EXHIBIT 10.5
AGREEMENT OF SALE AND PURCHASE BETWEEN
THE XXXXX FUND XI - FUND XII - REIT JOINT VENTURE
AND BRIDGE INFORMATION SYSTEMS AMERICA, INC.
AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY
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THIS AGREEMENT FOR THE PURCHASE AND SALE OF PROPERTY (the "Agreement"), is
made and entered into as of the 24 day of May, 1999, by and between Bridge
Information Systems America, Inc., a Delaware corporation ("Seller"), and Xxxxx
Capital, Inc., a Georgia corporation ("Purchaser").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
Property (as hereinafter defined) subject to the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the mutual
agreements contained herein, the sum of Ten Dollars ($10.00) in hand and paid by
Purchaser to Seller at and before the sealing and delivery of these presents and
for other good and valuable consideration, the receipt, adequacy, and
sufficiency which are hereby expressly acknowledged by the parties hereto, the
parties hereto do hereby covenant and agree as follows:
1. Purchase and Sale of Property. Subject to and in accordance with the
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terms and provisions of this Agreement, Seller hereby agrees to sell to
Purchaser and Purchaser hereby agrees to purchase from Seller, the Property,
which term "Property" shall mean and include the following:
(a) all that tract or parcel of land (the "Land") located in Leawood,
Xxxxxxx County, Kansas, containing approximately 6.88 acres, having an address
of 0000 Xxxx 00xx Xxxxxx, and being more particularly described on Exhibit A
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hereto; and
(b) all rights, privileges, and easements appurtenant to the Land, if
any, including all right, title and interest of Seller, if any, in and to any
water rights, mineral rights, reversions, or other appurtenances to said Land
and all right, title, and interest of Seller, if any, in and to any land lying
in the bed of any street, road, alley, or right-of-way, open or proposed,
adjacent to or abutting the Land; and
(c) all buildings, structures, and improvements situated on the Land,
including, without limitation, that certain office building (the "Building")
containing approximately 68,900 square feet of space, the parking areas and
other amenities located on the Land, and all built-in appliances, pumps,
plumbing, heating, air conditioning, elevators, electrical and other fixtures
located on the Land (all of which are hereby collectively referred to as the
"Improvements"); and
(d) all personal property now owned by Seller, located on and used in
connection with the Land and Improvements, including those items detailed on
Exhibit B hereto ("Personal Property"); and
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(e) all of Seller's right, title, and interest, as landlord, in and
to that certain lease agreement dated February 14, 1997, by and between Seller
and Sprint Communications Company L.P., a Delaware limited partnership
("Tenant"), a copy of which, together with all amendments thereto, is attached
hereto as Exhibit C (the "Lease"); and
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(f) all of Seller's right, title, and interest, if any, in and to
plans and specifications with respect to the Improvements and any guarantees,
trademarks, rights of copyright, warranties, or other rights related to the
ownership of or use and operation of the Land, Personal Property, or
Improvements, governmental licenses and permits, and intangibles associated with
the Land, Personal Property, and Improvements, including the name of the
Improvements and the logo therefor, if any.
2. Xxxxxxx Money. Within two (2) business days after Seller's
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acceptance of this Agreement, Purchaser shall deliver to Security Land Title
Company, as agent for Commonwealth Land Title Insurance Company ("Escrow
Agent"), whose offices are at 000 Xxxx Xxxx, Xxxxxx, Xxxxxx 00000, the sum of
ONE MILLION and 00/100 Dollars ($1,000,000.00), to be deposited by Escrow Agent
and the proceeds thereof (the "Xxxxxxx Money") to be held and disbursed by
Escrow Agent in accordance with this Agreement. The Escrow Agent shall invest
the Xxxxxxx Money in such short-term, high-grade securities, interest-bearing
bank accounts, bank certificates of deposit
or bank repurchase agreements, as Purchaser may direct. The Xxxxxxx Money shall
be paid by Escrow Agent to Seller at Closing (as hereinafter defined) and shall
be applied as a credit to the Purchase Price (as hereinafter defined), or shall
otherwise be paid to Seller or refunded to Purchaser in accordance with the
terms of this Agreement. All interest and other income from time to time earned
on the Xxxxxxx Money shall belong to Purchaser and shall not be deemed to be a
part of the Xxxxxxx Money.
3. Purchase Price. Subject to adjustment as otherwise specified in this
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Agreement, the purchase price (the "Purchase Price") to be paid by Purchaser to
Seller for the Property shall be Nine Million Five Hundred Thousand and No/100
Dollars ($9,500,000.00). The Purchase Price shall be paid by Purchaser to Seller
at the Closing (as hereinafter defined) by cashier's check payable to the order
of Seller or, if Seller shall so direct in writing at least two (2) days prior
to Closing, by wire transfer of immediately available federal funds, less the
amount of Xxxxxxx Money and subject to prorations and adjustments as otherwise
specified in this Agreement. There shall be no adjustment to the Purchase Price
and no other claim under the Agreement as a result of (i) any discrepancy
between the acreage of the Land and the approximate acreage thereof as reflected
in Section 1 of this Agreement or (ii) any discrepancy between the square
footage of the Building and the approximate square footage thereof as reflected
in Section 1 of this Agreement.
4. Purchaser's Inspection and Review Rights.
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(a) At all reasonable times after the Date of this Agreement, Seller
shall make available to Purchaser, or Purchaser's agents and representatives,
for review and copying, and for Purchaser's independent verification and
analysis, (i) all books and records pertaining to operation of the Property (or
duplicate copies thereof), (ii) to the extent in Seller's possession or control,
plans, specifications, and engineering and/or architectural drawings of the
Improvements and systems of the Property or any part of the Property (or
duplicate copies thereof), (iii) to the extent in Seller's possession or
control, any boundary and "as-built" surveys of the Land and Improvements, and
(iv) to the extent in Seller's possession or control, any environmental reports,
appraisals and engineering reports relating to the Property. Seller acknowledges
that Purchaser may be required by the Securities and Exchange Commission to file
audited financial statements for one to three years with regard to the Property.
At no cost or liability to Seller, Seller shall cooperate with Purchaser, its
counsel, accountants, agents, and representatives, to provide them with access
to Seller's books and records with respect to the ownership, management,
maintenance, and operation of the Property for the applicable period, and permit
them to copy the same. Purchaser will pay the costs associated with any such
audit.
(b) Subject to the rights of the Tenant under the Lease, Purchaser
and its agents, engineers, or representatives, with Seller's reasonable, good
faith cooperation may, after the Date of this Agreement at all reasonable times
and upon reasonable advance notice to Seller, make inspections, examinations,
market studies, feasibility studies, surveys and tests related to the Property
and the operation thereof. At the conclusion of Purchaser's inspections,
Purchaser shall return the Property to its original condition prior to such
inspections. At Seller's option, Seller or Seller's agents may be present for
any such inspections. Notwithstanding the foregoing, in no event shall Purchaser
conduct any invasive environmental assessment test or other inspection of the
Property without the prior written consent of Seller, and, if Seller consents,
Purchaser shall not interfere with the operation of Tenant's business.
