AGREEMENT FOR SALE AND PURCHASE OF PROPERTY

[Northgate II, Maple Grove, MN]

This AGREEMENT FOR SALE AND PURCHASE OF PROPERTY (this “Agreement”) is made and entered into as of January 26, 2015, by and between IRET – LEXCOM, LLC, a North Dakota limited liability company (the “Seller”), and VASCULAR SOLUTIONS, INC., a Minnesota corporation (the “Buyer”).  The current notice address of each party is set forth in Section 16 below.

 

In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:

 

 

(a)

Building.  The building(s) located on the Land.

 

(b)

Buyer’s Broker.  None; Buyer is not represented by a broker in this transaction.

 

(c)

CAM Payments.  Reimbursements, payments, or escalations due under the Leases from Tenants for Operating Expenses.

 

(d)

Closing.  The closing and consummation of the purchase and the sale of the Property pursuant hereto.

 

(e)

Closing Agent.  Stewart Title of Colorado, Inc., 55 Madison Street, Suite 400, Denver, CO 80206, Attn: Carma Weymouth, which shall also act as escrow agent pursuant to the escrow agreement attached hereto as Exhibit 1(e).

 

(f)

Closing Date.  The date on which the Closing occurs as provided in Section 10 hereof.

 

(g)

Closing Year.  The calendar year in which the Closing occurs.

 

(h)

Code.  The Internal Revenue Code of 1986, as amended.

 

(i)

Contract Date.  The date upon which this Agreement shall be deemed effective, which shall be the date first above written.

 

(j)

Contracts.  All of the contracts to which Seller is a party that relate or pertain to the Property, or the operation or maintenance thereof, including, without limitation, if any, service contracts, management contracts, and equipment leases.

 

(k)

Deed.  The limited warranty deed to be executed by Seller in the form attached hereto as Exhibit 3.

 

(l)

Due Diligence Documents.  The documents and information set forth on Exhibit 2, to be provided to Buyer by Seller pursuant to Section 6.1 below.

 

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(m)

Environmental Laws.  Any applicable statute, code, enactment, ordinance, rule, regulation, permit, consent, approval, authorization, license, judgment, order, writ, common law rule (including, but not limited to, the common law respecting nuisance and tortious liability), decree, injunction, or other requirement having the force and effect of law, whether local, state, territorial or national, at any time in force or effect relating to:  (i) emissions, discharges, spills, releases or threatened releases of Hazardous Substances into ambient air, surface water, ground water, watercourses, publicly or privately owned treatment works, drains, sewer systems, wetlands, septic systems or onto land; (ii) the use, treatment, storage, disposal, handling, manufacturing, transportation or shipment of Hazardous Substances; (iii) the regulation of storage tanks or sewage disposal systems; or (iv) otherwise relating to pollution or the protection of human health or the environment.

 

(n)

Hazardous Substances.  All substances, wastes, pollutants, contaminants and materials regulated, or defined or designated as hazardous, extremely or imminently hazardous, dangerous, or toxic, under the following federal statutes and their state counterparts, including any implementing regulations:  the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136 et seq.; the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.; the Hazardous Materials Transportation Act, 42 U.S.C. §§ 1801 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; or any other federal, state, or municipal statute, law or ordinance regulating or otherwise dealing with or affecting materials deemed dangerous or hazardous to human health or the environment; with petroleum and petroleum products including crude oil and any fractions thereof; with asbestos; and with natural gas, synthetic gas, and any mixtures thereof.

 

(o)

Improvements.  The Building and any other buildings, structures, sidewalks, drives, parking lots, landscaping and improvements located upon the Land, including all systems, facilities, fixtures, machinery, equipment and conduits to provide fire protection, security, heat, exhaust, ventilation, air conditioning, electrical power, light, plumbing, refrigeration, gas, sewer, and water thereto (including all replacements or additions thereto between the Contract Date and the Closing Date).

 

(p)

Land.  The fee or other estate in each tract or parcel of land described in Exhibit 1, and all privileges, rights, easements, and appurtenances thereto belonging.

 

(q)

Leases.  All leases and other agreements granting third parties rights of possession or occupancy of the Property or any part thereof, including any modifications, supplements or amendments thereto.

 

(r)

Operating Expenses.  Utility charges (including without limitation water, electricity, sewer, gas, and telephone), operation expenses, maintenance expenses, fees paid or payable under any licenses and permits in respect to the Property, and any other recurring costs or expenses relating or pertaining to the Property.

 

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(s)

Plans.  Copies of all as-built blueprints, drawings, site plans, engineering and architectural plans and specifications, and similar plans for the Improvements as may be in the possession of Seller or under its control.

 

(t)

Property.  All of Seller’s right, title and interest in, to and under the following: (i) the Land; (ii) the Improvements; (iii) the Leases; (iv) to the extent Buyer elects to assume the same at Closing, the Contracts; (v) the Plans; and (vi) if any, the Warranties.

 

(u)

Prorate.  The division of income and expenses of the Property between Seller and Buyer based on their respective periods of ownership during the Closing Year and as of 12:01 a.m. on the Closing Date.

