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AGREEMENT OF SALE AND PURCHASE
BY AND BETWEEN
WACKENHUT CORRECTIONS CORPORATION,
a Florida corporation
("SELLER")
AND
CPT OPERATING PARTNERSHIP L.P.,
a Delaware limited partnership
("PURCHASER")
FOR
JENA, LOUISIANA FACILITY
---------------
January 7, 2000
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6.4 Failure of Conditions to Seller's Obligations.........................................17
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ARTICLE VII.
PROVISIONS WITH RESPECT TO THE CLOSING..................................................................17
7.1 Seller's Closing Obligations..........................................................17
7.2 Purchaser's Closing Obligations.......................................................18
ARTICLE VIII.
EXPENSES OF CLOSING.....................................................................................18
8.1 Adjustments...........................................................................18
8.2 Closing Costs.........................................................................18
8.3 Commissions/Broker's Fees.............................................................19
ARTICLE IX.
DEFAULT AND REMEDIES....................................................................................19
9.1 Seller's Default; Purchaser's Remedies................................................19
9.2 Purchaser's Default; Seller's Remedies................................................19
ARTICLE X.
MISCELLANEOUS...........................................................................................20
10.1 Casualty..............................................................................20
10.2 Condemnation..........................................................................20
10.3 Survival..............................................................................21
10.4 Right of Assignment...................................................................21
10.5 Notices...............................................................................21
10.6 Entire Agreement; Modifications.......................................................22
10.7 Applicable Law........................................................................22
10.8 Captions..............................................................................23
10.9 Binding Effect........................................................................23
10.10 Time is of the Essence................................................................23
10.11 Waiver of Conditions..................................................................23
10.12 Liability of General Partner of Purchaser.............................................23
LIST OF SCHEDULES AND EXHIBITS...................................................................................26
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (the "Agreement") is made and entered
into as of January 7, 2000 by and between WACKENHUT CORRECTIONS CORPORATION, a
Florida corporation (hereinafter referred to as "Seller"), and CPT OPERATING
PARTNERSHIP L.P., a Delaware limited partnership (hereinafter referred to as
"Purchaser"). Seller and Purchaser are sometimes collectively referred to herein
as the "Parties" and each of the Parties is sometimes singularly referred to
herein as a "Party."
R E C I T A L S
A. Seller (or an affiliate of Seller) is the owner of the Property (as
hereinafter defined), consisting of certain real properties and improvements
thereon being more particularly described on Exhibit A attached hereto and made
a part hereof or has the right to acquire the Property through a validly
existing and enforceable purchase option between Seller and the current owner of
the Property; and,
B. Seller desires to sell and Purchaser desires to purchase the Property,
and simultaneously therewith, to enter into a lease transaction pursuant to
which Purchaser shall lease to Seller, and Seller shall lease from Purchaser,
the Property.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the
mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE I.
DEFINITIONS
As used herein (including any Exhibits attached hereto), the following
terms shall have the meanings indicated:
"Accreditations" shall mean any and all accreditations and/or
certifications from any non-governmental entities required in connection with
the current or contemplated operation of the Property.
"Applicable Notices" shall mean any reports, notices of violation, or
notices of compliance issued in connection with any Accreditations or Permits.
"▇▇▇▇ of Sale" shall mean a ▇▇▇▇ or bills of sale in substantially the same
form as Exhibit B, attached hereto, and sufficient to transfer to Purchaser all
Personal Property.
"Business Agreements" shall mean any leases, contract rights, loan
agreements, mortgages, easements, covenants, restrictions or other agreements or
instruments affecting all or a portion of the
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Property, to the extent the same are assignable by Seller, but specifically
excluding all of Seller's Operating and Service Agreements.
"Business Day(s)" shall mean calendar days other than Saturdays, Sundays
and legal holidays.
"Certificate of Non-Foreign Status" shall mean a certificate dated as of
the Closing Date, addressed to Purchaser and duly executed by Seller, in
substantially the same form as Exhibit C, attached hereto.
"Claim" shall mean any obligation, liability, lien, encumbrance, loss,
damage, cost, expense or claim, including, without limitation, any claim for
damage to property or injury to or death of any person or persons.
"Closing" shall mean the consummation of the sale and purchase provided for
herein, to be held at the offices of Akerman, Senterfitt & ▇▇▇▇▇▇, P.A., One SE
Third Avenue, Miami, Florida, or such other place as the Parties may mutually
agree.
"Closing Certificate" shall mean a certificate in substantially the same
form as Exhibit D, attached hereto, wherein Seller and Purchaser, respectively,
shall represent that the representations and warranties of Seller and Purchaser,
respectively, contained in this Agreement are true and correct in all material
respects as of the Closing Date as if made on and as of the Closing Date.
"Closing Date" shall mean the actual day on which the transaction
contemplated hereby is closed with the transfer of title to the Property. The
Parties agree that the closing date shall be January 7, 2000 or such earlier or
later date as shall be hereafter mutually agreed upon by the Parties.
"Deed" shall mean a deed in substantially the same form as Exhibit E,
attached hereto (as the same may be modified to comply with local law and
custom), executed by Seller, as grantor, in favor of Purchaser, as grantee,
conveying the Land and Improvements to Purchaser, subject only to the Permitted
Exceptions.
"Due Diligence Materials" shall mean the information to be provided by
Seller to Purchaser pursuant to the provisions of Section 4.1 hereof.
"Effective Date" shall mean the later of the two (2) dates on which this
Agreement is signed and all changes initialed by Seller and Purchaser, as
indicated by their signatures below; provided, that in the event only one Party
dates its signature, then the date of its signature shall be the Effective Date.
"Engineering Documents" shall mean all site plans, surveys, soil and
substrata studies, architectural drawings, plans and specifications, engineering
plans and studies, floor plans, landscape plans, Americans with Disabilities Act
compliance reports, environmental reports and studies, professional inspection
reports, construction and/or architect's reports or certificates, feasibility
studies, appraisals, and other similar plans and studies that relate to the Real
Property or the Personal Property, to the extent the same are assignable by
Seller.
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"Exception Documents" shall mean true, correct and legible copies of each
document listed as an exception to title in the Title Commitment.
"Excluded Personal Property" shall mean all those items of tangible and
intangible personal property described on Exhibit F attached hereto,
specifically excluding those items of intangible personal property set forth on
the Schedule of Excluded Proprietary Property attached hereto as Exhibit F-1.
"Fixtures" shall mean all those items of equipment, machinery, fixtures,
and other items of real and/or personal property, including all components
thereof, now or on the Closing Date located in, on or used in connection with,
and permanently affixed to or incorporated into the Improvements as described on
Exhibit G attached hereto, including, without limitation, all furnaces, boilers,
heaters, electrical equipment, electronic security equipment, heating, plumbing,
lighting, ventilating, refrigerating, incineration, air and water pollution
control, waste disposal, air-cooling and air-conditioning systems and apparatus,
sprinkler systems and fire and theft protection equipment, and similar systems,
all of which, to the greatest extent permitted by law, are hereby deemed by the
Parties to constitute real estate, together with all replacements,
modifications, alterations and additions thereto, but specifically excluding all
items included within the definition of Personal Property and Excluded Personal
Property and those items of excluded Fixtures set forth on Exhibit G-1.
"Hazardous Materials" shall mean any substance, including without
limitation, asbestos or any substance containing asbestos and deemed hazardous
under any Hazardous Materials Law, the group of organic compounds known as
polychlorinated biphenyls, petroleum products, flammable explosives, radioactive
materials, infectious wastes, biomedical and medical wastes, chemicals known to
cause cancer or reproductive toxicity, pollutants, effluents, contaminants,
emissions or related materials and any items included in the definition of
hazardous or toxic wastes, materials or substances under any Hazardous Materials
Law.
