1
EXHIBIT 2
FORM OF
AGREEMENT OF SALE AND PURCHASE
BY AND BETWEEN
WACKENHUT CORRECTIONS CORPORATION,
A FLORIDA CORPORATION
("SELLER")
AND
CPT OPERATING PARTNERSHIP L.P.,
A DELAWARE LIMITED PARTNERSHIP
("PURCHASER")
___________________, 1998
2
TABLE OF CONTENTS
-----------------
PAGE
----
ARTICLE I.
DEFINITIONS.........................................................................................1
ARTICLE II.
AGREEMENTS TO SELL, PURCHASE, LEASE AND OPTION AND
AGREEMENT REGARDING RIGHT TO PURCHASE...............................................................7
2.1 Agreement to Sell and Purchase.........................................................7
2.2 Agreement to Lease.....................................................................8
2.3 Agreement to Grant Option..............................................................8
2.4 Right to Purchase......................................................................8
ARTICLE III.
PURCHASE PRICE......................................................................................8
3.1 Payment of Purchase Price..............................................................8
ARTICLE IV.
ITEMS TO BE
FURNISHED TO PURCHASER BY SELLER....................................................................8
4.1 Due Diligence Materials................................................................8
4.2 Due Diligence Review...................................................................9
ARTICLE V.
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS..............................................10
5.1 Representations and Warranties of Seller..............................................10
5.2 Covenants and Agreements of Seller....................................................15
5.3 Representations and Warranties of Purchaser...........................................16
ARTICLE VI.
CONDITIONS TO OBLIGATIONS..........................................................................17
6.1 Conditions to the Purchaser's Obligations.............................................17
6.2 Failure of Conditions to Purchaser's Obligations......................................18
6.3 Conditions to the Seller's Obligations................................................18
6.4 Failure of Conditions to Seller's Obligations.........................................19
i
3
ARTICLE VII.
PROVISIONS WITH RESPECT TO THE CLOSING.............................................................19
7.1 Seller's Closing Obligations..........................................................19
7.2 Purchaser's Closing Obligations.......................................................20
ARTICLE VIII.
EXPENSES OF CLOSING................................................................................21
8.1 Adjustments...........................................................................21
8.2 Closing Costs.........................................................................21
8.3 Commissions/Broker's Fees.............................................................21
ARTICLE IX.
DEFAULT AND REMEDIES...............................................................................22
9.1 Seller's Default; Purchaser's Remedies................................................22
9.2 Purchaser's Default; Seller's Remedies................................................22
ARTICLE X.
MISCELLANEOUS......................................................................................23
10.1 Casualty..............................................................................23
10.2 Condemnation..........................................................................23
10.3 Survival..............................................................................24
10.4 Right of Assignment...................................................................24
10.5 Notices...............................................................................24
10.6 Entire Agreement; Modifications.......................................................25
10.7 Applicable Law........................................................................25
10.8 Captions..............................................................................25
10.9 Binding Effect........................................................................25
10.10 Time is of the Essence................................................................26
10.11 Waiver of Conditions..................................................................26
10.12 Liability of General Partner of Purchaser.............................................26
LIST OF SCHEDULES AND EXHIBITS..........................................................................28
ii
4
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (the "Agreement") is made and
entered into by and between WACKENHUT CORRECTIONS CORPORATION, a Florida
corporation (hereinafter referred to as "Seller"), and CPT OPERATING PARTNERSHIP
L.P., a Delaware limited partnership (hereinafter referred to as "Purchaser").
Seller and Purchaser are sometimes collectively referred to herein as the
"Parties" and each of the Parties is sometimes singularly referred to herein as
a "Party".
R E C I T A L S
A. Seller (or an affiliate of Seller) is the owner of the Property (as
hereinafter defined), consisting of certain real properties and improvements
thereon being more particularly described on Exhibits A-1 through A-8, attached
hereto and made a part hereof or has the right to acquire the Property through a
validly existing and enforceable purchase option between Seller and the current
owner of the Property; and,
B. Seller desires to sell and Purchaser desires to purchase the
Property, and simultaneously therewith, to enter into a lease transaction
pursuant to which Purchaser shall lease to Seller, and Seller shall lease from
Purchaser, the Property.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00),
the mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE I.
DEFINITIONS
As used herein (including any Exhibits attached hereto), the following
terms shall have the meanings indicated:
"Accreditations" shall mean any and all accreditations and/or
certifications from any non-governmental entities required in connection with
the current or contemplated operation of the Property.
"Applicable Notices" shall mean any reports, notices of violation, or
notices of compliance issued in connection with any Accreditations or Permits.
"Xxxx of Sale" shall mean a xxxx or bills of sale in substantially the
same form as Exhibit B, attached hereto, and sufficient to transfer to Purchaser
all Personal Property.
5
"Business Agreements" shall mean any leases, contract rights, loan
agreements, mortgages, easements, covenants, restrictions or other agreements or
instruments affecting all or a portion of the Property, to the extent the same
are assignable by Seller, but specifically excluding all of Seller's Operating
and Service Agreements.
"Business Day(s)" shall mean calendar days other than Saturdays,
Sundays and legal holidays.
"Certificate of Non-Foreign Status" shall mean a certificate dated as
of the Closing Date, addressed to Purchaser and duly executed by Seller, in
substantially the same form as Exhibit C, attached hereto.
"Claim" shall mean any obligation, liability, lien, encumbrance, loss,
damage, cost, expense or claim, including, without limitation, any claim for
damage to property or injury to or death of any person or persons.
"Closing" shall mean the consummation of the sale and purchase provided
for herein, to be held at the offices of Akerman, Senterfitt & Xxxxxx, P.A., One
SE Third Avenue, Miami, Florida, or such other place as the Parties may mutually
agree.
"Closing Certificate" shall mean a certificate in substantially the
same form as Exhibit D, attached hereto, wherein Seller and Purchaser,
respectively, shall represent that the representations and warranties of Seller
and Purchaser, respectively, contained in this Agreement are true and correct in
all material respects as of the Closing Date as if made on and as of the Closing
Date.
"Closing Date" shall mean the actual day on which the transaction
contemplated hereby is closed with the transfer of title to the Property. The
Parties agree that the closing date shall be __________________, 1998, or such
earlier or later date as shall be hereafter mutually agreed upon by the Parties.
"Deed" shall mean a deed in substantially the same form as Exhibit E,
attached hereto (as the same may be modified to comply with local law and
custom), executed by Seller, as grantor, in favor of Purchaser, as grantee,
conveying the Land and Improvements to Purchaser, subject only to the Permitted
Exceptions.
"Due Diligence Materials" shall mean the information to be provided by
Seller to Purchaser pursuant to the provisions of Section 4.1 hereof as
reflected in the documents, drawings and other written materials delivered by
Seller to Purchaser and described in the Index to Due Diligence Materials
attached hereto as Schedule II.
"Effective Date" shall mean the later of the two (2) dates on which
this Agreement is signed and all changes initialed by Seller and Purchaser, as
indicated by their signatures below; provided, that in the event only one Party
dates its signature, then the date of its signature shall be the Effective Date.
ii
6
"Engineering Documents" shall mean all site plans, surveys, soil and
substrata studies, architectural drawings, plans and specifications, engineering
plans and studies, floor plans, landscape plans, Americans with Disabilities Act
compliance reports, environmental reports and studies, professional inspection
reports, construction and/or architect's reports or certificates, feasibility
studies, appraisals, and other similar plans and studies that relate to the Real
Property or the Personal Property, to the extent the same are assignable by
Seller.
"Exception Documents" shall mean true, correct and legible copies of
each document listed as an exception to title in the Title Commitment.
"Excluded Personal Property" shall mean all those items of tangible and
intangible personal property described on Exhibit F.
"Fixtures" shall mean all equipment, machinery, fixtures, and other
items of real and/or personal property, including all components thereof, now or
on the Closing Date located in, on or used in connection with, and permanently
affixed to or incorporated into, the Improvements, including, without
limitation, all furnaces, boilers, heaters, electrical equipment, electronic
security equipment, heating, plumbing, lighting, ventilating, refrigerating,
incineration, air and water pollution control, waste disposal, air-cooling and
air-conditioning systems and apparatus, sprinkler systems and fire and theft
protection equipment, and similar systems, all of which, to the greatest extent
permitted by law, are hereby deemed by the Parties to constitute real estate,
together with all replacements, modifications, alterations and additions
thereto, but specifically excluding all items included within the definition of
Personal Property and Excluded Personal Property.
