PURCHASE AND SALE AGREEMENT
by and between
PRUDENTIAL ACQUISITION FUND I, L.P.,
a Delaware limited partnership
and
NORWEST BANK MINNESOTA SOUTH, N.A.,
a national banking association
Prudential Property No.
Property Name: Norwest Center Building
Location: Rochester, Minnesota
Date: October 18, 1996
TABLE OF CONTENTS
Article Page
1 SALE OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Real Property . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Personal Property . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Other Property Rights . . . . . . . . . . . . . . . . . . . . 1
2 PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3 TITLE MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Title to Real Property. . . . . . . . . . . . . . . . . . . . 2
3.2 Title Insurance . . . . . . . . . . . . . . . . . . . . . . . 2
4 BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY. . . . . . . . . . 3
4.1 Buyer's Inspections and Due Diligence . . . . . . . . . . . . 3
4.2 Property Sold "As Is.". . . . . . . . . . . . . . . . . . . . 4
5 ADJUSTMENTS AND PRORATIONS . . . . . . . . . . . . . . . . . . . . 8
5.1 Lease Rentals and Expenses. . . . . . . . . . . . . . . . . . 8
5.1.1 Rents . . . . . . . . . . . . . . . . . . . . . . . 8
5.2 Real Estate and Personal Property Taxes . . . . . . . . . . . 9
5.3 Other Property Operating Expenses . . . . . . . . . . . . . . 9
5.4 Closing Costs . . . . . . . . . . . . . . . . . . . . . . . . 10
5.5 Cash Security Deposits. . . . . . . . . . . . . . . . . . . . 10
5.6 Apportionment Credit. . . . . . . . . . . . . . . . . . . . . 10
5.7 Mayo Foundation Leases. . . . . . . . . . . . . . . . . . . . 10
5.8 Prorations Final. . . . . . . . . . . . . . . . . . . . . . . 11
6 CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.1 Closing Date. . . . . . . . . . . . . . . . . . . . . . . . . 11
6.2 Intentionally Omitted . . . . . . . . . . . . . . . . . . . . 11
6.3 Seller's Closing Deliveries.. . . . . . . . . . . . . . . . . 11
6.4 Buyer Closing Deliveries. . . . . . . . . . . . . . . . . . . 13
6.5 Delivery of Deed. . . . . . . . . . . . . . . . . . . . . . . 14
7 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . 14
7.1 Buyer's Representations . . . . . . . . . . . . . . . . . . . 14
7.1.1 Buyer's Authorization . . . . . . . . . . . . . . . 14
7.1.2 Buyer's Financial Condition . . . . . . . . . . . . 14
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7.2 Seller's Representations. . . . . . . . . . . . . . . . . . . 14
7.2.1 Seller's Authorization. . . . . . . . . . . . . . . 14
7.2.2 Other Seller's Representations. . . . . . . . . . . 15
7.3 General Provisions. . . . . . . . . . . . . . . . . . . . . . 16
7.3.1 No Representation As to Leases. . . . . . . . . . . 16
7.3.2 Definition of "Seller's Knowledge". . . . . . . . . 16
7.3.3 Seller's Representations Deemed
Modified. . . . . . . . . . . . . . . . . . . . . . . . 16
7.3.4 Survival; Limitation on Seller's
Liability . . . . . . . . . . . . . . . . . . . . . . . 16
8 COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8.1 Buyer's Covenants . . . . . . . . . . . . . . . . . . . . . . 17
8.1.1 Confidentiality . . . . . . . . . . . . . . . . . . 17
8.1.2 Buyer's Indemnity; Delivery of Reports. . . . . . . 17
8.2 Mutual Covenants. . . . . . . . . . . . . . . . . . . . . . . 18
8.2.1 Publicity . . . . . . . . . . . . . . . . . . . . . 18
8.2.2 Broker. . . . . . . . . . . . . . . . . . . . . . . 18
8.2.3 Tax Refunds and Credits . . . . . . . . . . . . . . 18
8.2.4 Survival. . . . . . . . . . . . . . . . . . . . . . 19
9 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . 19
9.1 Buyer's Assignment. . . . . . . . . . . . . . . . . . . . . . 19
9.2 Designation Agreement . . . . . . . . . . . . . . . . . . . . 19
9.3 Survival/Merger . . . . . . . . . . . . . . . . . . . . . . . 20
9.4 Integration; Waiver . . . . . . . . . . . . . . . . . . . . . 20
9.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 20
9.6 Captions Not Binding; Schedules and Exhibits. . . . . . . . . 20
9.7 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . 20
9.8 Severability. . . . . . . . . . . . . . . . . . . . . . . . . 21
9.9 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
9.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . 21
9.11 No Recordation. . . . . . . . . . . . . . . . . . . . . . . . 22
9.12 Additional Agreements; Further Assurances . . . . . . . . . . 22
9.13 Construction. . . . . . . . . . . . . . . . . . . . . . . . . 22
9.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9.15 Business Day. . . . . . . . . . . . . . . . . . . . . . . . . 23
9.16 Seller's Maximum Aggregate Liability. . . . . . . . . . . . . 23
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EXHIBITS
Exhibit A - Legal Description
Exhibit B - List of Tangible Personal Property
Exhibit C - List of Contracts
Exhibit D - Title Report
Exhibit E - Form of Special Warranty Deed
Exhibit F - Form of Xxxx of Sale
Exhibit G - Form of Assignment of Leases
Exhibit H - List of Tenants
Exhibit I - Form of Assignment of Contracts
Exhibit J - Form of Notice to Tenants
Exhibit K - Form of Seller's FIRPTA Affidavit
Exhibit L - Litigation Notices, Contract Defaults and
Governmental Violations
Exhibit M - Permitted Exceptions
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PAGE
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made this
18th day of October, 1996, by and between PRUDENTIAL ACQUISITION
FUND I, L.P., a Delaware limited partnership ("Seller"), and
NORWEST BANK MINNESOTA SOUTH, N.A., a national banking
association ("Buyer").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements set
forth herein the parties hereto do hereby agree as follows:
ARTICLE 1
SALE OF PROPERTY
Seller agrees to sell, transfer and assign and Buyer agrees
to purchase, accept and assume, subject to the terms and
conditions stated herein, all of Seller's right, title and
interest in and to the following (herein collectively called the
"Property"):
1.1 Real Property. That certain parcel of real estate
located in Rochester, Minnesota, and legally described in
Exhibit A attached hereto and incorporated herein by this
reference, together with all buildings, improvements and
fixtures located thereon and all rights, privileges and
appurtenances pertaining thereto including all of Seller's
right, title and interest in and to all rights-of-way, open or
proposed streets, alleys, easements, strips or gores of land
adjacent thereto (herein collectively called the "Real
Property"); and
1.2 Personal Property. The tangible personal property
listed on Exhibit B attached hereto and incorporated hereby this
reference, and all books, records, operating statements and
files (excluding appraisals, budgets, Seller's strategic plans
for the Property, internal analyses, marketing information,
submissions relating to Seller's obtaining of corporate
authorization, attorney and accountant work product, or other
information in the possession or control of Seller or Seller's
property manager which Seller deems proprietary ("Seller's
Proprietary Information")), relating to the Real Property
(herein collectively called the "Personal Property"); and
1.3 Other Property Rights. (a) Seller's interest as
landlord in all leases encumbering the Real Property on the
Closing Date (as defined in Section 6.1); and (b) if and to the
extent assignable by Seller, (i) all service, supply,
maintenance, utility and commission agreements, all equipment
leases, and all contracts, subcontracts and agreements relating
to the construction of
any unfinished tenant improvements described in Exhibit C attached
hereto and incorporated herein by this reference, and (ii) all
licenses, permits and other written authorizations necessary for the
use, operation or ownership of the Real Property or Personal Property
(the rights and interests of Seller described in clauses (a) through (b)
hereinabove being herein collectively called the "Other Property
Rights").
ARTICLE 2
PURCHASE PRICE
The total purchase price to be paid by Buyer for the
purchase of the Property is the sum of SIX MILLION NINE HUNDRED
THOUSAND AND NO/100 DOLLARS ($6,900,000.00) in immediately
available funds (the "Purchase Price"). The Purchase Price
shall be paid concurrently herewith, subject to the prorations
and adjustments set forth in Article 5 or as otherwise provided
under this Agreement, plus any other amounts required to be paid
by Buyer at Closing.
ARTICLE 3
TITLE MATTERS
3.1 Title to Real Property. Seller has previously
delivered to Buyer (a) Chicago Title Insurance Company's (the
"Title Company") commitment to issue an Owner's Policy of Title
Insurance with respect to the Property (the "Title Report")
identified as Title Insurance Commitment File No. C2466598, with
an effective date of September 10, 1996 at 7:00 a.m., a copy of
which is attached hereto as Exhibit D and incorporated herein
by this reference, (b) copies of all recorded documents referred
to on Schedule B of the Title Report as exceptions to coverage
(the "Title Documents"), and (c) a certified boundary survey of
the Property dated August 22, 1983, prepared by XxXxxx & Xxxxx,
Inc. (the "Survey").
3.2 Title Insurance. Concurrently herewith, the Title
Company shall issue to Buyer, at Buyer's sole cost and expense
(less the service fee for the Title Report which shall be paid
by Seller as provided in Section 5.4 below), an ALTA Owner's
Form of title insurance policy in the form of the Title Report
(the "Owner's Title Policy"), in the amount of the Purchase
Price, insuring that fee simple title to the Real Property is
vested in Buyer subject only to the Permitted Exceptions listed
on Exhibit M attached hereto and incorporated hereby by this
reference. Buyer shall be entitled to request that the Title
Company provide, at Buyer's sole cost and expense, such
endorsements (or amendments) to the Owner's Title Policy as
Buyer may reasonably require, provided that (a) such
endorsements (or amendments) shall be at no cost or additional
liability to Seller, (b) Buyer's obligations under this
Agreement shall not be conditioned upon
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Buyer's ability to obtain such endorsements and, if Buyer is
unable to obtain such endorsements, Buyer shall nevertheless
be obligated to proceed to close the transaction contemplated
by this Agreement (the "Transaction") without reduction of or
set off against the Purchase Price, and (c) the Closing shall
not be delayed as a result of Buyer's request.
