Exhibit 10.2
CONTRIBUTION, CONVEYANCE AND
ASSUMPTION AGREEMENT
This Contribution, Conveyance and Assumption Agreement, dated as of March
___, 2007 is entered into by and among HPG ACQUISITION LLC, a Texas limited
liability company (formerly HAMPSHIRE PLAZA GARAGE, LLC, a New Hampshire limited
liability company) (the "Company"); TCTB PARTNERS, LTD, a Texas ------- limited
partnership, ("TCTB Partners") as nominee for AMEN PROPERTIES, INC., a Delaware
corporation, XXXX X. XXXXX, XXXX X. XXXXX, XXXXXX BROTHERS INVESTMENTS, a Texas
general partnership, XXXX XXXXXXXXX, XXXX XXXXXXX and XXX XXXXXX (collectively
the "Old TCTB Group"), and S.E.S. INVESTMENTS, LTD., a Texas limited partnership
("SES"), XXXXXX X. XXXXXX, III, ("Xxxxxx") XXXX X. XXXX PENSION PLAN ("Xxxx")
and XXXXXXX X. XXXXXX, and UNIVERSAL GUARANTY LIFE INSURANCE COMPANY,
(collectively the "Initial Members").
The foregoing shall be referred to individually as a "Party" and
collectively as the "Parties".
R E C I T A L S:
WHEREAS, the HAMPSHIRE PLAZA GARAGE, LLC was formed by the Initial Members
pursuant to the laws of the State of New Hampshire to own and operate
certain real estate properties;
WHEREAS, the Company was formed by the Initial Members pursuant to the
laws of the State of Texas, and HAMPSHIRE PLAZA GARAGE, LLC, merged with
the Company, with the Company being the surviving entity;
WHEREAS the Company, SES and the Old TCTB Group currently own, as tenants
in common, all interests in certain commercial properties in Midland,
Texas;
WHEREAS, the Metro Building Owners (hereinafter defined) currently hold
title to a commercial property known as the Metro Building in Midland,
Texas and desire to contribute their ownership of such property to the
Company;
WHEREAS the Company owns additional properties in Midland. Texas that it
desires to continue to hold for investment purposes; and
WHEREAS, the Parties have determined that it is in the best interests of
the parties to consolidate ownership of the properties in one entity, and
thus the Old TCTB Group, the Metro Building Owners and SES desire to
contribute their ownership interests in certain commercial real properties
to the Company in exchange for membership interests in the Company.
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the Parties undertake and agree as follows:
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ARTICLE I
Definitions and Schedules
1.1 Definitions. The following capitalized terms have the meanings given below:
(a) "Agreement" means this Contribution, Conveyance and Assumption
Agreement.
(b) "Assets" has the meaning assigned to such term in Section 4.1.
(c) "Company Agreement" means the First Amended and Restated Company
Agreement of the Company, as it may be amended and restated from time to
time.
(d) "Effective Date" means March 1, 2007.
(e) "Effective Time" means 12:01 a.m. Central Standard Time on the
Effective Date.
(f) "Hampshire Assets" means collectively, the interests in the Assets
owned by the Company prior to the execution of this Agreement, as set
forth on Schedule 2.4.
(g) "Individual Assignments" has the meaning assigned to such term in
Section 2.3.
(h) "Liabilities" means all obligations and liabilities associated with
the Assets.
(i) "Laws" means any and all laws, statutes, ordinances, rules or
regulations promulgated by a governmental authority, orders of a
governmental authority, judicial decisions, decisions of arbitrators or
determinations of any governmental authority or court.
(j) "Metro Building Owners" means Xxx Xxxxxx, Xxxx Xxxxxxx, Xxxx and
Xxxxxx.
(k) "Metro Building Owner Assets" means collectively, the interests in the
Assets owned by the Metro Building Owners, as set forth on Schedule 2.3.
(l) "Old TCTB Group Assets" means collectively, the interests in the
Assets owned by the Old TCTB Group, as set forth on Schedule 2.1.
(m) "Party and Parties" have the meanings assigned to such terms in the
first paragraph of this Agreement.
(n) "Sharing Ratios" means the Sharing Ratios (as defined in the Company
Agreement) of the Parties following the transaction contemplated by this
Agreement.
(o) "TCTB Company Agreement" means the company agreement of TCTB
Management entered into by the members of TCTB Management dated September
29, 2006.
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(p) "TCTB Sharing Ratios" means the Sharing Ratios (as defined in the TCTB
Company Agreement) of the Parties in TCTB Management prior to the
transaction contemplated by this Agreement.
1.2 Schedules. The following schedules are attached hereto:
Schedule 2.1 - Description of Old TCTB Group Assets;
Schedule 2.2 - Description of SES Assets;
Schedule 2.3 - Description of Metro Building Owner Assets;
Schedule 2.4 - Description of Hampshire Assets;
Schedule 2.5 - TCTB Sharing Ratios;
Schedule 2.6 - HPG Acquisition New Sharing Ratios;
Schedule 3.1 - Schedule of Additional Capital Contributions
Schedule 7.3 - First Amended and Restated Company Agreement
ARTICLE II
Closing Transactions
2.1 Contribution of Old TCTB Group Assets to Company. The Old TCTB Group hereby
contributes and conveys to the Company all of its fee simple and other ownership
interests in the Old TCTB Group Assets effective as of the Effective Date.
