Exhibit 10(a)
REAL ESTATE PURCHASE CONTRACT
THIS CONTRACT ("Contract" or "Agreement") is made effective as of the 28th
day of February, 2005, by and between FERRELLGAS L.P. ("Seller") and TOWER
PROPERTIES COMPANY ("Buyer").
For and in consideration of mutual covenants, Buyer and Seller hereby
agree as follows:
SECTION 1. THE PROPERTY. For the price and upon and subject to the terms,
conditions and provisions herein set forth, Seller shall sell and convey to
Buyer and Buyer shall purchase from Seller the following property (collectively,
the "Property").
(a) The land and improvements in Liberty, Clay County, Missouri,
having a street address of One and Xxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx
00000-0000, described in Exhibit A attached hereto and incorporated herein by
reference (the "Land").
(b) All right, title and interest of Seller now owned or acquired by
Seller prior to the Closing Date in and to (i) all public and xxxxxxx xxxxxxx,
xxxxx, xxxxxxx, alleys and passageways, opened or proposed, in front of or
abutting the Land, (ii) any award made or to be made and any unpaid award for
damage to the Land by reason of any change of grade of any such street, road,
avenue, alley or passageway, and (iii) any strips or gores of land adjoining the
Land.
(c) All equipment, machinery, appliances and appurtenances thereto
installed upon or located in and used in the maintenance or operation of the
Improvements including such of the foregoing as are used in connection with
generating or distributing air, water, electricity, refrigeration and elevators
and escalators (collectively the "Building Equipment").
(d) All and singular the estates, rights, privileges, easements and
appurtenances belonging or in any way appertaining to the Land and the
Improvements.
The Property does not include Seller's personal property, inventory,
equipment or trade fixtures, including such things as generators, furniture,
phone equipment, and computer equipment located on the Land or in the
Improvements ("Personal Property").
SECTION 2. PURCHASE PRICE. The purchase price for the Property ("Purchase
Price") shall be Five Million Five Hundred Thousand Dollars ($5,500,000). Buyer
shall pay the Purchase Price, as follows: Fifty Thousand ($50,000) at the
signing of the Contract as "Xxxxxxx Money" to be deposited upon execution of
this contract in the insured trust or escrow account of First American Title
("Title Company") as part of the consideration of the sale; the balance to be
paid in the following manner: Five Million Four Hundred Fifty Thousand Dollars
($5,450,000) in guaranteed funds or cashiers check at Closing (as defined in
this Contract), adjusted at Closing for prorations, closing costs and other
agreed expenses. All interest, if any, earned on the Xxxxxxx Money shall be
deemed to belong to Buyer who shall have the obligation to pay any tax owed on
the interest.
SECTION 3. TITLE AND DEED; SURVEY.
A. Title and Deed. On the Closing Date, Seller shall sell and convey to
Buyer good and marketable title to the Land and Improvements ("Real Property")
by general warranty deed in the form reasonably prescribed by Buyer (the
"Deed"), subject to no liens, charges, claims, actions, encumbrances or title
exceptions of any kind whatsoever ("Encumbrances"), except for those matters
approved or waived by Buyer (the "Permitted Exceptions"), as hereinafter
provided. Title to the Real Property as aforesaid shall be insured by the Title
Company as provided in Section 4.
B. Survey. Seller shall, at Seller's sole expense, within 20 days after
the date of this Contract, obtain and deliver to Buyer and the Title Company a
current "as-built" survey of the Real Property (the "Survey"). The Survey shall
be prepared by a surveyor ("Surveyor") registered and licensed in the state in
which the Real Property is located (the "State"), shall be certified to Buyer,
other parties designated by Buyer, and to the Title Company in a form reasonably
satisfactory to each of them, and shall meet the standards for an "Urban" survey
as set forth in the "Minimum Standard Detail Requirements for ALTA/ACSM Land
Title Surveys" as adopted by the American Land Title Association and the
American Congress on Surveying & Mapping in 1992, including only the following
items in Table A: 1, 3, 4, 6, 7(a), 8, 9, 10 and 11(b). The description of the
Land in the Deed shall conform to the legal description thereof contained in the
Survey.
SECTION 4. TITLE INSURANCE.
A. Commitment and Title Policy. Seller shall, at Seller's sole expense,
within 10 days after the date of this Contract, obtain and deliver to Buyer and
to the Surveyor a title insurance commitment (the "Commitment") issued by the
Title Company, pursuant to which the Title Company shall agree to issue to
Buyer, at Seller's sole expense, an owner's policy of title insurance (the
"Title Policy") on the ALTA Standard Form B-1992 policy form (except that the
standard exceptions relating to survey matters, rights of parties in possession,
easements or rights of parties in possession, mechanic's liens, easements or
claims of easements not of record, and taxes and assessments not shown by the
public records, shall be eliminated), in the amount of the Purchase Price,
insuring marketable fee simple title to the Real Property in Buyer upon
recording of the Deed, subject only to the Permitted Exceptions and no other
matters. Seller shall cause the Title Company to deliver to Buyer, with the
Commitment, complete and legible copies of all exception documents listed in the
Commitment. The Title Policy shall include the following endorsements (to the
extent they are reasonably available), all of which shall be in form and
substance satisfactory to Buyer in its sole discretion:
(a) An access endorsement insuring that the Land has direct access to
publicly dedicated right-of-way, in the following manner, and as depicted on the
Survey:
Xxxxx 0 xx Xxxxxxx Xxxx xxx Xxxxxxxx Xxxxxxxxx; and
Xxxxx 0 xx Xxxxxxx Xxxx xxx Xxxxxxx Xxxxxx.
(x) A legal description endorsement insuring that the legal description of
the Land in Schedule A of the Title Policy is accurate and correctly describes
the land shown on the Survey.
(c) A survey endorsement insuring that the land described in the Title
Policy is the same as the land described and depicted in the Survey; that the
Survey accurately depicts the insured land and improvements thereon and all
easements and rights-of-way to which said land is subject, shows the proper
dimensions of the boundaries of said land and said easements and rights-of-way,
and correctly reflects the absence of any encroachments or easements not
expressly set forth in the Title Policy; and that the foundation of the Building
is within the lot lines and applicable set-back lines.