"Hazardous Materials" shall mean any substance, including without
limitation, asbestos or any substance containing asbestos and deemed hazardous
under any Hazardous Materials Law, the group of organic compounds known as
polychlorinated biphenyls, petroleum products, flammable explosives, radioactive
materials, infectious wastes, biomedical and medical wastes, chemicals known to
cause cancer or reproductive toxicity, pollutants, effluents, contaminants,
emissions or related materials and any items included in the definition of
hazardous or toxic wastes, materials or substances under any Hazardous Materials
Law.
"Hazardous Materials Law" shall mean any local, state or federal law
relating to environmental conditions and industrial hygiene, including, without
limitation, the Resource Conservation and Recovery Act of 1976 ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of
1986 ("XXXX"), the Hazardous Materials Transportation Act, the Federal Waste
Pollution Control Act, the Clean Air Act, the Clean Water Act, the Toxic
Substances Control Act, the Safe Drinking Water Act, and all similar federal,
state and local environmental statutes, ordinances and the regulations, orders,
or decrees now or hereafter promulgated thereunder.
"Improvements" shall mean all buildings, improvements, structures and
Fixtures now or on the Closing Date located on the Land, including, without
limitation, landscaping, parking lots and
iii
7
structures, roads, drainage and all above ground and underground utility
structures, equipment systems and other so-called "infrastructure" improvements.
"Intangible Property" means all Permits, Business Agreements and other
intangible property or any interest therein now or on the Closing Date owned or
held by Seller in connection with the Real Property, including all water rights
and reservations, rights to use the trade name applicable to the Property (but
excluding the name "Wackenhut Corrections" or any derivative thereof), as set
forth on Exhibits A-1 through A-8 hereof, and zoning rights related to the Real
Property, or any part thereof, to the extent the same are assignable by Seller;
provided, however, "Intangible Property" shall not include the general corporate
trademarks, trade names (except as set forth above), service marks, logos or
insignia or the books and records of Seller, Seller's accounts receivable and
Seller's business and operating licenses for the facilities on the Real
Property.
"Land" means the real property more particularly described on Exhibits
A-1 through A-9, attached hereto and made a part hereof, together with all of
Seller's rights, titles, appurtenant interests, covenants, licenses, privileges
and benefits thereto belonging, and Seller's right, title and interest in and to
any easements, rights-of-way, rights of ingress or egress or other interests in,
on, or to any land, highway, street, road or avenue, open or proposed, in, on,
across, in front of, abutting or adjoining such real property including, without
limitation, any strips and gores adjacent to or lying between such real property
and any adjacent real property.
"Laws" means all federal, state and local laws, moratoria, initiatives,
referenda, ordinances, rules, regulations, standards, orders and other
governmental requirements, including, without limitation, those relating to the
environment, health and safety, disabled or handicapped persons.
"Lease" shall mean the Master Agreement to Lease and the Lease
Agreement in substantially the same form as Exhibit H, attached hereto and made
a part hereof, which shall be executed and delivered by Seller (or an affiliate
of Seller) and Purchaser at the Closing, and pursuant to the terms of which
Purchaser shall lease the Property to Seller (or an affiliate of Seller)
following the Closing.
"Material" and "materially" shall mean a condition, noncompliance,
defect or other fact which would: (a) cost, with respect to any individual
Property, in the aggregate, in excess of Five Hundred Thousand Dollars
($500,000.00) and, with respect to any single defect or fact, would cost, with
respect to any individual Property, in excess of Two Hundred Fifty Thousand
Dollars ($250,000.00), to correct or repair; or (b) in the aggregate, with
respect to any individual Property, result in a loss to Purchaser or a reduction
in the value of such Property in excess of Five Hundred Thousand Dollars
($500,000.00) and, with respect to any single defect or fact, would, with
respect to any individual Property, result in a loss to Purchaser or a reduction
in the value of such Property in excess of Two Hundred Fifty Thousand Dollars
($250,000.00).
"Option Agreements" shall mean the Option Agreement or Agreements, in
substantially the same form as Exhibit I, attached hereto and made a part
hereof, which shall be executed and
iv
8
delivered by Seller and Purchaser at the Closing, and pursuant to which Seller
shall grant Purchaser the exclusive option to acquire the Option Properties.
"Option Properties" shall mean the real property described on Exhibits
A-10 through A-12, attached hereto and made a part hereof, and all other
property of Seller as more particularly set forth in the Option Agreements.
"Permits" shall mean all permits, licenses (but excluding Seller's
business and operating licenses), approvals, entitlements and other
governmental, quasi-governmental and nongovernmental authorizations including,
without limitation, certificates of use and occupancy, required in connection
with the ownership, planning, development, construction, use, operation or
maintenance of the Real Property, to the extent the same are assignable by
Seller. As used herein, "quasi-governmental" shall include the providers of all
utility services to the Real Property.
"Permitted Exceptions" shall mean those title exceptions which have
been approved in writing by Purchaser, or are deemed to have been approved by
Purchaser upon the expiration of the Review Period.
"Personal Property" shall mean all Intangible Property, Warranties, and
Engineering Documents, and all those items of tangible personal property
described on Exhibit J, attached hereto, other than the Fixtures and the
Excluded Personal Property, now or on the Closing Date owned by Seller and
located on or about the Land or Improvements or used in connection with the
operation thereof (specifically excluding personal property owned by employees
of Seller and personal property owned by inmates housed at the Real Property).
"Property" shall mean, collectively, the Land, the Improvements, the
Fixtures, and the Personal Property.
"Purchase Price" shall mean the sum of $_____________________________,
which is allocated to each individual Property, as set forth on Schedule I
attached to this Agreement.
"Real Property" shall mean the Land, the Improvements and the Fixtures.
"Review Period" means a period commencing on the Effective Date and
ending thirty (30) days from the date of Purchaser's receipt of the last of the
Due Diligence Materials; provided, should the Effective Date be less than thirty
(30) days prior to the Closing Date, the Review Period shall terminate on the
date which is five (5) days prior to the Closing Date.
"Right to Purchase Agreement" shall mean the Right to Purchase
Agreement in substantially the same form as Exhibit G attached hereto and made a
part hereof, which shall be executed and delivered by the Parties at the
Closing, and pursuant to the terms of which Seller shall grant Purchaser the
right to acquire certain property of Seller.
v
9
"Search Reports" shall mean reports of searches made of the Uniform
Commercial Code Records of the County in which the Property is located, and of
the office of the Secretary of State of the State in which the Property is
located and in the State in which the principal office of Seller is located,
which searches shall reflect that none of the Property is encumbered by liens or
security interests which will remain on the Property after the Closing. The
Search Reports shall be updated, at Seller's expense, at or within five (5) days
prior to Closing.
"Seller's Operating and Service Agreements" shall mean all management,
service and operating agreements and contracts entered into by Seller with
respect to the Property, including, but not limited to, agreements and contracts
to house inmates at the Property, food service and equipment agreements, inmate
pay telephone service agreements, medical and pharmaceutical service and supply
agreements, drug testing service agreements, public performance and licensing
agreements for motion picture video cassettes, inmate educational and
instructional service agreements, refuse service agreements, pest control
service agreements and machinery, equipment and uniform rental and service
agreements.
"Survey" shall mean a current "as-built" ALTA survey, certified to ALTA
requirements, prepared by an engineer or surveyor licensed in the State in which
the Land is located and reasonably acceptable to Purchaser, which shall: (a)
include a narrative legal description of the Land by metes and bounds (which
shall include a reference to the recorded plat, if any), and a computation of
the area comprising the Land in both acres and gross square feet (to the nearest
one-thousandth of said respective measurement); (b) accurately show the location
on the Land of all improvements (dimensions thereof at the ground surface level
and the distance therefrom to the facing exterior property lines of the Land),
building and set-back lines, parking spaces (including number of spaces),
fences, evidence of abandoned fences, ponds, creeks, streams, rivers, officially
designated 100-year flood plains and flood prone areas, canals, ditches,
easements, roads, rights-of-way and encroachments; (c) location of
encroachments, if any, upon adjoining property, or from adjoining property, upon
the Land; (d) state the zoning classification of the Land; (e) be certified as
of the date of the Survey to the Seller, the Purchaser, the Title Company, and
any third-party lender designated by Purchaser; (f) legibly identify any and all
recorded matters shown on said Survey by appropriate volume and page recording
references; (g) show the location and names of all adjoining streets and the
distance to the nearest streets intersecting the streets that adjoin the Land;
(h) be satisfactory to (and updated from time to time as may be required by) the
Title Company so as to permit it to delete the standard exception for survey
matters and replace it with an exception for the matters shown on the Survey;
and (i) include a written Surveyor's Certification in substantially the same
form as set forth on Exhibit K, attached hereto.
