NOTTINGHAM
ACQUISITION AND CLOSING AGREEMENT
THIS ACQUISITION AND CLOSING AGREEMENT ("CLOSING AGREEMENT") is entered
into as of June 10, 1997, by and between ▇▇▇▇▇▇▇▇ Bros. Construction, Inc., a
Minnesota corporation ("▇▇▇▇▇▇▇▇") and BF Holding Company, a Minnesota
corporation ("BFH"). ▇▇▇▇▇▇▇▇ and BFH are sometimes hereafter individually or
collectively referred to as a "PARTY" or the "PARTIES."
PREAMBLE
A. Concurrently herewith BFH is acquiring from ▇▇▇▇▇▇▇▇ certain real
property in the City of Maple Grove, Hennepin County, Minnesota,
described in attached EXHIBIT A ("PROPERTY"). ▇▇▇▇▇▇▇▇ acquired the
Property from the sellers described in attached EXHIBIT B ("FORMER
OWNERS") pursuant to certain option or purchase agreements between
▇▇▇▇▇▇▇▇ and the Former Owners which are also described in EXHIBIT B
("FORMER OWNER AGREEMENTS").
B. The Parties desire to (i) provide for the assignment to BFH of
▇▇▇▇▇▇▇▇'▇ assignable rights and obligations under the Former Owner
Agreements, (ii) provide for BFH's assumption of specified executory
obligations of ▇▇▇▇▇▇▇▇ pertaining to the Property, and (iii)
memorialize certain terms and agreements of the Parties pertaining to
the sale of the Property by ▇▇▇▇▇▇▇▇ to BFH.
THEREFORE, in consideration of BFH's purchase of the Property, the
mutual covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the Parties agree as follows:
1. PURCHASE PRICE. The purchase price of the Property is $1,638,713.00, of
which $548,497.00 is being paid by an offsetting credit for the Option
Fee due BFH from ▇▇▇▇▇▇▇▇ pursuant to the Option Agreement of even date
between BFH, as optionor, and ▇▇▇▇▇▇▇▇, as optionee (the "BFH/▇▇▇▇▇▇▇▇
OPTION").
2. ASSIGNMENT. ▇▇▇▇▇▇▇▇ hereby transfers and assigns to BFH all of
▇▇▇▇▇▇▇▇'▇ right, title and interest in and to all of the following:
2.1. FORMER OWNER AGREEMENTS. All representations, warranties and
other rights benefiting ▇▇▇▇▇▇▇▇ under the Former Owner
Agreements and pertaining to the Property, to the maximum
extent permitted by law and the Former Owner Agreements. The
parties acknowledge that the Former Owner Agreement with ▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ may not permit an assignment of ▇▇▇▇▇▇▇▇'▇
rights under that agreement. Therefore, upon BFH's request and
at BFH's cost and expense, ▇▇▇▇▇▇▇▇ shall take such actions as
BFH reasonably requests in order to enforce ▇▇▇▇▇▇▇▇'▇ rights
under the Former Owner Agreement with ▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇'▇▇▇▇▇ for the benefit of BFH.
2.2. WORK PRODUCT. All drawings, plats, plans, reports, studies,
appraisals, analyses an other documents or data pertaining to
the Property and/or the development of the Property, whether
prepared by ▇▇▇▇▇▇▇▇ or third party consultants ("WORK
PRODUCT"). At BFH's request ▇▇▇▇▇▇▇▇ shall provide BFH with
full-size copies of all Work Product which is in ▇▇▇▇▇▇▇▇'▇
possession.
2.3. CONSULTANT AGREEMENTS. Those agreements described in EXHIBIT C
with third party consultants engaged by or on behalf of
▇▇▇▇▇▇▇▇ to produce or provide Work Product ("CONSULTANT
AGREEMENTS").
2.4. PROPERTY APPROVALS. All requests or applications, together
with all implementing and supporting documentation and
agreements, for governmental, public utility or other Property
approvals or permits, including, without limitation,
subdivision and zoning approvals, development agreements,
utility will serve authorizations and agreements, and any
other permit, authorization, approval or agreement relating to
the use or development of the Property (collectively the
"PROPERTY APPROVALS").