ARTICLE 4
BUYER'S DUE DILIGENCE/CONDITION OF THE PROPERTY
4.1 Buyer's Inspections and Due Diligence.
(a) Buyer acknowledges that, prior to Buyer's
execution of this Agreement:
(i) Buyer has conducted all such inspections,
investigations, tests, analyses, appraisals
and evaluations of the Property (including
for Hazardous Materials (as defined in
Subsection 4.2(e)) as Buyer considers
necessary or appropriate (all of such
inspections, investigations and reports being
herein collectively called the
"Investigations"); and
(ii) Seller has made available to Buyer and
otherwise allowed Buyer access to, copies of
certain documents in Seller's possession
applicable to the Property, including, but
not limited to, the Title Report, the Survey,
the Title Documents, the Leases, the
Contracts (as defined in Subsection 6.3(d)),
the Property Documents (as defined in
Subsection 6.3(i)), and such other non-
proprietary, non-privileged reports,
documents, books and records which pertain to
the Property as Buyer has deemed necessary or
appropriate (all of the foregoing documents
described in this clause (ii) being herein
collectively called the "Documents").
Buyer has reviewed, examined, evaluated and
verified all Documents and the results of the
Investigations to the extent it deems necessary or
appropriate with the assistance of such experts as
Buyer deemed appropriate. In particular, Buyer
has determined to its satisfaction the
assignability of any Documents to be assigned
hereunder. Buyer acknowledges and agrees that it
(A) is familiar with the physical condition of the
Property, (B) has completed its due diligence with
respect to the Property and the Documents to its
satisfaction, (C) is acquiring the Property based
exclusively upon its own investigations and
inspections of the Property and the Documents, and
(D) shall have no additional period
3
after the date hereof to conduct further physical
due diligence regarding the Property.
4.2 Property Sold "As Is."
(a) BUYER ACKNOWLEDGES AND AGREES THAT (i) THE
PROPERTY SHALL BE SOLD, AND BUYER SHALL ACCEPT POSSESSION OF
THE PROPERTY ON THE CLOSING DATE, "AS IS, WHERE IS, WITH ALL
FAULTS", WITH NO RIGHT OF SETOFF OR REDUCTION IN THE
PURCHASE PRICE; (ii) EXCEPT FOR SELLER'S REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 8.2 AND THE LIMITED WARRANTY
OF TITLE TO BE GIVEN IN THE DEED (AS DEFINED IN
SECTION 6.3(a)) (HEREIN COLLECTIVELY CALLED THE "SELLER'S
WARRANTIES"), NONE OF SELLER, ITS COUNSEL, WELSH COMPANIES
("BROKER"), ITS SALES AGENTS, NOR ANY PARTNER, OFFICER,
DIRECTOR, EMPLOYEE, AGENT OR ATTORNEY OF SELLER, ITS
COUNSEL, BROKER, OR ITS SALES AGENTS, NOR ANY OTHER PARTY
RELATED IN ANY WAY TO ANY OF THE FOREGOING (ALL OF WHICH
PARTIES ARE HEREIN COLLECTIVELY CALLED THE "SELLER PARTIES")
HAVE OR SHALL BE DEEMED TO HAVE MADE ANY VERBAL OR WRITTEN
REPRESENTATIONS, WARRANTIES, PROMISES OR GUARANTEES (WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) TO BUYER WITH
RESPECT TO THE PROPERTY, ANY MATTER SET FORTH, CONTAINED OR
ADDRESSED IN THE DOCUMENTS (INCLUDING, BUT NOT LIMITED TO,
THE ACCURACY AND COMPLETENESS THEREOF) OR THE RESULTS OF THE
INVESTIGATIONS; AND (iii) BUYER HAS CONFIRMED INDEPENDENTLY
ALL INFORMATION THAT IT CONSIDERS MATERIAL TO ITS PURCHASE
OF THE PROPERTY OR THE TRANSACTION. BUYER SPECIFICALLY
ACKNOWLEDGES THAT, EXCEPT FOR SELLER'S WARRANTIES (AS SUCH
TERM IS HEREIN DEFINED), BUYER IS NOT RELYING ON (AND SELLER
AND EACH OF THE OTHER SELLER PARTIES DOES HEREBY DISCLAIM
AND RENOUNCE) ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND
OR NATURE WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, FROM SELLER OR ANY OTHER
SELLER PARTIES, AS TO: (1) THE OPERATION OF THE PROPERTY OR
THE INCOME POTENTIAL, USES, OR MERCHANTABILITY OR FITNESS OF
ANY PORTION OF THE PROPERTY FOR A PARTICULAR PURPOSE; (2)
THE PHYSICAL CONDITION OF THE PROPERTY OR THE CONDITION OR
SAFETY OF THE PROPERTY OR ANY IMPROVEMENTS THEREON,
INCLUDING, BUT NOT LIMITED TO, PLUMBING, SEWER, HEATING AND
ELECTRICAL SYSTEMS, ROOFING, AIR CONDITIONING, FOUNDATIONS,
SOILS AND GEOLOGY, INCLUDING HAZARDOUS MATERIALS, LOT SIZE,
OR SUITABILITY OF THE PROPERTY OR ANY IMPROVEMENTS THEREON
FOR A PARTICULAR PURPOSE; (3) THE PRESENCE OR ABSENCE,
LOCATION OR SCOPE OF ANY HAZARDOUS MATERIALS IN, AT,
4
OR UNDER THE PROPERTY; (4) WHETHER THE APPLIANCES, IF ANY,
PLUMBING OR UTILITIES ARE IN WORKING ORDER; (5) THE
HABITABILITY OR SUITABILITY FOR OCCUPANCY OF ANY STRUCTURE
AND THE QUALITY OF ITS CONSTRUCTION; (6) WHETHER THE
IMPROVEMENTS ARE STRUCTURALLY SOUND, IN GOOD CONDITION, OR
IN COMPLIANCE WITH APPLICABLE MUNICIPAL, COUNTY, STATE OR
FEDERAL STATUTES, CODES OR ORDINANCES; (7) THE ACCURACY OF
ANY STATEMENTS, CALCULATIONS OR CONDITIONS STATED OR SET
FORTH IN SELLER'S BOOKS AND RECORDS CONCERNING THE PROPERTY
OR SET FORTH IN ANY OF SELLER'S OFFERING MATERIALS WITH
RESPECT TO THE PROPERTY; (8) THE DIMENSIONS OF THE PROPERTY
OR THE ACCURACY OF ANY FLOOR PLANS, SQUARE FOOTAGE, LEASE
ABSTRACTS, SKETCHES, REVENUE OR EXPENSE PROJECTIONS RELATED
TO THE PROPERTY; (9) THE OPERATING PERFORMANCE, THE INCOME
AND EXPENSES OF THE PROPERTY OR THE ECONOMIC STATUS OF THE
PROPERTY; (10) THE ABILITY OF BUYER TO OBTAIN ANY AND ALL
NECESSARY GOVERNMENTAL APPROVALS OR PERMITS FOR BUYER'S
INTENDED USE AND DEVELOPMENT OF THE PROPERTY OR ANY OF THE
DOCUMENTS; (11) THE LEASING STATUS OF THE PROPERTY OR THE
INTENTIONS OF ANY PARTIES WITH RESPECT TO THE NEGOTIATION
AND/OR EXECUTION OF ANY LEASE FOR ANY PORTION OF THE
PROPERTY; AND (12) SELLER'S OWNERSHIP OF ANY PORTION OF THE
PROPERTY. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT,
EXCEPT FOR THE DISCLOSURES MADE IN THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 8.2 HEREOF, SELLER IS UNDER
NO DUTY TO MAKE ANY AFFIRMATIVE DISCLOSURES OR INQUIRY
REGARDING ANY MATTER WHICH MAY OR MAY NOT BE KNOWN TO
SELLER, ITS OFFICERS, DIRECTORS, CONTRACTORS, AGENTS OR
EMPLOYEES.
(b) ANY REPORTS, REPAIRS OR WORK REQUIRED BY BUYER ARE
THE SOLE RESPONSIBILITY OF BUYER, AND BUYER AGREES THAT
THERE IS NO OBLIGATION ON THE PART OF SELLER TO MAKE ANY
CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY OR TO CURE
ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE REQUIREMENTS OF
ANY INSURER. BUYER IS SOLELY RESPONSIBLE FOR OBTAINING ANY
CERTIFICATE OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT
NECESSARY FOR TRANSFER OR OCCUPANCY OF THE PROPERTY AND FOR
ANY REPAIRS OR ALTERATIONS NECESSARY TO OBTAIN THE SAME, ALL
AT BUYER'S SOLE COST AND EXPENSE. BUYER ACKNOWLEDGES AND
AGREES THAT BUYER'S OBLIGATIONS HEREUNDER SHALL REMAIN IN
FULL FORCE AND EFFECT WITH BUYER HAVING NO RIGHT TO DELAY
THE CLOSING OR TERMINATE THIS AGREEMENT REGARDLESS OF ANY
FACTS OR INFORMATION LEARNED BY BUYER AFTER THE DATE HEREOF,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT.
