HomeMy WebLinkAbout2003-12-18 Purchase & Sales AgreementPURCHASE AND SALE AGREEMENT
Date: December
L PARTIES AND EFFECTIVE DATE. The parties to this Agreement are:
a. J. T. B. Properties, L.L.P., a Minnesota limited liability partnership,
3040 Woodbury Drive, Woodbury, Minnesota 55125, facsimile 651 -646 -6445 (the "seller "); and
b. L & L Holdings, L.L.C., a Minnesota limited liability company, 4718 McDonald
Drive Place, Stillwater, MN 55082 (the "Buyer ").
Buyer agrees to buy and Seller agrees to sell on the following terms, the Property (as defined.
below). This Agreement sometimes refers to Seller or Buyer, as a "Party" or to Seller and Buyer,
collectively, as. the "Parties."
Earnest Money
Cash at Closing
$2,500.00
up to $ 339,000.00
Any earnest money paid to Seller shall be credited at closing against the Purchase Price.
2003
2 PROPERTY, The subject of this Agree en rs that ortion of the land located as
described in attached Exhibit "A" in the Cit y of asi ington County, Minnesota,
legally described on the attached E- xhibit "A ", and all hereditaments and appurtenances to the land
(the "Land "). In this Agreement, the term "Property" means the Land.
3 PURCHASE PRICE, The total purchase price shall be that amount equal to Eight
Dollars ($8.00) times the square feet of land contained within the Property, not to exceed Three
Hundred Forty-one Thousand Five Hundred and no /100 Dollars ($3.41,500.00), and shall be
payable as follows:
4.. EARNEST MONEY RECEIPT. Upon execution of this Agreement, Buyer shall pay
Two Thousand Five Hundred and no /100 Dollars ($2,500.00) as earnest money (the "Earnest
Money ").. The Earnest Money shall be deposited with Land Title (the "Title Company ").
CONDITIONS TO PURCHASE, Buyer's obligation to purchase the Property is
conditioned on the following items 5.1. through 5.4 and on Buyer's approval of the results of its
property inspection described in Section 6 below and on Buyer's approval of title pursuant to
Section 8 below. If Buyer has not approved the results of Buyer's property inspection by written
notice given to Seller on or before December 24, 2004 (the "Buyer's Approval Date "), the
Agreement shall be terminated and the Earnest Money shall be promptly returned to Buyer.
Except as otherwise provided below, Lf. Buyer has not waived any or all of these coalitions by the
Buyer's Approval Date, Seller may, at any time thereafter, elect to terminate this Agreement on
seven (7) days' notice, stating the conditions it wishes for Buyer to waive. If within such seven
(7) days, Buyer does not waive the conditions included in Seller's notice, this. Agreement shall
terminate and Buyer's earnest money deposit shall. be promptly refunded.
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5.1 Exercise of Option.. Seller is the holder of an Option Agreement dated
September 12, reement" , with Robert L. Brackey as seller ( "Brackey "). This.
2003 Agreement"),
Agreement expressly ent is e ressl . conditioned on Seller's exercise of the option and purchase of the Property
" Option. Purchase Date"). " ). If , on or before the Buyer's Approval Date, Buyer has approved the
` pursuant to Section 6 and the title pursuant to Section 8 and has waived the following
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Seller shall promptly exercise the option pursuant to requirements set forth in the
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�pt�oOption A.�,ree closing Agreement g and shall set a clos' g date not later than January 15, 2004. Buyer understands.
the other half of the Property will. be purchased by S and H Incorporated ( "Concurrent
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Buyer") and that ac hat such acquisition must be closed concurrently with Buyers acquisition in order to
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satisfy the requirements of the Option Agreement. It shall be Seller's obligation. to insure that the
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by Concurrent Buyer is. ready to close when Buyer is ready to close, but not before the
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Buyers Approval. roval. Date. Seller shall cause the representations and warranties in the Option
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to inure to the benefit of Buyer with the written consent of Brackey.. The parties
agree that the warranty deed d b . Section 9.O(A) of the Option Agreement shall be
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separate warranty deeds to Buyer er and Concurrent Buyer respectively. Seller shah. comply with all
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of the Option Agreement to be performed by the "Purchaser" under said. Option
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Agreernent.
