Earnest Money Contract - Larry A. Holmberg and Rick's Cabaret International Inc.
EARNEST MONEY CONTRACT
("AGREEMENT")
THIS EARNEST MONEY CONTRACT IS MADE AND ENTERED INTO AS OF THE 24TH DAY
OF DECEMBER, 1996, BETWEEN LARRY A. HOLMBERG, A SINGLE INDIVIDUAL ("SELLER") AND
RICK'S CABARET INTERNATIONAL, INC., A TEXAS CORPORATION, WHOSE INTEREST IS TO BE
ASSIGNED TO A CORPORATION TO BE FORMED (BOTH HEREINAFTER REFERRED TO AS
"PURCHASER").
IN CONSIDERATION OF THE COVENANTS AND AGREEMENTS CONTAINED HEREIN, THE PARTIES
AGREE AS FOLLOWS:
1. PROPERTY TO BE PURCHASED. SUBJECT TO COMPLIANCE WITH THE TERMS AND
CONDITIONS OF THIS AGREEMENT, SELLER SHALL SELL TO PURCHASER AND
PURCHASER SHALL PURCHASE FROM SELLER THE FOLLOWING (COLLECTIVELY THE
"PROPERTY"):
A. THE REAL PROPERTY LOCATED AT 300 SOUTH THIRD STREET, CITY OF
MINNEAPOLIS, COUNTY OF HENNEPIN, STATE OF MINNESOTA, LEGALLY
DESCRIBED IN EXHIBIT A ATTACHED HERETO SUBJECT TO FURTHER
VERIFICATION BY SURVEY AND TITLE COMPANY, TOGETHER WITH ALL
EASEMENTS, TENEMENTS, HEREDITAMENTS, AND APPURTENANCES
BELONGING THERETO (THE "REAL PROPERTY") AND ALL BUILDINGS,
STRUCTURES AND OTHER IMPROVEMENTS ERECTED OR PLACED ON SAID
REAL PROPERTY (THE "IMPROVEMENTS");
B. ALL SUPPLIES, TOOLS, MACHINERY, EQUIPMENT, AND OTHER ITEMS OF
PERSONAL PROPERTY LOCATED IN THE IMPROVEMENTS OR USED OR
USEFUL IN CONNECTION WITH THE MAINTENANCE, MANAGEMENT OR
OPERATION OF SAID REAL PROPERTY OR THE IMPROVEMENTS (THE
"PERSONAL PROPERTY");
C. ALL LEASES AND TENANCIES PERTAINING TO THE FOREGOING;
D. ALL PERMITS, LICENSES, WARRANTIES, CONTRACT RIGHTS AND
INTANGIBLES TO BE ASSIGNED TO PURCHASER.
2. PURCHASE PRICE. THE PURCHASE PRICE FOR THE PROPERTY ("PURCHASE PRICE")
SHALL BE THE SUM OF SEVEN HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($750,000.00) PAYABLE AS FOLLOWS:
A. SIXTY THOUSAND AND NO/100 DOLLARS ($60,000.00) AS EARNEST
MONEY (THE "EARNEST MONEY") WHICH SHALL BE DEPOSITED BY
PURCHASER WITH FIRST AMERICAN TITLE INSURANCE COMPANY, 1150
METROPOLITAN CENTRE, 333 SOUTH SEVENTH STREET, MINNEAPOLIS,
MINNESOTA 55402 ("ESCROW AGENT") CONTEMPORANEOUSLY WITH
PURCHASER DELIVERING THIS OFFER TO PURCHASE TO SELLER. THE
EARNEST MONEY SHALL BE PLACED AND HELD BY ESCROW AGENT IN ITS
COMMERCIAL INTEREST BEARING ACCOUNT IN ACCORDANCE WITH AN
ESCROW AGREEMENT IN SUBSTANTIALLY THE FORM ATTACHED HERETO AS
EXHIBIT B ("ESCROW AGREEMENT"). ANY AND ALL INTEREST ACCRUING
ON THE EARNEST MONEY SHALL BE PAID TO PURCHASER AND SHALL
ACCRUE SOLELY FOR PURCHASER'S BENEFIT;
B. ONE HUNDRED NINETY THOUSAND AND NO/100 DOLLARS ($190,000.00)
IN CASH AT CLOSING; AND
C. FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) BY
PURCHASER EXECUTING A PROMISSORY NOTE IN THE FORM ATTACHED AS
EXHIBIT C, SECURED BY A COMBINATION
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MORTGAGE, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT
IN THE FORM ATTACHED AS EXHIBIT D AND UCC-2 FINANCING
STATEMENT IN THE FORM ATTACHED AS EXHIBIT E. THE PROMISSORY
NOTE SHALL BE GUARANTEED BY RICK'S CABARET INTERNATIONAL, INC.
IN THE FORM ATTACHED HERETO AS EXHIBIT F.
3. TITLE TO BE DELIVERED. SELLER AGREES TO CONVEY MARKETABLE FEE SIMPLE
TITLE IN THE PROPERTY TO PURCHASER SUBJECT ONLY TO SUCH EXCEPTIONS TO
TITLE AS PURCHASER APPROVES IN WRITING.
A. AS SOON HEREAFTER AS PURCHASER ELECTS AT SELLER'S SOLE COST
AND EXPENSE, BUYER SHALL:
I. CAUSE TO BE ISSUED AND DELIVERED TO PURCHASER A
COMMITMENT FOR AN ALTA FORM B EXTENDED COVERAGE
OWNER'S TITLE INSURANCE POLICY (THE "COMMITMENT")
ISSUED BY FIRST AMERICAN TITLE INSURANCE COMPANY,
MINNEAPOLIS, MINNESOTA (THE "TITLE COMPANY") WHEREIN
SAID TITLE COMPANY AGREES TO ISSUE TO PURCHASER UPON
THE RECORDING OF THE DEED AND OTHER CONVEYANCE
DOCUMENTS REFERRED TO HEREIN AN ALTA FORM B OWNER'S
TITLE INSURANCE POLICY (THE "TITLE POLICY") IN THE
FULL AMOUNT OF THE PURCHASE PRICE WITH A ZONING
ENDORSEMENT AND SO-CALLED OWNER'S EXTENDED COVERAGE
ENDORSEMENT. THE COMMITMENT WILL BE ACCOMPANIED BY
COPIES OF ALL RECORDED DOCUMENTS AFFECTING THE
PROPERTY;
II. CAUSE TO BE DELIVERED TO PURCHASER AT SELLER'S SOLE
COST AND EXPENSE A CURRENT "AS BUILT" SURVEY (THE
"SURVEY") OF THE PROPERTY PREPARED BY A DULY LICENSED
LAND SURVEYOR IN THE STATE OF MINNESOTA APPROVED BY
PURCHASER. THE SURVEY SHALL BE PREPARED IN ACCORDANCE
WITH THE MINIMUM STANDARD DETAIL REQUIREMENTS
ESTABLISHED FOR ALTA/ACSM LAND TITLE SURVEYS, SHALL
DELINEATE THE BOUNDARY LINES OF THE REAL PROPERTY AND
THE LOCATION OF THE IMPROVEMENTS THEREON, TOGETHER
WITH SETBACKS, PHYSICAL ENCROACHMENTS FROM OR ON THE
REAL PROPERTY, EASEMENTS AND RIGHTS OF WAY, AND ALL
OTHER MATTERS AFFECTING THE REAL PROPERTY. THE SURVEY
SHALL BE CERTIFIED TO PURCHASER, THE TITLE COMPANY
AND, IF APPLICABLE, PURCHASER'S LENDER, AND SHALL BE
SUFFICIENT TO CAUSE THE TITLE COMPANY TO DELETE ANY
EXCEPTION FOR SURVEY MATTERS FROM THE TITLE POLICY;
AND
III. NOTWITHSTANDING THE ABOVE, PURCHASER SHALL PAY THE
INITIAL COST OF THE TITLE COMMITMENT AND "AS BUILT"
SURVEY, SELLER SHALL REIMBURSE PURCHASER FOR SUCH
COST AT CLOSING, OR IF SELLER DEFAULTS ON THE
PERFORMANCE OF THIS AGREEMENT OR ON THE PERFORMANCE
OF THAT CERTAIN ASSET PURCHASE AGREEMENT DATED THE
______ DAY OF DECEMBER, 1996, ENTERED INTO BETWEEN
AMUSEMENT CENTER, INC., A MINNESOTA CORPORATION AND
BUNS & ROSES II, INC., A MINNESOTA CORPORATION
(COLLECTIVELY REFERRED TO THEREIN AS "SELLER"), LARRY
HOLMBERG, AN INDIVIDUAL AND THE SOLE SHAREHOLDER OF
AMUSEMENT CENTER, INC., AND RICK'S CABARET
INTERNATIONAL, INC., A TEXAS CORPORATION OR A
CORPORATION TO BE FORMED AS BUYER (HEREINAFTER
REFERRED TO AS "ASSET PURCHASE AGREEMENT"). IF
PURCHASER DEFAULTS ON THIS AGREEMENT, SELLER SHALL
NOT BE REQUIRED TO REIMBURSE PURCHASER FOR THE COST
OF THE TITLE COMMITMENT AND "AS BUILT" SURVEY.
