Exhibit 10.11
PURCHASE AND SALE AGREEMENT
This Purchase And Sale Agreement (the "Agreement") is entered into and
shall be effective as of July 1, 2000 (the "Effective Date") between Sheridan
Realty Partners, L.P., a Delaware limited partnership ("Seller"), AmeriVest
Inverness Inc., a Colorado corporation ("Purchaser"), and Sheridan Investments,
LLC, a Colorado limited liability company (the "LLC"). For purposes of this
Agreement, each of Seller, Purchaser and the LLC may be referred to individually
as a "Party", and all of Seller, Purchaser and the LLC may be referred to
collectively as the "Parties".
Recitals
A. Seller owns a 9.639% preferred limited liability company membership
interest (the "LLC Interest") in the LLC. The Operating Agreement of the LLC is
attached to this Agreement as Exhibit A. The LLC owns all the ownership
interests of Sheridan Plaza at Inverness LLC, a Colorado limited liability
company ("Inverness LLC") whose sole asset is a fee simple interest in two
multi-tenant office buildings located at 383 and 000 Xxxxxxxxx Xxxxx Xxxxx in
Englewood 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 Operating Agreement of Inverness LLC is attached to this
Agreement as Exhibit B. The Property is more particularly described in Exhibit C
attached to and made a part of this Agreement.
B. Purchaser desires to purchase from Seller, and Seller desires to sell to
Purchaser, the LLC Interest pursuant to the terms of this Agreement.
Agreement
In consideration of the premises and of the mutual covenants contained in
this Agreement, the Parties agree as follows:
1. Purchase And Sale Of LLC Interest.
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 LLC Interest.
1.2 Purchase Price. The purchase price (the "Purchase Price") for the
LLC Interest shall be $658,918, payable in the form of 65,892 units (the
"Units"), with each unit consisting of two shares of the $.001 par value
common stock (the "Purchaser Common Stock") of Purchaser and one redeemable
common stock purchase warrant (a "Warrant") to purchase one share of
Purchaser Common Stock for $5.00 per share until July 10, 2005. The Warrant
shall be in the form of Exhibit D attached to and made a part of this
Agreement.
1.3 Adjustment to Purchase Price. If, on or before October 31, 2000, a
member of the LLC sells a preferred limited liability company membership
interest at a price less than the Purchase Price or the LLC issues
additional preferred limited liability company membership interests with
substantially the same terms as the LLC Interest at a price less than the
Purchase Price, the Purchase Price shall be reduced to an amount calculated
using the price at which the preferred limited liability company membership
interests are transferred or issued and Seller immediately shall return to
Purchaser the number of Units determined by dividing the difference between
the Purchase Price and the purchase price as adjusted by $10.00.
2. Title. Seller shall cause Inverness, LLC to furnish to Purchaser a copy
of the A.L.T.A. owner's extended coverage title insurance policy (with
preprinted exceptions to be deleted) dated September 22, 1999 issued by Chicago
Title Insurance Company (the "Title Company"), for the Property in the amount of
$14,200,000 together with an updated commitment dated September __, 2000. Seller
shall also make available to Purchaser for review, true, correct, and legible
copies of all documents listed in the schedule of exceptions in the commitment.
The title commitment and the underlying exception documents are hereinafter
collectively referred to as the "Title Commitment".
3. Environmental Audit. Inverness LLC has provided Purchaser with a Phase I
Environmental Site Assessment (including asbestos investigation) dated October
18, 1999 for the Property in conformity with the 1993 standards set by the
American Society for Testing and Materials prepared by ATEC Associates, Inc.
(the "Phase I Report").
4. Survey. Inverness LLC has provided Purchaser with an ALTA/ACSM land
title survey for the Property dated October 1, 1999 prepared by Xxxx Surveying
Company (the "Survey"). The Survey reflects all exceptions to title (where
applicable) as reflected on the Title Commitment. The Survey provides that
physical inspections at the Property revealed no improvements situated upon or
adjacent to the Property which are the subject of any encroachments, and that no
easements or rights-of-way have been physically violated in any respect, except
as shown in the Survey.
5. Warranty As To Leases. Each of Seller, based solely on information
provided by Inverness LLC, and Inverness LLC warrants that the attached Exhibit
E is a complete list of all leases, tenancies, rental agreements, and concession
agreements presently encumbering the Property; and that:
5.1 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 except as shown on Exhibit E and the
names as set forth in Exhibit E 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 June 30,
2000; 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 June
30, 2000.
