EXHIBIT 10.5
COMMERCIAL
OFFER AND ACCEPTANCE
(Unimproved Real Property)
1) PARTIES AND PROPERTY. Bank of the Ozarks, WCA ("Purchaser") agrees to
buy, and the undersigned seller ("Seller"), agrees to sell, on the terms and
conditions set forth in this contract, the following described real estate in
the County of Pulaski, Arkansas (the "Property"): known as approximately 2.75
acre tract, triangular in shape, bounded by Chenal Parkway on the north and West
Markham Street on the south, together with all interest of Seller in vacated
streets and alleys adjacent thereto, all easements and other appurtenances
thereto, all improvements thereon and all attached fixtures thereon, except as
herein excluded, and called the Property. (See Attachment "A" & "A1")
2) PURCHASE PRICE AND TERMS. Subject to the adjustments and prorations
hereinafter described, the total purchase price will be $1,916,640.00 based upon
an estimated gross area of 119,790 square feet. The total purchase price shall
be the product of $16.00 per square foot times actual gross area. The term
"gross area" shall mean the total number of square feet contained in the
Property. The actual gross area shall be determined by survey of the property
prepared by a registered surveyor selected and approved by both Seller and
Purchaser. The total purchase price shall be adjusted for the difference
between the estimated and the actual gross area. The purchase price shall be
payable by Purchaser as follows:
(a) Xxxxxxx Money. $25,000 to be paid by Purchaser upon acceptance of this
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Contract to be held in escrow by Standard
Abstract and Title Company of Little Rock, Arkansas ("Escrow Agent").
(b) Cash at Closing. The balance of the Final Purchase Price, subject to
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adjustments and prorations, to be paid by Purchaser at closing in cash,
electronic transfer funds, certified check, or cashier's check.
3) ASSIGNMENT. This contract shall be assignable by Purchaser, but only
to an affiliate or related party of Purchaser, without Seller's prior written
consent. This contract shall inure to the benefit of and be binding upon the
heirs, personal representatives, successors and assigns of the parities.
4) EVIDENCE OF TITLE. Seller shall furnish to Purchaser, at Seller's
expense, a current commitment for owner's title insurance policy in an amount
equal to the purchase price within fifteen (15) calendar days after acceptance
of this Contract. Copies of all documents and instruments shown as exceptions
in the title commitment shall be furnished at the same time as the title
commitment. seller shall have the title insurance policy delivered to Purchaser
as soon as practicable after closing and pay the premium at closing.
Additionally, Seller shall furnish to Purchaser, within thirty (30) days after
acceptance of this contract, and at Seller's expense, a current boundary survey
of the property performed by a registered professional surveyor and complying
with ALTA minimum standards. Such boundary survey shall include a legal
description of all portions of the property unquestionably owned by Seller and
not subject to the current
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boundary dispute and a second legal description including all property which
Xxxxxx believes that it owns but which is subject to a dispute of ownership. In
addition, Purchaser may, at its sole expense, arrange for a current
topographical survey of the property to be preformed by a registered
professional surveyor and complying with ALTA minimum standards. Upon closing,
the cost of said topographical survey shall be credited to Purchaser as part of
the Final Purchase Price. Purchaser agrees that Development Consultants
Incorporated is an acceptable registered professional surveyor.
5) TITLE.
(a) Title Review. Purchaser shall have the right to inspect the title
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commitment. Written notice by Purchaser of unmerchantability of title or
of any other unsatisfactory title condition shown by the title commitment
be signed by or on behalf of Purchaser and given to Seller or Listing
company on or before ten (10) calendar days after Purchaser's receipt of
title commitment or, after such ten (10) day period, within five (5)
calendar days after receipt by Purchaser of any documents or endorsements
adding new exceptions to the title commitment. If Seller or Listing
company does not receive Purchaser's notice of unmerchantable or
unsatisfactory title by the date(s) specified above, Purchaser shall be
deemed to have accepted the condition of title as disclosed by the title
commitment as satisfactory. Seller shall provide such affidavits and
information to the title insurance company as
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required to delete customary exclusions and exceptions for survey matters,
mechanics and materialman lien matters, and rights of parties in
possession.
