PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), is made and entered
into as of the 30th day of March, 1999 by and between Prairie View
Xxxx, Ltd., a Minnesota limited partnership (hereinafter called "Seller"), and
SurModics, Inc., a Minnesota corporation, or its assigns (hereinafter called
"Purchaser," whether one [1] or more).
In consideration of the covenants, conditions and agreements
hereinafter set forth, and of One Dollar ($1) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, it
is hereby agreed by and between the parties hereto as follows:
1. Sale of Property. Seller agrees to sell, assign, transfer and convey
to Purchaser, and Purchaser agrees to pay the purchase price (hereinafter
defined) and to purchase, acquire and take from Seller, subject to the terms and
conditions herein contained the land located at 0000-0000 Xxxx 00xx Xxxxxx, Xxxx
Xxxxxxx, Xxxxxx of Hennepin, State of Minnesota, legally described on Exhibit A
attached hereto and hereby made a part hereof (hereinafter called "Land"),
together with all buildings and improvements located thereon, (hereinafter
collectively called "Building," whether one [1] or more), and all appurtenances,
hereditaments, privileges and easements belonging thereto, and together with all
fixtures, equipment, furnishings, appliances and personal property which are
owned by Seller including lease goodwill are located in the Building or on the
Land on the date hereof, and are used in connection with the maintenance or
operation thereof, all commonly known as the (hereinafter all collectively
called "Property").
2. Purchase Price. The purchase price to be paid by Purchaser to Seller
for the Property is Three Million One Hundred Ninety-five Thousand Dollars and
No/100 ($3,195,000.00) ("Purchase Price"), which shall be paid as follows:
A. $100,000 in xxxx, xxxxxxx money (hereinafter called "Xxxxxxx
Money"), herewith paid by Purchaser, the receipt of
which is hereby acknowledged, which sum, upon the
execution hereof by Seller, shall be delivered to
Seller; and
B. $3,095,000 by wire transfer of immediately available, good
federal funds to a bank account designated by Seller
on the Closing Date (as that term is hereinafter
defined).
3. Conditions to Performance by Purchaser. Purchaser's obligation to
perform under this Agreement is hereby made expressly contingent and conditional
upon the occurrence, fulfillment, satisfaction or performance of each of the
following conditions (hereinafter called "Purchaser's Conditions") on or before
a date thirty (30) days after the date of this Agreement (herein called
"Purchaser's Contingency Expiration Date"):
A. Title. Seller obtaining, within twenty (20) days after the
date of this Agreement, and at Seller's sole cost and expense,
a current commitment
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(hereinafter called "Title Commitment") for an ALTA Form B
Owner's Policy of Title Insurance (hereinafter called "Title
Policy"), in the amount of the Purchase Price, covering the
Land and Building, from Old Republic Title Insurance Company,
or from any other reputable, national title insurance company
licensed to do business in the State of Minnesota (hereinafter
called "Title Company"), together with a copy of each recorded
document referred to in the Title Commitment. Seller shall, as
soon as reasonably possible, provide to Purchaser a copy of
the most recent policy(ies) of title insurance covering the
Property which Seller has, if any, if Seller has not already
done so. Seller agrees to make a diligent, good faith effort
to obtain the Title Commitment and said document copies.
Purchaser acknowledges that the Title Commitment will show
that the Property is subject to (a) the standard printed
exceptions which will appear in the Title Policy; (b) real
estate taxes and special assessments which are not yet
delinquent; and (c) the Leases. Purchaser shall have ten
business (10) days after receiving the Title Commitment to
raise, by written notice to Seller, any objections to the
title to the Property which Purchaser may have. All objections
not so raised shall be deemed waived, and Purchaser agrees to
take title to the Property subject to all liens, charges,
encumbrances, restrictions, conditions, reservations,
easements and other matters described in the Title Commitment
and not so objected to or which are otherwise hereafter
approved by Purchaser (hereinafter all collectively called
"Permitted Encumbrances"). If Purchaser so raises any such
objections, Seller shall have the right, but not the
obligation, to cure the same within ten (10) business days of
its receipt of such written notice of title objections by
Purchaser; provided, however, that Seller shall not have any
obligation to take any action or to incur any cost or expense
in connection with the cure of any thereof. If Seller does
cure such objection on or before the Closing Date, Purchaser
shall purchase the Property in accordance with the provisions
hereof. If Seller fails to cure such objections within such
ten (10) business day period it shall notify Purchaser in
writing of its inability to cure such objections, and,
Purchaser may elect within five (5) business days of its
receipt of such written notice by written notice to Seller,
either (i) to purchase the Property anyway, in accordance with
the provisions hereof, and without any reduction in or
abatement of the Purchase Price, subject to the matters
objected to, and without any continuing obligation upon Seller
to cure the same, or (ii) to terminate this Agreement, in
which event all Xxxxxxx Money (and all interest earned
thereon) shall be paid to Purchaser, and this Agreement shall
be deemed to be null, void, terminated and of no further force
or effect, except as herein to the contrary expressly
provided. If Purchaser fails to so elect either said option
(i) or said option (ii), Purchaser shall be deemed to have
elected said option (i).
