EXHIBIT 99.1
REAL ESTATE CONTRACT
THIS REAL ESTATE CONTRACT ("Contract") is made, subject to the
conditions and contingencies contained herein, on this 22nd day of December,
2004, by and between TOWER PROPERTIES COMPANY ("Seller") and COMMERCE BANK,
N.A., a national banking association ("Buyer"). This Contract constitutes an
offer by Buyer to buy the property described herein which can be accepted only
by Seller signing and returning this Contract to Buyer on or before December 22,
2004 (hereinafter referred to as the "Acceptance Date"). If this Contract is not
duly executed and returned by Seller to Buyer by the Acceptance Date, then this
Contract shall be null and void and of no further force or effect, except as
otherwise agreed to in writing by Buyer and Seller.
WITNESSETH: Seller hereby agrees to sell to Buyer, and Buyer hereby
agrees to buy from Seller (i) a tract of real estate and the improvements
thereon located in Kansas City, Xxxxxxx County, Missouri (with a common address
of 000 Xxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx) as legally described and highlighted
on the site plan attached hereto as Exhibit A and incorporated herein by this
reference (collectively, the "Land"); (ii) all site plans, surveys, soil,
substrata and other studies of any kind, if any, in Seller's possession which
relate to the Land; and (iii) all other rights, privileges and appurtenances
owned by Seller and related to the Land, together with rights relating to the
walkway described in the Easement Agreement hereinafter defined ([i], [ii] and
[iii] are hereinafter collectively called the "Property"); subject, however, to
the Permitted Exceptions (hereinafter defined). The exact dimensions, square
footage and legal description of the Land shall be determined in accordance with
the provisions of this Contract.
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration the sufficiency and receipt of which are hereby
acknowledged, Seller and Buyer hereby agree as follows:
1. The purchase price shall be Ten Million Seven Hundred Fifty Thousand
Dollars ($10,750,000) ("Purchase Price"), which Buyer agrees to pay in cash or
by cashier's check as follows: an xxxxxxx deposit of Seventy-Five Thousand
Dollars ($75,000) to be paid within three (3) business days after Seller's
execution of this Contract ("Seller's Acceptance"), to the Title Company
(hereinafter defined) to be held by the Title Company in escrow; and the
balance, subject to prorations and other credits provided in this Contract, to
be paid on delivery of Deed (as hereinafter defined) as herein provided. An
escrow account shall be opened by the Title Company to hold the xxxxxxx deposit
and any other sums which are payable or may become payable under the terms of
this Contract. The escrow account shall bear interest which shall inure to the
benefit of the Buyer and be applied to the Purchase Price when all the
conditions and contingencies of this Contract have been
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either satisfied or waived.
2. Seller shall pay all taxes, general and special, and all
assessments, which are due and have accrued to the Closing Date of this Contract
(except for installments of special assessments that are to be paid after the
Closing Date of this Contract), and Buyer shall assume such taxes, assessments
and installments of unpaid special assessments becoming due thereafter, except
that all general, state, county, school and municipal taxes (exclusive of
rebates, penalties or interest) payable during the current calendar year shall
be prorated between Seller and Buyer, on the basis of said calendar year, as of
the Closing Date of this Contract. If the Property is not separately assessed
but is part of a larger parcel for tax purposes, then the tax proration made on
the Closing Date shall be based on the proportion that the total square footage
of the property so assessed bears to the square footage of the Property, as
mutually agreed upon in good faith by Seller and Buyer.
