EXHIBIT 10.2
PURCHASE AND SALE CONTRACT
BETWEEN
MINNEAPOLIS BUSINESS PARKS JOINT VENTURE
AND
ANGELES MORTGAGE INVESTMENT TRUST
COLLECTIVELY, AS SELLER
AND
DUKE REALTY LIMITED PARTNERSHIP
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of
the 20th day of April, 1999 (the "Effective Date") by and among MINNEAPOLIS
BUSINESS PARKS JOINT VENTURE, a California general partnership ("MBPJV"), and
ANGELES MORTGAGE INVESTMENT TRUST, a California business trust ("AMIT"), having
a principal address at 0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxx
00000 (collectively "Seller") and DUKE REALTY LIMITED PARTNERSHIP, an Indiana
limited partnership, having a principal address at 0000 Xxxxxxxx Xxxxxxxx, Xxxxx
0000, Xxxxxxxxxxxx, Xxxxxxx 00000 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. MBPJV holds legal title to the following parcels of real estate located in
Hennepin County, Minnesota, as more particularly described in Exhibit A-1 (the
"Alpha Business Center Property"), Exhibit A-2 (the "Westpoint Business
Center"), and Exhibit A-3 (the "Plymouth Service Center"),which exhibits are
attached hereto and made a part hereof. AMIT holds legal title to the parcel of
real estate located in Anoka County, Minnesota, as more particularly described
in Exhibit A-4 (the "University Center I & II"), attached hereto and made a part
hereof. Improvements have been constructed on each of the parcels described in
this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date (as hereinafter defined) the Property will be conveyed by limited
warranty or equivalent deed to Duke Realty Limited Partnership, an Indiana
limited partnership;
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
R-4. Purchaser will make such investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser deems necessary
and desirable, and will thereafter approve the same in all respects, subject
only to the representations, warranties and covenants set forth in this Purchase
Contract and does hereby agree to consummate the transactions contemplated by
this Purchase Contract subject to the conditions contained herein as set forth
below.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have the
meanings set forth in this Article 1 below.
1.1.1 "BUSINESS DAY" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the State of Minnesota.
1.1.2 "CLOSING" means the consummation of the purchase and sale and related
transactions contemplated by this Purchase Contract in accordance with the
terms and conditions of this Purchase Contract.
1.1.3 "CLOSING DATE" means the date on which date the Closing of the
conveyance of the Property is required to be held under the terms and
conditions of this Purchase Contract and on which date full payment of the
Purchase Price for the Property shall have been paid to and received by
Seller in immediately available U.S. funds.
1.1.4 "COMMERCIAL LEASE(S)" means the interest of Seller in and to all
leases, subleases and other occupancy agreements, whether or not of record,
which provide for the use or occupancy of space or facilities on or
relating to the Property and which are in force as of the Effective Date
for the applicable Property.
1.1.5 "EXCLUDED PERMITS" means those Permits which, under applicable law,
are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.5, if any, attached hereto.
1.1.6 Intentionally Omitted.
1.1.7 "FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of personal property now located on the Land
or in the Improvements as of the date of this Purchase Contract and used or
usable in connection with any present or future occupation or operation of
all or any part of the Property. The term "Fixtures and Tangible Personal
Property" does not include (i) equipment leased by Seller and the interest
of Seller in any equipment provided to the Property for use, but not owned
or leased by Seller, or (ii) property owned or leased by Tenants and
guests, employees or other persons furnishing goods or services to the
Property or (iii) property and equipment owned by Seller, which in the
ordinary course of business of the Property is not used exclusively for the
business, operation or management of the Property or (iv) the property and
equipment, if any, expressly identified in Exhibit 1.1.7
1.1.8 "IMPROVEMENTS" means all buildings and improvements located on the
Land taken "as is" .
1.1.9 "LAND" means all of those certain tracts of land located in the State
of Minnesota, commonly known as Alpha Business Center, 0000 00xx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx (described on Exhibit "A-1" attached hereto);
Westpoint Business Center, 00000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxx (described on Exhibit "A-2" attached hereto); Plymouth Service
Center, 0000 Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx (described on Exhibit "A-
3" attached hereto); and University Center I & II (described on Xxxxxxx "X-
0" xxxxxxxx hereto), and all rights, privileges and appurtenances
pertaining thereto.
1.1.10 "MISCELLANEOUS PROPERTY ASSETS" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property
and owned by Seller, excluding, however, (i) receivables, (ii) Property
Contracts, (iii) Commercial Leases, (iv) Permits, (v) cash or other funds,
whether in xxxxx cash or house "banks," or on deposit in bank accounts or
in transit for deposit, (vi) refunds, rebates or other claims, or any
interest thereon, for periods or events occurring prior to the Closing
Date, (vii) utility and similar deposits, (viii) insurance or other prepaid
Items or (ix) books and records, except to the extent that Seller receives
a credit on the Closing Statement for any such item.
1.1.11 "PERMITS" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the matter
to which the applicable license or permit applies and owned by Seller or
used in or relating to the ownership, occupancy or operation of the
Property or any part thereof not subject to a Commercial Lease.
1.1.12 "PERMITTED EXCEPTIONS" means those exceptions or conditions permitted
to encumber the title to the Property in accordance with the provisions of
Section 6.2.
1.1.13 "PROPERTY" means the Land and Improvements, and all rights of Seller
relating to the Land and the Improvements, including without limitation,
any rights, title and interest of Seller, if any, in and to (i) any strips
and gores adjacent to the Land and any land lying in the bed of any street,
road, or avenue opened or proposed, in front of or adjoining the Land, to
the center line thereof; (ii) any unpaid award for any taking by
condemnation or any damage to the Property by reason of a change of grade
of any street or highway; (iii) all of the easements, rights, privileges,
and appurtenances belonging or in any way appertaining to the Property;
together with all Fixtures and Tangible Personal Property, the right, if
any and only to the extent transferable, of Seller issued to Property
Contracts and Commercial Leases, Permits other than Excluded Permits and
the Miscellaneous Property Assets owned by Seller which are located on the
Property and used in its operation.
1.1.14 "PROPERTY CONTRACTS" means all purchase orders, maintenance, service,
or utility contracts and similar contracts, which relate to the ownership,
maintenance, construction or repair and/or operation of the Property and
which are not cancelable on 90 days' or shorter Notice, except Commercial
Leases.
1.1.15 "PURCHASE CONTRACT" means this Purchase and Sale Contract by and
between Seller and Purchaser.
1.1.16 "PURCHASE PRICE" means the total consideration to be paid by Purchaser
to Seller for the purchase of the Property.
1.1.17 "SURVEY" shall have the meaning ascribed thereto in Section 6.11.
1.1.18 "TENANT" means any person or entity entitled to occupy any portion of
the Property under a Commercial Lease.
1.1.19 "TITLE COMMITMENT" or "Title Commitments" shall have the meaning
ascribed thereto in Section 6.1.
1.1.20 "TITLE INSURER" shall have the meaning set forth in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms
and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be
Sixteen Million Two Hundred Seventy Five Thousand Dollars ($16,275,000.00),
which shall be paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Fidelity National Title
Company ("Escrow Agent" or the "Title Company") a deposit in the sum of Two
Hundred Fifty Thousand and no/100 Dollars ($250,000.00), in cash, (such sum
being hereinafter referred to and held as the "Deposit"). Purchaser shall
also deliver a quitclaim deed to the Escrow Agent in the form attached as
Exhibit 3.1.1. Purchaser and Seller each approve the form of Escrow
Agreement attached as Exhibit B.
