EXHIBIT 10.2
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made
by and between CIRCLE C LAND CORP., a Texas corporation
("Seller") and PHOENIX HOLDINGS, LTD., a Texas limited
partnership ("Buyer").
In consideration of the mutual covenants and representations
herein contained, Seller and Buyer agree as follows:
1. Purchase and Sale. Subject to the terms and conditions of
this Agreement, Seller hereby agrees to sell and convey to Buyer
and Buyer hereby agrees to purchase from Seller, free and clear
of all liabilities except as expressly provided herein, the
following (collectively, the "Property"):
(a) All of the real property owned by Seller and located
within the boundaries of the Circle C Ranch and Circle West
Subdivisions (collectively, "Circle C") owned by Seller, as
generally described on Exhibit A attached hereto (herein
collectively called the "Land").
(b) All of Seller's right, title and interest in and to
all personal property, contracts, claims, receivables,
assets, rights, privileges, benefits, and interests owned by
Seller related to, associated with, benefitting or otherwise
attributable to Circle C, including without limiting the
generality of the foregoing, those items generally described
on Exhibit B attached hereto.
2. Purchase Price. The purchase price for the Property (the
"Purchase Price") shall be THIRTY-FOUR MILLION and NO/100 DOLLARS
($34,000,000.00). The Purchase Price shall be paid as follows:
(a) Thirty-One Million and no/100 Dollars
($31,000,000.00) shall be paid in cash or other immediately
available funds at the closing (as hereinafter defined).
(b) The balance of the Purchase Price shall be paid by
execution and delivery at the closing of a promissory note
(the "Note") and security documents (the "Security
Documents"), made payable to and for the benefit of an
entity designated by Seller and in form as hereinafter
specified. Purchaser, at its sole expense, shall provide
Seller a mortgagee's policy of title insurance securing
Seller's first lien against any real estate included as part
of the Collateral. Purchaser shall cause Xxxx X. Xxxxxxx to
individually guarantee payment of the Note, and he is
executing this Agreement to acknowledge and agree to do so.
The collateral securing the Note shall consist of property
located within Circle C, as Buyer shall specify and Seller
shall approve on or before the Approval Date (as hereinafter
defined), and Buyer and Seller agree to cooperate in good
faith regarding such collateral. In the event the parties
fail to specify and approve such collateral by the Approval
Date, this Agreement shall terminate. It is understood and
acknowledged that Buyer is the owner of two tracts of land
containing approximately 85.86 acres and 145.80 acres,
respectively, as generally depicted on Exhibit E-1 on which
is located the Circle C Golf Course (the "Golf Course"), and
which are presently encumbered by liens securing certain
indebtedness of Buyer. Seller and Buyer expressly agree
that at any time after the liens encumbering the Golf Course
have been released, Buyer shall have the right, at its sole
election and expense, to substitute the Golf Course as the
collateral for the Note by executing and delivering to the
holder of the Note a first lien deed of trust against the
Golf Course and a mortgagee's policy of title insurance in
the amount of the Note insuring Seller's first lien thereon,
and with no other title encumbrances that would materially
reduce the value thereof, in form approved by Seller (which
approval shall not be unreasonably withheld or delayed).
Upon the delivery of such deed of trust and title policy,
and contemporaneously with the recording of such deed of
trust, all other collateral securing the Note shall be
released by the holder of the Note.
3. Xxxxxxx Money. Within two (2) business days after the
Approval Date (as hereinafter defined), Buyer shall deliver to
Xxxxxxx Title Austin, Inc. (the "Title Company") at 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attn: Xxxx Xxxxx, the
sum of One Million and No/100 Dollars ($1,000,000.00) in cash or
other immediately available funds. All funds so delivered to the
Title Company are hereinafter referred to as the "Xxxxxxx Money."
The Xxxxxxx Money shall be held and disbursed by the Title
Company as provided in this Contract. If Buyer fails to deposit
the Xxxxxxx Money with the Title Company on or before the
required date set forth herein, Seller may cancel this Contract
by written notice to Buyer at any time thereafter prior to
Buyer's depositing the Xxxxxxx Money with the Title Company. The
Xxxxxxx Money shall be "at risk" and non-refundable to Buyer
except in the event of a default by Seller in Seller's
obligations hereunder. In the event this Agreement terminates
for any reason other than a default by Seller or pursuant to
section 4 below, the Xxxxxxx Money shall be promptly delivered to
Seller and Buyer shall have no rights thereto. The Xxxxxxx Money
shall be deposited by the Title Company with a national bank in
Austin, Texas, in an interest-bearing account or fund approved by
Buyer, and all interest accrued thereon shall be paid along with
and upon final disposition of the Xxxxxxx Money as herein
provided.