3. Within thirty (30) days after Seller's Acceptance, Seller, at
Seller's sole cost and expense, shall cause FIRST AMERICAN TITLE INSURANCE
COMPANY ("Title Company") to issue and deliver to Buyer a Title Commitment along
with copies of all exceptions referenced therein. Seller shall, not later than
thirty (30) days after Seller's Acceptance, cause to be prepared and furnished
to Buyer and the Title Company a current ALTA survey ("Survey") of the Land,
prepared by a registered public surveyor, which shall include a gross square
footage determination of the Land and an accurate legal description of the Land
and which shall meet the reasonable standards and requirements established by
Buyer and Title Company. Buyer shall give Seller written notice on or before the
expiration of thirty (30) days after receipt of both the Title Commitment and
the Survey (the "Review Period") if any condition of title or any matter shown
in the Title Commitment or Survey is not satisfactory to Buyer. Any title
encumbrances or exceptions which are set forth in the Title Commitment or the
Survey and to which Buyer does not object within the Review Period (as to the
Title Commitment and the Survey) shall be deemed to be permitted exceptions to
the status of Seller's title ("Permitted Exceptions"). Seller may, at its sole
cost and expense, undertake to eliminate or modify all such unacceptable matters
to the reasonable satisfaction of Buyer. In the event Seller elects to satisfy
Buyer's objections, Seller shall give Buyer prompt written notice of its
election, and Seller shall use its best efforts to satisfy promptly any such
objections. In the event that Seller elects not to satisfy Buyer's objections
(whereupon Seller shall give Buyer prompt written notice of its election) or is
otherwise unable with the exercise of its best efforts to satisfy said
objections within forty-five (45) days after the date of Buyer's notice of
objections, Buyer may, in its sole discretion:
(a) Accept title subject to the objections it has raised with or
without an adjustment in the Purchase Price, in which event said
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objections shall be waived and become Permitted Exceptions; or
(b) Rescind this Contract, whereupon the escrow deposit shall be
returned to Buyer along with any interest which has accrued thereon,
and this Contract shall be of no further force and effect.
Buyer shall give Seller notice of its decision whether to close or not within
fifteen (15) days after Seller notifies Buyer of its election not to satisfy
said objections.
4. Seller hereby represents and warrants to Buyer as of the date of
this Contract and as of the Closing Date that:
(a) There is no pending condemnation or similar proceeding affecting
the Land or any portion thereof, and Seller has not received any
written notice and has no knowledge of any such proceeding;
(b) Except as disclosed in Schedule 4(b) attached hereto and
incorporated herein by this reference, there are no contracts of
employment, management, maintenance, service or rental outstanding
which affect any portion of the Land;
(c) There are no known violations of any federal, state, county or
municipal law, ordinance, order, regulation or requirement, affecting
any portion of the Land and no written notice of any such violation has
been issued by any governmental authority;
(d) Except as otherwise disclosed to Buyer, or as otherwise provided in
any Management Agreement affecting the Property, no work has been
performed for or is in process by or on behalf of Seller on or at, and
no materials have been furnished to, the Land or any portion thereof
which might give rise to mechanic's, materialman's or similar liens
against the Land or any portion thereof;
(e) Seller is not prohibited from consummating the transactions
contemplated in this Contract by any law, regulation, agreement,
instrument, restriction, order, its organizational documents or
judgment;
(f) There are no attachments, executions, assignments for the benefit
of creditors, receiverships, or voluntary or involuntary proceedings in
bankruptcy or pursuant to any other debtor relief laws contemplated or
filed by Seller or pending against Seller or the Land;
(g) Seller is not a foreign person selling property as described in the
Foreign Investment in Real Property Tax Act; and
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(h) There exists a right of ingress and egress to and from the Property
to adjoining public and private streets and ways, and Seller may grant
a right of access in connection therewith to Buyer. Furthermore, Seller
represents and warrants that no fact or condition exists, or to its
knowledge, is imminent, which would result in the termination or
impairment of access to the Property from any street or way.
5. At any time after Seller's Acceptance, upon not less than one (1)
business day prior notice (verbal or written) by Buyer to Seller, Seller shall
grant Buyer the right to enter the Property, together with Buyer's employees,
agents, contractors, representatives and materials for the following purposes:
(a) To make a physical inspection of the Property, including, without
limitation, subsurface tests, test borings, water survey, percolation
tests, topographical survey, sewage disposal survey, drainage and
utility determinations and environmental site assessments;
(b) To make an accurate survey of the boundaries of the Property,
showing the exact location of any encroachments, easements,
rights-of-way, covenants, or restrictions burdening and appurtenant to
the Property, any improvements thereof and thereon, and any streets,
alleys, rights-of-way and highways bordering the Property; and/or
(c) To make any other inspections or investigations deemed advisable by
Buyer.
