COBBLESTONE COURT SHOPPING CENTER
SALE AGREEMENT
THIS SALE AGREEMENT is made and entered into as of 28th day of January,
2000, by and between Xxxxxx Real Property Investors-Four, L.P. a Missouri
Limited Partnership ("Seller") and Xxxxxxxxxx Properties, Inc., a Minnesota
corporation ("Buyer"), upon the following terms and conditions:
1. PROPERTY. Seller agrees to sell and Buyer agrees to purchase
certain land located in the City/County of Burnsville, State of Minnesota,
commonly known as Cobblestone Court Shopping Center, and more particularly
described in Exhibit AA" attached hereto, and all rights and appurtenances
relating thereto (the "Property"). The sale of the Property shall include all
existing improvements thereon, all personal property owned by Seller and used
in the maintenance and operation of the Property, as well as a written
assignment of all of Seller's interest in all of the leases and all service
and maintenance contracts, equipment leases and other contracts related to the
Property (the "Contract"), all of which Seller warrants to be free of all liens
and encumbrances, except for the following encumbrances: those shown on the
Commitment for Title Insurance, issued by Commonwealth Land Title Insurance
Company (the "Title Company"), with an effective date of August 12, 1999 at
8:00 a.m. (File No. 101894). The Contracts shall be assigned and assumed at the
Closing pursuant to an assignment and assumption agreement reasonably acceptable
to Seller and Buyer, which shall provide that Seller is responsible for all
obligations under the Contracts arising prior to the Closing and Buyer is
responsible for all obligations under the Contracts arising on or after the
Closing.
2. PURCHASE PRICE. The total purchase price payable by Buyer to Seller
for the Property shall be FIVE MILLION ONE HUNDRED THOUSAND AND NO/100THS
DOLLARS ($5,100,000.00) ("Purchase Price"), payable as follows:
Xxxxxxx Deposit deliver to the Title Company
with this Agreement, to be held in an interest-
bearing trust account: $ 100,000.00
Additional Xxxxxxx Deposit, to be delivered to
the Title Company and held in the same interest-
bearing trust account as the original Xxxxxxx
Deposit, if Buyer elects to postpone the
Closing pursuant to Section 8 below: $ 100,000.00
Cash to be paid at Closing: The balance of the
Purchase Price
Except as may be provided herein, payment of the Purchase Price shall
be made by a wire transfer of immediately available federal funds.
3. XXXXXXX DEPOSIT. The Xxxxxxx Deposit shall be held in an
interest-bearing trust account with the Title Company under the Title Company's
standard xxxxxxx money escrow agreement. If the sale is closed, the Xxxxxxx
Deposit shall be credited against the Purchase Price. If the sale is not closed
by the date fixed therefor, the Xxxxxxx Deposit shall be forfeited or refunded
pursuant to the terms of this Agreement
4. DUE DILIGENCE PERIOD. Buyer shall have fifteen (15) days after the
date hereof (the "Due Diligence Period") to investigate and test the Property
and examine the Contracts and such records and documents as Seller has made
available to Buyer prior to the date hereof or which Seller has in its
possession and Buyer may reasonably request from Seller. Seller shall allow
Buyer, and Buyer's agents, access to the Property at all reasonable times for
the purpose of Buyer's investigation and testing. Buyer shall pay all costs and
expenses of such investigation and testing, shall restore the Property, and
shall hold Seller and the Property harmless from all costs
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and liabilities relating to Buyer's activities. If Buyer is not satisfied with
the condition of the Property, or Buyer's review of the Contracts or such
records and documents. Buyer may terminate this Agreement by giving written
notice thereof to Seller on or before the end of the Due Diligence Period, in
which event the Xxxxxxx Deposit and accrued interest thereon shall be refunded
to Buyer, and neither party shall have any further liability hereunder. If
Buyer does not terminate this Agreement on or before the end of the Due
Diligence Period, Buyer's right to terminate based on the condition of the
Property or the contents of the Contracts or such records and documents shall be
deemed waived except as otherwise provided in Sections 11 and/or 12 hereof.