"Title Commitment" shall mean a current commitment or current
commitments issued by the Title Company to the Purchaser pursuant to the terms
of which the Title Company shall commit to issue the Title Policy to Purchaser
in accordance with the provisions of this Agreement, and reflecting all matters
which would be listed as exceptions to coverage on the Title Policy.
vi
10
"Title Company" shall mean ____________ Title Insurance Corporation or
the national service office of another title insurance company licensed in each
state in which the Property is located selected by Seller and reasonably
satisfactory to Purchaser.
"Title Policy" shall mean an ALTA Extended Coverage Owner's Policy (or
policies) of Title Insurance (10/17/92 Form), or comparable state promulgated
policies, with liability in the aggregate amount of the Purchase Price, dated as
of the Closing Date, issued by the Title Company, insuring title to the fee
interest in the Real Property in Purchaser, subject only to the Permitted
Exceptions and to the standard printed exceptions included in the ALTA standard
form owner's extended coverage policy of title insurance including such other
endorsements requested by Purchaser, with the following modifications: (a) the
exception for survey matters shall be deleted and replaced by an exception for
the matters shown on the Survey; (b) the exception for ad valorem taxes shall
reflect only taxes for the current and subsequent years; (c) any exception as to
parties in possession shall be limited to rights of Seller in possession, as
lessee only, pursuant to the Lease; and (d) there shall be no general exception
for visible and apparent easements or roads and highways or similar items (with
any exception for visible and apparent easements or roads and highways or
similar items to be specifically referenced to and shown on the Survey and also
identified by applicable recording information).
"Warranties" shall mean all warranties and guaranties with respect to
the Real Property or Personal Property, whether express or implied, which Seller
now holds or under which Seller is the beneficiary, to the extent the same are
assignable by Seller.
ARTICLE II.
AGREEMENTS TO SELL, PURCHASE, LEASE AND OPTION AND
AGREEMENT REGARDING RIGHT TO PURCHASE
2.1 AGREEMENT TO SELL AND PURCHASE. On the Closing Date, provided
Purchaser shall not have terminated this Agreement pursuant to the provisions of
Section 4.2 hereof, Seller shall, or shall cause its affiliate or optionor to,
sell, convey, assign, transfer and deliver to Purchaser and Purchaser shall
purchase, acquire and accept from Seller, the Property, for the Purchase Price
and subject to the terms and conditions of this Agreement. Purchaser
acknowledges that Seller may elect to transfer some or all of the Property to
one or more affiliates of Seller prior to the Closing Date subject to the terms
and conditions of this Agreement. In such event, Seller shall cause such
affiliates to sell, convey, assign, transfer and deliver to Purchaser such
portion(s) of the Property as may be transferred to such affiliate(s). In the
event of any such transfers of some or all of the Property to any affiliate of
Seller, Seller shall not be relieved of any of its obligations or liability
hereunder. From and after the date of any such transfer, the term "Seller" as
used herein shall refer to both Wackenhut Corrections Corporation and the
recipient of such transfer collectively, and to each such party individually.
vii
11
2.2 AGREEMENT TO LEASE. On the Closing Date, and subject to performance
by the Parties of the terms and provisions of this Agreement, Purchaser shall
lease to Seller and Seller shall lease from Purchaser, the Property at the
rental and upon the terms and conditions set forth in the Lease.
2.3 AGREEMENT TO GRANT OPTION. On the Closing Date, and subject to
performance by the Parties of the terms and provisions of this Agreement, Seller
shall grant to Purchaser options to acquire the Option Properties at the
purchase price and upon the terms and conditions set forth in the Option
Agreements.
2.4 RIGHT TO PURCHASE. On the Closing Date, and subject to the
performance by the Parties of the terms and provisions of this Agreement, Seller
shall grant to Purchaser the right to acquire certain property of Seller, upon
the terms and conditions set forth in the Right to Purchase Agreement.
ARTICLE III.
PURCHASE PRICE
3.1 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid by
Purchaser delivering to, or at the direction of, the Seller at the Closing
Federal Reserve wire transfer funds or other immediately available collected
funds payable to the order of the Seller in the sum equal to the Purchase Price,
subject to adjustment as herein provided. On or before the Closing, the Parties
shall agree on an allocation of the Purchase Price as between the Real Property
and the Personal Property.
ARTICLE IV.
ITEMS TO BE
FURNISHED TO PURCHASER BY SELLER
4.1 DUE DILIGENCE MATERIALS. Seller previously has delivered to
Purchaser for its review, or, if not, within fifteen (15) days after the
Effective Date, Seller shall deliver to Purchaser for its review, the following
items:
a. True, correct, complete and legible copies of all Business
Agreements, Warranties, Permits, Accreditations,
Applicable Notices, Engineering Documents and Seller's
Operating and Service Agreements (solely for the purposes
of this Section 4.1a., the terms Business Agreements,
Warranties, Permits, and Engineering Documents shall
include all agreements, documents and instruments
otherwise included within such definitions, whether or not
the same are assignable by Seller);
viii
12
b. True, correct, complete and legible copies of tax
statements or assessments for all real estate and personal
property taxes assessed against the Property for the
current and the two prior calendar years, if available;
c. True, correct, complete and legible listing of all
Fixtures, Personal Property and Excluded Property,
including a current depreciation schedule.
d. True, correct, complete and legible copies of all existing
fire and extended coverage insurance policies and any
other insurance policies pertaining to the Property, if
any;
e. True, correct, complete and legible copies of all
instruments evidencing, governing or securing the payment
of any loans secured by the property or related thereto.
Seller may make such instruments available for inspection
and copying by Purchaser at Seller's principal office;
f. True, correct, complete and legible copies of any and all
environmental studies or impact reports relating to the
Property, if any, and any approvals, conditions, orders or
declarations issued by any governmental authority relating
thereto (such studies and reports shall include, but not
be limited to, reports indicating whether the Property is
or has been contaminated by Hazardous Materials and
whether the Property is in compliance with the Americans
with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973, as applicable);
g. True, correct, complete and legible copies of any and all
litigation files with respect to any pending litigation
and claim files for any claims made or threatened, the
outcome of which might materially affect the Property or
the use and operation of the Property, together with
summaries and such other more detailed information as
Purchaser may reasonably request with respect to any other
pending litigation or claim the outcome of which might
materially affect Seller or materially affect the
Property. Seller may make such files available for
inspection and copying by Purchaser at Seller's principal
office.
h. The Title Commitment, Exception Documents, Survey and
Search Reports.
i. Actual operating statements for the Property or, if the
Property has not been operated by Seller for twelve months
prior to the date of this Agreement, projected operating
results for the Property.
j. The Certificate of Occupancy, or its equivalent, for the
Property.
ix
13
4.2 DUE DILIGENCE REVIEW. During the Review Period, Purchaser shall be
entitled to review the Due Diligence Materials delivered by Seller to Purchaser
pursuant to the provisions of Section 4.1 above. If Purchaser shall, for any
reason in Purchaser's sole discretion, judgment and opinion, disapprove or be
dissatisfied with any aspect of such information, or the Property, then
Purchaser shall be entitled to terminate this Agreement by giving written notice
thereof to Seller on or before the expiration of the Review Period, whereupon
this Agreement shall automatically be rendered null and void, all moneys which
have been delivered by Purchaser to Seller or the Title Company shall be
immediately returned to Purchaser and thereafter neither Party shall have any
further obligations or liabilities to the other hereunder. Alternatively,
Purchaser may give written notice setting forth any defect, deficiency or
encumbrance and specify a time within which Seller may remedy or cure such
matter prior to the expiration of the Review Period, but Seller shall have no
obligation to remedy or cure any such matters objected to by Purchaser. If any
defect, deficiency or encumbrance, so noticed, is not satisfied or resolved to
the satisfaction of Purchaser, in Purchaser's sole discretion, within the time
period specified in the written notice, this Agreement shall, at the option of
Purchaser, terminate as provided in this Section; said option to terminate to be
exercised, if at all, by Purchaser giving written notice thereof to Seller and
simultaneously paying Seller the sum of One Hundred Dollars ($100.00) on the
earlier of: (a) within three (3) Business Days after the expiration of said
specified time period, or (b) the Closing Date. In the event Purchaser fails to
exercise its option to terminate this Agreement within the time and in the
manner set forth in this Section 4.2, then Purchaser shall be deemed to have
accepted and approved the Due Diligence Materials and the Property, and to have
waived any such defect, deficiency or encumbrance, and to have accepted all
exceptions to title referenced in the Title Commitment and all matters shown on
the Survey. Such accepted title exceptions and survey matters shall be included
in the term "Permitted Exceptions" as used herein.