B. PURCHASER SHALL HAVE TWENTY (20) DAYS AFTER RECEIPT OF THE
TITLE COMMITMENT AND SURVEY TO RENDER OBJECTIONS TO TITLE IN
WRITING TO SELLER AND SELLER SHALL HAVE TWENTY (20) DAYS FROM
THE DATE IT RECEIVES SUCH OBJECTIONS TO HAVE THE SAME REMOVED
OR SATISFIED. IF SELLER SHALL FAIL TO HAVE SUCH OBJECTIONS
REMOVED WITHIN THAT TIME, PURCHASER MAY, AT ITS SOLE
DISCRETION, EITHER (A) TERMINATE THIS AGREEMENT WITHOUT ANY
LIABILITY ON ITS PART AND RECEIVE A REFUND OF THE EARNEST
MONEY (TOGETHER WITH ACCRUED INTEREST), OR (B) IF THE
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OBJECTIONS ARE SUCH THAT THEY MAY BE REMOVED BY THE
EXPENDITURES OF SUMS OF MONEY, TAKE TITLE TO THE PROPERTY,
DISCHARGE SUCH OBJECTIONS, AND RECEIVE A CREDIT AGAINST THE
PURCHASE PRICE FOR THE SUMS SO EXPENDED, OR (C) IF THE
OBJECTIONS ARE SUCH THAT THEY MAY NOT BE REMOVED BY
EXPENDITURES OF SUMS OF MONEY, TAKE TITLE SUBJECT TO SUCH
OBJECTIONS. SELLER AGREES TO USE ITS BEST EFFORTS TO PROMPTLY
SATISFY ANY SUCH OBJECTIONS.
4. DELIVERY OF DOCUMENTS UPON EXECUTION. IF IN SELLER'S POSSESSION OR
SELLER CAN REASONABLY ACQUIRE, SELLER SHALL DELIVER TO PURCHASER WITHIN
SIXTY (60) DAYS OF FULL EXECUTION AND DELIVERY OF THIS AGREEMENT, ALL
OF THE FOLLOWING (THE "PROPERTY DATA"):
A. A COPY OF SELLER'S LATEST TITLE INSURANCE POLICY ON THE REAL
PROPERTY;
B. COPIES OF ANY "AS-BUILT" SURVEYS AND TOPOGRAPHICAL SURVEYS OF
THE PROPERTY IN SELLER'S POSSESSION;
C. COPIES OF ANY AND ALL PLANS AND SPECIFICATIONS FOR THE
PROPERTY IN SELLER'S POSSESSION;
D. COPIES OF ANY TERMITE INSPECTION REPORTS, TERMITE REPAIR BONDS
OR ANY OTHER TERMITE BOND FOR THE PROPERTY IN SELLER'S
POSSESSION;
E. COPIES OF ANY SOIL TEST BORINGS, STRUCTURAL OR MECHANICAL
ENGINEERING REPORTS, ENVIRONMENTAL STUDIES OR ANY OTHER
DOCUMENTATION PERTAINING TO THE PHYSICAL CONDITION OF THE REAL
PROPERTY OR THE IMPROVEMENTS IN SELLER'S POSSESSION;
F. COPIES OF ANY UNPAID AND THE MOST RECENT REAL ESTATE AND
PERSONAL PROPERTY TAX BILLS FOR THE PROPERTY AND ANY
SUBSEQUENT NOTICES OF REASSESSMENT;
G. A LIST OF ALL UTILITY ACCOUNT NUMBERS AND THEIR RESPECTIVE
ADDRESSES FOR ALL UTILITIES SERVING THE PROPERTY, AND COPIES
OF ALL BILLS FOR EACH ACCOUNT FOR THE PAST 12 MONTHS, TOGETHER
WITH FORM LETTERS PROVIDED BY PURCHASER TO BE SIGNED BY SELLER
ADDRESSED TO ALL UTILITY PROVIDERS AUTHORIZING PURCHASER AND
ITS AGENTS TO MAKE THE INQUIRIES REFERRED TO IN SECTION 5
HEREOF;
H. A LIST OF ALL PROPERTY EMPLOYEES, THEIR JOB TITLES AND
DESCRIPTIONS, THEIR PRESENT SALARIES OR WAGES, BENEFITS AND
TERM OF THEIR EMPLOYMENT;
I. COPIES OF ALL OPERATING AND MAINTENANCE AGREEMENTS AND SERVICE
CONTRACTS, WHICH EXCEED ONE MONTH IN LENGTH, INCLUDING ANY
TELEPHONE DIRECTORY ADVERTISEMENT CONTRACT, AND CABLE
TELEVISION AGREEMENTS OR EASEMENTS IN EFFECT AT THE PROPERTY;
J. A LIST OF ALL TANGIBLE PERSONAL PROPERTY TO BE TRANSFERRED IN
THIS TRANSACTION;
K. COPIES OF ALL PROMISSORY NOTES, MORTGAGES, DEEDS OF TRUST,
CONTRACTS FOR DEED, ASSIGNMENTS OF RENTS AND OTHER DOCUMENTS
EVIDENCING THE EXISTING FINANCING;
L. COPIES OF ANY INSURANCE POLICIES COVERING THE PROPERTY;
M. ANY OTHER INFORMATION RELATING TO THE PROPERTY REASONABLY
REQUESTED BY PURCHASER.
5. INSPECTIONS. PURCHASER, ITS COUNSEL, ACCOUNTANTS, AGENTS AND OTHER
REPRESENTATIVES, SHALL HAVE FULL AND CONTINUING ACCESS TO THE PROPERTY
AND ALL PARTS THEREOF, AS WELL AS TO ALL ITEMS REFERRED TO
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IN SECTION 4 AND ALL OTHER PAPERS AND DOCUMENTS OF SELLER AS THEY
RELATE TO THE TITLE, PHYSICAL CONDITION, DEVELOPMENT AND OPERATION OF
THE PROPERTY. PURCHASER AND ITS AGENTS AND REPRESENTATIVES SHALL ALSO
HAVE THE RIGHT TO ENTER UPON THE PROPERTY DURING REASONABLE BUSINESS
HOURS AFTER THE EXECUTION AND DELIVERY HEREOF FOR ANY PURPOSE
WHATSOEVER, INCLUDING INSPECTING, SURVEYING, ENGINEERING, TEST BORING,
PERFORMANCE OF ENVIRONMENTAL TESTS AND SUCH OTHER WORK AS PURCHASER
SHALL CONSIDER APPROPRIATE AND SHALL HAVE THE FURTHER RIGHT TO MAKE
SUCH INQUIRIES OF HOLDERS OF EXISTING FINANCING, GOVERNMENTAL AGENCIES
AND UTILITY COMPANIES, ETC., AND TO MAKE SUCH FEASIBILITY STUDIES AND
ANALYSES AS IT CONSIDERS APPROPRIATE (COLLECTIVELY THE "INSPECTIONS").
PURCHASER SHALL INDEMNIFY AND HOLD SELLER, ITS AGENTS OR AFFILIATES,
HARMLESS FROM ANY AND ALL LIABILITIES, LOSSES, COSTS AND EXPENSES
(INCLUDING COURT COSTS AND REASONABLE ATTORNEYS' FEES) INCURRED BY
SELLER DUE TO THE DEATH OR INJURY OF ANY PERSON AND DAMAGE TO ANY
PROPERTY CAUSED BY OR ARISING OUT OF ANY INSPECTION OF THE PROPERTY
PURSUANT TO THIS PARAGRAPH.