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B. Survey. Seller providing to Purchase within twenty (20) days
of the execution of this Agreement, and at Seller's sole cost
and expense, a current as-built plat of survey of the Land and
Building prepared and certified by a duly licensed land
surveyor acceptable to Purchaser and otherwise in form and
substance acceptable, in their sole discretion, to Purchaser,
its attorneys and the Title Company, so that the Title Company
will delete its standard, and all other, survey exceptions
from the Title Policy.
Seller agrees to cooperate with Purchaser in Purchaser's efforts to fulfill,
satisfy and/or perform Purchaser's Conditions. All of the Purchaser's Conditions
are for the benefit of Purchaser and may be waived by Purchaser at any time
prior to the termination of this Agreement. If any of the Purchaser's Conditions
has not occurred or has not been fulfilled, satisfied or performed prior to the
Purchaser's Contingency Expiration Date (or such other date as may be provided
therefor above), Purchaser may so notify Seller, in writing, on or before the
Purchaser's Contingency Expiration Date (or such other date), in which event all
Xxxxxxx Money (and all interest earned thereon) shall be paid to Purchaser, and
this Agreement shall be deemed to be null, void, terminated and of no further
force or effect, except as herein to the contrary expressly provided. If such
notice is not so given on or prior to the Purchaser's Contingency Expiration
Date (or such other date) with respect to any of the Purchaser's Conditions,
said Purchaser's Conditions shall be deemed to be waived. Purchaser agrees to
keep all information relating to the Property provided to it by Seller or
obtained by Purchaser in the course of its review and inspection provided for
herein confidential until the Closing has occurred, and to return to Seller all
copies and information relating to the Property provided to it by Seller or made
by it in the course of said review and inspection, if the Sale does not close
for any reason other than a default by Seller. Purchaser also agrees to provide
Seller with copies of all reports obtained by it from third parties with respect
to the Property, including but not limited to engineering reports, environmental
assessments, the Title Commitment, title documents and plats of survey, if the
Sale does not close for any reason other than a default by Seller. The
obligations of Purchaser under the two (2) immediately preceding sentences
hereof shall survive any termination of this Agreement.
4. Seller Warranties. Seller shall represent and warrant to Purchaser
on the Closing Date that the Leases, Service Contracts, Rent Roll and Operating
Statements delivered by it to Purchaser are, to the best of Seller's knowledge,
correct and complete, and that this Agreement and the documents listed in
Paragraph 8 hereof and signed by Seller have been duly authorized, executed and
delivered by Seller, are the valid and binding obligations of Seller and do not
violate any agreement to which Seller is a party.
When any statement, certification, representation or warranty is made
herein, or in any of the documents executed and delivered by Seller pursuant
hereto, "to the best of Seller's knowledge," said phrase shall be deemed to mean
only that, to the actual, present knowledge (rather than the implied, imputed or
constructive knowledge or notice) of officers and/or employees of Seller, who
have been actively involved in the management, operation and/or sale of the
Property, said statement, certifications, representation or warranty is not
untrue, rather than that said officers or employees of Seller have any
affirmative knowledge that the same are true, and neither Seller, nor said
officers or
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employees, shall have any duty or obligation to make any inspection, inquiry or
investigation with respect thereto. For all purposes hereof, "Seller's
knowledge" shall not include the knowledge, actual, implied, imputed or
constructive, of any other director, officer, employee, member, agent, attorney,
contractor, consultant, representative, successor or assign of Seller or of any
other person, party or entity. If Purchaser knows that any such statement,
certification, representation or warranty is untrue on the date hereof, Seller
shall have no liability, of any kind, to Purchaser for the untruth,
incorrectness or breach thereof, and the same shall be deemed to be deleted
herefrom for all purposes. If Purchaser discovers that any such statement,
certification, representation or warranty is untrue or incorrect in any material
respect between the date of this Agreement and the Closing Date, Purchaser shall
immediately notify Seller thereof in writing. Seller shall have the right, but
not the obligation, to cure any such material untruth, incorrectness or breach
on or before the Closing Date. If Seller does cure the same on or before the
Closing Date, Purchaser shall purchase the Property in accordance with the terms
hereof. If Seller fails to cure the same on or before the Closing Date,
Purchaser may elect, by written notice to Seller, either (A) to purchase the
Property anyway, in accordance with the provision hereof, and without any
reduction in or abatement of the Purchase Price, notwithstanding such untruth,
incorrectness or breach, and without any continuing obligation of Seller to cure
the same or to pay any damages to Purchaser as a result thereof, the same being
deemed to be waived by Purchaser, or (B) to terminate this Agreement, as its
sole and exclusive remedy therefor, in which event all xxxxxxx Money (and all
interest deemed thereon) shall be paid to Purchaser, and this Agreement shall be
deemed to be null, void, terminated and of no further force or effect, except as
herein to the contrary expressly provided. If Purchaser fails to so elect either
said option (A) or said option (B), Purchaser shall be deemed to have elected
said option (A). If Purchaser has no knowledge of any untruth, incorrectness or
breach thereof on the Closing Date, all representations and warranties made by
Seller herein shall survive the Closing and shall remain in full force and
effect for a period of six (6) months thereafter; provided, however, that
Purchaser shall not have, and hereby waives, any claim or cause of action
against Seller resulting from any untruth, incorrectness or breach thereof
unless Purchaser actually commences an action thereon within six (6) months
after the Closing Date.
SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH
RESPECT (A) TO THE DESIGN, CONSTRUCTION, LOCATION, SIZE, CHARACTER, PHYSICAL
CONDITION OR STATE OF REPAIR OF THE PROPERTY OR ANY PORTION THEREOF; (B) TO THE
TOPOGRAPHY, DRAINAGE OR CONDITION OF THE SURFACE AND SUBSURFACE SOILS OF OR ON
THE LAND; (C) TO THE PRESENCE OR ABSENCE OF HAZARDOUS WASTE OR HAZARDOUS
SUBSTANCES ON OR FROM THE PROPERTY; (D) TO THE MERCHANTABILITY, HABITABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE OF THE PROPERTY; (E) TO THE PAST OR FUTURE
TAXES OR ASSESSMENTS THEREON, INCOME THEREFROM OR EXPENSES THEREOF; OR (F) TO
THE COMPLIANCE THEREOF WITH ANY APPLICABLE GOVERNMENTAL REQUIREMENT, OR ANY
OTHER REPRESENTATION OR WARRANTY NOT HEREIN EXPRESSLY SET FORTH OR PROVIDED FOR,
AND ALL SUCH REPRESENTATIONS AND WARRANTIES ARE HEREBY DISCLAIMED BY SELLER. BY
EXECUTION HEREOF, PURCHASER REPRESENTS AND WARRANTS TO SELLER THAT PURCHASER IS
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AN EXPERIENCED, SOPHISTICATED PURCHASER OF COMMERCIAL REAL ESTATE, WITH
KNOWLEDGE AND EXPERIENCE SUFFICIENT TO ENABLE IT TO EVALUATE THE MERITS AND
RISKS OF THE SALE, AND THAT IT IS REPRESENTED BY KNOWLEDGEABLE AND EXPERIENCED
LEGAL COUNSEL OF ITS OWN CHOOSING, AND AGREES THAT NEITHER SELLER, NOR ITS
AGENTS OR REPRESENTATIVES, HAS MADE, AND THAT PURCHASER HAS NOT RELIED UPON, ANY
SUCH REPRESENTATION OR WARRANTY, OR ANY OTHER REPRESENTATION OR WARRANTY OF ANY
KIND WHICH IS NOT HEREIN EXPRESSLY SET FORTH OR PROVIDED FOR, IN CONNECTION WITH
THE SALE OF THE PROPERTY OR PURCHASER'S ACTUAL PURCHASE THEREOF PURSUANT HERETO,
PURCHASER HAVING ELECTED TO RELY INSTEAD ENTIRELY UPON ITS INSPECTION OF THE
PROPERTY PURSUANT TO SUBPARAGRAPHS 3(A) AND 3(B) HEREOF.
Purchaser acknowledges that Seller has not made any inspection,
investigation or inquiry with respect to the Property, and, unless Purchaser has
terminated this Purchase Agreement in accordance with the express provisions
hereof, Purchaser agrees to take title to the Property "AS IS, WHERE IS" in the
condition it is in on the Closing Date, subject only to the obligations of
Seller under Paragraphs 5 and 6 hereof.