"Hazardous Materials Law" shall mean any local, state or federal law
relating to environmental conditions and industrial hygiene, including, without
limitation, the Resource Conservation and Recovery Act of 1976 ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of
1986 ("▇▇▇▇"), the Hazardous Materials Transportation Act, the Federal Waste
Pollution Control Act, the Clean Air Act, the Clean Water Act, the Toxic
Substances Control Act, the Safe Drinking Water Act, and all similar federal,
state and local environmental statutes, ordinances and the regulations, orders,
or decrees now or hereafter promulgated thereunder.
"Improvements" shall mean all buildings, improvements, structures and
Fixtures now or on the Closing Date located on the Land, including, without
limitation, landscaping, parking lots and structures, roads, drainage and all
above ground and underground utility structures, equipment systems and other
so-called "infrastructure" improvements.
"Intangible Property" means all Permits, Business Agreements and other
intangible property or any interest therein now or on the Closing Date owned or
held by Seller in connection with the
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Real Property, including all water rights and reservations, rights to use the
trade name applicable to the Property (but excluding the name "Wackenhut
Corrections" or any derivative thereof), as set forth on Exhibit A hereof, and
zoning rights related to the Real Property, or any part thereof, to the extent
the same are assignable by Seller; provided, however, "Intangible Property"
shall not include the general corporate trademarks, trade names (except as set
forth above), service marks, logos or insignia or the books and records of
Seller, Seller's accounts receivable and Seller's business and operating
licenses for the facilities on the Real Property.
"Land" means the real property more particularly described on Exhibit A
attached hereto and made a part hereof, together with all of Seller's rights,
titles, appurtenant interests, covenants, licenses, privileges and benefits
thereto belonging, and Seller's right, title and interest in and to any
easements, rights-of-way, rights of ingress or egress or other interests in, on,
or to any land, highway, street, road or avenue, open or proposed, in, on,
across, in front of, abutting or adjoining such real property including, without
limitation, any strips and gores adjacent to or lying between such real property
and any adjacent real property.
"Laws" means all federal, state and local laws, moratoria, initiatives,
referenda, ordinances, rules, regulations, standards, orders and other
governmental requirements, including, without limitation, those relating to the
environment, health and safety, disabled or handicapped persons.
"Lease" shall mean the Master Agreement to Lease dated as of April 28, 1998
between Seller and Purchaser and the Lease Agreement in substantially the same
form as Exhibit H, attached hereto and made a part hereof, which shall be
executed and delivered by Seller and Purchaser at the Closing, and pursuant to
the terms of which Purchaser shall lease the Property to Seller on the Closing
Date.
"Material" and "materially" shall mean a condition, noncompliance, defect
or other fact which would: (a) cost, with respect to any single defect or fact,
would cost, with respect to the Property, in excess of Fifty Thousand Dollars
($50,000.00), to correct or repair; or (b) in the aggregate, with respect to the
Property, result in a loss to Purchaser or a reduction in the value of such
Property in excess of One Hundred Thousand Dollars ($100,000.00).
"Permits" shall mean all permits, licenses (but excluding Seller's business
and operating licenses), approvals, entitlements and other governmental,
quasi-governmental and nongovernmental authorizations including, without
limitation, certificates of use and occupancy, required in connection with the
ownership, planning, development, construction, use, operation or maintenance
of the Real Property, to the extent the same are assignable by Seller. As used
herein, "quasi-governmental" shall include the providers of all utility services
to the Real Property.
"Permitted Exceptions" shall mean those title exceptions which have
been approved in writing by Purchaser, or are deemed to have been approved by
Purchaser upon the expiration of the Review Period.
"Personal Property" shall mean all Intangible Property, Warranties, and
Engineering Documents, and all those items of tangible personal property
described on Exhibit I, attached hereto,
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other than the Fixtures and the Excluded Personal Property, now or on the
Closing Date owned by Seller and located on or about the Land or Improvements or
used in connection with the operation thereof (specifically excluding personal
property owned by employees of Seller and personal property owned by inmates
housed at the Real Property).
"Property" shall mean, collectively, the Land, the Improvements, the
Fixtures, and the Personal Property.
"Purchase Price" shall mean the cash sum of $15,312,274.00.
"Real Property" shall mean the Land, the Improvements and the Fixtures.
"Review Period" means a period commencing on the Effective Date and ending
thirty (30) days from the date of Purchaser's receipt of the last of the Due
Diligence Materials; provided, should the Effective Date be less than thirty
(30) days prior to the Closing Date, the Review Period shall terminate on the
date which is five (5) days prior to the Closing Date.
"Search Reports" shall mean reports of searches made of the Uniform
Commercial Code Records of the County in which the Property is located, and of
the office of the Secretary of State of the State in which the Property is
located and in the State in which the principal office of Seller is located,
which searches shall reflect that none of the Property is encumbered by liens or
security interests which will remain on the Property after the Closing. The
Search Reports shall be updated, at Seller's expense, at or within five (5) days
prior to Closing.
"Seller's Operating and Service Agreements" shall mean all management,
service and operating agreements and contracts entered into by Seller with
respect to the Property, including, but not limited to, agreements and contracts
to house inmates at the Property, food service and equipment agreements, inmate
pay telephone service agreements, medical and pharmaceutical service and supply
agreements, drug testing service agreements, public performance and licensing
agreements for motion picture video cassettes, inmate educational and
instructional service agreements, refuse service agreements, pest control
service agreements and machinery, equipment and uniform rental and service
agreements.
"Survey" shall mean a current "as-built" ALTA survey, certified to ALTA
requirements, prepared by an engineer or surveyor licensed in the State in which
the Land is located and reasonably acceptable to Purchaser, which shall: (a)
include a narrative legal description of the Land by metes and bounds (which
shall include a reference to the recorded plat, if any), and a computation of
the area comprising the Land in both acres and gross square feet (to the nearest
one-thousandth of said respective measurement); (b) accurately show the location
on the Land of all improvements (dimensions thereof at the ground surface level
and the distance therefrom to the facing exterior property lines of the Land),
building and set-back lines, parking spaces (including number of spaces),
fences, evidence of abandoned fences, ponds, creeks, streams, rivers, officially
designated 100-year flood plains and flood prone areas, canals, ditches,
easements, roads, rights-of-way and encroachments; (c) location of
encroachments, if any, upon adjoining property, or from adjoining property, upon
the Land; (d) state the zoning classification of the Land; (e) be certified as
of the date
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of the Survey to the Seller, the Purchaser, the Title Company, and any
third-party lender designated by Purchaser; (f) legibly identify any and all
recorded matters shown on said Survey by appropriate volume and page recording
references; (g) show the location and names of all adjoining streets and the
distance to the nearest streets intersecting the streets that adjoin the Land;
(h) be satisfactory to (and updated from time to time as may be required by) the
Title Company so as to permit it to delete the standard exception for survey
matters and replace it with an exception for the matters shown on the Survey.
"Title Commitment" shall mean a current commitment or current commitments
issued by the Title Company to the Purchaser pursuant to the terms of which the
Title Company shall commit to issue the Title Policy to Purchaser in accordance
with the provisions of this Agreement, and reflecting all matters which would be
listed as exceptions to coverage on the Title Policy.
"Title Company" shall mean First American Title Insurance Company.
