EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is entered into this
30th day of April, 2001 to be effective as of the 1st day of April, 2001 (the
"Effective Date") between and among Sheridan Investments, LLC (the "Seller"), a
Colorado limited liability company, Sheridan Plaza at Inverness, LLC ("Plaza"),
a Colorado limited liability company, AmeriVest Properties Inc. ("AmeriVest"), a
Maryland corporation, and AmeriVest Inverness Inc. ("Purchaser"), a Colorado
corporation. For purposes of this Agreement, each of Seller, Plaza, AmeriVest
and Purchaser may be referred to individually as a "Party" and all of Seller,
Plaza, AmeriVest and Purchaser may be referred to collectively as the "Parties."
Recitals
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A. Seller owns a 100 percent preferred limited liability company membership
interest in Plaza (the "Plaza Interest") whose sole asset is a fee simple
interest in two multi-tenant office buildings located at 383 and 385 Inverness
Drive South, Denver, Colorado, consisting of approximately 118,000 total
rentable square feet on approximately 6.7 acres of land with 403 total parking
spaces, including 78 underground parking spaces that is known as "Sheridan Plaza
at Inverness" (the "Property"). The Property is more particularly described in
Exhibit A attached to and made a part of this Agreement.
B. AmeriVest owns all the outstanding shares of Purchaser and owns
additional real properties consisting of multi-tenant office buildings and other
properties.
C. Purchaser owns a 9.639 percent preferred limited liability company
membership interest in the Seller (the "LLC Interest").
D. Purchaser desires to purchase from Seller, and Seller desires to sell to
Purchaser the Plaza Interest pursuant to the terms of this Agreement.
Agreement
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In consideration of the premises and of the mutual covenants contained in
this Agreement, the Parties agree as follows:
1. Purchase and Sale of Shares.
1.1 Purchase and Sale. Subject to the terms and conditions of this Agreement,
Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from
Seller, the Plaza Interest.
1.2 Purchase Price. The purchase price (the "Purchase Price") for the Plaza
Interest shall be the "Net Equity Value of Plaza" (defined as the fair market
value of the balance sheet of Plaza as of March 31, 2001, set forth in Exhibit
B), which equals $6,928,646, payable at "Closing" (hereafter defined) as
follows: (a) Seller shall redeem Purchaser's LLC Interest for an amount equal to
9.639 percent of the "Net Equity Value of Seller" (defined as the fair market
value of the balance sheet of Seller as of March 31, 2001, set forth in Exhibit
C) which equals $705,934; and (b) AmeriVest shall deliver the balance of the
Purchase Price in the form of 1,121,209 shares of the restricted common stock
(the "Common Stock") of AmeriVest at the rate of $5.55 per share (the "AmeriVest
Shares"). Seller will hold the AmeriVest Shares for at least one year from the
"Closing Date" (hereafter defined) prior to making any transfers of the
AmeriVest Shares. Commencing upon the first anniversary of the Closing Date, not
more than 50 percent of the AmeriVest Shares may be transferred to Seller's
members at the discretion of Sheridan Development, LLC, Seller's sole Manager
("Sheridan Development"). Commencing on the second anniversary of the Closing
Date and at any time or times to anyone thereafter, all or some portion or
portions of the remaining AmeriVest Shares held by Seller may be transferred at
Sheridan Development's discretion. All such transfers of the AmeriVest Shares by
Seller shall be in compliance with all applicable federal and state securities
law registration requirements or exemptions therefrom.
1.3 Purchase Price Adjustment. If the Net Operating Margin (as defined below)
from Plaza for the year ending December 31, 2001 is not at least $581,400, then
Seller shall pay to Purchaser an amount (the "Adjustment Amount") equal to 37.5
percent of the amount by which $581,400 exceeds the Net Operating Margin for the
year ending December 31, 2001. For purposes of this Agreement, Net Operating
Margin shall mean, for the year ending December 31, 2001, the net income for
Plaza determined in accordance with generally accepted accounting principles
("GAAP") adjusted as follows:
(a) increased by depreciation and amortization expenses,
(b) increased by the amount by which the actual cash received during
the period as rental payments exceeds the amount required to be accrued under
GAAP as straight line rental income or decreased by the amount by which the
actual cash received during the periods as rental payments is less than the
amount required to be accrued under GAAP as straight line rental income,
(c) reduced by the principal amortization on the Mortgage Loan (as
defined in Section 2 below), and
(d) reduced by lender reserves for capital expenditures required by
the Mortgage (as defined in Section 2 below).
On or before April 1, 2002, management of AmeriVest will provide a written
determination of the Net Operating Margin to each of the directors of AmeriVest.
At the request of a majority of the disinterested directors of AmeriVest, this
determination of Net Operating Margin shall be submitted to AmeriVest's
independent auditors (the "Auditors") for approval. On or before April 26, 2002
(or such later date that the Auditors complete a requested approval and review
process), Purchaser shall provide Seller in writing with Purchaser's
determination of the Net Operating Margin (the "Determination Notice") in
reasonable detail showing the adjustments described in the definition of Net
Operating Margin and also stating whether the determination of Net Operating
Margin was approved by the Auditors. If the determination of Net Operating
Margin was not approved by the Auditors, and Seller objects to the calculation
of Net Operating Margin, Seller shall notify Purchaser of the objection in
writing (the "Objection Notice") within five business days after receipt of the
Determination Notice. Within five business days of receiving the Objection
Notice, Purchaser shall submit the determination and objection to the Auditors
and request that the Auditors approve the determination or revise the
determination within 10 business days after submission to the Auditors. A copy
of the determination or approval of Net Operating Margin by the Auditors shall
be delivered by Purchaser to Seller promptly upon receipt by Purchaser. The
determination of Net Operating Margin as approved or revised by the Auditors
(the "Auditors' Determination") shall be considered as final for purposes of
this Section 1.3. Seller shall deliver to Purchaser the Adjustment Amount within
five business days after the delivery of the Determination Notice if no
Objection Notice is timely given or within five business days after the delivery
of the Auditors' Determination if the Objection Notice is timely given.
2. Title. Seller shall deliver to Purchaser a true and complete copy of Plaza's
title insurance policy on the Property ("Title Policy") on or before Closing.
Purchaser acknowledges that Seller has requested Chicago Title Insurance Company
to issue the Title Policy as an ALTA Owner's Extended Coverage Policy insuring
title to the Property in fee simple to Plaza for the amount of $22,000,000.
Purchaser acknowledges and agrees that the Property shall be conveyed subject to
the exceptions listed on the Title Policy and the Deed of Trust, Assignment of
Leases and Rents, Security Agreement and Fixture Filing (the "Mortgage") on the
Property securing a loan in the principal amount of $14,975,000 from Teachers
Insurance and Annuity Association to Plaza pursuant to the Promissory Note dated
December 15, 2000 for the principal amount of $14,975,000 (the "Mortgage Loan").
3. Environmental Audit. Seller represents to Purchaser that Seller has delivered
to Purchaser a true and correct copy of the Phase I Environmental Site
Assessment (including asbestos investigation) for the Property dated October 18,
1999 and Phase I Environmental Site Assessment (including asbestos
investigation) for the Property dated December 14, 2000 (collectively, the
"Phase I Reports"), the receipt of which is acknowledged by Purchaser. Purchaser
shall have the right to obtain, at the cost and expense of Purchaser, an update
to the Phase I Reports (the "Update"). In the event that an Update indicates
that hazardous waste or materials or non-hazardous materials that are controlled
by the Colorado Department of Public Health and the Environment or by the United
States Environmental Protection Agency are revealed at the Property or
historical uses as shown by the Update that would indicate the possible presence
of such waste or materials, and these matters were not indicated in the Phase I
Reports, or the Update indicates that any of Seller or Plaza is in violation of
any local, state or federal environmental laws, rules or regulations, then
Seller shall reimburse Purchaser for the cost and expense of obtaining the
Update and Purchaser shall have the right to object to matters disclosed in the
Update in accordance with Section 7.6 of this Agreement.