(d) A tax lot endorsement affirmatively insuring that the Land consists of
one or more separate tax lots and is assessed separately from all other
property.
(e) Such other endorsements as Buyer may reasonably request after receipt
of the Survey, the Commitment and copies of all of the exception documents.
B. Title Defects. If the Survey or the Commitment shall disclose
Encumbrances which are unacceptable to Buyer ("Objectionable Encumbrances"),
Buyer shall notify Seller thereof within 10 days after Buyer's receipt of the
Commitment, Survey and copies of all exception documents, or within 10 days
after the Contract is signed, whichever is later. All encumbrances for
ascertainable amounts secured by the Real Property are deemed Objectionable
Encumbrances without further action by Buyer, and must be discharged at closing
or before. Failure of Buyer to properly and timely notify Seller of particular
Objectionable Encumbrances shall affirmatively waive those objections to title,
and any such encumbrances shall automatically thereafter become Permitted
Exceptions. Within 10 days after Seller's receipt of Buyer's notice of
Objectionable Encumbrances, Seller shall advise Buyer which, if any, of such
Objectionable Encumbrances Seller will endeavor to remedy (the "Curable
Matters", it being agreed that liens for ascertainable amounts, such as
mortgages or mechanic's liens secured by the Real Property, shall be deemed
Curable Matters, irrespective of whether Seller designates them as such). With
respect to the Curable Matters, Seller shall have a reasonable period of time
(not to exceed 10 days) within which to cure such Curable Matters to the
reasonable satisfaction of Buyer. If there are any Objectionable Encumbrances
which Seller is unwilling or unable to cure, then Buyer shall have the option of
either (1) completing this transaction and accepting such title as Seller is
able to convey, treating such Objectionable Encumbrances as Permitted
Exceptions, without reduction of the Purchase Price (unless such Encumbrances
are liens or encumbrances for ascertainable amounts secured by the Real
Property, in which event the amounts thereof shall be deducted from the Purchase
Price), or (2) terminating this Contract, in which event neither party shall
have any further obligation to the other hereunder.
C. Seller's Title Documents. Seller shall, at Seller's sole expense,
execute, acknowledge and deliver or cause to be executed, acknowledged and
delivered to the Title Company, on or before the Closing Date, such affidavits
and other documents as the Title Company shall reasonably require as a condition
to issuance of the Title Policy in the form herein provided (collectively,
"Seller's Title Documents").
SECTION 5. INVESTIGATION BY BUYER.
A. Due Diligence Material. Within 10 days after the date of this Contract,
Seller shall make available to Buyer at Seller's offices and during normal
business hours, to the extent that such documents exist within Seller's existing
files maintained by either the Offices Services or Real Estate Departments
("Seller's Possession") the following: (1) all plans and specifications pursuant
to which the Improvements and Building Equipment were constructed ("Plans"), and
all related architectural renderings, drawings and blueprints, (2) all licenses,
permits and governmental authorizations, and (3) all engineering reports and
information, environmental reports and information, and soil tests. In addition,
Seller shall make available to Buyer Seller's publicly available 2004 financial
information for fiscal year end 7/31/04. Seller shall also make available for
Buyer's review all insurance policies covering or relating to the Property or
any part thereof (everything covered by this Section is collectively referred to
as the "Due Diligence Material"). Seller's obligations in this regard shall be
satisfied by making the Due Diligence Material that are within Seller's
Possession available to Buyer at Seller's offices during normal business hours.
Buyer may freely copy any Due Diligence Material desired, at Seller's cost.
B. Investigation by Buyer. This Contract and all obligations of Buyer
hereunder are expressly conditioned upon the following conditions being in
effect or complied with within 20 days of the date hereof: (i) Buyer shall have
approved, in Buyer's sole and absolute discretion, the Due Diligence Material
and any other materials, information or matters Buyer may deem appropriate; and
(ii) Buyer shall have conducted or caused to be conducted such inspections,
tests, studies and investigations of the Property or any part thereof, including
environment studies, and such other inquiries or investigations concerning the
Property or this transaction or any aspect thereof, as Buyer may desire, and
Buyer shall have approved the results thereof in Buyer's sole and absolute
discretion; and if any aspect of any of the foregoing is not so approved by
Buyer, Buyer shall have the option of either (1) waiving compliance with the
foregoing condition precedent and proceeding under this Contract, or (2)
canceling this Contract and thereafter neither party shall have any further
obligation to the other under this Contract, except for Buyer's indemnity
obligation under paragraph C below and all xxxxxxx money shall be returned to
Buyer. Closing of this Contract shall be conclusive evidence of Buyer's approval
hereunder of any and all Due Diligence Material and any other materials,
information or matters, and also of the results of any and all inspections,
tests, studies and investigations of the Property or any part thereof.
C. Access by Buyer; Indemnity. Buyer and its agents and designees shall
have the right, at reasonable times and upon reasonable notice to Seller, to go
upon the Property for the purpose of inspecting the same and making such tests,
inquiries and examinations as Buyer shall deem necessary. Buyer shall use all
reasonable efforts to cause such inspections, tests, inquiries and examinations
to be conducted in a manner which will minimize interference with the use and
operation of the Property by Seller, and upon completion thereof Buyer shall, at
its sole expense, cause the Property to be restored to substantially the same
condition it was in prior to such entry, including filling, compaction and
resodding of all excavations, and shall indemnify and hold Seller harmless of
and from all
claims for bodily injury or property damage which may be asserted against Seller
by reason of the foregoing entry and activities, such indemnity obligation to
survive the termination of this Contract, notwithstanding any provision to the
contrary herein.
D. Confidentiality. In the event this Contract shall be terminated and the
sale contemplated hereunder shall not close for any reason, Buyer will promptly
return all Due Diligence Material to Seller and Buyer will request that its
employees or agents will not disclose the content thereof to any person.
