligence Period, and Seller agrees to cooperate with
Buyer and Buyer's auditors regarding any inquiries by Buyer or Buyer's auditors
following receipt of such information, including delivery by Seller of an
executed representation letter prior to Closing in form and substance requested
by Buyer's auditors ("SEC Filings Letter"). A sample SEC Filings Letter is
attached to the Purchase Contract as Exhibit E; however, Buyer'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 19 shall survive the Closing
for a period of one (1) year. Buyer shall be solely responsible for all
reasonable costs incurred by Seller in preparing such documentation and shall
provide Seller with adequate notice and opportunity to review and prepare such
information and documentation, and shall provide Seller with reasonable
assistance and counsel in preparing such documentation.
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS CONTRACT ON THE DATE SHOWN
BELOW. THIS CONTRACT MAY BE SIGNED IN MULTIPLE COUNTERPART ORIGINALS.
DB-KS, LLC
By /s/ Thomas W. Boyd
-------------------------------------
Thomas W. Boyd, Member
Date: 10-11-05
SERIES C, LLC
By /s/ John M. Pons
-------------------------------------
John M. Pons, Authorized Officer
Date: October 11, 2005
FIRST AMENDMENT TO REAL ESTATE CONTRACT
This First Amendment to Real Estate Contract (this "Amendment") is
effective as of the 25th day of October, 2005, by and between SERIES C, LLC, as
Buyer, and DB-KS, LLC, as Seller, and provides as follows:
WHEREAS, Buyer and Seller entered into that certain Real Estate Contract,
effective as of October 11, 2005 (the "Agreement"), with respect to the improved
property located at 9310-9320 MARSHALL DRIVE, LENEXA, JOHNSON COUNTY, KANSAS;
and
WHEREAS, Seller and Buyer desire to amend the Agreement to revise the
Purchase Price of the Property and the definition of Closing. All capitalized
terms used herein shall have the meaning given to them in the Agreement.
NOW, THEREFORE, the parties agree as follows:
1. The Purchase Price set forth in Section 2 of the Agreement is hereby
revised from "$3,280,000.00" to "$3,270,000.00".
2. The first sentence of Section 9 of the Agreement is hereby amended and
restated as follows:
"This Contract shall close on or before the later to occur of the
following: (a) JANUARY 5, 2006, and (b) satisfaction of the conditions
described in Section 8 above ("Closing Date")."
3. Except as provided herein, all terms and conditions of the Agreement
shall remain in full force and effect.
4. This Amendment shall inure to the benefit of and shall be binding upon
the parties hereto and their respective successors and assigns.
5. The parties agree that this Amendment may be executed by the parties in
one or more counterparts and each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date set forth above.
BUYER: SERIES C, LLC
By: /s/ John M. Pons
------------------------------------
John M. Pons
Its: Authorized Officer
SELLER: DB-KS, LLC
By: /s/ Thomas W. Boyd
------------------------------------
Thomas W. Boyd, Member
SECOND AMENDMENT TO REAL ESTATE CONTRACT
This Second Amendment to Real Estate Contract (this "Amendment") is
effective as of the 16th day of November, 2005, by and between SERIES C, LLC, as
Buyer, and DB-KS, LLC, as Seller, and provides as follows:
WHEREAS, Buyer and Seller entered into that certain Real Estate Contract,
effective as of October 11, 2005, as amended by that certain First Amendment to
Real Estate Contract dated as of October 25, 2005 (the "Agreement"), with
respect to the improved property located at 9310-9320 MARSHALL DRIVE, LENEXA,
JOHNSON COUNTY, KANSAS; and
WHEREAS, Seller and Buyer desire to amend the Agreement to revise the
expiration date of the Due Diligence Period. All capitalized terms used herein
shall have the meaning given to them in the Agreement.
NOW, THEREFORE, the parties agree as follows:
1. The first sentence of Section 7 of the Agreement is hereby amended and
restated as follows:
"In addition to Seller's performance of its obligations, including the
delivery of all documents at Closing, Buyer's obligation to purchase the
Property is subject to Buyer's satisfaction in its sole discretion with all
inspections, the condition of the Property, the Lease, and any other
matters pertaining to the Property (other than Seller's Construction
Obligations), by no later than NOVEMBER 23, 2005 (the "Due Diligence
Period")."
2. Except as provided herein, all terms and conditions of the Agreement
shall remain in full force and effect.
3. This Amendment shall inure to the benefit of and shall be binding upon
the parties hereto and their respective successors and assigns.
4. The parties agree that this Amendment may be executed by the parties in
one or more counterparts and each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date set forth above.
BUYER: SERIES C, LLC
By: /s/ John M. Pons
------------------------------------
John M. Pons
Its: Authorized Officer
SELLER: DB-KS, LLC
By: /s/ Thomas W. Boyd
------------------------------------
Thomas W. Boyd, Member
ASSIGNMENT OF REAL ESTATE CONTRACT
DB-KS, LLC, AS SELLER
AND
SERIES C, 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 Real Estate Contract ("Purchase Agreement") described
herein, to ASSIGNEE and its successors and assigns. The Purchase Agreement is
described as follows:
DATE OF AGREEMENT: October 11, 2005
ORIGINAL BUYER: Series C, LLC
ASSIGNED TO: Cole DB Lenexa KS, LLC
PROPERTY ADDRESS: 9310-9320 Marshall Drive, Lenexa, Kansas
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 10th day of January, 2006.
ASSIGNOR: ASSIGNEE:
SERIES C, LLC, COLE DB LENEXA KS, 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
Authorized Officer Senior Vice President