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EXHIBIT 10.1
PURCHASE AGREEMENT
THIS AGREEMENT is made as of May 11, 2001 by WSI INDUSTRIES, NC., a
Minnesota corporation ("Seller") and XXX #0, XXX, Xxxxxxxxx limited liability
company ("Buyer").
RECITALS:
Seller is the fee owner of approximately 25 acres of real property
situated in Orono, Hennepin County, Minnesota, with an address of 0000 Xxxx
Xxxxxxx Xxxxxxxxx, Xxxx Xxxx, Xxxxxxxxx, as depicted on Exhibit A attached and
legally described on Exhibit B attached (the "Property").
A building of approximately 174,000 square feet is located on the
Property, as depicted on Exhibit A (the "Building").
Buyer desires to purchase the Property and Seller desires to sell the
Property pursuant to the terms of this Agreement.
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Seller agrees to sell the Property and Buyer agrees to purchase
the Property, upon the following conditions:
1. EXCLUDED PROPERTY. The Property specifically excludes (a) the
telephone system (except the wiring for the telephone systems which shall be
included in this sale and shall not be excluded from this sale), (b) any machine
tools and boxes of tooling, and (c) miscellaneous office furniture and supplies,
all of which are currently located in or on the Property (collectively, the
"Excluded Property"). Seller shall remove the Excluded Property from the
Property prior to the Closing.
2. AS-IS SALE. Seller shall sell the Property to Buyer "AS-IS",
"WHERE-IS", without any express or implied representation or warranty and Buyer
shall purchase the Property from Seller "AS-IS", "WHERE-IS", without any express
or implied representation or warranty from Seller. Buyer (a) has inspected (and
will have further opportunity to inspect) the Property, (b) is acquainted (and
will have further opportunity to become acquainted) with the condition of the
Property, and (c) agrees that in entering into this Agreement, except for the
accuracy of the representation and warranties of Seller specifically set forth
in this Agreement, (i) Buyer has not relied upon any statements or
representations, oral or written, made by Seller or anyone acting on Seller's
behalf, (ii) Buyer is relying entirely upon his own investigation, inspection
and review in making this purchase and (iii) Buyer hereby waives any and all
claims against Seller for misrepresentation or breach of warranty. Specifically
and not by way of limitation, (1) Seller
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shall not be liable for any injury, loss or damage, direct or consequential
arising out of the use or inability to use the Property, including without
limitation lost profits or other commercial loss, (2) Buyer shall not request
nor receive any escrow or "hold back" of amounts payable by or to the Seller for
environmental matters, physical conditions or any other purported defects in the
Property, and (3) neither the terms and conditions of Section 11 of this
Agreement, nor the Access Agreement to be entered into by and between Seller and
Buyer at Closing shall negate the terms and condition of this Section 2, which
terms and conditions shall survive the Closing.
3. PURCHASE PRICE. The purchase price to be paid by Buyer (the
"Purchase Price") shall be Two Million Four Hundred Thousand Dollars
($2,400,000). The Purchase Price, subject to those adjustments, prorations and
credits described in this Agreement, shall be paid as follows:
3.1 INITIAL XXXXXXX MONEY. Twenty-Five Thousand Dollars ($25,000),
as Initial Xxxxxx Money, to be paid to Seller as of the date upon which
both Seller and Buyer shall have executed this Agreement (the "Execution
Date").
3.2 ADDITIONAL XXXXXXX MONEY. Twenty-Five Thousand Dollars
($25,000), as Additional Xxxxxxx Money, to be paid to Seller on or
before that date which is fifteen (15) days following the Execution
Date. Buyer's failure to make timely payment of the Additional Xxxxxxx
Money shall be a default of this Agreement by Buyer.
3.3 PAYMENT AT CLOSING. The balance shall be paid in cash or
certified funds at Closing.
3.4 XXXXXXX MONEY CONDITIONS. All Xxxxxxx Money paid by Buyer
pursuant to this Section 3 shall be (a) nonrefundable to Buyer in the
event Buyer terminates this Purchase Agreement or fails to purchase the
Property for any reason whatsoever and (b) applied to the Purchase Price
at Closing.