5.2 All the leases, tenancies, rental agreements, and concession
agreements shown on Exhibit E are now in full force and effect; except as
set forth on Exhibit E, none of Seller nor Inverness LLC nor any of the
tenants, lessees or concessionaires set forth on Exhibit E 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 E.
5.3 The rentals and other sums due or to become due under the leases
and agreements referred to in Exhibit E have not been assigned or
encumbered by Seller or Inverness LLC except as additional security under
the Mortgage against the Property, and will not be further assigned,
encumbered, or subjected to any liens by Seller or Inverness LLC prior to
the Closing pursuant to this Agreement.
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6. Warranty As To Insurance. Each of Seller, based solely on information
provided by Inverness LLC, and Inverness LLC warrants that that there is
adequate insurance covering the Property and that Inverness LLC shall keep all
such insurance policies in full force and effect while it owns the Property.
7. Corporate Resolutions Regarding Sale. At the Closing, Purchaser shall
provide to Seller a copy of resolutions of the Board of Directors of Purchaser
authorizing the execution and performance of this Agreement, including the
authorization of issuance of the Units to Seller in payment of the Purchase
Price, which resolutions shall be certified by the secretary of Purchaser.
8. Contingencies. This Agreement is contingent upon each of the following:
8.1 Management Records. Approval by Purchaser of true and complete
copies of the Income and Operating Expense Statements and Statements of
Assets and Liabilities relating to the Property and/or Inverness LLC and/or
the Seller as of and for the years ended December 31, 1998 and 1999.,
Copies of said financial and lease documents have been delivered to and
reviewed by Purchaser prior to the execution of this Agreement.
8.2 LLC Approval. The receipt by Seller of all approvals necessary
from the manager and members of Seller and Inverness LLC as may be required
under their respective operating agreements.
In the event any of the foregoing contingencies are not met at or before
the Closing, and absent an agreement of the Parties to resolve an unsatisfied
contingency, this Agreement shall terminate.
9. Deliveries At Closing.
9.1 At Closing, Seller shall deliver to Purchaser the following:
9.1.1 A certificate representing the LLC Interest registered in
Purchaser's name in a form reasonably acceptable to Purchaser and
Seller.
9.1.2 The Title Commitment.
9.1.3 The consent of the manager of the Inverness LLC to the
transfer of the LLC Interest to Purchaser and the admission of
Purchaser to the Inverness LLC as a substituted member entitled to a
9.639% Preferred Equity Investor.
9.1.4 Any other documents required to be delivered pursuant to
this Agreement.
9.1.5 At and after Closing, such additional and customary
documents necessary to carry out or complete the transaction set forth
in this Agreement.
9.2 At Closing, Purchaser shall deliver to Seller the following:
9.2.1 Stock and warrant certificates representing Purchaser
Common Stock and Warrants included in the Units constituting the
Purchase Price registered in the name of Seller, provided Seller has
executed and delivered to Purchaser a subscription and registration
rights agreement in the form of Exhibit F attached to this Agreement.
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9.2.2 At and after Closing, such additional and customary
documents necessary to carry out or complete the transaction set forth
in this Agreement.
10. Closing Date. Closing shall take place at a time to be established by
Purchaser and Seller but not later than September 28, 2000 (the "Closing" or
"Closing Date") to be effective as of the Effective Date. The Closing shall take
place at the offices of Purchaser or at the offices of Purchaser's counsel, as
determined by Purchaser.
11. Purchase Price Adjustments And Closing Costs. At Closing, the following
items shall be adjusted against the Purchase Price:
11.1 The amount of all distributions received by or payable to Seller
from the LLC with respect to the LLC Interest prior to the Effective Date
shall be deducted from the Purchase Price.
11.2 Any expenses charged to Purchaser by the LLC with respect to the
transfer of the LLC Interest shall be deducted from the Purchase Price.
Seller shall be responsible for the cost of the updated title insurance
commitment. Seller and Purchaser shall each pay the fees and disbursements of
its respective counsel and any inspecting architects, engineering or other
consultants hired by such party.
12. 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, Inverness LLC shall deliver to Purchaser and Seller written notice
thereof and the estimated cost of repair, based upon Inverness LLC's reasonable
good faith business judgment. If the Property is "substantially damaged" i.e.
(1) the estimated cost of repairing such damage or destruction exceeds in the
aggregate $100,000, or (2) the casualty materially and adversely affects access
to the Property, or (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 xxxxx for any period of time unless Seller is
willing to credit Purchaser for the full amount of the abated rent, this
Agreement shall automatically terminate unless Purchaser delivers to Seller
written notice waiving the right to terminate within five days following
delivery to Purchaser of Inverness LLC's notice of such damage.