TO HAVE AND TO HOLD the Old TCTB Group Assets unto the Company, their
respective successors and assigns, in such undivided interests, together with
all and singular the rights and appurtenances thereto in anywise belonging,
subject, however, to the terms and conditions stated in this Agreement forever.
The Company will issue membership interest in the Company to each member of
the Old TCTB Group in the amounts set forth on Schedule 2.6, and each member of
the Old TCTB Group acknowledges the receipt of membership interest in the
Company as consideration for the contributions of undivided interests in the Old
TCTB Group Assets.
2.2 Contribution of SES Assets to Company. SES hereby contributes and conveys to
the Company all of its interest in the SES Assets.
TO HAVE AND TO HOLD the SES Assets unto the Company, their respective
successors and assigns, in such undivided interests, together with all and
singular the rights and appurtenances thereto in anywise belonging, subject,
however, to the terms and conditions stated in this Agreement forever.
The Company will issue membership interest in the Company to SES in the
amounts set forth on Schedule 2.6, and SES acknowledges the receipt of
membership interest in the Company as consideration for the contributions of
undivided interests in the SES Assets.
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2.3 Individual Assignments. To further evidence the contributions of the Assets
reflected in this Agreement, each Contributing Party (hereinafter defined)
making such contribution shall have executed and delivered to the Company
certain conveyance, assignment and xxxx of sale instruments (the "Individual
Assignments"). The Individual Assignments shall evidence and perfect such
contributions and conveyances made by this Agreement and shall not constitute a
second conveyance of any assets or interests therein and shall be subject to the
terms of this Agreement, and the language of the Individual Assignments shall be
controlling as to the conveyances.
2.4 Contribution of Metro Building Owners Assets to Company. The Metro Building
Owners hereby contribute and convey to the Company all of its interest in the
Metro Building Owners Assets.
TO HAVE AND TO HOLD the Metro Building Owners Assets unto the Company,
their respective successors and assigns, in such undivided interests, together
with all and singular the rights and appurtenances thereto in anywise belonging,
subject, however, to the terms and conditions stated in this Agreement forever.
The Company will issue membership interest in the Company to the Metro
Building Owners in the amounts set forth on Schedule 2.6, and the Metro Building
Owners acknowledge the receipt of membership interest in the Company as
consideration for the contributions of undivided interests in the Metro Building
Owners Assets.
ARTICLE III
Additional Capital Contributions and Assumption of Obligations
3.1 Additional Capital Contributions. In connection with the contribution of the
Assets to the Company, the Old TCTB Group, the Metro Building Owners and SES
acknowledge that prior to this Agreement, the Company owned 100% of three
properties in Midland, Texas, with an agreed value of $2,100,000, but subject to
debt in the amount of $373,862. Additionally, the Company, the Old TCTB Group
and SES acknowledge that the Metro Building Owners are contributing a 100%
interest in the property known as the Metro Building, in Midland, Texas, with an
agreed value of $175,000. Accordingly, SES and the Old TCTB Group agree to make
additional capital contributions in the form of cash in the amounts set forth on
Schedule 3.1 in order to have Sharing Ratios in the Company equal to the TCTB
Sharing Ratios. Such capital contributions shall be made within five (5)
businesses days of the execution of this Agreement. After the additional capital
contributions are made by the Old TCTB Group and SES, the Metro Building Owners
will make the contribution of the Metro Building, and the Sharing Ratios will be
adjusted to reflect the addition value contributed by the Metro Building Owners.
The final Sharing Ratios reflecting all additional capital contributions by the
Old TCTB Group, SES and the Metro Building Owners are set forth on Schedule 2.6.
3.2 Assumption of Obligations and Rights. In connection with the contribution of
the Assets to the Company, as set forth above, the Company hereby assumes and
agrees to duly and timely pay, perform and discharge all of the obligation of
the Contributing parties related to the Properties, to the full extent that the
Contributing Party (hereinafter defined) has been heretofore or would have been
in the future obligated to pay, perform and discharge such obligation were it
not for such contribution and the execution and delivery of this Agreement. The
Company will be entitled to all revenues related to the Assets accruing after
the Effective Date.
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3.3 General Provisions. Notwithstanding anything to the contrary contained in
this Agreement including, without limitation, the terms and provisions of this
Article III, none of the parties shall be deemed to have assumed, and none of
the Assets have been or are being contributed subject to any liens or security
interests securing consensual indebtedness covering any of the assets, except to
the extent set forth in Section 4.1 below, and all such liens and security
interests shall be deemed to be excluded from the assumptions of liabilities
made under this Article III.
ARTICLE IV
Title Matters
4.1 Encumbrances.
(a) Each Contributing Party represents that that the Assets contributed by
such Contributing Party are free from liens and encumbrances. The Parties
acknowledge that the Hampshire Assets are subject to a debt in the amount of
$373,862 in favor of First National Bank, Midland, Texas, and payable by the
Company.
(b) To the extent that certain jurisdictions in which the Assets are
located may require that documents be recorded in order to evidence the
transfers of title reflected in this Agreement, then the provisions set
forth in Section 4.1(a) immediately above shall also be applicable to the
conveyances under such documents.