(c) Any and all information provided by Seller to Purchaser or
obtained by Purchaser relating to the Property in the course of its inspections
or review under or in connection with the rights under subsections (a) and (b)
of this Section 4, including, without limitation, any environmental assessment
or audit, shall be treated as confidential information by Purchaser and
Purchaser shall instruct all of its employees, agents, representatives and
contractors as to the confidentiality of all such information. Purchaser will
not, except with the express prior written consent of Seller, directly or
indirectly, (a) disclose or permit the disclosure of any information to any
person or entity, except persons who are bound to observe the terms hereof, or
(b) use or permit the use of all information pertaining to the Property (1) in
any way detrimental to the Seller or (2) for any purpose other than evaluating
the contemplated purchase of the Property. Purchaser agrees, that if the Closing
does not occur, Purchaser will promptly return to the Seller or its authorized
agent all written or tangible information pertaining to the Property, including
all copies or extracts thereof, and all notes based upon the information.
Purchaser shall be strictly liable for all costs and expenses, and/or damage or
injury to any person or property resulting from any such review or inspection or
any
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failure to keep all such information confidential, whether occasioned by the
acts of Purchaser or any of its employees, agents or representatives, and
whether Seller or its employees, agents or representatives shall have been
present at the same or shall have consented to the same; and Purchaser agrees to
indemnify and hold harmless Seller from any liability, claims or expenses
(including, without limitation, mechanic's or construction liens and/or
reasonable attorneys' fees) resulting therefrom. Except as otherwise expressly
stated in this Agreement, neither the Seller, nor any of its officers,
directors, employees, agents or representatives, shall be deemed to make or to
have made any representation or warranty as to the accuracy or completeness of
any information pertaining to the Property and neither the Seller nor any of its
officers, directors, employees, representatives or agents shall have any
liability resulting from Purchaser's use of any information pertaining to the
Property. Notwithstanding anything to the contrary set forth in this Agreement,
the obligations of Purchaser set forth in this Section 4 shall survive the
Closing or the termination of this Agreement, as applicable.
5. Special Due Diligence Condition to Closing. Purchaser shall have
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thirty (30) days from the Date of this Agreement (the "Inspection Period") to
make any and all investigations and review in order to determine, in Purchaser's
sole opinion and discretion, the suitability of the Property for acquisition by
Purchaser. Purchaser shall have the right to terminate this Agreement at any
time prior to the expiration of the Inspection Period by giving written notice
to Seller of such election to terminate. In the event Seller does not receive
such notice of Purchaser's disapproval on or before the final day of the
Inspection Period, the Property shall be deemed satisfactory to Purchaser, and
Purchaser shall be deemed conclusively to have waived its termination rights
under this Section 5. Purchaser shall, within ten (10) days of such termination,
deliver to Seller copies of all feasibility studies, surveys, engineering
reports and all other information obtained by Purchaser with respect to the
Property, which requirement shall survive the termination of this Agreement.
6. Other Conditions to Purchaser's and Seller's Obligations Regarding the
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Closing.
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(a) In addition to the conditions to Purchaser's obligations set
forth in Section 5 above, the obligations and liabilities to Purchaser hereunder
shall in all respects be conditioned upon the satisfaction of each of the
following conditions, any of which may be waived by written notice from
Purchaser to Seller:
(i) Seller shall have complied in all material respects with
and otherwise performed in all material respects each of the covenants and
obligations of Seller set forth in this Agreement, as of the date of Closing.
(ii) All representations and warranties of Seller as set forth
in this Agreement shall be true and correct in all material respects as of the
date of Closing (subject to any changes disclosed as permitted in Section 8).
(iii) The Title Company (as hereinafter defined) shall, upon
payment by Purchaser of all premiums therefor and payment by Purchaser of the
Purchase Price, be prepared to issue to Purchaser upon the Closing, a fee simple
owner's title insurance policy pursuant to the Revised Commitment (as
hereinafter defined), without exceptions other than as described in Section 7.
(iv) Purchaser shall have received from Seller, at or prior to
Closing a fully executed estoppel certificate by Tenant with respect to the
Lease in substantially the form of Exhibit D. Seller agrees to use commercially
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reasonable efforts to obtain said certificate. Purchaser agrees to accept a
certificate executed by Tenant which does not contain all of the substantive
information contained in Exhibit D, provided that as to any matters not covered
therein, Seller shall provide its certificate, certified to the best of Seller's
actual knowledge, without independent investigation or imputation of knowledge.
(b) The obligations and liabilities to Seller hereunder shall in all
respects be conditioned upon the satisfaction of the following condition, which
may be waived by written notice from Seller to Purchaser:
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(i) Purchaser shall have complied in all material respects with
and otherwise performed in all material respects each of the covenants and
obligations of Purchaser set forth in this Agreement, as of the date of Closing.
(ii) All representations and warranties of Purchaser as set forth
in this Agreement shall be true and correct in all material respects as of the
date of Closing.
7. Title and Survey. As of the Date of this Agreement, Seller has caused
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Security Land Title Company, as agent for Commonwealth Land Title Insurance
Company (the "Title Company") to deliver to Purchaser a commitment dated March
16, 1999 (the "Title Commitment") to issue the Purchaser, at Purchaser's sole
cost and expense, upon the recording of the Special Warranty Deed conveying
title to the Property from Seller to Purchaser, the payment of the Purchase
Price, and the payment to the Title Company of the policy premium therefor, an
owner's policy of title insurance (the "Policy"), in the amount of the Purchase
Price, insuring good and marketable fee simple record title to the Property.
Purchaser may obtain, at Purchaser's sole cost and expense, an "as built" survey
of the Property, prepared to Purchaser's specifications (the "Survey").
Purchaser agrees that it shall not disapprove as an exception to the Policy (i)
the lien of any general real estate taxes which are not yet due and payable,
(ii) the lien of special taxes or assessments becoming a lien or payable after
the date of this Agreement and relating to the period after Closing, (iii) the
rights of the Tenant under the Lease, or (iv) other exceptions for utility
easements that do not involve an encroachment or a violation and do not
interfere with the present use of the Property.
Purchaser shall have thirty (30) days from the Date of this Agreement
(the "Title Inspection Period") during which to obtain the Revised Commitment
(as defined below), and examine and approve the Survey, the Revised Commitment,
and the copies of the documents and instruments referred to therein. Prior to
the expiration of the Title Inspection Period, Purchaser agrees at its sole cost
and expense to use reasonable efforts to obtain an endorsement to the Title
Commitment or a revised commitment (in either case, the "Revised Commitment")
from the Title Company, which Revised Commitment (i) shall be indicative of the
form and content of the Policy required by Purchaser in order to close, (ii)
shall incorporate affirmative endorsements with respect to mechanic's liens,
zoning, survey, contiguity and access, as required by Purchaser in connection
with the Policy, and (iii) shall agree to have deleted or modified in the Policy
all exceptions, including any Permitted Exceptions (except as otherwise agreed
in the last sentence of the preceding paragraph), as required by Purchaser upon
delivery, at Closing, of the Special Warranty Deed (which shall nonetheless
remain expressly subject to the Permitted Exceptions) and the seller's affidavit
referenced in subsections (a) and (e) of Section 12. Purchaser shall notify
Seller in writing of any defects affecting the marketability of the title to the
Property or any objections to the exceptions, the Survey or the Revised
Commitment on or before the expiration of the Title Inspection Period. At
Seller's sole option, Seller may elect to cure such objections or defects at
Seller's expense at any time prior to Closing; if Seller elects not to cure any
objections or defects, Seller shall notify Purchaser in writing and this
Agreement shall be terminated upon such notice, whereupon Escrow Agent shall
promptly refund all Xxxxxxx Money to Purchaser, and Purchaser and Seller shall
have no further rights, obligations, or liabilities hereunder, except only for
such rights or obligations that, by the express terms hereof, survive the
termination of this Agreement. Upon Purchaser's receipt, Purchaser shall
promptly provide Seller a copy of the Survey and the Revised Commitment. In the
event Purchaser fails to object to the exceptions, the Survey or the Revised
Commitment or to any defects affecting the marketability of title to the
Property within the Title Inspection Period, Purchaser shall be deemed to have
waived any objections and to accept title to the Property subject to the
Permitted Exceptions. The term "Permitted Exceptions" as used herein, shall mean
the title exceptions listed on the form of Special Warranty Deed attached as
Exhibit E hereto.