4. CLOSING. The closing of the transaction contemplated by this
Agreement ("Closing") shall take place on or before that date which is thirty
(30) days following the Execution Date (the "Closing Date"). The Closing shall
take place at a location mutually agreeable to Seller and Buyer in Minneapolis,
Minnesota.
5. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. At Closing, the Purchase
Price shall be adjusted as follows:
5.1 CURRENT YEAR'S TAXES. All deferred real estate taxes and all
real estate taxes which have become a lien on the Property and which are
due and payable prior to the year in which Closing occurs, shall be paid
by Seller at or prior to Closing. All real estate taxes which have
become a lien on the Property and which are due and payable in the year
in which Closing occurs, shall be prorated to the Closing Date and
Seller's portion shall be paid by Seller at Closing.
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5.2 ASSESSMENTS. All charges for improvements or services already
made to or which benefit the Property, and all levied, deferred, and
pending assessments (general or special) existing as of the Closing Date
shall be paid in full by Seller at Closing.
6. EXAMINATION OF TITLE. Seller shall, at Seller's cost and expense,
promptly furnish to Buyer a commitment for the issuance of an owner's policy of
title insurance, issued by First American Title Insurance Company ("Title"),
certified to a current date, to include proper searches covering special
assessments, bankruptcies, state and federal judgments, and liens (the
"Commitment"). Buyer shall be allowed ten (10) days after receipt of the
Commitment for examination of said title and the making of any objections, said
objections to be made in writing or deemed to be waived. Buyer agrees that the
permitted encumbrances described on Exhibit C (the "Permitted Encumbrances") may
constitute objections to title, provided, however, that Seller shall have no
obligation to cure or remove the same. If any objections are so made, Seller
shall, within five (5) days of receipt of such objections, provide Buyer with
written notice as to whether Seller shall (a) use its reasonable efforts to cure
(or remove) such objections and make title marketable or (b) elect to not cure
(or remove) such objections. Seller's sole monetary obligation pursuant to this
Section 6 is to provide the Commitment at Seller's cost and expense. Buyer shall
be responsible for the payment of any title insurance premium or other charge
for the issuance of a title insurance policy or policies (including without
limitation endorsement fees) as Buyer may desire or require in connection with
the Closing.
6.1 SELLER ELECTION TO CURE TITLE. If Seller elects to make title
marketable, Seller shall use reasonable efforts to cure (or remove) any
objections, which cure shall be completed, if possible, within thirty
(30) days, during which time the Closing shall be postponed. If Seller
is unable to cure title within said thirty (30) day period, then and in
that event, Buyer shall have the options described in Section 6.2 of
this Agreement.
6.2 SELLER ELECTION TO NOT CURE TITLE. If Seller elects to not make
title marketable, or if Seller is unable to make title marketable within
the thirty (30) day period described in Section 6.1, then and in that
event, Buyer shall have the option to (a) waive such objection(s) and
proceed to Closing, in which event such objection(s) shall become
Permitted Encumbrances for all purposes of this Agreement or (b)
terminate this Agreement by written notice to Seller.
6.3 BUYER'S FAILURE TO CLOSE FOLLOWING CURE OF TITLE. If Seller
makes title marketable and Seller is not otherwise in default or in
breach of this Agreement and Buyer shall fail to close this transaction
pursuant to this Agreement, then and in that case, Buyer shall
immediately be in default of this Agreement, Seller may terminate this
Purchase Agreement, and all Xxxxxxx Money shall be retained by Seller as
liquidated damages, time being of the essence hereof.
7. CLOSING COSTS, CONVEYANCES AND CLOSING DOCUMENTS. The parties hereby
agree to provide to one another, at Closing, the Closing Documents described in
this Section 7, as follows:
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7.1 WARRANTY DEED. Seller shall execute and deliver to Buyer a
warranty deed, in recordable form with appropriate state deed tax paid
by Seller, conveying to Buyer fee title to the Property subject only to
the Permitted Encumbrances.
