Purchase and Sale Agreement

PURCHASE AND SALE AGREEMENT (University as Buyer) Real Estate Office Donhowe Building • Suite 424 319 15th Avenue SE Minneapolis, MN 55454-0199 (612) 625-5345 Effective Date: (Date last party signs agreement) University Tract No.: THIS PURCHASE AGREEMENT (the “Agreement”) is made and entered into effective , 20 by and between the Regents of the University of Minnesota (the "University"), a Minnesota constitutional corporation, and (the “Seller”), a . This agreement is entered into by the University through its . 1. Purchase And Sale. Subject to compliance with the terms and conditions of this Agreement, Seller hereby agrees to sell to University and University hereby agrees to purchase from Seller, all of Seller's right, title, and interest in and to the property: A parcel of land consisting of ( ) acres, more or less, [containing a building/ house, etc.] as legally described on Exhibit A (the “Property”). The Property shall include: 1.1. all improvements (the "Improvements") located thereon or therein; and 1.2. all appurtenant rights, easements, and all right, title, and interest of Seller in and to all streets, alleys, strips, gores, and rights-of-way over or abutting said land; 1.3. [Residential Property – taken from MSBA residential purchase agreement form] Personal Property And Fixtures. The following items of property and fixtures owned by Seller and currently located on the property are included in this sale (strike out items not included): garden bulbs, plants, shrubs, trees, storm windows and inserts, storm doors, screens awnings, window shades, blinds, curtain-traverse drapery rods, attached lighting fixtures with bulbs, plumbing fixtures, sump pumps, water heaters, heating systems, heating stoves, fireplace inserts, fireplace doors and screens, built-in humidifiers, built-in air conditioning units, built-in electronic air filters, automatic garage door openers with controls, television antennas, water softeners, built-in dishwashers, garbage disposals, built-in trash compactors, built-in ovens and cooking stoves, hood fans, intercoms, installed carpeting, work benches, security system, and any additional property as listed on Exhibit B (all of the foregoing hereinafter collectively referred to as the “Personal Property”). 2. Material Contracts. The Seller’s entire right and interest in and to all utility deposits and contracts that University elects to assume and the Seller’s entire right and FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 11 interest in all licenses, permits, and warranties now in effect with respect to the Real Property (the “Material Contracts”) as listed on Exhibit C. If there are no Material Contracts, Exhibit C shall list “NONE.” 3. Permitted Encumbrances. The sale of the Property is subject to the following encumbrances (herein referred to as the "Permitted Encumbrances"): building and zoning laws, county and municipal ordinances, state and federal regulations, easements, covenants, and restrictions of record accepted by University. 4. Purchase Price And Payment. University agrees to pay to Seller the Purchase Price of and /100 dollars ($ ) for said premises, of which the amount of and /100 dollars ($ ) is hereby received as Earnest Money and in part payment therefor. The Earnest Money shall be placed in an interest-bearing escrow account at (the “Title Company”) until such time that Seller and University close or terminate the transaction. The Earnest Money shall be refunded to University if this offer is not approved by the Board of Regents on or before the Closing Date or if this Agreement is terminated by University pursuant to the terms hereof. Said Earnest Money shall be refunded to University if this offer is not accepted by Seller within ten (10) days from the date of said offer. The balance of said purchase price shall be paid by check to Seller on or before (known hereinafter as the “Closing Date”), at which time the Seller’s warranty deed to said Property is to be delivered to University. This Agreement shall be effective upon the complete execution of this Agreement by both University and Seller (known hereinafter as the “Effective Date”). Acceptance of this offer by Seller shall be evidenced by delivery to University of the duplicate original copy of this Purchase Agreement properly executed by the Seller. Interest earned on the escrow account, if any, shall be part of the Earnest Money and shall apply to the purchase price at closing. 5. Conveyance. Seller shall convey marketable title to the premises to University by deed subject only to building and zoning laws, county and municipal ordinances, state and federal regulations, easements, covenants and restrictions of record accepted in writing by University. 6. Contingencies. The University shall have sixty (60) days after the Effective Date as defined in section (the “Contingency Date”) in which to make objections to the following matters (the “Objection Period”), except where otherwise stated. University shall investigate the property and determine that it meets the University’s satisfaction. In the event University exercises a contingency, University shall provide Seller with written notice detailing the date and reason for the failure of the contingency. Failure to object in writing to any or all of the contingencies on or before 5:00 p.m. on the Contingency Date shall constitute a waiver of said contingencies. In the event any of the following contingencies are not satisfied, University may terminate this Agreement and the Earnest Money shall promptly be refunded to University. Upon the return of the Earnest Money, this Agreement shall become null and void and of no further force and effect. Provisions to the contrary notwithstanding, the following contingencies shall be for the benefit of University only and University reserves the right to waive performance of any or all conditions. University shall provide written notice of the failure of any contingency as of the Contingency Date and, if FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 21 such contingency is not remedied on or before closing, this