ARTICLE V.
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser to
enter into this Agreement and to purchase the Property, Seller represents and
warrants to Purchaser as follows:
a. Seller has the right to acquire and at the Closing,
Seller will have and will convey, transfer and assign to
Purchaser, or Seller will cause the conveyance, transfer
and assignment to Purchaser of, good, indefeasible,
marketable and insurable title to the Land, free and clear
of any deeds of trust, mortgages, liens, encumbrances,
leases, tenancies, licenses, chattel mortgages,
conditional sales agreements, security interests,
covenants, conditions, restrictions, judgments,
rights-of-way, easements, encroachments, claims and any
other matters affecting title or use of the Property,
except the Permitted Exceptions.
x
14
b. Seller has duly and validly authorized and executed this
Agreement, and has full right, title, power and authority
to enter into this Agreement and to consummate the
transactions provided for herein, and the joinder of no
person or entity will be necessary to convey the Property
fully and completely to Purchaser at Closing and to lease
the Property from Purchaser following Closing. Seller is a
corporation duly organized, validly existing and in good
standing under the laws of the State of Florida and is
qualified to do business in each state in which any of the
Property is located. The consummation of the transactions
contemplated herein does not require the approval of
Seller's shareholders or any third party, except such
third party approvals as Seller has obtained or will
obtain prior to the Closing Date. The execution by Seller
of this Agreement and the consummation by Seller of the
transactions contemplated hereby do not, and at the
Closing will not, result in a breach of any of the terms
or provisions of, or constitute a default or a condition
which upon notice or lapse of time or both would ripen
into a default under, Seller's Bylaws or Certificate of
Incorporation, any indenture, agreement, instrument or
obligation to which Seller is a party or by which the
Property or any portion thereof is bound; and does not
constitute a violation of any Laws, order, rule or
regulation applicable to Seller or any portion of the
Property of any court or of any federal, state or
municipal regulatory body or administrative agency or
other governmental body having jurisdiction over Seller or
any portion of the Property.
c. Except as may be disclosed in the Exception Documents,
there are no adverse or other parties in possession of the
Property or of any part thereof, and Seller has not
granted to any party any license, lease or other right
relating to the use or possession of the Property.
d. No notice has been received from any insurance company
that has issued a policy with respect to any portion of
the Property or from any board of fire underwriters (or
other body exercising similar functions), claiming any
defects or deficiencies or requiring the performance of
any repairs, replacements, alterations or other work and
as of the Closing no such notice will have been received
which shall not have been cured. No notice has been
received by Seller from any issuing insurance company that
any of such policies will not be renewed, or will be
renewed only at a higher premium rate than is presently
payable therefor.
e. No pending condemnation, eminent domain, assessment or
similar proceeding or charge affecting the Property or any
portion thereof exists. Seller has not heretofore received
any notice, and has no knowledge, that any such proceeding
or charge is contemplated. Seller has not received any
notice of a proposed increase in the assessed valuation of
the Property.
xi
15
f. All Improvements (including all utilities) have been, or
as of the Closing will be, completed and installed in
accordance with the plans and specifications approved by
the governmental authorities having jurisdiction to the
extent applicable and are transferable to Purchaser
without additional cost. Permanent certificates of
occupancy, all licenses, permits, authorizations and
approvals required by all governmental authorities having
jurisdiction, and the requisite certificates of the local
board of fire underwriters (or other body exercising
similar functions) have been, or as of the Closing will
be, issued for the Improvements, and, as of the Closing,
where required, all of the same will be in full force and
effect. Except as may be set forth in any of the Due
Diligence Materials, the Improvements, as designed and
constructed, comply or will comply with all statutes,
restrictions, regulations and ordinances applicable
thereto, including but not limited to the Americans with
Disabilities Act and Section 504 of the Rehabilitation Act
of 1973, as applicable.
g. The existing water, sewer, gas and electricity lines,
storm sewer and other utility systems on the Land are
adequate to serve the utility needs of the Property for
operation as a correctional facility and detention
facility or other use set forth in the Permits. All
utilities required for the operation of the Improvements
enter the Land through adjoining public streets or through
adjoining private land in accordance with valid public or
private easements that will inure to the benefit of
Purchaser. All approvals, licenses and permits required to
fully operate said utilities have been obtained and are in
full force and effect. All of said utilities are installed
and operating, or will be, by Closing and all installation
and connection charges have been or will be paid in full.
h. Except as may be set forth in any of the Due Diligence
Materials, the location, construction, occupancy,
operation and use of the Property (including the
Improvements) do not violate any applicable law, statute,
ordinance, rule, regulation, order or determination of any
governmental authority or any board of fire underwriters
(or other body exercising similar functions), or any
restrictive covenant or deed restriction (recorded or
otherwise) affecting the Property or the location,
construction, occupancy, operation or use thereof,
including, without limitation, all applicable zoning
ordinances and building codes, flood disaster laws and
health and environmental laws and regulations, the
Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973, as applicable.
i. Except as may be set forth in any of the Due Diligence
Materials, there are not any structural defects in any of
the buildings or other Improvements
xii
16
constituting the Property. The Improvements, all heating,
electrical, plumbing and drainage at, or servicing, the
Property and all facilities and equipment relating thereto
are and, as of the Closing, will be in good condition and
working order and adequate in quantity and quality for the
normal operation of the Property as a correctional or
detention facility or other use set forth in the Permits.
No part of the Property has been destroyed or damaged by
fire or other casualty. There are no unsatisfied requests
for repairs, restorations or alterations with regard to
the Property from any person, entity or authority,
including but not limited to any lender, insurance
provider or governmental authority.
j. Except as previously disclosed by Seller pursuant to
contracts delivered to Purchaser, no work has been
performed or is in progress at the Property, and no
materials will have been delivered to the Property that
might provide the basis for a mechanic's, materialmen's or
other lien against the Property or any portion thereof, or
amounts due for such work and material shall have paid or
discharged to Purchaser's and Title Company's satisfaction
as of Closing.
k. There exist no service contracts, management or other
agreements applicable to the Property, or amendments,
modifications or terminations thereof, to which Seller is
a party or otherwise known to Seller, other than Seller's
Operating and Service Agreements, the Business Agreements
and those agreements furnished to Purchaser pursuant to
Section 4.1.
l. Seller is not in default in any manner which would result
in a material adverse effect on Seller under any of the
Business Agreements, or Seller's Operating and Service
Agreements or any of the covenants, conditions,
restrictions, rights-of-way or easements affecting the
Property or any portion thereof, and, to Seller's
knowledge, no other party to any of the foregoing is in
default thereunder.
m. There are no actions, suits or proceedings pending or, to
Seller's knowledge, threatened against or affecting the
Property or any portion thereof, or relating to or arising
out of the ownership or operation of the Property, or by
any federal, state, county or municipal department,
commission, board, bureau or agency or other governmental
instrumentality, other than those disclosed to Purchaser
pursuant to Section 4.l. All judicial proceedings
concerning the Property will be finally dismissed and
terminated prior to Closing, excluding inmate lawsuits and
other lawsuits in which Seller is involved in its ordinary
course of business.
n. The Property has free and unimpeded access to presently
existing public highways and/or roads (either directly or
by way of perpetual easements);
xiii
17
and, all approvals necessary therefor have been obtained.