4. Survey. Seller represents to Purchaser that Seller has delivered to Purchaser
a true and correct copy of a current land title survey of the Property (the
"Survey") updated according to the ALTA/ACSM "Minimum Standard Detail
Requirements" of an urban survey by a land surveyor licensed in the State of
Colorado, the receipt of which is acknowledged by Purchaser. Purchaser shall
have the right to object to any matters disclosed in the Survey.
5. Warranty as to Leases. Each of Seller and Plaza warrants to Purchaser and
AmeriVest that the attached Exhibit D is a complete list of all leases,
tenancies, rental agreements, and concession agreements presently encumbering
the Property; and that:
No person, firm, or corporation has any title, interest, or right to
possession of the Property or any portion of the Property as a lessee,
tenant, or concessionaire of Seller or Plaza except as shown on Exhibit D,
and the names as set forth in Exhibit D are the names of all tenants,
lessees and concessionaires which have a right of possession at the
Property, whether or not under a written instrument (which shall be
specified), as of each of the Effective Date and the date this Agreement is
signed by Seller; the date set forth for each tenant, lessee and
concessionaire is the date of the lease, tenancy, rental or concessionaire
agreement pursuant to which the tenant, lessee or concessionaire occupied
the Property as of the Effective Date.
5.1 All the leases, tenancies, rental agreements, and concession agreements
shown on Exhibit D have been entered into by, or have been validly assigned to,
Plaza, are now in full force and effect, and are enforceable by Plaza in
accordance with their respective terms; to the best of Seller's reasonable
knowledge, none of Seller, Plaza, nor any of the tenants, lessees or
concessionaires set forth on Exhibit D is in default in the performance of any
such instrument or agreement; and no tenant, lessee, or concessionaire is
entitled to any rebate, concession, or other benefit except as set forth in the
leases and agreements referred to in Exhibit D.
5.2 The rentals and other sums due or to become due under the leases and
agreements referred to in Exhibit D have not been assigned or encumbered by
Seller or Plaza except as additional security under the Mortgage, and will not
be further assigned, encumbered, or subjected to any liens by Seller or Plaza
prior to the Closing pursuant to this Agreement.
5.3 Until Closing, each of Seller and Plaza shall continue its present rental
efforts at the Property to rent vacant space, provided that after the date of
mutual execution of this Agreement, neither Seller nor Plaza shall execute any
new leases or amend, terminate or accept the surrender of any existing tenancies
or approve any subleases without the prior consent of Purchaser, except that
each of Seller and Plaza is authorized to accept the termination of leases at
the end of their existing terms and provided that if either of Seller or Plaza
does execute a new lease or amend, terminate or accept the surrender of any
existing tenancy or if Seller or Plaza approves any sublease without Purchaser's
consent, Purchaser may terminate this Agreement and this Agreement shall be of
no further force or effect.
6. Warranty as to Insurance. Each of Seller and Plaza warrants that the attached
Exhibit E is a complete list of all insurance policies now insuring the Property
showing (a) the number of each policy; (b) the name of the insurance company
that issued each policy; (c) the term, expiration date and property covered by
each policy; (d) the premiums on each policy; and (e) the general nature and
type of each policy set forth on Exhibit E.
7. Conditions to Performance by Purchaser. Consummation of the transactions
contemplated by this Agreement is contingent upon each of the following:
7.1 Shareholders' Approval. Approval by the majority of AmeriVest's shareholders
of the issuance of the AmeriVest Shares pursuant to this Agreement.
7.2 Leases. Approval by Purchaser of all leases and lease amendments encumbering
the Property. Purchaser acknowledges that Seller has previously made available
to Purchaser for review copies of the leases and lease amendments prior to the
execution of this Agreement.
7.3 Management Records. Approval by Purchaser of true and complete copies of the
Income and Operating Expense Statements and Balance Sheets and any other
management records relating to the Property, the tenants, and Plaza during the
past three years ("Management Records"). Seller represents to Purchaser that
Seller has previously made available to Purchaser for review copies of the
Management Records prior to the execution of this Agreement, the availability of
which review is acknowledged by Purchaser.
7.4 Service Contacts. Approval by Purchaser of all management, service and other
contracts pertaining to the Property ("Service Contracts"). Seller represents to
Purchaser that Seller has previously made available to Purchaser for review
copies of the Service Contracts prior to the execution of this Agreement, the
availability of which review is acknowledged by Purchaser.
7.5 Personal Property. Approval by Purchaser of a list of all personal property
now owned by Plaza and used in connection with the management of the Property
set forth on Exhibit F attached to and made part of this Agreement.
7.6 Permits, Licenses, Etc. Inspection by Purchaser of all permits,
certificates, and licenses, if any, required to operate the Property in the
manner it has been operated by Seller and Plaza ("Permits"). Seller represents
to Purchaser that Seller has previously made available to Purchaser for review
copies of all such Permits, if any, the availability of which review is
acknowledged by Purchaser.
7.7 Inspection. Seller represents to Purchaser that Seller has previously made
available to Purchaser for review all information in Seller's and Plaza's
possession concerning the Property, including without limitation, building
plans, specifications, studies, blueprints, or as-built drawings (if any),
engineering reports (if any), and building component warranties (if any) (the
"Due Diligence Materials"), the availability of which review is acknowledged by
Purchaser. Purchaser or its designee shall have the right to inspect the
physical condition of the Property, at Purchaser's expense, including
inspections of the mechanical, engineering, and structural condition of the
Property, the roof of the Property and pest inspections of the Property.
Purchaser shall be responsible and shall pay for any damage which occurs to the
Property resulting solely from such inspections. Purchaser shall indemnify,
defend, protect, and hold Seller and Plaza harmless from any claims, injuries,
losses, liens, judgments, liabilities, damages, or expenses arising out of or
incurred in connection with Purchaser's inspection of the Property, except to
the extent caused by the negligence or willful misconduct of Seller or Plaza.
7.8 Property Tax. Approval by Purchaser of certificates of all real and personal
property taxes pertaining to the Property. Seller shall deliver copies of said
certificates to Purchaser at or prior to Closing.
7.9 Dividend Reinvestment Plan. Seller shall have enrolled 50% of the AmeriVest
Shares in the AmeriVest Dividend Reinvestment Plan ("DRIP") commencing on the
Closing Date and continuing for a period of two years after the Closing Date as
required by the "Registration Rights Agreement" (defined hereafter) to be
executed by Seller and AmeriVest pursuant to Section 19 of this Agreement.
7.10 Notice and Cure of Unsatisfactory Conditions. If, at any time prior to
Closing, written notice of any unsatisfactory condition from Purchaser is given
to Seller, including any objection to the physical condition of the Property,
any objection to the Due Diligence Materials, any objection to the Title Policy,
any objection to the Survey, or any objection to the Update, Seller shall have
ten business days from its receipt of Purchaser's written notice to cure such
objection. If Seller elects not to cure Purchaser's objection or fails to cure
Purchaser's objection within ten business days of its receipt of Purchaser's
written notice regarding the same, Purchaser may elect to waive its objection
and accept the Property as is, or Purchaser may terminate this Agreement upon
written notice of termination to Seller.
8. Deliveries At Closing.
8.1 Seller's Deliveries. At Closing, Seller shall deliver to Purchaser the
following:
8.1.1 An assignment of all of Seller's right, title, and interest in and to the
Plaza Interest in the form of the Assignment and Assumption Agreement attached
hereto as Exhibit G.
8.1.2 The resignations of all managers and other officers of Plaza effective on
the Closing Date that have been requested in writing by Purchaser to Seller and
Plaza at least ten business days prior to Closing.
8.1.3 The Title Policy.
8.1.4 The consent of Sheridan Development and any other consents and/or
authorizing resolutions required under the operating agreements of Seller and
Plaza to the sale of the Plaza Interest to Purchaser and the admission of
Purchaser to Plaza as a substituted member entitled to 100 percent of the
limited liability company membership interests in Plaza.
8.1.5 An amendment to Seller's operating agreement approved by Seller's members
permitting the conveyance of the Plaza Interest without the subsequent
distribution to the members of the consideration received therefor.