5. Operation Prior to Closing. Between the date of this Agreement and
the Closing Date, Seller shall (a) manage and operate the Property in
Substantially the same manner as Seller has been managing and operating the same
on the date hereof, (b) keep and perform all of the covenants which it is
obligated to keep and perform under the Leases; and (c) maintain, or cause the
tenants to maintain, the Property in at least as good physical condition as it
is in on the date of this Agreement, ordinary wear and tear of normal use and
damage from casualty or condemnation excepted. Seller may not sign leases
covering space in the Property which is vacant on the date hereof, or which
become vacant prior to the Closing Date (hereinafter called "New Leases")
without the prior written consent of Purchaser. Seller may also permit or
consent to subleases of space in the Property (hereinafter called "Subleases")
and may enter into contracts or agreements relating to operation or maintenance
of the Property (hereinafter called "Operating Contracts"), so long as said
Operating Contracts may be terminated by the owner of the Property upon not more
than thirty (30) days' prior written notice to the contractor. Seller shall not
enter into any other Operating Contract without the prior written approval of
Purchaser. If Seller receives written notice from any governmental body, agency
or instrumentality between the date of this Agreement and the Closing Date that
the Property is in violation of any applicable Governmental Requirement, Seller
shall immediately provide a copy thereof to Purchaser. Seller shall have the
right, but not the obligation, to cure any such violation on or before the
Closing Date. If Seller fails to cure any such violation on or before the
Closing Date, Purchaser may elect, by written notice to Seller, either (A) to
purchase the Property anyway, in accordance with the provisions hereof, and
without any reduction in or abatement of the Purchase Price, subject to said
violation, and without any continuing obligation upon Seller to cure such
violation, or (B) to terminate this Agreement, in which event all Xxxxxxx Money
(and all interest earned thereon) shall be paid to Purchaser, and this Agreement
shall be deemed to be null, void, terminated and of no further force or effect,
except as herein to the contrary expressly provided. If
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Purchaser does not so elect either said option (A) or said option (B), Purchaser
shall be deemed to have elected said option (A).
6. Risk of Loss. The risk of loss or damage to the Property from fire,
the elements or other casualty, or from condemnation, prior to Closing, shall be
upon Seller; provided, however, that if any such loss or damage to the Property
does occur prior to Closing, Seller shall promptly give Purchaser written notice
thereof, and Seller may elect to repair the same, at Seller's sole cost and
expense, by giving written notice of said election to Purchaser within ten (10)
days after the occurrence of any such loss or damage, or on the Closing Date,
whichever is earlier. The Closing Date may be postponed by Seller by up to
ninety (90) days to give Seller the opportunity to complete such repair. All
insurance or condemnation proceeds resulting from any such loss or damage shall
belong to Seller. If Seller does not so elect to repair said loss or damage,
Purchaser may, within thirty (30) days after the occurrence of any such loss or
damage, or on the Closing Date, whichever is earlier, elect, by written notice
to Seller, either (a) to close the Sale, despite said unrepaired loss or damage,
in which event the Sale shall close without any reduction in or abatement of the
Purchase Price, and without any obligation upon Seller to repair the same, and
Seller shall assign all insurance or condemnation proceeds resulting from said
loss or damage to Purchaser; or (b) to terminate this Agreement, in which event
all Xxxxxxx Money (and all interest earned thereon) shall be paid to Purchaser,
and this Agreement shall be deemed to be null, void, terminated and of no
further force or effect, except as herein to the contrary expressly provided. If
Purchaser fails to so elect either said option (a) or said option (b), Purchaser
shall be deemed to have elected said option (a).
7. Tenant Estoppel Certificates. At least five (5) days prior to the
Closing Date, Seller shall cause tenants of one hundred percent (100%), by area,
of the leased space in the Property (with the exception of Purchaser) under
Leases and New Leases to furnish to Purchaser a signed estoppel certificate
(hereinafter called "Estoppel Certificate"), confirming the following
information with respect to its Lease: (a) the date, time, amount of rent
payable, and renewal options (if any) available under the Lease; (b) that the
tenant is in occupancy and that the Lease is in full force and effect and has
not been modified or amended, except as expressly noted therein; (c) that all
obligations of the lessor of an inducement nature under the Lease have been
performed to the tenant's satisfaction; (d) that, to the best of the tenant's
knowledge, no defaults exist under the terms of the Lease; and (e) that the
person signing said Estoppel Certificate has full power and authority to do so
and to bind the tenant thereby, or otherwise in the form, if any, which said
tenant is required to deliver by the provisions of its Lease. Seller agrees to
make a diligent, good faith effort to obtain said Estoppel Certificates. If
Seller is unable to obtain such an Estoppel Certificate from any tenant, Seller,
at its option, may, in lieu thereof, prepare such an Estoppel Certificate for
said tenant and certify to Purchaser that, to the best of Seller's knowledge,
the same is true, correct and complete in all respects. Such an Estoppel
Certificate, so certified by Seller, shall be equivalent to such an Estoppel
Certificate signed by the tenant for all purposes hereof, unless Purchaser
thereafter receives such an Estoppel Certificate from the tenant, in which event
said latter Estoppel Certificate shall supersede the former in all respects. If
any such Estoppel Certificate is inconsistent with the Rent Roll in any material
respect, or if it indicates that Seller is in default or has not performed some
duty of an
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inducement nature under the Lease described therein, Seller shall have the
right, but not the obligation, on or before the Closing Date, to resolve said
inconsistency, to cure said default and/or to perform said obligation. If Seller
does so resolve, cure or perform the same, Purchaser shall purchase this
Property in accordance with the terms hereof. If Seller fails to so obtain or
certify such Estoppel Certificates, to resolve any such inconsistency, to cure
any such default or to perform any such obligation, on or before the Closing
Date, Purchaser may, by written notice to Seller, elect either (i) to purchase
the Property anyway, in accordance with the provisions hereof, without any
reduction or abatement of the Purchase Price, notwithstanding said failure, and
without any continuing obligation upon Seller to obtain, certify, resolve, cure
or perform the same, or (ii) to, as its sole and exclusive remedy therefor,
terminate this Agreement by written notice to Seller, in which event all Xxxxxxx
Money (and all interest earned thereon) shall be paid to Purchaser, and this
Agreement shall be deemed to be null, void, terminated and of no further force
or effect, except as herein to the contrary expressly provided. If Purchaser
fails to so elect either said option (i) or said option (ii), Purchaser shall be
deemed to have elected said option (i).