 

(v)

Rent.  All (i) rent payable by Tenants pursuant to the Leases (including without limitation fixed, minimum and base rents, and CAM Payments), and (ii) if any, all other income generated by or otherwise derived from the Property.

 

(w)

Security Deposits.  All security deposits under the Leases, including any accrued interest required by the Leases or applicable law, but excluding any such sums that have been properly applied pursuant to applicable law prior to Closing toward Tenant defaults.

 

(x)

Seller’s Broker.  None; Seller is not represented by a broker in this transaction.

 

(y)

Taxes.  All general real estate (including special assessments), ad valorem, sales, and personal property taxes assessed against the Property.

 

(z)

Tenants.  The tenants under the Leases.

 

(aa)

Title Commitment.  A commitment for an ALTA Owner’s Title Insurance Policy for the Property, issued by Title Company in the full amount of the Consideration, agreeing to insure title to the Property on or after the Contract Date, showing Seller as owner of the Property, and indicating the conditions upon which Title Company will issue full extended coverage over all general title exceptions contained in such policies, and including such endorsements as Buyer may request.

 

(bb)

Title Company.  Stewart Title Guaranty Company, 55 Madison Street, Suite 400, Denver, CO 80206, Attn: Aniko Coburn.  The parties agree that the Title Company shall issue the Title Commitment and the Title Policy.

 

(cc)

Warranties.  Any and all warranties, permits, licenses, guaranties and similar contracts in favor of Seller relating or pertaining to the Improvements or related to the Property and use, occupancy and operation thereof, including, without limitation, any roof warranties.

 

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(a)

General.  For purposes of calculating prorations, Buyer shall be deemed to be in title to the Property, and therefore entitled to the income therefrom and responsible for the expenses thereof, for the entire day upon which the Closing occurs.  All prorations shall be made on the basis of the actual number of days of the year and month that shall have elapsed prior to the Closing Date.

 

(b)

Rent.  The parties shall Prorate all Rent (including without limitation CAM Payments) other than Delinquent Rent (which is defined and covered in Section 4.2(e) below) with Seller receiving the portion thereof attributable thereto including the day prior to the Closing Date and Buyer receiving the portion thereof attributable to the Closing Date and the period following the Closing Date.  If Seller receives payment for Rent after Closing, Seller shall immediately pay to Buyer the portion of such payment which relates to the period on and after the Closing Date, and any portion of such payment which relates to the period prior to Closing which was credited to Seller at Closing.

 

(c)

Taxes.  Notwithstanding any local custom or practice to the contrary, or allocation, general real estate taxes and installments of special assessments payable therewith payable in 2015 shall be prorated between Seller and Buyer as of the Closing Date based upon the “Proposed levies and taxes” for 2015 that was received by Seller on November 17, 2014.  Seller shall pay on or before closing all of the general real estate taxes payable in calendar year 2014 and installments of special assessments payable therewith, and Buyer shall pay all of the general real estate taxes payable in calendar year 2015 and thereafter and all installments of special assessments payable therewith.  If after Closing either party receives a refund of any Taxes that were prorated pursuant to this Agreement, then the parties shall equitably share the refund (subject to any portion of the refund that is due to the Tenants pursuant to the Leases).

 

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(d)

Operating Expenses.  Except for Taxes, which are covered by Section 4.2(c) above, the parties shall Prorate all Operating Expenses.  The prorations under this subsection shall be based on actual invoices if reasonably possible.  If actual invoices are not available in advance of Closing, then the prorations shall be calculated based on Seller's and Buyer's good faith estimates thereof.  Seller shall order final meter readings to be made as of the Closing Date for all utility services serving the Property that are in Seller’s name; Buyer shall coordinate the transfer of all such utilities to Buyer effective on the Closing Date.  Seller shall pay all utility charges for the Property (excluding any utilities held in the name of any Tenants) through the day preceding the Closing Date.  Commencing on the Closing Date, Buyer shall pay all utility charges for the Property (excluding any utilities held in the name of any Tenants).

 

(e)

Delinquent Rent.  For purposes of this Section 4.2, “Delinquent Rent” shall mean any Rent that, under the terms of the applicable Lease, was more than 30 days past due as of the Closing Date and which has not been received in good funds by Seller on or prior to the Closing Date.  Delinquent Rent shall not be accrued or prorated at Closing.  Any Delinquent Rent that is received by Buyer after the Closing Date shall be paid to Seller; provided, however, that all Rent collected after the Closing Date shall be applied first to payment of all Rent due Buyer from the applicable Tenant, and then after any deduction allowed by this subsection for collection costs, to all Delinquent Rent due to Seller.  Following Closing, Buyer shall have no obligation to seek to collect Delinquent Rent or to commence any legal proceedings or to terminate any Lease.  If Buyer commences any action or proceeding against any Tenant and as a result thereof collects any Delinquent Rent which Buyer is required to remit to Seller, Buyer shall be entitled to deduct and retain a portion of the amount collected which is equal to the prorata share of the reasonable third party expenses incurred by Buyer in connection with the collection of any such Delinquent Rent.  Upon notice to Buyer, Seller may seek to collect Delinquent Rent; provided, however, Seller may not seek to disposses or evict any Tenant or seek application of any Security Deposit.  Buyer shall not waive any Delinquent Rent or modify or amend any Lease so as to reduce the Delinquent Rent owed by the Tenant for any period in which Seller is entitled to receive such Delinquent Rent, without first obtaining Seller’s written consent (which consent shall not be unreasonably withheld, conditioned or delayed).

