REAL ESTATE PURCHASE AGREEMENT
This Real Estate Purchase Agreement ("this Agreement") is made and entered into
this 24th day of June, 1998, by and between NORTHWEST TELEPRODUCTIONS, INC., a
Minnesota corporation ("Seller"), and LINDUE, LLC, a Minnesota limited liability
company ("Purchaser"). The Seller and Purchaser are hereinafter referred to as
"Party" or, collectively, "Parties."
Seller is the fee owner of real property consisting of two parcels of land and
two buildings located at 0000 Xxxx 00xx Xxxxxx ("00xx Xxxxxx Property") and 0000
Xxxx 00xx Xxxxxx ("77th Street Property"), respectively, Edina, Hennepin County,
Minnesota, together with all buildings and improvements constructed on said land
and all easements, covenants and rights benefitting or appurtenant to the said
land or improvements (collectively, "Real Property"). The legal descriptions of
the Real Property are set forth in Exhibit A attached to this Agreement.
Purchaser desires to purchase and Seller desires to sell the Real Property and
the other property and interests described in Section 1 of this Agreement. The
Real Property and the items of property described in Sections 1(b) through 1(g),
collectively, are referred to as "Real Property".
In consideration of and in reliance upon the terms, covenants and conditions of
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Sale of Property. Seller will sell to Purchaser and Purchaser will purchase
from Seller all of Seller's right, title and interest in and to the Real
Property described as follows:
(a) The Real Property;
(b) All personal property located in or about the Real
Property owned by Seller and used in the maintenance or
operation of the Real Property, including without limitation
those items described in Exhibit B attached hereto
("Personal Property").
(c) Seller's interest in the service and maintenance
contracts, equipment leases and other contracts relating to
the Real Property and the Personal Property described in
Exhibit C attached hereto ("Contracts").
(d) Seller's interests in the permits and licenses described
in Exhibit D attached hereto ("Permits").
(e) Seller's interests in all warranties and guaranties
given to, assigned to or benefitting Seller or the Real
Property or the Personal Property relating to the
acquisition, construction, design, use, operation,
management or maintenance of the Real Property and the
Personal Property, if any ("Warranties").
(f) All originals and copies of the as-built blueprints,
plans and specifications relating to the Real Property and
the Personal Property in Seller's possession, if any
("Plans").
(g) All records of Seller relating to the Real Property and
the Personal Property and the ownership, operation and
management of the Real Property, including without
limitation current real estate tax statements and special
assessment notices; insurance policies; and records of
maintenance, repairs, services and capital improvements to
the Real Property to the extent such materials are within
Seller's possession or control (the "Records"); provided,
however, that Seller may retain such copies of the Records
as may be appropriate in order to satisfy its legal
obligations.
Seller will deliver to Purchaser true and correct copies of all Contracts,
Permits, Warranties, Plans and Records for Purchaser's review, as soon as
reasonably possible after both Parties shall have signed this Agreement.
2. Purchase Price and Manner of Payment. The purchase price ("Purchase Price")
to be paid by Purchaser to Seller for the Real Property will be One Million Six
Hundred Thousand and no/100 Dollars ($1,600,000). The Purchase Price will be
allocated $700,000 to the 00xx Xxxxxx Property and $900,000 to the 00xx Xxxxxx
Property.
Purchaser will pay the Purchase Price as follows:
(a) Upon execution of this Agreement, Purchaser will pay Ten
Thousand Dollars ($10,000) xxxxxxx money ("Xxxxxxx Money")
to Commercial Partners Title, LLC, 000 Xxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000 ("Closing Agent"),
to be deposited into an interest bearing trust account of
Closing Agent, and to be paid by Closing Agent to Seller at
the Closing. The interest from such trust account will be
paid to Purchaser.