4.2 Disclaimer of Warranties; Subrogation.
(a) EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT EXECUTED OR
DELIVERED IN CONNECTION WITH THIS AGREEMENT, THE PARTIES ACKNOWLEDGE AND
AGREE THAT NONE OF THE PARTIES HAS MADE, DOES NOT MAKE, AND EACH SUCH PARTY
SPECIFICALLY NEGATES AND DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES,
PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, PAST OR
PRESENT, REGARDING (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE ASSETS
INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL, GEOLOGY OR ENVIRONMENTAL
CONDITION OF THE ASSETS GENERALLY, INCLUDING THE PRESENCE OR LACK OF
HAZARDOUS SUBSTANCES OR OTHER MATTERS ON THE ASSETS, (B) THE INCOME TO BE
DERIVED FROM THE ASSETS, (C) THE SUITABILITY OF THE ASSETS FOR ANY AND ALL
ACTIVITIES AND USES THAT MAY BE CONDUCTED THEREON, (D) THE COMPLIANCE OF OR
BY THE ASSETS OR THEIR OPERATION WITH ANY LAWS (INCLUDING WITHOUT LIMITATION
ANY ZONING, ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES,
REGULATIONS, ORDERS OR REQUIREMENTS), OR (E) THE HABITABILITY,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE ASSETS. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT, THE PARTIES
ACKNOWLEDGE AND AGREE THAT EACH HAS HAD THE OPPORTUNITY TO INSPECT THE
RESPECTIVE ASSETS, AND EACH IS RELYING SOLELY ON ITS OWN INVESTIGATION OF
THE RESPECTIVE ASSETS AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED
BY ANY OF THE PARTIES. EXCEPT TO THE EXTENT PROVIDED IN ANY OTHER DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT, NONE OF THE PARTIES
IS LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
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REPRESENTATIONS OR INFORMATION PERTAINING TO THE ASSETS FURNISHED BY ANY
AGENT, EMPLOYEE, SERVANT OR THIRD PARTY. EXCEPT TO THE EXTENT PROVIDED IN
ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH THIS AGREEMENT,
EACH OF THE PARTIES ACKNOWLEDGES THAT TO THE MAXIMUM EXTENT PERMITTED BY
LAW, THE CONTRIBUTION OF THE ASSETS AS PROVIDED FOR HEREIN IS MADE IN AN "AS
IS", "WHERE IS" CONDITION WITH ALL FAULTS, AND THE ASSETS ARE CONTRIBUTED
AND CONVEYED SUBJECT TO ALL OF THE MATTERS CONTAINED IN THIS SECTION. THIS
SECTION SHALL SURVIVE SUCH CONTRIBUTION AND CONVEYANCE OR THE TERMINATION OF
THIS AGREEMENT. THE PROVISIONS OF THIS SECTION HAVE BEEN NEGOTIATED BY THE
PARTIES AFTER DUE CONSIDERATION AND ARE INTENDED TO BE A COMPLETE EXCLUSION
AND NEGATION OF ANY REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED
OR STATUTORY, WITH RESPECT TO THE ASSETS THAT MAY ARISE PURSUANT TO ANY LAW
NOW OR HEREAFTER IN EFFECT, OR OTHERWISE, EXCEPT AS SET FORTH IN THIS
AGREEMENT OR ANY OTHER DOCUMENT EXECUTED OR DELIVERED IN CONNECTION WITH
THIS AGREEMENT.
(b) The contributions of the Assets made under this Agreement are made with
full rights of substitution and subrogation of the respective parties
receiving such contributions, and all persons claiming by, through and under
such parties, to the extent assignable, in and to all covenants and
warranties by the predecessors-in-title of the parties contributing the
Assets, and with full subrogation of all rights accruing under applicable
statutes of limitation and all rights of action of warranty against all
former owners of the Assets.
(c) Each of the Parties agrees that the disclaimers contained in this
Section 4.2 are "conspicuous" disclaimers. Any covenants implied by statute
or law by the use of the words "grant," "convey," "bargain," "sell,"
"assign," "transfer," "deliver," or "set over" or any of them or any other
words used in this Agreement or any exhibits hereto are hereby expressly
disclaimed, waived or negated.
4.3 Indemnification by Initial Members. The Initial Members acknowledge that the
Company was involved in various business activities prior to the date of the
execution of this Agreement that could give rise to potential liabilities or
claims by third parties, or obligations to third parties. As a part of the
consideration for the New Members entering into this Agreement and becoming
Members of the Company, THE INITIAL MEMBERS AGREE TO RELEASE, PROTECT, DEFEND,
INDEMNIFY, AND HOLD HARMLESS FOREVER THE NEW MEMBERS, AND THEIR OFFICERS,
DIRECTORS, EMPLOYEES AND SUBSIDIARIES AND AFFILIATES FROM ALL CLAIMS, LIABILITY,
DAMAGES, EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES. ACCOUNTING FEES AND
COURT COSTS) OR OTHER COSTS INCURRED AS A RESULT OF ACTIVITIES, CLAIMS, DEMANDS,
LAWSUITS, CAUSES OF ACTION, OR JUDGMENTS ARISING AS A RESULT OF THE INITIAL
MEMBERS' OWNERSHIP OR OPERATION OF THE COMPANY PRIOR TO THE CLOSING DATE,
INCLUDING ANY OBLIGATIONS FOR THE PAYMENT OF TAXES, FEES, EXPENSES, ATTORNEYS
FEES, OR OBLIGATIONS OF ANY TYPE.
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4.4 Indemnification by New Members. The New Members acknowledge that they were
involved in various business activities relating to the contributed assets prior
to the date of the execution of this Agreement that could give rise to potential
liabilities or claims by third parties, or obligations to third parties. As a
part of the consideration for the Initial Members entering into this Agreement,
THE NEW MEMBERS AGREE TO RELEASE, PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS
FOREVER THE INITIAL MEMBERS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND
SUBSIDIARIES AND AFFILIATES FROM ALL CLAIMS, LIABILITY, DAMAGES, EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) OR OTHER COSTS INCURRED
AS A RESULT OF ACTIVITIES, CLAIMS, DEMANDS, LAWSUITS, CAUSES OF ACTION, OR
JUDGMENTS ARISING AS A RESULT OF THE NEW MEMBERS' OWNERSHIP OR OPERATION OF
ASSETS PRIOR TO THE CLOSING DATE, INCLUDING ANY OBLIGATIONS FOR THE PAYMENT OF
TAXES, FEES, EXPENSES, ATTORNEYS FEES, OR OBLIGATIONS OF ANY TYPE.
ARTICLE V
FURTHER ASSURANCES
5.1 Further Assurances. From time to time after the date hereof, and without any
further consideration, the Parties agree to execute, acknowledge and deliver all
such additional deeds, assignments, bills of sale, conveyances, instruments,
notices, releases, acquittances and other documents, and will do all such other
acts and things, all in accordance with applicable law, as may be necessary or
appropriate (a) more fully to assure that the applicable Parties own all of the
properties, rights, titles, interests, estates, remedies, powers and privileges
granted by this Agreement, or which are intended to be so granted (b) more fully
and effectively to vest in the applicable Parties and their respective
successors and assigns beneficial and record title to the interests contributed
and assigned by this Agreement or intended so to be and to more fully and
effectively carry out the purposes and intent of this Agreement.
ARTICLE VI
POWERS OF ATTORNEY
6.1 Contributing Parties. Each of the Parties that has contributed the Assets as
reflected by this Agreement (each a "Contributing Party") hereby constitutes and
appoints the Company its true and lawful attorney-in-fact with full power of
substitution for it and in its name, place and stead or otherwise on behalf of
the applicable Contributing Party and its successors and assigns, and for the
benefit of the Company and its successors and assigns, to demand and receive
from time to time the applicable Assets contributed and to execute in the name
of the applicable Contributing Party and its successors and assigns instruments
of conveyance, instruments of further assurance and to give receipts and
releases in respect of the same, and from time to time to institute and
prosecute in the name of the applicable Contributing Party for the benefit of
the Company as may be appropriate, any and all proceedings at law, in equity or
otherwise which the Company and its successors and assigns, may deem proper in
order to (a) collect, assert or enforce any claims, rights or titles of any kind
in and to the applicable Assets, (b) defend and compromise any and all actions,
suits or proceedings in respect of any of the applicable Assets, and (c) do any
and all such acts and things in furtherance of this Agreement as the Company or
its successors or assigns shall deem advisable. Each Contributing Party hereby
declares that the appointments hereby made and the powers hereby granted are
coupled with an interest and are and shall be irrevocable and perpetual and
shall not be terminated by any act of any Contributing Party or its successors
or assigns or by operation of law.
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ARTICLE VII
MISCELLANEOUS
7.1 Order of Completion of Transactions. The transactions provided for in
Article II (except as otherwise noted) and Article III of this Agreement shall
be completed on the Effective Date in the following order:
First, the transactions provided for in Article II, Sections 2.1 to 2.3
shall be completed in the order set forth therein, with the Individual
Assignments being recorded; and
Second, the transactions provided for in Article III shall be completed in
the order set forth therein.
Third, the transactions provided for in Article II, Section 2.4 shall be
completed in the order set forth therein.
7.2 Costs. The Company shall pay all sales, use and similar taxes arising out of
the contributions, conveyances and deliveries to be made hereunder, and shall
pay all documentary, filing, recording, transfer, deed, and conveyance taxes and
fees required in connection therewith.
7.3 Tax Basis. The Parties understand that the properties will have the same tax
basis as they had prior to the contribution and therefore each Contributing
Party may have a different allocation of tax basis inside the Company for
partnership tax purposes. The parties understand that special allocation
provisions are set forth in the Company Agreement to adjust for the differences
in tax basis. The Parties agree to execute the First Amended and Restated
Company Agreement, a copy of which is attached as Schedule 7.3, immediately
following the transactions contemplated in this Agreement.
7.4 Headings; References; Interpretation. All Article and Section headings in
this Agreement are for convenience only and shall not be deemed to control or
affect the meaning or construction of any of the provisions hereof. The words
"hereof," "herein" and "hereunder" and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole, including without
limitation, all Schedules attached hereto, and not to any particular provision
of this Agreement. All references herein to Articles, Sections, and Schedules
shall, unless the context requires a different construction, be deemed to be
references to the Articles, Sections and Schedules of this Agreement,
respectively, and all such Schedules attached hereto are hereby incorporated
herein and made a part hereof for all purposes. All personal pronouns used in
this Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders, and the singular shall include the plural and vice
versa. The use herein of the word "including" following any general statement,
term or matter shall not be construed to limit such statement, term or matter to
the specific items or matters set forth immediately following such word or to
similar items or matters, whether or not non-limiting language (such as "without
limitation," "but not limited to," or words of similar import) is used with
reference thereto, but rather shall be deemed to refer to all other items or
matters that could reasonably fall within the broadest possible scope of such
general statement, term or matter.
7.5 Successors and Assigns. The Agreement shall be binding upon and inure to the
benefit of the parties signatory hereto and their respective successors and
assigns.
7.6 No Third Party Rights. The provisions of this Agreement are intended to bind
the parties signatory hereto as to each other and are not intended to and do not
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create rights in any other person or confer upon any other person any benefits,
rights or remedies and no person is or is intended to be a third party
beneficiary of any of the provisions of this Agreement.
7.7 Counterparts. This Agreement may be executed in any number of counterparts,
all of which together shall constitute one agreement binding on the parties
hereto.
7.8 Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Texas applicable to contracts made and
to be performed wholly within such state without giving effect to conflict of
law principles thereof, except to the extent that it is mandatory that the law
of some other jurisdiction, wherein the Assets are located, shall apply.
7.9 Severability. If any of the provisions of this Agreement are held by any
court of competent jurisdiction to contravene, or to be invalid under, the laws
of any political body having jurisdiction over the subject matter hereof, such
contravention or invalidity shall not invalidate the entire Agreement. Instead,
this Agreement shall be construed as if it did not contain the particular
provision or provisions held to be invalid, and an equitable adjustment shall be
made and necessary provision added so as to give effect to the intention of the
Parties as expressed in this Agreement at the time of execution of this
Agreement.
7.10 Deed; Xxxx of Sale; Assignment. To the extent required and permitted by
applicable law, this Agreement shall also constitute a "deed," "xxxx of sale" or
"assignment" of the Assets.
7.11 Amendment or Modification. This Agreement may be amended or modified from
time to time only by the written agreement of all the Parties hereto and
affected thereby.
7.12 Integration. This Agreement, the Company Agreement, the conveyance
documents and such instruments contain the entire understanding of the Parties
with respect to the subject matter hereof and thereof. No understanding,
representation, promise or agreement, whether oral or written, is intended to be
or shall be included in or form part of this Agreement unless it is contained in
a written amendment hereto executed by the parties hereto after the date of this
Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first written above.
TCTB Partners, Ltd.
By: TCTB Company, Inc.,
its sole general partner
By: /s/ Xxx Xxxxxx
-------------------------------------
Xxx Xxxxxx, President
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AMEN PROPERTIES, INC.
By:/s/ Xxx Xxxxxx
-------------------------------------
Xxx Xxxxxx, President
/s/ XXXX X. XXXXX
-------------------------------------
XXXX X. XXXXX
/s/ XXXX X. XXXXX
-------------------------------------
XXXX X. XXXXX
/s/ XXXX XXXXXXXXX
-------------------------------------
XXXX XXXXXXXXX
MCGRAW BROTHERS INVESTMENTS
By:/s/ Xxxx X. XxXxxx
-------------------------------------
Xxxx X. XxXxxx, Managing General
Partner
/s/ XXXX XXXXXXX
-------------------------------------
XXXX XXXXXXX
/s/ XXX XXXXXX
-------------------------------------
XXX XXXXXX
/s/ XXXXXX X. XXXXXX, III
-------------------------------------
XXXXXX X. XXXXXX, III
XXXX X. XXXX PENSION PLAN
By:/s/ Xxxx X. Xxxx
-------------------------------------
Xxxx X. Xxxx, Trustee
S.E.S. INVESTMENTS, LTD.
By: S.E.S. Operating, Inc., its general
partner
/s/ Xxx Xxxxx
-------------------------------------
Xxx Xxxxx, President
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HPG ACQUISITION, LLC
By: Universal Guaranty Life Insurance
Company, Member
By:/s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx, Assistant V. P.
Universal Guaranty Life Insurance
Company, Member
/s/ Xxxx Xxxxx
-------------------------------------
Xxxx Xxxxx, Assistant V. P.
/s/ XXXXXXX X. XXXXXX
-------------------------------------
XXXXXXX X. XXXXXX
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STATE OF TEXAS
COUNTY OF MIDLAND
The foregoing instrument was acknowledged before me this ___ day of March,
2007, by Xxx Xxxxxx, the President of TCTB Company, Inc, as general partner of
TCTB Partners, Ltd., on behalf of said limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March, 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
STATE OF TEXAS
COUNTY OF MIDLAND
The foregoing instrument was acknowledged before me this ___ day of March,
2007, by Xxx Xxxxxx, the President of AMEN PROPERTIES, INC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
STATE OF TEXAS
COUNTY OF MIDLAND
The foregoing instrument was acknowledged before me this ___ day of March
2007, by XXXX X. XXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
-00-
XXXXX XX XXXXX
XXXXXX XX XXXXXXX
The foregoing instrument was acknowledged before me this ___ day of March
2007, by XXXX X. XXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
STATE OF TEXAS
COUNTY OF MIDLAND
The foregoing instrument was acknowledged before me this ___ day of March
2007, by Xxxx X. XxXxxx as Managing General Partner of MCGRAW BROTHERS
INVESTMENTS, a Texas general partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
STATE OF TEXAS
COUNTY OF MIDLAND
The foregoing instrument was acknowledged before me this ___ day of March
2007, by XXXX XXXXXXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
-00-
XXXXX XX XXXXX
XXXXXX XX XXXXXXX
The foregoing instrument was acknowledged before me this ___ day of March
2007, by XXXX XXXXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
STATE OF TEXAS
COUNTY OF MIDLAND
The foregoing instrument was acknowledged before me this ___ day of March
2007, by XXX XXXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
STATE OF TEXAS
COUNTY OF MIDLAND
The foregoing instrument was acknowledged before me this ___ day of March
2007, by XXXXXX X. XXXXXX, III.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
-00-
XXXXX XX XXXXX
XXXXXX XX XXXXXXX
The foregoing instrument was acknowledged before me this ___ day of March
2007, by XXXX X. XXXX as Trustee of the XXXX X. XXXX PENSION PLAN, on behalf of
said pension plan.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
STATE OF TEXAS
COUNTY OF MIDLAND
The foregoing instrument was acknowledged before me this ___ day of March,
2007, by Xxx Xxxxx, the President of S.E.S. Operating, Inc., as general partner
of S.E.S. Investments, Ltd., on behalf of said limited partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March, 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
-15-
STATE OF KENTUCKY
COUNTY OF ____________
The foregoing instrument was acknowledged before me this ___ day of March,
2007, by ____________________, the __________________ of Universal Guaranty Life
Insurance Company, as member of HPG Acquisition LLC a Texas limited liability
company, on behalf of said limited liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March, 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
STATE OF KENTUCKY
COUNTY OF ____________
The foregoing instrument was acknowledged before me this ___ day of March,
2007, by ____________________, the __________________ of Universal Guaranty Life
Insurance Company, on behalf of said company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March, 2007.
-------------------------------------
Notary Public in and for the State of
Texas
My commission expires:
---------------
STATE OF __________
COUNTY OF _________
The foregoing instrument was acknowledged before me this ___ day of March
2007, by XXXXXXX X. XXXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of March 2007.
-------------------------------------
Notary Public in and for the State of
________
My commission expires:
---------------
-16-
Schedule 2.1
------------
All of THE OLD TCTB GROUP's undivided 25% interest in and to the following
described assets:
(a) Real Property. Fee simple interest in those certain parcels of real
estate known as the Bank of America Building, located at 000 X. Xxxx, Xxxxxxx,
Xxxxx; the Century Plaza Building, located at 000 X. Xxxx, Xxxxxxx, Xxxxx; and
the Bank of America Drive-thru Bank, located at 000 X. Xxxxxxx, Xxxxxxx, Xxxxx,
and legally described in the Special Warranty Deed executed in connection with
this Agreement, being the land ("Lands"), together with (i) all building
structures, improvements, parking areas, roadways and fixtures located on the
Lands ("Improvements"), and (ii) all rights, privileges, easements, reversions,
water rights, development rights, air rights, servitudes and appurtenances
thereunto belonging or appertaining, and all right, title and interest of THE
OLD TCTB GROUP, if any, in and to the streets, alleys and rights-of-way adjacent
to the Lands and the Improvements (collectively, the "Real Property").
(b) Personal Property. All of the equipment, tools, supplies, machines,
furnishings and other personal property owned by THE OLD TCTB GROUP and used in
the operation of the Real Property, (all of which together are collectively
referred to as the "Personal Property").
(c) Leases. THE OLD TCTB GROUP's interest as landlord in and to the leases
with various tenants (the "Tenants") relating to the Improvements, together with
all amendments or modifications thereto (such leases, as amended, being herein
referred to as the "Leases").
(d) Permits. THE OLD TCTB GROUP's interest in and to all assignable
licenses, permits, certificates of occupancy , approvals, subdivision maps, and
entitlements, if any, owned by THE OLD TCTB GROUP and pertaining to the Real
Property and Personal Property, (all of which together are collectively referred
to as the "Permits").
(e) Warranties. THE OLD TCTB GROUP's interest in and to all unexpired,
assignable warranties and guaranties given or assigned to, or benefiting, THE
OLD TCTB GROUP, the Real Property or the Personal Property relating to the
acquisition, construction, design, use, operation, management or maintenance of
the Real Property or the Personal Property, (collectively, the "Warranties").
(f) Contracts. THE OLD TCTB GROUP's interest in all service contracts,
maintenance agreements, landscaping contracts, and maintenance contracts.
(g) Other Intangibles. THE OLD TCTB GROUP's interest in and to all other
assignable intangible property (the "Other Intangible Property") owned by THE
OLD TCTB GROUP pertaining to the Real Property and Personal Property, including,
without limitation, trade names, geotechnical reports, operating manuals, floor
plans (including any related computer aided design measurements), and landscape
plans.
-17-
Schedule 2.2
------------
All of SES's undivided 10% interest in and to the following described assets:
(a) Real Property. Fee simple interest in those certain parcels of real
estate known as the Bank of America Building, located at 000 X. Xxxx, Xxxxxxx,
Xxxxx; the Century Plaza Building, located at 000 X. Xxxx, Xxxxxxx, Xxxxx; and
the Bank of America Drive-thru Bank, located at 000 X. Xxxxxxx, Xxxxxxx, Xxxxx,
and legally described in the Special Warranty Deed executed in connection with
this Agreement, being the land ("Lands"), together with (i) all building
structures, improvements, parking areas, roadways and fixtures located on the
Lands ("Improvements"), and (ii) all rights, privileges, easements, reversions,
water rights, development rights, air rights, servitudes and appurtenances
thereunto belonging or appertaining, and all right, title and interest of SES,
if any, in and to the streets, alleys and rights-of-way adjacent to the Lands
and the Improvements (collectively, the "Real Property").
(b) Personal Property. All of the equipment, tools, supplies, machines,
furnishings and other personal property owned by SES and used in the operation
of the Real Property, (all of which together are collectively referred to as the
"Personal Property").
(c) Leases. SES's interest as landlord in and to the leases with various
tenants (the "Tenants") relating to the Improvements, together with all
amendments or modifications thereto (such leases, as amended, being herein
referred to as the "Leases").
(d) Permits. SES's interest in and to all assignable licenses, permits,
certificates of occupancy , approvals, subdivision maps, and entitlements, if
any, owned by SES and pertaining to the Real Property and Personal Property,
(all of which together are collectively referred to as the "Permits").
(e) Warranties. SES's interest in and to all unexpired, assignable
warranties and guaranties given or assigned to, or benefiting, SES, the Real
Property or the Personal Property relating to the acquisition, construction,
design, use, operation, management or maintenance of the Real Property or the
Personal Property, (collectively, the "Warranties").
(f) Contracts. SES's interest in all service contracts, maintenance
agreements, landscaping contracts, and maintenance contracts.
(g) Other Intangibles. SES's interest in and to all other assignable
intangible property (the "Other Intangible Property") owned by SES pertaining to
the Real Property and Personal Property, including, without limitation, trade
names, geotechnical reports, operating manuals, floor plans (including any
related computer aided design measurements), and landscape plans.
-18-
Schedule 2.3
------------
All of the Metro Building Owners' 100% interest in and to the following
described assets:
(a) Real Property. Fee simple interest in those certain parcels of real
estate known as the Metro Building, located at 000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxx, and legally described in the Special Warranty Deed executed in connection
with this Agreement, being the land ("Lands"), together with (i) all building
structures, improvements, parking areas, roadways and fixtures located on the
Lands ("Improvements"), and (ii) all rights, privileges, easements, reversions,
water rights, development rights, air rights, servitudes and appurtenances
thereunto belonging or appertaining, and all right, title and interest of Metro
Building Owners, if any, in and to the streets, alleys and rights-of-way
adjacent to the Lands and the Improvements (collectively, the "Real Property").
(b) Personal Property. All of the equipment, tools, supplies, machines,
furnishings and other personal property owned by Metro Building Owners and used
in the operation of the Real Property, (all of which together are collectively
referred to as the "Personal Property").
(c) Leases. Metro Building Owners' interest as landlord in and to the
leases with various tenants (the "Tenants") relating to the Improvements,
together with all amendments or modifications thereto (such leases, as amended,
being herein referred to as the "Leases").
(d) Permits. Metro Building Owners' interest in and to all assignable
licenses, permits, certificates of occupancy , approvals, subdivision maps, and
entitlements, if any, owned by Metro Building Owners and pertaining to the Real
Property and Personal Property, (all of which together are collectively referred
to as the "Permits").
(e) Warranties. Metro Building Owners' interest in and to all unexpired,
assignable warranties and guaranties given or assigned to, or benefiting, Metro
Building Owners, the Real Property or the Personal Property relating to the
acquisition, construction, design, use, operation, management or maintenance of
the Real Property or the Personal Property, (collectively, the "Warranties").
(f) Contracts. Metro Building Owners' interest in all service contracts,
maintenance agreements, landscaping contracts, and maintenance contracts.
(g) Other Intangibles. Metro Building Owners' interest in and to all other
assignable intangible property (the "Other Intangible Property") owned by Metro
Building Owners pertaining to the Real Property and Personal Property,
including, without limitation, trade names, geotechnical reports, operating
manuals, floor plans (including any related computer aided design measurements),
and landscape plans.
-19-
Schedule 2.4
------------
TRACTS 1, 2, and 3: All of the Company's undivided 65% interest in and to the
following described assets:
(a) Real Property. Fee simple interest in those certain parcels of real
estate known as the Bank of America Building, located at 000 X. Xxxx, Xxxxxxx,
Xxxxx; the Century Plaza Building, located at 000 X. Xxxx, Xxxxxxx, Xxxxx; and
the Bank of America Drive-thru Bank, located at 000 X. Xxxxxxx, Xxxxxxx, Xxxxx,
and legally described in the Special Warranty Deed executed in connection with
this Agreement, being the land ("Lands"), together with (i) all building
structures, improvements, parking areas, roadways and fixtures located on the
Lands ("Improvements"), and (ii) all rights, privileges, easements, reversions,
water rights, development rights, air rights, servitudes and appurtenances
thereunto belonging or appertaining, and all right, title and interest of the
Company, if any, in and to the streets, alleys and rights-of-way adjacent to the
Lands and the Improvements (collectively, the "Real Property").
(b) Personal Property. All of the equipment, tools, supplies, machines,
furnishings and other personal property owned by the Company and used in the
operation of the Real Property, (all of which together are collectively referred
to as the "Personal Property").
(c) Leases. the Company's interest as landlord in and to the leases with
various tenants (the "Tenants") relating to the Improvements, together with all
amendments or modifications thereto (such leases, as amended, being herein
referred to as the "Leases").
(d) Permits. the Company's interest in and to all assignable licenses,
permits, certificates of occupancy , approvals, subdivision maps, and
entitlements, if any, owned by the Company and pertaining to the Real Property
and Personal Property, (all of which together are collectively referred to as
the "Permits").
(e) Warranties. the Company's interest in and to all unexpired, assignable
warranties and guaranties given or assigned to, or benefiting, the Company, the
Real Property or the Personal Property relating to the acquisition,
construction, design, use, operation, management or maintenance of the Real
Property or the Personal Property, (collectively, the "Warranties").
(f) Contracts. the Company's interest in all service contracts, maintenance
agreements, landscaping contracts, and maintenance contracts.
(g) Other Intangibles. the Company's interest in and to all other
assignable intangible property (the "Other Intangible Property") owned by the
Company pertaining to the Real Property and Personal Property, including,
without limitation, trade names, geotechnical reports, operating manuals, floor
plans (including any related computer aided design measurements), and landscape
plans.
-20-
TRACTS 4, 5 and 6: All of the Company's 100% ownership interest in and to the
following described assets:
(a) Real Property. Fee simple interest in those certain parcels of real
estate known as 000 X. Xxxx, Xxxxxxx, Xxxxx 114 N. Big Spring, and 000 X.
Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx, and legally described in the Special Warranty
Deeds of record in Midland County, Texas, being the land ("Lands"), together
with (i) all building structures, improvements, parking areas, roadways and
fixtures located on the Lands ("Improvements"), and (ii) all rights, privileges,
easements, reversions, water rights, development rights, air rights, servitudes
and appurtenances thereunto belonging or appertaining, and all right, title and
interest of the Company, if any, in and to the streets, alleys and rights-of-way
adjacent to the Lands and the Improvements (collectively, the "Real Property").
(b) Personal Property. All of the equipment, tools, supplies, machines,
furnishings and other personal property owned by the Company and used in the
operation of the Real Property, (all of which together are collectively referred
to as the "Personal Property").
(c) Leases. the Company's interest as landlord in and to the leases with
various tenants (the "Tenants") relating to the Improvements, together with all
amendments or modifications thereto (such leases, as amended, being herein
referred to as the "Leases").
(d) Permits. the Company's interest in and to all assignable licenses,
permits, certificates of occupancy , approvals, subdivision maps, and
entitlements, if any, owned by the Company and pertaining to the Real Property
and Personal Property, (all of which together are collectively referred to as
the "Permits").
(e) Warranties. the Company's interest in and to all unexpired, assignable
warranties and guaranties given or assigned to, or benefiting, the Company, the
Real Property or the Personal Property relating to the acquisition,
construction, design, use, operation, management or maintenance of the Real
Property or the Personal Property, (collectively, the "Warranties").
(f) Contracts. the Company's interest in all service contracts, maintenance
agreements, landscaping contracts, and maintenance contracts.
(g) Other Intangibles. the Company's interest in and to all other
assignable intangible property (the "Other Intangible Property") owned by the
Company pertaining to the Real Property and Personal Property, including,
without limitation, trade names, geotechnical reports, operating manuals, floor
plans (including any related computer aided design measurements), and landscape
plans.
-21-
Schedule 2.5
TCTB Sharing Ratios
-------------------
Owner Ownership %
----- -----------
Xxxx X. Xxxxx 1.0404%
Xxxx X. Xxxxx 1.0404%
McGraw Brothers Investments 2.0808%
Amen Properties, Inc. 18.0171%
Xxxx Xxxxxxxxx 2.0065%
Xxx Xxxxxx 0.4074%
Xxxx Xxxxxxx 0.4074%
S.E.S. Investments, Ltd 10.0000%
HPG Acquisition LLC, formerly
Hampshire Plaza Garage, LLC 65.0000%
-----------
Total 100.0000%
-22-
Schedule 2.6
HPG Acquisition LLC New Sharing Ratios
--------------------------------------
New
Owner Ownership %
----- -----------
Xxxx X. Xxxxx 1.0281%
Xxxx X. Xxxxx 1.0281%
McGraw Brothers Investments 2.0562%
Amen Properties, Inc. 17.8045%
Xxxx Xxxxxxxxx 1.9828%
Xxx Xxxxxx 0.9572%
Xxxx Xxxxxxx 0.9572%
Xxxxxx X. Xxxxxx, III 0.0354%
Xxxx X. Xxxx Pension Plan 0.0354%
S.E.S. Investments, Ltd 9.8820%
Xxxxxxx Xxxxxx 21.4110%
Universal Guaranty Life Insurance 42.8200%
Company -----------
Total 100.00000%
-23-
Schedule 3.1
Additional Capital Contributions
--------------------------------
Value of Total Value Additional Capital
3 Original After 3 New Contributions
Owner Buildings Buildings Needed
------------------------------ -------------------- -------------------- --------------------
$ 12,000,000 $ 14,655,596 $ 2,655,597
Xxxx X. Xxxxx $ 124,848 $ 152,477 $ 27,629
Xxxx X. Xxxxx $ 124,848 $ 152,477 $ 27,629
McGraw Brothers Investments $ 249,696 $ 304,954 $ 55,258
$ -
Amen Properties, Inc. $ 2,162,052 $ 2,640,513 $ 478,461
Xxxx Xxxxxxxxx $ 240,780 $ 294,065 $ 53,285
Xxx Xxxxxx $ 48,888 $ 59,707 $ 10,819
Xxxx Xxxxxxx $ 48,888 $ 59,707 $ 10,819
S.E.S. Investments, Ltd $ 1,200,000 $ 1,465,560 $ 265,560
HPG Acquisition, LLC (formerly
Hampshire Plaza Garage, LLC) $ 7,800,000 $ 9,526,137 * $ 1,726,138
-------------------- ---------------------------------------------
Total $ 12,000,000 $ 14,655,596 $ 2,655,597
* HPG Acquisition, LLC already
owns three properties located
at 000 X. Xxxx, 000 X.
Xxxxxxxx Xx., and 000 X. Xxx
Xxxxxx, xx Xxxxxxx, Xxxxx
-24-