Agreement shall be terminated. If University does not provide Seller with written notice of the failure of any contingency as of the Contingency Date, said contingency shall be deemed waived and the parties shall proceed to consummate the Closing. University’s performance is expressly contingent on the following: 6.1. Title Commitment. Consistent with the provisions of section , Seller shall furnish to University a commitment to issue an ALTA owner’s policy of title insurance to include current searches for bankruptcy, tax and judgment liens, together with complete, legible copies of each document referenced in the Commitment. In addition, Seller will also deliver to University any prior title evidence it may have, such as a title abstract or policy, to expedite further examination of title. University shall be listed as the proposed insured and such commitment shall show marketable title. Seller shall provide the title commitment within twenty (20) days after the Effective Date of this Agreement. Seller shall also obtain so-called “gap coverage” or a gap endorsement to the title commitment at its own cost. The University shall be allowed thirty (30) days after receipt of the title commitment to examine title (the “Examination Period”). University shall then make its written objections, if any, within three (3) days after the end of the thirty (30)-day Examination Period. Seller shall have until fourteen (14) days before the Closing Date in which to cure any title objections raised in writing by the University or provide adequate written assurances that Seller shall convey marketable title at closing. The cost of any subsequent title insurance policy shall be at the University's sole cost and expense. 6.2. ALTA Survey. Seller shall provide University, at Seller’s sole cost and expense, an ALTA [urban, suburban, rural] land survey certified to University, which discloses conditions reasonably satisfactory to determine the marketability of title and insurability of the property. University shall be satisfied with its review of the certified survey meeting the requirements of an ALTA-ACSM [urban, suburban, rural] Land Title Survey Standards. Seller shall provide University with an ALTA land survey within thirty (30) days after the Effective Date. 6.3. Environmental Reports. Within ten (10) days after the Effective Date of this Agreement, Seller shall provide University with a complete copy of all existing environmental reports in the possession or under the control of the Seller, including, without limitation, all completed reports, any partially completed reports, any unreported or unsummarized tests including not yet finalized data, any recorded observations, any legal documents, any regulatory file information, or any correspondences related to possible environmental conditions that may impact the purchase, use or redevelopment of the property, such as, without limitation, all known or suspected releases of chemicals at the site, impacts to the soil or ground water, hazardous materials within any buildings existing at the time of this Agreement, environmental deed restrictions, past or potential future legal actions, complaints FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 31 regarding legal conditions, wells (sealed and unsealed), storage tanks (in use, removed, or abandoned), and any other related environmental conditions. University shall have the later of sixty (60) days after the Effective Date of this Agreement or thirty (30) days after receiving all environmental reports from Seller to review this information. 6.4. University’s Investigation. University shall have the right to enter upon the Property free of charge and make any such tests, measurements and inspections of the Property as University deems reasonably necessary. University shall have the later of sixty (60) days after the Effective Date of this Agreement or thirty (30) days after receiving all environmental reports from Seller as described in section of this Agreement to complete, at University’s sole expense, investigation actions on the Property to identify all hazardous substances, toxic, infectious, or pathogenic substances; or petroleum on the Property. This investigation will include a Phase I Environmental Site Assessment meeting the ASTM standards, a Phase II investigation of any environmental concerns identified by the Phase I, and any other investigation that is warranted to evaluate the full environmental conditions of the Property and any structures located on it. Seller will give University reasonable access to complete this investigation. University will repair the Property to a condition reasonably similar to prior to its investigation; Seller acknowledges that boreholes, limited destructive testing, and other investigative actions may partially impair the Property but, if reasonably addressed by University, will not be considered a material impairment of the Property. University agrees to promptly provide Seller copies of all completed reports. University agrees to indemnify, defend, and hold harmless Seller and the Property from any cost, charge, claim or lien arising therefrom, except for liability arising from conditions that existed prior to University’s presence on the Property and that were disclosed by University’s investigations of the Property. 6.5 University's Right To Terminate Based on Negative Environmental Conditions. University has the exclusive and unfettered right to terminate this Agreement and have any Earnest Money provided by University pursuant to this Agreement returned and this Agreement declared null and void if any negative environmental conditions are identified by University's review of Environmental Reports provided by Seller pursuant to section 6.3 of this Agreement or identified by University's Investigation pursuant to section 6.4 of this Agreement. 6.6. Board of Regents. The acquisition of the Property by the University is subject to the approval of the Board of Regents of the University of Minnesota. 