(b) At the Closing, Purchaser will pay to Seller the One
Million Five Hundred Ninety Thousand Dollars ($1,590,000)
balance of the Purchase Price, less the sum of any and all
the following amounts:
(i) The total payments necessary to pay in full that
debt and to satisfy that Mortgage on the Real
Property, described in Section 4D below, including
principal, interest and all costs to prepay and
satisfy the Mortgage and to record such satisfaction;
(ii) The total payments necessary to pay, or
reimburse Purchaser for, any taxes or assessments to
be paid by Seller pursuant to Section 6, below, and
any fees, costs or expenses incurred pursuant to
Sections 7, 7A or 7B, below;
(iii) The amount equal to the projected costs of roof
repair as reserve for roof repair on the office
buildings located on the 00xx Xxxxxx Property and the
00xx Xxxxxx Property, all as set forth in Section 7;
(iv) Any amount to be paid by Seller pursuant to the
provisions of that Agreement On Use of Proceeds
referred to in subsection 8(b), below;
(v) Any amount due Lessor as of the Date of Closing,
pursuant to the terms of either of those real estate
Leases described in Section 8(a) below, including
without limitation Tax Costs and Operation Costs;
(vi) This Section 2(b)(vi) intentionally left blank;
and
(vii) Any other fees, costs and expenses which this
Agreement specifically provides will be paid by
Seller, including, without limitation, those charges,
fees and expenses to be paid or reimbursed by Seller
pursuant to the provisions of Section 7(c), below.
3. Survey; Phase I; Access.
3A. Survey As soon as reasonably possible after the date of this
Agreement, Seller will at its cost and expense furnish to Purchaser a survey of
the Real Property ("Survey"), certified to Closing Agent and Chicago Title
Insurance Company ("Chicago Title"), prepared by a Registered Land Surveyor
properly licensed to practice in Minnesota and reasonably acceptable to
Purchaser. The Survey will be prepared so as to allow Chicago Title to issue an
owner's policy of title insurance with regard to the Real Property without any
exception for incomplete or inadequate survey and will show the Real Property
and the location of all boundaries, improvements to and encroachments on the
Real Property, and any and all easements affecting the Real Property, including
but not limited to any encumbrances identified in the Title Commitment.
3B. Phase I Environmental Report. As soon as reasonably possible after
the date of this Agreement, Seller will at its cost and expense furnish to
Purchaser a Phase I Environmental Report to be prepared relating to the Real
Property by an environmental consultant reasonably acceptable to Purchaser.
3C. Access. Seller will allow Purchaser and Purchaser's agents access
to the Real Property at all reasonable times for Purchaser's investigating and
testing the premises.
4. Evidence of Title; Examination of Title; Objections; Remedies. Seller will at
its cost and expense cause the following documents to be delivered to Purchaser:
(a) Title Insurance Commitment. A commitment ("Title Commitment") for
an ALTA Owner's Policy (10-17-92) of Title Insurance ("Title Policy"),
insuring title to the Real Property. It shall be a condition to
Purchaser's obligation to close that Chicago Title agree to delete the
so called standard exceptions, provide for extended coverage risks and
include special endorsements for zoning, contiguity, appurtenant
easements and such other customary matters as Purchaser may reasonably
request, issued by Chicago Title. The Title Commitment will state
Chicago Title's commitment to insure marketable fee title in
Purchaser. Purchaser will pay the premium for the Title Policy.
(b) Encumbrances. A copy of every document referenced as an exception
to the title of the Real Property as described in the Title
Commitment.
4A. Objections. Within twenty (20) days after the date of receipt of
the Title Commitment (or within 20 days after the date of execution of this
Agreement if Purchaser shall have received the Title Commitment prior to said
date), Purchaser may make objections to the form or content thereof, such
objections to be made in writing or deemed waived. If Purchaser makes such
written objections, Seller will be allowed sixty (60) days to cure them. Seller
will use its best efforts to cure such objections and will not withhold its
consent to any reasonable request from Chicago Title to allow Chicago Title to
issue the Policy for Title Insurance contemplated hereby. Closing and the
payments hereunder required will be postponed pending curing of the objections,
but upon curing of all such objections and within ten (10) days after notice
thereof, the Parties will perform this Agreement according to its terms.
4B. Remedies. If the Title Commitment is not acceptable to Purchaser
and is not made so within sixty (60) days from the date of written
objections thereto as provided above, Purchaser may:
(a) Declare this Agreement null and void, and, in such event,
receive a refund of all Xxxxxxx Money paid hereunder and interest
thereon; or
(b) Complete the Closing and withhold from the Purchase Price at
Closing an amount which, in the mutual judgment of Closing Agent,
Seller and Purchaser, is sufficient to ensure correction of title
and satisfaction of any liens and encumbrances, pending
correction of title; or
(c) Waive any defect in title and complete the Closing.
