EXHIBIT 10.1
REAL ESTATE CONTRACT
REAL ESTATE CONTRACT
THIS REAL ESTATE CONTRACT (this "Contract") is made and entered into as of
this 24th day of January, 2000 (the "Effective Date"), by and between L & F Land
Company, a Kansas general partnership (the "Seller"), and Xxxxxx X. Xxxxx, not
individually but solely as nominee for the benefit of Church of the Resurrection
-United Methodist, a Kansas not-for-profit corporation (the "Buyer").
In consideration of the covenants contained herein, the parties hereto agree
as follows:
1. Sale of Property. Upon and subject to the terms and conditions hereinafter
set forth, Seller hereby agrees to sell to Buyer, and Buyer hereby agrees to
purchase from Seller, the approximately 44.904 acres of real property in Xxxxxxx
County, Kansas, shown outlined in red on Exhibit A attached hereto and
incorporated herein by reference, together with improvements thereon, if any,
and all rights, interests and easements appurtenant thereto (said real property
and all of the foregoing being hereinafter referred to as the "Premises");
subject, however, to the Permitted Exceptions (hereinafter defined). The exact
legal description of the Premises shall be as determined by the Survey
(hereinafter defined).
2. Purchase Price. The purchase price (the "Purchase Price") for the Premises
shall be TWO HUNDRED FIFTY THOUSAND AND NO/100 dollars ($250,000.00) per acre,
payable by cashier's check on delivery of deed as herein provided. The total
acreage contained within the Premises shall be determined by the Survey.
3. Title Insurance.
0.0.Xx soon as practicable after the Effective Date, Buyer shall, at
Buyer's sole expense, obtain a commitment for title insurance (the "Title
Commitment") covering the Premises, whereby a title company licensed to do
business in Kansas and selected by Buyer (the "Title Company") shall commit
to issue an owner's policy of title insurance (the "Owner's Title Policy") in
favor of Buyer in the full amount of the Purchase Price, subject only to the
exceptions shown therein.
3.2.Not later than March 1, 2000, Buyer shall notify Seller of any and all
exceptions to title shown in the Title Commitment to which Buyer, in its sole
discretion, objects. In the event that Seller does not cause all such
exceptions objected to by Buyer to be removed from the Title Commitment or
provide evidence satisfactory to Buyer and the Title Company that all such
exceptions will be removed from the Title Commitment on or before the
expiration of the Inspection Period (hereinafter defined), in order that the
Title Company may as of the Closing Date issue the Owner's Title Policy
subject only to the Farm Lease (hereinafter defined) and those exceptions
appearing in the Title Commitment and not objected to by Buyer (the
"Permitted Exceptions"), then Buyer shall, at Buyer's sole discretion, by
giving notice thereof to Seller, either (i) terminate this Contract, in which
event the Xxxxxxx Money (hereinafter defined), including all interest earned
thereon, shall be promptly returned to Buyer (less payment therefrom to
Seller in an amount equal to the fees and expenses of Seller's legal counsel
in connection with this transaction), and the parties
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hereto shall be released from all further obligations under this Contract
except those herein expressly provided to survive the termination of this
Contract, or (ii) waive its objections and proceed to close this transaction,
without reduction of the Purchase Price. Buyer expressly acknowledges and
agrees that Seller shall have no obligation to cure any title objections, or
to bring any action or proceeding, or otherwise to incur any expense in
connection therewith other than to cause any existing mortgage on the
Premises to be released and discharged on or before the Closing Date. If
Seller fails to cure any title objections made by Buyer on or before the
expiration of the Inspection Period, Buyer's sole and exclusive remedy shall
be to terminate this Contract and receive a refund of the Xxxxxxx Money,
including all interest earned thereon (less payment therefrom to Seller in an
amount equal to the fees and expenses of Seller's legal counsel in connection
with this transaction).
3.3. Seller agrees to execute and deliver to the Title Company, on or
before the Closing Date, one or more affidavits on the Title Company's
standard forms (with such changes in the forms as shall be satisfactory to
Seller, in its reasonable discretion) as shall be reasonably necessary to
cause the Title Company to delete from the Owner's Title Policy the standard
printed exceptions relating to (i) rights or claims of parties in possession
not shown by the public records, and (ii) any lien, or right to a lien, for
services, labor or material heretofore or hereafter furnished, imposed by law
and not shown by the public records ("Seller's Title Affidavits").
4. Survey. Buyer, at Buyer's sole cost and expense, shall cause to be
obtained during the Inspection Period a field staked land survey of the Premises
(the "Survey") showing, among other things, the courses and distances of the
perimeter boundaries of the Premises, the relationship of courses and distances
from the point of beginning of the Premises to the monument to which it is
fixed, and the total acreage contained within the Premises. The Survey must be
in form and content reasonably acceptable to Seller for purposes of determining
total acreage contained within the Premises and the exact boundaries and legal
description thereof. The Survey shall be prepared by a surveyor selected by
Buyer, and shall be accompanied by a current surveyor's certificate addressed to
and in form reasonably acceptable to Seller, Buyer, and the Title Company.
5. Buyer's Due Diligence.
5.1. This Contract is conditioned upon Buyer conducting, at Buyer's sole
cost and expense, its due diligence investigation and satisfying itself as to
all matters relating to the Premises on or before April 15, 2000 (the
"Inspection Period"). Without limiting the generality of the foregoing,
Buyer's due diligence investigation may include review of any existing
signage leases or licenses respecting the Premises, review of an appraisal of
the Premises prepared for Buyer, review of soil, environmental or other
engineering studies of the Premises, review of the Survey and all
improvements, review of all federal, state and local laws, statutes,
regulations, orders, rules and ordinances affecting the ownership,
development and operation of the Premises, and performance of such other
tests and investigations as Buyer deems necessary or appropriate to determine
whether the Premises are acceptable and satisfactory to Buyer. Buyer shall be
permitted to have the unobstructed right, subject to the Farm Lease, to enter
upon the Premises at reasonable times with Buyer's designated agents,
engineers, and other representatives to inspect and conduct physical,
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geological, seismic and other tests and inspections (including, without
limitation, the Conduct of the Survey), and to make any other reasonable
examinations of the Premises Buyer deems proper. Seller agrees to cooperate
with any and all reasonable requests of Buyer in Buyer's inspection and study
of the Premises. Buyer acknowledges receipt of a copy of a survey previously
completed for Seller by Xxxxxxxx & Xxxxxxx, P.A. as Project No. 98424 dated
March 26, 1999.
5.2. Buyer shall indemnify, defend and hold harmless Seller and its
partners from and against all liability, loss, damage, cost and expense
(including court costs and reasonable attorneys' fees) arising out of or
relating in any way to entry and activity on the Premises by Buyer and its
employees, agents and contractors, such obligation of Buyer to survive the
closing and delivery of the Warranty Deed or any termination of this
Contract, as the case may be. If this transaction does not close for any
reason, Buyer shall at its sole cost properly restore the Premises to the
condition the same were in prior to Buyer's due diligence activities,
including filling and compaction of all excavations and resodding or
reseeding, and compensate Seller for the fair value of any growing crops
damaged or destroyed by Buyer's activities, such obligations of Buyer to
survive any termination of this Contract.
5.3. If, prior to expiration of the Inspection Period, Buyer determines in
its sole and unreviewable discretion that the results of its due diligence
investigation are not totally acceptable to Buyer, then Buyer shall have the
right and option to terminate this Contract by giving written notice of
termination to Seller on or before 5:00 P.M. of the last day of the
Inspection Period, in which event the parties shall be released from all
obligations hereunder except those herein expressly provided to survive the
termination of this Contract. If Buyer does not so terminate this Contract by
said date and time, Buyer shall have no further right to terminate under this
Paragraph 5, time being of the essence hereunder.
6. Financing Contingency. This Contract and all obligations of Buyer
hereunder are further conditioned upon Buyer having satisfied itself within the
Inspection Period, in Buyer's sole and unreviewable discretion, that Buyer has
secured or will secure sufficient funding through loans, commitments or other
sources satisfactory to Buyer to fully fund the Purchase Price. If, prior to
expiration of the Inspection Period, Buyer determines in its sole and
unreviewable discretion, that funding satisfactory to Buyer is not available,
then Buyer shall have the right and option to terminate this Contract by giving
written notice of termination to Seller on or before 5:00 P.M. of the last day
of the Inspection Period, in which event the parties shall be released from all
obligations hereunder except those herein expressly provided to survive the
termination of this Contract. If Buyer does not so terminate this Contract by
said date and time, Buyer shall have no further right to terminate under this
Paragraph 6, time being of the essence hereunder.
7. Xxxxxxx Money. On the Effective Date, Buyer shall deposit with the Title
Company an xxxxxxx money deposit in the amount of FIVE THOUSAND AND No/100
DOLLARS ($5,000.00) (the "Xxxxxxx Money"), to be held in an escrow account at
the Title Company pursuant to the terms and provisions of this Contract. All
interest earned on the Xxxxxxx Money, if any, shall be deemed part of the
Xxxxxxx Money and title to such interest shall follow title to the Xxxxxxx
Money. If this transaction closes, the Xxxxxxx Money deposit
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and all interest earned thereon shall be delivered to Seller, and Buyer shall
receive a credit in the full amount thereof towards the cash due at closing. If
Buyer terminates this Contract pursuant to a right to do so granted herein, the
Xxxxxxx Money deposit together with all interest earned thereon, less payment
therefrom to Seller in an amount equal to the fees and expenses of Seller's
legal counsel in connection with this transaction, shall be returned to Buyer
promptly and the parties hereto shall be released from any further obligations
under this Contract except those herein expressly provided to survive the
termination of this Contract.
8. Closing.
8.1.The closing (the "Closing") of this transaction will take place at the
offices of the Title Company on April 20, 2000 (the "Closing Date") or such
earlier date as may be agreed to by the parties, unless this Contract is
terminated by Buyer as provided herein.
0.0.Xx the Closing, Seller shall deliver to the Title Company for Buyer
(i) a Special Warranty Deed (the "Warranty Deed") conveying the Premises to
Buyer, subject only to the Permitted Exceptions, (ii) an Affidavit of
Non-Foreign Status of Seller, (iii) Seller's Title Affidavits, (iv) a closing
statement for this transaction which is consistent with the provisions of
this Contract (the "Closing Statement"), (v) executed counterparts of the
Street Termination Documents (hereinafter defined), and (vi) such other
documents as may be reasonably required to perform Seller's obligations as
set forth herein.
0.0.Xx the Closing, Buyer shall deliver to the Title Company for Seller
(i) the balance of the Purchase Price in immediately available funds, which
shall be held in escrow by the Title Company, (ii) executed counterparts of
the Street Termination Documents, and (iii) such other documents as may be
reasonably required to perform Buyer's obligations as set forth herein.
8.4.Buyer agrees that it will pay (i) the fees and expenses of Seller's
legal counsel in connection with this transaction, (ii) the escrow fees
incurred in connection with the Closing of this transaction, (iii) the costs
of its due diligence investigation (including, without limitation, the cost
of any appraisal and Phase I environmental assessment), (iv) the fees and
expenses of Buyer's legal counsel, (v) the cost of the Survey, and (vi) all
other costs of Buyer's performance hereunder.
8.5.If the Title Company is prepared to issue the Owner's Title Policy in
the amount of the Purchase Price insuring merchantable fee simple title in
Buyer subject only to the Permitted Exceptions, the Title Company shall
record the Warranty Deed, deliver the Purchase Price to Seller, issue and
deliver the Owner's Title Policy to Buyer and deliver any other closing
documents to the appropriate parties. Thereafter, when the recorded documents
are received from the Office of the Register of Deeds in and for Xxxxxxx
County, Kansas, the Warranty Deed shall be delivered to Buyer.
9.Covenants Pending Closing. Seller agrees that from the Effective Date
hereof until Closing Date, (i) Seller shall not make application for any
building permits, use
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permits or zoning variances to any governmental authority with respect to the
Premises without Buyer's prior written consent; (ii) Seller shall not incur any
new obligation or enter into or alter, amend, or modify any contract or
commitment relating to the Premises without Buyer's prior written consent; and
(iii) Seller shall not enter into any leases or tenancies of the Premises,
except that Seller may, at its option, renew the existing farm lease of the
Premises described in Exhibit B attached hereto (the "Farm Lease") for a term
ending not later than December 31, 2000.
10. 000xx Xxxxxx Improvements and Escrow. Attached hereto as Exhibit C are
copies of the following (collectively, the "Street Agreement"): (i) 000xx Xxxxxx
Escrow and Construction Agreement dated as of August 5, 1998, among Seller,
Buyer and Xxxxxxx Title of Kansas City, Inc. ("Escrow Agent"), and (ii) Section
12 of the Real Estate Contract dated as of April 23, 1998, between Seller and
Buyer, relating to the approximately 43.252 acres of land to the south of the
Premises, previously purchased by Buyer from Seller. Seller and Buyer
acknowledge that pursuant to the Street Agreement, each of them is obligated to
pay one-half the cost of construction of 000xx Xxxxxx adjacent to the Premises
("137th Street"); Seller and Buyer have each deposited with Escrow Agent the sum
of $150,300.00 toward its said obligation (the "Street Escrow Deposits"); and
Buyer is obligated to cause 000xx Xxxxxx to be constructed. The parties hereby
agree that upon the Closing of this transaction, they shall execute and deliver
(a) an agreement in form reasonably satisfactory to Buyer and Seller terminating
the Street Agreement and releasing each party from all obligations and liability
thereunder, whether accrued prior to the Closing Date or to accrue thereafter
under the Street Agreement, and (b) joint instructions to Escrow Agent to
deliver to each party free of escrow its respective Street Escrow Deposit
together with all interest earned thereon (the agreement in clause (a) and the
joint instructions in clause (b) being herein collectively called the "Street
Termination Documents"). Notwithstanding any provision of the Street Agreement
to the contrary, Buyer agrees that it shall be solely responsible, without
contribution from Seller, for the payment of all fees and expenses of Xxxxxx,
Xxxxx & Xxxxxx, Inc. relating to the proposed construction of 137th Street,
including, without limitation, preparation of plans for 000xx Xxxxxx and all
revisions thereto.