To the best of Seller's knowledge, no fact or condition
exists which would result in the termination of the
current access from the Property to any presently existing
public highways and/or roads adjoining or situated on the
Property.
o. There are no attachments, executions, assignments for the
benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy or under any other debtor relief
laws contemplated by or, to Seller's knowledge, pending or
threatened against Seller or the Property.
p. Except as may be set forth in any of the Due Diligence
Materials, no Hazardous Materials have been installed,
used, generated, manufactured, treated, handled, refined,
produced, processed, stored or disposed of, or otherwise
present in, on or under the Property by Seller or to
Seller's knowledge. No activity has been undertaken on the
Property by Seller or to Seller's knowledge which would
cause (i) the Property to become a hazardous waste
treatment, storage or disposal facility within the meaning
of, or otherwise bring the Property within the ambit of
RCRA or any Hazardous Materials Law, (ii) a release or
threatened release of Hazardous Materials from the
Property within the meaning of, or otherwise bring the
Property within the ambit of, CERCLA or XXXX or any
Hazardous Materials Law or (iii) the discharge of
Hazardous Materials into any watercourse, body of surface
or subsurface water or wetland, or the discharge into the
atmosphere of any Hazardous Materials which would require
a permit under any Hazardous Materials Law. No activity
has been undertaken with respect to the Property by Seller
or to Seller's knowledge which would cause a violation or
support a claim under RCRA, CERCLA, XXXX or any Hazardous
Materials Law. No investigation, administrative order,
litigation or settlement with respect to any Hazardous
Materials is in existence with respect to the Property,
nor, to Seller's knowledge, is any of the foregoing
threatened. No notice has been received by Seller from any
entity, governmental body or individual claiming any
violation of any Hazardous Materials Law, or requiring
compliance with any Hazardous Materials Law, or demanding
payment or contribution for environmental damage or injury
to natural resources. Seller has not obtained and, to
Seller's knowledge, is not required to obtain, and Seller
has no knowledge of any reason Purchaser will be required
to obtain, any permits, licenses, or similar
authorizations to occupy, operate or use the Improvements
or any part of the Property by reason of any Hazardous
Materials Law. Notwithstanding the representations made
herein, such representations are and shall be deemed to be
limited by the matters detailed in any Phase I
Preliminary Site Assessment or other Due Diligence
Materials obtained by or provided to Purchaser in
connection herewith.
xiv
18
q. The Property includes all items of property, tangible and
intangible, currently used by Seller in connection with
the operation of the Property, other than the Excluded
Personal Property, Seller's Operating and Service
Agreements, and property expressly excluded from the
definition of the Property.
r. To the best of Seller's knowledge, the Due Diligence
Materials delivered to Purchaser are true, correct and
complete in all material respects.
Seller hereby agrees to indemnify and defend, at its sole cost and
expense, and hold Purchaser, its successors and assigns, harmless from and
against and to reimburse Purchaser with respect to any and all claims, demands,
actions, causes of action, losses, damages, liabilities, costs and expenses
(including, without limitation, reasonable attorney's fees and court costs)
actually incurred of any and every kind or character, known or unknown, fixed or
contingent, asserted against or incurred by Purchaser at any time and from time
to time by reason of or arising out of (a) the material breach of any
representation or warranty of Seller set forth in Section 5.1, (b) the failure
of Seller, in whole or in part, to perform any obligation required to be
performed by Seller pursuant to Section 5.1 or (c) the ownership, construction,
occupancy, operation, use and maintenance by Seller or its agents of the
Property prior to the Closing Date. This indemnity applies, without limitation,
to the violation on or before the Closing Date of any Hazardous Materials Law in
effect on or before the Closing Date and any and all matters arising out of any
act, omission, event or circumstance existing or occurring on or prior to the
Closing Date (including, without limitation, the presence on the Property or
release from the Property of Hazardous Materials disposed of or otherwise
released prior to the Closing Date), regardless of whether the act, omission,
event or circumstance constituted a violation of any Hazardous Materials Law at
the time of its existence or occurrence. Subject to the provisions of Section
10.1, the provisions of this Section 5.1 shall survive the Closing of the
transaction contemplated by this Agreement and shall continue thereafter in full
force and effect for the benefit of Purchaser, its successors and assigns.
Notwithstanding any provision of this Agreement to the contrary, Purchaser may
exercise any right or remedy Purchaser may have at law or in equity should
Seller fail to meet, comply with or perform its indemnity obligations required
by this Section 5.1. In the event a defect, claim or deficiency is actually
discovered by Purchaser prior to Closing or is noticed in writing by Seller to
Purchaser prior to Closing, Purchaser shall either terminate the Agreement as
provided herein or waive the defect, claim or deficiency and proceed to Closing.
5.2 COVENANTS AND AGREEMENTS OF SELLER. Seller covenants and agrees
with Purchaser, from the Effective Date until the Closing or earlier termination
of this Agreement:
a. Seller shall: (i) operate the Property in the ordinary
course of Seller's business and in the same manner as
currently operated; and (ii) fully maintain and repair the
Improvements, the Fixtures, and the Personal Property in
good condition and repair.
xv
19
b. Purchaser shall be entitled to make all inspections or
investigations desired by Purchaser with respect to the
Property or any portion thereof, and shall have complete
physical access to the Property, which access shall occur
at such times and in such manner so as to not unreasonably
interfere with Seller's business operations or constitute
a safety hazard, as reasonably determined by Seller.
c. Seller shall cause to be maintained in full force and
effect fire and extended coverage insurance upon the
Property and public liability insurance with respect to
damage or injury to persons or property occurring on or
relating to operation of the Property in commercially
reasonable amounts, but no less than currently in effect.
d. Seller shall pay when due all bills and expenses of the
Property. Seller shall not enter into or assume any new
Business Agreements or modify, amend or terminate any
existing Business Agreements with regard to the Property
which are in addition to or different from those furnished
and disclosed to Purchaser and reviewed and approved
pursuant to Section 4.1.
e. Seller shall not create or permit to be created any liens,
easements or other conditions affecting any portion of the
Property or the uses thereof without the prior written
consent of Purchaser.
f. Seller will pay, as and when due, all interest and
principal and all other charges payable under any
indebtedness of Seller secured by the Property from the
date hereof until Closing, and will not suffer or permit
any default or amend or modify the documents evidencing or
securing any such indebtedness without the prior consent
of Purchaser. Seller will, subject to limitations provided
by law with respect to privacy rights of inmates, give to
Purchaser, its attorneys, accountants and other
representatives, during normal business hours and as often
as may be reasonably requested, full access to all books,
records and files relating to the Property so long as the
same does not unreasonably interfere with Seller's
business operations.
g. Seller shall not remove any Personal Property or Fixtures
from the Land or Improvements without replacing same with
substantially similar items of equal or greater value and
repairing the damage, if any, to the Property as a result
of such removal.
h. During the pendency of this Agreement, Seller, its
corporate officers, directors, and agents shall not
negotiate the sale or other disposition of the Property
with any person or entity other than Purchaser, and shall
not take any steps to initiate, consummate or document the
sale or other disposition
xvi
20
of the Property, or any portion thereof, to any person or
entity other than Purchaser.
i. Prior to the Closing Date, Seller agrees to notify
Purchaser in writing within three (3) Business Days of any
offer received by, delivered to or communicated to Seller
for the purchase, sale, acquisition or other disposition
of the Property.
j. Seller shall provide representations, warranties and
consents as may be reasonably required in connection with
any public offering of stock or debt obligations by
Purchaser, including, but not limited to, inclusion of
financial statements, summary financial information and
other required information concerning Seller, or Seller as
lessee under the Lease, in any Securities and Exchange
Commission filings.
