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EXHIBIT 10.1
CONTRACT FOR SALE OF REAL ESTATE
THIS AGREEMENT, entered into this _____ day of December, 1997,
by and between DATASTORM TECHNOLOGIES, INC., a Missouri corporation (hereinafter
"Seller") and THE CURATORS OF THE UNIVERSITY OF MISSOURI, a public corporation
of the State of Missouri (hereinafter "Buyer").
WITNESSETH:
1. Purchase and Sale. The Seller agrees to sell and the Buyer agrees to
buy, upon the terms and conditions herein set out, the real estate situated at
0000 XxXxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxx, including all
buildings (the "Premises"), fixtures, improvements, easements, access rights,
and appurtenances thereto, as more particularly described in Exhibit A hereto
which is incorporated herein by reference (collectively the "Real Property"),
together with the Personal Property described on Exhibit B hereto which is
incorporated herein by reference (collectively the "Personal Property"). The
Real Property and the Personal Property are collectively referred to as the
"Property."
2. Contracts and Leases. There are no leases or contracts affecting the
Property that shall be effective as of Closing.
3. Purchase Price. The price to be paid by the Buyer for the Property
at Closing is SEVEN MILLION SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS
($7,700,000.00). The Purchase Price shall be allocated between the Real Property
and the Personal Property as follows:
$ 7,466,000 to the Real Property; and
$ 234,000 to the Personal Property.
The Purchase Price shall be paid to Seller at Closing in immediately available
funds by wire transfer.
4. Title. Seller shall convey title to the Real Property by Special
Warranty Deed free and clear of all encumbrances, but subject to easements and
restrictions of record. Seller shall convey title to the Personal Property by
Xxxx of Sale AS IS, WHERE IS, and without warranty, except in such cases where
an unexpired, assignable warranty was given to Seller when it acquired such
Personal Property, in which cases Seller shall assign such Personal Property
warranty to Buyer.
5. Conditions Precedent to Buyer's Obligations. For a period concluding
on December 22, 1997, 11:00 a.m. (the "Due Diligence Period"), Buyer shall
proceed diligently to inspect the Property, review Seller's records, perform
title searches, secure purchase money, and perform such other actions in
anticipation of Closing as Buyer may deem necessary. Buyer shall have the right
to terminate this Agreement by written notice to Seller sent within the Due
Diligence Period if Buyer determines, in its sole and absolute discretion, that
it is unable or
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unwilling to proceed with the purchase of the Property. Seller shall cooperate
with Buyer's Due Diligence by providing access to the Real Property at
reasonable times and by permitting Buyer to review the on-premises records
pertaining to the Property. In addition to satisfactory completion of Buyer's
Due Diligence, the obligations of Buyer hereunder are subject to the fulfillment
or satisfaction on or prior to the Closing of the following conditions:
a. The representations, warranties and agreements made by
Seller in this Agreement shall be true and accurate on the date of
Closing with the effect as though such representations, warranties, and
agreements had been made or given on or as of such date.
b. All proceedings to be taken in connection with the
transactions contemplated by the Agreement, and all documents
incidental thereto, shall be satisfactory in form and substance to
Buyer's counsel.
c. The undersigned officer of the University of Missouri does
not have authority to bind The Curators of the University of Missouri
with respect to the obligations imposed upon the Buyer pursuant to the
Agreement without the express consent of the Board of Curators of the
University of Missouri. Accordingly, this Agreement shall not be
binding on Buyer until formally approved by the Board of Curators of
the University of Missouri. If such written consent is not delivered to
Seller prior to the end of the Due Diligence Period, Buyer and Seller
shall be deemed released automatically from their agreement for sale of
the Property.
6. Conditions Precedent to the Obligations of Seller. The obligations
of Seller hereunder are subject to the fulfillment and satisfaction on or at the
Closing of the following conditions:
a. Buyer's representations and warranties contained in this
Agreement shall be true at and as of the Closing, as though such
representations and warranties were made at and as of the Closing.
b. Buyer shall have performed and complied with Buyer's
obligations under this Agreement which are to be performed and complied
with by Buyer prior or as of the Closing.
c. Receipt, on or before 11:00 a.m. on December 22, 1997, of a
duly executed resolution approved by the Curators of the University of
Missouri approving this Agreement and Buyer's purchase of the Property
in accordance with the terms hereof.
d. Buyer and Seller shall enter into a lease of a portion of
the Property from Buyer to Seller in substantially the form that is
attached hereto as Exhibit C.