11. Taxes and Assessments. All general state, county, school and municipal
taxes and installments of special assessments against the Premises
(collectively, "Taxes") which are due on or prior to the Closing Date shall be
paid to the collecting authorities by Seller, and Taxes becoming due after the
Closing Date shall be assumed by and paid to the collecting authorities by
Buyer; provided, however, that Taxes for the calendar year in which Closing
occurs shall be prorated between Seller and Buyer as of the Closing Date, with
Seller bearing that proportion thereof determined by multiplying such Taxes by a
fraction the numerator of which is the number of days in such calendar year to
and including the Closing Date and the denominator of which is 365. If the
amount of Taxes for the calendar year of Closing cannot be ascertained as of the
Closing Date, proration shall be computed on the basis of the Taxes for the
preceding year, and such proration shall be final.
12. Real Estate Commissions. Each party represents and warrants to the other
that it has not engaged the services of any broker, agent or finder or incurred
any fees or commissions in connection with this transaction, and each party will
indemnify the other from and against all claims, liability and expenses
(including reasonable attorneys' fees)
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arising from a breach of this representation. The obligations of the parties
under this Paragraph 12 shall survive the Closing or the termination of this
Contract.
13. Notices.
13.1. All notices and other communications hereunder shall be in writing
and shall be given by United States registered or certified mail, postage
prepaid, return receipt requested, addressed as follows:
If to Seller: L & F Land Company
c/o Xxxxxx X. Xxxxx
0000 X. 00xx Xxxxxx
Xxxxxxx Xxxxx, XX 00000
If to Buyer:
The United Methodist Church of the Resurrection
Attn. Xxxxxxxx Xxxx X. Xxxxxxxx, Senior Pastor
00000 Xxx
Xxxxxxx, XX 00000
13.2. For the purpose of giving notice in connection with the exercise of
any of Buyer's rights of termination as provided in Paragraph 5 and Paragraph
6 hereof, the date notice is given shall be deemed to be the date of deposit
in the United States mail, provided such notice is given to Seller
simultaneously by facsimile transmission to each of Seller at (000) 000-0000
and Xxxxxx Xxxxxxx at Xxxxx, Xxxx & Xxxxxxxx, X.X. at (000) 000-0000. For any
other purpose hereunder, the date notice is given shall be deemed to be three
(3) days after the date of deposit in the United States mail. Any notice
hereunder which is given in writing but not delivered in accordance with the
foregoing shall be deemed given on the date of receipt thereof by the party
to which such notice is directed.
14. Condemnation. If before the Closing Date, the Premises or any part thereof
are taken or proceedings are commenced for any such taking by condemnation or
other eminent domain proceedings, Seller will immediately give notice thereof to
Buyer upon Seller's receipt of such notice. If five (5) acres or more of the
Premises, in the aggregate, are or will be so taken by any such proceedings,
other than for widening the right-of-way of Xxxx Avenue or 135th Street, Buyer
shall have the option to terminate this Contract by written notice to Seller
within twenty (20) days after the date of the Seller's notice to Buyer of such
event. If so terminated, the Xxxxxxx Money, including interest earned thereon
(less payment therefrom to Seller in an amount equal to the fees and expenses of
Seller's legal counsel in connection with this transaction), shall be promptly
returned to Buyer and thereupon the parties shall be released from all
obligations to each other under this Contract except those herein expressly
provided to survive the termination of this Contract. Buyer expressly
acknowledges and agrees that no taking or commencement of proceedings to take
any part of the Premises for widening of Nail Avenue and/or 000xx Xxxxxx shall
entitle Buyer to terminate this Contract. If Buyer shall not be entitled to
terminate or shall be entitled to terminate but elects not to terminate this
Contract, Buyer shall purchase the Premises as provided herein without reduction
of the Purchase Price, and Seller shall assign to Buyer at
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Closing all of Seller's rights to any condemnation or eminent domain proceeds
payable as a result of such condemnation or eminent domain proceeding.
15. Assignment. Buyer may transfer and assign this Contract and all (but not
less than all) of Buyer's rights, obligations and interests hereunder at its
discretion and without the prior approval of Seller to (i) The United Methodist
Church, or (ii) a to-be-formed entity that is wholly owned and controlled by
Church of the Resurrection-United Methodist (the "Permitted Assignees"),
provided, however, that as a condition precedent to such transfer and
assignment, the assignee shall assume all duties and obligations of Buyer
hereunder. Buyer shall not be released from its duties or obligations under this
Contract by virtue of such transfer or assignment of this Contract. Buyer shall
not otherwise transfer or assign its rights or obligations under this Contract
without the prior written consent of Seller as hereinafter provided in this
Section 15, and no such transfer or assignment in violation of the foregoing
shall be valid or enforceable. Seller agrees that it shall consent to an
assignment by Buyer to a person or entity other than one of the Permitted
Assignees provided the assignment and assumption is being made effective at the
Closing upon all of the following having occurred: (a) all contingencies
applicable to Buyer's obligation to close have been satisfied or waived; (b) the
full amount of the Purchase Price has been deposited into escrow with the Title
Company; (c) all of the Buyer's closing obligations have been satisfied; and (d)
the Buyer has irrevocably authorized and directed the Title Company to proceed
to close the escrow and administer the closing of this transaction subject only
to Seller making the deliveries required of it pursuant to Section 8.2 hereof
and consenting to the assignment, if applicable.
16. As-Is Sale. Buyer acknowledges and agrees that EXCEPT AS EXPRESSLY PROVIDED
OTHERWISE IN THIS CONTRACT, the sale of the Premises as provided for herein is
made on an "AS IS," "WHERE IS" condition and basis, "WITH ALL FAULTS." BUYER
ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS
CONTRACT OR IN OTHER DOCUMENTS EXECUTED AND DELIVERED BY SELLER TO OR FOR THE
BENEFIT OF BUYER IN CONNECTION WITH THIS TRANSACTION ("SELLER'S ANCILLARY
DOCUMENTS"), SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, ORAL OR
WRITTEN, AND PAST, PRESENT OR FUTURE, WITH RESPECT TO (I) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PREMISES, INCLUDING THE WATER, SOIL AND GEOLOGY; (2)
COMPLIANCE OF THE PREMISES WITH ANY LAWS ORDINANCES, REGULATIONS OR REQUIREMENTS
OF APPLICABLE GOVERNMENTAL AUTHORITIES (COLLECTIVELY, "LAWS"), INCLUDING WITHOUT
LIMITATION ANY ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS; (3)
HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PREMISES; OR (4) ANY OTHER MATTER CONCERNING THE
PREMISES. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY
PROVIDED OTHERWISE IN THIS CONTRACT OR IN SELLER'S ANCILLARY DOCUMENTS, HAVING
BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PREMISES, BUYER IS AND WILL BE RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PREMISES. BUYER
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FURTHER ACKNOWLEDGES AND AGREES THAT WITH RESPECT TO ANY INFORMATION OR
DOCUMENTS PROVIDED OR TO BE PROVIDED BY SELLER THAT WERE OBTAINED FROM THIRD
PARTY SOURCES, SELLER HAS MADE NO INDEPENDENT INVESTIGATION OR VERIFICATION OF
SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY, TRUTHFULNESS
OR COMPLETENESS OF ANY SUCH INFORMATION. IT IS UNDERSTOOD AND AGREED THAT THE
PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF THE
PREMISES ARE SOLD BY SELLER AND PURCHASED BY BUYER SUBJECT TO THE FOREGOING.
17. Default.
17.1. Seller shall be in default hereunder if Seller shall fail to meet,
comply with or perform any material covenant, agreement, or obligation on its
part required, within the time limits and in the manner required in this
Contract, for any reason other than a default by Buyer hereunder, and such
failure shall continue for ten (10) days after written notice thereof from
Buyer to Seller. If Seller defaults hereunder, Buyer, at Buyer's option, may
(i) terminate this Contract by written notice delivered to Seller at or prior
to the Closing, and thereupon the Xxxxxxx Money, including the interest
earned thereon (less payment therefrom to Seller in an amount equal to the
fees and expenses of Seller's legal counsel in connection with this
transaction), shall immediately be returned to Buyer; (ii) enforce specific
performance of this Contract against Seller; or (iii) in addition to and not
to the exclusion of the remedies in clauses (i) and (ii) immediately above,
bring an action against Seller for Buyer's actual damages, provided, however,
that in no event shall Seller be liable or responsible for punitive or
exemplary damages or for any consequential damages, except in the event of
fraud.
17.2. Buyer shall be in default hereunder if Buyer shall fail to meet,
comply with or perform any material covenant, agreement, or obligation on its
part required, within the time limits and in the manner required by this
Contract, for any reason other than a default by Seller hereunder and such
failure shall continue for ten (10) days after written notice thereof from
Seller to Buyer. If Buyer defaults hereunder, Seller, at Seller's option, may
(i) terminate this Contract by written notice to Buyer and receive and retain
the Xxxxxxx Money, including the interest earned thereon; or (ii) in addition
to and not to the exclusion of the remedies in clause (i) immediately above,
bring an action against Buyer for Seller's actual damages, provided, however,
that in no event shall Buyer be liable or responsible for punitive or
exemplary damages or for any consequential damages, except in the event of
fraud.
17.3. Time is of the essence for all purposes under this Contract.
18. 1031 Exchange by Seller. Buyer hereby agrees to cooperate with Seller in
effectuating a like-kind exchange of all or part of the Premises upon request by
Seller, as follows:
18.1. Seller shall have the option, exercisable by giving written notice
to Buyer at any time prior to the Closing Date, to effect a like-kind
exchange of all or any part
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of the Premises by making an assignment (the "Assignment") of its rights and
obligations under this Contract to a qualified intermediary (the
"Intermediary"), who shall contract with Seller to deliver to Seller in
exchange therefor property or other consideration at such times as shall be
designated in a contract between Seller and the Intermediary. If Seller makes
the Assignment, the Intermediary shall be substituted for Seller as the
seller of the Premises under this Contract, and Buyer shall, upon and subject
to the terms, conditions and provisions set forth in this Contract, accept
the Premises and all other required performance under this Contract from the
Intermediary, and render Buyer's performance of all of its obligations under
this Contract to the Intermediary; provided, that Seller shall, at the
Intermediary's direction, nevertheless convey the Premises to Buyer in
accordance with, and upon and subject to, the terms, conditions and
provisions set forth in this Contract. Buyer agrees that performance by the
Intermediary under this Contract shall be treated as performance by the
seller hereunder, and Seller agrees that Buyer's performance of its
obligations hereunder to the Intermediary will be treated as performance to
the seller hereunder.
18.2. Buyer agrees to reasonably cooperate with Seller and to execute such
documents as are reasonably necessary for Seller to effect such exchange,
provided that (1) all additional costs and expenses arising from Seller's
exchange shall be borne solely by Seller, (ii) Buyer shall not be obligated
to incur any additional liability as a result of Seller's exchange, and (iii)
the contemplated exchange shall not delay any of the time periods or other
obligations of Seller hereunder.
19. Miscellaneous. The laws of the State of Kansas shall govern the validity,
enforcement, and interpretation of this Contract. This Contract constitutes the
complete and final expression of the agreement of the parties relating to the
Premises, and supercedes all previous contracts, agreements, and understandings
of the parties, either oral or written, relating to the Premises. This Contract
cannot be modified, or any of the terms hereof waived, except by an instrument
in writing (referring specifically to this Contract) executed by the party
against whom enforcement of the modification or waiver is sought. This Contract
may be executed in several counterparts, each of which shall be fully effective
as an original, or by the parties on separate counterparts or separate signature
pages, all of which together shall constitute one and the same instrument. The
headings that have been used throughout this Contract have been inserted for
convenience of reference only and do not constitute subject matter to be
construed in interpreting this Contract. Words of any gender used in this
Contract shall be held and construed to include any other gender and words in
the singular number shall be held to include the plural, and vice versa, unless
the context requires otherwise. If any one or more of the provisions of this
Contract, or the applicability of any such provision to a specific situation,
shall be held invalid or unenforceable, the validity and enforceability of all
other provisions of this Contract and all other applications of any such
provision shall not be affected thereby. This Contract shall be binding upon and
inure to the benefit of Seller and Buyer, and their respective heirs, personal
representatives, successors and permitted assigns. Neither Seller nor Buyer
shall be entitled to record this Contract or any written document or instrument
evidencing or summarizing all or any part of this Contract or the rights and
interests of the parties hereto in the real property records of Xxxxxxx County,
Kansas, unless expressly agreed between the parties either in this Contract or
otherwise in writing duly signed and authorized by the parties hereto.
