EXHIBIT 10.08
XXXXXXX MONEY CONTRACT
THIS XXXXXXX MONEY CONTRACT ("Contract") is entered into as of
the Effective Date (defined below) between Xxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxx, and Xxxxxxx Property Company No. Two, L.P., a Texas
limited partnership, (collectively referred to herein as the
"Seller"), and Surety Bank, N.A., a national banking association,
("Purchaser"). Sometimes Seller and Purchaser are individually
referred to in this Contract as a "party" and collectively as the
"parties."
In consideration of the mutual covenants set forth in this
Contract and for other valuable consideration, which the parties
acknowledge receiving, Seller and Purchaser agree as follows:
1. Sale and Purchase.
(a) Subject to the terms and conditions set forth in
this Contract, Seller agrees to sell and convey to Purchaser, and
Purchaser agrees to purchase and accept from Seller, for the
Purchase Price (defined below):
(1) The tract of land situated in Tarrant County,
Texas, more particularly described as follows:
Lots 9R, Block 8, a revision of a portion of
Xxxx 0, 0, 00, 00, 00, Xxxx of Xxx 0, Xxxxx
00, XXXXXXXX XXXXX ADDITION and Xxx 0, Xxxxx
0, XXXXXXXX XXXXX XXXXXXXX, Xxxx Xxxxx, Texas,
commonly referred to as 0000 XXXXXX XXXXXX,
XXXX XXXXX, XXXXX
together with all easements, rights-of-way, licenses, interests,
rights, and appurtenances appertaining thereto, if any ("Land");
(2) Any and all buildings, structures, open
parking areas, and other improvements located on the Land
("Improvements");
(3) All fixtures, equipment, appliances,
furniture, furnishings, and other personal property owned by Seller
and attached to or located in or on the Land ("Personal Property");
(4) All rights, titles, and interests of Seller in
and to any easements, rights-of-way, or other interests in, on, or
to any land, alley, highway, or street in, on, across, abutting, or
adjoining the Land; and all rights, titles, and interests of Seller
in and to any awards, if any, made or to be made, or payments made
or to be made in lieu thereof, and in and to any unpaid awards, if
any, for damage thereto by reason of a change of grade of any such
highway or street;
(5) All rights, titles, and interests of Seller in
all leases, subleases, and other rental agreements (written or
verbal; now or hereafter in effect) that grant a possessory
interest in and to any space situated in the Improvements
(6) All rights, titles, and interests of Seller in
all service contracts, warranties, guaranties, bonds, and insurance
policies relating to the Property (as hereinafter defined) that
Purchaser elects to have transferred and assigned to Purchaser as
hereinafter set forth ("Property Agreements");
(7) All site plans, surveys, soil, and substrata
studies, architectural drawings, plans and specifications,
engineering plans and studies, floor plans, landscape plans, and
other plans or studies of any kind in Seller's possession, if any,
which relate to the Property;
(8) All utility records and other records of
operating expenses, promotional material, and other materials of
any kind in Seller's possession, if any, which are or may be used
in the continuing operation of the Property;
(9) All rights, titles, and interests of Seller in
and to any and all assignable utility, escrow, security, damage,
lease, and/or any other deposits ("Deposits") established in
connection with the Property; and
(10) Any and all other rights, titles, interests,
privileges, and appurtenances owned by Seller, if any, and in any
way related to, or used in connection with, the ownership or
operation of the Property.
(b) The above-listed items are herein collectively
called the "Property." Seller shall convey, assign, and transfer
all the Property to Purchaser at the Closing (as hereinafter
defined) free and clear of all liens, claims, easements, rights-of-
way, reservations, restrictions, encroachments, mineral interests,
royalty interests, oil, gas, or mineral leases and any other
encumbrances of whatsoever nature (herein, collectively called the
"Encumbrances") except those Encumbrances appearing in the Title
Commitment (as hereinafter defined) that either are not objected
to, or, if objected to, are not cured and that are subsequently
waived pursuant to Section 3 hereof (the "Permitted Encumbrances").
(c) Because more than one lot or parcel is required to
obtain the Property desired for Purchaser's proposed use, it is a
condition to Closing (defined below) that all the lots or parcels
together form one contiguous lot or parcel, and each parcel forming
the larger parcel share its interior boundary lines with the other
parcel or parcels so that, if Purchaser so elects, the two lots or
parcels can be re-platted into a single lot or parcel. However, it
is not a condition to Closing that the parcels be re-platted prior
to Closing.
2. Purchase Price and Xxxxxxx Money.
(a) The purchase price ("Purchase Price") for the
Property is One Million Dollars ($1,000,000).
(b) The Purchase Price is payable in cash or by wire
transfer at the Closing.
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(c) Within three (3) business days after the Effective
Date, Purchaser shall deliver to Title Company (defined below)
$25,000 ("Xxxxxxx Money"), either by wire transfer or by a
certified or cashier's check payable to the order of Title Company.
The Xxxxxxx Money will be held in escrow in an interest-bearing
account accruing to the benefit of the party entitled to the
Xxxxxxx Money under this Contract. Delivery of the Xxxxxxx Money
is a condition precedent to the effectiveness of this Contract. If
the contemplated transaction is consummated in accordance with this
Contract, the Xxxxxxx Money will be applied to the Purchase Price
at the Closing. If the transaction is not so consummated, the
Xxxxxxx Money will be held and delivered by the Title Company as
provided below.