"Title Policy" shall mean an ALTA Extended Coverage Owner's Policy (or
policies) of Title Insurance (10/17/70 Form), or comparable state promulgated
policies, with liability in the aggregate amount of the Purchase Price, dated as
of the Closing Date, issued by the Title Company, insuring title to the fee
interest in the Real Property in Purchaser, subject only to the Permitted
Exceptions and to the standard printed exceptions included in the ALTA standard
form owner's extended coverage policy of title insurance including such other
endorsements requested by Purchaser, with the following modifications: (a) the
exception for survey matters shall be deleted and replaced by an exception for
the matters shown on the Survey; (b) the exception for ad valorem taxes shall
reflect only taxes for the current and subsequent years; (c) any exception as to
parties in possession shall be limited to rights of Seller in possession, as
lessee only, pursuant to the Lease; and (d) there shall be no general exception
for visible and apparent easements or roads and highways or similar items (with
any exception for visible and apparent easements or roads and highways or
similar items to be specifically referenced to and shown on the Survey and also
identified by applicable recording information).
"Warranties" shall mean all warranties and guaranties with respect to
the Real Property or Personal Property, whether express or implied, which Seller
now holds or under which Seller is the beneficiary, to the extent the same are
assignable by Seller.
ARTICLE II.
AGREEMENTS TO SELL, PURCHASE AND LEASE
2.1 AGREEMENT TO SELL AND PURCHASE. On the Closing Date, provided
Purchaser shall not have terminated this Agreement pursuant to the provisions of
Section 4.2 hereof, Seller shall, or shall cause its affiliate or optionor to
sell, convey, assign, transfer and deliver to Purchaser and Purchaser shall
purchase, acquire and accept from Seller, the Property, for the Purchase Price
and subject to the terms and conditions of this Agreement.
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2.2 AGREEMENT TO LEASE. On the Closing Date, and subject to performance
by the Parties of the terms and provisions of this Agreement, Purchaser shall
lease to Seller and Seller shall lease from Purchaser, the Property at the
rental and upon the terms and conditions set forth in the Lease.
ARTICLE III.
PURCHASE PRICE
3.1 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid by
Purchaser delivering to, or at the direction of, the Seller at the Closing
Federal Reserve wire transfer funds or other immediately available collected
funds payable to the order of the Seller in the sum equal to the Purchase Price,
subject to adjustment as herein provided. On or before the Closing, the Parties
shall agree on an allocation of the Purchase Price as between the Real Property
and the Personal Property.
ARTICLE IV.
ITEMS TO BE
FURNISHED TO PURCHASER BY SELLER
4.1 DUE DILIGENCE MATERIALS. Seller previously has delivered to Purchaser
for its review, or, if not, within fifteen (15) days after the Effective Date,
Seller shall deliver to Purchaser for its review, the following items:
a. True, correct, complete and legible copies of all Business
Agreements, Warranties, Permits, Accreditations, Applicable Notices, Engineering
Documents and Seller's Operating and Service Agreements (solely for the purposes
of this Section 4.1a., the terms Business Agreements, Warranties, Permits, and
Engineering Documents shall include all agreements, documents and instruments
otherwise included within such definitions, whether or not the same are
assignable by Seller);
b. True, correct, complete and legible copies of tax statements or
assessments for all real estate and personal property taxes assessed against the
Property for the current and the two prior calendar years, if available;
c. True, correct, complete and legible listing of all Fixtures,
Personal Property and Excluded Property, including a current depreciation
schedule.
d. True, correct, complete and legible copies of all existing fire and
extended coverage insurance policies and any other insurance policies pertaining
to the Property, if any;
e. True, correct, complete and legible copies of all instruments
evidencing, governing or securing the payment of any loans secured by the
property or related thereto. Seller may make such instruments available for
inspection and copying by Purchaser at Seller's principal office;
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f. True, correct, complete and legible copies of any and all
environmental studies or impact reports relating to the Property, if any, and
any approvals, conditions, orders or declarations issued by any governmental
authority relating thereto (such studies and reports shall include, but not be
limited to, reports indicating whether the Property is or has been contaminated
by Hazardous Materials and whether the Property is in compliance with the
Americans with Disabilities Act and Section 504 of the Rehabilitation Act of
1973, as applicable);
g. True, correct, complete and legible copies of any and all litigation
files with respect to any pending litigation and claim files for any claims made
or threatened, the outcome of which might materially affect the Property or the
use and operation of the Property, together with summaries and such other more
detailed information as Purchaser may reasonably request with respect to any
other pending litigation or claim the outcome of which might materially affect
Seller or materially affect the Property. Seller may make such files available
for inspection and copying by Purchaser at Seller's principal office.
h. The Title Commitment, Exception Documents, Survey and Search
Reports.
i. Actual operating statements for the Property or, if the Property has
not been operated by Seller for twelve months prior to the date of this
Agreement, projected operating results for the Property.
j. The Certificate of Occupancy, or its equivalent, for the Property.
4.2 DUE DILIGENCE REVIEW. During the Review Period, Purchaser shall be
entitled to review the Due Diligence Materials delivered by Seller to Purchaser
pursuant to the provisions of Section 4.1 above. If Purchaser shall, for any
reason in Purchaser's sole discretion, judgment and opinion, disapprove or be
dissatisfied with any aspect of such information, or the Property, then
Purchaser shall be entitled to terminate this Agreement by giving written notice
thereof to Seller on or before the expiration of the Review Period, whereupon
this Agreement shall automatically be rendered null and void, all moneys which
have been delivered by Purchaser to Seller or the Title Company shall be
immediately returned to Purchaser and thereafter neither Party shall have any
further obligations or liabilities to the other hereunder. Alternatively,
Purchaser may give written notice setting forth any defect, deficiency or
encumbrance and specify a time within which Seller may remedy or cure such
matter prior to the expiration of the Review Period, but Seller shall have no
obligation to remedy or cure any such matters objected to by Purchaser. If any
defect, deficiency or encumbrance, so noticed, is not satisfied or resolved to
the satisfaction of Purchaser, in Purchaser's sole discretion, within the time
period specified in the written notice, this Agreement shall, at the option of
Purchaser, terminate as provided in this Section; said option to terminate to be
exercised, if at all, by Purchaser giving written notice thereof to Seller and
simultaneously paying Seller the sum of One Hundred Dollars ($100.00) on the
earlier of: (a) within three (3) Business Days after the expiration of said
specified time period, or (b) the Closing Date. In the event Purchaser fails to
exercise its option to terminate this Agreement within the time and in the
manner set forth in this Section 4.2, then Purchaser shall be deemed to have
accepted and approved the Due Diligence Materials and the Property, and to have
waived any such defect, deficiency or encumbrance, and to have accepted all
exceptions to title referenced in the Title Commitment and
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all matters shown on the Survey. Such accepted title exceptions and survey
matters shall be included in the term "Permitted Exceptions" as used herein.
4.3 ISSUANCE OF TITLE POLICY. Seller agrees to deliver to Purchaser the
Title Policy as soon as practicable after the Closing.
ARTICLE V.