 

(f)

Tenant Obligations.  Notwithstanding anything in this Section 4.2 to the contrary, if any Tenant is obligated under its Lease to directly pay any Operating Expenses, then said items will not be prorated between the parties.

 

 

(g)

Proration Statement.  As soon as reasonably possible prior to Closing, Seller and Buyer shall work together in good faith to prepare a joint statement of the prorations required by this Section (“Proration Statement”), and shall deliver the Proration Statement to the Closing Agent for use in preparing the final settlement statements.

 

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(h)

Post-Closing Reconciliation.  As soon as reasonably possible after Closing, but in no event more than 90 days after Closing, the parties shall work in good faith to complete a reconciliation of all prorations not conclusively determined on the Closing Date and of Seller’s receipt of CAM Payments (“Reconciliation”).  If there is an error on the Proration Statement used at Closing or, if after the actual figures are available as to any items that were estimated on the Proration Statement, then the proration or apportionment shall be adjusted based on the actual figures.  As soon as reasonably possible, but in no event more than 60 days after Closing, Seller shall provide to Buyer an accounting detailing both the CAM Payments actually collected by Seller in the Closing Year, and all of the Operating Expenses attributable to the Closing Year that were actually paid by Seller.  As part of the Reconciliation, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, the difference between the actual CAM Payments collected by Seller from Tenant under the Lease and Tenant’s proportionate share of the Operating Expenses for the corresponding period.  Either party owing the other party a sum of money based on the Reconciliation shall pay said sum to the other party within 5 business days of the completion of the Reconciliation.  Seller and Buyer shall each be responsible for the accounting and validity of billings to Tenants for those Operating Expenses incurred during each of Seller’s and Buyer’s respective periods of ownership of the Property.  This subsection shall survive Closing.

 

 

 

Section 5.

 

 

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7.1.1.     Lease.  The Leases made available to Buyer pursuant to Section 6.1 hereof are complete and accurate copies of all of the Leases currently in effect with respect to the Property, and the Leases have not been amended, supplemented or otherwise modified.  To Seller’s knowledge, the Leases are in full force and effect and neither Seller, nor any Tenant, is in default under the Leases.  No Rent has been paid under the Leases more than one month in advance.

 

7.1.2.     Contracts.  The Contracts made available to Buyer pursuant to Section 6.1 hereof are complete and accurate copies of all of the Contracts currently in effect with respect to the Property.  To Seller’s knowledge, no default exists under any of the Contracts on the part of Seller or any other party thereto.

 

7.1.3.     Due Diligence Documents.  Complete copies of all Due Diligence Documents in the possession or control of Seller have been provided to Buyer.  Such copies are accurate duplications of the Due Diligence Documents in the possession or control of Seller; provided, however, that Seller makes no representation as to the accuracy of the Due Diligence Documents themselves.

 

7.1.4.     No Personal Property.  Seller does not own any personal property that relates or pertains to the Property, or the operation or maintenance thereof.

 

7.1.5.     Authority.  Seller is formed pursuant to, and in good standing under, the laws of the State of North Dakota.  Seller is authorized to own and operate real estate in the State of Minnesota.  Seller is not subject to any proceeding in bankruptcy or any proceeding for dissolution or liquidation.  This Agreement and all exhibits and documents to be delivered by Seller pursuant to this Agreement have been duly executed and delivered by Seller and constitute the valid and binding obligations of Seller, enforceable in accordance with their terms.  Seller has all necessary authority, has taken all action necessary to enter into this Agreement and to consummate the transactions contemplated hereby, and to perform its obligations hereunder.  The execution, delivery, and performance of this Agreement will not conflict with or constitute a breach or default under (i) the organizational documents of the Seller; (ii) any material instrument, contract, or other agreement to which Seller is a party which affects any of the Property; or (iii) any statute or any regulation, order, judgment, or decree of any court or governmental or regulatory body.

 

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7.1.6.     Environmental Matters.  To Seller’s knowledge, except as disclosed in any of the Due Diligence Documents, Hazardous Substances have not been used, generated, transported, treated, stored, released, discharged or disposed of in, onto, under or from the Property in violation of any Environmental Laws by Seller or Tenants.

 

7.1.7.     Non-Foreign Status.  Seller is not a “foreign person” as that term is defined in the Code and the regulations promulgated pursuant thereto.