7.2 WELL DISCLOSURE CERTIFICATE. Seller shall execute and deliver to
Buyer a Well Disclosure Certificate as required by Minnesota law (or
appropriate indication shall be made on the Deed that the same is not
required).
7.3 SELLER'S AFFIDAVIT. Seller shall execute and deliver to Buyer an
affidavit of Seller in the customary Minnesota form.
7.4 FIRPTA AFFIDAVIT. Seller shall execute and deliver to Buyer an
affidavit certifying that Seller is not a "foreign person" pursuant to
the United States Internal Revenue Code of 1986, as amended.
7.5 ACCESS AGREEMENT. Seller and Buyer shall execute and deliver to
one another (with an additional copy for recording against the Property)
an Access Agreement in the form attached as Exhibit D, as more further
described in Section 11.3 of this Agreement.
7.6 TITLE DOCUMENTS. All other documents necessary to cure
objections to title, if any, and the necessary recording fees therefor.
7.7 OTHER DOCUMENTS. Such other documents and things Buyer or
Buyer's title insurance carrier may reasonably request to convey the
Property to Buyer as contemplated by this Agreement.
Costs associated with the closing shall be apportioned between Seller and Buyer
such that (a) Seller shall be responsible for the payment of the state deed tax,
the cost of providing the Commitment and one-half of the closing fee charged by
the title insurance company; and (b) Buyer shall be responsible for all premiums
(and other fees ) required for the issuance of any title insurance policy(ies),
mortgage registration tax, recording fees and one half of the closing fees
charged by the title insurance company, and any other costs and expenses
associated with the transaction, including without limitation the cost of any of
Buyer's due diligence.
8. CONTINGENCIES. Unless waived by Buyer in writing, Buyer's obligation
to purchase the Property shall be subject to (a) performance of Seller's
obligations hereunder, (b) the continued accuracy of Seller's representations
and warranties set forth in Section 10 of this Agreement and (c) Buyer's
satisfaction, in Buyer's sole discretion, as to the contingencies described in
this Section 8.
8.1 PHYSICAL CONDITION. On or before that date which is fifteen (15)
days following the Execution Date (the "Contingency Date"), Buyer shall
have satisfied itself, in Buyer's sole discretion, with the physical
condition of the Property.
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8.2 ENVIRONMENTAL CONDITION. On or before the Contingency Date,
Buyer shall have satisfied itself with the environmental condition of
the Property.
8.2.1 ENVIRONMENTAL REPORT. Buyer hereby acknowledges receipt of
a copy of that certain Phase I Environmental Site Assessment dated
July 29, 1999 and prepared by Peer Environmental & Engineering
Resources, Inc. (the "Environmental Report"). Commencing as of the
Execution Date, Seller agrees to provide Buyer with access to any
and all other records in Seller's possession regarding the
environmental condition of the Property.
8.2.2 PHASE II TESTING. Seller acknowledges that Buyer may
desire to further test and/or investigate the environmental
condition of the Property ("Phase II Testing"). For purposes of this
Agreement, Phase II Testing shall mean any test, drilling of any
holes or any other environmental inspection other than a visual
inspection of the Property. The Phase II Testing shall be performed
at Buyer's sole cost and expense. Prior to the commencement of any
Phase II Testing, Buyer shall submit to Seller a written description
of the desired Phase II Testing and the contractor(s) proposed to
complete the Phase II Testing (the "Phase II Request"), which Phase
II Testing and contractor(s) shall be subject to Seller's prior
written approval, which approval shall not be unreasonably withheld
or delayed. To the extent Seller fails to affirmatively approve or
disapprove the Phase II Request within five (5) days of Seller's
receipt of the Phase II Request, all dates in this Purchase
Agreement shall be extended by the number of days between the fifth
(5th) day following Seller's receipt of the Phase II Request and the
date upon which Seller provides its approval or disapproval of the
Phase II Request.