5
(c) BUYER, FOR BUYER AND BUYER'S SUCCESSORS AND
ASSIGNS, HEREBY RELEASES SELLER FROM, AND WAIVES ALL CLAIMS
AND LIABILITY AGAINST SELLER FOR OR ATTRIBUTABLE TO THE
FOLLOWING:
(i) ANY AND ALL STATEMENTS OR OPINIONS HERETOFORE
OR HEREAFTER MADE, OR INFORMATION FURNISHED,
BY THE SELLER PARTIES TO BUYER OR ITS AGENTS
OR REPRESENTATIVES, EXCEPT FOR SELLER'S
WARRANTIES (AS SUCH TERM IS HEREIN DEFINED);
AND
(ii) ANY STRUCTURAL, PHYSICAL OR ENVIRONMENTAL
CONDITION AT THE PROPERTY, INCLUDING WITHOUT
LIMITATION, CLAIMS OR LIABILITIES RELATING TO
THE PRESENCE, DISCOVERY OR REMOVAL OF ANY
HAZARDOUS MATERIALS IN, AT, ABOUT OR UNDER
THE PROPERTY, OR FOR, CONNECTED WITH OR
ARISING OUT OF ANY AND ALL CLAIMS OR CAUSES
OF ACTION BASED UPON CERCLA (COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND
LIABILITY ACT OF 1980, 42 U.S.C. ''9601 ET
SEQ., AS AMENDED BY XXXX [SUPERFUND AMENDMENT
AND REAUTHORIZATION ACT OF 1986] AND AS MAY
BE FURTHER AMENDED FROM TIME TO TIME), THE
RESOURCE CONSERVATION AND RECOVERY ACT OF
1976, 42 U.S.C. ''6901 ET SEQ., OR ANY
RELATED CLAIMS OR CAUSES OF ACTION OR ANY
OTHER FEDERAL OR STATE BASED STATUTORY OR
REGULATORY CAUSES OF ACTION FOR ENVIRONMENTAL
CONTAMINATION AT, IN OR UNDER THE PROPERTY.
(d) EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN
THIS SUBSECTION (d), BUYER HEREBY (i) ASSUMES AND TAKES
RESPONSIBILITY AND LIABILITY FOR ALL LOSSES, COSTS, CLAIMS,
LIABILITIES, EXPENSES, DEMANDS AND OBLIGATIONS OF EVERY KIND
OR NATURE WHATSOEVER ATTRIBUTABLE TO THE PROPERTY, WHETHER
ARISING OR ACCRUING BEFORE OR AFTER THE DATE HEREOF AND
WHETHER ATTRIBUTABLE TO EVENTS OR CIRCUMSTANCES WHICH HAVE
HERETOFORE OR MAY HEREAFTER OCCUR, INCLUDING, WITHOUT
LIMITATION, ALL LOSSES, COSTS, CLAIMS, LIABILITIES, EXPENSES
AND DEMANDS WITH RESPECT TO THE STRUCTURAL, PHYSICAL OR
ENVIRONMENTAL CONDITION OF THE PROPERTY (INCLUDING, WITHOUT
LIMITATION, ANY HAZARDOUS MATERIALS, IN AT, UNDER OR ABOUT
THE PROPERTY), AND (ii) AGREES TO
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INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER FROM ANY LOSS,
COST, CLAIM, LIABILITY, EXPENSE OR DEMAND WITH RESPECT
THERETO. BY ITS EXECUTION OF THIS AGREEMENT, BUYER HEREBY
AGREES THAT IT SHALL AT ALL TIMES COMPLY WITH ALL APPLICABLE
FEDERAL, STATE AND LOCAL LAWS, RULES AND REGULATIONS
INVOLVING HAZARDOUS MATERIALS IN, AT, UNDER OR ABOUT THE
PROPERTY OR THEIR REMOVAL FROM THE PROPERTY. NOTWITHSTANDING
THE FOREGOING, HOWEVER, BUYER DOES NOT ASSUME (AND SHALL NOT
BE REQUIRED TO INDEMNIFY SELLER FOR) ANY RESPONSIBILITY OR
LIABILITY ARISING OUT OF OR IN CONNECTION WITH:
(i) ANY CLAIMS MADE OR CAUSES OF ACTION BROUGHT
BY ANY THIRD PARTY UNRELATED TO BUYER
ALLEGING A DEFAULT OR BREACH BY SELLER WHICH
IS ALLEGED TO HAVE OCCURRED PRIOR TO THE
CLOSING DATE UNDER ANY CONTRACT OR AGREEMENT
(OTHER THAN ANY LEASE (AS SUCH TERM IS HEREIN
DEFINED)) ENTERED INTO BETWEEN SELLER AND ANY
SUCH CLAIMANT; PROVIDED, HOWEVER, THAT BUYER
SHALL BE DEEMED TO ASSUME AND SHALL INDEMNIFY
SELLER IN ACCORDANCE WITH THE TERMS OF THIS
SUBSECTION (d) WITH RESPECT TO ANY SUCH
CLAIMS OR CAUSES OF ACTION TO THE EXTENT THAT
THE SAME RELATE TO ANY ALLEGED DEFAULTS OR
THE BREACH OF ANY OF THE LEASES (AS SUCH TERM
IS HEREIN DEFINED), IT BEING UNDERSTOOD AND
AGREED BY BUYER AND SELLER THAT BUYER SHALL
RELY SOLELY UPON ITS DUE DILIGENCE WITH
RESPECT TO THE PROPERTY, SELLER'S WARRANTIES
(AS SUCH TERM IS HEREIN DEFINED) AND SUCH
TENANT ESTOPPEL CERTIFICATES AS BUYER MAY
RECEIVE ON OR BEFORE THE CLOSING DATE WITH
RESPECT TO PROTECTION AGAINST ANY ALLEGED
BREACH OR DEFAULT BY SELLER UNDER ANY OF THE
LEASES THAT MAY HAVE OCCURRED PRIOR TO THE
CLOSING DATE; OR
(ii) ANY TORT CLAIMS MADE OR BROUGHT BY A THIRD
PARTY UNRELATED TO BUYER WHICH ARISE FROM ANY
ACTS OR OMISSIONS OF SELLER WHICH OCCURRED
DURING THE TIME THAT SELLER OWNED FEE TITLE
TO THE PROPERTY.
7
(e) For purposes of this Agreement, the term
"Hazardous Material" shall mean any substance, chemical,
waste or material that is or becomes regulated by any
federal, state or local governmental authority because of
its toxicity, infectiousness, radioactivity, explosiveness,
ignitability, corrosiveness or reactivity, including,
without limitation, asbestos or any substance containing
more than 0.1 percent asbestos, the group of compounds known
as polychlorinated biphenyls, flammable explosives, oil,
petroleum or any refined petroleum product.
(f) Buyer acknowledges and agrees that the provisions
of this Article 4 were a material factor in Seller's
acceptance of the Purchase Price and, while Seller has
provided the Documents and cooperated with Buyer, Seller is
unwilling to sell the Property unless Seller and the other
Seller Parties are expressly released as set forth in
Subsection 4.2(c) and Buyer assumes the obligations
specified in, and provides the indemnifications set forth
in, Subsection 4.2(d).
(g) Notwithstanding anything to the contrary herein,
the provisions of this Section 4.2 shall survive the Closing
and shall not be merged therein.
ARTICLE 5
ADJUSTMENTS AND PRORATIONS
The following adjustments and prorations shall be made at
Closing:
5.1 Lease Rentals and Expenses.
5.1.1 Rents. All collected rents and other
payments from tenants under the leases shall be prorated
between Seller and Buyer as of the day prior to the Closing
Date. Seller shall be entitled to all rents (including any
percentage rent, additional rent and any accrued tax and
operating expense reimbursements and escalations), charges,
and other revenue of any kind attributable to any period
under the Leases to but not including the Closing Date.
Buyer shall be entitled to all rents (including any
percentage rent, additional rent and any accrued tax and
operating expense reimbursements and escalations), charges
and other revenue of any kind attributable to any period
under the Leases on and after the Closing Date. Rents and
expense escalations or other reimbursements due landlord
under the Leases not collected as of the Closing Date shall
not be prorated at the time of Closing, but Buyer shall make
a good faith effort to collect the same on Seller's behalf
and to tender the same to Seller upon receipt (which
obligation of Buyer shall survive the Closing and not be
merged therein); provided, however, that all rents,
escalations and other reimbursements due landlord under the
Leases collected by Buyer on or after the Closing Date shall
first be applied to all
8
amounts due under the Leases at the time of collection
(i.e., current rents and sums due Buyer
as the current owner and landlord) with the balance (if any)
payable to Seller, but only to the extent of amounts
delinquent and actually due Seller. Buyer shall not have an
exclusive right to collect the sums due Seller under the
Leases and Seller hereby retains its rights to pursue any
tenant under the Leases for sums due Seller for periods
attributable to Seller's ownership of the Property;
provided, however, that Seller shall not be permitted to
commence or pursue any legal proceedings against any tenant
seeking eviction of such tenant or the termination of the
underlying lease. Seller's rights under the immediately
preceding sentence shall survive the Closing and not be
merged therein. Buyer shall receive a credit against the
Purchase Price for pre-paid rentals held by Seller covering
the period post-Closing. Notwithstanding the foregoing, any
rent which is attributable to real estate taxes which has
been collected by Seller shall be prorated as set forth in
Section 5.2 below and Buyer shall not otherwise be entitled
to receive any such rent attributable to real estate taxes.
5.2 Real Estate and Personal Property Taxes. Seller shall
receive a proration of $__________ for real estate and personal
property taxes for the calendar year 1996 which have been paid
in full by Seller prior to the date hereof. There shall be no
proration of real estate taxes other than as aforesaid and such
proration shall be final. In the event the Property has been
assessed for property tax purposes at such rates as would result
in reassessment (i.e., "escape assessment" or "roll-back taxes")
based upon the change in land usage or ownership of the
Property, Buyer hereby agrees to pay all such taxes and to
indemnify and save Seller harmless from and against all claims
and liability for such taxes. Such indemnity shall survive the
Closing and not be merged therein.