13. Representations And Warranties By Seller And Inverness LLC. Each of
Seller and Inverness LLC hereby represents and warrants to Purchaser that the
following are true and correct as of the date of the execution of this Agreement
and that the following shall be true and correct as of the Closing:
13.1 Seller is duly organized, validly existing, and in good standing
under the laws of the State of Delaware and has the power and authority to
carry on its business and to enter into this Agreement and the transactions
contemplated hereby. The LLC 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 own and dispose of the Inverness
LLC. The Inverness LLC 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 own and operate the Property.
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13.2 The improvements situated on the Property are connected to all
public utility systems (including without limitation the sewer system) and,
to the best of Seller's knowledge, all utility systems are operational and
in compliance with all applicable public and private requirements.
13.3 Except as previously disclosed to Purchaser, to the best of each
of Seller's, the LLC's and Inverness LLC's knowledge, 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 Seller, the LLC or Inverness
LLC or any of their respective properties or rights, before any court,
arbitrator, or administrative or governmental body which may result in an
adverse change in their respective businesses or any of their respective
conditions, financial or otherwise. Further, neither Seller, the LLC nor
Inverness LLC is in default with respect to any order, writ, injunction, or
decree of any court or any governmental agency or department.
13.4 Except for the requirement that the sale of the LLC Interest and
the admission of Purchaser as a substituted member of the LLC be approved
by the Manager of the LLC as contemplated by Section 8.2 of this Agreement,
each of Seller and the LLC and their respective appointed representatives
have full power, authority and legal right to execute and deliver and to
perform and observe the provisions hereof and of the transactions
contemplated hereby. Neither Seller nor the LLC is in default in the
performance of any obligation, covenant or condition in any agreement,
decree, or order to which Seller or the LLC is party or by which Seller or
the LLC is bound or to which any of Seller's or the LLC's properties are
subject, including this Agreement. Neither Seller nor the LLC is a party to
a contract or agreement or subject to any restriction which adversely
affects Seller's or the LLC's business, property, assets or financial
condition. Neither Seller nor the LLC is 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.
13.5 Neither of Seller's nor the LLC's execution of this Agreement
will violate any provision of law or any agreement previously entered into,
other than those for which Seller and/or the LLC shall obtain all required
consents or waivers prior to Closing.
13.6 No tax liability, including without limitation, income tax
liability, of any nature is now past due or has been asserted against
Seller, the LLC, the LLC Interest or the Property by any taxing authority.
13.7 Neither this Agreement nor any other document, certificate, or
statement furnished to Purchaser by Seller or the LLC or any partner,
employee, or affiliate of Seller or the LLC or, to the best knowledge of
Seller and the LLC, by any third party in connection with the transactions
contemplated hereby, contains any untrue statement of material fact or
omits to state a material fact necessary in order to make the statements
contained herein and therein not misleading. All of Seller's, the LLC's and
the Property's financial statements submitted to Purchaser have been
prepared in accordance with generally accepted accounting principles
consistently applied, unless otherwise expressly noted.
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13.8 To the best of each of Seller's and the LLC'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.
13.9 Other than as previously disclosed to Purchaser, to the best
knowledge of each of Seller and the LLC, the improvements situated on the
Property are complete and structurally sound and all mechanical systems
contained therein are adequate for their intended use and in proper working
condition. Other than as previously disclosed to Purchaser, the Property
does not require any major repairs or further work.
13.10 Each of Seller and the LLC represents and warrants that based on
its respective review of the Phase I Report and its respective indirect
ownership and management of the Property since the date of such report,
neither the Property nor Seller nor the LLC nor Inverness LLC, nor, to the
best of each of Seller's and the LLC's knowledge, any previous owner of the
Property, is in violation of or subject to any existing, pending or
threatened investigation or inquiry by any governmental authority or any
remedial obligations under any applicable laws, rules or regulations
pertaining to health or 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"), and each of Seller and the LLC further
represents and warrants that there are no facts, conditions or
circumstances known to Seller or the LLC 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. Each of
Seller and the LLC represents and warrants that neither Seller nor the LLC
has obtained and neither Seller nor the LLC is 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
applicable environmental laws, rules or regulations. Each of Seller and the
LLC represents and warrants that each of them has no knowledge of any oil,
toxic or hazardous substances or solid wastes having been disposed of or
released on the Property other than in connection with the normal
operations of an office building in a manner that is in compliance with all
applicable laws, rules or regulations pertaining to health or the
environment, or any asbestos within the improvements.
13.11 The address set forth below is Seller's true and correct
residence, and Seller has no present intention of becoming a resident of
any other state or jurisdiction.
