Contract
Exhibit
99.2
BUYER:
LEVY
AFFILIATED HOLDINGS, LLC,
A
CALIFORNIA LIMITED LIABILITY COMPANY, OR ITS ASSIGNEE
SELLER:
FRANKLIN
DEVELOPMENT CORPORATION
A UTAH
CORPORATION
TABLE
OF CONTENTS
Table
of Contents
Page
| 1. | PURCHASE PRICE | ||
| 2. | OPENING ESCROW | ||
| 3. | TITLE TO PROPERTY | ||
| 4. | CONDITIONS TO BUYER'S OBLIGATINS TO PURCHASE | ||
| 4.1 Approvals by Buyer | |||
| 4.2 Utilities | |||
| 4.3 Physical Characteristics of the Property | |||
| 4.4 Accuracy of Representations | |||
| 4.5 Foreign Investments | |||
| 4.6 Lease | |||
| 4.7 Change in Conditions | |||
| 4.8 Failure of Conditions | |||
| 5. | CONDITIONS TO SELLER'S OBLIGATION TO SELL | ||
| 5.1 Performance by Buyer | |||
| 5.2 Declaration of Easements, Covenants, Conditions and Restrictions | |||
| 5.3 Accuracy of Representations | |||
| 5.4 Payment of Purchase Price | |||
| 6. | BUYER’S DELIVERIES TO ESCROW AGENT AND SELLER | ||
| 6.1 Purchase Price | |||
| 6.2 Lease and Memorandum of Lease | |||
| 6.3 Failure to Deliver | |||
| 7. | SELLER’S DELIVERIES TO ESCROW AGENT AND BUYER | ||
| 7.1 Deed, Bills of Sale | |||
| 7.2 Lease and Memorandum of Lease | |||
| 7.3 Failure to Deliver | |||
| 8. | THE CLOSING | ||
| 8.1 Date and Manner of Closing | |||
| 8.2 Delay in Closing, Authority to Close | |||
| 9. | PRORATION, COSTS AND EXPENSES | ||
| 9.1 Prorations and Apportionments | |||
| 9.2 Payment of Adjustments to Proration | |||
| 9.3 Seller's Cost and Expenses | |||
| 9.4 Buyers Costs and Expenses | |||
| 10. | DISTRIBUTION OF FUNDS AND DOCUMENTS | ||
| 10.1 Form of Distributions | |||
| 10.2 Recorded Documents | |||
| 10.3 Non-Recorded Documents | |||
| 10.4 Cash Disbursements | |||
| 10.5 Copies of Documents | |||
| 11. | RETURN OF DOCUMENTS AND FUNDS UPON TERMINATION | ||
| 11.1 Return of Seller’s Documents | |||
| 11.2 Return of Buyer’s Documents | |||
| 11.3 No Effect on Rights of Parties | |||
| 11.4 Payment of Termination Fee | |||
| 12. | DEFAULT | ||
| 12.1 Seller’s Remedy | |||
| 12.2 Buyer’s Remedies | |||
| 13. | REPRESENTATIONS AND WARRANTIES OF SELLER | ||
| 13.1 Authority of Seller | |||
| 13.2 Condition of Property. | |||
| 13.3 Use and Operation | |||
| 13.4 Land Use Regulation. | |||
| 13.5 Absence of Fraud and Misleading Statements | |||
| 13.6 Litigation | |||
| 13.7 Other Contracts to Convey | |||
| 13.8 Property Tax Assessment | |||
| 13.9 Confidentiality | |||
| 13.10 Use Permits and Other Approvals | |||
| 13.11 Survival | |||
| 13.12 No Broker | |||
| 14. | REPRESENTATIONS & WARRANTIES OF BUYER | ||
| 14.1 Authority of Buyer | |||
| 14.2 Absence of Fraud and Misleading Statements | |||
| 14.3 Litigation | |||
| 14.4 Financial Condition | |||
| 14.5 Survival | |||
| 14.6 No Broker | |||
| 15. | COVENANTS | ||
| 15.1 Indemnification by Parties | |||
|
15.2 Maintenance |
|||
| 15.3 Other Agreements | |||
| 16. | LOSS BY FIRE OR OTHER CASUALTY; CONDEMNATION | ||
| 16.1 Damage or Destruction | |||
| 16.2 Condemnation | |||
| 17. | POSSESSION | ||
| 18. | NOTICES | ||
| 19. | GENERAL PROVISIONS | ||
| 19.1 Recitals | |||
| 19.2 Right to Assign | |||
| 19.3 Gener; Number | |||
| 19.4 Captions | |||
| 19.5 Exhibits | |||
| 19.6 Entire Agreement | |||
| 19.7 Modification | |||
| 19.8 Attorneys' Fees | |||
| 19.9 Joint and Several Liability | |||
| 19.10 Governing Law | |||
| 19.11 Time of Essence | |||
| 19.12 Severability | |||
| 19.13 Successors and Assigns | |||
| 19.14 Drafting | |||
| 19.15 No Agreement Until Accepted | |||
| 19.16 No Recording | |||
| 19.17 Counterparts | |||
EXHIBIT
“A” - LEGAL DESCRIPTION
EXHIBIT
“A-1” - FIXTURES LIST
EXHIBIT
“B” - LEASE AGREEMENT
THIS
PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (this “Agreement”), dated
_______________________, 2005 for reference purposes only, is made by and
between FRANKLIN DEVELOPMENT CORPORATION, a Utah corporation (“Seller”), and
LEVY AFFILIATED HOLDINGS, LLC, a California limited liability company (“Buyer”),
or assignee, and is made with reference to the recitals set forth below, and
constitutes (i) a
contract of purchase and sale between the parties, and (ii) escrow
instructions to FIRST AMERICAN TITLE INSURANCE COMPANY (the “Escrow
Agent”).
RECITALS
A. Seller
owns four (4) parcels of certain real property, together with all improvements
located thereon and appurtenances thereunto belonging, which real property is
more particularly identified in Exhibit “A” attached hereto and incorporated
herein. The Property is a business office complex consisting of five (5)
improved buildings. The term “Property” as used in this Agreement shall mean all
of the real property identified in Exhibit “A” and the fixtures (“Fixtures”) set
forth on Exhibit “A-1” attached hereto, but excludes Seller’s personal property,
including artwork and collectibles on display therein.
B. Seller
desires to sell all of Seller’s right, title and interest in and to the Property
upon the terms and conditions set forth below. Buyer desires to purchase all of
Seller’s right, title, and interest in and to the Property upon the terms and
conditions set forth below.
C. Concurrently
with the Closing (as defined in Section 8), Buyer, as landlord, shall lease the
entire Property back to Seller, as tenant, pursuant to a certain Lease Agreement
(the “Lease”), substantially in the form of Exhibit “B,” attached hereto and
incorporated herein. The parties hereby acknowledge that the lease is a material
inducement to concluding this purchase and sale agreement, and that if the
parties fail to mutually execute a lease, that this contract for purchase and
sale shall be null, void and of no effect whatsoever.
NOW,
THEREFORE, in consideration of the above recitals, the mutual covenants set
forth below in this Agreement, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, Seller and Buyer agree as
follows
1. PURCHASE
PRICE
In
consideration of the covenants contained in this Agreement, Seller shall sell
and Buyer shall purchase the Property for a total purchase price of THIRTY-FOUR
MILLION THREE HUNDRED THIRTY THOUSAND AND NO/100 DOLLARS ($34,330,000)
(“Purchase Price). Buyer shall pay for all closing and escrow costs, fees and
charges of the transaction contemplated hereby in connection with the Property
acquired by Buyer, as are customary for the Buyer in the locality and any costs
relating to any financing obtained by Buyer. The Purchase Price shall be
delivered by Buyer to Escrow Agent on or before the Closing in Cash (defined as
(i) United States currency, (ii) cashier’s or certified check(s) currently
dated, payable to Escrow Agent, and honored upon presentation for payment, (iii)
an amount credited by wire transfer into Escrow Agent’s bank account, or (iv) if
monies are deposited with Escrow Agent within twenty (20) days prior to the
Closing, funds in such form as Escrow Agent in its sole discretion
requires).