4. Title. Within thirty (30) days after the Effective Date
hereof, Buyer shall obtain and furnish to Seller (i) a commitment
for an owner's policy of title insurance (the "Commitment") in
the amount of the Purchase Price issued by the Title Company
indicating the status of title to the Land, (ii) legible copies
of any instruments recited in the Commitment as encumbrances
against the Land, and (iii) a certificate reflecting the results
of a UCC financing statement search of the records of the Texas
Secretary of State and Xxxxxx County (the "UCC Search"). If the
Commitment, the Survey (as hereinafter defined) or the UCC Search
indicates any matters that are unacceptable to Buyer, Buyer shall
notify Seller of any unacceptable matters within thirty (30) days
after receipt of both the Commitment and the Survey. Any matters
with respect to which Buyer does not give such notice (other than
any liens or security interests reflected in the Commitment or
the UCC Search, all of which shall be released by Seller at or
prior to the closing) shall be conclusively deemed to be approved
by Buyer. Seller may, but shall have no obligation to, cure any
of such unacceptable matters. In the event Seller is unable or
unwilling to cure and remove such unacceptable matters (other
than liens and other Schedule C items which shall be released or
satisfied at or prior to the closing) within five (5) days from
the date of receipt of Buyer's notice of objections, Buyer must,
by notice to Seller within fifteen (15) days after the expiration
of such cure period, either (i) terminate this Agreement and
receive an immediate refund of the Xxxxxxx Money, or (ii) waive
such objections and accept such title as Seller can deliver
without adjustment of the Purchase Price, as Buyer's sole and
exclusive remedies. In the event Buyer fails to send written
notice to Seller and the Title Company waiving such objections
within said 15-day period, Buyer shall be conclusively deemed to
have waived such uncured objections, and shall proceed with the
closing in accordance with the terms of this Agreement. All
matters permitted or accepted by Buyer hereunder shall be
"Permitted Exceptions". The date on which Buyer finally accepts
and approves (or is deemed to have accepted and approved) the
Title Commitment and the Survey shall be the "Approval Date".
5. Survey. It is acknowledged that Buyer has ordered a current
on-the-ground survey plat and metes and bounds descriptions of
each tract comprising the Land (collectively, the "Survey"), to
be prepared by Capital Surveying Company Incorporated ("CSCI").
Buyer and Seller agree to cooperate fully in obtaining the Survey
as promptly as possible after the Effective Date. Seller shall
supervise the completion of the Survey, and may cause the Survey
to be completed by CSCI and/or such other registered public
surveyor(s) as Seller may determine. Buyer agrees to be solely
responsible for the cost of the Survey, whether the same is
prepared by CSCI or by such other surveyor(s). The Survey shall
(i) locate all improvements, fences, recorded and/or visible or
apparent easements, rights-of-way, street and curb lines, (ii)
specify and locate the total acres contained within each tract
comprising the Land, (iii) be prepared by a public surveyor
registered in the State of Texas, (iv) comply with the
requirements for a Texas Surveyor's Association Category "1A"
Land Title Survey, (v) contain a certificate to Buyer and the
Title Company of the foregoing, and (vi) otherwise be acceptable
to the Title Company for the deletion of the "survey" exception
(other than "shortages in area"). Promptly upon completion of
the Survey, a copy of the Survey shall be delivered to Seller,
Buyer and the Title Company.
6. Representations, Warranties and Covenants.
(a) BUYER ACKNOWLEDGES AND AGREES THAT SELLER HAS NOT
MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES (OTHER THAN THE SPECIAL WARRANTY OF
TITLE AS SET OUT IN THE DEED AND OTHER DOCUMENTS CONVEYING,
TRANSFERRING AND ASSIGNING THE PROPERTY), PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PROPERTY, (B) THE SUITABILITY OF THE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY
CONDUCT THEREON, (C) THE PRESENCE OR ABSENCE OF ANY HAZARDOUS
MATERIALS OR OTHER ENVIRONMENTAL CONDITION, OR THE VIOLATION OF,
OR THE COMPLIANCE OF OR BY, THE PROPERTY WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, OR (D) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTY, AND BUYER EXPRESSLY WAIVES AND RELEASES ANY CLAIMS
ARISING UNDER OR WITH RESPECT TO ANY OF THE FOREGOING. BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PROPERTY, BUYER IS RELYING SOLELY ON
ITS OWN INVESTIGATIONS AND NOT ON ANY INFORMATION PROVIDED OR TO
BE PROVIDED BY SELLER. BUYER FURTHER ACKNOWLEDGES AND AGREES
THAT TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SALE OF THE
PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" CONDITION
AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE
PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT
THAT THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY BUYER
SUBJECT TO THE FOREGOING. THE PROVISIONS OF THIS SECTION SHALL
SURVIVE THE CLOSING.
