EXHIBIT 10.1
PARTIAL ASSIGNMENT OF OPTION
(PLUM TREE 4TH ADDITION)
THIS PARTIAL ASSIGNMENT OF OPTION ("ASSIGNMENT") is entered into
effective as of ____________, 1998, by and between Xxxxxxxx Bros. Construction,
Inc., a Minnesota corporation ("XXXXXXXX") and Plum Tree 4th LLC, a Minnesota
limited liability company ("LLC"). Xxxxxxxx and LLC are sometimes hereafter
individually or collectively referred to as a "PARTY" or the "PARTIES."
PREAMBLE
X. Xxxxxxxx and Chanhassen Center Partnership ("CCP") have previously entered
into that certain Option Agreement dated February 1, 1993 (the "INITIAL
OPTION AGREEMENT") for certain real property described therein and
situated in the City of Plymouth, Minnesota (the "OPTION PROPERTY").
B. The Initial Option Agreement has been previously amended by that certain
First Amendment to Purchase [SIC] Agreement, signed by CCP on March 29,
1994 and signed by Xxxxxxxx on March 25, 1994; by that certain Second
Amendment to Option Agreement signed by CCP on May 3, 1994 and signed by
Xxxxxxxx on May 2, 1994; by that certain Third Amendment to Option
Agreement dated as of March 22, 1995; by that certain Fourth Amendment to
Option Agreement dated as of September 30, 1995; by that certain Fifth
Amendment to Option Agreement dated as of August 26, 1996; by that certain
Sixth Amendment to Option Agreement dated as of June 1, 1997, and by that
certain Seventh Amendment to Option Agreement of even date herewith (the
Initial Option Agreement as amended is referred to herein as the "OPTION
AGREEMENT").
X. Xxxxxxxx desires to assign to LLC its rights under the Option Agreement
with respect to that portion of the Option Property described in attached
EXHIBIT A ("4TH ADDITION PROPERTY") which is being platted as Plum Tree
4th Addition. LLC desires to acquire the 4th Addition Property pursuant to
the Option Agreement.
THEREFORE, in consideration of LLC's assumption of Xxxxxxxx'x Option
Agreement obligations with respect to the 4th Addition 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. DEFINITIONS. Except as expressly provided herein, words and phrases in
this Assignment have the same meanings as defined in the Option
Agreement.
2. ASSIGNMENT. Xxxxxxxx hereby transfers and assigns to LLC all of
Xxxxxxxx'x right, title and interest in and to all of the following:
2.1. OPTION TO PURCHASE THE 4TH ADDITION PROPERTY. All of
Xxxxxxxx'x rights under the Option Agreement with respect to
the 4th Addition Property, including, without limitation,
the right to purchase the 4th Addition Property from CCP and
any representations and warranties of CCP under the Option
Agreement and the documents delivered pursuant thereto
pertaining to the 4th Addition Property. The
assignment under this Subsection is expressly limited to the
4th Addition Property and Xxxxxxxx retains all rights under
the Option Agreement with respect to the remainder of the
Option Property.
2.2. WORK PRODUCT. All drawings, plats, plans, reports, studies,
appraisals, analyses an other documents or data pertaining
to the 4th Addition Property and/or the development of the
4th Addition Property, whether prepared by Xxxxxxxx or third
party consultants ("WORK PRODUCT"). At LLC's request
Xxxxxxxx shall provide LLC with full-size copies of all Work
Product which is in Xxxxxxxx'x possession, together with a
computer diskette(s) containing all Work Product that is
available in a format readable by a computer.
2.3. CONSULTANT AGREEMENTS. All agreements with third party
consultants engaged by or on behalf of Xxxxxxxx to produce
or provide Work Product pertaining to the 4th Addition
Property ("CONSULTANT AGREEMENTS").
2.4. 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 4th Addition Property (collectively the
"PROPERTY APPROVALS").
If requested by LLC, Xxxxxxxx shall execute and deliver to
LLC such further documents and instruments that may be reasonably
required from time to time in order to evidence and perfect this
assignment.