2. OPENING
OF ESCROW
Within
five (5) business days following the execution of this Agreement, (i) Buyer and
Seller shall open an escrow (the “Escrow”) with Escrow Agent for the Properties
and shall deposit with Escrow Agent fully executed counterparts of this
Agreement for use as escrow instructions and (ii) Buyer shall deposit with the
Escrow Agent a forfeitable xxxxxxx money deposit in the amount of TWO HUNDRED
FIFTY THOUSAND DOLLARS ($250,000) (the “Xxxxxxx Money”), which amount shall
become totally non-refundable in the event Buyer, not being excused from
performance pursuant to Section 4 of this Agreement, fails or refuses to close
on the date specified in Section 8 below. Buyer and Seller may provide Escrow
Agent with supplemental escrow instructions in connection with the Closing.
3. TITLE
TO PROPERTY
At
Closing, Seller shall convey to Buyer fee simple title to the Property by
execution and delivery of a special warranty deed (“Deed”) for the Property and,
free of any financial liens, bills of sale for the Fixtures (“Bills of Sale”),
in the forms customarily used in connection with commercial real property
transactions in the State of Utah. At the Closing, Buyer shall receive from
First American Title Insurance Company (“Title Company”) an ALTA Owner’s
Extended Policy of Title Insurance (the “Title Policy”) with liability in the
full amount of the Purchase Price insuring fee simple title to the Property in
Buyer, subject only to exceptions approved by Buyer as provided in Section 4.1
below, together with such endorsements as may be reasonably requested by Buyer.
The Title Policy shall provide survey coverage and shall provide full coverage
against mechanics’ and materialmen’s liens arising out of the construction,
repair or alteration of any improvements located on the Property. The cost of
the Title Policy, including all endorsements, shall be paid by
Buyer.
4. CONDITIONS
TO BUYER’S OBLIGATION TO PURCHASE
Buyer’s
obligation to purchase the Property is expressly conditioned upon each of the
following conditions:
| 4.1 |
Approvals
by Buyer |
Buyer’s
receipt and approval for the Property of the following prior to the
Closing:
| 4.1.1 |
ALTA
Commitment for Policy of Title Insurance.
As soon as reasonably possible after execution of this Agreement by Seller
and Buyer, Seller shall cause the issuance of a Utah ALTA commitment for
policy of title insurance, together with complete and legible copies of
all encumbrances and liens of record (the “Commitment”), with respect to
the Property to be forwarded to Buyer for approval. If no written
disapproval of any items in the Commitment is received from Buyer on or
before ten (10) days after the later of delivery of the Commitment to
Buyer or delivery of the respective Survey (as defined in Section 4.1.2),
the Commitment shall be deemed approved by
Buyer. |
| 4.1.2 |
Survey.
As soon as reasonably possible after execution of this Agreement by Seller
and Buyer, Seller shall deliver to Buyer all surveys and plat maps of the
Property, or any portion thereof, which Seller has in its possession.
Buyer may, at its own expense, obtain a current ALTA/ACSM Land Title
Survey of the Property. All such surveys shall be referred to herein as
the "Survey", whether one or more. If
no written disapproval of the Survey is received from Buyer on or before
ten (10) days after the later of delivery of the Survey or the respective
Commitment, the Survey shall be deemed approved by
Buyer. |
| 4.1.3 |
Environmental
and Other Studies.
As soon as reasonably possible after execution of this Agreement by Seller
and Buyer, Seller shall deliver to Buyer all environmental studies and
assessments, geotechnical and other studies of the Property, or any
portion thereof, which Seller has in its possession. Buyer shall also have
the right to obtain its own environmental assessments, structural and
engineering assessments and other studies of the Property, at its own
expense. Buyer and its agents shall have the right to enter upon the
Property for such purpose. In the event that any of the environmental
assessments, engineering reports or other studies obtained by Buyer (from
Seller or otherwise) suggest the need for further tests or studies to be
undertaken with respect to the Property, Buyer shall have a reasonable
time to have such tests or studies performed and reviewed. All such
studies and assessments shall be referred to in this Agreement as the
“Studies.” If no written disapproval of the Studies is received from Buyer
on or before ten (10) days after delivery of same, the Studies shall be
deemed approved by Buyer. |
| 4.1.4 |
Plans
and Specifications.
As soon as reasonably possible, Seller shall submit complete final
as-built plans and specifications to the extent in its possession for the
Property to Buyer. |
| 4.2 |
Utilities |
Buyer’s
satisfaction that all water, sewer, gas, electric, telephone, and drainage
facilities and all other utilities required by law or by the normal use and
operation of the Property are and at the time of Closing will be installed to
the property lines of the Property, are and at the time of Closing will be
connected and operating pursuant to valid permits, and are and at the time of
Closing will be adequate to service the Property and to permit full compliance
with all requirements of law and normal usage of the Property.
| 4.3 |
Physical
Characteristics of the Property |
Buyer’s
review and approval, prior to the Closing, of the structural, mechanical,
electrical and other physical characteristics of the Property.
| 4.4 |
Accuracy
of Representations |
All of
Seller’s representations and warranties contained in or made pursuant to this
Agreement shall have been true and correct when made and shall be true and
correct as of the Closing, and Seller shall have complied with all of Seller’s
covenants and agreements contained in or made pursuant to this
Agreement.
| 4.5 |
Foreign
Investments |
Buyer’s
receipt of the affidavit, certification, or notice required by Section 1445 of
the Internal Revenue Code of 1954, as amended and the Regulations pursuant
thereto, in a form sufficient to relieve Buyer of any potential transferee
withholding liability under such Section.
| 4.6 |
Lease |
Execution
by Buyer and Seller of the Lease for the Property.
| 4.7 |
Change
in Conditions |
If any of
the conditions in this Section 4 materially change after having been satisfied
or waived by Buyer and before the transaction contemplated herein is closed,
then such condition(s) shall be reinstated as if having never been satisfied or
waived by Buyer.
| 4.8 |
Failure
of Conditions |
| 4.8.1 |
The
foregoing conditions contained in this Section 4 are intended solely for
the benefit of Buyer. If any of the foregoing conditions are not satisfied
or approved by Buyer, Buyer shall have the right at its sole election
either (i) to waive the condition in question and proceed with the
purchase of the Property pursuant to all of the other terms of this
Agreement, or (ii) to terminate this Agreement in its entirety.
|
| 4.8.2 |
By
written agreement by Seller and Buyer, the Closing may be extended for a
reasonable time if required to allow the conditions contained in this
Section 4 to be satisfied, subject to Buyer’s or Seller’s further rights
to terminate this Agreement upon the expiration of the period of any
extension if all such conditions have not then been
satisfied. |
| 4.9 |
Property
Approval Period. |
Buyer
shall complete its review and investigation of the matters identified in
Sections 4.1,
4.2 and
4.3, above,
prior to the date thirty (30) days after the date of execution of this Agreement
(the “Property Approval Deadline”). If prior to the Property Approval Deadline,
Buyer determines in good faith that the Property is not acceptable based upon
its review, then Buyer shall have the right, by giving notice to Seller, to
terminate this Agreement. If Buyer exercises the right to terminate this
Agreement in accordance with this Section 4.9 this
Agreement shall terminate as of the date such termination notice is given by
Buyer and Buyer shall have the right to receive the Xxxxxxx Money from the
Escrow Agent.