(b) Except as provided in 6.(c) below, prior to the
closing (as hereinafter defined) neither Seller nor Buyer shall
submit any request for a land use change or an amendment or
modification of the development restrictions imposed by or in
connection with the CCMUDs (as hereinafter defined) with respect
to land within Circle C to the board of the Southwest Xxxxxx
County Water District ("SWTCWD") or any other governmental
entity, including without limitation, the CCMUDs, without the
prior written approval of the other party. It is expressly
understood that the foregoing shall not affect or apply to the
preparing, filing or processing of any subdivision plats, site
plans or other use and/or development approval and permits with
respect to any property owned by Buyer other than requests for a
land use change or an amendment or modification of the
development restrictions imposed by or in connection with the
CCMUDs.
(c) Seller and Buyer agree that after the Approval Date,
Buyer, at Buyer's sole expense and without Seller's assistance,
may seek approvals from SWTCWD and the municipal utility
districts in Circle C (the "CCMUDs") for land use changes,
together with subdivisions, site plans, and other use and/or
development approvals and permits, with respect to the following
property within Circle C and to the extent necessary to effect
the following sales: approximately 136.8 acres on Loop 1, to the
extent required for Buyer to complete a sale to Crystal
Semiconductor Corporation; approximately 27 acres on Wolf Trap,
to the extent required for Buyer to complete a sale to Xxxxxxx
Lutheran Church; and approximately 2 acres at Xxxxxxxxx Xxxx and
Xxxxxx Xxxx (which currently has no land use designation), to the
extent required for Buyer to complete a sale to Eckerd Drugs.
(d) Seller confirms and warrants that no contracts or
agreements presently exist for the sale, lease or any other
disposition or encumbrance with respect to any of the Property,
except as set forth on the Contracts Schedule attached hereto.
(e) All proceeds from the sale of bonds issued by any of
the CCMUDs prior to closing and allocable to reimbursement of
eligible infrastructure (the "Escrowed Funds") shall be placed in
escrow with the Title Company pursuant to an escrow agreement
(the "Escrow Agreement") to be agreed to by the parties prior to
the Approval Date. Seller may, at its sole election, borrow the
Escrowed Funds at any time prior to closing, by delivering (i) a
notice of election to Buyer and the Title Company at least ten
(10) days prior to the funding of such loan and (ii) an unsecured
promissory note (the "Note") payable to order of the Title
Company in form approved by Buyer (which approval shall not be
unreasonably withheld or delayed). The Note shall be made by FM
Properties Operating Co., a Delaware general partnership, shall
specify no interest to the maturity date (and the maximum legal
interest rate after maturity), and shall mature and be payable on
or before sixty (60) days after the date on which the closing is
to occur pursuant to section 7(a) below. The Escrow Agreement
shall provide that (i) in the event this transaction closes as
provided herein, an amount equal to the Escrowed Funds shall be
deducted from the cash portion (and credited as a reduction
against) the Purchase Price, and the Escrowed Funds shall be
disbursed to Seller (or if the Escrow Agent holds the Note, the
Note shall be cancelled and delivered to Seller); and (ii) in the
event this transaction does not close, for any reason, the
Escrowed Funds shall be deposited in the registry of an
appropriate court in Xxxxxx County (or if the Escrow Agent holds
the Note, it shall endorse the Note, without recourse, jointly to
Seller and Buyer as their interests may appear and deposit the
endorsed Note in the registry of the court), and neither party
shall have waived, released or in any way altered any of their
rights to such proceeds by virtue of this Agreement.
7. Closing.
(a) The closing of the sale and purchase of the Property
(the "closing") shall occur on the first business day following
one hundred twenty (120) days after the Approval Date; provided,
Buyer may extend such date by delivering to the Title Company on
or before such date the sum of Two Million and No/100
($2,000,000.00) as a non-refundable Option Fee (which shall be
credited against the Purchase Price in the event of closing) in
which event the closing shall occur on the first business day
following one hundred sixty-five (165) days after the Approval
Date. In the event this transaction fails to close for any
reason other than a default by Seller, the $1,000,000.00 Xxxxxxx
Money and the $2,000,000.00 Option Fee shall be immediately
delivered to Seller and Buyer shall have no claim thereto. The
date on which the closing occurs shall be the "Closing Date".