E. Survey and Inspection Extension. In the event that Seller is unable to
provide the Survey within 20 days, or if the inspections have not been completed
within 20 days, the time for completion of said items shall automatically be
extended for 15 additional days and the time for closing shall be extended for
up to 15 days.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Buyer the following as of the Closing Date. For purposes of this
Contract, "Seller's Knowledge" or "knowledge of Seller" shall mean only the
actual and personal knowledge of the following individuals on behalf of Seller:
the xxxxxx of this Contract; Office Service and Facilities Manager Xxxxxx
Xxxxxxxx; and Director of Legal and Real Estate Xxxxxxx X. Xxxxxxxxx.
A. Zoning. That to the best of Seller's Knowledge there is no zoning or
other governmental restriction or prohibition against the maintenance of the
Improvements on the Land, nor against the current use and occupancy thereof by
Seller.
B. Consents. Subject to Section 14, that to the best of the Seller's
Knowledge, the Seller has obtained all consents and permissions related to the
transactions contemplated by this Contract and all agreements, instruments and
documents herein provided to be executed or caused to be executed by Seller
("Other Agreements") which are required under any covenant, agreement,
encumbrance, law or regulation to which Seller, any assets of Seller or the
Property (or any part thereof) are subject.
C. Environmental Compliance.
(1) That to the best of Seller's Knowledge (a) the Property
(including underlying groundwater) and the use and operation thereof are
currently in compliance with all applicable laws, ordinances, rules and
regulations (including consent decrees and administrative orders) relating to
public health and safety and protection of the environment, including those
statutes, regulations and ordinances identified in subparagraph (5) below, all
as now and hereafter amended (collectively, "Environmental Laws"), and (b) all
permits, licenses and authorizations relating to the use and operation of the
Property required by applicable Environmental Laws are in effect.
(2) That to the best of the Seller's Knowledge, the Seller has not
(a) released, generated, discharged, manufactured, treated, transported or
disposed of "Hazardous Material" (hereinafter defined) in violation of
Environmental Laws on, in, under (including the underlying groundwater) or from
the Property, (b) placed or stored any Hazardous Material in violation of
Environmental Laws on the Property, or (c) installed any underground storage
tanks on the Property, other than an underground storage tank filled with
propane used for fueling one of the emergency generators (the second generator
is fueled by diesel, which is stored in an above ground tank contained within
this generator).
(3) That to the best of Seller's Knowledge (a) no release,
generation, discharge, manufacture, treatment, transportation or disposal of
Hazardous Material in violation of Environmental Laws has occurred on, in, under
(including the underlying groundwater) or from the Property, (b) no Hazardous
Material in violation of Environmental Laws is or has been stored or otherwise
located on, in or under the Property (including the underlying groundwater), and
(c) there are no underground storage tanks present on the Property, other than
an underground storage tank filled with propane used for fueling one of the
emergency generators (the second generator is fueled by diesel, which is stored
in an above ground tank contained within this generator). Without limitation of
the foregoing, Seller will promptly notify Buyer in the event that Seller has or
acquires notice or knowledge that any Hazardous
Material in violation of Environmental Laws has been or is threatened to be
released, discharged, disposed of, transported or stored on or about the
Property on or before the Closing Date.
(4) That to the best of Seller's Knowledge there are no pending or
threatened (a) requests for information, actions or proceedings from or by any
governmental agency or any other person or entity regarding the condition or use
of the Property or the release, generation, discharge manufacture, treatment,
transportation or disposal of Hazardous Material on, in, under (including the
underlying groundwater) or from the Property, or regarding any Environmental
Law, or (b) liens or governmental actions, notices of violations, notices of
noncompliance or other proceedings of any kind with respect to the Property.
Seller shall immediately notify Buyer and provide copies upon receipt of all
written complaints, claims, citations, demands, inquiries, reports or notices
relating to the condition of the Property or compliance with Environmental Laws
(collectively, "Environmental Notices") received after the date hereof.
(5) That for purposes of this Agreement, "Hazardous Material" means
(a) "hazardous substances" or "toxic substances" as those terms are defined by
the Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. Section 9601 et seq., or by the Hazardous Materials Transportation Act,
49 U.S.C. Section 1802 et seq., all as now and hereafter amended; (b) "hazardous
wastes", as that term is defined by the Resource Conservation and Recovery Act,
42 U.S.C. Section 6902 et seq., as now and hereafter amended; (c) any pollutant
or contaminant or hazardous, dangerous or toxic chemicals, materials or
substances within the meaning of any other applicable federal, state or local
law, regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards of conduct
concerning any hazardous, toxic or dangerous waste substances or materials, all
as now and hereafter amended; (d) crude oil or any fraction thereof which is
liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit
and 14.7 pounds per square inch absolute); (e) any radioactive material,
including any source, special nuclear or by-product material as defined at 42
U.S.C. Section 2011 et seq., as now and hereafter amended; (f) asbestos in any
form or condition except for the asbestos tile covering an area of less than 500
square feet; and (g) polychlorinated biphenyls ("PCBs") or substances or
compounds containing PCBs.
D. Construction, Use and Occupancy.
(1) Plans, Operation, Compliance. That to the best of Seller's
Knowledge, the Plans delivered to Buyer are complete and accurate plans and
specifications pursuant to which the Improvements and Building Equipment were
constructed; that to the best of Seller's Knowledge the Plans are free from
defects and take into account all relevant circumstances and conditions relating
to the Land; that to the best of Seller's Knowledge the Improvements and
Building Equipment have been constructed and completed in a good, workmanlike
and substantial manner, free from material defects and substantially in
accordance with the Plans; and that the Improvements have been operated at all
times in accordance with (and, without limitation on the foregoing, the same
fully comply with) all declarations, easements, covenants, restrictions and
other agreements affecting the Property ("Business Agreements"), and with all
federal, state and local laws, ordinances, rules, regulations and orders,
including Environmental Laws and Title III of the Americans with Disabilities
Act ("Governmental Requirements").