If prior
to the Closing, a Lease is not executed for the property between Buyer and
Seller, then Buyer shall have the right at any time prior to the Closing, by
giving notice to Seller, to terminate this Agreement. If Buyer exercises the
right to terminate this Agreement in accordance with this Section 4.9 this
Agreement shall terminate as of the date such termination notice is given by
Buyer and Buyer shall have the right to receive the Xxxxxxx Money from the
Escrow Agent.
| 4.10 |
Loan
Contingency. |
Buyer
shall have obtained third-party financing for sixty percent (60%) of the
Purchase Price upon terms and conditions reasonably acceptable to Buyer (the
“Financing”).
| 4.11 |
Loan
Contingency Period. |
Buyer
shall obtain the Financing on or before the date sixty (60) days after the date
of execution of this Agreement (the “Loan Contingency Period”). If prior to
expiration of the Loan Contingency Period, Buyer determines in good faith that
it will not be successful in obtaining the Financing, then Buyer shall have the
right, by giving notice to Seller, to either (a) terminate this Agreement, (b)
waive the requirements of Section 4.10, or (c)
increase the deposit set forth in Section 2 by
depositing an additional $100,000 in Escrow, in which event the Closing date as
set forth in Section 8.1 below
shall be extended by thirty (30) days. If Buyer exercises the right to terminate
this Agreement in accordance with this Section 4.11(a) this
Agreement shall terminate as of the date such termination notice is given by
Buyer and Buyer shall have the right to receive the Xxxxxxx Money from the
Escrow Agent. If Buyer elects to continue with the transaction pursuant to
either subsection (b) or (c) of this Section 4.11, the
Xxxxxxx Money shall become non-refundable on the 60th day of
the Loan Contingency Period.
5. CONDITIONS
TO SELLER’S OBLIGATION TO SELL
Seller’s
obligation to sell is expressly conditioned upon each of the
following:
| 5.1 |
Board
Approval. |
Seller’s
Board of Directors has passed a resolution authorizing the sale of the Property
to Buyer pursuant to the terms and conditions contained in this
Agreement.
| 5.2 |
Performance
by Buyer |
Timely
performance of each obligation, covenant, and delivery required of
Buyer.
| 5.3 |
Declaration
of Easements, Covenants, Conditions and Restrictions. |
Execution
and recordation of a Declaration of Easements, Covenants, Conditions and
Restrictions (“Declaration”) for certain cross-easements for access and parking
with the owner of certain real property located adjacent to the Property
(“Adjacent Property Owner”). The Adjacent Property Owner must utilize certain
parts of the Property owned by Seller for vehicular and pedestrian access. In
order to effectuate the common use and operation of the Property for the mutual
benefit of the Adjacent Property Owner, future owners of any parcel in the
Property and holders of leasehold interests in any parcel in the Property, it is
necessary to create certain mutual rights to use the Property and the adjacent
property to facilitate the operation of an integrated business park.
| 5.4 |
Accuracy
of Representations |
All of
Buyer’s representations and warranties contained in or made pursuant to this
Agreement shall have been true and correct when made and shall be true and
correct at the Closing, and Buyer shall have complied with all of Buyer’s
covenants and agreements contained in or made pursuant to this
Agreement.
| 5.5 |
Payment
of Purchase Price |
Payment
of the Purchase Price at the Closing in the manner provided in this
Agreement.
6. BUYER’S
DELIVERIES TO ESCROW AGENT AND SELLER
| 6.1 |
Purchase
Price |
Buyer
shall deliver in Cash to Escrow Agent the Purchase Price as set forth in
Section 1, less or plus the adjustments, if any, made pursuant to Section
9. Escrow Agent shall deposit the Purchase Price in an interest bearing account,
the interest upon which shall accrue to the benefit of Buyer.
| 6.2 |
Lease
and Memorandum
of Lease |
On or
before the Closing, Buyer shall deliver to Escrow Agent the Lease for the
Property executed by Buyer. On or before the Closing, Buyer shall deliver to
Escrow Agent the Memorandum of Lease for the Property, executed and acknowledged
by Buyer.
| 6.3 |
Failure
to Deliver |
The
failure of Buyer to make any required delivery within the specified time shall
constitute a material breach by Buyer; however, if the Buyer fails to deliver
the Lease because it disapproves of the Lease, the breach shall be excused, and
the agreement shall terminate in accordance with Section 4.9 of this
Agreement.
7. SELLER’S
DELIVERIES TO ESCROW AGENT AND BUYER
| 7.1 |
Deed,
Bills of Sale |
On or
before the Closing, Seller shall deliver to Escrow Agent the Deed for the
Property and the Xxxx of Sale for the Fixtures executed and, in the case of the
Deed, acknowledged by Seller.
| 7.2 |
Lease
and Memorandum of Lease |
On or
before the Closing, Seller shall deliver to Buyer the Lease for the Property
executed by Seller. In addition, on or before the Closing, Seller shall deliver
to Buyer the Memorandum of Lease for the Property executed and acknowledged by
Seller.
| 7.3 |
Failure
to Deliver |
The
failure of Seller to make any required delivery within the specified time shall
constitute a material breach by Seller.
8. THE
CLOSING
| 8.1 |
Date
and Manner of Closing |
Escrow
Agent shall close the Escrow (the “Closing”) on or before the date which is
ninety (90) days following the date Escrow was opened pursuant to Section
2 above
(the “Scheduled Closing Date”), provided that all of the conditions to Buyer’s
obligation to purchase have been either satisfied or waived. The Escrow shall be
deemed closed when (i) all documents required to be delivered to Buyer and
Escrow Agent pursuant to this Agreement have been delivered or delivery of such
document(s) has been waived; (ii) the Declaration described in paragraph 5.3 has
been executed by the appropriate parties; (iii) the Title Company is irrevocably
committed to issuing the Title Policy; and (iv) all funds required to be
delivered to Escrow Agent pursuant to this Agreement have been delivered and are
ready to be disbursed subject only to the closing of escrow.
| 8.2 |
Time
is of the Essence; Delay in Closing; Authority to
Close |
Time is
of the essence in the performance of the covenants and conditions herein.
Nevertheless, if Escrow Agent cannot close the Escrow on or before the Scheduled
Closing Date, it will nevertheless close when all conditions have been satisfied
or waived, notwithstanding that one or more of such conditions was not timely
performed, unless after the Scheduled Closing Date and prior to the close of the
delayed Escrow, Escrow Agent receives a written notice to terminate the Escrow
and this Agreement, from a party who, at the time such notice is delivered, is
not in default. Neither (i) the exercise of the right of termination, (ii) delay
in the exercise of the right of termination, nor (iii) the return of monies and
documents, shall affect the right of the party giving notice of termination to
pursue legal or equitable remedies for the other party’s breach of this
Agreement. Nor shall (i) the giving of such notice, (ii) the failure to object
to termination of the Escrow, or (iii) the return of monies and documents affect
the right of the other party to pursue legal or equitable remedies for the
breach of the party who gives notice.