5. ESCROW. At the election of either Buyer or Seller, and at such
party's expense, the sale shall be closed in escrow in the offices of the Title
Company. Seller and Buyer shall deliver at Closing such evidence or documents as
may be reasonably required by the other party or the Title Company evidencing
the status and capacity of Seller and Buyer, the authority of the person or
persons who are executing the various documents on behalf of the parties to this
Agreement, and such other documents and instruments as may be reasonably or
routinely required by the Title Company to consummate the sale. Seller shall
deliver at the Closing a standard seller's affidavit in a form sufficient to
permit the Title Company to delete the standard exceptions for parties in
possession (except for tenants under the Contracts) and mechanic's liens.
6. COSTS. Seller shall pay: (i) one-half (2) of the Closing costs of
the Title Company (but not any costs for title insurance premiums or any special
endorsements); (ii) costs of the preparation or copying of any due diligence
documents required under this Agreement; (iii) Broker's commissions; (iv) deed
stamp tax; (v) the cost of the title commitment referred to in Section 1 above,
(vi) costs of recording documents required to establish title in the manner
required by this Agreement (excluding the cost of recording the Warranty Deed to
be given by Seller under this Agreement), and (vii) all other costs customarily
borne by sellers of real property in the general Minneapolis, Minnesota
metropolitan area.
Buyer shall pay: (i) one-half (2) of the Closing costs of the Title
Company; (ii) charges for any title insurance premiums and any special
endorsements; (iii) costs of the preparation of any Buyer Documents; (iv) all
costs related to Buyer's review of Seller's due diligence documents, (v) all,
sales taxes or similar taxes and fees, and all recording costs (except as
provided in the preceding paragraph) excluding deed stamp tax; and (vi) all
other costs customarily borne by buyers of real property in the general
Minneapolis, Minnesota metropolitan area.
7. PRORATIONS. All utilities, Contracts, and other rights and
obligations of the Property commonly prorated upon the sale of the real
property, shall be prorated as of the date of Closing, on the basis of a 365-day
year. Buyer assumed to be the owner of the Property for the entire date of
Closing, both as to income and expenses. Real estate taxes and assessments will
be prorated on a payable, not assessed, basis (i.e. The real estate taxes and
assessments to be prorated upon Closing will be based on the amount due in the
calendar year 2000.) Unpaid rents and other charges payable to Seller (as
landlord of the Property), which are thirty (30) days or less outstanding shall
be prorated as of the date of Closing, with Seller to receive full credit
therefor, unpaid rents and other charges delinquent over thirty (30) days shall
not be prorated but shall be collected by Seller. Buyer shall receive a credit
against the Purchase Price for the amount of any security deposits or escrows
held by Seller for the benefit of any tenants or contractors in connection with
the Property. There shall be no prorations made with respect to any insurance
carried on or with respect to the Property. If any required prorations cannot be
calculated accurately on the date of Closing, then the same shall be estimated,
based upon prior known amounts; all such proration obligations to be final,
binding, and conclusive as of the Closing.
8. CLOSING. The sale shall close at office of the attorney for Buyer's
lender on the business day closest to the date forty-five (45) days after the
end of the fifteen (15)-day due diligence period set forth above, or on such
earlier date as Buyer shall request on at least two (2) business days' notice to
Seller. Buyer may postpone the Closing for up to an additional forty-five (45)
days by giving written notice thereof to Seller at least five (5) business days
before the end of the first forty-five (45)-day period described in the
preceding sentence, provided Buyer simultaneously pays an additional $100,000.00
Xxxxxxx Deposit to the Title Company, as provided above. Time is of the essence
for all obligations under this Agreement.
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9. TITLE. Seller shall convey title by special warranty deed, subject
to general taxes and assessments payable in the current year and thereafter, and
subject to the exceptions to title referred to in items 9, 10, 12, 13 an 14 of
Schedule B to the Commitment for Title Insurance referred to in Section 1 above
(collectively, "Permitted Exceptions"). Buyer shall use the Title Company
referred to in Section 1 above for its owner's and mortgagee's policies of
title insurance. Buyer acknowledges that the easements described on Exhibit A
may not be appurtenant easements and shall rely on the Title Company alone
with respect to whether such easements are appurtenant easements. The special
warranty deed given by Seller at Closing shall be deemed to include the
acknowledgment set forth in the preceding sentence.