4C. Purchaser's Right To Correct. If the objections to the Title
Commitment are not corrected within ninety (90) days after Closing pursuant to
the terms of Section 4B(b), above, Purchaser may thereafter correct any of said
defects in title and retain an amount to reimburse Purchaser for all costs in
connection therewith, including without limitation reasonable attorneys' fees.
4D. Satisfaction of Mortgage. Without limiting any provision of this
Agreement, Seller will pay the total amount necessary (including without
limitation fees and penalties, if any) to pay in full that debt and to satisfy
that certain Mortgage on the Real Property ("Mortgage") dated June 4, 1997,
filed June 5, 1997, as Document No. 2816029, executed by Northwest
Teleproductions, Inc., a Minnesota corporation, in favor of NationsCredit
Commercial Corporation, through its NationsCredit Commercial Funding Division,
to secure $2,560,000, including principal, interest and all costs to prepay and
satisfy the Mortgage and to record such satisfaction.
5. Representations and Warranties.
5A. Seller's Representations and Warranties. Seller represents and
warrants to Purchaser the following as a material inducement to enter into this
Agreement:
(a) Organization and Standing of Seller. Seller (i) is a corporation,
duly organized, validly existing and in good standing under the laws
of the State of Minnesota and (ii) has the corporate power and
authority necessary to own its assets and carry on its business as now
conducted by Seller.
(b) Execution, Delivery, Performance and Binding Effect. The
execution, delivery and performance of this Agreement and all other
agreements and documents executed and delivered by Seller in
connection with this Agreement ("Seller's Related Agreements") and the
consummation by Seller of the transactions contemplated by this
Agreement and Seller's Related Agreements have been duly authorized by
all necessary corporate action, including by Seller's board of
directors. Seller has power and authority to enter into and perform
its obligations under this Agreement and each of the Seller's Related
Agreements. Delivery and performance by Seller of this Agreement and
Seller's Related Agreements will not conflict with, violate any
provision of, result in the breach of, or constitute a default under
(i) Seller's articles or certificate of incorporation or bylaws, (ii)
any federal or state law, rule or regulation, (iii) any order,
judgment, injunction or other action of any court, or (iv) any
contract or agreement, including without limitation any security
agreement or credit or loan agreement, by which Seller is bound. This
Agreement and the Seller's Related Agreements constitute legal, valid
and binding obligations of Seller enforceable against it in accordance
with their respective terms.
(c) Consents. Seller's execution, delivery and performance of this
Agreement and the Seller's Related Agreements do not require the
consent, approval or authorization of any person not a Party to this
Agreement.
(d) Encumbrances. Seller shall not take any voluntary action, after
the date of this Agreement, that will affect the status of title to
the Property in a materially adverse way. It shall be a condition for
the benefit of Purchaser that on the date of the Closing, Seller will
own the Real Property free and clear of all liens, charges and
encumbrances other than any encumbrances that are specifically
described in Exhibit E attached hereto and by this reference are
permitted by the Purchaser.
(e) Legal Proceedings. To the best of Seller's actual knowledge (i)
Seller has received no notice of any action, litigation or other legal
proceeding pending against the Seller which materially affects the
Real Property or use of the Real Property or any portion thereof, and
(ii) no action, litigation, or other legal proceeding is pending or
threatened against the Real Property or any part thereof.
(f) Outstanding Contracts. As of the Closing, Seller will have caused
no contracts to be in effect in connection with the Real Property or
any part thereof except those set forth in Exhibit C and any other
contracts that may be terminated without cost to Purchaser on thirty
(30) days' notice.
(g) Rights of Others to Purchase. Seller has not entered into any
other contracts for the sale of the Real Property or any portion
thereof, and as of the Closing there will be no first rights of
refusal or other rights to purchase the Real Property except those
which are subject to the rights of Purchaser.
(h) FIRPTA. Seller is not a "foreign person," "foreign corporation,"
"foreign trust" or "foreign estate" as those terms are used in Section
1445 of the Internal Revenue Code.