(b) The closing shall be held at 10:00 a.m. on the
Closing Date at the main office of the Title Company at 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx, or at such other
location acceptable to both Seller and Buyer.
(c) At the closing, Seller shall deliver or cause to be
delivered to Buyer the following:
(i) A Special Warranty Deed in the form attached
as Exhibit C, conveying to Buyer good and indefeasible fee
simple title to the Land, subject only to the Permitted
Exceptions.
(ii) A General Assignment and Xxxx of Sale, with
covenants of special warranty only, of all of the personal
property, contracts, claims, receivables, assets, rights,
privileges, benefits and interests owned by Seller related
to, associated with, benefitting or otherwise attributable
to Circle C, in the form attached as Exhibit D.
(iii) An Owner's Policy of Title Insurance issued
by the Title Company to Buyer in accordance with the
provisions hereof at Buyer's sole expense.
(iv) A certificate that Seller is not a "foreign
person" as defined in the federal Foreign Investment in Real
Property Act of 1980 in compliance with such federal law.
(v) Such other instruments and documents as Buyer
or the Title Company may reasonably determine to be
necessary, appropriate or desirable to consummate the
closing and otherwise effectuate the provisions of this
Agreement.
(d) At the closing, Buyer shall deliver or cause to be
delivered the following:
(i) A cashier's check, wire transfer or other
"good funds" acceptable to the Title Company in an amount of
money equal to the portion of the Purchase Price to be paid
in cash as provided in paragraph 2(a); provided, the Xxxxxxx
Money and the Option Fee shall be applied and credited
against such cash portion of the Purchase Price.
(ii) An acceptance of the Special Warranty Deed
and the General Assignment and Xxxx of Sale.
(iii) The Note and Security Documents, in the form
attached as Exhibit E.
(iv) A mortgagee's policy of title insurance
insuring Seller's first lien on any real property encumbered
by the Security Documents, issued at Buyer's expense in the
amount of the Note.
(v) Such other instruments and documents as
Seller or the Title Company may reasonably determine to be
necessary, appropriate or desirable to consummate the
closing and otherwise effectuate the provisions of this
Agreement.
(e) Buyer shall pay title (including title insurance
premiums), survey, and other customary closing costs and expenses
and Seller shall have no liability therefor. Each party shall
pay its attorneys' fees.
(f) At the closing, all rents, operating revenues,
operating costs and expenses, and ad valorem taxes shall be
prorated as of the Closing Date. Seller shall pay and be
responsible for all accounts payable, liabilities and obligations
with respect to the Property arising or pertaining to all periods
ending on or prior to the Closing Date, and Buyer shall be
responsible for all such items for all periods after the Closing
Date. Buyer may reject any contract or agreement existing on
(and which Buyer has not approved prior to) Closing Date, and
Seller shall be solely responsible for all liabilities and
obligations under such rejected contracts and agreements. If the
actual amount of such taxes are not known as of the date of the
closing, 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
Buyer. Buyer shall assume and shall be responsible for the
payment of any "roll-back" or other taxes levied or assessed
against the Land as the result of the change of the use or
ownership of the Land.
(g) Prior to the closing and provided Buyer is not in
default hereunder, Seller shall operate and deal with the
Property in the ordinary course of business, consistent with the
operations of Seller on the Effective Date hereof. Without the
prior written consent of Buyer, which Buyer shall not
unreasonably withhold, Seller shall not grant or impose any
easements, restrictions or other encumbrances upon or against the
Property which will not be released at closing; apply for any new
(or amend, revise, terminate or otherwise modify any existing)
subdivision plan or plat, land use plan, site plan, or other
permit or approval with respect to or affecting the Property
unless in Seller's reasonable determination such action is
necessary to protect existing entitlements or the value of the
Property and Seller obtains Buyer's prior written approval
thereof (which approval shall not be unreasonably withheld or
delayed); or sell or lease, or enter into any contract or
agreement or amendment thereto for the sale or lease, or relating
to the use or development of, the Property or any part thereof or
any interest therein except for sales reflected on the Contracts
Schedule.