10. REPRESENTATIONS AND WARRANTIES. Except as specifically
set forth in this Agreement, Seller makes no representations or warranties with
respect to the Property; it being acknowledged that Buyer shall accept the
Property in its present AS IS condition. Seller represents and warrants that
Seller has the legal capacity and authority to execute and deliver this
Agreement and all instruments to consummate the Closing of the sale of the
Property; except as set forth in the Title Commitment, Seller has no knowledge
that any person other than Seller has any right, title or interest in and to the
Property; that to the best of Seller's knowledge, there are no causes of action,
suits or judgments against Seller or the Property which would delay or prohibit
the sale; there are no Contracts for and with respect to the Property which have
not been disclosed to Buyer in writing, and which are or may become a lien
against the Property or an obligation of the Buyer upon Closing; and to the best
of Seller's knowledge, Seller has received no written notices of any pending or
threatened condemnation, disconnection of any existing utilities, or any
hazardous substances upon the Property. Seller certifies and warrants that
Seller does not know of any "xxxxx" on the Property within the meaning of Minn.
Stat. ss. 1031; this representation is intended to satisfy the requirements of
that statute. Solely for purposes of satisfying the requirements of Minn. Stat.
ss.115.55 Seller represents that there is no "individual sewage treatment
system" (within the meaning of that statute) on or serving the Property. Buyer
represents and warrants that Buyer has the legal capacity and authority to
execute and deliver this Agreement and all instruments to consummate the Closing
of the sale of the Property; and to the best of Buyer's knowledge, there are no
causes of action, suits or judgments against Buyer which would delay or prohibit
the sale.
11. CONDITIONS TO CLOSE. The following are conditions to the Closing:
(i) there shall be no material change in the condition of the Property from the
Effective Date through the Closing date with respect to any matter of title;
(ii) all of the representations and warranties of Seller and Buyer shall be
materially true as of the date of Closing; (iii) there shall be no material
change in any law affecting the Property or any current use thereof; and (iv)
Seller shall deliver title to the Property to Buyer at Closing in the condition
required by Section 9 of this Agreement. If the foregoing conditions are not
satisfied (or waived by Buyer) on or before the Closing, Buyer may terminate
this Agreement by giving written notice to Seller on or before the scheduled
date of Closing, in which event the Xxxxxxx Deposit and accrued interest thereon
shall be refunded to Buyer and neither party shall have any further liability
hereunder.
12. CASUALTY AND CONDEMNATION. If after this Agreement is
executed the Property is materially damaged by casualty or Seller is notified
that all or a portion of the Property shall be taken in condemnation, Buyer
shall have the right to terminate this Agreement, provided Buyer notifies Seller
in writing no later than thirty (30) days after Buyer receives actual knowledge
of such casualty or notice of condemnation, in which event the Xxxxxxx Deposit
and all accrued interest thereon shall be refunded to Buyer and neither party
shall have any further liability hereunder. In the event Buyer fails to
terminate this Agreement within said thirty (30) days, it shall be deemed that
Buyer shall accept the Property subject to such casualty and/or condemnation,
and Buyer shall be entitled to receive all insurance, if any, carried by Seller
for and with respect to such damage, or as applicable, any condemnation award.
13. DEFAULT. In the event that the sale of the Property does not Close
because of Seller's failure to perform any of Seller's obligation under this
Agreement, then Seller shall be in default hereunder. In the event of any such
default, Buyer shall have the right to terminate this Agreement upon written
notice to Seller, whereupon the Xxxxxxx Deposit together with any accrued
interest thereon shall be returned to Buyer. Alternatively, Buyer shall have the
right to exercise any and all remedies which Buyer may have against Seller,
whether at law, in equity or pursuant to this Agreement including, without
limitation, the rights to compel specifically performance by Seller.
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In the event that the sale of the Property does not Close because of
Buyer's failure to perform any of Buyer's obligations under this Agreement, then
Buyer shall be in default hereunder. In the event any such default, Seller shall
have the right to terminate this Agreement upon written notice to Buyer,
whereupon the Xxxxxxx Deposit together with any accrued interest thereon shall
be delivered to Seller. Alternatively, upon any termination of this Agreement,
Seller shall have the right to exercise any and all remedies which Seller may
have against Buyer, whether at law, in equity or pursuant to this Agreement,
including, without limitation, the right to compel specific performance by
Buyer.
