EXHIBIT 10.11
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT is made and entered into as of
March 15, 2000, by and between Fleninge Partnership, a Minnesota general
partnership ("Seller"), and Entegris, Inc., a Minnesota corporation, or its
assigns ("Purchaser").
WHEREAS, Seller is the owner of certain improved commercial real estate and
related personal property, and certain right, title and interest in and to the
same, all as described in this Agreement; and
WHEREAS, Purchaser desires to purchase such property from Seller, and
Seller desires to sell such property to Purchaser, in accordance with the terms,
provisions and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants and promises hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of all of which is hereby
acknowledged, the parties hereby agree as follows:
1. Sale of Subject Property. Seller shall sell to Purchaser, and Purchaser
shall purchase from Seller, all of Seller's right, title and interest in and to
the following property (collectively, "Subject Property"):
(a) Real Property. Fee simple interest in that certain parcel of real
estate consisting of approximately 4.37 acres, located at 0000 Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxx, and legally described on Exhibit A attached hereto
and made a part hereof ("Land"), together with (i) all building structures,
improvements and fixtures owned by Seller or in which Seller has an
interest located on the Land, including, without limitation, the office,
manufacturing, warehouse and co-generation facilities and storage tanks
("Improvements"), and (ii) all of Seller's rights, privileges, servitudes
and appurtenances thereunto belonging or appertaining, including, without
limitation, all right, title and interest of Seller, if any, in and to the
streets, alleys and rights-of-way adjacent to the Land and the Improvements
(collectively, "Real Property").
(b) Personal Property. All of the equipment and personal property
owned by Seller and used in the operation of the Real Property and
described on Exhibit B attached hereto and made a part hereof ("Personal
Property").
(c) Permits. All of Seller's interest in and to the licenses, permits
and certificates of occupancy described on Exhibit C attached hereto and
made a part hereof, to the extent that the same are assignable ("Permits").
(d) Warranties. All of Seller's interest in and to all unexpired
warranties and guaranties (i) given or assigned to, or benefitting, Seller
or the Real Property or the Personal Property, (ii) regarding the
acquisition, construction, design, use, operation, management or
maintenance of the Real Property or the Personal Property, and (iii)
described on Exhibit D
attached hereto and made a part hereof, to the extent that the same are
assignable ("Warranties").
(e) Plans. All of Seller's interest in and to all final plans and
specifications relating to the construction of the Improvements.
(f) Books and Records. All of Seller's books and records regarding
acquisition, leasing, maintenance and operation of the Subject Property.
2. Purchase Price. As consideration for the purchase of the Subject
Property, Purchaser shall pay to Seller the sum ("Purchase Price") of Two
Million Five Hundred Thirty Thousand and No/100 Dollars (US) ($2,530,000.00).
The Purchase Price shall be payable at Closing to Seller, or at the direction of
Seller, by wire transfer of immediately available funds, plus or minus
prorations and other adjustments hereunder.
3. Contingency Periods.
(a) Conditions Precedent. Purchaser's obligation to consummate the
transaction contemplated by this Agreement shall be subject to the
satisfaction or waiver of each of the following conditions (individually, a
"Condition Precedent" and collectively, "Conditions Precedent"), on or
before the Closing Date:
(i) Title/Survey. Seller shall furnish to Purchaser (A) a current
title insurance commitment for an owner's title insurance policy
issued by the Title Company showing title in Seller, with the
commitment of the Title Company to remove the general exceptions by
means of an extended coverage endorsement ("Commitment"), together
with copies of all underlying title documents listed in the Commitment
other than any financing documents encumbering the Real Property which
will be paid and satisfied prior to or at Closing, and (B) a survey
("Survey") for the Real Property prepared in accordance with the
Minimum Standard Detail Requirements for Class A Land Title Surveys
jointly established by ALTA/ACSM, as revised in 1992, and certified to
Purchaser, Seller and the Title Company. If the Survey discloses
survey defects or if the Commitment shows exceptions (collectively,
"Unpermitted Encumbrances") other than the matters set forth on
Exhibit E attached hereto and made a part hereof (collectively,
"Permitted Encumbrances"), then Purchaser shall notify Seller, in
writing, on or before a date ten (10) days after Purchaser has
received the Commitment and Survey, specifying the Unpermitted
Encumbrances. In such event, Purchaser shall have received adequate
assurances that the Unpermitted Encumbrances will be removed at or
before Closing.
