XXXXX POINTE
ACQUISITION AND CLOSING AGREEMENT
THIS ACQUISITION AND CLOSING AGREEMENT ("CLOSING AGREEMENT") is entered
into as of ____________, 1997, by and between Xxxxxxxx Bros. Construction, Inc.,
a Minnesota corporation ("XXXXXXXX") and Xxxxx Pointe 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
A. Concurrently herewith LLC is acquiring from Xxxxxxxx certain real
property in the City of Shorewood, Hennepin County, Minnesota,
described in attached EXHIBIT A ("PROPERTY"). Xxxxxxxx acquired the
Property from the sellers described in attached EXHIBIT B ("FORMER
OWNERS") pursuant to certain option or purchase agreements between
Xxxxxxxx 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 and assumption
by LLC of Xxxxxxxx'x rights and obligations under the Former Owner
Agreements, and (ii) memorialize certain terms and agreements of the
Parties pertaining to the sale of the Property by Xxxxxxxx to LLC.
THEREFORE, in consideration of LLC'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. ASSIGNMENT. Xxxxxxxx hereby transfers and assigns to LLC all of
Xxxxxxxx'x right, title and interest in and to all of the following:
1.1. FORMER OWNER AGREEMENTS. All of the Former Owner Agreements
including, but not limited to, all of Xxxxxxxx'x right, title
and interest in and to any representations and warranties of
the Former Owners under the Former Owner Agreements.
1.2. 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 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.
1.3. CONSULTANT AGREEMENTS. All agreements with third party
consultants engaged by or on behalf of Xxxxxxxx to produce or
provide Work Product ("CONSULTANT AGREEMENTS").
1.4. 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 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.
2. ASSUMPTION. LLC assumes all of Xxxxxxxx'x executory obligations under
the Former Owner Agreements, the Consultant Agreements and the Property
Approvals, effective on the date of this Closing Agreement; provided,
however, that 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 are
promptly paid in order to facilitate the transfer to and use by LLC of
the consultants' Work Product.
3. XXXXXXXX'X REPRESENTATIONS AND WARRANTIES. Except for those matters
disclosed in the Former Owner Agreements, the closing documents
delivered by Xxxxxxxx and the Former Owner's at the closing of the
Former Owner Agreement transactions, and in the Work Product, Xxxxxxxx
represents and warrants to LLC as follows:
3.1. PROPERTY AGREEMENTS AND APPROVALS. The Former Owner and
Consultant Agreements and Property Approvals are currently in
full force and effect; Xxxxxxxx is not in default in
performing Xxxxxxxx'x obligations under the Former Owner and
Consultant Agreements or the Property Approvals; Xxxxxxxx is
not aware of any default in performance of the Former Owners'
or consultants' obligations under the Former Owner and
Consultant Agreements; and Xxxxxxxx has not previously
assigned, sold, pledged, mortgaged or otherwise transferred
Xxxxxxxx'x interest in the Former Owner or Consultant
Agreements or the Property Approvals.
3.2. 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.
3.3. 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:
3.3.1. The Property does not violate any federal, state or
local statute, regulation or ordinance dealing with
environmental protection or hazardous waste;
3.3.2. The Property's soil and water table are free and
clear of any and all contaminants, including
hazardous waste;
3.3.3. The Property has not been used for the storage or
disposal of any hazardous waste; and
3.3.4. Xxxxxxxx has received no notice from any governmental
authority concerning the removal of hazardous waste
from the Property.
3.4. STORAGE TANKS. Xxxxxxxx knows of no underground or aboveground
storage tanks that now exist or ever existed on any portion of
the Property.
3.5. XXXXX; PRIVATE SEWER SYSTEMS. Xxxxxxxx does not know of any
well(s) or private sewer system(s) on the Property.
3.6. 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 Closing Agreement.
4. NOTICE. Any notice or other communication under this Agreement shall be
in writing, addressed to the Parties at their 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 (3rd business
day after mailing. A Party may change its address under this section by
giving notice to the other Party.