9. PRORATION,
COSTS AND EXPENSES
| 9.1 |
Prorations
and Apportionments |
Contemporaneously
with the Closing, Seller intends to lease the Property from Buyer. Therefore,
the parties do not anticipate the need to prorate revenues or expenses. However,
in the event an item of expense or revenue must be prorated, it shall be
prorated and apportioned as of 12:01 a.m. on the date of the Closing so that
Seller shall bear all expenses with respect to the Property and shall have the
benefit of all income with respect to the Property through and including the
period preceding the date of the Closing. Any taxes or other amounts which
cannot be ascertained with certainty as of the Closing shall be prorated on the
basis of the parties’ reasonable estimates of such amount(s) and shall be the
subject of a final proration thirty (30) days after the Closing or as soon
thereafter as the precise amounts can be ascertained.
| 9.2 |
Payment
of Adjustments to Proration |
Either
party owing the other party a sum of money based on adjustments made to
prorations after the Closing shall promptly pay that sum to the other party,
together with interest thereon at the rate of twelve percent (12%) per annum to
the date of payment if payment is not made within ten (10) days after mutual
agreement of the amount due, or within thirty (30) days of the Closing, if that
date is earlier.
| 9.3 |
Seller’s
Costs and Expenses |
Seller
shall pay Seller’s own attorneys’ fees. Seller
shall pay for the costs of the Closing as are customarily paid for by Seller in
the locality.
| 9.4 |
Buyer’s
Costs and Expenses |
Buyer
shall pay for Buyer’s own attorneys’ fees or any costs related to any mortgage
loan obtained by Buyer. Buyer shall pay for the costs of the Closing as are
customarily paid for by Buyer in the locality.
10. DISTRIBUTION
OF FUNDS AND DOCUMENTS
| 10.1 |
Form
of Distributions |
All
disbursements by Escrow Agent shall be made by checks of Escrow Agent or by wire
transfers to the account of, and as directed by, the receiving
party.
| 10.2 |
Recorded
Documents |
Escrow
Agent shall cause the County Recorder of Salt Lake County to mail the Deed (and
any other documents which are required by this Agreement to be, or by general
usage are, recorded) after recordation, to the grantee, beneficiaries, or person
(i) acquiring rights under the documents or (ii) for whose benefit the documents
were recorded. Additionally, Escrow Agent shall cause the County Recorder of
Salt Lake County to mail the Declaration after recordation to Seller and
Buyer.
| 10.3 |
Non-Recorded
Documents |
Escrow
Agent shall, at the Closing, deliver by United States mail (or shall hold for
personal pickup, if requested), each non-recorded document received by Escrow
Agent to the payee or person (i) acquiring rights under the document or (ii) for
whose benefit the documents were acquired.
| 10.4 |
Cash
Disbursements |
At the
Closing, Escrow Agent shall hold for personal pickup or shall arrange for wire
transfer (i) to Seller, or order, the Purchase Price plus any proration or other
credits to which Seller shall be entitled for the Property and less any
appropriate proration or other charges and (ii) to Buyer, or order, any excess
funds previously delivered to Escrow Agent by Buyer.
| 10.5 |
Copies
of Documents |
Following
the Closing, Escrow Agent shall deliver to Buyer and to Seller a copy of the
Deed, the Declaration, (conformed to show recording data) and each other
recorded document for the Property.
11. RETURN
OF DOCUMENTS AND FUNDS UPON TERMINATION
| 11.1 |
Return
of Seller’s Documents |
In the
event the Escrow is terminated for any reason (other than the default of
Seller), Buyer shall, within fifteen (15) calendar days following the
termination, deliver to Seller all documents and materials, if any, relating to
the Property previously delivered to Buyer by Seller. Escrow Agent shall deliver
all documents and materials relating to the Property previously deposited by
Seller and then in Escrow Agent’s possession to Seller.
| 11.2 |
Return
of Buyer’s Documents |
In the
event the Escrow is terminated for any reason (other than the default of Buyer),
Seller shall, within fifteen (15) calendar days following termination, deliver
to Buyer all funds and documents, if any, relating to the Property, previously
delivered to Seller by Buyer. Escrow Agent shall deliver all documents,
materials, and funds relating to the Property previously deposited by Buyer and
then in Escrow Agent’s possession to Buyer.
| 11.3 |
No
Effect on Rights of Parties |
The
return of documents and monies as set forth above shall not affect the right of
either party to seek the legal or equitable remedies that the party may have
with respect to the enforcement of this Agreement.
| 11.4 |
Payment
of Termination Fee |
Escrow
Agent may condition its deliveries upon payment of a reasonable title commitment
termination fee by the party requesting delivery. Notwithstanding the foregoing,
any termination fee shall be paid (or reimbursed) by the defaulting party, or
paid equally if neither party is then in default.
12. DEFAULT
| 12.1 |
Seller’s
Remedy |
In the
event that the transaction fails to close on account of Buyer’s fault or Buyer’s
breach of this Agreement, Seller shall be entitled to such remedies for breach
of contract as may be available under applicable law, including, without
limitation, the remedy of specific performance.
| 12.2 |
Buyer’s
Remedies |
In the
event that the transaction fails to close on account of Seller’s fault or
Seller’s breach of this Agreement, Buyer shall be entitled to such remedies for
breach of contract as may be available under applicable law, including, without
limitation, the remedy of specific performance.
13. REPRESENTATIONS
AND WARRANTIES OF SELLER
The
following representations and warranties by Seller are now and shall, at the
Closing, be true and correct. If during the period between the execution of this
Agreement and the Closing, Seller learns of or has a reason to believe that any
of the following representations and warranties may cease to be true, Seller
covenants to give notice thereof to Buyer immediately.
| 13.1 |
Authority
of Seller |
Seller is
a corporation duly organized and validly existing and in good standing under the
laws of the State of Utah and has the authority to own and convey the Property.
This Agreement and all documents executed by Seller which are to be delivered to
Buyer are, or at the time of the Closing will be, duly authorized, executed, and
delivered by Seller and do not, and at the time of the Closing will not, violate
any provisions of any agreement or judicial order to which Seller is a party or
to which Seller or the Property is subject.
| 13.2 |
Condition
of Property. |
To
Seller’s actual knowledge (in contrast to constructive, implied or imputed
knowledge) and without inquiry or investigation, there are now, and at the
Closing there will be, no material, physical or mechanical defects of the
Property, including, without limitation, the plumbing, heating, air
conditioning, ventilating, emergency safety systems, and electrical systems, and
all such items are in good operating condition and repair and in compliance with
all applicable governmental laws, ordinances, regulations, and requirements,
including, but not limited to, the Americans with Disabilities Act. In addition,
there are no existing leases of the Property or any portion
thereof.
| 13.3 |
Use
and Operation |
To
Seller’s actual knowledge (in contrast to constructive, implied or imputed
knowledge) and without inquiry or investigation, the use and operation of the
Property now is, and at the time of Closing will be, in substantial compliance
with applicable building codes, safety, fire, environmental, zoning, and land
use laws, and other applicable local, state, and federal laws, ordinances,
regulations, and requirements.
| 13.4 |
Land
Use Regulation. |
To
Seller’s actual knowledge (in contrast to constructive, implied or imputed
knowledge) and without inquiry or investigation, there are no condemnation,
environmental, zoning or other land use regulation proceedings contemplated or
instituted which could detrimentally affect the use or operation of the Property
or the value of the Property, nor has Seller received notice of any special
assessment proceedings affecting the Property.
| 13.5 |
Absence
of Fraud and Misleading Statements |
No
representation, warranty, or statement of Seller in this Agreement or in any
document, certificate, or schedule furnished or to be furnished to Buyer
pursuant thereto, contains or will contain any knowingly untrue statement of a
material fact or knowingly omits or will omit to state a material fact necessary
to make the statements or facts not misleading. All representations, warranties,
or statements of Seller are based upon current, accurate, and complete
information as of the time of their making (without any duty of inquiry or
investigation on the part of the Seller) and, to Seller’s actual knowledge,
there has been no subsequent material change in the information.
| 13.6 |
Litigation |
To
Seller’s actual knowledge (in contrast to constructive, implied or imputed
knowledge) and without inquiry or investigation, there is no litigation, pending
or threatened, against Seller or any basis therefor that arises out of the
ownership of the Property, or that might detrimentally affect the use or
operation of the Property for its intended purpose or the value of the Property,
or adversely affect the ability of Seller to perform its obligations under this
Agreement.
