Exhibit 10.2
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made as of December 31, 2004
(the "Effective Date"), 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 XXXXXXXXX, XXXX
XXXXXXX and XXX XXXXXX (collectively the "Selling Partners"), and nominee for
XXXX X. XXXXX, XXXX X. XXXXX, and XXXXXX BROTHERS INVESTMENTS, a Texas general
partnership (collectively the "Contributing Partners") and 0000 XXXXXXXX
PARTNERS, LTD. a Texas limited partnership ("1500 Broadway" or "Purchaser").
In consideration of this Agreement, Seller and Purchaser agree as
follows:
1. SALE OF SUBJECT PROPERTY. Subject and pursuant to that certain Agreement
to Distribute Assets, executed contemporaneously with this Agreement between the
Selling Partners, the Contributing Partners and TCTB (the "Distribution
Agreement"), Seller agrees to sell, assign and transfer to Purchaser, and
Purchaser agrees to buy from Seller, all of Seller's right, title and interest
in and to the following property (collectively, "Subject Property"):
(a) REAL PROPERTY. Fee simple interest or the ground leasehold
interest, as applicable, in that certain parcel of real estate located
at 0000 Xxxxxxxx, Xxxxxxx, Xxxxx, generally known as the Xxxxx Fargo
Building, and legally described on EXHIBIT A attached hereto and made
a part hereof being the land ("Land"), together with (i) all building
structures, improvements and fixtures owned by Seller located on the
Land ("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 Land and the Improvements
(collectively, the "Real Property").
(b) PERSONAL PROPERTY. All of the equipment and 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, and certificates of occupancy 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) PLANS. A limited license to use the final plans and
specifications (excluding shop drawings) relating to the construction
of the Improvements (the "Plans") solely for purposes of repairing,
maintenance and restoring the Improvements. Purchaser hereby
indemnifies, defends, and agrees to hold harmless Seller and each
Seller Affiliate from and against any unauthorized use of the Plans by
Purchaser, its employees, officers, directors, affiliates and agents,
which indemnification obligation shall survive Closing and any
termination of this Agreement.
(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 (including specifically the
trade name "1500 Broadway"), geotechnical reports, operating manuals,
floor plans (including any related computer aided design
measurements), and landscape plans.
(h) GROUND LEASE. Seller's interest in and to the ground lease
contract which was originally executed on October 1, 1963, between
Xxxx Xxxx, as Lessor, and the First National Bank of Lubbock, as
Lessee, under which that certain property was leased to the First
National Bank of Lubbock as Lessee for a term of fifty (50) years,
beginning on October 1, 1963, and ending at 11:59 P.M. on September
30, 2013 (the "Ground Lease") which Ground Lease was recorded in
Volume 963, page 528 of the Deed Records of Lubbock County, Texas and
is incorporated herein by reference for all purposes.
(i) DEPOSITS. Seller's interest in and to any deposits being held
by Seller under the terms of any of the Leases (the "Deposits").
2. PURCHASE PRICE. Purchaser shall pay to Seller, as consideration for the
purchase of the Subject Property, the sum of FOUR MILLION FIVE HUNDRED SIXTY
EIGHT THOUSAND EIGHT HUNDRED FOURTEEN AND 08/100 DOLLARS ($4,568,814.08)
("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.
3. ESCROW. At Closing, because the amounts due for certain items are
unknown, Seller agrees to escrow funds in the appropriate amounts in a trust
account with the law firm of Xxxxx, Xxxxxxxx & Xxxxx, P.C., as set forth on the
closing statement required under Section 8(d)(i). Such escrow funds will be
released to Purchaser or the appropriate third party as necessary to pay for
Seller's obligations under this Agreement, with any amounts remaining being
returned to Seller at Post Closing.
4. COVENANTS BY SELLER. Seller covenants and agrees with Purchaser that
from the date hereof until Post Closing (defined herein at Section 7(b)) Seller,
as operator of the Subject Property , subject to the terms of an operating
agreement to be executed by the parties (the "Operating Agreement"), shall
conduct its business involving the Subject Property as follows (except as
specifically provided to the contrary herein):
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(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.
(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 at the expense of Purchaser until such time as Post Closing
occurs.
(d) LEASES. Seller will not modify, amend or terminate the Leases
without the prior written consent of Purchaser.
5. REPRESENTATIONS AND WARRANTIES BY SELLER.
(a) REPRESENTATIONS AND WARRANTIES. Seller represents and warrants 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 and Seller's Closing Documents (as such term is defined
in Section 9(a) hereof). This Agreement and Seller's Closing Documents
have been duly authorized by all necessary action on the part of
Seller and have been or will be duly executed and delivered by Seller.
Seller's execution, delivery and performance of this Agreement and
Seller's Closing Documents 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 is a party. This
Agreement and Seller's Closing Documents (when signed) are valid and
binding obligations of Seller, and are enforceable against Seller in
accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, creditor's rights and other similar laws.
(ii) UTILITIES. All installation and connection charges for
utilities 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.
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(iii) HAZARDOUS SUBSTANCES. Seller shall make available to
Purchaser 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. 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 has not received written notice from and of
the Tenants alleging that the major structural, mechanical, roof,
storm drainage, sanitary sewer or electrical systems constituting the
Improvements are not in good working order or condition to perform the
work or function for which intended.
(vii) 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.
(viii) LEASES.
(A) Seller has delivered to Purchaser a complete and
accurate copy of the Leases. Except as set forth in the
Leases, 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 Tenants.
(B) To the best of Seller's knowledge, the Leases will
be on the Closing Date, 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.
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(C) Seller has not received written notice from the
Tenants of any uncured default or unperformed obligation of
the Landlord under the Leases, including, without
limitation, failure of the Landlord to construct any
required tenant improvements. Tenants have not 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 Leases.
(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 its interest in the Leases or sublet any
portion of the premises leased to such Tenants under the
Leases.
(G) The Tenants have not prepaid rent for more than the
current month under the Leases, except as set forth in
Section 9(d).
(ix) 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.
(x) SERVICE CONTRACTS. Seller is not a party to any service
contracts which relate to the operation, management, or maintenance of
the Subject Property.
(xi) 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;
(xii) 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.
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(xiii) 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.
(xiv) 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.
(xv) CERTIFICATES OF OCCUPANCY. There will be on or before
Closing, in effect certificates of occupancy, licenses, and permits as
may be required for the use and occupancy of the Subject Property, and
the use and occupation of the Subject Property will be in compliance
and conformity with such certificates of occupancy, licenses and
permits. There has been no notice or request of any municipal
department, insurance company or board of fire underwriters (or
organization exercising functions similar thereto), received by Seller
and requesting the performance of any work or alteration to the
Property which has not been complied with.
(xvi) 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 any of the Leases 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.
(xvii) TITLE POLICY AND SURVEY. Seller obtained a title policy
and survey at the time it purchased the Subject Property on June 3,
2002, and copies of such title policy and survey have been provided to
Purchaser. To the best of Seller's knowledge, there have been no
material changes to the Subject Interests since the issuance of such
title policy and survey. Seller represents and warrants that it has
good and indefeasible title to the fee simple or ground leasehold
interest as to the Subject Property.
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6. REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser represents and
warrants to Seller as follows: (a) Purchaser is a Texas limited partnership duly
organized and validly existing and in good standing under the laws of the State
of Texas, in good standing under the laws of Texas (b) Purchaser has the
requisite power and authority to enter into this Agreement and Purchaser'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
Purchaser and this Agreement and Purchaser's Closing Documents have been or will
be duly executed and delivered by Purchaser; (d) Purchaser's execution, delivery
and performance of this Agreement and Purchaser's Closing Documents will not
conflict with or result in violation of Purchaser's organizational documents, or
any judgment, order or decree of any court or arbiter, to which Purchaser is a
party; and (e) this Agreement and Purchaser's Closing Documents (when signed)
are valid and binding obligations of Purchaser, and are enforceable against
Purchaser in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, creditor's rights and other similar laws.
7. CLOSING.
(a) CLOSING DATE. The closing of the purchase and sale contemplated by
this Agreement ("Closing") shall occur on or before December 31, 2004, or
on such earlier or later date as Seller and Purchaser may mutually agree,
at the offices of Seller or at such other location as Seller and Purchaser
may mutually agree, but the effective date for all purposes hereunder shall
be the close of business on December 31, 2004 (the "Closing Date").
(b) POST CLOSING DATE. The parties have determined that it is
impractical to have all of the documents and schedules available to execute
on or before the Closing Date, and therefore have agreed to execute certain
documents at a later date (the "Post Closing"), but in no event shall the
Post Closing be later than February 28, 2005 (the "Post Closing Date").
8. CLOSING AND POST 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) GENERAL ASSIGNMENT. A general assignment of the Subject
Property in the form attached hereto as Exhibit C.
(ii) ORIGINAL DOCUMENTS. Original copies of the Leases, the
Permits, the Warranties and the Plans, to the extent that the same are
in Seller's possession or control and have not previously been
delivered to Purchaser.
(iii) POSSESSION OF THE SUBJECT PROPERTY. Seller shall continue
to operate the Subject Property until such time as Purchaser is able
to arrange for another property manager to operate the Subject
Property, with the specific terms of compensation of Seller to be set
forth in the Operating Agreement. However, Seller shall provide
Purchaser access to the Subject Property at such times as Purchaser
requires.
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(b) TITLE POLICY. At the Post Closing, Seller shall cause the Title
Company to deliver to Purchaser its owner's title insurance policy required
by this Agreement.
(c) 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.
(d) PURCHASER'S AND SELLER'S CLOSING DOCUMENTS. On or before the Post
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) ASSIGNMENT AND ASSUMPTION OF LEASES. An Assignment and
Assumption of Leases pursuant to which, among other things, (A) Seller
shall assign to Purchaser all of Seller's right, title and interest as
landlord in, to and under the Leases.
(iii) ASSIGNMENT AND ASSUMPTION OF PERMITS, WARRANTIES AND PLANS.
An Assignment and Assumption of Permits, Warranties and Plans,
pursuant to which, among other things, (A) Seller shall assign to
Purchaser all of Seller's right, title and interest as owner in, to
and under the Permits, Warranties and Plans, and Purchaser shall
assume all obligations of the owner under the Permits, Warranties and
Plans with respect to any event, fact or circumstance that occurs,
from and after the Closing Date; (B) Purchaser shall defend,
indemnify, and hold harmless Seller and Seller's Affiliates from any
unauthorized use of the Plans, as more particularly set forth in
Section 1(f) hereof; and (C) the total liability of Purchaser for
breach thereof shall be limited to Purchaser's interest in the Subject
Property.
(e) PURCHASER'S AND SELLER'S POST CLOSING DOCUMENTS. On or before the
Post Closing Date, Seller and Purchaser shall jointly execute and deliver
the following:
(i) DEED. A Special Warranty Deed conveying the Real Property to
Purchaser, free and clear of all encumbrances, in the form set forth in
EXHIBIT D attached hereto and made a part hereof (the "Deed"). The deed
shall contain the following restrictive covenant: "Grantee, by its
acceptance hereof, covenants and agrees, as a covenant running with the
Property binding upon Grantee and Grantee's successors and assigns, that
the Property will not be used for the purposes of operating (1) a retail
banking business other than Bank (defined below), that provides any of the
customary banking services (including, without limitation, accepting
deposits, cashing checks, taking loan applications, processing loan
applications, drive-through banking services, and installation and
operation of automatic teller machines); (ii) a pawn shop; (iii) a check
cashing facility; (iv) an adult sexually-oriented entertainment facility
(including, without limitation massage parlor, book or video store selling
or renting primarily x-rated videos or books, and retail establishments
selling sexually explicit paraphernalia), or (v) any restaurant, club, or
other facility that derives 60% or more of its gross income from the sale
of alcoholic beverages."
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The restrictions set out in this paragraph will terminate on the earlier of
(A) 10 days after the final judicial determination of a default by Bank
under its lease of a portion of the Property, or (B) at midnight on
December 31 of the first calendar year following the year in which Bank
ceases to operate its business within a 3 block radius of the Property. For
purposes of this paragraph, "Bank" means Xxxxx Fargo Bank Texas, National
Association ("Bank"), any bank operating under the same charter number that
the Bank operates under as of the date of this Special Warranty Deed, or
any successor in interest by merger of Xxxxx Fargo Bank Texas, National
Association." With respect to the Deed Restrictions to be contained in the
Deed (as provided above) Seller will use all reasonable efforts to have the
Restrictions amended to provide for termination of the Restrictions in the
event the Bank ceases to operate on the Property, or otherwise amended in a
manner acceptable to Purchaser. The restrictions set out in this paragraph
will terminate on the earlier of (i) ten (10) days after the final judicial
determination, including appeals, of a default by Bank under its lease of a
portion of the Property, or (ii) ninety (90) days following the last day
upon which Bank operates its business on any portion of the Property.
(ii) XXXX OF SALE. A Xxxx of Sale transferring the Personal Property
to Purchaser, in the form set forth in EXHIBIT E attached hereto and made a
part hereof (the "Xxxx of Sale").
(iii) NOTICES 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 Purchaser at the place designated by Purchaser.
(iv) SELLER'S AFFIDAVIT. An Affidavit of Seller indicating that on the
Closing Date, to the best of Seller's knowledge, there are no outstanding,
unsatisfied judgments, tax liens (other than the lien of real estate taxes
not yet due and payable) or bankruptcies against or involving Seller or the
Real Property; and that, to the best of Seller's knowledge, there are no
other unrecorded interests in the Real Property other than the Leases.
(v) 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.
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9. ADJUSTMENT AND PRORATIONS. At Post 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 Property 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 asses for the current calendar year.
(b) TITLE INSURANCE. Seller shall pay for the cost of the base owner's
title insurance policy required under this Agreement. Purchaser shall pay
for the cost of any and all endorsements to the owner's title insurance
policy which Purchaser is able to obtain from the Title Company (including
the cost of amending the survey exception to read only "shortages in
area"), and all costs of any lender's title insurance policy.
(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 Closing 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, common
area maintenance and insurance escalations and adjustments and other
charges payable by the Tenants to the landlord under the Leases,
(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 payments under
the Leases. Seller has received funds representing prepaid rent for one
tenant, Lubbock Club (as set forth on Seller's balance sheet under accounts
numbered 2544 and 2046). Seller shall pay to Purchaser in cash at Closing,
the amount of prepaid rent attributable for all periods after the Closing
Date.
(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 Subject
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 Closing Date, so that Seller pays that part of such
other operating costs payable before the Closing Date, and Purchaser pays
that part of such operating costs payable from and after the Closing Date.
It is agreed that Seller shall charge an operating fee of $3,000 per month
during the time that Seller operates the Subject Property prior to Post
Closing, as more specifically set forth in the Operating Agreement.
(g) ATTORNEY'S FEES. Seller and Purchaser will each pay one-half of
any attorneys' fees incurred by either party in the negotiation and
documentation of this transaction, except that a party defaulting under
this Agreement or any closing document shall pay the reasonable attorneys'
fees and court costs incurred by the non-defaulting party to enforce
successfully its rights regarding such default.
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10. 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), and the Xxxxxxx Money shall be refunded to Purchaser. 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. During the period between the Closing Date and Post
Closing, Seller agrees to maintain casualty and liability insurance on the
Subject Property, at Purchaser's expense, in the same amounts and coverages as
in effect prior to the Closing Date, and to use its best efforts to name
Purchaser as an additional insured on such insurance policies.
11. 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.
12. 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.
11
13. 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.
14. ASSIGNMENT. Purchaser may not assign its rights under this Agreement
without the prior written consent of Seller.
15. 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 Purchaser: 0000 Xxxxxxxx Partners, Ltd.
X.X. Xxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxx X. 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.
16. 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.
17. 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.
12
18. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
19. CONTROLLING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
20. SEVERABILITY. The unenforceability or invalidity of any provisions
hereof shall not render any other provision herein contained unenforceable or
invalid.
21. "AS IS" SALE. Purchaser acknowledges that except as set forth in this
Agreement and in Seller's Closing Documents, (a) neither Seller, nor any
principal, agent, attorney, employee, broker, or other representative of Seller,
has made any representation or warranty of any kind whatsoever, either express
or implied, with respect to the Subject Property or any matter related thereto;
(b) Purchaser is not relying on any warranty, representation, or covenant,
express or implied, with respect to the condition of the Subject Property; and
(c) Purchaser is acquiring the Subject Property in its "AS-IS" CONDITION WITH
ALL FAULTS. In particular, but without limitation, except as set forth in this
Agreement and the Seller's Closing Documents, Seller makes no representations or
warranties with respect to the use, condition, occupation or management of the
Subject Property, compliance of the Subject Property with applicable statutes,
laws, codes, ordinances, regulations or requirements or compliance of the
Subject Property with covenants, conditions, and restrictions, whether or not of
record.
22. TIME OF ESSENCE. Time is of the essence of this Agreement.
23. 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.
24. 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 Assignment
Exhibit D - Form of Special Warranty Deed
Exhibit E - Form of Xxxx of Sale
Exhibit F - Form of Assignment of Tenant Leases
Exhibt G - Form of Assignment of Ground Lease
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
SELLER
TCTB PARTNERS, LTD,
a Texas limited partnership
By: TCTB COMPANY, INC.,
a Texas corporation, its sole general partner
By: /s/ Xxx Xxxxxx
---------------------------------------------
Xxx Xxxxxx
President
PURCHASER
0000 XXXXXXXX PARTNERS, LTD,
a Texas limited partnership
By: Western Green Oaks Corporation
a Texas corporation, its sole general partner
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Xxxx X. Xxxxx
President
14
EXHIBIT A
LEGAL DESCRIPTION
[Description attached]
EXHIBIT B
SCHEDULE OF LEASES
[schedule attached]
EXHIBIT C
FORM OF GENERAL ASSIGNMENT
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT (this "ASSIGNMENT") is executed as of the 31st day of
December 2004, by TCTB PARTNERS, LTD. a Texas limited partnership ("ASSIGNOR"),
in favor of 0000 XXXXXXXX PARTNERS, LTD. a Texas limited partnership
("ASSIGNEE").
1. REFERENCE TO PURCHASE AGREEMENT. Reference is made to that certain
Purchase Agreement dated of even date herewith (as amended, the "AGREEMENT"),
pursuant to which Assignor agreed to sell to Assignee, and Assignee agreed to
purchase from Assignor, the improved real property and other assets described
therein. Capitalized terms used herein and not otherwise defined herein shall
have the meanings set forth in the Agreement.
2. ASSIGNMENT. For good and valuable consideration received by Assignor,
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
grants, transfers and assigns to Assignee all right, title and interest of
Assignor, if any, in and to (i) the Land, Improvements, Real Property,
Intangibles, Deposits, Trade Names, Ground Lease, Personal Property, Permits and
Warranties affecting and/or applicable to the Subject Property.
3. BINDING EFFECT. This Assignment shall inure to the benefit of, and be
binding upon, each of the parties hereto and their respective successors and
assigns.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment on the
day and year first written above.
ASSIGNOR
TCTB PARTNERS, LTD,
a Texas limited partnership
By: TCTB COMPANY, INC.,
a Texas corporation, its sole general partner
By: /s/ Xxx Xxxxxx
---------------------------------------------
Xxx Xxxxxx
President
ASSIGNEE
0000 XXXXXXXX PARTNERS, LTD,
a Texas limited partnership
By: Western Green Oaks Corporation
a Texas corporation, its sole general partner
By: /s/ Xxxx X. Xxxxx
---------------------------------------------
Xxxx X. Xxxxx
President
C-2
EXHIBIT D
FORM OF SPECIAL WARRANTY DEED
SPECIAL WARRANTY DEED
STATE OF TEXAS SS.
SS.
COUNTY OF LUBBOCK SS.
TCTB PARTNERS, LTD, a Texas limited partnership ("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 0000 XXXXXXXX
PARTNERS, LTD., a Texas limited partnership ("GRANTEE"), whose mailing address
is X.X. Xxx 0000, Xxxxxxx, Xxxxx 00000, 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
Grantee that certain parcel of real estate located at 0000 Xxxxxxxx, Xxxxx,
legally described on EXHIBIT A attached hereto and made a part hereof and being
land ("Land"), together with (i) all building structures, improvements and
fixtures owned by Seller located on the Land ("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").
TO HAVE AND TO HOLD the Land and the Improvements unto Grantee, and its
successors and assigns, in fee simple forever.
This conveyance is expressly made subject to the covenants running with
the land only to the extent that they may lawfully affect the Property:
Grantee, by its acceptance hereof, covenants and agrees, as a
covenant running with the Property binding upon Grantee and Grantee's
successors and assigns, that the Property will not be used for the
purposes of operating (1) a retail banking business other than Bank
(defined below), that provides any of the customary banking services
(including, without limitation, accepting deposits, cashing checks,
taking loan applications, processing loan applications, drive-through
banking services, and installation and operation of automatic teller
machines); (ii) a pawn shop; (iii) a check cashing facility; (iv) an
adult sexually-oriented entertainment facility (including, without
limitation massage parlor, book or video store selling or renting
primarily x-rated videos or books, and retail establishments selling
sexually explicit paraphernalia), or (v) any restaurant, club, or other
facility that derives 60% or more of its gross income from the sale of
alcoholic beverages. The restrictions set out in this paragraph will
terminate on the earlier of (A) 10 days after the final judicial
determination of a default by Bank under its lease of a portion of the
Property, or (B) at midnight on December 31 of the first calendar year
following the year in which Bank ceases to operate its business within
a 3 block radius of the Property. For purposes of this paragraph,
"Bank" means Xxxxx Fargo Bank Texas, National Association ("Bank"), any
bank operating under the same charter number that the Bank operates
under as of the date of this Special Warranty Deed, or any successor in
interest by merger of Xxxxx Fargo Bank Texas, National Association.
D-1
Grantor WILL WARRANT AND FOREVER DEFEND, all and singular the Land and
the Improvements unto Grantee, its successors and assigns, against every person
whomsoever lawfully claiming or to claim the same or any part thereof, by,
through or under Grantor, but not otherwise.
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).
WITNESS WHEREOF, Grantor has executed this Special Warranty Deed
to be effective as of the ______ day of ___________________, 2005.
GRANTOR
TCTB PARTNERS, LTD.
a Texas limited partnership
By: TCTB Company, Inc. its general partner
By: /s/ Xxx Xxxxxx
------------------------------------
Xxx Xxxxxx, President
STATE OF TEXAS SS.
SS.
COUNTY OF MIDLAND SS.
The foregoing instrument was acknowledged before me this ___ day of
_____________, 2004, 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 ________________, 200_.
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires:_______________
D-2
EXHIBIT E
FORM OF XXXX OF SALE
XXXX OF SALE
THIS XXXX OF SALE ("Xxxx of Sale") is executed this 31st day of December,
2004, by TCTB Partners, Ltd. ("Seller"), in favor of 0000 Xxxxxxxx Partners,
Ltd. ("Purchaser").
1. REFERENCE TO PURCHASE AGREEMENT. Reference is made to that certain
Purchase Agreement dated as of December 31, 2004, 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 all of 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.
SELLER:
TCTB PARTNERS, LTD.
a Texas limited partnership
By: TCTB Company, Inc. its general partner
By: /s/ Xxx Xxxxxx
-------------------------------------------
Xxx Xxxxxx, President
EXHIBIT F
FORM OF ASSIGNMENT OF TENANT LEASES
ASSIGNMENT OF TENANT LEASES
THE STATE OF TEXAS ss.
ss. KNOW ALL PERSONS BY THESE PRESENTS
COUNTY OF LUBBOCK ss.
This ASSIGNMENT OF TENANT LEASES is executed by TCTB PARTNERS, LTD.
("Assignor") and 0000 XXXXXXXX PARTNERS LTD. ("Assignee").
WITNESSETH:
Assignor has heretofore entered into certain leases covering office
spaces in a building located on that certain tract of land situation in Lubbock,
Lubbock County, Texas (the "Property"), more particularly described on "EXHIBIT
A" attached heretofore and made a part hereof for all purposes and certain
ground leases covering portions of the Property (the leases are sometimes
referred to herein as the "Leases").
Assignee desires to purchase from Assignor, and Assignor desires to
sell and assign to Assignee, the Leases and the leasehold estates created
thereby.
NOW, THEREFORE, for and in consideration of the premises and the
agreements and covenants herein set forth, together with the sum of Ten and
No/100 Dollars ($10.00) and other good and valuable consideration this day paid
and delivered by Assignee to Assignor, the receipt and sufficient of all of
which by Assignor are hereby confessed and acknowledged, Assignor does hereby
ASSIGN, TRANSFER, SET OVER and DELIVER unto Assignee all Leases pertaining to
the Property and the leasehold estates created thereby, and all of the rights,
benefits and privileges of the landlord thereunder, including without limitation
an amount of cash equal to all security deposits and prepaid rentals made under
the Leases and not forfeited, credited or returned to tenants.
TO HAVE AND TO HOLD all and singular the Leases unto Assignee, its
successors and assigns, and Assignor does hereby bind itself and it successors
to WARRANT and FOREVER DEFEND all and singular the Leases unto Assignee, its
successors and assigns, against every person whomsoever lawfully claiming or
attempting to claim the same, or any part thereof, by, through or under
Assignor, but not otherwise.
Assignor hereby represents to Assignee that to the actual knowledge of
Assignor, the Leases are current and in good standing and no defaults exist as
to either party to the Leases.
By its execution hereof, Assignee accepts the assignment of the Leases
and agrees to perform the obligations of landlord under the Leases from and
after the date hereof.
This document may be executed and delivered in counterparts.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
of Tenant Leases effective December 31, 2004.
ASSIGNOR:
TCTB COMPANY, INC..
By: TCTB Company, Inc., its sole general partner
By: /s/ Xxx Xxxxxx
------------------------------------------------
Xxx Xxxxxx, President
EXHIBIT G
FORM OF ASSIGNMENT OF GROUND LEASE
ASSIGNMENT OF GROUND LEASE
THE STATE OF TEXAS ss.
ss. KNOW ALL PERSONS BY THESE PRESENTS
COUNTY OF LUBBOCK ss.
This Assignment of Ground Lease (hereinafter referred to as this
"Assignment") is made between TCTB PARTNERS, LTD. a Texas limited partnership
whose General Partner is TCTB Company, Inc., whose address is 000 X. Xxxx, Xxxxx
0000, Xxxxxxx, Xxxxx 00000 ("Assignor"), and 0000 XXXXXXXX PARTNERS, LTD. a
Texas limited partnership whose General Partner is Western Green Oaks
Corporation, a Texas corporation, whose address is P. O. Xxx 0000, Xxxxxxx,
Xxxxx 00000 ("Assignee").
1. Whereas, Assignee herein has concurrently herewith purchased the
property described in Exhibit "A" attached hereto from Assignee, pursuant to
that certain Purchase and Sale Agreement dated of even date herewith (the
"Purchase Agreement"); and
2. Whereas Exhibit "A" specifically excepts real estate described as
Tract V, Parcel 11, which was not owned in fee simple by TCTB Partners, Ltd.;
but is covered by a ground lease; and
3. Whereas, a Ground Lease Contract was executed on October 1, 1963,
between Xxxx Xxxx, as Lessor, and the First National Bank of Lubbock, as Lessee,
under which that certain property was leased to the First National Bank of
Lubbock as Lessee for a term of fifty (50) years, beginning on October 1, 1963,
and ending at 11:59 P.M. on September 30, 2013 (the "Ground Lease") which Ground
Lease was recorded in Volume 963, page 528 of the Deed Records of Lubbock
County, Texas and is incorporated herein by reference for all purposes.
4. Whereas, the property covered by said Ground Lease is more
particularly described as Tract V, Parcel II, in the Exhibit "A" attached hereto
(the "Leased Property"); and
5. Whereas, Paragraph 13 of the Ground Lease grants the right and
authority for the assignment of the Ground Lease, in whole or in part, to any
person, persons, partnership, firm or corporation during the term of the Ground
Lease; and
6. Whereas, the Ground Lease has, from time to time, been included in
deeds between various parties since the original Ground Lease was granted to the
First National Bank of Lubbock, including, but not limited to, such parties as
Xxxxx Fargo Bank Texas, National Association (formerly Norwest Bank Texas, N.A.)
successor by merger to First National Bank of West Texas, and
7. Whereas, concurrent with the purchase of the property described in
Exhibit "A" attached hereto, 0000 Xxxxxxxx LTD., previous lessor of the Leased
Property, has assigned the Ground Lease to Assignor, and
8. Whereas, pursuant to the terms and provisions of the Purchase
Agreement, Assignor now wishes to assign all of its right, title and interest in
and to the Ground Lease to the Assignee, subject to the terms, provisions,
covenants and conditions of the Ground Lease; and
9. Whereas, the Assignee wishes to accept the Assignment.
NOW, THEREFORE, for and in consideration of the premises and the
agreements and covenants herein set forth, together with the sum of Ten and
No/100 Dollars ($10.00) and other good and valuable consideration this day paid
and delivered by Assignee to Assignor, the receipt and sufficient of all of
which by Assignor are hereby confessed and acknowledged, Assignor does hereby
ASSIGN, TRANSFER, SET OVER and DELIVER unto Assignee the Ground Lease pertaining
to the Property and the leasehold estates created thereby, and all of the
rights, benefits and privileges of the lessee thereunder
TO HAVE AND TO HOLD all and singular the Ground Lease unto Assignee,
its successors and assigns, and Assignor does hereby bind itself and it
successors to WARRANT and FOREVER DEFEND all and singular the Ground Lease unto
Assignee, its successors and assigns, against every person whomsoever lawfully
claiming or attempting to claim the same, or any part thereof, by, through or
under Assignor, but not otherwise.
Assignor hereby represents to Assignee that to the actual knowledge of
Assignor, the Ground Lease is current and in good standing and no defaults exist
as to either party to the Ground Lease.
By its execution hereof, Assignee accepts the assignment of the Ground
Lease and agrees to perform the obligations of lessee under the Ground Lease
from and after the date hereof.
This document may be executed and delivered in counterparts.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment
of Ground Lease effective December 31, 2004.
ASSIGNOR:
TCTB COMPANY, INC..
By: TCTB Company, Inc., its sole general partner
By: /s/ Xxx Xxxxxx
------------------------------------------------
Xxx Xxxxxx, President
Exhibit 10.2
