EXHIBIT 10.74
PURCHASE AGREEMENT FOR METRIS MINNETONKA BUILDING
Phase II
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made as of October 31, 2000, by
and between OPUS NORTHWEST, L.L.C., a Delaware limited liability company
("Seller") and ▇▇▇▇▇ CAPITAL, INC., a Georgia corporation ("Purchaser").
In consideration of this Agreement, Seller and Purchaser agree as follows:
1. Sale of Subject Property. Seller agrees to sell to Purchaser, and
Purchaser agrees to buy 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 those certain parcels of
real estate located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, and
commonly known as Crescent Ridge Corporate Center, Phase II, 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 located on the Land, including, without limitation, an
approximately 300,633 square foot single tenant office building but not
including any of the improvements located in Link as described in the
Amended and Restated Declaration of Easements, Covenants, and Restrictions
Regarding Link described in Section 4(a) hereto ("Improvements"), and (ii)
all rights, privileges, easements, reversions, water rights, development
rights, air rights, servitudes and appurtenances thereunto belonging or
appertaining, including, without limitation, the rights and easements
benefiting the Land or the Improvements created and established by the
documents and instruments listed on Exhibit A-1 attached hereto and made a
-----------
part hereof and 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, the "Real Property").
(b) Personal Property. All of the equipment and personal property
owned by Seller and used in the operation of the Real Property, including
the items set forth and described on Exhibit B attached hereto and made a
---------
part hereof (all of which together are collectively referred to as the
"Personal Property").
(c) Lease. Seller's interest as landlord in and to the lease with
Metris Direct, Inc. (the "Tenant") described on Exhibit C attached hereto
---------
and made a part hereof, together with all amendments or modifications
thereto (such lease, as amended, being herein referred to as the "Lease"),
and together with the guaranty of such Lease from Metris Companies, Inc.
dated June 9, 1999 (the "Lease Guaranty") and separate Storage Space
License Agreement by and between Seller and Tenant and guaranteed by Metris
Companies, Inc. (the "Storage Agreement") which Storage Agreement will be
substantially in the form attached hereto as Exhibit O and made a part
---------
hereof and will be entered into prior to Closing.
(d) Permits. Seller's interest in and to all assignable licenses,
permits, and certificates of occupancy owned by Seller and pertaining to
the Real Property and Personal Property, including, without limitation, the
items described on Exhibit D attached hereto and made a part hereof (all of
---------
which together are collectively referred to as the "Permits").
(e) Service Contracts. Seller's interest in and to the existing
service and maintenance contracts described on Exhibit E attached hereto
---------
and made a part hereof, together with all amendments or modifications
thereto (collectively, the "Service Contracts"), subject to this Section
1(e). On or before November 3, 2000, Purchaser shall advise Seller, in
writing, of any Service Contracts that Purchaser does not desire to be
assigned to and assumed by Purchaser at Closing (as such term is defined in
Section 8(a) hereof). Seller shall then cause any such Service Contracts
(i.e., any Service Contracts set forth in the aforesaid written notice from
Purchaser) to be terminated prior to Closing. Failure by Purchaser to
notify Seller, in writing, prior to November 3, 2000, shall constitute an
irrevocable election by Purchaser to have all of the Service Contracts
assigned to and assumed by Purchaser at Closing. The assumption by
Purchaser of the obligations of Seller under such Service Contracts shall
include only such obligations that arise or accrue from and after the date
of Closing.
(f) Warranties. Seller's interest in and to all unexpired, assignable
warranties and guaranties given or assigned to, or benefiting, Seller, the
Real Property or the Personal Property relating to the acquisition,
construction, design, use, operation, management or maintenance of the Real
Property or the Personal Property, including, without limitation, the
warranties and guaranties described on Exhibit F attached hereto and made a
---------
part hereof (collectively, the "Warranties").
(g) Plans. Seller's interest in and to all final plans and
specifications (excluding shop drawings) relating to the construction of
the Improvements, to the extent that the same are assignable ("Plans").
Neither Purchaser nor its successors or assigns may use the Plans for any
purpose other than the repair, maintenance or restoration of the
Improvements, without the prior written consent of Seller (which consent
may be given or withheld in Seller's sole and absolute discretion); and
provided further, however, that Purchaser shall indemnify, defend and hold
harmless Seller and each Seller Affiliate from and against any unauthorized
use of the Plans by Purchaser, its employees, officers, directors,
affiliates and agents, which indemnification obligation shall survive
Closing and any termination of this Agreement.
(h) Other Intangibles. Seller's interest in and to all other
assignable intangible property (the "Other Intangible Property") owned by
Seller pertaining to the Real Property and Personal Property, including,
without limitation, geotechnical reports, operating manuals, floor plans
(including any related computer aided design measurements), and landscape
plans, and together with the non-exclusive right to the name "Crescent
Ridge Corporate Center", to be utilized by Purchaser (and its successors in
title) only with respect to the Real Property and to be shared in common
with Seller (and its successors in title) only with respect to the adjacent
real property located at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
2
2. Purchase Price. Purchaser shall pay to Seller, as consideration for
the purchase of the Subject Property, the sum ("Purchase Price") of Fifty Two
Million Eight Hundred Thousand and 00/100 Dollars ($52,800,000). The Purchase
Price shall be payable as follows:
(a) Initial ▇▇▇▇▇▇▇ Money Deposit. Concurrently herewith, Purchaser
shall deposit the sum of Five Hundred Thousand and 00/100 Dollars
($500,000) with the escrow department of Old Republic National Title
Insurance Company ("Title Company") pursuant to an escrow agreement in
substantially the form of Exhibit G attached hereto and made a part hereof
---------
(the "Escrow Agreement"). Such sum, together with any interest thereon
less any investment fees related thereto, is sometimes hereinafter
collectively referred to as the "▇▇▇▇▇▇▇ Money." The ▇▇▇▇▇▇▇ Money shall be
deposited in a federally insured interest-bearing money market account and
disbursed according to the terms of this Agreement and the Escrow
Agreement. All or a portion of the ▇▇▇▇▇▇▇ Money shall, at Purchaser's
election, be credited against the Purchase Price or returned to Purchaser
at Closing.
(b) Balance of Purchase Price. The balance of the Purchase Price,
plus or minus prorations and other adjustments, if any, shall be due at
Closing. Purchaser shall pay such balance to Seller, or at the direction
of Seller, by wire transfer of immediately available funds.
3. Conditions Precedent to Closing. Purchaser's obligation to consummate
the transaction contemplated by this Agreement shall be subject to satisfaction
or waiver of each of the following conditions ("Conditions Precedent") on or
before November 15, 2000 ("Contingency Date"):
(a) Title/Survey. Seller has previously furnished to Purchaser (i) a
current title commitment bearing application No. HEN.OR973633C
("Commitment") for an owner's title policy issued by the Title Company
showing title in Seller (with copies of all underlying title documents
listed in the Commitment other than any financing documents encumbering the
Real Property), which Commitment is in a nominal amount, but shall be
increased to the Purchase Price at Closing, and (ii) an as-built 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 1999) and certified to Seller and
the Title Company (and to be certified to Purchaser and Purchaser's lender
prior to the Contingency Date). If the Survey discloses survey defects or
if the Commitment shows exceptions (collectively, "Unpermitted
Encumbrances") other than the matters set forth on Exhibit H attached
---------
hereto and made a part hereof (collectively, "Permitted Encumbrances"),
then Purchaser shall notify Seller, in writing, on or before November 6,
2000, specifying the Unpermitted Encumbrances. In such event, prior to the
Contingency Date, Purchaser shall have received adequate assurances in
writing from Seller that the Unpermitted Encumbrances will be removed,
satisfied, or cured on or before Closing, it being acknowledged by the
parties hereto that the written commitment by the Title Company to delete
the requirement set forth in item 1 of Schedule B, Section 1, of the
Commitment from the final title insurance policy to be issued by the Title
Company shall constitute removal or cure of such Unpermitted Encumbrance
for purposes hereof.