 

7.1.8.      Anti-Terrorism Laws.  Neither Seller, nor any of its affiliated entities, is in violation of any laws relating to terrorism or money laundering (“Anti-Terrorism Laws”), including Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive Order”), and the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law No. 107-56.  Neither Seller nor, to the knowledge of Seller, any of its affiliated entities, or their respective brokers or agents acting or benefiting in any capacity in connection with the purchase of the Property, is any of the following:  (i) a Person or entity that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (ii) a Person or entity owned or controlled by, or acting for or on behalf of, any Person or entity that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (iii) a Person or entity with which Seller is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Laws; (iv) a Person or entity that commits, threatens, or conspires to commit or supports “terrorism” as defined in the Executive Order; or (v) a Person or entity that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list.  Neither Seller nor, to the knowledge of Seller, any of its brokers or other agents acting in any capacity in connection with the purchase of the Property:  (x) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Person as described above; (y) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order; or (z) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any of the Anti-Terrorism Laws.

 

7.1.9.     Governmental Matters.  Seller has not received written notice from any governmental body having jurisdiction over the Property of:  (a) any pending or contemplated annexation or condemnation proceedings, or purchase in lieu of the same, affecting or which may affect all or any part of the Property; (b) any proposed or pending proceeding to change or redefine the zoning classification of all or any part of the Property; (c) any uncured violation of any legal requirement, restriction, condition, covenant or agreement affecting the Property or the use, operation, maintenance or management of the Property; (d) any uncured violations of laws, codes or ordinances affecting the Property; or (e) any violation of the terms of any permit required for the operation of the Property as presently operated.

 

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7.1.10.   Litigation.  Except as disclosed in any of the Due Diligence Documents, there is no controversy, investigation, complaint, protest, proceeding, suit, litigation or claim relating to or, to Seller’s knowledge, threatened against the Property or any part thereof, or relating to Seller, which might adversely affect the Property or the use, occupancy or operation thereof.

 

7.1.11.   No Bankruptcy.  Seller:  (a) is not in receivership or dissolution; (b) has not made any assignment for the benefit of creditors or admitted in writing its inability to pay its debts as they mature; (c) has not been adjudicated a bankrupt or filed a petition in voluntary bankruptcy or a petition or answer seeking reorganization or an arrangement with creditors under the federal bankruptcy law or any other similar law or statute of the United States or any jurisdiction and no such petition has been filed against Seller or any of its property or affiliates, if any; and (d) none of the foregoing are pending or threatened.

 

7.1.12.   Operations.  Seller has received no notice of actual or threatened cancellation or suspension of any utility services or certificate of occupancy for any portion of the Property.  Seller has received no notice of actual or threatened special assessments or reassessments of the Property.  To Seller’s knowledge, all necessary permits to operate the Property as an office building have been obtained.

 

7.1.13.   Designated Employees.  The Designated Employees identified in Section 7.2 below are the individuals associated with Seller who have responsibility for overseeing the day to day operations of the Property, and who have actual and direct knowledge of all of the matters contemplated by the representations set forth in this Section 7, and no other employee, officer, director, shareholder, manager, agent, or representative of Seller, or any affiliate thereof, has greater knowledge than the Designated Employees regarding said representations.

 

7.1.14.   Wells.  For the purposes of satisfying any applicable requirements of Minn. Stat. § 103I, Seller certifies, to Seller’s knowledge, that there are no “Wells” (as defined in said statute) are located on the Property.

 

7.1.15.   Methamphetamine.  For the purposes of satisfying any applicable requirements of Minn. Stat. § 152.0275, Subdiv. 2(m), to Seller’s knowledge, no methamphetamine production has occurred on the Property.

 

7.1.16.   Storage Tanks.  To Seller’s knowledge, no aboveground or underground storage tanks are located on the Property.  Seller has not removed or filled any such tanks during Seller’s ownership of the Property.

 

7.1.17.   Sewage Treatment System Disclosure.  For the purposes of satisfying any applicable requirements of Minn. Stat. § 115.55, to Seller’s knowledge, (a) any sewage generated at the Property goes to a facility permitted by the Minnesota Pollution Control Agency, and (b) no abandoned individual sewage treatment system is located on the Property.

 

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8.1.         Buyer is a validly formed entity under the laws of the state in which it was formed, is in good standing in said state, and is duly authorized to do all things required of it under or in connection with this Agreement.  At Closing, Buyer will be qualified to do business in the state in which the Property is located.  The parties executing this Agreement on behalf of Buyer are duly authorized to so do, and, upon execution, this Agreement will be duly executed by and binding upon Buyer.

 

8.2.         Buyer is not subject to any involuntary proceeding for dissolution or liquidation.

 

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8.3.          The execution, delivery and performance of the Agreement will not violate any of Buyer’s organizational or governing documents or any contract, agreement, commitment, order, judgment or decree which Buyer is a party to or by which Buyer is bound.

 

8.4.          Buyer is not acquiring the Property with the assets of an employee benefit plan as defined in Section 3 (3) of the Employee Retirement Income Security Act of 1974.