5.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce Seller to
enter into this Agreement and to sell the Property, Purchaser represents and
warrants to Seller as follows:
a. Purchaser has duly and validly authorized and executed
this Agreement, and has full right, title, power and
authority to enter into this Agreement and to consummate
the transactions provided for herein, and the joinder of
no person or entity will be necessary to purchase the
Property from Seller at Closing, and to lease the Property
to Seller following Closing.
b. The execution by Purchaser of this Agreement and the
consummation by Purchaser of the transactions contemplated
hereby do not, and at the Closing will not, result in a
breach of any of the terms or provisions of, or constitute
a default or a condition which upon notice or lapse of
time or both would ripen into a default under, any
indenture, agreement, instrument or obligation to which
Purchaser is a party; and does not, and at the Closing
will not, constitute a violation of any Laws, order, rule
or regulation applicable to Purchaser of any court or of
any federal, state or municipal regulatory body or
administrative agency or other governmental body having
jurisdiction over Purchaser.
ARTICLE VI.
CONDITIONS TO OBLIGATIONS
6.1 CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligations of
Purchaser to purchase the Property from Seller and to consummate the
transactions contemplated by this Agreement are subject to the satisfaction, at
all times prior to and as of the Closing (or such other time period specified
below), of each of the following conditions:
xvii
21
a. All of the representations and warranties of Seller set
forth in this Agreement shall be true at all times prior
to, at and as of, the Closing in all material respects and
Seller shall deliver a Closing Certificate in
substantially the same form attached hereto as Exhibit D
updating such representations and warranties.
b. Seller shall have delivered, performed, observed and
complied with, all of the items, instruments, documents,
covenants, agreements and conditions required by this
Agreement to be delivered, performed, observed and
complied with by it prior to, or as of, the Closing.
c. Seller shall not be in receivership or dissolution or have
made any assignment for the benefit of creditors, or
admitted in writing its inability to pay its debts as they
mature, or have been adjudicated a bankrupt, or have filed
a petition in voluntary bankruptcy, a petition or answer
seeking reorganization or an arrangement with creditors
under the federal bankruptcy law or any other similar law
or statute of the United States or any state and no such
petition shall have been filed against it.
d. No material or substantial adverse change shall have
occurred with respect to the condition, financial or
otherwise, of the Seller or the Property.
e. Neither the Property nor any part thereof or interest
therein shall have been taken by execution or other
process of law in any action prior to Closing.
f. Seller shall have obtained and delivered to Purchaser a
current report, dated no more than ten (10) days prior to
this Agreement, from a licensed pest control company
reasonably acceptable to Purchaser, and which must show
the Property to be free of all termite, or other
destructive insect and pest infestation.
g. During the Review Period, Purchaser shall have
satisfactorily completed an inspection of the Property
with respect to the physical condition thereof by agents
or contractors selected by Purchaser.
h. During the Review Period, Purchaser shall have received,
in form acceptable to Purchaser, evidence of compliance by
the Property with all building codes, zoning ordinances
and other governmental entitlements as necessary for the
operation of the Property for the current and intended
use, including, without limitation, certificates of
occupancy and such other permits, licenses, approvals,
agreements and authorizations as are required for the
operation of
xviii
22
the Property for the current and intended use and
satisfactory evidence of no violations of building or
other codes or laws.
i. During the Review Period, all necessary approvals,
consents and the like of third parties to the validity and
effectiveness of the transactions contemplated hereby have
been obtained.
j. During the Review Period, Purchaser is reasonably
satisfied that the Property is sufficient and adequate for
Seller to carry on the business now being conducted
thereon and the Property is in good condition and repair
as reasonably required for the proper operation and use
thereof in compliance with applicable laws.
k. During the Review Period, Purchaser has reviewed and
satisfied itself with respect to the Due Diligence
Materials and shall not have terminated this Agreement
pursuant to the provisions of Section 4.2 hereof.
l. No material portion of the Property shall have been
destroyed by fire or casualty.
m. No condemnation, eminent domain or similar proceedings
shall have been commenced or threatened with respect to
any material portion of the Property.
n. Purchaser shall have been successful in causing the
formation of a real estate investment trust whose
interests have been sold to the public and in connection
therewith shall have raised capital in an amount not less
than $100,000,000.00.
6.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS. In the event any
one or more of the conditions to Purchaser's obligations are not satisfied or
waived in whole or in part at any time prior to or as of the Closing, Purchaser,
at Purchaser's option, shall be entitled to: (a) terminate this Agreement by
giving written notice thereof to Seller, whereupon all moneys, if any, which
have been delivered by Purchaser to Seller or the Title Company shall be
immediately refunded to Purchaser and Purchaser shall have no further
obligations or liabilities hereunder; or (b) proceed to Closing hereunder.
6.3 CONDITIONS TO THE SELLER'S OBLIGATIONS. The obligations of Seller
to sell the Property to Purchaser and to consummate the transactions
contemplated by this Agreement are subject to the satisfaction, at all times
prior to and as of the Closing (or such other time period specified below), of
each of the following conditions:
xix
23
a. All of the representations and warranties of Purchaser set
forth in this Agreement shall be true at all times prior
to, at and as of, the Closing in all material respects and
Purchaser shall deliver a Closing Certificate in
substantially the same form attached hereto as Exhibit D
updating such representations and warranties.
b. Purchaser shall have delivered, performed, observed and
complied with, all of the items, instruments, documents,
covenants, agreements and conditions required by this
Agreement to be delivered, performed, observed and
complied with by it prior to, or as of, the Closing.
c. Purchaser shall not be in receivership or dissolution or
have made any assignment for the benefit of creditors, or
admitted in writing its inability to pay its debts as they
mature, or have been adjudicated a bankrupt, or have filed
a petition in voluntary bankruptcy, a petition or answer
seeking reorganization or an arrangement with creditors
under the federal bankruptcy law or any other similar law
or statute of the United States or any state and no such
petition shall have been filed against it.
d. Purchaser shall have been successful in causing the
formation of a real estate investment trust whose
interests have been sold to the public and in connection
therewith shall have raised capital in an amount not less
than $100,000,000.00
6.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS. In the event any one
or more of the conditions to Seller's obligations are not satisfied or waived in
whole or in part at any time prior to or as of the Closing, Seller, at Seller's
option, shall be entitled to: (a) terminate this Agreement by giving written
notice thereof to Purchaser, whereupon all moneys, if any, which have been
delivered by Seller to Purchaser or the Title Company shall be immediately
refunded to Seller and Seller shall have no further obligations or liabilities
hereunder; or (b) proceed to Closing hereunder.
ARTICLE VII.
PROVISIONS WITH RESPECT TO THE CLOSING
7.1 SELLER'S CLOSING OBLIGATIONS. At the Closing, Seller shall
furnish and deliver to the Purchaser, at Seller's expense, the following:
a. The Deed, Title Policy (or the Title Commitment marked-up
and initialed by the Title Company), Xxxx of Sale,
Certificate of Non-Foreign Status, Closing Certificate,
Right to Purchase Agreement, Lease and Option Agreements,
each duly executed and acknowledged by Seller and, as
appropriate, in
xx
24
recordable form acceptable in the state and county
in which the Property is located.
b. Certificates of casualty and fire insurance for the
Property and satisfactory evidence of all other
insurance coverages as required pursuant to the Lease
showing Purchaser as additional insured and loss
payee thereunder, where appropriate, with appropriate
provisions for prior notice to Purchaser in the event
of cancellation or termination of such policies and
otherwise in form and substance reasonably
satisfactory to Purchaser.
c. Search Reports, dated not more than five (5) days
prior to Closing, evidencing no UCC-1 Financing
Statements or other filings in the name of Seller
with respect to the Property which will remain on the
Property after the Closing.
d. Such affidavits or letters of indemnity as the Title
Company shall require in order to omit from the Title
Insurance Policy all exceptions for unfiled
mechanic's, materialman's or similar liens.
e. Any and all transfer declarations or disclosure
documents, duly executed by the appropriate parties,
required in connection with the Deed by any state,
county or municipal agency having jurisdiction over
the Property or the transactions contemplated hereby.
f. An opinion of Seller's counsel, dated as of the
Closing Date, in the form
of Exhibit L-1, attached hereto.
g. Such instruments or documents as are necessary, or
reasonably required by Purchaser or the Title
Company, to evidence the status and capacity of
Seller and the authority of the person or persons who
are executing the various documents on behalf of
Seller in connection with the purchase and sale
transaction contemplated hereby.
h. Such other documents as are reasonably required by
Purchaser to carry out the terms and provisions of
this Agreement.