3. Title Commitment and Survey.
(a) Within twenty-one (21) days after the Effective
Date, Seller, at Seller's sole cost and expense, shall deliver or
cause to be delivered to Purchaser the following:
(1) Owner's Commitment for Title Insurance ("Title
Commitment") from Southwest Land Title Company, Lincoln Plaza
Branch, Dallas, Texas ("Title Company"), which Title Commitment
shall set forth the status of the title of the Property and shall
show all Encumbrances and other matters affecting the Property; and
(2) A true and legible copy of all documents
referred to in the Title Commitment, including but not limited to
lien instruments, plats, reservations, restrictions, and easements.
(b) Within twenty-one (21) days after the Effective
Date, Purchaser may, at its election and at its sole cost and
expense, obtain a survey ("Survey") consisting of a plat and field
notes describing the Property. After the Survey has been prepared,
the legal description from the Survey will be substituted for the
legal description of the Property contained herein as if the legal
description from the Survey had originally been a part of the
Contract, and Seller agrees to execute any other documents
reasonably required by Purchaser to evidence the continued validity
of this Contract. The description of the Property prepared as a
part of the Survey will be used in all the documents set forth
herein that require a description of the Property.
(c) If the Title Commitment or Survey fails to show
indefeasible fee simple title to the Property to be in Seller, free
and clear of all Encumbrances, then Purchaser shall give Seller
written notice thereof, within ten (10) days after receipt of the
Title Commitment, the attendant documents thereto, and the Survey,
specifying Purchaser's objections ("Objections"), if any. If
Purchaser gives such notice to Seller, Seller shall cure the
Objections.
(d) If Purchaser gives such notice of Objections and
Seller does not cure the Objections and cause the Title Commitment
and Survey to be amended to give effect to matters that are cured
within the ten (10) day period following receipt of the written
notice of Objections from Purchaser, Purchaser will have the right
to either (i) terminate this Contract without penalty by giving
written notice thereof to Seller and Title Company at any time
within five (5) days after the end of such ten (10) day period, the
Xxxxxxx Money will be returned to Purchaser and neither party will
have any further rights or obligations hereunder; or (ii) waive the
Objections and consummate the purchase of the Property subject to
the Objections that will be deemed to be Permitted Encumbrances.
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4. Feasibility Period.
(a) As used in this Contract, "Feasibility Period" means
the period beginning on the Effective Date and ending at 5:00 p.m.,
Fort Worth, Texas time, on the date that is sixty (60) days after
the Effective Date. Purchaser, in its sole discretion, may extend
the Feasibility Period for an additional thirty (30) day period by
depositing with Title Company the amount of Twenty Five Thousand
Dollars ($25,000) on or before the expiration of the initial sixty
(60) day period, which amount, along with the original $25,000
Xxxxxxx Money, will, upon such payment, become non-refundable
except for Seller's default or breach of this Contract.
(b) Purchaser may terminate its obligation to purchase
the Property at any time during the Feasibility Period without
penalty if Purchaser, in its sole discretion, concludes that the
Property is not suitable for its contemplated development.
Purchaser must exercise its termination rights under this Section
4(b) by delivering written notice to Seller at any time during the
Feasibility Period. Upon Seller's receipt of such a notice during
the Feasibility Period, Seller will instruct the Title Company to
deliver the Xxxxxxx Money to Purchaser, and neither party will have
any further rights or obligations under this Contract, except as
set forth in Section 4(c) and (d). If Purchaser does not send such
a notice during the Feasibility Period, it will be deemed to have
elected to proceed with purchasing the Property.
(c) (1) Seller will permit Purchaser and its
contractors and agents to enter upon the Land to inspect and test
the Property (including soil borings and environmental tests) as
Purchaser deems necessary or desirable, and all at Purchaser's
expense. Purchaser must repair any damages to the Land resulting
from any inspection or testing conducted by it or at its direction.
Purchaser agrees to indemnify and defend Seller, and hold Seller
harmless against, all liens, claims, and liability arising out of
or related to Purchaser's or its contractors' or agents'
inspections and tests in accordance with this Section 4(c)(1),
including personal injuries or death, even if such liens, claims,
or liability was caused by Seller's concurrent negligence.
(2) Purchaser's obligations and indemnity under
this Section 4(c) survive the Closing or earlier termination of
this Contract.
(d) Within five (5) days following the Effective Date,
Seller shall provide Purchaser with all written information that
Seller possesses with regard to the Property, including, but not
limited to, all Property Agreements, copies of all tax statements
for the immediately preceding and, if available, for the current
year, certificates of occupancy, any "as-built" plans and
specifications for the Improvements, true and correct copies of all
leases relating to the Property, a complete and itemized inventory
of the Personal Property, the 1997 survey relating to the Property
prepared by Xxxxx X. Xxxxxx, and any existing environmental reports
(the "Information"). If this Contract is terminated before
Closing, Purchaser will return the Information to Seller.
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(e) As consideration for holding the Property available
for its purchase during the Feasibility Period, Purchaser has paid
Seller $100 ("Independent Contract Consideration"), which amount
the parties bargained for and agreed to as consideration for
Seller's execution and delivery of this Contract. Seller may
retain the Independent Contract Consideration even if this Contract
is terminated. The Independent Contract Consideration is
nonrefundable and does not apply to the Purchase Price.
5. Termination, Default, and Remedies.
(a) Purchaser will be in default under this Contract if
(i) it fails or refuses to purchase the Property at the Closing, or
(ii) it fails to perform any of its other obligations either before
or at the Closing. Purchaser will not be in default, however, if
it terminates this Contract when it has an express right to
terminate or when Seller fails to perform its obligations under
this Contract. If Purchaser is in default, then Seller, as its
exclusive remedy, is entitled to terminate this Contract by giving
written notice to Purchaser before or at the Closing. Following
the termination notice, neither party will have any further rights
or obligations under this Contract except as set forth in Section
4(c) and (d) above. Title Company will then deliver the Xxxxxxx
Money to Seller as liquidated damages, free of any claims by any
person, including Purchaser. The Xxxxxxx Money to which Seller may
be entitled is the parties' reasonable forecast of just
compensation for the harm that Purchaser's breach would cause,
which is otherwise impossible or very difficult to estimate
accurately.