5.3 Other Property Operating Expenses. Operating expenses
for the Property shall be prorated as of midnight of the day
prior to the Closing Date. Seller shall pay all utility charges
and other operating expenses attributable to the Property to,
but not including the Closing Date (except for those utility
charges and operating expenses payable by tenants in accordance
with the Leases) and Buyer shall pay all utility charges and
other operating expenses attributable to the Property on or
after the Closing Date. To the extent that the amount of actual
consumption of any utility services is not determined prior to
the Closing Date, a proration shall be made at Closing based on
the last available reading and such proration shall be final.
Seller shall not assign to Buyer any deposits which Seller has
with any of the utility services or companies servicing the
Property. Buyer shall arrange with such services and companies
to have accounts opened in Buyer's name beginning at 12:01 a.m.
on the Closing Date. Notwithstanding the foregoing terms of
this Section, Seller shall have no obligation to pay (and Buyer
shall not receive a credit at Closing for) any operating
expenses to the extent that Buyer is entitled after Closing to
reimbursement of operating expenses, or the recovery of any
increase in operating expenses, from the tenants under the
Leases, regardless of whether Buyer actually collects such
reimbursement or increased operating expenses from such tenants,
it being understood and agreed by Buyer and Seller that the
burden of collecting such reimbursements shall be solely on Buyer.
9
5.4 Closing Costs. Buyer shall pay all premiums and
charges of the Title Company for the Owner's Title Policy
(including endorsements) to be issued pursuant to the Title
Report (less the service fee for the Title Report which shall
be paid by Seller), the cost of any survey obtained by Buyer,
all recording and filing charges in connection with the
instrument by which Seller conveys the Property, one-half (1/2)
of all escrow or closing charges, all costs of Buyer's Due
Diligence and any other costs customarily paid by the buyer
pursuant to local practice. Seller shall pay the service fee
for the Title Report, one-half (1/2) of all escrow or closing
charges and all transfer taxes and similar charges, if any,
applicable to the transfer of the Property to Buyer and any
other costs customarily paid by the seller pursuant to local
practice. Except as otherwise agreed by the parties, each party
shall pay its own attorneys. The obligations of the parties to
pay applicable escrow or closing charges shall survive the
termination of this Agreement.
5.5 Cash Security Deposits. At Closing, Seller shall give
Buyer a credit against the Purchase Price in the aggregate
amount of the unapplied cash security deposits then held by
Seller under the Leases and any interest thereon.
5.6 Apportionment Credit. In the event the apportionments
to be made at the Closing result in a credit balance (i) to
Buyer, such sum shall be paid (at Seller's option) at the
Closing by giving Buyer a credit against the Purchase Price in
the amount of such credit balance, or (ii) to Seller, Buyer
shall pay the amount thereof to Seller at the Closing by wire
transfer of immediately available funds to the account or
accounts to be designated by Seller for the payment of the
Purchase Price.
5.7 Mayo Foundation Leases. Seller has agreed to give
Buyer a credit against the Purchase Price in the amount of
$86,452.00. This credit represents (a) $40,580 which will
become due and payable to Mayo Foundation under the lease for
Suite 550 for a tenant improvement allowance upon satisfaction
of certain conditions in the lease, including, without
limitation, the delivery of final lien waivers, (b) $33,620.00
which will become due and payable to Mayo Foundation under the
lease for Suite 555 for a tenant improvement allowance upon
satisfaction of certain conditions in the lease, including,
without limitation, the delivery of final lien waivers and (c)
$12,252.00 which will become due and payable to Xxxxxx Companies
upon the execution of the lease for Suite 620 with Mayo
Foundation as tenant. Buyer agrees to pay such parties the
foregoing amounts when the same become due and payable. In
consideration of the aforesaid credit, Buyer hereby releases
Seller from any liability and obligation with respect to such
tenant improvement allowances and such commission, and Buyer
agrees to assume such liabilities and obligations and agrees to
indemnify and hold harmless Seller from and against any loss,
cost, claim, liability, expense or demand with respect thereto.
Seller and Buyer agree that Seller shall have no other
liabilities or obligations with respect to the leases with the
Mayo Foundation for said suites.
10
5.8 Prorations Final. All prorations between the parties
made at Closing shall be final.
ARTICLE 6
CLOSING
Buyer and Seller hereby agree that the Transaction shall be
consummated as follows:
6.1 Closing Date. The Transaction shall close ("Closing")
on the date hereof (the "Closing Date"). Closing may, at
Seller's election, be either by a so-called "New York style"
closing or through escrow.
6.2 Intentionally Omitted.
6.3 Seller's Closing Deliveries. Concurrently herewith,
Seller shall deliver or cause to be delivered to the Escrow
Agent the following:
(a) Deed. A special warranty deed in the form of
Exhibit E attached hereto and incorporated herein by this
reference, conveying to Buyer all of Seller's right, title
and interest in and to the Real Property, subject only to
the Permitted Exceptions ("Deed").
(b) Xxxx of Sale. A xxxx of sale in the form of
Exhibit F attached hereto and incorporated herein by this
reference conveying all of Seller's right, title and
interest in and to the Personal Property.
(c) Assignment of Tenant Leases. An assignment and
assumption of tenant leases, in the form of Exhibit G
attached hereto and incorporated herein by this reference
("Assignment of Leases") transferring all of Seller's
interest in the tenant space leases for the tenants
identified on Exhibit H attached hereto and incorporated
herein by this reference and any amendments, guarantees and
other documents relating thereto (herein collectively called
the "Leases"), together with all assignable non-cash
security deposits deposited by the tenants thereunder and
not applied by Seller in accordance with the terms of the
Leases.
(d) Assignment of Equipment Leases, Commission
Agreements and Service Contracts. An assignment and
assumption of equipment leases, commission agreements,
service contracts, warranties and guaranties and the Other
Property Rights (to the extent the same are not transferred
by the Deed, Xxxx of Sale or Assignment of Leases) in the
form of Exhibit I attached hereto and incorporated herein by
this reference ("Assignment
11
of Contracts"), transferring, to the extent assignable,
without liability or expense to Seller, all of Seller's
interest in the equipment leases and
any lease commission agreements in effect at the Property on
the Closing Date, all uncanceled service contracts
encumbering the Property on the Closing Date, all warranties
and guaranties which remain in effect on the Closing Date
and any Other Property Rights not otherwise transferred to
Buyer (all of the foregoing being herein collectively called
the "Contracts"). Seller shall not assign any existing
management agreement or any contracts or policies of
insurance for the Property.
(e) Tenant Estoppel Letters. Tenant estoppel letters
from each of the tenants listed on Exhibit H attached hereto
and incorporated by this reference in form satisfactory to
Buyer.
(f) Notice to Tenants. A single form letter in the
form of Exhibit J attached hereto and incorporated herein by
this reference to each tenant under the Leases, duplicate
copies of which would be sent notifying it of the sale of
the Property to Buyer and advising it that all future
payments of rent and other payments due under the Leases are
to be made to Buyer at an address designated by Buyer.
(g) Non-Foreign Status Affidavit. A non-foreign
status affidavit in the form of Exhibit K attached hereto
and incorporated herein by this reference, as required by
Section 1445 of the Internal Revenue Code.
(h) Evidence of Authority. A certificate of an
Assistant Secretary of Seller with respect to the authority
to act on behalf of Seller of the individual executing on
behalf of Seller all documents contemplated by this
Agreement.
(i) Property Documents. (i) To the extent in the
possession of Seller or the current manager of the
Property, (A) the original (or, if unavailable, a copy) of
the existing certificate or certificates of occupancy for
the Property, and (B) all original (or, if unavailable,
copies of) certificates, licenses, permits, authorizations
and approvals issued for or with respect to the Property by
governmental and quasi-governmental authorities having
jurisdiction; and (ii) all non-proprietary books and records
located at the Property or at the office of Seller's
building manager relating to the Property and the ownership
and operation thereof (the items described in clauses (i)
and (ii) being herein collectively called the "Property
Documents").
(j) Other Documents. Such other documents as may be
reasonably required by the Title Company or as may be agreed
upon by Seller and Buyer to consummate the Transaction.
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(k) Letters of Credit as Tenant Security Deposits.
With respect to any security deposits which are letters of
credit, Seller shall, if the same are assignable,
(i) deliver to Buyer at the Closing such letters of credit,
(ii) execute and deliver such other instruments as the
issuers of such letters of credit shall reasonably require,
and (iii) cooperate with Buyer to change the named
beneficiary under such letters of credit to Buyer.
(l) Keys and Original Documents. Keys to all locks on
the Real Property (in Seller's or Seller's building
manager's possession) and originals or, if originals are not
available, copies, of the Leases and Contracts (unless
canceled as set forth herein) encumbering the Property on
the Closing Date.
(m) Transfer Taxes. If applicable, duly completed and
signed real estate transfer tax returns.
6.4 Buyer Closing Deliveries. Concurrently herewith, Buyer
shall deliver or cause to be delivered to the Escrow Agent the
following:
(a) Purchase Price. The Purchase Price, as adjusted
for apportionments and other adjustments required under this
Agreement, plus any other amounts required to be paid by
Buyer at Closing.
(b) Assignment of Leases. The Assignment of Leases
executed and acknowledged by Buyer.
(c) Assignment of Equipment Leases, Commission
Agreements and Service Contracts. The Assignment of
Contracts executed and acknowledged by Buyer.
(d) Evidence of Authority. Documentation to
establish to Seller's reasonable satisfaction the due
authorization of Buyer's acquisition of the Property and
Buyer's delivery of the documents required to be delivered
by Buyer pursuant to this Agreement (including, but not
limited to, the organizational documents of Buyer, as they
may have been amended from time to time, resolutions of
Buyer and incumbency certificates of Buyer.
(e) Other Documents. Such other documents as may be
reasonably required by the Title Company or may be agreed
upon by Seller and Buyer to consummate the Transaction.