8.2.3 PHASE II REPORTS. Notwithstanding the foregoing, (a)
Seller shall be provided with a copy of any written results of the
Phase II Testing at the same time Buyer is provided with such
results; (b) Buyer shall repair any damage to the Property caused by
such Phase II Testing, and (c) Buyer hereby specifically agrees that
because Seller is the owner of the Property, Seller shall control
the timing and nature of disclosure of any Phase II Testing to the
Minnesota Pollution Control Agency ("MPCA") and/or other required
governmental entities. Accordingly, Seller and Buyer agree that
Seller's approval of the Phase II Request shall include (i) written
confirmation of the terms of this Section 8.2.3 and (ii) agreement
by the Phase II contractor desired by Buyer, Xxxxx Intertec, Inc.
("Xxxxx") that Xxxxx shall work with Seller's environmental
contractor, Peer Environmental & Engineering Resources, Inc.
("Peer") and that Peer shall be the entity to provide disclosure to
the MPCA of any new information discovered by the Phase II Testing,
provided, however, that Peer shall agree in writing with Buyer and
Xxxxx to assume responsibility for reporting to the MPCA of Xxxxx'x
findings which are required by law to be so reported, if any.
8.2.4 PHASE II TERMINATION. If Seller fails to grant its consent
to any Phase II Testing proposed by Buyer within five (5) days after
Seller receives such request, Buyer
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may immediately terminate this Purchase Agreement by written notice
to Seller within ten (10) days following Seller's receipt of such
request, which termination shall be accompanied by Buyer's quit
claim deed to the Property and, thereafter, neither party shall be
liable to the other regarding this the Purchase Agreement, provided,
however, that Seller shall retain the Xxxxxxx Money. Buyer hereby
indemnifies and agrees to hold Seller harmless from any and all
liabilities of whatever nature arising out of Buyer's presence on
the Property prior to the Closing Date, (a) including without
limitation mechanic's liens, but (b) excluding (i) the liabilities,
costs and expenses of (or associated with) the remediation of
conditions which exist on the Property prior to Buyer's inspection
and testing and (ii) liabilities incurred by the negligent actions
of Seller and/or Seller's agents and/or employees, which indemnity
shall survive the Closing or termination of this Purchase Agreement.
8.3 NO ASSOCIATION DETERMINATION. On or before the Contingency Date,
Buyer shall have received a No Association Determination letter from the
MPCA, in form and substance suitable to Buyer.
8.4 SURVEY. On or before the Contingency Date, Buyer shall have
received a survey of the Property in a form satisfactory to Buyer (the
"Survey"). All costs of the Survey shall be at Buyer's sole cost and
expense.
8.5 DUE DILIGENCE. Seller and Buyer shall each (a) exercise due
diligence, (b) act in good faith in attempting to fulfill, and (c)
reasonably cooperate with the other party's efforts to complete each of
the contingencies during the Contingency Period.
8.6 EXERCISE OF CONTINGENCIES. The above contingencies benefit Buyer
and Buyer reserves the right to waive performance of any or all of the
contingencies by written notice executed and delivered to Seller. Buyer
shall provide Seller with written notice of the failure of any condition
as of the Contingency Date, which termination shall be accompanied by
Buyer's quit claim deed to the Property and, in such event, this
Agreement shall be terminated, provided, however, that Seller shall
retain the Xxxxxxx Money. If Buyer does not provide Seller with written
notice of the failure of any condition as of the Contingency Date, said
condition shall be deemed waived.
8.7 SELLER'S COOPERATION. Except as otherwise specifically provided,
all of the above contingencies shall be undertaken at Buyer's sole cost
and expense, provided, however, that Seller shall reasonably cooperate
with Buyer's efforts to complete said contingencies, provided, however,
that such cooperation shall specifically not include, without
limitation, the expenditure of funds or the provision of indemnities by
Seller.