(2) Licenses, Permits, CO's, Etc. That to the best of Seller's
Knowledge all licenses, permits and governmental authorizations required in
connection with the construction, use and occupancy of the Property have been
obtained and are in effect and in good standing; that valid final and
unconditional certificates of occupancy have been issued for the improvements
and each part thereof and no space therein has been occupied in violation of any
such certificates; and that Seller has heretofore delivered or will make
available to Buyer complete and accurate copies of all of the foregoing,
provided that they are within Seller's Possession.
(3) Notices; Requests. That to the best of Seller's Knowledge no
notice or claims of any governmental agency have been received to the effect
that the construction of the Real Property or the operation or use of the
Property fail to comply with any Governmental Requirement, or that any
investigation has been commenced or is contemplated respecting any such possible
failure of compliance; and that there are no unsatisfied requests for repairs,
restorations or improvements made by any person, entity or authority, including
any insurance carrier or governmental authority.
(4) Maintenance. That to the best of Seller's Knowledge the
Improvements and Building Equipment are in good condition and repair and free
from material defects; and that Seller will maintain the Property in good
condition and repair and free from material defects between the date hereof and
the Closing Date.
E. Status of Seller. Subject to Section 14, that this Contract and the
Other Agreements are duly authorized, executed and delivered by and binding upon
Seller; that Seller has the capacity and authority to enter into this Contract
and the Other Agreements to be executed by Seller and to consummate the
transactions herein and therein contemplated, and nothing prohibits or restricts
the right or ability of Seller to close the transactions contemplated herein and
in the Other Agreements and to carry out the terms hereof and thereof; and that
neither this Contract nor any of the Other Agreements, nor anything provided in
or contemplated by this Contract or any of the Other Agreements, does now or
shall hereafter breach, invalidate, cancel, make inoperative or interfere with,
or result in the acceleration of maturity of, any mortgage, contract, agreement,
lease, easement, right or interest affecting or relating to Seller, any assets
of Seller or the Property.
F. Financial Matters. That to the best of Seller's Knowledge, all
financial statements and information delivered to Buyer at any time heretofore,
concurrently herewith or hereafter are full and materially accurate in all
respects, and have been and will be prepared in accordance with generally
accepted accounting principles consistently applied; and that all such financial
statements and information fairly present the respective financial conditions of
the subjects thereof as of the respective dates thereof and no material adverse
change has occurred since the respective dates thereof.
G. Default. That Seller is not in default in respect of any of its
obligations or liabilities pertaining to the Property; that without limitation
of the foregoing, the other Business Agreements and Permitted Exceptions are
free from default by Seller, and to the best knowledge of Seller, by any other
party thereto and that there is no state of facts or circumstance or condition
or event which, after notice or lapse of time, or both, would constitute or
result in any default by Seller under its said obligations or liabilities or, to
the best knowledge of Seller, by any other party, under or related to the
Business Agreements or the Permitted Exceptions.
H. Litigation; Condemnation. That there are no actions, suits or
proceedings pending, or to the best knowledge of Seller, threatened, before or
by any judicial body or any governmental authority, against or affecting the
Property, or which would affect Seller's ability to consummate the transactions
contemplated by this Contract; and that to the best knowledge of Seller, there
is no existing, proposed or contemplated eminent domain or similar proceedings
which would affect the Real Property in any way whatsoever.
I. Independent Facility. That to the best of Seller's Knowledge, the Real
Property does not rely on any drainage, sewer, access, utility or other
facilities (other than the facilities of public utility and public water
companies located in public streets which are adjacent to such Building) to
fulfill any zoning, building code or other Governmental Requirement, and that no
other property relies on any part of the Real Property to fulfill any zoning,
building code or other Governmental Requirement.
J. FIRPTA. That Seller is not a "foreign corporation", "foreign
partnership" or "foreign estate" as those terms are defined in the Internal
Revenue Code of 1986, as amended, and that Seller will furnish to Buyer such
further assurances with respect to this representation and warranty as Buyer
shall reasonably request.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to Seller the following as of the Closing Date:
A. Status of Buyer. That this Contract and the Other Agreements are
duly authorized, executed and delivered by and binding upon Buyer;
that Buyer has the capacity and authority to enter into this
Contract and the Other Agreements to be executed by Buyer and to
consummate the transactions herein and therein contemplated, and
nothing prohibits or restricts the right or ability of Buyer to
close the transactions contemplated herein and in the Other
Agreements and to carry out the terms hereof and thereof.
SECTION 8. TAXES AND ASSESSMENTS. There shall be no proration of real
property taxes and assessments (collectively, "Taxes"), nor of any other income
or expense relating to the ownership or operation of the Property, it being
agreed that the "Seller" or "Tenant" under the "Lease" (as those terms are
hereinafter defined) shall be solely responsible for the satisfaction of any
such obligations and liabilities.
SECTION 9. CLOSING COSTS.
A. Seller's Costs. Seller shall pay the cost of (1) all federal, state and
local documentary stamps and transfer, sale and other taxes relating to the sale
and conveyance of the Property, and the demise of the Property to the Tenant
pursuant to the Lease, (2) recording all instruments to be recorded in
connection with such sale, conveyance, and demise, (3) the Commitment and Title
Policy, (4) the Survey, (5) Seller's Title Documents, (6) one-half the Title
Company's fee for acting as escrow agent in connection with this transaction
("Escrow Fee"), if any, (7) all other certificates, instruments and documents
which Seller is required to deliver or cause to be delivered, and (8) without
limitation, performance by Seller of all of its obligations hereunder, including
any prepayment penalties required to discharge any existing Encumbrance on the
Property.
B. Buyer's Costs. Buyer shall pay the cost of (1) one-half the Escrow Fee,
if any, (2) all certificates, instruments and documents which Buyer is required
to deliver or cause to be delivered, and (3) without limitation, performance by
Buyer of all of its obligations hereunder.
SECTION 10. FIRE OR OTHER CASUALTY; SELLER'S INSURANCE.