 

8.5.         Anti-Terrorism Laws.  Neither Buyer, nor any of its affiliated entities, is in violation of any of the Anti-Terrorism Laws, including the Executive Order and the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law No. 107-56.  Neither Buyer nor, to the knowledge of Buyer, any of its affiliated entities, or their respective brokers or agents acting or benefiting in any capacity in connection with the purchase of the Property, is any of the following:  (i) a Person or entity that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (ii) a Person or entity owned or controlled by, or acting for or on behalf of, any Person or entity that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (iii) a Person or entity with which Buyer is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Laws; (iv) a Person or entity that commits, threatens, or conspires to commit or supports “terrorism” as defined in the Executive Order; or (v) a Person or entity that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list.  Neither Buyer nor, to the knowledge of Buyer, any of its brokers or other agents acting in any capacity in connection with the purchase of the Property:  (x) conducts any business or engages in making or receiving any contribution of funds, goods or services to or for the benefit of any Person as described above; (y) deals in, or otherwise engages in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order; or (z) engages in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any of the Anti-Terrorism Laws.

 

8.6.         Buyer shall have no liability to Seller by reason of a breach or default of any of Buyer's representations, unless Seller shall have given to Buyer written notice ("Seller’s Warranty Notice") of such breach or default within 12 months after the Closing Date, and shall have given to Buyer an opportunity to cure any such breach or default within a reasonable period of time after Seller’s Warranty Notice.  Any litigation with respect to any representation must be commenced within 6 months from the date of Seller’s Warranty Notice, and if not commenced within such time period, Seller shall be deemed to have waived its claims for such breach or default.

 

 

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(a)

One-half of all escrow and Closing Agent charges.

 

(b)

The costs for any endorsements to the Title Policy required by Buyer.

 

(c)

All recording and filing charges in connection with the Deed.

 

(d)

Subject to Section 5.2 above, the cost of preparation of the New Survey.

 

(e)

All costs and expenses associated with Buyer’s due diligence.

 

(f)

Its own attorneys.

 

 

(a)

One-half of all escrow and Closing Agent charges.

 

(b)

The costs of preparation of the Title Commitment, and the premium and costs for the Title Policy (but excluding any endorsements thereto).

 

(c)

The cost of preparation and recording of all documents (other than the Deed) reasonably necessary to place record title in the condition warranted by Seller in this Agreement.

 

(d)

Any form of deed tax or personal property tax imposed by any state or federal entity by virtue of the sale of the Property, or recording of the Deed, to Buyer.

 

(e)

Its own attorneys.

 

 

(a)

The Deed, conveying to Buyer all of Seller’s right, title and interest in and to the Property, subject only to encumbrances and title exceptions approved by Buyer.

 

(b)

A General Assignment and Assumption Agreement in the form attached as Exhibit 10.4(b) hereto (the “Assignment and Assumption”).

 

(c)

A Non-Foreign Certificate in the form attached as Exhibit 10.4(c) hereto.

 

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(d)

To the extent prepared by Buyer pursuant to Section 10.5(d) below, the Tenant Notices.

 

(e)

To the extent not previously delivered to Buyer, an original of each Tenant Estoppel.

 

(f)

An affidavit customarily required of sellers by the Title Company to remove the standard exceptions from an owner's title insurance policy that are capable of being removed by such an affidavit.

 

(g)

Such further documents as Buyer or the Title Company may reasonably request to carry out the provisions of this Agreement.

 

 

(a)

The Consideration, as prorated and allocated pursuant to this Agreement.

 

(b)

The Assignment and Assumption.

 

(c)

A Certificate of Real Estate Value.

 

(d)

A notice to each of the Tenants, advising them of the sale of the Property and directing the Tenants where to send all future rent and notices (the “Tenant Notices”), which will be prepared by Buyer using the general form attached as Exhibit 10.5(d), and which will be delivered by Buyer after Closing.

 

(e)

Such further documents as Seller or the Title Company may reasonably request to carry out the provisions of this Agreement.

 

Section 11.  Intentionally deleted.

 

 

 

 

(a)

terminate this Agreement, without further liability on Buyer’s part and, in such event, Buyer shall be entitled to a return of the Earnest Money and shall have no further liability hereunder; and/or

 

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(b)

enforce specific performance of this Agreement, provided such action is commenced within 120 days after the date of Buyer’s written notice to Seller pursuant to this Section.

 

 

 

 

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BUYER:	Vascular Solutions, Inc.
	Attn:  General Counsel
	6464 Sycamore Court North
	Minneapolis, MN  55369
	Telephone:  (763) 656-4300
	Email:  gweber@vasc.com

SELLER:	IRET – LEXCOM, LLC (c/o IRET Properties
	Attn:  General Counsel
	1400 31st Avenue SW, Suite 60 (overnight delivery)
	Minot, ND  58701
	Telephone:  (701) 837-4738
	Email:  mabosh@iret.com

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CLOSING AGENT:	Stewart Title of Colorado, Inc.
	Attn: Carma Weymouth & Aniko Coburn
	55 Madison Street, Suite 400
	Denver, CO  80206
	Telephone:  (303) 780-4015
	Email:  cweymouth@stewart.com

 

Such notices shall be deemed received (a) as of the date of delivery, if delivered by hand by 4:00 p.m. Central on a business day, (b) as of the next business day, if tendered to an overnight express delivery service by the applicable deadline for overnight service, or (c) as of the date of email transmission, if properly transmitted by email prior to 4:00 p.m. Central on a business day.  If a notice is hand delivered or transmitted by email after 4:00 p.m. Central on a business day, then any such notice shall be deemed received as of the next business day.