9. INSPECTION. From and after the date of this Agreement, Buyer and
Buyer's representatives, at Buyer's sole cost and expense, shall have the right
to enter upon the Property for the purposes of viewing the Property and making
such other physical inspection as Buyer deems appropriate, provided, however,
(a) the terms and conditions of Section 8.2 shall control
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as to inspections or testing for environmental conditions, which shall include
without limitation drilling upon the Property, or otherwise testing the soil or
groundwater of the Property, and (b) Buyer shall repair and restore any damage
to the Property caused by or occurring during Buyer's testing and return the
Property to substantially the same condition as existed prior to such entry. In
addition to the indemnity described in Section 8.2.4 regarding environmental
testing, Buyer hereby agrees to hold Seller harmless from any and all
liabilities of whatever nature arising out of Buyer's presence on the Property
prior to the Closing Date, specifically including without limitation the cost of
any repair or restoration of the Property as described in the preceding
sentence, but specifically excluding (i) the liabilities, costs and expenses of
(or associated with) the remediation of conditions which exist on the Property
prior to Buyer's inspection and (ii) liabilities incurred by the negligent
actions of Seller and/or Seller's agents and/or employees. Buyer shall pay all
costs and expenses of any such tests or investigations and Buyer shall, provide
to Seller copies of all written test results and reports of such tests or
investigations.
10. SELLER'S REPRESENTATIONS AND WARRANTIES. To induce Buyer to (a) enter
into this Agreement, (b) purchase the Property and (c) consummate the
transaction contemplated by this Agreement, Seller hereby warrants and
represents to Buyer, as follows:
10.1 GOVERNMENTAL MATTERS. Seller has not received written notice of (a)
any pending or contemplated annexation or condemnation proceedings, or
purchase in lieu of the same, affecting or which may affect all or any part
of the Property, (b) any proposed or pending proceeding to change or
redefine the zoning classification of all or any part of the Property, (c)
any proposed change(s) in any road patterns or grades which would adversely
and materially affect access to the roads providing a means of ingress or
egress to or from the Property (other than potential rerouting of Highway
12/US Interstate 394, which has been reported in public newspapers) or (d)
any uncured violation of any legal requirement, restriction, condition,
covenant or agreement affecting the Property or the use, operation,
maintenance or management of the Property.
10.2 TITLE. Seller is and will at Closing be the sole owner of the
Property and will transfer to Buyer at Closing good and marketable title to
the Property subject only to the Permitted Encumbrances. Specifically but
not by way of limitation, (a) there shall be no leases, tenancies,
agreements or other contracts of any nature or type affecting or serving the
Property as of the Closing Date and (b) the Property is not subject to any
other contracts for sale, options, rights of first refusal or similar
contract rights or restrictions on Seller's right to sell the Property or
any of it.
10.3 PROPERTY. The Property consists of approximately 25 acres of real
property and the Building contains approximately 174,000 square feet of
space.
The obligations of Buyer to purchase the Property and to perform the other
covenants and obligations to be performed by Buyer shall be subject to the
representations and warranties made by Seller being true and correct on the
Closing Date with the same force and effect as though
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such representations and warranties had been made on and as of such date. Seller
agrees to pay and protect, indemnify and release Buyer from and hold Buyer
harmless against any and all liabilities, damages, losses, costs, expenses
(including reasonable attorneys' fees and expenses), causes of action, suits,
claims, demands or judgements, made or otherwise claimed by any person or entity
arising from the inaccuracy of Seller's representations and warranties set forth
in this Purchase Agreement, which representations, warranties and indemnity
shall survive the Closing.
11. ENVIRONMENTAL MATTERS. Seller hereby represents to Buyer and Buyer
hereby acknowledges that the Property has been and continues to be the subject
of environmental remediation as more further described in the Environmental
Report and in this Section11.
11.1 REPRESENTATIONS BY SELLER. Seller represents and warrants to Buyer
that, to Seller's actual knowledge as of the date of this Agreement without
investigation of any kind or nature whatsoever, (a) there are no Hazardous
Substances located on the Property, except (i) as disclosed in the
Environmental Report and (ii) for the fact that asbestos may be present in
the Building, and (b) the Property has not been used by Seller in connection
with the generation, disposal, storage, treatment or transportation of
Hazardous Substances except as disclosed in the Environmental Report.