(i) Environmental Laws. To the best of Seller's actual knowledge, (i)
no toxic or hazardous substances or wastes, chemicals, pollutants or
contaminants (including without limitation asbestos, urea
formaldehyde, the group of organic compounds known as polychlorinated
biphenyls, petroleum products including gasoline, fuel oil, crude oil
and various constituents of such products, and any hazardous substance
as defined in the Comprehensive Environmental Response Compensation
and Liability Act of 1980 ["CERCLA"], 42 U.S. C. ss.ss.9601-9657, as
amended) (collectively and individually, "Toxic or Hazardous
Substances") have been generated, treated, stored, released or
disposed of, or otherwise placed, deposited in or located on the Real
Property except in accordance with applicable law; (ii) No Toxic or
Hazardous Substances have been used in construction or maintenance of
the improvements that are part of the Real Property; (iii) no activity
has been undertaken on the Real Property that would cause, or
contribute to cause (i) the Real Property to become a treatment,
storage or disposal facility within the meaning of, or to be in
violation of, the Resource Conservation and Recovery Act of 1976
("RCRA"), 42 U.S.C. ss.6901, et seq, or any similar state law or local
ordinance, (ii) a release or threatened release of Toxic or Hazardous
Substances from the Real Property within the meaning of, or any other
violation of , CERCLA, or any similar state law or local ordinance, or
(iii) the discharge of pollutants or effluents into any water source
or system, the dredging or filling of any waters or the discharge into
the air of any emissions, that would require a permit under the
Federal Water Pollution Control Act, 33 U.S.C. ss.1251, et seq, or the
Clean Air Act, 42 U.S.C. ss.7401, et seq, or any similar state law or
local ordinance; (iv) there are no substances or conditions in or on
the Real Property that may support a claim or cause of action under
RCRA, CERCLA or any other federal, state or local environmental
statutes, regulations, ordinances or other environmental regulatory
requirements, including without limitation the Minnesota Environmental
Response and Liability Act, Minn. Stat. 115B ("XXXXX") and the
Minnesota Petroleum Tank Release Cleanup Act, Minn. Stat. 115C; and
(v) there have been noabove ground or underground tanks located in or
about the Real Property except such tanks, if any, that have been duly
registered with all appropriate regulatory and governmental bodies and
are otherwise in compliance with applicable federal, state and local
statutes, regulations, ordinances and other regulatory requirements.
(j) Use of Property. To the best of Seller's actual knowledge, the
Real Property is usable for its current uses without violating any
federal, state, local or other governmental building, zoning, health,
safety, platting, subdivision or other law, ordinance or regulation or
any applicable private restriction, and it shall be a condition to
Purchaser's obligation to close that the current uses not violate such
laws, ordinances, regulations or restrictions.
5B. Purchaser's Representations and Warranties. Purchaser represents
and warrants to Seller the following as a material inducement to enter into this
Agreement:
(a) Organization and Standing of Purchaser. Purchaser
is a limited liability company, duly organized, validly
existing and in good standing under the laws of the State of
Minnesota.
(b) Execution, Delivery, Performance and Binding
Effect. The execution, delivery and performance of this
Agreement and all other agreements and documents executed and
delivered by Purchaser in connection with this Agreement
("Purchaser's Related Agreements") and the consummation by
Purchaser of the transactions contemplated by this Agreement
and the Purchaser's Related Agreements have been duly
authorized by all necessary company action, including by
Purchaser's board of governors. Purchaser has power and
authority to enter into and perform its obligations under this
Agreement and each of the Purchaser's Related Agreements.
Delivery and performance by Purchaser of this Agreement and
Purchaser's Related Agreements will not conflict with, violate
any provision of, result in the breach of, or constitute a
default under (i) Purchaser's articles of organization or any
member voting agreement or member control agreement, (ii) any
federal or state law, rule or regulation, (iii) any order,
judgment, injunction or other action of any court, or (iv) any
contract or agreement, including without limitation any
security agreement or credit or loan agreement, by which
Purchaser is bound. This Agreement and the Purchaser's Related
Agreements constitute legal, valid and binding obligations of
Purchaser enforceable against it in accordance with their
respective terms.
(c) Consents. Purchaser's execution, delivery and
performance of this Agreement and the Purchaser's Related
Agreements do not require the consent, approval or
authorization of any person not a Party to this Agreement.
