HomeMy WebLinkAboutPurchase agreement 3790 YukonDEN-122535-9
PURCHASE AND SALE
AGREEMENT
between
Quadrant Wheat Ridge Corners, LLC
and
Wheat Ridge Urban Renewal Authority,
d/b/a Renewal Wheat Ridge
for
3790 Yukon Court
Wheat Ridge, CO 80033
dated
January 3, 2017
TABLE OF CONTENTS
1. DEFIN"ITIONS AND USAGE .............................................................................................. 1
1.1 Definitions ................................................................................................................... 1
1.2 Usage ........................................................................................................................... 4
2. PURCHASE AND SALE ...................................................................................................... 4
2.1 Purchase and Sale of Property .................................................................................... 4
3. PURCHASE PRICE AND PAYMENT ............................................................................... 5
3 .1 Purchase Price ............................................................................................................. 5
3 .2 Earnest Money ............................................................................................................ 5
3.3 Pavment of Remaining Balance of Purchase Price ..................................................... 5
4. BUYER'S DUE DILIGENCE .............................................................................................. 5
4.1 Property Files .............................................................................................................. 5
4.2 Title Commitment and Survey .................................................................................... 6
4.3 Physical Inspection ..................................................................................................... 7
4.4 Buyer's Termination Right and Buyer's Objections .................................................. 8
4.5 Effects of Buver's Termination .................................................................................. 9
4.6 AS IS, WHERE IS ...................................................................................................... 9
5. CLOSIN"G ............................................................................................................................... 9
5.1 Closing ...................................................................................................................... 10
5.2 Extension of Closing ................................................................................................. 10
5.3 Documents and Other Items to Be Deposited by Seller ........................................... 10
5.4 Funds and Documents to Be Deposited by Buyer .................................................... 11
5.5 Buyer's Closing Conditions ...................................................................................... 11
5.6 Seller's Closing Conditions ...................................................................................... 12
5.7 Closing Costs ............................................................................................................ 12
5.8 Prorations .................................................................................................................. 12
5.9 Possession ................................................................................................................. 13
6. PRE-CLOSIN"G COVENANTS ......................................................................................... 13
6.1 Seller's Affirmative Covenants During the Interim Period ...................................... 13
6.2 Seller's Negative Covenants During the Interim Period ........................................... 13
6.3 Buyer's Negative Covenants During the Interim Period .......................................... 14
7. REPRESENTATIONS AND WARRANTIES ................................................................. 15
7.1 Seller's Representations and Warranties .................................................................. 15
7.2 Buyer's Representations and Warranties .................................................................. 17
8. RISK OF LOSS ................................................................................................................... 18
8.1 Allocation of Risk ..................................................................................................... 18
8.2 Taking Prior to Closing ............................................................................................. 18
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9. BREACH .............................................................................................................................. 19
9.1 Notice of Default. ...................................................................................................... 19
9.2 Post-Closing Remedies ............................................................................................. 20
10. GENERAL PROVISIONS ............................................................................................. 20
10.1 Successors and Assigns ............................................................................................. 20
10.2 Notices ...................................................................................................................... 20
10.3 Attorney's Fees ......................................................................................................... 22
10.4 Time of the Essence .................................................................................................. 22
10.5 No Rights or Obligations to Third Parties ................................................................ 22
10.6 Review by Counsel ................................................................................................... 22
10.7 Effectiveness of Agreement ...................................................................................... 22
10.8 Dates not Falling on a Business Day ........................................................................ 22
10.9 Entire Agreement ...................................................................................................... 23
10.10 Governing Law ..................................................................................................... 23
10.11 Severability ........................................................................................................... 23
10.12 Amendment. .......................................................................................................... 23
10.13 Waiver ................................................................................................................... 23
10.14 Incornoration ......................................................................................................... 23
10.15 Jurisdiction and Venue .......................................................................................... 23
10.16 Patriot Act; US Foreign Corrupt Practices Act.. ................................................... 23
10.17 WaiverofJury Trial .............................................................................................. 24
10.18 Counterparts .......................................................................................................... 24
10.19 General Cooperation ............................................................................................. 24
10.20 Survival of Provisions ........................................................................................... 24
10.21 Brokerage .............................................................................................................. 24
10.22 No Recording ........................................................................................................ 24
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LIST OF EXHIBITS
Exhibit A
Exhibit B
DEN-122535-9
Land
Form of Bargain and Sale Deed
111
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into to be
effective as of January 3, 2017 (the "Effective Date"), by and between Wheat Ridge Urban
Renewal Authority, d/b/a Renewal Wheat Ridge, a Colorado urban renewal authority and body
corporate and politic ("Seller") and Quadrant Wheat Ridge Comers, LLC, a Missouri limited
liability company ("Buyer").
RECITALS:
A. Seller owns the land legally described in Exhibit A attached hereto located in the
Jefferson County, Colorado (the "Land"), together with the building(s) and other improvements
located thereon.
B. Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the
Property (as defined in Section 1.1), on the terms and conditions set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants and conditions herein and
for other good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. DEFINITIONS AND USAGE
1.1 Definitions. For purposes of this Agreement, the following terms have the
following meanings:
(a) "Agreement" shall have the meaning set forth in the first paragraph
hereof.
(b) "Aff'tliate" means any Person which, directly or indirectly, is in control of,
is controlled by or is under common control with the party for whom an affiliate is being
determined. For purposes of this definition of "Affiliate'', control of a Person means the power,
direct or indirect, to: (a) vote 50% or more of the securities having ordinary voting power for the
election of directors (or comparable positions) of such Person; or (b) direct or cause the direction
of the management and policies of such Person, whether by contract or otherwise and either
alone or in conjunction with others.
(c) "Applicable Law" means any law, rule, regulation, order, decree or other
requirement having the force of law and, where applicable, any interpretation thereof by any
authority having jurisdiction with respect thereto or charged with the administration thereof.
(d) "B-1 Requirements" shall have the meaning set forth in Section 4.4.
(e) "Business Day" means any day other than a Saturday, a Sunday, or a
holiday in which banks located in Denver, Colorado are closed for business.
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(t) "Buyer" shall have the meaning set forth in the first paragraph hereof.
(g) "Buyer's Closing Conditions" shall have the meaning set forth m
Section 5.5.
(h) "Buyer's Objections" shall have the meaning set forth in Section 4.4.
(i) "Claims" means claims, demands, damages, losses, judgments, liabilities,
causes of actions, suits, fines, penalties, costs, fees and expenses, including, fees, costs and
expenses of attorneys, consultants and other experts.
(j) "Closing" shall have the meaning set forth in Section 5 .1.
(k) "Closing Date" shall have the meaning set forth in Section 5.1.
(1) "Closing Notice" shall have the meaning set forth in Section 5.1.
(m) "Condition of the Property" shall have the meaning set forth in
Section 4.4.
(n) "Deposit" shall have the meaning set forth in Section 3 .2.
(o) "Effective Date" shall have the meaning set forth in the first paragraph
hereof.
(p) "Environmental Laws" shall have the meaning set forth in Section 7 .1.
(q) "Escrow Agreement" shall have the meaning set forth in Section 3.2.
(r) "Executive Order" shall have the meaning set forth in Section 10.16.
(s) "Existing Environmental Reports" shall have the meaning set forth in
Section 4 .1 .
(t) "Existing Survey" shall have the meaning set forth in Section 4.2.
(u) "Governmental Approvals" shall have the meaning set forth m
Section 5.5.
(v) "Governmental Authority" means any government of any nation, state or
other political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
(w) "Hazardous Substances" shall have the meaning set forth in Section 7.1.
(x) "Inspection Deadline" shall have the meaning set forth in Section 4.4.
(y) "Interim Period" shall have the meaning set forth in Section 6.1.
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(z) "Land" shall have the meaning set forth in Recital A above.
(aa) "Licensed Surveyor" shall have the meaning set forth in Section 4.2.
(bb) "Licenses and Permits" shall have the meaning set forth in Section 2.1.
(cc) "Liens" shall have the meaning set forth in Section 4.4.
(dd) "Limitations Period" shall have the meaning set forth in Section 7 .1.
(ee) "New Matter Objection Notice" shall have the meaning set forth in
Section 4.4.
(ft) "New Survey" shall have the meaning set forth in Section 4.2.
(gg) "Notices" shall have the meaning set forth in Section 10.2.
(hh) "Objection Notice" shall have the meaning set forth in Section 4.4.
(ii) "OFAC" shall have the meaning set forth in Section 10.16.
(jj) "Other Interests" shall have the meaning set forth in Section 2.1 .
(kk) "Permitted Exceptions" shall have the meaning set forth in Section 4.4.
(ll) "Person" means any natural person, Governmental Authority, corporation,
partnership, limited liability company, joint venture, trust, cooperative, association, or other
entity of any kind.
(mm) "Property" shall have the meaning set forth in Section 2.1.