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8. Representations and Warranties of Seller. Seller hereby makes the
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following representations and warranties to Purchaser, which representations and
warranties are true and correct on the date hereof:
(a) Lease. The copy of the Lease attached hereto as Exhibit C is
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true, accurate and complete. Seller has the sole right to collect the rents
under the Lease, and neither such right nor the Lease will, as of Closing, be
assigned, pledged, hypothecated or otherwise encumbered by Seller. There are no
other agreements between
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Seller and Tenant, written or oral, relating to occupancy by Tenant of the
Premises.
(b) Lease - Default. (i) Seller has no knowledge of termination of
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the Lease by Tenant or of any material default under the Lease by Tenant, and
(ii) Tenant has not provided Seller with any written notice of any defense, set-
off, or counterclaim with respect to its tenancy or its obligation to pay rent,
additional rent, or other charges pursuant to the Lease.
(c) Intentionally Omitted.
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(d) Lease - Commissions. No rental, lease, or other commissions
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with respect to the Lease are payable to Seller, any partner of Seller, any
party affiliated with or related to Seller or any partner of Seller or any third
party whatsoever. All commissions payable under, relating to, or as a result of
the Lease have been cashed-out and paid and satisfied in full.
(e) Intentionally Omitted.
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(f) No Other Agreements. Other than the Lease and the Permitted
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Exceptions, to the best of Seller's knowledge, there are no leases, service
contracts, management agreements, or other agreements or instruments in force
and effect, oral or written, to which Seller is a party and that grant to any
person whomsoever or any entity whatsoever any right, title, interest or benefit
in or to all or any part of the Property or any rights relating to the use,
operation, management, maintenance, or repair of all or any part of the Property
which shall survive Closing (the parties acknowledging that as of the date
hereof the Property is subject to a management agreement, the term of which
extends beyond Closing, but which will be terminated by Seller at or before
Closing).
(g) No Litigation. There are no actions, suits, or proceedings
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pending, or, to the best of Seller's knowledge, threatened by any organization,
person, individual, or governmental agency against Seller with respect to the
Property or against the Property. Seller has received no written notice of any
pending or threatened application for changes in the zoning applicable to the
Property or any portion thereof.
(h) Condemnation. Seller has received no written notice of any
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condemnation or other taking by eminent domain of the Property or any portion
thereof and, Seller has received no written notice of any pending or threatened
condemnation or eminent domain proceedings (or proceedings in the nature or in
lieu thereof) affecting the Property or any portion thereof.
(i) Violations. Seller has received no written notice from any
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governmental agency of any actual or alleged violations of law, municipal or
county ordinances, or other legal requirements with respect to the Property.
(j) Taxes. Seller is not a party to any current appeals or other
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pending legal proceedings relating to the real estate taxes or personal property
taxes or assessments or payments in lieu of real estate taxes on or against the
Property or any part thereof which are payable by Seller.
(k) Authorization. Seller is a duly organized and validly existing
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corporation under the laws of the State of Delaware. This Agreement has been
duly authorized and executed on behalf of Seller and constitutes the valid and
binding agreement of Seller, enforceable in accordance with its terms, and all
necessary action on the part of Seller to authorize the transactions herein
contemplated has been taken, and no further action is necessary for such
purpose.
(l) Seller Not a Foreign Person. Seller is not a "foreign person"
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which would subject Purchaser to the withholding tax provisions of Section 1445
of the Internal Revenue Code of 1986, as amended.
(m) Intentionally Omitted.
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(n) Intentionally Omitted.
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(o) Bankruptcy. Seller is "solvent" as said term is defined by
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bankruptcy law and has not made a general assignment for the benefit of
creditors nor been adjudicated a bankrupt or insolvent, nor has a receiver,
liquidator, or trustee for any of Seller's properties (including the Property)
been appointed or a petition filed by or against Seller for bankruptcy,
reorganization, or arrangement pursuant to the Federal Bankruptcy Act or any
similar Federal or state statute, or any proceeding instituted for the
dissolution or liquidation of Seller.
(p) Intentionally Deleted.
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(q) Hazardous Substances. To Seller's actual knowledge, without
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independent investigation or imputation of knowledge (i) no Hazardous Materials
have been discharged, disbursed, released, stored, treated, generated, disposed
of, or allowed to escape on the Property, (ii) no underground storage tanks are
located on the Property or were located on the Property and subsequently removed
or filled, (iii) Seller has received no written notice of any proposed,
threatened or existing investigation, administrative order, consent order and
agreement, litigation, or settlement with respect to Hazardous Materials, and
(vi) the Property has not previously been used as a landfill, cemetery, or as a
dump for garbage or refuse; except, however, any information to the contrary
contained in the Phase I Environmental Site Assessment prepared by Xxxxxxxx &
Associates, Inc., issued April 17, 1997, a copy of which has been furnished to
Purchaser.
At Closing, Seller shall represent and warrant to Purchaser that all
representations and warranties of Seller in this Agreement remain true and
correct as of the date of the Closing in all material respects, except for any
changes in any such representations or warranties that occur prior to Closing
and that are disclosed by Seller to Purchaser from time to time prior to Closing
upon their occurrence. If there is any material and adverse change in any
representations or warranties and Seller elects not cure or correct such changes
prior to Closing, then Purchaser may, at Purchaser's option, (i) close and
consummate the transaction contemplated by this Agreement, or (ii) terminate
this Agreement by written notice to Seller, whereupon the Xxxxxxx Money shall be
immediately returned by Escrow Agent to Purchaser, and thereafter the parties
hereto shall have no further rights or obligations hereunder, except only for
such rights or obligations that, by the express terms hereof, survive any
termination of this Agreement. The provisions of this Section 8 shall survive
Closing for a period of 90 days and not be merged into the delivery of the
Special Warranty Deed, provided however, that representations and warranties
covering matters which could have been discovered by Purchaser prior to Closing
in the exercise of commercially reasonable due diligence shall not survive
Closing but shall be merged into the delivery of the Special Warranty Deed.
9. Representations and Warranties of Purchaser. Purchaser hereby makes
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the following representations and warranties to Seller, which representations
and warranties are true and correct on the date hereof and shall remain true and
correct through Closing: Purchaser is a duly organized and validly existing
corporation under the laws of the State of Georgia. This Agreement has been duly
authorized and executed on behalf of Purchaser and constitutes the valid and
binding agreement of Purchaser, enforceable in accordance with its terms, and
all necessary action on the part of Purchaser to authorize the transactions
herein contemplated has been taken, and no further action is necessary for such
purpose.