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
5.1 REPRESENTATIONS AND WARRANTIES OF SELLER. To induce Purchaser to
enter into this Agreement and to purchase the Property, Seller represents and
warrants to Purchaser as follows:
a. Seller has the right to acquire and at the Closing, Seller will have
and will convey, transfer and assign to Purchaser, or Seller will cause the
conveyance, transfer and assignment to Purchaser of, good, indefeasible,
marketable and insurable title to the Land, free and clear of any deeds of
trust, mortgages, liens, encumbrances, leases, tenancies, licenses, chattel
mortgages, conditional sales agreements, security interests, covenants,
conditions, restrictions, judgments, rights-of-way, easements, encroachments,
claims and any other matters affecting title or use of the Property, except the
Permitted Exceptions.
b. Seller has duly and validly authorized and executed this Agreement,
and has full right, title, power and authority to enter into this Agreement and
to consummate the transactions provided for herein, and the joinder of no person
or entity will be necessary to convey the Property fully and completely to
Purchaser at Closing and to lease the Property from Purchaser following
Closing. Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Florida and is qualified to do business
in each state in which any of the Property is located. The consummation of the
transactions contemplated herein does not require the approval of Seller's
shareholders or any third party, except such third party approvals as Seller has
obtained or will obtain prior to the Closing Date. The execution by Seller of
this Agreement and the consummation by Seller of the transactions contemplated
hereby do not, and at the Closing will not, result in a breach of any of the
terms or provisions of, or constitute a default or a condition which upon notice
or lapse of time or both would ripen into a default under, Seller's Bylaws or
Certificate of Incorporation, any indenture, agreement, instrument or obligation
to which Seller is a party or by which the Property or any portion thereof is
bound; and does not constitute a violation of any Laws, order, rule or
regulation applicable to Seller or any portion of the Property of any court or
of any federal, state or municipal regulatory body or administrative agency or
other governmental body having jurisdiction over Seller or any portion of the
Property.
c. Except as may be disclosed in the Exception Documents, there are no
adverse or other parties in possession of the Property or of any part thereof,
and Seller has not granted to any party any license, lease or other right
relating to the use or possession of the Property.
d. No notice has been received from any insurance company that has
issued a policy with respect to any portion of the Property or from any board of
fire underwriters (or other
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body exercising similar functions), claiming any defects or deficiencies or
requiring the performance of any repairs, replacements, alterations or other
work and as of the Closing no such notice will have been received which shall
not have been cured. No notice has been received by Seller from any issuing
insurance company that any of such policies will not be renewed, or will be
renewed only at a higher premium rate than is presently payable therefor.
e. No pending condemnation, eminent domain, assessment or similar
proceeding or charge affecting the Property or any portion thereof exists.
Seller has not heretofore received any notice, and has no knowledge, that any
such proceeding or charge is contemplated. Seller has not received any notice of
a proposed increase in the assessed valuation of the Property.
f. All Improvements (including all utilities) have been, or as of the
Closing will be, completed and installed in accordance with the plans and
specifications approved by the governmental authorities having jurisdiction to
the extent applicable and are transferable to Purchaser without additional cost.
Permanent certificates of occupancy, all licenses, permits, authorizations and
approvals required by all governmental authorities having jurisdiction, and the
requisite certificates of the local board of fire underwriters (or other body
exercising similar functions) have been, or as of the Closing will be, issued
for the Improvements, and, as of the Closing, where required, all of the same
will be in full force and effect. Except as may be set forth in any of the Due
Diligence Materials, the Improvements, as designed and constructed, comply or
will comply with all statutes, restrictions, regulations and ordinances
applicable thereto, including but not limited to the Americans with Disabilities
Act and Section 504 of the Rehabilitation Act of 1973, as applicable.
g. The existing water, sewer, gas and electricity lines, storm sewer
and other utility systems on the Land are adequate to serve the utility needs of
the Property for operation as a correctional facility and detention facility or
other use set forth in the Permits. All utilities required for the operation of
the Improvements enter the Land through adjoining public streets or through
adjoining private land in accordance with valid public or private easements that
will inure to the benefit of Purchaser. All approvals, licenses and permits
required to fully operate said utilities have been obtained and are in full
force and effect. All of said utilities are installed and operating, or will be,
by Closing and all installation and connection charges have been or will be paid
in full.
h. Except as may be set forth in any of the Due Diligence Materials,
the location, construction, occupancy, operation and use of the Property
(including the Improvements) do not violate any applicable law, statute,
ordinance, rule, regulation, order or determination of any governmental
authority or any board of fire underwriters (or other body exercising similar
functions), or any restrictive covenant or deed restriction (recorded or
otherwise) affecting the Property or the location, construction, occupancy,
operation or use thereof, including, without limitation, all applicable zoning
ordinances and building codes, flood disaster laws and health and environmental
laws and regulations, the Americans with Disabilities Act and Section 504 of the
Rehabilitation Act of 1973, as applicable.
i. There are no structural defects in any of the buildings or other
Improvements constituting the Property. The Improvements, all heating,
electrical, plumbing and drainage at, or
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servicing, the Property and all facilities and equipment relating thereto are
and, as of the Closing, will be in good condition and working order and adequate
in quantity and quality for the normal operation of the Property as a
correctional or detention facility or other use set forth in the Permits. No
part of the Property has been destroyed or damaged by fire or other casualty.
There are no unsatisfied requests for repairs, restorations or alterations with
regard to the Property from any person, entity or authority, including but not
limited to any lender, insurance provider or governmental authority.
j. Except as previously disclosed by Seller pursuant to contracts
delivered to Purchaser, no work has been performed or is in progress at the
Property, and no materials will have been delivered to the Property that might
provide the basis for a mechanic's, materialmen's or other lien against the
Property or any portion thereof, or amounts due for such work and material shall
have paid or discharged to Purchaser's and Title Company's satisfaction as of
Closing.
k. There exist no service contracts, management or other agreements
applicable to the Property, or amendments, modifications or terminations
thereof, to which Seller is a party or otherwise known to Seller, other than
Seller's Operating and Service Agreements, the Business Agreements and those
agreements furnished to Purchaser pursuant to Section 4.1.
l. Seller is not in default in any manner which would result in a
material adverse effect on Seller under any of the Business Agreements, or
Seller's Operating and Service Agreements or any of the covenants, conditions,
restrictions, rights-of-way or easements affecting the Property or any portion
thereof, and, to Seller's knowledge, no other party to any of the foregoing is
in default thereunder.
m. There are no actions, suits or proceedings pending or, to Seller's
knowledge, threatened against or affecting the Property or any portion thereof,
or relating to or arising out of the ownership or operation of the Property, or
by any federal, state, county or municipal department, commission, board, bureau
or agency or other governmental instrumentality.
n. The Property has free and unimpeded access to presently existing
public highways and/or roads (either directly or by way of perpetual easements);
and, all approvals necessary therefor have been obtained. To the best of
Seller's knowledge, no fact or condition exists which would result in the
termination of the current access from the Property to any presently existing
public highways and/or roads adjoining or situated on the Property.
o. There are no attachments, executions, assignments for the benefit of
creditors, or voluntary or involuntary proceedings in bankruptcy or under any
other debtor relief laws contemplated by or, to Seller's knowledge, pending or
threatened against Seller or the Property.
p. Except as may be set forth in any of the Due Diligence Materials, no
Hazardous Materials have been installed, used, generated, manufactured, treated,
handled, refined, produced, processed, stored or disposed of, or otherwise
present in, on or under the Property by Seller or to Seller's knowledge. No
activity has been undertaken on the Property by Seller or to Seller's knowledge
which would cause (I) the Property to become a hazardous waste treatment,
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storage or disposal facility within the meaning of, or otherwise bring the
Property within the ambit of RCRA or any Hazardous Materials Law, (ii) a release
or threatened release of Hazardous Materials from the Property within the
meaning of, or otherwise bring the Property within the ambit of, CERCLA or ▇▇▇▇
or any Hazardous Materials Law or (iii) the discharge of Hazardous Materials
into any watercourse, body of surface or subsurface water or wetland, or the
discharge into the atmosphere of any Hazardous Materials which would require a
permit under any Hazardous Materials Law. No activity has been undertaken with
respect to the Property by Seller or to Seller's knowledge which would cause a
violation or support a claim under RCRA, CERCLA, ▇▇▇▇ or any Hazardous Materials
Law. No investigation, administrative order, litigation or settlement with
respect to any Hazardous Materials is in existence with respect to the Property,
nor, to Seller's knowledge, is any of the foregoing threatened. No notice has
been received by Seller from any entity, governmental body or individual
claiming any violation of any Hazardous Materials Law, or requiring compliance
with any Hazardous Materials Law, or demanding payment or contribution for
environmental damage or injury to natural resources. Seller has not obtained
and, to Seller's knowledge, is not required to obtain, and Seller has no
knowledge of any reason Purchaser will be required to obtain, any permits,
licenses, or similar authorizations to occupy, operate or use the Improvements
or any part of the Property by reason of any Hazardous Materials Law.