Notwithstanding the foregoing provisions, if either Buyer or Seller
become in default of any term or condition of this Agreement, then prior to
either party exercising its rights or remedies permitted under this Agreement,
the party (the "Non-Defaulting Party") claiming such default, shall notify the
other party (the "Defaulting Party") in writing, setting forth in reasonable
details the nature of such default. The Defaulting Party shall then have five
(5) business days after receipt of such notice in which to cure such default to
the reasonable satisfaction of the Non-Defaulting Party. If the Defaulting Party
does not cure such default to the reasonable satisfaction of the Non-Defaulting
Party within the said five (5) business day period, the Non-Defaulting Party
shall then have the full right to proceed with its remedies as permitted under
this Agreement.
14. NOTICES. Any notices, required or desired to be given hereunder by
any party shall be in writing and shall be validly given or made to another
party if sent by facsimile or by a nationally recognized commercial overnight
courier service, or if deposited in the United States mail, certified or
registered, postage prepaid, return receipt requested. Any facsimile
transmission shall be followed by notice either by overnight courier or
certified or registered mail, as provided above. Notice shall be deemed made
on the date of facsimile transmission, on the date of delivery to the overnight
courier or upon mailing in the manner provided above.
Seller:
Xxxxxx Real Property Investors-Four, L.P.
A Missouri Limited Partnership
c/o Maxus Properties
0000 Xxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: President
FAX NO. 000-000-0000
Buyer:
Xxxxxxxxxx Properties, Inc.
530 Ford Centre
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
FAX NO. 000-000-0000
Any party may change its address for the purpose of receiving notices
by delivering written notice to the other party in the manner aforesaid.
15. BROKER'S COMMISSIONS. The parties warrant that they have dealt with
no broker or other person claiming a commission in connection with this
transaction ("Broker") other than United Properties Brokerage LLC (representing
Seller) and none (representing Buyer); and each party shall hold the other party
harmless for any breach of such warranty. Seller shall be liable for any
commissions payable to the aforesaid Broker(s). Buyer and Seller each
acknowledge and agree that no Broker to this transaction has made any
representations or warranties with respect to the Property or the use thereof,
and each party hereby releases the Broker(s) from all liability incurred by the
Buyer or Seller as a result of any investigation or failure to investigate the
Property, or the failure of this sale to Close.
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16. EFFECTIVE DATE. The Effective Date of this Agreement shall be the
last date that all signatures and required initials have been secured from
Seller and Buyer.
17. INTENTIONALLY DELETED.
18. MISCELLANEOUS.
(a) Further Assurances. Each of the parties hereto at the
reasonable expense of the requesting party shall execute and deliver any and all
additional papers, documents, and other assurances, and shall do any and all
acts and things reasonably necessary in connection with the performance of their
obligations hereunder and to carry out the intent of the parties hereto.
(b) Exhibits, Schedules and Other Documents. All exhibits
attached hereto and or otherwise referred to herein are hereby incorporated in
this Agreement by reference as though set forth at length.
(c) Separate Counterparts. This Agreement may be executed in
one or more separate counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute and be one and the same
instrument.
(d) Invalidity of Provisions. If any provision of this
Agreement is found to be invalid or unenforceable by any court of competent
jurisdiction, the invalidity or unenforceability of such provision shall not
affect the validity and enforceability of the remaining provisions hereof.
(e) Terms. The term "business days" shall mean the period
between 9:00 a.m. and 5:00 p.m. local time of any day of the year except
Saturdays, Sundays, and legal holidays as established by the appropriate
authorities of the State of Minnesota. The plural shall constitute the singular,
and vice versa; the masculine shall constitute the feminine, and vice versa.
(f) Binding Agreement. This Agreement shall be binding upon
and inure to the benefit of the heirs, successors and assigns in interest of the
parties hereto. However, the aforesaid shall not constitute the Seller's consent
to any assignment of this Agreement by Buyer, all such consent being expressly
denied without Seller's separate written approval. Notwithstanding the
foregoing, Seller hereby consents to one or more assignments of this Agreement
by Buyer or its assignees at or before the Closing to one or more affiliates of
the Buyer so long as such assignee or assignees fully perform Buyer's
obligations hereunder at Closing. No such assignments shall relieve the Buyer of
its obligations hereunder. This Agreement contains the entire agreement and
understanding between the parties, and all prior agreements and understandings
regarding the subject mater of this Agreement are merged herein. No addition,
modification or amendment of any term or provision of this Agreement shall be
effective, unless it is in writing and is signed by both Buyer and Seller. All
representations and warranties contained in this Agreement shall survive the
Closing for a period of one (1) year.
