EXHIBIT 99.1
REAL ESTATE CONTRACT
THIS REAL ESTATE CONTRACT ("Contract") is made, subject to the conditions
and contingencies contained herein, on this 29th 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 31, 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 9th and
Walnut Streets, Kansas City, Missouri) 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, including, without limitation, all
rights, duties and obligations Seller has related to the Land pursuant to: (a)
the Second Amended Tower Properties Downtown Redevelopment Area Tax Increment
Financing Plan approved by the City Council by Ordinance No. 010362 (the "TIF
Plan"); (b) the Amended and Restated Master Development Agreement between Tower
Properties Company and the Tax Increment Financing Commission of Kansas City,
Missouri dated March 13, 2002 (the "Master Agreement"); and (c) the
Redevelopment Area B Contract between Seller and the TIF Commission (the
"Project B Agreement") ([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 Seven Million Two Hundred Fifty Thousand
Dollars ($7,250,000) ("Purchase Price"), which Buyer agrees to pay in cash or by
cashier's check as follows: an xxxxxxx deposit of Fifty Thousand Dollars
($50,000) 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
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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 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
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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 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
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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
(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
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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
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
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following condition at the Closing: Buyer shall execute and deliver to Seller at
Closing, an agreement, in a form acceptable to Buyer ("Parking Agreement"),
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, 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) one hundred fifty (150) 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.
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 one hundred twenty (120) 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 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
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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 heirs, executors,
administrators, successors and assigns of the respective parties.
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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, Buyer shall have purchased and closed on
its acquisition from Seller of the real property and improvements generally
located at 000 Xxxx Xxxxxx, Xxxxxx City, Xxxxxxx County, Missouri. If Buyer is
unable to complete and close such purchase on or before the Closing, Buyer shall
have the right to either extend the date of Closing until such time as Buyer has
closed on its acquisition from Seller of the real property and improvements
generally located at 000 Xxxx Xxxxxx, Xxxxxx City, Xxxxxxx County, Missouri, or
terminate this Contract and obtain immediate return of the escrow deposit and
any accrued interest thereon upon written notice to Seller. In the event of such
termination, the parties shall have no further rights or liabilities under this
Contract.
21. Seller is in the process of concluding negotiations regarding the
Project B Agreement with the Tax Increment Financing Commission of Kansas City,
Missouri (the "TIF Commission"). (Buyer acknowledges receipt from Seller of the
last draft of the Project B Agreement dated April 7, 2004.) Seller anticipates
that execution of the Project B
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Agreement will occur subsequent to Buyer's purchase of the Land. Seller agrees
to diligently pursue the conclusion of negotiations regarding the Project B
Agreement which obligation shall be a covenant which survives the Closing.
Seller agrees that during the course of its negotiations with the Commission
that it shall consult with and obtain the consent of Buyer to any material
changes and revisions to the Project B Agreement draft dated April 7, 2004.
22. Upon execution of the Project B Agreement by Seller and the TIF
Commission, Seller shall diligently pursue the TIF Commission's certification of
costs associated with construction of Redevelopment Project B, as defined in the
Project B Agreement ("Redevelopment Project B") pursuant to the TIF Commission's
Certification of Costs and Reimbursement Policy. It is anticipated that the
certification process will take approximately sixty (60) to ninety (90) days
after Seller has submitted costs to the TIF Commission staff for its review.
Seller shall diligently pursue the certification of costs associated with
Redevelopment Project B which obligation shall be a covenant which survives the
Closing.
23. Seller with Buyer's cooperation and assistance agrees to negotiate
an assignment of Seller's rights, duties and obligations under the TIF Plan, the
Master Development Agreement, and the Project B Agreement to Buyer (the
"Assignment Agreement"). The Assignment Agreement shall, inter alia, assign to
Buyer all of Seller's rights, duties and obligations as they specifically relate
to Redevelopment Project B, including Seller's right to receive reimbursement of
Redevelopment Project B costs certified as reimbursable by the Commission. Buyer
acknowledges and agrees that the sole source of revenue for reimbursing
Redevelopment Project B costs certified as reimbursable shall be Tax Increment
Financing revenues generated from Redevelopment Project B. It is understood and
agreed that the approval of the Assignment Agreement is subject to the
reasonable discretion of the TIF Commission. Notwithstanding the foregoing,
Seller and Buyer agree to each exercise best efforts to secure the TIF
Commission's approval of the Assignment Agreement which obligation shall be a
covenant which survives the Closing.
24. 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.
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25. 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.
26. This Contract shall be governed by, and construed in accordance
with, the laws of the State of Missouri.
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
BUYER:
COMMERCE BANK, N.A.
By: /s/ Xxxxxxx Aberdeen
---------------------------------
Xxxxxxx Aberdeen
Title: Controller
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