(nn) "Property Files" shall have the meaning set forth in Section 4.1 .
( oo) "Purchase Price" shall have the meaning set forth in Section 3 .1 .
(pp) "Quit Claim Deed" shall have the meaning set forth in Section 5.3.
( qq) "Seller" shall have the meaning set forth in the first paragraph hereof.
(rr) "Seller's Closing Conditions" shall have the meaning set forth m
Section 5.6.
(ss) "Seller's Knowledge" means the present, actual, personal (and not
constructive or imputed) knowledge of Steve Art, Executive Director of Seller, without any duty
of investigation whatsoever.
(tt) "Subject Party" shall have the meaning set forth in Section 10.16.
(uu) "Termination Notice" shall have the meaning set forth in Section 4.4.
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(vv) "Title Commitment" shall have the meaning set forth in Section 4.2.
(ww) "Title Company" shall have the meaning set forth in Section 3.2.
(xx) "Title Exceptions" shall have the meaning set forth in Section 4.2.
(yy) "Title Policy" shall have the meaning set forth in Section 5.5.
1.2 Usage. Tenns defined in the singular herein may be used in the plural; and
tenns defined in the plural may be used in the singular. Unless the context of this Agreement
clearly requires otherwise: (a) references to any Person include such Person's successor and
assigns, but, if applicable, only if such successors and assigns are permitted by this Agreement;
(b) "including" is not limiting, ( c) "or" has the inclusive meaning represented by the phrase
"and/or" (d) the words "hereof' "herein" "hereby" "hereunder" and similar tenns in this ' ' ' ' Agreement refer to this Agreement as a whole and not to any particular provision of this
Agreement, ( e) references in this Agreement to "Articles", "Sections", "clauses",
"paragraphs" and "Exhibits" refer to Articles, Sections, clauses, paragraphs and Exhibits of
this Agreement unless otherwise specified, (f) references to any agreement (including this
Agreement), document or instrument (but excluding all agreements, documents, and
instruments listed on the Exhibits attached hereto) means such agreement, document or
instrument as amended, modified and in effect from time to time in accordance with the terms
thereof, and, if applicable, the terms hereof; (g) general or specific references to any
Applicable Law, means such Applicable Law as amended, modified, reenacted or replaced in
whole or in part, and in effect from time to time.
2. PURCHASE AND SALE
2.1 Purchase and Sale of Property. Upon and subject to the tenns and conditions set
forth in this Agreement, Seller shall sell to Buyer, and Buyer shall purchase from Seller, the
"Property," which shall consist of all of the following:
(a) the Land together with improvements thereon, if any;
(b) Seller's interest in any and all development fees, impact fees, water, sewer
or other utility tap, connection, meter or service fees or amounts which have been paid to any
Governmental Authority in connection with any previous development of the Property along
with any and all development rights associated therewith, existing water and sewer taps and/or
credits, if any, the Governmental Approvals and/or any utility service provided to any
improvement located on said Land, if any, all to the extent transferable (collectively, the
"Licenses and Permits").
( c) easements, water rights, mineral rights and other rights appurtenant
thereto, if any, and Seller's right, title and interest in any public rights-of-way adjoining the
Property (collectively, the "Other Interests").
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3. PURCHASE PRICE AND PAYMENT
3.1 Purchase Price. Subject to the terms and conditions of this Agreement, the
purchase price of the Property is Forty Six Thousand Two Hundred Eighty and N0/100
Dollars ($46,280.00) (the "Purchase Price"). Subject to the terms and conditions of this
Agreement, Buyer shall pay the Purchase Price as set forth in Sections 3 .2 and 3 .3.
3.2 Earnest Money. Within five (5) Business Days after the Effective Date, Buyer
shall deliver or cause to be delivered to First American Title Insurance Company ("Title
Company"), at its offices located at 1125 17th St., Suite 500, Denver, Colorado 80202,
Attention: Katie Miller, the sum of One Thousand One Hundred Fifty Seven and Noll 00
Dollars ($1,157.00) (together with all interest accrued thereon, the "Deposit"). The Title
Company shall place the Deposit in an interest-bearing account and/or will otherwise invest the
Deposit as directed by Buyer. The interest upon the Deposit shall be paid to the party who
ultimately receives the Deposit at the Closing or otherwise. Concurrently with the parties'
execution of this Agreement, Seller and Buyer shall enter into the form of escrow agreement
attached hereto as Exhibit C (the "Escrow Agreement") and shall deliver the same to Title
Company for signature. Except as provided in this Agreement, the Deposit is non-refundable.
3.3 Payment of Remaining Balance of Purchase Price. At Closing, Buyer shall pay
to Seller the Purchase Price, minus the amount of the Deposit, subject to adjustments for pro
rations, credits and closing costs, recording, documentary fees and other expenses of Closing
allocated to the parties pursuant to this Agreement.
4. BUYER'S DUE DILIGENCE
4.1 Property Files.
(a) Seller has delivered to Buyer as of the Effective Date, or otherwise will
deliver to Buyer within ten (10) days after the Effective Date, complete copies (paper or
electronic) of all the following documents and files to the extent in Seller's possession or control:
(i) all contracts and instruments affecting the Property, together with all amendments, waivers,
estoppels, written correspondence affecting the rights of any party or third-party beneficiary to
any such contracts or instruments, and all other documents affecting such contracts or
instruments, (ii) all License and Permits, if any; (iii) all real property tax bills and special
assessments, if any, for the past three years pertaining to the Property, (iv) copies of all surveys,
maps, plans, specifications, structural diagrams, related computer files, if any, working and "as
built" drawings, utilities drawings, utility information, soil tests, geologic reports and
information, drainage plans and wetland/floodplain designations, other engineering reports and
information, environmental reports, audits, evaluations, assessments, reviews, studies and other
environmental information pertaining to the Property, (v) copies of all appraisals pertaining to
the Property, (vi) all materials related to the Other Interests, if any, (vii) a schedule of all current
and pending, or, to Seller's Knowledge, threatened, litigation or disputes affecting the Property
and all documentation related thereto, (viii) a schedule of all current and pending, or, to Seller's
Knowledge, threatened, condemnation actions affecting the Property and all documentation
related thereto, and (ix) all other documents and information in Seller's possession or control
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regarding the condition, status, development, ownership, usage, operation or marketability of the
Property (collectively, the "Property Files").
(b) Buyer acknowledges and agrees that the majority of the documents and
instruments identified as part of the Property Files have been prepared by independent third
parties; therefore, except as expressly set forth in this Agreement, Seller makes no representation
or warranty of any type whatsoever regarding the accuracy or completeness of such documents
and instruments, and Buyer shall rely solely upon its own investigation of the Property.
(c) Buyer acknowledges that neither Seller nor anyone acting for or on behalf
of Seller has made any warranty or promise to Buyer, except as expressly provided in this
Agreement, concerning the following: the physical aspects and condition of the Property; the
feasibility, desirability or convertibility of the Property into any particular use, or the project
market for, income from or expenses of any development of the Property. Seller has provided as
part of the Property Files copies of all environmental site assessments and other similar reports
relating to the environmental condition of the Property which are in Seller's possession prior to
the Effective Date (the "Existing Environmental Reports"). Except as otherwise expressly set
forth in this Agreement, Buyer makes no representations or warranties concerning the accuracy
or completeness of such Existing Environmental Reports. Further, Buyer acknowledges that
neither Seller nor any of its agents or employees has made any warranties or representations
upon which Buyer has relied concerning the investment value, the possibility of profit or loss, or
the tax consequences that may result from the purchase of the Property.
4.2 Title Commitment and Survey.
(a) On or before the Effective Date, the Title Company has provided to Buyer
a current ALTA 2006 owners', extended coverage, title commitment (the "Title Commitment")
issued by the Title Company committing to insure fee title in the Land to Buyer in the amount of
the Purchase Price, together with legible copies of all title exception documents referenced in the
Title Commitment ("Title Exceptions").
(b) In the event Buyer desires the Title Policy to include extended coverage or
endorsements, Buyer shall be solely responsible for the cost of such extended coverage and
endorsements and for providing a New Survey (defined below) as may be required by the Title
Company.
(c) Within ten (10) days after the Effective Date, Seller shall, at its expense,
deliver to Buyer any and all existing surveys of the Land in Seller's possession or control (each,
an "Existing Survey"). Buyer may, but is not required to, have any Existing Survey updated by
a registered professional land surveyor licensed in the State of Colorado (a "Licensed
Surveyor") or to engage a Licensed Surveyor to deliver a new ALT Al ACSM survey of the Land
(as applicable, a "New Survey") at Buyer's sole cost and expense.
(d) SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL
OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM
ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS.
PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR
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INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE
SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE
INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT
SUCH AN INCREASE IN MILL LEVIES. BUYERS SHOULD INVESTIGATE THE
SPECIAL TAXING DISTRICTS IN WHICH THE PROPERTY IS LOCATED BY
CONTACTING THE COUNTY TREASURER, BY REVIEWING THE CERTIFICATE OF
TAXES DUE FOR THE PROPERTY, AND BY OBTAINING FURTHER INFORMATION
FROM THE BOARD OF COUNTY COMMISSIONERS, THE COUNTY CLERK AND
RECORDER, OR THE COUTY ASSESSOR.
4.3 Physical Inspection.
(a) Prior to Closing, subject to the terms and conditions of this Section 4.3(a),
upon at least 24-hours' notice, Seller shall make available to Buyer and Buyer's consultants,
agents and employees, access to the Property for such inspections, examinations, tests or any
other investigations of the Property as Buyer deems appropriate. Seller shall have the right to
have its agents or employees observe any testing activities.
(b) Buyer shall restore, at Buyer's sole cost and expense, the Land to the
condition existing immediately prior to Buyer's exercise of its rights pursuant to Section 4.3(a).
Buyer's obligations under this Section 4.3(b) shall survive termination of this Agreement.
(c) Buyer shall cause its consultants and contractors performing any tests,
inspections, examination or other investigation on the Property to obtain and maintain
commercial general liability insurance from an insurance company licensed in the State of
Colorado, in the amount of at least $500,000 combined single limit for personal injury and
property damage per occurrence, which insurance shall provide coverage against any claim for
personal liability or property damage caused by such consultant or contractor or its agents or
employees.
( d) Buyer shall indemnify, defend and hold harmless Seller and its agents and
employees from and against any Claims to the extent arising out of Buyer's physical inspection
of the Property and including without limitation the filing or assertion of a mechanic's or
materialmen's lien against the Property or any part thereof, as a result of Buyer's entry upon the
Property, Buyer's investigation, inspection, tests or surveys or work performed through or under
Buyer. This indemnity shall survive the Closing or termination of this Agreement.
Notwithstanding the foregoing, Buyer shall not be obligated to indemnify, defend and hold
harmless Seller and its agents and employees from and against any Claims arising out of
(i) Buyer's discovery of any items on the Property, the condition of the Property, or the
disclosure of any matters discovered during Buyer's investigations (including without limitation
an adverse environmental condition affecting the Property) provided such conditions were not
caused by Buyer and/or its agents or (ii) the negligence or other misconduct of Seller or any
third-party not acting on behalf of or at the direction of Buyer. Buyer's obligations under this
Section 4.3(c) shall survive termination of this Agreement.
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4.4 Buyer's Termination Right and Buyer's Objections.
(a) Buyer may terminate this Agreement for any reason or for no reason, in
Buyer's sole and absolute discretion, by delivering to Seller written notice of termination (a
"Termination Notice") at any time on or before the Inspection Deadline. The "Inspection
Deadline" is 5:00 p.m. (MST) on the date that is sixty (60) days after the Effective Date, and
such date may be waived by Buyer, in its sole discretion, or extended pursuant to the terms of
this Agreement.
(b) At any time, on or before the Inspection Deadline, Buyer may deliver to
Seller one or more notices (each, an "Objection Notice") that Buyer objects to any economic,
financial, legal, title, physical, environmental, or other condition of the Property (a "Condition
of the Property") or to any other matter related to the transactions described herein, describing
such objections in such notice ("Buyer's Objections").
(i) If Buyer timely delivers an Objection Notice, then Seller and
Buyer shall negotiate in good faith for a period ending at 5:00 p.m. MST on the date that is then
three (3) Business Days after the earlier of Buyer's delivery of the Objection Notice or the
Inspection Deadline to resolve Buyer's Objections. If Buyer and Seller are able to reach written
agreement to resolve Buyer's Objections within such 3-Business Day period, then this
Agreement shall be amended in writing to reflect such agreement. If Buyer and Seller are unable
to reach written agreement to resolve Buyer's Objections within such 3-Business Day period,
then this Agreement shall automatically be deemed terminated.
(ii) If Buyer fails to timely deliver a Termination Notice and fails to
timely deliver an Objection Notice then Buyer shall be deemed to have waived its termination
rights under this Section 4.4, except for as set forth in Section 4.4(e).
(c) Notwithstanding any other provision of this Agreement, Seller shall, at or
before Closing: (i) deliver to the Title Company at Closing all affidavit and other documents
sufficient for the Title Company to delete all standard printed exceptions, (ii) remove of record
all liens burdening any portion of the Property, including, mechanics liens (except those caused
by Buyer), judgment liens, liens for assessments, delinquent tax liens and/or loans secured by
mortgages or deed of trusts (except a lien for real property taxes and assessments that are not due
and payable as or before Closing) (collectively, the "Liens"), (iii) satisfy all Seller requirements
in Schedule B-1 of the Title Commitment (each, a "B-1 Requirement"), and (iv) pay all real
property taxes and assessments with respect to the Land (except for those taxes and assessment
for the year of Closing that are not then due and payable), regardless of whether Buyer includes
any such requirement in an Objection Notice timely delivered to Seller.
( d) The term "Permitted Exceptions" shall mean (i) all Title Exceptions to
which Buyer fails to make a written objection thereto within an Objection Notice timely
delivered to Seller, except for Liens, B-1 Requirements and those items that the Title Company
subsequently removes from a Title Commitment, and (ii) except for Liens and B-1
Requirements, all subsequent encumbrances which Buyer accepts or approves in writing, and all
Liens or encumbrances which Buyer causes or authorizes in writing against the Property.
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(e) If at any time after the Inspection Deadline: (i) the Title Commitment is
amended to: (A) add a new title exception, (B) change the requirements for an endorsement
requested by Buyer that were set forth in the Title Commitment as of the Inspection Deadline, or
(C) delete an endorsement requested by Buyer that the Title Company committed to issue as of
the Inspection Deadline, or (ii) any new title exception, not caused by Buyer, otherwise becomes
known to Buyer, then Buyer may provide written notice to Seller objecting to such new matter,
exception, requirement or deletion (each, a "New Matter Objection Notice") within five (5)
days after Buyer's receipt of the amended Title Commitment adding, deleting or amending the
items identified above in this paragraph 4.4(e). If, prior to Closing, Buyer delivers a New Matter
Objection Notice to Seller objecting to any such matters, exceptions, requirements or deletions,
then Seller shall make reasonable good faith efforts to cause all such new matters and exceptions
set forth therein to be removed of record prior to Closing and shall use its good-faith efforts to
cause the Title Company to remove all such requirements or deletions set forth therein prior to
Closing. If Seller is unable to cause Title Company to remove such new matters, exceptions,
requirements and/or deletions, then Buyer may elect to terminate this Agreement by delivering a
written notice of termination to Seller, or Buyer may waive such objection(s) and proceed to
Closing.
4.5 Effects of Buyer's Termination. If this Agreement is terminated or deemed
terminated pursuant to this Article 4: (a) the Deposit shall immediately be returned to Buyer,
without the need for any further consent or approval of Seller (provided that upon Buyer's
request, Seller shall provide its written authorization for the return of the Deposit to Buyer),
(b) Buyer shall promptly deliver to Seller all documents and written information received from
Seller, including, the Property Files, and (c) the parties shall be deemed relieved of all further
obligations under this Agreement, except to the extent any obligations under this Agreement
expressly survive the termination of this Agreement.
4.6 AS IS . WHERE IS. OTHER THAN THE REPRESENTATIONS AND
WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT AND IN DOCUMENTS
DELIVERED AT CLOSING, SELLER MAKES NO OTHER OR FURTHER
REPRESENTATIONS AND/OR WARRANTIES OF ANY SORT WHATSOEVER. BUYER
IS RELYING ON THOSE REPRESENTATIONS, THE TERMS AND CONDITIONS OF
THIS AGREEMENT AND THE DOCUMENTS DELIVERED AT CLOSING, AND
BUYER'S OWN INVESTIGATIONS AND EXAMINATIONS AS TO THE PHYSICAL
CONDITION AND EVERY OTHER ASPECT OF THE PROPERTY. BUYER
ACKNOWLEDGES THAT EXCEPT AS SET FORTH ABOVE, BUYER IS PURCHASING
THE PROPERTY ON AN "AS-IS, WHERE-IS" BASIS, WITHOUT ANY IMPLIED
WARRANTIES. BUYER HEREBY WAIVES, AND SELLER HEREBY DISCLAIMS, ALL
WARRANTIES OF ANY TYPE OR KIND WHATSOEVER WITH RESPECT TO THE
PROPERTY (EXCEPT AS CONTAINED IN THIS AGREEMENT OR THE DEED
CONVEYING THE PROPERTY), EXPRESS OR IMPLIED, INCLUDING, BY WAY OF
DESCRIPTION, BUT NOT LIMITATION, THOSE OF FITNESS FOR A PARTICULAR
PURPOSE, TENANT ABILITY, HABITABILITY AND USE.