3. ASSUMPTION. LLC assumes all of Xxxxxxxx'x executory obligations with
respect to the 4th Addition Property under the Option Agreement, the
Consultant Agreements and the Property Approvals, as of the effective
date of this Assignment; provided, however, that Xxxxxxxx remains
responsible for payment of all amounts due all third parties, whether
pursuant to Consultant Agreements or otherwise, incurred prior to the
date of this Assignment for Work Product and grading, utility
installations or other improvements to the Property ("WORK IN
PROCESS"). Notwithstanding the immediately preceding sentence, LLC
shall pay for any Work in Process which is included on the Sworn Cost
Statement approved by Builders Development & Finance, Inc. as a part
of LLC's acquisition and development loan for the 4th Addition
Property. Subject to LLC's limited obligation to pay for Work in
Process funded through its development loan, Xxxxxxxx shall ensure
that all amounts due consultants for Work Product are promptly paid in
order to facilitate the transfer to and use by LLC of the consultants'
Work Product. Xxxxxxxx remains responsible for all of Xxxxxxxx'x
executory obligations under the Option Agreement with respect to the
remainder of the Option Property.
4. ACKNOWLEDGMENT. The Parties agree that, as of June 1, 1998, the Option
Purchase Price of the 4th Addition Property is $667,897.10, calculated
at the rate of $25,688.35 per residential Lot. The Option Purchase
Price of the 4th Addition Property is inclusive of all accrued and
unpaid Monthly Holding Fees attributable to the 4th Addition Property
through May 31, 1998. Although LLC is acquiring the Option and paying
the Option
Purchase Price for the 4th Addition Property, the Parties acknowledge
that CCP will only deed the 4th Addition Property to Xxxxxxxx.
Xxxxxxxx agrees to accept title to the 4th Addition Property from CCP
and concurrently convey the same to LLC for no additional
consideration beyond the consideration provided herein for assignment
of Xxxxxxxx'x 4th Addition Property Option rights.
5. ASSIGNMENT CONSIDERATION. LLC shall pay Xxxxxxxx $229,771 in
consideration of the assignment of Xxxxxxxx'x Option rights in the 4th
Addition Property, which payment shall be in the form of LLC's
promissory note, bearing interest at the rate of 1% over prime,
secured by a fourth mortgage on the 4th Addition residential lots
(subordinate to $425,000 first and $1,340,000 second mortgages in
favor of the development loan lender and the $670,000 "Shared Costs"
third mortgage in favor of BF Holding Company. At the closing LLC
shall execute a Modification of the Shared Costs mortgage to include
the 4th Addition residential lots as additional collateral for the
Shared Costs loan.
6. XXXXXXXX'X REPRESENTATIONS AND WARRANTIES. Except for those matters
disclosed in the Option Agreement and in the Work Product, Xxxxxxxx
represents and warrants to LLC as follows:
6.1. PROPERTY AGREEMENTS AND APPROVALS. The Option Agreement,
Consultant Agreements and Property Approvals are currently
in full force and effect; Xxxxxxxx is not in default in
performing Xxxxxxxx'x obligations under the Option
Agreement, the Consultant Agreements or the Property
Approvals; Xxxxxxxx is not aware of any default in
performance of CCP's or consultants' obligations under the
Option Agreement and Consultant Agreements; and Xxxxxxxx has
not previously assigned, sold, pledged, mortgaged or
otherwise transferred Xxxxxxxx'x interest in the Option
Agreement, the Consultant Agreements or the Property
Approvals.
6.2. LITIGATION. Xxxxxxxx does not have knowledge of any
litigation, investigation, condemnation or legal proceedings
of any kind which are threatened or pending against the 4th
Addition Property or which pertain to or may affect the 4th
Addition Property.
6.3. 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:
6.3.1. The 4th Addition Property does not violate any
federal, state or local statute, regulation or
ordinance dealing with environmental protection or
hazardous waste;
6.3.2. The 4th Addition Property's soil and water table
are free and clear of any and all contaminants,
including hazardous waste;
6.3.3. The 4th Addition Property has not been used for
the storage or disposal of any hazardous waste;
and
6.3.4. Xxxxxxxx has received no notice from any
governmental authority concerning the removal of
hazardous waste from the 4th Addition Property.
6.4. STORAGE TANKS. Xxxxxxxx knows of no underground or
aboveground storage tanks that now exist or ever existed on
any portion of the 4th Addition Property.