3
(b) Tests. Seller has previously delivered to Purchaser true and
correct copies of the Lease, Permits, Service Contracts, Warranties, Plans
and the environmental assessments or soils reports in Seller's possession
or control with respect to the Subject Property, for Purchaser's review and
analysis. Seller shall allow Purchaser and Purchaser's officers, employees,
agents, attorneys, accountants, architects and engineers access to the Real
Property, subject to the rights of the Tenant, and to the books and records
in Seller's possession or control relating to the Subject Property, without
charge and at all reasonable times, for the purpose of making such
inspections, tests and verifications (collectively, "Tests") as they shall
deem reasonably necessary. On or before the Contingency Date, Purchaser
shall be satisfied, in its sole and absolute discretion, with the results
of the Tests. Purchaser shall pay all costs and expenses of the Tests and
shall defend, indemnify and hold harmless Seller, and its agents, employees
and contractors, and the Subject Property, from and against any and all
loss, cost, damage, liability, settlement, cause of action or threat
thereof or expense (including, without limitation, reasonable attorneys'
fees and costs) arising from or relating to the Tests. Purchaser shall
cause any consultants retained by Purchaser and which shall enter upon the
Real Property to name Seller and Seller's management agent as additional
insureds on such consultants' policies of liability insurance. Purchaser
shall promptly repair and restore any damage to the Subject Property
attributable to the conduct of the Tests, and shall promptly return the
Subject Property to substantially the same condition as existed prior to
the conduct of the Tests. No Tests shall be conducted without Seller's
approval as to the time and manner of such Tests, which approval shall not
be unreasonably withheld or delayed. At Seller's sole option, any such
Tests shall be performed in the presence of a representative of Seller. All
Tests shall be conducted in such a manner so as to minimize interference
with the operation of the Subject Property and the business of the Tenant.
In the event Purchaser elects to terminate this Agreement as provided in
this Section 3, or if this Agreement otherwise terminates as provided for
hereunder for reasons other than default by Seller, then Purchaser shall
promptly deliver to Seller copies of the written results of all Tests,
including, without limitation, any environmental assessments prepared with
respect to the Subject Property; provided, however, if Purchaser and any
consultants performing any of the Tests have entered into a written
agreement prohibiting delivery of any Test results to any other party,
Purchaser shall not be required so to deliver copies of the written results
thereof. Anything in this Agreement to the contrary notwithstanding, the
obligations of Purchaser under this Section 3(b) shall survive Closing and
any termination of this Agreement; provided, however, that the indemnity by
Purchaser in favor of Seller under this Section 3(b) shall survive only
with respect to claims asserted in writing by Seller within one (1) year
after the Closing or one (1) year after any termination of this Agreement.
If any of the Conditions Precedent have not been satisfied on or before the
Contingency Date, or if Purchaser is not satisfied, in its sole and absolute
discretion, with any other aspect of the Subject Property, then this Agreement
may be terminated, at Purchaser's sole option, by written notice from Purchaser
to Seller. Such notice of termination may be given at any time on or before the
Contingency Date. Except as otherwise provided herein, upon such termination,
neither party will have any further rights or obligations regarding this
Agreement or the Subject Property, and the ▇▇▇▇▇▇▇ Money shall be returned to
Purchaser. Failure of Purchaser to give Seller notice of termination on or
before the Contingency Date shall constitute an irrevocable
4
waiver by Purchaser of the right of Purchaser to terminate this Agreement under
this Section 3. All the Conditions Precedent are specifically stated and agreed
to be for the sole and exclusive benefit of Purchaser, and 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 such term is defined in Section
8(a) hereof), Seller shall conduct its business involving the Subject Property
as follows (except as specifically provided to the contrary herein):
(a) Transfers; Easements. Seller shall refrain from transferring any
of the Subject Property, or creating on the Real Property any easements,
restrictions, liens, assessments or encumbrances without the express prior
written consent of Purchaser; provided, however, that nothing herein shall
preclude Seller from replacing any equipment, supplies or machinery in the
ordinary course of operating the Subject Property so long as such
replacement equipment is of type and quality reasonably equivalent to the
replaced equipment and provided further that Seller may prepare, execute
and record an Amended and Restated Declaration of Easements, Covenants and
Restrictions Regarding Link (the "Amended Link Agreement") and an Amended
and Restated Declaration of Driveway, Monument and Storm Sewer Easement
("Driveway and Storm Sewer Easement Amendment"), the forms of which are
attached hereto as Exhibit P and Exhibit Q, respectively.
--------- ---------
(b) Contracts. Seller shall refrain from entering into or amending
any contracts or other agreements regarding the Subject Property (other
than contracts in the ordinary course of business which are cancelable by
the owner of the Subject Property, without penalty payable by Purchaser,
either prior to the Closing Date or within thirty (30) days after giving
notice thereof) without the prior written consent of Purchaser, which
consent shall not be unreasonably withheld or delayed.
(c) Operations. Seller shall operate and insure the Subject Property
in a manner consistent with the existing operation of and insurance on the
Subject Property and Seller will keep, maintain and repair the Subject
Property in substantially its condition as of the date of this Agreement..
(d) Lease. Seller will not modify, amend or terminate the Lease or
the Lease Guaranty without the prior written consent of Purchaser;
provided, however, Seller agrees that Seller shall use reasonable efforts
in good faith to obtain prior to the Contingency Date, a Fifth Amendment to
the Lease in substantially the form attached as Exhibit L (the "Fifth
Amendment") and the Storage Agreement. Seller will not waive any material
rights of Seller under the Lease or Storage Agreement, and Seller will use
reasonable commercial efforts to perform and discharge all of the duties
and obligations of the "Landlord" under the Lease (and when signed, the
Storage Agreement) in the manner and within the time limits required
thereunder.
5
5. Representations and Warranties by Seller.
(a) Representations and Warranties. Seller represents and warrants to
Purchaser as follows:
(i) Authority. Seller is a limited liability company duly
organized and validly existing and in good standing under the laws of
the State of Delaware and in good standing under the laws of the State
of Minnesota. Seller has the requisite power and authority to enter
into and perform this Agreement and Seller's Closing Documents (as
such term is defined in Section 9(a) hereof). This Agreement and
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 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 Seller's Closing Documents (when
signed) are valid and binding obligations of Seller, and are
enforceable against Seller in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, creditor's rights
and other similar laws.