(b) Matters Not Shown by the Public Record. Seller shall deliver to
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Purchaser within ten (10) calendar days after acceptance of this Contract
true copies of all lease(s) and survey(s) in Seller's possession pertaining
to the Property and shall disclose to Purchaser all easements, liens or
other instruments not shown by the public records of which Seller has
actual knowledge. Seller shall disclose to Purchaser in writing within ten
(10) calendar days after acceptance of this Contract, any information
actually known, without investigation or duty to investigate, to Seller
that would affect the value of the Property regarding litigation, building
restrictions, zoning, soil conditions, environmental studies, flood plain
or floodway existence. In addition to Seller's assistance and obligations
elsewhere herein, Seller shall cooperate with the Purchaser in obtaining
permits, consents, easements, and other legal processes affecting the
Property necessary for Purchaser to purchase the Property. Purchaser shall
have the right to inspect the Property to determine if any third party(s)
has any right in the property not shown by the public records (such as an
unrecorded easement, unrecorded lease, or boundary line discrepancy).
Written notice of any unsatisfactory condition(s) disclosed by Seller or
revealed by such inspection shall be signed by or on
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behalf of Purchaser and given to Seller or Listing Company within fifteen
(15) calendar days after receipt of all documents or information regarding
matters not shown in public records.
(c) Right to Cure. If Seller or Listing Company receives notice of
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unmerchantability of title or any other unsatisfactory title condition(s)
or matters as provided in Subsection (a) or (b) above, Seller shall use
best efforts to correct said unsatisfactory title condition(s) on or before
thirty (30) days from the date Seller or Listing Company receives said
notice (the "Cure Period"). If Seller fails to correct said
unmerchantability of title, unsatisfactory title condition(s) or other
matters on or before the last day of the Cure Period, this Contract shall
then terminate; provided, however, Purchaser may, by written notice
received by Seller or Listing Company on or before seven (7) days after the
end of the Cure Period, waive objection to said unsatisfactory title
condition(s) or Purchaser and Seller may elect to extend the Cure Period
for up to a maximum of sixty (60) additional days.
6) DATE OF CLOSING. The date of closing shall be no later than fifteen
(15) days after all conditions of this Offer and Acceptance have been satisfied
or withdrawn, or such earlier date set by mutual agreement, but in no event
shall be later than March 15, 1997.
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7) TRANSFER OF TITLE. Subject to tender of payment at closing as required
hereon and compliance by Purchaser with the other terms and provisions hereof;
Seller shall execute and deliver a general warranty deed to Purchaser at closing
conveying the Property free and clear of all liens, claims and encumbrances
except the general real property and special improvement district taxes for the
year of closing, except those matters reflected by the title commitment accepted
by Purchaser in accordance with subsection 5(a), and subject to building and
zoning regulations.
8) PAYMENT OF ENCUMBRANCES. Any encumbrance required to be paid shall be
paid at or before the time of settlement from the proceeds of this transaction
or from any other source, with evidence of satisfaction furnished to Purchaser
at closing.
9) CLOSING COSTS, DOCUMENTS AND SERVICES. On the closing date, the
parties shall execute and deliver a memorandum of the closing to acknowledge
delivery and acceptance of the items required, the satisfaction of the
conditions precedent to closing and the status of performance of other
provisions of this Contract.
10) PRORATIONS. General and special improvement district taxes for the
year of closing, based on the most recent levy and the most recent assessment,
prepaid contracts, rents, water and sewer charges, owner's association dues, and
interest on continuing loan(s), if any, shall be prorated to date of closing.
The cost of revenue stamps shall be paid equally by Purchaser and Seller. Other
closing costs shall be paid by Seller and Purchaser in
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accordance with local custom. Except as otherwise provided herein, Purchaser and
Seller shall each bear their own costs and expenses.
11) POSSESSION. Possession of the property shall be delivered to
Purchaser at closing.