8. Closing. The Closing shall take place within forty-five (45) days of
this Agreement or on such date as shall be mutually agreed to by Seller and
Purchaser (herein called "Closing Date"), at such place in the City of
Minneapolis, State of Minnesota, metropolitan area, as Seller may reasonably
designate. The Closing Date shall not be a Saturday, a Sunday or a legal
holiday. At the Closing, and if the parties hereto are not then in default
hereunder, the parties hereto shall execute and/or deliver the following
documents, which (except for those relating to Purchaser and described in
Subparagraph 8[H] hereof) shall be prepared by Seller, subject to approval by
Purchaser in its reasonable discretion (which approval shall not be withheld if
said documents conform with the terms hereof):
A. Warranty Deed. A Warranty Deed (herein called "Deed"), subject
to Permitted Encumbrances, executed by Seller, covering the
Land and the Building (wherein Seller warrants the title
thereto only against persons, parties and entities claiming
by, through or under Seller, other than those claiming under
Permitted Encumbrances).
B. Warranty Xxxx of Sale. A Warranty Xxxx of Sale, subject to
Permitted Encumbrances, executed by Seller, covering all
personal property included within the Property (wherein Seller
warrants the title thereto only against persons, parties and
entities claiming by, through or under Seller, other than
those claiming under Permitted Encumbrances).
C. Assignment of Leases. An Assignment of Leases covering the
Leases and any New Leases (hereinafter collectively called
"Assigned Leases"), subject to Permitted Encumbrances,
executed by Seller and joined in by Purchaser for the purpose
of assuming and agreeing to perform all of the duties and
obligation of the lessor under the Assigned Leases for the
period after the Closing Date and of agreeing to indemnify
Seller against and to hold Seller
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harmless from any claims, causes of action, damages and
expenses, including court costs and reasonable attorneys'
fees, resulting from any failure by Purchaser to do so.
Attached to the Assignment of Leases shall be a copy of a then
current Rent Roll for the Property, which Seller shall therein
warrant and represent to Purchaser to be correct and complete,
to the best of Seller's knowledge, as of the Closing Date.
Seller shall deliver the originals or whatever copies of the
Assigned Leases it has to Purchaser, together with copies of
whatever correspondence with tenants and tenant payment
records Purchaser may then request, at the Closing.
D. Assignment of Service Contracts, Operating Contracts,
Warranties, Guaranties, Certificates, Permits, Etc. An
Assignment covering the Service Contracts and Operating
Contracts, covering all of Seller's right, title and interest
in, to and under any unexpired, assignable warranties and
guaranties relating to any portion of the Property, and
covering any assignable certificates, licenses, permits
authorizations and approvals relating to the use or operation
of the Property, executed by Seller and joined in by Purchaser
for the purpose of assuming and agreeing to perform all of the
duties and obligations of the owner thereunder for the period
after the Closing Date and of agreeing to indemnify Seller
against and to hold Seller harmless from any claims, causes of
action, damages and expenses, including court costs and
reasonable attorneys' fees, resulting from any failure by
Purchaser to do so. Seller shall deliver originals or whatever
copies it has of all items covered by said Assignment to
Purchaser at the Closing.
E. Notices to Tenants. Written notices to all tenants of the
property of the assignment of their Assigned Leases, and any
deposits made thereunder, by Seller to Purchaser, which
conform with any applicable laws of the State of and/or which
are necessary or desirable to notify said tenants of such
assignment and to relieve Seller from, and to impose upon
Purchaser, liability for any deposits made by the tenants
thereunder, together with any other documents necessary or
desirable for said purpose, all signed by both Seller and
Purchaser. Said notices shall also instruct the tenants to pay
all future rent payable under their Assigned Leases to
Purchaser.
F. Seller's Affidavit. An Affidavit, signed by Seller, stating
that all labor and materials, if any, furnished to the
Property at Seller's request within one hundred twenty (120)
days prior to the Closing Date have been paid for, or will be
paid for by Seller.