(b) Seller will be in default under this Contract if (i)
it fails or refuses to sell the Property at the Closing, or (ii) it
fails to perform any of its other obligations either before or at
the Closing. Seller will not be in default, however, if it
terminates this Contract when it has an express right to terminate
or when Purchaser fails to perform its obligations under this
Contract. If Seller is in default, then Purchaser, as its
exclusive remedies, is entitled either (i) to enforce specific
performance of Seller's obligations under this Contract with
respect to the Property, or (ii) to terminate this Contract by
giving written notice to Seller before or at the Closing, whereupon
neither party will have any further rights or obligations under
this Contract except as set forth in Section 4(c) and (d) above.
Title Company will then deliver the Xxxxxxx Money to Purchaser,
free of any claims of any person, including Seller.
(c) If this Contract terminates or is terminated in
accordance with its terms, Purchaser shall execute, acknowledge,
and deliver to Seller upon demand a recordable instrument
evidencing such termination and waiving and releasing Purchaser's
rights in and to the Property. If either Seller or Purchaser
becomes entitled to the Xxxxxxx Money upon termination of this
Contract, Purchaser and Seller shall deliver an instruction letter
to the Title Company directing disbursement of the Xxxxxxx Money to
the entitled party. If either party fails or refuses to sign or
deliver such an instruction letter, the refusing party shall pay
all reasonable attorneys' fees and court costs incurred by the
party so entitled to the Xxxxxxx Money.
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6. Closing.
(a) The closing ("Closing") of the sale of the Property
by Seller to Purchaser will occur in the Title Company's office on
or before fifteen (15) days immediately following the termination
of the Feasibility Period, on a date mutually agreed upon by
Purchaser and Seller.
(b) At the Closing, all the following must occur, all of
which are concurrent conditions:
(1) Seller, at its expense, shall deliver or cause
to be delivered to Purchaser the following:
(i) A Special Warranty Deed ("Deed") in the
form of Exhibit A executed and acknowledged by Seller, conveying to
Purchaser title to the Property, subject to the Permitted
Encumbrances.
(ii) A Xxxx of Sale ("Xxxx of Sale"), fully
executed and acknowledged by Seller, conveying to Purchaser the
Personal Property subject to the Permitted Encumbrances.
(iii) The assignment, fully executed and
acknowledged by the Seller, assigning to Purchaser any property not
assigned or conveyed under the Deed or the Xxxx of Sale subject to
the Permitted Encumbrances.
(iv) An Owner Policy of Title Insurance
("Owner Policy") issued by Title Company to Purchaser for the
Purchase Price insuring that, upon Closing, Purchaser is the owner
of indefeasible fee simple title to the Property subject only to
the Permitted Encumbrances, and the standard printed exceptions
included in a Texas Standard Form Owner Policy of Title Insurance.
But the form survey exception -- at Seller's expense -- must be
limited to "shortages in area," the printed form exception for
restrictive covenants must be deleted unless one or more
restrictive covenants are included among the Permitted
Encumbrances, there must be no exception for rights of parties in
possession, and the standard exception for taxes must read:
"Standby fees, taxes and assessments by any taxing authority for
the year 1999 and subsequent years, and subsequent taxes and
assessments by any taxing authority for prior years due to change
in land usage or ownership."
(v) Copies of any permits and licenses issued
by a governmental authority relating to the Property that are in
Seller's possession.
(vi) All Deposits held by Seller with regard
to the Property.
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(vii) Evidence reasonably satisfactory to
Purchaser and the Title Company that the person executing the
closing documents on behalf of Seller has full right, power, and
authority to do so.
(viii) Seller's affidavit setting forth its
U.S. Taxpayer Identification Number, its office address, and its
statement that it is not a "foreign person" as defined in Internal
Revenue Code ss. 1445, as amended.
(2) Purchaser, at its expense, shall deliver or
cause to be delivered to Seller the following:
(i) Immediately available funds via wire
transfer in an amount equal to the Purchase Price less the Xxxxxxx
Money.
(ii) Evidence reasonably satisfactory to
Seller and the Title Company that the person executing the closing
documents on behalf of Purchaser has full right, power, and
authority to do so.
(3) Seller and Purchaser shall each pay their
respective attorneys' fees, and Purchaser shall pay all escrow and
recording fees. Purchaser may purchase, at its expense, any title
insurance coverage in excess of that provided by the Title Company
in the Owner Policy from the Title Company or any other title
company that it selects.
(c) Ad valorem and similar taxes and assessments,
utility bills, insurance premiums, and rental payments relating to
the Property will be prorated between Seller and Purchaser as of
the Closing, Purchaser being charged and credited for all of same
on and after the Closing. If the actual amounts to be prorated are
not known as of the Closing, the prorations will be made on the
basis of the best evidence then available, and thereafter, when
actual figures are received, a cash settlement will be made between
Seller and Purchaser. This Section 6(c) will survive the Closing.
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(d) Upon completion of the Closing, Seller shall deliver
to Purchaser possession of the Property free and clear of all
tenancies and parties in possession.
7. Brokers.
(a) Seller and Purchaser hereby represent and warrant
that neither party has engaged the services of any agent, broker or
other similar party in connection with this transaction except
Xxxxxxx X. Xxxxxxx ("Agent").