(f) Transfer Taxes. If applicable, duly completed and
signed real estate transfer tax returns.
13
6.5 Delivery of Deed. Effective upon delivery of the Deed,
actual and exclusive possession (subject only to the Permitted
Exceptions) and risk of loss to the Property shall pass from
Seller to Buyer.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 Buyer's Representations. Buyer represents and warrants
to, and covenants with, Seller as follows:
7.1.1 Buyer's Authorization. Buyer is duly
organized (or formed), validly existing and in good standing
under the laws of the United States of America and the State
in which the Property is located, and is authorized to
consummate the Transaction and fulfill all of its
obligations hereunder and under all documents contemplated
hereunder to be executed by Buyer, and has all necessary
power to execute and deliver this Agreement and all
documents contemplated hereunder to be executed by Buyer,
and to perform all of its obligations hereunder and
thereunder. This Agreement and all documents contemplated
hereunder to be executed by Buyer, have been duly authorized
by all requisite partnership or corporate action on the part
of Buyer and are the valid and legally binding obligation of
Buyer, enforceable in accordance with their respective
terms. Neither the execution and delivery of this Agreement
and all documents contemplated hereunder to be executed by
Buyer, nor the performance of the obligations of Buyer
hereunder or thereunder will result in the violation of any
law or any provision of the agreement of partnership or
articles of incorporation and by-laws of Buyer or will
conflict with any order or decree of any court or
governmental instrumentality of any nature by which Buyer is
bound.
7.1.2 Buyer's Financial Condition. Buyer's
financial condition is as is represented to Seller on any
financial statements previously submitted to Seller by
Buyer.
7.2 Seller's Representations. Seller represents and
warrants to Buyer as follows:
7.2.1 Seller's Authorization. Seller is (a) duly
organized (or formed), validly existing and in good standing
under the laws of its State of organization and the State in
which the Property is located, (b) is authorized to
consummate the Transaction and fulfill all of its
obligations hereunder and under all documents contemplated
hereunder to be executed by Seller, and (c) has all
necessary power to execute and deliver this Agreement and
all documents contemplated hereunder to be executed by
Seller and to perform its obligations hereunder and
thereunder. This Agreement and all documents contemplated
14
hereunder to be executed by Seller have been duly authorized
by all requisite partnership action on the part of Seller
and are the valid and legally binding obligation of Seller
enforceable in accordance with their respective terms.
Neither the execution and delivery of this Agreement and all
documents contemplated hereunder to be executed by Seller
nor the performance of the obligations of Seller hereunder
or thereunder will result in the violation of any law or any
provision of the partnership agreement of Seller or will
conflict with any order or decree of any court or
governmental instrumentality of any nature by which Seller
is bound.
7.2.2 Other Seller's Representations. To Seller's
knowledge (as such term is hereinafter defined):
(a) Except as listed in Exhibit L attached hereto
and incorporated herein by this reference,
Seller has not received any written notice of
pending litigation against Seller which
would, if determined adversely to Seller,
adversely affect the Property.
(b) Seller has not entered into any service,
supply, maintenance or utility contracts
affecting the Property which will be binding
upon Buyer after the Closing other than the
Contracts listed in Exhibit B attached
hereto.
(c) Seller has not received any written notice of
default under the terms of any of the
Contracts or Leases except as listed in
Exhibit L attached hereto.
(d) As of the date of this Agreement, the only
tenants of the Property are the tenants
listed in Exhibit H attached hereto and
incorporated herein by this reference.
(e) Except as listed in Exhibit L attached
hereto, Seller has not received any written
notice from any governmental authority of any
violation of any zoning, building, fire, or
health code, statute, ordinance, rule or
regulation applicable to the Property.
(f) The files for the Property which Seller has
delivered to Buyer for its review are, to
Seller's knowledge, the files kept in the
ordinary course of business for the operation
of the Property, except that Seller has
removed from such files Seller's Proprietary
Information.
15
7.3 General Provisions.
7.3.1 No Representation As to Leases. Seller does
not represent or warrant, except as may be expressly
provided in Section 7.2 above, that any particular Lease or
Leases will be in force or effect on the Closing Date or
that the tenants will have performed their obligations
thereunder.
7.3.2 Definition of "Seller's Knowledge". All
references in this Agreement to "Seller's knowledge" or
words of similar import shall refer only to the actual
knowledge of Xxxxxx X. Xxxxxx (the "Designated Employee")
and shall not be construed to refer to the knowledge of any
other officer, agent or employee of Seller or any affiliate
thereof or to impose or have imposed upon the Designated
Employee any duty to investigate the matters to which such
knowledge, or the absence thereof, pertains, including, but
not limited to, the contents of the files, documents and
materials made available to or disclosed to Buyer or the
contents of files maintained by the Designated Employee.
There shall be no personal liability on the part of the
Designated Employee arising out of any representations or
warranties made herein.
7.3.3 Seller's Representations Deemed Modified. To
the extent that Buyer knows or is deemed to know on or prior
to the date hereof that Seller's representations and
warranties are inaccurate, untrue or incorrect in any way,
such representations and warranties shall be deemed modified
to reflect Buyer's knowledge or deemed knowledge, as the
case may be. For purposes of this Agreement, Buyer shall be
"deemed to know" that a representation or warranty was
untrue, inaccurate or incorrect to the extent that this
Agreement, the Documents, any estoppel certificate executed
by any tenant of the Property and delivered to Buyer, or any
studies, tests, reports, or analyses prepared by or for
Buyer or any of its employees, agents, representatives or
attorneys (all of the foregoing being herein collectively
called the "Buyer's Representatives") or otherwise obtained
by Buyer or Buyer's Representatives contains information
which is inconsistent with such representation or warranty.
7.3.4 Survival; Limitation on Seller's Liability.
The representations and warranties made by Seller in
Section 7.2 shall survive the Closing and not be merged
therein for a period of one (1) year and Seller shall only
be liable to Buyer hereunder for a breach of a
representation and warranty made herein or in any of the
documents executed by Seller at the Closing with respect to
which a claim is made by Buyer against Seller on or before
the first anniversary of the date of the Closing. Anything
in this Agreement to the contrary notwithstanding, the
maximum aggregate liability of Seller for Seller's breaches
of representations and warranties herein or in any documents
executed by Seller at Closing shall be limited as set forth
in Section 9.16 hereof. Notwithstanding the foregoing,
however, if the Closing occurs, Buyer hereby expressly
waives, relinquishes and releases any right or remedy
available to it at law, in equity or under this
16
Agreement to make a claim against Seller for damages that Buyer may
incur, or to rescind this Agreement and the Transaction, as
the result of any of Seller's representations or warranties
being untrue, inaccurate or incorrect if (a) Buyer knew or
is deemed to know that such representation or warranty was
untrue, inaccurate or incorrect at the time of the Closing,
or (b) Buyer's damages as a result of such representations
or warranties being untrue, inaccurate or incorrect are
reasonably estimated to aggregate less than $10,000.00.
ARTICLE 8
COVENANTS
8.1 Buyer's Covenants. Buyer hereby covenants as follows:
8.1.1 Confidentiality. Buyer acknowledges that any
information furnished to Buyer with respect to the Property
is and has been so furnished on the condition that Buyer
maintain the confidentiality thereof. Accordingly, Buyer
shall hold, and shall cause its directors, officers and
other personnel and representatives to hold, in strict
confidence, and not disclose to any other person without the
prior written consent of Seller until the Closing shall have
been consummated, any of the information in respect of the
Property delivered to or for the benefit of Buyer whether by
agents, consultants, employees or representatives of Buyer
or by Seller or any of its agents, representatives or
employees, including, but not limited to, any information
obtained by Buyer or any of Buyer's Representatives in
connection with any studies, inspections, testings or
analyses conducted by Buyer as part of its Due Diligence.
In the event the Closing does not occur and this Agreement
is terminated, Buyer shall promptly return to Seller all
copies of documents containing any of such information
without retaining any copy thereof or extract therefrom.
Notwithstanding anything to the contrary hereinabove set
forth, Buyer may disclose such information (i) on a need-to-
know basis to its employees or members of professional firms
serving it, and (ii) as any governmental agency may require
in order to comply with applicable laws or regulations.
The provisions of this Subsection 8.1.1 shall survive the
Closing (and not be merged therein) or earlier termination
of this Agreement.
8.1.2 Buyer's Indemnity; Delivery of Reports.
Buyer hereby agrees to indemnify, defend, and hold Seller,
each of the Seller Parties and the Property free and
harmless from and against any and all costs, loss, damages
and expenses, of any kind or nature whatsoever (including
attorneys fees and costs), arising out of or resulting from
the entry and/or the conduct of activities upon the Property
by Buyer, its agents, contractors and/or subcontractors in
connection with the inspections, examinations, testings and
investigations of the Property conducted at any time prior
to the Closing,
17
which indemnity shall survive the Closing
(and not be merged therein) or any earlier termination of
this Agreement. Buyer shall deliver promptly to Seller
copies of all third party reports commissioned by Buyer
evidencing the results of tests, studies or inspections of
the Property.
8.2 Mutual Covenants.
8.2.1 Publicity. Seller and Buyer each hereby
covenant that after the Closing, any Release issued by
either Seller or Buyer shall be subject to the review and
approval of both parties (which approval shall not be
unreasonably withheld). If either Seller or Buyer is
required by law to issue a Release, such party shall, at
least two (2) business days prior to the issuance of the
same, deliver a copy of the proposed Release to the other
party for its review.
8.2.2 Broker. Seller and Buyer expressly
acknowledge that Broker has acted as the exclusive broker
with respect to the Transaction and with respect to this
Agreement, and that Seller shall pay any brokerage
commission due to Broker in accordance with the separate
agreement between Seller and Broker. Seller and Buyer each
represents and warrants to the other that it has not dealt
with any other broker in the Transaction and each agrees to
hold harmless the other and indemnify the other from and
against any and all damages, costs or expenses (including,
but not limited to, reasonable attorneys' fees and
disbursements) suffered by the indemnified party as a result
of acts of the indemnifying party that would constitute a
breach of its representation and warranty in this section.