11.2 "HAZARDOUS SUBSTANCE" DEFINITION. For purposes of this Agreement,
the term "Hazardous Substance" includes, but is not limited to, substances
defined as "hazardous substances", "toxic substances", or "hazardous waste"
in the Comprehensive Environmental Response Compensation Liability Act of
1980, as amended, 42 USC Section 9601, et seq., and substances defined as
"hazardous waste", "hazardous substances", or "pollutants or contaminants"
in the Minnesota Environmental Response and Liability Act, Minn. Stat. ss.
115B.02. The term "Hazardous Substance" shall also include polychlorinated
biphenyls, petroleum, including crude oil or any fraction thereof, petroleum
products, heating oil, natural gas, natural gas liquids, liquified natural
gas or synthetic gas usable for fuel.
11.3 CLEAN-UP. Buyer acknowledges that the Property is the subject of an
environmental clean-up ("Clean-Up") monitored by the MPCA, as described in
the Environmental Report. Seller and Buyer acknowledge that the current
status of the Clean-Up is the continued placement of and monitoring from
five (5) xxxxx on the Property and, other than the provision of reports to
the MPCA, does not currently require other affirmative action by Seller.
Seller makes no warranties or representations concerning the timing or
extent of the Clean-Up, provided, however, that Seller shall comply with
applicable law regarding the Clean-Up and shall use due diligence to provide
the monitoring reports to the MPCA in a timely manner. Seller shall only be
required to take such actions regarding the Clean-Up as are required by
applicable law to obtain written confirmation of closure of the Clean-Up
("Closure Letter"). Upon completion of the Clean-Up, Seller shall provide
Buyer with the Closure Letter, if a Closure Letter is so available.
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11.3.1 REIMBURSEMENTS. The parties agree that Seller shall be
entitled to any and all reimbursements from the State of Minnesota and
the United States Government in connection with the Clean-Up
("Environmental Reimbursements") and that Buyer shall not be entitled to
make any claim to any Environmental Reimbursements, except as
specifically provided in Section 9 of the Access Agreement.
11.3.2 FURTHER NEGOTIATIONS. Seller shall have the sole right and
responsibility to negotiate any matters relating to the Clean-Up with
the MPCA and/or any other state or federal governmental entities, unless
such matters affect Buyer's rights to make improvements to the Property,
in which event Buyer shall have the sole right and responsibility to
negotiate any matters relating to further remediation and/or relocation
of existing monitoring xxxxx, provided, however, that Buyer shall
provide Seller with written notice of any such negotiations within three
(3) days of the date of any such negotiations. In the event the Clean-Up
is amended at Buyer's request or as otherwise described in Section 8 of
the Access Agreement and such amendment results in an increase in any
Clean-Up expenses over and above the Clean-Up expenses as of the date of
this Agreement (which increased costs are described in the Access
Agreement as costs of New Remediation and which include without
limitation increased monitoring expenses by reason of additional
monitoring xxxxx and/or increased monitoring requirements and/or any
expenses other than groundwater well monitoring, e.g., expenses of soil
excavation, removal and disposal), then and in that event, Buyer shall
be solely responsible for the cost of such increased expenses and any
increased responsibilities on the Property in connection with the
completion of the Clean-Up. Seller and Buyer hereby agree that the terms
and conditions of this Section 11.3.2 are intended to complement and be
in addition to the terms and conditions of Section 10 of the Access
Agreement.
11.3.3 ACCESS TO PROPERTY. To allow Seller to perform the Clean-Up,
Buyer hereby agrees that Seller shall retain a right of access to the
Property for purposes of performing the Clean-Up, as more further
described in that certain Access Agreement in the form attached as
Exhibit D (the "Access Agreement"). Accordingly, at Closing, Seller and
Buyer shall execute the Access Agreement in recordable form.