(b) If, but only if, the Closing of the sale of the
Property by Seller to Purchaser pursuant to this Contract is
consummated, Seller shall pay to Agent a commission for all its
services with respect thereto equal to five percent (5%) of the
Purchase Price.
(c) Purchaser has been and is hereby advised that
Purchaser should have the abstract covering the Property examined
by an attorney of Purchaser's selection or that Purchaser should be
furnished with a policy of title insurance. By Purchaser's
execution of this Contract, Purchaser acknowledges that Purchaser
has been so advised in compliance with the Texas Real Estate
License Act.
(d) If the Closing is not consummated, the Agent will
not be entitled to any portion of the Xxxxxxx Money or any other
consummation.
8. Conditions to Performance by Purchaser.
(a) Purchaser's obligations under this Contract will be
further contingent and specifically conditioned until the Closing
upon the following matters:
(1) all the representations and warranties of
Seller set forth in this Contract must be true and correct at and
as of the Closing in all material respects, as though such
representations and warranties were made at and as of the Closing;
and
(2) Seller has delivered, performed, observed, and
complied with all the items, instruments, documents, covenants,
agreements, and conditions required by this Contract to be
delivered, performed, observed, and complied with by Seller prior
to or as of the Closing.
(b) If Purchaser is not satisfied in Purchaser's sole
discretion as to all the conditions precedent described in Section
8(a), Purchaser will have the option at any time before the Closing
either to (i) terminate this Contract by giving written notice
thereof, and on such termination, Purchaser will be entitled to the
return of the Xxxxxxx Money, and neither party will have any
further rights or obligations hereunder, or (ii) elect to waive any
of the conditions in Section 8(a) and close the purchase of the
Property.
9. Seller's Covenants, Agreements, Representations, and
Warranties.
(a) Seller hereby represents and warrants to Purchaser
that:
(1) One of the parties that constitutes Seller is
a Texas limited partnership that is duly organized, validly
existing, and in good standing under the laws of the State of
Texas;
(2) Seller has all requisite power and authority
to own the Property, enter into this Contract, consummate the
transactions herein contemplated and has duly authorized the
execution and delivery of this Contract and the consummation of the
transactions herein contemplated such that all documents required
hereby to be executed by Seller will be valid, legally binding
obligations of and enforceable against Seller in accordance with
their terms;
(3) The individual or individuals executing this
Contract and all documents contemplated herein on behalf of Seller
has the legal power, right and actual authority to bind Seller to
the terms and conditions herein and therein;
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(4) Seller is the owner of good and indefeasible
fee simple title to the Property, free and clear of any
Encumbrances, except the Permitted Encumbrances;
(5) There are no actions, suits, or proceedings
pending, threatened, or asserted against Seller affecting Seller or
any portion of the Property, at law or in equity, or before or by
any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign;
(6) Seller has not received any notices of any
condemnation actions, special assessments, or increases in the
assessed valuation for taxes or other impositions of any nature
that are pending or being contemplated with respect to the Property
or any portion thereof;
(7) Seller has not received notice of any
violation of any ordinance, regulation law, or statute of any
governmental agency pertaining to the Property or any portion
thereof;
(8) To the best of Seller's knowledge, the
Improvements have been constructed in a good and workmanlike
manner, free from defects in workmanship and material, in
accordance with all applicable laws, rules, regulations, ordinances
and codes and are being (and, from the Effective Date until the
Closing, will be) occupied, maintained, and operated in compliance
with all applicable laws, regulations, insurance requirements,
contracts, leases, permits, licenses, ordinances, restrictions, and
easements, and Seller has received no notice, written or verbal,
claiming any violation of any of the same;
(9) At the Closing, there will be no unpaid bills
or claims in connection with any repair of the Improvements or
other work performed or material purchased in connection with the
Property;
(10) To the best of Seller's knowledge, no
permission, approval, or consent by third parties or governmental
authorities is required in order for Seller to consummate this
Contract;
(11) To the best of Seller's knowledge, all
existing utilities enter the Land through adjoining public streets
or private land in accordance with valid public or private
easements that will inure to the benefit of Purchaser and
Purchaser's successors and assigns. All of said utilities have
been fully installed and are operating, with all installation and
connection charges paid in full;
(12) Seller has not received any notice from any
taxing authority or governmental agency asserting that Seller has
failed to file or has improperly filed any tax return or report
required to be filed by Seller, or that Seller has not paid all
taxes, charges or assessments now owing by Seller (except current
taxes and assessments not yet delinquent) that could in any way now
or hereafter constitute a lien against the Property or any part
thereof; and no action or proceeding is now pending by a
governmental agency or authority for the assessment or collection
of such taxes, charges or assessments against Seller;
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(13) To Seller's best knowledge, information and
belief, Seller has complied with all applicable laws, ordinances,
regulations, statutes, rules, and restrictions relating to the
Property, or any part thereof, including all environmental laws and
the Americans with Disabilities Act of 1990.
(14) To Seller's best knowledge, information and
belief, neither the Property nor any part thereof is contaminated
by or contains any toxic or hazardous waste, substance, or
materials, as the same are defined or listed in 40 C.F.R. 261 and
Part 302 (collectively referred to as "Toxic Substances"), no Toxic
Substances have been stored at, disposed of, or located in, on, or
about the Property, and no permit is or has been required from the
Federal Environmental Protection Agency, or the Texas Natural
Resource Conservation Commission for the use or maintenance of any
improvement or facility on the Property. Moreover, Seller
represents that no pollutants or other toxic or hazardous
substances, including any solid, liquid, gaseous, or thermal
irritant or contaminant, such as smoke, vapor, soot, fumes, acids,
alkalis, chemicals or waste (including materials to be recycled,
reconditioned or reclaimed) have been discharged, dispersed,
released, stored, treated, generated, disposed of, or allowed to
escape on the Property.