(ii) Documents. Seller shall, within five (5) days following
execution of this Agreement deliver to Purchaser true and correct
copies of all Permits, Warranties,
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Plans and any environmental assessments or soils reports in Seller's
possession with respect to the Subject Property, for Purchaser's
review and analysis.
(iii) Termination Rights. If any one or more of the Conditions
Precedent have not been satisfied on or before the Closing Date, then
this Agreement may be terminated, at Purchaser's sole option, by
written notice from Purchaser to Seller. Such written notice of
termination may be given at any time on or before the Closing Date.
Except as otherwise provided herein, upon such termination, and (y)
neither party will have any further rights or obligations regarding
this Agreement or the Subject Property. Failure of Purchaser to give
Seller written notice of termination on or before the Closing Date
shall constitute an irrevocable waiver by Purchaser of the Conditions
Precedent. Seller and Purchaser hereby acknowledge and agree that all
of the Conditions Precedent are specifically stated in this Section
3(a), and are for the sole and exclusive benefit of Purchaser, and
that Purchaser shall have the right unilaterally to waive, in whole or
in part, any Condition Precedent by written notice to Seller.
4. Covenants by Seller. Seller covenants and agrees with Purchaser that
from the date hereof until the "Closing Date" (as defined in Section 8(a)
hereof), except as otherwise provided herein, Seller shall refrain from
transferring the Subject Property, or any portion thereof, or creating on the
Subject Property any easements or restrictions; provided, however, that nothing
herein shall preclude Seller's replacement of any equipment, supplies or
machinery in the ordinary course of operating the Subject Property with similar
equipment, supplies or machinery of at least equal quality and value.
5. Representations and Warranties by Seller. Seller hereby represents and
warrants to Purchaser as follows:
(a) Authority. Seller is a general partnership duly organized and
validly existing under the laws of the State of Minnesota. Seller has the
requisite power and authority to enter into and perform its obligations
under this Agreement and under each of Seller's Closing Documents (as such
term is defined in Section 9(a) hereof). This Agreement and each of
Seller's Closing Documents have been duly authorized by all necessary
action on the part of Seller and have been or will be duly executed and
delivered by Seller. Seller's execution, delivery and performance of this
Agreement and each of Seller's Closing Documents will not conflict with or
result in a violation of Seller's organizational documents, or any
judgment, order, or decree of any court or arbiter to which Seller is a
party. This Agreement and each of Seller's Closing Documents are valid and
binding obligations of Seller, and are enforceable against Seller in
accordance with their terms, subject to applicable bankruptcy, insolvency,
reorganization, creditors' rights and other similar laws.
(b) Utilities. Seller has received no written notice of actual or
threatened reduction or curtailment of any utility service currently
supplied to the Real Property.
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(c) Hazardous Substances. Seller has not received any notice from any
applicable governmental authority that any hazardous substances have been
placed or located upon the Real Property in violation of applicable
environmental laws.
(d) FIRPTA. Seller is not a "foreign person," "foreign partnership,"
"foreign trust" or "foreign estate" as those terms are defined in Section
1445 of the Internal Revenue Code.
(e) Proceedings. There is no action, litigation, condemnation or
proceeding of any kind pending or, to the best of Seller's knowledge,
threatened against Seller, which would have a material and adverse affect
on the ability of Seller to perform its obligations under this Agreement,
or against the Real Property or any portion thereof.
(f) Condition of the Real Property. Seller has not received written
notice from any governmental authority having jurisdiction over the Real
Property of any violation of any applicable law, rule, regulation or code
of any such governmental authority, which has not been cured or remedied.
Except as disclosed by any engineering reports received by Purchaser with
respect to the Real Property, the major structural, mechanical and
electrical systems included among the Improvements are in good working
order and condition to perform the work or function for which they are
intended.
(g) Books and Records. The books and records relating to the Subject
Property which have been made or will be made available to Purchaser, and
which have been prepared by Seller's property manager, accurately reflect
the operation of the Subject Property.
(h) EMPAK Lease. EMPAK, INC., a Minnesota corporation ("EMPAK") is not
in default under that certain Lease Agreement by and between Seller (as
Landlord) and EMPAK (as Tenant), dated June 15, 1993 (the "EMPAK Lease"),
nor is EMPAK in arrears in the payment of any sums or in the performance of
any obligations required of it thereunder. Except for Seller's ongoing
maintenance responsibilities as landlord, all alterations, installations,
decorations and other work required to be performed by Seller, as landlord,
under the provisions of the Lease has been completed and fully paid for, or
will be completed and fully paid for on or before the Closing Date.