Notwithstanding the representations made herein, such representations are and
shall be deemed to be limited by the matters detailed in any Phase I Preliminary
Site Assessment or other Due Diligence Materials obtained by or provided to
Purchaser in connection herewith.
q. The Property includes all items of property, tangible and
intangible, currently used by Seller in connection with the operation of the
Property, other than the Excluded Personal Property, Seller's Operating and
Service Agreements, and property expressly excluded from the definition of the
Property.
r. To the best of Seller's knowledge, the Due Diligence Materials
delivered to Purchaser are true, correct and complete in all material respects.
Seller hereby agrees to indemnify and defend, at its sole cost and expense,
and hold Purchaser, its successors and assigns, harmless from and against and to
reimburse Purchaser with respect to any and all claims, demands, actions, causes
of action, losses, damages, liabilities, costs and expenses (including, without
limitation, reasonable attorney's fees and court costs) actually incurred of any
and every kind or character, known or unknown, fixed or contingent, asserted
against or incurred by Purchaser at any time and from time to time by reason of
or arising out of (a) the material breach of any representation or warranty of
Seller set forth in Section 5.1, (b) the failure of Seller, in whole or in part,
to perform any obligation required to be performed by Seller pursuant to Section
5.1 or (C) the ownership, construction, occupancy, operation, use and
maintenance by Seller or its agents of the Property prior to the Closing Date.
This indemnity applies, without limitation, to the violation on or before the
Closing Date of any Hazardous Materials Law in effect on or before the Closing
Date and any and all matters arising out of any act, omission, event or
circumstance existing or occurring on or prior to the Closing Date (including,
without limitation, the presence on the Property or release from the Property of
Hazardous Materials disposed of or otherwise released prior to the Closing
Date), regardless of whether the act, omission, event or circumstance
constituted a violation of any Hazardous Materials Law at the time of its
existence or occurrence. Subject to the
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provisions of Section 10.1, the provisions of this Section 5.1 shall survive the
Closing of the transaction contemplated by this Agreement and shall continue
thereafter in full force and effect for the benefit of Purchaser, its successors
and assigns. Notwithstanding any provision of this Agreement to the contrary,
Purchaser may exercise any right or remedy Purchaser may have at law or in
equity should Seller fail to meet, comply with or perform its indemnity
obligations required by this Section 5.1. In the event a defect, claim or
deficiency is actually discovered by Purchaser prior to Closing or is noticed in
writing by Seller to Purchaser prior to Closing, Purchaser shall either
terminate the Agreement as provided herein or waive the defect, claim or
deficiency and proceed to Closing.
5.2 COVENANTS AND AGREEMENTS OF SELLER. Seller covenants and agrees with
Purchaser, from the Effective Date until the Closing or earlier termination of
this Agreement:
a. Seller shall: (I) operate the Property in the ordinary course of
Seller's business and in the same manner as currently operated; and (ii) fully
maintain and repair the Improvements, the Fixtures, and the Personal Property in
good condition and repair.
b. Purchaser shall be entitled to make all inspections or
investigations desired by Purchaser with respect to the Property or any portion
thereof, and shall have complete physical access to the Property, which access
shall occur at such times and in such manner so as to not unreasonably interfere
with Seller's business operations or constitute a safety hazard, as reasonably
determined by Seller.
c. Seller shall cause to be maintained in full force and effect fire
and extended coverage insurance upon the Property and public liability insurance
with respect to damage or injury to persons or property occurring on or relating
to operation of the Property in commercially reasonable amounts, but no less
than currently in effect.
d. Seller shall pay when due all bills and expenses of the Property.
Seller shall not enter into or assume any new Business Agreements or modify,
amend or terminate any existing Business Agreements with regard to the Property
which are in addition to or different from those furnished and disclosed to
Purchaser and reviewed and approved pursuant to Section 4.1.
e. Seller shall not create or permit to be created any liens, easements
or other conditions affecting any portion of the Property or the uses thereof
without the prior written consent of Purchaser.
f. Seller will pay, as and when due, all interest and principal and all
other charges payable under any indebtedness of Seller secured by the Property
from the date hereof until Closing, and will not suffer or permit any default or
amend or modify the documents evidencing or securing any such indebtedness
without the prior consent of Purchaser. Seller will, subject to limitations
provided by law with respect to privacy rights of inmates, give to Purchaser,
its attorneys, accountants and other representatives, during normal business
hours and as often as may be reasonably requested, full access to all books,
records and files relating to the Property so long as the same does not
unreasonably interfere with Seller's business operations.
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g. Seller shall not remove any Personal Property or Fixtures from the
Land or Improvements without replacing same with substantially similar items of
equal or greater value and repairing the damage, if any, to the Property as a
result of such removal.
h. During the pendency of this Agreement, Seller, its corporate
officers, directors, and agents shall not negotiate the sale or other
disposition of the Property with any person or entity other than Purchaser, and
shall not take any steps to initiate, consummate or document the sale or other
disposition of the Property, or any portion thereof, to any person or entity
other than Purchaser.
i. Prior to the Closing Date, Seller agrees to notify Purchaser in
writing within three (3) Business Days of any offer received by, delivered to or
communicated to Seller for the purchase, sale, acquisition or other disposition
of the Property.
j. Seller shall provide representations, warranties and consents as may
be reasonably required in connection with any public offering of stock or debt
obligations by Purchaser, including, but not limited to, inclusion of financial
statements, summary financial information and other required information
concerning Seller, or Seller as lessee under the Lease, in any Securities and
Exchange Commission filings.
5.3 REPRESENTATIONS AND WARRANTIES OF PURCHASER. To induce Seller to
enter into this Agreement and to sell the Property, Purchaser represents and
warrants to Seller as follows:
a. Purchaser has duly and validly authorized and executed this
Agreement, and has full right, title, power and authority to enter into this
Agreement and to consummate the transactions provided for herein, and the
joinder of no person or entity will be necessary to purchase the Property from
Seller at Closing, and to lease the Property to Seller following Closing.
b. The execution by Purchaser of this Agreement and the consummation by
Purchaser of the transactions contemplated hereby do not, and at the Closing
will not, result in a breach of any of the terms or provisions of, or constitute
a default or a condition which upon notice or lapse of time or both would ripen
into a default under, any indenture, agreement, instrument or obligation to
which Purchaser is a party; and does not, and at the Closing will not,
constitute a violation of any Laws, order, rule or regulation applicable to
Purchaser of any court or of any federal, state or municipal regulatory body or
administrative agency or other governmental body having jurisdiction over
Purchaser.
ARTICLE VI.