11.4 SELLER'S INDEMNIFICATION. Seller agrees to pay and protect,
indemnify and release Buyer from and hold Buyer harmless against any and all
liabilities, damages, losses, costs, expenses (including reasonable
attorneys' fees and expenses), causes of action, suits, claims, demands or
judgements, made or otherwise claimed by any person or entity arising from
cost, damage or expense which Buyer incurs as a result of any claims, causes
of actions, regulatory proceedings or other actions against Buyer or the
Property arising in connection with or in relation to environmental
conditions existing as of the Closing Date, including but not limited to the
matters disclosed in the
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Environmental Report, specifically including claims by adjacent property
owners for damages resulting from the contamination of adjacent properties
due to the migration of any such contamination, except where the same is
incurred by reason of the (a) breach of Buyer's obligations described in (i)
the Access Agreement and/or (ii) this Section 11, or (b) the negligent or
intentional acts or omissions by Buyer or its tenants, invitees,
contractors, subcontractors, agents or employees ("Seller's Environmental
Responsibility"). Notwithstanding the foregoing, Seller's Environmental
Responsibility shall not include the abatement, removal or other action
taken regarding asbestos which may be present in the Building ("Asbestos
Actions"), the cost of any such action shall be and remain Buyer's sole
responsibility.
11.5 BUYER'S INDEMNIFICATION. Buyer further agrees to pay and protect,
indemnify and release Seller from and hold Seller harmless against any and
all liabilities, damages, losses, costs, expenses (including reasonable
attorneys' fees and expenses), causes of action, suits, claims, demands or
judgments made or otherwise claimed by any person or entity arising from
cost, damage or expense which Seller incurs as a result of any damage to the
Property or any claims, causes of actions, regulatory proceedings or other
actions against Seller or the Property arising in connection with or in
relation to any environmental conditions of the Property which first arise
during Buyer's ownership of the Property and/or during the ownership of the
Property by a parent, subsidiary or affiliate of Buyer or an entity whose
ownership is in common with Buyer ("Buyer's Affiliates"), specifically
including Asbestos Actions but specifically excluding Seller's Environmental
Responsibility.
11.6 SURVIVAL. The indemnities, representations, warranties and
covenants and agreements set forth in this Section 11 shall survive the
closing of this transaction and Seller's delivery of the Deed to the
Property to Buyer.
12. DEFAULT. Either Buyer or Seller shall be in default under this Agreement
if either party fails to observe, perform or comply with any term, condition or
obligation of this Agreement within the time period(s) described in this
Agreement. In the event of default, the parties shall have the rights described
as to such default in this Agreement, provided, however, that nothing herein
shall deprive either party of any rights or remedies available to such party at
law or in equity, including the right of enforcing the specific performance of
this Agreement, provided action to enforce the specific performance of this
Agreement shall be commenced within six (6) months after such right of action
shall arise. Notwithstanding anything to the contrary in this Agreement, neither
party shall have a claim for damages for breach of this Purchase Agreement,
provided, however, that (a) Seller may have a claim for damages by reason of
Buyer's breach of the terms and conditions of Section 8.2.4 and/or Section 9 of
this Agreement and (b) either party may have a claim for damages by reason of
the other party's breach of the other party's indemnity(ies) described in this
Agreement.
13. TERMINATION OF AGREEMENT. In the event of termination of this Agreement
for any reason described in this Agreement, Buyer specifically agrees to provide
to Seller or Title a
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recordable Quit Claim Deed to the Property executed by Buyer. Further, Buyer
agrees that within ten (10) days of such termination, Buyer shall provide Seller
with a copy of each and every document obtained by Buyer in connection with any
of the contingencies described in Section 8, which relates to the physical
condition of the Property, specifically including without limitation, the
environmental condition of the Property. The parties specifically agree that, in
the event of any termination of this Agreement, Seller shall retain the Xxxxxxx
Money.
14. RISK OF LOSS. Between the date of this Agreement and the Closing Date,
the risk of ownership and loss of the Property shall belong solely to Seller.