| 13.7 |
Other
Contracts to Convey |
Seller
has not committed nor obligated itself in any manner whatsoever to sell the
Property to any party other than Buyer. Seller has not hypothecated or assigned
any rents or income from the Property in any manner.
| 13.8 |
Property
Tax Assessment |
Seller
has not received written evidence of special assessments levied against the
Property except as appear on the last available tax statement
| 13.9 |
Confidentiality |
Seller
and Buyer shall hold as confidential all information concerning the other and
this transaction. Seller and Buyer shall not release any such information to
third parties without the other’s prior written consent, except, in the case of
Buyer, with respect to customary disclosures to rating agencies and lenders and,
in the case of both Buyer and Seller, customary disclosures to accountants and
disclosures pursuant to a court order requiring such release or as otherwise may
be required by law. The foregoing agreement shall survive Closing or the
termination of this Agreement.
| 13.10 |
Use
Permits and Other Approvals. |
Seller
has obtained all licenses, permits, approvals, easements, and rights of way
required from all governmental authorities having jurisdiction over the Property
or from private parties for the normal use and operation of the Property and to
ensure free and unimpeded vehicular and pedestrian ingress to and egress from
the Property as required to permit the normal intended usage of the Property.
Seller has materially complied with all licenses and permits and has not
received any notice that any licenses or permits will not be renewed upon
expiration, or of any material conditions which will be imposed in order to
receive any renewal.
| 13.11 |
Survival |
The
representations and warranties of Seller contained herein shall survive the
Closing and delivery of the Deed for a period of one (1) year from the date of
Closing.
| 13.12 |
No
Broker |
Seller
warrants to Buyer that other than the commissions payable to American Commercial
Real Estate Specialists, Inc., a Utah corporation doing business as NAI UTAH and
Terra Marketing, Inc., an Arizona corporation doing business as NAI INVESTMENT
PROPERTY CENTER (the cost of which shall be paid for by Seller according to the
terms of a separate agreement) there are no brokerage commissions or finder’s
fees payable as a result of the Closing herein or as a result of any agreements
with Seller or actions of Seller. Seller shall indemnify and hold harmless Buyer
from any claims, costs, damages, or liability based on any statement,
representations, or agreement by Seller with respect to the payment of any
brokerage commissions or finders’ fees.
14. REPRESENTATIONS
& WARRANTIES OF BUYER
Buyer
hereby represents and warrants to Seller as follows:
| 14.1 |
Authority
of Buyer |
Buyer is
a limited liability company duly organized and validly existing under the laws
of the State of California. This Agreement and all documents executed by Buyer
which are to be delivered to Seller at the Closing are, or at the time of
Closing will be, duly authorized, executed, and delivered by Buyer, and are, or
at the Closing will be, legal, valid, and binding obligations of Buyer, and do
not, and at the time of Closing will not, violate any provisions of any
agreement or judicial order to which Buyer is a party or to which it is
subject.
| 14.2 |
Absence
of Fraud and Misleading Statements |
No
representation, warranty, or statement of Buyer in this Agreement or in any
document, certificate, or schedule furnished or to be furnished to Seller
pursuant thereto contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements or facts not misleading. All representations, warranties, or
statements of Buyer are based upon current, accurate, and complete information
as of the time of their making and there has been no subsequent material change
in the information.
| 14.3 |
Litigation |
There is
no litigation pending or, to Buyer’s knowledge, threatened, against Buyer or any
basis therefore before any court or administrative agency that might adversely
affect the ability of Buyer to perform its obligations under this
Agreement.
| 14.4 |
Financial
Condition |
Buyer has
adequate financial resources to make timely payment of all sums due from Buyer
hereunder and to perform all of its obligations hereunder.
| 14.5 |
Survival |
The
representations and warranties of Buyer contained herein shall survive the
Closing.
| 14.6 |
No
Broker |
Buyer
warrants that other than the commission payable to Sperry Xxx Xxxx, 11999 Xxx
Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx (the cost of which shall
be paid by Buyer), there are no brokerage commissions payable as a result of the
Closing herein or as a result of any agreements with Buyer or actions of Buyer.
Buyer shall indemnify and hold harmless Seller from any claims, costs, damages,
or liability based on any statement, representations, or agreement by Buyer with
respect to the payment of any brokerage commissions or finders’
fees.
15. COVENANTS
Matters
as to which Escrow Agent need not be concerned, Seller and Buyer covenant and
agree with one another as follows:
| 15.1 |
Indemnification
by Parties |
Each
party shall indemnify the other party and hold the other party harmless from and
against any and all claims, demands, liabilities, liens, costs, expenses,
penalties, damages, and losses, including, without limitation, reasonable
attorneys’ fees and costs, suffered as a direct or indirect result
of:
| 15.1.1 |
Any
misrepresentation, breach of warranty, or breach of covenant made pursuant
to this Agreement or in any document, certificate, or exhibit given or
delivered pursuant to or in connection with this Agreement;
and |
| 15.1.2 |
Any
and all obligations, liabilities, claims, liens, or encumbrances, whether
direct, contingent, or consequential, but excluding lost profits, and no
matter how arising or accruing, which are in any way related to or arising
from any act, conduct, omission, contract, or commitment of such party (or
any of its agents or employees) at any time or times before the Closing.
The provisions of this Section shall survive the execution and delivery of
this Agreement, the delivery of the Deed and transfer of
title. |
| 15.2 |
Maintenance |
Between
the Seller’s execution of this Agreement and the Closing, Seller shall, at
Seller’s sole cost and expense, maintain the Property in good order, condition,
and repair, reasonable wear and tear and casualty excepted, and shall operate
the Property in the same manner as before the making of this Agreement as though
Seller were retaining the Property.
| 15.3 |
Other
Agreements |
Seller
shall not enter into or terminate any contracts or agreements pertaining to the
Property which will be binding on Buyer after Closing without in each case
obtaining Buyer’s prior written consent thereto.
16. LOSS
BY FIRE OR OTHER CASUALTY; CONDEMNATION
| 16.1 |
Damage
or Destruction |
In the
event that any of the improvements on the Property are damaged or destroyed by
fire or other casualty prior to the Closing, then Seller may terminate this
Agreement as to each damaged or destroyed Property, or may agree to restore and
repair such damage, either before or after the Closing. Termination shall be by
written notice to Buyer within five (5) days after the occurrence of the damage
or destruction. Buyer shall have no obligation to accept Seller’s offer to
restore or repair such damage if such restoration and repair would cause the
Scheduled Closing Date to be extended. If the restoration or repair shall take
place after the Closing, a portion of the proceeds of sale equal to the
estimated cost of such restoration or repair, shall be held in escrow by Title
Company until Seller has completed the restoration or repair to the reasonable
satisfaction of Buyer. Seller shall pay escrow and related costs, if any, that
exist as a result of terminating this Agreement under this Section.
| 16.2 |
Condemnation |
In the
event that prior to the Closing a governmental entity shall commence any eminent
domain proceeding to take any portion of the Property, Seller or Buyer shall
have the option to make either of the following elections:
| 16.2.1 |
Terminate
this Agreement with respect to the Property by written notice to the other
party within five (5) days of its receiving notice of such action of
condemnation; or |
| 16.2.2 |
Proceed
with the transaction in which case the Purchase Price shall not be reduced
and Buyer shall be entitled, subject to the terms of the Lease, to the net
award paid to Seller or Seller’s mortgagee for the taking, if any, and
Seller shall assign and transfer to Buyer all right, title, and interest
in and to any awards. Notwithstanding the foregoing, any portion of any
award granted for the restoration or repair of the Property shall be paid
over to Seller upon Seller’s completion of such restoration and
repairs. |
17. POSSESSION
Possession
of the Property shall be delivered to Buyer at the Closing, subject to the
Lease.