 

 

 

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18.1.        Governing Law; Headings; Rules of Construction.  This Agreement shall be governed by and construed in accordance with the internal laws of the State in which the Land is located, without reference to the conflicts of laws or choice of law provisions thereof.  The titles of sections and subsections herein have been inserted as a matter of convenience of reference only and shall not control or affect the meaning or construction of any of the terms or provisions herein.  All references herein to the singular shall include the plural, and vice versa.  The parties agree that this Agreement is the result of negotiation by the parties, each of whom was represented by counsel, and thus, this Agreement shall not be construed against the maker thereof.

 

18.2.        Assignment.  Neither Buyer nor Seller shall assign any of their rights hereunder without the prior written consent of the other.  Notwithstanding anything herein to the contrary, upon advance written notice to Seller and the Closing Agent, but without the prior written consent of the Seller, Buyer may assign all or a portion of its rights hereunder to one or more entities in which Buyer has a direct ownership interest of at least 51%.  Buyer acknowledges and agrees that an assignment to such an entity under this Section 18.2 will not release Buyer from any liability or obligation under this Agreement, and that Buyer shall remain liable to Seller after such assignment as a principal and not as a surety or guarantor.

 

18.3.        Brokers.  Buyer and Seller each warrant and represent to the other that such representing and warranting party has not employed or made any commitment to a broker or agent (including without limitation any real estate or securities broker, agent, dealer, or salesperson) in connection with the transaction contemplated hereby.  Each party agrees to indemnify and hold the other harmless from any loss or cost suffered or incurred by it as a result of the indemnifying parties’ representation herein being untrue.  The provisions of this Section 18.3 shall survive Closing or termination of this Agreement.

 

18.4.        No Waiver.  Neither the failure of either party to exercise any power given such party hereunder or to insist upon strict compliance by the other party with its obligations hereunder, nor any custom or practice of the parties at variance with the terms hereof shall constitute a waiver of either party’s right to demand exact compliance with the terms hereof, except the Closing of this Agreement shall constitute waiver of all conditions to Closing except to the extent otherwise agreed in writing at Closing.

 

18.5.        Entire Agreement.  This Agreement contains the entire agreement of the parties hereto with respect to the Property, and no representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied herein or incorporated herein by reference shall be of any force or effect.

 

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18.6.       Binding Effect.  This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns.

 

18.7.       Amendments.  No amendment to this Agreement shall be binding on any of the parties hereof unless such amendment is in writing and is executed by the parties.

 

18.8.        Possession.  Possession of the Property shall be given by Seller to Buyer at Closing.

 

18.9.       Date for Performance.  If the time period by which any right, option or election provided under this Agreement must be exercised, or by which any act required hereunder must be performed, or by which the Closing must be held, expires on a Saturday, Sunday or legal or bank holiday, then such time period shall be automatically extended through the close of business on the next regular business day.

 

18.10.      Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute but one and the same instrument.

 

18.11.     Time of the Essence.  Time shall be of the essence of this Agreement and each and every term and condition hereof.

 

18.12.     Severability.  This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations, and is intended, and shall for all purposes be deemed to be, a single, integrated document setting forth all of the agreements and understandings of the parties hereto, and superseding all prior negotiations, understandings and agreements of such parties.  If any term or provision of this Agreement or the application thereof to any person or circumstance shall for any reason and to any extent be held to be invalid or unenforceable, then such term or provision shall be ignored, and to the maximum extent possible, this Agreement shall continue in full force and effect, but without giving effect to such term or provision.

 

18.13.     Survival.  Except as otherwise expressly provided herein, neither this Agreement nor any provision contained herein shall be cancelled or merged with any deed or other instrument on, as of, at or by reason of the Closing, and the covenants and obligations of the parties shall survive the Closing.

 

18.14.     Further Assurances.  After the Closing, Buyer and Seller shall execute, acknowledge, and deliver (or cause to be executed, acknowledged, and delivered) such instruments and take such other actions as may be reasonably necessary or advisable to carry out their respective obligations under this Agreement and under any exhibit, document, certificate, or other instrument delivered pursuant thereto.