(h) At the closing, at Buyer's option and request, FM
Properties, Inc. ("FMP") shall assign and transfer to Buyer all
outstanding shares of stock of Seller, together with the
originals of all certificates evidencing such stock with an
appropriate endorsement or stock power transferring such shares
to Buyer. Seller and FMP agree that Seller shall not be
dissolved before the closing, and that Seller and/or FMP shall
pay and be responsible for all accounts payable, liabilities and
obligations of Seller arising or pertaining to all periods ending
on or prior to the Closing Date, so that Seller shall have no
liabilities or obligations as of the closing. FMP is a Delaware
corporation and the owner of all such shares of stock, and is
executing this Agreement to acknowledge and agree to this
paragraph.
8. Condemnation and Casualty Loss. Prior to the closing, risk
of loss with regard to the Property shall be borne by Seller. If
prior to the closing any portion of the Property is destroyed or
damaged, or becomes subject to a taking by virtue of eminent
domain, Seller shall notify Buyer and Buyer may, by notice to
Seller within five (5) days after the date of Seller's notice,
either (i) terminate this Agreement and receive the return of the
Xxxxxxx Money, or (ii) proceed with the closing with no reduction
in the Purchase Price and Seller shall assign to Buyer all
proceeds and rights to proceeds received or receivable by Seller
as a result of such damage or destruction or condemnation
proceedings.
9. Default.
(a) If Seller shall default hereunder, Buyer may as
Buyer's sole and exclusive remedies hereunder either
(i) terminate this Agreement and receive the return of the
Xxxxxxx Money and the Option Fee (if then deposited), or
(ii) enforce specific performance of this Agreement.
(b) If Buyer shall default hereunder, Seller may as
Seller's sole and exclusive remedy hereunder terminate this
Agreement and receive the Xxxxxxx Money and the Option Fee (if
then deposited) as liquidated damages (and not as a penalty).
(c) If this Agreement terminates pursuant to any
provision hereof, thereafter no party shall have any further
rights or obligations hereunder.
10. Commissions. There is no Real Estate Broker or Agent
involved in this transaction, and there is no real estate
commission owing in connection with this transaction. Each party
agrees to defend, indemnify and hold the other harmless from any
cost or claim for commission, fee or other compensation by reason
of this transaction made by any agent, broker, entity or person
alleging to be acting for or under the indemnifying party or
which otherwise arises out of the acts or conduct of the
indemnifying party. It is understood and acknowledged that Xxxx
X. Xxxxxxx is a Real Estate Broker.
11. Notices. All notices, demands and requests which may be
given or which are required to be given by either party to the
other, and any exercise of a right of termination provided by
this Agreement, shall be in writing and shall be deemed effective
when either: (i) personally delivered to the intended recipient;
(ii) sent, by certified or registered mail, return receipt
requested, addressed to the intended recipient at the address
specified below; (iii) delivered in person to the address set
forth below for the party to whom the notice was given;
(iv) deposited into the custody of a nationally recognized
overnight delivery service such as Federal Express Corporation,
Xxxxx, or Purolator, addressed to such party at the address
specified below; or (v) sent by facsimile, telegram or telex,
provided that receipt for such facsimile, telegram or telex is
verified by the sender and followed by a notice sent in
accordance with one of the other provisions set forth above.
Notices shall be effective on the date of delivery or receipt,
or, if delivery is not accepted, on the earlier of the date that
delivery is refused or one (1) business day after the date the
notice is deposited in the mails or delivered to an overnight
delivery service. For purposes of this section, the addresses of
the parties for all notices are as follows (unless changed by
similar notice in writing given by the particular person whose
address is to be changed):
If to Seller at: 0000 Xxxxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx, III
Fax: (000) 000-0000
with a required copy to: Xx. Xxxx X. Xxxxx
0000 Xxxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
with a required copy to: Xx. Xxxxxxx X. Xxxxx
Xxxxxxxxxxx & Price, L.L.P.
2600 One American Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Fax: (000) 000-0000
If to Buyer at: 0000 Xxxx 00xx Xxxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
with required copy to: Xx. Xxxxxx X. Xxxxxx
Kotite & Kotite, L.L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
12. Entire Agreement. This Agreement embodies the entire
agreement between the parties relative to the subject matter
hereof, and there are no oral or written agreements between the
parties, nor any representations made by either party relative to
the subject matter hereof, which are not expressly set forth
herein.
13. Amendment. This Agreement may be amended only by a written
instrument executed by the party or parties to be bound thereby.
14. Time of Essence. Time is of the essence of this Agreement.
If the final date of any period which is set out in any provision
of this Agreement falls on a Saturday, Sunday or legal holiday
under the laws of the United States or the State of Texas, then,
in such event, the time of such period shall be extended to the
next day which is not a Saturday, Sunday or legal holiday.