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20. Authority. The undersigned Xxxxxx X. Xxxxx hereby represents and warrants
to Buyer that he is the Managing Member of Laner Real Estate Holdings, L.L.C., a
Missouri limited liability company, which is General Partner of L & F Land
Company, a Kansas general partnership, and that as such he has all requisite
power and is duly authorized to execute this Contract on behalf of Laner Real
Estate Holdings, L.L.C. in its capacity as General Partner of L & F Land
Company. The undersigned Xxxxxx X. Xxxxx hereby represents and warrants to
Seller that he is entering into this Contract not individually but solely as
nominee for the benefit of Church of the Resurrection - United Methodist, a
Kansas not-for-profit corporation, and that in his individual capacity he has no
rights or interests hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the
date first above written.
SELLER:
L&F LAND COMPANY,
a Kansas general partnership
By: LANER REAL ESTATE HOLDINGS, L.L.C., a
Missouri limited liability company,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Managing Member
BUYER:
/s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXX, not individually but solely
as nominee for the benefit of CHURCH OF THE
RESURRECTION - UNITED METHODIST, a Kansas
not-for-profit corporation
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EXHIBIT A
See the one-page survey drawing attached hereto, on which the Premises are
outlined in red.
[Survey Map omitted]
Exhibit B
Description of Farm Lease
Oral fram lease L & F Land Company, as Landlord, and Xxxxxxx Bros., Inc. as
Tenant for the one-year period from January 1, 1999, through December 31, 1999,
under which the total rent amount is $_______, payable in two equal installments
of $_______________ each on May 1, 1999, and November 1, 1999.
Tenant's address is 00000 Xxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, telephone
000-0000.
Exhibit C
Street Agreements
See the documents attached hereto, consisting of the following:
000xx Xxxxxx Escrow and Construction Agreement - 13 pages
Section 12 of the Real Estate Contract dated
as of April 23, 1998, between L & F Land
Company, as the seller, and Church of the
Resurrection--United Methodist, as the buyer - 2 pages
000XX XXXXXX ESCROW AND CONSTRUCTION AGREEMENT
THIS AGREEMENT is made and entered into as of the 5th day of August , 1998,
by and among L & F LAND COMPANY, a Kansas general partnership ("Seller"), having
an address at c/o Xxxxxx X. Xxxxx, Managing Partner, 0000 Xxxx 00xx Xxxxxx,
Xxxxxxx Xxxxx, Xxxxxx 00000; CHURCH OF THE RESURRECTION - UNITED METHODIST, a
Kansas not-for-profit corporation ("Buyer"), having an address at 00000 Xxx,
Xxxxxxx, Xxxxxx 00000, Attention Xxxxxxxx Xxxx X. Xxxxxxxx, Senior Pastor, and
XXXXXXX TITLE OF KANSAS CITY ("Escrow Agent"), having an address at 0000
Xxxxxxxxxx, Xxxxx 000, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention Xxxx Xxxxxxx.
RECITALS:
A. Seller and Buyer are parties to a Real Estate Contract dated as of April
23, 1998 (the "Sale Contract"), relating to the real property in Xxxxxxx County,
Kansas, at the southeast corner of existing Xxxx Avenue and proposed 137th
Street, depicted in Exhibit A attached hereto (the "Sale Parcel").
B. Seller owns the property adjacent to and north of the Sale Parcel
("Seller's Retained Parcel"), bounded on the north by existing 000xx Xxxxxx and
on the west by existing Xxxx Avenue.
C. Seller and Buyer have agreed, pursuant to Section 12 of the Contract, to
construct a two-lane "reverse frontage" roadway, including, if and to the extent
required by the City of Leawood, Kansas, and all other governing authorities
having jurisdiction with respect to the construction of such roadway,
acceleration and deceleration lanes on abutting streets, medians, curbs, curb
cuts, storm sewers, and the like (collectively, the "137th Street
Improvements"), along the common boundary between the Sale Parcel and Seller's
Retained Parcel, and cause the 000xx Xxxxxx Improvements to be dedicated to and
accepted by the City of Leawood for public use and maintenance.
D. Seller and Buyer have further agreed, pursuant to Section 12 of the
Contract, that Buyer shall be responsible for causing the 000xx Xxxxxx
Improvements to be constructed, with the cost thereof to be shared equally by
Seller and Buyer, and that each party shall deposit with Escrow Agent,
concurrently with the closing of Buyer's purchase of the Sale Parcel, an amount
equal to one-half the sum of (i) the cost of constructing the 000xx Xxxxxx
Improvements as estimated by the parties, plus (ii) the agreed charges of Escrow
Agent in connection with this escrow.
E. Escrow Agent is willing to accept the parties' deposits in escrow and in
trust, and to hold, invest, administer and disburse the same.
F. The parties desire to set forth herein their agreements concerning, the
foregoing.
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NOW, THEREFORE, in consideration of the premises and of mutual covenants and
other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. EFFECTIVENESS OF THIS AGREEMENT. This Agreement shall become effective
only if, and as of the date on which, the sale and purchase transaction
contemplated in the Sale Contract shall be fully closed as provided therein,
including recording of the deed conveying the Sale Parcel to Buyer (said date of
closing being herein called the "Effective Date"). If the Sale Contract shall be
terminated for any reason prior to the closing thereunder, this Agreement shall
be deemed null and void ab initio.
2. DEPOSIT OF FUNDS INTO ESCROW.
2.1 Construction Cost. The term "Construction Cost" as used herein means
the aggregate of all direct design and construction costs of the 000xx Xxxxxx
Improvements plus all fees, other costs directly related to the general
supervision of such construction by the Engineer (hereinafter defined) and/or
other design and construction professionals retained by mutual agreement of
Buyer and Seller, and all application and permit fees payable to the applicable
governmental authorities. "Construction Cost" shall not include legal fees or
expenses of the parties. Seller and Buyer agree that each of them shall pay
one-half the Construction Cost by depositing their respective shares into this
escrow with Escrow Agent at the times and in the manner herein provided. As of
the date of this Agreement, Seller and Buyer estimate that the Construction Cost
will be approximately $300,000.00.
2.2 Deposit of Funds with Escrow Agent.
(a) On the Effective Date, Seller and Buyer shall each deposit with Escrow
Agent the sum of $150,300.00, i.e., one-half the sum of $300,600.00, which
aggregate $300,600.00 deposit shall consist of (i) Seller's and Buyer's present
estimate of the Construction Cost as set forth in Section 2.1 above (said
initial estimated amount plus any and all amounts which may be subsequently
deposited hereunder by Seller and Buyer to be applied to the Construction Cost,
being herein collectively calle "Construction Cost Deposit"), plus (ii) $600.00,
which is the estimated total Escrow Fee of Escrow Agent. Escrow Agent agrees
that its total compensation for the retention, monitoring, administration and
disbursement of the Construction Cost and performance of all other duties and
responsibilities of Escrow Agent under this Agreement (the "Escrow Fee") shall
be a sum equal to $100.00 per disbursement required to be made by Escrow Agent
out of the Escrowed Funds (hereinafter defined) under this Agreement.
(b) If at any time during the term of this Agreement (i) the amount of the
Construction Cost shall exceed the Construction Cost Deposit, because of any
change orders which may be agreed upon in writing by Seller and Buyer or as may
be otherwise agreed in writing by Seller and Buyer, or (ii) the amount of the
Escrow Fee shall exceed $600.00, then within 10 days after the parties shall
have determined and agreed upon the amount of such deficiency, Seller and Buyer
shall each deposit with Escrow Agent, by certified or cashless check or by
federal wire transfer of funds, one-half the amount of such deficiency.
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2.3 Investment of Funds. Escrow Agent shall collect the Construction Cost
Deposit and shall keep the same continuously invested and reinvested in a money
market account in UMB Bank. All interest from the investment of the Construction
Cost Deposit shall accrue to and be reported to the Internal Revenue Service
one-half for the account of Seller and one-half for the account of Buyer, and
Escrow Agent shall disburse such interest to Seller and Buyer upon termination
of this Agreement. Construction Cost Deposit and interest earned thereon during
the term of this Agreement are herein collectively called the "Escrowed Funds."
2.4 Taxpayer Information. Taxpayer identification information for Seller
and Buyer is as follows, and Seller and Buyer shall each execute and deliver to
Escrow Agent upon request any other required Internal Revenue Service
documentation for the giving of taxpayer identification information in
connection with the Escrowed Funds:
Seller: L & F Land Company
EIN 00-0000000
c/o Xxxxxx X. Xxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxx 00000
Buyer: Church of the Resurrection - United Methodist
EIN 00-0000000
00000 Xxx
Xxxxxxx, Xxxxxx 00000
Attn. Xxx. Xxxx X. Xxxxxxxx
3. CONSTRUCTION OF 000XX XXXXXX IMPROVEMENTS.
3.1 Permits and Approvals. Buyer shall apply for and obtain all necessary
approvals and permits of the City of Leawood and all other governmental
authorities having jurisdiction with respect to the construction and
installation of the 000xx Xxxxxx Improvements. Seller shall cooperate with
Buyer, including the timely execution of such applications and other documents
as may be reasonably required in connection therewith.
3.2 Preparation of Plans.
(a) Buyer shall employ a professional engineering firm approved by Seller
(the "Engineer") to prepare plans and specifications for the construction and
installation of the 000xx Xxxxxx Improvements (collectively, the "Plans"), which
shall comply with the requirements of all Laws (hereinafter defined) and with
the standards and requirements of the City of Leawood for similar public
roadways parallel to 000xx Xxxxxx commonly referred to as "reverse frontage"
roads. "Laws" shall mean all applicable requirements, administrative and
judicial orders, laws, statutes, ordinances, rules and regulations of all
federal, state, county, municipal and local departments, commissions, boards,
bureaus, agencies and officer thereof, having or claiming jurisdiction over all
or any part of the 000xx Xxxxxx Improvements or the use thereof.
(b) During preparation of the Plans, Buyer shall, and shall cause the
Engineer to, consult with Seller, including (without limitation) providing
Seller reasonable advance notice of
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all meetings, conferences and consultations between Buyer and the Engineer and
giving Seller an opportunity to participate in all of same and to receive copies
of, review, comment on, and discuss with Buyer and the Engineer, all working
drawings and proposals during the course of preparation of the proposed P Buyer
shall give standing written instructions to the Engineer, and shall give similar
standing written instructions to the General Contractor under the Construction
Contract (hereinafter defined in Section 3.3(b)), to furnish Seller such
notices, information, copies, access and cooperation and to include Seller in
all material discussions. Each party agrees to use reasonable good faith efforts
to participate fully in the preparation of Plans and to provide all notices,
approvals, communications and other assistance contemplated herein in a timely
manner. Each party shall be responsible for providing information regarding its
respective Parcel as reasonably requested by the Engineer. Buyer shall cause the
Engineer to submit the proposed Plans to Seller for its approval within 30 days
after the Effective Date, and if Seller does not make written objection thereto
and state its desired modifications in reasonable detail within 30 days from the
date of receipt thereof, such proposed Plans shall be deemed approved by Seller.
If Seller does object, Buyer and the Engineer shall promptly consult with Seller
to finalize the Plans, and if the parties shall be unable to resolve Seller's
objections within 10 days after Buyer's receipt thereof, the matter shall be
submitted to and decided by arbitration in accordance with the provisions of
Section 3.4 of this Agreement.
(c) Once the Plans are approved in writing by Seller and Buyer, no
material changes shall be made therein without the written approval of both
Seller and Buyer, and any such proposed changes on which the parties are unable
to agree shall be submitted to and decided by arbitration in accordance with the
provisions of Section 3.4 of this Agreement. Any approvals by Seller and Buyer
shall relate only to conceptual matters, and not to technical matters, and
neither Seller nor Buyer shall b responsible for the technical adequacy of the
matters described in the Plans.
3.3 Bidding; General Contractor; Construction Contract.
(a) Buyer shall, as soon as reasonably practicable after approval of the
Plans by Buyer and Seller, and in no event later than 30 days after such
approval, submit the Plans for bid to not less than 3 general contractors
selected by Buyer and approved by Seller. Buyer and Seller shall review the bids
and consult with each other to select the bidder. If Seller and Buyer do not
agree upon which bid to accept, Buyer shall resubmit the Plans for bid in
accordance with the procedure set for above in this paragraph (a). Each party
shall respond to the other within 15 days after receipt of bids, and if during
any round of bidding one party shall fail to respond within said 15-day period,
the other party may unilaterally select a general contractor from the bids
received in that round of bidding. In the event the parties are unable to agree
upon the selection of a bidder after a second round of bidding, the matter shall
be submitted to and decided by arbitration in accordance with the provisions of
Section 3.4 of this Agreement.