3.1.2 The Escrow Agent shall hold the Deposit and make delivery of the
Deposit to the party entitled thereto under the terms hereof. Escrow Agent
shall invest the Deposit in such short-term, high-grade securities,
interest-bearing bank accounts, money market funds or accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in
its discretion, deems suitable, (provided that Escrow Agent shall invest
the Deposit as jointly directed by Seller and Purchaser should Seller and
Purchaser each in their respective sole discretion determine to issue such
joint investment instructions to the Escrow Agent) and all interest and
income thereon shall become part of the Deposit and shall be remitted to
the party entitled to the Deposit, as set forth below.
3.1.3 If the sale of the Property is closed by the date fixed therefor (or
any extension date provided for by the mutual written consent of the
parties hereto, given or withheld in their respective sole discretion),
monies held as the Deposit shall be applied toward the Purchase Price (and
paid over to the Seller) on the Date of Closing. If the sale of the
Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of satisfaction of a condition precedent to
Purchaser's obligations, the Deposit shall be returned and refunded to
Purchaser, and neither party shall have any further liability hereunder,
subject to and except for Purchaser's liability under Section 5.3.
3.1.4. If the sale of the Property is not closed by the date fixed therefor
(or any such extension date) owing to failure of performance by Seller,
Purchaser shall be entitled to the remedies set forth in ARTICLE 12 hereof.
If the sale of the Property is not closed by the date fixed therefor (or
any such extension date) owing to failure of performance by Purchaser, the
Deposit shall be forfeited by Purchaser and the sum thereof shall go to
Seller forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in ARTICLE
12 below.
3.1.5. Notwithstanding anything contained herein to the contrary, if the
Closing does not occur due to the Purchaser's default by the date on which
Seller is otherwise able to terminate this Purchase Contract pursuant to
the terms of this Purchase Contract, the Purchase Price shall be increased
by the sum of Ten Thousand Dollars ($10,000.00) per day for each day after
the date on which Seller is entitled to terminate hereunder, whether or not
Seller exercises or attempts to exercise such termination rights. Any
statute or other law on termination rights, obligations and/or procedures
shall be disregarded for purposes of this Section 3.1.5 and shall have no
effect on the determination of said date. Nothing contained herein shall
be construed to increase Seller's remedies as described in Section 12.1
below.
ARTICLE 4
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement, and Purchaser's acquisition of such funds shall not be a
contingency to the Closing.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Subject to the terms of section 5.3 below, for thirty five (35) calendar
days following the Effective Date (i.e., through May 25, 1999 if the
Effective Date is April 20, 1999) (the "Feasibility Period"), Purchaser,
and its agents, contractors, engineers, surveyors, attorneys, and employees
("Consultants") shall have the right from time to time to enter onto the
Property:
5.1.1 To conduct and make any and all customary studies, tests, examinations
and inspections, or investigations of or concerning the Property (including
without limitation, engineering and feasibility studies, evaluation of
drainage and flood plain, soil tests for bearing capacity and percolation
and surveys, including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably desire
to confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the property for
Purchaser's intended use of the Property.
5.2 Should the results of any of the matters referred to in sub-paragraphs
5.1.1, 5.1.2 and 5.1.3 above appear unsatisfactory to Purchaser for any
reason, then Purchaser shall have the right to terminate this Purchase
Contract by giving written Notice to that effect to Seller and Escrow Agent
on or before 5:00 p.m. EDT on the date of expiration of the Feasibility
Period. If Purchaser exercises such right to terminate, this Purchase
Contract shall terminate and be of no further force and effect, subject to
and except for Purchaser's liability under Section 5.3, and Escrow Agent
shall forthwith deliver the Quitclaim Deed of all of Purchaser's right and
interest in the Property to Seller, and then promptly return the Deposit to
Purchaser. If Purchaser fails to provide Seller with written Notice of
cancellation prior to the end of the Feasibility Period in strict
accordance with the Notice provisions of this Purchase Contract, this
Purchase Contract shall remain in full force and effect and Purchaser's
obligation to purchase the Property shall be non-contingent and
unconditional except only for satisfaction of the conditions expressly
stated in this ARTICLE 5 and in ARTICLE 9.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property. Purchaser shall indemnify,
defend (with attorneys selected by Seller) and hold Seller harmless from
any and all claims, damages, costs and liability which may arise due to
such entries, surveys, tests, investigations and the like. Seller shall
have the right, without limitation, to disapprove any and all entries,
surveys, tests, investigations and the like that in their reasonable
judgment could result in any injury to the Property or breach of any
agreement, or expose Seller to any liability, costs, liens or violations of
applicable law, or otherwise adversely affect the Property or Seller's
interest therein. No consent by the Seller to any such activity shall be
deemed to constitute a waiver by Seller or assumption of liability or risk
by Seller. Purchaser hereby agrees to restore the Property to the same
condition existing immediately prior to Purchaser's exercise of its rights
pursuant to this ARTICLE 5 at Purchaser's sole cost and expense. Purchaser
shall maintain casualty insurance and comprehensive public liability
insurance with broad form contractual and personal injury liability
endorsements with respect to the Property and Purchaser's activities
carried on therein, in the amounts set forth below. Such liability
insurance shall provide coverages of not less than $1,000,000.00 for injury
or death to any one person and $3,000,000.00 for injury or death to more
than one person and $500,000.00 with respect to property damage, by water
or otherwise). The provisions of this Section shall survive the Closing or
termination of this Purchase Contract.
5.4 Purchaser shall not permit any mechanic's or materialman's liens or any
other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser.
Purchaser shall give notice to Seller a reasonable time prior to entry onto
the Property and shall permit Seller to have a representative present
during all investigations and inspections conducted with respect to the
Property. Purchaser shall take all reasonable actions and implement all
protections necessary to ensure that all actions taken in connection with
the investigations and inspections of the Property, and all equipment,
materials and substances generated, used or brought onto the Property pose
no material threat to the safety of persons or the environment and cause no
damage to the Property or other property of Seller or other persons. All
information made available by Seller to Purchaser in accordance with this
Purchase Contract or obtained by Purchaser in the course of its
investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall
use its best efforts to prevent its agents and employees from divulging
such information to any unrelated third parties except as reasonably
necessary to third parties engaged by Purchaser for the limited purpose of
analyzing and investigating such information for the purpose of
consummating the transaction contemplated by this Purchase Contract,
including Purchaser's attorneys and representatives, prospective lenders
and engineers.
ARTICLE 6
TITLE
6.1 Seller shall promptly secure a commitment for title insurance for the
Property in an amount equal to the Purchase Price ("Title Commitment,")
issued by a title insurance company which is licensed to do business in the
jurisdiction in which the Property is located ("Title Insurer") for an
owner's title insurance policy on the most recent standard American Land
Title Association ("ALTA") Policy form, together with legible copies of all
instruments identified as exceptions therein. Seller agrees that it shall
be solely responsible for payment of all costs relating to procurement of
the Title Commitment and any Owner's or Lender's title policies provided
that such costs do not exceed $11,000.00. Purchaser shall be solely
responsible for all costs relating to title which exceed $11,000.00.
6.2 Purchaser agrees to accept title to the Land and Improvements, so long as
the same is good and marketable and insurable at ordinary rates and any
conveyance by limited warranty or equivalent deed pursuant to this Purchase
Contract shall be subject to the following, all of which shall be deemed
"Permitted Exceptions" and Purchaser agrees to accept the deed and title
subject thereto:
6.2.1 All exceptions shown in the Title Commitment (other than mechanics'
liens and taxes due and payable in respect of the period preceding
Closing), as must be approved by Purchaser during the Feasibility Period;
6.2.2 All Commercial Leases and any other occupancy, residency, lease,
tenancy and similar agreements entered into in the ordinary course of
business, as must be approved by Purchaser during the Feasibility Period;
and
6.2.3 All Property Contracts and any other existing contracts created in the
ordinary course of business by Seller, which are not identified by
Purchaser for termination during the Feasibility Period; and
6.2.4 Real estate and property taxes to the extent not due and payable, as
must be approved by Purchaser during the Feasibility Period.