13.12 Seller is the sole beneficial, legal, and record owner of the
LLC Interest.
13.13 Except as otherwise set forth herein, Seller has full power,
authority, and legal right to sell the LLC Interest.
13.14 There are no claims, liens, or other encumbrances on the LLC
Interest. There are no claims, liens, or other encumbrances on the Property
except for Permitted Title Exceptions and the Mortgage.
13.15 This Agreement constitutes a legal and binding obligation of
each of Seller and the LLC, and is valid and enforceable against each of
Seller and the LLC in accordance with its terms.
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13.16 There are no other restrictions on Seller's right or ability to
sell the LLC Interest to Purchaser.
13.17 Seller has furnished Purchaser with true and complete copies of
the audited Statement of Assets and Liabilities for the LLC and the
Property as of each of December 31, 1998 and 1999 and the Property's
audited statement of operations for the year ended each of December 31,
1998 and 1999 (the "Financial Statements"). The Financial Statements were
prepared in accordance with Seller's and the LLC's and the Property's books
and records and in accordance with generally accepted accounting principles
applied on a consistent basis throughout the periods indicated and fairly
present the financial position of the each of the LLC and the Property as
of the dates and for the periods indicated.
On or before the Closing Date, Seller shall furnish Purchaser with an
unaudited Statement of Assets and Liabilities for the LLC and the Property
as of July 31, 2000 and an unaudited income statement for the period
beginning on January 1, 2000 and ending on July 31, 2000 (the "Updated
Financial Statements"). The Updated Financial Statements have been or will
be prepared in accordance with Seller's and the LLC's and the Property's
books and records and in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods indicated,
subject to normal year-end adjustments. Each of Seller and the LLC 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 fairly present the financial position of the LLC and the
Property, as of the dates and for the periods indicated. There are no
material liabilities known to Seller or the LLC (whether accrued, absolute,
contingent or otherwise) which are not 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 Financial
Statements in the ordinary course of Seller's business. Seller further
represents that as of the Closing, the Financial Statements will not vary
from the Financial Statements in any material respect. If there is a
material change in the Updated Financial Statements from the Financial
Statements, this Agreement may be terminated by Purchaser by notice to
Seller.
13.18 Seller understands that Units and the Purchaser Common Stock
included in the Units and issuable upon the exercise of the Warrants 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 "Act"). Seller understands that Seller may not sell,
offer for sale, transfer, pledge or hypothecate Purchaser 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 Act. Seller acknowledges that any distribution of the Purchase
Common Stock or Warrants to its members will comply with all such
applicable federal and state securities laws. Seller shall sign and deliver
to Purchaser a Subscription Agreement and Registration Rights Agreement in
the form of Exhibit G attached to and made a part of this Agreement
concerning Seller's acquisition of the Units.
The foregoing representations and warranties are true and accurate as of the
date hereof, shall be true and accurate as of the Closing except for the
representations and warranties set forth in Sections 13.1, 13.4 and 13.5, which
shall survive. Each of Seller and the Inverness LLC further 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 Closing.
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14. Representations And Warranties By Purchaser. Purchaser hereby
represents and warrants to each of Seller and the LLC that the following are
true and correct as of the date of the execution of this Agreement and that the
following shall be true and correct as of the Closing:
14.1 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 transactions contemplated hereby.
14.2 The authorized capital stock of Purchaser consists of 10,000,000
common shares, of which 2,828,850 shares are issued and outstanding. All of
the Purchaser Shares are validly authorized and, upon issuance to Seller
and Seller's partners, will be validly issued, fully paid and
non-assessable. Except for the above shares and as disclosed in the Annual
Report on Form 10-KSB for the year ended December 31, 1999, and the
Quarterly Reports for the Period ended March 31, 2000 and June 30, 2000,
there is no outstanding capital stock, and there are no outstanding rights,
options, calls, subscriptions, warrants, agreements or commitments of any
character relating to, nor any outstanding securities convertible into, the
issued or unissued capital stock of Purchaser. No holder of Purchaser's
shares is entitled to preemptive rights. Other than the quarterly dividends
previously declared and paid, and the quarterly dividend declared and to be
paid in October, 2000, Seller has not declared or paid any dividend on, or
declared or made any distribution of, or authorized the creation or
issuance of, or authorized or effected any split or any recapitalization
of, any of its capital stock, or directly or indirectly redeemed, purchased
or otherwise acquired any of its shares. There are no outstanding
contractual obligations of Purchaser to repurchase, redeem or otherwise
acquire any shares of Purchaser's capital stock.
