COMMERCIAL OFFER TO PURCHASE
Milwaukee, Wisconsin, April 11, 1997
IF ACCEPTED, THIS OFFER CAN CREATE A LEGALLY ENFORCEABLE CONTRACT, BOTH
PARTIES SHOULD READ THIS DOCUMENT CAREFULLY AND UNDERSTAND IT BEFORE
SIGNING.
The undersigned, Midwest Express Airlines, Inc. or assigns (the
"Buyer"), hereby offers to purchase the building, all improvements, all
alterations (as defined in Paragraph 10 of the Lease between Buyer and
Seller) and the real property located at 0000 Xxxxx Xxxxxx Xxxxxx, xx xxx
Xxxx xx Xxx Xxxxx, Xxxxxx of Milwaukee, State of Wisconsin, more
particularly described in the title commitment to be provided pursuant to
this Offer (the "Property") at the price of Six Million Two Hundred
Thousand and 00/100 Dollars ($6,200,000.00), which amount shall be paid as
follows: Xxxxxxx Money of Fifteen Thousand and 00/100 Dollars
($15,000.00) shall be paid by Buyer within five (5) days of the execution
of this Offer by Buyer and Seller, the assumption of Seller's financing
upon the Property by Xxxxx, and the balance, subject to prorations, shall
be wire transferred by Buyer to Seller at closing.
THE BUYER'S OBLIGATION TO CONCLUDE THIS TRANSACTION IS CONDITIONED UPON
THE CONSUMMATION OF THE FOLLOWING:
SEE EXHIBIT A ATTACHED.
Xxxxx agrees that unless otherwise specified, Buyer will, in good faith,
pay all costs of securing the assumption of any financing on the Property
and will perform all acts necessary to expedite the assumption of such
financing. The parties hereto covenant and agree that Seller shall use
its best efforts to work with Buyer to accomplish the assumption of
Seller's financing on the Property and to minimize any assumption fee
required to be paid by Xxxxx as a condition of such an assumption.
PERSONAL PROPERTY INCLUDED IN THE SALE: None
Seller shall, upon payment of the purchase price, convey the property
by warranty deed, free and clear of all liens and encumbrances except:
municipal and zoning ordinances, recorded easements for public utilities
serving the Property, recorded building and use restrictions and covenants
approved by Buyer in writing prior to closing, the lien of any financing
assumed by Buyer, all title matters appearing in the commitment described
below, and general taxes levied in the year of closing, provided none of
the foregoing prohibit or materially hinder Buyer's use of the Property.
Seller shall complete and execute a Wisconsin Real Estate Transfer Return,
title company forms of Gap Affidavit and a Lien and Possession Affidavit,
a Closing Statement and any other documents necessary for closing.
However, the parties hereto agree that Buyer shall be responsible for
paying the Wisconsin Real Estate Transfer Fee.
This offer is binding upon both parties only if a copy of the
accepted Offer is deposited, postage or fees prepaid, in the U.S. mail or
a commercial delivery system, addressed to Buyer at 0000 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxxx, Xxxxxxxxx 00000, Attn.: Xxxx Xxxxxxxx, or by personal
delivery of the accepted offer to Buyer on or before April 18, 1997.
Otherwise, this offer is void and all xxxxxxx money shall be promptly
returned to Buyer.
This transaction is to be closed at Buyer's or the title company's
offices on or before May 30, 1997.
Legal possession of the Property shall be delivered to Buyer on the
date of closing.
Physical possession of the Property is held by Buyer pursuant to a
lease with Seller, which lease (but not Seller's warranty obligations)
shall be terminated at closing.
Seller warrants and represents the Property is not located in a flood
plain.
Seller warrants and represents that the Property is zoned B3 Office
and Professional Building.
Seller warrants and represents to Buyer that Seller has no notice or
knowledge of any:
(a) planned or commenced public improvements which may result in
special assessments or otherwise materially affect the Property;
(b) government agency or court order requiring repair, alteration or
correction of any existing condition;
(c) underground storage tanks or any structural, mechanical, or
other defects of material significance affecting the Property,
including but not limited to inadequacy for normal use of
mechanical systems, waste disposal systems and well, unsafe well
water according to state standards, and the presence of any
dangerous or toxic materials or conditions affecting the
Property;
(d) wetland and shoreland regulations affecting the Property; or
(e) condition or defect which could give rise to an order described
in subparagraph (b) above.
EXCEPTIONS TO WARRANTIES AND REPRESENTATIONS STATED ABOVE: None
The following item shall be prorated as of the day of closing:
Xxxxx's rent. General taxes, water and sewer use charges, property taxes,
utilities and all other operating expenses of the Property shall not be
prorated, as such operating expenses are Buyer's responsibility under
Buyer's lease from Seller.
Any income through the day of closing accrues to Seller.
Special assessments, if any, for work on site actually commenced or
levied prior to date of Offer shall be paid by Xxxxx. All other special
assessments shall also be paid by Xxxxx.
Seller will provide Buyer, at Xxxxx's expense, at least ten (10) days
after acceptance of this Offer:
A commitment from Chicago Title Insurance Company to issue
title insurance in the amount of the purchase price
together with an access endorsement insuring Buyer's access
to South Xxxxxx Avenue, which commitment shall be updated
or endorsed within fifteen (15) days prior to closing
showing title to the property as of a date no more than fifteen (15) days
before such title proof is provided to Buyer to be in the condition called
for in this Offer, and further subject only to the permitted liens set
forth above and liens which will be paid out on the proceeds of the
closing. Buyer shall notify Seller of any valid objection to title or any
title matter described therein which is not permitted by this Offer in
writing within five (5) days after receipt of the initial commitment;
Buyer shall also notify Seller of any valid objection to title in writing
within five (5) days after receipt of the amended title commitment in the
amount of the purchase price. Seller shall have a reasonable time, but
not exceeding thirty (30) days, to remove the objections, and closing
shall be extended as necessary for this purpose.