8.1.6 A counterpart of the Registration Rights Agreement fully executed by
Seller as contemplated by Section 19 hereof.
8.1.7 A legal opinion of Isaacson, Rosenbaum, Woods & Levy, P.C. on behalf of
Seller and Plaza, addressed to Purchaser substantially in the form set forth in
Exhibit H, with customary qualifications and assumptions, all to be reasonably
acceptable to Purchaser as a condition of Closing.
8.1.8 At and after Closing, such additional and customary documents necessary to
carry out or complete the transaction set forth in this Agreement.
8.2 Deliveries of Purchaser and AmeriVest. At Closing, Purchaser and AmeriVest
shall deliver to Seller the following:
8.2.1 Payment of the Purchase Price by (a) conveying the LLC Interest, to be
redeemed by Seller by execution of an Assignment and Assumption Agreement in the
form attached hereto as Exhibit I; and (b) delivering a certificate (the
"Certificate"), issued in the name of Seller, representing the number of
AmeriVest Shares determined in accordance with Section 1.2 of this Agreement.
8.2.2 A copy of the corporate resolutions of Purchaser's Board of Directors,
certified by the Secretary of Purchaser, authorizing the appropriate officers of
Purchaser to execute, deliver, and perform this Agreement; and a copy of the
corporate resolutions of AmeriVest's Board of Directors, certified by the
Secretary of AmeriVest, authorizing the the appropriate officers of AmeriVest to
execute, deliver, and perform this Agreement and issue the Certificate to
Seller.
8.2.3 A copy of the shareholder's resolution, approved by the majority of
AmeriVest's shareholders and certified by the Secretary of AmeriVest,
authorizing the issuance to Seller of the number of AmeriVest Shares required
pursuant to Section 1.2 of this Agreement.
8.2.4 A counterpart of the Registration Rights Agreement fully executed by
AmeriVest as contemplated by Section 19 hereof.
8.2.5 A legal opinion letter issued by Patton Boggs LLP substantially in the
form set forth at Exhibit J with customary qualifications and assumptions, all
to be reasonably acceptable to Seller as a condition of Closing.
8.2.6 Documentation reasonably satisfactory to Seller that Purchase and
AmeriVest have obtained approval and consent from the American Stock Exchange to
issue the AmeriVest Shares.
8.2.7 At and after Closing, such additional and customary documents necessary
to carry out or complete the transaction set forth in this Agreement.
9. Closing Date. This transaction shall close ("Closing") within three business
days after AmeriVest's shareholders' approval pursuant to Section 8.2.3 of this
Agreement at a time to be mutually established by Purchaser and Seller (the
"Closing Date"), but in any event not later than June 15, 2001, unless the
Parties agree in writing to an amendment of this Agreement extending the Closing
Date. Closing shall take place at the offices of Purchaser located at 1780 South
Bellaire Street, Suite 515, Denver, Colorado.
10. Closing Costs. At Closing, all parties shall pay their own attorneys' fees
and other costs incurred by each of them in the negotiation and preparation of
this Agreement and the Closing.
11. Casualty Loss. If, prior to Closing, the Property shall be damaged or
destroyed by fire, explosion, disaster, earthquake, accident, disturbance or act
of God (except any damage or destruction caused by Purchaser or its agents,
servants or employees), within five days of becoming aware of such damage or
destruction, Plaza shall deliver to Purchaser and Seller written notice thereof
and the estimated cost of repair, based upon Plaza's reasonable good faith
business judgment. If the Property is substantially damaged, Purchaser may
terminate this agreement upon written notice to Seller. As used herein,
"substantially damaged" means (1) the estimated cost of repairing such damage or
destruction exceeds in the aggregate $100,000, and Seller is unwilling to credit
Purchaser the full amount of the damage at Closing; (2) the casualty materially
and adversely affects access to the Property for more than 30 days; (3) the
casualty would give one or more tenants with an aggregate total rental square
footage of more than 10,000 square feet, the right to terminate their respective
leases; or (4) the casualty would cause the rent of any one or more tenants to
abate for any period of time unless Seller is willing to credit Purchaser for
the full amount of the abated rent at Closing.
12. Representations and Warranties of Seller. Seller hereby represents and
warrants to Purchaser that the following are true and correct as of the
Effective Date and that the following shall be true and correct as of the
Closing Date and for one year thereafter:
12.1 Seller is duly organized, validly existing, and in good standing under the
laws of the State of Colorado and has the power and authority to carry on its
business and to enter into this Agreement and the transactions contemplated
hereby.
12.2 Seller has the power and authority, under its operating agreement or
otherwise, to enter into this Agreement and the transactions contemplated
hereby.
12.3 Seller's execution and performance of this Agreement will be duly
authorized by its managers and members prior to Closing and will not violate any
provision of law or its articles of organization or operating agreement.
12.4 Seller is not party to a contract or agreement or subject to any
restriction that adversely affects Seller's business, property, assets, or
financial condition. Seller is not a party to or otherwise subject to any
contract or agreement which restricts or otherwise affects Seller's right or
ability to undertake the transactions contemplated hereby or the performance of
any of its respective terms.
12.5 To the best of Seller's knowledge, no consent, approval, authorization,
permit or license from any federal, state, or local regulatory authority is
required in connection with the transactions contemplated herein.
12.6 The appraisal of the Property dated March 1, 2001 (the "Appraisal")
provided by Seller to Purchaser was, to the best of Seller's knowledge, prepared
by Cushman and Wakefield of Colorado (the "Appraiser") in accordance with
industry standards and accurately reflects the fair market value of the Property
as of the date of the Appraisal. The information provided by Seller to the
Appraiser in connection with the preparation of the Appraisal was accurate and
complete in all material respects, including but not limited to the information
concerning existing leases, rents, mortgages, operating expenses, and, to the
best of Seller's knowledge, environmental conditions.
12.7 Seller represents and warrants that, to the best of its knowledge, the
Property is in compliance with applicable laws, rules, and regulations
pertaining to health and the environment, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA") and the Resource Conservation and Recovery Act of 1976, as
amended ("RCRA"). Seller further represents and warrants that there are no
facts, conditions or circumstances known to Seller which could result in any
such investigation or inquiry if such facts, conditions and circumstances, if
any, were fully disclosed to the applicable governmental authority. Seller
represents and warrants that, to the best of its knowledge, it is not required
to obtain any permits, licenses, or similar authorizations to construct, occupy,
operate or use any buildings, improvements, fixtures or equipment in connection
with the Property constructed or to be constructed by reason of any
environmental laws, rules or regulations. Seller represents and warrants that it
has no knowledge of any oil, toxic or hazardous substances or solid wastes
having been disposed of or released on the Property, or any asbestos within the
improvements.
12.8 The address set forth below is Seller's true and correct address.
12.9 Seller is the sole beneficial, legal, and record owner of the Plaza
Interest and the sole investment owner of Plaza.
12.10 There are no claims, liens, or other encumbrances on the Property except
the Mortgage and those encumbrances shown on the Title Policy.
12.11 This Agreement constitutes a legal and binding obligation of Seller and is
valid and enforceable against Seller in accordance with its terms, except that
the availability of certain rights and remedies provided for in this Agreement
may be limited by (i) bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium, or other similar laws of general application affecting
the enforcement of Purchaser's rights generally; and (ii) considerations of
public policy and general principles of equity limiting the availability of
equitable remedies, and equitable defenses, regardless of whether enforceability
is considered in a proceeding in equity or at law, including the fact that the
availability of any remedy of specific performance, injunctive, or other
equitable relief is subject to the discretion of the court before which any
proceeding therefor may be brought.
12.12 There are no other restrictions on Seller's right or ability to sell the
Plaza Interest to Purchaser.
12.13 Seller has furnished Purchaser with true and complete copies of the
audited Statements of Assets and Liabilities for each of Plaza and the Property
as of December 31, 1999 and May 31, 2000 and the Property's audited statements
of operations for each of the years ended December 31, 1999 and December 31,
2000 (the "Financial Statements"). The Financial Statements were prepared in
accordance with Seller's and Plaza's books and records and in accordance with
GAAP applied on a consistent basis throughout the periods indicated and fairly
present the financial position of Plaza and the Property as of the dates and for
the periods indicated.