 

18.15.     Seller 1031 Exchange.  Buyer agrees to cooperate with Seller for the purpose of a possible tax deferred exchange by Seller pursuant to Section 1031 of the Code (“Exchange”) provided that (i) Seller provides prior written notice to Buyer not less than 5 days prior to Closing, together with copies of all exchange documents; (ii) Buyer shall in no way be obligated to pay for any facilitator charges, escrow costs, commissions, title costs or any other cost or charge incurred with respect to the Exchange; and (iii) in no way shall Closing be contingent or otherwise subject to the consummation of the Exchange.  Buyer shall not incur any additional liability or financial obligation as a consequence of Seller’s possible exchange, and Seller agrees to indemnify and hold Buyer harmless from and against any and all causes, claims, demands, liabilities, costs and expenses, including reasonable attorneys’ fees (except for attorneys’ fees in connection with reviewing the Exchange documents), as a result of or in connection with the Exchange.

 

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18.16.   Exhibits.  Attached hereto and forming an integral part of this Agreement are multiple exhibits, all of which are hereby incorporated into this Agreement as fully as if the contents thereof were set out in full herein at each point of reference thereto.

 

IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed and sealed by its duly authorized signatory, effective as of the day and year first above written.

 

SELLER:

 

 

BUYER:

 

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Legal Description of Land

Lot 1, Block 2, Northgate Plaza Park, Hennepin County, Minnesota.

 

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List of Due Diligence Documents

1.	A current rent roll for the Property.

 

2.	A copy of all of the Leases.

 

3.	A list of all Security Deposits, prepaid rent or other sums currently held by Seller under the Leases.

 

4.	A copy of all Contracts.

 

5.	Copies of all engineering, environmental and structural reports prepared for or in connection with the Property, to the extent that the same are in the possession or control of Seller.

 

6.	A lists and description of all insurance claims (both liability and casualty) relating to the Property since January 1, 2012.

 

7.	Income and expense statements showing the financial results of operating the Property Seller’s last three fiscal years (5/1 through 4/30), and current-to-date financial statements for the current fiscal year.

 

8.	Copies of all real estate tax statements associated with the Property for the current year and for the preceding 3 years.

 

9.	A copy of the Existing Survey.

 

10.	A copy of any Warranties, including, without limitation, any current roof warranties.

 

11.	Copies of any current certificates of occupancy for the Property, to the extent that the same are in the possession or control of Seller.

 

12.	A copy of any Plans in the possession or control of Seller.

 

13.	Copies of all correspondence received by Seller, its property manager or agent from any Tenant, and between Seller, its property manager or agent and any Tenant in the last 12 months.

 

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Form of Limited Warranty Deed

[Space Above this Line for Recording Office Use Only]

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Date:____________________, 2015

FOR VALUABLE CONSIDERATION, IRET- LEXCOM, LLC, a limited liability company under the laws of North Dakota, Grantor, hereby conveys and quit claims to VASCULAR SOLUTIONS, INC., a corporation under the laws of Minnesota, Grantee, real property in Hennepin County, Minnesota, described as follows: See attached Exhibit A together with all hereditaments and appurtenances.  This deed conveys after-acquired title.  Grantor warrants that Grantor has not done or suffered anything to encumber the property except for the permitted encumbrances set forth on attached Exhibit B.

 

Check box if applicable:

☒	The Grantor certifies that the Grantor does not know of any wells on the described real property.

The foregoing document was acknowledged before me this       day of            , 2015, by Michael A. Bosh, the Vice President of IRET – LEXCOM, LLC, a North Dakota limited liability company, on behalf of the limited liability company.

   

IN WITNESS WHEREOF, I hereunto set my hand and official seal.

 

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EXHIBIT A

TO

LIMITED WARRANTY DEED

Lot 1, Block 2, Northgate Plaza Park, Hennepin County, Minnesota.

 

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EXHIBIT B

TO

LIMITED WARRANTY DEED

[insert list of permitted encumbrances]

 

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Form of General Assignment and Assumption Agreement

THIS GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT is made and entered into as of __________, 2015, between IRET – LEXCOM, LLC, a North Dakota limited liability company ("Assignor"), and VASCULAR SOLUTIONS, INC., a Minnesota corporation ("Assignee").

 

W I T N E S S E T H:

 

Terms not defined herein shall have the meanings ascribed thereto in the Agreement for Sale and Purchase of Property dated effective as of January _____, 2015 (the "Agreement"), between Assignor and Assignee.  The Agreement is hereby incorporated by reference.

 

That Assignor, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby conveys, grants, bargains, sells, transfers, sets over, assigns, releases, delivers and confirms to Assignee, all of Assignor's right, title and interest in and to:

 

1.

Assignor’s interest in the leases and occupancy agreements identified on Exhibit A attached hereto (the "Leases"), together with (a) all tenant security deposits (and any interest thereon required by applicable law or contract) held by Assignor that relates or pertains to the Leases, including, without limitation, the Security Deposits and (b) Assignor’s interest in any guaranty of any of the Leases.

 

2.

Assignor’s interest in the contracts set forth on Exhibit B attached hereto (“Assumed Contracts”).

 

3.

All Plans, Warranties, plans, specifications, documents, construction contracts, warranties, guaranties, instruments, licenses, permits, and operating manuals associated with the construction and operation of the Property.