15. Governing Law. This Agreement shall be construed under and
in accordance with the laws of the State of Texas and all
obligations hereunder are performable in Xxxxxx County, Texas.
In the event any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal, or
unenforceable, such invalidity, illegality or unenforceability
shall not affect the remainder of this Agreement, which shall
continue in full force and effect.
16. Successors and Assigns. This Agreement shall bind and inure
to the benefit of Seller and Buyer and their respective heirs,
executors, administrators, personal and legal representatives,
successors and permitted assigns. Buyer may assign Buyer's
rights under this Agreement to an entity which assumes all
Buyer's obligations hereunder and in which Buyer holds at least
fifty percent (50%) of the ownership interests, without the prior
consent or approval of Seller. Buyer may not otherwise assign
Buyer's rights under this Agreement without the express prior
written consent of Seller.
17. Attorneys' Fees. Notwithstanding anything contained herein
to the contrary, in the event it becomes necessary for either
party hereto to file suit to enforce this Agreement or any
provision contained herein, the party prevailing in such suit
shall be entitled to recover, in addition to all other remedies
or damages, as provided herein, reasonable attorneys' fees
incurred in such suit.
18. MUD Notice. It is acknowledged that portions of the Land is
located within the CCMUDs and the Southwest Xxxxxx County Water
District. Seller shall give Buyer Notices (in form attached
hereto) as required by section 49.452 of the Texas Water Code,
and Buyer agrees to sign and acknowledge such Notices to
acknowledge the receipt thereof, as required by such statute.
19. Multiple Counterparts. This Agreement may be executed in
identical counterparts which, taken together, shall constitute
collectively one (1) agreement; but in making proof of this
Agreement, it shall not be necessary to produce or account for
more than one such counterpart.
20. Effective Date. This Agreement has been signed by Buyer on
the date set forth below Buyer's signature to this Agreement.
This Agreement and offer shall be null and void unless signed by
Seller and delivered to Buyer within seven (7) business days from
the date of Buyer's execution hereof. The Effective Date of this
Agreement shall be the date this Agreement is received by the
Title Company.
SELLER:
CIRCLE C LAND CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name (print): Xxxxxxx X. Xxxxxxxxx
Title (print): President
Date: May 30, 1996
For purposes of paragraph 7(h)
only:
FM PROPERTIES INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Name (print): Xxxxxxx X. Xxxxxxxxx
Title (print): Authorized Agent
Date: May 30, 1996
BUYER:
PHOENIX HOLDINGS, LTD.
By: Phoenix Holdings GP, Inc.
a Texas corporation,
its General Partner
By: /s/ Xxxx X. Xxxxxxx
Name (print): Xxxx X. Xxxxxxx
Title (print): President
Date: May 21, 1996
For purposes of paragraph 2(b)
only:
/s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, individually
Date: May 21, 1996
RECEIPT OF AGREEMENT
The undersigned Title Company hereby acknowledges receipt of
a fully executed copy of the foregoing Agreement on May 31, 1996.
TITLE COMPANY:
Xxxxxxx Title Austin, Inc.
By: /s/ Xxxx Xxxxx
Name (print): Xxxx Xxxxx
Title (print):Commercial Division
Manager
EXHIBIT A
to Purchase and Sale Agreement
Those certain tracts of land more particularly described
below, and being as generally depicted on Exhibit A-1 attached
hereto and made a part hereof:
Tract 101: That certain tract of land containing 57 acres, more
or less, and being those tracts of land designated as
Xxx 0, Xxxxx X; Xxxx 00 xxx 00, Xxxxx B; Xxx 00,
Xxxxx X; and the proposed right of way of Allerton
Avenue on the preliminary plan of CIRCLE C PHASE A
filed with the City of Austin under File No. C8-84-
164(A), as revised.
Tract 102: That certain tract of land containing 67 acres, more
or less, and being those tracts of land designated as
Xxx 0, Xxxxx X; Xxxx 0 xxx 0, Xxxxx U; Xxx 0, Xxxxx
X; and the proposed rights of way of Allouez Avenue
and Hillside Terrace Drive on the preliminary plan of
CIRCLE C PHASE B filed with the City of Austin under
File No. C8-84-164(B), as revised.