6.7. Access. University shall have satisfied itself, in its reasonable discretion, that access to the Property from public roads or by private easement is adequate for University’s proposed use of the Property, including, without limitation, median cuts, curb cuts, changes in road elevation, and changes in access points. FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 41 6.8. Review of Existing Contracts. University shall have determined that it is reasonably satisfied with its review and analysis of the terms and conditions of any leases, permits, or other agreements regarding the property. 6.9. {Estoppel Certificate from Tenants. University shall have received during the Contingency Period from each of the Tenants an estoppel certificate in the form attached as Exhibit D, which certificate shall (a) disclose the term and rental and (b) certify that no default exists under that Tenant’s lease.} 6.10. Legislative Concurrence. Pursuant to Minn. Stat. §137.02, Subdivision 3a, the University shall obtain the concurrence of the Minnesota State legislature for the acquisition of this Property. 6.11. Seller’s Performance. Seller shall have materially performed each of its obligations under this Agreement. 6.12. Objections. Seller shall have the option to cure any objections that can be cured by the payment of money or to terminate this Agreement; provided, however, that Seller’s decision not to cure shall be made in good faith and Seller shall not unreasonably refuse to cure objections. If, during the Contingency Period or Title Cure Period, as the case may be, Seller shall fail or refuse to remove or cure timely objections made by University, or to have provided written assurances satisfactory to University that such objections shall be cured by Closing, the University shall be entitled, at its sole election, either (i) to terminate this Agreement without any liability on its part by written notice to Seller within three (3) days after the Contingency Period or Title Cure Period, as the case may be, in which case the Earnest Money shall be returned forthwith to University by the Title Company solely upon demand therefor and neither party shall have any further liability hereunder; or (ii) to consummate the purchase and sale contemplated hereby notwithstanding such objections. If, after the Contingency Date or Title Review Period and before Closing, the Title Company updates the Commitment to include additional exceptions to title not noted on the Commitment, the University may render objections to such additional exceptions and Seller shall be obligated to remove them before closing or provide reasonable assurances that such objections shall be cured by Closing. If Seller refuses or fails to have such additional objections cured or removed on or before Closing, University may, at its sole election, either (a) terminate this Agreement without any liability on its part in which case the Earnest Money and interest thereon shall be returned forthwith to University by the Title Company solely upon demand therefor; or (b) consummate the purchase and sale contemplated hereby notwithstanding such objections. If the Seller agrees to remove or cure said objections, then the University agrees to cooperate in good faith and as needed to complete the removal or cure. Seller shall be responsible for the cost of the cure or removal of the objection. 7. Buildings And Other Improvements. This offer relates , and including the following personal property: . Any personal property that has not been removed by the Seller within thirty (30) days following conveyance of the premises, and if not removed, shall be deemed abandoned by the Seller without obligations on the Seller's part and shall thereafter be and become the property of the University in place. 8. Acceptance Constitutes Contract. This offer of the University to purchase the Property when duly accepted and signed by the Seller shall constitute the entire agreement between the parties for the purchase and sale of the premises and shall bind and inure to the benefit of the Seller, the University, and their heirs, executors, administrators, successors, and assigns. 9. Remedies. Time is of the essence for this contract. If the University shall fail to perform this contract within the time limits herein specified, Seller may retain the Earnest Money as liquidated damages, not as a penalty or forfeiture, and declare this contract terminated. If the Seller shall fail to perform this contract within the time limits specified, University shall have the option to terminate this Agreement and receive the Earnest Money plus any interest or the University may proceed to have this contract specifically enforced. 10. Successors In Interest. Whenever referred to herein, the term University shall imply, mean, and apply to the University, any successors, assigns, heirs, executors, administrators, or designees, who shall be severally and collectively liable for any and all performance hereunder. Wherever referred to herein the term Seller shall imply, mean, and apply to the Seller, any successors, assigns, heirs, executors, administrators, or designees, who shall be severally and collectively liable for any and all performance hereunder. 11. Closing. Unless otherwise agreed to by the parties, this transaction shall be closed at the offices of the title company insuring the Property. Closing of the transaction shall occur fifteen (15) days after the Contingency Date (the “Closing Date”). Closing may be held prior to such time at the option of University, provided, however, that University must notify Seller at least seven (7) days in advance of such earlier closing date. The Closing date may be extended at the option of either University or Seller for three (3) one (1)-week periods. Closing costs, if any, shall be divided between the parties, as provided in sections 12 and 13. At closing, Seller shall deliver or cause to be delivered to University, at Seller's sole cost and expense, each of the following items: 11.1. A Warranty Deed, in recordable form, duly executed and acknowledged by Seller, conveying title to the Property to University, free and clear of all liens, taxes, restrictions, tenancies, occupancies, and encumbrances of every kind and description except: 11.1.1. Permitted Encumbrances specified in Section 3; 11.1.2. General real estate taxes and assessments that are a lien but that are not due and payable on the Closing Date, and special assessments caused by University's activities or improvements; and 11.1.3. FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 Easements, rights-of-way, restrictions, covenants, 61 reservations, and conditions of record, accepted in writing by University. 