 

Assignee hereby (i) expressly assumes the obligation for the performance of any and all of the obligations of Assignor under the Leases and Assumed Contracts in respect of the period on or after the date hereof (the "Assignee’s Obligations") and (ii) indemnifies, defends and holds harmless Assignor from and against any and all claims, actions, demands, liabilities, suits, causes of action, damages, costs or expenses (including, without limitation, attorneys' fees and disbursements) relating to the Assignee’s Obligations.

 

Assignor hereby (i) expressly assumes the obligation for the performance of any and all of the obligations of Assignor under the Leases and Assumed Contracts in respect of the period prior to the date hereof (the "Assignor’s Obligations") and (ii) indemnifies, defends and holds harmless Assignee from and against any and all claims, actions, demands, liabilities, suits, causes of action, damages, costs or expenses (including, without limitation, attorneys' fees and disbursements) relating to the Assignor’s Obligations.

 

This General Assignment and Assumption Agreement shall inure to the benefit of all parties hereto and their respective heirs, successors and assigns.  The indemnification provisions in this General Assignment and Assumption Agreement shall supplement, not replace, any indemnification provisions contained within the Agreement.  This General Assignment and Assumption Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which, when taken together, shall constitute but one and the same instrument.

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IN WITNESS WHEREOF, the parties have executed this General Assignment and Assumption Agreement as of the day and year first above written.

 

ASSIGNOR:

ASSIGNEE:

 

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Form of Non-Foreign Certificate

CERTIFICATE OF NON-FOREIGN

STATUS BY ENTITY (NON-INDIVIDUAL) TRANSFEROR

a.

That the Seller is not a foreign corporation, foreign partnership, foreign trust or foreign estate (as these terms are defined in the Internal Revenue Code and Income Tax Regulations).

b.

That the Seller’s employer identification number is 27-1348893.

c.

That the Seller’s office address is c/o IRET Properties, 1400 31st Avenue SW, Suite 60, Minot, North Dakota.

Under penalties of perjury, I declare that I have examined this certificate and to the best of my knowledge and belief it is true, correct and complete.  I further declare that I have authority to sign this document on behalf of the Seller.

EXECUTED in Ward County, State of North Dakota, on ____________, 2015.

 

SELLER:

    

 

For federal income tax purposes, the Buyer should not record this certificate with the county recorder, nor should the certificate be filed with the IRS, but it should be kept with the Buyer’s tax records relating to the subject real estate transfer.

 

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Form of Tenant Notice

 

 

Notice to Tenant
(tenant’s name and address)

 

Dear __________:

We hereby notify you that we have sold the Property in which you are a tenant and assigned your lease to New Owner, effective as of _______________, 2015 (the “Effective Date”).  New Owner will be your landlord effective immediately.

From this date forward you are authorized and directed to make any payment due to the landlord under your lease to New Owner, which should be delivered to its managing agent, ________________________________ (“Managing Agent”) at the following address:

 

 

Your checks should be made payable to New Owner.

New Owner and Managing Agent are looking forward to working with you.

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Form of Escrow Agreement

 

Earnest Money Escrow Agreement

This EARNEST MONEY ESCROW AGREEMENT (this "Agreement") is made as of _______________ by and among IRET – LEXCOM, LLC, a North Dakota limited liability company (“Seller”), VASCULAR SOLUTIONS, INC., a Minnesota corporation (“Buyer”), and Stewart Title of Colorado, Inc. (the "Escrow Agent").

RECITALS:

NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

AGREEMENT:

Upon receipt of both the Earnest Money and a W-9 from Buyer, Escrow Agent will invest the Earnest Money in Escrow Agent's customary interest bearing account for the benefit of Buyer.  Regardless of how the Earnest Money is applied pursuant to the Purchase Agreement, Buyer shall be entitled to the interest accrued thereon.  Escrow Agent shall acknowledge to Seller, in writing, receipt of the Earnest Money when it is delivered to Escrow Agent.

 

4.                    In the event Escrow Agent receives written notice of default, non‑performance, dispute or exercise of right under the Purchase Agreement from Seller or Buyer accompanied by a demand for delivery to such party of the Earnest Money (or the portion thereof that, as of the date of such termination, Buyer has deposited in accordance with the Purchase Agreement), Escrow Agent is immediately to give written notice to the other party of such claim and accompanying demand.  In the event the other party fails to dispute or object to such claim and demand within five (5) business days from the date of Escrow Agent's written notice, Escrow Agent is authorized to deliver the Earnest Money (or the portion thereof that, as of the date of such termination, Buyer has deposited in accordance with the Purchase Agreement) to the party making such claim and demand.  In the event the other party disputes or objects to the aforesaid claim and demand within the 5-business day period prescribed herein, Escrow Agent is not to deliver the Earnest Money deposited hereunder without receipt of a mutual agreement of the parties, in writing, or appropriate court order.  Subject to the foregoing, this Agreement will at all times be subject to the joint order of Seller and Buyer and upon such joint order Escrow Agent will deliver the Earnest Money as instructed by such joint order.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

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