6. RISK OF LOSS. UNTIL THE CLOSING DATE, SELLER SHALL HAVE THE FULL
RESPONSIBILITY AND THE ENTIRE ------------ LIABILITY FOR ANY AND ALL
DAMAGES OR INJURY OF ANY KIND WHATSOEVER TO THE REAL PROPERTY, THE
IMPROVEMENTS THEREON, ANY AND ALL PERSONS, WHETHER EMPLOYEES OR
OTHERWISE, AND ALL PROPERTY FROM AND CONNECTED TO THE PROPERTY. IF,
PRIOR TO THE CLOSING, THE PROPERTY IS DAMAGED OR THE IMPROVEMENTS ARE
DESTROYED OR THE REAL PROPERTY SHALL BE THE SUBJECT OF AN ACTION IN
EMINENT DOMAIN OR A PROPOSED TAKING BY A GOVERNMENTAL AUTHORITY,
WHETHER TEMPORARY OR PERMANENT, SELLER SHALL IMMEDIATELY NOTIFY
PURCHASER OF SUCH DAMAGE, DESTRUCTION OR PROPOSED TAKING, AND
PURCHASER, AT ITS SOLE DISCRETION, SHALL HAVE THE RIGHT TO TERMINATE
THIS AGREEMENT UPON NOTICE TO SELLER WITHOUT LIABILITY ON ITS PART BY
SO NOTIFYING SELLER AND THE EARNEST MONEY AND ALL OTHER SUMS HERETOFORE
PAID BY PURCHASER (WITH ACCRUED INTEREST) SHALL BE REFUNDED TO
PURCHASER. IF THE REAL PROPERTY OR IMPROVEMENTS ARE DAMAGED BUT
PURCHASER DOES NOT EXERCISE ITS RIGHT OF TERMINATION, SELLER SHALL
PROCEED FORTHWITH TO REPAIR THE DAMAGE TO THE REAL PROPERTY AND
IMPROVEMENTS AND ANY AND ALL PROCEEDS ARISING OUT OF SUCH DAMAGE OR
DESTRUCTION, IF THE SAME BE INSURED, OR OUT OF ANY SUCH EMINENT DOMAIN
TAKING, SHALL BE HELD IN TRUST BY SELLER FOR THE BENEFIT OF SUCH REPAIR
AND PAID OVER TO THE PARTIES PERFORMING SUCH REPAIRS, IF SUCH REPAIRS
ARE COMPLETED PRIOR TO THE CLOSING DATE, OR PAID TO PURCHASER ON THE
CLOSING DATE IF THE REPAIRS ARE NOT COMPLETED AS OF SUCH DATE. IN NO
EVENT SHALL THE PURCHASE PRICE BE INCREASED BY THE AMOUNT OF ANY SUCH
PROCEEDS. SELLER AGREES TO KEEP THE PROPERTY CONTINUALLY INSURED DURING
THE TERM OF THIS AGREEMENT UNDER A POLICY OF FIRE AND EXTENDED COVERAGE
INSURANCE WITH AN ACTUAL REPLACEMENT COST ENDORSEMENT.
7. OPERATION OF PROPERTY PRIOR TO CLOSING. UNTIL THE CLOSING DATE, SELLER
SHALL HAVE THE FULL RESPONSIBILITY FOR THE CONTINUED OPERATION OF THE
PROPERTY. PRIOR TO THE CLOSING DATE:
A. SELLER SHALL NOT CAUSE ANY NEW LIENS, CONTRACTS OR
ENCUMBRANCES TO BE CREATED BY SELLER AGAINST THE PROPERTY;
B. SELLER SHALL CONTINUE TO COMPLY WITH ALL OF THE LANDLORD'S
DUTIES AND OBLIGATIONS AS SET FORTH IN THE TENANT LEASE;
C. SELLER SHALL CONTINUE TO OPERATE, REPAIR, AND MAINTAIN THE
PROPERTY IN THE SAME MANNER AS IT HAS PRIOR TO THE DATE OF
THIS AGREEMENT.
8. REPRESENTATIONS AND WARRANTIES OF SELLER. IN ORDER TO INDUCE PURCHASER
TO ENTER INTO THIS AGREEMENT AND PURCHASE THE PROPERTY, SELLER HEREBY
REPRESENTS AND WARRANTS TO PURCHASER AS FOLLOWS:
A. NO ACTION IN CONDEMNATION, EMINENT DOMAIN OR PUBLIC TAKING
PROCEEDINGS ARE NOW PENDING OR CONTEMPLATED AGAINST THE REAL
PROPERTY;
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B. NO ORDINANCE OR HEARING IS NOW BEFORE ANY LOCAL GOVERNMENTAL
BODY WHICH EITHER CONTEMPLATES OR AUTHORIZES ANY PUBLIC
IMPROVEMENTS OR SPECIAL TAX LEVIES, THE COST OF WHICH MAY BE
ASSESSED AGAINST THE REAL PROPERTY. THERE ARE NO SPECIAL
ASSESSMENTS CURRENTLY A LIEN AGAINST OR ENCUMBERING THE REAL
PROPERTY;
C. SELLER HAS OR WILL HAVE AS OF THE DATE OF CLOSING GOOD AND
MARKETABLE FEE SIMPLE TITLE INTEREST TO THE REAL PROPERTY;
D. TO THE BEST OF SELLER'S KNOWLEDGE, THE REAL PROPERTY AND THE
IMPROVEMENTS ARE IN FULL COMPLIANCE WITH ALL ZONING AND
BUILDING LAWS, INCLUDING, BUT NOT LIMITED TO, THE AMERICANS
WITH DISABILITIES ACT OF 1990 AND ALL RULES AND REGULATIONS
RELATING THERETO, AND THERE ARE NO NOTICES, ORDERS, SUITS,
JUDGMENTS OR OTHER PROCEEDINGS RELATING TO FIRE, BUILDING,
ZONING, AIR POLLUTION OR HEALTH VIOLATIONS THAT HAVE NOT BEEN
CORRECTED. NO FIRE INSURANCE UNDERWRITER OR GOVERNMENTAL
AUTHORITY HAS REQUESTED ANY ALTERATIONS OR ANY ADDITIONS TO
THE PROPERTY;
E. THE PROPERTY WILL AS OF THE CLOSING DATE BE FREE AND CLEAR OF
ALL LIENS, SECURITY INTERESTS, ALL ENCUMBRANCES, LEASES OR
OTHER RESTRICTIONS OR OBJECTIONS TO TITLE EXCEPT AS PERMITTED
BY THIS AGREEMENT;
F. TO THE BEST OF SELLER'S KNOWLEDGE, THE PROPERTY IS AND WILL BE
IN GOOD REPAIR AND CONDITION ON THE CLOSING DATE. THE HEATING,
VENTILATING, AIR CONDITIONING, PLUMBING AND ELECTRICAL SYSTEMS
ARE IN GOOD WORKING ORDER AND REPAIR AND THE ROOF AND EXTERIOR
WALLS OF THE IMPROVEMENTS ARE STRUCTURALLY SOUND AND FREE OF
DEFECTS OR CRACKS. THERE ARE NO ITEMS OF DEFERRED MAINTENANCE
OR REPAIR;
G. ALL LABOR OR MATERIALS WHICH HAVE BEEN FURNISHED TO THE
PROPERTY HAVE BEEN FULLY PAID FOR OR WILL BE FULLY PAID FOR
PRIOR TO THE CLOSING DATE SO THAT NO LIEN FOR LABOR OR
MATERIALS RENDERED CAN BE ASSERTED AGAINST THE PROPERTY;
H. THE WATER SERVICE AND SEWER LINES AND SYSTEMS AVAILABLE TO AND
SERVING THE PROPERTY HAVE ADEQUATE CAPACITY FOR CURRENT
OPERATIONS FOR TRANSMISSION OF WATER, SANITARY AND STORM
FLOWAGE, AND THE PROPERTY DOES NOT CONTAIN AND TO SELLER'S
KNOWLEDGE HAS NOT EVER CONTAINED ANY UNDERGROUND STORAGE
TANKS;
I. TO THE BEST OF SELLER'S KNOWLEDGE, ALL IMPROVEMENTS UPON THE
REAL PROPERTY ARE WHOLLY WITHIN THE BOUNDARY LINES OF THE
PROPERTY AND DO NOT ENCROACH UPON ANY ADJACENT PROPERTY AND NO
IMPROVEMENTS ON ANY ADJACENT PROPERTY ENCROACH UPON THE REAL
PROPERTY;
J. THE REAL PROPERTY IS IN COMPLIANCE WITH ALL SUBDIVISION AND
PLATTING REGULATIONS AND SELLER HAS NOT RECEIVED ANY NOTICE OF
VIOLATION OF APPLICABLE RULES, REGULATIONS, ORDINANCES, AND
REQUIREMENTS OF EACH GOVERNMENTAL AUTHORITY HAVING
JURISDICTION OVER THE PROPERTY, CONSTITUTES A SEPARATE TAX
PARCEL OR PARCELS AND IS ZONED FOR ITS PRESENT USE WITHOUT
VARIANCE, IS NOT A NON-CONFORMING USE AND MAY BE CONVEYED
WITHOUT THE NECESSITY OF THE FILING OF A PLAT OR REPLAT OR
SUBDIVISION OR RESUBDIVISION;
K. ALL SERVICE CONTRACTS AFFECTING THE PROPERTY ARE CANCELABLE
WITHOUT PENALTY ON THIRTY (30) DAYS' NOTICE OR LESS;
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L. THERE WILL BE NO PARTIES WITH RIGHTS TO POSSESSION TO THE
PROPERTY AT CLOSING.
