EXHIBIT 2.01
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the 17th
day of October, 2001, by and between ▇▇▇▇▇▇▇ COMPANIES, INC., an Oklahoma
corporation, ("Seller"), and BROOKE CORPORATION, a Kansas corporation
("Purchaser").
Recitals
A. Seller is the fee owner of certain land (the "Land"), in the City of
Phillipsburg, County of ▇▇▇▇▇▇▇▇, State of Kansas, more particularly described
as follows:
Lot One (1) and the North Twenty (20) feet of Lots Two (2), Three (3), Four
(4) and Five (5), in Replat of Block One (1), ▇▇▇ ▇▇▇▇▇ Addition to the
City of Phillipsburg, ▇▇▇▇▇▇▇▇ County, Kansas.
B. As used in this Agreement, the term "PROPERTY" includes all of the
following:
The Land together with (a) all reversions, remainders, easements,
rights-of-way, appurtenances and hereditaments appertaining to or otherwise
benefiting or used in connection with the Land, (b) any and all improvements
located on or appurtenant to the Land, including the building constructed
thereon, and (c) all of Seller's right, title and interest in and to any strips
of land, streets, and alleys abutting or adjoining the Land.
C. Seller desires to sell to Purchaser and Purchaser desires to purchase
from Seller the Property, upon and subject to the terms and conditions set forth
in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the obligations and undertakings
hereinafter set forth and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, it is agreed as follows:
ARTICLE 1
PURCHASE AND SALE OF THE PROPERTY
1.1 PURCHASE. For the consideration hereinafter set forth, but subject to
the terms, provisions, covenants and conditions contained herein, Seller hereby
agrees to sell and convey by marketable title to Purchaser, and Purchaser agrees
to purchase from Seller, all of the Property.
1.2 PURCHASE PRICE. The purchase price for the Property shall be TWO
HUNDRED FIFTY THOUSAND & NO/100 DOLLARS ($250,000).
(a) DEPOSIT. Within three business days after this Agreement has
been executed by both Seller and Purchaser, Purchaser will deliver its check in
the amount of FIVE THOUSAND & NO/100 DOLLARS ($5,000) (the "▇▇▇▇▇▇▇ MONEY
DEPOSIT") to Mid America Real Estate of Phillipsburg (the "ESCROW AGENT"). The
Escrow Agent will upon receipt deposit the ▇▇▇▇▇▇▇ Money Deposit in an
interest-bearing account and hold and disburse the same pursuant to the terms of
this Agreement (the ▇▇▇▇▇▇▇ Money Deposit, to the extent so paid by Purchaser to
the Escrow Agent, and all interest earned thereon are hereinafter collectively
called the "DEPOSIT"). The Deposit will be credited against the Purchase Price
at the closing of the transaction contemplated hereby (the "CLOSING").
(b) BALANCE. The balance of the Purchase Price, subject to closing
adjustments, will be paid at the Closing.
ARTICLE 2
SELLER'S REPRESENTATIONS AND WARRANTIES
Seller represents and warrants to Purchaser as follows:
2.1 NO ACTIONS. There are no actions, suits, proceedings or claims pending
or, to the best of Seller's knowledge, threatened with respect to or in any
manner affecting the Property or the ability of the Seller to consummate the
transaction contemplated by this Agreement.
2.2 EMINENT DOMAIN. There are no pending or threatened condemnation, or
similar proceedings affecting the Property, or any part thereof, and to the best
of Seller's knowledge, no such proceeding is contemplated by any governmental
authority.
2.3 AUTHORITY. Seller is a duly organized and existing corporation and in
good standing under the laws of the State of Oklahoma. Seller has the full right
and authority to enter into this Agreement and consummate the transaction
contemplated by this Agreement. All requisite action has been taken by Seller in
connection with the entering into of this Agreement, the instruments referenced
herein, and the consummation of the transaction contemplated hereby. Each of the
persons signing this Agreement on behalf of Seller is authorized to do so.
Seller will furnish to Purchaser any and all documents to evidence such
authority as Purchaser reasonably requests.
2.4 BINDING OBLIGATIONS. No third party approval or consent is required to
enter into this Agreement or to consummate the transaction contemplated hereby.