CONDITIONS TO OBLIGATIONS
6.1 CONDITIONS TO THE PURCHASER'S OBLIGATIONS. The obligations of
Purchaser to purchase the Property from Seller and to consummate the
transactions contemplated by this
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Agreement are subject to the satisfaction, at all times prior to and as of the
Closing (or such other time period specified below), of each of the following
conditions:
a. All of the representations and warranties of Seller set forth in
this Agreement shall be true at all times prior to, at and as of, the Closing in
all material respects and Seller shall deliver a Closing Certificate in
substantially the same form attached hereto as Exhibit D updating such
representations and warranties.
b. Seller shall have delivered, performed, observed and complied with,
all of the items, instruments, documents, covenants, agreements and conditions
required by this Agreement to be delivered, performed, observed and complied
with by it prior to, or as of, the Closing.
c. Seller shall not be in receivership or dissolution or have made any
assignment for the benefit of creditors, or admitted in writing its inability to
pay its debts as they mature, or have been adjudicated a bankrupt, or have filed
a petition in voluntary bankruptcy, a petition or answer seeking reorganization
or an arrangement with creditors under the federal bankruptcy law or any other
similar law or statute of the United States or any state and no such petition
shall have been filed against it.
d. No material or substantial adverse change shall have occurred with
respect to the condition, financial or otherwise, of the Seller or the Property.
e. Neither the Property nor any part thereof or interest therein shall
have been taken by execution or other process of law in any action prior to
Closing.
f. Seller shall have obtained and delivered to Purchaser a current
report, dated no more than ten (10) days prior to this Agreement, from a
licensed pest control company reasonably acceptable to Purchaser, and which must
show the Property to be free of all termite, or other destructive insect and
pest infestation.
g. During the Review Period, Purchaser shall have satisfactorily
completed an inspection of the Property with respect to the physical condition
thereof by agents or contractors selected by Purchaser.
h. During the Review Period, Purchaser shall have received, in form
acceptable to Purchaser, evidence of compliance by the Property with all
building codes, zoning ordinances and other governmental entitlements as
necessary for the operation of the Property for the current and intended use,
including, without limitation, certificates of occupancy and such other permits,
licenses, approvals, agreements and authorizations as are required for the
operation of the Property for the current and intended use and satisfactory
evidence of no violations of building or other codes or laws.
i. During the Review Period, all necessary approvals, consents and the
like of third parties to the validity and effectiveness of the transactions
contemplated hereby have been obtained.
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j. During the Review Period, Purchaser is reasonably satisfied that the
Property is sufficient and adequate for Seller to carry on the business now
being conducted thereon and the Property is in good condition and repair as
reasonably required for the proper operation and use thereof in compliance with
applicable laws.
k. During the Review Period, Purchaser has reviewed and satisfied
itself with respect to the Due Diligence Materials and shall not have terminated
this Agreement pursuant to the provisions of Section 4.2 hereof.
l. No material portion of the Property shall have been destroyed by
fire or casualty.
m. No condemnation, eminent domain or similar proceedings shall have
been commenced or threatened with respect to any material portion of the
Property.
6.2 FAILURE OF CONDITIONS TO PURCHASER'S OBLIGATIONS. In the event any
one or more of the conditions to Purchaser's obligations are not satisfied or
waived in whole or in part at any time prior to or as of the Closing, Purchaser,
at Purchaser's option, shall be entitled to: (a) terminate this Agreement by
giving written notice thereof to Seller, whereupon all moneys, if any, which
have been delivered by Purchaser to Seller or the Title Company shall be
immediately refunded to Purchaser and Purchaser shall have no further
obligations or liabilities hereunder; or (b) proceed to Closing hereunder.
6.3 CONDITIONS TO THE SELLER'S OBLIGATIONS. The obligations of Seller to
sell the Property to Purchaser and to consummate the transactions contemplated
by this Agreement are subject to the satisfaction, at all times prior to and as
of the Closing (or such other time period specified below), of each of the
following conditions:
a. All of the representations and warranties of Purchaser set forth in
this Agreement shall be true at all times prior to, at and as of, the Closing in
all material respects and Purchaser shall deliver a Closing Certificate in
substantially the same form attached hereto as Exhibit D updating such
representations and warranties.
b. Purchaser shall have delivered, performed, observed and complied
with, all of the items, instruments, documents, covenants, agreements and
conditions required by this Agreement to be delivered, performed, observed and
complied with by it prior to, or as of, the Closing.
c. Purchaser shall not be in receivership or dissolution or have made
any assignment for the benefit of creditors, or admitted in writing its
inability to pay its debts as they mature, or have been adjudicated a bankrupt,
or have filed a petition in voluntary bankruptcy, a petition or answer seeking
reorganization or an arrangement with creditors under the federal bankruptcy law
or any other similar law or statute of the United States or any state and no
such petition shall have been filed against it.
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6.4 FAILURE OF CONDITIONS TO SELLER'S OBLIGATIONS. In the event any one
or more of the conditions to Seller's obligations are not satisfied or waived in
whole or in part at any time prior to or as of the Closing, Seller, at Seller's
option, shall be entitled to: (a) terminate this Agreement by giving written
notice thereof to Purchaser, whereupon all moneys, if any, which have been
delivered by Seller to Purchaser or the Title Company shall be immediately
refunded to Seller and Seller shall have no further obligations or liabilities
hereunder; or (b) proceed to Closing hereunder.
ARTICLE VII.
PROVISIONS WITH RESPECT TO THE CLOSING
7.1 SELLER'S CLOSING OBLIGATIONS. At the Closing, Seller shall furnish
and deliver to the Purchaser, at Seller's expense, the following:
a. The Deed, Title Policy (or the Title Commitment marked-up and
initialed by the Title Company), ▇▇▇▇ of Sale, Certificate of Non-Foreign
Status, Closing Certificate, and the Lease, each duly executed and acknowledged
by Seller and, as appropriate, in recordable form acceptable in the state and
county in which the Property is located.
b. Certificates of casualty and fire insurance for the Property and
satisfactory evidence of all other insurance coverages as required pursuant to
the Lease showing Purchaser as additional insured and loss payee thereunder,
where appropriate, with appropriate provisions for prior notice to Purchaser in
the event of cancellation or termination of such policies and otherwise in form
and substance reasonably satisfactory to Purchaser.
c. Search Reports, dated not more than five (5) days prior to Closing,
evidencing no UCC-1 Financing Statements or other filings in the name of Seller
with respect to the Property which will remain on the Property after the
Closing.
d. Such affidavits or letters of indemnity as the Title Company shall
require in order to omit from the Title Insurance Policy all exceptions for
unfiled mechanic's, materialman's or similar liens.
e. Any and all transfer declarations or disclosure documents, duly
executed by the appropriate parties, required in connection with the Deed by any
state, county or municipal agency having jurisdiction over the Property or the
transactions contemplated hereby.
f. Such instruments or documents as are necessary, or reasonably
required by Purchaser or the Title Company, to evidence the status and capacity
of Seller and the authority of the person or persons who are executing the
various documents on behalf of Seller in connection with the purchase and sale
transaction contemplated hereby.
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g. Such other documents as are reasonably required by Purchaser to
carry out the terms and provisions of this Agreement.