(b) Upon approval of a bid, Buyer shall negotiate and shall enter into a
contract with the successful general contractor (the "General Contractor"),
subject to Seller's prior written approval of the contract. Such contract (the
"Construction Contract") shall be on a standard AIA form with modifications of
the form provisions as Seller and Buyer shall mutually agree are appropriate and
shall provide, among other things, for (i) compliance by the General Contractor
and all subcontractors all applicable Laws; (ii) the posting of bonds by the
General
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Contractor, if requested by Seller or Buyer, in the event liens are filed
against the Sale Parcel and/or Seller's Retained Parcel; (iii) retention of at
least 10% of each periodic payment until the work is finally completed and
accepted; (iv) insurance in amounts and providing coverages reasonably
satisfactory to Seller and Buyer; and (v) acknowledgment that Seller has the
right to take over the 000xx Xxxxxx Improvements as provided in Section 3.9 of
this Agreement. The Construction Contract and each subcontract shall expressly
inure to the benefit of (and be enforceable by) both Seller and Buyer. In the
event the parties shall be unable to agree upon the terms and provisions of the
Construction Contract within 15 days after Buyer's submission thereof to Seller
for approval, the matter shall be submitted to and decided by arbitration in
accordance with the provisions of Section 3.4 of this Agreement.
3.4 Arbitration. In the event Seller and Buyer shall be unable to agree upon
(i) approval of proposed Plans under Section 3.2, (ii) selection of a bidder
under Section 3.3(a), or (iii) approval of the proposed Construction Contract
under Section 3.3(b), then within 5 days after the expiration of the applicable
time period hereinabove provided for reaching such agreement or giving such
approval, the matter shall be submitted to arbitration. The arbitration shall be
governed by the substantive laws of the State of Kansas and the Federal
Arbitration Act, and the parties shall bear equally the costs of the arbitration
except that all expenses of witnesses shall be borne by the party offering the
testimony of that witness. Each party shall be entitled to appoint one
arbitrator, and the parties shall mutually agree on the third arbitrator or, in
the event the parties cannot agree, the third arbitrator shall be selected by
the other two arbitrators from a list of 10 prospective arbitrators then to be
provided by (x) the professor of construction law at either the University of
Missouri - Kansas City School of Law, or, if he or she is unwilling to provide
such a list, (y) the professor of construction law at the University of Kansas
School of Law, or, if he or she is unwilling to provide such a list, (z) the
Missouri Builders Association. All of the arbitrators to be selected under this
Agreement shall be independent and impartial, shall not have been employed by or
associated with Seller or Buyer at any time within the preceding 5-year period,
and shall be both (a) professionals who are knowledgeable and experienced with
respect to construction of similar streets or roads and related improvements in
the Kansas City metropolitan area and the review and evaluation of plans,
specifications and contracts therefor, and (b) trained and experienced as
arbitrators. The date and location of the arbitration hearing shall be mutually
agreed to by the parties, or if the parties are unable to agree, shall be
determined by the arbitration panel. The parties shall mutually agree on
discovery to be permitted, provided, however, that at a minimum the parties
shall, at least two days prior to the date set for the arbitration hearing,
exchange all documents relevant to the dispute(s) and all documents each party
intends to submit to the arbitrators. No depositions shall be permitted unless
they are necessary to present the testimony of a witness who is unavailable to
testify at the arbitration hearing. If either party requests additional
discovery, and the parties are unable to agree on the limits for such additional
discovery, the dispute shall be determined by the arbitration panel. Seller and
Buyer agree to participate in good faith in the arbitration and to perform all
duties and obligations hereunder in a timely and expeditious manner to
facilitate completion of construction, and agree that the written decision of a
majority of the panel of arbitrators shall be final, conclusive and binding upon
the parties and shall be the sole remedy of each party with respect to the
issues submitted for arbitration. The parties and arbitrators shall maintain the
confidentiality of the proceedings and the written arbitration decision, unless
disclosure is required to obtain judicial enforcement of the arbitrators'
decision, or otherwise required by applicable law.
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3.5 Change Orders. All change orders shall require the prior written approval
of both Buyer and Seller.
3.6 Inspections; Correction of Deficiencies. Buyer shall employ a
professional engineering firm approved by Seller (the "Inspecting Engineer"), on
terms and conditions and for such compensation as shall be approved by Seller
(which compensation shall be part of the "Construction Cost" hereunder), to
periodically inspect the progress of the work on the 000xx Xxxxxx Improvements,
review applications for payment received by Buyer from the General Contractor,
advise concerning any deficien in the work or other matters, and make the final
inspection and issue a final certificate of completion to Seller and Buyer as
contemplated in Section 3.7 hereof. Seller may inspect at any time during the
construction and installation of the 000xx Xxxxxx Improvements. Buyer agrees to
cause to be corrected any deficiencies in the work or materials promptly after
receiving written notice thereof.
3.7 Completion; Final Inspection and Acceptance by the Parties. Buyer shall
cause the 000xx Xxxxxx Improvements to be completed in accordance with the Plans
and this Agreement not later than 12 months after the Effective Date, subject to
Force Majeure (hereinafter defined). Upon completion of the 000xx Xxxxxx
Improvements, Buyer shall give notice to the Inspecting Engineer and Seller that
the same are ready for final inspection, and within 30 days after the giving of
such notice, on a mutually established date, Seller, Buyer and the Inspecting
Engineer shall complete an inspection thereof. If no written objections are made
within 10 days after such inspection, Buyer shall cause the Inspecting Engineer
to issue its final certificate of completion to Seller and Buyer. Buyer agrees,
upon written request from Seller, to pursue any and all claims, based on
professional negligence or otherwise, for the benefit of Seller and Buyer
concerning the preparation of Plans or the construction or installation of the
000xx Xxxxxx Improvements.
3.8 Takeover of the Work by Seller. If Seller determines in its reasonable
judgment and in good faith, at any time from and after the date which is 8
months after the Effective Date, that the performance of the work on the 000xx
Xxxxxx Improvements is not proceeding so as to be completed within the time
provided in Section 3.7, Seller may give written notice of such fact to Buyer,
and if Buyer does not provide Seller reasonable evidence, within 10 days after
receipt of such notice from Seller, either that the work will be completed as
required or that an extension of the completion date is permitted under the
provisions of Section 3.10 of this Agreement, Seller shall have the right (but
shall have no obligation) to assume control of the 000xx Xxxxxx Improvements,
and if Seller elects to do so, Seller shall cause the same to be completed with
reasonable diligence, in accordance with the Plans and this Agreement.
3.9 Standards of Performance. All work which is to be performed or caused to
be performed as provided in this Agreement shall be done in a good and
workmanlike manner, substantially in accordance with the Plans, in conformity
with generally accepted construction practices, and in conformity with all Laws.
3.10 Easements.
(a) Each party ("Grantor") hereby grants to the other party ("Grantee"), for
the benefit of Grantee and its agents, employees and contractors, a temporary
easement to enter
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upon and use such portions of the Grantor's Parcel as may be reasonably
necessary to permit the Grantee to cause to be effected and completed the
construction and installation of the 000xx Xxxxxx Improvements in accordance
with this Agreement.
(b) Grantor shall, upon request of Grantee or the City of Leawood, grant to
Grantee or the City such other and further easements and rights-of-way as shall
be reasonably required in connection with the construction, installation,
maintenance, repair and use of the 000xx Xxxxxx Improvements, provided that the
location of each such easement and right-of-way and the terms, conditions and
provisions of the agreement creating and establishing the same, must be
reasonably satisfactory to Gran
3.11 Permitted Delays. Notwithstanding anything to the contrary set forth in
this Agreement, whenever performance is required of a party under this
Agreement, the party shall use all due diligence and take all necessary measures
in good faith to perform; provided, however, that if completion of performance
shall be delayed at any time by reason of acts of God, war, civil commotion,
riots, strikes, picketing or other labor disputes, unavailability of labor or
materials, or damage to work progress by reason of fire or other casualty, or
other cause beyond the reasonable control of the party required to perform
(collectively, "Force Majeure"), then the time for performance as herein
specified shall be extended by the period of the delay actually so caused. The
provisions of this Section shall not (i) operate to excuse any party from the
prompt payment of any amounts to be paid by it under this Agreement or (ii) be
applicable to delays resulting from the inability of a party to obtain financing
or proceed with its obligations because of a lack of funds.
4. DISBURSEMENT OF ESCROWED FUNDS.
4.1 Progress Payments to General Contractor. Upon Buyer's receipt of an
application by the General Contractor, made not more often than once each month,
accompanied by an AIA Document G702 Application and Certificate for Payment
(collectively, the "Application"), Buyer and Seller shall jointly instruct
Escrow Agent to disburse directly to the General Contractor an amount equal to
the sum requested in the Application. Each Application for a progress payment
shall reflect a 10% retainag
4.2 Final Payment to General Contractor. Upon receipt by Buyer of final,
unconditional lien waivers of the General Contractor and all subcontractors,
duplicate copies of which shall be provided to Seller, Buyer and Seller shall
jointly instruct Escrow Agent to disburse directly to the General Contractor the
entire remainder of the contract price under the Construction Contract.
4.3 Required Documentation to Seller. Notwithstanding the foregoing
provisions of Sections 4.1 and 4.2, Seller shall not be required to instruct
Escrow Agent to make any disbursement to the General Contractor until Seller
shall have received a copy of the Application for such payment together with all
of the following:
(a) With respect to the first Application, a complete, reproducible set of
the approved Plans;
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(b) A certification by the Engineer that the work or portion thereof for
which payment is requested has been completed substantially in accordance with
the Plans;
(c) A list of the names and addresses of all subcontractors and suppliers of
materials used in the work for which payment is requested; and
(d) With respect to work covered by the immediately preceding Application,
copies of sworn statements and lien waivers signed by the General Contractor and
each subcontractor and supplier of materials used in the work covered by such
immediately preceding Application (each, an "Affiant") stating (i) that the
Affiant waives any lien or right to a lien with respect to work for which
payment has been received by the Affiant, (ii) the amount theretofore received
by the Affiant, and (iii) th total amount of the Affiant's contract.
4.4 Remainder of Escrowed Funds. After disbursement of the final payment to
the General Contractor, Buyer and Seller shall jointly instruct Escrow Agent to
disburse the remainder of the Escrowed Funds (if any) one-half to Buyer and
one-half to Seller, and upon such disbursement this escrow shall terminate.
5. DEDICATION TO CITY. Upon completion of the 000xx Xxxxxx Improvements,
final acceptance thereof by Buyer and Seller, and disbursement of the final
payment to the General Contractor as provided in Section 4.2, Buyer shall
promptly make formal application for the 000xx Xxxxxx Improvements to be
dedicated to and accepted for public maintenance by the City of Leawood. Buyer
and Seller shall cooperate and shall take such action as shall be reasonably
required to effectuate such dedication and acceptance, including, without
limitation, execution and delivery of such applications, deeds of dedication and
other documents and instruments as the City may reasonably request. All expenses
in connection with such dedication and acceptance (including, without
limitation, the cost of a title insurance commitment for the City and copies of
all exception documents identified therein) shall be paid as and when due,
one-half by Seller and one-half by Buyer, provided that each party shall be
responsible for its own legal fees.
6. INSURANCE. Until the 000xx Xxxxxx Improvements are completed and dedicated
to and accepted by the City of Leawood, Seller and Buyer shall each maintain or
cause to be maintained in force one or more broad-form policies of comprehensive
public liability insurance against claims and liability on account of bodily
injury, death and property damage incurred upon or about the insured party's
Parcel, which liability insurance shall include coverage of completed
operations, shall have a combined single limit of not less than $1,000,000 per
occurrence, and shall designate the other party as an additional insured. All
such insurance shall be carried in companies licensed in the State of Kansas
having a general rating of "B+" or better and a financial size rating of "IX" or
better in Best's Key Rating Guide, or be equivalently rated by any successor
insurance company rating service; be primary insurance which will not call upon
any other insurance obtained by Seller or Buyer for defense, contribution or
payment; and contain provisions requiring the insurer to give at least 30 days'
prior written notice to each insured of cancellation, nonrenewal or material
modification. Upon request, each party shall provide the other party a
certificate of insurance evidencing compliance with the insuring obligations set
forth in this Section.
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7. CONCERNING THE ESCROW AGENT.
7.1 Liability of Escrow Agent. Escrow Agent shall not be liable for (i) any
loss resulting from any investment made pursuant to this Agreement in compliance
with the provisions hereof, (ii) any penalties or loss of principal or interest
or any delays in withdrawal of the Escrowed Funds which may be imposed by the
financial institution in which the Escrowed Funds are deposited or as a result
of making or redeeming any investment in accordance with this Agreement, or
(iii) any loss or impairment of funds while in the course of collection or while
on deposit if such loss or impairment results from the failure or insolvency of
the financial institution in which the Escrowed Funds are deposited.
7.2 Escrow Fee. The Escrow Fee shall be Escrow Agent's sole compensation
under and in connection with this Agreement. Escrow Agent agrees that it shall
not be entitled to any other compensation or reimbursement in connection with
this Agreement except as expressly provided in Section 7.3, nor shall Escrow
Agent have any lien or right of set-off whatsoever against any of the Escrowed
Funds.
7.3 Disputes Concerning Escrowed Funds. If a dispute arises between Seller
and Buyer in connection with the distribution of Escrowed Funds, Escrow Agent
may (i) hold the Escrowed Funds in its possession until a mutual agreement has
been reached between Seller and Buyer, or (ii) file an interpleader action in a
court of competent jurisdiction and deposit the Escrowed Funds with the court,
to be distributed by the court upon the entry of a final judgment in such
action, provided, however that Escrow Agent shall not file such an action or so
deposit the Escrowed Funds with the court unless Escrow Agent shall have given
Seller and Buyer written notice of its intent to do so and Seller and Buyer
shall have failed to reach agreement and provide Escrow Agent joint written
instructions concerning the distribution of the Escrowed Funds within 10 days
after the giving of such notice. If Escrow Agent brings such an action because
Seller and Buyer are unable to agree upon the release of Escrowed Funds, Seller
and Buyer shall each pay one-half of Escrow Agent's actual, reasonable
out-of-pocket expenses, including without limitation reasonable attorneys' fees,
incurred with respect to such action.