(ii) Utilities. All installation and connection charges for
utilities serving the Real Property have been paid in full. Seller has
received no written notice of actual or threatened reduction or
curtailment of any utility service currently supplied to the Real
Property.
(iii) Hazardous Substances. Seller shall make available to
Purchaser in accordance with Section 3(b) hereof complete copies of
all environmental reports and studies with respect to the Real
Property conducted or received by Seller from any third party (the
"Environmental Reports"). Except as disclosed by the Environmental
Reports or any other environmental assessment obtained by Purchaser,
to the best of Seller's knowledge, (A) the Real Property has never
been used for the production, storage, deposit or disposal of
hazardous substances in any reportable quantities under and in
violation of applicable environmental laws; and (B) no above or below
ground gas or fuel storage tank is or has been located at the Real
Property. Seller has not received any written 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.
(iv) 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.
(v) Proceedings. There is no action, litigation, condemnation
or proceeding of any kind pending or, to the best knowledge of Seller,
threatened against Seller or against any portion of the Subject
Property, which would have an
6
adverse effect on the use or value of the Subject Property or an
adverse effect on the ability of Seller to perform its obligations
under this Agreement.
(vi) 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 and to the best of Seller's knowledge, no such
violation exists. To the best of Seller's knowledge, except as
disclosed by any engineering report received by Purchaser with respect
to the Real Property, the major structural, mechanical, roof, storm
drainage, sanitary sewer, and electrical systems constituting the
Improvements are in good working order and condition to perform the
work or function for which intended.
(vii) Books and Records. To the best of Seller's knowledge,
the books and records relating to the Subject Property which have been
made or will be made available to Purchaser by Seller, and which have
been prepared by Seller's property manager, accurately reflect the
operation of the Subject Property.
(viii) Lease.
(A) Exhibit C is a true and complete list and
---------
description of the Lease and Storage Agreement.
Seller has delivered to Purchaser a complete and
accurate copy of the Lease and drafts of the Fifth
Amendment and Storage Agreement. Except as set
forth in the Lease, there are no options to
expand, rights of first refusal, options to
terminate, options to renew, options to purchase,
or any rent abatements given to the Tenant.
(B) To the best of Seller's knowledge, each of the
Lease and the Lease Guaranty is, and upon Closing
each of the Lease, the Fifth Amendment and the
Storage Agreement will be, in full force and
effect according to the terms set forth therein,
and the Lease has not been modified, amended, or
altered, in writing or otherwise, except as set
forth on Exhibit C.
(C) Seller has not received written notice from the
Tenant of any uncured default or unperformed
obligation of the Landlord under the Lease,
including, without limitation, failure of the
Landlord to construct any required tenant
improvements. Tenant has not asserted in writing
to Seller any offsets, defenses or claims
available against rent payable by it or other
performance or obligations otherwise due from it
under the Lease.
(D) To the best of Seller's knowledge, Tenant is not
in default under its Lease (beyond any applicable
grace or cure
7
period), or is in arrears in the payment of any
sums or in the performance of any obligations
required of it under the Lease.
(E) No guarantor of the Lease has been released or
discharged by Seller, voluntarily or
involuntarily, from any obligation under the Lease
Guaranty.
(F) There are no brokers' commissions, finders' fees,
or other charges payable or to become payable to
any third party on behalf of Seller as a result of
or in connection with the Lease, including,
without limitation, any unexecuted options to
expand or renew, other than as set forth on
Exhibit C-1 attached hereto and made a part
-----------
hereof.
(G) To the best of Seller's knowledge, the Tenant has
not assigned its interest in its Lease or sublet
any portion of the premises leased to such Tenant
under its Lease.
(H) The Tenant has not prepaid rent for more than the
current month under the Lease.
(ix) Special Assessments. Except as shown on any tax bills
delivered to Purchaser and the Commitment and except for (i) the special
assessments levied by the City of Minnetonka at the public hearing on
August 14, 2000 in the principal amount of $534,750.30 payable over a ten
year period commencing 2001 and (ii) the special assessments contemplated
by the Contract for Private Redevelopment by and between Economic
Development Authority For the City of Minnetonka, the City of Minnetonka
and Seller dated February 23, 1998 (the "Redevelopment Agreement") in the
approximate amount of $210,000 relating to construction costs for a left
turn lane onto the frontage road south of the Subject Property and design
costs for minor traffic improvements adjacent to the Subject Property,
Seller has not received any notice, in writing, of any special assessment
which affects the Subject Property.
(x) Service Contracts. The Service Contracts described on
Exhibit E are all of the contracts which are in effect and which relate to
---------
the operation, management, or maintenance of the Subject Property. Seller
shall provide Purchaser with complete and accurate copies of all Service
Contracts pursuant to Section 3(b) hereof. All such Service Contracts are
in full force and effect in accordance with their respective provisions.
(xi) Warranties and Guaranties. Exhibit F attached hereto is a
---------
complete and accurate list and description of all of the warranties and
guaranties of contractors, vendors, manufacturers and other parties which
are known by Seller to be in effect and to relate to the Subject Property.
8
(xii) No Other Agreements. Other than the Lease, Storage
Agreement, the Service Contracts, and the Permitted Encumbrances,
there are no leases, service contracts, management agreements, or
other agreements or instruments in force and effect, oral or written,
that grant to any person whomsoever or any entity whatsoever any
right, title, interest or benefit in or to all or any part of the
Subject Property, any rights to acquire all or any part of the Subject
Property or any rights relating to the use, operation, management,
maintenance, or repair of all or any part of the Subject Property.
(xiii) Certificates. Seller has heretofore provided Purchaser
with complete and accurate copies of all Permits which are known by
Seller to relate to the Subject Property and which are in the
possession or control of Seller.
(xiv) Bankruptcy. Seller is solvent and has not made a general
assignment for the benefit of creditors nor been adjudicated a
bankrupt or insolvent, nor has a receiver, liquidator, or trustee for
any of Seller's properties (including the Subject Property) been
appointed or a petition filed by or against Seller for bankruptcy,
reorganization, or arrangement pursuant to the Federal Bankruptcy Act
or any similar Federal or state statute, or any proceeding instituted
for the dissolution or liquidation of Seller.
(xv) No Roll Back Taxes. The Subject Property has not been
classified under any designation authorized by law to obtain a special
low ad valorem tax rate or to receive a reduction, abatement, or
deferment of ad valorem taxes which will result in additional, catch-
up or roll-back ad valorem taxes in the future in order to recover
the amounts previously reduced, abated or deferred.
(b) Seller's Knowledge. For purposes of this Agreement, the phrase
"to the best of Seller's knowledge" or words of similar import shall mean
the actual knowledge of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, ▇▇▇ ▇▇▇▇▇▇▇, Vice
President, ▇▇▇▇ ▇▇▇▇▇, Senior Director of Development, ▇▇▇ ▇▇▇▇▇▇, Property
Manager and ▇▇▇▇▇▇▇ ▇▇▇▇▇, Senior Project Manager - Construction. Seller
represents to Purchaser that such persons are the only officers or
representatives of Seller having principal responsibility for the
development, management, operation, leasing and sale of the Subject
Property.
(c) Representation and Warranty Becoming Untrue. In the event that,
between the date of this Agreement and the Closing Date, Seller becomes
aware that any of the foregoing representations and warranties of Seller is
no longer true and correct, Seller shall promptly notify Purchaser thereof
in writing. Seller covenants and agrees, within thirty (30) days (such
thirty (30)-day period being sometimes hereinafter referred to as the
"Warranty Cure Period"), to use reasonable efforts to cure any such then-
incorrect representations and warranties, and the Closing shall be delayed
in accordance with this Section 5(c) while Seller undertakes such efforts.
If, after using reasonable efforts, Seller cannot effect such cure on or
before the expiration of the Warranty Cure Period, Purchaser shall, within
five (5) business days following expiration of the Warranty Cure Period,
elect either (i) to terminate this Agreement (other than the rights and
obligations of the parties that, by the express terms hereof, survive any
termination of
9
this Agreement), or (ii) to waive any such incorrect representations and
warranties of Seller, and thereby release Seller from any and all liability
or obligations with respect thereto, and to proceed hereunder, or (iii) if
such representations and warranties of Seller are knowingly and
intentionally breached by Seller, to exercise the remedies available to
Purchaser under Section 11(b) hereof. Failure of Purchaser to notify Seller
within the aforesaid five (5)-business day period shall constitute
Purchaser's irrevocable election under clause (ii) of the immediately
preceding sentence. In the event that Purchaser terminates this Agreement
as provided in clause (i) above, the ▇▇▇▇▇▇▇ Money shall be promptly
returned to Purchaser.
6. Representations and Warranties by Purchaser. Purchaser represents and
warrants to Seller as follows: (a) Purchaser is a Georgia corporation duly
organized and validly existing and in good standing under the laws of the State
of Georgia, and by the Closing Date, will be in good standing under the laws of
Minnesota as may be required in order for the Title Company to issue the Title
Policy required hereunder; (b) Purchaser has the requisite power and authority
to enter into this Agreement and Purchaser's Closing Documents (as such term is
defined in Section 9(c) hereof); (c) this Agreement has been duly authorized by
all necessary action on the part of Purchaser and this Agreement and Purchaser's
Closing Documents have been or will be duly executed and delivered by Purchaser;
(d) Purchaser's execution, delivery and performance of this Agreement and
Purchaser's Closing Documents will not conflict with or result in 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
Purchaser's Closing Documents (when signed) are valid and binding obligations of
Purchaser, and are enforceable against Purchaser in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization, creditor's 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 (a)
any cause of action that Purchaser may have against Seller by reason of a breach
or default of any of Seller's representations and warranties set forth herein
shall automatically expire on the date which is one (1) year 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; (b) Seller's total
liability for any breach or breaches of its representations and warranties set
forth herein shall in no event exceed Seller's interest in the Subject Property
or the proceeds from the sale thereof, as the case may be; and (c) Seller shall
have no liability whatsoever to Purchaser with respect to any breach or breaches
by Seller of its representations and warranties set forth herein, if, prior to
Closing, Purchaser obtains actual knowledge of a fact or circumstance, the
existence of which would constitute a breach of Seller's representations and
warranties set forth herein, unless such representations and warranties of
Seller are knowingly and intentionally breached by Seller. Among other things,
for purposes hereof, Purchaser shall be deemed to have actual knowledge of any
fact or circumstance set forth in the estoppel certificates delivered to
Purchaser and in any environmental assessments or engineering reports received
by Purchaser. Seller's representations and warranties set forth herein shall be
deemed automatically modified to the extent that any information contained in
any estoppel certificates delivered to Purchaser prior to Closing or in any
environmental
10
assessments or engineering reports received by Purchaser is inconsistent with
the matters which are the subject to such representations and warranties.
8. Closing.
(a) Closing Date. The closing of the purchase and sale contemplated
by this Agreement ("Closing") shall occur on or before November 20, 2000,
or on such earlier or later date as Seller and Purchaser may mutually
agree, subject to delays occasioned by operation of Sections 3(a), 5(c) or
9(b) hereof ("Closing Date"), at the offices of Seller's attorneys, ▇▇▇▇▇▇
and ▇▇▇▇▇▇, P.A., ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ 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 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
Condition Precedent, in whole or in part, by written notice to Seller:
(i) The representations and warranties of Seller set forth in
Section 5(a) hereof shall be, in all material respects, true and
complete as of the Closing Date.
(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, in all material respects.
(iii) Seller shall have obtained an amendment to the Lease, on
or before the Closing Date, in substantially the form of Exhibit L
---------
attached hereto and made a part hereof, fully executed by Seller, as
Landlord under the Lease, and Tenant.
(iv) Purchaser shall have received, on or before the Closing
Date, an estoppel certificate in substantially the form of Exhibit I
---------
attached hereto and made a part hereof, or otherwise reasonably
approved by Purchaser, from the Tenant.
(v) Seller shall provide Purchaser with (i) evidence reasonably
acceptable to Purchaser that the Tenant has approved the number of
parking spaces currently provided on the Subject Property consisting
of 49 enclosed lower level spaces, 395 ramp spaces and 787 surface
parking spaces, or (ii) a written undertaking by Seller that Seller
will construct (at Seller's cost and expense) an additional 21 surface
parking spaces on the Subject Property on or before June 1, 2001.
(c) Seller's Conditions Precedent. Seller's obligation to consummate
the transaction contemplated by this Agreement shall be subject to
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 Condition Precedent, in
whole or in part, by written notice to Purchaser:
11
(i) The representations and warranties of Purchaser set forth
in Section 6 hereof shall be, in all material respects, true and
complete.
(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.
(d) Failure of Condition Precedent. In the event that Purchaser's
Closing Conditions Precedent or Seller's Closing Conditions Precedent, as
the case may be, have not been satisfied or waived as of the scheduled
Closing Date as the same may be extended as permitted above, and provided
the failure to satisfy or waive any such condition is not attributable to a
breach or default of this Agreement by Seller or Purchaser, as the case may
be, this Agreement shall terminate (other than the obligations of the
parties that, by the express terms hereof, survive any such termination)
and the ▇▇▇▇▇▇▇ Money shall be returned to the Purchaser.
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 the following (collectively, "Seller's Closing Documents"):
(i) Deed. A Limited 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 J attached hereto and
---------
made a part hereof (the "Deed").
(ii) ▇▇▇▇ of Sale. A ▇▇▇▇ of Sale transferring the Personal
Property to Purchaser, in the form set forth in Exhibit K attached
---------
hereto and made a part hereof (the "▇▇▇▇ of Sale").
(iii) Seller's Affidavit. An Affidavit of Seller indicating
that on the Closing Date, to the best of Seller's knowledge, there are
no outstanding, unsatisfied judgments, tax liens (other than the lien
of real estate taxes not yet due and payable) or bankruptcies against
or involving Seller or the Real Property; and that, to the best of
Seller's knowledge, there are no other unrecorded interests in the
Real Property other than the Lease as amended by the Fifth Amendment,
and the Storage Agreement. Such Affidavit shall be in such form and
shall contain such averments as may be reasonably required by the
Title Company in order for the Title Company to issue to Purchaser its
owner's policy of title insurance without exception for rights of
parties in possession (other than the rights of the Tenant under the
Lease and Storage Agreement, as tenant and licensee only) and without
exception for filed or unfiled mechanics' and materialmen's liens.
(iv) Original Documents. Original copies of the Lease, the
Storage Agreement, the Permits, those of the Service Contracts (if
any) to be assigned to and assumed by Purchaser pursuant to Section
1(e) hereof, the Warranties and the
12
Plans, to the extent that the same are in Seller's possession or
control and have not previously been delivered to Purchaser.
(v) FIRPTA Affidavit. A non-foreign affidavit properly
containing such information as is required by Section 1445(b)(2) of
the Internal Revenue Code and the regulations promulgated thereunder.
(vi) Title Documents. Such affidavits of Seller or other
documents as may be reasonably required by the Title Company in order
to record the Deed and issue the title insurance policy required by
this Agreement.
(vii) Tax Reporting Designation. A Designation of Person
Responsible for Tax Reporting under Internal Revenue Code Section 6045
in the form of Exhibit M attached hereto and made a part hereof
---------
designating the Title Company as the party responsible for making
returns required under Internal Revenue Code Section 6405.
(viii) Operating Expense Statement. An operating expense
statement certified by Seller to be a complete and correct list and
description of operating expenses relating to Seller's ownership,
operation, management and maintenance of the Subject Property since
September 1, 2000.
(ix) Miscellaneous. Keys to all locks at the Subject Property
in Seller's possession or control; and the documents referred to in
Section 9(d) below.
(b) Title Policy. At Closing, Seller shall cause the Title Company to
deliver to Purchaser its owner's title insurance policy required by this
Agreement. Seller hereby agrees that Seller shall remove, satisfy or cure
at or prior to the Closing, any Unpermitted Encumbrances created by Seller
after the effective date of this Agreement in violation of this Agreement
or any Unpermitted Encumbrances consisting of taxes and installments of
special assessments (except for taxes which are not yet due or payable
which shall be prorated between Seller and Purchaser and installments of
special assessments as provided in Section 10(a) below), mortgages,
mechanic's or materialmen's liens or other such monetary encumbrances. In
the event that Seller shall fail, on or before the date of Closing, to
remove, satisfy or cure any Unpermitted Encumbrances that Seller is
obligated hereunder to remove, satisfy or cure or as to which Seller gave
assurance to Purchaser that Seller would remove, satisfy or cure as
provided in Section 3(b) above or that Seller created after the Effective
Date of this Agreement in violation of this Agreement, (i) Purchaser may
terminate this Agreement by written notice to Seller and Title Company, in
which even the ▇▇▇▇▇▇▇ Money shall be immediately refunded to Purchaser,
(ii) Purchaser may remove, cure or cause the Title Company to endorse over
such Unpermitted Encumbrance, in which event the Purchase Price payable
pursuant to Section 2 hereof shall be reduced by an amount equal to the
actual cost and expense incurred by Purchaser in connection with the
removing, curing or endorsing over of such Unpermitted Encumbrance, or
(iii) Purchaser may accept title to the Real Property subject to such
Unpermitted Encumbrances, or (iv) any combination of items (ii) and
13
(iii). In the event Purchaser elects to remove, cure or cause the Title
Company to endorse over any such Unpermitted Encumbrances pursuant to item
(ii) above, Purchaser at its option, upon giving notice to Seller, may
extend the date of Closing until the curing of such Unpermitted
Encumbrances or fifteen (15) days from and after the previously scheduled
date of Closing, whichever shall first occur. If any defect or objection
shall not have been removed, cured or endorsed over within such period,
Purchaser may exercise its option under either item (i) or (iii) hereof.
Notwithstanding the foregoing, the parties hereto agree that if Seller has
not completed the Proceeding Subsequent to Initial Registration set forth
in item 1 of Schedule B - Section 1 of the Commitment by the Closing Date
and the Title Company agrees to insure over Seller's failure to have
completed such requirement, Seller undertakes and agrees with Purchaser to
complete said Proceeding Subsequent and obtain the Order deleting the
recitals listed in item 1 of Schedule B - Section 1 of the Commitment. The
foregoing undertaking and agreement shall survive the Closing.
(c) Purchaser's Closing Documents. On the Closing Date, Purchaser
shall execute and/or deliver or cause to be executed and/or delivered to
Seller the following (collectively, "Purchaser's Closing Documents"):
(i) Purchase Price. The Purchase Price, plus or minus
prorations and other adjustments, if any, by wire transfer of
immediately available funds.
(ii) Title Documents. Such affidavits of Purchaser other
documents as may be reasonably required by the Title Company in order
to record the Deed and issue the title insurance policy required by
this Agreement.
(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 Seller and Purchaser, and
consistent with the terms, provisions and conditions of this
Agreement.
(ii) Transfer Tax Declarations. Such Certificate of Real Estate
Value or similar declarations, affidavits or certificates as may be
required by applicable law.
(iii) Assignment and Assumption of Lease. An Assignment and
Assumption of Lease pursuant to which, among other things, (A) Seller
shall assign to Purchaser all of Seller's right, title and interest as
landlord in, to and under the Lease and Storage Agreement, and
Purchaser shall assume the obligations of the landlord under the Lease
and Storage Agreement with respect to any event, fact or circumstance
that occurs, from and after the Closing Date; (B) Seller shall defend,
indemnify and hold harmless Purchaser from and against any lease
defaults by the landlord under the Lease and Storage Agreement with
respect to any event, fact or circumstance that occurs prior to the
Closing Date, and Purchaser shall defend, indemnify and hold harmless
Seller from and against
14
any lease defaults by the landlord under the Lease and Storage
Agreement with respect to any event, fact or circumstance that occurs
from and after the Closing Date, subject, however, to Section 26
hereof; and (C) the total liability of Seller for breach thereof shall
be limited to Seller's interest in the Subject Property or the
proceeds from the sale thereof, as the case may be, and the total
liability of Purchaser for breach thereof shall be limited to
Purchaser's interest in the Subject Property.
(iv) Assignment and Assumption of Permits, Warranties and
Plans. An Assignment and Assumption of Permits, Warranties and Plans,
pursuant to which, among other things, (A) Seller shall assign to
Purchaser 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 that occurs,
from and 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
that 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
that occurs from and after the Closing Date; (C) Purchaser shall
defend, indemnify, and hold harmless Seller and Seller's Affiliates
from any unauthorized use of the Plans, as more particularly set forth
in Section 1(f) hereof; and (D) the total liability of Seller for
breach thereof shall be limited to Seller's interest in the Subject
Property or the proceeds from the sale thereof, as the case may be,
and the total liability of Purchaser for breach thereof shall be
limited to Purchaser's interest in the Subject Property.
(v) Assignment of Service Contracts. An Assignment and
Assumption of Service Contracts pursuant to which, among other things,
(A) Seller and/or Seller's property manager shall assign to Purchaser
all right, title and interest of Seller and/or Seller's property
manager, as buyer, in, to and under the Service Contracts which are to
be assigned hereunder, and Purchaser shall assume all obligations of
Seller and/or Seller's property manager under such Service Contracts
with respect to any event, fact or circumstance that occurs, from and
after the Closing Date; (B) Seller shall defend, indemnify and hold
harmless Purchaser from and against any defaults by the buyer under
such Service Contracts with respect to any event, fact or circumstance
that occurs prior to the Closing Date, and Purchaser shall defend,
indemnify and hold harmless Seller and/or Seller's property manager
from and against any defaults by the buyer under such Service
Contracts with respect to any event, fact or circumstance that occurs
from and after the Closing Date; and (C) the total liability of Seller
for breach thereof shall be limited to Seller's interest in the
Subject Property or the proceeds from the sale thereof, as the case
may be, and the total liability of Purchaser for breach thereof shall
be limited to Purchaser's interest in the Subject Property.
15
(vi) Notices to Tenant. Written notices to the Tenant advising
it of the sale of the Subject Property and directing it to make future
lease payments to Purchaser at the place designated by Purchaser.
(vii) 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 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 collecting authorities of all real estate
taxes and installments of special assessments affecting the Real Property
(collectively, "Taxes") due and payable in 1999 and prior years. Taxes due
and payable in the year 2000 shall be prorated between Seller and Purchaser
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 become due and payable after the Proration
Date. There shall be no further proration of Taxes.
(b) Title Insurance. Seller shall pay for the cost of the owner's
title insurance policy required under this Agreement. Purchaser shall pay
for the cost of any additional endorsements to the owner's title insurance
policy which Purchaser is able to obtain from the Title Company, and all
costs of any lender's title insurance policy.
(c) Closing Fee. Seller and Purchaser will each pay one-half of any
reasonable and customary closing fee by the Title Company.
(d) Deed or Transfer Tax. Seller shall pay all applicable deed taxes
imposed by the State of Minnesota.
(e) Rents. The following items shall be prorated on an accrual basis
up to and including the Proration Date, on the basis of the most recent
ascertainable amounts thereof or on the basis of such other reasonably
reliable information with respect thereto: (i) current and advance rental
payments under the Leases; (ii) operating expense and insurance escalations
and adjustments and other charges payable by the Tenant to the landlord
under the Lease, excluding any contributions toward the payment of Taxes
(collectively, "Expense Contributions"); (iii) any utility charges and
deposits made by Seller with respect to utilities for which the landlord
under the Lease is responsible; and (iv) all other items of accrued or
prepaid income and expenses, other than delinquent rental payments under
the Lease. Such prorations shall not account for or reflect any of the
foregoing items to the extent Tenant is delinquent in payment of the same.
When actual Expense Contributions for the year in which Closing occurs
are known (and the year preceding the year in which Closing occurs if such
amounts are not
16
known at Closing), Purchaser shall ▇▇▇▇ the Tenant for the additional
amount, if any, owed by such Tenant as a result of non-payment or
underpayment of the Tenant's share of Expense Contributions for the year to
which such Expense Contributions apply under the Tenant's Lease. Upon
collection of such amounts the same shall be prorated between Seller and
Purchaser, and Purchaser shall pay Seller all amounts due Seller for the
period prior to the Proration Date as soon as reasonably practical. In the
event that the Expense Contributions collected by Seller for the period up
to and including the Proration Date exceed the actual Expense Contributions
for such period, Seller shall pay to Purchaser an amount equal to the
excess of the Expense Contributions collected over the actual Expense
Contributions for such period as soon as reasonably practical after such
Expense Contributions are known. Seller shall have the right to inspect the
books and records of the Subject Property to verify that Purchaser is
remitting to Seller all amounts to be remitted to Seller according to the
terms of this Agreement, and for any other purpose related to Seller's
prior ownership of the Subject Property. Notwithstanding the foregoing, if
the amounts to be prorated hereunder can be established with reasonable
certainty at Closing, the appropriate party shall receive credit therefor
at Closing, which credit shall be final and in lieu of any proration
contemplated hereby.
In the event that on the Closing Date the Tenant is delinquent for a
period of thirty (30) days or less in the payment of rent (base rent,
additional rent or otherwise), billed but unpaid at the time of Closing, a
proportionate share of such delinquent rent shall be credited in favor of
Seller, it being understood that if the Tenant is delinquent for a period
of thirty (30) days or less in the payment of current monthly rent but is
also delinquent for a period of more than thirty (30) days for past monthly
rent, all such rent shall be considered delinquent for more than thirty
(30) days for purposes of this grammatical paragraph. In the event that on
the Closing Date the Tenant is delinquent for a period of more than thirty
(30) days in the payment of rent (base rent, additional rent or otherwise),
billed but unpaid at the time of Closing, then no proration shall be made
at Closing, and, after Closing, Seller shall have the right to proceed
against the Tenant for collection of such past due amounts, which
proceedings may include instituting litigation for damages, but not
eviction from or dispossession of the leased premises. If Seller recovers
any such delinquent amounts, the same shall be distributed in the following
order of priority: (i) to Seller for amounts due or accrued from Tenant
prior to the Proration Date, then (ii) the balance to Purchaser. If
Purchaser recovers any such delinquent amounts, the same shall be
distributed in the following order of priority: (i) to Purchaser for
amounts due or accrued from Tenant from and after the Closing Date, then
(ii) the balance to Seller, provided the same has not previously been
credited to Seller as provided above.
(f) Recording Costs. Seller shall pay the cost of recording all
documents necessary to place record title in the condition required by this
Agreement other than the cost of recording the Deed which shall be paid by
Purchaser.
(g) Operating Expenses. All other operating costs of the Subject
Property shall be allocated between Seller and Purchaser as of the
Proration Date, so that Seller pays that part of such other operating costs
payable before the Proration Date, and Purchaser pays that part of such
operating costs payable from and after the Proration Date.
17
(h) Attorney's Fees. Each of the parties shall pay its own
attorneys' fees, except that a party defaulting under this Agreement or any
closing document shall pay the reasonable attorneys' fees and court costs
incurred by the nondefaulting party to enforce successfully its rights
regarding such default.
(i) Other Costs. All other costs shall be allocated in accordance
with the customs prevailing in similar transactions in the greater
metropolitan Twin Cities area.
(j) Free Rent. Seller shall pay to Purchaser at Closing the sum of
$738,416.55 representing the total amount of free or reduced rental under
the Lease for the period from and after the Closing Date, which amount is
calculated as provided in Exhibit N attached hereto and made a part hereof,
---------
based upon an assumed Closing Date of November 20, 2000. In the event the
actual amount of free or reduced rental under the Lease is determined
(either before or after Closing) to be more or less than $738,416.55, or in
the event the Closing shall occur on a date other than November 20, 2000,
the foregoing payment amount shall be recalculated and Seller and Purchaser
shall promptly make appropriate adjustments and payments between them so
that the payment by Seller to Purchaser under this Section 10(j) shall
equal the total amount of free or reduced rental under the Lease for the
period from and after the Closing Date.
The obligations of the parties under this Section 10 shall survive the
Closing and delivery of the Deed.
11. Default.
(a) If Purchaser defaults in its obligation to consummate this
Agreement, Seller shall be entitled, at Seller's option, to terminate this
Agreement, and the ▇▇▇▇▇▇▇ Money shall be forfeited to Seller, as Seller's
sole and exclusive remedy; provided, however, that Seller shall also have
the right to ▇▇▇ for or otherwise recover actual damages as a result of
Purchaser's failure to perform Purchaser's indemnity obligations herein.
(b) If Seller defaults in its obligations under this Agreement or
knowingly and intentionally breaches its representations and warranties
hereunder, Purchaser shall be entitled either (i) to terminate this
Agreement and have the ▇▇▇▇▇▇▇ Money returned as Purchaser's sole and
exclusive remedy, or (ii) to enforce specific performance of the terms and
provisions of this Agreement; provided, however, that if Purchaser elects
to terminate this Agreement and have the ▇▇▇▇▇▇▇ Money returned, Seller
agrees to pay the actual out-of-pocket expenses incurred by Purchaser (not
to exceed $100,000) in connection with Purchaser's proposed acquisition of
the Property.
12. Damage. If, prior to the Closing Date, all or any part of the
Improvements are damaged by fire or other casualty, Seller shall promptly give
notice to Purchaser of such fact. If any part of the Improvements are
substantially damaged, at Purchaser's option (to be exercised by Purchaser's
written notice to Seller given within thirty (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 (other than the
18
obligations of the parties that, by the express terms hereof, survive any such
termination), and the ▇▇▇▇▇▇▇ Money shall be refunded to Purchaser. 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 or destruction and to return the
Improvements to substantially their condition prior to such damage. If such
damage shall be completely repaired prior to the Closing Date, then there shall
be no reduction in the Purchase Price, and Seller shall retain the proceeds of
all insurance 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. For purposes of this Section 12, the words
"substantially damaged" mean damage that would cost $750,000 or more to repair
or damage that would entitle the Tenant to terminate the Lease.
13. Condemnation. If, prior to the Closing Date, eminent domain
proceedings are commenced against all or any part of the Subject Property, or if
the Subject Property is subjected to a bona fide threat of eminent domain, or if
Seller has received notice that any such eminent domain proceedings are
contemplated, Seller shall immediately give notice to Purchaser of such fact
and, at Purchaser's option (to be exercised within thirty (30) days after
Seller's notice), this Agreement shall terminate. In the event of any such
termination, neither party will have further obligations under this Agreement
(other than the obligations of the parties that, by the express terms hereof,
survive any such termination), and the ▇▇▇▇▇▇▇ Money shall be refunded to
Purchaser. 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 necessary without
obtaining Purchaser's prior written consent.
14. Broker's Commission. Seller 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, other than CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. ("Seller's
Broker"). Seller shall be responsible for payment of the broker's commission due
and owing Seller's Broker. 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 acts
of Seller in connection herewith. Purchaser represents and warrants to Seller
that in connection with the transaction contemplated hereby, no third party
broker or finder has been engaged or consulted by Purchaser or is entitled to
compensation or commission in connection herewith, other than Seller's Broker.
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 acts of Purchaser in connection
herewith other than Seller's Broker. The indemnity obligations hereunder shall
include, without limitation, all damages, losses, risks, liabilities and
expenses (including, without limitation, reasonable attorneys' fees
19
and costs) arising from and related to matters being indemnified hereunder.
Neither Seller's Broker nor any 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. The
obligations of the parties under this Section 14 shall survive the Closing or
any termination of this Agreement.
15. Mutual Indemnification. Seller and Purchaser agree to indemnify each
other against, and hold each other harmless from all liabilities (including,
without limitation, reasonable attorneys' fees in defending against claims)
arising out of the ownership, operation or maintenance of the Subject Property
for their respective periods of ownership; provided, however, that nothing
herein shall diminish the defense, indemnify and hold harmless obligations of
Purchaser set forth in Section 3(b) hereof with respect to matters arising from
or related to the Tests. If and to the extent that the indemnified party has
insurance coverage, or the right to make claim against any third party for any
amount to be indemnified against as set forth above, the indemnified party will,
upon full performance by the indemnifying party of its indemnification
obligations, assign such rights to the indemnifying party. If such rights are
not assignable, the indemnified party will diligently pursue such rights by
appropriate legal action or proceeding and assign the recovery and/or right of
recovery to the indemnifying party to the extent of the indemnification payment
made by such party. The provisions of this Section 15 shall survive Closing and
execution and delivery of the Deed.
16. Assignment. Purchaser may not assign its rights under this Agreement
without the prior written consent of Seller; provided, however, that Purchaser
may assign its rights under this Agreement to ▇▇▇▇▇ Operating Partnership, L.P.,
a Delaware limited partnership ("WLP") or ▇▇▇▇▇ Real Estate Investment Trust,
Inc., a Maryland corporation ("▇▇▇▇▇ REIT") or ▇▇▇▇▇ Development Corporation, a
Georgia corporation ("WDC") or any trust, corporation, partnership or limited
liability company controlling, controlled by or under common control with
Purchaser, WLP, ▇▇▇▇▇ REIT, WDC or any partnership having Purchaser, WLP, ▇▇▇▇▇
REIT or WDC or any entity controlled by Purchaser, WLP, ▇▇▇▇▇ Reit or WDC as a
direct or indirect general partner. For purposes hereof, "control" shall mean
ownership (directly or indirectly) of 51% or more of the voting or other
comparable ownership interest of any such trust, corporation, partnership or
limited liability company. Any assignment shall be subject to all the
provisions, terms, covenants and conditions of this Agreement, and the assignor
shall, in any event, continue to be and remain liable under this Agreement, as
it may be amended from time to time, as a principal and not as a surety without
notice to such assignor. Any such assignment and assumption shall be evidenced
by a written agreement in form and substance reasonably acceptable to Seller.
17. 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 guarantee next day delivery, by telecopy or facsimile transmission, or
by personal delivery, properly addressed as follows:
If to Seller: Opus Northwest, L.L.C.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Vice President
20
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Opus L.L.C. Legal Department
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
And a copy to: ▇▇▇▇▇▇ and ▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: ▇▇▇▇▇ Capital, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
Bank of America Plaza
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
All notices shall be deemed given three (3) business days following deposit in
the United States mail with respect to certified or registered letters, 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 or by
telecopy or facsimile transmission (with proof of 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.
18. 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.
19. Entire Agreement; Modification. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter herein
contained, and 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.
21
20. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
21. Controlling Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
22. Severability. The unenforceability or invalidity of any provisions
hereof shall not render any other provision herein contained unenforceable or
invalid.
23. "As Is" Sale. Purchaser acknowledges that except as set forth in this
Agreement and in Seller's Closing Documents (which term "Seller's Closing
Documents" includes the documents referred to in Section 9(d) above), (a)
neither Seller, nor any principal, agent, attorney, employee, broker, or other
representative of Seller, has made any representation or warranty of any kind
whatsoever, either express or implied, with respect to the Subject Property or
any matter related thereto; (b) Purchaser is not relying on any warranty,
representation, or covenant, express or implied, with respect to the condition
of the Subject Property; and (c) Purchaser is acquiring the Subject Property in
its "as-is" condition with all faults. In particular, but without limitation,
except as set forth in this Agreement and the Seller's Closing Documents, Seller
makes no representations or warranties with respect to the use, condition,
occupation or management of the Subject Property, compliance of the Subject
Property with applicable statutes, laws, codes, ordinances, regulations or
requirements or compliance of the Subject Property with covenants, conditions,
and restrictions, whether or not of record.
24. Time of Essence. Time is of the essence of this Agreement.
25. 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.
26. Construction Warranty. Pursuant to Section 17.1.15 of the Lease,
Seller has warranted to Tenant that the "Tenant Improvements" and related
materials, equipment and installation shall be free from defects in workmanship
and shall conform to the plans and specifications, which warranty is stated to
run for a period of one (1) year after the applicable commencement date for
leased space finished by Seller, and Seller agreed to repair, correct or replace
as necessary any defective item occasioned by a breach of such warranty if
notified by Tenant of the defective item within the foregoing one (1) year
period. In the event Purchaser is notified by Tenant of a claim under Section
17.1.5 of the Lease (a "Claim"), Purchaser shall notify Seller of such Claim and
Seller shall promptly repair, correct or replace the claimed defective item
occasioned by such breach of warranty and provide Purchaser with reasonable
evidence of such repair, correction or replacement. Purchaser agrees to provide
Seller access to the Property for the purposes of making such repairs,
corrections or replacements. In the event Seller fails to promptly repair,
correct or replace such defective item, Purchaser may, after giving Seller five
days notice of such failure on the part of Seller, repair, correct or replace
such defective item and Seller hereby agrees that in the event Purchaser shall
incur any costs or expenses in performing and complying with the obligations of
the Landlord under Section 17.1.15 of the Lease, Seller shall promptly reimburse
Purchaser for any such costs and expenses, net of any amounts thereof recovered
by Purchaser under any Warranties, within ten (10)
22
business days after receipt by Seller of a written request for such payment from
Purchaser accompanied by copies of invoices or other back-up information
substantiating the amount of such costs and expenses incurred by Purchaser. The
obligations of Seller under this Section 26 shall survive the Closing, but only
with respect to Claims asserted in writing by Purchaser within thirteen (13)
months after the Closing.
27. Exhibits. The following exhibits are made a part hereof, with the same
force and effect as if specifically set forth herein:
Exhibit A - Legal Description
Exhibit A-1 Schedule of Easement Documents
Exhibit B - Personal Property
Exhibit C - Schedule of Lease
Exhibit C-1 Schedule of Broker Commissions
Exhibit D - Schedule of Permits
Exhibit E - Schedule of Service Contracts
Exhibit F - Schedule of Warranties
Exhibit G - Form of ▇▇▇▇▇▇▇ Money Escrow Agreement
Exhibit H - Permitted Encumbrances
Exhibit I - Form of Tenant Estoppel Certificate
Exhibit J - Form of Deed
Exhibit K - Form of ▇▇▇▇ of Sale
Exhibit L Form of Fifth Amendment to Lease
Exhibit M Designation of Person Responsible for Tax Reporting
Exhibit N Calculation of Payment Attributable to Free or Reduced Rentals
under Lease
Exhibit O Form of Storage Agreement
Exhibit P Form of Amended Link Agreement
Exhibit Q Form of Driveway and Storm Sewer Easement Amendment
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PURCHASER: SELLER:
▇▇▇▇▇ CAPITAL, INC., OPUS NORTHWEST, L.L.C.
a Georgia corporation a Delaware limited liability
company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------
Its: Senior Vice President Its: Vice President--Sales
--------------------------- ---------------------------
23
EXHIBIT A
Legal Description
▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Center,
according to the recorded plat thereof, Hennepin County, Minnesota
A-1
EXHIBIT A-1
1. Amended and Restated Declaration of Easements, Covenants and
Restrictions Regarding Link dated October ___, 2000 and recorded in the office
of the Hennepin County Registrar of Titles as Document No. ________.
2. Declaration of Covenants, Restrictions and Easements dated May 10,
1999 and recorded in the office of the Hennepin County Registrar of Titles as
Document No. 3155465.
3. Declaration of Covenants and Easements Regarding Stormwater Retention
Pond dated October 14, 1999, recorded in the office of the Hennepin County
Registrar of Title as Document No. 3216830.
4. Declaration of Driveway and Storm Sewer Easement dated October 14,
1999 recorded in the Office of the Hennepin County Registrar of Titles as
Document No. 3216831, as amended by Amended and Restated Declaration of
Driveway, Monument and Storm Sewer Easement dated _______ __, 2000.
A-1-1
EXHIBIT B
Personal Property
Monument Sign
Steel Bench and Storage Cabinet
6' ladder
8' ladder
B-1
EXHIBIT C
Lease
Metris Direct Inc.
Multi-Tenant Office Lease Agreement, dated 3/29/1999
Guaranty, dated 6/9/1999
First Amendment to Lease, dated 7/12/1999
Consent to First Amendment to Multi-Tenant Office Lease Agreement, dated
8/9/1999
Second Amendment to Multi-Tenant Office Lease Agreement, dated 12/17/1999
Consent to Second Amendment to Multi-Tenant Office Lease Agreement dated _______
(to be entered into).
Third Amendment to Multi-Tenant Office Lease Agreement, dated 4/17/2000
Consent to Third Amendment to Multi-Tenant Office Lease Agreement, dated
4/17/2000
Fourth Amendment to Multi-Tenant Office Lease Agreement, dated 6/21/2000
Consent to Fourth Amendment to Multi-Tenant Office Lease Agreement, dated
6/21/2000
Fifth Amendment to Multi-Tenant Office Lease Agreement dated __/__/00 (to be
entered into)
Consent To Fifth Amendment to Multi-Tenant Office Lease Agreement dated _______
(to be entered into).
Storage Space Licensing Agreement dated ___________, 2000 by and between Opus
Northwest, L.L.C. and Metris Direct, Inc. and guaranteed by Metris Companies,
Inc. (to be entered into)
C-1
EXHIBIT C-1
Schedule of Broker Commissions
None
C-1-1
EXHIBIT D
Schedule of Permits
Building Permit
Permit #078815
Issued Date 4/13/1999
Certificate of Occupancy - Shell
Permit #78815
Issued Date 5/31/2000
Certificate of Occupancy - Metris Direct Inc. (floors 3-8)
Permit #M1087297
Issued Date 8/25/2000
Certificate of Occupancy - Metris Direct Inc. (floors 1 & 9)
Expected Issuance Date: No later than October 15, 2000
Certificate of Occupancy - Metris Direct Inc. (floor 2)
Expected Issuance Date: No later than October 31, 2000
D-1
EXHIBIT E
Schedule of Service Contracts
Agreement dated July 10, 2000 between ABM Janitorial and Opus Northwest
Management, L.L.C. for cleaning services.
Agreement dated July 17, 2000 between BFI Waste Systems of North America and
Opus Northwest Management, L.L.C. for trash removal services.
Agreement dated May 28, 2000 between Muzak Limited Partnership and Opus
Northwest Management, L.L.C. for music services.
Agreement dated May 30, 2000 between ▇▇▇▇ Elevator Company and Opus Northwest
Management L.L.C. for elevator services.
Agreement dated June 27, 2000 between TruGreen LandCare and Opus Northwest
Management, L.L.C. for landscape services.
E-1
EXHIBIT F
Schedule of Unexpired Warranties
and Guaranties
Roofing Guarantee
Dalco Roofing & Sheet Metal, Inc.
Expires 7/25/2010
F-1