If, prior to Closing, all or any portion of the Property is condemned, taken by
eminent domain, damaged by fire or by any other cause of any nature, Seller
shall, to the extent Seller receives knowledge of the same, immediately give
Buyer notice of such condemnation, taking or damage. After receipt of notice of
such condemnation, taking or damage (from Seller or otherwise), Buyer shall have
the option either (a) to require Seller to convey the Property at Closing to
Buyer in its damaged condition, upon and subject to all of the other terms and
conditions of this Agreement without reduction of the Purchase Price, or (b) to
terminate this Agreement by giving notice of such termination to Seller,
whereupon this Agreement shall be terminated, provided, however that the terms
and conditions of Section 13 shall apply, and thereafter neither party shall
have any further obligations or liabilities to the other. The right to terminate
this Agreement shall be exercised within ten (10) days of the date of notice of
the event giving rise to such notice and if not exercised by Buyer within said
time period such right shall be deemed to have been waived.
15. BROKERS. Each party represents that all negotiations on its behalf
relative to this Agreement and the transaction contemplated by this Agreement
have been carried on directly between the parties, without the intervention of
any party, as broker, finder or otherwise, except for Xxxx Xxxxx of CB Xxxxxxx
Xxxxx ("Broker"), whose fee shall be payable by Seller. In the event any party
other than the Broker institutes a legal action in an effort to recover such
fees, the parties jointly shall defend such action. If a judgment is obtained
against the parties jointly, the party responsible for breach of this warranty
shall reimburse the other for the latter's attorneys' fees, court costs and
share of judgment. Each party agrees to indemnify and hold the other party
harmless from and against any loss, cost, charge and expense, including
attorneys' fees, resulting from any claim for such fee or commission.
16. NOTICES. Any notice to be given by a party to this Agreement shall be
personally delivered or be sent by registered or certified mail, or by a
nationally recognized overnight courier that issues a receipt to the other
parties in this Section (or to such other address as may be designated by notice
to the other parties), and shall be deemed given upon the earlier of personal
delivery, the date postmarked, delivery to such courier or the refusal to accept
such service: 10
If to Seller: WSI Industries, Inc.
00000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Fax: 952/000-0000
12
If to Buyer: DRB #8, LLC
c/o Xxxxx X. Xxxxx
Xxxxxxxxxx & Xxxxx, P.A.
1100 International Centre
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Fax: 612/000-0000
17. SUCCESSORS AND ASSIGNS. The terms, conditions and covenants hereof shall
extend to, be binding upon and inure to the benefit of the successors and
assigns of the parties to this Agreement. Notwithstanding the foregoing, Buyer
may not assign its interest in this Agreement without Seller's prior written
consent, except as specifically provided for in Section 20 of this Agreement.
18. SURVIVAL OF COVENANTS. All agreements, and all warranties,
representations and indemnities specifically set forth in this Agreement shall
survive the Closing and shall bind the parties subsequent to the Closing as
fully as if new agreements were entered into at Closing, any rule of law to the
contrary notwithstanding.
19. COUNTERPART; DELIVERY BY FACSIMILE. This Agreement may be executed and
acknowledged in multiple counterparts for the convenience of the parties, which
together shall constitute one agreement and the counterpart signature and
acknowledgment pages may be detached from the various counterparts and attached
to make one copy of this Agreement. Each such copy of this Agreement shall be
deemed an original. It shall not be necessary in making proof of this Agreement
to produce or account for more than one counterpart. Delivery of an executed
counterpart of this Agreement by facsimile shall be deemed delivery of the
original of this Agreement, provided, however, that each party to this Agreement
hereby agrees to deliver an executed original of this Agreement to the other
party within five (5) days of the delivery of the facsimile copy.
20. 1031 EXCHANGE. At either party's option, the other party agrees to
cooperate with the electing party in a deferred ss. 1031 like-kind exchange of
the property, provided, however, that the other party is not required to take
title to any other property or to incur any further cost or liability.
13
IN AGREEMENT, the parties have executed this Purchase Agreement as of the
day and year first above written.
SELLER: BUYER:
WSI INDUSTRIES, INC. DRB #8, LLC
By By
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Its Its
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