To the best of Seller's knowledge, the entering into and consummation of the
transactions contemplated hereby will not conflict with, or with or without
notice or the passage of time or both, constitute a default under, any contract,
lease or other agreement to which Seller is a party or by which Seller may be
bound or of any law, rule, license, regulation, judgment, order or decree
governing or affecting Seller or the Property. This Agreement and all documents
2
required hereby to be executed by Seller are and will be valid, legally binding
obligations of and enforceable against Seller in accordance with their terms.
2.5 DISCLAIMER. Purchaser acknowledges and agrees that Seller has not made
any representations or warranties of any kind or character, whether expressed or
implied, in connection with the Property and Purchaser agrees to accept the
Property in its "as is, where is" condition. Purchaser acknowledges that it is
relying on its own inspection and investigation of the Property and is not
relying on any representations or warranties of Seller whatsoever with respect
to the physical condition of the Property.
ARTICLE 3
PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants to Seller as follows:
3.1 AUTHORITY. Purchaser is a corporation duly organized and existing and
in good standing under the laws of the State of Kansas. Purchaser has the full
right and authority to enter into this Agreement and consummate the transaction
contemplated by this Agreement. All requisite action has been taken by Purchaser
in connection with the entering into of this Agreement, the instruments
referenced herein, and the consummation of the transaction contemplated hereby.
Each of the persons signing this Agreement on behalf of Purchaser is authorized
to do so. Purchaser will furnish to Seller any and all documents to evidence
such authority as Seller reasonably requests.
3.2 BINDING OBLIGATIONS. No third party approval or consent is required to
enter into this Agreement or to consummate the transaction contemplated hereby.
To the best of Purchaser's knowledge, the entering into and consummation of the
transactions contemplated hereby will not conflict with, or with or without
notice or the passage of time or both, constitute a default under, any contract,
lease or other agreement to which Purchaser is a party or by which Purchaser may
be bound or of any law, rule, license, regulation, judgment, order or decree
governing or affecting Purchaser. This Agreement and all documents required
hereby to be executed by Purchaser are and will be valid, legally binding
obligations of and enforceable against Purchaser in accordance with their terms.
ARTICLE 4
SELLER'S UNDERTAKINGS PENDING CLOSING
4.1 OPERATION OF THE PROPERTY. Until the earlier of the Closing or the
termination of this Agreement, Seller undertakes and agrees as follows:
(a) Not to do anything which would impair or modify the status of
title as shown on the title commitment, which Purchaser May elect to obtain at
its expense for its review within 10 days after execution of this Agreement.
3
(b) Not to enter into any lease or other contract which, following
Closing, will be binding upon Purchaser or the Property without, in each
instance, obtaining the prior written approval of Purchaser.
(c) Not to permit any transfer of any of Seller's interest in the
Property, nor permit any encumbrance of same.
4.2 ADVISE PURCHASER. Until the earlier of the Closing or the termination
of this Agreement, Seller agrees to notify Purchaser promptly upon learning or
receiving notice, whichever first occurs, of:
(a) Any fact or event which would make any of the representations or
warranties of Seller contained in this Agreement untrue or misleading in any
material respect or which would cause Seller to be in violation of any of its
covenants or other undertakings or obligations hereunder.
(b) Any proposed change (other than changes proposed by Purchaser)
in any zoning or law affecting the use or development of the Property, or any
part thereof.
(c) Any pending or threatened litigation which affects the Property
or any part thereof.
(d) Any threatened or pending proceedings in condemnation, bankruptcy
or insolvency which would affect the Property or any person or entity owning any
interest therein.
ARTICLE 5
PURCHASER'S OBLIGATION TO CLOSE
Purchaser will not be obligated to close hereunder unless each of the
following conditions have been satisfied or waived by Purchaser on the "Closing
Date" (as defined in Section 6.1):
5.1 TITLE POLICY. Purchaser will on execution of this Agreement order a
commitment for an ALTA owner's policy of title insurance (the "Title Policy")
insuring marketable fee simple title to the Property in Purchaser in the amount
of the Purchase Price. Any exceptions disclosed in the title commitment not
objected to by Purchaser within 10 days after receipt thereof from the Title
Insurance Company are deemed accepted by Purchaser.