Buyer has reviewed the Former Owner Agreements, the Work
Product, the Consultant Agreements and the Property Approvals and is
familiar with the terms and provisions of these materials. If requested
by BFH, ▇▇▇▇▇▇▇▇ shall execute and deliver to BFH such further
documents and instruments that may be reasonably required from time to
time in order to evidence and perfect this assignment.
3. ASSUMPTION. BFH assumes the following obligations of ▇▇▇▇▇▇▇▇
pertaining to the Property ("BFH ASSUMED OBLIGATIONS"):
3.1. FORMER OWNER AGREEMENT OBLIGATIONS. The following specific
executory obligations of ▇▇▇▇▇▇▇▇ under the following
specified Former Owner Agreements:
3.1.1. The obligation to extend a sanitary sewer line to the
boundary of the Weed Homestead parcel pursuant to
Section 5(b) of the Option Agreement between ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇; and
3.1.2. The obligation to permit the harvesting of hay
pending development of that portion of the Property
acquired from the Radintz Family, as provided in
Section 16.2 of the Purchase Agreement between
▇▇▇▇▇▇▇▇ and the Radintz Family.
3.2. FUTURE CONSULTANT COSTS. The obligation to pay for all work
and services performed on and after the date of this Closing
Agreement pursuant to the Consultant Agreements. ▇▇▇▇▇▇▇▇
remains responsible for payment of all amounts due all third
party consultants, whether pursuant to Consultant Agreements
or otherwise, incurred prior to the date of this Closing
Agreement for the production or preparation of Work Product.
▇▇▇▇▇▇▇▇ shall ensure that all amounts due consultants for
Work Product furnished prior to the date of this Closing
Agreement are promptly paid in order to facilitate the
transfer to and use by BFH of the consultants' Work Product.
3.3. EXECUTORY PROPERTY APPROVAL OBLIGATIONS. All of ▇▇▇▇▇▇▇▇'▇
executory obligations under the Property Approvals, including,
without limitation, all of ▇▇▇▇▇▇▇▇'▇ executory obligations
under any Development Agreement(s) for the Property between
▇▇▇▇▇▇▇▇ and the City of Maple Grove.
4. ▇▇▇▇▇▇▇▇'▇ REPRESENTATIONS AND WARRANTIES. Except for those matters
disclosed in the Former Owner Agreements, the closing documents
delivered by ▇▇▇▇▇▇▇▇ and the Former Owner's at the closing of the
Former Owner Agreement transactions, and in the Work Product, ▇▇▇▇▇▇▇▇
represents and warrants to BFH as follows:
4.1. PROPERTY AGREEMENTS AND APPROVALS. The Former Owner and
Consultant Agreements and Property Approvals are currently in
full force and effect; ▇▇▇▇▇▇▇▇ is not in default in
performing ▇▇▇▇▇▇▇▇'▇ obligations under the Former Owner and
Consultant Agreements or the Property Approvals; ▇▇▇▇▇▇▇▇ is
not aware of any default in performance of the Former Owners'
or consultants' obligations under the Former Owner and
Consultant Agreements; and ▇▇▇▇▇▇▇▇ has not previously
assigned, sold, pledged, mortgaged or otherwise transferred
▇▇▇▇▇▇▇▇'▇ interest in the Former Owner or Consultant
Agreements or the Property Approvals.
4.2. LITIGATION. ▇▇▇▇▇▇▇▇ does not have knowledge of any
litigation, investigation, condemnation or legal proceedings
of any kind which are threatened or pending against the
Property or which pertain to or may affect the Property.
