EXHIBIT 10.24
AGREEMENT OF SALE AND PURCHASE
This AGREEMENT OF SALE AND PURCHASE (this "AGREEMENT") is made and
entered into as of the Effective Date (as hereinafter defined) between GENERAL
AGENTS INSURANCE COMPANY OF AMERICA, INC., an Oklahoma insurance company
(hereinafter referred to as "SELLER"), and TURONIAN CORP., a Texas corporation,
and/or its assigns (hereinafter referred to as "PURCHASER").
ARTICLE I
SALE OF PROPERTY
1.1 Subject to the terms and conditions hereinafter set forth, Seller
shall sell to Purchaser, and Purchaser shall purchase from Seller, Seller's fee
simple interest in the real property described on Exhibit A attached to this
Agreement and made a part of this Agreement for all purposes, which real
property contains 0.344 acres of land, more or less, located at 000 Xxxxxxxx
Xxxxxx, in the City of Fort Worth, Tarrant County, Texas (the "LAND"), together
with all and singular any improvements, structures and fixtures located on the
land, including the retail/parking/office structure known as the "Gainsco
Building" (collectively, the "IMPROVEMENTS"), and all personal property in
accordance with Section 5.5 of this Agreement (collectively, the "PERSONAL
Property"), all plans, specifications, drawings, reports, studies, and other
similar matters in Seller's possession, all warranties, guaranties, and bonds
relating to the Improvements, and the rights, titles and interests, tenements,
hereditaments, appurtenances, easement rights, privileges, riparian and other
water rights, as well as lands underlying adjacent streets or roads which belong
or in anywise appertain to the Land (collectively, the "PROPERTY").
ARTICLE II
PURCHASE PRICE AND XXXXXXX MONEY
2.1 The purchase price (the "PURCHASE PRICE") for the Property shall be
Five Million and No/100 Dollars ($5,000,000) and shall be payable in the manner
set forth in Article III below.
2.2 An initial xxxxxxx money deposit in the amount of Fifty Thousand
and No/100 Dollars ($50,000.00) (the "INITIAL DEPOSIT") shall be payable to the
Title Company (hereinafter defined) within three (3) business days after the
date which the latter of Seller, Purchaser, and the Title Company have executed
this Agreement (the "EFFECTIVE DATE"). An additional deposit of Two Hundred
Thousand and No/100 Dollars ($200,000.00) (the "ADDITIONAL DEPOSIT") shall be
payable on or before the expiration of the Inspection Period (as hereinafter
defined). The Initial Deposit and the Additional Deposit, and all interest
accrued thereon, are hereinafter collectively referred to as the "XXXXXXX
MONEY." The Xxxxxxx Money shall be placed in an interest bearing account for the
benefit of Purchaser and thereafter shall be applied at Closing (hereinafter
defined) in the manner provided in Article III below or otherwise disbursed as
provided by the other terms of this Agreement, as applicable. One Hundred and
No/100 Dollars ($100.00) of the Xxxxxxx Money is a nonrefundable contract
consideration (the "INDEPENDENT CONSIDERATION")
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which shall be retained by Seller and constitutes good and valuable
consideration for the option contained in this Agreement.
ARTICLE III
PAYMENT OF PURCHASE PRICE
3.1 The Purchase Price shall be payable at Closing in cash, by wire
transfer, cashier's or certified check or other evidence of funds acceptable to
the Title Company for immediate disbursement at Closing, subject to prorations
and other credits provided for in this Agreement.
3.2 The Xxxxxxx Money shall be applied at Closing to the cash payment
due on such date in accordance with Section 3.1 above or otherwise disbursed to
Seller or Purchaser in accordance with the terms of this Agreement.
ARTICLE IV
TITLE AND SURVEY
4.1 Within fifteen (15) days after the Effective Date, Seller, at
Seller's sole cost and expense, shall cause the Title Company to issue to
Purchaser a Commitment for Title Insurance (the "TITLE COMMITMENT") dated not
earlier than the Effective Date of this Agreement, issued by Rattikin Title
Company, 000 Xxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxx 00000 (the "TITLE
COMPANY"), (Attention: Xxxxx Xxxxxxxx), describing the Land (which legal
description shall be incorporated into this Agreement and used in all closing
documents wherever the Land is referenced), specifying Purchaser or its assignee
as the prospective named insured, showing the Purchase Price as the prospective
policy amount, showing the status of title of the Land and all exceptions
(including, but not limited to, easements, restrictions, rights-of-way,
covenants, reservations, encumbrances, liens and other conditions, if any,
affecting the Property) which would appear in the Owner's Policy (hereinafter
defined), when issued, together with true, correct, and legible copies of all
items and documents referred to therein.
4.2 Within five (5) business days after the Effective Date, Seller
shall provide to Purchaser copies of any existing surveys of the Land in
Seller's possession or control. Within thirty (30) days after the Effective
Date, Seller, at Seller's sole cost and expense, shall deliver to Purchaser a
new or updated as-built survey (the "SURVEY") of the Land and Improvements. The
Survey shall be (i) currently dated and (ii) prepared by a duly licensed
surveyor in accordance with the Survey Requirements, attached to this Agreement
as Exhibit C, and otherwise in form and substance satisfactory to Purchaser and
the Title Company. The Survey shall be certified to Purchaser, Purchaser's
lender, if any, and the Title Company in the form of the Surveyor's Certificate
attached to this Agreement as Exhibit C-1. The legal description set forth on
the Survey shall be incorporated into the Title Commitment and shall be used in
all closing documents wherever the Land is referenced in accordance with Section
4.1 above.
4.3 Purchaser shall have forty-five (45) days after the receipt of the
last to be received of the Title Commitment and the Survey within which to
review the Title Commitment and the Survey (the "REVIEW PERIOD"). In the event
any exceptions to title appear in the Title
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Commitment, or any matters appear on the Survey, that are unacceptable to
Purchaser, Purchaser shall, within said Review Period, notify Seller in writing
of such fact; provided, however, Purchaser shall not be required to notify
Seller of any exceptions for mortgages, deeds of trust, mechanics liens, tax
liens and any other forms of monetary liens (which items shall not, in any
event, be deemed Permitted Exceptions), and it shall be Seller's obligation to
pay all such monetary liens in full prior to or at the Closing and to obtain and
record releases and/or reconveyances with respect to all such items. Upon the
expiration of said Review Period, Purchaser shall be deemed to have accepted all
exceptions to title referenced in the Title Commitment and all matters shown on
the Survey unless objected to pursuant to the preceding sentence (the "PERMITTED
EXCEPTIONS"). In the event that Purchaser objects to any title exceptions or
matters shown in either the Title Commitment or the Survey within the Review
Period, Seller shall have thirty (30) days from receipt of notice of such
objections ("CURE PERIOD") within which to elect to eliminate or modify any such
unacceptable exceptions or items to the reasonable satisfaction of Purchaser. In
the event that Seller elects not to eliminate or modify any such unacceptable
exceptions or items to the reasonable satisfaction of Purchaser prior to the
expiration of the Cure Period, Purchaser may, on or before the last day of the
Inspection Period, either (i) waive such objections and accept title to the
Property subject to such unacceptable items (which items shall then be deemed to
constitute part of the Permitted Exceptions), or (ii) terminate this Agreement
by written notice to Seller and receive an immediate refund of the Xxxxxxx Money
(minus the Independent Consideration), whereupon this Agreement shall
automatically terminate and the parties shall have no further obligations to
each other except as expressly provided in this Agreement to the contrary. The
failure of Purchaser to so notify Seller of its decision on or before the last
day of the Inspection Period shall be deemed to constitute Purchaser's election
to waive such objections in accordance with the terms of clause (i) above.
ARTICLE V
FEASIBILITY REVIEW
5.1 Within (5) business days after the Effective Date, Seller shall
deliver to Purchaser (i) any and all Phase I Environmental Site Assessments and
any other reports regarding environmental matters in Seller's possession
relating to the Property, including, without limitation, all reports and testing
data related to the Mold (as hereinafter defined) (collectively, the
"ENVIRONMENTAL REPORTS"); (ii) any and all engineering and geotechnical studies
and any other reports in Seller's possession relating to the Property
(collectively, the "ENGINEERING REPORTS"); (iii) true and correct copies of all
tenant leases ("TENANT LEASES"), service contracts and maintenance agreements
(the "SERVICE CONTRACTS"); (iv) a current, accurate "RENT ROLL" (herein so
called) of the Property, showing Tenant contact information for each retail
tenant (collectively, the "RETAIL TENANTS"), Tenant Lease start dates,
termination dates, deposits, rents, and CAM charges; and (v) copies (including
electronic versions thereof) of all architectural and construction agreements,
as well as plans and specifications, architectural and civil drawings,
photographs, site plans, and inspection reports in the possession or control of
Seller or Seller's management company (collectively, the "CONSTRUCTION
AGREEMENTS").
5.2 Seller shall deliver to Purchaser within five (5) business days
after the Effective Date, the following (collectively, the "PROPERTY
INFORMATION"):
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(a) a listing of aged rent delinquencies, updated through the
fifth (5th) day prior to its date of delivery;
(b) copies of all equipment leases, including the payoff balance,
to be entered into or assumed by Seller affecting the
Property;
(c) copies in Seller's or its agents' possession of all existing
soil, engineering, architectural, environmental, endangered
species, ADA, and handicapped access reports covering the
Property;
(d) copies of all warranties and guaranties in Seller's possession
and which are related to the Improvements, fixtures, or any
personal property;
(e) if in Seller's possession, copies of 2000 and 2001 operating
statements (in detailed line item format) for the Property and
the 2002 budget for the Property;
(f) copies of utility bills for the Property for the twenty-four
(24) months prior to the Effective Date (Seller shall use
reasonable efforts to obtain same to the extent not in
Seller's possession);
(g) copies of all insurance policies currently in place on the
Property;
(h) copies of governmental permits, certificates of occupancy,
certificates of substantial completion, alarm registrations,
elevator permits, building permits and inspections, and other
permits or licenses for the operation of the Property which
are in Seller's possession;
(i) ad valorem tax information and statements for the last two (2)
tax years for the Property (Seller will use reasonable efforts
to obtain same if not in Seller's possession);
(j) a statement of all actual capital expenditures (itemized with
amounts) for the five (5) years prior to the Effective Date;
(k) copies of all open tenant complaints, with a copy of any
tenant complaint log being made available at the Property;
(l) copies of all open service and repair requests and work orders
relating to the Property, with a copy of historic service and
repair requests being made available at the Property;
(m) copies of all notices to landlord, including notices of
landlord default;
(n) a listing of all pending or threatened litigation against
Seller with respect to claims regarding or related to the
Property.
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5.3 Seller agrees that Purchaser shall have until the later of (i) the
110th day following the Effective Date and (ii) June 15, 2002 (the "INSPECTION
PERIOD") to review the Environmental Reports, the Engineering Reports, the
Tenant Leases, the Service Contracts, the Rent Roll, the Construction
Agreements, and the Property Information and the right to enter upon the
Property and to conduct any and all investigations and tests Purchaser shall
deem necessary to determine whether the Property is suitable for Purchaser's
intended use thereof, including, without limitation, contacting the Retail
Tenants.
5.3.1 In the event that Purchaser determines, in its sole and
absolute discretion, that the Property is not suitable for
Purchaser's intended use thereof, then Purchaser may terminate
this Agreement by delivery of written notice thereof to Seller on
or before the expiration of the Inspection Period, and if
Purchaser terminates this Agreement pursuant to this Section 5.3,
Purchaser shall have the right to receive an immediate refund of
the Xxxxxxx Money (minus the Independent Consideration) after
fulfillment of Purchaser's obligations to deliver reports to
Seller and restore the Property (as set forth in the following
sentence), whereupon this Agreement shall automatically terminate
and the parties shall have no further obligation to each other,
except as expressly provided in this Agreement to the contrary.
Purchaser shall promptly after receipt thereof deliver to Seller a
copy of every report of findings that is issued as a result of
such inspection activities (excluding only market studies or
appraisals), and Purchaser shall cause the Property to be restored
to its condition prior to any of Purchaser's or its agents'
activities that alter the condition of the Property.
5.3.2 Purchaser will conduct any such physical inspections, tests,
examinations, studies, and appraisals only on business days and
will minimize interference with Seller's operations at the
Property. Purchaser may only enter upon the Property, provided (i)
Purchaser notifies Seller (which notice may be oral or written) of
its intent to inspect, test, survey or study a reasonable period
of time prior to Purchaser's entry, (ii) if requested by Seller,
Purchaser is accompanied by a representative of Seller, and (iii)
Purchaser furnishes to Seller a certificate of insurance
acceptable to Seller naming Seller as an additional insured and
with an insurer and insurance limits and coverage reasonably
satisfactory to Seller. Purchaser and its agents and
representatives shall not contact any governmental or
quasi-governmental representative concerning the Property without
the prior written consent of Seller.
5.3.3 PURCHASER AGREES TO INDEMNIFY, DEFEND AND HOLD SELLER, ITS
AGENTS, PARTNERS, DIRECTORS, OFFICERS AND REPRESENTATIVES,
HARMLESS FROM AND AGAINST ANY LIENS, CLAIMS, OR damages INCLUDING,
WITHOUT LIMITATION, ANY AND ALL DEMANDS, ACTIONS OR CAUSES OF
ACTION, ASSESSMENTS, LOSSES, COSTS, LIABILITIES, INTEREST AND
PENALTIES, AND REASONABLE ATTORNEYS' FEES SUFFERED OR INCURRED BY
SELLER, ITS AGENTS AND REPRESENTATIVES AS A RESULT OF, ARISING OUT
OF, OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, PURCHASER OR
PURCHASER'S AGENTS OR REPRESENTATIVES EXERCISING THE RIGHTS SET
FORTH IN SECTIONS 5.3.1 AND 5.3.2 OR ARISING FROM PURCHASER OR ITS
REPRESENTATIVES OTHERWISE ENTERING UPON THE PROPERTY, EXCEPT (i)
TO THE EXTENT CAUSED BY THE NEGLIGENCE OF SELLER OR ITS AGENTS OR
REPRESENTATIVES, OR (ii) FOR
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PRE-EXISTING CONDITIONS MERELY REVEALED BY PURCHASER'S
INSPECTIONS. PURCHASER WILL, TO THE EXTENT PRACTICABLE AND AS
DIRECTED BY SELLER, REPAIR OR CAUSE TO BE REPAIRED ANY DAMAGE
CAUSED BY PURCHASER OR PURCHASER'S AGENTS OR REPRESENTATIVES IN
THE CONDUCT OF THE REVIEW AND/OR INSPECTION CONTEMPLATED
HEREUNDER. NOTWITHSTANDING ANYTHING SET FORTH HEREIN TO THE
CONTRARY, THE INDEMNIFICATION AND OTHER OBLIGATIONS OF PURCHASER
IN THIS SECTION 5.3 WILL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
5.4 Prior to the expiration of the Inspection Period, Seller shall
deliver to Tenant executed tenant estoppel letters from each of the Retail
Tenants, in form and substance reasonably satisfactory to Purchaser.
5.5 Seller and Purchaser agree that they will jointly inventory the
Personal Property during the Inspection Period, and agree on a list of Personal
Property that shall be conveyed to Purchaser at Closing, including, without
limitation, certain pieces of historical artwork.
ARTICLE VI
CLOSING; COSTS; PRORATIONS
6.1 The closing of the transaction contemplated by this Agreement (the
"CLOSING") shall be held on the later of (i) the sixtieth day following the
expiration of the Inspection Period or (ii) August 30, 2002, or on such other
date as may be mutually agreed (the "CLOSING DATE"). The Closing shall be held
at the offices of the Title Company in Tarrant County, Texas, or at such other
location as may be acceptable to both Seller and Purchaser. The procedure to be
followed by the parties in connection with the Closing shall be as follows:
6.1.1 At the Closing, Seller shall cause to be delivered to
the Title Company (or Purchaser, as applicable) the following items:
(a) A Special Warranty Deed dated effective as of the
Closing Date, executed by Seller, which conveys all of
Seller's right, title and interest in the Property to Seller,
which Deed shall be in form and substance reasonably
satisfactory to Purchaser.
(b) A Xxxx of Sale covering all of Seller's right,
title and interest to the Improvements and all personalty,
which Xxxx of Sale shall be in form and substance reasonably
satisfactory to Purchaser.
(c) A Certificate of Nonforeign Status, dated
effective as of the Closing Date, executed by or on behalf of
Seller, in a form which complies with Section 1445 of the
Internal Revenue Code of 1986, as amended, and/or all
regulations relating thereto (collectively, the "INTERNAL
REVENUE CODE").
(d) An assignment of the Tenant Leases and Service
Contracts, in form and substance reasonably satisfactory to
Purchaser.
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(e) Evidence reasonably acceptable to the Title
Company and Purchaser, authorizing the consummation by Seller
of the purchase and sale transaction contemplated by this
Agreement and the execution and delivery of the closing
documents on behalf of Seller.
(f) Possession of the Property, subject only to the
Permitted Exceptions and the Tenant Leases.
(g) An Owner's Policy of Title Insurance (the
"OWNER'S POLICY"), in accordance with the Title Commitment,
with such endorsements as requested by Purchaser.
(h) An indemnity from General Agents Insurance
Company of America, Inc., in form and substance reasonably
satisfactory to Purchaser and Seller (and which shall be
agreed upon prior to the expiration of the Inspection Period),
indemnifying Purchaser for any and all matters arising out of
the Mold Problem (as hereinafter defined) limited to
occurrences prior to the Closing Date and specifically
excluding (i) claims for reimbursement of costs to remediate
the Mold Problem and (ii) claims arising from the negligence
or willful misconduct of Purchaser, its agents, employees or
contractors. Notwithstanding anything contained in this
Agreement to the contrary, Purchaser agrees that in the event
the parties are unable to agree on the form and substance of
the indemnity described above prior to the expiration of the
Inspection Period, Purchaser's shall have the right to
terminate this Agreement by giving written notice of
termination to Seller prior to the expiration of the
Inspection Period, as its sole and exclusive remedy.
(i) An executed Assignment of Warranties, in form and
substance reasonably satisfactory to Purchaser, assigning all
warranties, guaranties, and bonds relating to the Improvements
to Purchaser.
(j) Executed notice letters to the Retail Tenants,
advising them of the sale of the Property and directing them
to pay rent to Purchaser, in form and substance reasonably
satisfactory to Purchaser.
6.1.2 At the Closing, Purchaser shall cause to be delivered to
the Title Company for the benefit of Seller, or to Seller, as
applicable, the following funds, documents and/or instruments:
(a) Cash or other immediately available funds in the
amount of the Purchase Price, less a credit for the Xxxxxxx
Money, payable to the Title Company representing the cash
payment due to Seller in accordance with Article III of this
Agreement.
(b) Evidence reasonably acceptable to the Title
Company, authorizing the consummation by Purchaser of the
purchase and sale transaction contemplated by this Agreement.
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(c) An executed indemnity from Xxxxxx Oil Company, in
form and substance reasonably acceptable to Seller,
indemnifying Seller for all matters arising out of the Mold
Problem accruing after the Closing Date.
6.1.3 At the Closing, Seller and Purchaser shall cause to be
delivered to the Title Company such other instruments and documents as
may be reasonably necessary and appropriate in order to complete the
Closing of the transaction contemplated by this Agreement.
6.2 Upon the completion of the deliveries specified in Section 6.1
above, the Title Company, as escrow agent, shall be authorized to cause the
appropriate closing documents to be immediately recorded in the appropriate
records of Tarrant County, Texas and shall deliver the balance of the proceeds
from the sale, after deducting all expenses thereof chargeable to Seller under
this Agreement to Seller.
6.3 Seller shall pay all documentary stamp taxes, conveyance, and/or
transfer taxes relating to the conveyance of the Property pursuant to this
Agreement, one-half (1/2) of the escrow fee charged by the Title Company, the
cost of obtaining the Owner's Policy, one-half (1/2) of the premium for the
survey modification, and the costs set forth in Section 6.4. Purchaser shall pay
one-half (1/2) of the escrow fee charged by the Title Company, one-half (1/2)
the premium for the survey modification, and Purchaser's proportionate share of
the prorations set forth in Section 6.4. Except as otherwise provided herein,
all other escrow and closing costs shall be allocated to and paid by Seller and
Purchaser in accordance with the manner in which such costs are customarily
borne by such parties in sales of similar property in the county where the
Property is located, on the date of Closing; provided, however, each party shall
pay its own attorneys' fees.
6.4 Real estate and personal property ad valorem taxes, charges and
assessments (special or otherwise) for the calendar year in which the Closing
occurs shall be prorated at the Closing, effective as of the Closing Date, based
upon actual days involved. If the actual amount of such taxes is not known as of
such date, either because tax bills for the calendar year of the Closing have
not been issued or because such tax bills cover real property in addition to the
Property, the proration at the Closing will be based on the most current and
accurate ad valorem tax billing information available. Should such proration not
be based on the actual amount of the ad valorem taxes for such calendar year and
should such proration prove to be inaccurate upon receipt of the actual tax
bills for the Property for such calendar year, then either Seller or Purchaser
may demand at any time after the Date of Closing a payment from the other
correcting such malapportionment. Seller shall pay, at the Closing, all other
assessments, whether due in installments or lump sum and whether special or
general in nature, levied or assessed against the Property as of the Closing
Date. This provision shall survive the Closing. All rental income under the
Tenant Leases, as well as common area maintenance charges and other
pass-throughs shall be prorated at Closing. Seller shall instruct the Retail
Tenants to transfer or cause to be reissued any Letters of Credit held by Seller
as security deposits under the Retail Leases.
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6.5 Seller shall pay a brokerage fee to Xxxxxxx Xxxxxxxxxx and Xxxxx
Xxxxxx of Xxxxx Xxxxxx Interests and Xxxx Xxxx of Stoneleigh Xxxx Xxxxx XxXxxxxx
(collectively, the "BROKERS"), if, as and when the Closing occurs, pursuant to a
separate written agreement. Purchaser acknowledges that, at the time of the
execution of this Agreement, the Broker(s) advised Purchaser by this writing
that Purchaser should have the abstract covering the Property examined by an
attorney of Purchaser's own selection or that Purchaser should be furnished with
or obtain a policy of title insurance. Each of Seller and Purchaser agrees to
indemnify and hold the other harmless from and against any and all costs or
claims of any agent, broker or other person claiming to be acting on behalf of
the indemnifying party for fees, commissions or other compensation by reason of
the transaction contemplated by this Agreement. The obligations of Seller and
Purchaser under this Section 6.5 shall survive the Closing or other termination
of this Agreement and shall not be subject to the damage limitations set forth
in this Agreement.
6.6 Notwithstanding the foregoing, Seller and Purchaser agree that
Purchaser's obligation to close under this Agreement, and Seller's retention of
the Xxxxxxx Money, is expressly conditioned upon satisfaction of the following:
(a) All objections raised by Purchaser to exceptions to title
referenced in the Title Commitment and matters shown on the
Survey, pursuant to Section 4.3 above, shall have been cured
to the satisfaction of Purchaser or waived (or deemed to be
waived) by Purchaser.
(b) Seller has delivered all documents and complied with all the
terms and obligations of Seller as set forth in Section 6.1 of
this Agreement.
(c) No material variance from Seller's representations set forth
in Article VII of this Agreement shall have occurred.
(d) No Hazardous Material or Substance (as hereinafter defined)
shall have been introduced or discovered upon or under the
Land after the expiration of the Inspection Period.
(e) No action, suit or proceeding against or concerning the
Property, at law or in equity, which would have a material
adverse affect on the Property, shall be pending or threatened
before any federal, state, municipal or other governmental
court, department, commission, board, bureau, agency or other
instrumentality, foreign or domestic.
(f) No action for condemnation shall be pending against the
Property, and Seller shall not have received notice that any
such action is pending or contemplated.
(h) Purchaser and the Title Company shall have received
satisfactory evidence that the execution, delivery, and
performance of this Agreement by Seller has been duly and
validly authorized by all necessary action on the part of
Seller that this Agreement has been duly executed and
delivered by Seller and constitutes a legal,
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valid and binding obligation of Seller, enforceable against
Seller in accordance with the terms of this Agreement.
ARTICLE VII
REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 Seller hereby represents, warrants, and covenants to Purchaser the
following, which shall also be true and correct as of the Closing Date:
7.1.1 Seller is the record owner of legal title and alone is
the sole owner of legal and equitable title in and to the Property, and
Seller has the requisite power and authority to own, lease, operate,
and sell the Property, and to enter into this Agreement.
7.1.2 The Service Contracts and the Tenant Leases are in full
force and effect, and to the best of Seller's knowledge, no default, or
occurrence which with the passage of time would constitute a default,
currently exists under any Service Contract or any Tenant Lease.
7.1.3 The execution, delivery and performance of this
Agreement by Seller has been duly and validly authorized by all
necessary action on the part of Seller.
7.1.4 This Agreement has been duly executed and delivered by
Seller and constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with the terms of this
Agreement.
7.1.5 Seller has and, at the Closing Date, Seller will have
and will convey to Purchaser good and indefeasible title to the
Property, free and clear of all conditions, exceptions or reservations,
except the Tenant Leases and the Permitted Exceptions.
7.1.6 Seller shall give notice to Purchaser immediately upon
(i) Seller's receipt of any notice from any governmental authority of a
violation of any applicable laws or acquiring knowledge of the receipt
of any such notice by any tenant of any portion of the Property, and
(ii) acquiring knowledge of the presence of any Hazardous Material or
Substance on the Property in a condition that is resulting or could
reasonably be expected to result in any adverse environmental impact,
with a full description thereof.
7.1.7 Prior to Closing, Seller shall obtain all such written
third party consent and approvals as may be required in order to permit
Seller to perform its obligations under this Agreement.
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7.1.8 Seller has not received any notices of any condemnation
actions, special assessments or increases in the asserted valuation of
taxes or other impositions of any nature which are pending or being
contemplated with respect to the Property or any portion thereof.
7.1.9 At the Closing, there will be no liens, security
interests, unpaid bills or claims in connection with any construction
or repair of the Improvements or other work performed or material
purchased in connection with the Improvements.
7.1.10 To the best of Seller's knowledge, all taxes, charges
and assessments (special or otherwise) required to be paid to any
taxing authority which could in any way now or hereafter constitute a
lien against the Property or any part thereof (except for taxes and
assessments for the current year) have been paid.
7.1.11 To the best of Seller's knowledge, 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.
7.1.12 To the best of Seller's knowledge, and except as
disclosed in the Owner's Policy, the Property is not the subject of any
taxes, assessments, fees of any type or kind relating to the imposition
of any roadway, utility or other district created or assessed by the
State of Texas, or any governmental agency or subdivision thereof,
including the City of Fort Worth.
7.1.13 To the best of Seller's knowledge, neither the Property
nor Seller are the subject of any pending or threatened investigation
or inquiry by any governmental authority, or are subject to any
remedial obligations (other than those which may relate to the Mold
Problem described in Section 11) under any Environmental Laws
(hereinafter defined), and to the best of Seller's knowledge this
representation and warranty would continue to be true and correct
following disclosure to any applicable governmental authority of all
relevant facts, conditions, and circumstances pertaining to the
Property and/or Seller. For purposes of this Agreement, the term
"HAZARDOUS MATERIAL OR SUBSTANCE" shall be defined as any substance,
matter, material, waste, solid, liquid, gas, or pollutant, the
generation, storage, disposal, handling, recycling, release (or
threatened release), treatment, discharge, or emission of which is
regulated, prohibited, or limited under (a) the Resources Conservation
and Recovery Act, as amended by the Hazardous and Solid Waste
Amendments of 1984, as now or hereafter amended (collectively, "RCRA")
(42 U.S.C. Section 6901 et seq.); (b) the Comprehensive Environmental
Response, Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act of 1986, as now or hereafter amended
(collectively, "CERCLA") (42 U.S.C. Section 9601 et seq.); (c) the
Clean Water Act, as now or hereafter amended (collectively, "CWA") (33
U.S.C. Section 1251 et seq.); (d) the Toxic Substances Control Act, as
now or hereafter
11
amended (collectively, "TSCA") (15 U.S.C. Section 2601 et seq.); (e)
the Clean Air Act, as now or hereafter amended (collectively, "CAA")
(42 U.S.C. Section 0000 xx xxx.), (XXXX, XXXXXX, XXX, XXXX, and CAA are
collectively referred to herein as the "FEDERAL ENVIRONMENTAL LAWS");
(f) any local or state law, statute, regulation, or ordinance analogous
to any of the Federal Environmental Laws; and (g) any other federal,
state, or local law (including any common law), statute, regulation, or
ordinance regulating, prohibiting, or otherwise restricting the
placement, discharge, release, threatened release, generation,
treatment, or disposal upon or into any environmental media of any
substance, pollutant, or waste which is classified or considered to be
hazardous or toxic to human health or the environment. All of the laws,
statutes, regulations, and ordinances referred to in subsections (f)
and (g) above, together with the Federal Environmental Laws are
collectively referred to herein as "ENVIRONMENTAL LAWS." The term
"HAZARDOUS MATERIAL OR SUBSTANCE" shall also include, without
limitation, (i) gasoline, diesel fuel, fuel oil, motor oil, waste oil,
and any other petroleum hydrocarbons, including any additives or other
by-products associated therewith, (ii) asbestos and asbestos-containing
materials in any form, (iii) polychlorinated biphenyls, (iv) any
substance the presence of which: (x) requires reporting or remediation
under any Environmental Law; (y) causes or threatens to cause a
nuisance or poses or threatens to pose a hazard to the health or safety
of persons; or (z) which, if it emanated or migrated, could constitute
a trespass, nuisance, or health or safety hazard to persons on adjacent
property.
7.1.14 Except as stated in Section 11.1, to the best of
Seller's knowledge, there is no Hazardous Material or Substance on, in,
from, or affecting any portion of the Property.
7.1.15 Seller covenants and agrees not to convey or grant any
easement, agree to any restrictive covenant or otherwise encumber the
title to the Property without the express prior written consent, or
request, of Purchaser, which consent may be withheld in Purchaser's
sole and absolute discretion.
7.1.16 There are no leases, tenancies, licenses or other
rights of occupancy or use for any portion of the Property other than
the Service Contracts and the Tenant Leases as set forth in the Rent
Roll. The Service Contracts and Tenant Leases have not been amended or
modified, except as expressly stated on the Rent Roll, as such Rent
Roll may be updated from time to time.
7.1.17 Each of the Tenant Leases is valid and subsisting and
in full force and effect, and, except as otherwise set forth on the
Rent Roll, the Retail Tenants thereunder are in actual possession of
the leased space and, except as otherwise set forth on the Rent Roll,
are not in default in their obligation to pay rent or their other
obligations.
7.1.18 No Retail Tenant has asserted any claim of which Seller
has written notice which could adversely affect the right of the
landlord to collect rent
12
from such Retail Tenant and no notice of default or breach on the part
of landlord under any of the Tenant Leases has been received by Seller
from the tenant thereunder.
7.1.19 The rents and other payments set forth on the Rent Roll
are the actual rents, income, and charges presently being collected by
Seller under the Tenant Leases and all rent is payable monthly in
advance; and to the best of Seller's knowledge, there are no
restrictions currently in operation (as of the Effective Date) upon the
amount of rent which may be charged or collected under the Tenant
Leases nor upon tenants to whom space can be leased in the Property by
virtue of any laws, ordinances, or regulations.
7.1.20 Except as set forth on the Rent Roll, no tenant under
any of the Tenant Leases is entitled to any concession, payment,
allowance, rebate, or refund. No commission is owed (or will be owed in
the future) to any third party broker in connection with any Tenant
Lease.
7.1.21 Except as set forth on the Rent Roll, no tenant under
any of the Tenant Leases has prepaid any rent or other charges for more
than the current month.
7.1.22 None of the Tenant Leases and none of the rents or
other amounts payable thereunder have been assigned, pledged, or
encumbered by Seller except to the holder of a lien which will be paid
in full or released at Closing.
7.1.23 Except as set forth on the Rent Roll, no security
deposits have been paid by Retail Tenants which have not heretofore
been returned to the Retail Tenants; and the amount to be credited
against Seller pursuant to Article VI shall be the full amount of
security deposits for the return of which Purchaser or any subsequent
owner of the Property could be held accountable or responsible after
the Closing Date.
7.1.24 The Tenant Leases available for review by Purchaser are
true and correct copies of the actual leases in Seller's possession and
are the complete written documentation of the agreement between the
Seller, as landlord, and the tenant; there are no material oral
agreements or undisclosed material written agreements between Seller,
as landlord, and any tenant which have not been disclosed in writing to
Purchaser.
7.1.25 There are no management, service, equipment, supply,
security, maintenance, concession, or other agreements with respect to
or affecting the Property, except for the Service Contracts.
7.1.26 All of the books, records, information, data, and other
items supplied by Seller to Purchaser are true and correct in all
material respects, to the best of Seller's knowledge.
13
7.1.27 At all times from the Effective Date to the date of
Closing, Seller shall maintain in force all existing fire and extended
coverage insurance upon each Property and general liability insurance.
7.1.28 At all times from the Effective Date to the date of
Closing, Seller shall keep and perform all of the material obligations
to be performed by the landlord under the Tenant Leases. Seller also
agrees not to modify, terminate, or amend existing Tenant Leases.
7.1.29 Prior to the Closing, Seller shall continue to operate
and maintain the buildings as currently operated and maintained and
keep the Improvements in the same condition and repair as they
currently exist, except for normal wear and tear and any casualty or
condemnation, and Seller shall not remove any fixtures, equipment,
furnishings, or any of the Personal Property from the Improvements
without replacing them with similar items in good working order.
7.1.30 Seller shall cause all trade accounts and costs and
expenses of operation and maintenance of the Property incurred prior to
the Closing including under any of the Service Contracts to be promptly
paid when due.
7.1.31 After the Effective Date, Seller shall not enter into
any service contracts which cannot be canceled by Purchaser, without
penalty, at Closing, such cancellation to be effective no longer than
thirty (30) days thereafter, nor will it enter into any other contracts
related to the Property whereby Seller or an affiliate receives any
pre-paid or up-front consideration.
7.2 Seller's proceeding to close the transaction contemplated by this
Agreement and conveying title to the Property to Purchaser shall be deemed
Seller's confirmation and reaffirmation of all representations and warranties
contained in Section 7.1 above as of the Closing Date.
7.3 References to the "knowledge" of Seller shall refer only to the
current actual knowledge of the Designated Employees (as hereinafter defined) of
Seller, and shall not be construed, by imputation or otherwise, to refer to the
knowledge of Seller or any affiliate of Seller, to any property manager, or to
any other officer, agent, manager, representative or employee of Seller or any
affiliate thereof or to impose upon such Designated Employees any duty to
investigate the matter to which such actual knowledge, or the absence thereof,
pertains. As used herein, the term "Designated Employees" shall refer to the
following persons: Xxx Xxxxx and Xxxxx Xxxxxxxx.
7.4 The representations and warranties of Seller set forth in Section
7.1 hereof shall survive Closing for a period of one (1) year. No claim for a
breach of any representation or warranty of Seller shall be actionable or
payable if the breach in question results from or is based on a condition, state
of facts or other matter which was known to Purchaser prior to Closing. Seller
shall have no liability to Purchaser for a breach of any representation or
warranty unless (a) the valid claims for all such breaches collectively
aggregate more than Twenty-Five
14
Thousand Dollars ($25,000.00), in which event the full amount of such valid
claims shall be actionable, up to the Cap (as defined in this Section), and (b)
written notice containing a description of the specific nature of such breach
shall have been given by Purchaser to Seller and an action shall have been
commenced by Purchaser against Seller prior to the expiration of said one (1)
year period. Purchaser agrees to first seek recovery under any insurance
policies, Service Contracts and Tenant Leases prior to seeking recovery from
Seller, and Seller shall not be liable to Purchaser if Purchaser's claim is
satisfied from such insurance policies, Service Contracts or Tenant Leases. As
used herein, the term "Cap" shall mean the total aggregate amount of $100,000.
This Section 7.4 shall survive Closing.
7.5 "AS IS" SALE.
7.5.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, PURCHASER AGREES TO ACCEPT TITLE TO THE PROPERTY ON AN
"AS-IS-WHERE-IS AND WITH ALL FAULTS" BASIS.
7.5.2 EXCEPT AS PROVIDED HEREIN, SELLER HEREBY SPECIFICALLY
DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR, CONCERNING (I) THE NATURE AND
CONDITION OF THE PROPERTY AND THE SUITABILITY THEREOF FOR ANY AND ALL ACTIVITIES
AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, (II) THE NATURE AND
EXTENT OF ANY RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE,
RESERVATION, CONDITION OR ANY OTHER MATTER RELATING IN ANY WAY TO THE PROPERTY,
(III) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY LAWS, ORDINANCES
OR REGULATIONS OF ANY GOVERNMENT OR OTHER AUTHORITY OR BODY, OR (IV) THE
EXISTENCE OF ANY TOXIC OR HAZARDOUS SUBSTANCE OR WASTE IN, ON, UNDER THE SURFACE
OF OR ABOUT THE PROPERTY. EXCEPT FOR THE WRITTEN REPRESENTATIONS AND WRITTEN
WARRANTIES SPECIFICALLY SET FORTH IN Section 7.1 OF THIS AGREEMENT, PURCHASER
ACKNOWLEDGES THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY AND
THE PROPERTY INFORMATION, PURCHASER IS RELYING SOLELY ON ITS OWN INVESTIGATION
OF THE PROPERTY AND THE PROPERTY INFORMATION AND NOT ON ANY INFORMATION PROVIDED
OR TO BE PROVIDED BY SELLER AND ACCEPTS THE PROPERTY IN ITS PRESENT CONDITION.
PURCHASER FURTHER ACKNOWLEDGES THAT THE INFORMATION PROVIDED AND TO BE PROVIDED
WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND SELLER
(A) HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH
INFORMATION AND (B) HAS NOT MADE ANY EXPRESS OR IMPLIED, ORAL OR WRITTEN,
REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION, EXCEPT
AS SPECIFICALLY SET FORTH HEREIN. THE SALE OF THE REAL PROPERTY AND THE PROPERTY
IS BEING SOLD AND CONVEYED HEREUNDER ON AN "AS IS WHERE IS WITH ALL FAULTS"
BASIS, AND PURCHASER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF THE
AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED HEREIN, SELLER HAS
NOT MADE AND DOES NOT HEREBY MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, ARISING
15
BY OPERATION OF LAW OR OTHERWISE, WHATSOEVER WITH RESPECT TO THE CONDITION OF
THE PROPERTY, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY
REGARDING CONDITION, HABITABILITY, SUITABILITY, QUALITY OF CONSTRUCTION,
WORKMANSHIP, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND
PURCHASER ACKNOWLEDGES THAT IT IS ENTERING INTO THIS AGREEMENT WITHOUT RELYING
UPON ANY ORAL STATEMENT OR REPRESENTATION MADE BY SELLER, ANY BROKER OR BY ANY
OTHER PERSON.
7.5.3 Purchaser acknowledges that neither Seller, nor any of
Seller's disclosed or undisclosed officers, directors, employees, trustees,
shareholders, partners, members, principals, parents, subsidiaries or other
affiliates of Seller nor any of their agents or representatives, has made any
representations or held out any inducements to Purchaser except as set forth
herein; and Seller hereby specifically disclaims any representation, oral or
written, past, present or future, other than those specifically set forth in
Section 7.
7.5.4 Purchaser acknowledges that this Agreement affords
Purchaser the opportunity for investigations, examinations and inspections of
the Property and all Property Information.
7.5.5 The provisions of this Section 7.5 shall survive the
termination of this Agreement and the Closing.
ARTICLE VIII
TERMINATION, DEFAULT, REMEDIES, CASUALTY AND CONDEMNATION
8.1 In the event that Seller fails to perform any of the material
covenants and/or agreements contained in this Agreement which are to be
performed by Seller either prior to or at the Closing and such failure results
from any reason other than the termination of this Agreement by Purchaser
pursuant to a right to terminate expressly set forth in this Agreement or
Purchaser's failure to perform Purchaser's obligations under this Agreement,
Purchaser may either: (i) terminate this Agreement by giving written notice of
termination to Seller; or (ii) enforce specific performance of Seller's
obligations under this Agreement and proceed to close this transaction, as its
sole and exclusive remedies for such failure. If Purchaser elects (i) above,
Purchaser shall receive a full and immediate refund of any and all Xxxxxxx Money
(including any portion of such Xxxxxxx Money described as nonrefundable to
Purchaser in this Agreement but excluding the Independent Consideration). In
addition, if and only if (a) the default by Seller is a sale of the Property to
someone other than Purchaser or (b) Purchaser has performed its obligations
under the Agreement and is ready, willing and able to close, but Seller refuses
to transfer the Property, then Purchaser also shall be entitled to receive a
payment from Seller in the amount equal to the actual out of pocket expenses
related to this Agreement actually incurred by Purchaser, not to exceed
$100,000.00 as liquidated damages. Purchaser hereby specifically waives any and
all rights which it may have to recover other damages incurred by Purchaser.
8.2 If Seller is not then in default in its obligations or agreements
pursuant to this Agreement, and Purchaser fails to close the transaction
contemplated by this Agreement for any
16
reason other than as permitted by the terms of this Agreement, Seller shall be
entitled to receive the Xxxxxxx Money as liquidated damages as Seller's sole and
exclusive remedy for such failure, Seller hereby specifically waiving any and
all rights which it may have to damages or specific performance as a result of
Purchaser's default under this Agreement.
8.3 If, prior to closing, the Property or any material portion thereof
is destroyed or damaged or taken by eminent domain, Seller shall promptly notify
Purchaser and Purchaser shall have the option of either: (i) canceling this
Agreement by delivery of written notice to Seller within twenty (20) days
following such damage, destruction or taking, whereupon the Title Company shall
return to Purchaser any and all of the Xxxxxxx Money, together with interest
accrued thereon (including any portion of such Xxxxxxx Money described as
nonrefundable to Purchaser in this Agreement but excluding the Independent
Consideration), and both parties shall be relieved of all further obligations
under this Agreement; or (ii) Purchaser may proceed to Closing by paying the
Purchaser Price and performing all other obligations of Purchaser at Closing,
whereupon Purchaser shall be entitled to (and Seller shall assign to Purchaser
all of Seller's interest in) all condemnation payments or insurance proceeds (as
the case may be), awards and settlements applicable to the Property.
ARTICLE IX
NOTICES
9.1 Any notice, request, demand, instruction or other communication to
be given to either party hereunder, except those required to be delivered at
Closing, shall be in writing, and shall be deemed to be delivered, whether
actually received or not, (i) upon personal delivery (whether by local or
overnight courier service); or (ii) three (3) days after deposit in a regularly
maintained official depository of the United States Mail located in the
continental United States, and sent by registered or certified mail, postage
prepaid, return receipt requested, addressed as set forth below; or (iii) sent
by telecopier upon successful transmission to the telecopier numbers set forth
below, so long as an original of same is sent the same day by either of the
methods described in (i) or (ii) above addressed as set forth below:
17
If to Seller: With Copy To:
GAINSCO Xxxxxxx Xxxxxx LLP
000 Xxxxxxxx Xxxxxx 000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000 Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxx Attn: Xxxxx X. Xxxxxx
Fax: (000) 000-0000 Fax: (000) 000-0000
If to Purchaser: With Copy To:
Turonian Corp. Kane, Russell, Xxxxxxx & Xxxxx, P.C.
3400 City Center Tower II 3700 Thanksgiving Tower
000 Xxxxxxxx Xxxxxx 0000 Xxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxxxx X. Xxxx
Fax: (000) 000-0000 Fax: (000) 000-0000
With Copy To:
Xxxxx Xxxxx
3400 City Center Tower II
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
Fax: (000) 000-0000
Any notice hereunder sent by counsel to either Purchaser or Seller
hereunder shall be deemed transmitted by Seller or Purchaser, respectively.
ARTICLE X
ENTIRE AGREEMENT
10.1 This Agreement and the exhibits attached hereto contain the entire
agreement between the parties, and no promise, representation, warranty, or
covenant not included in this Agreement or any such referenced agreements has
been or is relied upon by either party. Each party has relied upon its own
examination of the full Agreement and the provisions thereof, and the counsel of
its own advisors, and the warranties, representations, covenants, and agreements
expressly contained in this Agreement. No modification or amendment of this
Agreement shall be of any force or effect unless made in writing and executed by
both Purchaser and Seller. In the event that any litigation arises hereunder, it
is specifically stipulated that this Agreement shall be interpreted and
construed according to the laws of the State of
Texas. Venue for any legal
action arising out of this Agreement shall be Tarrant County,
Texas. Further,
the prevailing party in any litigation between the parties shall be entitled to
recover, as a part of its judgment, reasonable attorneys' fees and costs of
suit.
18
ARTICLE XI
REMEDIATION WORK
11.1 Seller has obtained an Indoor Air Quality Survey dated July 7,
2001, prepared by Airtech Environmental, Inc. (the "Report") which states that
the Property contains one or more forms of multicellular fungi. The existence of
such fungi in the Property, as more specifically described in the Report, is
referred to in this Agreement as the "MOLD PROBLEM". Within ten (10) days of the
Effective Date, Seller shall deliver to Purchaser copies of any and all reports
and studies in its possession and control regarding the Mold Problem, including
the Report.
ARTICLE XII
MISCELLANEOUS
12.1 The article headings contained in this Agreement are for purposes
of identification only and shall not be considered in construing this Agreement.
Time is of the essence with respect to the performance of all obligations
provided herein and the consummation of all transactions contemplated hereby.
12.2 This Agreement, and the rights and obligations of Purchaser
hereunder, may not be assigned by Purchaser without the consent of Seller, which
shall not be unreasonably withheld. However, Seller's consent shall not be
required to an assignment to an Affiliate (hereinafter defined). In the event of
any such permitted assignment, Seller agrees to close the transaction
contemplated by this Agreement with the assignee of Purchaser. This Agreement
may not be assigned by Seller to any person or entity other than an Affiliate.
Purchaser may elect to accomplish the purchase of the Property by means of an
exchange of property in a tax-deferred transaction under Section 1031 of the
Internal Revenue Code of 1986, as amended. Purchaser will notify Seller of the
election and pay for all expenses incurred by reason of the exchange. Seller
shall not incur any additional liability, obligation, or expense of any nature
in connection with such exchange. Seller agrees to cooperate with Purchaser to
permit Purchaser to accomplish the tax-deferred exchange. As used herein the
term "AFFILIATE" means any person or entity that directly, or indirectly,
through one or more intermediaries controls, is controlled by or is under common
control with Seller or Purchaser, as applicable. For this purpose the term
"control" (including the terms "controlling", "controlled by" and "under common
control with") shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies whether through the
ownership of voting securities, by contract, or otherwise.
12.3 This Agreement may be executed in any number of counterparts, each
of which shall be an original, but such counterparts together shall constitute
one and the same instrument.
12.4 All exhibits described in this Agreement are by this reference
fully incorporated into this Agreement and made a part of this Agreement by
reference for all purposes.
12.5 This Agreement and the terms and provisions hereof shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, executors, personal representatives, successors and assigns whenever the
context so requires or admits.
19
12.6 The Title Company hereby agrees to (i) timely file a return with
the Internal Revenue Service on Form 1099-B or such other form as instructed by
the Internal Revenue Service showing the gross proceeds of this transaction, the
recipient thereof and such other information as the Internal Revenue Service may
by form or regulation require from time to time, and (ii) furnish both Seller
and Purchaser with a written statement showing the name and address of the Title
Company and the information shown on such return with respect to the
transaction. This return shall be filed to ensure that the parties to this
transaction will be in compliance with Section 6045(e) of the Internal Revenue
Code, as amended from time to time and as further set forth in any regulations
promulgated thereunder.
12.7 If any date for notice or performance under this Agreement falls
on a Saturday, Sunday or legal holiday, the date for notice or performance will
be extended to the next day that is not a Saturday, Sunday or a legal holiday.
EXECUTED by Seller the 7th day of March, 2002.
Seller:
GENERAL AGENTS INSURANCE COMPANY OF
AMERICA, INC., an Oklahoma insurance
corporation
By: /s/ XXXXXX X. XXXXX
----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Sr. VP & CFO
EXECUTED by Purchaser the 7th day of March, 2002.
Purchaser:
TURONIAN CORP., a
Texas corporation
By: /s/ XXXXX XXXXXX
----------------------------------------
Name: Xxxxx Xxxxxx
Title: President
20
Received and acknowledged by the Title Company as of the 7th day of
March, 2002.
Title Company:
RATTIKIN TITLE COMPANY,
a
Texas corporation
By: /s/ XXXXX XXXXXXXX
----------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Sr. VP
21
EXHIBIT A
Legal Description of the Land
BEING a tract of land composed of Lots 11 through and including 00, Xxxxx 00,
XXXXXXXX XXXX, Xxxx of Fort Worth, Tarrant County,
Texas, and all of that parcel
deeded to Blackstone Properties Limited by Quit Claim Deeds recorded in Volume
9813, Page 1462, and Volume 9813, Page 1476, Deed Records of Tarrant County,
Texas, and embracing approximately 0.344 of an acre of land.
1
EXHIBIT B
INTENTIONALLY DELETED
1
EXHIBIT C
Survey Requirements:
1. The Survey must contain a perimeter metes and bounds description of all
the Land to be conveyed (no "save and excepts") and contain a
computation of the area comprising the Land in both acres and square
feet (to the nearest one-thousandth of said measurement) AND A
COMPUTATION OF THE NET USABLE ACRES (DEFINED AS THE TOTAL NUMBER OF
SQUARE FEET CONTAINED WITHIN THE LAND LESS THE NUMBER OF SQUARE FEET
CONTAINED WITHIN EXISTING OR PROPOSED XXXXXX-XX-XXX XX XXXXXX XXXXX,
XXXXXXX, XXXXXX, EASEMENTS, ENCROACHMENTS, REQUIRED OPEN SPACE AND/OR
FLOOD PLAINS AND OTHER AREAS OVER WHICH NO IMPROVEMENTS MAY BE
CONSTRUCTED BY PURCHASER, PURCHASER'S AGENTS, SUCCESSORS OR ASSIGNS
ROUNDED OFF TO THE NEAREST ONE-THOUSANDTH OF AN ACRE).
2. The sides of the Land must be described by giving the distances and
bearings of each side. Curved sides of the Land must be described by
data including length of arc, central angle, radius of circle for the
arc and chord distance and bering. Each call contained in the
description must be clearly shown on the map.
3. The distances, bearings and angles must be taken from a recent
instrument Survey, or recently recertified instrument Survey by a
registered professional engineer or registered public surveyor.
4. The description must include a reference to all streets, alleys, and
other rights-of-way that abut the Land and the width of all
rights-of-way mentioned must be given the first time such rights-of-way
are referred to.
5. For each boundary line abutting a street, road, alley or other means of
access, the legal description must, in calling the boundary line, state
whether the boundary line and the right-of-way line are the same.
6. Each and every symbol and abbreviation depicted on the Survey must be
listed and identified in a Legend. Unidentified symbols and
abbreviations are not acceptable. Further, each matter to be noted by
symbol requires a singular symbol; use of the same symbol to denote
different matters is not acceptable.
7. The words "Point of Beginning" and, if different, the "Point of
Commencement" must appear on the Survey in bold letters with an arrow
indicating same.
8. All structures and improvements on the Land and adjacent property shown
on the Survey (with designation and dimensions of each party wall, if
any) must be shown with horizontal lengths of all sides at ground level
stated and the relation thereof by distances to all boundary lines of
the Land, easements, building setback lines and street lines. In
addition, the number of stories for all structures and improvements
shown must be stated.
9. All existing building setback lines, parking setback lines and height
restrictions, if any, including those established by restrictive
covenant, recorded plat or zoning ordinance
1
(identifying the source of each) must be shown, along with curb cuts,
driveways, sidewalks, xxxxxx and landscaping. If there are no curbcuts,
driveways, sidewalks, improvements, building setback lines, parking
setback lines or height restrictions located on or applicable to the
Property, the Survey must contain a note stating same.
10. All parking and paved areas must be shown, including the number of
vehicles that may be parked. If there are no parking or paved areas,
the Survey Notes must state such facts.
11. All trees with 6" caliper or larger must be shown. Clusters or xxxxxx
of trees may be indicated by a symbol identified in the legend. All
fences, lakes, ponds, creeks, streams and rivers, if any, must be
shown.
12. Field verified information for existing utility locations: sanitary
sewer - size, flowline elevations and manhole locations; water, gas and
electric - sizes and existing meter locations; and telephone and cable
TV. The Survey must also contain the name, address, telephone number
and contact of each of the utilities.
13. Scale of 1" = 50[ ]-0", or less.
14. If there is an object, structure or improvement on or close to a
boundary line such as a building, fence, utility or appurtenance
thereto, paving, structure, etc., the Survey drawing must contain a
statement as to whether such object, structure or improvement
encroaches or protrudes and, if so, state the exact measurements of
each encroachment and/or protrusion.
15. All easements and other matters of record must be shown on the Survey
and include the recording number, volume and page for each document of
record. If a recorded document involves matters that cannot be shown on
the drawing, such document must be listed in the Survey Notes, along
with information describing its effect on the Property.
16. All apparent unrecorded easements or rights-of-way of any kind must be
shown on the Survey and the purpose and beneficiary thereof must be
identified.
17. The Survey Notes must state whether there are any wetland areas and/or
protected habitats located on the Property and if present, the acreage
and square footage of same. All wetland area and/or protected habitat
areas must be plotted on the Survey.
2
EXHIBIT C-1
Surveyor's Certificate
Certified to ____________________________, a _____________________
and/or its assigns, [Seller], [Purchaser's Lender] and _____________________, a
______________.
The undersigned (the "SURVEYOR") hereby certifies that (a) the Survey
Plat dated _______, 199__, prepared by the undersigned, of that certain tract of
land consisting of __________ sq. ft., and ______ acres, in the (describe survey
tract), in the City of _________, County of ________, State of _________, and
the metes and bounds property description set forth thereon are true and correct
and prepared from an actual on-the-ground survey of the real property (the
"PROPERTY") shown thereon and has been made in accordance with "Minimum Standard
Detail Requirements for ALTA/ACSM Land Title Surveys," jointly established and
adopted by ALTA and ACSM in 1999, and includes items 1 through 16 of Table A
thereof, and pursuant to the Accuracy Standards (as adopted by ALTA and ACSM and
in effect on the date of this certification) of an Urban Survey; (b) such survey
was conducted by the Surveyor or under his supervision; (c) all monuments shown
thereon actually exist, and the location and type of material thereof are
correctly shown; (d) the location of all streets, roads, highways and easements
are as shown thereon; (e) except as shown thereon, there are no encroachments
onto the Property or protrusions therefrom, there are no improvements on the
Property, there are no visible easements or rights-of-way on the Property, there
are no visible discrepancies, conflicts, shortages in area or boundary line
conflicts; (f) the distance from the nearest intersecting street or road is as
shown; (g) all recorded easements have been correctly platted thereon; (h) the
boundaries, dimensions and other details shown thereon are true and correct; and
(i) the Property is not located in a 100-year flood plain as presently
designated by the U.S. Corps of Engineers, or in an identified "flood prone
area" as defined by the U.S. Department of Housing and Urban Development,
pursuant to the Flood Disaster Protection Act of 1973, as amended, except as
shown. [NOTE: IF NO PORTION OF THE PROPERTY IS IN A FLOOD PLAIN, DELETE " EXCEPT
AS SHOWN" AND PUT A PERIOD AFTER "AMENDED".]
EXECUTED this _______ day of _____________________, 2002.
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Signature
Printed Name:
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R.P.L.S. No.
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1