5C. Representations and Warranties As of Closing.
Seller shall disclose to Purchaser at or prior to closing if
any representation made by Seller herein becomes untrue. It
shall be a condition to Purchaser's obligation to close that
all representations, warranties, obligations and covenants
made by Seller in this Agreement be true as of the Closing.
6. Real Estate Taxes and Special Assessments. The parties are entering into two
leases (the "Leases") under which Purchaser will lease the Real Property to
Seller. Under the Leases Seller, in the capacity of Tenant, is responsible for
paying all real estate taxes, and installments of special assessments payable
therewith. The provisions regarding payment of such impositions is hereby
incorporated herein by reference, and no pro-ration of such impositions shall be
required at Closing. If, at Closing, there exist unpaid taxes for prior years,
Closing Agent shall cause such taxes to be paid out of the proceeds of closing.
7. Costs and Prorations; Roof Repair. Except as specifically provided otherwise
in this Agreement, Seller and Purchaser will allocate and pay the following
costs in connection with this Agreement and the sale and purchase transaction
which is the subject of this Agreement.
(a) Seller will pay the fees and expenses of the
Closing and the Closing Agent, including without limitation
fees related to the trust account described in Section 2(a),
above, and Closing Agent's services pursuant to said trust
account.
(b) Seller will pay all state or local transfer or
deed tax in connection with the Deed. Purchaser will pay
recording charges for recording the Deed.
(c) Seller will pay previous charges owing to
Xxxxxxxx Real Estate, Inc. for consulting fees relating to the
Real Property, in the amount of Nine Thousand Five Hundred
Dollars ($9,500). In addition, Seller will pay or reimburse
Purchaser for all consulting, legal, accounting, title
insurance and other fees or expenses which are incurred by
Purchaser directly in connection with this Agreement, the
Leases, or to the transactions which are the subject of any of
them, up to an aggregate total amount of Thirty Thousand
Dollars ($30,000). Except as set forth above in this Section
7(c), each Party will pay all of its respective attorneys'
fees in connection with the negotiation and preparation of
this Agreement and Closing; provided, however, that in the
event of default hereunder, the defaulting Party will pay all
reasonable attorneys' fees and costs incurred by the
non-defaulting Party in connection with the enforcement of the
rights and remedies of the non-defaulting Party;
(d) Seller will pay the costs of roof repair to the
extent set forth in Section 7C, below.
7A. If, and to the extent, any cost or fee will be payable by Seller
under this Agreement, Purchaser will have the right, upon five (5) days' written
notice to Seller, to pay such amount for the account of Seller and deduct the
amount thereof from the funds due Seller at the Closing.
7B. If Purchaser pays any expenses or incurs any costs which would be
reimbursable by Seller at Closing, and if the Parties do not complete the
Closing by that date set forth in Section 9, below, or by a mutually agreeable
date subsequent to that date, Seller will reimburse Purchaser for said expenses
or costs within ten (10) days following that date.
7C. Roof Repair. The Parties acknowledge that the roofs on the
buildings which comprise part of the Real Property require repair or
replacement. Promptly upon execution of this Agreement, the Parties will engage
a mutually acceptable roofing consultant, roofing contractor or other
knowledgeable person to examine those roofs and to advise the Parties the extent
and projected costs to repair or replace in a manner reasonably acceptable to
Purchaser. Purchaser will withhold an amount equal to said projected costs from
the Purchase Price and will proceed with such repair or replacement of the roofs
promptly following the Closing. If the sum of the fees and expenses of the said
consultant, contractor or other person plus Purchaser's direct, out of pocket
costs of such repair or replacement (the "Total Cost") is less than the said
projected costs, Purchaser will pay the difference to Seller within thirty (30)
days after receiving the final statement or statements for such costs. If the
Total Cost is more than the said projected costs, Seller will pay the difference
to Purchaser within thirty (30) days after receiving a copy of said final
statement or statements. Seller may at its expense audit Purchaser's records
relating to such costs; such audit will be conducted within sixty (60) days
after Seller receives a final statement of Purchaser's costs, and Seller will
conduct it during normal business hours at Purchaser's place of business or
other location in Hennepin County, Minnesota, determined by Purchaser. Purchaser
presently estimates that the Total Cost will be approximately Two Hundred Thirty
Thousand Dollars ($230,000).