5.2 ACCURACY OF REPRESENTATIONS. The representations and warranties made
by Seller in Article 2 are true and correct on and as of the Closing Date with
the same force and
4
effect as though such representations and warranties had been made on and as of
the Closing Date.
5.3 SELLER'S PERFORMANCE. Seller has performed all covenants and
obligations and complied with all conditions required by this Agreement to be
performed or complied with by Seller on or before the Closing Date.
5.4 INDUSTRIAL REVENUE BONDS. Purchaser secures (i) from ▇▇▇▇▇▇▇▇ County,
Kansas its agreement for abatement of real estate taxes and intent to issue
Industrial Revenue Bonds ("Bonds") for the project, and (ii) from the City of
Phillipsburg, its agreement for abatement of City sales taxation. Purchaser will
proceed immediately upon execution of this Agreement to seek such Intent to
Issue and such City Tax Abatement.
5.5 FAILURE OF CONDITIONS. If any condition specified in Sections 5.1,
5.2, 5.3 or 5.4 above is not satisfied on or before the Closing or such other
date as is specified, then at Purchasers option, (i) if Seller notifies
Purchaser (which Seller will have no obligation to do) that Seller would like to
attempt to cure or satisfy any such condition that is susceptible of cure,
Purchaser may extend the date for Closing to allow Seller a sufficient time (but
not to exceed 10 days) within which to cure or satisfy any such condition, in
which case Seller will immediately commence prosecution of such cure or
satisfaction and diligently pursue same to completion, at which time a new
Closing will be scheduled within 3 days after completion of such cure or
satisfaction, (ii) Purchaser may waive such condition either at the time
originally established for Closing or thereafter prior to the end of the cure
period, (iii) Purchaser may terminate this Agreement by written notice thereof
to Seller, either at the time originally established for Closing or at the end
of the cure period provided pursuant to clause (i) above, if at such time such
condition has not been cured, in which case the Deposit will be returned to
Purchaser and the parties will thereupon be relieved of all further obligations
hereunder, or (iv) if the failure of the condition is due to a breach by Seller
hereunder, Purchaser may pursue any of its remedies under Section 10.1.
ARTICLE 6
CLOSING
6.1 TIME OF CLOSING. The Closing Date will be fifteen (15) days after
satisfaction of the conditions set forth in Sections 5.1 and 5.4 above, or such
other date as may be mutually agreed to by the parties. The Closing will take
place at 10:00 a.m. at the offices of the Escrow Agent on the Closing Date. If
Closing does not occur, the Deposit will be returned to Purchaser, retained by
Seller, or otherwise dealt with, all as provided elsewhere in this Agreement.
6.2 DELIVERIES. At the Closing the following will occur:
5
(a) Seller will deliver to Purchaser a duly executed and acknowledged
special warranty deed conveying the Property to Purchaser, free and clear of all
matters affecting title, except for the exceptions disclosed in the Title
Policy. The deed shall contain a restriction precluding the use of the Property
as a grocery store or supermarket for a period of fifteen (15) years after
recordation of the deed.
(b) Seller will cause the Title Company to issue to Purchaser, or
unconditionally commit to issue to Purchaser after Closing, the Title Policy.
(c) Purchaser will pay to Seller the balance of the Purchase Price,
subject to the adjustments described in Article 7.
(d) Possession of the Property will be delivered to Purchaser.
(e) Seller will execute and deliver to Purchaser and the Title
Company an affidavit that evidences that Seller is exempt from the withholding
requirements of Section 1445 of the Internal Revenue code of 1986, as amended.
(f) Seller will execute and deliver to the Title Company such
agreements or statements concerning parties in possession of the Property or
claims for mechanic's liens as may be required by the Title Company in order to
issue the Title Policy.
(g) Seller will, whenever and as often as it is reasonably requested
so to do by Purchaser, and Purchaser will, whenever and as often as it is
reasonably requested so to do by Seller, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, any and all conveyances,
assignments and all other instruments and documents as may be reasonably
necessary in order to complete the transaction herein provided and to carry out
the intent and purposes of this Agreement.