M. TO THE BEST OF SELLER'S KNOWLEDGE, THE EXISTING AND ALL PRIOR
USES OF THE PROPERTY AND ITS EXISTING AND, TO THE BEST OF
SELLER'S KNOWLEDGE, ALL PRIOR USES COMPLY AND HAVE AT ALL
TIMES COMPLIED WITH, AND SELLER IS NOT IN VIOLATION OF AND HAS
NOT VIOLATED, IN CONNECTION WITH ITS OWNERSHIP, USE,
MAINTENANCE OR OPERATION OF THE PROPERTY AND THE CONDUCT OF
THE BUSINESS RELATED THERETO, ANY APPLICABLE FEDERAL, STATE,
COUNTY OR LOCAL STATUES, LAWS, REGULATIONS, RULES, ORDINANCES,
CODES, STANDARDS, ORDERS, LICENSES AND PERMITS OF ANY
GOVERNMENTAL AUTHORITIES RELATING TO ENVIRONMENTAL MATTERS
(BEING HEREINAFTER COLLECTIVELY REFERRED TO AS THE
"ENVIRONMENTAL LAWS"), INCLUDING BY WAY OF ILLUSTRATION AND
NOT BY WAY OF LIMITATION (A) THE CLEAN AIR ACT, THE FEDERAL
WATER POLLUTION CONTROL ACT OF 1972, THE RESOURCE CONSERVATION
AND RECOVERY ACT OF 1976, THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, THE TOXIC
SUBSTANCES CONTROL ACT, OR THE MINNESOTA ENVIRONMENTAL
RESPONSE AND LIABILITY ACT, (INCLUDING ANY AMENDMENTS OR
EXTENSIONS THEREOF AND ANY RULES, REGULATIONS, STANDARDS OR
GUIDELINES ISSUED PURSUANT TO ANY OF SAID ENVIRONMENTAL LAWS),
AND (B) ALL OTHER APPLICABLE ENVIRONMENTAL STANDARDS OR
REQUIREMENTS. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, TO THE BEST OF SELLER'S KNOWLEDGE: (I) NEITHER
SELLER, ITS AGENTS, EMPLOYEES AND INDEPENDENT CONTRACTORS NOR
ANY TENANT, HAS OPERATED THE PROPERTY FOR THE PURPOSE OF
RECEIVING, HANDLING, USING, STORING, TREATMENT, TRANSPORTING
OR DISPOSING OF PETROLEUM PRODUCTS OR ANY HAZARDOUS MATERIAL
AS DEFINED IN SAID ENVIRONMENTAL LAWS, OTHER TOXIC, DANGEROUS
OR HAZARDOUS CHEMICALS, MATERIALS, SUBSTANCES, POLLUTANTS AND
WASTES, OR ANY CHEMICAL, MATERIAL OR SUBSTANCE, EXPOSURE TO
WHICH IS PROHIBITED, LIMITED OR REGULATED BY ANY FEDERAL,
STATE, COUNTY, REGIONAL OR LOCAL AUTHORITY (ALL THE FOREGOING
BEING HEREINAFTER COLLECTIVELY REFERRED TO AS "HAZARDOUS
MATERIALS"); (II) THERE ARE NO EXISTING OR PENDING REMEDIAL
ACTIONS OR OTHER WORK, REPAIRS, CONSTRUCTION OR CAPITAL
EXPENDITURES WITH RESPECT TO THE PROPERTY IN CONNECTION WITH
THE ENVIRONMENTAL LAWS, NOR HAS SELLER RECEIVED ANY NOTICE OF
ANY OF THE SAME; (III) NO HAZARDOUS MATERIALS HAVE BEEN OR
WILL BE RELEASED INTO THE ENVIRONMENT, OR HAVE BEEN OR WILL BE
DEPOSITED, SPILLED, DISCHARGED, PLACED OR DISPOSED OF AT, ON,
OR, TO THE BEST OF SELLER'S KNOWLEDGE, ADJACENT TO THE
PROPERTY, NOR HAS THE PROPERTY BEEN USED AT ANY TIME BY ANY
PERSON AS A LANDFILL OR A DISPOSAL SITE FOR HAZARDOUS
MATERIALS OR FOR GARBAGE, WASTE OR REFUSE OF ANY KIND; (IV)
THERE ARE NO ELECTRICAL TRANSFORMERS OR OTHER EQUIPMENT
CONTAINING DIELECTRIC FLUID CONTAINING POLYCHLORINATED
BIPHENYLS LOCATED IN, ON OR UNDER THE PROPERTY, NOR ARE THERE
ANY ASBESTOS CONTAINING MATERIALS CONTAINED IN, ON OR UNDER
THE PROPERTY; (V) THERE ARE NO LOCATIONS OFF THE PROPERTY
WHERE HAZARDOUS MATERIALS GENERATED BY OR ON THE PROPERTY HAVE
BEEN TREATED, STORED, DEPOSITED OR DISPOSED OF; (VI) TO THE
BEST OF SELLER'S KNOWLEDGE, THERE IS NO FACT PERTAINING TO THE
PHYSICAL CONDITION OF EITHER THE PROPERTY OR THE AREA
SURROUNDING THE PROPERTY NOT DISCLOSED IN THE PROPERTY DATA
AND WHICH MATERIALLY ADVERSELY AFFECTS OR WILL MATERIALLY
ADVERSELY AFFECT THE PROPERTY OR THE USE OR ENJOYMENT OR THE
VALUE THEREOF OR SELLER'S ABILITY TO PERFORM THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT; (VII) THE SALE OF THE PROPERTY
BY SELLER TO PURCHASER DOES NOT REQUIRE NOTICE TO OR THE PRIOR
APPROVAL, CONSENT OR PERMISSION OF ANY FEDERAL, STATE OR LOCAL
GOVERNMENTAL AGENCY, BODY, BOARD OR OFFICIAL; (VIII) NO
NOTICES OF ANY VIOLATION OF ANY OF THE MATTERS REFERRED TO IN
THE FOREGOING SECTIONS RELATING TO THE PROPERTY OR ITS USE
HAVE BEEN RECEIVED BY SELLER AND THERE ARE NO WRITS,
INJUNCTIONS, DECREES, ORDERS OR JUDGMENTS OUTSTANDING, NO
LAWSUITS, CLAIMS, PROCEEDINGS OR INVESTIGATIONS PENDING OR
THREATENED, RELATING TO THE OWNERSHIP, USE, MAINTENANCE OR
OPERATION OF THE PROPERTY, NOR IS THERE ANY BASIS FOR ANY SUCH
LAWSUIT, CLAIM, PROCEEDING OR INVESTIGATION BEING INSTITUTED
OR FILED.