6.3 The existence of other mortgages, liens, or encumbrances shall not be
objections to title, provided that properly executed instruments in
recordable form necessary to satisfy and remove the same of record are
delivered to the Purchaser at Closing or, in the alternative, with respect
to any mortgage or deed of trust liens, that payoff letters from the holder
of the mortgage or deed of trust liens shall have been delivered to and
accepted by the Title Insurer (sufficient to remove the same from the
policy issued at Closing), together in either case, with recording and/or
filing fees.
6.4 Unpaid liens for taxes, charges, and assessments shall not be objections to
title, but the amount thereof plus interest and penalties thereon shall be
deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser or paid at Closing, subject to the
provisions for apportionment of taxes and charges contained in ARTICLE 7
herein.
6.5 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the Property or
otherwise against Purchaser or its affiliates, and provided further that
the Title Insurer agrees to omit such taxes as exceptions to coverage with
respect to any lender's mortgagee insurance policy.
6.6 If on the Closing Date, the state of title is other than in accordance with
the requirements set forth in this Purchase Contract or if any condition to
be fulfilled by Seller shall not be satisfied, Purchaser shall provide
Seller with written Notice thereof at such time, or such title objection or
unfulfilled condition shall be deemed waived by Purchaser in which case
Purchaser and Seller shall proceed to consummate the Closing on the Closing
Date. If Purchaser timely gives Seller such Notice, Seller at its sole
option and within Seven (7) calendar days following receipt of such Notice
may elect to cure such objection or unfulfilled condition for up to Twenty
(20) calendar days; provided, however, that if the cost to cure such
objection or unfulfilled condition will, in Seller's reasonable
determination, be $10,000 or less, Seller shall be required to use
reasonable efforts to make such cure or fulfill such condition. Should
Seller be able to cure such title objection or condition, or should Seller
be able to cause title insurance over the same by the Closing Date or any
postponed Closing Date, or should Purchaser waive such objection or
condition within such period for cure, then the Closing shall take place on
or before thirty (30) calendar days after Notice of such cure or waiver.
6.7 If during the period of cure Seller is unable or unwilling (unless required
to attempt such cure as set forth above), in its reasonable discretion or
opinion, to eliminate such title objection or cause Title Insurer to insure
over such matter or satisfy such unfulfilled condition, Seller shall give
Purchaser written Notice thereof, and if Purchaser does not waive such
objection by written Notice delivered to Seller and Title Insurer on or
before Seven (7) calendar days following the date Seller gives such Notice,
then this Purchase Contract shall automatically terminate, in which event
Purchaser shall release and quitclaim all of Purchaser's right and interest
in such Property to Seller, the Deposit shall be returned to Purchaser, and
the parties hereto shall have no further obligations to each other.
6.8 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance (other than Commercial Leases and Property Contracts in the
ordinary course of business) to attach to the Property between the date of
this Purchase Contract and the Closing Date; any such monetary lien or
encumbrance so attaching by voluntary act of Seller shall be discharged by
the Seller at or prior to Closing on the Closing Date or any postponed
Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance,
security interest, exception, objection or other matter, to make any
expenditure of money or institute litigation or any other judicial or
administrative proceeding and Seller may elect not to discharge the same;
provided, however, Purchaser may object to any mortgage, deed of trust or
judgment lien which is made or attaches prior to the Closing.
6.9 Anything to the contrary notwithstanding, Purchaser shall not have any
right to terminate this Purchase Contract or object to any lien,
encumbrance, exception or other matter that is a Permitted Exception, that
has been waived or deemed to have been waived by Purchaser.
6.10 Intentionally Omitted.
6.11 Purchaser at Seller's sole cost and expense, promptly shall cause to be
prepared a survey for the Property ("Survey") to be delivered to Purchaser
and Seller within the Feasibility Period. The Survey (i) shall be prepared
in accordance with and shall comply with the minimum requirements of the
ALTA; (ii) shall be in a form, and shall be certified as of a date
satisfactory to Title Insurer to enable Title Insurer to delete standard
survey exceptions from the title insurance policy to be issued pursuant to
the Title Commitments, except for any Permitted Exceptions; (iii) shall
specifically show all improvements, recorded easements to the extent
locatable, set back lines, and such other matters shown as exceptions by
the Title Commitments; (iv) shall specifically show the right of way for
all adjacent public streets; (v) shall specifically disclose whether (and,
if so, what part of) any of the Property is in an area designated as
requiring flood insurance under applicable federal laws regulating lenders;
(vi) shall contain the legal description of the Property (described on
Exhibits A-1 through A-4), (vii) shall be certified to Purchaser,
Purchaser's lender, Seller and Title Insurer as being true and correct; and
(viii) shall certify that the legal description set forth therein describes
the same, and comprises all of, the real estate comprising the Property to
be purchased by Purchaser pursuant to the terms of this Purchase Contract.
6.11.1 Should such Survey disclose conditions to which Purchaser objects
during the Feasibility Period, Purchaser shall have the right to object
thereto within the Feasibility Period in accordance with the procedures set
forth in Section 6.7 above.
6.11.2 Seller agrees to make payment in full of all costs of obtaining
Surveys required by this Purchase Contract on or before Closing or
termination of this Purchase Contract.
ARTICLE 7
CLOSING
7.1 DATES, PLACES OF CLOSING, PRORATIONS, DELINQUENT RENT, AND CLOSING COSTS.
7.1.1 The Closing shall occur no later than ten (10) calendar days after
expiration of the Feasibility Period, through an escrow with Escrow Agent,
whereby the Seller, the Purchaser, and their attorneys need not be
physically present at the Closing and may deliver documents by overnight
air courier or other means.
7.1.2 The Closing Date may be extended without penalty at the option of
Seller to a date not later than Twenty (20) Days following the Closing Date
specified above to satisfy a condition to be satisfied by Seller, or such
later date as is mutually acceptable to Seller and Buyer.
7.1.3. All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal property
taxes, other operating expenses and fees, shall be prorated as of the
Closing Date, Seller being charged and credited for all of same
attributable to the period up to the Closing Date (and credited for any
amounts paid by Seller attributable to the period on or after the Closing
Date) and Purchaser being responsible for, and credited or charged, as the
case may be, for all of same attributable to the period on and after the
Closing Date. All unapplied deposits under Tenant leases, if any, shall be
transferred by Seller to Purchaser at the Closing. Purchaser shall assume
at Closing the obligation to pay any accrued but unpaid tenant improvement
allowances and leasing commissions for any leases approved by Purchaser
after the Effective Date, together with any payments due parties to other
agreements affecting the Property which survive Closing. Seller shall pay
at or prior to Closing any obligations for accrued but unpaid tenant
improvement allowances and leasing commissions for all leases in existence
as of the Effective Date. Any real estate ad valorem or similar taxes for
the Property due and payable in the year of the Closing, and any
installment of assessments payable in installments which installment is
payable in the year of Closing, shall be prorated to the date of Closing,
based upon actual days involved. The proration of real property taxes or
installments of assessments shall be based upon tax statements for the
Property for the real estate taxes and installments of special assessments
due and payable in the year in which the Closing occurs to the extent the
same are available; provided, that in the event that actual figures
(whether for the assessed value of the Property or for the tax rate) for
the taxes and assessments due and payable in the year of Closing are not
available at the Closing Date, the proration shall be made using figures
from the preceding year. The proration shall be adjusted once actual bills
become available. For purposes of this Section 7.1.3. and Section 7.1.4.
and 7.1.5. the terms "Rent" and "Rents" shall include, without limitation,
base rents, additional rents, percentage rents and common area maintenance
charges. The provisions of this Section 7.1.3. shall apply during the
Proration Period (as defined below).