5. CLOSING
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5.1 Closing. The consummation of the purchase and sale of the Property pursuant
to this Agreement (the "Closing") shall occur at the offices of the Title Company, at
10:00 a.m. MST on the date that is the date (the "Closing Date") selected by Buyer by
delivering written notice thereof to Seller (the "Closing Notice"); provided, however, that
Buyer may not select a Closing Date that is less than five (5) days after Buyer's delivery of the
Closing Notice and that is later than thirty (30) days after the Inspection Deadline. The parties
may mutually agree in writing to modify the Closing Date.
5.2 Extension of Closing. Notwithstanding anything to the contrary herein, Buyer,
at its option and in its sole discretion, shall have the right to extend the Closing Date for up to
two (2) periods of thirty (30) days each; provided, that Buyer provides Seller written notice of
its election to extend the Closing no later than two (2) Business Days prior to the then
scheduled Closing Date.
5.3 Documents and Other Items to Be Deposited by Seller. At Closing, Seller shall
deliver or cause to be delivered to Buyer, the following instruments, documents, and other
items:
(a) a bargain and sale deed in the form attached hereto as Exhibit B (the
"Deed") duly executed by Seller and acknowledged, conveying the Land and Other Interests to
Buyer;
(b) a quit claim deed, in a form reasonably acceptable to Buyer, duly executed
by Seller and acknowledged, conveying to Buyer all of Seller's right, title and interest in and to
the Licenses and Permits, if any (the "Quit Claim Deed");
(c) an executed certificate of non-foreign person duly executed by Seller;
(d) originals and copies of all Licenses and Permits in Seller's possession or
control, if any;
(e) all keys, codes, and combinations to the Property or any portion thereof;
(f) Seller's settlement statement reflecting adjustments and prorations as
required under this Agreement duly executed by Seller;
(g) such evidence as Buyer and/or the Title Company may reasonably request
confirming Seller's authority to execute and deliver the documents required of it and to
consummate the transactions contemplated hereby; and
(h) such other customary documents requested by Title Company as may be
necessary to consummate the purchase and sale of the Property in accordance with this
Agreement.
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DEN-122535·9
5.4 Funds and Documents to Be Deposited by Buyer. At Closing, Buyer shall
deliver or cause to be delivered to Seller, the following instruments, documents, and other
items:
(a) such funds (by wire transfer or other immediately available United States
funds) as are necessary to complete payment of the Purchase Price in accordance with
Section 3.3 of this Agreement and to pay Buyer's portion of the Closing costs, pro rations and
recording, documentary fees and other expenses of Closing allocated to the parties in accordance
with this Agreement;
(b) Buyer' settlement statement reflecting adjustments and prorations as
required under this Agreement duly executed by Buyer;
(c) such evidence as Seller and/or the Title Company may reasonably request
confirming Buyer's authority to execute and deliver the documents required of it and to
consummate the transactions contemplated hereby; and
( d) such other customary documents requested by Title Company as may be
necessary to consummate the purchase, sale, and contribution of the Property in accordance with
this Agreement.
5.5 Buyer's Closing Conditions. Buyer's obligation to purchase and accept the
Property is conditioned on the fulfillment of each of the conditions precedent described below
at or before Closing ("Buyer's Closing Conditions").
(a) The Title Company shall be unconditionally and irrevocably committed to
issue to Buyer an Owner's Policy of Title Insurance providing extended coverage title insurance
for the Land in an amount equal to the Purchase Price, insuring Buyer's good and marketable fee
simple title to the Land subject only to the Permitted Exceptions (the "Title Policy");
(b) Seller shall have delivered the documents and other items specified in
Section 5 .3;
(c) Buyer shall have obtained approval of the final subdivision plat and
concept plan from the applicable Governmental Authority required in connection with Buyer's
use (actual and prospective) and development of the Property (the "Governmental Approvals");
(d) Seller's representations and warranties contained in Section 7.1 shall be
true and correct as of the Closing;
(e) Seller shall have performed all covenants of Seller under this Agreement
to be performed by Seller at or before the Closing Date; and
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(f) There shall not be pending or threatened any of the following by or against
or with respect to any party which constitutes Seller or with respect to any portion of the
Property: (i) a case under Title 11 of the U.S. Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy law or other similar law; (ii) the
appointment of a trustee or receiver of any property interest; or (iii) an assignment for the benefit
of creditors.
5.6 Seller's Closing Conditions. Seller's obligation to sell the Property is
conditioned upon the fulfillment of each of the conditions precedent described below at or
before Closing ("Seller's Closing Conditions"):
(a) Buyer shall have delivered the funds and documents specified m
Sections 3.3 and 5.4;
(b) Buyer's representations and warranties contained in Section 7.2 shall be
true and correct as of the Closing Date; and
( c) Buyer shall have performed all covenants of Buyer under this Agreement
to be performed by Buyer at or before the Closing.
5.7 Closing Costs.
(a) At or before the Closing, Seller shall pay or have paid (i) the cost of the
premium for the Title Policy (except for any costs associated with extended coverage);
(ii) one-half of the closing fees of the Title Company; (iii) any recording fees other than for the
Bargain and Sale Deed and the Quit Claim Deed; (iv) the cost of Seller's counsel and other
advisors; and (v) any other expenses stipulated to be paid by Seller under the provisions of this
Agreement.
(b) At or before the Closing, Buyer shall pay or have paid (i) additional title
premiums charged for endorsements requested by Buyer and extended coverage or coverage in
excess of the Purchase Price; (ii) one-half of the closing fees of the Title Company; (iii) the
recording fees and documentary fee with respect to the Deed and the Quit Claim Deed; (iv) the
cost of Buyer's counsel and other advisors; and (v) any other expenses stipulated to be paid by
Buyer under the provisions of this Agreement.
(c) Any other Closing costs not specifically allocated between Buyer and
Seller shall be borne by the respective parties in accordance with the custom and practice in the
State of Colorado.
5.8 Prorations.
(a) As of the Closing Date, Seller shall pay any and all real and personal
property taxes and assessments for all years prior to the year in which the Closing occurs. Seller
is tax exempt and does not pay real and personal property taxes and assessments for the Property.
Therefore, no proration as between Buyer and Seller is required at Closing for any real and
personal property taxes and assessments for the Property accrued in the calendar year of the
Closing.
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DEN-122535-9
(b) Buyer shall arrange with all utilities and companies servicing the Property
with accounts in Seller's name to have new accounts started in the name of Buyer beginning at
12:01 a.m. on the Closing Date.
5.9 Possession. At Closing, Seller shall deliver to Buyer possession of the Property
free of any tenants or parties in possession. Buyer shall be entitled to full enjoyment of the
Property on the Closing Date subject to the matters set forth or referred to herein.
6. PRE-CLOSING COVENANTS
6.1 Seller's Affirmative Covenants During the Interim Period. During the period
from the Effective Date to the first to occur of the date of termination of this Agreement for
any reason, or the Closing Date (the "Interim Period"), Seller shall:
(a) provide Buyer with all information Buyer reasonably requests concerning
the Property;
(b) promptly forward to Buyer any information it receives (including any
third-party reports, tests or studies) regarding the Property after the Effective Date;
(c) promptly give written notice to Buyer upon obtaining knowledge of any
representations or warranties of Seller under this Agreement becoming untrue or inaccurate;
( d) keep the Property insured at the current level of insurance maintained
thereon;
( e) timely pay and perform all obligations with respect to the Property
including paying before delinquency all taxes attributable thereto;
(f) manage, operate, and maintain, the Property in the ordinary course of
business in accordance with Seller's current practices and in compliance with all Applicable
Laws.
6.2 Seller's Negative Covenants During the Interim Period. During the Interim
Period, Seller shall not, except as otherwise approved in writing by Buyer in its reasonable
discretion:
(a) sell, convey, transfer, assign or otherwise dispose of any interest in, or
permit any encumbrance upon, the Property;
(b) other than liens securing non-delinquent real estate taxes, enter into or
permit, grant, or create any mortgage, pledge, encumbrance, lease, license, restriction, covenant,
condition, easement or any other agreement with respect to the Property except for the Permitted
Exceptions;
(c) take any action or fail to take any action that would result in any of
Seller's representations or warranties of Seller under this Agreement becoming untrue or
inaccurate;
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DEN-122535-9
( d) agree to any amendment or early termination of any contract or instrument
affecting the Land, or the Licenses and Permits, if any;
( e) enter into, or amend, any contract affecting the Property that will be
binding upon Buyer or the Property after Closing;
(f) waive any right of Seller (including any condition precedent to any
obligation of Seller) under any contract or instrument affecting the Land, or the Licenses and
Permits, if any;
(g) except as required by Buyer in connection with Buyer's development of
the Property, seek or consent to any zoning or other change affecting the use of the Land or any
portion thereof, or seek or consent to any subdivision, map, platting or replatting of the Land or
any portion thereon or any amendment thereto;
(h) store any items on the Land;
(i) conduct any grading activities on the Land; or
G) construct any improvements on the Land.