ARTICLE 7
PRORATIONS AND CLOSING EXPENSES
7.1 CLOSING ADJUSTMENTS. The cash due at Closing pursuant to Section 1
will be subject to adjustment as of the Closing Date in accordance with the
following provisions:
(a) TAXES: Real property taxes and special assessments (if any) on
the Property will be prorated to the Closing based on the most recent assessed
valuations and mill levy available, which proration will be adjusted in cash
between Seller and Purchaser promptly after presentation of written evidence
that the actual taxes payable for the tax year in which the Closing occurs
differ from the amounts used for proration purposes at Closing. Prior to
Closing, Seller will pay all taxes on the Property as and when they become due
and prior to delinquency.
6
(b) LIENS AND ENCUMBRANCES. The amount of any lien, mortgage or other
monetary judgement or encumbrance then affecting the Property will be paid from
the funds to which Seller will otherwise be entitled.
(c) CLOSING COSTS. Seller will pay the cost of recording any
instruments required to discharge any liens or encumbrances against the
Property, and Seller's other customary closing costs. Purchaser will pay the
cost of recording Seller's deed, the premium for the Title Policy and
Purchaser's other customary closing costs.
7.2 SETTLEMENT SHEET. At the Closing, Seller and Purchaser will execute a
Closing settlement sheet to reflect the credits, prorations, and adjustments
contemplated by or specifically provided for in this Agreement.
ARTICLE 8
CASUALTY DAMAGE
8.1 NOTICE. In the event that any of the Property should be damaged by any
casualty prior to Closing, Seller will promptly give Purchaser written notice of
such occurrence.
8.2 TERMINATION. In the event of any such casualty damage occurring prior
to Closing, Seller shall have the option of either terminating this Agreement by
notice to Purchaser within twenty (20) days after such casualty, or electing to
proceed with the sale. If Seller elects to proceed with the sale, Purchaser
shall have ten (10) days after such election by Seller to either terminate this
Agreement or purchase the Property pursuant to the terms of this Agreement
without adjustment in the Purchase Price, but in the latter event all insurance
proceeds shall be assigned to Purchaser.
ARTICLE 9
CONDEMNATION
9.1 NOTICE. If prior to Closing Seller learns of any actual or threatened
taking in condemnation or by eminent domain (or a sale in lieu thereof) of all
or any portion of the Property, Seller will notify Purchaser promptly thereof.
9.2 TERMINATION. Any actual or threatened taking or condemnation for any
public or quasi-public purpose or use by any competent authority in appropriate
proceedings or by any right of eminent domain of all or any part of the Property
between the date of this Agreement and the Closing Date will, at Purchaser's
option, cause a termination of this Agreement. The election to terminate
provided hereby must be exercised by Purchaser (or will be deemed to have been
waived) by notice to Seller to that effect given within 20 days following
Purchaser's receipt of Seller's notice pursuant to Section 9.1. Upon delivery of
such termination notice, the Deposit will be returned to Purchaser and both
parties will be relieved
7
of any further obligations hereunder. If Purchaser does not elect to so
terminate this Agreement, Purchaser shall pay the purchase price without
adjustment for the condemnation and Seller will be relieved of all obligations
under this Agreement with respect to the portion of the Property so taken or
condemned, but Purchaser will be entitled to receive all proceeds of any such
condemnation, and Seller agrees that it will not make any adjustment or
settlement of any such proceeds or condemnation proceeding without Purchaser's
consent and will take at Closing all action necessary to assign its entire
interest in such award to Purchaser.
ARTICLE 10
REMEDIES
10.1 BREACH BY SELLER. Time is of the essence with respect to Seller's
obligations hereunder. If Seller fails to comply with any of its obligations
hereunder which are required to be performed at or prior to the Closing,
Purchaser, at Purchaser's option, will be entitled to terminate this Agreement
and obtain the prompt refund of the Deposit, whereupon both parties will be
discharged from all duties and performance hereunder. In the alternative,
Purchaser will be entitled to specific performance as its sole remedy.