7.1.4. If any of the items subject to proration hereunder cannot be prorated
at the Closing because the information necessary to compute such proration
is unavailable, or if any errors or omissions in computing prorations at
the Closing are discovered subsequent to the Closing, then such item shall
be reapportioned and such errors and omissions corrected as soon as
practicable after the Closing Date and the proper party reimbursed, which
obligation shall survive the Closing for a period (the "Proration Period")
from the Closing Date until one (1) year after the Closing Date. Neither
party hereto shall have the right to require a recomputation of a Closing
proration or a correction of an error or omission in a Closing proration
unless within the Proration Period one of the parties hereto (i) has
obtained the previously unavailable information or has discovered the error
or omission, and (ii) has given Notice thereof to the other party together
with a copy of its good faith recomputation of the proration and copies of
all substantiating information used in such recomputation. The failure of
a party to obtain any previously unavailable information or discover an
error or omission with respect to an item subject to proration hereunder
and to give Notice thereof as provided above within the Proration Period
shall be deemed a waiver of its right to cause a recomputation or a
correction of an error or omission with respect to such item after the
Closing Date.
7.1.5. If on the Closing Date any Tenant is in arrears in any Rent payment
under any Tenant lease (the "Delinquent Rent"), any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing shall
be applied to amounts due and payable by such Tenant during the following
periods in the following order of priority: (i) first, to the period of
time after the Closing Date, and (ii) second, to the period of time before
the Closing Date. If Delinquent Rent or any portion thereof received by
Seller or Purchaser after the Closing are due and payable to the other
party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and
expenses expended in connection with the collection thereof, shall be
promptly paid to the other party. After the Closing, Seller shall continue
to have the right, but not the obligation, in its own name, to demand
payment of and to collect Delinquent Rent owed to Seller by any Tenant,
which right shall include, without limitation, the right to continue or
commence legal actions or proceedings against any Tenant (provided, that
Seller shall not commence any legal actions or proceedings against any
Tenant which continues as a Tenant at the Property after Closing without
the prior consent of Purchaser, which will not be unreasonably withheld or
delayed), and the delivery of the Assignment as defined in Section 7.2.1.3
shall not constitute a waiver by Seller of such right. Purchaser agrees to
cooperate with Seller at no cost or liability to Purchaser in connection
with all efforts by Seller to collect such Delinquent Rent and to take all
steps, whether before or after the Closing Date, as may be necessary to
carry out the intention of the foregoing, including, without limitation,
the delivery to Seller, upon demand, of any relevant books and records
(including, without limitation, rent statements, receipted bills and copies
of tenant checks used in payment of such rent), the execution of any and
all consents or other documents, and the undertaking of any act reasonably
necessary for the collection of such Delinquent Rent by Seller; provided,
however, that Purchaser's obligation to cooperate with Seller pursuant to
this sentence shall not obligate Purchaser to terminate any Tenant lease
with an existing Tenant or evict any existing Tenant from the Property.
The provisions of this Section 7.1.5. shall apply during the Proration
Period.
7.1.6 Seller shall pay the cost of all transfer taxes and recording costs
with respect to the Closing. Seller and Purchaser shall share equally in
the costs of the Escrow Agent for escrow fees.
7.2 ITEMS TO BE DELIVERED PRIOR TO OR AT CLOSING.
7.2.1 SELLER. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1 Limited Warranty deed in the form attached as Exhibit 7.2.1.1 to
Purchaser. The acceptance of the deed at Closing, shall be deemed to be
full performance of, and discharge of, every agreement and obligation on
Seller's part to be performed under this Purchase Contract, except for
those that this Purchase Contract specifically provides shall survive
Closing.
7.2.1.2 A Xxxx of Sale without recourse or warranty in the form attached as
Exhibit 7.2.1.2 covering all Property Contracts, Commercial Leases,
Permits (other than Excluded Permits) and Fixtures and Tangible Personal
Property required to be transferred to Purchaser with respect to such
Property. Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, of Seller's
obligations thereunder.
7.2.1.3 An Assignment (to the extent assignable and in force and effect) without
recourse or warranty in the form attached as Exhibit 7.2.1.3 of all of
Seller's right, title and interest in and to the Miscellaneous Property
Assets, subject to any required consents. Purchaser shall countersign
the same so as to effect an assumption by Purchaser, including, without
limitation, of Seller's obligations thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A vendor's affidavit or at Seller's option an indemnity, as applicable,
in the customary form reasonably acceptable to Seller to enable Title
Insurer to delete the standard exceptions (other than matters
constituting any Permitted Exceptions and matters which are to be
completed or performed post-Closing) to be issued pursuant to the Title
Commitments; provided that such affidavit does not subject Seller to any
greater liability, or impose any additional obligations, other than as
set forth in this Purchase Contract; and
7.2.1.6 A certification of Seller's non-foreign status pursuant to Section 1445
of the Internal Revenue Code of 1986, as amended.
7.2.1.7 Tenant notification letters in form reasonably acceptable to Purchaser,
original (or copies thereof if originals are not available) of the
Property files (excluding therefrom any proprietary information of
Seller), and such other closing documentation as required by Escrow
Agent or Title Insurer, or as required pursuant to this Purchase
Contract.
7.2.1.8 Except for the items expressly listed above to be delivered at Closing,
delivery of any other required items shall be deemed made by Seller to
Purchaser, if Seller leaves such documents at the Property in their
customary place of storage or in the custody of Purchaser's
representatives.
7.2.2 PURCHASER. At Closing, Purchaser shall deliver to Seller the
following items with respect to each Property being conveyed or transferred
by merger at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3 hereof plus or minus
the adjustments or prorations required by this Purchase Contract. If at
Closing there are any liens or encumbrances on the Property that Seller
is obligated or elects to pay and discharge, Seller may use any portion
of the Purchase Price for the Property(s) to satisfy the same, provided
that Seller shall have delivered to Purchaser, or to Purchaser's
designee, on such Closing instruments in recordable form sufficient to
satisfy such liens and encumbrances of record (or, as to any mortgages
or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such
instruments. The existence of any such liens or encumbrances shall not
be deemed objections to title if Seller shall comply with the foregoing
requirements.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Xxxx of Sale in the form attached as
Exhibit 7.2.1.2.
7.2.2.4 A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
7.2.2.5 Such other instruments, documents or certificates as are required to be
delivered by Purchaser to Seller in accordance with any of the other
provisions of this Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, each Seller on its own behalf with respect to its own
Property only, but not on behalf of the other Seller or Property it does
not own, represents and warrants to Purchaser the following as of the
Effective Date and as of the Closing Date:
8.1.1.1 Seller identified in the Recitals is lawfully and duly organized, and in
good standing under the laws of the state of its formation set forth in
the initial paragraph of this Purchase Contract; and has or at Closing
shall have the power and authority to sell and convey the Property and
to execute the documents to be executed by Seller and prior to Closing
will have taken as applicable, all corporate, partnership, limited
liability company or equivalent entity actions required for the
execution and delivery of this Purchase Contract, and the consummation
of the transactions contemplated by this Purchase Contract. The
compliance with or fulfillment of the terms and conditions hereof will
not conflict with, or result in a breach of, the terms, conditions or
provisions of, or constitute a default under, any Purchase Contract to
which Seller is a party or by which Seller is otherwise bound. Seller
has not made any other Purchase Contract for the sale of, or given any
other person the right to purchase, all or any part of any of the
Property applicable to the foregoing representation;
8.1.1.2 Seller owns insurable, fee title to the Property, including all real
property contained therein required to be sold to Purchaser, subject
only to the Permitted Exceptions (provided, however, that if this
representation is or becomes untrue, Purchaser's remedies shall be
limited to the remedies set forth in Section 6.7 hereof);
8.1.1.3 There are no adverse or other parties in possession of the Property,
except for occupants, guests and tenants under the Commercial Leases
(provided, however, that if this representation is or becomes untrue,
Purchaser's remedies shall be limited to the remedies set forth in
Section 6.7 hereof).