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THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8 SHALL BE
CONTINUING AND SHALL BE TRUE AND CORRECT ON AND AS OF THE CLOSING DATE
WITH THE SAME FORCE AND EFFECT AS IF MADE AT THAT TIME AND ALL SUCH
REPRESENTATIONS AND WARRANTIES SHALL SURVIVE CLOSING AND SHALL NOT BE
AFFECTED BY ANY INVESTIGATION, VERIFICATION OR APPROVAL BY ANY PARTY
HERETO OR BY ANYONE ON BEHALF OF ANY PARTY HERETO AND SHALL NOT MERGE
INTO THE WARRANTY DEED BEING DELIVERED BY SELLER AT CLOSING. SELLER
AGREES TO INDEMNIFY AND HOLD PURCHASER HARMLESS FROM AND AGAINST AND TO
REIMBURSE PURCHASER WITH RESPECT TO ANY AND ALL CLAIMS, DEMANDS, CAUSES
OF ACTION, LOSS, DAMAGE, LIABILITIES, AND COSTS (INCLUDING ATTORNEYS'
FEES AND COURT COSTS) ASSERTED AGAINST OR INCURRED BY PURCHASER BY
REASON OF OR ARISING OUT OF THE BREACH OF ANY REPRESENTATION OR
WARRANTY AS SET FORTH IN THIS SECTION 8.
9. CONDITIONS PRECEDENT TO CLOSING. THE CLOSING OF THE TRANSACTION
CONTEMPLATED BY THIS AGREEMENT AND ALL THE OBLIGATIONS OF PURCHASER
UNDER THIS AGREEMENT ARE SUBJECT TO FULFILLMENT, ON OR BEFORE THE
CLOSING DATE AS DEFINED IN THE ASSET PURCHASE AGREEMENT:
A. THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN SECTION 8
SHALL BE CORRECT AS OF THE CLOSING DATE WITH THE SAME FORCE
AND EFFECT AS IF SUCH REPRESENTATIONS AND WARRANTIES WERE MADE
AT SUCH TIME. IT SHALL BE A CONDITION PRECEDENT TO CLOSING
THAT ANY REPRESENTATIONS AND WARRANTIES MADE "TO THE BEST OF
SELLER'S KNOWLEDGE" BY SELLER IN SECTION 8 SHALL BE CONSIDERED
REPRESENTATIONS AND WARRANTIES THAT MUST BE TRUE AS OF THE
DATE OF CLOSING AS DETERMINED BY PURCHASER'S OWN INDEPENDENT
INVESTIGATIONS AND IF SUCH REPRESENTATIONS AND WARRANTIES ARE
NOT TRUE, THEN PURCHASER SHALL NOT BE OBLIGATED TO CLOSE THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT;
B. THE STATUS AND MARKETABILITY OF TITLE SHALL HAVE BEEN
ESTABLISHED TO PURCHASER'S SATISFACTION IN ACCORDANCE WITH
SECTION 3;
C. ALL OF THE CONDITIONS TO THE OBLIGATIONS OF PURCHASER PURSUANT
TO THIS AGREEMENT AND THE PARAGRAPH 5.2 OF THE ASSET PURCHASE
AGREEMENT HAVE BEEN SATISFIED OR WAIVED BY PURCHASER; AND
D. ALL CONDITIONS PRECEDENT TO CLOSING ON THE ASSET PURCHASE
AGREEMENT HAVE BEEN FULFILLED AND A CLOSING HAS OCCURRED
BETWEEN SELLER AND BUYER PURSUANT TO THE ASSET PURCHASE
AGREEMENT OR THE CLOSING OCCURRED SIMULTANEOUSLY WITH THE
CLOSING ON THIS AGREEMENT.
IF PURCHASER IS UNABLE TO ATTAIN ALL DESIRED STRUCTURAL, MECHANICAL OR
ENVIRONMENTAL REPORTS ON OR BEFORE THE CLOSING DATE, THE CLOSING DATE
SHALL BE EXTENDED IN ACCORDANCE WITH THIS SECTION 9. THE CLOSING DATE
SHALL BE EXTENDED TO BE COEXTENSIVE WITH THE TIME PERIOD(S) PROVIDED
FOR THE CLOSING DATE PURSUANT TO THE ASSET PURCHASE AGREEMENT REFERRED
TO ABOVE.
PURCHASER MAY ACKNOWLEDGE SATISFACTION OR WAIVER OF ANY OF THE
FOREGOING CONDITIONS PRECEDENT, ONLY BY DELIVERING WRITTEN NOTICE OF
SATISFACTION OR WAIVER TO SELLER ON OR BEFORE THE CLOSING DATE. IF
PURCHASER DOES NOT ACKNOWLEDGE IN WRITING THE SATISFACTION OF ONE OR
MORE OF THE FOREGOING CONDITIONS PRECEDENT (OR OTHERWISE WAIVE THE SAME
IN WRITING) ON OR BEFORE THE CLOSING DATE AS THE SAME MAY BE EXTENDED,
THEN, EXCEPT AS OTHERWISE PROVIDED IN SECTION 3, THIS AGREEMENT SHALL
AUTOMATICALLY BE DEEMED TO BE TERMINATED, WITHOUT ACTION REQUIRED OF
EITHER PARTY, THE EARNEST MONEY (AND ALL ACCRUED INTEREST) SHALL BE
RETURNED TO PURCHASER, AND PURCHASER AND SELLER SHALL THEREAFTER BE
RELEASED FROM ANY LIABILITY OR OBLIGATION HEREUNDER.
10. INTEGRATION. THE PARTIES ACKNOWLEDGE AND AGREE THAT ALL AGREEMENTS,
DOCUMENTS, OBLIGATIONS AND TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
SHALL BE INTEGRATED. ACCORDINGLY, IF THERE SHALL BE A
<PAGE>
DEFAULT, NONPERFORMANCE OR BREACH OF ANY OF THE SAME, OR ANY OBLIGATION
EXISTS 30 DAYS AFTER NOTICE OF SUCH DEFAULT (FIVE DAYS IF FOR
NONPAYMENT), NON-PERFORMANCE OR BREACH IS GIVEN TO THE PARTY COMMITTING
THE SAME, THE SAME SHALL CONSTITUTE A MATERIAL BREACH OF ALL
OBLIGATIONS AND ALL OF SUCH AGREEMENTS, DOCUMENTS, OBLIGATIONS AND
TRANSACTION, ENTITLING SELLER, PURCHASER OR SELLER OR BUYER AS DEFINED
IN THE ASSET PURCHASE AGREEMENT TO PURSUE ANY OR ALL AVAILABLE LEGAL
REMEDIES AT LAW, IN EQUITY OR BY ANY OF SUCH AGREEMENTS. ALL REMEDIES
SHALL BE CUMULATIVE AND THE FAILURE OR CHOICE BY SELLER, HOLMBERG OR
PURCHASER TO EXERCISE ANY ONE OR MORE REMEDIES SHALL NOT PRECLUDE OR
PREVENT THE LATER EXERCISE OF ANY SUCH REMEDIES FROM TIME TO TIME. THE
PARTY COMMITTING SUCH DEFAULT, NONPERFORMANCE OR BREACH SHALL BE
RESPONSIBLE FOR THE REASONABLE ATTORNEYS' FEES INCURRED BY THE OTHER
PARTY AS A RESULT OF SUCH DEFAULT, NONPERFORMANCE OR BREACH, EVEN IF
SUCH DEFAULT, NONPERFORMANCE OR BREACH IS SUBSEQUENTLY CURED.
11. PRE-CLOSING INSPECTION. IN ADDITION TO ALL OTHER RIGHTS OF INSPECTION
CONTAINED HEREIN, PURCHASER SHALL HAVE THE RIGHT TO INSPECT THE
PROPERTY DURING THE TWO (2) DAYS IMMEDIATELY PRECEDING THE CLOSING DATE
TO VERIFY THAT ALL PERSONAL PROPERTY AND IMPROVEMENTS ARE STILL IN
PLACE, AND ARE IN THE SAME OR BETTER CONDITION AS DURING PURCHASER'S
PREVIOUS INSPECTIONS, REASONABLE WEAR AND TEAR EXCEPTED.
IN THE EVENT ANY PERSONAL PROPERTY OR IMPROVEMENTS ARE NOT IN SUCH
CONDITION, PURCHASER SHALL PROMPTLY NOTIFY SELLER, AND SELLER SHALL, AT
ITS OPTION, EITHER: (I) CAUSE THE PROPERTY TO BE RESTORED TO SUCH
CONDITION AS SOON AS PRACTICABLE; OR (II) ALLOW PURCHASER AN EQUITABLE
ADJUSTMENT TO THE PURCHASE PRICE IN CASH. SELLER SHALL MAKE SUCH
ELECTION ON THE CLOSING DATE.