A. Major Damage. If, prior to the Closing Date, all or any part of the
Improvements or Building Equipment shall be destroyed or damaged by fire or
other casualty and such damage ("Material Damage") cannot be fully restored
prior to the Closing Date (as reasonably determined by Buyer), then neither
Seller nor Buyer shall have any liability to the other by reason of such
destruction or damage, and this Contract shall terminate, in which event neither
party shall have any further obligation to the other hereunder, except that the
Xxxxxxx Money shall be returned to Buyer. However, Buyer and Seller may mutually
agree to close and allow Buyer to receive Insurance proceeds apportioned to Real
Property and Building Improvements (but not the Personal Property) from Seller
or insurance company, which proceeds shall be used to restore the damaged
Improvements or Building Equipment so that Tenant (as hereafter defined) shall
have use of same under the terms of the Lease (described in Section 11 below).
B. Minor Damage. If, prior to the Closing Date, all or any part of the
Improvements or Building Equipment shall be destroyed or damaged by fire or
other casualty not constituting Material Damage, then Seller shall with due
diligence repair and restore the Improvements and Building Equipment, in which
event (i) Seller shall be entitled to receive and retain all insurance proceeds
with respect to such loss, and (ii) Seller shall, at Seller's sole expense,
repair and restore the Improvements and Building Equipment, using such design,
contractors and materials as Buyer approves (such approval not to be
unreasonably withheld or delayed), to the end that as of the Closing Date, the
Improvements and Building Equipment shall have been fully restored, and Seller
shall be in lawful occupancy and conducting its customary business operations
from the Property. Nothing set forth in this paragraph (or any course of conduct
pursuant hereto) shall be deemed a waiver or modification of the representations
and warranties set forth in Section 6.
SECTION 11. CONDEMNATION. If, prior to the Closing Date, all or any part
of the Real Property shall be condemned by governmental or other lawful
authority, Buyer shall have the option of either (a) completing this
transaction, in which event (i) there shall be no reduction of the Purchase
Price, (ii) Seller shall have no duty to repair or restore, (iii) Seller shall
pay to Buyer all condemnation proceeds received by Seller with respect to such
condemnation, (iv) Seller shall assign to Buyer all rights of Seller in and to
such condemnation proceeds, (v) Seller shall furnish to Buyer such documents,
cooperation and assistance as Buyer requires to enforce the rights of Seller
with respect thereto, and (vi) Buyer shall repair or restore the Property to the
extent required under the Lease; or (b) canceling this Contract, in which event
neither party shall have any further obligation to the other hereunder, except
that Xxxxxxx Money will be returned to Buyer.
SECTION 12. CERTIFICATES AND OTHER ASSURANCES. Seller shall furnish the
following to Buyer on or before the Closing Date:
A. Closing Certificate. A certificate of Seller, dated as of the Closing
Date, confirming (without exception or qualification) that (1) Seller is in full
compliance with all of its obligations under this Contract, and (2) all of the
representations and warranties of Seller contained in this Contract are true and
correct as of the Closing Date as if made on and as of the Closing Date.
B. Further Instruments and Assurances. Such other and further documents,
instruments, certificates and assurances as shall be reasonably required to
consummate the transactions contemplated by this Contract, including a blanket
xxxx of sale and conveyance of the Building Equipment and all construction and
similar warranties relating to the Improvements and Building Equipment ("Xxxx of
Sale").
C. The Lease. A triple net lease (the "Lease") as set forth in the
attached Exhibit B, fully executed by Seller, as lessee ("Tenant"), under which
lease Buyer shall be the "Landlord".
SECTION 13. BUYER'S CONDITIONS PRECEDENT. This Contract and all
obligations of Buyer hereunder are expressly conditioned on the following
conditions precedent being in effect or complied with on and as of the Closing
Date:
A. Condition of Title. The Commitment, as redated to the Closing Date,
shall disclose good and marketable title to the Real Property vested in Seller,
free and clear of all Encumbrances except the Permitted Exceptions; and the
Title Company shall be prepared to issue the Title Policy to Buyer in the form
required by Section 4 immediately upon recording of the Deed.
B. Environmental Notices. Seller shall not have received any Environmental
Notices prior to Closing that are not contained in the Due Diligence Material.
C. Seller's Representations and Warranties. Seller's representations and
warranties set forth in Section 6 shall remain true and correct in all material
respects.
D. No Bankruptcy or Dissolution. At no time on or before the Closing Date
shall any of the following have been done by or against or with respect to
Seller or Tenant:
(1) The commencement of a case under Title II of the U.S. Code, as
now constituted and hereafter amended, or under any other applicable federal or
state bankruptcy law or other similar law.
(2) The appointment of a trustee or receiver of any property
interest.
(3) An assignment for the benefit of creditors generally.
(4) An attachment, execution or other judicial seizure of any
property interest which, in Buyer's reasonable opinion, would materially
adversely affect the ability of the affected party to meet his or its financial
obligations as they accrue.
(5) The taking of, failure to take or submission to any action
indicating an inability of the affected party to meet his or its financial
obligations as they accrue.
(6) A dissolution or the disposition of a substantial portion of the
affected party's assets.
E. Deliveries by Seller. Seller shall have executed and delivered or cause
to be executed and delivered to Buyer and/or the Title Company, as herein
provided, all documents, instruments and information required to be delivered by
Seller and Tenant as herein provided.
F. Other Obligations of Seller. Seller shall have complied with all of its
other obligations under this Contract.
G. Lease. The parties executing a Lease consistent with Exhibit B.
If any one or more of the conditions precedent hereinabove set forth shall
not be in effect or complied with on the Closing Date, Buyer shall have the
option of either (a) waiving compliance with any one or more of said conditions
precedent and closing this transaction, without a reduction in Purchase Price,
or (b) canceling this Contract, in which event neither party shall have any
further obligation to the other hereunder, except that the Xxxxxxx Money shall
be refunded to Buyer. Buyer may at any time and from time to time, at Buyer's
election, waive any one or more of the foregoing conditions precedent, but any
such waiver shall be effective only if contained in a writing signed by Buyer.