8.1.1.4 The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and
authority to convey and assign to Purchaser all contract rights and
warranties required to be conveyed and assigned to Purchaser hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes for Seller pursuant
to the Foreign Investors Real Property Tax Act of 1980, as amended;
8.1.1.6 To Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or
threatened against the Property, as applicable;
8.1.1.7 Seller has no knowledge of any claims for labor performed, materials
furnished or services rendered in connection with constructing,
improving or repairing any of the Property, as applicable, caused by
Seller and which remain unpaid beyond the date for which payment was due
and in respect of which liens may or could be filed against any of the
Property, as applicable;
8.1.1.8 To Seller's knowledge, there are no xxxxx (water, monitoring or
otherwise) located on the Property and there are no individual sewage
treatment systems located on the Property. Sewage generated at the
Property goes to a facility permitted by the Minnesota Pollution Control
Agency. The disclosures made in this Section 8.1.1.8 are made pursuant
to the requirements of Minnesota law.
8.1.1.9 To the best of Seller's knowledge, the Rent Roll attached hereto as
Schedule 8.1.1.9 is complete and accurate in all material respects, and
Seller shall provide an updated version of the Rent Roll to Purchaser at
the Closing.
8.1.1.10 To the best of Seller's knowledge, (i) the list of Leases on
Schedule 8.1.1.10 hereto is a complete and accurate list of all of the
agreements affecting the use or occupation of the Property between third
parties and Seller, and (ii) there are no written or oral promises,
understandings or commitments with any tenant other than as set forth in
such Leases or described in the Rent Roll.
8.1.1.11 To the best of Seller's knowledge, a complete and accurate list
and description of all of the Service Contracts is set forth in Schedule
8.1.1.12 hereto. To the best of Seller's knowledge, all such Service
Contracts are in full force and effect in accordance with their
respective terms. To the best of Seller's knowledge, Seller has not
given or received any notice of default under the Service Contracts, and
Seller has no knowledge of any event which, with the passage of time or
the giving of notice, would constitute a default thereunder.
8.1.1.12 To the best of Seller's knowledge, except as described in
Schedule 8.1.1.12 attached hereto, Seller has no knowledge nor has
Seller received notice of (a) any violation of the Property's compliance
with applicable fire safety laws, building code ordinances, zoning
ordinances or any similar statutes, ordinances, laws, rules or
regulations, (b) any condition, defect or inadequacy which, if not
correct, would result in the termination of, or increase in the cost of,
insurance coverage, (c) any proceedings which could cause the change,
redefinition or other modification of the zoning classifications or of
other legal requirements applicable to the Property or any part thereof,
or (d) any pending or threatened condemnation proceedings that would
affect the Property.
8.1.1.13 To the best of Seller's knowledge, and except as may be revealed
in any environmental report delivered to Purchaser:
(a) Hazardous Substances (as defined below), have not
been used, generated, transported, treated, stored, released, discharged
or disposed of in, onto, under or from the Property in violation of any
Environmental Laws (as defined below) by Seller or by any predecessor-
in-title or agent of Seller, by any tenant or by any other person or any
time. As used herein, the term "Hazardous" shall mean all substances,
wastes, pollutants, contaminants and materials regulated, or defined or
designated as hazardous, extremely or imminently hazardous, dangerous,
or toxic, under the following federal statutes and their state
counterparts, as well as these statutes' implementing regulations: the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. SS9601 et seq., the Federal Insecticide, Fungicide, and
Rodenticide Act, 7 U.S.C. SS136 et seq., the Atomic Energy Act, 42
U.S.C. SS2011 et seq, and the Hazardous Materials Transportation Act, 42
U.S.C. SS1801 et seq.; petroleum and petroleum products including crude
oil and any fractions thereof; asbestos; and natural gas, synthetic gas,
and any mixtures thereof. As used herein, the term "Environmental Laws"
shall mean any and all present and future Federal, State and local laws
(whether under common law, statute, rule, regulation, or otherwise), and
other requirements of governmental authorities relating to the
environment or to any other Hazardous Substance.
(b) Seller has received no notification of release of a
Hazardous Substance being filed as to the Property, nor has Seller
received notice that the Property is listed on the National Priority
List promulgated pursuant to CERCLA or on any other Federal or state
list of Hazardous Substance sites requiring investigation or cleanup;
(c) Seller has received no notification that there are
above-ground or underground tanks or any other underground storage
facilities located on the Property;
(d) Seller has received no notification that the Property
contains any PCBs, asbestos or urea formaldehyde; and
(e) Seller has received no notification that the Property
lies within or contains, in whole or in part, any wetlands.
To the best of Seller's knowledge, Seller has received no written or oral notice
or other communication of pending or threatened claims, actions, suits,
proceedings or investigations against Seller or any tenant or occupant of the
Property related to (i) the disposal or release of solid, liquid or gaseous
waste into the environment from the Property, (ii) the use, generation,
transportation, treatment, storage, release, discharge, disposal or other
handing of any Hazardous Substance on the Property, or (iii) any alleged
violation of any Environmental Laws in relation to the Property.
8.1.1.14 Seller is not a "foreign person" as that term is defined in the
Internal Revenue Code of 1986, as amended and the Regulations
promulgated pursuant thereto.
8.1.1.15 To the best of Seller's knowledge, the operating statements to be
delivered to Purchaser are true, correct and complete in all material
respects and fairly represent the income and expenses of the Property
for the periods covered by such statements.
8.1.1.16 To the best of Seller's knowledge, the information to be
furnished by Seller on which the computation of prorations is based
shall be true, correct and complete in all material respects.
8.1.1.17 To the best of Seller's knowledge, all water, sewer, electric,
natural gas, telephone and drainage facilities, and all other utilities
required for the intended operation of the Property, are installed to
the Property and are connected with valid permits.
8.1.1.18 To the best of Seller's knowledge (i) all governmental approvals
necessary for the operation of the Property have been obtained and are
in full force and effect, and (ii) the Property is in compliance with
all zoning, building, health, traffic, environmental, flood control,
fire safety and all other applicable rules, regulations, ordinances and
statutes of all governmental entities having jurisdiction over the
Property.
8.1.1.19 To the best of Seller's knowledge, all improvements (including
without limitation all elevators, mechanical, plumbing, drainage,
structural, heating, ventilating and air-conditioning systems; or other
systems at or servicing the Property and all other facilities and
equipment relating thereto) are Year 2000 compliant (if such
improvements are computer controlled facility components).