(i) Real Estate Taxes and Special Assessments. Except as shown on any
tax bills delivered to Purchaser or as shown on the Commitment, Seller has
not received any notice of and, to the best of Seller's knowledge, there is
no proposed increase in the assessed valuation of the Subject Property or
any special assessments which affect the Subject Property.
(j) Absence of Bankruptcy. Neither Seller nor any of its partners has
commenced (within the meaning of any bankruptcy law) a voluntary case,
consented to the entry of an order for relief against it in a voluntary
case, or has consented to the appointment of a receiver of it or for all or
any substantial part of its property, nor has a court of competent
jurisdiction entered an order or decree under any Bankruptcy law that is
for relief against Seller or any of its
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partners in an involuntary case or appoints a receiver of Seller or any of
its partners for all or any substantial portion of its property.
(k) Condemnation. Seller has not received from any governmental
authority notice of any, and to the best of Seller's knowledge there is no,
pending or contemplated condemnation proceedings affecting the Subject
Property or any part thereof.
(l) Title to Personal Property. Seller has good and marketable title
to, and owns outright, the Personal Property, free and clear of all liens,
encumbrances, security interests and adverse claims of any kind or
character, other than liens which will be released on or before the Closing
Date.
(m) Parking Facilities. The parking facilities included as part of the
Subject Property comply with all local and other governmental requirements
and there are no operating or other agreements affecting such parking
facilities.
(n) Mechanics' Liens. All bills and claims for labor performed and
materials furnished to or for the benefit of the Subject Property for all
periods prior to the Closing Date have been (or prior to Closing will be)
paid in full, and on the Closing Date there shall be no mechanics' liens or
materialmen's liens (whether or not perfected) on or affecting the Subject
Property.
(o) Driveways and Access. Access to and egress from the Subject
Property is available and provided by public streets or roads; and, to the
best of Seller's knowledge, there are no federal, state, county, municipal
or other governmental plans to change the highway or road system in the
vicinity of the Subject Property or to restrict or change access from any
such highway or road to the Subject Property.
(p) No Unrecorded Liens. No lender of Seller or any entity affiliated
with Seller has a right to encumber the Real Property or the Personal
Property, or any part thereof, except for such liens, security interests or
other encumbrances as will be discharged on or prior to the Closing Date.
(q) Brokerage Agreements. There does not currently exist any exclusive
or continuing leasing or brokerage agreements as to any space in the Real
Property.
(r) Insurance. Seller has not received from any insurance company
which carries insurance on the Subject Property, or any board of fire
underwriters or similar organization, any notice of default or any notice
threatening to terminate any of the insurance policies Seller maintains on
the Subject Premises. Seller has not received any notice from any insurance
company or inspection or rating bureau setting forth any requirements as a
condition to the continuation of any insurance coverage on or with respect
to the Subject Property or the
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continuation thereof at premium rates existing at present, which has not
been remedied or satisfied.
(s) No Untrue Statements. No representation and warranty made by
Seller in this Agreement contains any untrue statement of a material fact
or fails to state a material fact necessary in order to make the statements
contained herein not misleading.
6. Representations and Warranties by Purchaser. Purchaser hereby represents
and warrants to Seller as follows: (a) Purchaser is a corporation duly organized
and validly existing and in good standing under the laws of the State of
Minnesota; (b) Purchaser has the requisite power and authority to enter into and
perform its obligations under this Agreement and under each of Purchaser's
Closing Documents (as such term is defined in Section 9(c) hereof); (c) this
Agreement and each of Purchaser's Closing Documents have been duly authorized by
all necessary action on the part of Purchaser and have been or will be duly
executed and delivered by Purchaser; (d) Purchaser's execution, delivery and
performance of this Agreement and each of Purchaser's Closing Documents will not
conflict with or result in a violation of Purchaser's organizational documents,
or any judgment, order, or decree of any court or arbiter to which Purchaser is
a party; and (e) this Agreement and each of Purchaser's Closing Documents are
valid and binding obligations of Purchaser, and are enforceable against
Purchaser in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, creditors' rights and other similar laws.
7. Other Matters Related to Representations and Warranties of Seller and
Purchaser. The respective representations and warranties of Seller and Purchaser
contained in this Agreement shall survive Closing; provided, however, that any
cause of action that either party may have against the other party by reason of
a breach or default of any representations and warranties set forth herein shall
automatically expire on the date which is two (2) years after the Closing Date
("Warranty Expiration Date"), except that the same shall not expire as to any
such breach or default as to which Purchaser has instituted litigation against
Seller prior to the Warranty Expiration Date.