11.2. An Affidavit of Title by Seller indicating that there are no unsatisfied judgments, tax liens, or bankruptcies against or involving the Seller or the Property; that there are no labor or material furnished to the Property such to create a mechanic’s lien and there are no other unrecorded interests in the Property created by Seller. 11.3. A certification in a form to be provided or approved by the University, signed by the Seller under penalties of perjury, containing the following: 11.3.1. The Seller's U.S. Taxpayer Identification Number; 11.3.2. The home address of the Seller (or the business address of the Seller if the Seller is not an individual); and 11.3.3. A statement that the Seller is not a foreign person within the meaning of Section 1445 of the Internal Revenue Code (“IRC”), i.e., the Seller is not a nonresident alien, foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the IRC and Income Tax Regulations). 11.4. The appropriate Federal Income Tax Reporting Form, if any is required. 11.5. Pursuant to Minnesota Statutes 103I.235, the Seller shall provide either (a) a certification upon the conveyance instrument that the Seller does not know of any wells on the described real property, or (b) a properly executed well disclosure certificate for recordation along with the conveyance instrument at closing. If the premises contain any wells that are not in use, inoperable, disconnected from a power supply, and not sealed, the Seller shall assume all costs of the sealing of said wells by a licensed well contractor prior to closing. 11.6. All additional documents and instruments as in the opinion of University’s Real Estate Office or legal counsel are necessary to the proper consummation of this transaction. 11.7. Keys to all locks on the Real Property. 11.8. Copies of all appraisal reports, plans, specifications, and other records in Seller’s possession and related to the Real Property. 11.9. Abstracts for the Real Property, if not previously delivered to the Title Company. 11.10. Such evidence or documents as may be reasonably required by the University or the title company evidencing the status and capacity of Seller and the FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 71 authority of the person or persons who are executing the various documents on behalf of the Seller in connection with the sale of the Property. 11.11. Seller shall provide to University draft copies of all of Seller’s proposed closing documents at least five (5) business days prior to the scheduled closing date. If such documents are not received in a timely manner, University may extend the closing date accordingly. 12. Closing Costs. Closing costs shall be considered those costs that are payable at time of closing and reconciled in a closing statement prepared by the title company. “Closing Costs” include costs payable at closing. University shall be solely responsible for all fees associated with a wire transfer payment, recording fees for deed and attendant documents, title insurance policy premium and any fees for professional services such as for an attorney or real estate broker used by University in this transaction, any and all mortgage origination, processing, commitment and related financing fees if University is obtaining a mortgage to finance this purchase. Seller shall be solely responsible for the title commitment fees, any fees and costs associated with professional services, such as a real estate agent, broker or attorney used by the Seller for this transaction, state deed tax, all general or special assessments, any balance due remaining on a mortgage or other financing instrument encumbering the property, and recording fees incurred for clearing title before closing. Real Estate Taxes and Special Assessments shall be prorated based on the calendar year consistent with Section 13. 13. Real Estate Taxes And Special Assessments. The Seller shall pay all real estate taxes due and payable in the year of closing and prior years, along with all special assessments, including future installments thereof, which are levied or pending as of the closing date. The University shall pay all applicable real estate taxes payable in the years subsequent to the date of conveyance of the premises, and any special assessments levied or pending after the closing date. 14. Evidence Of Title. The Seller shall, within twenty (20) days after the Effective Date, furnish to the University, at Seller's expense, a Title Commitment with extended coverage in the amount of the purchase price set out herein and for the issuance to the University of an owner's title insurance policy for the premises, with the cost of any subsequent title insurance policy to be obtained by the University to be at the University's expense. Seller shall include with the commitment complete, legible copies of each document referenced in the Commitment. In addition, Seller will deliver to University any prior title evidence it may have, such as an abstract or title policy, to expedite further examination of title. The University shall be allowed twenty (20) days after receipt thereof for examination of said title and the making of any objections thereto, said objections to be made in writing or deemed to be waived. At closing, when title is transferred to University, Seller shall cause to be delivered to University an owner’s policy with extended coverage containing a “gap” endorsement, guaranteeing the Seller's title to be in the condition required by this Agreement. 