(15) The documents, records, and information
provided by Seller pursuant to Section 3, including, but not
limited to, the tax statements, Property Agreements, certificates
of occupancy, specifications, inventory, and any other records
requested pursuant thereto constitute all such documents, records
and information held by Seller that relate to or may affect the
Property and/or the operation thereof; and
(16) No representation, warranty, or statement of
Seller in this Contract or in any document, certificate, or
schedule furnished, to be furnished, or to be available to
Purchaser pursuant hereto contains or will omit to state a material
fact necessary to make the statements or facts contained therein
not misleading.
(b) The representations, warranties, covenants, and
agreements of Seller set forth in this Section 9 and elsewhere in
this Contract will be subject to the following terms and
conditions:
(1) The representations, warranties, and covenants
of Seller will be deemed to be continuing, made both as of the
Effective Date and as of the Closing, except to the extent that
Seller otherwise notifies Purchaser in writing at or prior to
Closing. If Seller does so notify Purchaser in writing at or prior
to Closing, or if Purchaser independently discovers that any of
such representations, warranties, and covenants are no longer true,
Purchaser will have the option to either (i) terminate this
Contract without penalty by written notice to Seller, whereupon
neither party will have any further rights or obligations
hereunder, and Title Company shall deliver the Xxxxxxx Money to
Purchaser, or (ii) waive such representation, warranty, or covenant
and close on the purchase of the Property.
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(2) The representations, warranties, and covenants
of Seller will not survive the Closing.
(3) No investigation or inspection by Purchaser or
Purchaser's representatives will be deemed to have in any way
diminished or waived the representations, warranties, and covenants
of Seller set forth in this Contract, unless Seller has given
Purchaser written notice of such matters, or Purchaser has
acknowledged actual knowledge of such matters in writing prior to
the Closing.
(c) Seller hereby covenants and agrees with Purchaser
that:
(1) At all times from the Effective Date until the
Closing, Seller shall cause to be maintained in force property and
liability insurance with respect to damage or injury to persons or
property occurring on the Property in at least such amounts as are
maintained by Seller as of the Effective Date;
(2) Prior to the Closing, Seller shall maintain
the Property in as good condition and repair as exists on the
Effective Date, except for normal wear and tear and any casualty or
condemnation, and Seller may not remove any Personal Property
therefrom without replacing the items removed with items of similar
quality and utility; Seller shall keep Purchaser timely advised of
any significant repair or improvement to keep the Property in such
condition as aforesaid;
(3) Seller shall not make any material alterations
in the Property without the express written consent of Purchaser;
(4) Subject to the prorations set forth in Section
6, Seller shall cause all accounts and costs and expenses of
operation and maintenance of the Property incurred prior to the
Closing to be promptly paid when due; and
(5) Seller will not enter into, extend, renew or
replace any Property Agreements or similar agreements without the
prior written consent Purchaser.
10. Notices.
(a) Any notice under this Contract must be written.
Notices must be either (i) hand-delivered to the address set forth
below for the recipient; or (ii) placed in the United States
certified mail, return receipt requested, addressed to the
recipient as specified below; or (iii) deposited with an overnight
delivery service, addressed to the recipient as specified below; or
(iv) telecopied by facsimile transmission to the party at the
telecopy number listed below, provided that the transmission is
confirmed by telephone on the date of the transmission, and is
followed with a copy sent by overnight delivery or regular mail to
the address specified below. Any mailed notice is effective upon
deposit with the U.S. Postal Service or the overnight delivery
service, as applicable; all other notices are effective upon
receipt.
(b) Seller's address for all purposes under this
Contract is:
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Xxxxxx X. Xxxxxx
0000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxx 00000 Telephone: (000) 000-0000
Telecopy: __________________
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
0000 Xxxxxxx Xxxxx
000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx Property Company No. Two, L.P.
Attn: X. X. Xxxxxxx, Xx.
0000 Xxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
X. Xxxxx Xxxxxxx, III
Law, Snakard & Xxxxxxx, P.C.
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(c) Purchaser's address for all purposes under this
Contract is:
Surety Bank, N.A.
0000 Xxxxxxxx Xxxx Xx.
Xxxxx, Xxxxx 00000
Attention: Mr. C. Xxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx X. Xxxxxxx
Xxxxx & Xxxxxxx, L.L.P.
000 Xxxx 0xx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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(d) Either party may designate another address for this
Contract by giving the other party at least five (5) business days'
advance notice of its address change. A party's attorney may send
notices on behalf of that party, but a notice is not effective
against a party if sent only to that party's attorney.
11. Entire Agreement. This Contract (including all exhibits)
contains the entire agreement between Seller and Purchaser
regarding the subject matter of this Contract. Oral statements or
prior written matter that is not specifically incorporated into
this Contract have no force or effect. No variation, modification,
or change to this Contract will be binding on either party unless
set forth in a document signed by the parties or their duly
authorized agents, officers, or representatives.
12. Assigns. This Contract inures to the benefit of and binds
the parties and their respective legal representatives, successors,
and permitted assigns. Purchaser may assign its rights and
obligations hereunder at any time at or prior to the Closing to any
other person or entity.
13. Time for Execution and Effective Date. If Seller has not
executed and returned a fully executed copy of this Contract to
Purchaser by 5:00 p.m., Central Daylight Time, on April 30, 1999,
this Contract will be null and void. The date on which this
Contract is executed by the last to sign of Seller and Purchaser
will be the "Effective Date" of this Contract. Upon execution by
both parties, this Contract will become a binding agreement between
Seller and Purchaser according to the terms, conditions, and
considerations set out in this Contract.