14.3 Except as previously disclosed to Seller, 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 its
subsidiaries or related entities) or any of Purchaser's properties or
rights, before any court, arbitrator, or administrative or governmental
body which may 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.
14.4 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 property is 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 contract 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.
14.5 The 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.
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14.6 Neither this Agreement nor any other document, certificate, or
statement furnished to Seller by Purchaser or any director, officer,
employee, or affiliate of Purchaser, or to the best knowledge of Purchaser,
by any third party, in connection with the transactions contemplated
hereby, contains any untrue statement of material fact or omits to state a
material fact necessary in order to make the statements contained herein
and therein not misleading.
14.7 No consent, approval, authorization, permit or license from any
federal, state, or local regulatory authority is required in connection
with the transactions contemplated herein.
14.8 To the best knowledge of Purchaser, there are no existing
violations of any applicable provision of (i) federal laws or regulations
applicable to the business of Purchaser such as, but not limited to, those
relating to government contracting, employment practices, occupational
safety and health, environmental protection, toxic substances, securities
regulation or otherwise, or (ii) any provision of any comparable state,
local or foreign laws or regulations. During the past three years,
Purchaser has not been charged with any violation of any law or regulation
relating to its business practices, employment practices, safety or working
conditions or other federal or state regulation.
14.9 Except as otherwise provided in this Agreement or in the
Corporate Information, from the date of the filing with the SEC of
Purchaser's latest periodic report pursuant to the Exchange Act through the
execution date of this Agreement, there has been no material adverse change
in the condition of Purchaser or in the business, results of operations,
assets, net worth, prospects, properties, litigation or the manner of
conducting the business of Purchaser ("business and operations"), other
than changes in the ordinary course of business and other than changes that
might result from general business or economic conditions, such as internet
rate levels, that are in the public domain. At all times from and after the
execution date of this Agreement and through the Closing and Closing Date,
Seller shall be kept fully advised with respect to the business and
operations of Purchaser. Seller has and shall continue to have access (in
the manner and subject to the limitations herein provided) to the books and
records of Purchaser and all material changes, if any, in the business and
operations of Purchaser have been and shall have been reviewed with Seller.
14.10 Each director and officer of Purchaser shall represent and
warrant that he is not aware of any action taken individually or by
Purchaser which could cause any of Purchaser's representations or
warranties herein to be untrue as of the date of the Closing or the Closing
Date.
The foregoing representations and warranties are true and accurate as of
the date hereof, shall be true and accurate as of the Closing, and shall survive
the Closing. 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.
15. Default. If Seller fails to comply with this Agreement for any reason,
Purchaser may either enforce specific performance, 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, 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 be
entitled to such attorneys' fees and expenses as may be allowed by the court,
arbitrator or other judicial body.
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16. Commission. Seller agrees and represents that no sales fees or sales
commissions will be due or payable to anyone by Seller with respect to the
transaction contemplated by this Agreement. Purchaser agrees and represents that
no sales fees or sales commissions will be due or payable to anyone by Purchaser
with respect to the transaction contemplated by this Agreement.
17. Indemnity Agreements. Purchaser hereby agrees to indemnify and hold
harmless Seller and Seller's members, employees and agents against any loss,
injury, damage, claim, lien, cost or expense, including reasonable attorneys'
fees, arising because of a breach by Purchaser of of this Agreement or of any
representations or warranties included in this Agreement, a claim by any broker
that it represented Purchaser or is otherwise entitled to compensation in
connection with this Agreement or with the sale of the LLC Interest, or any
other matter related to the LLC Interest which occurs after the Closing. Seller
hereby agrees to indemnify and hold harmless Purchaser and its officers,
directors, employees and agents against any loss, damage, claim, lien, cost or
expense, including reasonable attorneys' fees, arising out of a breach by Seller
of this Agreement or of any representations or warranties included in this
Agreement or the breach by Seller of any agreement, representation or warranty
included in any document delivered by or on behalf of Seller in connection with
this Agreement, a claim by any broker that it represented Seller or is otherwise
entitled to compensation in connection with this Agreement or with the sale of
the LLC Interest, or any other matter related to the LLC Interest or the
Property which occurs prior to the Closing.
18. Additional Agreements.
18.1 Registration Rights.
18.1.1 (a) Definition. For purposes of this Section 18.1,
"Registrable Securities" shall be defined as the Purchaser Common
Stock included in the Units and the Purchaser Common Stock issuable
upon the exercise of the Warrants included in the Units.