6.3 Buyer's Negative Covenants During the Interim Period. During the Interim
Period, Buyer shall not, except as otherwise approved in writing by Seller in its reasonable
discretion:
(a) Permit any encumbrance upon the Property or create any mortgage,
pledge, lease, license, restriction, covenant, condition, easement or any other agreement with
respect to the Property;
(b) Take any action or fail to take any action that would result in any of
Buyer's representations or warranties of Buyer under this Agreement becoming untrue or
inaccurate;
(c) Not permit or suffer and, to the extent so permitted or suffered, shall
cause, within thirty (30) days following the date of filing, to be removed and released, any lien
on account of supplies, machinery, tools, equipment, labor or materials furnished or used in
connection with the planning, design, inspection, or surveying of the Property, or preparation of
plans with respect thereto through or under Buyer. This obligation shall survive termination of
this Agreement. In the event Buyer's activities result in any lien statement being filed against
the Property or any portion thereof, then, upon written notice from Seller to Buyer, Buyer shall
within thirty (30) days thereafter cause such lien to be released or ''bonded over" by the Title
Company or by court order. Buyer's obligations to release or bond over a lien statement shall be
performed regardless of the validity of the actual claims that gave rise to the lien statement.
Further, in the event the Property is not timely released and discharged from the lien as provided
in this section, Seller may, at its option, with the assistance of attorneys of Seller's choosing,
enter into, defend, prosecute or pursue any effort or action (whether or not litigation is involved)
which Seller deems reasonably necessary to defend itself and the Property from and against all
claims or liability arising by, through or under Buyer as set forth in this Section 6.3(c). Buyer
14
DEN-122535-9
shall be responsible for paying all actual costs and expenses (including reasonable attorneys'
fees) incurred by Seller in connection with any such effort or action hereunder to discharge any
liens.
7. REPRESENTATIONS AND WARRANTIES
7.1 Seller's Representations and Warranties. As of the Effective Date and as of the
Closing Date, Seller represents and warrants to Buyer that:
(a) All requisite action has been taken by Seller in connection with Seller's
execution of this Agreement, and has been taken in connection with the agreements, instruments
or other documents to be executed by Seller pursuant to this Agreement and the consummation
of the transactions contemplated hereby and thereby. No consent (not already obtained) of any
creditor, investor, judicial or administrative body, governmental or quasi-governmental authority
or other third party is required for Seller to enter into this Agreement and to consummate the
transactions contemplated hereby.
(b) Each individual executing this Agreement and the agreements, instruments
or other documents to be executed by the Seller pursuant to this Agreement on behalf of such
Seller has been duly authorized to bind Seller to the terms and conditions hereof and thereof
This Agreement and the agreements, instruments or other documents to be executed by Seller
pursuant to this Agreement shall be the legal, valid and binding obligations of Seller enforceable
in accordance with their terms (subject to applicable laws concerning bankruptcy, insolvency and
rights of creditors generally).
(c) The execution and delivery of, and the performance by Seller of its
obligations under, this Agreement do not and will not (i) contravene, or constitute a default
under, any provision of Applicable Law or regulation or any agreement, judgment, injunction,
order, decree or other instrument binding upon Seller or to which the Property is subject,
(ii) result in the breach of any of the terms or provisions of, or constitute a default under, any
agreement or other instrument to which either Seller is a party or by which it or any portion of
the Property may be bound or affected or (iii) result in the creation of any Lien or other
encumbrance on any asset of Seller or any portion of the Property.
( d) Seller is not a "foreign person" within the meaning of Section 1445 of the
Internal Revenue Code, as amended.
(e) Other than as set forth in the Title Commitment, Seller owns title to the
Property free and clear of all liens, encumbrances and other restrictions. Other than as disclosed
in the Title Commitment, to Seller's Knowledge there are no rights of first refusal, rights of first
offer, rights of first negotiation, or similar rights with respect to the sale of any portion of the
Property.
(t) To Seller's Knowledge, no person has a possessory right or right of
occupancy with respect to the Land.
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DEN-122535-9
(g) There is no pending (or to Seller's Knowledge, threatened) litigation,
arbitration or other legal or administrative suit, action, proceeding or investigation of any kind
involving Seller, the Property or any part thereo£
(h) To Seller's Knowledge, the Property Files that have been delivered or that
will be delivered to Buyer in accordance with Section 4.1 are true, accurate and complete. To
Seller's Knowledge, there are no Real Property Leases with respect to any portion of the
Property.
(i) To Seller's Knowledge, there are no Hazardous Substances or violation of
Environmental Laws affecting the Property, except those disclosed in the Property Files and
Existing Environmental Reports. Except as otherwise disclosed in the Property Files, there are
no pending or, to Seller's Knowledge, threatened actions arising under or pursuant to any
Environmental Laws with respect to or affecting the Property. "Environmental Laws" mean
any and all federal, state and local statutes, codes, laws, regulations, permits, ordinances, orders,
decrees, or other requirements governing, controlling, or regulating Hazardous Substances. The
term "Hazardous Substances" means any substance or material that is regulated as a toxic or
hazardous substance, waste or material or a pollutant or contaminant, or words of similar import,
in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended and reauthorized to date, the Resource Conservation and Recovery Act, as amended
and reauthorized to date, the Federal Water Pollution Control Act, as amended and reauthorized
to date, or the Hazardous Materials Transportation Act, as amended and reauthorized to date, and
includes, without limitation, asbestos, petroleum (including crude oil or any fraction thereof,
natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel, or any
mixture thereof), petroleum products, polychlorinated biphenyls, urea formaldehyde, radon gas,
radioactive matter or medical waste.
(j) No Person constituting Seller has (i) made an assignment for the benefit of
creditors, (ii) filed or had filed against it any petition in bankruptcy, (iii) suffered the
appointment of a receiver to take possession of all or substantially all of its assets, (iv) suffered
the attachment or other judicial seizure of all, or substantially all, of its assets or (v) made an
offer of settlement, extension or composition to its creditors generally.
(k) There are no pending ad valorem property tax appeals that have been filed
by Seller or its affiliates with respect to the Land.
(1) Seller has no knowledge of any violations of any Applicable Law
applicable to the Property.
(m) No condemnation proceedings relating to the Property or any portion
thereof are pending or, to Seller's Knowledge, threatened.
(n) Seller has not received notice, written or otherwise, from any Person
requiring the correction of any condition with respect to any Applicable Law.
( o) Seller's representations and warranties in this Section 7 .1 shall be true and
correct as of the Effective Date, shall be deemed true and correct as of the Closing Date as if
remade by separate certification at that time, and shall survive the Closing for a period of nine
16
DEN-122535-9
(9) months following the Closing (the "Limitations Period"); provided, however, if Buyer or its
successors and assigns provides written notice to Seller asserting a claim on or before
termination of the Limitations Period, then Seller's representations and warranties hereunder
shall not terminate with respect to those matters described in such notice until such matters are
fully and finally resolved by negotiation, arbitration, litigation or other appropriate proceedings.
Between the Effective Date and Closing Date, Seller shall deliver to Buyer written supplemental
statements indicating any changes to the foregoing representations and warranties that Seller has
discovered; Buyer shall have a period of five (5) days from and after receipt of any such written
supplemental statement to notify Seller in writing of Buyer's election to terminate this
Agreement. If Buyer so elects to terminate this Agreement, then (i) the Title Company shall,
without the need for any further consent or approval of Seller, immediately refund the Deposit to
Buyer (provided that upon Buyer's request, Seller shall provide its written authorization for the
return of the Deposit to Buyer), and (ii) the parties will be relieved of any further obligations
hereunder except those matters that expressly survive termination hereof. If Buyer receives a
written supplemental statement from Seller less than five (5) days prior to Closing, the Buyer
may extend the Closing Date such that Buyer has five (5) days to review such written
supplemental statement. In the event Buyer does not so terminate this Agreement within such
period, Buyer shall be deemed to have accepted any changes to the foregoing representations and
warranties set forth in the written supplemental statement delivered by Seller and Buyer will
have no further right to object to such changes. The provisions of this Section 7 .1 ( o) shall
survive Closing.
7.2 Buyer's Representations and Warranties. As of the Effective Date and as of the
Closing Date, Buyer represents and warrants to Seller that:
(a) Buyer is a limited liability company duly organized, validly existing, and
in good standing under the laws of the State of Missouri.
(b) All requisite action has been taken by Buyer in connection with Buyer's
execution of this Agreement, and has been taken or will be taken prior to Closing in connection
with the agreements, instruments or other documents to be executed by Buyer pursuant to this
Agreement and the consummation of the transactions contemplated hereby and thereby. No
consent (not already obtained) of any member, partner, shareholder, creditor, investor, judicial or
administrative body, governmental or quasi-governmental authority or other third party is
required for Buyer to enter into this Agreement and to consummate the transactions
contemplated hereby.