14. Time of the Essence. In all instances where either party
is required under the terms of this Contract to pay any amount or
do any act at a particular indicated time or within any indicated
period of time, it is understood that time is of the essence. All
performance dates, time schedules, and conditions precedent to
exercising any right will be strictly adhered to without delay
except where otherwise expressly provided. However, if the last
day of any time period stated in this Contract falls on a Saturday,
Sunday, legal, or banking holiday, then the duration of such time
period will be extended so that it will end on the next succeeding
day that is not a Saturday, Sunday, legal, or banking holiday.
15. Destruction, Damage, or Taking Before Closing. Before
the Closing, Seller bears the risk of loss with regard to the
Property. If, before the Closing, the Property or any substantial
portion of it is destroyed or damaged, or becomes subject to a
taking by eminent domain, Purchaser may either (i) terminate this
Contract and receive back the Xxxxxxx Money, and neither party will
have any further rights or obligations under this Contract except
as set forth in Section 4(c) and (d); or (ii) proceed with the
Closing of the Property, and Seller will assign to Purchaser all
insurance or condemnation proceeds available as a result of such
damage, destruction, or taking.
16. Terminology. All personal pronouns used in this
Contract, whether used in the masculine, feminine, or neuter
gender, will include all other genders. Unless the context
otherwise requires, words of the singular number include the plural
and in the plural include the singular. Capitalized terms used in
this Contract will have the meaning assigned thereto in this
Contract. Wherever the terms "hereof," "hereby," "herein," or
words of similar import are used in this Contract, they will be
construed as referring to this Contract in its entirety rather than
to a particular section or provision, unless the context
specifically indicates the contrary. Any reference to a particular
"article," "paragraph," or "section" will be construed as referring
to the indicated article or section of this Contract. Seller and
Purchaser are herein sometimes referred to individually as a
"party" and collectively as the "parties."
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17. Disclaimer. Except as specifically stated in this
Contract or the Deed, Seller will convey the Property "AS IS."
Purchaser expressly acknowledges that, in consideration of Seller's
agreements, except as otherwise specified in this Contract or in
the Deed, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT LIMITED
TO, ANY WARRANTY OF THE PROPERTY'S CONDITION, HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Purchaser
acknowledges that it is sophisticated in the purchase of real
property and is entering into this Contract in reliance on its own
abilities and investigation and not on any representation,
warranty, or agreement of Seller, other than as stated in this
Contract and the Deed. Purchaser acknowledges that no
representations have been made by Seller or its agents or employees
to induce Purchaser to enter into this transaction other than as
expressly stated in this Contract and the Deed. Purchaser further
acknowledges that neither Seller nor its agents or employees have
made any representation or warranty to Purchaser concerning the
Property's investment potential or resale at any future date, nor
has Seller or its agents rendered any advice or expressed any
opinion to Purchaser regarding any tax consequences of owning the
Property. This Section 17 survives the Closing.
18. Counterparts. This Contract may be executed in multiple
counterparts, each of which will be an original and all such
counterparts together will represent but one and the same
instrument; but in making proof of this Contract it will not be
necessary to produce or account for more than one such counterpart.
This Contract becomes effective when one or more of the
counterparts has been signed by each of the parties and delivered
to the other party. By signing this Contract, each party
acknowledges that such party has received a duplicate original of
this Contract.
19. Governing Law. This Contract is governed by and must be
construed in accordance with Texas law.
20. Performance of Contract. The obligations under this
Contract are performable in Tarrant County, Texas, and any payments
under this Contract are to be made in Tarrant County, Texas.
21. Venue. The parties consent that venue of any action
brought under this Contract will be in Tarrant County, Texas.
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22. Severability. If any provision in this Contract is found
to be invalid, illegal, or unenforceable, and the basis of the
bargain between the parties is not destroyed or rendered
ineffective thereby, its invalidity, illegality, or
unenforceability will not affect any other provision, and this
Contract must be construed as if the invalid, illegal, or
unenforceable provision had never been contained in it. Moreover,
so far as is reasonable and possible, effect will be given to the
intent manifested by the portion held invalid, illegal, or
unenforceable. It is further the intention of Seller and Purchaser
that if any provision of this Contract is capable of two
constructions, one of which would render the provision invalid,
illegal, or unenforceable and the other of which would render the
provision valid, legal, or enforceable, then the provision will
have the meaning that renders it valid, legal, or enforceable.
23. Attorneys' Fees. If any action at law or in equity is
necessary to enforce or interpret this Contract, the prevailing
party will be entitled to reasonable attorneys' fees, costs, and
necessary disbursements in addition to any other relief to which
that party may be entitled.
24. Foreign Person. If Seller is not a "foreign person," as
defined in the Federal Foreign Investment in Real Property Tax Act
of 1980 and the 1984 Tax Reform Act, as amended (the "Federal Tax
Law"), then at the Closing Seller will deliver to Purchaser a
certificate so stating, in a form complying with Federal Tax Law.
If Seller is a "foreign person" or if Seller fails to deliver the
required certificate at the Closing, then in either such event the
funding to Seller at the Closing will be adjusted to the extent
required to comply with the withholding provisions of the Federal
Tax Law; and although the amount withheld will still be paid at the
Closing by Purchaser, it will be retained by a mutually acceptable
escrow agent for delivery to the Internal Revenue Service together
with the appropriate Federal Tax Law forwarding forms (and with
copies being provided both to Seller and to Purchaser). The
following parties are hereby approved as mutually acceptable escrow
agents in the event that withholding is warranted in accordance
with the immediately preceding sentence (listed in order of
decreasing preference): Title Company, Purchaser's "independent
CPA" (i.e., a certified public accountant who is associated with an
independent CPA firm), Purchaser's "outside counsel" (i.e., a
licensed attorney who is associated with an independent law firm),
Seller's "independent CPA," Seller's "independent attorney," and a
mutually acceptable financial institution.