Tract 103: That certain tract of land containing 62 acres, more
or less, and being those tracts of land designated as
Lots 2 and 3, Block W; and the proposed right of way
for Escarpment Boulevard on the preliminary plan of
CIRCLE C PHASE B filed with the City of Austin under
File No. C8-84-164(B), as revised; and Xxxx 0 xxx 0,
Xxxxx X on the preliminary plan of CIRCLE C PHASE C
filed with the City of Austin under File No. C8-84-
164(C), as revised.
Tract 104: That certain tract of land containing 15 acres, more
or less, and being that tract of land designated as
Xxx 0, Xxxxx X on the preliminary plan of CIRCLE C
PHASE B filed with the City of Austin under File No.
C8-84-164(B), as revised.
Tract 105: That certain tract of land containing 8 acres, more
or less, and being that tract of land designated as
Xxx 00, Xxxxx J on the preliminary plan of CIRCLE C
PHASE C filed with the City of Austin under File No.
C8-84-164(C), as revised.
Tract 106: That certain tract of land containing 12 acres, more
or less, and being that tract of land designated as
Xxx 0, Xxxxx G on the preliminary plan of CIRCLE C
PHASE C filed with the City of Austin under File No.
C8-84-164(C), as revised.
Tract 107: That certain tract of land containing 23 acres, more
or less, and being that tract of land designated as
Xxx 00, Xxxxx J on the preliminary plan of CIRCLE C
PHASE C filed with the City of Austin under File No.
C8-84-164(C), as revised.
Tract 108: That certain tract of land containing 111 acres, more
or less, and being those tracts of land designated as
Xxxx 0, 0 xxx 0, Xxxxx XX; Xxxx 0, 0, 0, xxx 0, Xxxxx
X; and the proposed right of way of Asticou Lane on
the preliminary plan of CIRCLE C PHASE C filed with
the City of Austin under File No. C8-84-164(C), as
revised, and that certain tract of land containing
4.9461 acres, more or less, as more particularly
described on Exhibit A-2 attached hereto and made a
part hereof.
Tract 109: That certain tract of land containing 20 acres, more
or less, and being that tract of land designated as
"Minor Waterway" in Block RR on the preliminary plan
of CIRCLE C PHASE B filed with the City of Austin
under File No. C8-84-164(B), as revised.
Tract 110: That certain tract of land containing 250 acres, more
or less, and being those tracts of land designated as
Xxxx 0 xxx 0, Xxxxx X; Xxxx 00, 00, 00 xxx 00, Xxxxx
X; and the proposed right of way of Xxxxxx Xxxx (now
South Bay) on the preliminary plan of CIRCLE C PHASE
B filed with the City of Austin under File No. C8-84-
164(B).
Tract 111: That certain tract of land containing 17 acres, more
or less, and being those tracts of land designated as
Xxx 0, Xxxxx P on the preliminary plan of CIRCLE C
PHASE C filed with the City of Austin under File No.
C8-84-164(C), as revised.
Tract 112: That certain tract of land containing 50 acres, more
or less, and being that tract of land designated as
Xxx 0, Xxxxx R on the preliminary plan of CIRCLE C
PHASE C filed with the City of Austin under File No.
C8-84-164(C), as revised.
Tract 113: That certain tract of land containing 39 acres, more
or less, and being those tracts of land designated as
Xxxx 0, 0, 0 xxx 0, Xxxxx X; and the right of way of
proposed Stamplighter Avenue (now South Bay) on the
preliminary plan of CIRCLE C PHASE C filed with the
City of Austin under File No. C8-84-164(C), as
revised.
Tract 114: That certain tract of land containing 12 acres, more
or less, and being that tract of land designated as
Xxx 00, Xxxxx G on the preliminary plan of CIRCLE C
WEST filed with the City of Austin under File No. C8-
85-37, as revised.
Tract 115: That certain tract of land containing 534 acres, more
or less, and being those tracts of land designated as
Lots 1, 2 and 4, Block Z; Xxx 0, Xxxxx XX; Xxx 0,
Xxxxx XX; Lot Block BB; Xxxx 0, 0 xxx 0, Xxxxx XX;
and the rights of way of proposed Beechnoll Drive,
Wink Drive, Xxxxxxx Drive and Xxxxxx Drive on the
preliminary plan of CIRCLE C WEST filed with the City
of Austin under File No. C8-85-37, as revised.
Upon completion of the Survey as provided for in paragraph 5 of
this Agreement and Seller's and Buyer's approval of the same
(which approval shall not be unreasonably withheld or delayed),
the Survey shall be substituted for and shall replace the above
description.
Page A-2
EXHIBIT B
to Purchase and Sale Agreement
1. All buildings, structures, fixtures, equipment, facilities,
parking areas, and other improvements owned by Seller
located on the Land (the "Improvements").