(c) The individuals executing this Agreement and the agreements, instruments
or other documents to be executed by Buyer pursuant to this Agreement on behalf of Buyer each
have been duly authorized to bind Buyer to the terms and conditions hereof and thereof. This
Agreement and the agreements, instruments or other documents to be executed by Buyer
pursuant to this Agreement shall be the legal, valid and binding obligations of Buyer enforceable
in accordance with their terms (subject to applicable laws concerning bankruptcy, insolvency and
rights of creditors generally).
( d) The execution and delivery of, and the performance by Buyer of its
obligations under, this Agreement do not and will not (i) contravene, or constitute a default
17
DEN-122535-9
under, any provision of applicable law or regulation or any agreement, judgment, injunction,
order, decree or other instrument binding upon Buyer, (ii) contravene or conflict with Buyer's
organizational documents, (iii) result in the breach of any of the terms or provisions of, or
constitute a default under, any agreement or other instrument to which Buyer is a party or
(iv) result in the creation of any lien or other encumbrance on any asset of Buyer.
( e) Buyer's representations and warranties in this Section 7.2 shall be true and
correct as of the Effective Date, shall be deemed true and correct as of the Closing Date as if
remade by separate certification at that time, and shall survive the Closing for the Limitations
Period; provided, however, if Seller or its successors and assigns provides written notice to
Buyer asserting a claim on or before termination of the Limitations Period, then Buyer's?
representations and warranties hereunder shall not terminate with respect to those matters
described in such notice until such matters are fully and finally resolved by negotiation,
arbitration, litigation or other appropriate proceedings. Between the Effective Date of this
Agreement and Closing Date, Buyer shall deliver to Seller written supplemental statements
indicating any changes to the foregoing representations and warranties that Buyer has discovered
Seller shall have a period of five ( 5) days from and after receipt of any such written supplemental
statement to notify Buyer in writing of Seller's election to terminate this Agreement. If Seller so
elects to terminate this Agreement, then the Title Company shall return the Deposit to Seller and
both parties will be relieved of any further obligations hereunder except for those matters set
forth herein that expressly survive termination hereof If Seller receives a written supplemental
statement from Buyer less than five (5) days prior to Closing, the Seller may extend the Closing
Date such that Seller has five (5) days to review such written supplemental statement. In the
event Seller does not so terminate this Agreement within such period, Seller shall be deemed to
have accepted any changes to the foregoing representations and warranties set forth in the written
supplemental statement delivered by Buyer and Seller shall have no further right to object to
such changes. The provisions of this Section 7.2(e) shall survive Closing.
8. RISK OF LOSS
8.1 Allocation of Risk. The parties acknowledge that the Property is going to be used
by Buyer for a new development upon Closing. Therefore, the parties agree for purposes of this
paragraph 8.1 to consider the Property as vacant land and Seller shall have no obligation to
restore or repair the Property. Buyer shall be solely responsible for any risk of loss related to any
equipment, materials, improvements or any other thing that Buyer may place or locate on the
Property, except to the extent that such loss is related to Seller's gross negligence or willful
misconduct. Upon Closing, Buyer shall bear the risk of any destruction.
8.2 Taking Prior to Closing. If any portion of the Property is taken by right of, or is
included in any pending action to exercise the right of, eminent domain, prior to Closing, at
Buyer's election:
(a) This Agreement shall remain in effect and the Closing shall nevertheless
occur, and Buyer shall thereupon become entitled to the entire award or proceeds received or
receivable for the portion of the Property taken; or
18
DEN-122535-9
(b) Buyer may terminate this Agreement by written notice to Seller, in which
case the Deposit, shall be returned to Buyer and each party shall be relieved of all further
obligations hereunder.
Buyer shall deliver written notification of its election hereunder to Seller within ten (10)
Business Days after receiving written notice of such taking or eminent domain action (but in any
event before the Closing Date; provided, however, that Buyer may extend the Closing Date by
ten (10) Business Days if necessary to give Buyer necessary time to respond under this Section
8.2.
9. BREACH
9.1 Notice of Default. In the event either party is in default of any provision hereof,
the non-defaulting party, as a condition precedent to its remedies, must give the defaulting party
written notice of the default in strict accordance with the notice provisions set forth in Section
10.2. The defaulting party shall have ten (10) Business Days from receipt of such notice to cure
the default; provided, however, that such IO-Business Day period may be extended by the
number of days it takes to cure such default (not to exceed ninety (90) days) so long as the
defaulting party is actively pursuing a cure for such default. If the defaulting party timely cures
the default, the default shall be deemed waived, and this Agreement shall continue in full force
and effect. If the defaulting party does not timely cure such default, the non-defaulting party
shall be entitled to purse the remedies set forth in this Article 9. The foregoing shall not apply to
the parties' respective obligations concerning payment of the Deposit and/or obligation to close
the transactions contemplated in this Agreement. In the event a written notice of default is
served on a party within ten (10) Business Days of the Closing, then the Closing Date shall be
extended to allow for cure as set forth herein.
(a) Liquidated Damages-Seller's Remedy. Provided that this Agreement has
not been terminated in accordance with the terms hereof or otherwise by mutual written
agreement of the parties, if Buyer defaults in its obligation to close and pay the Purchase Price,
Seller shall be entitled, as its sole and exclusive remedy, to terminate this Agreement and retain
the Deposit as liquidated damages, in which event the parties shall have no further rights or
obligations under this Agreement (except as provided herein with respect to obligations which
are expressly identified to survive termination of this Agreement).
IF THIS AGREEMENT TERMINATES PURSUANT TO THIS SECTION,
RETENTION OF THE DEPOSIT AS LIQUIDATED DAMAGES SHALL BE
SELLER'S EXCLUSIVE REMEDY FOR BUYER'S BREACH OF THE
OBLIGATION TO PURCHASE THE PROPERTY, WHICH SUM SHALL BE
PRESUMED TO BE THE AMOUNT OF ACTUAL DAMAGES SUSTAINED
BY SELLER BY REASON OF BUYER'S BREACH. BUYER AND SELLER
AGREE THAT, DUE TO THE NATURE OF THE TRANSACTION, IT
WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO
DETERMINE THE ACTUAL DAMAGES SELLER WOULD SUSTAIN
SHOULD BUYER BREACH ITS OBLIGATION TO PURCHASE THE
PROPERTY. BUYER AND SELLER AGREE THAT LIQUIDATED
DAMAGES ARE APPROPRIATE FOR THIS TRANSACTION AND AGREE
19
DEN-122535-9
THAT THE DEPOSIT REPRESENTS A REASONABLE ESTIMATE OF THE
DAMAGES SELLER WOULD SUSTAIN BY VIRTUE OF BUYER'S
FAILURE TO PERFORM ITS OBLIGATION TO PURCHASE THE
PROPERTY.
(b) Buyer's Remedies. If Seller defaults under this Agreement, Buyer shall
have a right to (i) terminate this Agreement in which case the Title Company is instructed to
return the Deposit, to Buyer and/or (ii) bring a claim against Seller for damages, including
without limitation, special, incidental or consequential damages. In the event of termination,
Seller shall be responsible for any escrow cancellation fees, if any, and all reasonable expenses
paid or incurred by Buyer in connection with this Agreement up to an amount not to exceed
$25,000.
9.2 Post-Closing Remedies. If, after the Closing, Seller or Buyer fails to perform its
obligations which expressly survive the Closing, or if either party discovers a breach of a
representation during the Limitations Period, then Seller or Buyer, as the case may be, may
exercise any remedies available to it at law or in equity or damages.
10. GENERAL PROVISIONS
10.1 Successors and Assigns. This Agreement shall be binding on and inure to the
benefit of the parties hereto and their respective successors and assigns. This Agreement may
not be assigned by Seller, in whole or in part, without the prior written consent of Buyer. This
Agreement may be assigned by Buyer, in whole or in part, to any Affiliate of Buyer without
the prior written consent of Seller; provided, however, that Buyer shall deliver to Seller prior
written notice of any such assignment. Any other assignment of this Agreement by Buyer shall
require the prior written consent of Seller in its sole discretion.