No such waiver shall diminish Buyer's rights or remedies in the event (i) this
transaction does not close and Seller has willfully (x) refused to execute and
deliver the documents required hereunder to close the transaction contemplated
hereby, or (y) taken any action which renders impossible the satisfaction of any
such condition by the Closing Date, or (z) otherwise breached or defaulted in
its obligations hereunder, or (ii) this transaction closes and Seller breaches
or defaults in any of its obligations to be performed after the Closing Date. If
for any reason any item required to be delivered to Buyer or the Title Company
hereunder shall not be delivered when required, Seller shall nevertheless remain
obligated to deliver the same to Buyer or the Title Company, and nothing
(including the closing of the transaction contemplated hereunder) except a
specific written waiver shall be deemed a waiver of any such requirement.
SECTION 14. SELLER'S CONDITIONS PRECEDENT. This Contract and all
obligations of Seller hereunder are expressly conditioned on the following
conditions precedent being in effect or complied with on and as of the Closing
Date:
A. Consents and Approvals. Seller shall have received final approval
from the Board of Directors to complete this transaction, as
evidenced by a duly authorized resolution.
B. Buyer's Representations and Warranties. Buyer's representations and
warranties set forth in Section 7 shall remain true and correct in
all material respects.
C. Deliveries by Buyer. Buyer shall have executed and delivered or
caused to be executed and delivered to Seller and/or the Title
Company, as herein provided, all documents, instruments and
information required to be delivered by Buyer and Landlord as herein
provided.
D. Other Obligations of Buyer. Buyer shall have complied with all of
its other obligations under this Contract.
E. Lease. The parties executing a Lease consistent with Exhibit B.
If any one or more of the conditions precedent hereinabove set forth shall
not be in effect or complied with on the Closing Date, Seller shall have the
option of either (a) waiving compliance with any one or more of said conditions
precedent and closing this transaction, without a reduction in Purchase Price,
or (b) canceling this Contract, in which event neither party shall have any
further obligation to the other hereunder, except that the Xxxxxxx Money shall
be refunded to Buyer. Seller may at any time and from time to time, at Seller's
election, waive any one or more of the foregoing conditions precedent, but any
such waiver shall be effective only if contained in a writing signed by Seller.
No such waiver shall diminish Seller's rights or remedies in the event (i) this
transaction does not close and Buyer has willfully (x) refused to execute and
deliver the documents required hereunder to close the transaction contemplated
hereby, or (y) taken any action which renders impossible the satisfaction of any
such condition by the Closing Date, or (z) otherwise breached or defaulted in
its obligations hereunder, or (ii) this transaction closes and Buyer breaches or
defaults in any of its obligations to be performed after the Closing Date. If
for any reason any item required to be delivered to Seller or the Title Company
hereunder shall not be delivered when required, Buyer shall nevertheless remain
obligated to deliver the same to Seller or the Title Company, and nothing
(including the closing of the transaction contemplated hereunder) except a
specific written waiver shall be deemed a waiver of any such requirement.
SECTION 15. CLOSING.
A. Closing Date. Provided all conditions to closing set forth in this
Contract have been satisfied or waived by Buyer and Seller, and this Contract
has not been terminated by either party in accordance with provisions herein set
forth, the transaction contemplated herein shall be closed on March 2, 2005,
unless extended pursuant to Section 5.E. Such date for the closing of title is
herein called the "Closing Date".
B. Closing Procedure. The transaction contemplated herein shall be closed
("Closing") in escrow through the Title Company in accordance with the following
procedure:
(1) Closing Statements. Not less than 5 days prior to the Closing
Date, Buyer shall cause the Title Company to prepare and deliver to Buyer and
Seller a preliminary closing statement for each party, showing all amounts due
from each party, reflecting the application of the Xxxxxxx Money deposited
towards the Purchase Price, including all closing costs and expenses computed as
set forth in this Contract.
(2) Delivery of Documents by Seller. On or before the Closing Date,
Seller shall deliver or cause to be delivered to the Title Company the
following, all of which documents shall be duly executed and, if required,
acknowledged and otherwise in proper form for recording:
(a) Full releases of all mortgages, deeds of trust and other
financing instruments affecting the Property.
(b) The Deed and Xxxx of Sale.
(c) The Lease.
(d) Seller's Title Documents.
(e) Such instruments and documents relating to the
organization, existence and authority of Seller and the Tenant as the Title
Company and Buyer shall reasonably require.
(f) Such other documents, instruments, certificates and
assurances as shall be required by the provisions of this Contract.
(g) Seller's closing statement.
(h) Such escrow instructions to the Title Company as Seller
shall desire, which shall not be inconsistent with the provisions of this
Contract ("Seller's Instructions").
(3) Deliveries by Buyer. On or before the Closing Date, Buyer shall
deliver or cause to be delivered to the Title Company the following, all of
which documents shall be duly executed and, if required, acknowledged and
otherwise in proper form for recording:
(a) By federal wire transfer of funds to the Title Company's
escrow account, an amount equal to (i) the Purchase Price due at Closing,
adjusted as herein provided, plus (ii) the aggregate amount of closing costs for
which Buyer is responsible as provided herein, all as shown on Buyer's closing
statement.
(b) Such instruments and documents relating to the
organization, existence and authority of Buyer as the Title Company shall
require.
(c) Buyer's closing statement.
(d) The Lease.
(e) Such escrow instructions to the Title Company as Buyer
shall desire, which shall not be inconsistent with the provisions of this
Contract ("Buyer's Instructions").
(4) Closing Effected. The parties shall obtain the advice of the
Title Company as to whether it is in a position to (a) cause the Deed to be
immediately recorded in the real estate records, and (b) immediately issue the
Title Policy to Buyer. If the Title Company shall advise affirmatively on the
foregoing matters, then the parties shall instruct the Title Company to proceed
to close the escrow in accordance with Seller's Instructions and Buyer's
Instructions.
SECTION 16. POSSESSION. Exclusive possession of the Property shall be
delivered to Buyer on the Closing Date, subject to the rights of the Tenant
under the Lease.