12.14 At least 10 days prior to Closing, Seller shall furnish Purchaser with an
unaudited balance sheet of each of Plaza and the Property as of March 31, 2001,
and an unaudited income statement of each of Plaza and the Property for the
period from January 1, 2001 through March 31, 2001 (the "Updated Financial
Statements"). The Updated Financial Statements shall be prepared in accordance
with Plaza's and the Property's books and records and in accordance with GAAP
applied on a consistent basis throughout the periods indicated, subject to
normal year-end adjustments. Seller has no reason to believe that such
adjustments, other than normal year-end adjustments to depreciation and
amortization, will be substantially in excess of adjustments in prior years
relative to the volume and nature of operations for each of those years. The
Updated Financial Statements in all material respects shall fairly present the
financial position of Plaza and the Property, as of the dates and for the
periods indicated. There are no material liabilities known to Seller (whether
accrued, absolute, contingent, or otherwise) which shall not be described,
shown, or provided for in the financial statements referred to in this section
or otherwise in this Agreement except those arising since the respective dates
of the Updated Financial Statements in the ordinary course of Plaza's business.
Seller further represents that as of the Closing, the Updated Financial
Statements will not vary from the Financial Statements in any material respect.
If there is a material adverse change in the Updated Financial Statements from
the Financial Statements, this Agreement may be terminated prior to Closing by
Purchaser by written notice to Seller.
12.15 Except as otherwise provided in the Registration Rights Agreement to be
executed by Seller and AmeriVest pursuant to Section 19 hereof, Seller
understands that the AmeriVest Shares have not been registered under federal or
state securities laws and are "restricted" securities as defined in Rule 144
under the Securities Act of 1933, as amended (the "1933 Act"). Seller
understands that Seller may not sell, offer for sale, transfer, pledge or
hypothecate the AmeriVest Shares in the absence of an effective registration
statement covering that transaction, under all applicable federal and state
securities laws, unless that transaction is exempt from registration under all
applicable federal and state securities laws, including an exemption under Rule
144 promulgated under the 1933 Act.
12.16 The transactions contemplated by this Agreement will not result in the
acceleration of payment of the Mortgage Loan.
12.17 Neither this Agreement nor any schedule, exhibit, or certificate delivered
or documents executed in accordance with the terms hereof (i) contains any
untrue statement (attributable to Seller) of a material fact or (ii) omits to
state any fact necessary to make the statements contained therein not
misleading. Seller has fully provided Purchaser with all the written information
that Purchaser has requested for the purpose of deciding whether to consummate
the transactions contemplated by this Agreement. Seller agrees that, during the
period between execution of this Agreement and the Closing, Seller will provide
all additional information that Purchaser reasonably requests.
12.18 Seller agrees to notify Purchaser immediately in writing if any of the
foregoing representations or warranties herein are breached or are no longer
accurate at any time prior to and including the Closing Date and during the
one-year period commencing on the Closing Date.
13. Representations and Warranties of Plaza. Plaza hereby represents and
warrants to Purchaser that the following are true and correct as of the
Effective Date and that the following shall be true and correct as of the
Closing Date and for one year thereafter:
13.1 Plaza is duly organized, validly existing, and in good standing under the
laws of the State of Colorado.
13.2 Plaza has the power and authority, under its operating agreement or
otherwise, to execute, deliver, and perform this Agreement and the transactions
contemplated hereby.
13.3 Plaza's execution, delivery, and performance of this Agreement has been
duly authorized and will not violate any provision of law or its articles of
organization or operating agreement.
13.4 The improvements situated on the Property are connected to all public
utility systems (including without limitation the sewer system).
13.5 There are no actions, suits, investigations, or proceedings at law or in
equity by or before any court, governmental instrumentality, commission, or
other agency now pending or, to the best of Plaza's knowledge, threatened
against, or affecting Plaza or Plaza's properties or rights which could
reasonably be expected to result in a material adverse change in Plaza's
business or financial condition. Further, Plaza is not in default with respect
to any order, writ, injunction, or decree of any court or any governmental
agency or department applicable to it.
13.6 Plaza is not a party to or otherwise subject to any contract or agreement
which restricts or otherwise affects Plaza's right or ability to perform its
obligations hereunder.
13.7 Attached as Exhibit K is a list of all of Plaza's bank accounts (the
"Accounts"), including the name and location of the bank holding the Accounts,
the Account numbers, and the authorized signatures on the Accounts.
13.8 No tax liability which is now past due, including without limitation,
income tax liability, of any nature has been asserted against Plaza by any
taxing authority.
13.9 No consent, approval, authorization, permit or license from any federal,
state, or local regulatory authority as to Plaza is required in connection with
Plaza's execution, delivery, or performance of this Agreement.
13.10 To the best of Plaza's knowledge, the improvements situated on the
Property are complete and structurally sound and all mechanical systems
contained therein are adequate for their intended use and are in proper working
condition subject to usual wear and tear and required, ordinary, routine
maintenance. To the best of Plaza's knowledge, the Property does not require any
major repairs.
13.11 To the best of Plaza's knowledge, the information provided by Plaza to the
Appraiser in connection with the preparation of the Appraisal was accurate and
complete in all material respects, including but not limited to the information
concerning existing leases, rents, mortgages, operating expenses, and
environmental conditions.
13.12 Plaza represents and warrants that to the best of its knowledge the
Property is in compliance with applicable laws, rules and regulations pertaining
to health and the environment, including, without limitation, CERCLA and RCRA.
Plaza further represents and warrants that there are no facts, conditions or
circumstances known to Plaza which could result in any such investigation or
inquiry if such facts, conditions and circumstances, if any, were fully
disclosed to the applicable governmental authority. Plaza represents and
warrants that, to the best of its knowledge, Plaza has not obtained and is not
required to obtain any permits, licenses, or similar authorizations to
construct, occupy, operate or use any buildings, improvements, fixtures or
equipment in connection with the Property constructed or to be constructed by
reason of any environmental laws, rules or regulations. Plaza represents and
warrants that Plaza has no knowledge of any oil, toxic, or hazardous substances
or solid wastes having been disposed of or released on the Property, or any
asbestos within the improvements.
13.13 The address set forth below is Plaza's true and correct address.
13.14 Seller is the sole beneficial, legal, and record owner of the Plaza
Interest and the sole investment owner of Plaza.
13.15 There are no claims, liens, or other encumbrances on the Property except
for the Mortgage and the encumbrances set forth on the Title Policy.
13.16 The transactions contemplated by this Agreement will not result in the
acceleration of the payment of any indebtedness of Plaza, including but not
limited to the Mortgage and the Mortgage Loan. A true and complete a copy of
each of the Mortgage and the Mortgage Loan is attached to and made a part of
this Agreement as Exhibit L.
13.17 This Agreement constitutes a legal and binding obligation of Plaza, and is
valid and enforceable against Plaza in accordance with its terms, except that
the enforceability and the availability of certain rights and remedies provided
for in this Agreement may be limited by (i) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium, or other similar laws of general
application affecting the enforcement of Purchaser's rights generally; and (ii)
considerations of public policy and general principles of equity limiting the
availability of equitable remedies, and equitable defenses, regardless of
whether enforceability is considered in a proceeding in equity or at law,
including the fact that the availability of any remedy of specific performance,
injunctive, or other equitable relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
13.18 Neither this Agreement nor any schedule, exhibit, or certificate delivered
or documents executed in accordance with the terms hereof (i) contains any
untrue statement (attributable to Plaza) of a material fact or (ii) omits to
state any fact necessary to make the statements contained therein not
misleading. Plaza has fully provided Purchaser with all the written information
that Purchaser has requested for the purpose of deciding whether to consummate
the transactions contemplated by this Agreement. Plaza agrees that, during the
period between execution of this Agreement and the Closing, Plaza will provide
all additional information that Purchaser reasonably requests.