If, in connection with any investigation, Buyer discovers the existence
of toxic or hazardous substances or environmental contamination on the Property,
then Buyer shall have the right, in its sole discretion, to notify Seller that
the environmental condition of the Property is not satisfactory and this
Contract shall be terminated, in which event the escrow deposit shall be
returned to Buyer and this Contract shall be of no further force and effect.
Upon request of Seller, Buyer shall provide Seller with complete copies of all
tests, surveys, boring results and/or reports which indicate the environmental
conditions discovered on the Property. Seller, in its sole discretion, shall
have the option to remediate any contamination or not, provided Seller shall
give Buyer written notice of such election within ten (10) days after Seller's
receipt of Buyer's notice of contamination. In the event Seller elects to
remediate such contamination, Seller shall use its best efforts to remediate
such contamination to a condition acceptable to Buyer, in Buyer's sole
discretion, within sixty (60) days after Seller's receipt of Buyer's notice of
contamination. Should Seller elect not to remediate such contamination, Buyer
shall have the option to:
(a) Close this transaction notwithstanding the presence of such
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contamination with or without a reduction of the Purchase Price; or
(b) Rescind this Contract, whereupon the escrow deposit shall be
returned to Buyer along with any interest which has accrued to date,
and this Contract shall be of no further force and effect.
It is expressly understood and agreed that Buyer assumes no obligation
to report any contamination or other release, of any kind, of toxic or hazardous
substances into the environment to any governmental agency or authority or any
other third party.
6. Buyer's obligation to consummate the transactions contemplated in
this Contract is conditioned upon satisfaction of each of the following
conditions at or prior to the Closing (or such earlier date as is specified with
respect to a particular condition):
(a) The condition of the Land and Property shall meet the approval of
Buyer, in Buyer's sole judgment and discretion, upon on-site
inspections of the Land and Property to be made by Buyer or Buyer's
representatives;
(b) Buyer shall have received any and all regulatory approval(s)
required and/or necessary for Buyer to acquire the Property and, to the
extent applicable, to operate a branch bank on the Land;
(c) None of the representations and warranties of Seller set forth
above shall be untrue or inaccurate in any material respect; and
(d) Seller shall not have failed to perform or comply with any of its
agreements or obligations in a material manner and within the periods
provided herein.
In the event that all of the above conditions are not satisfied at or prior to
the Closing (or such earlier date as is specified with respect to a particular
condition), Buyer may terminate this Contract by notice to Seller, in which
event this Contract shall become null, void and of no further force and effect,
and the escrow deposit, together with any interest that has accrued to date,
shall be immediately delivered to Buyer.
7. Seller's obligation to consummate the transactions contemplated in
this Contract is conditioned upon satisfaction of the following condition at the
Closing: Buyer shall execute and deliver to Seller at Closing, a Standard
Parking Agreement ("Parking Agreement"), in a form acceptable to Buyer,
providing that certain of Seller's tenants shall have access to and use of the
parking garages comprising the Land ("Buyer's Garages") for a term of ten (10)
years, with two (2) five (5) year renewal options (such options to be
exercisable in the sole discretion of Seller); provided, however,
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during the period of any renewal term, in the event that any of the Buyer's
Garages are no longer utilized as parking structures, as determined by Buyer in
its reasonable discretion, Buyer shall have the right to terminate any such
renewal term upon not less than one hundred eighty (180) days written notice.
Pursuant to the Parking Agreement, Buyer shall make available to the tenants of
the Commerce Tower Building (911 Main Street, Kansas City, Missouri) parking
spaces in Buyer's Garages, in an amount equal to the lesser of (i) one hundred
twenty-five percent (125%) of the actual parking spaces under lease at any time
and from time to time for the benefit of the tenants of the Commerce Tower
Building (911 Main Street, Kansas City, Missouri), or (ii) three hundred (300)
spaces. Certain of Seller's tenants shall have the option to lease additional
spaces, based on availability, as determined by Buyer in its reasonable
discretion. Buyer agrees to provide at Closing a fully executed and recordable
easement, in form and substance mutually acceptable to the parties, granting
Seller right of ingress and egress over the Land to Seller's adjacent property
and parking structures as described in Exhibit B attached hereto and
incorporated herein by this reference. Seller agrees not to record the easement
without giving Buyer not less than thirty (30) days advance written notice
except in circumstances where Seller deems it necessary to record the easement
in order to satisfy legal authorities or the Title Company or to protect its
right of access.