8. GENERAL PROVISIONS.
8.1 No Partnership. None of the terms or provisions of this Agreement shall
be deemed to create a partnership, joint venture or other joint enterprise
between Buyer and Seller. This Agreement is not intended to nor shall it be
construed to create any third-party beneficiary rights.
8.2 Approvals; Designated Representatives. Each party agrees that its
approvals and consents under this Agreement shall not be unreasonably withheld,
conditioned or delayed. Buyer hereby designates Xxxxxxx Lady as its
representative for all communications under this Agreement, and Seller hereby
designates Xxxxxx Xxxxx as its representative for all communications hereunder.
8.3 Notices. All notices, consents, requests, approvals, authorizations and
other communications (each, a "Notice") required or permitted to be given
hereunder shall only be effective if in writing and if served by registered or
certified mail, return receipt requested and all
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postage and charges prepaid, or by personal delivery by a reputable commercial
courier service which delivers only upon signed receipt of the addressee,
addressed to the party's address hereinabove set forth. Al Notices shall be
effective upon being deposited in the United States Mail or delivered to the
courier service in the manner prescribed above, provided that the time period in
which a response to any such Notice must be given shall commence to run from the
date of receipt by the addressee as shown on the return receipt or courier
receipt of the Notice. Rejection or other refusal to accept or inability to
deliver because of change of address of which no Notice was given shall be
deemed to be receipt of the Notice as of the date of such rejection, refusal or
inability to deliver.
8.4 Successors. All of the covenants and agreements contained in this
Agreement shall run with the land and shall be binding upon and inure to the
benefit of the successors and assigns of each of the parties. Each party
covenants and agrees to so advise its successors and assigns in writing, cause
said successors and assigns to agree in writing to be bound hereby, and provide
the other party copies of the foregoing.
8.5 No Recording. Neither Seller nor Buyer shall be entitled to record this
Agreement in the real property records of Xxxxxxx County, Kansas, unless
expressly agreed between the parties in writing.
8.6 Severability. Invalidation of any provision of this Agreement or of the
application thereof to any person, party or circumstance by judgment or court
order shall in no way affect any other provision hereof or the application of
such other provisions to any other person, party or circumstance, and the same
shall remain in full force and effect.
8.7 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Kansas.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.
SECTION 8.8 AND THE PARTIES' SIGNATURES FOLLOW ON THE NEXT PAGE.
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8.8 Counterparts. This Agreement may be executed by the parties hereto on
separate counterparts or on separate signature pages to be attached hereto, all
of which shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
SELLER:
L&F LAND COMPANY, a Kansas general partnership
By: /s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx, Managing Partner
BUYER:
CHURCH OF THE RESURRECTION - UNITED METHODIST,
a Kansas not-for-profit corporation
By: /s/Xxxxxxxx X. Xxxxxxxxx
Xxxxxxxx X. Xxxxxxxxx, Chair
Board of Trustees
ESCROW AGENT:
XXXXXXX TITLE OF KANSAS CITY
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Commercial Escrow Officer
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EXHIBIT A
Legal Description of the Property
ALL THAT PART OF THE NW1/4 OF SECTION 33, TOWNSHIP 13, RANGE 25, NOW IN THE CITY
OF LEAWOOD, XXXXXXX COUNTY, KANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE NW1/4 OF SAID SECTION 33; THENCE N 2
05' 05" W, ALONG THE WEST LINE OF THE NW1/4 OF SAID SECTION 33, A DISTANCE OF
1,286.51 FEET; THENCE N 87 54' 55" E, ALONG A LINE PERPENDICULAR TO THE WEST
LINE OF THE NW1/4 OF SAID SECTION 33, A DISTANCE OF 68.22 FEET, TO A POINT OF
CURVATURE; THENCE EASTERLY AND SOUTHEASTERLY, ALONG A CURVE TO THE RIGHT HAVING
A RADIUS OF 625 FEET AND A CENTRAL ANGLE OF 31 08' 13", A DISTANCE OF 339.65
FEET, TO A POINT OF REVERSE CURVATURE; THENCE SOUTHEASTERLY, EASTERLY AND
NORTHEASTERLY, ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 650 FEET, A CENTRAL
ANGLE OF 81 18' 37" AND WHOSE INITIAL TANGENT BEARING IS S 60 56' 52" E, A
DISTANCE OF 922.44 FEET, TO A POINT OF REVERSE CURVATURE; THENCE NORTHEASTERLY
AND EASTERLY, ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 600 FEET, A CENTRAL
ANGLE OF 34 26' 53" AND WHOSE INITIAL TANGENT BEARING IS N 37 44' 31" E, A
DISTANCE OF 360.74 FEET, TO A POINT OF TANGENCY; THENCE N 72 11' 24" E, A
DISTANCE OF 14.31 FEET, TO A POINT ON THE CENTERLINE OF 137TH STREET, AS NOW
ESTABLISHED, SAID POINT ALSO BEING ON THE WEST LINE OF THE EAST 68 ACRES OF THE
NW1/4 OF SAID SECTION 33; THENCE S 1 50' 17" E, ALONG THE WEST LINE OF THE EAST
68 ACRES OF SAID SECTION 33, ALONG THE WEST LINE OF LOT 1, CHURCH OF THE
RESURRECTION, A SUBDIVISION OF LAND NOW IN THE CITY OF LEAWOOD, XXXXXXX COUNTY,
KANSAS AND ALONG THE WEST LINE OF BLOCK 1 OF QUAIL CREST, A SUBDIVISION OF LAND
NOW IN THE CITY OF LEAWOOD, A DISTANCE OF 1,532.30 FEET, TO THE XXXXXXXXX XXXXXX
XX XXX 00, XXXXX 1 OF SAID QUAIL CREST, SAID POINT ALSO BEING ON THE SOUTH LINE
OF THE NW1/4 OF SAID SECTION 33; THENCE S 87 51' 49" W, MEASURED, (S 89 48' 34"
W, PLATTED) ALONG THE SOUTH LINE OF THE NW1/4 OF SAID SECTION 33, A DISTANCE OF
1,532.06 FEET, TO THE POINT OF BEGINNING.
Section 12 of the Real Estate Contract dated as of
April 23, 1998, between L&F Land Company, as the seller, and
Church of the Resurrection--United Methodist, as the buyer
12. 000xx Xxxxxx Improvements. Seller and Buyer agree to construct a
reverse two-lane frontage roadway, including, if and to the extent required by
the City of Leawood and all other governing authorities having jurisdiction with
respect to the construction of such roadway, acceleration and deceleration lanes
on abutting streets, medians, curbs, curb cuts, storm sewers, and the like, (the
"137th Street Improvements") along the northerly boundary of the Premises at
approximately the location shown on Exhibit A in accordance with standards and
requirements of the City of Leawood and consistent with similar roadways within
the City of Leawood parallel to 000xx Xxxxxx and commonly referred to as
"reverse frontage roads". Buyer shall be responsible for the construction of the
000xx Xxxxxx Improvements; provided, however, that the cost of such shall be
shared equally by Seller and Buyer and concurrent with the Closing each party
shall place in a daily interest bearing account with the Title Company or
another escrow agent mutually acceptable to Seller and Buyer (the "Escrow
Agent") a sum equal to one-half of the parties' estimated cost of constructing
same (the "137th Street Improvements Escrow"). In calculating such estimated
cost, the direct design and construction costs and all fees and other costs
related to the general supervision of construction of the 000xx Xxxxxx
Improvements shall be included, together with Escrow Agent's reasonable and
mutually agreed charges for retention, monitoring, administration and
disbursement of the 000xx Xxxxxx Improvements Escrow. Disbursements shall be
made from the 000xx Xxxxxx Improvements Escrow during the course of construction
of the 000xx Xxxxxx Improvements in accordance with an escrow agreement to be
entered into with the Escrow Agent on terms and conditions reasonably
satisfactory to Seller and Buyer. Each party shall provide such easements,
rights of way, and other access over and upon such party's property as may be
reasonably required in order to achieve construction of the 000xx Xxxxxx
Improvements and shall cooperate with the other party, including the timely
execution of documents and applications as may be reasonably required, to effect
construction of the 000xx Xxxxxx Improvements, obtain all approvals and permits
of all governmental and regulatory authorities as may be required therefor, and
to achieve final dedication and acceptance of the roadway by the City of
Leawood. The escrow agreement to be entered into by Seller, Buyer and the Escrow
Agent shall provide, among other things, that Seller shall have the right of
prior approval with respect to Buyer's bidding procedure, the identity of the
engineer and the Contractor, the terms and provisions of the contract for the
performance of the work, and the plans and specifications for the work;
provided, however, that (i) all such plans and specifications shall be in
accordance with standards and requirements of the City of Leawood and consistent
with similar roadways within
the City of Leawood parallel to 000xx Xxxxxx and commonly referred to as
"reverse frontage roads," (ii) the period for construction of the 000xx
Xxxxxx Improvements shall be no less than six (6) months and no more than twelve
(12) months from and after the Closing Date, and (iii) Seller shall not
unreasonably withhold its approval as specified herein. If Buyer fails to
cause the 000xx Xxxxxx Improvements to be completed within twelve (12) months
from and after the Closing Date in accordance with the terms and requirements
of this Paragraph 12, Seller, shall have the right, but not the duty, to assume
control of the work and cause the same to be completed. Neither Seller nor Buyer
shall have any duty or responsibility for maintenance or repair of the 000xx
Xxxxxx Improvements after completion of construction as provided herein. The
provisions of this Paragraph 12 shall survive the Closing, delivery of the
Warranty Deed, and all other performances under this Contract. The obligations
of the parties under this Paragraph 12 shall run with the land and shall be
binding upon all successors in interest to each of Buyer and Seller, and each
party covenants and agrees to so advise its successors in interest in writing,
cause said successors to agree in writing to be bound hereby, and provide the
other party copies of the foregoing.
PROMISSORY NOTE
Leawood, Kansas
$_______________* ______________, 2000
FOR VALUE RECEIVED, COR DEVELOPMENT LLC, a Kansas limited liability company
("Borrower"), promises to pay to the order of L & F LAND COMPANY, a Kansas
general partnership ("Lender"), at 0000 X. 00xx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx
00000, or at such other place as the Lender may from time to time designate in
writing, the principal sum of __________________________________ DOLLARS
($_____________)*, together with interest thereon at the Applicable Rate
(hereinafter defined), on January 2, 2001.
"Applicable Rate" shall mean _________ percent (_____%) per annum.
Borrower shall not have the right to prepay this Note.
This Note is made and executed pursuant to that certain Real Estate Contract
dated as of January 24, 2000, between Lender, as Seller, and Xxxxxx X. Xxxxx
(the "Nominee"), not individually but solely as nominee for the benefit of
Church of the Resurrection-United Methodist, a Kansas not-for-profit
corporation, as reinstated and amended by Reinstatement and Amendment of Real
Estate Contract dated as of ____________, 2000, between Lender and Nominee, and
assigned by Nominee to Borrower by Assignment and Assumption of Real Estate
Contract dated as of _____________, 2000 (said Real Estate Contract, as so
reinstated, amended and assigned, being herein referred to as the "Contract").
This Note is secured by a first mortgage (the "Mortgage") on the "Premises"
as described in the Contract.
If, prior to full payment and satisfaction of this Note, Borrower shall take
any irreversible or irrevocable action with respect to the Premises, cause any
final action to be taken with respect to platting, replotting, zoning or
rezoning of the Premises or any part thereof, or Borrower shall subject the
Premises to any easement, agreement, restriction or encumbrance of any kind
whatsoever, or Borrower shall record any document or instrument with respect to
the Premises, then at the option of Lender the entire indebtedness evidenced by
this Note and all other sums payable to Lender under this Note and under the
Mortgage shall become immediately due and payable.
================================================================================
*The principal amount of the Note will be $7,226,000.00 as adjusted in
accordance with the provisions of the Contract to reflect (1) a total purchase
price based upon the exact number of acres contained in the Property as
certified on the Survey, (2) application of the Xxxxxxx Money, and (3) proration
of real estate taxes and assessments.
**The interest rate on the Note will be the per-annum interest rate in effect on
the business day next preceding the Closing Date for the largest minimum-balance
money market investment account at Bank of America, N.A.
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If Borrower shall default in the payment of this Note when due, then Borrower
shall pay to Lender, in addition to the sum stated above, the reasonable costs
of collection, regardless of whether litigation is commenced, including a
reasonable sum as attorneys' fees, to the extent not prohibited by law. No
failure on the part of Lender to exercise any of Lender's rights hereunder shall
be deemed a waiver of any such rights or of any default.