4.3. HAZARDOUS WASTE. "Hazardous waste" means any waste, substance
or other material which is defined by or determined by any
federal, state or local statute, regulation, ordinance or
ruling to be hazardous, toxic, poisonous or dangerous. To the
best of ▇▇▇▇▇▇▇▇'▇ knowledge:
4.3.1. The Property does not violate any federal, state or
local statute, regulation or ordinance dealing with
environmental protection or hazardous waste;
4.3.2. The Property's soil and water table are free and
clear of any and all contaminants, including
hazardous waste;
4.3.3. The Property has not been used for the storage or
disposal of any hazardous waste; and
4.3.4. ▇▇▇▇▇▇▇▇ has received no notice from any governmental
authority concerning the removal of hazardous waste
from the Property.
4.4. STORAGE TANKS. ▇▇▇▇▇▇▇▇ knows of no underground or aboveground
storage tanks that now exist or ever existed on any portion of
the Property.
4.5. ▇▇▇▇▇; PRIVATE SEWER SYSTEMS. ▇▇▇▇▇▇▇▇ does not know of any
well(s) or private sewer system(s) on the Property.
5. INDEMNIFICATION.
5.1. BY ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ shall indemnify BFH, its successors and
assigns, against, and shall hold BFH, its successors and
assigns, harmless from, any fines, penalties, liabilities,
claims, suits, actions, damages, losses, costs and expenses,
including reasonable attorneys' fees, which BFH may incur
because of any of the following:
5.1.1. Breach of any of ▇▇▇▇▇▇▇▇'▇ representations and
warranties in this Closing Agreement.
5.1.2. Breach of any obligation of ▇▇▇▇▇▇▇▇ under the Former
Owner Agreements, the Consultant Agreements or the
Property Approvals, OTHER than those BFH Assumed
Obligations which are NOT reclassified as ▇▇▇▇▇▇▇▇'▇
"Reverted Obligations" under the BFH/▇▇▇▇▇▇▇▇ Option.
5.1.3. Any and all claims arising from third parties as a
result of ▇▇▇▇▇▇▇▇'▇ acts or omissions.
5.2. BY BFH. BFH shall indemnify ▇▇▇▇▇▇▇▇, its successors and
assigns, against, and shall hold ▇▇▇▇▇▇▇▇, its successors and
assigns, harmless from, any fines, penalties, liabilities,
claims, suits, actions, damages, losses, costs and expenses,
including reasonable attorneys' fees, which ▇▇▇▇▇▇▇▇ may incur
because of any of the following:
5.2.1. Failure to perform the BFH Assumed Obligations, OTHER
than those BFH Assumed Obligations which are
reclassified as ▇▇▇▇▇▇▇▇'▇ "Reverted Obligations"
under the BFH/▇▇▇▇▇▇▇▇ Option.
5.2.2. Any and all claims arising from third parties as a
result of BFH's acts or omissions.
6. NOTICE. Any notice or other communication under this Closing Agreement
shall be in writing, addressed as follows:
if to BFH: BF Holding Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & Whitney
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
if to ▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇ Bros. Construction, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
with copies to: ▇▇▇▇▇▇▇▇ Bros. Construction, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and
▇▇▇▇▇▇▇, Street and Deinard P.A.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Notices shall be deemed timely if sent on or before the deadline OR if
received on or before three Business Days after the deadline. Delivery
may be made by (1) United States Mail, registered or certified mail,
postage prepaid, return receipt requested; (2) commercial delivery
service with its customary receipts; or (3) noncommercial delivery with
a notarized affidavit of delivery to the relevant address. Any person
may change his address under this section by giving notice to the other
Party.
7. PRORATIONS; CLOSING COSTS. BFH shall pay all unpaid real estate taxes
and certified special assessments due in the calendar year of closing,
including any prepayments required in order to file the plats for the
Property. BFH shall also pay all costs of this transaction, including
title insurance premiums, recording and filing fees and the title
company's closing fee. Any taxes, special assessments and closing costs
paid by BFH pursuant to this section shall be included in the "Project
Investment" pursuant to the BFH/▇▇▇▇▇▇▇▇ Option Agreement.