5. NO BROKERS. Xxxxxxxx warrants to LLC 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. LLC warrants to Xxxxxxxx that LLC 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 LLC 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.
6. MISCELLANEOUS.
6.1. XXXXXXXX'X FILES AND RECORDS. Xxxxxxxx'x files and records
relating to the Property shall be made available to LLC at
reasonable times for inspection and copying by LLC at LLC's
sole cost and expense.
6.2. 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.
6.3. 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.
6.4. SURVIVAL. All covenants, agreements, obligations and
undertakings made by Xxxxxxxx and LLC in or pursuant to this
Closing Agreement shall survive conveyance of the Property and
assignment of the Former Owner and Consultant Agreements 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.
6.5. SUCCESSORS; NO ASSIGNMENT. This Closing Agreement shall be
binding upon and inure to the benefit of Xxxxxxxx and LLC, 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 whatsoever.
6.6. 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.
6.7. HOLD HARMLESS. LLC shall hold Xxxxxxxx harmless from any and
all claims arising from third parties as a result of LLC's
acts or omissions. Xxxxxxxx shall hold LLC harmless from any
and all claims arising from third parties as a result of
Xxxxxxxx'x acts or omissions.
6.8. AUTHORITY TO CONTRACT. Xxxxxxxx and LLC 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.
6.9. STANDARD OF PERFORMANCE. Nothing contained in this Closing
Agreement shall limit the right of a Party to exercise its
business judgment, or act, in a subjective manner, with
respect to any matter as to which it has specifically been
granted such right or the right to act in its sole discretion
or sole judgment or the right to make a subjective judgment
under any provision of this Closing Agreement, whether
"objectively" reasonable under circumstances, and any such
exercise shall not be deemed inconsistent with any covenant of
good faith and fair dealing otherwise implied by law to be
part of this Closing Agreement; and the Parties intend by this
provision to set forth their entire understanding with respect
to the terms, covenants, conditions and standards pursuant to
which their obligations are to be judged and their performance
measured.
IN WITNESS WHEREOF, the Parties hereto have executed this Closing
Agreement effective as of the date first written above.
SELLER: BUYER:
XXXXX POINTE LLC XXXXXXXX BROS. CONSTRUCTION, INC.
By_________________________________ By_________________________________
Its______________________________ Its______________________________
EXHIBITS
A Legal Description of the Property
B Schedule of Former Owners and Former Owner Agreements
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
That certain real property located in the City of Shorewood, Hennepin
County, Minnesota, described as follows:
Lots 1 through 25, Block 1 and Lots 1 through 0, Xxxxx 0, Xxxxx Xxxxxx,
as shown on the recorded or filed Plat thereof.
EXHIBIT B
SCHEDULE OF FORMER OWNERS
AND
FORMER OWNER AGREEMENTS
FORMER OWNER: Independent School District No. 276
FORMER OWNER AGREEMENT:
Purchase Agreement dated November 30, 1993 between Independent School
District No. 276 as Seller and Xxxxxxxx as Buyer, and all amendments
thereto together with all closing documents generated to date,
including those documents set forth in the Xxxxxxxx Closing Book dated
March 29, 1996.
FORMER OWNER: Roman and Xxxxxxx Xxxxxxx
FORMER OWNER AGREEMENT:
Option Agreement dated April 29, 1994 granted by Roman and Xxxxxxx
Xxxxxxx as Sellers to Xxxxxxxx and all amendments thereto, together
with all closing documents generated to date, including those documents
set forth in the Xxxxxxxx Closing Book dated March 29, 1996.
FORMER OWNER: Xxxxxx Xxxxx
FORMER OWNER AGREEMENT:
Purchase Agreement dated December 30, 1993 between Xxxxxx Xxxxx as
Seller and Xxxxxxxx as Buyer, and all amendments thereto, together with
all closing documents set forth in the Xxxxxxxx Closing Book dated
April 29, 1996.