8. Closing.
(a) Closing Date. The closing of the purchase and sale contemplated by
this Agreement ("Closing") shall occur on or before May 1, 2000, or on such
earlier date as Seller and Purchaser may mutually agree ("Closing Date"),
at the office of the Title Company or at such other location as Seller and
Purchaser may mutually agree.
(b) Purchaser's Closing Conditions Precedent. Purchaser's obligation
to consummate the transaction contemplated by this Agreement shall be
subject to the satisfaction or waiver of each of the following conditions
("Purchaser's Closing Conditions Precedent"); provided, however, that
Purchaser shall have the unilateral right to waive any Purchaser's Closing
Conditions Precedent, in whole or in part, by written notice to Seller:
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(i) The representations and warranties of Seller set forth in
Section 5 hereof shall be true and complete.
(ii) Seller shall have performed all of the obligations required
to be performed by Seller under this Agreement, as and when required
by this Agreement.
(c) Seller's Conditions Precedent. Seller's obligation to consummate
the transaction contemplated by this Agreement shall be subject to the
satisfaction or waiver of each of the following conditions ("Seller's
Closing Conditions Precedent"); provided, however that Seller shall have
the unilateral right to waive any Seller's Closing Conditions Precedent, in
whole or in part, by written notice to Purchaser:
(i) The representations and warranties of Purchaser set forth in
Section 6 hereof shall be true and complete in all material respects.
(ii) Purchaser shall have performed all of the obligations
required to be performed by Purchaser under this Agreement, as and
when required by this Agreement, in all material respects.
9. Closing Deliveries.
(a) Seller's Closing Documents. On the Closing Date, Seller shall
execute and/or deliver to Purchaser, or cause to be executed and/or
delivered to Purchaser, the following documents (collectively, "Seller's
Closing Documents"):
(i) Deed. A Warranty Deed conveying the Real Property to
Purchaser, free and clear of all encumbrances, except the Permitted
Encumbrances in the form set forth in Exhibit F attached hereto and
made a part hereof.
(ii) Xxxx of Sale. A Xxxx of Sale transferring the Personal
Property to Purchaser free and clear of all encumbrances in the form
set forth in Exhibit G attached hereto and made a part hereof.
(iii) Original Documents. The original versions of the Permits,
the Warranties and the Plans, to the extent that the same are in
Seller's possession and have not previously been delivered to
Purchaser.
(iv) FIRPTA Affidavit. A non-foreign affidavit properly
containing such information as is required by Internal Revenue Code
Section 1445(b)(2) and the regulations promulgated pursuant thereto.
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(v) Title Documents. Such affidavits or other documents as may be
reasonably required by the Title Company in order to record the
Warranty Deed and to issue the Title Policy (as such term is defined
in Section 9(b) hereof).
(vi) A Certificate of Real Estate Value.
(vii) Partner Certificate. A certificate of a partner of Seller
dated as of the Closing Date, certifying in such detail as Purchaser
may request to the fulfillment of the conditions specified in sections
8(b)(i) and 8(b)(ii).
(b) Title Policy. At Closing, Seller shall cause the Title Company to
deliver to Purchaser the owner's title insurance policy as contemplated by
the Commitment free and clear of all encumbrances except Permitted
Encumbrances ("Title Policy").
(c) Purchaser's Closing Documents. On the Closing Date, Purchaser
shall execute and/or deliver to Seller, or cause to be executed and/or
delivered to Seller, the following documents (collectively, "Purchaser's
Closing Documents"):
(i) Purchase Price. The entire Purchase Price, plus or minus
prorations and other adjustments hereunder, if any, by wire transfer
of immediately available funds.
(ii) Title Documents. Such affidavits or other documents as may
be reasonably required by the Title Company in order to record the
Warranty Deed and to issue the Title Policy.
(iii) Officer Certificate. A certificate of an officer of
Purchaser dated as of the Closing Date, certifying in such detail as
Seller may request to the fulfillment of the conditions specified in
sections 8(c)(i) and 8(c)(ii).
(d) Purchaser's and Seller's Closing Documents. On the Closing Date,
Seller and Purchaser shall jointly execute and deliver the following:
(i) Closing Statement. A Closing Statement in form and substance
reasonably acceptable to both Purchaser and Seller, and consistent
with the terms, provisions and conditions of this Agreement.
(ii) Termination of EMPAK Lease. A termination of the EMPAK Lease
in form and substance reasonable acceptable to both Purchaser and
Seller, effective as of the Closing Date.