18. NOTICES
All
notices, requests, or demands herein provided to be given or made, or which may
be given or made by either party to the other, shall be given or made only in
writing and shall be deemed to have been duly given: (i) when delivered
personally at the address set forth below, or to any agent of the party to whom
notice is being given, or (ii) on the date delivered when sent via overnight
mail, properly addressed and postage prepaid, or (iii) on the date sent via
facsimile transmission, or (iv) seventy-two (72) hours after the time the same
is deposited in the United States mail, properly addressed and first class
postage prepaid, return receipt requested. The proper address to which notices,
requests, or demands may be given or made by either party shall be the address
set forth at the end of this Section or to such other address or to such other
person as any party shall designate. Such address may be changed by written
notice given to the other party in accordance to this Section.
If
to Buyer:
Levy
Affiliated Holdings, LLC
Attn:
Xxxxxx Xxxx
000
Xxxxxxxx Xx., Xxxxxx Xxxxx
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
(000)
000-0000
(000)
000-0000 (Fax number)
With
a copy to:
Xxxxxxx
X. Xxxxxx, Esquire
X.X. Xxx
00000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
(000)
000-0000
(000)
000-0000 (Fax number)
If
to Seller:
FRANKLIN
DEVELOPMENT CORPORATION
Attn: Xxx
X. Xxxxxxxxxxx
0000 Xxxx
Xxxxxxx Xxxx.
Xxxx Xxxx
Xxxx, Xxxx 00000
(000)
000-0000
(000)
000-0000 (Fax number)
With
a copy to:
Xxxxxx X.
Xxxxxxxx, Esquire
Xxxxxxx
Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
000 Xxxxx
Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx
Xxxx, XX 00000
(000)
000-0000
(000) 000
0000 (Fax number)
If
to Escrow:
First
American Title Insurance Company
Attn:
_________________________________
_________________________________
( )
( ) (Fax
number)
19. GENERAL
PROVISIONS
| 19.1 |
Recitals |
The
Recitals set forth above commencing on Page 1 of this Agreement are incorporated
herein by reference.
| 19.2 |
Right
to Assign |
Buyer
shall have the right to assign Buyer’s rights hereunder provided Buyer obtains
Seller’s prior written consent which consent shall not be unreasonably withheld,
but any such assignment shall not relieve Buyer of Buyer’s obligations herein
unless Seller expressly relieves Buyer. Seller hereby gives its prior written
consent to the one time assignment of this Agreement prior to closing to a
limited liability company or partnership or corporate entity under common
control or common management with Buyer.
| 19.3 |
Gender;
Number |
The use
of (i) the neuter gender includes the masculine and feminine and (ii) the
singular number includes the plural whenever the context requires.
| 19.4 |
Captions |
Captions
in this Agreement are inserted for the convenience of reference only and do not
define, describe, or limit the scope or the intent of this Agreement or any of
its terms.
| 19.5 |
Exhibits |
All
attached exhibits are a part of this Agreement and are incorporated in full by
this reference.
| 19.6 |
Entire
Agreement |
This
Agreement contains the entire agreement between the parties relating to the
transactions contemplated hereby and all prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged
into this Agreement.
| 19.7 |
Modification |
No
modification, waiver, amendment, discharge, or change of this Agreement shall be
valid unless it is in writing and signed by the party against which the
enforcement of the modification, waiver, amendment, discharge, or change is or
may be sought.
| 19.8 |
Attorneys’
Fees |
Should
any party employ an attorney for the purpose of enforcing or construing this
Agreement, or any judgment based on this Agreement, in any legal proceeding
whatsoever, including insolvency, bankruptcy, arbitration, declaratory relief,
or other litigation, the prevailing party shall be entitled to receive from the
other party or parties, reimbursement for all attorneys’ fees and all costs,
including, but not limited to, service of process, filing fees, court and court
reporter costs, investigative costs, expert witness fees, and the cost of any
bonds, whether taxable or not, and that such reimbursement shall be included in
any judgment or final order issued in that proceeding. The “prevailing party”
means the party determined by the court to most nearly prevail and not
necessarily the one in whose favor a judgment is rendered.
| 19.9 |
Joint
and Several Liability |
If any
party consists of more than one person or entity, the liability of each such
person or entity signing this Agreement shall be joint and several.
| 19.10 |
Governing
Law |
This
Agreement shall be construed and enforced in accordance with the laws of the
State of Utah, without regard to its conflicts of law principles.
| 19.11 |
Time
of Essence |
Time is
of the essence of this Agreement and every provision hereof.
| 19.12 |
Severability |
In the
event any term, covenant, condition, or provision of this Agreement is held to
be invalid, void, or otherwise unenforceable by any court of competent
jurisdiction, the fact that such term, covenant, condition, or provision is
invalid, void, or otherwise unenforceable shall in no way affect the validity or
enforceability of any other term, covenant, condition, or provision of this
Agreement.
| 19.13 |
Successors
and Assigns |
All terms
of this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by the parties and their respective legal representatives,
successors, and permitted assigns.
| 19.14 |
Drafting |
This
Agreement shall not be construed more strictly against one party than the other
because it may have been drafted by one of the parties or its counsel, each
having contributed substantially and materially to the negotiation and drafting
hereof.
| 19.15 |
No
Agreement Until Accepted |
Seller’s
delivery of unexecuted copies or drafts of this Agreement is solely for the
purpose of review by the party to whom delivered and is in no way to be
construed as an offer by Seller nor in any way implies that Seller is under any
obligation to sell the Property. When this Agreement has been executed by both
Buyer and Seller, it shall constitute a binding agreement to purchase and sell
the Property upon the terms and conditions provided herein and Buyer and Seller
agree to execute all instruments and documents and take all actions as may be
reasonably necessary or required in order to consummate the purchase and sale of
the Property as contemplated herein.
| 19.16 |
No
Recording. |
Buyer
shall not record this Agreement or a Memorandum of Agreement in the official
records of Salt Lake County, Utah.
| 19.17 |
Counterparts |
This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original. The counterparts shall together constitute but one
agreement. Any signature on a copy of this Agreement or any document necessary
or convenient thereto sent by facsimile shall be binding upon transmission by
facsimile and the facsimile copy may be utilized for the purposes of this
Agreement.
19.18 Secondary
Market Transactions. Buyer
shall have the right to arrange for financing for the purchase which will allow
the Lender to sell, assign, dispose of, transfer, pledge, participate, syndicate
or otherwise transfer the Loan, and/or securitize all or any portion of Lender’s
interest in the Loan at any time, or to cause the note and deed of trust to be
split into two or more notes, parts or interests, in whatever proportion Lender
deems appropriate, which may be in the form of pari passu interests, senior and
junior interests, or other interests, and thereafter to sell, assign,
participate, syndicate or securitize all or any part of either such severed or
split note and deed of trust (any of the foregoing, a “Secondary
Market Transaction”).