SECTION 17. BROKERS. The parties agree that no Real Estate Brokers are
involved in this transaction. Seller agrees to hold harmless and indemnify Buyer
from and against any claim by a broker alleged to have been engaged by Seller.
Buyer agrees to hold harmless and indemnify Seller from and against any claim by
a broker alleged to have been engaged by Buyer.
SECTION 18. INDEMNIFICATION BY PARTIES. Seller and Buyer (as "Indemnitor")
shall hold harmless, indemnify and defend the other party (as "Indemnitee"), not
to exceed the Purchase Price, from and against:
A. Any and all obligations, liabilities, claims, liens or encumbrances,
whether direct, contingent or consequential, in any way related to or arising
from any act, occurrence, conduct, omission, contract or commitment of
Indemnitor which relate to the Property at any time or times on or before the
Closing Date.
B. Any loss or damage to Indemnitee resulting from any inaccuracy in or
breach of any representation or warranty of Indemnitor or resulting from any
breach or default by Indemnitor under this Contract.
C. All costs and expenses, including court costs and reasonable attorneys'
fees, related to any actions, suits or judgments incident to any of the
foregoing.
SECTION 19. SURVIVAL. All warranties, representations, covenants,
obligations and agreements contained in this Contract shall survive the closing
hereunder and the transfer and conveyance of the Property and any and all
performances hereunder for a period of one (1) year after the Closing Date. All
warranties and representations shall be effective regardless of any
investigation made or which could have been made, unless the party claiming a
breach of warranty or representation had actual knowledge that the warranty or
representation was not true and accurate at the Closing Date.
SECTION 20. FURTHER ASSURANCES. Each party agrees to execute and deliver
such other and further agreements, documents, instruments, notices,
certificates, affidavits and further assurances, and to take such other and
further actions, whether before or after the Closing Date, as may be necessary
to carry out the intent of this Contract and cause the obligations of such party
under this Contract to be fully performed.
SECTION 21. ATTORNEYS' FEES. If either party obtains a judgment against
the other party by reason of a breach of this Contract, a reasonable attorneys'
fee as fixed by the court shall be included in such judgment.
SECTION 22. TIME. Time is of the essence of this Contract.
SECTION 23. DEFAULT. If Seller shall tender the Deed, Xxxx of Sale and all
other documents required under this Contract to be delivered by Seller on or
before the Closing Date and Buyer shall fail or refuse to close as required
hereunder, or if Buyer otherwise defaults hereunder so that Seller has the right
to refuse to close, then Fifteen Thousand Dollars ($15,000.00) of the Escrow
Money shall be paid to Seller by the Title Company (who is hereby authorized to
release the same to the Seller if Buyer defaults) as liquidated damages for the
Buyer's default, and the remainder of the Escrow Money shall be paid to Buyer at
the same time as the payment to Seller. In connection with the foregoing, the
parties recognize that Seller will incur expense in connection with the
transaction
contemplated by this Contract, that the Property will be removed from the market
and that it is extremely difficult and impractical to ascertain the extent of
damage to Seller caused by Buyer's default hereunder and its failure to close.
In the event the sale shall not close because of Buyer's default, then Seller's
sole and exclusive remedy shall be the retention of this portion of the Xxxxxxx
Money plus any interest earned thereon (notwithstanding the provisions of
Section 2 above) in lieu of any other monetary or other relief.
If Buyer has fully performed and Seller defaults, then Buyer's exclusive
remedy shall be to cancel the Contract, receive the return of the full Xxxxxxx
Money being held by the Title Company (who is hereby authorized to release the
same to the Buyer if Seller defaults), and receive up to Fifteen Thousand
Dollars ($15,000.00) from Seller, which Seller agrees to pay in the following
manner: Buyer shall submit to Seller in writing a total invoice, with copies of
all actual and verifiable expenses incurred by Buyer in connection with this
proposed transaction, including expenses for legal representation, environmental
assessment activity, and other due diligence investigations ("Due Diligence
Expense"); 15% of the total of this Due Diligence Expense shall be added to the
amount due and owing from Seller; and Seller shall tender payment to Buyer in
full within fifteen (15) days from receipt of this notice. If Seller is unable
to secure the requisite Board approvals to complete this transaction as
contemplated in Section 14(A) hereof, while not in Default of this Agreement,
Seller agrees to reimburse Buyer up to $15,000 in verifiable Due Diligence
Expenses within 15 days from receipt of the invoices from Buyer.
SECTION 24. REMEDIES CUMULATIVE. Except as herein expressly set forth, no
remedy conferred upon a party by this Contract is intended to be exclusive of
any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given herein or now or
hereafter existing at law, in equity or by statute.
SECTION 25. NO WAIVER. Except as herein expressly provided, no waiver by a
party of any breach of this Contract or of any warranty or representation
hereunder by the other party shall be deemed to be a waiver of any other breach
by the 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 Contract 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 Contract or shall prevent the
exercise of any right by the first party while the other party continues to be
so in default.
SECTION 26. INSTRUMENTS IN WRITING. No agreement, consent, approval,
notice, amendment, modification, understanding or waiver of or with respect to
this Contract or any agreement, instrument or document entered into pursuant to
or with respect to this Contract, or any term provision, covenant or condition
hereof or thereof, nor any approval or consent given under or with respect to
any of the foregoing, shall be effective for any purpose unless contained in a
writing signed by the party against which such agreement, amendment,
modification, understanding, waiver, approval or consent is asserted.
SECTION 27. TERMINOLOGY. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The words
"herein", "hereof", "hereunder" and similar terms shall refer to this Contract
unless the context requires otherwise. The words "days" shall refer to "calendar
days", unless expressly defined as "business days" (which shall exclude weekends
and Federal holidays). Whenever the context so requires, the neuter gender
includes the masculine and/or feminine gender, and the singular number includes
the plural and vice versa.