(b) Demand Registration Rights. Except as provided for in
Section 18.1.1(d), if at any time after one year from the Closing
Date, holders of at least 50 percent of the Registrable
Securities request that the Purchaser file a registration
statement under the Securities Act of 1933, as amended (the "1933
Act") covering at least 20 percent of the Registrable Securities
(or a lesser percentage if the anticipated aggregate offering
price would exceed $1,000,000), the Purchaser will, as soon as
practicable, use its best efforts to cause such shares to be
registered under the 0000 Xxx. The Purchaser shall not be
obligated to effect more than one registration under this Section
18.1.1(b).
(c) Piggy-back Registration Rights. If at any time prior
to the second anniversary of the Closing Date, the Purchaser
shall determine to register any Purchaser Shares for its own
account or for the account of any of its stockholders other than
a registration relating solely to employee benefit plans or a
registration relating to solely to a Securities And Exchange
Commission Rule 145 transaction or any rule adopted by the
Securities And Exchange Commission in substitution therefor or in
amendment thereto, or a registration on any registration form
which does not include substantially the same information as
would be required to be included in a registration statement
under the 1933 Act covering the sale of the Registrable
Securities, the Purchaser will do the following: (i) promptly
give the holders of the Registrable Securities written notice
thereof; and (ii) subject to the limitations set forth in this
Section 18.1.1(c) and in 18.1.2, include in such registration all
10
of the Registrable Securities that are specified in a written
request from the holders of the Registrable Securities, provided
that such request is received by the Purchaser within 20 days
after the Purchaser has given its written notice. If the
registration involves an underwritten public offering and the
holders of the Registrable Securities exercise their registration
rights hereunder, each holder so exercising shall become a party
to any underwriting agreement for that public offering.
Notwithstanding any other provision of this Section 18.1.1(c),
the managing underwriter of the public offering may determine in
view of market conditions to exclude part of the Registrable
Securities from the underwritten public offering. In that event,
the Purchaser shall advise the holders of the quantity of
Registrable Securities to be excluded from the underwritten
public offering to an aggregate total of not less than 20 percent
of the total number of shares of the Purchaser's common stock
included in the offering. The Purchaser may at any time withdraw
or abandon any registration statement that triggers the
provisions of this Section 18.1.1(c). The registration rights as
set forth in this subsection are subject to the right of the
Purchaser and its underwriters to reduce in view of market
conditions the number of shares the Investors propose to be
registered to not less than one-fifth of the total number of
Registrable Securities in the offering.
18.1.2 As to the registration statement, Purchaser's obligations
contained in this Section 18.1 shall be conditioned upon timely
receipt by Purchaser in writing of information as to the terms of the
contemplated transfer to be registered furnished by and on behalf of
the Selling Stockholders and such other information as Purchaser or
the managing underwriter, if any, reasonably may require from such
person or any underwriter for any shares of the Common Stock for
inclusion in the registration statement. Such information shall be
provided to Purchaser in writing within 10 days after the request for
that information by Purchaser.
18.1.3 All registration expenses incurred by Purchaser in
connection with the registration, qualification or compliance pursuant
to this Section 18.1, including reasonable printing expenses, fees and
disbursements of Purchaser's counsel, and registration and filing fees
relating to shares of Common Stock to be registered on behalf of
Purchaser or Selling Stockholders pursuant to the registration
statement required to be filed by Purchaser on behalf of the Selling
Stockholders pursuant to this Section 18.1, shall be borne by
Purchaser. All selling expenses, including commissions and brokers' or
investment bankers' expense allowances allocable to Purchaser Shares
and Adjustment Shares and the costs of counsel, if any, for the
Selling Stockholders pursuant to the registration, shall be borne by
the Selling Stockholders.
18.1.4 In the case of the registration, qualification or
compliance effected by Purchaser on behalf of the Selling Stockholders
pursuant to this Section 18.1, Purchaser shall keep the Selling
Stockholders advised in writing as to the initiation of such
registration, qualification, and compliance and as to the completion
thereof. At its expense, Purchaser will keep such registration,
qualification or compliance effective for a period ending two years
after the Closing Date or until the Selling Stockholders have
completed the distribution described in the registration statement
relating thereto, whichever first occurs. At its expense, Purchaser
shall furnish such number of prospectuses and other documents incident
thereto as the Selling Stockholders from time to time may reasonably
request.