Seller agrees to cooperate with Buyer and Lender to facilitate any such action,
the transfer or disposition of the Loan, the rating of the Loan or of a
securitization in which the Loan is included. Seller’s cooperation obligation
shall continue until the Loan has been repaid in full, and shall include,
without limitation, the following as each may be reasonably required from time
to time by Lender, Servicer, or any holder of the note evidencing Purchaser’s
obligations pursuant to the Loan:
|
(i) |
Consenting
to subordination of its right to possession to the Property as Lessee, or
executing any tenant estoppels or other documents necessary to complete
said Secondary Market Financing; and |
|
(ii) |
Provision
of information, reports, copies of notices and reasonable access to the
collateral properties and to personnel of Borrower’s property manager and
of Borrower’s constituent members. |
THE
REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY.
|
BUYER: |
SELLER: |
|
LEVY
AFFILIATED HOLDINGS, LLC,
a
California limited liability company |
FRANKLIN
DEVELOPMENT CORPORATION, a Utah corporation
|
|
By: |
By: |
|
Date: |
Date: |
ESCROW
AGENT:
FIRST
AMERICAN TITLE INSURANCE COMPANY
By:
Its:
_________________________________
Date:
Exhibit
A
to
Legal
Description of Property
Garden
Area Parcel
Beginning
at a point on the Easterly Right of Way line of Xxxxxx Lake Boulevard, said
point being xxx Xxxx 3067.40 feet and due South 1207.42 feet from the Center of
Section 22, Township 1 South, Range 1 West, Salt Lake Base and Meridian, said
point also being on a 167.00 foot radius curve to the right, the radius point of
which bears North 05°50’30” East; thence along said Easterly line the following
three (3) courses: Northerly along the arc of said curve 245.29 feet through a
central angle of 84°09’27” (Chord to said curve bears North 42°04’54” West
223.84 feet); thence North 173.73 feet to the point of an 1974.03 foot radius
curve to the right, thence Northerly along the arc of said curve 46.54 feet;
thence East 149.44 feet; thence South 386.13 feet to the point of
beginning.
Franklin
Building
Beginning
at a point on the Westerly Right of Way line of Xxxxxx Lake Boulevard, said
point being South 00°03'10' East 540.23 feet and West 1279.14 feet and South
25°00'00" West 1380.87 feet and South 52°59'27" West 368.44 feet and North
37°00'33" West 60.00 feet and South 52°59’27” West 40.00 feet and North
37°00’03” West 282.82 feet from the Center of Section 22, Township 1 South,
Range 1 West, Salt Lake Base and Meridian, said point also being xxx Xxxx
2394.73 feet and due South 1763.83 feet from said Center Section Monument, said
point also being on a 368.22 foot radius cure to the left, the radius point of
which bears South 41°50’56” West; thence Northwesterly along the arc of said
curve 268.95 feet, through a central angle of 41°50’56” (Chord bears North
69°04’32” West 263.01 feet); thence West 29.97 feet; thence South 30°00’00” East
195.52 feet; thence South 45°03’09” West 129.64 feet; thence North 44°56’51”
West 44.17 feet; thence West 177.02 feet; thence South 45°00’00” West 109.13
feet; thence North 45°00’00” West 78.37 feet; thence North 251.40 feet; thence
West 45.24 feet to a point of a 233.00 foot radius curve to the right; thence
Northerly 366.00 feet along the arc of said curve, through a central angle of
90°00’00” (Chord to said curve bears North 45°00’00” West 329.51 feet); thence
North 395.61 feet to a point on the Westerly right-of-way line of Xxxxxx Lake
Boulevard, said point also being on a curve to the left, the radius point of
which bears East 233.00 feet; thence Southeasterly 366.00 feet along the arc of
said curve and said Westerly line through a central angle of 90°00’00” (Chord
bears South 45°00’00” East 329.51 feet); thence along said Westerly line the
following six(6) courses: East 291.65 feet to a point of a 268.56 foot radius
curve to the right, the radius point of which bears South; thence Southeasterly
383.17 feet along the arc of said curve through a central angle of 81°44’53”
(Chord bears South 49°07’34” East 351.49 feet); thence South 08°15’07” East
61.35 feet to a point of a 334.56 foot radius curve to the left, the radius
point of which bears North 81°44’53” East; thence Southeasterly along the arc of
said curve 167.92 feet through a central angle of 28°45’26” (Chord bears South
22°37’50” East 166.16 feet); thence South 52°59’27” West 7.00 feet; thence South
37°00’33” East 51.64 feet to the point of beginning.
Jefferson,
Xxxxx & Washington Buildings
Beginning
at a point on the Westerly Right of Way line of Xxxxxx Lake Boulevard, said
point being South 00°03'10' East 540.23 feet and West 1279.14 feet and South
25°00'00" West 1380.87 feet and South 52°59'27" West 368.44 feet and North
37°00'33" West 60.00 feet and South 52°59’27” West 40.00 feet from the Center of
Section 22, Township 1 South, Range 1 West, Salt Lake Base and Meridian, said
point also being xxx Xxxx 2224.50 feet and due South 1989.67 feet from said
Center Section Monument and running thence South 07°59’27” West 28.03 feet to
the Northerly right-of-way line of Parkway Boulevard said point also being on an
1102.87 foot radius curve to the right, the radius point of said curve bears
North 35°59’21” West; thence Westerly along the arc of said curve and said
right-of-way line 691.27 feet, through a central angle of 35°54’45” (Chord to
said curve bears South 71°58’01” West 680.01 feet); thence South 89°55’56” West
115.06 feet; thence North 83°32’31” West 75.29 feet; thence North 06°27’29” East
57.95 feet; thence North 45°00’00” West 199.09 feet; thence North 77.78 feet;
thence North 45°00’00” West 95.35 feet; thence North 45°00’00” East 105.79 feet;
thence North 59°22’26” West 127.77 feet; thence North 40°01’24” East 157.77 feet
to a point on a 233 foot radius curve to the left, the radius point of which
bears North 40°01’24” East; thence Easterly 162.76 feet along said curve through
a central angle of 40°01’24” (Chord to said curve bears South 69°59’18” East
159.47 feet); thence East 45.24 feet; thence South 251.40 feet; thence South
45°00’00” East 78.37 feet; thence North 45°00’00” East 109.13 feet; thence East
177.02 feet; thence South 44°56’51” East 44.17 feet; thence North 45°03’09” East
129.64 feet; thence North 30°00’00” West 195.52 feet; thence East 29.97 feet to
a point of a 368.22 foot radius curve to the right; thence along the arc of said
curve 268.95 feet, through a central angle of 41°50’56” to a point of
non-tangency said point also being on said Westerly right-of-way line; thence
South 37°00’33” East along said right-of-way line 282.82 feet to the point of
beginning.
Xxxxxxx
Xxxxx Building
Beginning
at a point on the Easterly Right of Way line of Xxxxxx Lake Boulevard, said
point being South 00°03'10' East 540.23 feet and West 1279.14 feet and South
25°00'00" West 1380.87 feet and South 52°59'27" West 368.44 feet and North
37°00'33" West 60.56 feet and North 52°59’27” East 40.00 feet from the Center of
Section 22, Township 1 South, Range 1 West, Salt Lake Base and Meridian, said
point also being xxx Xxxx 2160.95 feet and due South 1941.07 feet from said
Center Section Monument, and running thence along said Easterly line the
following five(5) courses: North 37°00’33” West 333.90 feet; thence South
52°59’27” West 7.00 feet to a point on a 268.56 foot radius curve to the right,
the radius point of which bears North 52°59’27” East; thence Northerly 134.79
feet along the arc of said curve, through a central angle of 28°45’26” (Chord to
said curve bears North 22°37’50” West 133.38 feet); thence North 08°15’07” West
61.35 feet to a point of a 334.56 foot radius curve to the left, the radius of
said curve bears South 81°44’53” West; thence Northwesterly 477.34 feet along
the arc of said curve, through a central angle of 81°44’53” (Chord to said curve
bears North 49°07’33” West 437.87 feet); thence East 284.95 feet; thence South
36°58’23” East 775.35 to a point on the Northerly right-of-way line of Parkway
Boulevard, said point also being on a 1438.24 foot radius curve, the radius
point of which bears North 46°14’40” West; thence Southwesterly 172.48 feet
along the arc of said curve, through a central angle of 06°52’16” to a point on
said Easterly line; thence North 82°00’33” West along said Easterly line 27.34
feet to the point of beginning
Exhibit
A-1
to
Fixtures
List
|
A. |
All
heating, ventilating, incinerating, lighting, plumbing, electrical and air
conditioning fixtures and equipment, hot water heaters, furnaces, heating
controls, motors, boiler systems, elevators, and all other equipment and
fixtures integral to the operation of the
Property. |
Exhibit
B
to
Lease
Agreement
(Attached)
AMENDMENT
NO 1.