25. Survival. Seller and Purchaser expressly agree that all
provisions of this Contract that contemplate performance after the
Closing will survive such Closing of this Contract. Moreover, no
provision of this Contract will be deemed to have been merged into
the closing of any purchase of any interest in the Property or the
closing of any other transaction contemplated or provided for under
any provision of this Contract, or any document given in connection
therewith.
26. Covenant of Further Assurances. From time to time after
the execution of this Contract, Seller shall, at Purchaser's
request, and without further consideration, execute, acknowledge,
and deliver to Purchaser any and all instruments and other writings
and do all other acts or things reasonably requested by Purchaser
in order to evidence and effect the consummation of any of the
transactions contemplated by this Contract. Purchaser shall do
likewise at Seller's request.
-15-
EXECUTED as of the Effective Date.
SELLER: XXXXXXX PROPERTY COMPANY NO. TWO, L.P., a Texas limited
partnership
By: Xxxxxxx Property Management Co., L.L.C.
By: /s/ X. X. Xxxxxxx, Xx.
X. X. Xxxxxxx, Xx., Managing Member
Date: April 29, 1999
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
Date: May 6, 1999
/s/ Xxxxxxx X. Xxxxx
XXXXXX X. XXXXX, by Xxxxxxx X. Xxxxx,
Agent and Attorney-In-Fact
Date: May 6, 1999
PURCHASER: SURETY BANK, N.A., a national banking association
By: /s/ X. X. Xxxxxxxxxxx, III
X. X. Xxxxxxxxxxx, III, Executive Vice President
Date: April 28, 1999
Receipt of $25,000 Xxxxxxx Money is acknowledged in the form of
Purchaser's cashier's check no. C15207 dated April 26, 1999. Title
Company is also signing to acknowledge its agreement to comply with
the provisions of this Contract pertaining to the delivery of the
Xxxxxxx Money depending on whether the transaction contemplated by
this Contract closes.
SOUTHWEST LAND TITLE COMPANY
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Escrow Officer
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Exhibit A
Special Warranty Deed
STATE OF TEXAS ss
ss KNOW ALL PEOPLE BY THESE PRESENTS:
COUNTY OF TARRANT ss
That Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, and Xxxxxxx Property
Company No. Two, L.P., a Texas limited partnership (collectively,
"Grantor"), for and in consideration of the sum of Ten Dollars
($10.00) cash and other good and valuable consideration paid by
Surety Bank, N.A., a national banking association ("Grantee"), whose
mailing address is 0000 Xxxxxxxx Xxxx Xxxx, Xxxxx, Xxxxx 00000, the
receipt of which is hereby acknowledged, HAVE GRANTED, BARGAINED,
SOLD and CONVEYED, and by these presents GRANT, BARGAIN, SELL and
CONVEY unto Grantee all that certain land situated in Tarrant County,
Texas, and described on Exhibit A which is attached hereto and
incorporated herein by reference for all purposes, together with any
improvements and appurtenances thereon or in anywise appertaining
thereto ("Property").
This conveyance is made subject to the matters affecting title
to the Property specified in Exhibit B attached hereto and made a
part hereof ("Permitted Encumbrances").
TO HAVE AND HOLD the Property, together with all and singular
the rights and appurtenances thereunto belonging, unto Grantee, and
Grantee's successors and assigns forever, and Grantor binds Grantor,
and Grantor's successors and assigns to WARRANT and FOREVER DEFEND,
all and singular the Property unto Grantee and Grantee's successors
and assigns, against every person whomsoever lawfully claiming or to
claim the same or any part thereof, by, through, or under Grantor,
but not otherwise, and further subject to the Permitted Encumbrances.
Ad valorem taxes on the property having been prorated, the
payment thereof is assumed by Grantee.
EXECUTED THIS _____ day of____________, 1999.
GRANTOR: XXXXXXX PROPERTY COMPANY NO.
TWO, L.P., a Texas limited
partnership
By: __________________________
,
__________________________
Xxxxxx X. Xxxxxx
__________________________
Xxxxxx X. Xxxxx
STATE OF TEXAS ss
ss
COUNTY OF TARRANT ss
On this the _____ day of ____________, 1999, before me, the
undersigned, a Notary Public in and for said State, personally
appeared ________________________________, to me known to be the
_________________ of Xxxxxxx Property Company No. Two, L.P., a Texas
limited partnership, and acknowledged to me that the said instrument
is the free and voluntary act of the limited partnership, for the
uses and purposes therein mentioned, and on oath stated that he is
authorized to execute the said instrument.
WITNESS MY HAND and official seal of hereto affixed the day,
month and year in this certificate first above written.
Notary Public, State of Texas
(Print or Type Notary's Name)
My Commission Expires:
STATE OF TEXAS ss
ss
COUNTY OF TARRANT ss
This instrument was acknowledged before me this ______ day of
___________, 1999, by Xxxxxx X. Xxxxxx.
Notary Public, State of Texas
(Print or Type Notary's Name)
My Commission Expires:
-2-
STATE OF TEXAS ss
ss
COUNTY OF TARRANT ss
This instrument was acknowledged before me this ______ day of
___________, 1999, by Xxxxxx X. Xxxxx.
Notary Public, State of Texas
(Print or Type Notary's Name)
My Commission Expires:
-3-
FIRST AMENDMENT TO
XXXXXXX MONEY CONTRACT
THIS FIRST AMENDMENT ("First Amendment") TO XXXXXXX MONEY
CONTRACT ("Agreement") is made and entered into this 25th day of
June, 1999 by and between Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxx, and
Xxxxxxx Property Company No. Two, L.P., a Texas limited
partnership, hereinafter collectively referred to as "Seller," and
Surety Bank, N.A., a national banking association, hereinafter
referred to as "Purchaser."