7.2 PURCHASER'S CLOSING OBLIGATIONS. At the Closing, Purchaser
shall furnish and deliver to Seller, at Purchaser's expense, the following:
a. Federal Reserve, wire transfer funds or other
immediately available collected funds payable to the
order, or at the direction, of Seller representing
the cash portion of the Purchase Price due in
accordance with Section 3.1 herein.
xxi
25
b. The Closing Certificate, Right to Purchase Agreement,
Lease and Option Agreements, duly executed and
acknowledged by Purchaser.
c. Such instruments or documents as are necessary, or
reasonably required by Seller or the Title Company, to
evidence the status and capacity of Purchaser and the
authority of the person or persons who are executing the
various documents on behalf of Purchaser in connection
with the purchase and sale transaction contemplated
hereby.
d. An opinion of Purchaser's counsel, dated as of the Closing
Date, in the form of Exhibit L-2, attached hereto.
e. Such other documents as are reasonably required by Seller
to carry out the terms and provisions of this Agreement.
f. All necessary approvals, consents, certificates and the
like of third parties to the validity and effectiveness of
the transaction contemplated hereby.
ARTICLE VIII.
EXPENSES OF CLOSING
8.1 ADJUSTMENTS. There shall be no adjustment of taxes, assessments,
water or sewer charges, gas, electric, telephone or other utilities, operating
expenses, employment charges, premiums on insurance policies, rents or other
normally proratable items, it being agreed and understood by the Parties that
the Seller shall be obligated to pay such items under the terms of the Lease.
8.2 CLOSING COSTS. Seller shall pay (a) all title examination fees and
premiums for the Title Policy; (b) the cost of the Search Reports; (c) the cost
of the Survey; (d) Seller's legal, accounting and other professional fees and
expenses and the cost of all opinions, certificates, instruments, documents and
papers required to be delivered, or to cause to be delivered, by Seller
hereunder, including without limitation, the cost of performance by Seller of
its obligations hereunder; (e) all other costs and expenses which are required
to be paid by Seller pursuant to other provisions of this Agreement; (f) any and
all state, municipal or other documentary or transfer taxes payable in
connection with the delivery of any instrument or document provided in or
contemplated by this Agreement or any agreement or commitment described or
referred to herein; and (g) the charges for or in connection with the recording
and/or filing of any instrument or document provided herein or contemplated by
this Agreement or any agreement or document described or referred to herein.
Purchaser shall pay (a) Purchaser's legal, accounting and other professional
fees and expenses and the cost of all opinions, certificates, instruments,
documents and papers required to be delivered, or to cause to be delivered, by
Purchaser hereunder, including, without limitation, the cost of performance by
Purchaser of its obligations hereunder; and (b) all other costs and expenses
which
xxii
26
are required to be paid by Purchaser pursuant to other provisions of this
Agreement. Purchaser and Seller shall each be responsible for other costs in the
usual and customary manner for this kind of transaction in the county where the
Property is located.
8.3 COMMISSIONS/BROKER'S FEES. Seller hereby represents and warrants to
Purchaser that it has not contacted any real estate broker, finder or any other
party in connection with this transaction, and that it has not taken any action
which would result in any real estate broker's, finder's or other fees being due
or payable to any party with respect to the transaction contemplated hereby.
Purchaser hereby represents and warrants to Seller that Purchaser has not
contacted any real estate broker, finder or any other party in connection with
this transaction, and that it has not taken any action which would result in any
real estate broker's, finder's or other fees being due or payable to any party
with respect to the transaction contemplated hereby. Each Party hereby
indemnifies and agrees to hold the other Party harmless from any loss,
liability, damage, cost or expenses (including reasonable attorneys' fees)
resulting to such other Party by reason of a breach of the representation and
warranty made by such Party herein.
ARTICLE IX.
DEFAULT AND REMEDIES
9.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES.
a. Seller shall be deemed to be in default hereunder upon the
occurrence of one of the following events: (i) any of
Seller's warranties or representations set forth herein
shall be untrue in any material respect when made or at
Closing; or (ii) Seller shall fail to meet, comply with,
or perform any covenant, agreement or obligation on its
part required within the time limits and in the manner
required in this Agreement, which, in either of such
events, is not cured by Seller within ten (10) days
following receipt by Seller of written notice of default
from Purchaser.
b. In the event Seller shall be deemed to be in default
hereunder Purchaser may, at Purchaser's sole option, do
any one or more of the following: (i) terminate this
Agreement by written notice delivered to Seller on or
before the Closing; and/or (ii) enforce specific
performance of this Agreement against Seller including
Purchaser's reasonable costs and attorneys fees in
connection therewith and/or (iii) exercise any other right
or remedy Purchaser may have at law or in equity by reason
of such default including, but not limited to, the
recovery of reasonable attorneys' fees incurred by
Purchaser in connection herewith.
xxiii
27
9.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES.
a. Purchaser shall be deemed to be in default hereunder upon
the occurrence of one of the following events: (i) any of
Purchaser's warranties or representations set forth herein
shall be untrue in any material respect when made or at
Closing; or (ii) Purchaser shall fail to meet, comply
with, or perform any covenant, agreement or obligation on
its part required within the time limits and in the manner
required in this Agreement, which, in either of such
events, is not cured by Purchaser within ten (10) days
following receipt by Purchaser of written notice of
default from Seller.
b. In the event Purchaser shall be deemed to be in default
hereunder Seller may, at Seller's sole option, do any one
or more of the following: (i) terminate this Agreement by
written notice delivered to Purchaser on or before the
Closing; and/or (ii) enforce specific performance of this
Agreement against Purchaser including Seller's reasonable
costs and attorneys fees in connection therewith.
ARTICLE X.
MISCELLANEOUS
10.1 CASUALTY. Prior to the Closing Date, and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by fire or other
casualty shall be borne and assumed by Seller, except as otherwise provided in
this Section 10.1. Until the Closing has occurred, Seller shall keep all
insurance policies in effect. If, prior to the Closing Date, any part of the
Property is damaged or destroyed by fire or other casualty, Seller shall
immediately notify Purchaser of such fact. If such damage or destruction is
material (as defined below), Purchaser shall have the option to terminate this
Agreement upon written notice to Seller given not later than thirty (30) days
after receipt of Seller's notice. For purposes hereof "material" shall be deemed
to be any uninsured damage or destruction to the Property (except that a
casualty shall not be deemed uninsured solely because all, or a portion of, the
cost of the casualty is subject to a deductible) or any insured damage or
destruction (i) where the cost of repair or replacement is estimated, in
Purchaser's good faith judgment, to be One Hundred Thousand and No/100
($100,000.00) or more, (ii) where the repair or replacement is estimated, in
Purchaser's good faith judgment, to require more than one hundred twenty (120)
days to repair, or (iii) which would result in an abatement of rent that would
not be fully covered by rent loss insurance (or its equivalent) to Seller upon
the Closing. If Purchaser does not exercise this option to terminate this
Agreement, or if the casualty is not material, neither party shall have the
right to terminate this Agreement, and the parties shall proceed to the Closing
pursuant to the terms hereof without modification of the terms of this Agreement
and without any reduction in the Purchase Price, and the repair and restoration
of the Property shall proceed in accordance with the terms and provisions of the
Lease to be entered into between Seller and Purchaser with the same effect as if
such casualty had occurred during the term of the Lease. If Purchaser does not
elect to terminate this Agreement by reason of any casualty, Purchaser shall
have the right to participate in
xxiv
28
any adjustment of the insurance claim and, in such event, Purchaser and Seller
shall cooperate each with the other in good faith.