15. Quality Of Title And Title Defects. If University delivers written title objections to Seller, the Seller shall be allowed to make such title marketable no less than fourteen (14) FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 81 days before closing (“Title Cure Period”). Pending correction of title, the closing and any payments hereunder required may be postponed, but upon correction of title and within ten (10) days after written notice to the University, the parties shall perform this agreement according to its terms. If said title is not marketable and is not made so at least fourteen (14) days before the closing, then this agreement shall be null and void, and neither Party shall be liable for damages hereunder to the other Party. All money theretofore paid by the University shall be refunded. If the title to said property is found marketable or can be made so at least fourteen (14) days prior to closing, and said University shall default in any of the agreements and continue in default for a period of ten (10) days, then and in that case the Seller may terminate this contract and on such termination all the payments made upon this contract shall be retained by said Seller as liquidated damages, time being of the essence hereof. 16. Liens Of Seller’s Mortgages. At closing, Seller shall deliver to University, who shall place of record, at Seller's cost, good and sufficient releases of the liens of Seller's mortgages encumbering the premises. In the event Seller shall be unable to obtain said releases for any reason, the University shall have the right to terminate this agreement upon serving written notice of termination upon the Seller within fifteen (15) days thereafter, and both parties shall thereupon be released and discharged from all liabilities and obligations hereunder, except that Seller shall repay to University any and all sums theretofore paid by University to Seller hereunder and shall reimburse University for all costs incurred in conjunction with this Purchase Agreement. 17. Other Liens. Any judgment against Seller that may appear of record as a lien against the premises shall be settled and satisfied by Seller prior to closing. 18. Existing Agreements. Exhibit C hereto includes a detailed listing of any current leases, licenses, permits, easements, or other agreements pertaining to the use of the premises by parties other than the Seller, which do not appear of record. Seller agrees that the Seller’s interest in said agreements, being with parties other than the University, and if deemed acceptable by the University, shall be assigned to University upon date of closing. University shall determine, in its reasonable judgment, whether those agreements are unacceptable and will direct Seller to terminate such Agreements prior to closing. The University and Seller also mutually agree that pro-rata adjustments of rents, interest, insurance, and current operating expenses for all continuing agreements shall be made as of the date of closing. The Seller shall not execute any agreements relating to the premises after the acceptance of the University’s offer herein contained, without the prior written consent of the University, which consent may be withheld by the University at its sole discretion. 19. Recordation Of Deed And Transfer Taxes. The University shall promptly file the conveyance instrument for recordation among the land records of the county in which the property is located. The University agrees to pay any and all fees incidental to recordation of the conveyance instrument. 20. Transfer Of Possession. The Seller agrees to deliver vacant possession of the premises, free of debris, not later than the date of closing, provided that all conditions of this agreement FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 91 have been complied with, subject only to encumbrances of record and the agreements identified in Exhibit B, which have been deemed acceptable by the University. 21. Control Of Premises, Condemnation, Casualty Loss. 21.1. Seller’s Risk of Loss. Until Closing, Seller shall have the full responsibility and the entire liability for any and all damages or injury of any kind whatsoever to the Property, and to any and all persons, whether employees or otherwise, and all property from and connected to the Property. 21.2. Condemnation. If at any time prior to Closing, legal proceedings are commenced under the power of eminent domain by any party other than the University against the Property (or any part thereof), Seller shall promptly notify University of such fact, in writing, and furnish to University as part of said notice full copies of all pleadings, correspondence and other documents and data pertaining thereto. University shall have the option, which it must exercise within fifteen (15) business days after its receipt of written notice from Seller of the pendency of any such proceedings, to terminate this Agreement and receive the return of all Earnest Money or to agree to proceed with the Closing. If University elects to terminate this Agreement, the Earnest Money shall be returned to University solely upon demand therefor, and the parties shall have no further rights, duties, or obligations hereunder. If University elects to proceed with the Closing, it shall be obligated to do so without a reduction in the amount of the Purchase Price (except as otherwise specified in this Agreement) but University shall be entitled to any and all awards payable to the extent of such purchase price as a result of such condemnation or eminent domain proceedings and, to the extent the same may be necessary or appropriate, Seller shall assign to University at Closing Seller’s rights to such awards. 21.3. Damage/Destruction. If, prior to Closing, the Property (or any part thereof) is substantially destroyed or damaged, Seller shall have the right to terminate this Agreement, shall promptly return the Earnest Money to University, and the parties shall have no further rights, duties, or obligations hereunder. If the damages to the Property are fully insured and are not “substantial” as defined below, University shall be obligated to proceed to Closing (subject to the other provisions hereof) but University shall be entitled to any insurance proceeds payable to Seller as a result of such damage and, to the extent the same may be necessary or appropriate, Seller shall assign to University at Closing Seller’s rights to such proceeds. If insurance proceeds are not adequate to cover the costs of such damage, Seller shall repair all damage at its expense prior to Closing. For the purposes of this Section 21.3, damage or destruction to the improvements shall be deemed “substantial” if the loss in question is reasonably estimated by Seller or Seller’s insurer to exceed $10,000. 