WHEREAS, the parties to the Agreement desire to extend the
Feasibility Period and Closing Date (as those terms are defined in
the Agreement) in consideration of the payment of an additional
$25,000 by Purchaser to Seller on the terms and conditions set
forth in this First Amendment.
For and in consideration of the covenants, terms and
conditions of the Agreement and the mutual benefits to Seller and
Purchaser established by this First Amendment, Seller and Purchaser
agree as follows:
1. Paragraph 2(c) is amended in its entirety to read as
follows:
"(c) Within three (3) business days after the
Effective Date, Purchaser shall deliver to
Title Company (defined below) $25,000
("Xxxxxxx Money"), either by wire transfer or
by a certified or cashier's check payable to
the order of Title Company. On or before June
28, 1999, Purchaser shall deliver to Title
Company an additional $25,000 (the "Additional
Xxxxxxx Money"), either by wire transfer or by
certified or cashier's check payable to the
order of Title Company for immediate
disbursement to Seller. Upon receipt by Title
Company of the Additional Xxxxxxx Money, Title
Company shall immediately disburse such
Additional Xxxxxxx Money to Seller. The
Additional Xxxxxxx Money shall become part of
the Xxxxxxx Money, and any reference to
"Xxxxxxx Money" in this Contract shall also
include the "Additional Xxxxxxx Money." The
Xxxxxxx Money (other than the Additional
Xxxxxxx Money) will be held in escrow in an
interest-bearing account accruing to the
benefit of the party entitled to the Xxxxxxx
Money under this Contract. Delivery of the
Xxxxxxx Money is a condition precedent to the
effectiveness and continued effectiveness of
this Contract. If the contemplated
transaction is consummated in accordance with
this Contract, the Xxxxxxx Money will be
applied to the Purchase Price at the Closing.
If the transaction is not so consummated, the
Xxxxxxx Money will be held and delivered by
the Title Company as provided below."
2. Paragraph 4(a) is amended in its entirety to read as
follows:
"(a) As used in this Contract, "Feasibility Period"
means the period beginning on the Effective Date and
ending at 5:00 p.m., Fort Worth, Texas time, on July 28,
1999."
3. Paragraph 4(b) is amended in its entirety to read as
follows:
"(b) Purchaser may terminate its obligation to
purchase the Property at any time during the Feasibility
Period without penalty if Purchaser, in its sole
discretion, concludes that the Property is not suitable
for its contemplated development. Purchaser must
exercise its termination rights under this Section 4(b)
by delivering written notice to Seller at any time during
the Feasibility Period. Upon Seller's receipt of such a
notice at any time during the Feasibility Period, Seller
will instruct the Title Company to deliver the Xxxxxxx
Money to Purchaser, and neither party will have any
further rights or obligations under this Contract, except
as set forth in Section 4(c) and (d); provided, however,
in the event Seller receives such a notice after June 28,
1999, Seller shall retain the Additional Xxxxxxx Money.
If Purchaser does not send such a notice during the
Feasibility Period, it will be deemed to have elected to
proceed with purchasing the Property."
4. The beginning of the last sentence of Paragraph 5(b) is
amended by the addition of the words "and Seller (to the extent of
the Additional Xxxxxxx Money)" after Title Company.
5. Paragraph 6(a) is amended in its entirety to read as
follows:
"(a) The closing ("Closing") of the sale of the
Property by Seller to Purchaser will occur in the Title
Company's office on or before July 30, 1999, on a date
mutually agreed upon by Purchaser and Seller."
6. Paragraph 6(c) is amended in its entirety to read as
follows:
"(c) Ad valorem and similar taxes and assessments,
utility bills, insurance premiums, and rental payments
relating to the Property will be prorated between Seller
and Purchaser as of June 1, 1999, Purchaser being charged
and credited for all of same on and after June 1, 1999.
If the actual amounts to be prorated are not known as of
the Closing, the prorations will be made on the basis of
the best evidence then available, and thereafter, when
actual figures are received, a cash settlement will be
made between Seller and Purchaser. This Section 6(c)
will survive the Closing."
Except as specifically amended by this First Amendment, the
Agreement shall remain in full force and effect.
-2-
Executed in counterparts as of the date first written above.
SELLER: XXXXXXX PROPERTY COMPANY NO. TWO, L.P., a Texas limited
partnership
By: Xxxxxxx Property Management Co., L.L.C.
By: /s/ X. X. Xxxxxxx, Xx.
X. X. Xxxxxxx, Xx., Managing Member
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxx
XXXXXX X. XXXXX, by Xxxxxxx X. Xxxxx,
Agent and Attorney-In-Fact
PURCHASER: SURETY BANK, N.A., a national banking association
By: /s/ C. Xxxx Xxxx
C. Xxxx Xxxx, Chairman
Receipt of $25,000 Additional Xxxxxxx Money is acknowledged in the
form of Purchaser's cashier's check no. 05373 dated June 25 1999.
Title Company is also signing to acknowledge its agreement to
comply with the provisions of this First Amendment pertaining to
the delivery of the Additional Xxxxxxx Money.
SOUTHWEST LAND TITLE COMPANY
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Escrow Officer
-3-