13.19 Plaza agrees to notify Purchaser immediately in writing if any of the
foregoing representations or warranties herein are breached or are no longer
accurate at any time prior to and including the Closing Date.
14. Representations and Warranties of AmeriVest. AmeriVest hereby represents and
warrants to Seller that the following are true and correct as of the Effective
Date and that the following shall be true and correct as of the Closing Date and
for one year thereafter:
14.1 Existence and Good Standing. AmeriVest is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Maryland.
AmeriVest has the requisite corporate power and authority to own, lease, and
operate its properties and to carry on the business as now conducted and as
presently proposed to be conducted by it. AmeriVest is duly qualified or
licensed to do business and is in good standing in each jurisdiction in which
its business makes such qualification or license required by law, except where
the failure to be so qualified would not have a material adverse effect on
AmeriVest or its operations.
14.2 Capital Stock.
14.2.1 Capital Structure. AmeriVest has total authorized capital of 15,000,000
shares of Common Stock. There are 3,171,381 shares of Common Stock issued and
outstanding. All of the Common Stock outstanding has been duly authorized and
validly issued and is fully paid and non-assessable. There are 11,828,619 shares
of Common Stock authorized and unissued. As of the Closing Date, the number of
shares of Common Stock that are authorized, issued, and outstanding will be the
same as the date hereof, except to the extent additional shares are issued (a)
upon the exercise of outstanding options or warrants, (b) pursuant to options
issuable pursuant to AmeriVest's 1995 Stock Option Plan and 1998 Stock Option
Plan, or (c) pursuant to AmeriVest's Dividend Reinvestment Plan. All outstanding
options and warrants and all options issuable pursuant to AmeriVest's 1995 an
1998 Stock Option Plans are described in the "Public Filings." As used herein,
the term, "Public Filings," refers to all registration statements, annual and
quarterly financial statements, other periodic and current reports, and all
other filings and written disclosures of AmeriVest required to be filed by any
state or federal securities laws or regulations since January 1, 1998. All of
the Common Stock has been issued in compliance with all applicable federal and
state securities laws. Except as previously disclosed in the Public Filings, and
other than the Registration Rights Agreement to be executed by Seller and
AmeriVest at Closing as provided in Section 19 hereof, there are no outstanding
subscriptions, options, warrants, rights, calls, conversion or exchange rights,
rights of first refusal, contracts, commitments, proxies, voting trusts or
agreements, plans, or other agreements to which AmeriVest is a party relating to
the purchase, issuance, sale, or voting of the Common Stock.
14.2.2 AmeriVest Shares. The AmeriVest Shares will be duly authorized, validly
issued, fully paid, and non-assessable when issued to Seller. The AmeriVest
Shares will not when issued be, nor are they currently, subject to any
preemptive rights at Closing, under statute, AmeriVest's articles of
incorporation, its bylaws, or any agreement to which AmeriVest is or will be a
party or by which AmeriVest is or will be bound. The AmeriVest Shares will be
issued in compliance will all applicable federal and state securities laws.
Other than the Registration Rights Agreement to be executed by Seller and
AmeriVest at Closing as provided in Section 19 hereof, there are no outstanding
subscriptions, options, warrants, rights, calls, conversion or exchange rights,
rights of first refusal, contracts, commitments, proxies, voting trusts or
agreements, plans, or other agreements to which AmeriVest is a party relating to
the purchase, issuance, sale, or voting of the AmeriVest Shares.
14.3 Authorization and Validity of this Agreement. AmeriVest has the requisite
corporate power and authority to execute, deliver, and consummate the
transactions contemplated by this Agreement subject to the approval by the
shareholders of AmeriVest and the American Stock Exchange of the issuance of the
AmeriVest Shares as contemplated by Section 8.2.3. AmeriVest's execution,
delivery, and consummation of the transactions contemplated by this Agreement
have been duly authorized and approved by its Board of Directors and
shareholders and no other corporate action on the part of AmeriVest is necessary
to consummate the transactions contemplated hereby except for the approval of
the shareholders of AmeriVest contemplated by Section 8.2.3. This Agreement has
been duly executed and delivered by AmeriVest and, assuming due execution of
this Agreement by the other parties hereto, is a valid and binding obligation of
AmeriVest enforceable against AmeriVest in accordance with its terms, except
that the enforceability and the availability of certain rights and remedies
provided for in this Agreement may be limited by (i) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium, or other similar laws of general
application affecting the enforcement of Seller's rights generally; and (ii)
considerations of public policy and general principles of equity limiting the
availability of equitable remedies, and equitable defenses, regardless of
whether enforceability is considered in a proceeding in equity or at law,
including the fact that the availability of any remedy of specific performance,
injunctive, or other equitable relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
14.4 Disclosure.
14.4.1 AmeriVest is current in filing all required documents with the United
States Securities and Exchange Commission (the "SEC"). AmeriVest shall deliver
to Seller, on or before the Closing, its Annual Report on Form 10-KSB for the
year ended December 31, 2000 as filed with the SEC and all subsequent filings
with the SEC. As of their respective dates, all Public Filings filed by
AmeriVest with the SEC complied in all material respects with the requirements
of the Securities Act or the Exchange Act, as the case may be, and none of the
Public Filings contained any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. The financial statements of AmeriVest included in the Public
Filings comply as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto, have been prepared in accordance with GAAP (except, in the case of the
unaudited statements, as permitted by Form 10-QSB of the SEC) applied on a
consistent basis during the periods involved (except as may be indicated therein
or in the notes thereto) and fairly present the financial position of AmeriVest
at the dates thereof and the results of its operations and statements of cash
flows for the periods then ended (subject, in the case of unaudited statements,
to normal year-end audit adjustments and to any other adjustments described
therein). There is no liability or obligation of any kind, whether accrued,
absolute, fixed or contingent, of AmeriVest which is required by GAAP to be
reflected or reserved against or otherwise disclosed in the most recent
financial statements of AmeriVest included in the Public Filings that is not so
reflected or reserved against that, individually or in the aggregate, would have
a material adverse effect on AmeriVest.
14.4.2 Neither this Agreement nor any schedule, exhibit, or certificate
delivered or documents executed in accordance with the terms hereof (i) contains
any untrue statement (attributable to AmeriVest) of a material fact or (ii)
omits to state any fact necessary to make the statements contained therein not
misleading. AmeriVest has fully provided Seller with all the written information
that Seller has requested for the purpose of deciding whether to consummate the
transactions contemplated by this Agreement. AmeriVest agrees that, during the
period between execution of this Agreement and the Closing, AmeriVest will
provide all additional information that Seller reasonably requests.
14.5 Absence of Changes. Except as otherwise set forth in any Public Filing or
press release of AmeriVest, since the date of the most recent Public Filings,
there has not been:
14.5.1 Any material (in excess of $10,000 for any single item) damage,
destruction or loss to any asset or property, tangible or intangible, of
AmeriVest or of its subsidiaries;
14.5.2 Any material transaction relating to or involving AmeriVest (other than
the transactions contemplated herein) which was entered into, or carried out by
AmeriVest or its subsidiaries other than in the ordinary and usual course of
business;
14.5.3 Any change made by AmeriVest in its accounting or tax practices or
procedures relating thereto, or any material change made by AmeriVest in its
method of operating its business;
14.5.4 Any sale, lease, or disposition of, or any agreement to sell, lease, or
dispose of any of AmeriVest's assets or those of its subsidiaries, other than
sales, leases or dispositions in the usual and ordinary course of business and
consistent with past practices;
14.5.5 Any amendment, waiver, release, rescission, or termination of any
material agreement, license, or other instrument to which AmeriVest is a party,
including any write-off or other compromise on any account receivable outside
the ordinary course of business;
14.5.6 Any adverse change in AmeriVest's relationships with any significant
vendor(s) or customer(s) (except any conditions arising only from the internal
financial condition of any such vendor or customer);
14.5.7 Any purchase or lease or any agreements to purchase or lease property
or assets by AmeriVest in excess of $10,000 individually, or in excess of
$25,000 in the aggregate;
14.5.8 Any loan by AmeriVest to any officer, director, or any relative of any
officer or director (a "Related Party"), any loan by AmeriVest to any other
individual or entity, guaranteeing by AmeriVest of any indebtedness (whether of
a Related Party or otherwise) as to any individual or entity, or any renewal,
extension, or alteration of any terms of any of the foregoing; or
14.5.9 Any event or condition of any character which may reasonably be
expected to have a material adverse effect on the value of the AmeriVest Shares.