7.2 PURCHASER'S CLOSING OBLIGATIONS. At the Closing, Purchaser shall
furnish and deliver to Seller, at Purchaser's expense, the following:
a. Federal Reserve, wire transfer funds or other immediately available
collected funds payable to the order, or at the direction, of Seller
representing the cash portion of the Purchase Price due in accordance with
Section 3.1 herein.
b. The Closing Certificate and the Lease, duly executed and
acknowledged by Purchaser.
c. Such instruments or documents as are necessary, or reasonably
required by Seller or the Title Company, to evidence the status and capacity of
Purchaser and the authority of the person or persons who are executing the
various documents on behalf of Purchaser in connection with the purchase and
sale transaction contemplated hereby.
d. Such other documents as are reasonably required by Seller to carry
out the terms and provisions of this Agreement.
e. All necessary approvals, consents, certificates and the like of
third parties to the validity and effectiveness of the transaction contemplated
hereby.
ARTICLE VIII.
EXPENSES OF CLOSING
8.1 ADJUSTMENTS. There shall be no adjustment of taxes, assessments,
water or sewer charges, gas, electric, telephone or other utilities, operating
expenses, employment charges, premiums on insurance policies, rents or other
normally proratable items, it being agreed and understood by the Parties that
the Seller shall be obligated to pay such items under the terms of the Lease.
8.2 CLOSING COSTS. Seller shall pay (a) all title examination fees and
premiums for the Title Policy; (b) the cost of the Search Reports; (C) the cost
of the Survey; (d) Seller's legal, accounting and other professional fees and
expenses and the cost of all opinions, certificates, instruments, documents and
papers required to be delivered, or to cause to be delivered, by Seller
hereunder, including without limitation, the cost of performance by Seller of
its obligations hereunder; (e) all other costs and expenses which are required
to be paid by Seller pursuant to other provisions of this Agreement; (f) any and
all state, municipal or other documentary or transfer taxes payable in
connection with the delivery of any instrument or document provided in or
contemplated by this Agreement or any agreement or commitment described or
referred to herein; and (g) the charges for or in connection with the recording
and/or filing of any instrument or document provided herein or contemplated by
this Agreement or any agreement or document described or referred to
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herein. Seller shall pay (a) Purchaser's legal, accounting and other
professional fees and expenses and the cost of all opinions, certificates,
instruments, documents and papers required to be delivered, or to cause to be
delivered, by Purchaser hereunder and (b) all other costs and expenses which are
required to be paid by Purchaser pursuant to other provisions of this Agreement.
Purchaser and Seller shall each be responsible for other costs in the usual and
customary manner for this kind of transaction in the county where the Property
is located.
8.3 COMMISSIONS/BROKER'S FEES. Seller hereby represents and warrants to
Purchaser that it has not contacted any real estate broker, finder or any other
party in connection with this transaction, and that it has not taken any action
which would result in any real estate broker's, finder's or other fees being due
or payable to any party with respect to the transaction contemplated hereby.
Purchaser hereby represents and warrants to Seller that Purchaser has not
contacted any real estate broker, finder or any other party in connection with
this transaction, and that it has not taken any action which would result in any
real estate broker's, finder's or other fees being due or payable to any party
with respect to the transaction contemplated hereby. Each Party hereby
indemnifies and agrees to hold the other Party harmless from any loss,
liability, damage, cost or expenses (including reasonable attorneys' fees)
resulting to such other Party by reason of a breach of the representation and
warranty made by such Party herein.
ARTICLE IX.
DEFAULT AND REMEDIES
9.1 SELLER'S DEFAULT; PURCHASER'S REMEDIES.
a. Seller shall be deemed to be in default hereunder upon the
occurrence of one of the following events: (i) any of Seller's warranties or
representations set forth herein shall be untrue in any material respect when
made or at Closing; or (ii) Seller shall fail to meet, comply with, or perform
any covenant, agreement or obligation on its part required within the time
limits and in the manner required in this Agreement, which, in either of such
events, is not cured by Seller within ten (10) days following receipt by Seller
of written notice of default from Purchaser.
b. In the event Seller shall be deemed to be in default hereunder
Purchaser may, at Purchaser's sole option, do any one or more of the following:
(i) terminate this Agreement by written notice delivered to Seller on or before
the Closing; and/or (ii) enforce specific performance of this Agreement against
Seller including Purchaser's reasonable costs and attorneys fees in connection
therewith and/or (iii) exercise any other right or remedy Purchaser may have at
law or in equity by reason of such default including, but not limited to, the
recovery of reasonable attorneys' fees incurred by Purchaser in connection
herewith.
9.2 PURCHASER'S DEFAULT; SELLER'S REMEDIES.
a. Purchaser shall be deemed to be in default hereunder upon the
occurrence of one of the following events: (i) any of Purchaser's warranties or
representations set forth herein shall be untrue in any material respect when
made or at Closing; or (ii) Purchaser shall fail to meet,
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be untrue in any material respect when made or at Closing; or (ii) Purchaser
shall fail to meet, comply with, or perform any covenant, agreement or
obligation on its part required within the time limits and in the manner
required in this Agreement, which, in either of such events, is not cured by
Purchaser within ten (10) days following receipt by Purchaser of written notice
of default from Seller.
b. In the event Purchaser shall be deemed to be in default hereunder
Seller may, at Seller's sole option, do any one or more of the following: (i)
terminate this Agreement by written notice delivered to Purchaser on or before
the Closing; and/or (ii) enforce specific performance of this Agreement against
Purchaser including Seller's reasonable costs and attorneys fees in connection
therewith.
ARTICLE X.
MISCELLANEOUS
10.1 CASUALTY. Prior to the Closing Date, and notwithstanding the
pendency of this Agreement, the entire risk of loss or damage by fire or other
casualty shall be borne and assumed by Seller, except as otherwise provided in
this Section 10.1. Until the Closing has occurred, Seller shall keep all
insurance policies in effect. If, prior to the Closing Date, any part of the
Property is damaged or destroyed by fire or other casualty, Seller shall
immediately notify Purchaser of such fact. If such damage or destruction is
material (as defined below), Purchaser shall have the option to terminate this
Agreement upon written notice to Seller given not later than thirty (30) days
after receipt of Seller's notice. For purposes hereof "material" shall be deemed
to be any uninsured damage or destruction to the Property (except that a
casualty shall not be deemed uninsured solely because all, or a portion of, the
cost of the casualty is subject to a deductible) or any insured damage or
destruction (i) where the cost of repair or replacement is estimated, in
Purchaser's good faith judgment, to be One Hundred Thousand and No/100
($100,000.00) or more, (ii) where the repair or replacement is estimated, in
Purchaser's good faith judgment, to require more than one hundred twenty (120)
days to repair, or (iii) which would result in an abatement of rent that would
not be fully covered by rent loss insurance (or its equivalent) to Seller upon
the Closing. If Purchaser does not exercise this option to terminate this
Agreement, or if the casualty is not material, neither party shall have the
right to terminate this Agreement, and the parties shall proceed to the Closing
pursuant to the terms hereof without modification of the terms of this Agreement
and without any reduction in the Purchase Price, and the repair and restoration
of the Property shall proceed in accordance with the terms and provisions of the
Lease to be entered into between Seller and Purchaser with the same effect as if
such casualty had occurred during the term of the Lease. If Purchaser does not
elect to terminate this Agreement by reason of any casualty, Purchaser shall
have the right to participate in any adjustment of the insurance claim and, in
such event, Purchaser and Seller shall cooperate each with the other in good
faith.