21.4. Insurance in Force. Seller shall maintain sufficient property and liability insurance coverage for the Property during the course of this Agreement. 22. Representations And Warranties. FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 101 22.1. Seller’s Representations and Warranties. guarantees, and represents as follows: Seller states, warrants, 22.1.1. Good and Marketable Title. That Seller has and will have at time of closing good and marketable title to the Property, subject only to the Permitted Encumbrances. 22.1.2. Title and Authority to Convey. That Seller has and will have at time of closing full right and authority to convey the Property, and in regard thereto to execute this Agreement and to execute and deliver all documents required of Seller for the consummation of this Agreement. 22.1.3. Authority to Bind. That the persons signing this Agreement on behalf of the Seller are duly authorized to do so and their signatures bind the Seller in accordance with the terms of this Agreement. 22.1.4. Free of Tenancies. That the Property shall be free of all tenancies on the date of closing. 22.1.5. Option. That no person, firm, corporation, or entity has any option, right of first refusal, or similar right to acquire the Property, or any part thereof, from Seller. 22.1.6. Eminent Domain. That Seller has no knowledge of any condemnation proceedings having been instituted or threatened against the Property. 22.1.7. Violations of Law. That Seller has received no notice of, nor has Seller any knowledge of, any violations of any federal, state, county, or municipal laws, ordinances, orders, regulations, or requirements affecting the Property. 22.1.8. Foreign Person Pursuant to IRS. That the Seller is not a foreign person within the meaning of Section 1445 of the IRC, i.e., the Seller is not a nonresident alien, foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the IRC and Income Tax Regulations). 22.1.9. Separate Parcel. That no tax parcel split or administrative subdivision or other governmental administrative action is necessary to convey title or record the deed to the Real Property, or, if any such action is necessary, Seller shall complete such action at its sole cost and expense as a necessary condition of Closing. 22.2. University’s Warranties, Representations, and Covenants. University warrants, represents, and covenants as follows: FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 111 22.2.1. Authority to Bind. The University has the power to enter into this Agreement and consummate the Agreement pursuant to the terms hereto. 22.2.2. Financial Ability. The University has the financial capacity to meet its obligations specified in this Agreement. 22.2.3. Timely Performance. The University will timely perform its obligations specified in this Agreement. 22.3. Representations and Warranties Survive Closing. The representations and warranties contained in this section shall be true and correct on the date of closing and shall survive the closing and continue in full force and effect notwithstanding the closing and consummation of the transaction contemplated herein, and the obligation of the University to close this transaction is expressly conditioned upon said representations. 23. Environmental Hazards. Except as otherwise disclosed by Seller pursuant to section of this Agreement or disclosed within the Environmental Reports provided by Seller pursuant to section 6.3 of this Agreement, to the best of Seller's knowledge, which includes the knowledge of any employees, agents, or other parties under Seller's control: (1) no toxic, infectious, pathogenic, or hazardous substances or wastes, pollutants, or contaminants (including, without limitation, asbestos urea formaldehyde the groups of organic compounds known as polychlorinated biphenyls, volatile organic compounds, or polycyclic aromatic hydrocarbons; mercury; other heavy metals; medical waste: radioactive materials; or any other local, state, or federal regulated substance) as defined by any federal, state, or local environmental laws, ordinances, rules, regulations, or regulatory guidance documents ("Environmental Laws") (collectively "Hazardous Substances") are located on, in, under, or above the Property; have been released on, in, under, or above the Property; or have been or are currently being handled on the Property in violation of any of the Environmental Laws; (2) no substance or conditions exist in, on, under, or above the Property that may support a claim or cause of action under any of the Environmental Laws; (3) no aboveground or underground storage tanks are located on, in, or about the Property or have in the past been located on, in, or about the Property; and (4) no sewage treatment systems, including septic systems of any kind, are located on, in, or about the Property or have in the past been located on, in, or about the Property. 