12. CLOSING, POSSESSION. SUBJECT TO THE FULFILLMENT OR WAIVER OF THE
CONDITIONS PRECEDENT, AND PROVIDED THAT ALL OF THE COVENANTS,
REPRESENTATIONS AND WARRANTIES OF SELLER ARE TRUE AND CORRECT ON THE
CLOSING DATE AS THOUGH MADE ON SUCH DATE, THE CLOSING OF THE PURCHASE
AND SALE SHALL TAKE PLACE ON THE SAME DATE AS PROVIDED FOR IN THE ASSET
PURCHASE AGREEMENT (THE "CLOSING DATE"). THE CLOSING SHALL TAKE PLACE
AT THE OFFICES OF PURCHASER'S COUNSEL AT 1800 FIFTH STREET TOWERS, 150
SOUTH FIFTH STREET, MINNEAPOLIS, MINNESOTA 55402 OR SUCH OTHER PLACE AS
SELLER AND PURCHASER MAY MUTUALLY DETERMINE. POSSESSION SHALL BE
DELIVERED ON THE CLOSING DATE.
13. SELLER'S OBLIGATIONS AT CLOSING. AT OR PRIOR TO THE CLOSING DATE,
SELLER SHALL:
A. DELIVER TO PURCHASER A DULY RECORDABLE GENERAL WARRANTY DEED
TO THE REAL PROPERTY (IN A FORM SATISFACTORY TO PURCHASER AND
THE TITLE COMPANY) CONVEYING TO PURCHASER MARKETABLE FEE
SIMPLE TITLE TO THE REAL PROPERTY AND ALL RIGHTS APPURTENANT
THERETO SUBJECT ONLY TO EXCEPTIONS NOT OBJECTED TO BY
PURCHASER;
B. CAUSE TO BE FURNISHED AND DELIVERED TO PURCHASER AT THE SOLE
COST AND EXPENSE OF SELLER THE UPDATED ABSTRACT OR THE TITLE
POLICY IN CONFORMITY WITH PURCHASER'S TITLE REQUIREMENTS;
C. DELIVER TO PURCHASER A WARRANTY BILL OF SALE (IN A FORM
SATISFACTORY TO PURCHASER) CONVEYING THE PERSONAL PROPERTY TO
SELLER;
D. DELIVER TO PURCHASER AND THE TITLE COMPANY AN AFFIDAVIT
SUFFICIENT TO REMOVE ANY EXCEPTION IN THE TITLE POLICY FOR
MECHANICS' AND MATERIALMEN'S LIENS AND PARTIES IN POSSESSION;
<PAGE>
E. DELIVER TO PURCHASER AN ASSIGNMENT OF ANY SERVICE CONTRACTS
(IN A FORM SATISFACTORY TO PURCHASER) WHICH PURCHASER ELECTS
TO HAVE ASSIGNED TO IT;
F. DELIVER TO PURCHASER AN ASSIGNMENT OF ALL PERMITS, LICENSES,
WARRANTIES AND CONTRACT RIGHTS (IN A FORM SATISFACTORY TO
PURCHASER) RELATING TO THE PROPERTY AND NOT COVERED BY OTHER
DOCUMENTS OF ASSIGNMENT;
G. DELIVER TO PURCHASER A CERTIFICATION (FIRPTA CERTIFICATION)
CONFIRMING THAT SELLER IS NOT A FOREIGN CORPORATION WITHIN THE
MEANING OF SECTION 1445 OF THE INTERNAL REVENUE CODE;
H. DELIVER TO PURCHASER A COPY OF ALL TERMINATION AND TRANSFER
LETTERS DELIVERED BY SELLER TO ALL SERVICE PROVIDERS WHOSE
AGREEMENTS OR CONTRACTS ARE LONGER THAN THIRTY (30) DAYS AND
WHICH ARE BEING TERMINATED WHICH LETTERS SHALL PROVIDE FOR
TERMINATION EFFECTIVE AS OF THE CLOSING DATE;
I. DELIVER TO PURCHASER A SIGNED COPY OF THE FORM OF ALL TRANSFER
LETTERS PROVIDED BY PURCHASER TO BE DELIVERED TO ALL UTILITY
PROVIDERS;
J. DELIVER TO PURCHASER A CERTIFICATE DATED THE CLOSING DATE AND
SIGNED BY THE SELLER REAFFIRMING THE REPRESENTATIONS AND
WARRANTIES SET FORTH IN THIS AGREEMENT FOR THE PURPOSE OF
VERIFYING THE ACCURACY OF SUCH REPRESENTATIONS AND WARRANTIES
AND THE PERFORMANCE AND SATISFACTION OF SUCH COVENANTS AND
CONDITIONS;
K. DELIVER TO PURCHASER AN OPINION OF SELLER'S OUTSIDE COUNSEL,
STATING THAT SELLER HAS THE POWER AND AUTHORITY TO EXECUTE AND
DELIVER THIS AGREEMENT AND ALL OF THE DOCUMENTS REFERRED TO IN
THIS SECTION, THAT THE PERSONS EXECUTING SUCH DOCUMENTS ARE
AUTHORIZED TO DO SO WITHOUT THE CONSENT OF ANY OTHER PARTY,
AND THAT UPON THEIR EXECUTION SUCH DOCUMENTS SHALL BE FULLY
BINDING ON SELLER;
L. DELIVER TO PURCHASER ALL DOCUMENTS AND APPROVALS REQUIRED
PURSUANT TO THE ASSET PURCHASE AGREEMENT;
M. DELIVER TO PURCHASER SUCH OTHER DOCUMENTS AS MAY BE REASONABLY
REQUIRED BY THIS AGREEMENT, ALL IN A FORM SATISFACTORY TO
PURCHASER.
14. DELIVERY OF PURCHASE PRICE; OBLIGATIONS AT CLOSING. AT CLOSING, AND
SUBJECT TO THE TERMS, CONDITIONS, AND PROVISIONS HEREOF AND THE
PERFORMANCE BY SELLER OF ITS OBLIGATIONS AS SET FORTH HEREIN, THE
EARNEST MONEY SHALL BE DELIVERED TO SELLER (EXCEPT ANY INTEREST ACCRUED
THEREON) AND PURCHASER SHALL DELIVER THE BALANCE OF THE PURCHASE PRICE
TO SELLER PURSUANT TO SECTION 2 ABOVE.
15. CLOSING COSTS. THE FOLLOWING COSTS AND EXPENSES SHALL BE PAID AS
FOLLOWS IN CONNECTION WITH THE CLOSING:
A. SELLER SHALL PAY OR REIMBURSE PURCHASER FOR:
I. THE COSTS OF ALL EVIDENCE OF TITLE, INCLUDING THE
COST OF THE SURVEY AND THE TITLE INSURANCE PREMIUM IN
CONNECTION WITH THE ISSUANCE OF THE TITLE POLICY IN
ACCORDANCE WITH THE REQUIREMENTS OF SECTION 3, AND
THE FEES AND COSTS SET FORTH IN SECTION 2, IF ANY;
II. THE STATE DEED TAX OR TRANSFER FEE IMPOSED ON THE
CONVEYANCE;
<PAGE>
III. A PRORATA PORTION OF ALL UTILITIES AND TAXES AS
PROVIDED BELOW;
IV. ALL SPECIAL ASSESSMENTS WHETHER LEVIED, PENDING OR
ASSESSED;
B. PURCHASER SHALL PAY THE FOLLOWING COSTS IN CONNECTION WITH THE
CLOSING:
I. THE DOCUMENTARY FEE NECESSARY TO RECORD THE DEED;
II. THE UNEARNED PORTION OF ANY PREMIUMS PAID ON
INSURANCE POLICIES WHICH PURCHASER ELECTS TO ASSUME;
III. THE UNEARNED PORTIONS OF ANY PAYMENTS PREPAID ON ANY
SERVICE CONTRACTS PURCHASER ELECTS TO ASSUME;
IV. ANY FEES AND EXPENSES ASSOCIATED WITH RECORDING THE
PURCHASE MONEY MORTGAGE AND UCC-2 FINANCING
STATEMENT;
V. THE BROKERAGE FEE OF THE BROKER INVOLVED IN ARRANGING
THE SALE.