10. Seller's Additional Covenants. Seller does hereby further covenant
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and agree as follows:
(a) Operation of Property. Seller shall from and after the date of
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this Agreement to the date of Closing: (i) not modify, amend, in any material
respect the Lease, or terminate the Lease except for a material default
thereunder or enter into any new lease, contract, or other agreement respecting
the Property except with consent of Purchaser which consent shall not be
unreasonably withheld, (ii) not grant or otherwise create or consent to the
creation of any easement, restriction, lien, assessment, or encumbrance
respecting the Property; and (iii) cause the Property to be operated,
maintained, and repaired in the same manner as the Property is currently being
operated, maintained, and repaired subject to casualty or condemnation.
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(b) Preservation of Lease. Seller shall, from and after the date
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of this Agreement to the date of Closing, use good faith efforts to perform and
discharge all of its material duties and obligations and shall otherwise comply
with every material covenant and agreement as landlord under the Lease, at
Seller's expense, in the manner and within the time limits required thereunder.
Furthermore, Seller shall, for the same period of time, use diligent and good
faith efforts to cause the Tenant to perform all its material duties and
obligations and otherwise comply with its material covenants and agreements
under the Lease and shall take such actions as are reasonably necessary to
enforce the terms and provisions of the Lease.
(c) Insurance. From and after the date of this Agreement to the
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date and time of Closing, Seller shall, at its expense, continue to maintain the
all risk fire and extended coverage insurance policy covering the Property which
is currently in force and effect.
11. Closing. Provided that all of the conditions expressly set forth in
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this Agreement are theretofore satisfied or performed or to which Purchaser has
been deemed to have accepted or waived as provided herein, or to which Purchaser
may expressly waive in writing at or prior to Closing, the consummation of the
sale by Seller and purchase by Purchaser of the Property (the "Closing") shall
be held at 10:00 a.m., local time, on June 30, 1999, at the offices of the Title
Company, or at such earlier time as shall be designated by Purchaser in a
written notice to Seller not less than three (3) business days prior to Closing.
12. Seller's Closing Documents. Seller shall obtain or execute and
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deliver to Purchaser at Closing the following documents all of which shall be
duly executed, acknowledged, and notarized where required and shall survive the
Closing:
(a) Special Warranty Deed. A Special Warranty Deed, in form
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attached hereto as Exhibit E, conveying to Purchaser marketable fee simple
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title to the Land and Improvements, together with all rights, easements, and
appurtenances thereto, subject only to the Permitted Exceptions. The legal
description set forth in the Special Warranty Deed shall be as set forth on
Exhibit A. In the event Purchaser shall obtain a new or updated survey of the
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Land and Improvements and the legal description set forth in Purchaser's survey
shall differ from the legal description set forth on Exhibit A, the Special
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Warranty Deed shall be supplemented to include a quit claim conveyance using the
legal description based upon such survey;
(b) Xxxx of Sale. A Xxxx of Sale conveying to Purchaser marketable
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title to the Personal Property in the form and substance of Exhibit F;
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(c) Blanket Transfer. A Blanket Transfer and Assignment in the
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form and substance of Exhibit G.
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(d) Assignment and Assumption of Lease. An Assignment and
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Assumption of the Lease in the form and substance of Exhibit H, assigning to
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Purchaser all of Seller's right, title, and interest in and to the Lease and the
rents thereunder;
(e) Seller's Affidavit. A customary seller's affidavit in the form
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required by the Title Company, on forms customarily used by the Title Company
and reasonably satisfactory to Seller, in order to issue an owner's policy of
title insurance;
(f) FIRPTA Certificate. A FIRPTA Certificate in such form as
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Seller shall reasonably approve;
(g) Keys and Records. All of the keys to any door or locks on the
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Property and the duplicates or originals of tenant files and other books and
records relating to the Property in Seller's possession;
(h) Settlement Statement. A settlement statement setting forth the
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amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement;
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(i) Intentionally Omitted.
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(j) Tenant Notice. Notice from Seller to the Tenant of the sale of
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the Property to Purchaser in such form as Purchaser shall reasonably approve;
and
(k) Other Documents. Such other documents, if any, as shall be
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reasonably required in order to close.
13. Purchaser's Closing Documents. Purchaser shall obtain or execute and
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deliver to Seller at Closing the following documents, all of which shall be duly
executed and acknowledged where required and shall survive the Closing:
(a) Blanket Transfer. The Blanket Transfer and Assignment;
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(b) Assignment and Assumption of Lease. The Assignment and
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Assumption of Lease;
(c) Settlement Statement. A settlement statement setting forth the
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amounts paid by or on behalf of and/or credited to each of Purchaser and Seller
pursuant to this Agreement; and
(d) Insurance. Insurance certificates for policies including the
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insurance coverages required by the Lease, in substitution for the insurance
policies being canceled by Seller.
(e) Other Documents. Such other documents, if any, as may be
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reasonably required in order to close.
14. Closing Costs. Purchaser shall pay the cost of the Title Commitment
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and the Revised Commitment, including the cost of the examination of title to
the Property made in connection therewith, the cost for extended coverage, the
cost of deleting exceptions, the premium for the owner's policy of title
insurance and any endorsements issued pursuant thereto, the cost of the as-built
survey, the attorneys' fees of Purchaser, and all other costs and expenses
incurred by Purchaser in closing and consummating the purchase and sale of the
Property pursuant thereto. Seller shall pay the cost of any recording fees,
transfer or documentary tax imposed by any jurisdiction in which the Property is
located, the attorneys' fees of Seller, and all other costs and expenses
incurred by Seller in closing and consummating the purchase and sale of the
Property pursuant thereto. Each party shall pay one-half of any escrow fees.
15. Prorations. The following items shall be prorated and/or credited
----------
between Seller and Purchaser as of Midnight preceding the date of Closing:
(a) Rents. Rents, additional rents, and other income of the
-----
Property accruing on or after the Closing shall belong to Purchaser and shall be
charged to Seller as a credit to the Purchase Price and those items accruing
prior to Closing shall belong to Seller and shall be charged to Purchaser as a
debit to the Purchase Price. Subsequent to the Closing, any such rents which are
received by a party not entitled thereto shall be forwarded to the party
entitled thereto. Purchaser shall make a good faith effort and attempt to
collect any such rents not apportioned at the Closing, for the benefit of
Seller.
(b) Property Taxes. There shall be no prorations for real estate
--------------
taxes, assessments and levies and installments of taxes, assessments and levies
(collectively, "Taxes"), as Tenant is responsible for payment of Taxes under
Section 2.02 of the Lease. Except to the extent Seller has received such funds
from Tenant and such funds have not been applied to the payment of such Taxes,
Purchaser hereby waives, releases, and discharges Seller of and from, and agrees
to look solely to Tenant under the Lease for, and all claims, actions, causes of
action, demands, rights, damages, costs, expenses or compensation whatsoever, in
connection or in any way related to the payment of any and all Taxes, which
agreement shall survive Closing.
8
(c) Utility Charges. There shall be no prorations for utilities,
---------------
as Tenant is responsible for payment of all utilities affecting the Property
under Article IX of the Lease. Except to the extent Seller has received such
funds from Tenant and such funds have not been applied to the payment of such
utilities, Purchaser hereby waives, releases, and discharges Seller of and from,
and agrees to look solely to Tenant under the Lease for, any and all claims,
actions, causes of action, demands, rights, damages, costs, expenses or
compensation whatsoever, in connection or in any way related to the payment of
any and all utilities, which agreement shall survive Closing.