7. Title Insurance. Buyer may, at its expense, obtain a commitment for
an owner's policy of title insurance with respect to the Real Property. Prior to
the conclusion of the
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Due Diligence Period, Buyer may submit to Seller written notice setting forth
its objections (if any) to anything appearing in the title commitment. Within
five (5) days after receipt of such written objections, Seller shall respond to
Buyer in writing. If such response indicates that Seller is unable or unwilling
to cure any such objections, Buyer shall have the right to terminate this
Agreement by tendering written notice of its intention to do so to Seller within
five (5) days after receipt of Seller's response. All title exceptions accepted
by Buyer shall be deemed "Permitted Exceptions".
8. Closing.
a. The closing of this transaction shall take place at
Xxxxx-Central Title Co., 000 Xxxx Xxxxxxxx, Xxxxxxxx, Xxxxxxxx on or
before December 31, 1997 at 11:00 a.m. or at such other date, time, and
place as may mutually be agreed upon by the parties.
b. At Closing, Seller and, where appropriate, Buyer shall
execute and deliver the following documents:
(i) Special Warranty Deed, in substantially the form
that is attached hereto as Exhibit D, transferring and
conveying to Buyer marketable, fee simple title to the Real
Property, free and clear of all encumbrances, but subject to
easements and restrictions of record.
(ii) Xxxx of Sale, in substantially the form that is
attached hereto as Exhibit E, transferring and conveying to
Buyer good title to the Personal Property, as is where is, but
free and clear of liens and security interests.
(iii) Assignment of Warranties, in substantially the
form that is attached hereto as Exhibit F, transferring and
assigning to Buyer all right, title, claim and interest of
Seller in and to warranties pertaining to the construction of
the Premises on the Real Property and equipment installed
therein, which have not by their terms expired.
(iv) Such affidavits, other evidence of title,
corporate articles, by-laws, certificates of good standing,
resolutions, consents and the like from Seller and Buyer as
may be required by the Title Company, on or in forms
customarily used by the Title Company, in order to issue the
owner's policy of title insurance as specified in Section 7
hereof.
(v) A lease of the upper level (third of three) of
the Premises, including a portion of the current MIS area in
the middle level (second of three) of the Premises from Buyer
to Seller in substantially the form of Exhibit C hereto, as
contemplated by Section 6.d. hereof.
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(vi) All Agreements (executed originals when
available, otherwise copies) to be assigned by Seller to Buyer
pursuant hereto.
(vii) Copies of the most recent property tax bills,
and copies of the most recent utility bills, together with
evidence of payment thereof.
(viii) Copies of building permits for the building
and improvements comprising the Real Property, a fire xxxxxxxx
letter (if available), and operating permits for elevator
service (if any) to the extent in the possession or under the
control of Seller.
c. At Closing Buyer shall deliver to Seller the Purchase Price
set forth in Paragraph 3 hereof.
d. Seller shall deliver possession of the Property and be
prepared for Buyer's occupancy of the Premises promptly following
Closing.
9. Warranties of Buyer. Buyer makes the following warranties and
representations to Seller, each of which is true as of this date and shall be
true as of Closing:
a. Buyer is a public corporation duly organized and existing
by virtue of the laws of the State of Missouri;
b. Buyer has the power and authority to enter into and perform
this Agreement and to carry out the transactions contemplated hereby;
c. Following approval of the Board of Curators pursuant to
Section 5.c. hereof, this Agreement shall constitute a valid and
binding Agreement of Buyer enforceable in accordance with its terms;
and
d. Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby violates or
conflicts with any rule or regulation of The Curators of the University
of Missouri or other laws, rules or regulations affecting Buyer.
10. Warranties of Seller. Seller makes the following warranties and
representations to Buyer, each of which is true as of this date and shall be
true as of Closing:
a. Seller is a corporation duly organized and existing by
virtue of the laws of the State of Missouri.;
b. Following approval of the Board of Curators pursuant to
Section 5.c. hereof, this Agreement shall constitute a valid and
binding Agreement of Seller enforceable in accordance with its terms;
and
c. Seller has the power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby.
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11. Real Estate Commission. Seller and Buyer represent to each other
that they have dealt with no broker, agent or finder in connection with the sale
of the Property other than CB Commercial Real Estate Group, Inc., who shall earn
a commission at Closing to be paid by Seller from the Purchase Price. Each party
shall defend, indemnify and hold harmless the other from and against any and all
claims, demands, causes of action, costs, expenses or other liabilities
(including attorneys' fees and court costs whether or not suit is instituted)
incurred by the Indemnified Party arising from or pertaining to any brokerage
commissions, fees, costs or other expenses that may be due or claimed by any
broker, agent or finder with whom the Indemnifying Party has dealt in connection
with the transactions contemplated hereunder, other than as disclosed above.
12. Insurance. Seller hereby covenants to keep all improvements located
on the Real Property and all Personal Property located thereon insured on an
all-risk, replacement cost basis from the date hereof until Closing.