8.2.3 Tax Refunds and Credits. All real estate and
personal property tax refunds and credits with respect to
the Property shall be apportioned between Buyer and Seller
as follows:
(a) with respect to any refunds or credits
attributable to real estate and personal
property taxes due and payable in the
calendar year in which the Closing occurs
(regardless of the year for which such taxes
are assessed), such refunds and credits shall
be apportioned between Buyer and Seller in
proportion to the number of days in such
calendar year that each party owned the
Property (with title to the Property being
deemed to have passed as of 12:01 a.m. on the
Closing Date);
(b) with respect to any refunds or credits
attributable to real estate and personal
property taxes due and payable during any
period prior to the calendar year in which
the Closing occurs (regardless of the
18
year for which such taxes are assessed), Seller
shall be entitled to the entire refunds and
credits; and
(c) with respect to any refunds or credits
attributable to real estate and personal
property taxes due and payable during any
period after the calendar year in which the
Closing occurs (regardless of the year for
which such taxes are assessed), Buyer shall
be entitled to the entire refunds and
credits.
8.2.4 Survival. The provisions of this Section 8.2
shall survive the Closing (and not be merged therein) or
earlier termination of this Agreement.
ARTICLE 9
MISCELLANEOUS
9.1 Buyer's Assignment. Buyer shall not assign this
Agreement or its rights hereunder to any individual or entity
without the prior written consent of Seller, which consent
Seller may grant or withhold in its sole discretion, and any
such assignment shall be null and void, except that Buyer may
assign this Agreement to any subsidiary of Norwest Corporation
without the prior written consent of Seller.
9.2 Designation Agreement. Section 6045(e) of the United
States Internal Revenue Code and the regulations promulgated
thereunder (herein collectively called the "Reporting
Requirements") require an information return to be made to the
United States Internal Revenue Service, and a statement to be
furnished to Seller, in connection with the Transaction. Escrow
Agent ("Agent") is either (i) the person responsible for closing
the Transaction (as described in the Reporting Requirements) or
(ii) the disbursing title or escrow company that is most
significant in terms of gross proceeds disbursed in connection
with the Transaction (as described in the Reporting
Requirements). Accordingly:
(a) Agent is hereby designated as the "Reporting
Person" (as defined in the Reporting Requirements) for the
Transaction. Agent shall perform all duties that are
required by the Reporting Requirements to be performed by
the Reporting Person for the Transaction.
(b) Seller and Buyer shall furnish to Agent, in a
timely manner, any information requested by Agent and
necessary for Agent to perform its duties as Reporting
Person for the Transaction.
19
(c) Agent hereby requests Seller to furnish to Agent
Seller's correct taxpayer identification number. Seller
acknowledges that any failure by Seller to provide Agent
with Seller's correct taxpayer identification number may
subject Seller to civil or criminal penalties imposed by
law. Accordingly, Seller hereby certifies to Agent, under
penalties of perjury, that Seller's correct taxpayer
identification number is 00-0000000.
(d) Each of the parties hereto shall retain this
Agreement for a period of four (4) years following the
calendar year during which Closing occurs.
9.3 Survival/Merger. Except for the provisions of this
Agreement which are explicitly stated to survive the Closing,
(a) none of the terms of this Agreement shall survive the
Closing, and (b) the delivery of the Deed and any other
documents and instruments by Seller and the acceptance thereof
by Buyer shall effect a merger, and be deemed the full
performance and discharge of every obligation on the part of
Buyer and Seller to be performed hereunder.
9.4 Integration; Waiver. This Agreement, together with the
Schedules and Exhibits hereto, embodies and constitutes the
entire understanding between the parties with respect to the
Transaction and all prior 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 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. No waiver by either party hereto of any
failure or refusal by the other party to comply with its
obligations hereunder shall be deemed a waiver of any other or
subsequent failure or refusal to so comply.
9.5 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the law of the State in which
the Property is located except to the extent its conflict of law
principles would direct the application of the law of a
different state or forum.
9.6 Captions Not Binding; Schedules and Exhibits. The
captions in this Agreement are inserted for reference only and
in no way define, describe or limit the scope or intent of this
Agreement or of any of the provisions hereof. All Schedules and
Exhibits attached hereto shall be incorporated by reference as
if set out herein in full.
9.7 Binding Effect. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
9.8 Severability. If any term or provision of this
Agreement or the application thereof to any persons or
circumstances shall, to any extent, be invalid or unenforceable,
the remainder of this Agreement or the application of such term
or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected
thereby, and each
20
term and provision of this Agreement shall be
valid and enforced to the fullest extent permitted by law.
9.9 Notices. Any notice, request, demand, consent,
approval and other communications under this Agreement shall be
in writing, and shall be deemed duly given or made at the time
and on the date when personally delivered as shown on a receipt
therefor (which shall include delivery by a nationally
recognized overnight delivery service) or three (3) business
days after being mailed by prepaid registered or certified mail,
return receipt requested, to the address for each party set
forth below. Any party, by written notice to the other in the
manner herein provided, may designate an address different from
that set forth below.
IF TO BUYER:
c/o Norwest Corporation Law Division
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
IF TO SELLER:
Prudential Acquisition Fund I, L.P.
c/o The Prudential Insurance Company of America
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
COPY TO:
The Prudential Insurance Company of America
00 XXX Xxxxxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Regional Counsel
9.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of
which counterparts taken together shall constitute one and the
same agreement.
9.11 No Recordation. Seller and Buyer each agrees that
neither this Agreement nor any memorandum or notice hereof shall
be recorded and Buyer agrees (a) not to file any notice of
pendency or other instrument (other than a judgment) against the
Property or any portion thereof in connection herewith and (b)
to indemnify Seller against all costs, expenses and
21
damages, including, without limitation, reasonable attorneys' fees and
disbursements, incurred by Seller by reason of the filing by
Buyer of such notice of pendency or other instrument.
9.12 Additional Agreements; Further Assurances. Subject to
the terms and conditions herein provided, each of the parties
hereto shall execute and deliver such documents as the other
party shall reasonably request in order to consummate and make
effective the Transaction; provided, however, that the execution
and delivery of such documents by such party shall not result
in any additional liability or cost to such party.
9.13 Construction. The parties acknowledge that each party
and its counsel have reviewed and revised this Agreement and
that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Agreement or any
amendment, Schedule or Exhibit hereto.
9.14 ERISA. To satisfy compliance with ERISA, Buyer
represents and warrants to Seller that:
(a) Neither Buyer nor any of its affiliates (within
the meaning of Part V(c) of Prohibited Transaction Exemption
84-14 granted by the U.S. Department of Labor ("PTE 84-14")
has, or during the immediately preceding year has exercised,
the authority to appoint or terminate Seller as investment
manager of any assets of the employee benefit plans whose
assets are held by Seller or to negotiate the terms of any
management agreement with Seller on behalf of any such plan;
(b) The Transaction is not specifically excluded by
Part I(b) of PTE 84-14;
(c) Buyer is not a related party of Seller (as defined
in Part V(h) of PTE 84-14); and
(d) The terms of the Transaction have been negotiated
and determined at arm's length, as such terms would be
negotiated and determined by unrelated parties.
Buyer hereby agrees to execute such documents or
provide such information as Seller may require in connection
with the Transaction or to otherwise assure Seller that: (i)
this is not a prohibited Transaction under ERISA, (ii) that
the Transaction is otherwise in full compliance with ERISA
and (iii) that Seller is not in violation of ERISA by
compliance with this Agreement and by closing the
Transaction. Seller shall not be obligated to consummate
the Transaction unless and until the Transaction complies
with ERISA and Seller is satisfied that the Transaction
complies in all respects with ERISA. The obligations of
Buyer under this section shall survive the Closing and shall
not be merged therein.
22
9.15 Business Day. As used herein, the term "business day"
shall mean any day other than a Saturday, Sunday, or any Federal
or State of Minnesota holiday.
9.16 Seller's Maximum Aggregate Liability. Notwithstanding
any provision to the contrary contained in this Agreement or any
documents executed by Seller pursuant hereto or in connection
herewith, the maximum aggregate liability of Seller, and the
maximum aggregate amount which may be awarded to and collected
by Buyer, under this Agreement (including, without limitation,
the breach of any representations and warranties contained
herein) and any and all documents executed pursuant hereto or
in connection herewith, for which a claim is timely made by
Buyer shall not exceed One Hundred Thousand Dollars
($100,000.00). The provisions of this section shall survive the
Closing and shall not be merged therein.
IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be duly executed on its behalf on the day and year
first above written.
PRUDENTIAL ACQUISITION FUND
I, L.P., a Delaware limited
partnership
By: Prudential Realty
Partnerships, Inc., a
Delaware corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx,
Vice President
NORWEST BANK MINNESOTA SOUTH,
N.A., a national banking
association
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
----------------------
Its: Senior Vice President
-----------------------
Date: October 18, 1996
-------------------
23
PAGE
The undersigned has executed this
Agreement solely to confirm its
agreement to Section 14.2.
CHICAGO TITLE AND TRUST COMPANY
Name: /s/ Xxxxxxxxx Xxxxxxx
--------------------------
Its: Commercial Closer
----------------------
Date: October 18, 1996
---------------------
24
EXHIBIT A
LEGAL DESCRIPTION
TRACT A
The west 60 feet of the south 32 feet of Lot 9, and the west 60
feet of Lots 10, 11 and 12, all in Block 00, Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx.
Containing 9,341 square feet.
