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HomeMy WebLinkAbout2015-10-11 PACKET 04.02.B. Seller’s Contingencies 5.2. Seller’s obligation to proceed to Closing shall be subject to the satisfaction, on or prior to the Closing Date, of each of the following conditions: A.EDAshall have performed and satisfied all agreements, covenants and conditions required pursuant to this Agreement to be performed and satisfied by or prior to the Closing Date. B.All representations and warranties of EDAcontained in this Agreement shall be accurate as of the Closing Date. Seller may in its sole discretion waive any of theconditions precedents set out in this Section. Closing 6.. The closing of the purchase and sale contemplated by this Agreement st (the “Closing”) shall occur on the first (1) business day occurring thirty (30) days after the Contingency Date (the “Closing Date”). Seller agrees to deliver legal and actual possession of the Property to EDA on the Closing Date. Seller’s Closing Documents and Deliveries 6.1. On the Closing Date, Seller shall execute and/or deliver, as applicable, to EDA the following: Warranty Deed A.. A warranty deed conveying title to the Property toEDA, free and clear of all encumbrances, except the Permitted Encumbrances (the “Deed”). FIRPTA Affidavit B.. An affidavit of Seller certifying that Seller is not a “foreign person”, “foreign partnership”, foreign trust”, “foreign estate” or “disregarded entity” as those terms are defined in Section 1445 of the Internal Revenue Code of 1986, as amended. Seller’s Affidavit C.. A standard owner’s affidavit (ALTA form) from Seller which may be reasonably required by Title to issue an owner’s policy of title insurance with respect to the Property with the so-called “standard exceptions” deleted (excluding the survey exception). Settlement Statement D.. A settlement statement with respect to this transaction. General Deliveries E..All other documents reasonably determined by Title to be necessary to transfer the Property to EDAand to evidencethat Seller (a) has satisfied all monetary indebtedness with respect thereto, (b) has obtained such termination statements or releases from such secured creditors as may be necessary to ensure that the Property is subject to no monetary liens, (c) has obtained all consents from third parties necessary to effect Seller’s performance of the terms of this Agreement, including, without limitation, the 5 consents of all parties holding an interest in the Property, (d) has provided such other documents as are reasonably determined by Title to be necessary to issue policies of title insurance to EDAwith respect to the Property with the so-called “standard exceptions” deleted (excluding the survey exception), and (e) has duly authorized the transactions contemplatedhereby. Stormwater Pond Agreement F.. A stormwater pond agreement executed by Seller. EDAClosing Documents and Deliveries 6.2.. On the Closing Date, EDA shall execute and/or deliver, as applicable, to Seller the following: Payment of Purchase Price A..The Purchase Price, in accordance with the terms of Section 1.2. Settlement Statement B.. A settlement statement with respect to this transaction. FIRPTA Affidavit C.. An affidavit of EDAcertifying that EDAis not a “foreign person,” “foreign partnership,”foreign trust,” “foreign estate” or “disregarded entity” as those terms are defined in Section 1445 of the Internal Revenue Code of 1986, as amended. General Deliveries D.. All other documents reasonably determined by Title to be necessary to evidence that EDA has duly authorized the transactions contemplated hereby and evidence the authority of EDAto enter into and perform this Agreement and the documents and instruments required to be executed and delivered by EDApursuant to this Agreement, or may be required of EDA under applicable law, including any purchaser’s affidavits or revenue or tax certificates or statements. Prorations 7.. Seller and EDAagree to the following prorations and allocation of costs regarding this Agreement: Title Evidence, Surveyand Closing Fee 7.1.EDAshallpay all costs of the Commitment with respect to the Property.EDAshallpay allcost of the Survey.EDA shall pay all premiums for any title insurance policyit desires with respect to the Property. EDAand Seller shall each pay one half (1/2) ofany reasonable closing fee or charge imposed by Title. Transfer Taxes. 7.2EDAshall pay all state deed tax regarding the Deed. Recording Costs 7.3.EDAwill pay the cost of recording all documents necessary to place record title to the Property in Seller. EDAwill payall recording costs with respect to the recording of the Deedand for the recording of the mortgage, if any, and any mortgage registration tax, if any. 6 Real Estate Taxes and Special Assessments 7.4.General real estate taxes applicable to any of the Property due and payable in the year of Closing shall be prorated between Seller and EDAon a daily basis as of 12:00 a.m.CT on the Closing Date based upon a calendar fiscal year, with Seller paying those allocable to the period prior to the Closing Date and EDAbeing responsible for those allocable to the Closing Date and subsequent thereto. Seller shall pay in full all