8. Seller shall cause to be issued by the Title Company at the closing
of this Contract its standard owners A.L.T.A. policy of title insurance (on its
current form) showing title to the Property in Buyer, subject only to the
Permitted Exceptions. The amount of said insurance shall be the actual Purchase
Price and Seller shall bear the cost of such policy together with the cost of
any endorsements reasonably requested by Buyer to the Title Policy.
9. Subject to the terms and conditions contained herein, Seller shall
deliver for Buyer at the office of the Title Company a General Warranty Deed
(the "Deed"), properly executed and conveying said Property, subject to the
Permitted Exceptions, but otherwise free and clear of all liens and encumbrances
whatsoever, except as are acceptable to Buyer. Provided that all of the
conditions of this Contract shall have been satisfied prior to or on the Closing
Date, the "Closing" (herein so called) of this transaction shall take place at
the Title Company no greater than ninety (90) days after the Acceptance Date,
provided, however, that the Closing Date shall be automatically extended
(without further notice) for ninety (90) days beyond the original Closing Date
if the conditions to Buyer's obligations to close set forth in this Contract
have not been satisfied. Buyer shall pay the balance of the Purchase Price at
Closing. TIME IS OF THE ESSENCE IN THIS CONTRACT.
10. Seller shall pay the cost of the Survey, the fee for the Title
Commitment and title policy (along with any endorsements thereto
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required by Buyer), one half of the escrow fee charged by the Title Company, its
proportionate share of the prorations as set forth in Section 2 hereof, and its
own attorneys' fees. Buyer shall pay one half of the escrow fee charged by the
Title Company, its proportionate share of the prorations set forth in Section 2
hereof, the recording fees for the General Warranty Deed and its own attorneys'
fees. Except as otherwise provided in this paragraph, all other costs and
expenses relating to the transactions contemplated in this Contract shall be
paid by the party incurring such expenses.
11. In the event of default by Buyer, Seller's sole and exclusive
remedy shall be receipt of all sums held in the escrow deposit along with any
interest which has accrued on such deposit to date as liquidated damages.
12. Seller shall be in default hereunder if any of Seller's warranties
or representations set forth herein are untrue, inaccurate or misleading in any
material respect or if Seller shall fail to meet, comply with or perform any
material agreement or obligation on its part required, within the time limits
and in the manner required in this Contract. In the event of a default by
Seller, Buyer may terminate this Contract in which event the escrow deposit
shall be immediately returned to Buyer, along with any interest which has
accrued thereon, or to enforce specific performance against Seller.
13. Buyer and Seller agree and warrant to each other that no person or
entity is entitled to or has earned a commission in connection with this
transaction.
14. Any notices required hereunder shall be given either by certified
mail, postage prepaid, return receipt requested or by hand delivery or express
delivery service. Any such notice given by mail shall be deemed given three (3)
days after the deposit in the mail as aforesaid; and any notice given by hand
delivery or express delivery service shall be deemed given when received. All
notices shall be given to the following addresses and any party may change an
address for such notice by notice in accordance with this paragraph:
Seller: Tower Properties Company
000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Buyer: Commerce Bank, N.A.
1000 Walnut
X.X. Xxx 000000
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Aberdeen
15. This Contract may not be changed or terminated orally. The terms
and conditions contained herein are to apply to and bind the
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heirs, executors, administrators, successors and assigns of the respective
parties.
16. If any provisions of this Contract or the application thereof to
any party or circumstances shall, to any extent, be invalid or unenforceable,
the remainder of this Contract shall not be effected thereby and each provision
of this Contract shall be valid and enforceable to the fullest extent permitted
by law.