(d) Insurance. Seller's insurance policies on the Property shall
---------
not be assumed by Purchaser, but shall be canceled effective as of the date of
Closing. Purchaser agrees that any prepaid or unused premium therefor shall be
refunded to Seller.
The provisions of this Section 15 shall survive Closing.
16. Purchaser's Default. In the event of default by Purchaser under the
-------------------
terms of this Agreement, Seller's sole and exclusive remedy for Purchaser's
failure to close shall be to receive the Xxxxxxx Money as liquidated damages and
thereafter the parties hereto shall have no further rights or obligations,
except only for such rights or obligations that, by the express terms hereof,
survive the termination of this Agreement. It is hereby agreed that Seller's
damages for Purchaser's failure to close will be difficult to ascertain and that
the Xxxxxxx Money constitutes a reasonable liquidation thereof and is intended
not as a penalty, but as liquidated damages for such failure to close (but shall
not limit Seller's claims for other defaults).
Seller's Initials LK Purchaser's Initials LW
----- -----
17. Seller's Default. In the event of default by Seller under the terms
----------------
of this Agreement, Purchaser's sole remedy shall be, at Purchaser's option: (i)
Purchaser shall have the right to terminate this Agreement by giving written
notice of such termination to Seller, whereupon Escrow Agent shall promptly
refund all Xxxxxxx Money to Purchaser, and Purchaser and Seller shall have no
further rights or obligations hereunder, except only for such rights or
obligations that, by the express terms hereof, survive the termination of this
Agreement; or (ii) if such default consists of defects in title, Purchaser shall
have the right to accept title to the Property subject to such defects with no
reduction in the Purchase Price, in which event such defects shall be deemed
additional "Permitted Exceptions"; or (iii) Purchaser may elect to seek specific
performance of this Agreement.
18. Condemnation. If, prior to the Closing, action is initiated to take
------------
all or a material part of the Property by condemnation by a body having the
power of eminent domain or if the Property is taken by eminent domain or
condemnation (or sale in lieu thereof), or if Seller has received written notice
that any condemnation action or proceeding with respect to all or any material
part of the Property is contemplated by a body having the power of eminent
domain, or if Tenant exercises any right of termination of Tenant under Article
XIV of the Lease, or in the event of automatic termination of the Lease under
Article XIV of the Lease, Seller shall so notify Purchaser in writing and
Purchaser may by written notice to Seller given within ten (10) days of the
receipt of notice thereof from Seller, elect to cancel this Agreement. If
Purchaser chooses to cancel this Agreement in accordance with this Section 18,
then the Xxxxxxx Money shall be returned immediately to Purchaser by Escrow
Agent, and Purchaser and Seller shall have no further rights or obligations
hereunder, except only for such rights or obligations that, by the express terms
hereof, survive the termination of this Agreement. If Purchaser does not elect
to cancel this Agreement in accordance herewith, this Agreement shall remain in
full force and effect and the sale of the Property contemplated by this
Agreement, shall be effected with no further adjustment and without reduction of
the Purchase Price, and at the Closing, Seller shall assign, transfer, and set
over to Purchaser all of the right, title, and interest of Seller in and to any
awards that have been or that may thereafter be made for such taking. Seller
agrees to take any action and execute any instruments which may be required
following Closing in order to implement its obligations under this Section.
19. Damage or Destruction. If any of the Improvements having a value in
---------------------
excess of $100,000 shall be destroyed or damaged prior to the Closing or Tenant
elects to terminate the Lease pursuant to Article XIII of the
9
Lease, Seller shall so notify Purchaser in writing and Purchaser may, by written
notice given to Seller within five (5) days after receipt of written notice from
Seller, elect to terminate this Agreement, in which event the Xxxxxxx Money
shall immediately be returned by Escrow Agent to Purchaser and, thereafter the
parties hereto shall have no further rights or obligations hereunder, except
only for such rights or obligations that, by the express terms hereof, survive
the termination of this Agreement. If Purchaser does not elect to terminate this
Agreement pursuant to this Section 19 or the damage is less than $100,000, and
the sale of the Property is consummated, Purchaser shall be entitled to receive
an assignment of Seller's right and interest in the casualty insurance proceeds
paid or payable to Seller, if any, by reason of such destruction or damage under
the insurance required to be maintained by Seller pursuant to Section 10(c)
hereof (less amounts of insurance theretofore received and applied by Seller to
restoration) and Seller shall pay to Purchaser the amount of any deductible. If
the amount of said casualty insurance proceeds is not settled by the date of
Closing, Seller shall execute at Closing all proofs of loss, assignments of
claim, and other similar instruments to ensure that Purchaser shall receive all
of Seller's right, title, and interest in and under said insurance proceeds.
Seller agrees to take any action and execute any instruments which may be
required following Closing in order to implement its obligations under this
Section.
20. Acceptance of Property.
----------------------
(a) Disclaimer. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS
----------
OTHERWISE EXPRESSLY SET FORTH HEREIN, SELLER HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES (OTHER THAN
THE WARRANTY OF TITLE AS SET OUT IN THE SPECIAL WARRANTY DEED, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST PRESENT, OR FUTURE, OF, AS TO,
CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE
INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR
ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE
COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E)
THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE
MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, OR (H) ANY
OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT SELLER, EXCEPT
AS OTHERWISE EXPRESSLY SET FORTH HEREIN, HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE, ZONING OR DEVELOPMENT OF
REGIONAL IMPACT LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THE
EXISTENCE IN OR ON THE PROPERTY OF HAZARDOUS MATERIALS (AS DEFINED BELOW).
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT PURCHASER HAS BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS
OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT
INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND, EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH HEREIN, MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR
COMPLETENESS OF SUCH INFORMATION. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE SALE OF THE PROPERTY
AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION AND BASIS WITH ALL
FAULTS. THE PROVISIONS OF THIS SECTION 20 SHALL SURVIVE THE CLOSING OR ANY
TERMINATION OF THE AGREEMENT.
(b) Hazardous Materials. "Hazardous Materials" shall mean any
-------------------
substance which is or
10
contains (i) any "hazardous substance" as now or hereafter defined in the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended (42 U.S.C. (S)9601 et seq.) ("CERCLA") or any regulations promulgated
under or pursuant to CERCLA; (ii) any "hazardous waste" as now or hereafter
defined in the Resource Conservation and Recovery Act (42 U.S.C. (S)6901 et.
seq.) ("RCRA") or regulations promulgated under or pursuant to RCRA; (iii) any
substance regulated by the Toxic Substances Control Act (15 U.S.C. (S)2601 et
seq.); (iv) gasoline, diesel fuel, or other petroleum hydrocarbons; (v) asbestos
and asbestos containing materials, in any form, whether friable or non-friable;
(vi) polychlorinated biphenyls; (vii) radon gas; and (viii) any additional
substances or materials which are now or hereafter classified or considered to
be hazardous or toxic under Environmental Requirements (as hereinafter defined)
or the common law, or any other applicable laws relating to the Property.
"Hazardous Materials" shall include, without limitation, any substance, the
presence of which on the Property, (A) requires reporting, investigation or
remediation under Environmental Requirements; (B) causes or threatens to cause a
nuisance on the Property or adjacent property or poses or threatens to pose a
hazard to the health or safety of persons on the Property or adjacent property;
or (C) which, if it emanated or migrated from the Property, could constitute a
trespass.