TRACT B
Commencing at the southwest xxxxxx xx Xxxxx 00, Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx; thence North, assumed bearing, along the
west line of said Block 32 a distance of 5.00 feet for a point
of beginning; thence continue North along said west line, 159.00
feet; thence North 89 degrees 58 minutes 30 seconds West, 30.00
feet; thence South 15.00 feet; thence North 89 degrees 58
minutes 30 seconds West, 17.50 feet; thence South, 116.28 feet;
thence South 59 degrees 42 minutes 45 seconds East, 55.01 feet
to the point of beginning.
Containing 6,632 square feet.
TRACT C
Commencing at the southwest xxxxxx xx Xxxxx 00, Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx; thence North, assumed bearing, along the
west line of said Block 32 a distance of 164.00 feet; thence
North 89 degrees 58 minutes 30 seconds West, 30.00 feet; thence
South 15.00 feet; thence North 89 degrees 58 minutes 30 seconds
West, 17.50 feet for a point of beginning; thence continue North
89 degrees 58 minutes 30 seconds West, 47.50 feet to the east
line xx Xxxxx 00, Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx; thence
South, along the east line of said Block 31 a distance of 108.97
feet to a point 40.00 feet North of the southeast corner of said
Block 31; thence South 89 degrees 57 minutes 30 seconds East,
35.00 feet; thence South 59 degrees 42 minutes 45 seconds East,
14.47 feet; thence North, 116.28 feet to the point of beginning.
Containing 5,221 square feet.
A-1
PAGE
EXHIBIT B
LIST OF TANGIBLE PERSONAL PROPERTY
B-1
PAGE
EXHIBIT C
LIST OF CONTRACTS
C-1
PAGE
EXHIBIT D
TITLE REPORT
D-1
PAGE
EXHIBIT E
FORM OF SPECIAL WARRANTY DEED
THE STATE OF __________)
) ss. KNOW ALL MEN BY THESE PRESENTS
THAT:
COUNTY OF _____________)
PRUDENTIAL ACQUISITION FUND I, L.P., a Delaware limited
partnership ("Grantor"), for and in consideration of the sum of
TEN AND NO/100 DOLLARS ($10.00) and other good and valuable
consideration paid in hand to Grantor by NORWEST BANK MINNESOTA
SOUTH, N.A., a national banking association ("Grantee"), whose
mailing address is Norwest Center, Sixth and Marquette,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, the receipt and sufficiency
of which is hereby acknowledged, has GRANTED, BARGAINED, SOLD
and CONVEYED, and by these presents does GRANT, BARGAIN, SELL
and CONVEY unto Grantee that certain tract of land located in
Rochester, Minnesota, more particularly described in Exhibit A
attached hereto and incorporated herein by this reference,
together with all buildings, improvements and fixtures located
thereon and owned by Grantor as of the date hereof and all
rights, privileges and appurtenances pertaining thereto
including all of Grantor's right, title and interest in and to
all rights-of-way, open or proposed streets, alleys, easements,
strips or gores of land adjacent thereto (herein collectively
called the "Real Property").
This conveyance is made by Grantor and accepted by Grantee
subject to the matters set forth in Exhibit B attached hereto
and incorporated herein by this reference ("Permitted
Exceptions").
TO HAVE AND TO HOLD the Real Property together with all
improvements located thereon all and singular the rights and
appurtenances thereto in anywise belonging, subject to the
Permitted Exceptions, unto Grantee, its legal representatives,
successors and assigns, and Grantor does hereby bind itself, its
legal representatives, successors and assigns, to WARRANT and
FOREVER DEFEND all and singular the Real Property unto the
Grantee, its legal representatives, successors and assigns,
against Grantor and every person whomsoever lawfully claiming
or to claim the same or any part thereof, by, through or under
Grantor, but not otherwise, subject to the Permitted Exceptions.
Grantee, by its acceptance hereof, does hereby assume and
agree to pay all ad valorem taxes pertaining to the Real
Property due and payable during the calendar year 1997 and
subsequent years, there having been a proper proration of same
between Grantor and Grantee.
Grantor certifies that Grantor does not know of any xxxxx
on the described Real Property.
E-1
EXECUTED this ______ day of ____________________, 1996, TO
BE EFFECTIVE as of the _____ day of __________________, 1996.
PRUDENTIAL ACQUISITION FUND
I, L.P., a Delaware limited
partnership
By: Prudential Realty
Partnerships, Inc., a
Delaware corporation,
General Partner
By:____________________
Xxxxxx X. Xxxxxx,
Vice President
E-2
STATE OF ____________)
) ss.
COUNTY OF __________)
This instrument was acknowledged before me on
______________________, 1996 by Xxxxxx X. Xxxxxx, Vice President
of Prudential Realty Partnerships, Inc., a Delaware corporation,
general partner of Prudential Acquisition Fund I, L.P., a
Delaware limited partnership, on behalf of said corporation, as
general partner of said partnership.
_______________________, Notary Public
My Commission Expires:
______________________
AFTER RECORDING RETURN TO:
Norwest Bank Minnesota South, N.A.
c/o Norwest Corporation Law Division
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx
E-3
PAGE
EXHIBIT F
FORM OF XXXX OF SALE
STATE OF ________ )
) ss. KNOW ALL MEN BY THESE PRESENTS
THAT:
COUNTY OF ________)
WHEREAS, by special warranty deed of even date herewith,
PRUDENTIAL ACQUISITION FUND I, L.P., a Delaware limited
partnership ("Seller") conveyed to NORWEST BANK MINNESOTA SOUTH,
N.A., a national banking association ("Buyer"), whose mailing
address is Norwest Center, Sixth and Marquette, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, that certain tract of land more
particularly described in Exhibit A attached hereto and
incorporated herein by this reference, together with all
improvements located thereon ("Real Property").
WHEREAS, in connection with the above described conveyance
Seller desires to sell, transfer and convey to Buyer certain
items of tangible personal property as hereinafter described.
NOW, THEREFORE, in consideration of the receipt of TEN AND
NO/100 DOLLARS ($10.00) and other good and valuable
consideration paid in hand by Buyer to Seller, the receipt and
sufficiency of which are hereby acknowledged, Seller has
GRANTED, CONVEYED, SOLD, TRANSFERRED, SET OVER and DELIVERED and
by these presents does hereby GRANT, SELL, TRANSFER, SET OVER
and DELIVER to Buyer, its legal representatives, successors and
assigns, all of its right, title and interest in and to all
tangible personal property owned by Seller (excluding any
computer or computer equipment and software), located on the
Real Property, and used in the ownership, operation and
maintenance of the Real Property and all nonconfidential books,
records and files (excluding appraisals, budgets, marketing
information or other information in the possession or control
of Seller or Seller's property manager which Seller deems
proprietary) relating to the Real Property (herein collectively
called the "Personal Property"), to have and to hold, all and
singular, the Personal Property unto Buyer forever.
F-1
PAGE
EXECUTED this _____ day of ______________________, 1996,
TO BE EFFECTIVE as of the _____ day of ___________________,
1996.
SELLER:
PRUDENTIAL ACQUISITION FUND
I, L.P., a Delaware limited
partnership
By: Prudential Realty
Partnerships, Inc., a
Delaware corporation,
General Partner
By:____________________
Xxxxxx X. Xxxxxx,
Vice President
F-2
PAGE
STATE OF ___________)
) ss.
COUNTY OF _________)
This instrument was acknowledged before me on
_______________________, 1996 by Xxxxxx X. Xxxxxx, Vice
President of Prudential Realty Partnerships, Inc., a Delaware
corporation, general partner of Prudential Acquisition Fund I,
L.P., a Delaware limited partnership, on behalf of said
corporation, as general partner of said partnership.
_______________________, Notary
Public
My Commission Expires:
______________________
F-3
EXHIBIT G
FORM OF ASSIGNMENT OF LEASES
THIS ASSIGNMENT OF LEASES ("Assignment"), is made by and
between PRUDENTIAL ACQUISITION FUND I, L.P., a Delaware limited
partnership ("Assignor"), and NORWEST BANK MINNESOTA SOUTH,
N.A., a national banking association ("Assignee").
W I T N E S S E T H:
WHEREAS, by Purchase and Sale Agreement ("Sale Agreement")
dated as of October ___, 1996, by and between Assignor and
Assignee, Assignor agreed to sell to Assignee certain real
property, and the improvements located thereon ("Property") as
more particularly described in the Sale Agreement; and
WHEREAS, the Sale Agreement provides, inter alia, that
Assignor shall assign to Assignee certain leases and Assignee
shall assume all of the obligations of Seller under such leases
from and after the date of such assignment, and that Assignor
and Assignee shall enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby
agree as follows:
1. Assignment of Tenant Leases. Assignor hereby assigns,
sets over and transfers to Assignee all of its right, title and
interest in, to and under those certain tenant space leases set
forth in Exhibit A attached hereto and incorporated herein by
this reference ("Leases"). Assignee hereby assumes all
liabilities and obligations of Assignor under the Leases and
hereby agrees to indemnify and hold harmless Assignor from all
of the liabilities and obligations of Assignor under the Leases
whether arising or accruing before or after the date hereof.
2. Miscellaneous. This Assignment and the obligations
of the parties hereunder shall survive the closing of the
transaction referred to in the Sale Agreement and shall not be
merged therein, shall be binding upon and inure to the benefit
of the parties hereto, their respective legal representatives,
successors and assigns, shall be governed by and construed in
accordance with the laws of the State of Minnesota applicable
to agreements made and to be wholly performed within said State
and may not be modified or amended in any manner other than by
a written agreement signed by the party to be charged therewith.
G-1
3. This Assignment may be executed in counterparts, each
of which shall be an original and all of which counterparts
taken together shall constitute one and the same agreement.
EXECUTED this _____ day of _____________, 1996, TO BE
EFFECTIVE as of the _____ day of ____________, 1996.