24. Seller’s Duty To Disclose. Seller has a duty to disclose all conditions known to Seller or any of Seller’s agents, employees, or affiliated parties, regarding the environmental conditions of the Property. This includes, without limitation, the results of all completed reports, any partially completed reports, and any unreported or unsummarized tests or observations made related to possible environmental conditions that may impact the purchase, use, or redevelopment of the property, including, but not limited to, all known or suspected releases of chemicals at the site, impacts to the soil or ground water, hazardous materials within any buildings existing at the time of this Agreement, environmental deed restrictions, past or potential future legal actions, complaints regarding environmental FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 121 conditions, wells (sealed and unsealed), storage tanks (in use, removed, or abandoned), and any other related environmental conditions. Pursuant to Minnesota Statutes 116.48, Subdivision 5, the Seller shall, within a reasonable time after the acceptance of the University's offer herein contained, provide the University with the required written notice relating to any underground or aboveground storage tanks that the Seller knows are located within the legally described boundaries of the premises, and of any releases of regulated substances for which no corrective action has been taken that the Seller knows have occurred within the legally described boundaries of the premises. To the extent that storage tanks exist on or under the premises, Seller affirms that such storage tanks have been duly registered with all appropriate regulatory and governmental bodies and otherwise are in compliance with applicable Federal, state, and local statutes, regulations, ordinances, and other regulatory requirements. The Seller will provide University prior to closing a copy of any current tank registrations. Notwithstanding anything to the contrary contained herein, Seller will remain a responsible party for the purpose of environmental response costs, if any, including testing, clean up, damages, and costs incurred, pursuant to Minnesota and/or Federal law attributable to all activities conducted on the property prior to the date University purchases said property. Seller represents and warrants that Seller has no knowledge of any environmental hazard that does or may affect the property, nor of any prior use that could have caused or contributed to any environmental contamination of said property. The conditions of this paragraph shall survive the closing. Optional To Be Added If The Property Has Known Environmental Impacts That The University Wants Cleaned Up By Seller Prior To Closing. Cleanup Responsibility. Seller shall, at Seller's sole expense, be responsible for all investigation activities beyond the University's Investigation described in Section 6.4 of this Agreement, and responsible for all remediation activities (including all response actions or cleanup actions) related to the Property as required by the MPCA or any other entity of state or local government to address all impacts from hazardous, toxic, pathogenic, infectious, or otherwise environmentally regulated substances known prior to the Closing Date of this Agreement. After completion of these actions, Seller shall, at Seller's sole expense, endeavor to obtain from MPCA, on or before the Closing Date of this Agreement, a "Certificate of Completion" pursuant to Minnesota Statutes §115B.175, certifying that the Seller has completed response actions at the Property under a plan approved by the MPCA that have adequately investigated and cleaned up all known contaminants on the Property as of the Closing Date of this Agreement. If it is not possible to obtain a "Certificate of Completion," Seller shall, at Seller's sole expense, obtain from the MPCA, on or before the Closing Date of this Agreement, a "No Action" letter pursuant to Minnesota Statutes §115B.0118, stating that the MPCA will not require any additional investigation or cleanup actions related to the known contaminants on the Property as of the Closing Date of this Agreement. Seller shall promptly deliver and assign to the University, to the degree allowable by the MPCA, any assurance documents received by Seller from the MPCA. University and Seller acknowledge that the MPCA assurance documents are subject to the limitations and disclosures as expressed in the assurance documents. 25. Special Provisions. FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 131 25.1. Well Disclosure. Pursuant to Minnesota Statutes §103I.235, the Seller shall either provide a certification upon the conveyance instrument that the Seller does not know of any wells on the described Real Property, or provide a properly executed well disclosure certificate for recordation along with the conveyance instrument at closing. If the Real Property contain any wells that are not in use, inoperable, disconnected from a power supply, and not sealed, the Seller shall have said wells sealed by a licensed well contractor prior to closing and shall bear all costs thereof. 25.2. Sewer Treatment System. Pursuant to Minnesota Statutes §115.55, Subdivision 6, the Seller shall either provide a certification that there is no individual sewage treatment system on or serving the described Real Property, or provide a properly executed disclosure statement describing the system, indicating the legal description of the Real Property and the county in which the Real Property is located, and including a map drawn from available information showing the location of the system on the Real Property to the extent practicable. The disclosure statement must indicate whether the individual sewage treatment system is in use and, to the Seller’s knowledge, is in compliance with applicable sewage treatment laws and rules. 25.3. Storage Tanks. Pursuant to Minnesota Statutes §116.48, Subdivision 5, the Seller shall, within ten (10) days after the Effective Date provide the University with the required written notice relating to any underground or aboveground storage tanks that the Seller knows are located within the legally described boundaries of the Real Property, including the location of same, and of any releases of regulated substances that the Seller knows have occurred within the legally described boundaries of the Real Property. If storage tanks exist on or under the Real Property, Seller affirms that such storage tanks have been duly registered pursuant to Minnesota Statutes Section §116.48, Subdivision 6, and with all other appropriate regulatory and governmental bodies and otherwise are in compliance with applicable federal, state, and local statutes, regulations, ordinances, and other regulatory requirements, and Seller shall remove