G. Transferor's Certification. A Transferor's Certification
whereby Seller certifies that it is not a foreign person,
foreign corporation, foreign partnership, foreign trust or
foreign estate (as those terms are defined in the
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United States Internal Revenue Code and the Income Tax
Regulations promulgated thereunder [hereinafter called
"Code"]) and setting forth such other information as may be
required by Section 1445(b)(2) of the Code or any amendment or
replacement thereof.
H. Evidence of Authority. Evidence of the authority of Seller and
Purchaser, respectively, to consummate the Sale and to
execute, deliver and perform this Agreement and the documents
referred to in this Paragraph 8, in form and substance
reasonably acceptable to the other party hereto and to the
Title Company, including but not limited to copies of
corporate resolutions.
I. Closing Statement. A closing Statement, signed by Purchaser
and Seller, setting forth the source and disposition of the
Purchase Price and of all other funds transferred at the
Closing.
9. Closing Expenses. Seller and Purchaser shall each pay one-half (1/2)
of any reasonable closing fee charged by the Title Company. Purchaser shall pay
the following costs and expenses of the Sale: (a) all recording fees for
recording the Deed; (b) all fees of Purchaser's attorneys' and accountants; (c)
the premium for the Title Policy; Seller shall pay (a) all fees of Sellers
attorneys' and accountants and (b) the cost of the survey and the title
commitment; (c) the deed, real estate transfer or conveyance tax, if any.
10. Prorations and Adjustments. The following items shall be prorated,
adjusted or transferred at the Closing, as follows:
A. Ad Valorem Taxes. Ad Valorem real (and, if applicable,
personal) property taxes and installments of assessments
payable on the Property for and in the year in which the
Closing Date occurs shall be prorated as of the Closing Date
on a daily basis, with Seller being responsible for the
Closing Date.
B. Rents and Other Income. Collected rents and other collected
income, including but not limited to percentage rents, tenant
reimbursements of taxes, assessments, operating expenses and
common area charges, and vending machine receipts, if any,
from the Property shall be prorated on a daily basis as of the
Closing Date, with Seller being entitled to the Closing Date.
If any rents for a period prior to the Closing Date remain
uncollected on the Closing Date, Purchaser shall make a
diligent, good faith effort to collect the same after the
Closing. If any such rents are so collected by Purchaser, said
rents shall be paid over by Purchaser to Seller. For the
purposes of determining to which periods rents collected by
Purchaser after the Closing are applicable, (a) if any tenant
designates the period to which any rent payment is applicable,
the parties shall honor that designation, and (b) any
undesignated rent payments shall be applied in the following
order: (i) to unpaid rent for
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the month in which the Closing Date occurs; (ii) to unpaid
rent for any subsequent month which is due and payable when
said payment is received; (iii) to unpaid rent for any month
prior to the month in which the Closing Date occurs; and (iv)
to prepayment of any other subsequent month's rent. Seller
hereby retains the continuing right, which shall survive the
Closing, to bring an action against any tenant for unpaid rent
attributable to the period through the Closing Date.
C. Operating Expense. Operating expenses of the Property,
including but not limited to payments on Service Contracts and
Operating Contracts, water and sewer use charges, utility
bills and fuel costs, shall be prorated on a daily basis as of
the Closing Date, with Seller being responsible for the
Closing Date.
D. Security Deposits. All security and other deposits which
Seller has received from tenants and has not been applied in
accordance with Leases, or an amount, in cash, equal thereto,
plus an amount equal to all interest required by law to be
paid thereon if refunded to tenants on the Closing Date, if
any, shall be paid by Seller to Purchaser.
E. Insurance. Purchaser agrees to provide its own casualty and
liability insurance policies covering the Property on the
Closing Date, and Seller may cancel and terminate all of its
casualty and liability insurance coverage relating to the
Property upon completion of the Closing.
F. Utility Deposits. Seller shall assign to Purchaser, and
Purchaser shall purchase from Seller, all refundable utility
deposits posted by Seller with respect to the Property, if
any.
Any emptying of vending machines, any reading of utility meters, and any other
activities needed to precisely determine the amounts of income or expenses to
which Purchaser and Seller are entitled, or for which either is obligated, at
the Closing shall be accomplished, if possible, immediately prior to the Closing
in the presence of representatives of both Seller and Purchaser. If the actual
amounts of any of the foregoing, including but not limited to tax, assessment,
operating expense and common area charge reimbursements paid by tenants, are not
known and cannot reasonably be determined on the Closing Date, the parties
hereto agree that the same shall be prorated or adjusted based upon the best
available estimates of the amounts thereof, subject to readjustment between the
parties as soon after the Closing Date as the actual amounts thereof are known
to them. The agreements set forth in the preceding sentence shall survive and
remain enforceable after the Closing and the execution and delivery of the Deed.
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11. Possession. Legal possession of the Property shall be delivered to
Purchaser by Seller on the Closing Date, subject to the rights of tenants under
Assigned Leases set forth on the Rent Roll attached to the Assignment of Leases,
and subject to Permitted Encumbrances.