8.1.2 Except for the representations and warranties expressly set forth
above in Subsection 8.1.1 the Property is expressly purchased and sold "AS
IS," "WHERE IS,"and "WITH ALL FAULTS." The Purchase Price and the terms
and conditions set forth herein are the result of arm's-length bargaining
between entities familiar with transactions of this kind, and said price,
terms and conditions reflect the fact that Purchaser shall have the benefit
of, and is relying upon, no information provided by Seller or Broker and no
statements, representations or warranties, express or implied, made by or
enforceable directly against Seller or Broker, including, without
limitation, any relating to the value of the Property, the physical or
environmental condition of the Property, the state, federal, county or
local law, ordinance, order, permit or suitability, compliance or lack of
compliance of the Property with any regulation, or any other attribute or
matter of or relating to the Property (other than any covenants of title
contained in the deeds conveying the Property and the representations set
forth above). Purchaser represents and warrants that as of the date hereof
and as of the Closing Date, it has and shall have reviewed and conducted
such independent analyses, studies, reports, investigations and inspections
as it deems appropriate in connection with the Property. If Seller
provides or has provided any documents, summaries, opinions or work product
of consultants, surveyors, architects, engineers, title companies,
governmental authorities or any other person or entity with respect to the
Property, including, without limitation, the Offering Memorandum prepared
by Broker, Purchaser and Seller agree that Seller has done so or shall do
so only for the convenience of both parties, Purchaser shall not rely
thereon and the reliance by Purchaser upon any such documents, summaries,
opinions or work product shall not create or give rise to any liability of
or against Seller, Seller's partners or affiliates or any of their
respective partners, officers, directors, participants, employees,
contractors, attorneys, consultants, representatives, agents, successors,
assigns or predecessors-in-interest. Purchaser shall rely only upon any
title insurance obtained by Purchaser with respect to title to the
Property. Purchaser acknowledges and agrees that no representation has
been made and no responsibility is assumed by Seller with respect to
current and future applicable zoning or building code requirements or the
compliance of the Property with any other laws, rules, ordinances or
regulations, the financial earning capacity or expense history of the
Property, the continuation of contracts, continued occupancy levels of the
Property, or any part thereof, or the continued occupancy by tenants of any
Commercial Leases or, without limiting any of the foregoing, occupancy at
Closing. Prior to Closing, but subject to the restrictions set forth in
SECTION 16.21 below, Seller shall have the right, but not the obligation,
to enforce its rights against any and all Property occupants, guests or
tenants. Purchaser agrees that the departure or removal, prior to Closing,
of any of such guests, occupants or tenants shall not be the basis for, nor
shall it give rise to, any claim on the part of Purchaser, nor shall it
affect the obligations of Purchaser under this Purchase Contract in any
manner whatsoever; and Purchaser shall close title and accept delivery of
the deed with or without such tenants in possession and without any
allowance or reduction in the Purchase Price under this Purchase Contract.
Purchaser hereby releases Seller from any and all claims and liabilities
relating to the foregoing matters, except as provided in Section 8.1.3
below.
8.1.3 Seller and Purchaser agree that those representations contained in
Section 8.1 shall survive Closing for a period of One (1) year (that is,
any proceeding based on the breach of a representation contained in Section
8.1 that survives Closing must be commenced within One (1) year subsequent
to the date of such representation). In the event that Seller breaches any
representation contained in Section 8.1 and Purchaser had actual knowledge
of such breach, Purchaser shall be deemed to have waived any right of
recovery and Seller shall not have any liability in connection therewith.
8.1.4 Representations and warranties above made to the knowledge of Seller
shall not be deemed to imply any duty of inquiry. For purposes of this
Purchase Contract, the term Seller's "knowledge" shall mean and refer to
only actual knowledge of the Designated Representative (as hereinafter
defined) of the Seller and shall not be construed to refer to the knowledge
of any other partner, officer, director, agent, employee or representative
of the Seller, or any affiliate of the Seller, or to impose upon such
Designated Representative any duty to investigate the matter to which such
actual knowledge or the absence thereof pertains, or to impose upon such
Designated Representative any individual personal liability. As used
herein, the term .Designated Representative. shall refer to Xxxxxxx X.
Xxxxxx, Asset Manager, AIMCO, One Insignia Xxxxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000, with respect to the Alpha Business Center, Westpoint
Business Center, Plymouth Service Center, Xx. Xxxxxxx Xxxxxx at SSR/Metric
Property Management, and with respect to University Center I & II, Xx.
Xxxxx Xxxxxx at Welsh Companies.
8.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Purchaser represents and warrants to Seller the
following as of the Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1 Purchaser is limited partnership, duly organized, validly existing and
in good standing under the laws of Indiana.
8.2.2.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority to
own and use its properties and to transact the business in which it is
engaged, and has full power and authority to enter into this Purchase
Contract (subject to Purchaser's internal committee approvals which must
be obtained prior to the expiration of the Feasibility Period), to
execute and deliver the documents and instruments required of Purchaser
herein, and to perform its obligations hereunder; and no consent of any
of Purchaser's officers or members are required to so empower or
authorize Purchaser.
8.2.2.3 No pending or, to the knowledge of Purchaser, threatened litigation
exists which if determined adversely would restrain the consummation of
the transactions contemplated by this Purchase Contract or would declare
illegal, invalid or non-binding any of Purchaser's obligations or
covenants to Seller.
8.2.2.4 Subject to Purchaser's internal committee approvals which must be
obtained prior to the expiration of the Feasibility Period, Purchaser is
duly authorized to execute and deliver, acting through its duly
empowered and authorized officers and members, respectively, and perform
this Purchase Contract and all documents and instruments and
transactions contemplated hereby or incidental hereto. Such execution,
delivery and performance by Purchaser does not (i) violate any of the
provisions of their respective certificates of incorporation or bylaws,
(ii) violate any provision of any law, governmental rule or regulation
currently in effect, (iii) violate any judgment, decree, writ,
injunction, award, determination or order currently in effect that names
or is specifically directed at Purchaser or its property, and (iv)
require the consent, approval, order or authorization of, or any filing
with or notice to, any court or other governmental authority.
8.2.2.5 The joinder of no person or entity other than Purchaser is necessary to
consummate the transactions to be performed by Purchaser and Purchaser
has all necessary right and authority to perform such acts as are
required and contemplated by this Purchase Contract (subject to
Purchaser's internal committee approvals which must be obtained prior to
expiration of the Feasibility Period).
8.2.3 Except as stated in Article 10 hereof, Purchaser has not dealt with
any broker, finder or any other person, in connection with the purchase of
or the negotiation of the purchase of the Property that might give rise to
any claim for commission against Seller or lien or claim against the
Property.
8.2.4 Purchaser's representations and warranties shall survive the Closing
for a period of one (1) year and shall not merge with the limited warranty
deed or any other closing documents (that is, any proceeding based on the
breach of a representation contained in Section 8.2 must be commenced
within one (1) year subsequent to the date of such representation).
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser
at each Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser.
9.1.2 Each of the representations and warranties of Seller contained herein
shall be true and correct in all material respects when made, and shall be
true and correct in all material respects on the Closing Date and as of the
Effective Date as though such representations and warranties were made at
and as of such date and time.
9.1.3 Seller shall have complied with, fulfilled and performed in all
respects each of the covenants, terms and conditions to be complied with,
fulfilled or performed by Seller hereunder.
9.1.4 Purchaser shall have received its internal approvals prior to the
expiration of the Feasibility Period.
9.1.5 Purchaser shall have received estoppel certificates in the form set
forth on Exhibit 9.1.5 attached hereto from each of the tenants listed on
the Schedule attached hereto as Schedule 9.1.5.1 (or the form required
under the applicable lease for any tenant unwilling to execute the form
attached hereto as Exhibit 9.1.5) (each, a "Tenant Estoppel"), and
Purchaser shall have received a Seller's Best Knowledge Estoppel (as
hereinafter defined) for each tenant that has not delivered a Tenant
Estoppel.
9.1.6 There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined
adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract, or declare illegal, invalid or
nonbinding any of the covenants or obligations of Seller hereunder
Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set
forth above.
9.2 Without limiting any of the rights of Seller elsewhere provided for in this
Purchase Contract, Seller's obligation to close with respect to conveyance
of a particular Property under this Purchase Contract shall be subject to
and conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this Purchase
Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing
Date and as of the Effective Date as though such representations and
warranties were made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be performed
or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined
adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or
nonbinding any of the covenants or obligations of the Purchaser hereunder.