8. Conditional Agreement. Unless waived by Purchaser in writing, or by failure
to object in writing within the applicable times set forth herein, Purchaser's
obligation to complete the purchase which is the subject of this Agreement will
be subject to and conditional upon each of the following:
(a) Leases. Seller and Purchaser shall have reached agreement on the
business and legal terms and entered into leases for the 00xx Xxxxxx
Property and the 00xx Xxxxxx Property, respectively ("Lease" or
"Leases"). Unless the Parties agree on the terms of the Leases,
neither party will be obligated to close the transaction which is the
subject of this Agreement.
(b) Use of Proceeds. Seller shall have executed that Agreement On Use
of Proceeds attached to this Agreement as Exhibit F. Unless both
Parties execute that Agreement, they will not close the purchase which
is the subject of this Agreement.
(c) No Conflict of Interest. The material facts as to this Agreement
and the transaction which is the subject of this Agreement and as to
Xxxx X. Xxxxxxx'x interests as a director of Seller and as a member of
Purchaser shall have been fully disclosed or known to Seller's
shareholders or board of directors and the shareholders or directors,
respectively, shall have approved, authorized or ratified said
transaction, so that neither this Agreement nor the said transaction
is made void or voidable by Xxxxxxx'x being a party, pursuant to the
provisions of Minnesota Corporation Act Section 302A.255, subd. 1; and
Seller shall have delivered to Purchaser a copy, certified by the
chief executive officer of Seller, of the shareholders' or the
directors' action acknowledging their knowledge of Xxxxxxx'x interests
and approving, authorizing or ratifying this Agreement and the said
transaction.
(d) Satisfaction of Mortgage. The Seller shall have delivered to
Purchaser documentation of satisfaction of the Mortgage described in
Section 4D, above, in such form as required by Chicago Title to issue
the Title Policy described in Section 4(a), above.
(e) Financial Plans. The Board of Directors of Seller shall have
completed, reviewed and formally approved an operating plan and
financial forecasts for Seller for the fiscal year ending March 31,
1999; and Seller shall have delivered to Purchaser copies of said plan
and forecasts.
(f) Representations and Warranties. The representations and warranties
of Seller contained in this Agreement must be true on the Closing Date
as if made on the Closing Date and Seller shall have delivered to
Purchaser at Closing a certificate dated the Closing Date, signed by
an authorized representative of Seller, certifying that such
representations and warranties are true as of the Closing Date
("Representations Certificate").
(g) Performance By Seller. Seller shall have performed all of the
obligations required to be performed by Seller under this Agreement,
as and when required by this Agreement.
(h) Title. Title shall have been found acceptable, be made acceptable,
or the title objection waived in accordance with the requirements and
terms of Section 4, above.
(i) Environmental Report. Purchaser shall have approved, in
Purchaser's reasonable discretion, the Phase I Environmental Report
described in Section 3B, above.
(j) Testing. Purchaser shall have determined, in Purchaser's
reasonable discretion, that it is satisfied with the results of any
testing which it may have caused to be conducted relating to the
matters disclosed by the Phase I Environmental Report.
(k) Document Review. Purchaser shall have determined, in Purchaser's
reasonable discretion, that it is satisfied with its review and
analysis of the Contracts, Permits, Warranties, Plans and Records
described in Section 1, above.
(l) No Adverse Action. There shall not exist any lawsuit or other
proceeding challenging the transaction which is the subject of this
Agreement, or which might adversely affect the right of Purchaser to
own, operate, lease or use the Real Property after the Closing Date,
nor shall any such action or proceeding have been threatened.
(m) Other Conditions. The other conditions to Purchaser's obligation
to close set out elsewhere in this Agreement shall have been satisfied
or waived by Purchaser on or before the Closing. By the act of
Closing, Purchaser shall be deemed to have found all conditions to
closing in favor of Purchaser to have been satisfied or waived;
provided, however, that nothing contained in this Section 8(m) shall
be deemed to waive or terminate any representations or warranties made
in this Agreement by Seller.