12) TIME AND ESSENCE/REMEDIES. Time is of the essence hereof. If any
note or check received as xxxxxxx money hereunder or any other payment due
hereunder is not paid, honored or tendered when due, or if any other obligation
hereunder is not performed or waived as herein provided, there shall be the
following remedies:
(a) IF PURCHASER IS IN DEFAULT:
1. Liquidated Damages. All payments and things of value received
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hereunder shall be forfeited by Xxxxxxxxx and retained on behalf
of Seller and both parties shall thereafter be released from all
obligations hereunder. It is agreed that such payments and
things of value are LIQUIDATED DAMAGES and (except as provided in
Subsection (c)) are SELLER'S SOLE AND ONLY REMEDY for Purchaser's
failure to perform the obligations of this Contract Seller
expressly waives the remedies of specific performance and
additional damages.
(b) IF SELLER IS IN DEFAULT:
Purchaser may elect to treat this contract as canceled, in which case
all payments and things of value received hereunder shall be returned. Purchaser
may exercise all other remedies and
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rights available at law or in equity, including specifically the remedies of
specific performance and additional damages.
(c) COSTS AND EXPENSES.
Notwithstanding anything to the contrary, in the event of any
litigation or arbitration arising out of this contract, the court or arbitrator
shall award to the prevailing party all reasonable costs and expense, including
attorney fees.
13) CONDITION OF PROPERTY. Purchaser may, at Purchaser's sole cost,
within thirty (30) days from full execution of this Contract, cause to be
prepared a written report of a site assessment and environmental audit, in
scope, form and substance, and prepared by an independent, competent and
qualified party, satisfactory to the Purchaser (the "Environmental Audit"), a
copy of which shall be provided to Seller at no cost to Seller upon receipt by
Purchaser. Purchaser shall have full and complete access to the Property and
all information of Seller with respect thereto for purposes of conducting the
Environmental Audit or any other tests, assessments or inspections of the
Property Purchaser may choose to undertake. Seller shall disclose to Purchaser,
in writing, any information actually known to Seller, without investigation or
duty to investigate, concerning the environmental condition of the Property on
or before ten (10) days after acceptance of this contract.
Seller hereby grants to Purchaser and the Purchaser's agents the right to
enter upon the property at any time during the term of this Contract to make
surface and subsurface inspections or for any
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other purposes related to Purchaser's requirements to acquisition and use of the
property, provided, however, that Purchaser shall repair any damage made to the
property as a result of said inspection. There will be no tree removal larger
than 3-inch caliper without Seller's prior written approval, which approval will
not be unreasonably withheld. Purchaser will hold Seller harmless from any
injury to property or persons arising as a result of or from Purchaser's or
Purchaser's agent's activities on the property.
Seller acknowledges and agrees that Purchaser shall not be obligated to
purchase the Property if, in Purchaser's sole exclusive judgment based on the
Environmental Audit, or other information received or obtained by Purchaser, the
use or condition of the Property or any part thereof, poses a health or safety
hazard, or subjects the Purchaser to actual or potential financial exposure to
environmental liability, response or remediation cost.
14) AGENCY DISCLOSURES. The selling broker, XXXXX-XXXXXX Real Estate,
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Inc., and its sales agents (Selling Company) represent the Purchaser. Selling
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Company owes duties of trust, loyalty and confidence to Purchaser only. While
the Selling Company has a duty to treat Seller honestly, the Selling Company is
acting on behalf of Purchaser and not Seller. SELLER AND LISTING COMPANY
ACKNOWLEDGE PRIOR TIMELY NOTICE BY SELLING COMPANY THAT IT IS PURCHASER'S AGENT.
Purchaser and Seller acknowledge that Xxxxx-Xxxxx Realty ("Listing
Company") represents the Seller in this transaction.
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Xxxxx-Xxxxx Realty owes duties of trust, loyalty and confidence to Seller only.
PURCHASER AND SELLING COMPANY ACKNOWLEDGE PRIOR TIMELY NOTICE BY LISTING COMPANY
THAT LISTING COMPANY IS SELLER'S AGENT.
15) ADDITIONAL PROVISION.
a) Notwithstanding any other term or provision herein to the contrary,
Purchaser to have forty-five (45) days from full execution of this contract in
which to evaluate the feasibility of the subject site and to arrange financing.
If in Purchaser's sole judgment the subject property is not completely suitable
or financing cannot be arranged, Purchaser shall have the absolute right to
cancel this Contract with written notice to Seller. Xxxxxx agrees to assist
Xxxxxxxxx in any way necessary to obtain the desired rezoning should such
rezoning be necessary. All costs associated with said rezoning shall be borne by
Purchaser. If this contract is canceled by Purchaser, the xxxxxxx money (See
Article 2A) less $10.00 shall be returned to Purchaser within five (5) business
days of written cancellation.
b) Should purchaser determine the site to be satisfactory to
Purchaser, then Purchaser shall have an additional forty-five (45) days to
obtain all State and Federal regulatory approvals for Purchaser's intended use.
Written notice, from Purchaser to Seller, of Purchaser's intent to exercise the
additional 45-day approval period shall be provided. If Purchaser is unable to
obtain said regulatory approvals necessary, then, on or before the ninetieth
(90th) day of the total feasibility period,
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Purchaser shall notify Seller, in writing, of his intent to terminate this
contract and Seller shall return all xxxxxxx monies, less $10.00 dollars, to
Purchaser, within five (5) business days.
16) RECOMMENDATION OF LEGAL COUNSEL. By signing this document, Xxxxxxxxx
and Seller acknowledge that the Selling company or the Listing Company have
recommended that Purchaser and Seller obtain the advice of their own local
counsel regarding examination of title and this Contract.
17) TERMINATION. In the event this Contract is legally terminated without
breach or default by either party, all payments and things of value received
hereunder shall be returned and the parties shall be relieved of all obligations
hereunder.
18) NOTICE OF ACCEPTANCE/COUNTERPARTS. If this Offer and Acceptance is
accepted by Seller in writing and Purchaser receives actual notice of such
acceptance on or before December 13, 1996, this document shall become a contract
between Seller and Purchaser. A copy of this document may be executed by each
party, separately, and when each party has executed a copy thereof, such copies
taken together shall be deemed to be a full and complete contract between the
parties.
19) OTHER NOTICE REQUIREMENTS. Any notice to be given hereunder to the
parties shall be in writing and delivered by certified mail, facsimile
transmission or hand delivery. Notice to each party shall be sufficient if sent
by certified mail, with proper postage affixed, addressed to the party at the
address provided below opposite each signature. In the case of facsimile
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transmission and hand delivery, notice shall be effective only when actually
received. Each party may change the address for notice by giving notice of such
change in accordance with the provisions of this section.
20) ORGANIZATION IN GOOD STANDING. If either Purchaser or Seller are a
partnership or corporation, each party represents and warrants that it is duly
organized, existing, and in good standing under the laws of the State of
Arkansas. It has full power and authority to carry on its business as presently
conducted, to execute and enter into this contract and, in the case of Purchaser
subject to customary regulatory approvals, to consummate the transactions
contemplated hereby.
21) STATE OF TITLE AND ESCROW. The Purchaser and Seller acknowledge that
the legal description set forth in Attachment A and the topographical map of
Attachment A1 are incorrect as set forth as a result of a dispute regarding the
definitive location of the west boundary line of the property. Notwithstanding
any term of this Contract to the contrary, the Purchaser and Seller acknowledge
that the Property is subject to a dispute regarding the correct property line
for the west boundary of the Property between the Seller and the owners of the
contiguous property to the west (the "Boundary Dispute"). Should this dispute
not be resolved prior to closing, pending resolution of the Boundary Dispute,
the parties agree that an amount equal to the number of square feet in
controversy times the price per square foot under this Contract (the "Escrow
Amount") shall be deposited at the time of closing
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with Standard Abstract and Guaranty Company (the "Escrow Agent") pursuant to an
escrow agreement. A general warranty deed to the disputed property shall also be
deposited with the Escrow Agent. The terms of the escrow agreement shall provide
that the Purchaser shall be entitled to that portion of the Escrow Account which
equals the number of square feet conveyed to the Purchaser after resolution of
the Boundary Dispute times the price per square foot under this Agreement;
provided, however, that the Seller shall be entitled to no more than the Escrow
Amount regardless of the number of square feet actually conveyed to Purchaser
after resolution of the Boundary Dispute. the Purchaser shall be entitled to the
balance, if any, in said Escrow Account after payment of the above calculated
amount due Seller. Any earnings on the Escrow Account shall be distributed,
after payment of the Escrow Agent's fee, In the same proportion as the Escrow
Account is distributed after resolution of the Boundary Dispute. The warranty
deed held in escrow shall be delivered to the owner as determined upon
resolution for the Boundary Dispute. Should the Boundary Dispute not be resolved
within sixty (60) months of the date of closing, then the escrowed funds, along
with any interest earned thereon, shall be returned to the Purchaser and the
warranty deed shall be returned to the Seller. Purchaser acknowledges that it
will not be entitled to any of the compensation received by Xxxxxx from any
third party arising from the Boundary Dispute.