9.2.4 If applicable, Purchaser shall have produced evidence reasonably
satisfactory to Seller of Purchaser's compliance with Xxxx-Xxxxx-Xxxxxx Act
requirements or of the non-applicability thereof to the transactions
contemplated by this Purchase Contract.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only with
Insignia/ESG Capitol Advisors Inc., 000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 ("Broker") in connection with this Purchase Contract. Seller and
Purchaser each represents and warrants to the other that other than Broker,
it has not dealt with or utilized the services of any other real estate
broker, sales person or finder in connection with this Purchase Contract,
and each party agrees to indemnify the other party from and against all
claims for brokerage commissions and finder's fees arising from or
attributable to the acts of omissions of the indemnifying party.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller
or Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of
entry for inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 In the Event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey
title as required by this Purchase Contract, or a failure of a condition
precedent described in Article 9.2, or Purchaser defaults hereunder prior
to the Closing Date and consummation of the Closing does not occur by
reason of such termination or default by Purchaser, Seller and Purchaser
agree that it would be impractical and extremely difficult to estimate the
damages which Seller may suffer. Therefore, Seller and Purchaser hereby
agree that, except for the Purchaser's obligations to Seller under Section
5.3, the reasonable estimate of the total net detriment that Seller would
suffer in the event that Purchaser terminates this Purchase Contract , or
fails to satisfy any condition precedent described in Article 9.2, or
defaults hereunder prior to the Closing Date is and shall be, as Seller's
sole remedy (whether at law or in equity), the right to receive from the
Escrow Agent and retain the full amount of the Deposit. The payment and
performance of the above as liquidated damages is not intended as a
forfeiture or penalty within the meaning of applicable law and is intended
to settle all issues and questions about the amount of damages suffered by
Seller in the applicable event, except only for damages under Section 5.3
above, irrespective of the time when the inquiry about such damages may
take place. Upon any such failure by Purchaser hereunder, this Purchase
Contract shall be terminated, and neither party shall have any further
rights or obligations hereunder, each to the other, except for the
Purchaser's obligations to Seller under Section 5.3 above, and the right of
Seller to collect such liquidated damages to the extent not theretofore
paid by Purchaser.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a
result of Seller's default hereunder, Purchaser's sole remedy shall be to
elect to terminate this Purchase Contract and receive reimbursement of the
Deposit (or so much thereof as has been received by Escrow Agent) or to
seek specific performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 The risk of loss or damage to the Property by fire or other casualty until
the deed of conveyance is recorded is assumed by the Seller, provided that
the Seller's responsibility shall be only to the extent of any recovery
from insurance now carried on the Property. If the proceeds of insurance
are not equal to the proceeds required to repair the full extent of the
damage, Seller may either (a) give notice to Purchaser that Purchaser may,
within ten (10) days after receipt of such notice, terminate this Purchase
Contract, or (b) agree to pay to Purchaser at the Closing the difference
between the insurance proceeds and the amount required to repair the full
extent of the damage (the "Deficit Amount"), and assign to Purchaser at the
Closing the insurance proceeds. If Seller elects the remedy in subsection
(b) above, then Purchaser shall have no right to terminate this Purchase
Contract on account thereof, (but Seller shall assign to Purchaser its
interest in and to any insurance policies and proceeds thereof payable as a
result of such damage or destruction and pay to Purchaser at the Closing
the Deficit Amount). If Seller elects the remedy set forth in subsection
(a) above, and Purchaser does not elect to terminate within said ten (10)
day period, then Purchaser shall have no right to terminate this Purchase
Contract on account thereof, (but Seller shall assign to Purchaser its
interest in and to any insurance policies and proceeds thereof payable as a
result of such damage or destruction ). Seller shall not, in any event, be
obligated to effect any repair, replacement, and/or restoration, but may do
so at its option in which case Seller may apply the insurance proceeds to
the costs of restoration.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before April 20, 1999.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority
of any governmental agency in purchase in lieu thereof (or in the event
that at such time there is any notice of any such acquisition by any such
governmental agency), Purchaser shall have the right, at Purchaser's
option, to terminate this Purchase Contract by giving written Notice within
Fifteen (15) days of receipt of written notice of the occurrence of such
event and recover the Deposit hereunder, or to settle in accordance with
the terms of this Purchase Contract for the full Purchase Price and receive
the full benefit or any condemnation award.
ARTICLE 16
MISCELLANEOUS
16.1 EXHIBITS AND SCHEDULES
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
16.2 ASSIGNABILITY
Subject to Section 16.18, this Purchase Contract is not assignable without
first obtaining the prior written approval of the non-assigning party;
provided, however, Purchaser may assign this Purchase Contract to an
affiliated entity upon the consent of Seller (which consent shall not be
unreasonably withheld or delayed). No assignment shall release or relieve
Purchaser of any obligations or liabilities under this Purchase Contract.
No assignment by Purchaser shall be effective unless and until Purchaser's
assignee has executed and delivered to the Escrow Agent a quitclaim deed in
the form of Exhibit 3.1.1 hereto.
16.3 BINDING EFFECT
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 CAPTIONS
The captions, headings, and arrangements used in this Purchase Contract are
for convenience only and do not in any way affect, limit, amplify, or
modify the terms and provisions hereof.
16.5 NUMBER AND GENDER OF WORDS
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 NOTICES
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing
and shall be deemed to have been properly given or served for all purposes
(i) if sent by Federal Express or the nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered,
on the actual date of delivery or (iii) if sent by certified mail, return
receipt requested postage prepaid, on the Fifth (5th) business day
following the date of mailing , or (iv) if sent by telecopier transmission
with a copy thereof also delivered by U.S. first class mail, addressed as
follows:
If to Seller: If to Purchaser:
Angeles Mortgage Investment Trust Duke Realty Limited Partnership
and Minneapolis Business Parks Joint 8888 Keystone Crossing, Suite 1200
Venture Xxxxxxxxxxxx, Xxxxxxx 00000
0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Attn: Xx. Xxxx Xxxxxxxx
Floor Facsimile No. (000) 000-0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxxx
Facsimile No. (000) 000-0000
and With a copy to:
Duke Realty
Argent Real Estate 0000 Xxxxxxxx Xxxxxxxx, Xxxxx 0000
0000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxxxxx, Xxxxxxx 00000
Xxxxx, Xxxxxxx 00000 Attn: Xxxxxxxx Xxxxxxxxxx, Esq.
Attn: Xx. Xxxxx Xxxxxxxxx Facsimile No. (000) 000-0000
Facsimile No. (000) 000-0000
With a copy to:
Loeb & Loeb
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxxx, Esq.
Facsimile No. (000) 000-0000
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of
Notice by mail or otherwise is required, the giving of such Notice may be
waived in writing by the person or persons entitled to receive such Notice.
16.7 GOVERNING LAW AND VENUE
The laws of the State of Minnesota shall govern the validity, construction,
enforcement, and interpretation of this Purchase Contract, unless otherwise
specified herein except for the conflict of laws provisions thereof. All
claims, disputes and other matters in question arising out of or relating
to this Purchase Contract, or the breach thereof, shall be decided by
proceedings instituted and litigated in the State in which the Property is
situated, and the parties hereto expressly consent to the venue and
jurisdiction of such court.
16.8 ENTIRETY AND AMENDMENTS
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if
any, relating to the Property, and may be amended or supplemented only by
an instrument in writing executed by the party against whom enforcement is
sought.
16.9 SEVERABILITY
If any of the provisions of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision
shall be fully severable. The Purchase Contract shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Purchase Contract; and the remaining provisions of
this Purchase Contract shall remain in full force and effect and shall not
be affected by the illegal, invalid, or unenforceable provision or by its
severance from this Purchase Contract. In lieu of such illegal, invalid,
or unenforceable provision, there shall be added automatically as a part of
this Purchase Contract a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible to make such
provision legal, valid, and enforceable.
16.10 MULTIPLE COUNTERPARTS
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase
Contract, it shall not be necessary to produce or account for more than one
such counterparts.
16.11 FURTHER ACTS
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered any and all such further acts, deeds,
and assurances as may be necessary to consummate the transactions
contemplated hereby.
16.12 CONSTRUCTION
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to
the drafting of this Purchase Contract; both parties, being represented by
counsel, having fully participated in the negotiation of this instrument.