9. Closing. The closing of the purchase and sale transaction which is the
subject of this Agreement ("Closing") will take place at the Closing Agent's
offices on or before June 25, 1998, except that said date will be delayed for
any of the periods for correcting title as set forth in Sections 4A, 4B or 4C,
above. Notwithstanding anything to the contrary set forth in the preceding
sentence or elsewhere in this Agreement, if the Closing does not take place on
or prior to June 24, 1998, this Agreement will terminate.
9A. At the Closing, Seller will deliver to Purchaser possession of the
Real Property and keys to all locks in the buildings thereon and will execute
and deliver to Purchaser, or cause to be delivered to Purchaser, the following:
(a) A Warranty Deed ("Deed") in the form set forth in
Exhibit G attached to this Agreement, conveying the Real
Property to Purchaser, free and clear of all liens, charges
and encumbrances other than those encumbrances permitted
pursuant to Section 5A(d) above;
(b) A Warranty Xxxx of Sale, in form reasonably
satisfactory to Purchaser, conveying the Personal Property,
if any, to Purchaser, free and clear of all encumbrances;
(c) An Assignment of the Contracts, Permits and
Warranties described in Section 1, above, conveying such
Contracts, Permits and Warranties, if any, with warranties,
free and clear of all encumbrances, and with the consent of
all parties having a right to consent to such assignment;
(d) The Plans and Records described in Section 1,
above, if any;
(e) The executed Leases Described in Section 8(a),
above, and all security deposits and prepaid rents under the
Leases;
(f) An affidavit that on the Closing Date there are no
outstanding, unsatisfied judgments, tax liens or
bankruptcies against or involving Seller;
(g) A FIRPTA affidavit duly executed by Seller
confirming that Seller is not a "foreign entity";
(h) All owner's duplicate certificates of title for the
Real Property;
(i) Copies of all blueprints, plans, specifications,
manuals, warranties and guarantees relating to the Real
Property, if any, to the extent such items are in Seller's
possession or control;
(j) A Certificate of the Secretary of State of
Minnesota that Seller is in good standing in said State as
of a date not earlier than five (5) business days prior to
the Closing Date;
(k) The Representations Certificate described in
Section 8(f), above;
(l) Evidence reasonably satisfactory to Purchaser that
this Agreement and all Seller's Related Agreements have been
validly authorized, executed and delivered and each is
enforceable in accordance with its terms.
9B. At the Closing, Purchaser will pay to Seller the Purchase
Price in accordance with Section 2, above, and will deliver to Seller the
following:
(a) A Certificate of the Secretary of State of Minnesota
that Purchaser is in good standing in said State as of a
date not earlier than five (5) business days prior to the
Closing Date;
(b) An opinion of Purchaser's counsel that this Agreement
and all Purchaser's Related Agreements have been validly
authorized, executed and delivered and each is enforceable
in accordance with its terms.
10. Damage, Destruction and Eminent Domain.
(a) If, prior to closing, the Real Property or any part
thereof shall be damaged or destroyed by any cause,
Purchaser will have the right, by giving notice to Seller
within thirty (30) days following actual notice of the
occurrence of such damage or destruction, to terminate this
Agreement, in which case this Agreement will become null and
void. If Purchaser elects to proceed and to consummate the
purchase which is the subject of this Agreement, despite
such damage or destruction, there will be no reduction in or
abatement of the Purchase Price, and Seller will assign to
Purchaser all of Seller's right, title and interest in and
to all insurance proceeds resulting, or to result, from said
damage or destruction.
(b) If, prior to closing, the Real Property or any part
thereof shall be taken by, or is under threat of taking by,
eminent domain, Purchaser will have the right, within thirty
(30) days of receipt by Purchaser of Seller's written notice
to Purchaser of such eminent domain proceeding or threat
thereof, to terminate this Agreement, in which case this
Agreement will become null and void. If Purchaser elects to
proceed and to consummate the purchase which is the subject
of this Agreement despite said taking, there will be no
reduction in or abatement of the Purchase Price, and Seller
will assign to Purchaser all Seller's right, title and
interest in and to any award made, or to be made, in the
eminent domain proceedings, and Purchaser will have the
option of representing the interests of the landowner in
said proceedings.