at its expense each such tank prior to closing in accordance with all applicable laws and regulations. In the event of such removal, Seller shall provide University with a copy of the legally required evidence of such removal by a certified contractor and evidence that no release or need for remediation has been detected, or if remediation is necessary, that it has been completed. After the Effective Date, Seller agrees to provide prior notice of the removal to University and to permit University to observe the removal. If any hazardous substance release or contamination is discovered during the removal, Seller shall comply with the provisions set forth in section 6.1 above and the Closing shall not be delayed as long as Seller so complies. The Seller will provide University a copy of any current tank registrations within ten (10) days after the Effective Date. 26. Notices And Demands. All notices, requests, and other communications that a party is required or elects to deliver shall be in writing and shall be delivered personally, or by facsimile or electronic mail (provided such delivery is confirmed), or by a recognized overnight courier service or by United States mail, first-class, certified or registered, postage FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 141 prepaid, return receipt requested, to the other party at its address set forth below or to such other address as such party may designate by notice given pursuant to this section: If to the University: University of Minnesota c/o Real Estate Office 424 Donhowe Building 319 15th Avenue SE Minneapolis, MN 55455-0199 Facsimile No.: (612) 624-6345 E-mail: reo@umn.edu University of Minnesota Office of the General Counsel Attn.: Transactional Law Services Group 360 McNamara Alumni Center 200 Oak Street SE Minneapolis, MN 55455-2006 Facsimile No.: (612) 626-9624 E-mail: contracts@mail.ogc.umn.edu With a copy to: If to the Seller: Attn.: Facsimile No.: E-mail: 27. Real Estate Commissions. University and Seller hereby warrant and affirm that no commissioned real estate broker represents that party with respect to its purchase or sale of the premises hereunder, and University and Seller each hereby agrees to defend and indemnify the other party with respect to any brokerage fee or commission or related cost so incurred. 28. Attorneys’ Fees. Each of the parties will pay its own attorneys’ fees, except that a party defaulting under this Purchase Agreement will pay the reasonable attorneys’ fees and court cost incurred by the non-defaulting party to successfully enforce its rights regarding such default. 29. Controlling Law. This Purchase Agreement has been made under the laws of the State of Minnesota, and such laws will control its enforceability. In the event any provision hereof is deemed unenforceable, the other provisions will prevail. 30. Captions. The paragraph headings, or captions appearing in this Purchase Agreement are for convenience only, are not a part of this Purchase Agreement, and are not to be considered in interpreting this Purchase Agreement. FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 151 31. Counterparts. This Purchase Agreement is executed in two (2) counterparts, each of which shall constitute one and the same instrument. 32. University’s Waiver Rights. University, at its option, may waive any right conferred upon the University by this Agreement. Except as provided otherwise herein, such waiver may be made by, and only by, giving Seller written notice specifically describing the right waived. 33. Amendment. This Agreement shall be amended only by a written instrument signed by Seller and University. 34. Expiration Date. Unless both parties hereto have signed this Agreement on or before , 20 , this Agreement shall be terminated automatically, and any party signing prior to said date shall have no liability hereunder whatsoever. 35. Effective Date. The Effective Date of this Agreement shall be the date it is signed by the last of the signatories (including all required recommendations). 36. Confidentiality. Unless Seller specifically and expressly otherwise agrees in writing, University agrees that all information regarding the Real Property of whatsoever nature made available by Seller or generated by University (the “Proprietary Information”) is confidential and shall not be disclosed to any other person except for disclosures (a) to those assisting University with the acquisition, leasing, development, management, sale and/or financing of the Real Property, and then only after University has made such person or entity aware of this confidentiality restriction, (b) required by judicial, statutory, or governmental requirements, or (c) required by regulations or applicable accounting rules or regulations. If this purchase and sale fails to close for any reason whatsoever, University shall promptly return or cause to be returned to Seller all Proprietary Information provided to University by Seller. The provisions of this paragraph shall survive the closing or termination of this Agreement. 37. Merger/Survival. All understandings and agreements heretofore had between the parties are merged into this Agreement, which alone fully and completely expresses their agreement. All representations, covenants, obligations, and agreements contained herein shall survive the Closing. The attached Exhibits Purchase Agreement. are incorporated by reference and hereby made a part of this FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 161 IN WITNESS WHEREOF, University and Seller have executed this Agreement on the day and year first above written. Regents of the University of Minnesota By: Name: Title: Date: By: Name: Title: Date: FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 171 EXHIBIT A Legal Description of Property FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 A-11 EXHIBIT B Personal Property FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 B-11 EXHIBIT C Material Contracts FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 C-11 EXHIBIT D Estoppel Certificate FORM: OGC-SC628 Form Date: 06.01.01 Revision Date: 07.01.02 D-11