16. PRORATIONS. THE FOLLOWING PRORATIONS SHALL BE MADE AS OF THE CLOSING
DATE:
A. REAL ESTATE TAXES SHALL BE PRORATED ON THE DATE OF CLOSING
BASED ON THE YEAR IN WHICH THEY ARE PAYABLE;
B. ALL UTILITIES FURNISHED TO THE PROPERTY;
C. ALL INCOME OF THE PROPERTY.
MOST EXPENSES SHALL BE PRORATED AT CLOSING BASED ON ACTUAL BILLS OR
ESTIMATES. THOSE EXPENSE ITEMS FOR WHICH ACTUAL BILLS WERE NOT
AVAILABLE AT CLOSING WILL BE ADJUSTED WITHIN SIXTY (60) DAYS OF CLOSING
BASED UPON THE ACTUAL BILLS.
EACH PARTY SHALL PAY ITS OWN LEGAL FEES AND OTHER EXPENSES IN
CONJUNCTION WITH CLOSING.
17. EMPLOYEES. SELLER SHALL BE SOLELY RESPONSIBLE FOR PAYMENT OF ANY AND
ALL WAGES, SALARIES, VACATION AND/OR SICK LEAVE COMPENSATION, PENSIONS
OR PROFIT SHARING BENEFITS AND OTHER BENEFITS OR COMPENSATION INURING
TO THE BENEFIT OF ANY AND ALL EMPLOYEES OF SELLER EMPLOYED AT THE
PROPERTY, AND ALL SUCH EMPLOYEES SHALL BE TERMINATED BY SELLER
EFFECTIVE AS OF THE CLOSING DATE.
18. BROKERAGE. SELLER AND PURCHASER REPRESENT AND WARRANT TO EACH OTHER
THAT THEY HAVE NOT ENGAGED THE SERVICES OF ANY BROKER IN CONNECTION
WITH THE SALE AND PURCHASE CONTEMPLATED BY THIS AGREEMENT, EXCEPT THAT
PURCHASER HAS ENGAGED THE SERVICES OF GILBERT KOPOLOW AND ASSOCIATE
INVESTMENTS, WHICH SERVICES PURCHASER AGREES TO PAY AT THE TIME OF
CLOSING. SELLER HEREBY AGREES TO INDEMNIFY AND HOLD PURCHASER HARMLESS
FOR ANY CLAIM (INCLUDING REASONABLE EXPENSES INCURRED IN DEFENDING SUCH
CLAIM) MADE BY A BROKER OR SALES AGENT OR SIMILAR PARTY RETAINED BY
SELLER IN CONNECTION WITH THIS TRANSACTION.
19. REMEDIES. IF SELLER DEFAULTS IN THE PERFORMANCE OF THIS AGREEMENT,
PURCHASER SHALL HAVE THE
<PAGE>
RIGHT TO TERMINATE THIS AGREEMENT UPON WRITTEN NOTICE TO SELLER, IN
WHICH EVENT THE EARNEST MONEY (PLUS ANY ACCRUED INTEREST) SHALL BE
RETURNED TO PURCHASER (NOT MORE THAN FIVE (5) BUSINESS DAYS AFTER
WRITTEN NOTICE TO SELLER) AND SELLER SHALL REIMBURSE PURCHASER FOR THE
COSTS OF THE TITLE COMMITMENT AND SURVEY INCURRED BY PURCHASER. IF
SELLER DEFAULTS IN THE PERFORMANCE OF THIS AGREEMENT AND PURCHASER DOES
NOT TERMINATE THIS AGREEMENT, SELLER ACKNOWLEDGES THAT THE PROPERTY IS
UNIQUE AND THAT MONEY DAMAGES TO PURCHASER IN THE EVENT OF DEFAULT BY
SELLER ARE INADEQUATE. ACCORDINGLY, IN SUCH EVENT THE EARNEST MONEY
SHALL BE IMMEDIATELY RETURNED TO PURCHASER AND PURCHASER SHALL HAVE THE
RIGHT TO SEEK ANY OTHER RELIEF AVAILABLE AT LAW, AND IN ADDITION TO ANY
OTHER REMEDY AVAILABLE AT LAW, TO APPLY FOR AND TO RECEIVE FROM A COURT
OF COMPETENT JURISDICTION EQUITABLE RELIEF BY WAY OF RESTRAINING ORDER,
INJUNCTION OR OTHERWISE, PROHIBITORY OR MANDATORY, TO PREVENT A BREACH
OF THE TERMS OF THIS AGREEMENT, OR BY WAY OF SPECIFIC PERFORMANCE TO
ENFORCE PERFORMANCE OF THE TERMS OF THIS AGREEMENT OR RESCISSION, PLUS
REIMBURSEMENT FOR COSTS, INCLUDING REASONABLE ATTORNEYS' FEES, INCURRED
IN THE SECURING OF SUCH RELIEF. THIS RIGHT TO EQUITABLE RELIEF SHALL
NOT BE CONSTRUED TO BE IN LIEU OF OR TO PRECLUDE PURCHASER'S RIGHT TO
SEEK A REMEDY AT LAW. IF PURCHASER DEFAULTS IN THE PERFORMANCE OF THIS
AGREEMENT, SELLER'S SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE
THIS AGREEMENT BY WRITTEN NOTICE TO PURCHASER, IN WHICH EVENT ESCROW
AGENT SHALL DELIVER FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) OF
THE EARNEST MONEY TO SELLER AS LIQUIDATED DAMAGES WITH THE REMAINDER OF
THE EARNEST MONEY, TOGETHER WITH ALL ACCRUED INTEREST TO BE RETURNED TO
PURCHASER.
20. ACCEPTANCE. THIS AGREEMENT SHALL NOT BE EFFECTIVE UNLESS THE ASSET
PURCHASE AGREEMENT HAS ALSO BEEN EXECUTED BY ALL PARTIES THERETO.
21. MUTUAL INDEMNIFICATION. SELLER AND PURCHASER AGREE TO INDEMNIFY EACH
OTHER AGAINST, AND HOLD EACH OTHER HARMLESS FROM, ALL LIABILITIES
(INCLUDING REASONABLE ATTORNEYS' FEES IN DEFENDING AGAINST CLAIMS)
ARISING OUT OF THE OWNERSHIP, OPERATION OR MAINTENANCE OF THE PROPERTY
FOR THEIR RESPECTIVE PERIOD OF OWNERSHIP. SUCH RIGHTS TO
INDEMNIFICATION WILL NOT ARISE TO THE EXTENT THAT (A) THE PARTY SEEKING
INDEMNIFICATION ACTUALLY RECEIVES INSURANCE PROCEEDS OR OTHER CASH
PAYMENTS DIRECTLY ATTRIBUTABLE TO THE LIABILITY IN QUESTION (NET OF THE
COST OF COLLECTION, INCLUDING REASONABLE ATTORNEYS' FEES); OR (B) THE
CLAIM FOR INDEMNIFICATION ARISES OUT OF THE ACT OR NEGLECT OF THE PARTY
SEEKING INDEMNIFICATION. IF AND TO THE EXTENT THAT THE INDEMNIFIED
PARTY HAS INSURANCE COVERAGE, OR THE RIGHT TO MAKE A CLAIM AGAINST ANY
THIRD PARTY FOR ANY AMOUNT TO BE INDEMNIFIED AGAINST AS SET FORTH
ABOVE, THE INDEMNIFIED PARTY WILL, UPON FULL PERFORMANCE BY THE
INDEMNIFYING PARTY OF ITS INDEMNIFICATION OBLIGATIONS, ASSIGN SUCH
RIGHTS TO THE INDEMNIFYING PARTY OR, IF SUCH RIGHTS ARE NOT ASSIGNABLE,
THE INDEMNIFIED PARTY WILL DILIGENTLY PURSUE SUCH RIGHTS BY APPROPRIATE
LEGAL ACTION OR PROCEEDING AND ASSIGN THE RECOVERY AND/OR RIGHT OF
RECOVERY TO THE INDEMNIFYING PARTY TO THE EXTENT OF THE INDEMNIFICATION
PAYMENT MADE BY SUCH PARTY.