14.6 Books and Records. All of AmeriVest corporate records and minute books are
located at AmeriVest's principal corporate headquarters in Denver, Colorado.
Copies of all of AmeriVest' corporate records and minute books have been made
available to Seller. The corporate records of AmeriVest accurately reflect the
underlying facts and transactions in all material respects. The minute books and
related corporate records of AmeriVest contain accurate records of all material
corporate actions taken by the shareholders and Board of Directors of AmeriVest.
14.7 Subsidiaries. Except as previously disclosed in its Public Filings and
press releases, AmeriVest does not own, directly or indirectly, any capital
stock or other equity or proprietary interest in any corporation, partnership,
association, trust, joint venture, or other entity.
14.8 Title to Assets; No Encumbrances. Except as otherwise previously disclosed
in its Public Filings and press reports and except to the extent that it would
not have a material adverse effect on AmeriVest or its operations, AmeriVest is
the sole and exclusive legal and beneficial owner of all of its assets and
properties. AmeriVest is not a party to, or bound by, any contract or obligation
that requires it to sell or otherwise dispose of, or limits or compromises its
ability to use, its assets or properties.
14.9 Operating Condition. All of AmeriVest tangible assets currently in active
use, are suitable for the purposes for which they are used, are in good
operating condition and repair, free from known defects except for minor defects
that do not interfere with the continued use thereof. Each tangible asset of
AmeriVest has been serviced and maintained in accordance with customary industry
practices, although Seller acknowledges that from time to time some property,
systems, and equipment may require repair or maintenance.
14.10 No Conflict or Default. Neither the execution, delivery, or performance of
this Agreement will (i) conflict with or result in the breach of any term or
provision of the articles of incorporation or bylaws of AmeriVest, or of any
agreement, contract, deed, mortgage, order, judgment, decree, injunction, or
legal obligation to which AmeriVest is a party, or by which AmeriVest's assets
are bound, or constitute a default (or an event which, with the lapse of time or
the giving of notice, or both, would constitute a default) thereunder; or (ii)
result in the creation or imposition of a monetary encumbrance on any of
AmeriVest's assets or give to any individual or entity any rights of
termination, acceleration, or cancellation, in or with respect to the business
or assets of AmeriVest.
14.11 Real Property. Except as disclosed in the Public Filings, AmeriVest owns
no real property.
14.12 Employment Matters. AmeriVest has no employees.
14.13 Governmental Consents and Approvals; No Violations. The execution,
delivery, and performance of this Agreement by AmeriVest and the consummation of
the transactions contemplated hereby (i) will not violate any law, statute,
rule, regulation, order, or decree of any governmental authority by which
AmeriVest is bound; and (ii) will not require any filing with, or permit,
consent or approval of, or the giving of any notice to any governmental
authority or any other individual or entity, with the exception of the approval
required by the American Stock Exchange to issue the AmeriVest Shares.
14.14 Third Party Consents. No consent, approval, or authorization of any third
party (private or governmental) is required in connection with the execution,
delivery, or performance of this Agreement by AmeriVest, except for the approval
of the shareholders of AmeriVest contemplated by Section 8.2.3.
14.15 Litigation. Other than as previously disclosed to Seller in writing by
AmeriVest, to the best of AmeriVest's knowledge, there is no material action,
suit, proceeding at law or in equity, arbitration, or administrative or other
proceeding or investigation, pending or, to the best of AmeriVest's knowledge,
threatened, against or affecting AmeriVest or its assets or properties or the
assets or properties of any of its subsidiaries, and neither AmeriVest nor its
directors or officers know of any valid basis for any such action, suit,
proceeding or investigation. AmeriVest is not presently subject to any judgment,
order, or decree entered in any lawsuit or other judicial or administrative
proceeding.
14.16 Taxes.
14.16.1 Tax Returns. AmeriVest has timely filed or caused to be timely filed
with the appropriate taxing authorities all returns, statements, forms, and
reports for taxes ("Tax Returns") that are required to be filed by, or with
respect to, AmeriVest on or prior to the Closing. AmeriVest is not currently the
beneficiary of any extension of time within which to file a Tax Return.
AmeriVest has provided Seller with copies of all Tax Returns since the fiscal
year ending December 31, 1998. The Tax Returns have accurately reflected in all
material respects all liability for taxes of AmeriVest for the periods covered
thereby.
14.16.2 Payment of Taxes. All taxes of AmeriVest due for all taxable years
ending on or prior to December 31, 2000, have been timely paid. With respect to
the taxable year beginning January 1, 2001, all taxes on net income earned prior
to the Effective Date have been timely paid or accrued and adequately disclosed
and fully provided for as a liability on AmeriVest's most recent Form 10-QSB
filed with the SEC.
14.16.3 Taxes Generally. Except as otherwise previously disclosed in its Public
Filings, AmeriVest has fully complied with all federal, state, and local tax
laws and regulations.
14.17 Compliance with Laws. Other than as previously disclosed in its Public
Filings and press releases and except to the extent that it would not have a
material adverse effect on AmeriVest or its operations, AmeriVest has complied
and is in compliance in all material respects with all applicable judicial or
administrative decisions known to AmeriVest and all federal, state, and local
laws, statutes, licensing requirements, rules, and regulations applicable to its
business, including zoning laws, rules, and regulations. AmeriVest has been
granted all licenses, permits, authorizations, and approvals from federal,
state, local, and foreign governmental authorities necessary to carry on its
business as currently conducted, all of which are currently valid and in full
force and effect. All such licenses, permits, authorizations, consents, and
approvals will be effective as of the Closing, and valid and in full force and
effect to the same extent as if the transactions contemplated hereby had not
occurred. There is no order issued, investigation, or proceeding pending or
threatened with respect to any violation of or conflict with any law, statute,
rule, or regulation by AmeriVest relating to the operation of its business.
14.18 Environmental Laws and Regulations.
14.18.1 Hazardous Materials. To the best of AmeriVest's knowledge, and other
than as previously disclosed in its press releases and Public Filings and except
to the extent that it would have a material adverse effect on AmeriVest or its
operations, no "hazardous" or "toxic" materials or substances ("Hazardous
Materials"), as defined by an federal or state environmental laws or regulations
("Environmental Laws"), have been generated, used, treated, or stored on or
released or disposed on any real property owned by any AmeriVest or any of its
subsidiaries, except for such Hazardous Materials that have been used or stored
in the ordinary course of the business of AmeriVest and in compliance with all
applicable Environmental Laws.
14.18.2 General Compliance. To the best of its knowledge and except to the
extent that it would not have a material adverse effect on AmeriVest or its
operations, AmeriVest and its subsidiaries have complied with and are in
compliance with all Environmental Laws and the requirements of permits issued
under such Environmental Laws with respect to any real property owned by any of
AmeriVest's subsidiaries.
14.18.3 No Claims. To the best of AmeriVest's knowledge and except to the extent
that it would not have a material adverse effect on AmeriVest or its operations,
there have been no claims under any Environmental Laws pending or threatened
against AmeriVest or any of its subsidiaries with respect to any real property
owned or operated by any of them, and there have been no facts, circumstances,
conditions or occurrences on any such real property that could reasonably be
anticipated (i) to form the basis of such a claim against AmeriVest, any of its
subsidiaries, or any assets of AmeriVest; or (ii) to cause such real property or
assets of AmeriVest to be subject to any restrictions on the ownership,
occupancy, use or transferability under any Environmental Law.
14.18.4 No Tanks. Except as previously disclosed in its press releases and
Public Filings, there have been no underground storage tanks (without respect to
the substance stored therein) located on any real property owned by any of
AmeriVest's subsidiaries during their period of ownership.