6.5. XXXXX; PRIVATE SEWER SYSTEMS. Xxxxxxxx does not know of any
well(s) or private sewer system(s) on the 4th Addition
Property.
6.6. INDEMNITY. Xxxxxxxx shall indemnify LLC, its successors and
assigns, against, and shall hold LLC, its successors and
assigns, harmless from, any fines, penalties, liabilities,
claims, suits, actions, damages, losses, costs and expenses,
including reasonable attorneys' fees, which LLC may incur
because of any breach of any of Xxxxxxxx'x representations
and warranties in this Assignment.
6.7. NO THIRD PARTY BENEFICIARIES. Xxxxxxxx'x representations,
warranties and indemnities made and given to LLC pursuant to
Section 6 or elsewhere in this Assignment are for the
exclusive benefit of LLC and no other person, and neither
CCP nor any other person shall be deemed a "third party
beneficiary" of any such representations, warranties or
indemnities made or given by Xxxxxxxx to LLC hereunder.
7. NOTICE. Any notice or other communication under this Agreement shall
be in writing, addressed to Xxxxxxxx at the address specified for
notices in the Option Agreement and to LLC at its registered address
on file from time to time with the Office of the Minnesota Secretary
of State. 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. Notices are deemed received on the date of delivery
if sent by delivery service, or, if mailed, on the third (4th business
day after mailing. A Party may change its address under this section
by giving notice to the other Party.
8. NO BROKERS. Each Party warrants to the other Parties that it 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 person. Each party agrees to indemnify,
defend and hold harmless the other Parties 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
Assignment or the transaction contemplated herein. Xxxxxxxx hereby
discloses that Xxxxxxxx is a licensed real estate broker and is
assigning its option in the 4th Addition Property for Xxxxxxxx'x own
account.
9. MISCELLANEOUS.
9.1. XXXXXXXX'X FILES AND RECORDS. Xxxxxxxx'x files and records
relating to the 4th Addition Property shall be made
available to LLC at reasonable times for inspection and
copying by LLC at LLC's sole cost and expense.
9.2. AMENDMENT. This Assignment 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 Assignment is
invalid or unenforceable, the remainder of this Assignment
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 Assignment 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 Parties in or pursuant to this
Assignment or the Option Agreement shall survive this
partial assignment of the Option Agreement and conveyance of
the 4th Addition Property to LLC, 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 Assignment shall be binding
upon and inure to the benefit of the Parties, and their
respective successors and assigns, subject to the
restrictions on assignment contained in the Option
Agreement.
9.6. ATTORNEYS' FEES. If any Party defaults under this
Assignment, the defaulting Party shall be responsible for
all reasonable expenses (including attorneys' fees) incurred
by the other Parties in enforcing any rights and remedies
under this Assignment.
9.7. HOLD HARMLESS. LLC shall indemnify and hold Xxxxxxxx
harmless from any and all claims arising from third parties
as a result of LLC's acts or omissions. Xxxxxxxx shall
indemnify and hold LLC harmless from any and all claims
arising from third parties as a result of Xxxxxxxx'x acts or
omissions.
9.8. AUTHORITY TO CONTRACT. The Parties represent to each other
that the execution and delivery of this Assignment 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 Assignment the
valid and binding obligation upon each of the Parties
hereto.
IN WITNESS WHEREOF, the Parties hereto have executed this Assignment
effective as of the date first written above.
LLC: XXXXXXXX:
PLUM TREE 4TH LLC XXXXXXXX BROS. CONSTRUCTION, INC.
By By
----------------------------------- -----------------------------------
Its Its
-------------------------------- --------------------------------
EXHIBITS:
A Legal Description of the 4th Addition Property
EXHIBIT A
LEGAL DESCRIPTION OF 4TH ADDITION PROPERTY
That certain real property located in the City of Plymouth, Hennepin
County, Minnesota, described as follows:
Lots 1 through 5, Block 1;
Lots 1 through 8, Block 2;
Lots 1 through 11, Block 3;
Lots 1 and 2, Block 4; and
Outlots A and B; PLUM TREE 4TH ADDITION,
according to the plat thereof on file and of record in the offices
of the Registrar of Titles and the County Recorder for
Hennepin County, Minnesota.