SECTION 28. SUCCESSORS AND ASSIGNS. Seller shall not assign or transfer
its rights or obligations under this Contract without the prior written consent
of Buyer (in which event the transferee shall assume in writing all of Seller's
obligations hereunder). No consent given to any transfer or assignment of rights
or obligations hereunder shall be construed as a consent to any other transfer
or assignment of rights or obligations hereunder. No transfer or assignment in
violation of the provisions hereof shall be valid or enforceable. Subject to the
foregoing, this Contract shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
SECTION 29. NOTICES. All notices hereunder shall be sent by nationally
recognized overnight delivery service or mailed by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
If to Buyer: Xxxxxxx Xxxxx
Vice President and CFO
Tower Properties Company
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
with a copy to: Xxxxxx X. Willy and Xxxxxxx X. Xxxxxxxx
Van Osdol, Magruder, Xxxxxxxx and Xxxxxxx, P.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
If to Seller: Xxxx Xxxxxxxxx and Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, XX 00000
Either party may designate a different address or addresses for itself by
notice similarly given. Any notice given by registered or certified mail shall
be deemed to have been given on the third day after the same is deposited in the
mail, and any notice not so given shall be deemed to have been given upon
receipt of the same by the party to whom the same is to be given.
SECTION 30. ENTIRE AGREEMENT. This Contract and the Other Agreements
contain the entire agreement with respect to the transactions contemplated
herein and therein, and there are no other terms, conditions, promises,
understandings, statements or representations, express or implied, concerning
the same.
SECTION 31. HEADINGS. The headings in this Contract have been inserted for
convenience of reference only, and shall not be deemed to modify or restrict any
provision hereof, nor be used to construe any such provision.
SECTION 32. GOVERNING LAW. This Contract shall be governed by and
construed in accordance with the laws of the State of Missouri.
SECTION 33. ESTOPPEL. Each party confirms and agrees that (a) it has read
and understood all of the provisions of this Contract; (b) it is experienced in
commercial real estate transactions; (c) it has negotiated with the other party
at arm's length with equal bargaining power; and (d) it has been advised by
competent legal counsel of its own choosing.
SECTION 34. WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES TRIAL BY JURY
IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY AGAINST ANY OTHER
PARTY ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS CONTRACT OR
THE OTHER AGREEMENTS.
SECTION 35. EXCHANGE. Buyer hereunder desires to acquire the property as
replacement property in a like kind and qualifying exchange within the meaning
of Section 1031 of the Internal Revenue Code of 1986, as amended, and the
Regulations promulgated thereunder. Buyer expressly reserves the right to assign
its rights hereunder to a Qualified Intermediary as provided in IRC Reg.
1.1031(k)-1(g)(4) on or before the Closing Date. Seller agrees to execute such
additional escrow instructions, acknowledgement of assignment, documents,
agreements, or instruments to effect the exchange, provided, however, that the
Seller shall incur no additional costs, expenses or liabilities in this
transaction as a result of or connected with the exchange. The Buyer agrees to
hold the Seller harmless from any liability, damages or costs, including
reasonable attorney's fees, for claims against Seller that may arise from the
Seller's participation in the exchange.
SECTION 36. CONFIDENTIALITY. Except as may be required by law, neither
party shall make any public announcement or statement concerning the financial
details associated with this transaction or the associated
lease contemplated hereby, unless the parties agree, in a written document
signed by both parties, as to the form of a press release to be issued on the
Closing Date or at any other time. This obligation shall survive closing.
IN WITNESS WHEREOF, the parties have executed this Contract as of the date
first above written.
SELLER: FERRELLGAS, L.P.
By Ferrellgas, Inc., its general partner
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Print Name: Xxxxxxx X. Xxxxx
Title: Sr. VP Corporate Development
BUYER: TOWER PROPERTIES COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Print Name: Xxxxxx X. Xxxxxxx
Title: Pres./CEO
EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
LEGAL DESCRIPTION OF THE LAND
TRACT 1:
XXX 0, XXXXXXX XXXXX, X SUBDIVISION IN LIBERTY, CLAY COUNTY, MISSOURI.
TRACT 2:
XXX 0, XXXXXXX XXXXX XXXXXX -XXX 0, A SUBDIVISION IN LIBERTY, CLAY COUNTY,
MISSOURI.
TRACT 3:
ALL THAT PART OF THE SOUTHEAST QUARTER OF THE NORTHWEST QUARTER OF THE NORTHEAST
QUARTER OF SECTION 00,XXXXXXXX 00,XXXXX 00,XX THE CITY OF LIBERTY, CLAY COUNTY,
MISSOURI, DESCRIBED AS FOLLOWS:
COMMENCING AT THE INTERSECTION OF THE NORTHERLY RIGHT OF WAY LINE OF MELROSE
STREET, AS SHOWN ON THE RECORDED PLAT OF THE RESURVEY OF BLOCK 1,WILSHIRE
ESTATES, A SUBDIVISION IN SAID CITY, COUNTY, AND STATE, AND THE EASTERLY RIGHT
OF WAY LINE OF INTERSTATE ROUTE NO.35 AS SAID STREET AND HIGHWAY ARE NOW
ESTABLISHED; THENCE NORTH 27 DEGREES 58 MINUTES 19 SECONDS EAST ALONG SAID
XXXXXXXX XXXX XX XXXXXXXXXX XXXXX XX.00,X DISTANCE OF 750.00 FEET TO THE TRUE
POINT OF BEGINNING OF THE TRACT OF LAND TO BE HEREIN DESCRIBED; THENCE
CONTINUING NORTH 27 DEGREES 58 MINUTES 19 SECONDS EAST, ALONG SAID HIGHWAY LINE,
A DISTANCE OF 50.00 FEET; THENCE SOUTH 62 DEGREES 91 MINUTES 41 SECONDS EAST, A
DISTANCE OF 100.00 FEET; THENCE SOUTH 27 DEGREES 58 MINUTES 19 SECONDS WEST, A
DISTANCE OF 50.00 FEET; THENCE NORTH 62 DEGREES 01 MINUTES 41 SECONDS WEST A
DISTANCE OF 100.00 FEET; TO THE POINT OF BEGINNING.