ASSIGNOR:
PRUDENTIAL ACQUISITION FUND
I, L.P., a Delaware limited
partnership
By: Prudential Realty
Partnerships, Inc., a
Delaware corporation,
General Partner
By:____________________
Xxxxxx X. Xxxxxx,
Vice President
ASSIGNEE:
NORWEST BANK MINNESOTA SOUTH,
N.A., a national banking
association
By:_________________________
Name:____________________
Title:___________________
G-2
EXHIBIT H
LIST OF TENANTS
H-1
EXHIBIT I
FORM OF ASSIGNMENT OF CONTRACTS
THIS ASSIGNMENT OF CONTRACTS ("Assignment"), is made by and
between PRUDENTIAL ACQUISITION FUND I, L.P., a Delaware limited
partnership ("Assignor"), and NORWEST BANK MINNESOTA SOUTH,
N.A., a national banking association ("Assignee").
W I T N E S S E T H:
WHEREAS, by Purchase and Sale Agreement ("Sale Agreement")
dated as of October __, 1996, by and between Assignor and
Assignee, Assignor agreed to sell to Assignee certain real
property, and the improvements located thereon ("Property") as
more particularly described in the Sale Agreement; and
WHEREAS, the Sale Agreement provides, inter alia, that
Assignor shall assign to Assignee rights to certain intangible
property and that Assignee shall assume all of the obligations
of Assignor under such intangible property from and after the
date of such assignment, and that Assignor and Assignee shall
enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby
agree as follows:
1. Assignment of Equipment Leases and Commission
Agreements. Assignor hereby assigns, sets over and transfers
to Assignee all of its right, title and interest in, to and
under (a) if and to the extent assignable by Assignor, all
service, supply, maintenance, utility and commission agreements,
and all equipment leases described in Exhibit A attached hereto
and incorporated herein by this reference (herein collectively
called the "Contracts"), and (b) if and to the extent
assignable, all licenses, permits and other written
authorizations necessary for the use, operation or ownership of
the Property and in Assignor's possession or control (herein
collectively called the "Licenses and Permits"). Assignee
hereby assumes all obligations under the Contracts and the
Licenses and Permits whether arising or accruing before or after
the date hereof except for liabilities and obligations under the
Contracts that arise or accrue as a result of claims made or
causes of actions brought by a party thereto alleging a default
or breach by Assignor under the Contracts.
2. Assignment of Warranties and Guarantees. Assignor
hereby assigns, set over and transfers to Assignee all of its
right, title and interest in, to and under those certain
I-1
warranties and guarantees set forth in Exhibit B attached hereto
and incorporated herein by this reference, to the extent
assignable.
3. Indemnity. Assignee agrees to indemnify, defend and
hold harmless Assignor from any loss, cost, claim, liability,
expense or demand of whatever nature under the Contracts and the
Licenses and Permits, whether arising or accruing before or
after the date hereof except for liabilities and obligations
under the Contracts that arise or accrue as a result of claims
made or causes of actions brought by a party thereto alleging
a default or breach by Assignor under the Contracts.
4. Miscellaneous. This Assignment and the obligations
of the parties hereunder shall survive the closing of the
transaction referred to in the Sale Agreement and shall not be
merged therein, shall be binding upon and inure to the benefit
of the parties hereto, their respective legal representatives,
successors and assigns, shall be governed by and construed in
accordance with the laws of the State of Minnesota, applicable
to agreements made and to be wholly performed within said State
and may not be modified or amended in any manner other than by
a written agreement signed by the party to be charged therewith.
5. Counterparts. This Assignment may be executed in
counterparts, each of which shall be an original and all of
which counterparts taken together shall constitute one and the
same agreement.
I-2
PAGE
EXECUTED this _____ day of _____________, 1996, TO BE
EFFECTIVE as of the _____ day of ____________, 1996.
ASSIGNOR:
PRUDENTIAL ACQUISITION FUND I, L.P.,
a Delaware limited partnership
By: Prudential Realty Partnerships,
Inc., a Delaware corporation,
General Partner
By:___________________________
Xxxxxx X. Xxxxxx, Vice President
ASSIGNEE:
NORWEST BANK MINNESOTA SOUTH, N.A.,
a national banking association
By:________________________________
Name:__________________________
Title:________________________
I-3
PAGE
EXHIBIT J
FORM OF NOTICE TO TENANTS
Date
-----------------------------
-----------------------------
-----------------------------
-----------------------------
RE: Notice of Change of Ownership of Norwest Center Building
Property Address
Rochester, Minnesota
Dear _____________:
You are hereby notified as follows:
1. That as of the date hereof, Prudential Acquisition
Fund I, L.P. has transferred, sold, assigned, and conveyed all
of its interest in and to the above-described property, (the
"Property") to Norwest Bank Minnesota South, N.A. (the "New
Owner").
2. Future notices and rental payments with respect to
your lease premises at the Property should be made to the New
Owner in accordance with your Lease terms at the following
address:
Norwest Bank Minnesota South, N.A.
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
J-1
3. Your security deposit in the amount of $_________ has
been transferred to the New Owner and as such the New Owner
shall be responsible for holding the same in accordance with the
terms of your lease.
Sincerely,
PRUDENTIAL ACQUISITION FUND
I, L.P., a Delaware limited
partnership
By: Prudential Realty
Partnerships, Inc., a
Delaware corporation,
General Partner
By:______________________
Xxxxxx X. Xxxxxx,
Vice President
J-2
EXHIBIT K
FORM OF SELLER'S FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a
transferee of a United States real property interest must
withhold tax if the transferor is a foreign person. To inform
the transferee that withholding of tax is not required upon the
disposition of a United States real property interest by
PRUDENTIAL ACQUISITION FUND I, L.P., a Delaware limited
partnership ("Prudential"), the undersigned hereby certifies the
following on behalf of Prudential:
1. Prudential is not a foreign corporation, foreign
partnership, foreign trust, or foreign estate (as those terms
are defined in the Internal Revenue Code and Income Tax
Regulations); and
2. Prudential's U.S. employer tax identification number
is ___________; and
3. Prudential's office address is 000 Xxxxx Xxxxxx,
Xxxxxx, Xxx Xxxxxx, 00000-0000.
Prudential understands that this certification may be
disclosed to the Internal Revenue Service by transferee and that
any false statement contained herein could be punished by fine,
imprisonment, or both.
The undersigned officer of Prudential declares that he has
examined this certification and to the best of his knowledge and
belief it is true, correct and complete, and he further declares
that he has authority to sign this document on behalf of
Prudential.
Dated: ___________________, 1996.
PRUDENTIAL ACQUISITION FUND
I, L.P., a Delaware limited
partnership
By: Prudential Realty
Partnerships, Inc., a
Delaware corporation,
General Partner
By:______________________
Xxxxxx X. Xxxxxx
Vice President
K-1
STATE OF _____________)
) ss.
COUNTY OF ____________)
This instrument was acknowledged before me on
___________________, 1996 by Xxxxxx X. Xxxxxx, Vice President
of Prudential Realty Partnerships, Inc., a Delaware corporation,
general partner of Prudential Acquisition Fund I, L.P., a
Delaware limited partnership, on behalf of said corporation, as
general partner of said partnership.
Notary Public, State of _____________
MY COMMISSION EXPIRES:
______________________
K-2
PAGE
EXHIBIT L
LITIGATION NOTICES, CONTRACT DEFAULTS
AND GOVERNMENTAL VIOLATIONS
L-1
EXHIBIT M
PERMITTED EXCEPTIONS
1. Taxes or special assessments which are not shown as
existing liens by the public records.
2. General and special taxes and assessments which are not
yet due and payable.
3. Rights or claims of tenants in possession under unrecorded
leases.
4. Interest of Xxxxxx, Inc. in the subject property pursuant
to a Quit Claim Deed filed July 9, 1981 in Book 379, Page
968.
5. Easement in favor of the City of Rochester for public
right-of-way purposes over that part of the subject
property described in a Quit Claim Deed dated July 9,
1981, filed July 9, 1981 in Book 379, Page 967.
6. Easement in favor of the City of Rochester for public
utilities over that portion of the subject property
described in a Public Utility Easement dated July 9, 1981,
filed July 9, 1981 in Book L-4, Page 526.
7. Terms and conditions of an Agreement of Tenants in Common
dated July 9, 1981, filed July 9, 1981 in Book L-4, Page
527.
8. Terms and conditions of a Tunnel Agreement as reflected by
a Memorandum of Tunnel Agreement dated July 9, 1981, filed
July 9, 1981 in Book L-4, Page 528.
9. Terms and conditions of an Entryway Agreement as reflected
by a Memorandum of Entryway Agreement dated July 9, 1981,
filed July 9, 1981 in Book L-4, Page 529.
10. Covenants, conditions, restrictions and easements
contained and described in a Declaration of Easements,
Covenants and Agreement dated July 9, 1981, filed July 9,
1981 in Book L-4, Page 530. This Declaration was
subsequently amended by an Amendment to Declaration of
Easements, Covenants and Agreements dated August 29, 1983,
filed January 23, 1981 in Book Q-4, Page 232.
11. Terms and conditions of a Lease Agreement as evidenced by
a Memorandum of Lease Agreement dated July 9, 1981, filed
July 9,1981 in Book L-4, Page 531 by and between
Normandale Properties, Inc., landlord, and Northwestern
National Bank of Rochester, tenant. This lease was
subsequently amended by a First Amendment to Lease
Agreement as evidenced by a Memorandum of First Amendment
to Lease Agreement dated May 3, 1982, filed May 10, 1982
in Book M-4, Page 933.
M-1
12. The interests of the City of Rochester in that portion of
the subject property described in a Final Certificate
dated October 26, 1987, filed November 25, 1987 in Book
403, Page 631.
13. Terms and conditions of an Assessment Agreement dated July
9, 1981, filed July 9, 1981 in Book L-4, Page 532.
M-2