(c) Environmental Requirements. "Environmental Requirements" shall
--------------------------
mean all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Property is located, and any other
political subdivision, agency or instrumentality exercising jurisdiction over
the owner of the Property, the Property, or the use of the Property, relating to
pollution, the protection or regulation of human health, natural resources, or
the environment, or the emission, discharge, release or threatened release of
pollutants, contaminants, chemicals, or industrial, toxic or hazardous
substances or waste or Hazardous Materials into the environment (including,
without limitation, ambient air, surface water, ground water or land or soil).
21. Assignment. Except for an assignment to an affiliate of Purchaser,
----------
Purchaser's rights and interests under this Agreement shall not be assignable
without the consent of Seller, which consent shall not be unreasonably withheld,
provided the assignee and Purchaser shall deliver to Seller a written assumption
of all obligations of Purchaser jointly and severally.
22. Broker's Commission. Seller has by separate agreement agreed to pay a
-------------------
brokerage commission to CB Xxxxxxx Xxxxx, Inc., (the "Broker") pursuant to that
certain Exclusive Sales Listing Agreement dated September 9, 1998, by and
between Seller and the Broker (the "Listing Agreement"). Purchaser and Seller
hereby represent each to the other that they have not discussed this Agreement
or the subject matter hereof with any real estate broker or agent other than the
Broker so as to create any legal right in any such broker or agent to claim a
real estate commission with respect to the conveyance of the Property
contemplated by this Agreement. Seller shall and does hereby indemnify and hold
harmless Purchaser from and against any claim, whether or not meritorious, for
any real estate sales commission, finder's fees, or like compensation in
connection with the sale contemplated hereby and arising out of any act or
agreement of Seller, including any claim asserted by the Broker per the Listing
Agreement and any broker or agent claiming under the Broker per the Listing
Agreement. Likewise, Purchaser shall and does hereby indemnify and hold harmless
Seller from and against any claim, whether or not meritorious, for any real
estate sales commission, finder's fees, or like compensation in connection with
the sale contemplated hereby and arising out of any act or agreement of
Purchaser, except any such claim asserted by the Broker per the Listing
Agreement and any broker or agent claiming under the Broker per the Listing
Agreement. This Section 22 shall survive the Closing or any termination of this
Agreement.
23. Notices. Wherever any notice or other communication is required or
-------
permitted hereunder, such notice or other communication shall be in writing and
shall be delivered by overnight courier, or sent by U.S. registered or certified
mail, return receipt requested, postage prepaid, to the addresses set out below
or at such other addresses as are specified by written notice delivered in
accordance herewith:
PURCHASER: c/x Xxxxx Capital, Inc.
11
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxx X. Xxxxx, III
with a copy to: X'Xxxxxxxxx & Xxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. X'Xxxxxxxxx, Esq.
SELLER: Bridge Information Systems America, Inc.
000 Xxxxxx Xxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Mr. Xxxxx Xxxxxx
with a copy to: Xxxxx Xxxx LLP
3500 One Kansas City Place
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, Esq.
Any notice or other communication mailed as hereinabove provided shall be deemed
effectively given or received on the date of delivery, if delivered by overnight
carrier, or otherwise on the third (3rd) business day following the postmark
date of such notice or other communication.
24. Possession. Possession of the Property shall be granted by Seller to
----------
Purchaser on the date of Closing, subject only to the Lease and the Permitted
Exceptions.
25. Time Periods. If the time period by which any right, option, or
------------
election provided under this Agreement must be exercised, or by which any act
required hereunder must be performed, or by which the Closing must be held,
expires on a Saturday, Sunday, or holiday, then such time period shall be
automatically extended through the close of business on the next regularly
scheduled business day.
26. Severability. This Agreement is intended to be performed in
------------
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules, and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby but rather shall be enforced to the greatest extent permitted
by law.
27. General Provisions. No failure of either party to exercise any power
------------------
given hereunder or to insist upon strict compliance with any obligation
specified herein, and no custom or practice at variance with the terms hereof,
shall constitute a waiver of either party's right to demand exact compliance
with the terms hereof. This Agreement contains the entire agreement of the
parties hereto, and no representations, inducements, promises, or agreements, or
otherwise, between the parties nor embodied herein shall be of any force or
effect. Any amendment to this Agreement shall not be binding upon the parties
hereto unless such amendment is in writing and executed by all parties hereto.
The provisions of this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors, and assigns. Time is of the essence of this Agreement. This
Agreement may be executed in multiple counterparts, each of which shall
constitute an original, but all of which taken together shall constitute one and
the same agreement. The headings inserted at the beginning of each section are
for convenience only, and do not add to or subtract from the meaning of the
contents of each section. This Agreement shall be construed and interpreted
under the laws of the State of Kansas. Except as otherwise provided herein, all
rights, powers and privileges conferred hereunder upon the parties shall be
cumulative but not restrictive to those given by law. All personal pronouns used
in this Agreement, whether used in the masculine,
12
feminine, or neuter gender shall include all genders, and all references herein
to the singular shall include the plural and vice versa.
28. Date. The "Date" of this Agreement shall be deemed to be the date
----
of this Agreement first set forth above.
39. Duties as Escrow Agent. In performing its duties hereunder, Escrow
----------------------
Agent shall not incur any liability to anyone for any damages, losses or
expenses, except for its negligence or willful misconduct, and it shall
accordingly not incur any such liability with respect to any action taken or
omitted in good faith upon advice of its counsel or in reliance upon any
instrument, including any written notice or instruction provided for in this
Agreement, not only as to its due execution and the validity and effectiveness
of its provision, but also as to the truth and accuracy of any information
contained therein that Escrow Agent shall in good faith believe to be genuine,
to have been signed or presented by a proper person and to conform to the
provisions of this Agreement. Except for Escrow Agent's negligence or
intentional misconduct, Seller and Purchaser hereby agree to indemnify and hold
harmless Escrow Agent against any and all losses, claims, damages, liabilities
and expenses, including reasonable costs of investigation and legal fees and
disbursements, that may be imposed upon Escrow Agent or incurred by Escrow Agent
in connection with its acceptance or performance of its duties hereunder as
escrow agent, including without limitation, any litigation arising out of this
Agreement. If any dispute shall arise between Seller and Purchaser sufficient in
the discretion of Escrow Agent to justify its doing so, Escrow Agent shall be
entitled to tender into the registry or custody of the clerk of the Court for
the county in which the Property is located or the clerk for the United States
District Court having jurisdiction over the county in which the Property is
located, any and all money (less any sums required to pay Escrow Agent's
attorneys' fees in filing such action), property or documents in its hands
relating to this Agreement, together with such pleadings as it shall deem
appropriate, and thereupon be discharged from all further duties under this
Agreement. Seller and Purchaser shall bear all costs and expenses of any such
legal proceedings.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective seals to be affixed hereunto as of the day,
month and year first above written.