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18.1.5 In connection with the registration, qualification or
compliance effected by Purchaser on behalf of the Selling Stockholders
pursuant to this Section 18.1, Purchaser shall use its best efforts to
register and qualify the securities covered by such registration
statement under such other securities or blue sky laws of such
jurisdictions as Seller or the Selling Stockholders may reasonably
request that allow registration by coordination and to do any and all
other acts and things which may be necessary or advisable to enable
the Selling Stockholders to complete such proposed sale or other
distribution of Purchaser Shares and Adjustment Shares in any such
jurisdiction; provided however, that in no event shall Purchaser be
obligated to register or qualify under the blue sky laws of any
jurisdiction which would require Purchaser to qualify to do business
or to file a general consent to service of process in any jurisdiction
where it shall not then be qualified.
18.1.6 In connection with any registration, qualification or
compliance pursuant to this Section 18.1, Purchaser and Seller agree
to the following indemnification terms:
(a) Without limitation of any other indemnity provided to
Seller, to the extent permitted by law, Purchaser shall indemnify
and hold harmless Seller and each Selling Stockholder, Seller's
affiliates, employees, partners and counsel, any underwriter (as
defined in the U.S. Securities Act of 1933, as amended (the
"Securities Act")) for the Selling Stockholders, and each person,
if any, who controls the underwriter (within the meaning of the
Securities Act or the U.S. Securities Exchange Act of 1934 (the
"Exchange Act")), against any losses, claims, damages or
liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such
registration statement including any preliminary prospectus or
final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or
necessary to make the statements therein in light of the
circumstances in which they were made not misleading, (iii) any
violation or alleged violation by Purchaser of the Securities
Act, the Exchange Act, or any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act
or any state securities law, and Purchaser shall reimburse Seller
and each Selling Stockholder and each affiliate, employee,
partner, counsel of Seller, underwriter or controlling person for
any legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that Purchaser shall not
be liable hereunder in any such case for any such loss, claim,
damage, liability or action to the extent that it arises out of,
or is based upon, a violation which occurs in reliance upon and
in conformity with information furnished expressly for use in
connection with such registration by Seller or any Selling
Stockholder or any other affiliate, employee, partner, counsel or
controlling person thereof. Individual Selling Stockholders shall
be liable solely for information provided by them and not for
information provided by other Selling Stockholders.
(b) Insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statements of a material fact contained in any such
12
registration statement based upon (i) information provided by
such person to Purchaser specifically for inclusion therein in
connection with the offer or sale of Purchaser Shares and
Adjustment Shares, or (ii) any violation or alleged violation by
such person of any federal or state securities law or any
regulation promulgated under any federal or state securities law,
each Selling Stockholder shall, if securities held by such
Selling Stockholder pursuant to the registration statement are
included in such registration, to the extent permitted by law,
indemnify and hold harmless Purchaser, its affiliates, its
counsel, officers, directors, shareholders, any underwriter (as
defined in the Securities Act) and each person, if any, who
controls Purchaser or the underwriter (within the meaning of the
Securities Act) against any losses, claims, damages or
liabilities to which they may become subject under the Securities
Act, the Exchange Act or any state securities law, and each
Selling Stockholder shall reimburse each of Purchaser and such
affiliate, officer or director or partner, underwriter or
controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action.
(c) Promptly after receipt by an indemnified party under
this Section 18.1.6 of notice of the commencement of any action
(including any governmental action), such indemnified party
shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 18.1.6, deliver to the
indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in
the defense thereof, and 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, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however,
that an indemnified party 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 reasonably believes
that representation of such indemnified party by the counsel
retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between such indemnified
party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement
of any such action shall relieve such indemnifying party of any
liability to the indemnified party under this Agreement only if
and to the extent that such failure is materially 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 indemnified party otherwise
than under this Agreement.
(d) If the indemnification provided for in this Agreement is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim,
damage or expense referred to therein, then the indemnifying
party, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim,
damage or expense in such proportion as is appropriate to reflect
the relevant fault of the indemnifying party on the one hand and
the indemnified party on the other hand in connection with the
statements or omissions which resulted in such loss, liability,
claim, damage or expenses as well as any other relevant equitable
13
considerations. The relevant fault of the indemnifying party and
the indemnified party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the
indemnified party and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission.
(e) The indemnification provided by this Agreement shall be
a continuing right to indemnification and shall survive the
registration and sale of Purchaser Shares and Adjustment Shares
by any person entitled to indemnification hereunder and the
expiration or termination of this Agreement.
18.1.7 With a view to making available to the Selling
Stockholders the benefits of Rule 144 and any other rule or regulation
of the SEC that may at any time permit a Selling Stockholder to sell
securities of Purchaser to the public without registration, Purchaser
agrees to use its best efforts to: (i) make and keep public
information available, as those terms are understood and defined in
Rule 144, at all time subsequent to the Closing Date; (ii) file with
the SEC in a timely manner all reports and other documents required of
Purchaser under the Securities Act and the Exchange Act; (iii) furnish
to any Selling Stockholder so long as such person owns any of
Purchaser Shares or Adjustment Shares forthwith upon request a copy of
the most recent annual or quarterly report of Purchaser, and such
other reports and documents so filed by Purchaser as may be reasonably
requested in availing the holder of any rule or regulation of the SEC
permitting the selling of any such securities without registration.