12. Brokers. Seller has agreed to pay a brokerage commission to Welsh
Companies, Inc. (hereinafter called "Broker") upon, but only upon, completion of
the Closing in accordance with the terms hereof. Each of the parties hereto
represents that it has not incurred and is not paying any brokerage commission,
finder's fee or fee or commission of any kind to any third party as the result
hereof or of the Sale, other than said brokerage commission which Seller has
agreed to so pay to Broker, and each party hereto hereby agrees to indemnify the
other against, and to hold the other harmless from, any claim for any such fee
or commission resulting form the acts or agreements of the indemnifying party,
including but not limited to reasonable attorneys' fees and court costs incurred
in connection with defending against any such claim. The agreements set forth in
the preceding sentence shall survive and remain enforceable after the Closing
and the execution and delivery of the Deed or any other termination of this
Agreement.
13. Default. In the event Seller defaults in the performance of any of
its obligations set forth in this Agreement, the Xxxxxxx Money (and all interest
earned thereon) shall be paid to Purchaser. Purchaser may exercise Purchaser's
remedies at law for the recovery of Purchaser's actual damages from Seller's
breach, but Purchaser waives any right to specific performance and to
consequential, punitive, speculative and other damages. Purchaser and Seller
agree that for purposes of this Agreement, "actual damages" are Purchaser's
expenses in investigation of the Property only. Actual damages shall not include
Purchaser's lost opportunities or projected income from ownership of the
Property. In the event Purchaser defaults in the performance of any of its
obligations set forth in this Agreement, then the Xxxxxxx Money (and all
interest earned thereon) shall be paid to Seller as liquidated damages, and as
Seller's sole remedy for said default and not as a penalty, the parties hereto
hereby expressly agreeing that actual damages would be difficult or impossible
to measure.
14. Notices. Any notice or other communication required or permitted to
be given under this Agreement shall be in writing, shall be irrevocable, and
shall be deemed sufficiently given (a) when delivered to an overnight air
express company marked for next business day delivery, or (b) when actually
received by the addressee if deposited in the United States Mail, certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to Seller: Xxxx X. Xxxxxxxx, Esq.
Investment Counsel
State Farm Life Insurance Company
Corporate Law-Investments Department E-10
Xxx Xxxxx Xxxx Xxxxx
Xxxxxxxxxxx, XX 00000
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with copies to: Xxxxxxx X. Xxxxxx
Xxxxxx, Xxxxxx & Ramette, P.A.
000 Xxxx Xxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
If to Purchaser: Xxxxxxx X. Xxxxxxxx
SurModics, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxx Xxxxxxx, XX 00000
with copies to: Xxxxx X. Xxxxx, Esq.
Xxxxxxxxxx & Xxxxx, P.A.
1100 International Centre
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
or to either such party at such other address in the United States of America as
said party shall designate by notice given as herein provided at least ten (10)
days prior to the effective date of said change of address.
15. Assignment. Neither Seller nor Purchaser may assign its rights or
obligations hereunder without the prior written consent of the other.
16. Indemnity. As a condition to liability for indemnity under this
Agreement, the party claiming indemnification (hereinafter called "Indemnitee")
shall notify the party from whom indemnification is claimed (hereinafter called
"Indemnitor"), in writing, of any claim covered by any agreement to indemnify
set forth herein (hereinafter called "Claim") within a reasonable time after the
assertion thereof by a third party against the Indemnitee. In the event of such
notice by the Indemnitee to the Indemnitor of a third party Claim, the
Indemnitor shall have ten (10) days after receipt thereof in which to undertake
the defense of the Claim on behalf of itself and the Indemnitee. If the
Indemnitor so undertakes to defend said Claim on behalf of itself and the
Indemnitee, it shall retain and pay counsel to conduct such defense. Such
counsel shall be subject to the approval of the Indemnitee, which approval shall
not be unreasonably withheld or delayed. The Indemnitee may employ its own
counsel to work with the Indemnitor's counsel in connection with the defense of
said Claim, but the Indemnitee shall pay all fees and disbursements of said
counsel. The Indemnitor may settle the Claim, without the consent of the
Indemnitee, so long as the Indemnitor is solely liable for the payment and/or
performance of any settlement. If the Indemnitee would have any liability for
the payment and/or performance of any settlement, its written consent thereto
must be obtained by the Indemnitor, in order for said settlement to be binding
upon the Indemnitee. If the Indemnitor refuses or fails to so undertake to
defend the Claim, the Indemnitee may defend the same on its own behalf, may
retain and pay counsel to conduct such defense and may settle the Claim, without
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the consent of the Indemnitor. The Indemnitor shall then reimburse the
Indemnitee for all reasonable costs, including court costs and reasonable
attorneys' fees, incurred by the Indemnitee in connection with said defense
and/or any such settlement; for all sums paid by the Indemnitee in accordance
with any such settlement; and for all sums paid pursuant to any judgment entered
against the Indemnitee in connection therewith. The provisions of this Paragraph
shall survive and remain enforceable after the Closing and the execution and
delivery of the Deed or any other termination of this Agreement.