8. NO BROKERS. ▇▇▇▇▇▇▇▇ warrants to BFH that ▇▇▇▇▇▇▇▇ has not taken any
action in connection with this transaction which would result in any
real estate broker's fee, finder's fee, or other fee being due or
payable to any Party. BFH warrants to ▇▇▇▇▇▇▇▇ that BFH has not taken
any action in connection with this transaction which would result in
any real estate broker's fee, finder's fee, or other fee being due or
payable to any Party. ▇▇▇▇▇▇▇▇ and BFH respectively agree to indemnify,
defend and hold harmless the other from and against any and all claims,
fees, commissions and suits of any real estate broker or agent with
respect to services claimed to have been rendered for or on behalf of
such Party in connection with the execution of this Closing Agreement
or the transaction contemplated herein. ▇▇▇▇▇▇▇▇ hereby discloses that
▇▇▇▇▇▇▇▇ is a licensed real estate broker and is selling the Property
for ▇▇▇▇▇▇▇▇'▇ own account.
9. MISCELLANEOUS.
9.1. ▇▇▇▇▇▇▇▇'▇ FILES AND RECORDS. ▇▇▇▇▇▇▇▇'▇ files and records
relating to the Property shall be made available to BFH at
reasonable times for inspection and copying by BFH at BFH's
sole cost and expense.
9.2. AMENDMENT. This Closing Agreement may not be amended, waived,
or modified except by an instrument in writing executed by the
Party against whom enforcement of such amendment, waiver or
modification is sought.
9.3. SEVERABILITY. If any term or provision of this Closing
Agreement is invalid or unenforceable, the remainder of this
Closing Agreement shall not be affected and shall remain in
full force and effect. It is the intention of the Parties that
if any provision of this Closing Agreement is held to be
illegal, invalid or unenforceable, there will be substituted
in lieu thereof a legal, valid and enforceable provision as
similar in terms to such unenforceable provision as is
possible.
9.4. SURVIVAL. All covenants, agreements, obligations and
undertakings made by ▇▇▇▇▇▇▇▇ and BFH in or pursuant to this
Closing Agreement shall survive conveyance of the Property and
assignment of the Former Owner and Consultant Agreements and
the Property Approvals to BFH, whether or not so expressed in
the immediate context of any such covenant, agreement,
obligation or undertaking. Consummation of this transaction by
a Party with knowledge of any breach by the other Party shall
not be deemed a waiver or release of any claims hereunder due
to such breach.
9.5. SUCCESSORS; NO ASSIGNMENT. This Closing Agreement shall be
binding upon and inure to the benefit of ▇▇▇▇▇▇▇▇ and BFH, and
their respective successors. This Closing Agreement may not be
assigned by either Party without the prior written consent of
the other, which consent may be withheld in its sole
discretion for any reason or no reason whatsoever.
Notwithstanding the immediately preceding sentence, BFH may
collaterally assign its rights (but not delegate its duties)
under this Agreement as security for such financing as BFH
deems reasonably necessary or appropriate to fund its
obligations under
this Closing Agreement and/or the BFH/▇▇▇▇▇▇▇▇ Option. BFH
shall promptly notify ▇▇▇▇▇▇▇▇ of any collateral assignment of
its rights under this Closing Agreement or any mortgage or
other monetary encumbrance of the Property. Any such
encumbrance of the Property shall be subordinate to the
BFH/▇▇▇▇▇▇▇▇ Option and BFH shall be responsible for obtaining
a satisfaction of any such encumbrance with respect to any
portion of the Property transferred pursuant to the
BFH/▇▇▇▇▇▇▇▇ Option.
9.6. ATTORNEYS' FEES. If either Party defaults under this Closing
Agreement, the defaulting Party shall be responsible for all
reasonable expenses (including attorneys' fees) incurred by
the other Party in enforcing any rights and remedies under
this Closing Agreement.
9.7. AUTHORITY TO CONTRACT. ▇▇▇▇▇▇▇▇ and BFH represent to each
other that the execution and delivery of this Closing
Agreement and the consummation of the transactions
contemplated hereby are within each of the Party's purposes
and powers and all requisite action has been taken to make
this Closing Agreement the valid and binding obligation upon
each of the Parties hereto.