(iii) Assignment of Plans, Permits and Warranties and Assumption
Agreement. An Assignment of Permits, Warranties and Plans and
Assumption Agreement, pursuant to which, among other things, (A)
Seller shall assign to Purchaser
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all of Seller's right, title and interest as owner in, to and under
the Permits, Warranties and Plans, and Purchaser shall assume all
obligations of the owner under the Permits, Warranties and Plans with
respect to any event, fact or circumstance which occurs on or after
the Closing Date; (B) Seller shall defend, indemnify and hold harmless
Purchaser from and against any default in the performance by the owner
of its obligations under the Permits, Warranties and Plans with
respect to any event, fact or circumstance which occurs prior to the
Closing Date, and Purchaser shall defend, indemnify and hold harmless
Seller from and against any default in the performance by the owner of
its obligations under the Permits, Warranties and Plans with respect
to any event fact or circumstance which occurs on or after the Closing
Date; (C) Purchaser shall defend, indemnify, and hold harmless Seller
and its affiliates from any unauthorized use of the Plans, as more
particularly set forth in Section 1(e) hereof; and (D) the total
liability of either Seller or Purchaser for breach thereof shall be
limited to the purchase price of the Subject Property.
(iv) Miscellaneous. Such other documents, instruments and
affidavits as shall be reasonably necessary to consummate the
transaction contemplated by this Agreement, including, without
limitation, affidavits identifying any brokers involved as the only
persons entitled to a brokerage or similar commission in connection
with the consummation of the transaction contemplated hereby.
10. Adjustment and Prorations. Seller and Purchaser shall make all
adjustments and apportion all expenses with respect to the Subject Property,
including, without limitation, the following:
(a) Real Estate Taxes and Special Assessments. Seller shall be
responsible for payment to the collection authorities of all real estate
taxes and installments of special assessments affecting the Real Property
(collectively, "Taxes") which have been assessed and which are due and
payable as of the date immediately preceding the Closing Date ("Proration
Date"), and Purchaser shall be responsible for payment to the collecting
authorities of all Taxes which have been or will be assessed and which
become due and payable after the Proration Date. There will be no further
proration of Taxes.
(b) Title Insurance/Survey. Seller and Purchaser shall each pay fifty
percent (50%) of the costs of title examination, preparation of the title
commitment and the premium for the owners Title Policy, provided however,
that, in the event that the aggregate costs of the title examination,
preparation of the title commitment and premium for the owners' Title
Policy exceeds $3,500.00, Purchaser's obligation with respect to such costs
shall be limited to $1,750.00, and Seller shall pay for the excess of such
aggregate costs. Seller shall pay for the cost of the Survey. Purchaser
shall pay for the cost of any endorsements to the Title Policy, other than
the extended coverage endorsement, which Purchaser is able to obtain from
the Title Company. Purchaser shall also pay for the cost of any lender's
title insurance policy.
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(c) Closing Fee. Seller and Purchaser will each pay one-half of any
reasonable and customary closing fee charged by the Title Company.
(d) Deed or Transfer Tax. Seller shall pay all applicable deed, stamp
or transfer taxes imposed by the state, county, municipality or other local
authority in which the Land is located.
(e) Rents and Similar Items. The current and prepaid rental payments
under the EMPAK Lease shall be prorated as of the Proration Date. Any
unapplied security deposits in the possession of Seller and any interest
accrued thereon which is required to be paid to EMPAK shall be credited to
Purchaser at Closing.
(f) Recording Costs. Seller shall pay the cost of recording any
documents necessary to place record title in the condition required by this
Agreement. Purchaser shall pay the cost of recording the Warranty Deed and
all other documents.
(g) Attorneys' Fees. Each of the parties shall pay its own attorneys'
fees, except that a party defaulting under this Agreement or any closing
document will pay the reasonable attorneys' fees and court costs incurred
by the nondefaulting party to enforce successfully its rights regarding
such default.
(h) Mortgage Tax. Purchaser shall pay any mortgage tax on the
mortgage, if any, securing its financing.
(i) Other Costs. All other costs shall be allocated in accordance with
the customs prevailing in similar transactions in the Minneapolis-St. Xxxx
metropolitan area.
Except as otherwise expressly provided in this Agreement, all prorations
provided for herein shall be final.
11. Default.
(a) If Purchaser defaults in its obligation to consummate this
Agreement, Seller shall be entitled to either (i) terminate this Agreement,
or (ii) to enforce specific performance of the terms, provisions and
conditions of this Agreement.
