EXHIBIT 10.7
NOTTINGHAM SIXTH ADDITION
ACQUISITION AND CLOSING AGREEMENT
THIS ACQUISITION AND CLOSING AGREEMENT ("CLOSING AGREEMENT") is
entered into as of June 9, 1998, by and between XXXXXXXX BROS. CONSTRUCTION,
INC., a Minnesota corporation ("XXXXXXXX") and BF HOLDING COMPANY, a Minnesota
corporation ("BFH"). Xxxxxxxx and BFH are sometimes hereafter individually or
collectively referred to as a "PARTY" or the "PARTIES."
PREAMBLE
A. Concurrently herewith BFH is acquiring from Xxxxxxxx certain real property
in the City of Maple Grove, Hennepin County, Minnesota, described in
attached EXHIBIT A ("PROPERTY").
B. The Parties desire to (i) provide for BFH's assumption of specified
executory obligations of Xxxxxxxx pertaining to the Property, and (ii)
memorialize certain terms and agreements of the Parties pertaining to the
sale of the Property by Xxxxxxxx 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 $821,938.00, of
which $281,938.00 is being paid by an offsetting credit for the Option
Fee due BFH from Xxxxxxxx pursuant to the Option Agreement of even
date between BFH, as optionor, and Xxxxxxxx, as optionee (the
"BFH/XXXXXXXX OPTION").
2. ASSIGNMENT. Xxxxxxxx hereby transfers and assigns to BFH all of
Xxxxxxxx'x right, title and interest in and to all of the following:
2.1. 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 Xxxxxxxx or third party consultants
("WORK PRODUCT"). At BFH's request Xxxxxxxx shall provide
BFH with full-size copies of all Work Product which is in
Xxxxxxxx'x possession.
2.2. CONSULTANT AGREEMENTS. Those agreements described in EXHIBIT
B with third party consultants engaged by or on behalf of
Xxxxxxxx to produce or provide Work Product ("CONSULTANT
AGREEMENTS").
2.3. 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 Work Product, the Consultant Agreements and the
Property Approvals and is familiar with the terms and provisions of
these materials. If requested by BFH, Xxxxxxxx
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 Xxxxxxxx
pertaining to the Property ("BFH ASSUMED OBLIGATIONS"):
3.1. 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. Xxxxxxxx
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.
Xxxxxxxx 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.
3.2. EXECUTORY PROPERTY APPROVAL OBLIGATIONS. All of Xxxxxxxx'x
executory obligations under the Property Approvals,
including, without limitation, all of Xxxxxxxx'x executory
obligations under any Development Agreement(s) for the
Property between Xxxxxxxx and the City of Maple Grove.
4. XXXXXXXX'X REPRESENTATIONS AND WARRANTIES. Except for those matters
disclosed in the Work Product, Xxxxxxxx represents and warrants to BFH
as follows:
4.1. PROPERTY AGREEMENTS AND APPROVALS. The Consultant Agreements
and Property Approvals are currently in full force and
effect; Xxxxxxxx is not in default in performing Xxxxxxxx'x
obligations under the Consultant Agreements or the Property
Approvals; Xxxxxxxx is not aware of any default in
performance of the consultants' obligations under the
Consultant Agreements; and Xxxxxxxx has not previously
assigned, sold, pledged, mortgaged or otherwise transferred
Xxxxxxxx'x interest in the Consultant Agreements or the
Property Approvals.
4.2. LITIGATION. Xxxxxxxx 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 Xxxxxxxx'x 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. Xxxxxxxx has received no notice from any
governmental authority concerning the removal of
hazardous waste from the Property.
4.4. STORAGE TANKS. Xxxxxxxx knows of no underground or
aboveground storage tanks that now exist or ever existed on
any portion of the Property.
4.5. XXXXX; PRIVATE SEWER SYSTEMS. Xxxxxxxx does not know of any
well(s) or private sewer system(s) on the Property.
5. INDEMNIFICATION.
5.1. BY XXXXXXXX. Xxxxxxxx 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 Xxxxxxxx'x representations and
warranties in this Closing Agreement.
5.1.2. Breach of any obligation of Xxxxxxxx under the
Consultant Agreements or the Property Approvals,
OTHER than those BFH Assumed Obligations which are
NOT reclassified as Xxxxxxxx'x "Reverted
Obligations" under the BFH/Xxxxxxxx Option.
5.1.3. Any and all claims arising from third parties as a
result of Xxxxxxxx'x acts or omissions.
5.2. BY BFH. BFH shall indemnify Xxxxxxxx, its successors and
assigns, against, and shall hold Xxxxxxxx, its successors
and assigns, harmless from, any fines, penalties,
liabilities, claims, suits, actions, damages, losses, costs
and expenses, including reasonable attorneys' fees, which
Xxxxxxxx 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 Xxxxxxxx'x "Reverted Obligations"
under the BFH/Xxxxxxxx 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
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
with a copy to: Xxxxxx & Whitney
0000 Xxxxx Xxxx Xxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx
If to Xxxxxxxx: Xxxxxxxx Bros. Construction, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
with copies to: Xxxxxxxx Bros. Construction, Inc.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
and
Xxxxxxx, Street and Deinard P.A.
Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
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/Xxxxxxxx Option Agreement.
8. NO BROKERS. Xxxxxxxx warrants to BFH that Xxxxxxxx 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 Xxxxxxxx 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. Xxxxxxxx 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. Xxxxxxxx hereby
discloses that Xxxxxxxx is a licensed real estate broker and is
selling the Property for Xxxxxxxx'x own account.
9. MISCELLANEOUS.
9.1. XXXXXXXX'X FILES AND RECORDS. Xxxxxxxx'x 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 Xxxxxxxx and BFH in or pursuant to this
Closing Agreement shall survive conveyance of the Property
and assignment of the 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 Xxxxxxxx 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/Xxxxxxxx Option. BFH shall promptly notify Xxxxxxxx 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/Xxxxxxxx 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/Xxxxxxxx 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. Xxxxxxxx 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: XXXXXXXX:
BF HOLDING COMPANY XXXXXXXX BROS. CONSTRUCTION, INC.
By By
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Its Its
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EXHIBITS
A Legal Description of the Property
B 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:
Lots 1 through 20, Block 1;
Lots 1 through 7, Block 2; and
Lots 1 through 7, Block 3;
All in Nottingham Sixth Addition according to the recorded plat thereof.
EXHIBIT B
SCHEDULE
OF
CONSULTANT AGREEMENTS
1. Enebak Construction Company - Proposal dated February 20, 1998.
2. Xxxx Xxxxxx & Associates - Proposal dated March 11, 1998.
3. Xxxxx Intertec - Proposal dated April 14, 1998.