"SELLER":
BRIDGE INFORMATION SYSTEMS AMERICA, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
----------------------------
Title: Vice President
----------------------------
"PURCHASER":
XXXXX CAPITAL, INC.
a Georgia Corporation
By: /s/ Xxx X. Xxxxx, III
----------------------------
Name: Xxx X. Xxxxx, III
----------------------------
Title: President
----------------------------
"ESCROW AGENT":
SECURITY LAND TITLE COMPANY
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxx X. Xxxxxx
----------------------------
Title: Title Agent/Asst. Closer
----------------------------
14
Schedule of Exhibits
--------------------
Exhibit A - Legal Description of Land
Exhibit B - List of Personal Property
Exhibit C - Copy of Lease
Exhibit D - Tenant Estoppel Certificate Form
Exhibit E - Special Warranty Deed
Exhibit F - Xxxx of Sale Form
Exhibit G - Blanket Transfer and Assignment Form
Exhibit H - Assignment and Assumption of Lease Form
EXHIBIT A
---------
LEGAL DESCRIPTION OF THE LAND
-----------------------------
Lot 1, Xxxxxx-Xxxxxx Financial, a subdivision in the City of Leawood, Xxxxxxx
County, Kansas.
EXHIBIT B
---------
LIST OF PERSONAL PROPERTY
-------------------------
NONE
EXHIBIT C
---------
COPY OF LEASE
-------------
EXHIBIT D
---------
TENANT ESTOPPEL CERTIFICATE
---------------------------
Xxxxx Capital, Inc.
0000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Re: Lease Agreement (the "Lease") dated February 14, 1997, by and
between Bridge Information Systems America, Inc. ("Landlord") and
Sprint Communications Company L.P. ("Tenant")
The undersigned is the tenant under the Lease, whereby Tenant leases from
Landlord the real property described therein, having an address of 0000 Xxxx
00xx Xxxxxx, Xxxxxxx, Xxxxxx, and all improvements located thereon
(collectively, the "Property"). Tenant understands that an affiliate of Xxxxx
Capital, Inc. ("Prospective Purchaser") may be purchasing the Property from
Landlord and Tenant certifies to Landlord and Prospective Purchaser as follows:
The Lease is in full force and effect on the date hereof and has not been
modified.
The term of the Lease began on May 19, 1997. The termination date of the
present term of the Lease is May 18, 2007, subject to Tenant's rights of early
termination and extension as set forth in the Lease.
To the best of Tenant's knowledge, no uncured breaches or defaults exist
under the Lease, no facts or circumstances exist which will constitute a breach
or default under the Lease and no offsets, defenses or claims are presently
available to Landlord or Tenant under the Lease. There are no structural or
other defects, latent or otherwise, in the premises, the heating, ventilating,
air conditioning, electrical, plumbing, water, roofing, storm drainage and
sanitary sewer systems at or servicing the premises are in good condition and
working order and there are no defects or deficiencies, latent or otherwise,
therein. Tenant is not aware of any basis for termination of the Lease pursuant
to Section 12.05 thereof.
Tenant is in full and complete possession of the premises on the Property
and has accepted its premises, including the work of Landlord performed therein
pursuant to any terms and provisions of the Lease, and all other improved areas
located on the Property (including, without limitation, parking spaces, access
ways, and landscaping) as being complete, in compliance with the Lease, and
satisfactory for Tenant's purposes. All utilities necessary for the use of the
Property as an office building of the size and nature situated thereon,
including water, sanitary sewer, storm sewer, electricity, and telephone, are
installed and operational.
The premises contain 68,900 rentable square feet.
Tenant is currently paying monthly base rental under the Lease in the
amount of $ 83,254.17, or $14.50 per rentable square foot. All allowances of
whatever nature payable to Tenant have been paid in full, and all sums due and
owing to Tenant have been paid.
Tenant has not prepaid any rent or other charge under the Lease to Landlord
other than Base Rent (as
defined in the Lease) for the period up to and including ____________________.
No security deposit has been paid to or is presently held by the Landlord
under the Lease, and Tenant has not rendered to Landlord any other security or
similar deposit with respect to its tenancy under the Lease.
Tenant covenants and agrees that it has not dealt with any agents or
brokers in such a way as to cause any brokerage commissions to be due and
payable with respect to the Lease, except such brokers as have been specifically
identified in the Lease and then only with respect to Tenant's initial occupancy
of the Property.
Tenant has not assigned all or any part of its interest in and to the Lease
as security or otherwise and has not subleased all or any part of the premises
leased by Tenant under the Lease.
Upon transfer of the Property to Purchaser, Tenant shall attorn to and
recognize Purchaser as Landlord under the Lease and the Lease shall remain in
full force and effect. Any notices to Landlord under the Lease shall following
conveyance of the Property to Purchaser be given c/x Xxxxx Capital, Inc., 0000
Xxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 00000.
Tenant acknowledges that in the event it exercises the termination option
set forth in Article XXIV of the Lease, the unamortized portion of the real
estate commission would be $__________________.
Tenant hereby acknowledges and agrees that the Purchaser shall be entitled
to rely on the truth and accuracy of the foregoing certifications made by
Tenant. Tenant further agrees for a period of thirty (30) days from the date
hereof to notify Purchaser in writing at the address set forth above of any
changes in the truth and accuracy of any of the certifications contained herein
promptly upon Tenant learning of such change.
The undersigned is authorized to execute this Tenant Estoppel Certificate
on behalf of Tenant.
Dated this _____ day of _____________, 1999.
TENANT:
SPRINT COMMUNICATIONS COMPANY L.P.,
a Delaware limited partnership
By:________________________
Name:______________________
Title:_____________________
EXHIBIT E
---------
SPECIAL WARRANTY DEED
---------------------
This Special Warranty Deed, made this ____ day of ________, 1999 is
made by Bridge Information Systems America, Inc., a Delaware corporation,
successor to Xxxxxx-Xxxxxx Financial, Inc. ("Grantor") to
_________________________________________ ("Grantee").
WITNESSETH: THAT SAID Grantor, in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable consideration, the receipt of which
is hereby acknowledged, does by these presents, Grant, Bargain, Sell and Convey
unto the said Grantee and its successors and assigns its interest in that
certain real estate, situated in the County of Xxxxxxx and State of Kansas, more
particularly described on Exhibit A attached hereto, subject to all rights of
way, easements, restrictions, liens and encumbrances described on Exhibit B
attached hereto (the "Property").
TO HAVE AND TO HOLD THE SAME, together with all and singular the
tenements, hereditaments and appurtenances thereunto belonging or in any wise
appertaining, forever. And said Grantor, for itself, its successors and assigns,
does hereby covenant, promise and agree to and with said Grantee, that at the
delivery of these presents it is lawfully seized in its own right of an absolute
and indefeasible estate of inheritance, in fee simple, of and in all and
singular the above granted and described Property, with the appurtenances; that
the same are free, clear, discharged and unencumbered of and from all former and
other grants, titles, charges, estates, judgments, taxes, assessments and
encumbrances, of any nature or kind whatsoever by, through, or under the
Grantor, except as set forth above; and that it will warrant and forever defend
the same unto the said Grantee, its successors and assigns, against said
Grantor, its successors and all and every person or persons whomsoever, lawfully
claiming or to claim the same by, through or under the Grantor.
IN WITNESS WHEREOF, the said Grantor has hereunto executed this
Special Warranty Deed the day and year first above written.
GRANTOR:
BRIDGE INFORMATION SYSTEMS AMERICA, INC.
a Delaware corporation
By:_______________________________
Name:_____________________________
Title:____________________________
STATE OF _______________)
) ss.