(b) If Seller defaults in its obligation to consummate this Agreement,
then (i) Purchaser may recover from Seller any and all damages suffered by
Purchaser as a result of such default, including, without limitation,
reasonable attorneys' fees and costs; and (ii) Purchaser shall further be
entitled either to terminate this Agreement, or to enforce specific
performance of the terms, provisions and conditions of this Agreement.
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(c) The right of either party to enforce specific performance of the
terms, provisions and conditions of this Agreement shall terminate six (6)
months after the date of the alleged default.
12. Damage. If, prior to the Closing Date, all or any material portion of
the Improvements are substantially damaged by fire or other casualty, at
Purchaser's option (to be exercised by Purchaser's written notice to Seller
given within five (5) business days after the date of substantial damage), this
Agreement shall terminate. In the event of any such termination of this
Agreement, neither party will have any further obligations under this Agreement.
If Purchaser fails to elect to terminate (in the manner provided in this Section
12) despite such damage, or if the Improvements are damaged but not
substantially, Seller shall promptly commence to repair such damage and to
return the Improvements to substantially their condition prior to such damage,
or Purchaser may elect to undertake such repairs in which case Seller shall
assign to Purchaser all insurance benefits and proceeds related to such damage.
If such damage shall not be completely repaired prior to the Closing Date, but
Seller is diligently proceeding to repair, then Seller shall complete the repair
after the Closing Date and shall be entitled to receive the proceeds of all
insurance related to such damage; provided, however, that Purchaser shall have
the right to delay the Closing Date until repair is completed.
13. Condemnation. If, prior to the Closing Date, eminent domain proceedings
are commenced against all or any substantial part of the Subject Property,
Seller shall immediately give notice to Purchaser of such fact and, at
Purchaser's option (to be exercised by Purchaser's written notice to Seller
given within 30 days after Seller's initial notice to Purchaser), this Agreement
shall terminate. In the event of any such termination of this Agreement, neither
party will have any further obligations under this Agreement. If Purchaser fails
to elect to terminate (in the manner provided in this Section 13), then there
shall be no reduction in the Purchase Price, and Seller shall assign to
Purchaser at the Closing Date all of Seller's right, title and interest in and
to any award made or to be made in the condemnation proceedings. Prior to the
Closing Date, Seller shall not designate counsel, appear in, or otherwise act
with respect to the condemnation proceedings without Purchaser's prior written
consent, which consent shall not be unreasonably withheld or delayed; provided,
however, that if any action is necessary with respect to such proceeding to
avoid any forfeiture or material prejudice, Seller shall be entitled to take
such action as and to the extent it reasonably deems necessary, without
obtaining Purchaser's prior written consent. For purposes of this Section, the
words "substantial part" shall mean the fair market value of the portion of the
Subject Property to be so taken exceeds One Hundred Thousand and 00/100ths
Dollars ($100,000.00) or if the portion of the Subject Property to be so taken
renders the Subject Property, in Purchaser's sole opinion, unsuitable for
Purchaser's intended use of the Subject Property.
14. Brokers' Commissions. Seller hereby represents and warrants to
Purchaser that in connection with the transaction contemplated hereby, no third
party broker or finder has been engaged or consulted by Seller or is entitled to
compensation or commission in connection herewith. Seller shall defend,
indemnify and hold harmless Purchaser from and against any and all claims of
brokers, finders or any like third party claiming any right to commission or
compensation by or through any acts of Seller in connection herewith. Purchaser
hereby represent and warrants to Seller that in connection with
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the transaction contemplate hereby, no third party broker or finder has been
engaged or consulted by Purchaser or is entitled to compensation or commission
in connection herewith. Purchaser shall defend, indemnify and hold harmless
Seller from and against any and all claims of brokers, finders or any like party
claiming any right to commission or compensation by or through any acts of
Purchaser in connection herewith. The indemnity obligations hereunder shall
include all damages, losses, risks, liabilities, and expenses (including,
without limitation, reasonable attorneys' fees and costs) arising from and
related to matters being indemnified hereunder. No other broker, finder or like
party shall be entitled to rely (as a third party beneficiary or otherwise) on
the provisions herein in claiming any right to commission or compensation or
otherwise.
15. Like-Kind Exchange. Purchaser or Seller may desire to exchange other
property of like kind and qualifying use within the meaning of Internal Revenue
Code Section 1031 and the regulations promulgated pursuant thereunder, for the
Subject Property. Purchaser and Seller therefore expressly reserve the right to
assign its rights, but not its obligations, hereunder to a Qualified
Intermediary, as provided in Treasury Regulations Section 1.1031 (k)-(1)(g)(4),
on or before the Closing Date. If so requested, either party shall execute such
additional documents and shall take such additional actions as may be necessary
or appropriate to facilitate any such like-kind exchange, and otherwise to
cooperate in a reasonable manner in connection therewith; provided, however,
that neither party shall be obligated to incur any cost, expense or liability in
connection therewith or as a result thereof.