14.19 Public Filings Incorporated Herein.
14.19.1 AmeriVest represents and warrants that the Public Filings were accurate
and complete and fairly represented the financial position of AmeriVest on the
dates they were filed, however, Seller acknowledges that the financial position
of AmeriVest may have changed since the date of any such Public Filing.
AmeriVest makes no warranty or representation that any prior Public Filing
accurately represents the current financial position of AmeriVest.
14.19.2 To the extent that the Public Filings are referred to and qualify
AmeriVest's express warranties and representations herein, the Public Filings
are hereby incorporated in, and are made a part of, the warranties,
representations, and disclosures of AmeriVest to Seller under this Agreement. In
addition to any other rights and remedies available to Seller under this
Agreement or pursuant to federal and state securities laws for breaches of
Seller's representations and warranties herein, Seller may rely on the Public
Filings as a part of AmeriVest's contractual disclosures hereunder, to the
extent that the Public Filings are referred to and qualify AmeriVest's express
warranties and representations herein, and shall have the same claims for breach
of contract for any misrepresentations in the Public Filings as Seller may have
for any false or misleading representations and warranties of AmeriVest
expressly set forth in this Agreement.
15. Representations and Warranties of Purchaser. Purchaser hereby represents and
warrants to Seller that the following are true and correct as of the Effective
Date and that the following shall be true and correct of the Closing Date and
for one year thereafter:
15.1 Purchaser is duly organized, validly existing, and in good standing under
the laws of the State of Colorado and has the power and authority to carry on
its business and to enter into this Agreement and the transaction contemplated
hereby.
15.2 There are no actions, suits, investigations, or proceedings at law or in
equity by or before any court, governmental instrumentality, commission, or
other agency now pending or threatened or against or affecting Purchaser or any
of Purchaser's properties or rights that might result in an adverse change in
Purchaser's business or its condition, financial or otherwise. Further,
Purchaser is not in default with respect to any order, writ, injunction, or
decree of any court or any governmental agency or department.
15.3 Purchaser has full power, authority and legal right to execute and deliver
and to perform and observe the provisions hereof and of the transactions
contemplated hereby. Purchaser is not in default in the performance of any
obligation, covenant or condition in any agreement, decree, or order to which
Purchaser is party or by which Purchaser is bound or to which any of Purchaser's
properties are subject. Purchaser is not a party to a contract or agreement or
subject to any articles of incorporation or other corporate restriction which
adversely affects Purchaser's business, property, assets or financial condition.
Purchaser is not a party to or otherwise subject to any contact or agreement
which restricts or otherwise affects Purchaser's right or ability to undertake
the transactions contemplated hereby or the performance of any of its respective
terms.
15.4 Purchaser's execution of this Agreement has been duly authorized and will
not violate any provision of law or articles of incorporation or corporate
bylaws or any other agreement previously entered into.
15.5 Neither this Agreement nor any schedule, exhibit, or certificate delivered
or documents executed in accordance with the terms hereof (i) contains any
untrue statement (attributable to Purchaser) of a material fact or (ii) omits to
state any fact necessary to make the statements contained therein not
misleading. Purchaser has fully provided Seller with all the written information
that Seller has requested for the purpose of deciding whether to consummate the
transactions contemplated by this Agreement. Purchaser agrees that, during the
period between execution of this Agreement and the Closing, Purchaser will
provide all additional information that Seller reasonably requests.
15.6 No consent, approval, authorization, permit or license from any federal,
state, or local regulatory authority is required in connection with the
transactions contemplated herein.
15.7 This Agreement constitutes a legal and binding obligation of Purchaser,
and is valid and enforceable against Purchaser in accordance with its terms,
except that the enforceability and the availability of certain rights and
remedies provided for in this Agreement may be limited by (i) bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium, or other similar
laws of general application affecting the enforcement of Seller's rights
generally; and (ii) considerations of public policy and general principles of
equity limiting the availability of equitable remedies, and equitable defenses,
regardless of whether enforceability is considered in a proceeding in equity or
at law, including the fact that the availability of any remedy of specific
performance, injunctive, or other equitable relief is subject to the discretion
of the court before which any proceeding therefor may be brought.
15.8 Purchaser further agrees to notify Seller immediately in writing if any of
the representations or warranties herein are breached or are no longer accurate
at any time prior to and including the Closing Date.
16. Default. If Seller fails to comply with this Agreement for any reason, and
such non-compliance continues for ten business days after Seller's receipt of
Purchaser's written notice of non-compliance, Purchaser may terminate this
Agreement or seek such other relief as may be provided by law. If Purchaser
fails to comply with this Agreement for any reason, and such non-compliance
continues for ten business days after Purchaser's receipt of Seller's written
notice of non-compliance, Seller may terminate this Agreement or seek such other
relief as may be provided by law. In any action to enforce this Agreement or for
other relief provided by law, the prevailing Party shall recover its reasonable
costs and attorneys' fees.
17. Commission. Seller agrees, represents and warrants that all the negotiations
relative to this Agreement and the transactions contemplated hereby have been
carried on directly, without the intervention of any other person, so as not to
give rise to any valid claim against any Party hereto for a fee, sales
commissions or other like payments. Purchaser agrees, represents and warrants
that all the negotiations relative to this Agreement and the transactions
contemplated hereby have been carried on directly, without the intervention of
any other person, so as not to give rise to any valid claim against any Party
hereto for a fee, sales commissions or other like payments.
18. Indemnity Agreements.
18.1 Purchaser and AmeriVest, jointly and severally, hereby agree to and shall
indemnify, defend, and hold harmless Seller and Seller's officers, directors,
employees and agents from and against any loss, injury, damage, claim, lien,
cost or expense, including reasonable attorneys' fees and costs, arising out of
a (i) breach by Purchaser of any lease of the Property on or after the Closing
Date; (ii) breach by Purchaser and/or AmeriVest of any contract pertaining to
Plaza or the Property on or after the Closing Date; (iii) breach by Purchaser
and/or AmeriVest of this Agreement or of any representations, covenants, or
warranties included in this Agreement; (iv) a claim by any broker that it
represented Purchaser and/or AmeriVest or is otherwise entitled to compensation
in connection with this Agreement or with the sale of the Plaza Interest; or (v)
any other matter related to the Plaza Interest or the Property which occurs
after Closing.
18.2 Seller hereby agrees to and shall indemnify, defend, and hold harmless
Purchaser and its officers, directors, employees and agents from and against any
loss, injury, damage, claim, lien, cost or expense, including reasonable
attorneys' fees and costs, arising out of a (i) breach by Seller or Plaza of any
lease of the Property prior to the Closing Date; (ii) breach by Seller or Plaza
of any contract pertaining to Plaza or the Property prior to the Closing Date;
(iii) breach by Seller or Plaza of this Agreement or of any representations,
covenants, or warranties included in this Agreement; (iv) a claim by any broker
that it represented Seller or Plaza or is otherwise entitled to compensation in
connection with this Agreement or with the sale of the Plaza Interest; (v) or
any other matter related to the Plaza Interest or Property which occurs prior to
Closing.
18.3 Promptly after receipt by an indemnified party under this Section 18 of
notice of any claim or the commencement of any action (including any
governmental action) that is subject to indemnification under Section 18.1 or
18.2 above, such indemnified party shall, if a claim in respect thereof is to be
made against any indemnifying party under this Section 18, deliver, within ten
(10) days after the indemnified party's receipt thereof, to the indemnifying
party a written notice of such claim or the commencement of such action, as the
case may be. The indemnifying party shall have the right to participate in the
defense thereof. If the indemnifying party agrees in writing that it will be
responsible for any costs, expenses, judgments, damages, and losses incurred by
the indemnified party with respect to such claim, jointly with any other
indemnifying party similarly noticed, it shall have the right to assume and
solely (or with other counsel) to control the defense thereof with counsel
mutually satisfactory to the parties. An indemnified party, however, shall have
the right to retain its own counsel, with the reasonable fees and expenses to be
paid by the indemnifying party, if the indemnified party provides a legal
opinion from its own counsel that representation of such indemnified party by
the counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing, or otherwise conflicting, interests between such
indemnified party and any other party represented by such counsel in such
proceeding as to the matters which are the subject of such proceeding. The
failure to deliver written notice to the indemnifying party, within the ten (10)
day period specified above, of such claim or the commencement of any such action
shall relieve such indemnifying party of liability to the indemnified party
under this Agreement only if and to the extent that such failure is prejudicial
to its ability to defend such action, and the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any other indemnified party.