9.8. STANDARD OF PERFORMANCE. Subject to Section 9.5 concerning
assignments, a request for consent or approval required of a
Party shall be evaluated in good faith and such consent or
approval shall not be unreasonably withheld. The standards for
assignments shall be as set forth in Section 9.5. The parties
intend by this provision to set forth their entire
understanding with respect to the standards pursuant to which
their obligation to give consents and approvals are to be
judged and their performance in that regard measured.
IN WITNESS WHEREOF, the Parties hereto have executed this Closing
Agreement effective as of the date first written above.
BFH: ▇▇▇▇▇▇▇▇:
BF HOLDING COMPANY ▇▇▇▇▇▇▇▇ BROS. CONSTRUCTION, INC.
By_________________________________ By_________________________________
Its______________________________ Its______________________________
EXHIBITS
A Legal Description of the Property
B Schedule of Former Owners and Former Owner Agreements
C Schedule of Consultant Agreements
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
All of the following described real property located in the City of
Maple Grove, Hennepin County, Minnesota:
PARCEL A [Phase I]:
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇ Nottingham, according to the
recorded plat thereof.
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇ Nottingham, according to the
recorded plat thereof.
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇ Nottingham, according to the
recorded plat thereof.
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇ Nottingham, according to the
recorded plat thereof.
▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇ Nottingham, according to the
recorded plat thereof.
Outlots E, F and G, Palisades At Nottingham, according to the recorded
plat thereof.
PARCEL B [Phase II]:
Lots 1 through ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ Second Addition, according to the
recorded plat.
Lots 1 through 11, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ Second Addition, according to
the recorded plat.
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ Second Addition, according to the
recorded plat.
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ Second Addition, according to the
recorded plat.
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ Second Addition, according to the
recorded plat.
▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ Second Addition, according to the
recorded plat.
▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ Second Addition, according to the
recorded plat.
Outlots A through I, Nottingham Second Addition, according to the
recorded plat.
EXHIBIT B
SCHEDULE OF FORMER OWNERS
AND
FORMER OWNER AGREEMENTS
FORMER OWNER: Radintz Family
FORMER OWNER AGREEMENT:
Purchase Agreement dated January 8, 1993 between the Radintz Family
members as Seller and ▇▇▇▇▇▇▇▇ as Buyer, and all amendments thereto,
together with all closing documents delivered concurrently herewith.
FORMER OWNER: ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇
FORMER OWNER AGREEMENT:
Option Agreement dated January 28, 1993, granted by Terry, Margaret,
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇ as Sellers to ▇▇▇▇▇▇▇▇ and all amendments
thereto, together with all closing documents generated to date,
including those documents set forth in the ▇▇▇▇▇▇▇▇ Closing Book dated
June 27, 1996.
FORMER OWNER: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as personal representative of the Estate of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇.
FORMER OWNER AGREEMENT:
Option Agreement dated June 18, 1993, between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as
personal representative of the Estate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, as Seller and ▇▇▇▇▇▇▇▇ as Buyer, and all amendments
thereto, together with all closing documents set forth in the ▇▇▇▇▇▇▇▇
Closing Book dated October 10, 1995.
FORMER OWNER: ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇
FORMER OWNER AGREEMENT:
Option Agreement dated February 20, 1995, between the ▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇ as Seller and ▇▇▇▇▇▇▇▇ as Buyer, and all amendments thereto,
together with all closing documents delivered concurrently herewith.
FORMER OWNER: Shamrock Development, Inc.
FORMER OWNER AGREEMENT:
Short Form Purchase Agreement dated April 1, 1996, between Shamrock
Development, Inc. as Seller and ▇▇▇▇▇▇▇▇ as Buyer, and all amendments
thereto, together with all closing documents set forth in the ▇▇▇▇▇▇▇▇
Closing Book dated May 20, 1996.
EXHIBIT C
SCHEDULE
OF
CONSULTANT AGREEMENTS