COUNTY OF _____________)
The foregoing Special Warranty Deed was acknowledged before me this
_____ day of _____, 1999, by _________________, _________ of Bridge Information
Systems America, Inc., a Delaware corporation.
_______________________________________
Notary Public
Name:__________________________________
(typed, printed or stamped)
[SEAL]
My appointment expires:
EXHIBIT A TO SPECIAL WARRANTY DEED
----------------------------------
Legal Description
-----------------
Lot 1, Xxxxxx-Xxxxxx Financial, a subdivision in the City of Leawood, Xxxxxxx
County, Kansas.
EXHIBIT B TO SPECIAL WARRANTY DEED
----------------------------------
Permitted Encumbrances
----------------------
General taxes for the year 1999 and all subsequent years.
Special taxes or assessments becoming a lien or payable after the date of this
Deed.
Lease Agreement dated February 14, 1997 by and between Bridge Information
Systems America, Inc., a Delaware corporation, as landlord, and Sprint
Communications L.P., a Delaware limited partnership, as tenant, and any
subleases thereof and all rights of parties now or hereafter in possession
pursuant thereto.
Easements and restrictions as shown in Plat Book 85, Page 34.
Ten foot wide Sewer Easement granted to the City of Leawood, Kansas by the
instrument recorded in Volume 1664, Page 897.
Terms and provisions of the Statement of Intended Land Use recorded in Volume
3406, Page 828, as described therein.
Easement granted to Kansas City Power and Light Company recorded in Volume 3455,
Page 98, as described therein.
Future installments levied by WASTEWTR CAP
Matters disclosed in that certain survey to Executive Hills, Inc., CNSB, Inc.
and Xxxxxxx Title, Inc., dated January 25, 1993, prepared by Xxxxxx, Xxxxx &
Warren, P.A., and any shortages in area and encroachments which an update
thereof would disclose.
Other exceptions, if any, disclosed in the Revised Commitment.
EXHIBIT F
---------
XXXX OF SALE
------------
This Xxxx of Sale ("Xxxx of Sale") dated effective as of the _____ day of
____, 1999 is made by Bridge Information Systems America, Inc., a Delaware
corporation ("Seller") to _____________________________________ ("Purchaser").
For good and valuable consideration, the receipt of which is hereby
acknowledged, Seller does hereby sell, assign, transfer and set over unto
Purchaser the personal property ("Personal Property") which is located on and
utilized in connection with the real property ("Land") more particularly
described on Exhibit A hereto (Personal Property and Land, collectively called
the "Property"), provided, said Personal Property shall not include that
personal property owned by the tenant, Sprint Communications Company L.P., of
the Property.
TO HAVE AND TO HOLD the same unto Purchaser forever.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW UNDER THE KANSAS UNIFORM COMMERCIAL
CODE. PURCHASER TAKES THE PROPERTY "AS IS" AND "WITH ALL FAULTS."
By acceptance of this Xxxx of Sale, Purchaser hereby accepts and agrees to
all matters set forth herein.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the day and
year first written above.
SELLER:
BRIDGE INFORMATION SYSTEMS AMERICA, INC.,
a Delaware corporation
By: ______________________________
Name: ______________________________
Title: ______________________________
EXHIBIT A TO XXXX OF SALE
-------------------------
Legal Description
-----------------
Lot 1, Xxxxxx-Xxxxxx Financial, a subdivision in the City of Leawood, Xxxxxxx
County, Kansas.
EXHIBIT G
---------
BLANKET TRANSFER AND ASSIGNMENT
-------------------------------
THIS Blanket Transfer and Assignment (the "Assignment") is made and
entered into as of the ____ day of _______, 1999, by and between Bridge
Information Systems America, Inc., a Delaware corporation
("Assignor"),and________________________________________________ ("Assignee").
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged by the parties, Assignor does hereby sell, assign,
transfer and set over unto Assignee the Property (as hereinafter defined), to
have and to hold the same forever.
As used herein, the term "Property" shall mean the interest, if any,
of Assignor in and to the following property, to the extent of such interest and
to the extent such interest is assignable without consent: all of Assignor's
right, title, and interest, if any, in and to plans and specifications with
respect to the buildings, structures and improvements situated on the real
property (the "Land") more particularly described on Exhibit A attached hereto,
and any guarantees, trademarks, rights of copyright, warranties, or other rights
related to the ownership of or use of the Land or improvements located on the
Land, governmental licenses and permits, and intangibles associated with the
Land or improvements, including the name of the improvements and the logo
therefor, if any.
Assignee hereby assumes any and all liabilities and obligations of
Assignor in connection with the Property which accrue from and after the date of
this Assignment.
Assignor and Assignee further agree as follows:
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, ASSIGNOR EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW UNDER THE
KANSAS UNIFORM COMMERCIAL CODE.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the day and year first above written.
ASSIGNOR:
BRIDGE INFORMATION SYSTEMS AMERICA, INC.,
a Delaware corporation
By: _______________________________________
Name: _______________________________________
Title: _______________________________________
ASSIGNEE:
____________________________________________
By: _________________________________
Name: _________________________________
Title: _________________________________
EXHIBIT A TO BLANKET TRANSFER AND ASSIGNMENT
--------------------------------------------
Legal Description
-----------------
Lot 1, Xxxxxx-Xxxxxx Financial, a subdivision in the City of Leawood, Xxxxxxx
County, Kansas.
EXHIBIT H
---------
ASSIGNMENT AND ASSUMPTION OF LEASE
----------------------------------
This Assignment and Assumption of Lease ("Assignment"), dated
effective as of the ___ day of _____, 1999 is made by and between Bridge
Information Systems America, Inc., a Delaware corporation ("Assignor") and
______________________________________________________________ ("Assignee").
For good and valuable consideration, the receipt of which is hereby
acknowledged, Assignor does hereby sell, assign, transfer and set over unto
Assignee that certain lease agreement by and between Assignor and Sprint
Communications Company L.P., a Delaware limited partnership ("Tenant"), dated
February 14, 1997 (the "Lease"), encumbering the property located at 0000 Xxxx
00xx Xxxxxx, Xxxxxxx, Xxxxxx, more particularly described on Exhibit A hereto
("Property"), together with all rights and obligations of Assignor as landlord
with respect to any security deposits under the Lease, and all books and records
of Assignor relating to the Lease.
Assignee, by acceptance of this Assignment and the Lease, hereby
assumes and agrees to keep, observe and perform all of the covenants,
conditions, terms and provisions under the Lease to be kept, observed and
performed by the landlord thereunder from and after the date hereof, and
Assignee agrees to indemnify and save Assignor harmless from and against any and
all claims, demands, or liabilities arising under or in connection with the
Lease and accruing from and after the date hereof.
Assignor agrees to indemnify and save Assignee harmless from and
against any and all claims, demands, or liabilities arising under or in
connection with the Lease and accruing prior to the date hereof.
TO HAVE AND TO HOLD THE SAME UNTO ASSIGNEE FOREVER.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the day and year first written above.
ASSIGNOR:
BRIDGE INFORMATION SYSTEMS AMERICA, INC.
a Delaware corporation
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
ASSIGNEE:
________________________________
By: __________________________________
Name: __________________________________
Title: __________________________________
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION OF LEASE
-----------------------------------------------
Legal Description
-----------------
Lot 1, Xxxxxx-Xxxxxx Financial, a subdivision in the City of Leawood, Xxxxxxx
County, Kansas.]