19. Additional Agreements.
19.1 Registration Rights. At Closing, Seller and AmeriVest shall enter into a
Registration Rights Agreement substantially in the form attached hereto as
Exhibit M and incorporated herein by this reference.
19.2 Managing Member. Sheridan Development will remain as the sole Manager of
Seller and will vote the AmeriVest Shares on behalf of Seller until the
AmeriVest Shares have been distributed to Seller's members pursuant to the
Registration Rights Agreement.
19.3 Dividend Reinvestment Plan. Seller agrees to enroll 50% of its AmeriVest
Shares in the AmeriVest DRIP commencing on the Closing Date and continuing for a
period of two years after the Closing Date.
19.4 Cooperation Concerning Financial Statements and Taxes. After the Closing
Date, each of AmeriVest, Purchaser, Plaza and Seller shall cooperate, and cause
its respective directors, employees, officers and representatives to cooperate,
with the others and with each other's respective agents, including accounting
firms and legal counsel, in connection with the preparation or audit of any
financial statements, tax return or report, amended return or report, claim for
refund in any tax claim or litigation in respect of AmeriVest, Purchaser,
Seller, or Plaza or their respective activities, which cooperation shall
include, but not be limited to, making available to the other all information,
records, and documents in their possession relating to the liabilities for taxes
associated with each of them, except as may be limited by this Agreement. Each
of AmeriVest, Purchaser, Seller and Plaza also shall make available to the
others, as reasonably requested and available, the personnel responsible for
preparing, maintaining and interpreting information, records and documents in
connection with financial statements and taxes as well as related litigation.
Any information provided or obtained pursuant to this Section 19.4 shall be kept
confidential, except as may be otherwise necessary in connection with the filing
of periodic reports required under the 1934 Act or of returns or reports, refund
claims, audits, tax claims and litigation.
19.5 Additional Documents; Further Assurances. In addition to the items
specifically required to be furnished hereunder, the Parties hereby agree that
each will promptly furnish to the other such further schedules, certificates,
and other instruments and take such other action as may reasonably by requested
in order to effectuate the purposes of this Agreement.
20. Notice. All notices, requests, demands, directions and other communications
("Notices") concerning this Agreement shall be in writing and shall be mailed or
delivered personally or sent by telecopier or facsimile to the applicable Party
at the address of such Party set forth below in this Section 20. When mailed,
each such Notice shall be sent by first class, certified mail, return receipt
requested, enclosed in a postage prepaid wrapper, and shall be effective on the
fifth day after it has been deposited in the mail. When delivered personally,
each such Notice shall be effective when delivered to the address for the
respective Party set forth in this Section 20, provided that it is delivered on
a business day and further provided that it is delivered prior to 5:00 p.m.,
local time; otherwise, each such Notice shall be effective on the first business
day occurring after the Notice is delivered. When sent by telecopier, each such
Notice shall be effective immediately upon confirmation of transmission received
by the sender's telecopier, provided that it is sent on a business day and
further provided that it is sent prior to 5:00 p.m., local time; otherwise, each
such Notice shall be effective on the first business day occurring after the
transmission confirmation is received by the sender's telecopier. Each such
Notice shall be addressed to the Party to be notified as shown below:
To Purchaser:
AmeriVest Inverness Inc.
c/o President
1780 South Bellaire Street, Suite 515
Denver, Colorado 80202
Facsimile No: (303) 296-7353
with copy to:
Alan L. Talesnick, Esq.
Patton Boggs LLP
1660 Lincoln Street, Suite 1900
Denver, Colorado 80264
Facsimile No: (303) 894-9239
To Seller:
Sheridan Investments, LLC
c/o Managers
1780 South Bellaire Street, Suite 515
Denver, Colorado 80202
Facsimile No: (303) 296-7357
with copy to:
Steven G. Wright, Esq.
Isaacson, Rosenbaum, Woods & Levy, P.C.
633 Seventeenth Street, Suite 2200
Denver, Colorado 80202
Facsimile No.: 303-292-3152
To Plaza:
Sheridan Plaza at Inverness, LLC
c/o Sheridan Investments, LLC
1780 South Bellaire Street, Suite 515
Denver, Colorado 80202
Facsimile No: (303) 296-7357
with copy to:
Steven G. Wright, Esq.
Isaacson, Rosenbaum, Woods & Levy, P.C.
633 Seventeenth Street, Suite 2200
Denver, Colorado 80202
Facsimile No.: 303-292-3152
Any Party may change its respective address for purposes of this Section 20
by giving the other Parties Notice of the new address in the manner set forth
above.
21. Entire Agreement. This Agreement, together with the exhibits attached hereto
(all of which are incorporated by reference and made a part hereof) is the
entire agreement between the Parties with respect to the subject matter hereof,
and no alteration, modification or interpretation hereof shall be binding unless
in writing and signed by all Parties.
22. Severability. If any provision of this Agreement or application to any Party
or circumstances shall be determined by any court of competent jurisdiction to
be invalid and unenforceable to any extent, the remainder of this Agreement or
the application of such provision to such person or circumstances, other than
those as to which it is so determined invalid or unenforceable, shall not be
affected thereby, and each provision hereof shall be valid and shall be enforced
to the fullest extent permitted by law.
23. Captions. The captions in this Agreement are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope
of this Agreement or the scope or content of any of its provisions.
24. Time of Essence. Time is of the essence in this Agreement.
25. Counterparts; Facsimile Signatures. This Agreement may be executed and
delivered in any number of counterparts, each of which so executed and delivered
shall be deemed to be an original and all of which shall constitute one and the
same instrument. Facsimile signatures shall be as binding as original
signatures.
26. Recordation. Seller and Purchaser agree not to record this Agreement or any
memorandum hereof.
27. Parties in Interest, Survival, Assignment. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of Seller and Purchaser. All representations, covenants, and
agreements in this Agreement or any statement, certificate, or other document
delivered in connection with this Agreement or pursuant hereto shall survive the
Closing. This Agreement may not be assigned by either party without the prior
written consent of the other party hereto.
28. Governing Law and Venue. The Agreement is governed by the laws of the State
of Colorado and the United States, and venue for any dispute related to or
arising hereunder shall be in any court of competent jurisdiction in the City
and County of Denver, Colorado.
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IN WITNESS WHEREOF the parties hereto have cause this Agreement to be
executed by their duly authorized officers or representatives the day and year
first above written to be effective as of the Effective Date.
SHERIDAN INVESTMENTS, LLC, AMERIVEST INVERNESS INC.,
a Colorado limited liability company, a Colorado corporation
By: Sheridan Development, LLC, By: /s/ Charles K. Knight
a Colorado limited liability -----------------------------
company, Manager Charles K. Knight, President
By: /s/ William T. Atkins
- ------------------------------------
William T. Atkins, Manager
By: /s/ Alexander S. Hewitt
- ------------------------------------
Alexander S. Hewitt, Manager
SHERIDAN PLAZA AT INVERNESS, LLC, AMERIVEST PROPERTIES, INC.,
a Colorado limited liability company a Maryland corporation
By: Sheridan Investments, LLC, By: /s/ Charles K. Knight
a Colorado limited liability -----------------------------
company, Manager Charles K. Knight, President
By: Sheridan Development, LLC,
a Colorado limited liability
company, Manager
By: /s/ William T. Atkins
- ------------------------------------
William T. Atkins, Manager
By: /s/ Alexander S. Hewitt
- ------------------------------------
Alexander S. Hewitt, Manager
* * * * *