22. MISCELLANEOUS. THE FOLLOWING GENERAL PROVISIONS GOVERN THIS AGREEMENT.
A. NO WAIVERS. THE WAIVER BY EITHER PARTY HERETO OF ANY CONDITION
OR THE BREACH OF ANY TERM, COVENANT OR CONDITION HEREIN
CONTAINED SHALL NOT BE DEEMED TO BE A WAIVER OF ANY OTHER
CONDITION OR OF ANY SUBSEQUENT BREACH OF THE SAME OR OF ANY
OTHER TERM, COVENANT OR CONDITION HEREIN CONTAINED. PURCHASER,
IN ITS SOLE DISCRETION MAY WAIVE ANY RIGHT CONFERRED UPON
PURCHASER BY THIS AGREEMENT; PROVIDED THAT SUCH WAIVER SHALL
ONLY BE MADE BY PURCHASER GIVING SELLER WRITTEN NOTICE
SPECIFICALLY DESCRIBING THE RIGHT WAIVED.
B. TIME OF ESSENCE. TIME IS OF THE ESSENCE OF THIS AGREEMENT.
C. SURVIVAL. ALL REPRESENTATION, WARRANTIES AND AGREEMENT OF THE
PARTIES SET FORTH HEREIN
<PAGE>
SHALL SURVIVE THE CLOSING.
D. GOVERNING LAW. THIS AGREEMENT IS MADE AND EXECUTED UNDER AND
IN ALL RESPECTS TO BE GOVERNED AND CONSTRUED BY THE LAWS OF
THE STATE OF MINNESOTA AND THE PARTIES HERETO HEREBY AGREE AND
CONSENT AND SUBMIT THEMSELVES TO ANY COURT OF COMPETENT
JURISDICTION SITUATED IN THE STATE OF MINNESOTA.
E. NOTICES. ALL NOTICES AND DEMANDS GIVEN OR REQUIRED TO BE GIVEN
BY ANY PARTY HERETO TO ANY OTHER PARTY SHALL BE DEEMED TO HAVE
BEEN PROPERLY GIVEN IF AND WHEN DELIVERED IN PERSON, SENT BY
TELEGRAM (WITH VERIFICATION OF RECEIPT), SENT BY FACSIMILE
(WITH VERIFICATION OF RECEIPT) OR THREE (3) BUSINESS DAYS
AFTER HAVING BEEN DEPOSITED IN ANY U.S. POSTAL SERVICE AND
SENT BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
ADDRESSED AS FOLLOWS (OR SENT TO SUCH OTHER ADDRESS AS ANY
PARTY SHALL SPECIFY TO THE OTHER PARTY PURSUANT TO THE
PROVISIONS OF THIS SECTION):
IF TO SELLER: LARRY A. HOLMBERG
AMUSEMENT CENTER, INC.
300 SOUTH THIRD STREET
MINNEAPOLIS, MINNESOTA 55415
FACSIMILE:
COPY TO: SAUL BERNICK, ESQ.
BERNICK & LIFSON, P.A.
5500 WAYZATA BOULEVARD, SUITE 1200
MINNEAPOLIS, MINNESOTA 55416
FACSIMILE: (612) 546-1003
IF TO PURCHASER: MR. ROBERT L. WATTERS
RICK'S CABARET INTERNATIONAL, INC.
3113 BERING DRIVE
HOUSTON, TEXAS 77057
FACSIMILE: (713) 785-2593
COPY TO: JOHN W. LANG, ESQ.
MESSERLI & KRAMER P.A.
1800 FIFTH STREET TOWERS
150 SOUTH FIFTH STREET
MINNEAPOLIS, MINNESOTA 55402-4218
FACSIMILE: (612) 672-3777
COPY TO: ROBERT D. AXELROD, ESQ.
AXELROD, SMITH & KIRSHBAUM
5300 MEMORIAL DRIVE
SUITE 700
HOUSTON, TEXAS 77007-8292
FACSIMILE: (713) 552-0202
IN THE EVENT EITHER PARTY DELIVERS A NOTICE BY FACSIMILE, AS
SET FORTH ABOVE, SUCH PARTY AGREES TO DEPOSIT THE ORIGINALS OF
THE NOTICE IN A POST OFFICE, BRANCH POST OFFICE, OR MAIL
DEPOSITORY MAINTAINED BY THE U.S. POSTAL SERVICE, POSTAGE
PREPAID AND ADDRESSED AS SET FORTH ABOVE. SUCH DEPOSIT IN THE
U.S. MAIL SHALL NOT AFFECT THE DEEMED DELIVERY OF THE NOTICE
BY FACSIMILE, PROVIDED THAT THE PROCEDURES SET FORTH ABOVE ARE
FULLY COMPLIED WITH. ANY PARTY, BY NOTICE GIVEN AS AFORESAID,
MAY CHANGE THE ADDRESS TO WHICH SUBSEQUENT NOTICES ARE TO BE
SENT TO SUCH PARTY;
<PAGE>
F. SUCCESSORS AND ASSIGNS. THIS AGREEMENT SHALL BE BINDING UPON
AND INURE TO THE BENEFIT OF THE SUCCESSORS AND ASSIGNS OF EACH
OF THE PARTIES HERETO;
G. INVALIDITY. IF FOR ANY REASON ANY TERM OR PROVISION OF THIS
AGREEMENT SHALL BE DECLARED VOID AND UNENFORCEABLE BY ANY
COURT OF LAW OR EQUITY IT SHALL ONLY AFFECT SUCH PARTICULAR
TERM OR PROVISION OF THIS AGREEMENT AND THE BALANCE OF THIS
AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL BE
BINDING UPON THE PARTIES HERETO;
H. COMPLETE AGREEMENT. ALL UNDERSTANDINGS AND AGREEMENTS
HERETOFORE HAD BETWEEN THE PARTIES ARE MERGED INTO THIS
AGREEMENT WHICH ALONE FULLY AND COMPLETELY EXPRESSES THEIR
AGREEMENT. THIS AGREEMENT MAY BE CHANGED ONLY IN WRITING
SIGNED BY BOTH OF THE PARTIES HERETO AND SHALL APPLY TO AND
BIND THE SUCCESSORS AND ASSIGNS OF EACH OF THE PARTIES HERETO
AND SHALL NOT MERGE WITH THE DEED DELIVERED TO PURCHASER AT
CLOSING;
I. ATTORNEYS' FEES AND COSTS. IN THE EVENT OF ANY LITIGATION
ARISING OUT OF BREACH OR CLAIMED BREACH OF THIS AGREEMENT, THE
PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER
ALL COSTS AND EXPENSES INCURRED IN CONNECTION THEREWITH,
INCLUDING ATTORNEYS' FEES AND COSTS.
J. COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS, WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND
THE SAME INSTRUMENT AND EACH OF WHICH SHALL BE CONSIDERED AN
ORIGINAL FOR ALL PURPOSES.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED THIS AGREEMENT AS
OF THE DATE AND YEAR FIRST ABOVE WRITTEN.
SELLER
/s/LARRY HOLMBERG
------------------------------------
LARRY HOLMBERG
PURCHASER
RICK'S CABARET INTERNATIONAL, INC.
BY:/s/ ROBERT L. WATTERS
---------------------------------
ITS: PRESIDENT
<PAGE>
EXHIBIT A
Legal Description
That part of Lots 1 and 2, Block 49, Town of Minneapolis described as
follows: Commencing at the most Westerly corner of said Block and
running thence Southeasterly along the Northeasterly line of Third
Street South in said City of Minneapolis, a distance of 118.31 feet to
the Northwesterly line of the alley comprising the Southeasterly 14
feet front and rear of Lot 2; thence at right angles Northeasterly
parallel to the Southeasterly line of Third Avenue South and along the
Northwesterly line of said alley a distance of 67 feet; thence at right
angles on a line parallel to and 67 feet from the Northeasterly line of
Third Street South, a distance of 118.31 feet to the Southeasterly line
of Third Avenue South; thence at right angles Southwesterly along the
Southeasterly line of Third Avenue South 67 feet to the point of
commencement, the four corners of which said tract of land have been
established and marked by Judicial Landmarks, according to the plat
thereof on file or of record in the office of the Register of Deeds in
and for said County.
Subject to a confirmatory of that certain party wall agreement made and
entered into on the first of September, 1881, by and between Stephen A.
Bemis and Judson M. Bemis on the one part and Leonard Paulle on the
other part and recorded in the office of the Register of Deeds in and
for Hennepin County, Minnesota on the 22nd day of December, 1881 in
Book 12 of Miscellaneous at page 220.