10.2 Notices. Any notice or other communication required or permitted to be given
under this Agreement ("Notices") shall be in writing and shall be (a) personally delivered;
(b) delivered by a nationally-recognized overnight courier; or (c) delivered by certified mail,
return receipt requested and deposited in the U.S. Mail, postage prepaid. In each of the
cases (a), (b) or (c) above, such notice shall also be delivered by email at the addresses set forth
below. Notices shall be deemed received (1) upon actual receipt in the case of personal
delivery; (2) one Business Day after deposit with a nationally-recognized overnight courier as
evidenced by a receipt of deposit; (3) three Business Days following deposit in the U.S. Mail,
as evidenced by a return receipt; or ( 4) upon being sent to the appropriate email addresses
listed below with confirmation of receipt. Notices shall be directed to the parties at their
respective addresses shown below, or such other address as either party may, from time to
time, specify in writing to the other in the manner described above:
20
DEN-122535-9
If to Buyer, at:
Quadrant Wheat Ridge Comers, LLC
c/o Quadrant Properties
981 Southpark Drive
Littleton, CO 80120
Attn: Robert Turner
Phone: (303) 800-0921
E-mail: btumer@quadrantcolorado.com
With a copy to:
Quadrant Properties
353 Marshall Ave., Suite i
St. Louis, MO 63119
Attn: Rodney Jones
Phone: 314-227-6050
E-mail: RJ@quadprop.com
The Kroenke Group
Attn: Jason Meyerpeter
211 N. Stadium Blvd., Suite 201
Columbia, MO 65203
Phone:573-449-8323
Email: jmeyerpeter@thekroenkegroup.com
Husch Blackwell LLP
1700 Lincoln Street, Suite 4700
Denver, CO 80203-4547
Attn: Robert Detrick
Phone: 303.892.4448
E-mail: Robert.Detrick@huschblackwell.com
Husch Blackwell LLP
190 Carondelet Plaza, Suite 600
St. Louis, MO 63105
Attn: J. Andrew Crossett
Phone:314-480-1638
E-mail: Andrew.Crosset@huschblackwell.com
If to Seller at:
DEN-122535-9
Patrick Goff
City Manager
City of Wheat Ridge
7500 W. 29th Ave.
Wheat Ridge, CO 80033
21
Phone: 303-235-2805
E-mail: pgoff@ci.wheatridge.co.us
And:
Steve Art
Executive Director
Renewal\VheatRidge
7500 W. 29th Ave.
\Vheat Ridge, CO 80033
Phone: 303-235-2806
E-mail: sart@ci.wheatridge.co.us
With a copy to:
Hoffinann, Parker, Wilson & Carberry
511 16th St., Suite 610
Denver, CO 80202
Attn: Corey Hoffinann
Phone: 303-951-2094
E-mail: cyh@cpwclaw.com
10.3 Attorney's Fees. -In any action or proceeding arising out of this Agreement,
each party shall bear its own attorney's fees, and the prevailing party shall be entitled to
recover only court costs from the non-prevailing party incurred by such party in enforcing its
rights hereunder. This Section shall survive the termination of this Agreement or Closing, as
appropriate.
10.4 Time of the Essence. Time is of the essence in this Agreement as to each
provision in which time is an element of performance.
10.5 No Ri1rhts or Obligations to Third Parties. Except as otherwise expressly
provided in this Agreement, the execution and delivery of this Agreement shall not be deemed
to confer any rights upon, nor obligate any of the parties, to any person or entity other than
Seller and Buyer.
10.6 Review b y Counsel. Each party and its counsel have reviewed and approved
this Agreement and any ambiguities shall not be resolved against the drafting party.
10. 7 Effectiveness of A greement. This Agreement shall not be effective and shall
not be binding on Buyer and Seller unless and until fully executed and delivered by Buyer and
Seller.
10.8 Dates not Falling on a Business Day. If any deadline by or on which any action
specified in this Agreement is to occur falls on a day that is not a Business Day, then such
deadline shall be deemed extended to the next Business Day.
22
DEN-122535-9
10.9 Entire Agreement. This Agreement sets forth the entire agreement between the
parties regarding the Property and supersedes any prior agreements, negotiations or
understandings of the parties.
10.10 Governing Law. This Agreement shall be governed by the laws of the State of
Colorado irrespective of conflicts of law principals.
10.11 Severability. If any provision of this Agreement is invalid or unenforceable, the
remaining provisions shall not be affected thereby, and every provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
10.12 Amendment. The terms of this Agreement may not be modified or amended
except by an instrument in writing executed and delivered by Seller and Buyer.
10.13 Waiver. The waiver or failure by either to enforce any provision of this
Agreement shall not operate as a waiver of any future breach of any such provision or any
other provision of this Agreement.
10.14 Incorporation. All recitals set forth above and the Exhibits attached to this
Agreement are an integral part of this Agreement and are incorporated into this Agreement by
reference.
10.15 Jurisdiction and Venue. The parties agree that District Court of Jefferson
County, Colorado shall have exclusive jurisdiction and venue over all controversies in
connection with this Agreement and hereby submit to such jurisdiction and venue and waive
the defense of forum non conveniens.
10.16 Patriot Act: US Foreign Corrupt Practices Act. Each party hereto represents and
warrants to the other parties hereto as follows:
(a) Design ated Persons. Each party hereto (the "Subject Party") hereby
represents and warrants, each to the other party hereto, that the Subject Party, nor to the Subject
Party's knowledge, any of its officers, directors, shareholders, partners, members or associates,
and no other direct or indirect holder of any equity interest in such Subject Party, if applicable, is
an entity or person: (i) that is listed in the Annex to, or is otherwise subject to, the provisions of
United States Presidential Executive Order 13224 issued on September 24, 2001 (the "Executive
Order"); (ii) whose name appears on the U.S. Department of the Treasury, Office of Foreign
Assets Control's ("OFAC") most current list of "Specifically Designated National and Blocked
Persons" (which list may be published from time to time in various mediums including, but not
limited to, the OFAC website, www.treas.gov/ofac); (iii) who commits, threatens to commit or
supports "terrorism" (as such term is defined in the Executive Order); or (iv) who is otherwise
affiliated with any entity or person listed above.
(b) Corrupt Practices. No portion of the Closing proceeds hereunder has been
or will be used, directly or indirectly for, and no fee, commission, rebate or other value has been
or will be paid to, or for the benefit of, any governmental official, political party, official of a
political party or any other Person acting in an official capacity in violation of any applicable
law, including the U.S. Foreign Corrupt Practices Act of 1977, as amended.
23
DEN-122535-9
10.17 Waiver of Jury Trial. The parties hereto hereby waive the right to a jury trial in
any action or proceeding based upon, or related to any aspect to the transactions contemplated
by, this Agreement.
10.18 Countemarts. This Agreement may be executed in any number of counterparts,
including electronically scanned counterparts, each of which shall be deemed to be an original
and all of which counterparts taken together shall constitute one agreement.
10.19 General Cooperation. Notwithstanding any other provision of this Agreement to
the contrary, and notwithstanding the Closing of the sale of the Property to Buyer, Buyer and
Seller agree in good faith before and after such Closing to execute such further or additional
documents, and to take such other actions, as may be reasonably necessary or appropriate to fully
carry out the intent and purpose of the parties as set forth in this Agreement. Without limiting
the parties' general requirement of cooperation as set forth herein, Seller, prior to Closing, shall
reasonably cooperate with and assist Buyer in obtaining the Governmental Approvals
10.20 Survival of Provisions. Any provisions of this Agreement which require
observance or performance after the date of Closing shall continue in force and effect following
the Closing.
10.21 Brokerage. Each party represents to the other that no brokers have been involved
in this transaction. It is agreed that if any Claims for brokerage commissions or fees are made
against Buyer or Seller, all such Claims shall be handled and paid by the party whose actions or
alleged commitments form the basis of such Claim. This Section 10.21 shall survive Closing.
10.22 No Recording. Buyer shall not record this Agreement nor any memorandum of
this Agreement without the prior written consent of Seller.
[Signatures appear on the following page.]
24
DEN-122535-9
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
dates set forth below to be effective as of the Effective Date.
Steve Art, Secretary
DEN-122535-9
SELLER:
Wheat Ridge Urban Renewal Authority,
d/b/a Renewal Wheat Ridge
By:.-----,-~ ct--
Tim Rogers, Chairman
BUYER:
Quadrant Wheat Ridge Corners, LLC,
a Missouri limited liability company
By: _____________ ~
Name: ~-----------~ Title: -----------~-
Date:-------------
EXHIBIT A
LAND
The South 30 feet of the North 228 feet of Tract 1, Adkins Subdivision, County of Jefferson,
State of Colorado.
Exh. A-1
DEN-122535-9
IN WITNESS WHEREOF, Seller and Buyer have executed this Agreement as of the
dates set forth below to be effective as of the Effective Date.
ATTEST:
Steve Art, Secretary
DEN-122535-9
SELLER:
Wheat Ridge Urban Renewal Authority,
d/b/a Renewal Wheat Ridge
By:
Tim Rogers, Chairman
BUYER:
Quadrant Wheat Ridge Corners, LLC,
a Missouri limited liability company
By:~c..,...-----=-.~~---±-;;l-~~~~~~
Name:~--.,,,~~q..__.~~~~~~~-+--
Title: _c_~~n.i~~~~~'!f!..!.~~~~~-""
Date: ~~~~~~~~~~~~~~
EXHIBIT A
LAND
The South 30 feet of the North 228 feet of Tract 1, Adkins Subdivision, County of Jefferson,
State of Colorado.