22) TAX-FREE EXCHANGE. Xxxxxxxxx agrees, upon request of the seller, to
facilitate Xxxxxx's effecting tax-free exchange (as that
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term is defined under Internal Revenue Code *Sec. 1031) and to execute such
documents as may be necessary or appropriate to accomplish such exchange.
PURCHASER
BANK OF THE OZARKS, WCA
/s/ Xxxxxx X. Xxxxxxx
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Title: Chairman/CEO
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Date: 12/9/96
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Address: 000 X. Xxxxxxx Xxx.,
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Suite 3100, LR, AR 72201
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Fax No. 000-000-0000
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(TO BE COMPLETED BY SELLER AND LISTING COMPANY)
Seller accepts the above proposal this ____ day of December, 1996.
SELLER
AMERICAN TAEKWONDO ASSOCIATION, INC.
/s/ Xxxxx X. Xxxxx, Xx.
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Title: V.P. & C.O.O.
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Date: 12/12/96
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Address: 0000 Xxxxxxxx Xxxx
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Little Rock, Arkansas 72209
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Fax No. 000-000-0000
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We hereby agree to the commission split set forth above.
XXXXX-XXXXX REALTY, INC.
By:
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Title:
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Date:
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The Selling Company agrees to the commission split set forth above and
confirms the respective agency disclosure set forth in Section 19.
Selling Company:
Xxxxx-Xxxxxx Real Estate, Inc.
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By: /s/ Xxx Xxxxx
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Date: 12-9-96
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Address: 000 X. Xxxxxxx, Xxxxx 100
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Little Rock, Arkansas, 72201
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COMMISSION AND INDEMNIFICATION AGREEMENT
Seller agrees to pay Xxxxx-Xxxxx Realty a brokerage commission for service
pursuant to this Contract in an amount equal to five percent (5%) of the final
purchase price at closing. Said commission shall be shared by Xxxxx-Xxxxx Realty
and Xxxxx-Xxxxxx Real Estate, Inc. in the ratio of fifty percent (50%) to Xxxxx-
Xxxxx Realty and fifty percent (50%) to Xxxxx-Xxxxxx Real Estate, Inc. In
consideration for said commission, Xxxxx-Xxxxxx agrees to indemnify and hold
Seller and Xxxxx-Xxxxx Realty harmless from any and all claims by Xxxxxx Xxxxx
Flake and Xxxxxxxx seeking commission, damages or other remedies arising from
the sale of the Property. Xxxxx-Xxxxx Realty and Xxxxx-Xxxxxx Real Estate, Inc.
agree to jointly and severally hold Seller harmless from any and all claims or
disputes arising from the sale of the Property between their two companies.
SELLER:
American Taekwondo Association, Inc.
By: /s/ Xxxxx X. Xxxxx, Xx.
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Title: V.P. & C.O.O.
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We hereby agree to the commission split and indemnification provision set
forth above.
Xxxxx-Xxxxx Realty Xxxxx-Xxxxxx Real Estate, Inc.
By: Xxxxxx Xxxxx By: Xxx Xxxxx
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Title: Broker Title: President
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Date: 12-12-96 Date: 12-13-96
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