10.2 CONDEMNATION. Prior to the Closing Date, if all or any portion of
the Property is taken, or if access thereto is reduced or restricted, by eminent
domain or otherwise (or if such taking, reduction or restriction is pending,
threatened or contemplated) (hereinafter a "Condemnation Proceeding"), Seller
shall immediately notify Purchaser of such fact. In the event that such notice
relates to the taking of a material (as defined below) portion of the Property,
Purchaser shall have the option, in its sole and absolute discretion, to
terminate this Agreement upon written notice to Seller given not later than
thirty (30) days after receipt of Seller's notice, whereupon neither party shall
have any rights, obligations or liabilities hereunder except with respect to
those rights, obligations or liabilities which expressly survive the termination
of this Agreement. For the purposes of this Section, and without limiting the
generality of the foregoing, a taking shall be deemed material if it (i)
restricts access to the Property (ii) reduces the parking available to Property
unless an equal or greater number of spaces may be created through a
reconfiguration of the parking facilities, or (iii) would, in the reasonable
estimation of Purchaser, cost more than $100,000 to restore the Property or make
alterations to the Property in order to maintain the Property as a fully
functioning correctional and detention facility comparable in all respects to
the condition of the Property absent such Condemnation Proceeding. If Purchaser
does not elect to terminate this Agreement as herein provided, the parties shall
proceed to the Closing pursuant to the terms hereof without modification of the
terms of this Agreement and without any reduction in the Purchase Price, and any
condemnation award and repair and restoration of the Property shall be governed
by the terms and provisions of the Lease to be entered into between Seller and
Purchaser at the Closing with the same effect as if such Condemnation Proceeding
had occurred during the term of the Lease. If Purchaser does not elect to
terminate this Agreement by reason of any Condemnation Proceeding, Purchaser
shall have the right to participate in any Condemnation Proceeding with respect
to the Property and, in such event, Purchaser and Seller shall cooperate each
with the other in good faith.
10.3 SURVIVAL. All of the representations, warranties, covenants,
agreements and indemnities of Seller and Purchaser contained in this Agreement,
to the extent not performed at the Closing, shall survive the Closing for the
period of one (1) year after the Closing Date and shall not be deemed to merge
upon the acceptance of the Deed by Purchaser.
10.4 RIGHT OF ASSIGNMENT. Neither this Agreement nor any interest
herein may be assigned or transferred by Purchaser to any person, firm,
corporation or other entity without the prior written consent of Seller, which
consent may be given or withheld in the sole discretion of Seller.
10.5 NOTICES. All notices, requests and other communications under this
Agreement shall be in writing and shall be either (a) delivered in person, (b)
sent by certified mail, return-receipt requested or (c) delivered by a
recognized national delivery service addressed as follows:
xxv
29
If intended for Seller: Wackenhut Corrections Corporation
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, XX 00000-0000
Phone: (000) 000-0000
Attention: Xx. Xxxxxx X. Xxxxx
With a copy to: Akerman, Senterfitt & Xxxxxx, P.A.
Xxx XX Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Attention: Xxxxx X. March, Esq.
If intended for Purchaser: CPT Operating Partnership L.P.
0000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000-0000
Phone: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
With a copy to: Josias, Goren, Cherof, Xxxxx and Xxxxx, P.A.
0000 Xxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
or at such other address, and to the attention of such other person, as the
parties shall give notice as herein provided. A notice, request and other
communication shall be deemed to be duly received if delivered in person or by a
recognized national delivery service, when delivered to the address of the
recipient, if sent by mail, on the date of receipt by the recipient as shown on
the return-receipt card; provided that if a notice, request or other
communication is served by hand on a day which is not a Business Day, or after
5:00 P.M. on any Business Day at the addressee's location, such notice or
communication shall be deemed to be duly received by the recipient at 9:00 A.M.
on the first Business Day thereafter.
10.6 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement embodies and
constitutes the entire understanding between the Parties with respect to the
transactions contemplated herein, and all prior or contemporaneous agreements,
understandings, representations and statements (oral or written) are merged into
this Agreement. Neither this Agreement nor any provision hereof may be waived,
modified, amended, discharged or terminated except by an instrument in writing
signed by the Party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument.
10.7 APPLICABLE LAW. THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN
xxvi
30
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA. The Parties agree that
jurisdiction and venue for any litigation arising out of this Agreement shall be
in the Courts of Palm Beach County, Florida or the U.S. District Court for the
Southern District of Florida and, accordingly, consent thereto.
10.8 CAPTIONS. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe, or limit the scope
or intent of this Agreement or any of the provisions hereof.
10.9 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors, and assigns.
10.10 TIME IS OF THE ESSENCE. With respect to all provisions of this
Agreement, time is of the essence. However, if the first date of any period
which is set out in any provision of this Agreement falls on a day which is not
a Business Day, then, in such event, the time of such period shall be extended
to the next day which is a Business Day.
10.11 WAIVER OF CONDITIONS. Any Party may at any time or times, at its
election, waive any of the conditions to its obligations hereunder, but any such
waiver shall be effective only if contained in a writing signed by such Party.
No waiver by a Party of any breach of this Agreement or of any warranty or
representation hereunder by the other Party shall be deemed to be a waiver of
any other breach by such other Party (whether preceding or succeeding and
whether or not of the same or similar nature), and no acceptance of payment or
performance by a Party after any breach by the other Party shall be deemed to be
a waiver of any breach of this Agreement or of any representation or warranty
hereunder by such other Party, whether or not the first Party knows of such
breach at the time it accepts such payment or performance. No failure or delay
by a Party to exercise any right it may have by reason of the default of the
other Party shall operate as a waiver of default or modification of this
Agreement or shall prevent the exercise of any right by the first Party while
the other Party continues to be so in default.
10.12 LIABILITY OF GENERAL PARTNER OF PURCHASER. Seller acknowledges
that Purchaser has disclosed that the general partner of Purchaser (the "General
Partner") is a Maryland business trust formed pursuant to a Declaration of
Trust, as amended, a copy of which is duly filed with the Department of
Assessments and Taxation of the State of Maryland, which provides that no
trustee, officer, shareholder, employee or agent of the General Partner shall be
held personally liable under any written instrument creating an obligation of,
or claim against, the General Partner and that all persons dealing with the
General Partner, in any way, shall look only to the assets of the General
Partner for the payment of any sum or the performance of any obligation. Seller
agrees that any liability of the General Partner or any trustee, officer,
shareholder, employee or agent acting on behalf of the General Partner arising
out of this Agreement or the performance by Purchaser of its obligations
hereunder is limited to the assets of the General Partner in accordance with the
above Declaration of Trust.
xxvii
31
EXECUTED to be effective as of the Effective Date.
PURCHASER:
CPT OPERATING PARTNERSHIP L.P.
By: Correctional Properties Trust, a Maryland real
estate investment trust, its General Partner
By:
-------------------------------------------
Xxxxxxx X. Xxxxx, President
Date:
----------------------------------------
Purchaser's Tax Identification Number:
----------------------------------------------
SELLER:
WACKENHUT CORRECTIONS CORPORATION
By:
-----------------------------------------------
Xxxxxx X. Xxxxx, Vice Chairman of the Board
Date:
--------------------------------------------
Seller's Tax Identification Number:
--------------------------------------------------
AGREEMENT OF TITLE COMPANY
By its execution of this Agreement, the Title Company agrees to: (a)
timely file a return with the Internal Revenue Service on Form 1099-B, Form
1099-S and/or such other form or forms as the Internal Revenue Service may by
form or regulation require, and (b) furnish Purchaser with a written statement
showing the name and address of the Title Company and the information shown on
such form or forms with respect to Purchaser, and (c) comply with the provisions
of the Agreement which are applicable to the Title Company. Such form or forms
shall be filed in order that the parties to this transaction will be in
compliance with Section 6045 of the Internal Revenue Code of 1986, as
xxviii
32
amended. Purchaser and Seller shall each provide their taxpayer identification
numbers to the Title Company so that such information may be included in the
form or forms filed by the Title Company.
______________ TITLE INSURANCE CORPORATION
By:
----------------------------------------
Name:
-----------------------------------
Its:
------------------------------------
Date:
-----------------------------------
xxix
33
LIST OF SCHEDULES AND EXHIBITS
Schedule I - Purchase Price
Exhibit A - Real Property Descriptions
Exhibit B - Xxxx of Sale and Assignment
Exhibit C - Certificate of Non-Foreign Status
Exhibit D - Closing Certificate
Exhibit E - Deed
Exhibit F - Excluded Personal Property
Exhibit G - Right to Purchase Agreement
Exhibit H - Master Agreement to Lease and Lease Agreement
Exhibit I - Option Agreements
Exhibit J - Personal Property
Exhibit K - Surveyor's Certificate
Exhibit L-1 - Opinion of Seller's Counsel
Exhibit L-2 - Opinion of Purchaser's Counsel
xxx