11. This Section 11 has been intentionally left blank.
12. Assignment. Purchaser will have the right to assign its interest under this
Agreement to any related person or entity without first obtaining the consent of
Seller; provided that Purchaser prior to the assignment or contemporaneously
therewith gives Seller notice thereof, a copy of the assignment document, and
the name and address of the assignee for notice purposes. Any such assignment by
Purchaser will not affect Purchaser's obligations under the terms of this
Agreement.
13. Survival. All of the terms, covenants, conditions, representations,
warranties and agreements contained in this Agreement will survive the Closing
and will continue in full force and effect and be enforceable after the Closing.
14. Notice. Any notice required or permitted to be given to either Party will be
deemed given (a) when personally delivered to or served upon the Party, or (b)
on the date of delivery shown on the receipt if deposited in the U.S. certified
mail, postage prepaid, return receipt requested, properly addressed as set forth
below, or (c) on the date of delivery shown on the receipt if sent by reputable
overnight courier, properly addressed as set forth below:
If to Seller: NORTHWEST TELEPRODUCTIONS, INC.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
If to Purchaser: LINDUE, LLC
c/o Pierson & Xxxxxxx
Attorneys at Law
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Seller or Purchaser may change its address for the service of notice hereunder
by providing ten (10) days' prior written notice of said change to the other
Party, in the manner above specified.
15. Captions. The section headings or captions appearing in this Agreement are
for convenience only, are not a part of this Agreement and are not to be
considered in interpreting this Agreement.
(a) Other than the Leases set forth above in Section 8(a) and any
other agreement or agreements specifically authorized or provided for
by the terms of this Agreement, this Agreement constitutes the entire
and complete agreement between the Parties and supersedes any prior
oral or written agreements between the Parties with respect to the
Real Property, the Personal Property, the Real Property or any
transaction or transactions referred to in this Agreement.
(b) There are no verbal understandings or agreements which in any way
change the terms, covenants and conditions herein set forth. No
amendment, revision or modification of this Agreement and no waiver of
any of its terms or conditions will be effective unless it is in
writing and signed by the Parties and notarized.
17. Binding Effect. All covenants, agreements, warranties and provisions of this
Agreement will be binding upon and inure to the benefit of the Parties and their
respective successors and permitted assigns. When used herein, the singular will
include the plural, the plural will include the singular, and the use of one
gender will include all other genders, as and when the context so requires.
18. Controlling Law. This Agreement has been made and entered into under the
laws of the State of Minnesota, and said laws will control the interpretation of
this Agreement.
19. Remedies. If Purchaser shall default in its obligations hereunder, the sole
remedy available to Seller will be to terminate this Agreement, and upon such
termination Seller will retain the Xxxxxxx Money as liquidated damages, and
neither Party will have any further rights or obligations hereunder. Except as
specifically set forth otherwise in this Agreement, Purchaser will not be liable
for specific performance or damages. If Seller shall default in Seller's
obligations hereunder, the sole remedies available to Purchaser will be (i) to
terminate this Agreement by written notice to Seller, and upon such termination
to obtain the Xxxxxxx Money, plus interest, from Seller, in which event neither
party will have any further rights or obligations hereunder, or (ii) to seek
specific performance of this Agreement.
20. Severability. If any provision of this Agreement, or any application
thereof, will be invalid or unenforceable, the remainder of this Agreement and
any other application of such provision will not be affected thereby and will
not be rendered invalid or unenforceable.
21. Time of Essence. Time is of the essence of this Agreement.
The Parties have caused this Agreement to be executed on this and the following
page.
SELLER: PURCHASER:
NORTHWEST TELEPRODUCTIONS, INC. LINDUE, LLC
By:_____________________________ By:_________________________________
Its: President Its:________________________________
WITNESSED: WITNESSED:
______________________________ ____________________________________
______________________________ ____________________________________
EXHIBIT A
Legal Description
TractR, Registered Land Survey No. 1218, Files of Registrar
of Titles, County of Hennepin, Minnesota
Xxx 0, Xxxxx 0, Xxxxx Office Center 2nd Addition, according
to the plat thereof on file or of record in the office of
the Registrar of Titles, Hennepin County, Minnesota
EXHIBIT B
Personal Property
None
EXHIBIT C
Contracts
None
EXHIBIT D
Permits F
None