special assessments (and charges in the nature of or in lieu of such assessments) levied, pending, postponed or deferred with respect to any of the Property as of the Closing Date. EDAshall be responsible for any special assessments that are levied or become pending against the Property after the Closing Date, including, without limitation, those related to EDA’s development of the Property. Utilities 7.5. All utility expenses, including water, fuel, gas, electricity, sewer and other services furnished to or provided for the Property, ifany,shall be prorated between Seller and EDAon a daily basis as of the Closing Date, with Seller paying those allocable to the period prior to the Closing Date and EDAbeing responsible for those allocable to the Closing Date and subsequent thereto. Phase I Environmental Review 7.6.EDAshall pay all costs and expenses related to the Phase I Environmental Review of the Property. Attorneys’ Fees 7.7. Seller and EDAshall each pay its own attorneys’ fees incurred in connection with this transaction. Survival 7.8 . The obligations set forth in this Section 7 survive the Closing. Title Examination 8..(i) Within twenty (20) days following the Effective Date, EDA shall, at EDA’s expense, order acommitment for an owner’s title insurance policy (ALTA Form2006) issued by Title for the Property, and copies of all encumbrances described in the commitment (the “Commitment”); and (ii) within thirty (30) days following the Effective Date, EDAshallorder, at EDA’sexpense,an ALTA-certified survey bearing the legal description of the Property, and showing the area, dimensions and location of the Property (the “Survey” and, together with the Commitment, the “Title Evidence”). EDA’s Objections 8.1 . Within ten (10) days after EDA’s receipt of the last of the Title Evidence, EDAmay make written objections (“Objections”) to the form or content of the Title Evidence. The Objections may include without limitation, any easements, restrictions or other matters which may interfere with the Proposed Use of the Property or matters which may be revealed by the Survey. Any matters reflected on the Title Evidence which are not objected to by EDAwithin such time period or waived by EDAin accordance with Section 8.2(B)shall be deemed to be permitted encumbrances (“Permitted Encumbrances”).Notwithstanding the foregoing, the following items shall be deemed Permitted Encumbrances: (a) Covenants, conditions, restrictions (without effective forfeiture provisions) and declarations of record, if any; (b) Reservation of minerals or mineral rights by the State of Minnesota, if any; (c) Utility and drainage 7 easements which do not interfere with the Proposed Use; and (d) Applicable laws, ordinances, and regulations. EDAshall have the renewed right to object to the Title Evidence as the same may be revised or endorsed from time to time. Seller’s Cure 8.2. Seller shall be allowed twenty (20) days after the receiptof EDA’s Objections to cure the same but shall have no obligation to do so. If such cure is not completed within said period, or if Seller elects not to cure such Objections, EDA shall have the option to do any of the following: A.Terminate this Agreement with respect to all of the Property. B.Waive one or more of its objections and proceed to Closing. If EDAso terminates this Agreement, neither Seller nor EDAshall be liable to the other for any further obligations under this Agreement (except for such obligations as survive termination of this Agreement). Warrantiesand Representations 9.. By Seller 9.1. Seller warrants and represents the following to EDA, and acknowledges that EDAhas relied on such representations and warranties in agreeing to enter into this Agreement: A.This Agreement has been duly executed and delivered and constitutes the legal, valid and binding obligation of Seller enforceable in accordance with its terms. Seller has been duly formed under the laws of the State of Minnesota and is in good standing under the laws of the jurisdiction in which the Property is located, is duly qualified to transact business in the jurisdiction in which the Property is located, and has the requisite power and authority to enter into and perform this Agreement and the documents and instruments required to be executed and delivered by Seller pursuant hereto. This Agreement and the documents and instruments required to be executed and delivered by Seller pursuant hereto have each been duly authorized by all necessary action on the part of Seller and such execution, delivery and performance does and will not conflict with or result in a violation of Seller’s organizational agreement or any judgment or order. B.The execution, delivery and performance by Seller of this Agreement will not (a) violate any provision of any law, statute, rule or regulation or any order, writ, judgment, injunction, decree, determination or award of any court, governmental agency or arbitrator presently in effect having applicability to Seller, or (b) result in a breach of or constitute a default under any indenture, loan or credit agreement or any other agreement, lease or instrument to which Seller is a party or by which it or any of its properties may be bound. 8