5.1 LJ
Land Use Review and B_uzldinyg� Permits. Buyer shall determine if Seller has
secured all permits, approvals, and written verifications as Buyer, in Buyer's. sole judgment, shall.
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deem necessary Y to insure Buyer's intended use of the Property, have been obtained front any
go Vermnental body or agency having jurisdiction o f the Property. and the use thereof.. In addition,
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ri reasonable satisfaction, all city, county, state, and other
Buyer may review and approve, to its real . ,
las regulations ordinances, and any other recorded controls, conditions,
applicable jurisdictionsr regulations, any, affecting development restrictions,
if affectin g the develo ment and use of the Property for Buyer's s ntended
use, and the existence, locatio n, capacity and ca acit . of all utility services to the Property and all
stormwater control requirements.
5.3 Survey. At Buyer's er's e ense, a survey of the Property may be made by a duly
licensed surveyor for the purpose of determining the accurate acreage and boundaries of the
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Property, free of any title defect,. boundary dispute, or encroachment.
5.4. Environmental. Buyer may retain., subject to paragraph 6 of the Agreement, an
environmental consulting firm of its choice, to conduct a phase one assessment of the Property
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r property in the vicinity of the Property) to ensure hand, at its option, p op Y Y e the absence of hazardous . .
e of such. assessment. In addition, Seller agrees to furnish
substances. Buyer shall. bear the expense . .
it have possession pertaining to the environmental condition of
Buyer with any reports �t may ha . e �. its p p
. limited to environmental engineering, topographical, soil, and
the Property, including, � , but not h�r� �
ground water testing reports.
6. PROPERTY INSPECTION. Seller shall take such action as may be necessary under the
Option Ag reement that p Buyer permit Bu er and its agents, at Buyer's sole expense and risk, to enter
Agreement
the Property, at reasonable times. after reasonable prior notice to Seller to conduct inspections,
tests, and surveys concerning the structural condition of the improvements, all mechanical,
electrical and plumbing systems, hazardous materials, pest infestation, sons conditions, wetlands,
American with Disabilities Act compliance, and other matters affecting the suitability of the
Property for Buyer's intended use andlor otherwise reasonably related to the purchase of the
Property. Buyer shall indemnify, hold harmless, and defend Seller from_ all liens, costs, and
expenses, including reasonable attorneys' fees and experts' fees, arising from or relating to Buyer's
entry on and inspection of the Property. Buyer shall comply with any inspection requirements in .
the Option Agreement.
7.. SELLER'S DOCUMENTS. within ten (10) days after the Execution Date, Seller shall
deliver to Buyer, at Buyer's address shown below, legible and complete copies of the following
documents and other items relating to the ownership, operation, and maintenance of the Property,
to the extent now in existence and to the extent such items are within Seller's possession or
control:
1. Copies of all documents regarding the environmental condition of the Property_.
Copies of all permits which affect any portion of the Property or its operation.
3. Copies of all documents regarding the soil andlor topographical conditions_ of the
Property.
$ TITLE INSURANCE. Buyer shall obtain a preliminary title report from the Title
Company (the "Preliminary Commitment"), together with complete and legible copies of all
documents shown therein as exceptions to title, showing the status of Seller's title to the Property.
Buyer shall have not more than ten (10) days after receipt of a copy of the Preliminary
Commitment within which to give notice, in writing, to Seller of any objection to such title or to
any liens or encumbrances affecting the Property. within. seven (7) days after the date of such
notice from Buyer, Seller shall give Buyer written notice of whether it is willing and able to
remove the objected -to exceptions. Within seven (7) days after the date of such notice from.
Seller, Buyer shall elect whether to purchase the Property subject to the objected -to exceptions
which Seller is not willing or able to remove or terminate this. Agreement. On or before the
Closing Date (defined below), Seller shall remove all exceptions to which Buyer objects and
which Seller agrees Seller is willing and able to remove. All remaining exceptions set forth in the
Preliminary Commitment and agreed to by Buyer shall be "Permitted Exceptions." The title
insurance policy to be delivered by Seller to Buyer at closing shall contain no exceptions other
than the Permitted exceptions and the usual preprinted exceptions in an owner's standard form
title insurance policy.