All agreements contained in this Note and in the Mortgage are expressly
limited so that in no contingency or event whatsoever shall the amount paid or
agreed to be paid by or on behalf of Borrower to Lender for the use, forbearance
or detention of money exceed the highest lawful rate permissible under any
applicable law or regulation of any governmental authority having jurisdiction,
limiting the amount of interest that may be paid for the loan, use or detention
of money ("Usury Law"). If, for any circumstances whatsoever, compliance with
any of the terms of this Note or of the Mortgage, at the time performance
thereunder shall be due, shall involve transcending the limit of validity
prescribed by law which a court of competent jurisdiction may deem applicable
thereto, then ipso facto, the obligations to be fulfilled shall be reduced to
the limit of such validity. If from any circumstance Lender shall ever receive
as interest an amount which would exceed the highest lawful rate, such amount
which would be excessive interest shall be applied to the reduction of the
unpaid principal balance due hereunder and not to the payment of interest. This
provision shall control every other provision of all agreements between Borrower
and Lender; provided, however, that there shall be no automatic reduction of
such payments or obligations as to any party barred by law from availing itself
in any action or proceeding of the defense of usury, or any party barred or
exempted from the operation of any Usury Law, or in the event and to the extent
the indebtedness evidenced by this Note, because of its amount or purpose or for
any other reason, is exempt from the operation of the Usury Law.
Borrower agrees that it will use the proceeds of this Note for business
purposes (other than agricultural purposes) only, and not for personal, family
or household purposes. The indebtedness evidenced hereby is for "business
purposes" within the meaning of Section 16-207, Kansas Revised Statutes.
This Note may not be changed, amended or modified except by agreement in
writing signed by Borrower and Lender.
This Note shall be construed and enforced in all respects in accordance with
the internal laws (without regard to the conflicts of laws rules) of the State
of Kansas.
Time is of the essence with respect to all of Borrower's obligations and
agreements under this Note.
In the event any one or more of the provisions of this Note shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Note, but this Note shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
Whenever used in this Note, the words "Borrower" and "Lender" shall be deemed
to include the respective successors and assigns of Borrower and of Lender, and
"Lender" shall also include any subsequent holder of this Note. This Note shall
be binding in accordance with its terms upon Borrower, its successors and
assigns.
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MORTGAGE
THIS MORTGAGE is executed as of this ____ day of _______________, 2000, by
and between COR DEVELOPMENT LLC, a Kansas limited liability company, as
mortgagor ("Borrower"), having an address at ________________________________,
and L & F LAND COMPANY, a Kansas general partnership ("Lender"), having an
office at 0000 X. 00xx Xxxxxx, Xxxxxxx Xxxxx, Xxxxxx 00000.
RECITALS:
WHEREAS, Borrower has executed and delivered to Lender a certain Promissory
Note (the "Note") of even date herewith payable to the order of Lender in the
principal sum of __________________________________________ DOLLARS ($ ),
together with interest thereon at the rate provided in the Note, and in the
manner and at the time therein set forth, which Note contains certain other
terms and conditions all of which are specifically incorporated herein by
reference;
NOW, THEREFORE, in consideration of the advance of the sum evidenced by the
Note, and as security for (i) the payment of the Note, with interest as provided
therein, (ii) the payment of all other sums payable hereunder and under the Note
(the Note and this Mortgage being hereinafter sometimes together referred to as
the "Loan Documents"), or any extensions, renewals, refundings, refinancings or
modifications thereof, and (iii) the observance and performance of each of the
other covenants, agreements and conditions hereof or in the Note (all such
obligations being hereinafter collectively called the "Debt"), Borrower does
grant, bargain, sell, convey, mortgage and warrant unto Lender and its
successors and assigns:
ALL that certain parcel of land situate in Xxxxxxx County, Kansas, described
on Exhibit A attached hereto and incorporated herein by reference (collectively,
the "Land"); and
TOGETHER with all improvements (if any) now or hereafter erected on the Land
(the "Improvements") and the appurtenances thereunto belonging and the
reversions, remainders, rents, issues and profits thereof; and
TOGETHER with all right, title and interest of Borrower in and to the
following described property (collectively, the "Additional Collateral"): (a)
all fixtures, fittings, appliances, apparatus, equipment, machinery, chattels,
building materials and articles of personal property (i) acquired in whole or in
part with the proceeds of the Note, or (ii) now or at any time hereafter affixed
to or attached to or placed upon or used in any way in connection with the
complete and comfortable use of the Land, or the use, enjoyment or occupancy or
operation and maintenance of the Improvements, together with all additions
thereto and substitutions and replacements thereof and all attachments,
accessories and parts used or intended to be used therewith; and (b) any and all
awards, damages, payments and other compensation, and any and all claims
therefor and rights thereto, which may result from taking or injury by virtue of
the exercise of the power of eminent domain, or any damage, injury or
destruction in any manner caused to the Land, the Improvements thereon, or any
part thereof, or from any change of grade or vacation of any street, highway or
road abutting thereon; and (c) all proceeds paid for damage done to the
collateral herein described or the Land; and (d) all air rights, development
rights, water rights, mineral rights and other rights of any kind whatsoever
appurtenant or belonging to the Land or relating to the Land; and (e) the
proceeds of all of the foregoing, both cash and noncash.
TO HAVE AND TO HOLD the same unto Lender, its successors and assigns,
forever.
AND Borrower hereby agrees that Lender shall have and hereby grants to and
creates in favor of Lender, a security interest under the Kansas Uniform
Commercial Code (the "Code") in and to the Additional Collateral.
All of the real and personal property described above, including without
limitation the Land, the Improvements and the Additional Collateral, are
hereinafter collectively called the "Mortgaged Property."
PROVIDED, HOWEVER, that if Borrower shall pay to Lender all of the Debt and
shall keep and perform each of the other covenants, conditions and agreements
set forth herein or in the Note, then this Mortgage and the estate hereby
granted and conveyed shall become void and shall be released of record by
Lender.
This Mortgage is executed and delivered subject to the following covenants,
conditions and agreements:
1. Further Assurances. Promptly upon request of Lender, Borrower shall do all
acts and things, including but not limited to the execution and delivery of any
further deeds, conveyances, assignments and further assurances, deemed necessary
or desirable by Lender to establish, confirm, maintain and continue the liens
and security interests created or intended to be created or conferred on Lender
hereby and the priority thereof.
2. Taxes, Insurance and Other Expenses. From time to time until the Debt is
fully paid and discharged, Borrower shall (i) pay and discharge, when and as the
same shall become due and payable, all taxes, assessments, sewer and water
rents, and any and all other charges, claims and liens assessed, levied, imposed
or created from time to time upon the Mortgaged Property or any part thereof
(except those which at the particular time are being diligently contested in
good faith by appropriate proceedings), (ii) pay all ground rents reserved from
the Mortgaged Property and pay and discharge all mechanics' liens and judgment
liens which may be filed against the Mortgaged Property (except those which at
the particular time are being diligently contested in good faith by appropriate
proceedings), (iii) pay and discharge any documentary stamp or other tax,
including interest and penalties thereon, if any, now or hereafter becoming
payable on the Note or this Mortgage, (iv) provide, renew and keep in effect by
paying the necessary premiums and charges thereon, (x) insurance upon the
Improvements (if any) against loss or damage by fire, other extended coverage
risks and other hazards customarily insured against in amounts required by
Lender, which policy shall contain a standard non-contributory mortgagee clause
in favor of Lender, and (z) public liability and property damage insurance
applicable to the Mortgaged Property in amounts and coverage satisfactory to
Lender, which policy shall name Lender as an additional insured thereunder, and
each of which policies shall be issued by insurance companies of recognized
responsibility, and (v) if requested by Lender, promptly submit to Lender
evidence of the due and punctual payment of all the foregoing charges. In the
event of foreclosure of this Mortgage, or other transfer of title to the
Mortgaged Property in extinguishment of the Debt, all right, title and interest
of the Borrower in and to any insurance policies or proceeds referred to in this
Section (including any pre-paid premiums or deposits) then in force, shall pass
to the purchaser or grantee. Lender shall be subrogated to the
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rights of the holder of any lien or security interest prior to the lien and
security interest of this Mortgage discharged by Lender or discharged with a
portion of the Debt or proceeds thereof.
3. Payments by Lender. If Borrower neglects or refuses to pay the charges
mentioned in Section 2 above, or fails to maintain the Mortgaged Property as
aforesaid, Lender may do so, add the cost thereof to the Debt and collect the
same from Borrower on demand with interest thereon until paid at a rate equal to
the "Applicable Rate" set forth in the Note.
4. Repairs; Alterations. Borrower shall maintain the Improvements (if any) in
good condition and substantial repair. Lender shall have the right to enter upon
the Mortgaged Property at any reasonable hour for the purpose of inspecting the
order, condition and repair thereof. Borrower shall make no change or alteration
to the Mortgaged Property which materially reduces the economic value of the
Mortgaged Property. Borrower shall not cause or permit any waste to the
Mortgaged Property.
5. Other Liens. Borrower covenants and agrees not to create, nor (subject to
Borrower's right to contest taxes and assessments under Section 2 above) permit
to accrue, upon all or any part of the Mortgaged Property, any debt, lease,
lien, charge or encumbrance of any kind, other than (i) the lien of this
Mortgage, and (ii) the lien of any subordinate mortgage granted to a bank or
other financial institution to secure a bona fide construction loan for the
construction of improvements on the Mortgaged Property ("Construction Loan"),
without the prior written consent of Lender, such consent to be given or
withheld in the sole and absolute discretion of Lender.
6. Destruction. In the event of damage to or destruction of any or all of the
Improvements (if any), Borrower shall promptly notify Lender of such damage or
destruction. Borrower shall immediately undertake repair, restoration,
reconstruction or replacement of the damaged or destroyed Improvements with
improvements of size, quality and value not less than that of the Improvements
immediately before the damage or destruction. Lender shall be entitled to
receive the proceeds of all casualty damage insurance on the Mortgaged Property,
and Lender may, at its option, either apply such proceeds in reduction of the
Debt or make all or a portion of such proceeds available to Borrower for
reconstruction of the Improvements upon terms and conditions established by
Lender in its sole discretion.
7. Condemnation. In the event that the Mortgaged Property, or any part
thereof, shall be taken in condemnation proceedings or by exercise of any right
of eminent domain (hereinafter called "condemnation proceedings"), Borrower and
Lender shall have the right to participate jointly in any such condemnation
proceedings. If title to any of the Mortgaged Property shall be taken in
condemnation proceedings or by agreement between Borrower and Lender and those
authorized to exercise such right, the award that may be made in any such
proceeding or the proceeds thereof shall be paid to Lender in reduction of the
Debt.
8. Leases and Rents. All of the rents, royalties, issues, profits, revenue,
income and other benefits of the Mortgaged Property arising from the use or
enjoyment of all or any portion thereof or from any lease or agreement now or
hereafter pertaining thereto (the "Rents") are hereby absolutely and
unconditionally assigned, transferred, conveyed and set over to Lender to be
applied by Lender at its option, either in payment of the Debt in such priority
and proportion as Lender, in its discretion, may deem proper, or to the
operation, maintenance and repair of the
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Mortgaged Property. Notwithstanding such assignment, Lender hereby grants to
Borrower the right to collect and retain the Rents for Borrower's own account
until an Event of Default shall occur, and upon the occurrence of any Event of
Default, the right herein granted to Borrower to collect the Rents shall, at
Lender's option, terminate.
9. Events of Default. The occurrence of any of the following events shall, at
Lender's option, constitute an "Event of Default" hereunder:
(a) Default in the payment of principal or interest on the Note when due;
(b) Default in the performance of any covenant or agreement set forth in the
Note or this Mortgage other than the payment of principal or interest on the
Note when due, which shall not be cured within 10 days after Lender gives
Borrower written notice of default;
(c) Borrower shall become insolvent or unable to pay Borrower's debts as the
same shall mature;
(d) Borrower shall file a voluntary petition in bankruptcy or a voluntary
petition seeking reorganization or to effect a plan or other arrangement with or
for the benefit of Borrower's creditors or an involuntary bankruptcy proceeding
shall be filed against Borrower and shall not be dismissed within thirty (30)
days;
(e) Borrower shall apply for or consent to the appointment of a receiver,
trustee or conservator for any portion of Borrower's property or such
appointment shall be made without Borrower's consent and shall not be vacated
within thirty (30) days;
(f) Any representation or warranty made by Borrower or any Guarantor shall
prove false or misleading in any material respect;
(g) The entry of any lien or encumbrance against the Mortgaged Property,
except for (i) taxes which are due but not yet payable, or (ii) a subordinate
mortgage securing a Construction Loan; and
(h) Default by Borrower shall occur under any lien or encumbrance not created
by this Mortgage, whether or not such default (alone or with the giving of
notice or passage of time, or both) would otherwise be a default or Event of
Default hereunder, if the effect of such default is to cause, or (immediately or
upon the giving of notice or passage of time, or both) to permit the holder or
holders (or a trustee on behalf of such holder or holders) of the indebtedness
secured by such lien or encumbrance to cause, the indebtedness secured by such
lien or encumbrance to become due prior to its stated maturity or to cause any
of the Mortgaged Property to be subject to sale to foreclose or enforce such
lien or encumbrance.
10. Remedies Upon an Event of Default.
(a) Acceleration of Debt. If an Event of Default as described in subsection
(b), (c) or (d) of Section 9 above shall occur, then without notice or any other
action of Lender, and, if any other Event of Default shall occur, then at
Lender's option, the entire unpaid balance of the Debt
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shall become immediately due and payable upon not less than 10 days' prior
written notice from Lender to Borrower.