16.13 CONFIDENTIALITY
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Purchase Contract
(i) as required by law, (ii) to consummate the terms of this Purchase
Contract, or any financing relating thereto, or (iii) to Purchaser's or
Seller's lenders, attorneys and accountants. Any information provided by
Seller to Purchaser under the terms of this Purchase Contract is for
informational purposes only. Except as expressly provided herein, in
providing such information to Purchaser, Seller makes no representation or
warranty, express, written, oral, statutory, or implied, and all such
representations and warranties are hereby expressly excluded. Purchaser
shall not in any way be entitled to rely upon the accuracy of such
information. Such information is also confidential and Purchaser shall be
prohibited from making such information public to any other person or
entity other than its agents and legal representatives, without Seller's
prior written authorization, which may be granted or denied in Seller's
sole discretion.
16.14 TIME OF THE ESSENCE
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.15 CUMULATIVE REMEDIES AND WAIVER
No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies herein conferred or reserved, but each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Purchase Contract. No delay or omission to
exercise any right or power accruing upon any default, omission, or failure
of performance hereunder shall impair any right or power or shall be
construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. No
waiver, amendment, release, or modification of this Purchase Contract shall
be established by conduct, custom, or course of dealing.
16.16 LITIGATION EXPENSES
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall
be entitled to recover from the other party its reasonable attorneys' fees
and expenses incidental to such litigation.
16.17 TIME PERIODS
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time
period.
16.18 EXCHANGE
At Seller's sole cost and expense, Seller may structure the sale of the Property
to Purchaser as a Like Kind Exchange under Internal Revenue Code Section 1031
whereby Seller will acquire certain property in conjunction with the sale of the
Property (the "Seller's Like Kind Exchange"). Purchaser shall cooperate fully
and promptly with Seller's conduct of Seller's Like Kind Exchange, provided that
all costs and expenses generated in connection with Seller's Like Kind Exchange
shall be borne solely by Seller, and Purchaser shall not be required to take
title to or contract for the purchase of any other property. If Seller uses a
qualified intermediary to effectuate the exchange, any assignment of the rights
or obligations of Seller hereunder shall not relieve, release or absolve Seller
of its obligations to Purchaser. In no event shall the Closing Date be delayed
by Seller's Like Kind Exchange. Seller shall indemnify and hold harmless
Purchaser from and against any and all liability arising from and out of
Seller's Like Kind Exchange.
At Purchaser's sole cost and expense, Purchaser may structure the purchase of
the Property from Seller as a Like Kind Exchange under Internal Revenue Code
Section 1031 whereby Purchaser will acquire the Property in conjunction with the
sale of the certain other property (the "Purchaser's Like Kind Exchange").
Seller shall cooperate fully and promptly with Purchaser's conduct of
Purchaser's Like Kind Exchange, provided that all costs and expenses generated
in connection with Purchaser's Like Kind Exchange shall be borne solely by
Purchaser, and Seller shall not be required to take title to or contract for the
purchase of any other property. If Purchaser uses a qualified intermediary to
effectuate the exchange, any assignment of the rights or obligations of
Purchaser hereunder shall not relieve, release or absolve Purchaser of its
obligations to Seller. In no event shall the Closing Date be delayed by
Purchaser's Like Kind Exchange. Purchaser shall indemnify and hold harmless
Seller from and against any and all liability arising from and out of
Purchaser's Like Kind Exchange.
16.19 NO PERSONAL LIABILITY OF OFFICERS, TRUSTEES OR DIRECTORS OF SELLER
Purchaser acknowledges that this Agreement is entered into by Seller which is a
California business trust, and Buyer agrees that no individual officer, trustee,
director or representative of Seller shall have any personal liability under
this Agreement or any document executed in connection with the transactions
contemplated by this Agreement.
16.20 NO EXCLUSIVE NEGOTIATIONS
Seller shall have the right, at all times, to solicit backup offers and enter
into discussions, negotiations, or any other communications concerning or
related to the sale of the Property with any third-party; provided, however,
that such communications are subject to the terms of this Agreement, and that
Seller shall not enter into any contract or binding agreement with a third-party
for the sale of the Property unless such agreement is contingent on the
termination of this Agreement without the Property having been conveyed to Buyer
16.21 COVENANTS REGARDING LEASES
Seller agrees to timely provide Purchaser with copies of any lease proposals
(including new leases and requests for any lease modifications) and Seller
agrees not to enter into any new leases on the Property, or terminate or modify
any existing leases on the Property without the prior written consent of
Purchaser (which consent shall not be unreasonably withheld). If Seller desires
to enter into any new lease, or terminate or modify any existing leases, Seller
shall provide Purchaser written notice thereof. If Purchaser fails to deliver
written disapproval thereof to Seller within five (5) days after Purchaser's
receipt of such notice, Purchaser shall be deemed to have approved the proposed
action. If during the Feasibility Period Purchaser unreasonably disapproves of
any proposed action (as determined by Seller in its reasonable discretion),
Seller shall have the option to terminate this Purchase Contract upon five (5)
days written notice to Purchaser. Upon Purchaser's receipt of such termination
notice, Purchaser shall have the right to either accept the termination (in
which case the Deposit shall be returned to Purchaser and neither party shall
have any obligation to the other, except as expressly set forth herein for
provisions which survive termination), or Purchaser may approve the proposed
action (which was previously disapproved), and permit the Purchase Contract to
continue. If notice of approval of the proposed lease is not delivered to
Seller within five (5) days after Purchaser's receipt of the termination notice,
Purchaser shall be deemed to have accepted Seller's termination. Seller shall
not have the foregoing right of termination after the expiration of the
Feasibility Period.
16.22 COVENANTS REGARDING FINANCIAL RECORDS.
At Purchaser's request, Seller agrees to make available to Purchaser or
Purchaser's designated representative all financial books and records for the
Property being sold (other than proprietary information), and to provide such
commercially reasonable assistance so as to permit preparation of audited or
unaudited financial statements for all periods required to be prepared by the
Rules and Regulations of the Securities and Exchange Commission relating to the
purchase of the Property. Seller also agrees to cooperate in providing
information and statements to Purchaser's independent accountants as may be
required by such independent accountants in order to enable them to render an
opinion on the financial statements of the Property for such periods. Seller
shall not be obligated to incur any out-of-pocket costs or expenses to comply
with this Section 16.22.
16.23 COVENANTS REGARDING TENANT ESTOPPELS.
Seller agrees to use reasonable, good faith efforts to obtain estoppel
certificates from all tenants on the Property. Seller agrees to deliver to
Purchaser an estoppel certificate in the form attached hereto as Exhibit 9.1.5
(but limited to the best of Seller's knowledge) from each tenant for which a
tenant estoppel is not obtained (each, a "Seller's Best Knowledge Estoppel").
Purchaser agrees that if after the Closing Purchaser receives a tenant estoppel
from any tenant for which Seller has given a Seller's Best Knowledge Estoppel,
the Seller's Best Knowledge Estoppel for such tenant shall be voided and
returned to Seller.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract under
seal as of the date first set forth above.
SELLER: MINNEAPOLIS BUSINESS PARKS JOINT VENTURE
By: CENTURY PENSION INCOME FUND XXIII, A CALIFORNIA LIMITED PARTNERSHIP, a
California limited partnership
By: FOX PARTNERS V, a California general partnership, general partner
By: FOX CAPITAL MANAGEMENT CORPORATION, a California corporation, general
partner
By: [SEAL]
Its:
By: CENTURY PENSION INCOME FUND XXIV A CALIFORNIA LIMITED PARTNERSHIP, a
California limited partnership
By: FOX PARTNERS VI, a California general partnership, general partner
By: FOX CAPITAL MANAGEMENT CORPORATION, a California corporation, general
partner
By: [SEAL]
Its:
and
ANGELES MORTAGE INVESTMENT TRUST, a California business trust
By: [SEAL]
Printed:
Title:
PURCHASER: DUKE REALTY LIMITED PARTNERSHIP
By: Duke Realty Investments, Inc.,
Its General Partner
By: [SEAL]
Printed:
Title:
