1
REAL ESTATE PURCHASE AND SALE AGREEMENT
THIS REAL ESTATE PURCHASE AND SALE AGREEMENT ("AGREEMENT") is entered
into as of the Effective Date (as hereinafter defined) between XXXXXXX OIL & GAS
CO., a New Mexico corporation, and XXXXXX X. XXXXXXX (collectively, the
"SELLER") and KEY FOUR CORNERS, INC., a Delaware corporation ("PURCHASER").
W I T N E S S E T H:
In consideration of the mutual covenants set forth herein and in
consideration of the xxxxxxx money deposit herein called for, the receipt and
sufficiency of which are hereby acknowledged by Seller, the parties hereto
hereby agree as follows:
Section 1. Sale and Purchase. Seller shall sell, convey, and assign to
Purchaser, and Purchaser shall purchase and accept from Seller, for the Purchase
Price (hereinafter defined) and on and subject to the terms and conditions
herein set forth, the following:
a. the tracts or parcels of land situated in San Xxxx County,
New Mexico more particularly described in Exhibit A hereto together
with all rights and interests appurtenant thereto, including all of
Seller's right, title, and interest in and to adjacent streets, alleys,
rights-of-way, and any adjacent strips or gores of real estate (the
"LAND"); any and all right, title and interest of Seller in and to any
oil, gas or other minerals or mineral rights of whatever nature or
character in, on or beneath the Land and/or appurtenant thereto (the
"MINERALS"); any and all right, title and interest of Seller, to the
present or future use of wastewater, wastewater capacity, drainage,
water or other utility facilities to the extent same pertain to or
benefit the Land or the Improvements, including, without limitation,
any and all reservations of or commitments or letters covering any such
use in the future, whether now owned or hereafter acquired (the
"UTILITIES"); all fixtures and improvements located on the Land (the
"IMPROVEMENTS"); and all rights, titles, and interests appurtenant to
the Land and Improvements;
b. all tangible personal property and fixtures of any
kind attached to or used in connection with the ownership, maintenance,
or operation of the Land or Improvements (the "PERSONALTY"), including
without limitation those items described in Exhibit B hereto; and
c. all (i) contracts or agreements, such as maintenance,
service, or utility contracts (the, "PROPERTY AGREEMENTS"), to the
extent Purchaser elects to take assignment thereof, (ii) warranties,
guaranties, indemnities and claims, (iii) licenses, permits or similar
documents, (iv) telephone exchanges, trade names, marks and other
identifying material, (v) plans, drawings, specifications, surveys,
engineering reports and other technical information, (vi) insurance
contracts or policies, to the extent Purchaser elects to take
assignment thereof, and (vii) other property (real, personal, or
mixed), owned or held by Seller that relates, in any way, to the
2
design, construction, ownership, use, leasing, maintenance, service or
operation of the Land, Minerals, Utilities, Improvements or Personalty.
The above listed items are herein collectively called the "PROPERTY". All of the
Property shall be conveyed, assigned, and transferred to Purchaser at Closing
(hereinafter defined) free and clear of all liens, claims, easements, and
encumbrances whatsoever except for the Permitted Encumbrances (hereinafter
defined).
Section 2. Purchase Price. The price for which Seller shall sell and
convey the Property to Purchaser, and which Purchaser shall pay to Seller, is
One Million and Seven Thousand and NO/100 Dollars ($1,007,000.00) ("PURCHASE
PRICE"). The Purchase Price shall be payable in cash or cash equivalent at the
Closing (hereinafter defined).
Section 3. Xxxxxxx Money. Within five (5) business days after the
execution hereof, Purchaser shall deliver to San Xxxx County Abstract & Title
Company, 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 Attn: Xx. Xxx
Xxxxxxx ("TITLE COMPANY") a check in the amount of $50,000.00 which the Title
Company shall immediately deposit for collection in an interest bearing account.
As used in this Agreement, the term "XXXXXXX MONEY" shall mean the amount so
deposited by Purchaser, together with all interest earned thereon while in the
custody of Title Company. The "EFFECTIVE DATE" of this Agreement shall be the
date the Xxxxxxx Money and a fully executed copy of this Agreement is delivered
to the Title Company and such delivery is acknowledged by the Title Company.
Section 4. Independent Consideration. Contemporaneously with the
delivery of the Xxxxxxx Money, Purchaser shall deliver to Seller and Seller
hereby acknowledges the receipt of, a check in the amount of FIFTY AND NO/100
DOLLARS ($50.00) ("INDEPENDENT CONSIDERATION"), which amount the parties
bargained for and agreed to as consideration for the Seller's grant to Purchaser
of Purchaser's exclusive right to purchase the Property pursuant to the terms
hereof and for Seller's execution, delivery and performance of this Agreement.
This Independent Consideration is in addition to and independent of any other
consideration or payment provided in this Agreement, is nonrefundable under any
circumstances, and shall be retained by Seller notwithstanding any other
provisions of this Agreement.
Section 5. Delivery of Information by Seller.
a. Within fifteen (15) days after the Effective Date, Seller,
at its sole cost and expense, shall deliver or cause to be delivered to
Purchaser the following:
i. commitment for Title Insurance ("TITLE
COMMITMENT") from the Title Company, underwritten by Chicago
Title Insurance Company or Commonwealth Land Title Insurance
Company, setting forth the status of the title of the Land and
Improvements and showing all liens, claims, encumbrances,
easements, rights-of-way, encroachments, reservations,
restrictions, and all other matters of record affecting the
Land or Improvements; and
2
3
ii. a true, complete, and legible copy of all
documents referred to in the Title Commitment ("TITLE
COMMITMENT DOCUMENTS").
b. Within fifteen (15) days after a request from Purchaser,
Seller, at its sole cost and expense, shall deliver to Purchaser an
updated survey ("SURVEY") consisting of a plat and field notes prepared
by a licensed surveyor acceptable to Purchaser and Title Company,
which Survey shall (i) reflect the actual dimensions of, and area
within, the Land, the location of any easements, setback lines,
encroachments, or overlaps thereon or thereover, and the outside
boundary lines of all Improvements, (ii) identify by recording
reference all easements, set back lines, and other matters referred to
in the Title Commitment, (iii) include the surveyor's registered number
and seal, the date of the Survey, and a certificate satisfactory to
Purchaser, (iv) reflect that there is access to and from the Land from
a publicly dedicated street or road, (v) be sufficient to cause the
Title Company to delete the printed exception for "discrepancies,
conflicts or shortages in area or boundary lines, or encroachments, or
any overlapping of improvements" in the Owner's Title Policy to be
delivered pursuant to Section 9 hereof, (vi) reflect any area within
the Land that has been designated by the Federal Insurance
Administration, the Army Corps of Engineers, or any other governmental
agency or body as being subject to special or increased flooding
hazards, and (vii) in general, comply with the requirements for an ALTA
survey. For purposes of the property description to be included in the
general warranty deed to be delivered pursuant to Section 9 hereof, the
field notes prepared by the surveyor shall control any conflicts or
inconsistencies with Exhibit A hereto, and such field notes shall be
incorporated herein by this reference upon their completion and
approval by Purchaser.
c. Within fifteen (15) days after the Effective Date of this
Agreement, Seller, at its sole cost and expense, shall deliver to
Purchaser current searches of all Uniform Commercial Code financing
statements filed with the Office of the Secretary of State of New
Mexico and the County Clerk of San Xxxx County, New Mexico against
Seller and Seller's predecessors in title reflecting all effective
financing statements then of record relating to the Property or any
part thereof.
d. Within fifteen (15) days after the Effective Date of this
Agreement, Seller, at its sole cost and expense, shall deliver to
Purchaser (i) legible copies of all Property Agreements; (ii) copies of
all engineering and technical reports in the possession of Seller or
its representatives that concern the Land or Improvements, including
oils testing reports and reports of environmental or hazardous waste
inspections or surveys; (iii) copies of all plans and specifications
that describe or relate to the Improvements; and (iv) profit and loss
statements reflecting the results of operation of the Property for the
preceding year. The documents described in this Section 5(d) are herein
collectively called the "DOCUMENTS", and the information contained in
the Documents is herein collectively called the "INFORMATION".
Section 6. Right of Inspection; Contingency Period. From the Effective
Date to the Closing Date, Seller shall afford Purchaser and its representatives
a continuing right to inspect, at reasonable hours, the Property, and all books,
records, contracts, and other documents or data pertaining to the ownership,
3
4
operation, or maintenance of the Property; provided, however, that in conducting
its inspection Purchaser shall not unreasonably interfere with the business and
operations of the Seller.
Section 7. Title. Purchaser shall have the right, within ten (10) days
after receipt of the last of the Title Commitment, Title Documents, Survey, UCC
search and Documents, to object in writing to any Material Encumbrances (as
hereinafter defined) reflected by the Title Commitment, Survey or UCC search. If
a notice of objection is not given during such ten (10) day period, then it
::ODMA\PCDOCS\DOCS\136430\4
3
5
shall be deemed that all matters reflected by the Survey and Title Commitment
are "PERMITTED ENCUMBRANCES". Seller shall use reasonable efforts, at its sole
cost, to cure or remove all Material Encumbrances and give Purchaser written
notice thereof before Closing; provided, however, that Seller, at its sole cost,
shall be obligated to cure or remove at or before Closing all mortgages, deeds
of trust, judgment liens, mechanics and materialmen's liens, and other liens
against the Property, whether or not Purchaser objects thereto. Further, Seller
shall cause any leases relating to the Land and Improvements to be terminated on
or before Closing. If Seller does not timely cause all of the Material
Encumbrances to be removed or cured, and timely written notice thereof to be
given to Purchaser, then Purchaser shall have the right to either (i) terminate
this Agreement in accordance with Section 12(b) hereof by delivering notice to
Seller, or (ii) attempt to remove or cure the Material Encumbrances and deduct
the cost of such removal or cure from the Purchase Price, or (iii) elect to
purchase the Property subject to the Material Encumbrances, other than liens
that Seller is obligated to cure or remove, and the Material Encumbrances (other
than liens that Seller is obligated to cure or remove) subject to which
Purchaser elects to purchase the Property shall thereafter be Permitted
Encumbrances, and with a reduction in the Purchase Price to reflect the
diminution in value of the Property. For the purposes of this Agreement, a
"MATERIAL ENCUMBRANCE" shall mean a lien, or an encumbrance on the Property
which affects Seller's ability to convey good, marketable and indefeasible title
to the Property to Purchaser or materially interferes with Purchaser's intended
use of the Property.
Section 8. Seller's Representations, Warranties, and Covenants. Seller
hereby represents and warrants to, and covenants with, Purchaser that:
a. Seller has full right, power, and authority to execute and
deliver this Agreement and to consummate the purchase and sale
transactions provided for herein without obtaining any further consents
or approvals from, or the taking of any other actions with respect to,
any third parties. This Agreement, when executed and delivered by
Seller and Purchaser, will constitute the valid and binding agreement
of Seller, enforceable against Seller in accordance with its terms.
b. Seller has good, marketable and indefeasible title in fee
simple to the Land and Improvements, free and clear of all liens
(except those liens that will be released at or before Closing), and no
party, except as herein set forth, has or shall have on the Closing
Date any rights in, or to acquire, the Property.
c. The Land is not located within an area that has been
designated by the Federal Insurance Administration, the Army Corps of
Engineers, or any other governmental agency or body as being subject to
special flooding hazards.
4
6
d. Seller is the owner of all Personalty free and clear of all
material liens, claims or encumbrances, except liens and security
interests that will be released at or before Closing.
e. The copies of all Documents, Title Commitment Documents
and other documents delivered by or on behalf of Seller to Purchaser
pursuant to this Agreement shall be true and complete in all material
respects and, to the best of Seller's knowledge and belief, the
information shall be true and complete in all material respects.
f. There are no actions, suits, claims, assessments, or
proceedings pending or, to the knowledge of Seller, threatened that
could materially adversely affect the ownership, operation, or
maintenance of the Property or Seller's ability to perform hereunder.
g. All bills and other payments due with respect to the
ownership, operation, and maintenance of the Property have been paid or
to be paid prior to Closing in the ordinary course of business.
h. From the Effective Date until the Closing Date, Seller
shall: (i) operate the Property in a good and businesslike manner in
accordance with good and prudent business practices; (ii) continue all
Property Agreements, and insurance policies or contracts relative to
the Property in full force and effect and neither cancel, amend, nor
renew any of the same without Purchaser's prior written consent; (iii)
not commit or permit to be committed any waste to the Property; (iv)
not, without the prior written consent of Purchaser, enter into any
agreement or instrument or take any action that would encumber the
Property after Closing, that would bind Purchaser or the Property after
Closing, or that would be outside the normal scope of maintaining and
operating the Property; and (v) not remove any item of the Personalty
from the Land or Improvements unless it is replaced with an item of at
least equal value that is properly suited for its intended purpose.
i. There are no labor disputes, organizational campaigns, or
union contracts existing or under negotiation with respect to the
Property or the operation thereof. There are no employees engaged in
the operation or maintenance of the Property for whom Purchaser will be
responsible after Closing.
j. Attached hereto as Exhibit C is a complete and correct list
of all Property Agreements setting forth the identity of the parties
thereto, the date of such agreement, the consideration payable
thereunder, the services to be rendered thereunder, and the expiration
date thereof. Except as otherwise expressly indicated on Exhibit C, all
of the Property Agreements are cancelable on thirty (30) or fewer days
notice, without payment of any cancellation consideration.
k. None of the current or past operations of the Property is
being or has been conducted or used in such a manner as to constitute a
violation of any Environmental Law (defined below) that would or might
result in a Material Adverse Effect (defined below). The Seller has not
received any notice (whether formal or informal, written or oral) from
5
7
any entity, governmental agency or individual regarding any existing,
pending or threatened investigation or inquiry related to violations of
any Environmental Law or regarding any claims for remedial obligations
or contribution for removal costs or damages under any Environmental
Law. There are no writs, injunction decrees, orders or judgments
outstanding, or lawsuits, claims, proceedings or investigations pending
or, to the knowledge of Seller, threatened, relating to the ownership,
use, maintenance or operation of the Property, nor, to the knowledge of
any of Seller, is there any basis for any of the foregoing.
Purchaser will not be required to obtain any permits, licenses or
similar authorizations pursuant to any Environmental Law after the
Closing Date to operate and use any of the Property for their current
or proposed purposes and uses, except for permits, licenses or similar
authorizations that would not have a Material Adverse Effect. The
Property includes all environmental and pollution control equipment
necessary for material compliance with applicable Environmental Law.
Except as disclosed in Schedule 8(k) hereof, (i) no Hazardous Materials
(defined below) have been or are currently being used by Seller in the
operation of the Property, (ii) no Hazardous Materials are or have ever
been situated in, on or under the Property, (iii) there are no, and
there have never been any, underground storage tanks (as defined under
Environmental Law) located under the Property, and (iv) there are no
environmental conditions or circumstances, including the presence or
release of any Hazardous Materials, on the Property, or on any property
on which Hazardous Materials generated by Seller's operations or the
use of the Property were disposed of, to the extent any of the above
individually or in the aggregate would or might result in a Material
Adverse Effect. The term "ENVIRONMENTAL LAW" means any and all laws,
rules, orders, regulations, statutes, ordinances, codes, decrees, and
other legally enforceable requirements (including, without limitation,
common law) of the United States, or any state, regional, city, local,
municipal or other governmental authority or quasi-governmental
authority, regulating, relating to, or imposing environmental standards
of conduct concerning protection of the environment or human health, or
employee health and safety as from time to time has been or is now in
effect. The term "HAZARDOUS MATERIALS" means (x) asbestos,
polychlorinated biphenyls, urea formaldehyde, lead based paint, radon
gas, petroleum, oil, solid waste, pollutants and contaminants, and (y)
any chemicals, materials, wastes or substances that are defined,
regulated, determined or identified as toxic or hazardous in any
Environmental Law. The term "MATERIAL ADVERSE EFFECT" when used in this
Agreement shall mean any adverse effect on the business, operations,
assets or financial condition or results of operations of the party or
parties at issue which can reasonably be expected to have an effect in
excess of $200,000.00.
l. The current zoning classification of the Property is
small commercial and light industrial; the Improvements have been
constructed and are being occupied and maintained in compliance
therewith; and there are no proceedings pending or contemplated to
alter such zoning classification.
If (i) any of Seller's representations and warranties set forth in this Section
8 are untrue in any material respect, or (ii) at any time at or before Closing
there is any material change with respect to the matters represented and
warranted by Seller pursuant to this Section 8, then Seller shall give Purchaser
prompt written notice thereof, and Purchaser shall have the right to terminate
6
8
this Agreement in accordance with Section 12(b) hereof by delivering notice to
Seller at any time at or before the Closing. All of Seller's representations and
warranties stated herein shall survive the Closing for a period of two (2)
years.
Section 9. Closing. The closing ("CLOSING") of the sale of the Property
by Seller to Purchaser shall occur on the second business day following the
satisfaction by all parties hereto of all of the conditions to the Closing or as
soon as practicable thereafter, but in any event, no later than November 1, 1997
(the "CLOSING DATE"). Time is of the essence with regard to the Closing Date.
The Closing shall occur in the offices of Xxxxxx, Lieuwen, Tucker, Pick & Heer,
P.A., 0000 Xxxxxx Xxxx., Xxxxxxxxx, Xxxxx 000 Xxxx, Xxxxxxxxxxx, Xxx Xxxxxx
00000 commencing prior to 5:00 PM, New Mexico time, on the Closing Date. At the
Closing the following, which are mutually concurrent conditions, shall occur:
a. Purchaser, at its sole cost and expense, shall deliver or
cause to be delivered to Seller the following:
i. Cashier's check, or the check of the Title
Company, made payable to the order of Seller, or immediately
available cash funds, in the amount of the Purchase Price as
specified in Section 2 hereof, adjusted in accordance with
Section 9(c) hereof; and
ii. Evidence satisfactory to Seller and Title
Company that the person executing the Closing documents on
behalf of Purchaser has full right, power, and
authority to do so.
b. Seller, at its sole cost and expense, shall deliver or
cause to be delivered to Purchaser the following:
i. General Warranty Deed in the form of Exhibit D
hereto, fully executed and acknowledged by Seller, conveying
to Purchaser the Land and Improvements, subject only to the
Permitted Encumbrances;
ii. Xxxx of Sale and Assignment in the form of
Exhibit E hereto, fully executed and acknowledged by Seller,
assigning, conveying, and transferring all of the Property
other than the Land and Improvements, to Purchaser, subject
only to the Permitted Encumbrances;
iii. Owner's Policy of Title Insurance in the amount
of the Purchase Price issued by Title Company (with such
reinsurance as Purchaser may require), insuring that Purchaser
is the owner of the Land and Improvements subject only to the
Permitted Encumbrances and the standard printed exceptions
included in an ALTA standard form owner's policy of title
insurance; provided, however, that (A) the standard exception
for discrepancies, conflicts, or shortages in area shall be
deleted; (B) such policy shall have "None of Record" endorsed
regarding restrictions except for restrictions that are
Permitted Encumbrances; (C) the rights of parties in
7
9
possession shall be limited only to those holding under
written leases; (D) the standard exception for taxes shall be
limited to the year in which the Closing occurs, marked "not
yet due and payable", and subsequent years and subsequent
assessments for prior years due to change in land usage or
ownership; and (E) the Owner's Policy shall provide
comprehensive coverage, lien coverage and gap coverage;
iv. Current certificate issued by company acceptable
to Purchaser reflecting that since the date of the
searches furnished pursuant to Section 5(c) hereof no Uniform
Commercial Code filings, chattel mortgages, assignments,
pledges, or other encumbrances have been filed in the offices
of the Secretary of State of the State of New Mexico or the
County Clerk of San Xxxx County with reference to the
Property;
v. Evidence satisfactory to Purchaser and the Title
Company that the persons executing and delivering the Closing
documents on behalf of Seller have full right, power and
authority to do so;
vi. Certificate executed by Seller stating that, as
of the Closing Date, each of Seller's representations and
warranties set forth in Section 8 hereof is true and
correct;
vii. Certificate meeting the requirements of Section
1445 of the Internal Revenue Code of 1986, as amended,
executed and sworn to by Seller; and
viii. Such other instruments as are customarily
executed in New Mexico to effectuate the conveyance of
property similar to the Property, with the effect that, after
the Closing, Purchaser will have succeeded to all of the
rights, titles, and interests of Seller related to the
Property and Seller will no longer have any rights, titles, or
interests in and to the Property.
c. All normal and customarily proratable items, including
without limitation real estate and personal property taxes, utility
bills, rents, interest, and Property Agreement payments shall be
prorated as of the Closing Date, Seller being charged and credited for
all of same up to such date and Purchaser being charged and credited
for all of same on and after such date. If the actual amounts to be
prorated are not known as of the Closing Date, the prorations shall be
made on the basis of the best evidence then available, and thereafter,
when actual figures are received, a cash settlement will be made
between Seller and Purchaser. The provisions of this Section 9(c) shall
survive the Closing.
d. Seller shall pay all costs and liabilities relating to the
Property that arise out of or are attributable to the period prior to
the Closing Date, and shall indemnify and hold harmless Purchaser from
such costs and liabilities and from all reasonable attorneys' fees
expended by Purchaser in connection therewith; provided, however, that
Seller's obligations under this indemnity shall be subject to the
provisions of Paragraph 8(k). Seller shall have the right to receive
all proceeds relating to the Property that are properly allocable to
8
10
the period before the Closing Date, and Purchaser shall have the right
to receive all proceeds relating to the Property that are properly
allocable to the period from and after the Closing Date. Purchaser
shall pay all costs and liabilities relating to the Property that arise
out of or are attributable to the period from and after the Closing
Date, except such costs and liabilities that arise out of or result
from a breach by Seller of its representations and warranties set forth
in Section 8 hereof, and Purchaser shall indemnify and hold harmless
Seller from such costs and liabilities and from all reasonable
attorneys' fees expended by Seller in connection therewith. This
Section 9(d) shall survive the Closing.
e. Upon completion of the Closing, Seller shall deliver to
Purchaser possession of the Property free and clear of all tenancies of
every kind and parties in possession, with all parts of the Property
(including without limitation the Improvements and Personalty) in the
same condition as on the date hereof, normal wear only excepted.
Section 10. Commissions. Seller shall defend, indemnify, and hold
harmless Purchaser, and Purchaser shall defend, indemnify, and hold harmless
Seller, from and against all claims by third parties for brokerage, commission,
finders, or other fees relative to this Agreement or the sale of the Property,
and all court costs, attorneys' fees, and other costs or expenses arising
therefrom, and alleged to be due by authorization of the indemnifying party.
Section 11. Destruction, Damage or Taking Before Closing. If, before
Closing, all or any part of the Land, Minerals, Utilities, Improvements or
Personalty are destroyed or damaged, or become subject to condemnation or
eminent domain proceedings, then Seller shall promptly notify Purchaser thereof.
Purchaser shall have the right to terminate this Agreement or may elect to
proceed with the Closing (subject to the other provisions of this Agreement). In
the event Purchaser elects to proceed to Closing, Purchaser shall be entitled to
all insurance proceeds or condemnation awards payable as a result of such damage
or taking and, to the extent the same may be necessary or appropriate, Seller
shall assign to Purchaser at Closing Seller's rights to such proceeds or awards.
If, within ten (10) business days of receipt of Seller's notice respecting the
damage, destruction, or taking, Purchaser notifies Seller of its intent to
terminate this Agreement, then this Agreement shall be deemed terminated
pursuant to Section 12(b) hereof.
Section 12. Termination and Remedies.
a. If Purchaser fails to consummate the purchase of the
Property pursuant to this Agreement for any reason other than
termination hereof pursuant to a right granted to Purchaser in Sections
6, 7, 8, 11 and 13 hereof, then Seller, as its sole remedies, shall
have the right to: (i) terminate this Agreement by notifying Purchaser
thereof, in which event Title Company shall deliver the Xxxxxxx Money
to Seller as liquidated damages, whereupon neither Purchaser nor Seller
shall have any further rights or obligations hereunder, or (ii) enforce
specific performance of the obligations of Purchaser hereunder.
b. If Purchaser terminates this Agreement pursuant to Section
6, 7, 8, 11 or 13 hereof, then Title Company shall return the Xxxxxxx
Money to Purchaser, whereupon neither party hereto shall have any
further rights or obligations hereunder.
9
11
c. If Seller fails to consummate the sale of the Property
pursuant to this Agreement for any reason other than termination hereof
pursuant to Section 13, Purchaser's failure to perform its obligations
hereunder or termination hereof by Purchaser in accordance with Section
12(b), then Purchaser, as its sole remedies, shall have the right to:
(i) terminate this Agreement by notifying Seller thereof, in which case
Title Company shall return the Xxxxxxx Money to Purchaser and neither
party hereto shall have any further rights or obligations hereunder; or
(ii) enforce specific performance of the obligations of Seller
hereunder.
d. Seller and Purchaser hereby acknowledge and agree that they
have included the provision for payment of liquidated damages in
Section 12(a) because, in the event of a breach by Purchaser, the
actual damages to be incurred by Seller can reasonably expected to
approximate the amount of liquidated damages called for herein and
because the actual amount of such damages would be difficult if not
impossible accurately to measure.
Section 13. Consideration. A material part of the consideration to the
Seller for selling is that the Seller has the option to qualify this transaction
as part of a tax deferred exchange under Section 1031 of the Internal Revenue
Code. Buyer agrees to cooperate in the exchange provided Buyer incurs no
additional liability, cost or expense.
Section 14. Conditions to Closing. This Agreement is expressly
conditioned upon the consummation of an Asset Purchase Agreement dated on or
about September 2, 1997, between Purchaser, Key Energy Group, Inc., Seller, Big
A Well Service Co., Sunco Trucking Co. and Xxxxxx Supply Co., Inc. (the "ASSET
PURCHASE AGREEMENT"). In the event the Asset Purchase Agreement is not
consummated for any reason, Seller shall have no further obligation to sell and
Purchaser shall have no further obligation to purchase the Property and this
Agreement shall be automatically terminated and of no further force and effect.
Section 15. Notices. All notices provided or permitted to be given
under this Agreement must be in writing and may be served by depositing same in
the United States mail, addressed to the party to be notified, postage prepaid
and registered or certified with return receipt requested; by delivering the
same in person to such party; transmitted by Federal Express or a similar
generally recognized overnight carrier generally providing proof of delivery; by
prepaid telegram or telex; or by facsimile copy transmission. Notice given in
accordance herewith shall be effective upon receipt at the address of the
addressee. For purposes of notice, the addresses of the parties shall be as
follows:
If to Seller, to: Xxxxxx X. Xxxxxxx, President
Xxxxxxx Oil & Gas Co.
0000 XxXxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
(505)
Facsimile: (000)000-0000
10
12
with a copy to: Xxxxxx, Lieuwen, Tucker, Pick, & Heer, P.A.
0000 Xxxxxx Xxxxxxxxx Xxxxxxxxx
Xxxxx 000 Xxxx
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxx X. Xxxxxxx, Esquire
(000)000-0000
Facsimile: (000) 000-0000
If to Purchaser, to: Key Four Corners, Inc.
Xxx Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
(000)000-0000
Facsimile: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attn: Xxxxxx X. Xxxxx, Esquire
(000)000-0000
Facsimile: (000) 000-0000
Either party hereto may change its address for notice by giving three (3) days
prior written notice thereof to the other party.
Section 16. Assigns; Beneficiaries. This Agreement shall inure to the
benefit of and be binding on the parties hereto and their respective heirs,
legal representatives, successors, and assigns. This Agreement is for the sole
benefit of Seller and Purchaser, and no third party is intended to be a
beneficiary of this Agreement.
Section 17. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New Mexico.
Section 18. Entire Agreement. This Agreement is the entire agreement
between Seller and Purchaser concerning the sale of the Property, and no
modification hereof or subsequent agreement relative to the subject matter
hereof shall be binding on either party unless reduced to writing and signed by
the party to be bound. Exhibits A through E, inclusive, attached hereto, are
incorporated herein by this reference for all purposes.
[SIGNATURE PAGE FOLLOWS]
11
13
IN WITNESS WHEREOF, Purchaser and Seller have executed this Agreement
on September 2, 1997.
PURCHASER:
KEY FOUR CORNERS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
SELLER:
XXXXXXX OIL & GAS CO.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxx
----------------------
XXXXXX X. XXXXXXX
Schedule of Exhibits and Schedules
A - Description of Land
B - Description of Personal Property
C - List of Property Agreements
D - Form of General Warranty Deed
E - Form of Xxxx of Sale and Assignment
8(k) - Environmental conditions
12