9 DEFAULT; REMEDIES. if the conditions, if any, to Buyer's obligation to close this
transaction are satisfied or waived by Buyer and Buyer nevertheless fails, through no fault of
Seller, to close the purchase of the Property, Seller's sole remedy shall be to retain the Earnest
Money aid by Buyer. In the event Seller fails, through no fault of Buyer, to close the sale of the
Property, Buyer shall be entitled to pursue any remedies available at law or in equity, including
without limitation, the remedy of specific performance.
10 CLOSING OF SALE. The sale shall be closed on or before January 15, 2004 in escrow
at the Title Company unless extended by mutual agreement of the parties and Brackey (the
"Closing Date "). The sale shall be "closed" when the document conveying title is recorded and
funds are disbursed to Seller, At closing, Buyer and Seller shall deposit with the Title Company
all documents and funds required to close the transaction in accordance with the terms of this
Agreement. At closing, Seller shall cause fee simple title to the Property to be conveyed to Buyer
Agreement.
warranty deed (the "Deed ") free and clear of all encumbrances. subject only to:
a. Building, zoning and subdivision statutes, laws, ordinances and regulations;
b. Reservations of minerals or of mineral rights in favor of the State of Minnesota, if
any;
c. The lien of real estate taxes and special assessments not yet due and payable; and.
d. The encumbrances described as the Permitted Exceptions and determined pursuant
to Section 8.
At closing, Buyer shall be entitled to a standard form owner's policy of title insurance in the
amount of the Purchase Price insuring fee simple title to the Property in Buyer subject only to the
Permitted Exceptions and the standard preprinted exceptions in a standard form policy.
110. CLOSLNG COSTS; PRORATES Buyer shall pay the premium for the title insurance
policy pursuant delivered ursuant to the above paragraph. Buyer shall pay the escrow fees charged by the
Title Company, any excise tax and any transfer tax. Real property taxes for the tax year in which
the transaction is closed, assessments (if a Permitted Exception), personal property taxes, and
utilities shall be prorated as of the Closing Date.
a. Seller's Obligations. On the Closing Date, Seller must:
(i) cause the Deed to be executed and delivered to Buyer;
(ii) cause a Minnesota Uniform Conveyancing Form Affidavit of Seller to be
executed and delivered to Buyer and Buyer's title insurer, if any. The affidavit may include
an y modifications necessary to make the statements of the affiant accurate when made;
(iii) cause a non-foreign affidavit in recordable form containing such
information as is required under Section 1445(b)( of the Internal Revenue Code of
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1986, as amended hereinafter the "Code ") and any regulations relating thereto, to be
executed and delivered to Buyer;
(iv) cause a Federal Income Tax Reporting Form 1099 to be executed and
delivered to the closing agent, Buyer, or other appropriate party; and
(v) include on the Deed the statement "The Seller certifies that the Seller does
not know of any wells on the described real property ".
b. Buyer's Obligations. On the Closing Date, Buyer must:
i Tender the balance of the Purchase Price to Seller pursuant to the
provisions of Section 3 of this Agreement; and
P. Pay or provide evidence of payment of the following: all costs. associated
with Buyer's financing, if any, including mortgagee's. title insurance costs. and premiums, if
any, and the closing costs.
12 POSSESSION. Buyer shall be entitled to exclusive possession of the Property as of the
Closing Date.
13. SELLER'S REPRESENTATIONS AND COVENANTS. Seller makes the following
representations and covenant to Buyer:
a. Seller represents that Seller has an option agreement to purchase fee title to the
Property and Seller will cause fee title to be conveyed to Buyer free and clear of restrictions on or
conditions to transfer or assignment and free and clear of liens, pledges, charges or encumbrances,
except those determined to be Permitted Exceptions pursuant to Section 8 hereof.
b. Seller represents that Seller has. not employed any broker or finder in. connection
with the transactions this Agreement contemplates or taken action that would give rise to a valid
claim against any Party for a brokerage commission, finder's fee, or other like payment.
c. Seller represents that Seller's execution and delivery of this Agreement and Seller's
performance of Seller's obligations under this Agreement will not result in the creation or
imposition of any valid lien, charge, or encumbrance on the Property.
d. Seller represents. that Seller's. execution and delivery of this. Agreement and Seller's.
performance Hance of Seller's obligations under this Agreement does not require any third party's
authorization, consent or approval.
e. Seller represents that, to the best of Seller's actual knowledge, the condition of the
Land does not violate any provisions of any applicable law, ordinance, or regulation.
f. Seller proceeding, resents that, to the best of Seller's actual knowledge, there is no claim,
investigation roceeding, or investigation pending or threatened against Seller that would prevent
Seller's P erformance of its obligations under this Agreement or that would result in any material
adverse change in the condition of the Property.
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g. Seller represents that, of the best of Seller's actual knowledge, there are no
hazardous materials located on the Land.
h. Seller represents that Seller has not ranted any third party any license, lease, or
other right to use or possess all or any part of the Property except to the extent disclosed in the
Permitted Exceptions, and Seller has not granted any third party any rights, options, or rights of
first refusal or entered into any agreements, which are currently in effect, to purchase or otherwise
acquire the Property or any part thereof or any ownership interest therein except for the rights of
Buyer under the Agreement.
i. Seller represents that Seller is not aware of and have not received. any written
notice from any federal, state, municipal, or other governmental instrumentality (each a
"Governmental Entity ") of (i) the existence of any uncured violation of law on the Property, GO a
Governmental Entity's intention to revoke any certificate of occupancy, license, or permit relating
to the use of the Property, (iii) any pending or threatened condemnation or pending special
assessments relating to the Property, or (iv) any release of any hazardous material into the
environment or any storm drain, sewer, septic system, or publicly owned treatment works, in
violation of any affluent or emission limitations, standards, or other criteria or guidelines
established by any environmental law.
j. Except for causing the Property to be subdivided, Seller represents that Seller is.
not aware of and has not made any application which is currently pending for a variance or a
change in the Property's zoning.
k. Seller represents that, to the best of Seller's actual knowledge, water, sewer, gas,
electric, telephone, and storm water drainage facilities required for the normal operation of the
Property are installed or can be installed to the Property's boundaries.
1. Seller represents that, to the best of Seller's actual knowledge, all utilities serving
the Property reach the Property through valid public or private easements.
m. Seller covenants that Seller will not, between the date of this Agreement and the
Date of Closing, assign, sell, lease, or otherwise transfer or dispose of the Property.
n. Seller has not received any notice nor is it aware of any pending action to take by
eminent domain or by deed in lieu thereof of all or any portion of the Property.
0. Seller is not a "foreign person" as contemplated by Section 1445 of the Internal
Revenue Code.
P. To the best of Seller's actual knowledge, no portion of the Property is located
within an area designated as a "flood plain" or "flood prone area" under any statute, regulation, or
ordinance.
The representations and warranties set out in this Agreement shall be continuing and shall be
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deemed to survive the closing and shall not be merged in the delivery and execution of the deed or
other instruments of conveyance called for in this Agreement. Seller agrees to indemnify and hold
Buyer harmless from all claims, expenses, and liabilities (including reasonable attorneys fees)
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incurred by Buyer as a result of Seller's breach of any of the foregoing warranties.
14. BAYER'S REPRESENTATIONS AND COVENANTS. Buyer represents to Seller:
a. Buyer is a limited liability company duly organized, in active status and validly
existing under the laws of the State of Minnesota and has all requisite corporate power and
authorit y to enter into this Agreement and perform its obligations under this Agreement; and
b. Buyer has not employed any broker or finder in connection with the transactions
this Agreement contemplates and has taken no action that would give rise to a valid claim against
Agreement
party for a brokerage commission, finder's fee, or other like payment.
c. The individuals executing this Agreement on behalf of Buyer represent to Seller
that Buyer's shareholders and directors have approved and authorized their execution of this
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Agreement and that they have all necessary legal and corporate authority to execute this
Agreement b
nt and to deliver this Agreement to Seller on behalf of Buyer and to bind Buyer.
The representations and warranties set out in this Agreement shall be continuing and shall be
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deemed to survive the closing and shall not be merged in the delivery and execution of the deed or
other instruments of conveyance called for in this. Agreement. Buyer agrees. to indemnify and
hold Seller harmless from all claims, expenses, and liabilities (including reasonable attorneys' fees)
incurred b y Seller as a result of Buyer's breach of any of the foregoing warranties.
154 CONDITION OF PROPERTY, Seller represents that, to the best of Seller's
knowledge, there is no pending or threatened litigation affecting the Property, and Seller is not
aware of an y concealed material defects in the Property, and at Closing, the Property will be free
of an y claims of possession by tenants or former tenants. Risk of loss or damage to the Property
shall. be Seller's until closing and Buyer's at and after closing. No agent of Seller nor any agent of
g g the Property. Exce
Buyer has made any representations regarding Except for Seller's representations P
set forth in Sections 13 and 15, Buyer shall acquire the Property "AS IS" with all faults and Buyer
shall rely on the results of its own inspection and investigation in Buyer's acquisition of the
Property.
16 NOTICES. Unless otherwise specified, any notice required or permitted in, or related to,
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this Agreement must be in writing and signed by the party to be bound. Any time limit in or
applicable to a notice shall commence on the day following mailing of the notice in the U: S. mails,
postage prepaid, re aid by the applicable party to the address of the other party shown in this
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Agreement, unless that day is a Saturday, Sunday, or legal holiday, in which event it will
commence on the next following business day. Notices may be given for a Party by the attorney
representing such Party.
17. ASSIGNMENT, may Buyer assign its interest hereunder to an entity owned and
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controlled by Buyer or the principals of Buyer without Seller's prior written consent. Seller
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understands that Buyer intends to fora a separate limited liability company to take title to the
Property, to which Seller hereby consents.
18 ATTORNEYS' FEES. In the event a suit, action, arbitration, or other proceeding of any
nature whatsoever, including without limitation any proceeding under the U.S. Bankruptcy Code,
is instituted, or the services of an attorney are retained, to interpret or enforce any provision of
this Agreement or with any respect to dispute relating to this Agreement, the prevailing party shall
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be entitled to recover from the losing party its attorneys, paralegals', accountants', and other
experts' fees and all other fees, costs, and expenses actually incurred and reasonably necessary in.
connection. therewith. In the event of suit, action, arbitration, or other proceeding, the amount
thereof shall be determined by judge the or arbitrator, shall include fees. and expenses incurred on
any appeal eat or review, and shall be in addition to all other amounts provided by law.
I9 MISCELLANEOUS. Time is of the essence of this Agreement. The facsimile
transmission of any signed document including this Agreement shall be the same as delivery of an
original. At the request of either party, the party delivering a document by facsimile will. confirm
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facsimile transmission by signing and delivering a duplicate original document. This Agreement
may be executed in two or more counterparts, each of which shall constitute an original and all of
which together shall constitute one and the same Agreement. This Agreement contains the entire
agreement and understanding of the parties with respect to the subject matter of this Agreement
and prior supersedes all rior and contemporaneous agreements between them with respect thereto.
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Without limiting the P rovisions of Section 17 of this Agreement, this Agreement shall be binding
upon and shall inure to the benefit of the parties and their respective successors and assigns. The
person signing this Agreement on behalf of B.uyer and the person signing this Agreement on
behalf of Seller each represents, covenants, and warrants that such person has full right and
authority to enter into this Agreement and to bind the party for whom such person signs this
Agreement to the terms and provisions of this Agreement. This Agreement shall not be recorded
unless the parties otherwise agree.
2O ADDENDL S: EXHIBITS. . The following named addendunis and exhibits are attached
to this Agreement and incorporated within this Agreement:
1. See Exhibit "A".
2L EXECUTION DATE, The Execution Date is the date this Agreement has been executed
by both parties.
CONSULT YOUR ATTORNEY. THIS DOCUMENT HAS BEEN PREPARED FOR
SUBMISSION TO YOUR ATTORNEY FOR REVIEW AND APPROVAL PRIOR TO
SIGNING. NING. NO REPRESENTATION IS MADE BY THE REAL ESTATE LICENSEES
NAMED IN THIS AGREEMENT AS TO THE LEGAL SUFFICIENCY OR TAX
CONSEQUENCES OF THIS AGREEMENT.
SELLER:
J. T. B Properties, L.L.P.,
a Minnesota limited 'abili
partnership
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BUYER:
L HOLDINGS, .C.
a Minnesot Ithnite ility co pany
Real property located at:
5910
4?Ak?..Y., T
Washington County, Minnesota
Exhibit "A"
Legal Description
[street address or other identification]
[name o, f town]
See attached legal description.
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