18.2 Additional Documents; Further Assurances. In addition to the
schedules and other 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 be requested in order to effectuate the purposes
of this Agreement.
18.3 Transfer Of Shares. Purchaser Common Stock included in the Units
and issuable upon the exercise of the Warrants included in the Units to be
issued as payment of the Purchase Price may be transferred to the members
of Seller subject to the requirements of all applicable federal and state
securities laws. This transfer will be structured to result in compliance
by Seller and by all members of Seller with Article V, Section 9 of
Purchaser's Bylaws, as amended, with respect to the number of shares of
Purchaser's stock that are deemed to be owned by any person or entity.
Prior to transferring Purchaser Common Stock on Purchaser's stock transfer
records, Purchaser may require evidence of compliance with applicable
federal and state securities laws and Purchaser's Bylaws, including
appropriate representation or subscription agreements signed by each
transferee of Purchaser Common Stock, which subscription agreements shall
be substantially in the form of Exhibit G attached to and made a part of
this Agreement.
19. Notices. 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 19. When mailed, each such Notice shall be sent by first class by first
class, certified mail, return receipt requested, enclosed in a postage prepaid
wrapper, and shall be effective on the fifth business 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 19, provided that it is delivered on a business day and further
14
provided that it is delivered prior to 5:00 p.m., local time of the Party to
whom the notice is being delivered, on that business day; otherwise, each such
Notice shall be effective on the first business day occurring after the Notice
is delivered. When sent by telecopier or facsimile, each such Notice shall be
effective on the day on which it is sent provided that it is sent on a business
day and further provided that it is sent prior to 5:00 p.m., local time of the
Party to whom the Notice is being sent, on that business day; otherwise, each
such Notice shall be effective on the first business day occurring after the
Notice is sent. Each such Notice shall be addressed to the Party to be notified
as shown below:
To Purchaser:
AmeriVest Inverness, Inc.
c/o Xxxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
To Seller:
Sheridan Realty Partners, L.P.
c/o Sheridan Realty Corp., General Partner
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: D. Xxxxx Xxxxxxxxx
Either Party may change its respective address for purposes of this Section
19 by giving the other Party Notice of the new address in the manner set forth
above.
20. Entire Agreement. This Agreement, together with the exhibits attached
hereto, all of which are incorporated by reference, 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 both parties.
21. 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.
22. 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.
23. Time Of Essence. Time is of the essence in this Agreement.
24. 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.
25. Recordation. Seller and Purchaser agree not to record this Agreement or
any memorandum hereof.
26. 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
15
survive the Closing except as specifically limited herein. This Agreement may
not be assigned by either Party without the prior written consent of the other
Party hereto, except that Purchaser may assign this Agreement to a wholly-owned
subsidiary of the Purchaser in which event Purchaser shall continue to be
obligated to issue the Purchaser Shares and Adjustment Shares, if any are
required to be issued, and to register the Registrable Securities in accordance
with the terms of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized officers or representatives on the dates set forth
below to be effective as of the date set forth on the first page of this
Agreement.
SHERIDAN REALTY PARTNERS, L.P AMERIVEST INVERNESS, INC.
a Delaware limited partnership a Colorado corporation
By: Sheridan Realty Corp., General Partner
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------- ------------------------------------
Xxxxxxx Xxxxxx, President Xxxxxxx X. Xxxxxx, President
SHERIDAN INVESTMENTS, LLC
a Colorado limited liability company,
By: Sheridan Development, LLC,
a Colorado limited liability company, Manager
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Xxxxxxx Xxxxxx, Manager of Sheridan
Development, LLC
By: /s/ Xxxxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxxx X. Xxxxxx, Manager of Sheridan
Development, LLC
16
PURCHASE AND SALE AGREEMENT
Dated July 1, 2000
Between Sheridan Realty Partners, L.P. and
AmeriVest Inverness, Inc.
EXHIBIT INDEX
Exhibit Description
------- -----------
A Operating Agreement of Sheridan Investments, LLC
B Operating Agreement of Sheridan Plaza at Inverness, LLC
C Legal Description of the Property
D Form of Warrant Agreement
E Rent Roll as of June 30, 2000
F Subscription and Registration Rights Agreement