TO
This
Amendment is made and entered into as of June 27,
2005, by and
between FRANKLIN
DEVELOPMENT CORPORATION (“Seller”),
a Utah corporation, and LEVY AFFILIATED HOLDINGS, LLC (“Buyer”), a California
limited liability company, and amends that certain Purchase and Sale Agreement
and Escrow Instructions dated February 18, 2005 (“Purchase Agreement”)
previously entered into between the parties. Capitalized terms used herein and
not otherwise defined are defined in the Purchase Agreement and are used herein
as defined therein. In the event of any inconsistency between the terms of this
Addendum and the terms of the Purchase Agreement, the terms of this Addendum
shall control.
1. Section
4.10 of the Purchase Agreement is hereby deleted and replaced with the
following:
4.10 Loan
Contingency
Buyer
shall have obtained, within the Loan Contingency Period (as defined in Section
4.11 below), third-party financing for sixty percent (60%) of the Purchase Price
upon terms and conditions reasonably acceptable to Buyer (the “Financing”). If
in order to obtain Financing a lender requires the posting of a letter of credit
or deposit in an amount not to exceed $3,500,000, Buyer shall obtain and post
the letter of credit and Seller agrees to pay the annual cost of the letter of
credit (approximately 1.5% of the total amount of the letter of credit) each
year for a term of up to three (3) years. If such a letter of credit is
required, it shall not be deemed reasonably unacceptable to Buyer under the
terms of this Agreement.
2. Section 4.11 of the Purchase Agreement is hereby deleted and
replaced with the following:
4.11 Loan Contingency Period.
Buyer
shall obtain the Financing on or before the date ninety (90) days after the date
of execution of this Agreement (the “Loan Contingency Period”). If prior to
expiration of the Loan Contingency Period, Buyer determines in good faith that
it will not be successful in obtaining the Financing, then Buyer shall have the
right, by giving notice to Seller, to either (a) terminate this Agreement, or
(b) waive the requirements of Section 4.10. If Buyer exercises the right to
terminate this Agreement in accordance with this Section 4.11(a) this
Agreement shall terminate as of the date such termination notice is given by
Buyer and Buyer shall have the right to receive the Xxxxxxx Money from the
Escrow Agent. If Buyer elects to continue with the transaction pursuant to
subsection (b) of this Section 4.11, the
Xxxxxxx Money shall become non-refundable on the 90th day of
the Loan Contingency Period.
3. The first sentence of Section 8.1 is hereby deleted and replaced
with the following:
Escrow Agent shall close
the Escrow (the “Closing”) on or before the date which is ninety-five (95) days
following the date Escrow was opened pursuant to Section 2 above (the “Scheduled
Closing Date”), provided that all of the conditions to Buyer’s obligation to
purchase have been either satisfied or waived.
4. Consistent
with the Purchase Agreement, Seller’s obligation to sell the Property is subject
to its Board of Directors’ approval of the Purchase Agreement and this
Amendment. Seller and Buyer hereby approve, affirm and ratify the Purchase
Agreement and the on-going rights and obligations provided by said Purchase
Agreement.
IN
WITNESS WHEREOF, the parties have signed and entered into the Agreement as of
the date first mentioned above.
|
BUYER: |
SELLER: |
|
LEVY
AFFILIATED HOLDINGS, LLC,
a
California limited liability company |
FRANKLIN
DEVELOPMENT CORPORATION, a Utah corporation
|
|
By: |
By: |
|
Date: |
Date: |
ESCROW
AGENT:
FIRST
AMERICAN TITLE INSURANCE COMPANY
By:
Its:
_________________________________
Date:
AMENDMENT
NO. 2
TO
This
Amendment is made and entered into as of June 27,
2005, by and
between FRANKLIN
DEVELOPMENT CORPORATION (“Seller”),
a Utah corporation, and LEVY AFFILIATED HOLDINGS, LLC (“Buyer”), a California
limited liability company, and amends that certain Purchase and Sale Agreement
and Escrow Instructions dated February 18, 2005 (“Purchase Agreement”)
previously entered into between the parties. Capitalized terms used herein and
not otherwise defined are defined in the Purchase Agreement and are used herein
as defined therein. In the event of any inconsistency between the terms of this
Addendum and the terms of the Purchase Agreement, the terms of this Addendum
shall control.
|
1. |
The
last sentence of Section 3 of the Purchase Agreement is hereby deleted and
replaced with the following:
|
|
The
cost of the Title Policy shall be paid by Seller. The cost of any
additional endorsements to the Title Policy requested by Buyer shall be
paid by Buyer.
| |
|
2. |
Seller
and Buyer hereby approve, affirm and ratify the Purchase Agreement and the
on-going rights and obligations provided by said Purchase
Agreement.
|
| IN WITNESS WHEREOF, the parties have signed and entered into the Agreement as of the date first mentioned above. |
|
BUYER: |
SELLER: |
|
LEVY
AFFILIATED HOLDINGS, LLC,
a
California limited liability company |
FRANKLIN
DEVELOPMENT CORPORATION, a Utah corporation
|
|
By: |
By: |
|
Date: |
Date: |
ESCROW
AGENT:
FIRST
AMERICAN TITLE INSURANCE COMPANY
By:
Its:
_________________________________
Date:
AMENDMENT
NO. 3
TO
PURCHASE
AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
This
Amendment is made and entered into as of June 27,
2005, by and
between FRANKLIN
DEVELOPMENT CORPORATION (“Seller”),
a Utah corporation, and LEVY AFFILIATED HOLDINGS, LLC (“Buyer”), a California
limited liability company, and amends that certain Purchase and Sale Agreement
and Escrow Instructions dated February 18, 2005, as amended on March 8, 2005 and
on March 21, 2005 (collectively, the “Purchase Agreement”) previously entered
into between the parties. Capitalized terms used herein and not otherwise
defined are defined in the Purchase Agreement and are used herein as defined
therein. In the event of any inconsistency between the terms of this Addendum
and the terms of the Purchase Agreement, the terms of this Addendum shall
control.
| 1. |
The
Purchase Price, as defined in Article 1 of the Purchase Agreement, is
hereby reduced to THIRTY-THREE MILLION, EIGHT HUNDRED THIRTY THOUSAND
DOLLARS ($33,830,000.00). |
| 2. |
The
Xxxxxxx Money, as defined in Article 2 of the Purchase Agreement, is
non-refundable as of April 22, 2005, and shall be released to the Seller
upon Escrow Agent’s execution hereof. |
| 3. |
Section
4.10 of the Purchase Agreement is hereby deleted and replaced with the
following: |
4.10 Loan
Contingency
Buyer
shall have obtained, within the Loan Contingency Period (as defined in Section
4.11 below), third-party financing for sixty percent (60%) of the Purchase Price
upon terms and conditions reasonably acceptable to Buyer (the
“Financing”).
| 4. |
Seller
and Buyer hereby approve, affirm and ratify the Purchase Agreement and the
on-going rights and obligations provided by said Purchase
Agreement. |
IN
WITNESS WHEREOF, the parties have signed and entered into the Agreement as of
the date first mentioned above.
|
BUYER: |
SELLER: |
|
LEVY
AFFILIATED HOLDINGS, LLC,
a
California limited liability company |
FRANKLIN
DEVELOPMENT CORPORATION, a Utah corporation
|
|
By: |
By: |
|
Date: |
Date: |
ESCROW
AGENT:
FIRST
AMERICAN TITLE INSURANCE COMPANY
By:
Its:
Date:
