Exhibit 10.52
PURCHASE AND SALE AGREEMENT
by and between
PHL-OPCO, LP, a Delaware limited partnership,
as Seller,
and
MEDTOX LABORATORIES, INC., a Delaware corporation,
as Purchaser
Dated: December 29, 2000
TABLE OF CONTENTS Page
1. Purchase and Sale.............................................1
2. Purchase Price................................................2
3. Deposit; Escrow...............................................3
4. Seller's Initial Deliveries...................................4
5. Purchaser's Investigations....................................5
6. Covenants.....................................................6
7. Subsequent Title Defects......................................8
8. Fire and Other Casualty.......................................9
9. Condemnation.................................................10
10. The Closing..................................................10
11. Prorations...................................................12
12. Remedies.....................................................16
13. Real Estate Commissions......................................17
14. Notice.......................................................17
15. Assignment...................................................19
16. Representations of Seller....................................19
17. Representations of Purchaser.................................22
18. No Representations; "As Is" Purchase.........................22
19. Attorney's Fees and Legal Expenses...........................24
20. Section Headings; Other Terms................................24
21. Interpretation...............................................24
22. Entire Agreement.............................................24
24. Reporting of Foreign Investment..............................25
25. Exhibits.....................................................25
26. Applicable Law...............................................25
27. Confidentiality..............................................25
28. Tax Reduction Proceedings....................................25
29. Counterparts.................................................26
30. Facsimile Signatures.........................................26
31. No Offer.....................................................26
32. Business Day.................................................27
33. Strict Performance...........................................27
34. Non-Solicitation of Employees................................27
Exhibit A LEGAL DESCRIPTION OF THE LAND .........................A-1
Exhibit B FORM OF ESTOPPEL CERTIFICATE ..........................B-1
Exhibit C FORM OF DEED ..........................................C-1
Exhibit D FORM OF GENERAL ASSIGNMENT AND ASSUMPTION .............D-1
Exhibit E FORM OF ASSIGNMENT AND ASSUMPTION OF LEASES AND
SECURITY DEPOSITS .....................................E-1
Exhibit F FORM OF TENANT NOTICE .................................F-1
Exhibit G FORM OF CERTIFICATE OF NON-FOREIGN STATUS .............G-1
Exhibit H DESIGNATION AGREEMENT .................................H-1
Exhibit I FORM OF CERTIFICATE CONFIRMING REPRESENTATIONS AND
WARRANTIES ............................................I-1
Exhibit J OUTSTANDING TENANT INDUCEMENT COSTS AND BROKERAGE
COMMISSIONS PAYABLE BY SELLER..........................J-1
PURCHASE AND SALE AGREEMENT
.........THIS PURCHASE AND SALE AGREEMENT (this "Agreement") made as of December
29, 2000, by and between PHL-OPCO, LP, a Delaware limited partnership
("Seller"), and MEDTOX LABORATORIES, INC., a Delaware corporation ("Purchaser").
W I T N E S S E T H:
.........WHEREAS, Seller is the fee owner of the Land and the Improvements (each
as defined in Section 1 below) known as New Brighton I and II, as more
particularly described on Exhibit A hereto; ---------
.........WHEREAS, Seller desires to sell its entire right, title and interest
in, and Purchaser desires to purchase, the Property (as defined in Section 1
below) upon and subject to the terms and conditions hereinafter set forth;
.........NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
.........1........Purchase and Sale.
-----------------
.........Seller hereby agrees to sell and convey, subject to the Permitted
Encumbrances (as defined in Section 4(a) below), and Purchaser hereby
agrees to purchase and pay for, notwithstanding the Permitted Encumbrances,
(a) that certain tract of land (the "Land") situated
in New Brighton, ▇▇▇▇▇▇ County, Minnesota, as more particularly
described on Exhibit A hereto;
(b) all buildings, together with all other permanent improvements
situated on the Land and all fixtures and other property affixed
thereto (collectively, the "Improvements");
(c) all rights and appurtenances pertaining to the
Land and the Improvements, including any right, title and interest of
Seller (but without warranty whether statutory, express or implied) in
and to adjacent streets, alleys or rights-of-way;
(d) any furniture, furnishings, equipment, systems,
facilities and machinery, and conduits to provide life safety, heat,
ventilation, air conditioning, electrical power, lighting, plumbing,
security, gas, sewer and water thereto, to the extent owned by Seller
and now located on or within the Land and the Improvements and used in
connection therewith (collectively, the "Personal Property");
(e) all of Seller's right, title and interest as
landlord in the leases for space situated within the Improvements
(collectively, the "Space Leases"), all prepaid rents under the Space
Leases applicable to the period from and after the Closing (as defined
in Section 10 below), and security and other deposits under the Space
Leases;
(f) all of Seller's interest, to the extent such
interest may be lawfully assigned to Purchaser without cost to Seller,
in all contracts relating to the improvement, maintenance or operation
of, or the provision of services or supplies to, the Land or the
Improvements (such as trash removal or elevator, HVAC or landscaping
maintenance contracts) which have been delivered to Purchaser by Seller
according to Section 4(e), but excluding any contract with Seller's
managing or leasing agents and excluding any other contracts that
Seller is required to terminate by Closing in accordance with Section
6(h) (collectively, the "Service Contracts");
(g) all of Seller's interest, to the extent such
interest may be lawfully assigned to Purchaser without cost to Seller,
in all unexpired warranties, guaranties and bonds (including
manufacturers' warranties on Personal Property and contractors'
warranties for tenant finish work) that relate to any of the
Improvements or Personal Property (the "Warranties");
(h) all of Seller's interest, to the extent such
interest may be lawfully assigned to Purchaser without cost to Seller,
in all governmental permits, licenses, certificates and authorizations,
including, without limitation, certificates of occupancy, relating to
the Land, Improvements or Personal Property (the "Permits"); and
(i) all of Seller's interest, to the extent such
interest may be lawfully assigned to Purchaser without cost to Seller,
in all intangible property, including, without limitation, the name
"New Brighton Business Center," relating to the Land, Improvements or
Personal Property.
.........The matters described in items (a) through (i) above are
hereinafter collectively referred to as the "Property." To the extent that any
of the personal property described in clause (d) above is owned by tenants or
other occupants of space at the Property or owned by any service provider
pursuant to any of the Service Contracts or owned by a utility pursuant to one
or more Permitted Encumbrances, it shall be excluded from the definition of the
term Property and from the term Personal Property as used in this Agreement.
.........2........Purchase Price.
--------------
.........The total purchase price (the "Purchase Price") to be paid by
Purchaser to Seller for the Property is SIX MILLION THREE HUNDRED FIFTY
THOUSAND DOLLARS ($6,350,000). The Purchase Price is to be paid by
Purchaser as follows:
(a) the amount of ONE HUNDRED FIFTY THOUSAND DOLLARS
($150,000) (the "Initial Deposit") upon the execution by Purchaser of
this Agreement by check, subject to collection, payable to the order
of, or by wire transfer in immediately available funds sent to Chicago
Title Insurance Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇ ▇▇▇▇▇ (in such capacity, "Escrow Agent") to
be held in escrow pursuant to the terms set forth in Section 3 below;
(b) the amount of TWO HUNDRED THOUSAND DOLLARS
($200,000) (the "Additional Deposit"), prior to the expiration of the
Inspection Period (as defined in Section 5) if Purchaser does not elect
to terminate this Agreement pursuant to Section 5, by cashier's or
certified check payable to the order of, or by wire transfer in
immediately available funds sent to Escrow Agent to be held in escrow
pursuant to the terms set forth in Section 3 below;
(c) In the event Purchaser elects to extend the
originally-scheduled Closing Date as provided in Section 10 below, the
amount of TWO HUNDRED THOUSAND DOLLARS ($200,000) (the "Extension
Deposit"), by cashier's or certified check payable to the order of, or
wire transfer in immediately available funds sent to Escrow Agent to be
held in escrow pursuant to the terms set forth in Section 3 below (the
Initial Deposit and, when and if made by Purchaser, the Additional
Deposit and the Extension Deposit are collectively referred to in this
Agreement as the "Deposit");
(d) the balance of the Purchase Price, as adjusted
pursuant to the terms of this Agreement, at the Closing by wire
transfer in immediately available funds sent to Escrow Agent. The wire
transfer required by this Section 2(d) must be received by Escrow Agent
not later than 12:00 noon (Minneapolis time) on the Closing Date (as
defined in Section 10 below). If such wire transfer is received later
than 12:00 noon (Minneapolis time) on the Closing Date, but is
nevertheless received by 5:00 p.m. (Minneapolis time) on the Closing
Date, then all prorations made pursuant to Section 11 hereof will
remain unchanged but Purchaser will pay to Seller an additional ONE
THOUSAND SIX HUNDRED EIGHTY DOLLARS ($1,680) to compensate Seller for
the additional day's interest Seller will be obligated to pay its
lender and the interest income Seller will not be able to obtain by
investing its proceeds on the Closing Date.
.........3........Deposit; Escrow.
---------------
.........At the Closing, Escrow Agent shall deliver the Deposit to
Seller and/or otherwise in accordance with written instructions signed by Seller
and the Deposit shall be applied to the Purchase Price. The Deposit shall be
held in an interest-bearing account at a bank or trust company selected by
Escrow Agent and approved by Seller and all interest earned thereon shall be
paid to the party to which the Deposit shall be paid. Escrow Agent makes no
representations or warranties as to the yield of the interest-bearing account in
which the Deposit is held. In all other cases, if either party makes a demand
upon Escrow Agent for delivery of the Deposit, or any portion thereof, then
Escrow Agent shall give notice to the non-demanding party of such demand;
provided, however, no such notice shall be required with respect to a demand for
delivery of the Deposit made by Purchaser upon Escrow Agent in connection with
the termination of this Agreement by Purchaser during the Inspection Period in
accordance with Section 5. If a notice of objection to the proposed payment is
not received by Escrow Agent from the non-demanding party within seven (7)
business days after the giving of notice by Escrow Agent, time being of the
essence, then Escrow Agent is hereby authorized to deliver the Deposit or the
demanded portion to the party which made the demand. If Escrow Agent receives a
notice of objection within such seven (7) business day period, or if for any
other reason Escrow Agent in good faith elects not to deliver the Deposit or the
demanded portion thereof, then Escrow Agent shall continue to hold the Deposit
or the demanded portion thereof and thereafter pay the same to the party
entitled when Escrow Agent receives (a) a notice from the non-requesting party
withdrawing the objection, (b) a notice signed by both parties directing the
disposition of the Deposit or the demanded portion thereof or (c) a judgment or
order of a court of competent jurisdiction. In the event of any dispute or doubt
as to the genuineness of any document or signature, or uncertainty as to Escrow
Agent's duties, then Escrow Agent shall have the right to either continue to
hold the Deposit or the demanded portion thereof in escrow or to pay the Deposit
or the demanded portion thereof into court pursuant to relevant statute. The
parties agree jointly to defend, indemnify and hold harmless Escrow Agent
against and from any claim, judgment, loss, liability, cost or expense
(including, without limitation, reasonable attorneys' fees and disbursements)
resulting from any dispute or litigation arising out of or concerning Escrow
Agent's duties or services hereunder. Escrow Agent shall not be liable for any
error in judgment or for any act done or step taken or omitted in good faith, or
for any mistake of fact or law, except for Escrow Agent's own negligence or
willful misconduct. The parties acknowledge that Escrow Agent is merely a
stakeholder. In the event Escrow Agent shall require the execution and delivery
of any additional escrow instructions as a condition to its acting as Escrow
Agent, the terms and provisions of this Section 3 shall govern in the event of
any conflict. The signing of this Agreement by Escrow Agent is only to evidence
Escrow Agent's acceptance of the terms and conditions of this Section 3.
.........4........Seller's Initial Deliveries.
---------------------------
.........Prior to the execution and delivery of this Agreement by both
Seller and Purchaser, Seller has delivered or caused to be delivered to
Purchaser the following:
(a) a current title insurance commitment or
preliminary title report issued by Chicago Title Insurance Company
("Title Company"), including copies of all recorded exceptions to title
referred to therein (collectively, the "Title Commitment"), showing the
status of title to the Land and Improvements according to the Title
Company. Purchaser will review the Title Commitment as part of its
investigations hereunder and will have the right to negotiate with
Title Company in order to cause Title Company to modify the Title
Commitment to reflect only those exceptions to title that are
acceptable to Purchaser. If Purchaser does not terminate this Agreement
pursuant to Section 5, then the exceptions to title disclosed in the
Title Commitment as of the expiration of the Inspection Period (as
defined in Section 5), i.e., including any endorsements or supplements
to the Title Commitment issued prior to such expiration, and those
matters affecting title that are reflected on the Survey (as defined in
Section 4(b) below) will be the "Permitted Encumbrances" hereunder,
excluding (i) any delinquent taxes or assessments, or (ii) any monetary
liens or encumbrances arising by, through or under Seller. At or prior
to Closing, Seller will cause any delinquent taxes or assessments and
any monetary liens or encumbrances arising by, through or under Seller
to be paid off or otherwise removed of record;
(b) a copy of the survey of the Land and Improvements
obtained by Seller when Seller acquired the same, or any update thereof
since obtained by Seller (the "Survey"). As part of its investigations
hereunder, Purchaser will have the right, at its expense, to have the
Survey updated by the surveyor who prepared the same or by another
surveyor selected by Purchaser. If Purchaser elects to obtain any such
update, Purchaser will provide copies thereof to Seller and Title
Company, any matters affecting title shown thereon will be deemed a
part of the Permitted Encumbrances and such update will otherwise be
deemed a part of the "Survey" under this Agreement;
(c) a list of all movable furniture and equipment included in the Personal
Property;
(d) copies of all Space Leases in Seller's
possession, excluding, however, that certain Space Lease between
Phoenix Mutual Life Insurance Company, a predecessor-in-interest to
Seller, as landlord, and Medtox Laboratories, Inc., a
predecessor-in-interest to Psychiatric Diagnostic Laboratories of
America, Inc., now known as Purchaser, as tenant, executed as of March
5, 1992 (as amended from time to time, the "Purchaser's Space Lease");
(e) copies of all written Services Contracts in Seller's
possession;
(f) a current rent roll for the Property (the "Rent
Roll") and copies of the real property tax bills for the last two (2)
tax years of the jurisdiction in which the Property is located (or for
such shorter period as Seller has owned the Property) and a copy of any
notice of valuation received by Seller since the last tax ▇▇▇▇; and
(g) copies of all environmental assessment reports
prepared by third parties concerning the Property, addressed to Seller
and in Seller's possession, including the Phase I environmental
assessment report concerning the Property that Seller caused to be
prepared in connection with Seller's acquisition of the Property.
.........5........Purchaser's Investigations.
--------------------------
.........Purchaser will have until 5:00 p.m., Minneapolis time, on
January 31, 2001 (the "Inspection Period") to investigate the Property and all
matters relevant to its acquisition, ownership and operation. If, prior to the
expiration of the Inspection Period, Purchaser gives Seller written notice
setting forth Purchaser's dissatisfaction with the Property for any reason
whatsoever, and states in such notice Purchaser's unequivocal election to
terminate this Agreement, then (i) Escrow Agent will promptly return the Deposit
to Purchaser, and (ii) Purchaser will, as consideration for the investigation
privileges afforded to Purchaser by Seller hereunder, deliver to Seller copies
of all studies, inspection reports and similar matters made for Purchaser by
third parties engaged by Purchaser to do so during the Inspection Period
concerning the Property, whereupon this Agreement will terminate and both
parties will be relieved of any further obligations hereunder, except for those
obligations which expressly survive any termination hereof. If Purchaser does
not give such termination notice prior to the expiration of the Inspection
Period, then this Agreement will remain in full force and effect in accordance
with its terms and the Deposit will become nonrefundable to Purchaser for any
reason whatsoever, except as expressly provided to the contrary in Section 6(e),
7, 8, 9, 12(a) or 16. If Purchaser does not give such termination notice prior
to the expiration of the Inspection Period but fails to deliver the Additional
Deposit in accordance with Section 2(b) above prior to the expiration of the
Inspection Period, then this Agreement will remain in full force and effect as
provided above, but Purchaser will be deemed in default and, if Purchaser does
not cure such default within one (1) business day after delivery of notice
thereof by Seller to Purchaser, Seller may, at Seller's option, terminate this
Agreement by notice to Purchaser and Escrow Agent whereupon Seller shall receive
the Deposit as liquidated damages and not as a penalty.
.........6........Covenants.
---------
.........Purchaser covenants and agrees with Seller that prior to the
Closing, Purchaser, in the conduct of its due diligence investigation of the
Property or otherwise, will not interfere with or hinder the operation of the
Property or the other tenants or occupants thereof. Seller and Purchaser each
acknowledge that Purchaser is a tenant of the Property under the Purchaser's
Space Lease, and that the foregoing covenant shall not apply to Purchaser in its
capacity as "tenant" under the Purchaser's Space Lease. Seller covenants and
agrees with Purchaser that, from the date hereof until the Closing, Seller will:
(a) provide Purchaser and Purchaser's agents and
representatives with reasonable access to the Property between 9:00
a.m. and 5:00 p.m. on weekdays, subject to the rights of the Property's
tenants or occupants and provided that: (i) Purchaser will notify
Seller not less than three (3) business days in advance of entering the
Property; (ii) neither Purchaser nor any agent or representative of
Purchaser will communicate directly with any tenant of the Property
without the approval of and with, at Seller's option, the accompaniment
by, Seller or Seller's manager for the Property; (iii) Purchaser will
keep the Property free and clear of any mechanic's or materialmen's
liens arising out of any such entry, promptly restore any damage caused
by Purchaser or its representatives, perform all investigations in a
safe and professional manner, not allow any dangerous or hazardous
conditions and comply with all applicable laws and governmental
regulations; (iv) Seller or any of its representatives or agents may
accompany Purchaser and any of its representatives and agents during
their visit to the Property; (v) Purchaser will not perform any
invasive testing of the Property without Seller's prior written
consent; and (vi) prior to Purchaser's or its agent's or
representative's entry upon the Property, Purchaser will deliver to
Seller evidence of such party's liability insurance coverage by an
insurer reasonably acceptable to Seller and with combined single limits
of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence.
Purchaser agrees to indemnify and hold harmless Seller, and hereby
waives and releases Seller, from all liability, claims, loss, liens,
costs, expenses and damages, including reasonable attorneys' fees and
expenses, arising out of, and will repair any damages resulting to the
Property due to, such access or, if requested by Seller, reimburse
Seller for all expenses incurred by Seller in repairing such damages if
Purchaser does not promptly repair such damages. The foregoing
agreement of indemnity, repair and reimbursement shall survive Closing
and/or any termination of this Agreement;
(b) provide Purchaser and Purchaser's agents and
representatives with reasonable access, between 9:00 a.m. and 5:00 p.m.
on weekdays, and upon at least one (1) business day's prior notice, to
all tenant files and books and records concerning the operation and
maintenance of the Property (including, without limitation, the
Property's operating income and expenses), to the extent that any of
the same are in Seller's possession, at the offices in Denver, Colorado
and Bloomington, Minnesota where Seller maintains the same;
(c) not enter into (i) any new Space Lease, or (ii)
any termination, modification, amendment or renewal of any existing
Space Lease, except pursuant to an existing provision of such Space
Lease (collectively, a "New Lease"), without Purchaser's prior written
approval, which approval will not be unreasonably withheld or delayed.
If Seller desires to enter into a New Lease, Seller will deliver
written notice to Purchaser requesting Purchaser's approval thereof and
providing therewith the most current draft of the proposed New Lease
and copies of such information concerning the proposed tenant as Seller
may have in its possession. Purchaser will respond to Seller's request
for approval of the New Lease transaction within five (5) business days
after the delivery of Seller's notice. Unless Purchaser delivers
written notice to Seller disapproving the proposed New Lease within
such five (5) business days, Purchaser will be deemed to have approved
such New Lease transaction for all purposes of this Agreement and
Seller may proceed to consummate such New Lease in the form most
recently approved (or deemed approved) by Purchaser;
(d) not enter into any new Service Contracts which
cannot by their express terms be terminated on not more than thirty
(30) days' notice and that will survive Closing or otherwise affect the
use, operation or enjoyment of the Property after Closing, without
Purchaser's prior written consent, which consent will not be
unreasonably withheld or delayed, and which consent will be deemed to
have been given by Purchaser if Purchaser does not notify Seller to the
contrary within five (5) business days after receipt of Seller's
request for such consent;
(e) except with respect to Purchaser's Space Lease,
use commercially reasonable efforts to obtain and deliver to Purchaser
a signed estoppel certificate in substantially in the form of Exhibit B
attached hereto from each of the tenants under the Space Leases (except
that if any Space Lease prescribes a different form of estoppel
certificate, Seller will only be required to use commercially
reasonable efforts to obtain an estoppel certificate from such tenant
in such prescribed form). In the event Seller is unable to obtain and
deliver to Purchaser on or before the date which is five (5) business
days prior to the Closing Date a Conforming Estoppel (as defined below)
from tenants occupying not less than seventy-five percent (75%) of the
leasable space within the Property that has been leased under the Space
Leases, excluding the leasable space under Purchaser's Space Lease,
Purchaser may elect to terminate this Agreement by giving notice to
Seller and to receive a refund in full of the Deposit by giving Seller
notice of such termination. As used herein, a "Conforming Estoppel"
will mean either (1) an estoppel certificate signed by the tenant under
a Space Lease and in the form of Exhibit B (or if any Space Lease
prescribes a different form of estoppel certificate, then an estoppel
certificate for such Space Lease in such prescribed form will also be
deemed acceptable), with all blanks filled in with information that
conforms to the information set forth in the Rent Roll delivered to
Purchaser pursuant to Section 4(f) above and with no additional
information added that is inconsistent with the statements set forth in
such form or with the information set forth in such Rent Roll; or (2)
an estoppel certificate that is otherwise acceptable to Purchaser in
its sole and absolute discretion, provided that if Seller delivers a
signed estoppel certificate to Purchaser for review and Purchaser does
not notify Seller that such estoppel certificate is unacceptable within
five (5) business days after delivery thereof, then such estoppel
certificate will be deemed accepted by Purchaser;
(f) not create or permit the creation of any title
exceptions, such as easements or liens encumbering the Property (unless
caused by Purchaser), without Purchaser's prior written approval, which
shall not be unreasonably withheld or delayed;
(g) continue to maintain the Property consistent with industry
standards in the marketplace; and
(h) at or prior to Closing, terminate (i) any
contract with Seller's managing or leasing agents for the Property; and
(ii) any contract that would otherwise constitute a Service Contract
but as to which Purchaser notifies Seller, by the expiration of the
Inspection Period, that Purchaser desires Seller to terminate by
Closing, provided that any contract Purchaser so requests Seller to
terminate must, in accordance with the terms and provisions thereof, be
terminable by Seller without penalty (unless Purchaser agrees to pay
such penalty) at or prior to Closing.
.........7........Subsequent Title Defects.
------------------------
.........If, subsequent to the expiration of the Inspection Period and
prior to Closing, Purchaser becomes aware of the existence of any encumbrances,
encroachments, defects in or other matters affecting title, other than the
Permitted Encumbrances and other than any delinquent taxes or assessments or any
monetary liens or encumbrances arising by, through or under Seller which Seller
is obligated to remove prior to Closing pursuant to Section 4(a), that render
title to the Property unmarketable and are unacceptable to Purchaser, Purchaser
shall as soon as practicable notify Seller in writing of such fact and the
reasons therefor ("Purchaser's Title Objections"). Seller shall have the right
but not the obligation to eliminate or otherwise cure Purchaser's Title
Objections (which shall include causing the Title Company to "insure over" any
Purchaser's Title Objections), provided that (i) Seller shall be obligated to
cure any liens created by Seller after the date hereof and (ii) if Seller
receives notice of any Purchaser's Title Objections, Seller shall notify
Purchaser in writing within five (5) business days after its receipt thereof as
to whether Seller intends to eliminate or cure Purchaser's Title Objections and
if Seller, in its sole discretion, elects to eliminate or cure Purchaser's Title
Objections, Seller shall have the right to postpone the Closing for a period of
up to thirty (30) days anything else in this Agreement to the contrary
notwithstanding. If Seller is unable or unwilling to cure Purchaser's Title
Objections, Purchaser (as its sole and exclusive remedy) may terminate this
Agreement by notice in writing to Seller on or before five (5) business days
following notice from Seller that it is unwilling or unable to cure or modify
Purchaser's Title Objections, failing which Purchaser shall accept such title as
Seller is able or willing to deliver without any reduction in the Purchase
Price, in which event such uncured Purchaser's Title Objections shall be
included in the term "Permitted Encumbrances." Upon a termination pursuant to
this Section, the parties shall have no further rights or obligations hereunder,
except those which expressly survive termination, and the Deposit shall be
returned to Purchaser.
.........8........Fire and Other Casualty.
-----------------------
(a) Notice and Estimate. In the event that the
Improvements should be damaged by any casualty prior to Closing, Seller
will promptly give Purchaser written notice of such occurrence, and as
soon thereafter as practicable, will provide Purchaser with an estimate
made by an architect, engineer or contractor selected by Seller and
approved by Purchaser (which approval will not be unreasonably withheld
or delayed) of the cost and amount of time required to repair such
damage. If it is so estimated that it will take longer than until the
Closing Date to repair such damage and if neither party terminates this
Agreement pursuant to Section 8(c), then Purchaser will be given an
opportunity to review and approve any construction contract which
Seller proposes to enter into to have such damage repaired and
Purchaser will not unreasonably withhold or delay such approval.
(b) Minor Damage. If the estimated cost of repairing
such damage is less than or equal to ten percent (10%) of the Purchase
Price, then Seller will promptly contract for and commence the repairs
and complete so much thereof as may be accomplished prior to the
Closing Date. In the event such repairs are not completed on or before
the Closing Date, Seller will assign to Purchaser so much of the
insurance proceeds resulting from such damage as have not then been
expended for repairs, Seller will assign to Purchaser, and Purchaser
will assume, the rights and obligations under the construction contract
pursuant to which such repairs are being completed, and at Closing, the
Purchase Price will be reduced both to the extent of any deductible
provided for in Seller's casualty policy that has not been expended by
Seller as of Closing for repairs and to the extent the insurance
proceeds are insufficient to cover the amounts due under the
construction contract or amounts estimated to make or complete such
repairs.
(c) Major Damage. If the estimated cost of such
repairs is more than ten percent (10%) of the Purchase Price, then
either Seller or Purchaser may elect to terminate this Agreement upon
written notice to the other given within ten (10) days after both
parties' receipt of the estimate in which event Escrow Agent will
return the Deposit to Purchaser and both parties will be relieved of
any further obligations hereunder, except for those obligations which
expressly survive any termination hereof; however, if neither party
elects to so terminate this Agreement, then this Agreement will remain
in full force and effect and the parties will proceed in accordance
with Section 8(b).
.........9........Condemnation.
------------
.........Within seven (7) business days after service on Seller of a
suit for condemnation of any part of the Property by an appropriate governmental
authority, Seller will notify Purchaser of the pendency of such proceedings. In
the event of the condemnation of any portion of the Property or the sale of any
portion of the Property in lieu of condemnation, this Agreement shall remain in
full force and effect, and in such event Seller at the Closing shall assign to
Purchaser any and all claims for the proceeds of such condemnation, and
Purchaser shall take title to the remainder of the Property with the assignment
of such proceeds and subject to such condemnation and without reduction in the
Purchase Price; provided, however, that if such condemnation would result in the
taking (but not the forced grant of an easement or right of way for municipal
sewerage or utility lines) of at least fifteen percent (15%) of the Land on
which Improvements are situated, then Purchaser may terminate this Agreement by
notice in writing to Seller sent within ten (10) days following notice in
writing by Seller to Purchaser of such condemnation of the Property, in which
event the parties shall have no further rights or obligations hereunder (except
those which expressly survive termination) and the Deposit shall be returned to
Purchaser. If Purchaser does not elect to terminate in writing within said ten
(10) day period following such notice by Seller, Purchaser shall be deemed to
have waived all rights to terminate pursuant to this Section and this Agreement
shall remain in full force and effect. Purchaser shall perform its own due
diligence to determine, to Purchaser's satisfaction, whether there is any
pending or threatened condemnation or eminent domain proceeding which would
affect the Property.
.........10.......The Closing.
-----------
.........The consummation of the transaction contemplated by this
Agreement (the "Closing") shall take place through an escrow with Escrow Agent
on or before February 15, 2001 ("Closing Date"), TIME BEING OF THE ESSENCE.
Purchaser will have the one-time right to extend the Closing Date by up to ten
(10) business days by delivering written notice of Purchaser's exercise of such
extension right to Seller and Escrow Agent at least five (5) days prior to the
originally-scheduled Closing Date and simultaneously delivering to Escrow Agent,
by cashier's or certified check or by wire transfer of immediately available
funds, the Extension Deposit, which Extension Deposit will be deemed a part of
the Deposit under this Agreement, will apply as a credit against the Purchase
Price and will not be refundable to Purchaser for any reason except as expressly
provided to the contrary in Sections 6(e), 7, 8, 9, 12(a) and 16. At the
Closing, the following shall occur:
(a) Seller shall deliver to Purchaser a duly executed
and acknowledged Limited Warranty Deed (the "Deed") in substantially
the form attached hereto as Exhibit C, and Seller and Purchaser shall
each execute and deliver to each other a General Assignment and
Assumption in substantially the form attached hereto as Exhibit D.
Seller shall include a statement on the Deed that Seller has no
knowledge of any "▇▇▇▇▇" on the Property within the meaning of Minn.
Stat. ss. 103I.005, subdivision 21.
(b) Purchaser shall pay the balance of the Purchase
Price as provided in Section 2(d) hereof and the parties shall execute
settlement statements reflecting the Purchase Price, the Deposit and
the prorations, adjustments and closing costs described in Section 11.
(c) Seller and Purchaser shall enter into an
Assignment and Assumption of Leases and Security Deposits substantially
in the form attached hereto as Exhibit E whereby Seller shall deliver
as provided in this Agreement and assign to Purchaser Seller's interest
as landlord in the (i) the existing Space Leases affecting the Property
and (ii) any and all deposits paid to Seller under the Space Leases and
not previously applied in accordance with the applicable Space Lease
and whereby Purchaser shall assume from and after the Closing all of
the obligations of the landlord under the Space Leases including the
obligation to account for the security deposits assigned to Purchaser.
(d) The parties shall execute a written notice
addressed to each tenant under the Space Leases notifying such tenant
of the acquisition of the Property by Purchaser in substantially the
form attached hereto as Exhibit F. The notices shall be delivered to
Escrow Agent with instructions to forward the notices to Purchaser at
Closing, whereupon Purchaser shall deliver the notices to the tenants
immediately after the Closing. The costs of sending the notices shall
be shared equally by Purchaser and Seller.
(e) Seller shall deliver to Purchaser each of the
executed Space Leases (to the extent such Space Leases are within
Seller's possession).
(f) The present insurance coverage on the Property
shall be terminated at Closing and there shall be no proration. Public
utility services shall be transferred or terminated as of the date of
Closing. The provisions of this Section shall survive Closing.
(g) Pursuant to the terms and conditions of this
Agreement, possession of the Property shall be delivered to Purchaser
at Closing, subject to the rights of tenants under the Space Leases and
the other Permitted Encumbrances.
(h) Seller shall deliver to Purchaser all keys to all locks on
the Property within Seller's possession (or the possession of its
agents).
(i) Purchaser shall execute, acknowledge and deliver
such state and local transfer or sales tax returns and statements as
are required for the transfer of the Property (including the
Certificate of Real Estate Value required in order to record the Deed).
(j) Seller shall deliver to Purchaser a "non-foreign
affidavit" in substantially the form of Exhibit G acknowledging that
Seller is not a nonresident alien within the meaning of Section 1445 of
the Internal Revenue Code of 1986, as amended.
(k) Seller and Purchaser shall each execute and
deliver to the other party such disclosures as may be required by
applicable law.
(l) Seller and Purchaser shall each reasonably
cooperate with each other to effect a tax-free exchange of the
Property, but only to the extent that such cooperation does not (i)
cause such party to incur any liability or otherwise increase such
party's risk relating to the transaction contemplated by this
Agreement, (ii) cause such party to incur any monetary obligations or
to otherwise expend any monies other than those amounts that would be
payable notwithstanding a tax-free exchange of the Property and which
amounts are otherwise expressly assumed by such party pursuant to this
Agreement or (iii) otherwise result in a reduction of such party's
rights, remedies and privileges hereunder or under applicable federal,
state, local or other law or an increase of such party's obligations or
duties hereunder or under any applicable federal, state, local or other
law.
(m) Each party shall deliver to the other party such
documentary and other evidence as may be reasonably required by such
other party or the Title Company including, without limitation, such
documents evidencing its good standing and the authority of the person
or persons who are executing the various documents on its behalf in
connection with this Agreement, a Designation Agreement in
substantially the form attached hereto as Exhibit H, and a certificate
confirming such party's representations and warranties in substantially
the form attached hereto as Exhibit I.
.........11.......Prorations.
----------
(a) Taxes. General real estate taxes, sewer charges
and assessments payable in the then current calendar year relating to
the Property shall be prorated as of the Closing. If Closing shall
occur before the actual taxes for the then current tax year are known,
Purchaser shall assume and pay all such unknown taxes and the
apportionment of taxes shall be upon the basis of the taxes for the
Property for the immediately preceding year. Such proration shall be a
final settlement between Seller and Purchaser, regardless of whether
the taxes for the current tax year are thereafter determined to be more
or less than the taxes upon which such proration was based. All special
taxes or assessments payable on or before the Closing shall be prorated
as set forth above, and those payable after the Closing shall be paid
by Purchaser.
(b) Fixed, Minimum and Base Rents. Subject to Section
11 (h) below, Seller shall be entitled to fixed, minimum and base rents
which are due or past due or not yet due but accrued under the terms of
the Space Leases, prorated to midnight of the day prior to the Closing,
regardless of when such payments are actually made. At Closing, rents
received by Seller for the month of Closing will be prorated as
provided below, but there shall be no proration at Closing of unpaid or
delinquent rents. All payments of fixed, minimum or base rents received
by either party for the month of Closing shall be prorated based upon
the number of days in that month occurring before the Closing, and the
party receiving the payment shall credit (in the case of payment
received by Seller before the Closing) or remit (in the case of payment
received by Purchaser on or after the Closing) to the other party its
proportionate share.
(c) Adjustment of Reimbursable Expenses. To the
extent tenants under the Space Leases are obligated to reimburse the
landlord for operating expenses, common area maintenance charges, taxes
or other costs (collectively, "Reimbursable Expenses"), whether through
the payment of monthly estimated payments subject to annual
reconciliation or otherwise, Seller and Purchaser will adjust between
themselves the difference between the Reimbursable Expenses actually
incurred by Seller during the portion of the calendar year in which the
Closing occurs prior to the Closing ("Seller's Ownership Period") and
the estimated payments of Reimbursable Expenses received by Seller from
the tenants during Seller's Ownership Period. At the Closing, Seller
will deliver to Purchaser a statement (the "Reimbursable Expenses
Statement") showing (i) the actual Reimbursable Expenses incurred by
Seller during Seller's Ownership Period (with respect to taxes, only
those taxes paid by Seller during Seller's Ownership Period for which
estimated payments are being made by the tenants during such period
will be included in such statement of actual Reimbursable Expenses;
taxes paid during such period but for which estimated payments were
collected in a prior period will not be included); (ii) the estimated
payments of Reimbursable Expenses for Seller's Ownership Period
received by Seller from each tenant (only estimated payments received
for Seller's Ownership Period will be included; payments for a prior
period or that constitute reconciliation payments for a prior period
will not be included), (iii) each tenant's share (pursuant to its Space
Lease) of the actual Reimbursable Expenses incurred by Seller during
Seller's Ownership Period; (iv) the amount, if any, by which each
tenant's estimated payments exceeds its share of actual Reimbursable
Expenses for Seller's Ownership Period (an "Overpayment"), or the
amount, if any, by which each tenant's share of actual Reimbursable
Expenses for Seller's Ownership Period exceeds its estimated payments
(an "Underpayment"); and (v) a summary of all Overpayments and
Underpayments for all tenants. If the total of all Overpayments exceeds
the total of all Underpayments, Purchaser will receive a credit from
Seller at Closing for the difference. If the amount of all
Underpayments exceeds the amount of all Overpayments, Seller will
receive a credit from Purchaser at Closing for the difference. Seller
will prepare the Reimbursable Expenses Statement based on the best
information available to Seller at that time. However, Seller will have
the right, within sixty (60) days after Closing, to prepare and deliver
to Purchaser a supplemental Reimbursable Expenses Statement showing any
Reimbursable Expenses incurred by Seller, or payments of estimated
Reimbursable Expenses made by tenants to Seller, during Seller's
Ownership Period that were not known to Seller as of Closing. Within
ten (10) days after delivery of such supplemental statement, the
parties will adjust in cash any additional amounts due to or from each
other. The adjustment of Reimbursable Expenses between Seller and
Purchaser provided for in this Section 11(c), including the
supplemental statement and adjustment described above, will constitute
a final settlement and, notwithstanding the provisions of Section 11
(h) below, Purchaser will be entitled to retain all payments of
Reimbursable Expenses received from the tenants under the Space Leases
subsequent to Closing.
(d) Prepaid Rents and Security Deposits. All prepaid
rents and security and other deposits of all tenants under Space Leases
paid to Seller and not theretofore applied in accordance with any such
Space Lease, with interest thereon to the extent any interest is
required to be paid to such tenants, shall be delivered by Seller to
Purchaser at the Closing, or Purchaser shall receive a credit therefor
at Closing.
(e) Tenant Inducement Costs; Brokerage Commissions.
Seller shall be responsible for the payment of all Tenant Inducement
Costs and Leasing Commissions (as such terms are hereinafter defined)
that are required to be paid as a result of any Space Lease, or any
amendment to a Space Lease, that was signed by Seller during the period
from Seller's acquisition of the Property to the date of this
Agreement, including, without limitation, those outstanding Tenant
Inducement Costs and Leasing Commissions listed on Exhibit J attached
hereto, and including any New Lease approved or deemed approved by
Purchaser pursuant to Section 6(c) and entered into between Seller, as
landlord, and Qualex, Inc., as tenant, prior to Closing (the "New
Qualex Lease"), but excluding (i) any refurbishment allowance or
similar Tenant Inducement Cost that may become payable pursuant to the
express terms of such a Space Lease or amendment if the tenant
thereunder exercises subsequent to the date of this Agreement a
renewal, extension, expansion or similar option thereunder; and (ii)
any Leasing Commissions that Purchaser obligates itself to pay to its
broker or a tenant's broker with respect to any such renewal,
extension, expansion or similar option. Except with respect to the New
Qualex Lease, Seller shall have no obligation to Purchaser for the
payment of any other Tenant Inducement Costs or Leasing Commissions,
including, without limitation, any Tenant Inducement Costs or Leasing
Commissions payable with respect to any New Lease approved or deemed
approved by Purchaser pursuant to Section 6(c). If any Leasing
Commission or Tenant Inducement Cost the payment of which is Seller's
responsibility, as provided above, has not been paid by Closing, then
Purchaser will receive a credit at Closing for the unpaid amount. If
before Closing Seller pays any Leasing Commission or Tenant Inducement
Cost required to be paid before Closing but the payment of which is
Purchaser's responsibility (such as a Leasing Commission due upon
execution of a New Lease approved or deemed approved by Purchaser
pursuant to Section 6(c)) but excluding the New Qualex Lease, then
Seller will receive a credit from Purchaser at Closing for the amount
so paid. For the purposes hereof, "Tenant Inducement Costs" shall mean
any out-of-pocket payments required under a Space Lease to be paid by
the landlord thereunder to or for the benefit of the tenant thereunder
which is in the nature of a tenant inducement, including, without
limitation, tenant improvement costs (whether paid by the landlord to
the tenant as a cash allowance or incurred by the landlord in the
performance of such tenant improvements), lease buyout costs, and
moving, design and refurbishment allowances. The term "Tenant
Inducement Costs" shall not include loss of income resulting from any
free rental period, it being agreed that Seller shall bear the loss
resulting from any free rental period until the Closing Date and that
Purchaser shall bear the loss from and after the Closing. The term
"Leasing Commissions" shall mean any brokerage commission, fee or other
compensation owing in connection with any Space Lease.
(f) Other Items of Expense or Receipt. All other
customarily prorated items of expense or receipt shall be prorated
between the parties hereto as of the Closing. Except with respect to
items prorated at the Closing, Seller shall be responsible for payment
of any and all bills or charges incurred on or prior to the Closing for
work, services, supplies or materials, and Purchaser shall be
responsible for payment of any and all bills or charges incurred after
the Closing for work, services, supplies or materials. Unless otherwise
provided for in this Agreement, Purchaser shall not purchase, nor shall
there be any proration credit given for, any of Seller's receivables
arising from the operation of the Property.
(g) Adjustments. Prorations shall be accomplished by an
adjustment in the ----------- Purchase Price due Seller on the
Closing, except as otherwise expressly provided in this Agreement.
(h) Collections and Application of Payments after
Closing. After the Closing, Purchaser shall ▇▇▇▇ tenants for all
amounts due under Space Leases, including amounts accruing prior to the
Closing. Any amounts or charges payable by tenants on or after the
Closing with respect to which Seller is entitled to receive a share
under this Agreement, which are not paid within sixty (60) days after
the due date, and any amount due and owing Seller before the Closing by
tenants under the Space Leases which ere unpaid as of the Closing, are
collectively herein called "Delinquent Amounts". Notwithstanding the
foregoing or any direction from tenants to the contrary, rental and
other payments received by Purchaser or Seller from tenants shall be
first applied toward the payment of rent and other charges owed to
Purchaser for the month in which the payment is received, then toward
the payment of rent and other charges owed for the month in which the
Closing occurs, in which case such payment shall be prorated to the
Closing, then toward any Delinquent Amounts, and any excess monies
received shall be applied toward any other amounts due to Purchaser.
Purchaser may not waive any Delinquent Amounts nor modify a Space Lease
so as to reduce amounts or charges owed under Leases for any period in
which Seller is entitled to receive a share of charges or amounts,
without first obtaining Seller's written consent. During the first
twelve months after the Closing, Seller shall have and reserves the
right to pursue any remedy against any tenant owing Delinquent Amounts
provided that (i) Seller shall notify Purchaser of its intent to
institute any legal proceeding relating thereto not less than thirty
(30) days prior to the institution thereof, (ii) Seller shall not
institute any legal proceedings for collection of Delinquent Amounts
prior to the expiration of ninety (90) days following the Closing,
(iii) Seller shall in no event institute any proceeding to evict or
dispossess a tenant from the Property and (iv) Seller shall not take
any action which would limit Purchaser's rights to pursue any remedy
Purchaser may have for a default under any Space Lease. Purchaser may,
by written notice to Seller within twenty (20) days of receipt of
Seller's notice, restrict Seller from collecting such Delinquent
Amounts, but only if Purchaser first pays Seller such Delinquent
Amounts in exchange for Seller's assignment to Purchaser of all of
Seller's rights and causes of action with respect thereto. With respect
to Delinquent Amounts owed by tenants who are no longer tenants of the
Property as of the Closing, Seller shall retain all rights relating
thereto.
(i) Service Contract Charges. Amounts due and payable
under any Service Contract assigned to Purchaser shall be prorated as
of the Closing, and, at the Closing, Seller or Purchaser, as the case
may be, shall pay to the other any amount required as a result of such
adjustment, and this covenant shall not merge with the deed delivered
hereunder but shall survive the Closing.
(j) Closing Costs. Seller will pay for: (i) any
recording fees necessary to remove of record any monetary liens or
encumbrances required hereunder to be paid by Seller; (ii) one-half of
any closing or escrow fees charged by Escrow Agent; and (iii) the fees
of Seller's attorneys, if any. Purchaser will pay for: (i) all costs of
conducting its investigation of the Property; (ii) the premium for
Purchaser's or its lender's title insurance policy; (iii) the cost, if
any, charged by the Title Company to make Purchaser's or its lender's
title policy "extended coverage" or to delete the "standard exceptions"
therefrom and the costs of any special endorsements requested by
Purchaser or its lender; (iv) all recording fees in addition to those
required to be paid by Seller; (v) one-half of any closing or escrow
fees charged by Escrow Agent; (vi) the fees of Purchaser's attorneys,
if any; and (vii) any local or state transfer or sales taxes, including
the deed tax. Except as aforesaid, any other fees or charges shall be
paid by the party who would otherwise be responsible therefor in
accordance with the customs and practices in ▇▇▇▇▇▇ County, Minnesota.
(k) Survival. Unless otherwise expressly provided herein, this
Section 11 shall -------- survive until the first anniversary of the
Closing.
.........12.......Remedies.
--------
(a) Seller's Default. Except if due to Purchaser's
default or a termination of this Agreement by Purchaser or Seller
pursuant to a right to do so under the provisions hereof, in the event
that Seller shall fail to consummate this Agreement for any reason,
Purchaser, as its sole and exclusive remedy, may either (i) terminate
this Agreement by giving written notice of termination to Seller
whereupon Escrow Agent will return the Deposit to Purchaser and both
Purchaser and Seller will be relieved of any further obligations or
liabilities hereunder, except for those obligations which expressly
survive any termination hereof; or (ii) Purchaser may seek specific
performance of this Agreement, but Purchaser will not be entitled to
damages and hereby waives all claims therefor; provided, however, that
if Purchaser is denied the remedy of specific performance by a final
and nonappealable judgment, Purchaser will be entitled to seek damages
in an amount not to exceed the Cap (as defined in Section 16). Except
as expressly provided above, Seller shall not be liable to Purchaser
for any further actual, punitive, speculative or consequential damages
or any other remedy at law or in equity. In addition, Purchaser shall
look solely to Seller's estate and interest in the Property (or the
proceeds thereof) for the collection of a judgment or other judicial
process requiring the payment of money by Seller in connection with any
claim arising under this Agreement, and in no event whatsoever shall
Purchaser look for recourse to any of Seller's other assets or the
assets of any of Seller's constituent partners, agents or affiliates or
any of their respective successors and assigns in connection with any
breach or alleged breach of any representation, warranty or covenant
hereunder or under any other document or certificate delivered in
connection herewith.
(b) Purchaser's Default. In the event that Purchaser
shall fail to consummate this Agreement for any reason, except Seller's
default or the termination of this Agreement by Purchaser or Seller
pursuant to a right to do so under the provisions hereof, then Seller,
as its sole and exclusive remedy under this Agreement, may terminate
this Agreement by notifying Purchaser and Escrow Agent thereof and
shall receive the Deposit as liquidated damages and not as a penalty.
The parties agree that Seller will suffer damages in the event of
Purchaser's default on its obligations. Although the amount of such
damages at this time is difficult or impossible to determine, the
parties agree that the amount of the Deposit is a reasonable estimate
of Seller's loss in the event of Purchaser's default under this
Agreement. Thus, Seller shall accept and retain the Deposit as
liquidated damages but not as a penalty. Such liquidated damages shall
constitute Seller's sole and exclusive remedy for Purchaser's failure
to consummate this Agreement.
(c) Post-Closing Defaults. Notwithstanding the
provisions of Sections 12(a) and (b) above, if after termination of
this Agreement or the Closing, as the case may be, a party (the
"Defaulting Party") breaches an obligation under this Agreement which
is expressly stated to survive the termination of this Agreement or the
Closing, as the case may be, the Defaulting Party shall be liable to
the other party (the "Non-Defaulting Party") for the actual damages
incurred by the Non-Defaulting Party as a direct result of such breach.
In no event shall the Non-Defaulting Party be entitled to recover from
the Defaulting Party any punitive, consequential or speculative
damages.
.........13.......Real Estate Commissions.
-----------------------
.........Each party hereto represents to the other that it has
not authorized any broker or finder to act on its behalf in connection
with the sale and purchase hereunder, except C.B. ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
(the "Broker"), and that such party has not dealt with any broker or
finder purporting to act on behalf of any other party. Each party
hereto agrees to indemnify and hold harmless the other party from and
against any and all losses, liens, claims, judgments, liabilities,
costs, expenses or damages (including reasonable attorneys' fees and
disbursements and court costs) of any kind or character arising out of
or resulting from any agreement, arrangement or understanding alleged
to have been made or dealing by such party or on its behalf with any
broker or finder in connection with this Agreement or the transaction
contemplated hereby, other than the Broker. Purchaser shall pay any
commission or fee due to the Broker pursuant to a separate agreement.
.........14.......Notice.
------
.........Any notice required hereunder shall be given in writing (by a
party or by such party's attorney), sent by (a) personal delivery, (b) overnight
delivery service with proof of delivery, (c) United States Postal Service,
postage prepaid, registered or certified mail, return receipt requested, or (d)
telecopy (provided that such telecopy is confirmed by simultaneous sending by
one of the other means provided for notice), except as otherwise expressly
provided in this Agreement, addressed as follows:
.........If to Seller:
PHL-OPCO, LP c/o Beta West, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇, Johnson, Robinson, ▇▇▇▇ & Ragonetti, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser:
Medtox Laboratories, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
1100 International Centre
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to Escrow Agent:
Chicago Title Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Order No. _______________
Any such notice shall be deemed to have been given and received either, in the
case of personal delivery, at the time of personal delivery, in the case of
delivery service, as of the date of the first attempted delivery at the address
and in the manner provided herein, in the case of mailing, three (3) days after
depositing with the U.S. Postal Service, or in the case of telecopy, upon
transmission; provided, however, that if the last date permitted for notice
shall be the business day before the Closing or the Closing, then such notice
must be given so that it is actually received on such day.
.........15.......Assignment.
----------
.........Purchaser may not assign its interest in this Agreement
without obtaining the prior written consent of Seller, provided, however, that
Purchaser may assign its interest in this Agreement to any entity which is
controlled directly or indirectly by Purchaser so long as Seller is advised of
such assignment not less than seven (7) business days prior to the Closing,
accompanied by satisfactory evidence of such control. Purchaser hereby agrees
that any assignment by Purchaser in contravention of this provision shall be
void ab initio and shall not relieve Purchaser of any of its obligations and
liabilities hereunder.
.........16.......Representations of Seller.
-------------------------
.........Seller represents and warrants to Purchaser that, as of
the date hereof and on the Closing Date:
(a) Seller is a limited partnership duly formed and
validly existing under the laws of the State of Delaware. Seller has
the full right, power and authority to enter into this Agreement and to
perform Seller's obligations hereunder.
(b) This Agreement and all other documents executed
and delivered by Seller prior to or at Closing in connection therewith
(i) have been, or shall be, duly authorized, executed, and delivered by
Seller; (ii) are, or shall be, binding obligations of Seller; (iii) do
not, and shall not, violate the formation documents of Seller.
(c) No filing or petition under the United States
Bankruptcy Law or any insolvency laws, or any laws for composition of
indebtedness or for the reorganization of debtors has been filed with
regard to Seller.
(d) Seller has not granted, other than to Purchaser
and other than as may be set forth in the Space Leases, any outstanding
option, right of first refusal or any other right with respect to the
purchase of all or any portion of the Property.
(e) To Seller's actual knowledge, except as set forth
in any documents delivered to Purchaser (including the Title
Commitment), Seller has not received any written notice of any pending
or threatened condemnation actions against the Property.
(f) To Seller's actual knowledge, the copies of the
Space Leases, Service Contracts, and the environmental assessment
reports delivered by Seller to Purchaser are true, accurate and
complete copies of the documents in Seller's possession that purport to
be the Space Leases, Service Contracts and such environmental
assessment reports.
(g) To Seller's actual knowledge, except as set forth
in any documents delivered to Purchaser (including the Title
Commitment), Seller has not received written notice of any action,
suit, arbitration, unsatisfied order or judgment, governmental
investigation or proceeding pending against Seller which, if adversely
determined, could individually or in the aggregate materially interfere
with the consummation of the transaction contemplated by this
Agreement.
(h) To Seller's actual knowledge, except as set forth in any documents
delivered to Purchaser, Seller does not know of any "▇▇▇▇▇" on the
Property within the meaning of Minn. ▇▇▇▇.▇▇. 103I. This
representation is intended to satisfy the requirements of that
statute.
(i) To Seller's actual knowledge, except as set forth in any
documents delivered to Purchaser, no "above ground storage tanks" or
"underground tanks" (within the meaning of Minn. Stat. ss. 116.46) are
located in or about the Property, or have been located under, in or
about the Property and have subsequently been removed or filled.
(j) Solely for purposes of satisfying the requirements of Minn.
▇▇▇▇.▇▇. 115.55, there is no "individual sewage treatment system"
(within the meaning of that statute) on or serving the Property.
(k) To Seller's actual knowledge, (i) the Rent Roll
is true and accurate and includes all of the leases currently in effect
demising space with the Improvements; and (ii) no one is in occupancy
of the Improvements other than those tenants shown on the Rent Roll.
For purposes of the foregoing representation, persons holding easements
or similar interests pursuant to any of the Permitted Encumbrances will
not be deemed "in occupancy" of the Improvements. Further, if any of
the estoppel certificates signed by the tenants under the Spaces Leases
and delivered to Purchaser prior to Closing pursuant to Section 6(e)
above contain any information or statement that is inconsistent with
the Rent Roll and if Purchaser waives any right it may have as a result
thereof to terminate this Agreement and proceeds to close the
transaction contemplated hereby, then for purposes of the foregoing
representation the Rent Roll will be deemed modified so as to
incorporate any such inconsistent information or statement and to omit
any matter that is inconsistent with the information or statement so
incorporated.
.........As used herein, the expression "to the knowledge of Seller" or
"to Seller's actual knowledge," or words of similar import, shall refer
exclusively to matters within the current, actual, conscious knowledge of ▇▇▇▇▇
▇▇▇▇▇, after inquiry of Seller's property manager of the Property (▇▇▇ ▇▇▇▇▇▇ of
United Properties, LLC), and shall not be construed to impose upon Seller or
such person any duty (other than such inquiry of such property manager) to
investigate the matter to which such actual knowledge, or the absence thereof,
pertains or impose upon such person or Seller's property manager any liability
or personal responsibility whatsoever hereunder. Seller represents to Purchaser
that ▇▇▇▇▇ ▇▇▇▇▇ is the employee of Seller's asset manager with the primary
responsibility for the matters which are the subject of the representations and
warranties set forth in this Agreement.
.........At Closing, Seller will deliver to Purchaser the certificate
described in Section 10(m) pursuant to which Seller will reaffirm the foregoing
representations and warranties as of the date of Closing, provided that such
certificate may reflect any changes to such representations and warranties of
which Seller has become aware prior to Closing. In the event that such
certificate indicates any material changes to the foregoing representations and
warranties, Seller will not be deemed in default hereunder and Purchaser's sole
remedy will be to terminate this Agreement whereupon Escrow Agent will return
the Deposit to Purchaser and both parties will be relieved of any further
obligations hereunder, except for those obligations which expressly survive any
termination hereof. In the event such certificate does indicate any such changes
and Purchaser does not elect to terminate this Agreement, the representations
and warranties made by Seller to Purchaser pursuant to this Agreement as of the
date of Closing will be deemed made subject to any such changes reflected in
such certificate.
.........The representations and warranties contained in this Section
16 shall survive the Closing for two hundred seventy (270) days after the
Closing. No claim for a breach of any representation or warranty of Seller shall
be actionable or payable if the breach in question results from or is based on a
condition, state of facts or other matter which was known to Purchaser prior to
Closing. Except for the representation and warranty set forth in Section 16(j),
Seller shall have no liability to Purchaser for a breach of any representation
or warranty: (i) unless the valid claims for all such breaches collectively
aggregate more than TWENTY-FIVE THOUSAND DOLLARS ($25,000), in which event the
full amount of such valid claims shall be actionable, up to the Cap (as
hereinafter defined), and (ii) unless written notice containing a description of
the specific nature of such breach shall have been given by Purchaser to Seller
within two hundred seventy (270) days after the Closing. Any suit by Purchaser
for any breach by Seller of any representation, warranty or covenant contained
herein must be filed on or before one (1) year after the Closing or shall be
forever barred. As used herein, the term "Cap" shall mean the total aggregate
amount of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000).
.........17.......Representations of Purchaser.
----------------------------
.........Purchaser represents and warrants to Seller that, as of
the date hereof and on the Closing Date:
(a) Purchaser is a corporation duly formed and
validly existing under the laws of the State of Delaware. Purchaser has
the full right, power and authority to enter into this Agreement and to
perform Purchaser's obligations hereunder.
(b) This Agreement and all other documents executed
and delivered by Purchaser prior to or at Closing in connection
therewith (i) have been, or shall be, duly authorized, executed, and
delivered by Purchaser; (ii) are, or shall be, binding obligations of
Purchaser; (iii) do not, and shall not, violate the formation documents
of Purchaser.
(c) Purchaser is an experienced investor and
Purchaser shall purchase the Property on the basis of its own
independent investigation of the Property and shall not rely on any
projections provided by Seller or Seller's agents.
(d) No filing or petition under the United States
Bankruptcy Law or any insolvency laws, or any laws for composition of
indebtedness or for the reorganization of debtors has been filed with
regard to Purchaser.
(e) Purchaser's taxpayer identification number is ▇▇-▇▇▇▇▇▇▇.
(f) Neither Purchaser nor any of its constituent
partners, members or shareholders is acquiring the Property or any
interest therein with the "plan assets" of any "employee benefit plan"
(or its related trust), as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, or with the assets
of any "plan" (or its related trust), as defined in Section 4975(e)(1)
of the Internal Revenue Code of 1986, as amended.
The representations and warranties contained in this Section 17 shall survive
the Closing.
.........18.......No Representations; "As Is" Purchase.
------------------------------------
.........Except as expressly set forth herein or called for herein or
called for in any of the instruments attached as exhibits hereto, SELLER MAKES
NO WARRANTIES OR REPRESENTATIONS of any kind or character, express or implied,
with respect to the Property, its physical condition, income to be derived
therefrom or expenses to be incurred with respect thereto, or with respect to
information or documents previously furnished to Purchaser or furnished to
Purchaser pursuant to this Agreement, or with respect to Seller's obligations or
any other matter or thing relating to or affecting the same, and there are no
oral agreements, warranties or representations collateral to or affecting the
Property except as may otherwise be expressly set forth herein. Notwithstanding
anything contained herein to the contrary, this Section shall survive the
Closing or any termination of this Agreement.
.........PURCHASER ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY IS
SPECIFICALLY MADE "AS-IS" AND "WHERE-IS," WITHOUT ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED (EXCEPT ANY EXPRESS REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS AGREEMENT OR THE DEED OR GENERAL ASSIGNMENT AND
ASSUMPTION DELIVERED AT CLOSING), INCLUDING IMPLIED WARRANTIES OF FITNESS FOR
ANY PARTICULAR PURPOSE OR MERCHANTABILITY OR ANY OTHER WARRANTIES WHATSOEVER.
.........PURCHASER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT, NEITHER SELLER NOR ANY OF ITS AGENTS HAVE MADE, AND SPECIFICALLY
NEGATE AND DISCLAIM, ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, OF, AS TO, CONCERNING, OR WITH RESPECT TO, (i) THE
VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY, (ii) THE SUITABILITY OF THE PROPERTY
FOR ANY AND ALL ACTIVITIES AND USES WHICH MAY BE CONDUCTED THEREON, (iii) THE
COMPLIANCE OF OR BY THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS
OF ANY APPLICABLE GOVERNMENTAL AUTHORITY, (iv) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROPERTY, OR (v) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY,
AND SPECIFICALLY, NEITHER SELLER NOR ANY OF ITS AGENTS HAVE MADE, AND
SPECIFICALLY NEGATE AND DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING
COMPLIANCE OF THE PROPERTY WITH ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND
USE LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS, INCLUDING THOSE PERTAINING
TO SOLID WASTE, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY
REGULATIONS AT 40 C.F.R., PART 261, OR THE DISPOSAL OR EXISTENCE, IN OR ON THE
PROPERTY, OF ANY HAZARDOUS SUBSTANCES, AS DEFINED BY THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED, AND
THE REGULATIONS PROMULGATED THEREUNDER. PURCHASER SHALL RELY SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE
PROVIDED BY SELLER OR ITS AGENTS OR CONTRACTORS, EXCEPT AS EXPRESSLY PROVIDED IN
THIS AGREEMENT. SELLER SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL
OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY
OR THE OPERATION THEREOF, FURNISHED BY ANY PARTY PURPORTING TO ACT ON BEHALF OF
SELLER.
.........PURCHASER, FOR ITSELF AND ITS AGENTS, AFFILIATES, SUCCESSORS
AND ASSIGNS, HEREBY WAIVES ITS RIGHT TO RECOVER FROM AND FOREVER RELEASES AND
DISCHARGES SELLER, ITS AGENTS, PARTNERS, AFFILIATES, SHAREHOLDERS, OFFICERS,
DIRECTORS, AND EMPLOYEES OF EACH OF THEM, AND THEIR SUCCESSORS AND ASSIGNS, FROM
ANY AND ALL RIGHTS, CLAIMS AND DEMANDS AT LAW OR IN EQUITY, PROCEEDINGS, LOSSES,
LIABILITIES, DAMAGES, PENALTIES, FINES, LIENS, JUDGMENTS, COSTS OR EXPENSES
WHATSOEVER, WHETHER DIRECT OR INDIRECT, KNOWN OR UNKNOWN AT THE TIME OF THE
AGREEMENT, FORESEEN OR UNFORESEEN, ARISING OUT OF OR RELATING TO, OR IN ANY WAY
CONNECTED WITH THE PHYSICAL, ENVIRONMENTAL, ECONOMIC OR LEGAL CONDITION OF THE
PROPERTY.
.........19.......Attorney's Fees and Legal Expenses.
----------------------------------
.........In the event that either party hereto institutes any action or
proceeding in court to enforce or interpret any provision hereof or for damages
by reason of any alleged breach of any provision of this Agreement or for any
other judicial remedy, the prevailing party shall be entitled to receive from
the losing party all reasonable attorneys' fees and disbursements and all court
costs in connection with said proceedings.
.........20.......Section Headings; Other Terms.
-----------------------------
.........The section headings contained in this Agreement are for
convenience only and shall in no way enlarge or limit the scope or
meaning of the various and several paragraphs hereof. The words
"herein," "hereof," "hereto," "hereunder," and others of similar
import refer to the Agreement as a whole and not to any particular
section, subsection or clause contained in this Agreement. The
singular of a term shall include the plural and the plural shall
include the singular. The terms "includes" and "including" are not
limiting.
.........21.......Interpretation.
--------------
.........Although this Agreement was drafted by counsel for Seller,
such fact shall not result in any provision of this Agreement being construed
against Seller by reason of Seller having drafted this Agreement.
.........22.......Entire Agreement.
----------------
.........This Agreement embodies the entire agreement between the
parties hereto and supersedes any prior understandings or written or
oral agreements between the parties concerning the Property. Further,
this Agreement cannot be varied, modified, amended, altered or
terminated except by the written agreement of the parties.
.........23.......Applicability.
-------------
.........The terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns, except as expressly set forth herein.
.........24.......Reporting of Foreign Investment.
-------------------------------
.........Seller and Purchaser agree to comply with any and all
reporting requirements applicable to this transaction which are set forth in any
law, statute, ordinance, rule, regulation, order or determination of any
governmental authority, including The International Investment Survey Act of
1976, The Agricultural Foreign Investment Disclosure Act of 1978, The Foreign
Investment in Real Property Tax Act of 1980 and the Tax Reform Act of 1984, and
further agree upon request of one party to furnish the other party with evidence
of such compliance.
.........25.......Exhibits.
--------
.........All exhibits and schedules described herein and attached
hereto are fully incorporated into this Agreement by this reference
for all purposes.
.........26.......Applicable Law.
--------------
.........This Agreement shall be construed and interpreted in
accordance with the internal laws of the State of Minnesota without
regard to principles of conflict of law.
.........27.......Confidentiality.
---------------
.........Seller and Purchaser hereby covenant and agree that, at all
times after the date hereof and prior to the Closing, unless consented to in
writing by the other party, no press release or other public disclosure
concerning this transaction shall be made, and each party agrees to use its best
efforts to prevent disclosure of this transaction, other than (a) to agents and
affiliates of the parties who are involved in the ordinary course of business
with this transaction and prospective investors and lenders, all of which shall
be instructed to comply with the nondisclosure provisions hereof; (b) in
response to lawful process or subpoena or other valid or enforceable order of a
court of competent jurisdiction; and (c) in any filings with governmental
authorities required by reason of the transactions provided for herein or if
required as a result of Purchaser's status as a publicly held company. Purchaser
hereby covenants and agrees that, at all times after the date of execution
hereof and prior to the Closing, unless consented to in writing by Seller,
Purchaser shall keep in strict confidence, and shall not disclose, the contents
of, or Purchaser's analysis of the contents of, any documentation made available
to Purchaser by Seller or any of Seller's agents in connection with this
transaction, and the content of any appraisal, engineering, environmental or
other third party report prepared on behalf of Purchaser, subject to the
qualifications set forth in subsections (a), (b), and (c) in the preceding
sentence.
.........28.......Tax Reduction Proceedings.
-------------------------
.........Seller may file and/or prosecute an application for the
reduction of the assessed valuation of the Property or any portion thereof for
real estate taxes payable in 2001 (the "Apportionment Tax Year"). Seller shall
have the right to withdraw, settle or otherwise compromise any protest or
reduction proceeding affecting real estate taxes assessed against the Property
(i) for the Apportionment Tax Year provided Purchaser shall have consented with
respect thereto, which consent shall not be unreasonably withheld or delayed and
(ii) for all or any part of any tax year prior to the Apportionment Tax Year
without the prior written consent of Purchaser. The amount of any tax refunds
(net of attorneys' fees and other costs of obtaining such tax refunds) with
respect to any portion of the Property for the Apportionment Tax Year shall be
apportioned between Seller and Purchaser as of the Closing. If, in lieu of a tax
refund, a tax credit is received with respect to any portion of the Property for
the Apportionment Tax Year, then (x) within thirty (30) days after receipt by
Seller or Purchaser, as the case may be, of evidence of the actual amount of
such tax credit (net of attorneys' fees and other costs of obtaining such tax
credit), the tax credit apportionment shall be readjusted between Seller and
Purchaser, and (y) upon realization by Purchaser of a tax savings on account of
such credit (that is, at the time the tax savings is actually realized, for
example, when the taxes are paid to which the credit relates), Purchaser shall
pay to Seller an amount equal to the savings realized (as apportioned). All
refunds, credits and other benefits applicable to any tax year (or portion
thereof) prior to the Apportionment Tax Year shall belong solely to Seller (and
Purchaser shall have no interest therein) and, if the same shall be paid to
Seller within thirty (30) days following receipt thereof and, if not timely
paid, with interest thereon from the thirtieth (30th) day following such receipt
until paid to Seller at a rate equal to the rate of interest announced by
Citibank, N.A. from time to time as its base rate plus three percent (3%). The
provisions of this Section 28 shall survive the Closing.
.........29.......Counterparts.
------------
.........This Agreement may be executed in counterparts, all such
executed counterparts shall constitute the same agreement, and the signature of
any party to any counterpart shall be deemed a signature to, and may be appended
to, any other counterpart.
.........30.......Facsimile Signatures.
--------------------
.........In order to expedite the transaction contemplated herein,
telecopied signatures may be used in place of original signatures on this
Agreement. Seller and Purchaser intend to be bound by the signatures on the
telecopied document, and are aware that the other party will rely on the
telecopied signatures, and hereby waive any defenses to the enforcement of the
terms of this Agreement based upon the form of signature. If telecopied
signatures are delivered, Seller and Purchaser will each forward original
counterpart signatures to the other promptly after delivery of the telecopied
signatures as set forth herein.
.........31.......No Offer.
--------
.........The submission of this Agreement to Purchaser shall and does
not constitute an option or offer to sell the Property to Purchaser, it being
intended that this Agreement shall not be enforceable unless and until such time
as each of Purchaser, Seller and Escrow Agent shall have fully executed this
Agreement and a copy of such fully executed Agreement shall have been given to
each of Purchaser, Seller and Escrow Agent.
.........32.......Business Day.
------------
.........As used herein, the term "business day" shall mean all days,
excluding Saturdays, Sundays and all days observed by either the State of New
York or the Federal Government as legal holidays. In the event that any date for
performance falls on a day other than a business day, then performance shall be
postponed until the next business day.
.........33.......Strict Performance.
------------------
.........It is specifically agreed that "time is of the essence"
as to all matters provided for in this Agreement.
.........34.......Non-Solicitation of Employees.
-----------------------------
(a) For a period of one (1) year after the Closing,
Purchaser shall not, and shall use its best efforts to cause each
business or entity with which it is or shall employ or associate in any
capacity, not to solicit for employment, employ or engage any person
who is then, or who was at any time during the period of this
Agreement, employed or engaged by BetaWest, Ltd. ("BetaWest"),
including but not limited to the employee(s) set forth in Section 16
hereof, or any affiliate of BetaWest, except such BetaWest employees
which are employed exclusively on-site at the Property and not at
BetaWest's corporate offices in Denver, Colorado or elsewhere.
(b) Purchaser acknowledges and agrees that the
covenants and obligations contained in this Section 34 relate to
special, unique, extraordinary and sensitive matters and are reasonable
and necessary to protect the legitimate interests of Seller, BetaWest
and their respective affiliates, and that a breach of any of the terms
of such covenants and obligations will cause Seller and BetaWest
irreparable injury for which adequate remedies at law are not
available. Therefore, Purchaser agrees that, before any trial of the
merits, Seller and BetaWest shall be entitled to an injunction,
restraining order or other equitable relief from any court of competent
jurisdiction restraining Purchaser from any such breach.
(c) The representations and covenants set forth in this Section
34 shall survive the Closing.
.........IN WITNESS WHEREOF, this Agreement is executed in multiple
originals by Seller and Purchaser.
SELLER:
PHL-OPCO, LP, a Delaware limited partnership
By: PHL-GP, LLC, a Delaware limited liability company,
its general partner
By: PHL-HOLDCO, LLC, a Delaware
liability company, its managing member
Date: January 5, 2001...... By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------- --------------------------------------
.................. Name: ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
.................. Title: Authorized Agent
-----------------------------------
PURCHASER:
MEDTOX LABORATORIES, INC., a Delaware
corporation
Date: 01/02, 2001......... By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------ --------------------------------------
.................. Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
.................. Title: CFO
-------------------------------------
ESCROW TERMS PURSUANT TO
SECTION 3 HEREOF
ACCEPTED AND AGREED:
CHICAGO TITLE INSURANCE COMPANY
By: /s/ illegible...
-----------------------
Date: January 9, 2001
Exhibit A
LEGAL DESCRIPTION OF THE LAND
New Brighton I:
That part of the North 489.9 feet of the South 846.84 feet of ▇▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇ of the 4th Principal Meridian, lying westerly
of the westerly right-of-way line of U.S. Interstate Highway No. 35W as
described in Final Certificate Document No. 1695522, and lying easterly of the
easterly right-of-way line of Minnesota Transfer Railway Co., said property
being a part of ▇▇▇ ▇, ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
Together with the easements created by Declaration of Easements and Partial
Releases of Mortgages dated as of December 1, 1983, recorded January 12, 1984,
as Document ▇▇. ▇▇▇▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇:
PARCEL 1:
That part of the North 253.16 feet of the South 1100.0 feet of Section 32,
Township 30 North, Range 23 West of the 4th Principal Meridian, lying Westerly
of the Westerly Right of Way line of U.S. Interstate Highway No. 35W as
described in Final Certificate Document No. 1695522, and lying Easterly of the
Easterly Right of Way line of Minnesota Transfer Railway Co. Said property being
a part of ▇▇▇ ▇, ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
PARCEL 2:
That part of ▇▇▇ ▇, ▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ lying
Westerly and Southerly of the following described line:
Beginning at a point on the South line of Section 32, Township 30 North, Range
23 West, distant 677.15 feet West of the Southeast corner of said Section 32;
thence run Northeasterly at an angle of 82 degrees 22 minutes 53 seconds with
said South Section line 1233.54 feet; thence run Northwesterly at right angles
500 feet and terminating, except the Southerly 1100 feet of said Section 32, and
except the Easterly 168 feet thereof; subject to United States Pipe Line Tract,
said tract being 33 feet in width the centerline of which is described as
follows:
Beginning at a point on the Easterly line of said Section 32, 867.2 feet
Southerly of the Northeast corner of the Southeast Quarter of said Section 32;
thence South 57 degrees 31 minutes West, 1147.7 feet, more or less, to a point
on the Easterly right of way line, Minnesota Transfer Railway and there
terminating, said point being 1118.0 feet due North of the South line of said
Section 32.