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EXHIBIT 10.7
CONTRACT OF SALE
THIS AGREEMENT dated as of June 30, 1993 by and between XXXX XXXXXXX and
XXX XXXXXXX, husband and wife ("Seller"), and RIVERSIDE PARKWAY, INC., an
Oklahoma corporation ("Buyer").
W I T N E S E T H:
1. Agreement to Sell and Purchase. Subject to the terms and
conditions of this Agreement, Buyer hereby offers to purchase from Seller, and
Seller hereby agrees to sell to Buyer the following described property
(collectively, the "Property"):
(i) The surface of the real estate (the "Land") described as
follows:
Beginning at the southwest corner of Xxx 00, Xxxxx 00 xx
xxx Xxxx xx Xxxxxxxx; Thence, 62' in a westerly direction
across Osage Avenue, being the place of beginning; Thence,
in a northerly direction along Osage Avenue, 111'; Thence,
due westerly 16'; Thence, in a southwesterly direction
along Kikekah Avenue, 119'; Thence, in a easterly along
Main Street, 62' to the Place of Beginning;
a/k/a Triangle Building in Osage County, Oklahoma, not including all of
Seller's right, title, interest and estate in and to oil, gas and other
minerals in and under the Land not previously reserved or conveyed of record;
(ii) all of the buildings, structures and improvements in, upon
and under the Land, including but not limited to that certain office building
containing approximately 21,090 square feet of interior space, together with
those certain separate storage and garage buildings associated therewith,
including any and all permanently attached fixtures and equipment therein and
thereon including but not limited to all electrical, mechanical, heating,
ventilation, plumbing and other utility fixtures (the "Improvements");
(iii) all of the appurtenances belonging to the Land and all of
Seller's right, title and interest in and to all streets, alleys and other
public or private ways adjacent thereto, before or after vacation thereof.
(iv) The Property to be sold in "as is" condition.
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2. Purchase Price. The purchase price which Buyer shall pay to
Seller for the Property shall be FIFTY-TWO THOUSAND AND NO/100 Dollars
($52,000.00), payable in the following manner:
(a) Upon execution of this Agreement Buyer shall pay Seller as
xxxxxxx money, ONE THOUSAND FIVE HUNDRED SIXTY AND NO/100 DOLLARS ($1,560.00).
(b) At Closing, Buyer shall pay by certified check, EIGHT
THOUSAND EIGHT HUNDRED FORTY AND NO/100 Dollars ($8,840.00).
(c) Buyer, as evidenced by a promissory note shall within
thirty (30) days of closing pay principal and accrued interest for the first
year in 12 monthly installments of $843.50, with an additional $2,951.26 lump
sum due on or before August 15, 1994;
(d) Beginning August 16, 1994, buyer shall pay in 12 monthly
installments of $771.45, with an additional $3,018.29 lump sum due on or before
August 15, 1995;
(e) Beginning August 16, 1995, buyer shall pay in 12 monthly
installments of $676.87, with an additional $3,365.81 lump sum due on or before
August 15, 1996;
(f) Beginning August 16, 1996, buyer shall pay in 12 monthly
installments of $524.64, with an additional $6,031.07 lump sum due on or
before August 15, 1997. Note to be paid in full no later than August 15, 1997,
including principal and interest.
(g) Each of the foregoing monthly payments shall be payable
on or before the first of each month.
3. Time and Place of Closing. Closing shall be held at the offices
of Pawhuska Abstract & Title Company, Pawhuska, Oklahoma, as escrow agents, at
2:00 p.m., Sunday, August 15, 1993 (the "Closing Date"), at the offices of
Buyer, or at such other location or at such earlier date and time as Buyer may
select provided Buyer shall have given Seller at least ten (10) days' advance
written notice thereof. In no event shall Closing be held earlier than plus or
minus thirty (30) days from July 16, 1993.
4. Pre-Closing Requirements. Within ten (10) days from the date of
acceptance by Seller or such later time as may be provided for with respect to
specific matters Seller, at Seller's sole cost and expense (except where stated
otherwise) shall furnish, or cause to be furnished, to Purchaser each of the
following items:
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4.1 Title Insurance Commitment. Buyer shall furnish a
commitment for an ALTA 1987 owner's policy of title insurance (the
"Commitment") issued by a title company in the amount of the purchase price,
showing marketable record title to the Land and Improvements in Seller
according to the Title Standards adopted by the Oklahoma Bar Association,
subject to the recorded plat restrictions, recorded utility easements and
zoning ordinances, less and except any of the oil, gas and other minerals
previously reserved or conveyed of record, and subject to such other exceptions
or encumbrances of record which may be approved in writing by Buyer (the
"Permitted Title Exceptions"), provided, however, that the plat restrictions,
utility easements, zoning ordinances and other recorded exceptions shall not
impair the continued usage of the Property as an historical office complex.
Copies of all instruments constituting an exception in the Commitment shall
accompany the Commitment. The policy, when issued, shall (a) insure over
encroachments, overlaps, boundary line disputes and any other matters which
would be disclosed by an accurate survey and inspection and shall delete all
exceptions relating to survey matters and to mechanics' and materialmen's liens
and (b) contain an affirmative zoning endorsement.
4.2 Buyer shall pay the abstracting charges and premium, for
the owner's title policy.
5. Structural and Mechanical Inspection.
5.1. Inspection. Buyer shall have the privilege at Buyer's cost
and expense for a period of fifteen (15) days following the date hereof to have
an engineering study made by an engineer of Buyer's choice to determine that
all mechanical equipment comprising a part of the Improvements is in good
operating condition and that there are no substantial structural defects or
violations of any zoning, building or other applicable ordinance or regulation
with respect to any of the Improvements or any environmental hazard conditions.
5.2. Environmental Inspection. Buyer hereby takes full
responsibility and liability for any and all environmental hazardous conditions
and remedial measures required therefrom regarding the subject real property
and indemnify Seller of same.
6. Buyer's Objections as to Status of Title; Seller's Option to
Cure. Buyer understands it is purchasing the subject real property "as is";
however Buyer upon receipt and review of the title of the subject real property
shall be entitled to deliver to Seller any specific objections to the status of
title.
7. Insurance.
7.1 Insurance and Risk of Loss Pending Closing. Seller shall
immediately cause all fire and similar hazard insurance policies covering the
Property
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to be endorsed to protect the parties hereto as their respective interests may
appear, and shall continue the insurance in force during the life of this
Agreement. The risk of loss or damage to or destruction of the Property
occurring prior to the Closing Date shall be upon Seller. Buyer shall promptly
notify Seller of any damage to or destruction of the Property.
7.2 Insurance and Risk of Loss Subsequent to Closing. Until
the Promissory Note referred to in paragraph 2(c) is paid in full, the Buyer
agrees to maintain insurance on the Property, making Seller as an additional
loss payee, insuring the Seller in such amount reasonably necessary to protect
its interest against loss or damage to the Property.
8. Events Occurring at Closing.
8.1 Seller's Performance. Seller shall deliver to Buyer:
(a) A good and sufficient warranty deed accompanied by
necessary documentary stamps paid by Buyer, fully and duly executed and
acknowledged, conveying fee simple title in and to the Property to Buyer less
and except any of the oil, gas and other minerals previously reserved or
conveyed of record, and subject only to the Permitted Title Exceptions.
(b) A duly executed assignment of all manufacturer's
warranties, if any, relating to the Improvements.
(c) A "bills paid affidavit" executed by Seller and
verifying that there are no unpaid bills for labor performed, material supplied
or services provided for or to the Property prior to the Closing.
8.2 Buyer's Performance. Buyer shall deliver to Seller upon
closing $8,840.00 as set forth in paragraph 2(b).
9. Closing Costs.
9.1 Buyer's Costs. Buyer shall pay the following costs and
expenses in connection with the Closing:
(i) Documentary stamp taxes;
(ii) Recording fees for any title curative documents and
for the warranty deed;
(iii) 1992 Real Estate Taxes;
(iv) Abstracting charges;
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(v) Title policy premium; and,
(vi) Pawhuska Title and Abstract Co. closing costs.
9.3 Other Costs. All other expenses incurred by Seller or Buyer with
respect to the consummation of the transaction contemplated by this Agreement,
including but not limited to attorneys' fees of Buyer and Seller, are to be
borne and paid exclusively by the party incurring same, without reimbursement
except to the extent otherwise specifically provided in this Agreement.
10. Possession and Condition of the Property. Possession of the
Property shall be given to Buyer at Closing in "as is" condition.
11. Access Pending Closing. Prior to Closing, Buyer, Buyer's
agents, architects and contractors shall have the right to enter the Property,
at their own risk and at reasonable times, for the purpose of examination and
study. Entries shall be made at such times and in such a manner as to not
interfere with Seller's conduct of business on the Property. Buyer shall give
Seller at least twenty-four (24) hours advance notice of any such entry. Upon
request Seller shall deliver to Buyer, without charge, copies of all drawings,
specifications, utility plans, and other plans and engineering data with
respect to the Property that are now in the possession of Seller.
12. Seller's Representations. Seller hereby makes the following
representations to Buyer:
(a) As of the date hereof Seller has received no notice
from any governmental authority of any building code violations or any other
violations of law or governmental regulation affecting the Property which have
not been disclosed.
(b) Seller is not now a party to any litigation affecting
the Property or Seller's right to sell the Property, or any part thereof,
except as to the case referred to in paragraph 12(c).
(c) Seller knows of no condemnation or eminent domain
proceeding pending or contemplated against the Property or any part thereof,
except the case City of Pawhuska, Oklahoma, a Municipal Corporation v. Xxxx X.
Xxxxxxx, C-92-81. Representations.
(a) Buyer is an Oklahoma corporation in good standing duly
authorized to conduct business for any lawful purpose.
(b) The officers and agents of Buyer have, by proper
corporate action, been empowered to enter into this Agreement.
14. Commissions. There are no real estate commissions.
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15. Notices. Any notices required or permitted to be given by either
party to the other shall have been deemed to have been served when hand
delivered or, if the United States Mail is used, on the fifth (5th) business
day after the notice is deposited in the United States Mail, postage prepaid,
registered or certified mail, and addressed to the parties as follows:
To Seller:
Xxxx Xxxxxxx and Xxx Xxxxxxx
X X Xxx 0000
Xxxxxxxxx, Xxxxxxxxxx 00000
To Buyer:
Riverside Parkway, Inc.
0000 Xx Xxxx, Xxx 000
Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Lower
Either party, by written notice to the other, may change its address to which
notices are to be sent.
16. Default and Penalties.
16.1. Seller's Defaults; Buyer's Remedies.
(a) Seller's Defaults. Seller shall be deemed to be in
default hereunder in the event that Seller shall fail to comply with or observe
any covenant, agreement, or obligation on Seller's part to be performed within
the time limits and in the manner required herein or in the event any of the
conditions preceded described herein shall not have been complied with or
waived by Buyer.
(b) Buyer's Remedies. In the event Seller shall be
deemed to be in default by virtue of the occurrence of any one or more of the
events specified herein, Buyer may at Buyer's option do one of the following as
Buyer's sole and exclusive remedy for such default:
(i) Terminate this Agreement by written notice
delivered to Seller on or before Closing Date, in which event Buyer shall be
entitled to a return of the Deposit, plus interest; or
(ii) Enforce specific performance of this
Agreement against Seller.
16.2. Buyer's Defaults; Seller's Remedies.
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(a) Buyer's Defaults. Buyer shall be deemed to be in
default hereunder in the event that Buyer shall fail to comply with or observe
any covenant, agreement, or obligation on Buyer's part to be performed within
the time limits and in the manner required herein.
(b) Seller's Remedies. In the event Buyer shall be
deemed to be in default, Seller may, at Seller's sole option, terminate this
Agreement by written notice to Buyer and pursue any and all remedies
(cumulative rather than exclusive) under Oklahoma law.
17. Guaranty. Buyer's principal shall at closing execute a guaranty
agreement.
18. Indemnification.
18.1. Indemnification by Seller. The Seller agrees to indemnify
the Buyer and to hold the Buyer wholly harmless from any loss, damage,
liability, and expense whatsoever (including, without limitation, reasonable,
attorneys' fees and litigation expenses) resulting to the Buyer from any
inaccuracy in or breach of any material representation, warranty, covenant, or
agreement made by the Seller under this Agreement or contained in any
certificate, agreement, or document delivered or assigned to Buyer in
connection with the transactions contemplated by this Agreement. The Buyer
agrees to give the Seller prompt written notice of the assertion of any claim
of which it has knowledge which is covered by the indemnity provisions
described in this Section 19.2 and to afford the Seller an opportunity to be
represented by counsel of its choice, at its own expense, and to diligently and
in good faith defend, contest, litigate, negotiate, settle or otherwise deal
with any such claim. After any final judgment or award shall have been rendered
by a court, arbitration board or administrative agency of competent
jurisdiction, or a settlement shall have been consummated, or the parties shall
have arrived at a mutually binding agreement, with respect to any matter
indemnified against by the Seller hereunder, the Buyer shall forward to the
Seller notice of any sums due and owing by the Seller with respect to such
matter and the Seller shall be required to pay all sums so determined by the
Buyer, in cash, within thirty days after the date of such notice.
18.2. Indemnification by the Buyer.
(a) The Buyer agrees to indemnify the Seller and to
hold the Seller wholly harmless from any losses, damages, liability, and
expenses (including, without limitation, reasonable attorneys' fees and
litigation expenses) resulting to the Seller from any inaccuracy in or breach
of any warranty, representation, warranty, covenant or agreement made by the
Buyer under this Agreement or contained in any certificate, agreement,
document, schedule, list, exhibit, or other writing furnished to the Seller,
pursuant to this Agreement and the transactions contemplated hereby. The Seller
agrees to give the Buyer prompt written notice of the assertion of any claim of
which it
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has knowledge which is covered by the indemnity provisions described in this
Section 19.3 and to afford the Buyer an opportunity to be represented by
counsel of its choice, at its own expense, and to diligently and in good faith
defend, contest, litigate, negotiate, settle or otherwise deal with any such
claim. After any final judgement or award shall have been rendered by a Court,
arbitration board or administrative agency of competent jurisdiction, or a
settlement shall have been consummated or the parties shall have arrived at a
mutually binding agreement with respect to any matter indemnified against by
the Buyer hereunder, the Seller shall forward to the Buyer notice of any sums
due and owing by the Buyer with respect to such matter, and the Buyer shall be
required to pay all sums so determined by the Seller, in cash, within thirty
days after the date of such notice.
(b) Notwithstanding anything to the contrary, Buyer takes the
property subject to the existing lawsuit noted in paragraph 12(c) hereof,
indeminifies Seller as to costs and damages resulting therefrom. Buyer to cure
all violations at buyer's cost regarding said lawsuit, and arrange for and
obtain a dismissal with prejudice from the litigation. Buyer shall immediately
notify the appropriate authorities of the property change of ownership and the
buyer's responsibility resulting therefrom.
19. Breach or Failure to Close. If, after the Seller has performed
Seller's obligations under this Contract, and if within five (5) days after the
date specified for Closing under paragrpah 3 the Buyer fails to make the
payments or to perform any other obligation of the Buyer under this Contract,
then all sums theretofore paid on the purchase price shall be retained as such
or as liquidated damages for the breach of this Contract by the Buyer. The
Seller and Buyer agree that such amount is a reasonable amount for liquidated
damages and that it would be impractical and extremely difficult to determine
actual damages. If the Buyer shall perform all of the obligations of Buyer
hereunder and Seller shall breach this Contract or fail to perform any of
Seller's obligations hereunder, then Buyer shall be entitled either to cancel
and terminate this Contract, return the abstract to Seller, and receive a
refund of the xxxxxxx money or pursue any other legal remedy.
20. Miscellaneous Provisions.
20.1 Survival. The provisions of Paragraphs 8, 14, 15 and 16
of this Agreement shall survive Closing and shall not be merged upon the
delivery and acceptance of the deed for the Property.
20.2 Gender. As used herein the singular shall include the
plural, the plural the singular, and the use of any gender shall be applicable
to all genders.
20.3 Binding Effect. This Agreement shall be binding upon the
parties hereto and on their respective successors or assigns.
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20.4. Entire Agreement. This Agreement contains the final and
entire agreement between the parties and they shall not be bound by any terms,
conditions statements or representations, oral or written, not herein contained.
Any subsequent amendment to this Agreement shall be valid only if executed in
writing by the parties or their successors or assigns.
20.5. Headings. The headings in this Agreement are for
convenience of reference only and do not constitute a part hereof.
20.6. Governing Law. This Agreement shall be construed,
interpreted and enforced according to the laws of the State of Oklahoma without
regard to principles of conflict of laws. Buyer consents to California
jurisdiction, Venue at location of Sellers place of business.
20.7. Time. Time shall be of the essence for this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this Contract
of Sale and affixed their seals as of the date and year first above written.
EXECUTED this 30th day of June, 1993.
SELLER
/s/ XXXX XXXXXXX
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Xxxx Xxxxxxx
/s/ XXX XXXXXXX A.K.A. XXXXXX XXXXXXX
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Xxx Xxxxxxx
ATTEST: BUYER
RIVERSIDE PARKWAY, INC.
By: /s/ XXXXXXX X. XXXXXX
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Secretary
By: /s/ L. XXXXXXX XXXXX, XX.
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L. Xxxxxxx Xxxxx, Xx.,
its President
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