10.2 BREACH BY PURCHASER. Time is of the essence with respect to
Purchaser's obligations hereunder. If Purchaser fails to complete the
acquisition as herein provided by reason of any default by Purchaser, Seller,
shall be entitled to terminate this Agreement and have the Deposit paid to
Seller and/or seek specific performance and/or damages resulting from
Purchaser's breach.
ARTICLE 11
GENERAL PROVISIONS
11.1 BROKERS. Seller and Purchaser each hereby represent and warrant to the
other that their sole contact with the other or with the Property has been made
without the assistance of any broker or other third party except, ▇▇▇▇▇▇▇▇ ▇▇▇▇
& Progressive Realty ("BROKERS"). Seller will be solely responsible for the
payment of 7% commission to be divided equally by the Brokers and Seller and
Purchaser further agree to save and hold each other free, clear and harmless
from any claim, cost or expense for or in connection with any claims for
commissions or compensation claimed or asserted (other than those due Brokers)
by or through each respective party in connection with the transaction
contemplated herein.
11.2 FURTHER ASSURANCES. Each of the parties hereto undertakes and agrees
to execute and deliver such documents, writings and further assurances as may be
requisite to carry out the intent and purpose of this Agreement.
11.3 ENTIRE AGREEMENT. No change or modification of this Agreement will be
valid unless the same is in writing and signed by the parties hereto. No waiver
of any of the
8
provisions of this Agreement will be valid unless in writing and signed by the
party against whom it is sought to be enforced. This Agreement contains the
entire agreement between the parties relating to the purchase and the sale of
the Property. All prior negotiations between the parties are merged in this
Agreement and there are no promises, agreements, conditions, undertakings,
warranties or representations, oral or written, express or implied, between the
parties other than as herein set forth.
11.4 DATES. If any date set forth in this Agreement for the delivery of any
document or the happening of any event should, under the terms hereof, fall on a
weekend or holiday, then such date will be automatically extended to the next
succeeding weekday that is not a holiday.
11.5 GOVERNING LAW. This Agreement will be construed and enforced in
accordance with the laws of the State of Kansas.
11.6 NOTICES. All notices, demands or other communications required or
permitted to be given hereunder must be in writing and any and all such items
will be deemed to have been duly delivered upon personal delivery; or as of the
third business day after mailing by United States mail, certified, return
receipt requested, postage prepaid, addressed as follows; or as of 12:00 Noon on
the immediately following business day after deposit with Federal Express or a
similar overnight courier service that provides evidence of receipt, addressed
as follows; or as of the third business hour (a business hour being one of the
hours from 8:00 a.m. to 5:00 p.m. on business days, local time of the recipient)
after transmitting by telecopier to the telecopy number set forth below:
If to Purchaser: Brooke Corporation
▇/▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Seller: ▇▇▇▇▇▇▇ Companies, Inc.
c/▇ ▇▇▇▇▇ Blond
▇▇▇▇▇▇▇ & ▇▇▇▇ ▇.▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Any address or telecopy number fixed pursuant to the foregoing may be
changed by the addressee by notice given pursuant to this Section 11.6.
9
11.7 HEADINGS. The paragraph headings which appear in some of the Sections
of this Agreement are for purposes of convenience and reference and are not in
any sense to be construed as modifying the Sections in which they appear.
11.8 ASSIGNMENT. This Agreement may not be assigned by Purchaser without
Seller's prior written consent.
11.9 SUCCESSORS AND ASSIGNS. Subject to Section 11.8, this Agreement will
be binding upon and inure to the benefit of the parties and their respective
heirs, personal representatives, successors and assigns.
11.10 SURVIVAL. All of the parties' representations, warranties, rights,
covenants, and agreements hereunder, to the extent not fully performed or
discharged by or through the Closing, will not be deemed merged into any
instrument delivered at Closing and will remain fully enforceable thereafter for
a period of six (6) months.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the date(s) set forth below, but as of the date first set forth above.
PURCHASER: BROOKE CORPORATION
By: /s/ [ILLEGIBLE]
---------------------------------------
Title: CEO, TREASURER
------------------------------------
SELLER: ▇▇▇▇▇▇▇ COMPANIES, INC.
By: /s/ [ILLEGIBLE]
---------------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇
------------------------------------
Vice President, Shared Services-Real
Estate