17. Parties. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, legal representatives, successors and
permitted assigns. As used herein, words in the singular include the plural, and
the masculine, feminine and neuter genders include all genders, as appropriate.
18. Limitation of Liability. No director, officer, partner, employee,
member, agent, attorney, contractor or representative of Seller shall have any
personal liability whatsoever under, in connection with, arising out of or in
any way related to this Agreement, and Purchaser hereby, for itself and its
heirs, executors, administrators, personal representatives, legal
representatives, successors and assigns, hereby waives any claim or cause of
action against any of said persons or entities and hereby agrees to look solely
to Seller for satisfaction of its obligations hereunder.
19. Survival. The terms, provisions, covenants and agreements hereof
shall be deemed to be merged into the documents executed and delivered in
accordance with the terms of Paragraph 8 hereof (hereinafter called "Closing
Documents") and shall not be deemed to survive the Closing and the execution and
delivery of the Closing Documents, unless to the contrary herein or in the
Closing Documents expressly provided. Delivery By Seller and acceptance by
Purchaser of the Closing Documents shall be deemed full performance hereof by
Seller, except to the extent expressly provided herein or in the Closing
Documents.
20. Entire Agreement. This Agreement contains the entire agreement of
the parties with respect to the Property and supersedes all prior negotiations,
agreements, understanding, representations, warranties and/or letters of intent
between the parties with respect to the Property, all of which are fully merged
herein. There are no agreements, understandings, representations, warranties,
inducements or other provisions by or between the parties relating to the
Property, oral or written, apart from those expressed in writing herein. All
waivers, changes, modifications, additions or deletions hereof, herein, hereto
or herefrom must be in writing and must be signed by both parties.
21. Captions. The captions of the Paragraphs hereof are for
identification purposes only and shall not be used in interpreting the same.
22. Severability. If any provisions of this Agreement is found to be
invalid, illegal or unenforceable for any reason or under any circumstance, said
provision shall be deemed to be severed herefrom, said finding shall have no
effect upon the remainder of this Agreement or upon
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said provision in any other circumstances, and this Agreement shall be
construed, interpreted and performed as if said invalid, illegal or
unenforceable provision were not included herein.
23. Governing Law. This Agreement shall be construed and interpreted in
accordance with, and shall be governed by, the laws of the State of Minnesota.
24. Counterparts. This Agreement shall become a binding contract when
signed by both Purchaser and Seller. This Agreement shall be signed in at least
two (2) counterparts, with at least two (2) signed counterparts being retained
by each party hereto.
25. Construction. The provisions of this Agreement have been carefully
and fully negotiated between and parties hereto, each of which is a
sophisticated commercial real estate investor and which have relatively equal
bargaining power, and each of which has been represented by experienced legal
counsel of its own choosing in connection herewith. Thus, the terms hereof shall
be construed in accordance with their fair meaning and intent and shall not be
construed against either party merely because said party or its counsel
initially drafted the same.
26. Recording. This Agreement shall not be recorded in any public
records relating to the Property. If this Agreement is so recorded in violation
of the provisions of the preceding sentence hereof, the Xxxxxxx Money (and all
interest earned thereon) shall be paid to the party which is not responsible for
said recording, and this Agreement shall be deemed to be null, void, terminated
and of no further force or effect, except as herein to the contrary expressly
provided.
27. Time of Essence. Time is of the essence with respect to the
Purchaser's Contingency Expiration Date, the Closing Date, and all other dates
set forth or provided for herein.
28. Additional Conditions. As a further inducement to Purchaser, Seller
agrees to the following additional conditions and agreements:
A. Purchase and Seller acknowledge that the roof to the
Building is in complete disrepair and in need of replacement, and that
Seller makes no representations or warranties in any regard with respect
to the condition of said roof.
B. At Purchaser's sole option, and subject to approval by
Seller's legal counsel, Purchaser may purchase Prairie View Xxxx, Ltd.
pursuant to the terms and conditions of this Purchase and Sale
Agreement.
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SELLER:
PRAIRIE VIEW XXXX, LTD., a Minnesota Limited
partnership by AmberJack, Ltd., an Arizona
corporation as general partner
By: /s/ Xxxxx X. Xxxxxx
Its: Assistant Secretary
Seller
and
By: /s/ Xxxx X. Xxxxxxxx
Its: Assistant Secretary
Seller
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PURCHASER:
SURMODICS, INC.
By: /s/ Xxxx X. Xxxxxx
Its: Chairman and Chief Executive Officer
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