16. Notices. Any notice or other communication in connection with this
Agreement shall be in writing and shall be sent by United States certified mail,
return receipt requested, postage prepaid, by nationally recognized overnight
courier guaranteeing next day delivery, by facsimile, or by personal delivery,
in each case properly addressed as follows:
If to Seller: Fleninge Partnership
000 Xxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attn.: Xxxx Xxxxxxxx
Facsimile No.:000-000-0000
With a copy to: Xxxxxxx X. Xxxxx
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No.:000-000-0000
If to Purchaser: Entegris, Inc.
0000 Xxxxx Xxxx.
Xxxxxx, XX 00000
Attn.: Xxx Xxxxxxxx, Xx. Vice President - Operations
Facsimile No.: 000-000-0000
12
With a copy to: Xxxxxxx, Xxxxxxx & Xxxxxxxxxxx, P.A.
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attn.: Xxx X. Xxxxxxx
Facsimile No.: 000-000-0000
All notices shall be deemed given three (3) business days following deposit in
the United States mail with respect to certified mail, one (1) business day
following deposit if delivered to an overnight courier guaranteeing next day
delivery, and on the same day if sent by personal delivery, facsimile (with
proof of delivery or transmission). Attorneys for each party shall be authorized
to give notices for each such party. Any party may change its address for the
service of notice by giving written notice of such change to the other party, in
any manner above specified.
17. Captions. The section headings or captions appearing in this Agreement
are for convenience only, are not a part of this Agreement, and are not to be
considered in interpreting this Agreement.
18. Entire Agreement; Modification. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter herein
contained. All prior negotiations, discussions, writings and agreements between
the parties with respect to the subject matter herein contained are superseded
and of no further force and effect. No covenant, term or condition of this
Agreement shall be deemed to have been waived by either party, unless such
waiver is in writing signed by the party charged with such waiver.
19. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
20. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
21. Severability. The unenforceability or invalidity of any provisions
hereof shall not render any other provision herein contained unenforceable or
invalid.
22. Time of Essence. Time is of the essence of this Agreement.
23. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
24 Exhibits. The following exhibits are attached hereto and made a part
hereof, with the same force and effect as if specifically set forth herein:
Exhibit A -- Legal description of Land
13
Exhibit B -- Description of Personal Property
Exhibit C -- Schedule of Permits
Exhibit D -- Schedule of Warranties
Exhibit E -- Permitted Encumbrances
Exhibit F -- Deed
Exhibit G -- Xxxx of Sale
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written:
SELLER: PURCHASER:
FLENINGE PARTNERSHIP ENTEGRIS, INC.
By: /s/ Xxxx Xxxxxxxx By: /s/ Xxxx Villas
------------------------------- -----------------------------------
Lars Xxxxxxxx Xxxx Villas
Its General Partner Its Chief Financial Officer
14
EXHIBIT A
Legal Description of Land
Lot Eight (8) and Nine (9), Block Five (5), Chanhassen Lakes Business Park
EXHIBIT B
Description of Personal Property
EXHIBIT C
Schedule of Permits
EXHIBIT D
Schedule of Warranties
EXHIBIT E
Permitted Encumbrances
1. Taxes and assessments which are a lien, but which are not yet billed, or
are billed all but are not yet delinquent, and any assessments not shown on
the public record as of the date of closing;
2. Assessment Agreement dated May 3, 1982, filed August 26, 1982 as Document
No. 35566, Office of the Registrar of Titles, Xxxxxx County, Minnesota.
3. Declaration of Covenants and Restrictions dated August 13, 1979, filed
August 21, 1979 in the Office of the Xxxxxx County Recorder in Book 41 of
Miscellaneous at pages 254 through 268 as Document No. 43770.
4. Survey of Xxxxxx & Xxxx, Inc. dated April 11, 1991 discloses the
encroachment of an electric transformer over and upon the Northeasterly lot
lines of the Real Property.
5. Such other covenants, conditions, restrictions, easements or other title
matters and exceptions as may be consented to by Purchaser in a separate
writing.
EXHIBIT F
AFTER RECORDING,
PLEASE RETURN TO:
Xxxxxxx, Xxxxxxx & Xxxxxxxxxxx, P.A.
Attn.: Xxxxxxx X. Xxxx
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
WARRANTY DEED
THIS DEED is made and entered into on ________________, 2000, by and
between Fleninge Partnership, a Minnesota general partnership, whose address is
000 Xxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000 ("Grantor") and Entegris, Inc., a
Minnesota corporation, whose address is 0000 Xxxxx Xxxx., Xxxxxx, XX 00000
("Grantee").
WITNESSETH:
In consideration of Two Million Five Hundred Thirty Thousand and No/100
Dollars (US) ($2,530,000.00) and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Grantor does hereby
GRANT, BARGAIN, SELL and CONVEY, with Warranty, unto Grantee, its successors and
assigns, in fee simple, the parcel of land located in the City of Chanhassen,
County of Xxxxxx, State of Minnesota, described on Exhibit A attached hereto.
TOGETHER with all buildings, fixtures and other improvements located in or
on such parcel of land; and
TOGETHER with all easements, right-of-way, appurtenances, licenses and
privileges belonging or appurtenant to such land; and
TOGETHER with all mineral, gas, oil and water rights, sewer rights, other
utility rights, and development rights now or hereafter allocated or allocable
to such land; and
TOGETHER with all right, title and interest of Grantor in and to any land
lying in the bed of any street, road, avenue or alley, open or closed, adjacent
to such land, to the center line thereof.
TO HAVE AND TO HOLD all of the aforesaid property (the "Property") unto the
use and benefit of Grantee, its successors and assigns, in fee simple forever,
This conveyance is expressly made subject to easements, covenants,
conditions and restrictions of record insofar as they lawfully affect the
Property.
Grantor covenants that it has the right to convey the Property to Grantee
and that Grantor will execute such further assurances of the Property as may be
requisite.
IN WITNESS WHEREOF, Grantor has caused its duly authorized officer to
execute and deliver this Deed as of the date first above written.
GRANTOR:
FLENINGE PARTNERSHIP,
a Minnesota general partnership
By:
--------------------------------------
Name: Xxxx Xxxxxxxx
Its: General Partner
STATE OF MINNESOTA
COUNTY OF
-----------------------
I, the undersigned, a Notary Public in and for the jurisdiction aforesaid,
do hereby certify that Xxxx Xxxxxxxx who is a general partner of Fleninge
Partnership, a Minnesota general partnership, is signed to the foregoing and
annexed instrument, did personally appear before me this day and acknowledged
the same to be the act and deed of said corporation.
GIVEN under my hand and seal this _______ day of _______________, 2000.
-----------------------------------------
NOTARY PUBLIC
My Commissions Expires:__________________
EXHIBIT G
Xxxx of Sale
THIS XXXX OF SALE ("Xxxx of Sale") is executed on this _____ day of
_______________, 2000, by Fleninge Partnership, a Minnesota general partnership,
having an office at 000 Xxxx Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx 00000 ("Seller"),
in favor of Entegris, Inc., a Minnesota corporation having an office at whose
address is 0000 Xxxxx Xxxx., Xxxxxx, XX 00000 ("Purchaser").
1. Reference to Purchase Agreement. Reference is made to a Real Estate
Purchase and Sale Agreement dated _____________, 2000, between Seller and
Purchaser, pursuant to which Seller has agreed to sell to Purchaser, and
Purchaser has agreed to purchase from Seller, the improved real property and
other assets described therein (the "Purchase Agreement"). Capitalized terms
used herein and not otherwise defined herein shall have the meaning set forth in
the Purchase Agreement.
2. Sale. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property to Purchaser. Seller covenants and
agrees to warrant and forever defend title to the Personal Property unto
Purchaser against all and every person or persons, Except as set forth in the
immediately preceding sentence, Seller makes no warranties or representations as
to the Personal Property.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale the day and year
first above written.
SELLER:
FLENINGE PARTNERSHIP,
a Minnesota general partnership
By:
-------------------------------------
-------------------------------------
Its General Partner
STATE OF MINNESOTA
COUNTY OF ________________________
I, the undersigned, a Notary Public in and for the jurisdiction aforesaid,
do hereby certify that Xxxx Xxxxxxxx who is a general partner of Fleninge
Partnership, a Minnesota general partnership, is signed to the foregoing and
annexed instrument, did personally appear before me this day and acknowledged
the same to be the act and deed of said corporation.
GIVEN under my hand and seal this _______ day of _______________, 2000.
----------------------------------------
NOTARY PUBLIC
My Commissions Expires:__________________