Exh. A-1
DEN-122535-9
EXHIBITB
FORM OF DEED
When recorded, return to:
BARGAIN AND SALE DEED
THIS BARGAIN AND SALE DEED made this __ day of , 20 __ ,
between Wheat Ridge Urban Renewal Authority, d/b/a Renewal Wheat Ridge (the "Grantor"),
whose mailing address is , and (the "Grantee"),
whose mailing address is ________ _
Witnesseth, Grantor, for and in consideration of the sum of Ten and N0/100 Dollars
($10.00) and other good and valuable consideration in hand paid by the Grantee, the receipt and
sufficiency of which are hereby acknowledged, does hereby grant, bargain, sell, convey and
confirm unto Grantee, its successors and assigns forever, all of Grantor's interest, if any, in and
to that certain real property, situate, lying and being in the County of Jefferson, State of
Colorado, described as follows:
See Exhibit A attached hereto and incorporated herein,
also known by street number as 3790 Yukon Court, Wheat Ridge, Colorado 80033,
together with (i) all improvements owned by Grantor and located thereon, if any, and (ii) all
rights, privileges, easements and appurtenances owned by Grantor appertaining thereto, if any,
and (iii) all right, title, and interest in and to and under adjoining streets, rights of way and
easements, if any.
[Signatures follow]
Exh. B -I
DEN-122535-9
In Witness Whereof, Grantor has executed this Deed to be effective as of the date first set
forth above.
)
) SS.
)
Witness my hand and official seal.
Wheat Ridge Urban Renewal Authority,
d/b/a Renewal Wheat Ridge
B; \~ k
Name: ~1 l"V"'\, \.2.. 0<.::::.E:_Q_,:s
Title: C. ~ ~" n..n..-. ~
Date: 12-"t...-z......-}b
day of
l of
My commission expires: _ _,/'--D--+-/J-9"'· _3"""-+/_'J._Q-1---
(SEAL)
KAREN J. VAN ERi sTmr~~ NOTARYI02~
MV COMUSSION EXPIRES OCTOBER 23, 2019
Exh. B-2
DEN-122535-9
~44~·~ Notary~
EXHIBITB
FORM OF DEED
When recorded, return to:
BARGAIN AND SALE DEED
THIS BARGAIN AND SALE DEED made this __ day of , 20 __ ,
between Wheat Ridge Urban Renewal Authority, d/b/a Renewal Wheat Ridge (the "Grantor"),
whose mailing address is . and (the "Grantee"),
whose mailing address is ________ _
Witnesseth, Grantor, for and in consideration of the sum of Ten and NO/I 00 Dollars
($10.00) and other good and valuable consideration in hand paid by the Grantee, the receipt and
sufficiency of which are hereby acknowledged, does hereby grant, bargain, sell, convey and
confirm unto Grantee, its successors and assigns forever, all of Grantor's interest, if any, in and
to that certain real property, situate, lying and being in the County of Jefferson, State of
Colorado, described as follows:
See Exhibit A attached hereto and incorporated herein,
also known by street number as 3790 Yukon Court, Wheat Ridge, Colorado 80033,
together with (i) all improvements owned by Grantor and located thereon, if any, and (ii) all
rights, privileges, easements and appurtenances owned by Grantor appertaining thereto, if any,
and (iii) all right, title, and interest in and to and under adjoining streets, rights of way and
easements, if any.
... '.,/-
~I. ~ f y _. ~\
'.:, '" .J
'<.
[Signatures follow]
Exh. B - I
DEN-122535-9
Exh.C
DEN-122535-9
First American Title Insurance Company
National Commercial Services
Date:
Escrow No:
Property: 7690 W. 38th Ave., Wheat Ridge, CO 80033
Escrow Receipt
Escrow Officer: Katie Miller
Phone: (303)876-1120
The undersigned, FIRST AMERICAN TITLE INSURANCE COMPANY NATIONAL COMMERCIAL
SERVICES {"Escrow Agent"), acknowledges receipt of $ (the
"Deposit") to be held pursuant to the Purchase and Sale Agreement (the "Purchase
Agreement") between Quadrant Wheat Ridge Corners, LLC ("Buyer") and Wheat Ridge Urban
Renewal Authority, d/b/a Renewal Wheat Ridge ("Seller"), to which this Escrow Receipt is
attached. Escrow Agent agrees to hold the Deposit in accordance with the terms of the
Purchase Agreement and disburse the same strictly in accordance with such terms. Escrow
Agent shall invest the Deposit in an interest-bearing account, and interest shall accrue for the
benefit of the parties as set forth in the Purchase Agreement.
The interest-bearing account shall, for tax purposes, be held under the tax identification
number of the Buyer.
Buyer and Seller represent that their respective Tax I.D. Numbers are:
Buyer: ___________ _ Seller:
Escrow Agent shall have no responsibility for any decision concerning performance of
effectiveness of the Purchase Agreement or to resolve any disputes concerning the Purchase
Agreement or with regard to the Deposit. Escrow agent shall be responsible only to act in
accordance with the joint and mutual direction of both Buyer and Seller, or in lieu thereof, the
direction of a court of competent jurisdiction. Buyer and Seller undertake to hold Escrow
Agent harmless from all claims for damages arising out of this Escrow Receipt and, to the
extent permitted by applicable law, do hereby agree to indemnify Escrow Agent for all costs
and attorney's fees except for Escrow Agent's failure to account for the funds held hereunder,
or acting in conflict with the terms hereof.
(Signatures on Following Page)
Escrow Agent
FIRST AMERICAN TITLE INSURANCE COMPANY NATIONAL COMMERCIAL
SERVICES
By: ____________ ~
Its: _____________ _
Buyer:
Quadrant Wheat Ridge Corners, LLC,
a Missouri limited liability company
By:-----------Name:~----------Title: __________ _
Exh.C
DEN-122535-9
Seller:
Wheat Ridge Urban Renewal
Authority, d/b/a Renewal Wheat
Ridge, a Colorado urban renewal
authority and body corporate and politic
By: \~O-
Name:-=r, j"h, ~'S"
Title: (); A \~ICN
Exhibit A
Legal Description
The South 30 feet of the North 228 feet of Tract 1, Adkins Subdivision, County of Jefferson,
State of Colorado.
Exh. A to Exh. B
DEN-122535-9
DEN-122535-9
EXHIBITC
ESCROW AGREEMENT
(see attached)
Exh.C
Exh.C
DEN-122535-9
First American Title Insurance Company
National Commercial Services
Date:
Escrow No:
Property: 7690 W. 38th Ave., Wheat Ridge, CO 80033
Escrow Receipt
Escrow Officer: Katie Miller
Phone: (303)876-1120
The undersigned, FIRST AMERICAN TITLE INSURANCE COMPANY NATIONAL COMMERCIAL
SERVICES ("Escrow Agent"), acknowledges receipt of $ (the
"Deposit") to be held pursuant to the Purchase and Sale Agreement (the "Purchase
Agreement") between Quadrant Wheat Ridge Corners, LLC ("Buyer") and Wheat Ridge Urban
Renewal Authority, d/b/a Renewal Wheat Ridge ("Seller"), to which this Escrow Receipt is
attached. Escrow Agent agrees to hold the Deposit in accordance with the terms of the
Purchase Agreement and disburse the same strictly in accordance with such terms. Escrow
Agent shall invest the Deposit in an interest-bearing account, and interest shall accrue for the
benefit of the parties as set forth in the Purchase Agreement.
The interest-bearing account shall, for tax purposes, be held under the tax identification
number of the Buyer.
Buyer and Seller represent that their respective Tax I.D. Numbers are:
Buyer: ___________ _ Seller:
Escrow Agent shall have no responsibility for any decision concerning performance of
effectiveness of the Purchase Agreement or to resolve any disputes concerning the Purchase
Agreement or with regard to the Deposit. Escrow agent shall be responsible only to act in
accordance with the joint and mutual direction of both Buyer and Seller, or in lieu thereof, the
direction of a court of competent jurisdiction. Buyer and Seller undertake to hold Escrow
Agent harmless from all claims for damages arising out of this Escrow Receipt and, to the
extent permitted by applicable law, do hereby agree to indemnify Escrow Agent for all costs
and attorney's fees except for Escrow Agent's failure to account for the funds held hereunder,
or acting in conflict with the terms hereof.
(Signatures on Following Page)
Exh.C
DEN-122535-9
Escrow Agent
FIRST AMERICAN TITLE INSURANCE COMPANY NATIONAL COMMERCIAL
SERVICES
By: ___________ ~
I~: ____________ ~
Buyer:
Quadrant Wheat Ridge Corners, LLC,
a Missouri limited liability company
By:-----------Name: __________ _
Title:------------
Seller:
Wheat Ridge Urban Renewal
Authority, d/b/a Renewal Wheat
Ridge, a Colorado urban renewal
authority and body corporate and politic
By: __________ _
Name: __________ _
Title:------------