(g) Mutual Indemnification. Seller shall indemnify and
hold Buyer harmless from all liabilities (including reasonable attorneys' fees
in defending against claims) arising out of claims by third parties relating to
acts or occurrences on, at or with respect to the Property (including,
without limitation, the leases and contracts assigned to Buyer hereunder) which
accrue on or before the Closing. Buyer shall indemnify and hold Seller harmless
from all liabilities (including reasonable attorneys' fees in defending against
claims) arising out of claims by third parties relating to acts or occurrences
on, at or with respect to the Property (including, without limitation, the
leases and contracts assigned to Buyer hereunder) which accrue after the
Closing.
19. CONTINGENCY. Buyer's obligation to close the purchase of the
Property is contingent upon Seller delivering to Buyer subordination,
non-disturbance and attornment agreements (the "SNDA's") and estoppel letters
(the "Estoppels") from all of the tenants of the Property in a form reasonably
required by Buyer's lender. If Seller is unable to deliver such SNDA's and
Estoppels to Buyer on or before the Closing, Buyer may terminate this Agreement
by giving written notice to Seller on or before the scheduled date of Closing,
in which event the Xxxxxxx Deposit and accrued interest thereon shall be
refunded to Buyer and neither party shall have any further liability hereunder.
If Buyer
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does not deliver the SNDA's and Estoppels to Seller in the form required by
Buyer's lender on or before the end of the Due Diligence Period or if Seller
does not believe Seller will be able to obtain the execution of the SNDA's and
the Estoppels in such form from all of the tenants of the Property, Seller may
terminate this Agreement by giving written notice to Buyer on or before the
end of the Due Diligence Period, in which event the Xxxxxxx Deposit and accrued
interest thereon shall be refunded to Buyer and neither party shall have any
further liability hereunder. If this Agreement is terminated for any reason,
Buyer agrees to execute and deliver to Seller a quit claim deed releasing any
right, title or interest in the Property.
WHEREFORE, the parties have executed this Agreement as of the day and
year first above written.
BUYER: SELLER:
XXXXXXXXXX PROPERTIES, INC. XXXXXX REAL PROPERTY
INVESTORS-FOUR, L.P.
A Missouri Limited Partnership
By: /s/Xxxxxxx X. Xxxxxx By: /s/Xxxxxx X. Xxxxxx
Title: Secretary Title: President of Maxus Capital Corp., G.P.
Date: 1/28/2000 Date: 1-28-00
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EXHIBIT A
Legal Description of Property
Xxx 0, Xxxxx 0, Xxxxxxx Xxxx Company First Addition, according to the plat
thereof now on file and of record in the office of the County Recorder within
and for Dakota County, Minnesota.
Together with a permanent easement per Document No. 543023 filed of record on
August 10, 1979, Dakota County Recorder, for storm sewer and for Utility
purposes over, under and across a 10' wide strip of land in Xxx 0, Xxxxx 0,
Xxxxxxx Xxxx Company First Addition, according to the recorded plat thereof,
being the Westerly 10' of the Easterly 20' of said Lot 3.
Together with and subject to a permanent easement per Document No. 543022 filed
of record on August 10, 1979, Dakota County Recorder for sanitary sewer and for
utility purposes over, under and across that part of Xxxx 0 xxx 0, Xxxxx 0,
Xxxxxxx Xxxx Company First Addition, according to the recorded plat thereof
lying Southwesterly of the following described line:
Commencing at the Southerly most corner of said Lot 3; thence North
61(degree) 25' 56" West, assumed basis for bearings, along the
Southwesterly line of said Lot 3, a distance of 155.52 feet; thence
North 28(degree) 34 04" East, 20.00 feet to the point of beginning of
the line herein described; thence North 49(degree) 43' 29" West, 266.31
feet to a point in a line 20.00 feet Northeasterly of, measured at a
right angle to the Southwesterly line of said Block 2 and there
terminating.
Together with and subject to:
Rights and obligations of that declaration of easements dated March 27, 1981,
filed of record April 13, 1981, with the Dakota County Recorder, as Document No.
579350.
AND
Outlot D, Federal Land Company Second Addition, according to the plat thereof on
file and of record in the office of the County Recorder, Dakota County,
Minnesota.
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