Exhibit 10.2
PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT ("Agreement") is made as of September 29, 2006 by
and between TCTB PARTNERS, LTD, a Texas limited partnership, ("TCTB" or
"Seller") as nominee for TCTB COMPANY, a Texas corporation, 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 "Selling Partners"), and Hampshire Plaza Garage, LLC.,
a New Hampshire limited liability company ("Hampshire") and S.E.S. Investments,
Ltd., a Texas limited partnership ("SES") (Hampshire and SES are collectively
referred to as "Purchaser").
In consideration of this Agreement, Seller and Purchaser agree as follows:
1. Sale of Subject Property. Subject and pursuant to the terms of this
Agreement Seller agrees to sell, assign and transfer to Purchaser, and Purchaser
agrees to buy from Seller, an undivided 75% interest in Seller's right, title
and interest in and to the following property (collectively, "Subject
Property"), an undivided 65% interest in the Subject Property will be acquired
and owned by Hampshire and an undivided 10% interest in the Subject Property
will be acquired and owned by SES:
(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 on Exhibit A attached hereto
and made a part --------- hereof 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 Seller, 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 Seller and used
in the operation of the Real Property, (all of which together are
collectively referred to as the "Personal Property").
(c) Leases. Seller's interest as landlord in and to the leases with
various tenants (the "Tenants") described on Exhibit B attached hereto and
made a part hereof, together with all amendments or modifications thereto
(such leases, as amended, being herein referred to as the "Leases").
(d) Permits. Seller's interest in and to all assignable licenses,
permits, certificates of occupancy , approvals, subdivision maps, and
entitlements, if any, owned by Seller and pertaining to the Real Property
and Personal Property, (all of which together are collectively referred to
as the "Permits").
(e) Warranties. Seller's interest in and to all unexpired, assignable
warranties and guaranties given or assigned to, or benefiting, Seller, 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. Seller's interest in all service contracts, maintenance
agreements, landscaping contracts, and maintenance contracts.
(g) Other Intangibles. Seller's interest in and to all other
assignable intangible property (the "Other Intangible Property") owned by
Seller 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.
2. Purchase Price. Purchaser shall pay to Seller, as consideration for the
purchase of the Subject Property, the sum of NINE MILLION AND NO/100 DOLLARS
($9,000,000.00) ("Purchase Price"). The Purchase Price shall be payable in cash
to Seller, or at the direction of Seller, by wire transfer of immediately
available funds, upon Closing, with $1,200,000 to be paid by SES and $7,800,000
to be paid by Hampshire.
3. Conditions Precedent to Closing. Purchaser's obligation to consummate
the transaction contemplated by this Agreement shall be subject to satisfaction
or waiver of each of the following conditions ("Conditions Precedent") on or
before September 29, 2006 ("Contingency Date"):
(a) Title. On or before the Contingency Date, Seller shall furnish to
Purchaser a current Title Certificate abstractor's title certificate
("Title Certificate") issued by the Title Company showing title in Seller
(with legible copies of all underlying title documents listed in the Title
Certificate other than any financing documents encumbering the Real
Property). If the Title Certificate shows any matters that are not
acceptable to Purchaser, in its sole and absolute discretion, then this
Agreement may be terminated, at Purchaser's sole option, by written notice
from Purchaser to Seller. Such notice of termination may be given at any
time on or before the Contingency Date. Except as otherwise provided
herein, upon such termination, neither party will have any further rights
or obligations regarding this Agreement or the Subject Property. Failure of
Purchaser to give Seller notice of termination on or before the Contingency
Date shall constitute an irrevocable waiver by Purchaser of the right of
Purchaser to terminate this Agreement under this Section. All the
Conditions Precedent are specifically stated and agreed to be for the sole
and exclusive benefit of Purchaser, and Purchaser shall have the right
unilaterally to waive, in whole or in part, any Condition Precedent by
written notice to Seller.
(b) Survey. Within ten (10) days after execution of this Agreement,
Seller shall, deliver to Purchaser the surveys in its possession (the
"Survey") of the Property consisting of a plat and field notes prepared by
a licensed surveyor conforming to the Minimum Standard Detail Requirements
for ALTA/ASCM Land Title Surveys (as adopted in 1999), including items 0,
0, 0, 0, 0, 0(x), (xx), (x), 8, 9, 10, 11, 14, 15 and 16 of Table A
thereof. For purposes of the property description to be included in the
Deed, the field notes prepared by the surveyor shall control any conflicts
or inconsistencies with Exhibit B, and such field notes shall be
incorporated herein by this reference upon their completion and approval by
Seller and Purchaser.
(c) Environmental Studies. Within ten (10) days after execution of
this Agreement, Seller shall, at its sole cost and expense, deliver to
Purchaser originals or true and correct copies of all environmental
assessments or studies in Seller's possession or under Seller's control
with respect to the Property.
4. Covenants by Seller. Seller covenants and agrees with Purchaser that
from the date hereof until the actual transfer of record title Seller shall
conduct its business involving the Subject Property as follows (except as
specifically provided to the contrary herein):
(a) Transfers; Easements. Seller shall refrain from transferring any
of the Subject Property, or creating on the Real Property any easements,
restrictions, liens, assessments or encumbrances without the express prior
written consent of Purchaser; provided, however, that nothing herein shall
preclude Seller from replacing any equipment, supplies or machinery in the
ordinary course of operating the Subject Property so long as such
replacement equipment is of type and quality reasonably equivalent to the
replaced equipment.
(b) Contracts. Seller shall refrain from entering into or amending any
contracts or other agreements regarding the Subject Property without the
prior written consent of Purchaser, which consent shall not be unreasonably
withheld or delayed. Seller shall maintain all risk casualty insurance on
the Subject Property.
(c) Operations. Seller shall use commercially reasonable efforts to
operate and insure the Subject Property in a manner consistent with the
existing operation of and insurance on the Subject Property and Seller will
use commercially reasonable efforts to keep, maintain and repair the
Subject Property in substantially its condition as of the date of this
Agreement (casualty and condemnation excepted).
(d) Leases. Seller will not modify, amend or terminate the Leases
without the prior written consent of Purchaser. Seller shall keep, observe
and perform all its obligations as landlord under the Leases.
(e) Encumbrances. From the Effective Date until Closing, not sell,
assign, or convey any right, title or interest whatsoever in or to the
Property, or create or permit to exist, any lien, encumbrance, or charge
thereon without promptly discharging the same.
(f) Notices. To the extent sent or received by or on behalf of Seller,
from the Effective Date until Closing, promptly deliver to Purchaser copies
of written default notices under tenant Leases and Service Contracts,
notices of lawsuits and notices of violations affecting the Property.
(g) Condemnation. Promptly notify Purchaser of any condemnation,
environmental, zoning or other land use regulation proceedings, any notices
of violations of any governmental regulations and any litigation in which
Seller is a party that arises out of the ownership of the Property, in each
case to the extent Seller obtains knowledge thereof.
(h) Litigation. From the Effective Date until Closing, advise
Purchaser promptly of any litigation, arbitration or administrative hearing
before any court or authority concerning or affecting the Property which is
instituted or threatened after the Effective Date.
(i) Documents. From the Effective Date until Closing, update all
documents delivered, or made available, to Purchaser pursuant to this
Agreement from time to time, as appropriate and provide Purchaser with
copies of such updates.
(j) Taxes and Xxxxxxxx. Deliver to Purchaser copies of any bills for
real and personal property taxes and assessments and copies of any notices
pertaining to real estate taxes or valuations or other matters of material
importance to the Property that are received by Seller after the Effective
Date.
(k) Property Modifications. From the Effective Date until Closing, not
make any material alterations to the Property, except in each case in
connection with tenant improvements and/or improvements to the common areas
of the Property required by the tenant Leases.
(l) Representations, Warranties and Covenants. Not take or omit to
take any action that would have the effect of violating any of the
representations, warranties, covenants, and agreements of Seller contained
in this Agreement.
(m) Listing and Other Offers. Not list the Property with any broker or
otherwise solicit, negotiate, entertain inquiries or make or accept any
offers to sell the Property, engage in any discussions or negotiations with
any third party with respect to the sale, financing or other disposition of
the Property, or enter into any contracts or agreements (whether binding or
not, including any letter of intent) regarding any disposition of all or
any part of the Property or authorize or any other party to do so on its
behalf.
5. Representations and Warranties by Seller.
(a) Representations and Warranties. Seller represents and warrants for
itself and each Selling Partner to Purchaser as follows:
(i) Authority. Seller is a limited partnership duly organized and
validly existing and in good standing under the laws of the State of
Texas and in good standing under the laws of the State of Texas.
Seller has the requisite power and authority to enter into and perform
this Agreement in its individual capacity and as nominee from each
Selling Partner. Each Selling Partner shall execute and deliver at
closing the Seller's Closing Documents (as such term is defined in
Section 9(a) hereof) required to be executed by Seller at Closing.
This Agreement and Seller's Closing Documents have been duly
authorized by all necessary action on the part of Seller and each
Selling Partner and have been or will be duly executed and delivered
by each Selling Partner. Seller's execution, delivery and performance
of this Agreement and Seller's Closing Documents by each Selling
Partner will not conflict with or result in a violation of Seller's
organizational documents, or any judgment, order or decree of any
court or arbiter, to which Seller or any Selling Partner is a party.
This Agreement and Seller's Closing Documents (when signed) are valid
and binding obligations of Seller and each Selling Partner, and are
enforceable against Seller and each Selling Partner in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization, creditor's rights and other similar laws.
(ii) Utilities; Mechanical and Electrical Systems. All
installation and connection charges for utilities, mechanical and
electrical systems serving the Real Property have been paid in full
for all invoices received by Seller as of the Closing Date. Seller has
received no written notice of actual or threatened reduction or
curtailment of any utility service currently supplied to the Real
Property.
(iii) Hazardous Substances. Seller shall make available to
Purchaser in accordance with Section 2(c) hereof complete copies of
all environmental reports and studies with respect to the Real
Property conducted or received by Seller from any third party (the
"Environmental Reports"). Except as disclosed by the Environmental
Reports or any other environmental assessment obtained by Purchaser,
to the best of Seller's knowledge, (A) the Real Property has not been
used for the production, storage, deposit or disposal of hazardous
substances in any reportable quantities under and in violation of
applicable environmental laws; and (B) no above or below ground gas or
fuel storage tank is or has been located at the Real Property
(although Purchaser acknowledges that a generator is situated outside
of the building). Seller has not received any written notice from any
applicable governmental authority that any hazardous substances have
been placed or located upon the Real Property in violation of
applicable environmental laws.
(iv) FIRPTA. Seller is not a "foreign person," "foreign
partnership," "foreign trust" or "foreign estate" as those terms are
defined in Section 1445 of the Internal Revenue Code.
(v) Proceedings. There is no action, litigation, condemnation or
proceeding of any kind pending against the Subject Property, which
would have an adverse effect on the use or value of the Subject
Property.
(vi) Condition of the Real Property; No Defects. Seller has not
received written notice from any governmental authority having
jurisdiction over the Real Property of any violation of any applicable
law, rule, regulation or code of any such governmental authority,
which has not been cured or remedied and to the best of Seller's
knowledge, no such violation exists. Seller is not aware of any
material physical or mechanical defects in the condition of any
improvements or equipment in or on the Subject Property, including
roof structure, walls or structural components, and heating
airconditioning, plumbing, ventilation, utility, sprinkler and other
mechanical and electrical systems.
(vii) Insurance. Seller has not received any written notice from
any insurance company or board of fire underwriters remaining uncured
of any defects or inadequacies in or on the Property or any part or
component thereof that would adversely affect the insurability of the
Property or cause any increase in the premiums for insurance for the
Property.
(viii) Licenses and Permits. Seller (i) has obtained all
certificates of occupancy, licenses, and permits required for
operating the Property and all of such certificates of occupancy,
licenses, and permits are in full force and effect, and (ii) has not
taken (or failed to take) any action that would result in the
revocation of such certificates of occupancy, licenses, or permits.
(ix) Mechanical and Electrical Systems. To Seller's knowledge,
all the water, sewer, heating, electrical, plumbing, air conditioning,
and other mechanical and electrical systems of the Improvements are,
and as of the Closing will be, in good repair, condition, and working
order.
(x) Access. The Property has direct access to all streets and
roadways abutting the Property, all of which are completed and
dedicated streets and roadways that have been accepted for public
maintenance by the appropriate authority. There is vehicular and
pedestrian ingress and egress from the Property that is adequate for
the normal and proper operation of the Property. To Seller's
knowledge, no fact or condition exists which would result in the
termination of such ingress and egress.
(xi) Reliance on Other Properties. The Property is an independent
unit which does not now rely on any facilities (other than facilities
covered by Unpermitted Encumbrances or facilities of municipalities or
public utilities) located on any property that is not part of such
Property to fulfill any municipal or other requirement of an
authority, or for the furnishing to such Property of any essential
building systems or utilities (including drainage facilities, catch
basins, and retention ponds). No other such building or other property
that is not part of the Property relies upon any part of the Property
to fulfill any municipal or other requirement of an authority, or to
provide any essential building systems or utilities.
(xii) Condemnation. To Seller's knowledge, no condemnation
proceeding has been commenced against the Property, and no
governmental entity has delivered written notice to Seller threatening
such condemnation proceeding.
(xiii) MUDs and RUDs. The Property is not located within, or
subject to, a road utility district, municipal utility district, or
other similar quasi-governmental district which imposes taxes or
assessments, nor is the Property a part of any other private
association which imposes dues, assessments, or allocates operating or
other costs to the Property.
(xiv) Employees. Purchaser will have no liability for any of
Seller's employees with respect to the Property after the Closing.
(xv) Financial Statements. The financial statements relating to
the Property which were delivered to Purchaser by or on behalf of
Seller as a part of the documents are complete and accurate in all
material respects as of the date thereof, and were prepared in
accordance with sound accounting practices consistently applied and in
the ordinary course of business.
(xvi) Documents. Seller knows of no relevant information missing
from, or any untruth, mistake or inaccuracy in, the documents provided
to Purchaser.
(xvii) Title. Seller owns fee simple title to the Property. No
person has any right or option to purchase the Property or any part
thereof.
(xviii) No Damage. To Seller's knowledge, there has never been
any material damage by fire or other casualty to the Property.
(xix) Books and Records. To the best of Seller's knowledge, the
books and records relating to the Subject Property which have been
made or will be made available to Purchaser by Seller, and which have
been prepared by Seller's property manager, accurately reflect the
operation of the Subject Property.
(xx) Leases.
(A) Seller has delivered to Purchaser a complete and
accurate copy of the Leases identified on Rent Roll attached as
Exhibit "B" to this Agreement (the "Rent Roll"). Except as set
forth in each respective Lease, there are no options to expand,
rights of first refusal, options to terminate, options to renew,
options to purchase, or any rent abatements given to the Tenant.
(B) To the best of Seller's knowledge, the Leases will be,
in full force and effect according to the terms set forth
therein, and the Leases have not been modified, amended, or
altered, in writing or otherwise.
(C) Seller has not received written notice from the Tenants
of any uncured default or unperformed obligation of the Landlord
under the Lease, including, without limitation, failure of the
Landlord to construct any required tenant improvements. No Tenant
has asserted in writing to Seller any offsets, defenses or claims
available against rent payable by it or other performance or
obligations otherwise due from it under the Lease.
(D) To the best of Seller's knowledge, Tenants are not in
default under the Leases (beyond any applicable grace or cure
period), or are in arrears in the payment of any sums or in the
performance of any obligations required of them under the Leases.
(E) There are no brokers' commissions, finders' fees, or
other charges payable or to become payable to any third party on
behalf of Seller as a result of or in connection with the Leases.
(F) To the best of Seller's knowledge, the Tenants have not
assigned their interest in its Leases or sublet any portion of
the premises leased to such Tenants under the Leases.
(G) Those Leases marked with an asterisk on the Rent Roll
shall be amended by the Closing to adjust the rent by the
consumer price index at the next anniversary dated (4-1-07) of
such Lease and, again compounded on each anniversary date
thereafter during the term of such lease. Legacy Reserves shall
amend its Leases by the Closing to equal $7 per square foot plus
an annual compounded CPI adjustment on each anniversary date.
The representations contained in this subparagraph (xx) shall terminate and
be of no further force or effect upon receipt of the estoppel certificates from
Tenants and the provisions of the estoppel certificates shall supersede and
replace such representations to the extent such representations are covered by
the estoppel certificates. Any representations in this subparagraph (xx) that
are not covered in Tenants estoppel certificates shall remain in effect and
shall survive the Closing as provided in Section 8 below.
(xxi) Special Assessments. Except as shown on any tax bills delivered
to Purchaser Seller has not received any notice, in writing, of any special
assessments which affect the Subject Property.
(xxii) Service Contracts. Seller is not a party to any service
contracts which relate to the operation, management, or maintenance of the
Subject Property.
(xxiii) No Other Agreements. Other than the Leases, Seller is not a
party to any leases, service contracts, management agreements, or other
agreements or instruments in force and effect, oral or written, that grant
to any person whomsoever or any entity whatsoever any right, title,
interest or benefit in or to all or any part of the Subject Property, any
rights to acquire all or any part of the Subject Property or any rights
relating to the use, operation, management, maintenance, or repair of all
or any part of the Subject Property;
(xxvi) Certificates. Seller has heretofore provided Purchaser with
complete and accurate copies of all Permits which are known by Seller to
relate to the Subject Property and which are in the possession or control
of Seller.
(xxv) Bankruptcy. Seller is solvent and has not made a general
assignment for the benefit of creditors nor been adjudicated a bankrupt or
insolvent, nor has a receiver, liquidator, or trustee for any of Seller's
properties (including the Subject Property) been appointed or a petition
filed by or against Seller for bankruptcy, reorganization, or arrangement
pursuant to the Federal Bankruptcy Act or any similar Federal or state
statute, or any proceeding instituted for the dissolution or liquidation of
Seller.
(xxvi) No Roll Back Taxes. The Subject Property has not been
classified under any designation authorized by law to obtain a special low
ad valorem tax rate or to receive a reduction, abatement, or deferment of
ad valorem taxes which will result in additional, catch-up or roll-back ad
valorem taxes in the future in order to recover the amounts previously
reduced, abated or deferred.
(xxvii) Notices. Seller shall deliver or cause to be delivered to
Purchaser, promptly upon receipt thereof by Seller, copies of any written
notices of default, or, to the extent within the actual knowledge of
Seller, the occurrence of any event which could result in a default, under
the Lease and shall report to Purchaser, from time to time, the status of
any alleged default thereunder. Seller shall advise Purchaser promptly in
writing of the receipt, by Seller or any of its affiliates, of notice of:
(i) the institution or threatened institution of any judicial,
quasi-judicial or administrative inquiry or proceeding with respect to the
Improvements; (ii) any notice of violation issued by any governmental or
quasi-governmental authority with respect to the Improvements, (iii) any
proposed special assessments, or (iv) any defects or inadequacies in the
Improvements or any part thereof issued by any insurance company or fire
rating bureau.
(xxviii) Warranty of Title. Seller agrees to warrant and forever
defend all and singular the title to the Real Property, as more
specifically set forth in the Deed. Since Purchaser has agreed not to
require an Owner's Title Insurance Policy, Seller's general warranty of
Title to the Real Property shall be joint and several and shall survive the
Closing and continue forever to the fullest extent permitted by law under
and pursuant to this Agreement and Seller's General Warranty Deed delivered
at Closing.
(xxix) Security Deposits. Seller represents that there are no security
deposits being held by Seller as landlord on any of the Leases.
6. Representations and Warranties by Hampshire. Hampshire represents and
warrants to Seller as follows: (a) Hampshire is a New Hampshire, limited
liability company duly organized and validly existing and in good standing under
the laws of the State of New Hampshire, and by the Closing will be authorized to
transact business and in good standing under the laws of Texas; (b) Hampshire
has the requisite power and authority to enter into this Agreement and
Hampshire's Closing Documents (as such term is defined in Section 9(c) hereof);
(c) this Agreement has been duly authorized by all necessary action on the part
of Hampshire and this Agreement and Hampshire's Closing Documents have been or
will be duly executed and delivered by Hampshire; (d) Hampshire's execution,
delivery and performance of this Agreement and Hampshire's Closing Documents
will not conflict with or result in violation of Hampshire's organizational
documents, or any judgment, order or decree of any court or arbiter, to which
Hampshire is a party; and (e) this Agreement and Hampshire's Closing Documents
(when signed) are valid and binding obligations of Hampshire, and are
enforceable against Hampshire in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, creditor's rights and other
similar laws.
7. Representations and Warranties by SES. SES represents and warrants to
Seller as follows: (a) SES is a Texas limited partnership duly organized and
validly existing and in good standing under the laws of the State of Texas; (b)
SES has the requisite power and authority to enter into this Agreement and SES's
Closing Documents (as such term is defined in Section 9(c) hereof); (c) this
Agreement has been duly authorized by all necessary action on the part of SES
and this Agreement and SES's Closing Documents have been or will be duly
executed and delivered by SES; (d) SES's execution, delivery and performance of
this Agreement and SES's Closing Documents will not conflict with or result in
violation of SES's organizational documents, or any judgment, order or decree of
any court or arbiter, to which SES is a party; and (e) this Agreement and SES's
Closing Documents (when signed) are valid and binding obligations of SES, and
are enforceable against SES in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, creditor's rights and other
similar laws.
8. Other Matters Related to Representations and Warranties of Seller
and Purchaser. The respective representations and warranties of Seller and
Purchaser contained in this Agreement shall survive Closing; provided, however,
that (a) any representations and warranties set forth herein, other than those
set forth in the Deed, shall automatically expire on the date which is three (3)
years after the Closing Date ("Warranty Expiration Date"), except that the same
shall not expire as to any such breach or default as to which Purchaser has
instituted litigation against Seller prior to the Warranty Expiration Date; (b)
Seller's total liability for any breach or breaches of its representations and
warranties set forth herein shall in no event exceed Seller's interest in the
Subject Property or the proceeds from the sale thereof, as the case may be; and
(c) Seller shall have no liability whatsoever to Purchaser with respect to any
breach or breaches by Seller of its representations and warranties set forth
herein, if, prior to Closing, Purchaser obtains actual knowledge of a fact or
circumstance, the existence of which would constitute a breach of Seller's
representations and warranties set forth herein, unless such representations and
warranties of Seller are knowingly and intentionally breached by Seller. Among
other things, for purposes hereof, Purchaser shall be deemed to have actual
knowledge of any fact or circumstance set forth in the estoppel certificates
delivered to Purchaser and in any environmental assessments or engineering
reports received by Purchaser. Seller's representations and warranties set forth
herein shall be deemed automatically modified to the extent that any information
contained in any estoppel certificates delivered to Purchaser prior to Closing
or in any environmental assessments or engineering reports received by Purchaser
is inconsistent with the matters which are the subject to such representations
and warranties.
9. Closing.
(a) Closing Date. The closing of the purchase and sale contemplated by
this Agreement ("Closing") shall occur on or before September 29, 2006, or
on such earlier or later date as Seller and Purchaser may mutually agree,
at the offices of Title Company or at such other location as Seller and
Purchaser may mutually agree. However, the effective date for the purposes
of determining all prorations under this contract shall be September 29,
2006 (the "Effective Date").
(b) Purchaser's Closing Conditions Precedent. Purchaser's obligation
to consummate the transaction contemplated by this Agreement shall be
subject to satisfaction or waiver of each of the following conditions
("Purchaser's Closing Conditions Precedent"); provided, however, that
Purchaser shall have the unilateral right to waive any Purchaser's Closing
Condition Precedent, in whole or in part, by written notice to Seller:
(i) The representations and warranties of Seller set forth in
Section 5(a) hereof shall be, in all material respects, true and
complete as of the Closing Date.
(ii) Seller shall have performed all of the material obligations
required to be performed by Seller under this Agreement, as and when
required by this Agreement, in all material respects.
(iii) There shall be no monetary default by any tenant under its
tenant Lease and no material non-monetary default by any tenant under
its tenant Lease.
(iv) No order or injunction of any court or administrative agency
of competent jurisdiction nor any governmental regulation promulgated
by any authority of competent jurisdiction shall be in effect as of
the Closing which restrains or prohibits the transfer of the Property
or the consummation of any other transaction provided for herein.
(v) No action, suit or other proceeding shall be pending which
shall have been brought by any person or entity (other than the
parties hereto and their affiliates) (i) to restrain, prohibit or
change in any material respect the purchase and sale of the Property
or the consummation of any transaction provided for herein, or (ii)
seeking material damages with respect to such purchase and sale or any
other transaction provided for herein.
(vi) Title to the Property and the other assets to be transferred
hereunder shall be delivered to the Purchaser in the manner required
under this Agreement.
(vii) Purchaser shall have received Tenant Estoppel Certificates
as required by this Agreement and none of the same shall contain any
adverse factual information not otherwise disclosed to Purchaser in
writing.
(viii) The physical condition of the Property shall be
substantially the same on the Closing Date as on the Effective Date,
reasonable wear and tear and loss by casualty excepted.
(ix) There shall be no proceeding pending by or against Seller or
any Tenant under the Federal Bankruptcy Code or any similar law.
(c) Seller's Conditions Precedent. Seller's obligation to consummate
the transaction contemplated by this Agreement shall be subject to
satisfaction or waiver of each of the following conditions ("Seller's
Closing Conditions Precedent"); provided, however, that Seller shall have
the unilateral right to waive any Seller's Closing Condition Precedent, in
whole or in part, by written notice to Purchaser:
(i) The representations and warranties of Purchaser set forth in
Section 6 hereof shall be, in all material respects, true and
complete.
(ii) Purchaser shall have performed all of the obligations
required to be performed by Purchaser under this Agreement, as and
when required by this Agreement, in all material respects.
(iii) There shall be no proceeding pending by or against
Purchaser under the Federal Bankruptcy Code or similar law.
(d) Failure of Condition Precedent. In the event that Purchaser's
Closing Conditions Precedent or Seller's Closing Conditions Precedent, as
the case may be, have not been satisfied or waived as of the scheduled
Closing Date as the same may be extended as permitted above, and provided
the failure to satisfy or waive any such condition is not attributable to a
breach or default of this Agreement by Seller or Purchaser, as the case may
be, this Agreement shall terminate (other than the obligations of the
parties that, by the express terms hereof, survive any such termination).
10. Closing Deliveries.
(a) Seller's Closing Documents. On the Closing Date, Seller shall
execute and/or deliver to Purchaser or cause to be executed and/or
delivered the following (collectively, "Seller's Closing Documents"):
(i) Deed. A General Warranty Deed conveying an undivided 65%
interest the Property to Hampshire and an undivided 10% interest in
the Property to SES, free and clear of all encumbrances, in the form
set forth in Exhibit C attached hereto and made a part hereof (the
"Deed").
(ii) Xxxx of Sale. A Xxxx of Sale transferring an undivided 65%
interest in the Personal Property to Hampshire and an undivided 10% in
the Personal Property to SES, in the form set forth in Exhibit D
attached hereto and made a part hereof (the "Xxxx of Sale").
(iii) Assignment of Contracts. An Assignment of Contract
assigning an undivided 65% interest in the Contracts to Hampshire and
an undivided 10% in the Contracts to SES, in the form set forth in
Exhibit E attached hereto and made a part hereof (the "Assignment of
Contracts").
(iv) Assignment of Leases. An Assignment of Leases assigning an
undivided 65% interest in the Leases to Hampshire and an undivided 10%
in the Leases to SES, in the form set forth in Exhibit F attached
hereto and made a part hereof (the "Assignment of Leases").
(v) Estoppel letters from those Tenants market with an "E" next
to their names on Exhibit "B" attached hereto containing information
about their respective Leases acceptable to Purchaser.
(vi) Fully Executed Amendments to those Leases marked with an
asterisk as described in Section 5 (a) (xx) (G) above incorporating
rental adjustments as described in such Section.
(vii) Notice to Tenants. Written notices to the Tenants advising
them of the sale of the Subject Property and directing it to make
future lease payments to the Manager of the Subject Property in
accordance with the Management Agreement, and in the form set forth in
Exhibit G attached hereto and made a part hereof (the "Notice to
Tenants").
(viii) FIRPTA Affidavit. A non-foreign affidavit properly
containing such information as is required by Section 1445(b)(2) of
the Internal Revenue Code and the regulations promulgated thereunder.
(ix) Title Documents. Such affidavits of Seller or other
documents as may be reasonably required by the Title Company in order
to record the Deed and issue the title insurance policy required by
this Agreement.
(x) Title Certificate. At Closing, Seller shall cause the Title
Company to deliver to Purchaser the Title Certificate required by this
Agreement subject only to the Permitted Encumbrances.
(b) Purchaser's Closing Documents. On the Closing Date, Purchaser
shall execute and/or deliver or cause to be executed and/or delivered to
Seller the following (collectively, "Purchaser's Closing Documents"):
(i) Purchase Price. The Purchase Price, plus or minus prorations
and other adjustments, if any, by wire transfer of immediately
available funds.
(ii) Title Documents. Such affidavits of Purchaser other
documents as may be reasonably required by the Title Company in order
to record the Deed.
(c) Purchaser's and Seller's Closing Documents. On the Closing Date,
Seller and Purchaser shall jointly execute and deliver the following:
(i) Closing Statement. A closing statement in form and substance
reasonably acceptable to both Seller and Purchaser, and consistent
with the terms, provisions and conditions of this Agreement.
(ii) Management Agreement. A Management Agreement executed by
Seller and Purchaser providing for the management of the Property for
the period of time following the Closing, in a form set forth in
Exhibit H attached hereto and made a part hereof (the "Management
Agreement).
(iii) Miscellaneous. Such other documents, instruments and
affidavits as shall be reasonably necessary to consummate the
transaction contemplated by this Agreement, including, without
limitation, affidavits identifying any brokers involved as the only
persons entitled to a brokerage or similar commission in connection
with consummation of the transaction contemplated hereby.
11. Adjustment and Prorations. At Closing, Seller and Purchaser shall make
all adjustments and apportion all expenses with respect to the Subject Property,
including, without limitation, the following:
(a) Ad Valorem Taxes. Ad valorem taxes and business personal property
taxes for the Subject Properties for the current calendar year will be
prorated to the Closing Date, and Seller will pay to Buyer, in cash at
Closing. Seller's pro rata portion of such taxes will be based upon the
taxes actually assessed for the current calendar year.
(b) Title Certificate. Seller shall pay for the cost of the Title
Certificate required under this Agreement.
(c) Closing Fee. Seller and Purchaser will each pay one-half of any
reasonable and customary closing fee by the Title Company.
(d) Rents/Expenses. The following items shall be prorated on an
accrual basis up to and including the Effective Date, on the basis of the
most recent ascertainable amounts thereof or on the basis of such other
reasonably reliable information with respect thereto: (i) current and
advance rental payments under the Leases; (ii) operating expense and
insurance escalations and adjustments and other charges payable by the
Tenants to the landlord under the Leases, excluding any contributions
toward the payment of Taxes (collectively, "Expense Contributions"); (iii)
any utility charges and deposits made by Seller with respect to utilities
for which the landlord under the Leases is responsible; and (iv) all other
items of accrued or prepaid income and expenses, other than delinquent
rental paymentsunder the Lease.
(e) Recording Costs. Seller shall pay the cost of recording all
documents necessary to place record title in the condition required by this
Agreement other than the cost of recording the Deed which shall be paid by
Purchaser.
(f) Operating Expenses. All other operating costs of the Property but
only if and to the extent such operating costs are payable by Seller and
not Tenants under the Leases, shall be allocated between Seller and
Purchaser as of the Effective Date, so that Seller pays that part of such
other operating costs payable before the Effective Date, and Purchaser pays
that part of such operating costs payable from and after the Effective Date
associated with Purchaser's undivided interest in the Property.
(g) Attorney's Fees. Each of the parties shall pay its own attorneys'
fees, except that a party defaulting under this Agreement or any closing
document shall pay the reasonable attorneys' fees and court costs incurred
by the nondefaulting party to enforce successfully its rights regarding
such default.
12. Damage. If, prior to the Closing Date, all or any part of the
Improvements are damaged by fire or other casualty, Seller shall promptly give
notice to Purchaser of such fact. If any part of the Improvements are
substantially damaged, at Purchaser's option (to be exercised by Purchaser's
written notice at any time prior to the Closing Date), this Agreement shall
terminate. In the event of any such termination of this Agreement, neither party
will have any further obligations under this Agreement (other than the
obligations of the parties that, by the express terms hereof, survive any such
termination). If Purchaser fails to elect to terminate (in the manner provided
in this Section 10) despite such damage, or if the Improvements are damaged but
not substantially, this Agreement shall not terminate, and Purchaser shall
purchase the Subject Property as set forth in this Agreement; provided however,
that Seller shall assign to Purchaser, its rights to any insurance proceeds
related to the damage. For purposes of this Section 10, the words "substantially
damaged" mean damage that would cost $500,000 or more to repair or damage that
would entitle the Tenants to terminate the Leases.
13. Condemnation. If, prior to the Closing Date, eminent domain proceedings
are commenced against all or any part of the Subject Property, or if the Subject
Property is subjected to a bona fide threat of eminent domain, or if Seller has
received notice that any such eminent domain proceedings are contemplated,
Seller shall immediately give notice to Purchaser of such fact and, at
Purchaser's option (to be exercised prior to Closing), this Agreement shall
terminate. In the event of any such termination, neither party will have further
obligations under this Agreement (other than the obligations of the parties
that, by the express terms hereof, survive any such termination). If Purchaser
fails to elect to terminate (in the manner provided in this Section 11), then
there shall be no reduction in the Purchase Price, and Seller shall assign to
Purchaser at the Closing Date all of Seller's right, title and interest in and
to any award made or to be made in the condemnation proceedings. Prior to the
Closing Date, Seller shall not designate counsel, appear in, or otherwise act
with respect to the condemnation proceedings without Purchaser's prior written
consent, which consent shall not be unreasonably withheld or delayed; provided,
however, that if any action is necessary with respect to such proceeding to
avoid any forfeiture or material prejudice, Seller shall be entitled to take
such action as and to the extent necessary without obtaining Purchaser's prior
written consent.
14. Broker's Commission. Seller represents and warrants to Purchaser that
in connection with the transaction contemplated hereby, no third party broker or
finder has been engaged or consulted by Seller or is entitled to compensation or
commission in connection herewith. Purchaser represents and warrants to Seller
that in connection with the transaction contemplated hereby, no third party
broker or finder has been engaged or consulted by Purchaser or is entitled to
compensation or commission in connection herewith.
15. Mutual Indemnification. Seller and Purchaser agree to indemnify each
other against, and hold each other harmless from all liabilities (including,
without limitation, reasonable attorneys' fees in defending against claims)
arising out of the ownership, operation or maintenance of the Subject Property
for their respective periods of ownership. If and to the extent that the
indemnified party has insurance coverage, or the right to make claim against any
third party for any amount to be indemnified against as set forth above, the
indemnified party will, upon full performance by the indemnifying party of its
indemnification obligations, assign such rights to the indemnifying party. If
such rights are not assignable, the indemnified party will diligently pursue
such rights by appropriate legal action or proceeding and assign the recovery
and/or right of recovery to the indemnifying party to the extent of the
indemnification payment made by such party. The provisions of this Section shall
survive Closing and execution and delivery of the Deed.
16. Assignment. Purchaser may assign its rights under this Agreement
without the prior written consent of Seller to effectuate a like-kind exchange
of real property under Section 1031 of the Internal Revenue Code of 1986, as
amended. Purchaser agrees to cooperate with Seller in effecting such like-kind
exchange.
17. Notices. Any notice or other communication in connection with this
Agreement shall be in writing and shall be sent by United States certified mail,
return receipt requested, postage prepaid, by nationally recognized overnight
courier guarantee next day delivery, by telecopy or facsimile transmission, or
by personal delivery, properly addressed as follows:
If to Seller: TCTB Partners, Ltd
000 X. Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxx Xxxxxx
If to SES: S.E.S. Investments, Ltd.
X.X. Xxx 00000
Xxxxxxx, Xxxxx 00000
Attn: Xxx Xxxxx
If to Hampshire: Hampshire Plaza Garage, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxx
All notices shall be deemed given three (3) business days following deposit
in the United States mail with respect to certified or registered letters, one
(1) business day following deposit if delivered to an overnight courier
guaranteeing next day delivery and on the same day if sent by personal delivery
or by telecopy or facsimile transmission (with proof of transmission). Attorneys
for each party shall be authorized to give notices for each such party. Any
party may change its address for the service of notice by giving written notice
of such change to the other party, in any manner above specified.
18. Captions. The section headings or captions appearing in this Agreement
are for convenience only, are not a part of this Agreement, and are not to be
considered in interpreting this Agreement.
19. Entire Agreement; Modification. This Agreement and the Distribution
Agreement constitutes the entire agreement between the parties with respect to
the subject matter herein contained, and all prior negotiations, discussions,
writings and agreements between the parties with respect to the subject matter
herein contained are superseded and of no further force and effect. No covenant,
term or condition of this Agreement shall be deemed to have been waived by
either party, unless such waiver is in writing signed by the party charged with
such waiver.
20. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
21. Controlling Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
22. Severability. The unenforceability or invalidity of any provisions
hereof shall not render any other provision herein contained unenforceable or
invalid.
23. Time of Essence. Time is of the essence of this Agreement.
24. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
25. Exhibits. The following exhibits are made a part hereof, with the same
force and effect as if specifically set forth herein:
Exhibit A - Legal Description
Exhibit B - Schedule of Leases
Exhibit C - Form of General Warranty Deed
Exhibit D - Form of Xxxx of Sale
Exhibit E - Assignment of Contracts
Exhibit F - Assignment of Leases
Exhibit G - Form of Notice to Tenants
Exhibit H - Management Agreement
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELLERS:
TCTB Partners, Ltd.
By: TCTB Company, Inc.,
its sole general partner
By:_____________________________
Xxx Xxxxxx, President
TCTB COMPANY, INC.
By:_____________________________
Xxx Xxxxxx, President
AMEN PROPERTIES, INC.
By:_____________________________
________________________________
XXXX X. XXXXX
________________________________
XXXX X. XXXXX
MCGRAW BROTHERS INVESTMENTS
By:_____________________________
________________________________
XXXX XXXXXXXXX
________________________________
XXXX XXXXXXX
________________________________
XXX XXXXXX
PURCHASERS:
S.E.S.
Investments, Ltd.
By: S.E.S. Operating, Inc.,
its general partner
By:_____________________________
Xxx Xxxxx, President
Hampshire Plaza Garage, LLC
By Universal Guaranty Life
Insurance Company, Member
By:_____________________________
Xxxx Xxxxx, Assistant V. P.
EXHIBIT A
Legal Description
Bank of America Building
Garage and Motor Bank Building
000 Xxxx Xxxx Xxxxxx, and 000 X. Xxxxxxx Xxxxxx
Xxxxxxx Xxxxx 00000
COMPLETE PROPERTY DESCRIPTION: Situated in Midland County, Texas, to wit:
TRACT ONE: Being ALL OF BLOCK SEVEN (7) of ORIGINAL TOWN of Midland, Midland
County, Texas, according to the map or plat thereof recorded in Volume 3, Page
232 of he Deed Records of Midland County, Texas, together with the North-South
alley extending through said Block which alley was abandoned by the City of
Midland by ordinance No. 5081 dated August 24, 1976 and conveyed by the City of
Midland by Quit Claim Deed to the First National Bank of Midland, Texas dated
December 10, 1982 but effective as of September 2, 1976 and now recorded in
Volume 765, Page 308; and by Quit Claim Deed executed by the City of Midland to
Texas Employment Commission, State of Texas, dated December 10, 1982 but
effective as of September2, 1976, and now recorded in volume 765, page 310, both
in the Deed Records of Midland County, Texas.
TRACT TWO: Being ALL OF BLOCK SIXTY FOUR (64) of ORIGINAL TOWN of Midland,
Midland County, Texas, according to the map or plat thereof recorded in Volume
3, page 232 of the Deed Records of Midland County, Texas, together with the
North-South alley extending through said Block, which alley was abandoned by the
City of Midland by Ordinance No. 4532, dated October 29, 1970 and conveyed by
the City of Midland, Texas, by Quit Claim Deed to The First National Bank of
Midland, Texas, dated October 29, 1970 and now recorded in Volume 765, Page 306
of the Deed Records of Midland County, Texas.
TRACT THREE: Being ALL OF LOTS THIRTEEN (13), FOURTEEN (14), FIFTEEN (15),
SIXTEEN (16), SEVENTEEN (17), EIGHTEEN (18), BLOCK SIXTY FIVE (65) of ORIGINAL
TOWN of Midland, Midland County, Texas, according to the map or plat thereof
recorded in Volume 3, Page 232 of the Deed Records of Midland County, Texas, and
being all the property bounded on the north by a twenty foot alley, on the east
by a twenty foot alley, on the south by West Missouri Avenue - an eighty foot
right of way, and on the west by Xxxxx Xxxxxxxx Xxxxxx - an eighty foot right of
way.
TRACT FOUR: All of the EASEMENT ESTATE in and to and over the air space rights,
and all other rights, titles and interests granted by the City of Midland,
Texas, pursuant to that certain Air Space Easement Agreement dated April 1,
1976, recorded in Volume 764, Page 710 of the Deed Records of Midland County,
Texas: Texas: said Air Space Easement Agreement covering property fully
described as follows:
A 12,000-square foot strip of land located on Xxxxx Xxxxxxxx Xxxxxx at its
intersection with West Missouri Avenue, more fully described by metes and bounds
as follows:
BEGINNING at the southwest corner of Block 64, Original Town of Midland, Midland
County, Texas, the same being the intersection of the west right of way line of
Xxxxx Xxxxxxxx Xxxxxx with the north right of way line of west Missouri Avenue
and the southwest corner of this tract:
THENCE North 150 Feet along on the east line of Block 64, and the west right of
way line of Xxxxx Xxxxxxxx Xxxxxx to a point for the northwest corner of this
tract:
THENCE East 80 Feet to a point in the west line of Block 65 Original Town, the
same being the east right of way line of South Colorado Street, and the
southwest corner of the 20 foot alley running east and west through Block 65,
and the northeast corner of this tract:
THENCE South 150 Feet along the west line of Block 65 and the east right of way
line of Xxxxx Xxxxxxxx Xxxxxx to its intersection with the north right of way
line of West Missouri Avenue and the southeast corner of this tract;
THENCE West 80 Feet to the PLACE OF BEGINNING
CENTURY PLAZA BUILDING
000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxx
TRACT ONE: BEING SOUTH 115 FEET OF THE W/2 OF LOT 14 AND THE SOUTH 15 FEET OF
XXX 00 XXXXX 00, XXXXXXXX XXXX, and addition to the City of Midland County,
Texas, according to the map or plant thereof as recorded in Volume 3, Page 000,
Xxxx Xxxxxxx Xxxxxxx Xxxxxx, Xxxxx.
TRACT TWO: BEING AIRSPACE COLUME ONE: THE WEST 15 FEET OF THE E/2 OF THE SOUTH
115 FEET OF XXX 00 XXXXX 00, XXXXXXXX XXXX xx Xxxxxxx Xxxxxx, Xxxxx, but not
below a elevation of 2,791.93 feet above sea level but not above an elevation of
2,954.18 feet above sea level;
AIRSPACE COLUMN TWO: THE SOUTH 15 FEET OF THE NORTH 35 FEET OF XXX 00, XXX XXX
XXXXX 00 XXXX XX XXX XXXXX 00 FEET OF THE W/2 OF XXX 00, XXXXX 00 XXXXXXXX XXXX
of Midland County, Texas, from but not below an elevation of 2,792.93 feet above
sea level but not above an elevation of 2,954.18 feet above sea level.
EXHIBIT B
Schedule of Leases/Rent Roll
EXHIBIT C
Form of General Warranty Deed
GENERAL WARRANTY DEED
---------------------
STATE OF TEXAS ss.
ss.
COUNTY OF MIDLAND ss.
TCTB COMPANY, INC., a Texas corporation, AMEN PROPERTIES, INC., A Delaware
corporation, XXXX X. XXXXX, CARRY X. XXXXX, MCGRAW BROTHERS INVESTMENTS, a Texas
general partnership, XXXX XXXXXXXXX, XXXX XXXXXXX and XXXX XXXXXX, and TCTB
PARTNERS, LTD, a Texas limited partnership (collectively referred to as
"Grantor") for and in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00) paid in cash to Grantor by the Grantee herein named, has GRANTED,
BARGAINED, SOLD and CONVEYED, and by these presents does GRANT, BARGAIN, SELL
and CONVEY UNTO HAMPSHIRE PLAZA GARAGE, LLC., a New Hampshire limited liability
company ("Hampshire") whose mailing address is 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, and S.E.S. INVESTMENTS, LTD., a Texas limited partnership
("SES") whose mailing address is X.X. Xxx 00000, Xxxxxxx, Xxxxx 00000 (Hampshire
and SES are collectively referred to as "Grantees"), the receipt and sufficiency
of which consideration are hereby acknowledged, has GRANTED, BARGAINED, SOLD and
CONVEYED, and by these presents does GRANT, BARGAIN, SELL and CONVEY UNTO
Grantees an undivided 75% interest in and to those certain parcels of real
estate located at 000 Xxxx Xxxx, 000 Xxxx Xxxx and 000 X. Xxxxxxx, xx Xxxxxxx,
Xxxxx, legally described on Exhibit A attached hereto and made a part hereof
(the "Lands"), together with (i) all building structures, improvements and
fixtures owned by Seller 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 Grantor, if any, in and to the streets, alleys
and rights-of-way adjacent to the Land and the Improvements (the "Appurtenant
Rights"), such interests to be owned an undivided 65% by Hampshire and an
undivided 10% by SES.
TO HAVE AND TO HOLD the Lands and the Improvements unto Grantees, and their
successors and assigns, in fee simple forever.
Grantor WILL WARRANT AND FOREVER DEFEND, all and singular the Lands and the
Improvements unto Grantees, their successors and assigns, against every person
whomsoever lawfully claiming or to claim the same or any part thereof.
With respect to the Appurtenant Rights, Grantor is hereby only granting,
selling and conveying to Grantee Grantor's right, title and interest in and to
same without warranty (whether statutory, express or implied).
Each Grantor's liability for the Warranty of Title contained in this Deed
shall be joint and several and shall be binding on said Grantee and his or its
respective heirs, executors, administrators, successors and assigns to the
fullest extent permitted by applicable law.
WITNESS WHEREOF, Grantor has executed this Warranty Deed to be effective as
of the 29th day of September, 2006.
GRANTOR
-------
TCTB Partners, Ltd.
By: TCTB Company, Inc.,
its sole general partner
By:_____________________________
Xxx Xxxxxx, President
TCTB COMPANY, INC.
By:_____________________________
Xxx Xxxxxx, President
AMEN PROPERTIES, INC.
By:_____________________________
________________________________
XXXX X. XXXXX
________________________________
XXXX X. XXXXX
MCGRAW BROTHERS INVESTMENTS
By:_____________________________
________________________________
XXXX XXXXXXXXX
________________________________
XXXX XXXXXXX
________________________________
XXX XXXXXX
STATE OF TEXAS ss.
ss.
COUNTY OF MIDLAND ss.
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2006, 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 ________________, 2006.
___________________________________________
Notary Public in and for the State of Texas
My commission expires:_______________
STATE OF TEXAS ss.
ss.
COUNTY OF MIDLAND ss.
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2006, by Xxx Xxxxxx, the President of TCTB Company, Inc., a Texas
corporation on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of ________________, 2006.
___________________________________________
Notary Public in and for the State of Texas
My commission expires:_______________
STATE OF TEXAS ss.
ss.
COUNTY OF MIDLAND ss.
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2006, by ______________________________, the
_______________________ of AMEN PROPERTIES, INC.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of ________________, 2006.
___________________________________________
Notary Public in and for the State of Texas
My commission expires:_______________
STATE OF TEXAS ss.
ss.
COUNTY OF MIDLAND ss.
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2006, by XXXX X. XXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of ________________, 2006.
___________________________________________
Notary Public in and for the State of Texas
My commission expires:_______________
STATE OF TEXAS ss.
ss.
COUNTY OF MIDLAND ss.
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2006, by XXXX X. XXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of ________________, 2006.
___________________________________________
Notary Public in and for the State of Texas
My commission expires:_______________
STATE OF TEXAS ss.
ss.
COUNTY OF MIDLAND ss.
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2006, by ______________________________, the
_______________________ 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 ________________, 2006.
___________________________________________
Notary Public in and for the State of Texas
My commission expires:_______________
STATE OF TEXAS ss.
ss.
COUNTY OF MIDLAND ss.
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2006, by XXXX XXXXXXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of ________________, 2006.
___________________________________________
Notary Public in and for the State of Texas
My commission expires:_______________
STATE OF TEXAS ss.
ss.
COUNTY OF MIDLAND ss.
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2006, by XXXX XXXXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of ________________, 2006.
___________________________________________
Notary Public in and for the State of Texas
My commission expires:_______________
STATE OF TEXAS ss.
ss.
COUNTY OF MIDLAND ss.
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2006, by XXX XXXXXX.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal this ___ day of ________________, 2006.
___________________________________________
Notary Public in and for the State of Texas
My commission expires:_______________
EXHIBIT D
Form of Xxxx Of Sale
Xxxx of Sale
THIS XXXX OF SALE ("Xxxx of Sale") is executed this 29th day of September
2006, by TCTB COMPANY, INC., a Texas corporation AMEN PROPERTIES, INC., A
Delaware corporation, XXXX X. XXXXX, CARRY X. XXXXX, XXXXXX BROTHERS
INVESTMENTS, a Texas general partnership, XXXX XXXXXXXXX, XXXX XXXXXXX and XXXX
XXXXXX, collectively referred to as ("Seller"), in favor of Hampshire Plaza
Garage, LLC., a New Hampshire limited liability company ("Hampshire") and S.E.S.
Investments, Ltd., a Texas limited partnership ("SES") (Hampshire and SES are
collectively referred to as "Purchaser")
1. Reference to Purchase Agreement. Reference is made to that certain
Purchase Agreement dated as of September 29, 2006, by and between Seller and
Purchaser, pursuant to which Seller has agreed to sell to Purchaser, and
Purchaser has agreed to purchase from Seller, the improved real property and
other assets described therein ("Purchase Agreement"). Capitalized terms used
herein and not otherwise defined herein shall have the meaning set forth in the
Purchase Agreement.
2. Sale. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers to Purchaser an undivided 75% interest in Seller's right,
title and interest in the Personal Property.
3. Disclaimer of Warranties. Seller makes no warranties or representations
as to the Personal Property. AMONG OTHER THINGS, ALL WARRANTIES OF QUALITY,
FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY ARE HEREBY EXPRESSLY
DISCLAIMED AND EXCLUDED.
In witness whereof Seller has executed this Xxxx of Sale the day and year
first above written.SELLERS:
TCTB Partners, Ltd.
By: TCTB Company, Inc.,
its sole general partner
By:_____________________________
Xxx Xxxxxx, President
TCTB COMPANY, INC.
By:_____________________________
Xxx Xxxxxx, President
AMEN PROPERTIES, INC.
By:_____________________________
________________________________
XXXX X. XXXXX
________________________________
XXXX X. XXXXX
MCGRAW BROTHERS INVESTMENTS
By:_____________________________
________________________________
XXXX XXXXXXXXX
________________________________
XXXX XXXXXXX
________________________________
XXX XXXXXX
Exhibit E
Assignment of Contracts
Exhibit F
Assignment of Leases
Exhibit G
Notice to Tenants
Exhibit H
Management Agreement