10.2 CONDEMNATION. Prior to the Closing Date, if all or any portion of
the Property is taken, or if access thereto is reduced or restricted, by eminent
domain or otherwise (or if such taking, reduction or restriction is pending,
threatened or contemplated) (hereinafter a "Condemnation
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Proceeding"), Seller shall immediately notify Purchaser of such fact. In the
event that such notice relates to the taking of a material (as defined below)
portion of the Property, Purchaser shall have the option, in its sole and
absolute discretion, to terminate this Agreement upon written notice to Seller
given not later than thirty (30) days after receipt of Seller's notice,
whereupon neither party shall have any rights, obligations or liabilities
hereunder except with respect to those rights, obligations or liabilities which
expressly survive the termination of this Agreement. For the purposes of this
Section, and without limiting the generality of the foregoing, a taking shall be
deemed material if it (i) restricts access to the Property (ii) reduces the
parking available to Property unless an equal or greater number of spaces may be
created through a reconfiguration of the parking facilities, or (iii) would, in
the reasonable estimation of Purchaser, cost more than $100,000 to restore the
Property or make alterations to the Property in order to maintain the Property
as a fully functioning correctional and detention facility comparable in all
respects to the condition of the Property absent such Condemnation Proceeding.
If Purchaser does not elect to terminate this Agreement as herein provided, the
parties shall proceed to the Closing pursuant to the terms hereof without
modification of the terms of this Agreement and without any reduction in the
Purchase Price, and any condemnation award and repair and restoration of the
Property shall be governed by the terms and provisions of the Lease to be
entered into between Seller and Purchaser at the Closing with the same effect as
if such Condemnation Proceeding had occurred during the term of the Lease. If
Purchaser does not elect to terminate this Agreement by reason of any
Condemnation Proceeding, Purchaser shall have the right to participate in any
Condemnation Proceeding with respect to the Property and, in such event,
Purchaser and Seller shall cooperate each with the other in good faith.
10.3 SURVIVAL. With the exception of Seller's obligations pursuant to the
terms of Section 5.4 of this Agreement, all of the representations, warranties,
covenants, agreements and indemnities of Seller and Purchaser contained in this
Agreement, to the extent not performed at the Closing, shall survive the Closing
for the period of one (1) year after the Closing Date and shall not be deemed to
merge upon the acceptance of the Deed by Purchaser. The obligations of Seller,
pursuant to the terms of Section 5.4, shall continue in full force and effect
until such time as Seller has fully satisfied and completed such obligations.
10.4 RIGHT OF ASSIGNMENT. Neither this Agreement nor any interest herein
may be assigned or transferred by Purchaser to any person, firm, corporation or
other entity without the prior written consent of Seller, which consent may be
given or withheld in the sole discretion of Seller.
10.5 NOTICES. All notices, requests and other communications under this
Agreement shall be in writing and shall be either (a) delivered in person, (b)
sent by certified mail, return-receipt requested or (C) delivered by a
recognized national delivery service addressed as follows:
If intended for Seller: Wackenhut Corrections Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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With a copy to: Akerman, Senterfitt & ▇▇▇▇▇▇, P.A.
▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If intended for Purchaser: CPT Operating Partnership ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
With a copy to: Josias, Goren, Cherof, ▇▇▇▇▇ and ▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
or at such other address, and to the attention of such other person, as the
parties shall give notice as herein provided. A notice, request and other
communication shall be deemed to be duly received if delivered in person or by a
recognized national delivery service, when delivered to the address of the
recipient, if sent by mail, on the date of receipt by the recipient as shown on
the return-receipt card; provided that if a notice, request or other
communication is served by hand on a day which is not a Business Day, or after
5:00 P.M. on any Business Day at the addressee's location, such notice or
communication shall be deemed to be duly received by the recipient at 9:00 A.M.
on the first Business Day thereafter.
10.6 ENTIRE AGREEMENT; MODIFICATIONS. This Agreement embodies and
constitutes the entire understanding between the Parties with respect to the
transactions contemplated herein, and all prior or contemporaneous agreements,
understandings, representations and statements (oral or written) are merged into
this Agreement. Neither this Agreement nor any provision hereof may be waived,
modified, amended, discharged or terminated except by an instrument in writing
signed by the Party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument.
10.7 APPLICABLE LAW. THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF FLORIDA. The Parties agree that jurisdiction and venue for any
litigation arising out of this Agreement shall be in the Courts of Palm Beach
County, Florida or the U.S. District Court for the Southern District of Florida
and, accordingly, consent thereto.
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10.8 CAPTIONS. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe, or limit the scope
or intent of this Agreement or any of the provisions hereof.
10.9 BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and assigns.
10.10 TIME IS OF THE ESSENCE. With respect to all provisions of this
Agreement, time is of the essence. However, if the first date of any period
which is set out in any provision of this Agreement falls on a day which is not
a Business Day, then, in such event, the time of such period shall be extended
to the next day which is a Business Day.
10.11 WAIVER OF CONDITIONS. Any Party may at any time or times, at its
election, waive any of the conditions to its obligations hereunder, but any such
waiver shall be effective only if contained in a writing signed by such Party.
No waiver by a Party of any breach of this Agreement or of any warranty or
representation hereunder by the other Party shall be deemed to be a waiver of
any other breach by such other Party (whether preceding or succeeding and
whether or not of the same or similar nature), and no acceptance of payment or
performance by a Party after any breach by the other Party shall be deemed to be
a waiver of any breach of this Agreement or of any representation or warranty
hereunder by such other Party, whether or not the first Party knows of such
breach at the time it accepts such payment or performance. No failure or delay
by a Party to exercise any right it may have by reason of the default of the
other Party shall operate as a waiver of default or modification of this
Agreement or shall prevent the exercise of any right by the first Party while
the other Party continues to be so in default.
10.12 LIABILITY OF GENERAL PARTNER OF PURCHASER. Seller acknowledges that
Purchaser has disclosed that the general partner of Purchaser (the "General
Partner") is a Maryland business trust formed pursuant to a Declaration of
Trust, as amended, a copy of which is duly filed with the Department of
Assessments and Taxation of the State of Maryland, which provides that no
trustee, officer, shareholder, employee or agent of the General Partner shall be
held personally liable under any written instrument creating an obligation of,
or claim against, the General Partner and that all persons dealing with the
General Partner, in any way, shall look only to the assets of the General
Partner for the payment of any sum or the performance of any obligation. Seller
agrees that any liability of the General Partner or any trustee, officer,
shareholder, employee or agent acting on behalf of the General Partner arising
out of this Agreement or the performance by Purchaser of its obligations
hereunder is limited to the assets of the General Partner in accordance with the
above Declaration of Trust.
EXECUTED to be effective as of the Effective Date.
PURCHASER:
CPT OPERATING PARTNERSHIP L.P.
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By: Correctional Properties Trust, a Maryland real
estate investment trust, its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
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LIST OF SCHEDULES AND EXHIBITS
Exhibit A - Real Property Description
Exhibit B - ▇▇▇▇ of Sale
Exhibit C - Certificate of Non-Foreign Status
Exhibit D - Closing Certificate
Exhibit E - Deed
Exhibit F - Excluded Personal Property
Exhibit F-1 - Excluded Proprietary Property
Exhibit G - Fixtures
Exhibit G-1 - Excluded Fixtures
Exhibit H - Lease Agreement
Exhibit I - Personal Property
SELLER:
WACKENHUT CORRECTIONS CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
---------------------------------------
▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, Senior Vice President
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LIST OF SCHEDULES AND EXHIBITS
Exhibit A - Real Property Description
Exhibit B - ▇▇▇▇ of Sale
Exhibit C - Certificate of Non-Foreign Status
Exhibit D - Closing Certificate
Exhibit E - Deed
Exhibit F - Excluded Personal Property
Exhibit F-1 - Excluded Proprietary Property
Exhibit G - Fixtures
Exhibit G-1 - Excluded Fixtures
Exhibit H - Lease Agreement
Exhibit I - Personal Property
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