(b) Other Remedies. Upon the occurrence of any Event of Default, in addition
to any and all rights Lender may have at law, or in equity, or under any of the
Loan Documents, Lender may immediately undertake any one or more of the
following:
(1) Foreclosure. Lender may institute an action to foreclose this Mortgage,
or take such other action as the law may allow, at law or in equity, for the
enforcement thereof and realization on the Mortgaged Property, and proceed
thereon to final judgment and judicial sale or execution thereon for the entire
unpaid balance of the Debt, including interest at the rates and pursuant to the
methods of calculation specified in the Note, together with all costs of suit,
interest at the Applica Rate on any judgment obtained by Lender from and after
the date of any judicial sale of the Mortgaged Property until actual payment is
made to Lender of the full amount due Lender, and a reasonable attorneys' fee
for collection (to the extent now or hereafter permitted by law), any law, usage
or custom to the contrary notwithstanding.
(2) Entry. Lender personally, or by its agents or attorneys, may enter into
and upon any of the Mortgaged Property and may exclude Borrower and its agents
wholly therefrom without liability for trespass, damages or otherwise and
Borrower agrees to surrender possession to Lender on demand after the happening
of any Event of Default. Upon such an entry, Lender may: (i) use, operate,
manage and control the Mortgaged Property and conduct the business thereof,
either personally or by its ag or receivers and exercise all rights and powers
of Borrower with respect thereto either in the name of Borrower or otherwise as
Lender shall deem best; (ii) restore the Mortgaged Property; (iii) complete the
construction of any Improvements under construction or renovation and in the
course of such completion may make such changes in the contemplated or completed
Improvements as Lender may deem desirable and may insure the same; and (iv) do
all such maintenance as to Lender may seem advisable. Lender shall be entitled
to collect and receive all Rents, and after deducting the expenses of conducting
the business thereof and of all maintenance and amounts necessary to pay for
liens, encumbrances, impositions, premiums for insurance and other proper
charges upon any of the Mortgaged Property, as well as just and reasonable
compensation for the services of Lender and for all attorneys (to the extent now
or hereafter permitted by law) and agents properly engaged and employed by
Lender, Lender shall apply the remaining Rents first, to the Debt, and second,
to the payment of any other sums required to be paid by Borrower under any of
the Loan Documents. Lender shall be liable to account only for Rents actually
received by Lender.
(3) Receivership. Lender may have a receiver appointed to enter into
possession of the Mortgaged Property, collect the Rents and apply the same as
the court may direct. Lender shall be entitled to the appointment of a receiver
without the necessity of proving either the inadequacy of the security or the
insolvency of Borrower or any other person who may be legally or equitably
liable to pay or perform any of the Debt, and Borrower and each such person
shall be deemed to have waived su proof and to have consented to the appointment
of such receiver. Should Lender or any receiver collect Rents, the moneys so
collected shall not be substituted for payment of the Debt nor can they be used
to cure the Event of Default, without the prior written consent of Lender.
Borrower hereby expressly consents to the appointment of a receiver for the
Mortgaged Property upon the occurrence of any Event of Default, and waives any
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requirement for the posting of any bond or other security in connection with
such appointment and such receiver, and for any hearing in connection with such
appointment.
(4) Sale of Personal Proper1y. Lender shall have such rights and remedies in
respect of any personal property included in the Mortgaged Property as are
provided by the Code and such other rights and remedies in respect thereof which
Lender may have at law or in equity or under any of the Loan Documents,
including the right to take possession of the Mortgaged Property wherever
located and to sell all or any portion thereof at public or private sale,
without prior notice to Borrower, exc as otherwise required by law (and if
notice is required by law, after five [5] days' prior written notice), at such
place or places and at such time or times and in such manner and upon such
terms, whether for cash or on credit, as Lender in its sole discretion may
determine. Lender shall apply the proceeds of any such sale first to the payment
of the reasonable costs and expenses incurred by Lender in connection with such
sale or collection, including reasonable attorneys' fees and legal expenses (to
the extent now or hereafter permitted by law), and second to the payment of the
Debt, and then to pay the balance, if any, as required by law. Upon the
occurrence of any Event of Default, Borrower, upon demand by Lender, shall
promptly assemble any personal property included in the Mortgaged Property and
make it available to Lender at a place to be designated by Lender which shall be
reasonably convenient to Lender and Borrower. Both Borrower and Lender shall be
eligible to purchase any part or all of such property at any such disposition.
(5) Provisions Regarding Sale of Mortgaged Property. The purchaser at any
sale or foreclosure sale hereunder may disaffirm any easement granted or lease
made in violation of any provision of this Mortgage, and may take immediate
possession of the Mortgaged Property free from, and despite the terms of, such
grant of easement or lease. Borrower hereby expressly waives any right which
Borrower may have to direct the order in which any of the Mortgaged Property
shall be sold in the event any sale or sales pursuant hereto. Lender, at its
option, may set aside any declared acceleration of maturity of the Note,
whereupon the terms and provisions therein stated and the covenants, terms and
conditions in this Mortgage shall revive and continue with the same force and
effect as if such acceleration had not occurred. In the event of a sale or other
disposition of any of the Mortgaged Property, and the execution of a deed or
other conveyance pursuant thereto, the recitals in such deed or conveyance of
facts, such as default, the giving of notice of default and notice of sale,
terms of sale, purchaser, payment of purchase money, and any other fact
affecting the regularity or validity of such sale or disposition, shall be
conclusive proof of the truth of such facts; and any such deed or conveyance
shall be conclusive against all persons as to such facts recited therein. In
case of any sale under this Mortgage, the Mortgaged Property may be sold in one
parcel and as an entirety or in such parcels, manner or order as Lender in its
sole discretion may elect.
11. Waivers and Releases. Borrower, for itself and its successors in title,
hereby wholly waives the period of redemption and any right of redemption of any
of the Mortgaged Property after sale upon foreclosure of this Mortgage, as
provided under any law of the State of Kansas now or hereafter in effect.
Borrower, for itself and its successors in title, hereby waives all rights at
law or in equity to have the Mortgaged Property marshalled in the event of the
foreclosure of this Mortgage. Borrower will not at any time insist upon, plead,
or in any manner whatsoever claim or take any benefit or advantage of any
present or future laws pertaining to the administration of the estates of
decedents, exempting any of the Mortgaged Property from attachment, levy or sale
under execution, or providing for any stay of execution, exemption from
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civil process, or extension of time for payment, or providing for the valuation
or appraisal of any of the Mortgaged Property prior to any sale or sales thereof
which may be made pursuant to any provision herein, or pursuant to the decree,
judgment or order of any court. Borrower hereby covenants not to hinder, delay
or impede the execution of any power herein granted or delegated to Lender, but
to suffer and permit the execution of every power as though no such law or laws
had been made or enacted. Borrower hereby fully and absolutely waives and
releases all rights and claims it may have in or to any of the Mortgaged
Property as a homestead exemption.
12. Transfer, Sale or Encumbrance. In the event that Borrower shall, without
the prior written approval of Lender, sell, assign, grant, convey, transfer,
mortgage, lease or encumber the Mortgaged Property or any part thereof (directly
or indirectly, whether by operation of law or otherwise), or agree to do so,
other than a subordinate mortgage securing a Construction Loan, the entire
unpaid balance of the Debt shall, at the option of Lender, become immediately
due and payable,
13. Mortgage as Security Agreement. Lender shall have, in respect of so much
of the Mortgaged Property as may be covered by the Code, such rights and
remedies as are provided by the Code and such other rights and remedies in
respect thereof which it may have at law or in equity or under the Note or this
Mortgage. This Mortgage shall constitute a security agreement as defined in the
Code In the Additional Collateral. Borrower will on demand deliver all financing
statements that may from time to time be requested by Lender to establish and
perfect the priority of Lender's security interest in the Mortgaged Property and
shall pay all expenses incurred by Lender in connection with the renewal or
continuation of any financing statements executed in connection with the
Mortgaged Property; and shall give advance written notice of any proposed change
in Borrower's name, identity or structure and will execute and deliver to Lender
prior to or concurrently with such change all additional financing statements
that Lender may require to establish and perfect the priority of Lender's
security interest.
14. Amendment. This Mortgage may be amended only by an instrument in writing
executed by Borrower and Lender.
15. Notices. All notices, demands, requests and consents required under this
Mortgage shall be in writing, and shall be deemed properly given: (i) if
delivered personally; (ii) if sent by United States certified or registered mail
with return receipt requested; or (iii) if sent by Federal Express or other
express air delivery service, in each such case (except for personal delivery)
with postage or charges prepaid or billed to sender, and addressed if to
Borrower at Borrower's address hereinabove set forth, or if to the Lender, at
the Lender's address hereinabove set forth, or at such other address or
addresses as any party hereto may hereafter designate for itself by written
notice to each other party hereto. Notices, demands and requests shall be deemed
sufficiently served or given for all purposes hereunder: (i) if served by
certified or registered mail, three (3) days after the time such notice, demand
or request shall be deposited for mailing in any Post Office; (ii) if sent by
express air delivery service, on the day following delivery thereof to such
express air delivery service; or (iii) in each case, on the date of actual
receipt, if earlier.
16. Nonwaiver, Etc. Any failure by Lender to insist upon the strict
performance by Borrower of any of the provisions hereof shall not be deemed to
be a waiver of any of the provisions hereof, and Lender, notwithstanding any
such failure, shall have the right thereafter to insist upon the strict
performance by Borrower of any of the provisions of this Mortgage. Neither
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Borrower nor any other person now or hereafter obligated for any of the Debt
shall be relieved of such obligation by reason of the failure of Lender to
comply with any request of Borrower or of any other person so obligated to take
action to foreclose this Mortgage or otherwise enforce any of the provisions of
this Mortgage, or by reason of the release, regardless of consideration, of any
of the security held for any of the Debt or by reason of any agreement or
stipulation between any subsequent owner or owners of the Mortgaged Property and
Lender extending the time of payment or modifying the terms of the Note without
first having obtained the consent of Borrower or such other person, and in the
latter event, Borrower and all such other persons shall continue liable to make
such payments according to the terms of any such agreement of extension or
modification unless expressly released and discharged in writing by Lender.
17. Lender's Expenses. Borrower shall promptly pay upon request all expenses
and costs incurred by Lender, together with interest thereon at the Applicable
Rate from the date of the payment thereof by Lender, in connection with (a) any
action, proceeding, litigation or claim instituted or asserted by or against
Lender or any bankruptcy, reorganization, arrangement, receivership or similar
proceeding, wherein it becomes necessary in the opinion of Lender to protect
Lender's interests in the Mortgaged Property or the security afforded hereby, or
the validity or effectiveness of any assignment of any claim, award, payment,
insurance policy or any other right or property conveyed, encumbered or assigned
by Borrower to Lender hereunder, or the priority of any of the same; (b) any
further assurances requested by Lender under Section 1, or any other provision
hereof, including all filing and recording costs and costs of searches; (c) all
taxes, fees and other assessments, including mortgage registration taxes, if
any, upon any documents or transactions contemplated hereby or in connection
with the recording and filing of this Mortgage; (d) the collection of the Debt,
including realization upon any of the Mortgaged Property; and (e) the collection
and application of any insurance proceeds and condemnation awards. All such
expenses and costs, with interest thereon at the Applicable Rate, shall be added
to and become part of the Debt and be secured by this Mortgage; provided,
however, that in any action to foreclose this Mortgage or to recover or collect
the sums due hereunder, the provisions of law and of this Mortgage relative to
the recovery of costs, disbursements, commissions, and allowances shall prevail
over any conflicting requirements of this Section. The provisions of this
Section shall survive payment of the Debt and any release of this Mortgage.
18. Usury Savings Provision. It is the intention of the parties to conform
strictly to all applicable usury laws ("Usury Laws"). All agreements contained
in the Loan Documents are expressly limited so that in no contingency or event
whatsoever, whether by reason of the making of advances on account of the Debt,
or otherwise, shall the amount paid or agreed to be paid to the Lender for the
use, forbearance or detention of money exceed the highest lawful rate
permissible under any applicable Usury Law. If, from any circumstances
whatsoever, compliance with any of the Loan Documents, at the time performance
thereunder shall be due, shall involve transcending the limit of validity under
any Usury Law then, ipso facto, the obligations to be fulfilled shall be reduced
to the limit of such validity. If from any circumstance, the Lender shall ever
receive as interest an amount which would exceed the highest lawful rate, such
amount which would be excessive interest shall be applied to the reduction of
the unpaid principal balance due under the Note and not to the payment of
interest. This provision shall control every other provision of all agreements
between Borrower and Lender; provided, however, that there shall be no automatic
reduction of such, payments or obligations as to any party barred by law from
availing itself in any action or proceeding of the defense of usury, or any
party barred or exempt from the operation of any Usury Law, or in the event and
to the extent the loan evidenced by the
8
Note, because of its amount or purpose or for any other reason is exempt from
the operation of the Usury Law.
19. Governing Law; Successors. This Mortgage shall be construed and enforced
in accordance with the internal laws (without regard to the conflict of law
rules) of the State of Kansas. The covenants, conditions and agreements
contained in this Mortgage shall bind, and the benefits thereof shall inure to,
the respective parties hereto and their respective heirs, executors,
administrators, successors and assigns.