If the transaction fails to close and the parties fail to agree on
the disposition of xxxxxxx money, then the xxxxxxx money shall be
disbursed according to the decision of a court of competent jurisdiction.
SEE EXHIBIT A ATTACHED.
Seller and Xxxxx agree to act in good faith and use diligence in
completing the terms of this agreement. This agreement binds and inures
to the benefit of the parties to this agreement and their respective
successors and assigns.
BUYER: MIDWEST EXPRESS AIRLINES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
Name Printed: Xxxxxxx X. Xxxxxxxx
Title: Chief Financial Officer
THIS OFFER IS HEREBY ACCEPTED, THE WARRANTIES AND REPRESENTATIONS MADE
HEREIN SURVIVE THE CLOSING OF THIS TRANSACTION. THE UNDERSIGNED HEREBY
AGREES TO SELL AND CONVEY THE ABOVE-MENTIONED PROPERTY ON THE TERMS AND
CONDITIONS SET FORTH HEREIN AND ACKNOWLEDGES RECEIPT OF A COPY OF THIS
AGREEMENT.
Dated: April __, 1997, SELLER: CHOCOLATE CHIP
LIMITED PARTNERSHIP
By:
Name Printed:
Title: General Partner
EXHIBIT A TO COMMERCIAL OFFER TO PURCHASE
1. Escrow. An xxxxxxx money escrow shall be opened by Buyer
with Chicago Title Insurance Company within five (5) days after execution
and delivery of this Contract by Xxxxx and Seller. Upon receipt of such
xxxxxxx money, Chicago Title Insurance Company shall invest and hold the
xxxxxxx money in an interest bearing account for the benefit of Buyer.
Chicago Title Insurance Company shall continue to hold such xxxxxxx money
until it is applied against the purchase price or otherwise released as
required by the terms of this Contract.
2. Contingencies. Buyer's obligation to purchase the Property
pursuant to this Contract is subject to Xxxxx's written satisfaction or
waiver of the following contingencies. Buyer's failure to satisfy or
waive the contingencies shall be deemed disapproval by Buyer, thereby
rendering this Contract null and void. If Buyer so disapproves, Xxxxx's
xxxxxxx money, and all interest earned thereon shall be returned
immediately to Buyer and Buyer and Seller shall be relieved from all
further obligations hereunder.
A. Assumption of Financing Contingency. Within thirty (30)
days after acceptance of this Offer, Buyer shall, at Xxxxx's sole expense,
procure the approval of Seller's lender to Buyer's assumption of Seller's
financing at the closing of the purchase and sale of the Property, upon
terms and conditions which are commercially reasonable and acceptable to
Buyer. In the event that Buyer is unable, within such time period, to
procure terms and conditions for the assumption of such financing which
are commercially reasonable or are acceptable to Buyer, then Buyer may
terminate this Contract by giving Seller written notice of the same and
this Contract shall be null and void.
B. Board Approval. Within twenty (20) days after acceptance
of this Offer, Buyer shall, at Xxxxx's sole expense procure the approval
of Xxxxx's board of directors to the terms and conditions of the purchase
of the Property as set forth herein. In the event that Xxxxx is unable
within such time period to procure such an approval, then Buyer may
terminate this Contract by giving Seller written notice of the same and
this Contract shall be null and void.
3. Seller's Additional Warranties. Seller warrants and
represents that: (a) Seller has no notice or knowledge that the Property
has been damaged or affected by any environmental contamination, defect,
or dangerous condition; (b) Seller has no notice or knowledge that the
Property violates any environmental laws and regulations, that except as
may otherwise be set forth in the Environmental Site Assessment Update
dated April 25, 1995 and the Geotechnical Engineering Explanation and
Analysis dated May 25, 1995; the Property has ever been used for the
production, storage or disposal of any hazardous substances, and that
there have been any actions, suits, claims, orders, notices or proceedings
threatened, pending, or outstanding against Seller or the Property, which
adversely affect the Property or in any way jeopardize Seller's ability to
perform its obligations under this Contract; (c) there is no existing or
to Seller's knowledge any pending or threatened litigation, suit, action
or proceeding before any court or administrative agency which has or may
either create a lien upon the Property which will not be cleared by Seller
at or prior to closing or otherwise adversely affect the Property; (d) to
Seller's knowledge, there are no existing, pending or threatened
condemnation proceedings affecting any portion of the Property; (e) to the
best of Seller's knowledge, there are underground tanks on the Property;
(f) under penalty of perjury, Seller is not a foreign person within the
meaning of Section 1445 of the Internal Revenue Code of 1986, as amended,
and Seller will deliver to Purchaser on or before closing the Seller's
taxpayer identification number; and (g) Seller has good right, title and
authority to convey title to the Property in the manner called for
hereunder, the individuals executing the acceptance of this Offer have
been duly authorized and empowered to so act on behalf of Seller and this
Offer is, upon execution of the acceptance set forth below by such a
partner, a valid and binding obligation of Seller, enforceable in
accordance with its terms.
4. Closing. The transfer of the Property shall be closed on
the date set forth in line 42 of the Offer or on such earlier date (the
"Closing Date") as specified by Buyer in a written notice delivered to
Seller at least five (5) working days before such Closing Date. Such
Closing Date shall be no earlier than five (5) days after the Buyer's
waiver or satisfaction of the contingencies set forth in Paragraphs 2A and
2B above.