13. Risk of Loss Until Date of Closing on Seller. All improvements now
situated on the Real Property shall be delivered to Buyer at the time of Closing
in as good condition as they are as of the date of this Agreement, ordinary wear
and tear excepted. Provided, however, if prior to Closing any of the
improvements on the Real Property are materially damaged by fire or other
casualty, then Buyer shall have the option of accepting all of the insurance
proceeds therefor, and proceeding with its performance under this Agreement, or
declaring this Agreement to be null and void, in which case the parties shall be
released from their respective obligations under this Agreement.
14. Maintenance and Alterations. Seller shall make no material
alterations to the Premises without Buyer's prior written consent (not to be
unreasonably withheld) nor shall Seller permit any Tenant to make alterations to
the Premises without Buyer's prior written consent (not to be unreasonably
withheld). Buyer may inspect the Premises not less than two days prior to
Closing during normal business hours, upon reasonable notice to Seller, in order
to ensure that Seller has maintained the improvements as required in Sections 13
and 14 hereof. If upon such inspection, Buyer in good faith determines that
Seller has failed materially in its obligation to maintain the Premises, Buyer
may make written demand on Seller that Seller make necessary repairs to fulfill
its maintenance obligations. In order to be effective, such notice must be
tendered to Seller not less than 48 hours prior to Closing. If within 24 hours
following receipt of such notice, Seller fails to commence the necessary
repairs, Buyer may enter upon the Premises, make the necessary repairs, and
deduct the actual cost of such repairs (without xxxx up by Buyer) from the
Purchase Price at Closing.
15. Removal of Equipment and Other Personal Property. Seller agrees to
remove all of Seller's equipment and other items of Personal Property (other
than the Personal Property described on Exhibit B hereto) from that portion of
the Premises that is not leased to Seller pursuant to Section 6.d of this
Agreement within 45 days following Closing. Seller will not remove any fixtures,
including but not limited to light fixtures, from the Premises.
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16. Survival. All obligations of Seller and Buyer which by their nature
involve performance in any way after the Closing Date, or which cannot be
ascertained to have been fully performed until after the Closing Date, shall
survive the Closing Date.
17. Agreement Binding Upon Successors and Assigns. The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto, their successors and assigns.
18. Headings. The headings in this instrument have been inserted for
convenience of reference only and shall in no way modify or restrict any
provision hereof, or be used to construe any of such provisions.
19. Modifications in Writing. This Agreement may not be changed or
modified, either in whole or in part, except by initialing changes herein or by
an agreement in writing signed by all parties hereto.
20. Prorations and Closing Costs. If unpaid as of Closing, real estate
taxes for the 1997 tax year shall be paid at Closing by Seller from the Purchase
Price. Costs of all utilities, including electricity, water, sewer and gas shall
be borne by Seller prior to the Date of Closing and commencing as of the Date of
Closing, shall be borne by Buyer. The parties shall arrange for all utility
meters to be read and all accounts transferred as of midnight of the day before
the Date of Closing. All expenses of the Property shall be prorated and adjusted
as of midnight of the day before the Date of Closing. Buyer and Seller shall pay
their own respective attorney's fees, costs and expenses. Seller shall pay for
preparation of the Deed and Xxxx of Sale. All other costs and expenses incurred
in connection with this transaction, including but not limited to, costs,
expenses and fees with respect to examination of title and the obtaining of
title insurance, surveys and inspections shall be paid by Buyer.
21. Notices. All notices, requests, demands, and other communications
hereunder shall be deemed to have been duly given if the same shall be in
writing and shall be personally delivered or sent via overnight courier or by
telecopy to the address(es) or telecopy number(s) set forth below:
a. If to Seller:
Xxxxxxx X. Xxxxx
Director of Real Estate and
Facilities Management
Quarterdeck Corporation
00000 Xxxxxxxx Xxx
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000-0000
(310-309-4218) Telecopy
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with a copy to:
Xxxx X. Xxxxx, Xx., Esq.
Xxxxx Xxxx LLP
One Metropolitan Square
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
(314-259-2020) Telecopy
b. If to Buyer:
Xxxxxx X. Xxxxxx
Assistant Vice President for
Management Services
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
(573-884-4745) Telecopy
with a copy to:
Office of the General Counsel
of the University of Missouri
000 Xxxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
(573-882-0050) Telecopy
22. Entire Agreement. This Agreement, together with the Exhibits
attached hereto, which are hereby incorporated by reference, constitutes the
entire undertaking between the parties hereto, and supersedes any and all prior
agreements, arrangements, and understandings between the parties with respect to
the subject matter hereof.
23. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original.
IN WITNESS WHEREOF, said parties have executed this Agreement
as of the day and year first above written.
SELLER: BUYER:
DATASTORM TECHNOLOGIES, INC. THE CURATORS OF THE UNIVERSITY
OF MISSOURI
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------------------- --------------------------------
Name: Name:
Title: Title:
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