20. Lender Not Liable. Lender, in its status as lender, shall not be
responsible or liable in any way for any condition in or upon any of the
Mortgaged Property (whether or not discovered by Lender), including any
condition relating to the presence on the Mortgaged Property of any substance
regarded by any governmental authority as being a toxic or hazardous waste or
substance, or any defects in any of the Mortgaged Property or any personal
injury, death, damage to property, loss, cost, liability, damage or expense in
any way arising out of or connected with the condition or maintenance of any of
the Mortgaged Property or any construction or other work thereon, or Borrower's
use and occupancy of the Mortgaged Property.
WITNESS the due execution hereof the day and year first above written.
COR DEVELOPMENT LLC, a Kansas limited
liability company
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
9
IN WITNESS WHEREOF, Borrower has duly executed this Note as of the day and
year first above written.
COR DEVELOPMENT LLC, a Kansas limited
liability company
By: ____________________________________
Printed Name: __________________________
Title: _________________________________
3
STATE OF )
) SS.
COUNTY OF )
ON THIS ____ day of ____________ 2000, before me, the undersigned, a Notary
Public in and for said County and State, personally appeared __________________,
to me personally known to be the person described in and who executed the
foregoing instrument, who, being by me duly sworn, stated that (s)he is
_____________________ of COR DEVELOPMENT LLC, a Kansas limited liability
company, and that (s)he executed such instrument on behalf of said limited
liability company with due authority, and said person acknowledged to me that
(s)he executed such instrument as the free act and deed of said limited
liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year last above written.
_________________________________________________
Printed Name: ___________________________________
Notary Public
My Commission Expires:
_____________________________
10
EXHIBIT A
Legal Description of the Land
THE WEST 92 ACRES OF THE NW1/4 OF SECTION 33, TOWNSHIP 13, RANGE 25, IN XXXXXXX
COUNTY, KANSAS, LESS AND EXCEPT THAT PART IN PUBLIC STREETS AND ROADS, AND LESS
AND EXCEPT THE FOLLOWING-DESCRIBED TRACT:
EXCEPTED TRACT (CHURCH OF THE RESURRECTION--UNITED METHODIST): ALL THAT PART
OF THE NW1/4 OF SECTION 33, TOWNSHIP 13, RANGE 25, NOW IN THE CITY OF
LEAWOOD, XXXXXXX COUNTY, KANSAS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF THE NW1/4 OF SAID SECTION 33; THENCE N 2
05' 05" W, ALONG THE WEST LINE OF THE NW1/4 OF SAID SECTION 33, A DISTANCE OF
1,286.51 FEET; THENCE N 87 54' 55" E, ALONG A LINE PERPENDICULAR TO THE WEST
LINE OF THE NW1/4 OF SAID SECTION 33, A DISTANCE OF 68.22 FEET, TO A POINT OF
CURVATURE; THENCE EASTERLY AND SOUTHEASTERLY, ALONG A CURVE TO THE RIGHT
HAVING A RADIUS OF 625 FEET AND A CENTRAL ANGLE OF 31 08' 13", A DISTANCE OF
339.65 FEET, TO A POINT OF REVERSE CURVATURE; THENCE SOUTHEASTERLY, EASTERLY
AND NORTHEASTERLY, ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 650 FEET, A
CENTRAL ANGLE OF 81 18' 37" AND WHOSE INITIAL TANGENT BEARING IS S 60 56' 52"
E, A DISTANCE OF 922.44 FEET, TO A POINT OF REVERSE CURVATURE; THENCE
NORTHEASTERLY AND EASTERLY, ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF 600
FEET, A CENTRAL ANGLE OF 34 26' 53" AND WHOSE INITIAL TANGENT BEARING IS N 37
44' 31" E, A DISTANCE OF 360.74 FEET, TO A POINT OF TANGENCY; THENCE N 72 11'
24" E, A DISTANCE OF 14.31 FEET, TO A POINT ON THE CENTERLINE OF 137TH
STREET, AS NOW ESTABLISHED, SAID POINT ALSO BEING ON THE WEST LINE OF THE
EAST 68 ACRES OF THE NW1/4 OF SAID SECTION 33; THENCE S 1 50' 17" E, ALONG
THE WEST LINE OF THE EAST 68 ACRES OF SAID SECTION 33, ALONG THE WEST LINE OF
LOT 1, CHURCH OF THE RESURRECTION, A SUBDIVISION OF LAND NOW IN THE CITY OF
LEAWOOD, XXXXXXX COUNTY, KANSAS AND ALONG THE WEST LINE OF BLOCK 1 OF QUAIL
CREST, A SUBDIVISION OF LAND NOW IN THE CITY OF LEAWOOD, A DISTANCE OF
1,532.30 FEET, TO THE XXXXXXXXX XXXXXX XX XXX 00, XXXXX 1 OF SAID QUAIL
CREST, SAID POINT ALSO BEING ON THE SOUTH LINE OF THE NW1/4 OF SAID SECTION
33; THENCE S 87 51' 49" W, MEASURED, (S 89 48' 34" W, PLATTED) ALONG THE
SOUTH LINE OF THE NW1/4 OF SAID SECTION 33, A DISTANCE OF 1,532.06 FEET, TO
THE POINT OF BEGINNING, CONTAINING 43.843 ACRES MORE OR LESS.
THE ABOVE-DESCRIBED EXCEPTED TRACT IS NOW PLATTED AS XXX 0, XXXXXX XX XXX
XXXXXXXXXXXX, XXXXXX XXXX, A SUBDIVISION IN THE CITY OF LEAWOOD, XXXXXXX
COUNTY, KANSAS.
TERMINATION OF STREET AGREEMENT
THIS AGREEMENT is made and entered into on ____________, 2000, by and between
L & F LAND COMPANY, a Kansas general partnership ("L&F"), and CHURCH OF THE
RESURRECTION - UNITED METHODIST, a Kansas not-for-profit corporation ("COR"), to
be effective as of the "Effective Date" (hereinafter defined).
RECITALS:
A. L&F and COR entered into (i) a certain Real Estate Contract dated as of
April 23, 1998 (the "First Sale Contract"), pursuant to which COR acquired from
L&F approximately 43.252 acres of land in Xxxxxxx County, Kansas, located south
of 000xx Xxxxxx and east of Xxxx Avenue (the "COR Parcel"), and (ii) a certain
000xx Xxxxxx Escrow and Construction Agreement dated as of August 5, 1998 (the
"Escrow Agreement") with Xxxxxxx Title of Kansas City, Inc. ("Escrow Agent").
The provisions of Section 12 of the First Sale Contract and the provisions of
the Escrow Agreement are herein collectively called the "Street Agreement."
B. Pursuant to the Street Agreement, L&F and COR each have an obligation to
pay one-half the cost of constructing proposed 000xx Xxxxxx adjacent to the COR
Parcel, each of them has deposited the sum of $150,300.00 toward its said
obligation (the "Street Escrow Deposits"), and COR is obligated to cause 000xx
Xxxxxx to be constructed.
C. L&F has entered into a Real Estate Contract dated January 24, 2000 (the
"Second Sale Contract"), with Xxxxxx X. Xxxxx, not individually but solely as
nominee for the benefit of COR (the "Buyer"), pursuant to which L&F has agreed
to sell and the Buyer has agreed to purchase an additional approximately 44.904
acres of land located at the southeast xxxxx of 000xx Xxxxxx and Xxxx Avenue in
Xxxxxxx County, Kansas (the "Additional Parcel"), upon and subject to the terms,
provisions and conditions set forth in the Second Sale Contract.
D. The Second Sale Contract contemplates that the Buyer will assign all of
its rights and obligations thereunder to COR Development LLC, a Kansas limited
liability company (the "Buyer's Assignee"), and that the Buyer's Assignee will
apply for and diligently pursue approval from the Securities and Exchange
Commission (the "SEC") for a registration statement to become effective with
respect to the proposed public offering of membership interests in Buyer's
Assignee relating to the proposed acquisition and development of the Additional
Parcel by the Buyer's Assignee (the "SEC Approval"). The Second Sale Contract
and all obligations of the Buyer thereunder are conditioned upon the Buyer's
Assignee having obtained the SEC Approval within the time set forth therein.
E. The parties desire to terminate the Street Agreement and release each
other from all obligations and liability thereunder effective upon the issuance
of the SEC Approval, and thereupon to instruct the Escrow Agent to promptly
deliver to each party free of escrow its respective Street Escrow Deposit
together with all interest earned thereon.
1
NOW, THEREFORE, in consideration of mutual covenants and other good and
valuable consideration the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Termination of Street Agreement. The parties hereby terminate the Street
Agreement in its entirety effective upon the issuance of the SEC Approval, which
termination shall automatically be effective, without any further act or
agreement of the parties, on the date on which the SEC issues the SEC Approval
(the "Effective Date"). Notwithstanding that the termination of the Street
Agreement shall take effect automatically as aforesaid, COR shall, immediately
upon issuance of the SEC Approval, to furnish copies thereof to L&F and the
Escrow Agent.
2. Mutual Releases. Effective on and as of the Effective Date, each of L&F
and COR (each, "Releasing Party") hereby fully, finally and completely releases
and discharges the other party (each, "Released Party") from any and all
obligations, liabilities, claims, demands, actions, causes of action, damages
and judgments of every kind and nature, whether known or unknown, actual or
anticipated, liquidated or contingent, both in law and in equity, which the
Released Party now has, has ever had, or may ever have had under, pursuant to,
arising out of or in any way relating to the Street Agreement; and Releasing
Party agrees never to file any suit or claim in any court against Released Party
with respect to the subject matters of the releases herein granted. The
foregoing mutual releases shall automatically be effective, without any further
act or agreement of the parties, on and as of the Effective Date.
3. Disbursement of Escrowed Funds. On or before the Effective Date, L&F and
COR shall execute and deliver joint instructions, in form and substance
reasonably satisfactory to each of them, directing the Escrow Agent to disburse,
on the Effective Date, all of the escrowed funds under the Escrow Agreement and
terminate such escrow.
3. Entire Agreement. This agreement contains the entire agreement of L&F and
COR with respect to the subject matter hereof, and there are no other terms,
conditions, promises, understandings, statements or representations, express or
implied, concerning the same.
4. Successors and Assigns. This agreement shall be binding upon and inure to
the benefit of L&F and COR and their respective successors and assigns.
5. Applicable Law. This agreement shall be governed by and construed in
accordance with the laws of the State of Kansas.
6. Severability. Invalidation of any provision of this agreement or of the
application thereof to any person, party or circumstance by judgment or court
order shall in no way affect any other provision hereof or the application of
such other provisions to any other person, party or circumstance, and the same
shall remain in full force and effect.
2
7. Counterparts. This agreement may be executed by the parties on separate
counterparts or on counterpart signature pages, all of which, taken together,
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Termination of Street
Agreement on the day and year first above written, to be effective as of the
Effective Date.
L&F LAND COMPANY, a Kansas general partnership
By: LANER REAL ESTATE HOLDINGS, L.L.C.,
a Missouri limited liability company,
its General Partner
By:_________________________________________
Xxxxxx X. Xxxxx, Managing Member
CHURCH OF THE RESURRECTION - UNITED METHODIST,
a Kansas not-for-profit corporation
By: ____________________________________________
Printed Name: __________________________________
Title: _________________________________________
3
JOINT DISBURSEMENT AUTHORIZATION AND
TERMINATION OF ESCROW
Xxxxxxx Title File No. 98040950
Date: ________________, 2000
TO: Xxxxxxx Title of Kansas City ("Escrow Agent")
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxx Xxxxx
Fax: (000) 000-0000 - Phone: (000) 000-0000
SELLER: L & F Land Company
c/o Xx. Xxxxxx X. Xxxxx
0000 Xxxx 00xx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxx 00000
Fax: (000) 000-0000 - Phone: (000) 000-0000
BUYER: Church of the Resurrection--United Methodist
00000 Xxx
Xxxxxxx, Xxxxxx 00000
Attn: Xxx. Xxxx X. Xxxxxxxx, Senior Pastor
Fax: (000) 000-0000 - Phone: (000) 000-0000
ESCROW: For construction of proposed 000xx Xxxxxx pursuant to 000xx
Xxxxxx Escrow and Construction Agreement dated as of August 5,
1998, among Seller, Buyer and Escrow Agent
Seller and Buyer hereby terminate the escrow, hereby direct Escrow Agent to
deliver a final accounting to Buyer and Seller, and hereby authorize and direct
Escrow Agent to disburse all of the Escrowed Funds as follows:
1. To Escrow Agent, in payment of its total Escrow Fee, the sum of $200.00
(i.e., $100.00 per disbursement to be made as hereafter provided).
2. To Seller, by hand delivery of Escrow Agent's check to Seller's address set
forth above, the sum of $150,300.00 plus all interest earned thereon from
the date of deposit into escrow by Seller on August 14, 1998, to the date of
disbursement.
3. To Buyer, by hand delivery of Escrow Agent's check to Buyer's address set
forth above, the sum of $150,300.00 plus all interest earned thereon from
the date of deposit into escrow by Buyer on December 21, 1998, to the date
of disbursement.
SELLER: BUYER:
L&F LAND COMPANY CHURCH OF THE RESURRECTION--
By: LANER REAL ESTATE HOLDINGS UNITED METHODIST
L.L.C., General Partner
By: ____________________________ By: _____________________________________
Xxxxxx X. Xxxxx, Name: ___________________________________
Managing Member Title: __________________________________