17. In the event the Land or any part thereof is or becomes the subject
of a condemnation proceeding or there occurs any material adverse change in the
physical condition of the Land, Seller shall immediately notify Buyer, and in
such event, Buyer shall have the option (i) to terminate this Contract and
declare its obligations hereunder null and void and of no further effect, in
which event the escrow deposit together with all interest thereon shall be
returned to Buyer, or (ii) to purchase the Land, with or without an adjustment
in the Purchase Price, and receive an assignment of any condemnation award
attributable to the Land from Seller.
18. Seller agrees for itself and its successors, representatives and
assigns, that Buyer shall have the unconditional right to assign this Contract
without Seller's consent. In the event of such assignment, Buyer shall deliver
to Seller, on or before the closing date of this Contract, a copy of the duly
executed assignment agreement wherein the Contract has been assigned to the
assignee. Upon the execution of the assignment agreement by the assignee, the
assignee shall assume each and every obligation of Buyer hereunder. Upon
delivery of the assignment agreement to Seller, Buyer shall be fully released
from any further obligation hereunder.
19. Until Closing, Seller shall, at its sole cost and expense, keep the
Property and the improvements thereon constantly insured with its customary
insurance company against loss by fire and other casualties with extended
coverage in the same amounts as currently carried by Seller as of the date
hereof.
20. As a condition to Closing, Seller agrees to provide a fully
executed and recordable easement, in form and substance mutually acceptable to
the parties, granting Buyer rights of ingress and egress over, and rights to run
utility and data lines across, the sky-walkway connecting the Land to Buyer's
adjacent property (Commerce Tower Building [911 Main Street, Kansas City,
Missouri]) ("Easement Agreement").
21. It is understood and agreed that Buyer or Seller shall have the
option, exercisable by giving notice to the other party prior to the Closing, of
effecting a like-kind exchange involving the Property by assigning all or any
part of Buyer's or Seller's rights in this Contract to a third party
intermediary or exchange accommodation titleholder; provided, however, that the
parties shall remain
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responsible for their obligations under this Contract and shall execute such
documents as Buyer or Seller shall reasonably request to affirm its obligations
hereunder. In the event of such an assignment, Seller or Seller's assignee
agrees to convey title to Buyer or to the intermediary, as directed by Buyer,
and Seller or Seller's assignee shall fulfill all other obligations of Seller in
accordance with the terms of this Contract. The parties shall reasonably
cooperate with each other and execute such documents as are reasonably necessary
for Buyer or Seller to effect such exchange, but Buyer or Seller shall not be
obligated to incur any expenses. Buyer and Seller hereby agree to indemnify,
defend and hold the other party harmless of and from any and all liabilities,
claims, demands and expenses of any kind or nature (including, without
limitation, reasonable attorney's fees) which Buyer or Seller reasonably incurs
or suffers as a result of or in connection with any such like-kind exchange.
22. At Closing, Seller shall deliver to Buyer all original executed
leases and contracts then in effect with respect to the Property (if no such
original exists, copies will be delivered in lieu thereof) together with
assignments of all such leases and contracts to Buyer. Buyer shall agree to
assume all obligations of Seller under such leases and contracts that accrue
after the date of Closing. If tenant approvals are necessary for the assignment
of any leases, Seller shall obtain all approvals and deliver same to Buyer prior
to or at Closing. Seller shall also deliver to Buyer an assignment and transfer
of all tenant security deposits, if any, of tenants currently on the Property
and any prepaid rents.
23. Seller and Buyer each agree that this Contract, the terms hereof,
and the existence of this Contract itself will be kept confidential and the
knowledge thereof will be limited to only those persons or parties who are
absolutely necessary to the implementation and Closing of this Contract.
24. This Contract shall be governed by, and construed in accordance
with, the laws of the State of Missouri.
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IN WITNESS WHEREOF, this Contract has been duly executed by the parties
hereto as of the day and year first above written.
SELLER:
TOWER PROPERTIES COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx
Title: President and CEO
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BUYER:
COMMERCE BANK, N.A.
By: /s/ Xxxxxxx Aberdeen
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Xxxxxxx Aberdeen
Title: Controller
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