2. All personal property owned by Seller located on the Land or
in the Improvements or used in connection with the use and
operation thereof (the "Personalty").
3. All of Seller's right, title and interest in and to all
easements, rights, privileges and appurtenances pertaining
to the Land and the Improvements, including all right, title
and interest of Seller in any land lying in or under any
street, road, or rights-of-way (whether existing or
proposed), or lying in the bed of any creek, stream or
watercourse, adjacent to or adjoining the Land; and except
as set forth in paragraph 14 below, all of Seller's right,
title and interest in and to any permits, plats, plans,
deposits, utility taps, connections or service commitments,
rights to receive reimbursement for the installation of gas,
electric or other utilities, or other development rights and
benefits to the extent the same are associated with or
pertain to Circle C (the "Appurtenances").
4. All of Seller's right, title and interest in and to all
past, present and future amounts payable by or in respect of
the CCMUDs, with respect to the engineering, construction,
and installation of water, wastewater, drainage and other
improvements constructed within the boundaries of the CCMUDs
or elsewhere, or that provide service to or benefit the
CCMUDs and/or Circle C, whether installed and constructed
prior to or after the Effective Date hereof and whether
constructed by Seller, by Seller's predecessors-in-title, or
by any other party, including without limitation all pending
bond applications and all proceeds payable under any pending
bond issues (the "Reimbursements").
5. All of Seller's right, title and interest in and to all
contracts, leases, sales agreements, warranties, guarantees,
bonds or sureties owned, held, or accruing, to the extent
such items are associated with or pertain to Circle C,
including without limitation all contracts and agreements
between Seller, or Seller's predecessors-in-title, and the
CCMUDs (the "Contracts").
6. All of Seller's right, title and interest in and to all
receivables, notes, accounts, proceeds, instruments,
certificates, or other writings evidencing the same, and all
security interests, collateral, pledges, liens, encumbrances
owned or held by or for the benefit of Seller, to the extent
such items are associated with or pertain to Circle C (the
"Receivables").
7. All of Seller's right, title and interest in and to all site
plans, surveys, soil and substrata studies, architectural
drawings, plans and specifications, engineering plans and
studies, landscape plans and other tests, or other studies
or reports of any kind in Seller's possession or control,
which are associated with or pertain to Circle C ("Plans").
8. All books, record, promotional material, data, corporate
records, and other materials of any kind in Seller's
possession or control, which are or have been or may be used
in connection with Circle C and/or Seller ("Books and Records").
9. All of Seller's rights as the Declarant under any
Declaration of Covenants, Conditions, and Restrictions with
respect to any property within the CCMUDs and/or Circle C
(the "Declarant's Rights").
10. All of Seller's rights in, to and under that certain Final
Judgment entered in the District Court of Xxxx County,
Texas, 22nd Judicial District Cause No. 92-0637 styled Xxxxx
X. Quick, et al. vs. City of Austin, together with the right
to use the name "Circle C Land Corp." in connection with the
filing and processing of any applications for any permit, or
any other matter to which the Final Judgment relates,
determined by Buyer to be necessary, appropriate or helpful
with respect to the use and development of the Land and the
Improvements.
11. All of Seller's right, title and interest in and to the
tradenames "Circle C," "Circle C Ranch," "Circle C Ranch
Soccer Complex," "Circle C Soccer Complex," "Circle C Ranch
Veloway," "Circle Veloway," or any other related or similar
names, all registrations, copyrights or trademarks related
to any such names, and all business and goodwill of Seller
acquired in connection with and symbolized by the use of any
such names.
12. Any and all other rights, titles, interests, privileges and
appurtenances owned by Seller and in any way related to, or
used in connection with, the ownership, use, development and
operation of Circle C or any of the foregoing.
13. All proceeds payable with respect to the Property (including
but not limited to all proceeds from any Reimbursements, but
excluding the COA Contract described on the Contracts
Schedule to this Agreement) shall be paid to and held in a
separate escrow (with respect to each item of the Property
for which proceeds are paid) by the Title Company, and shall
be deposited by the Title Company in a national bank in
Austin, Texas in an interest-bearing account or fund
approved by Buyer. At the closing (and conditioned
thereon), each such escrow, together with all interest
thereon, shall be paid to Buyer. The proceeds from the COA
Contract shall be applied and credited as set forth on the
Contracts Schedule.
14. Simultaneously with and as a condition to the closing, Buyer
shall replace or have released the letters of credit and
deposits set forth on the LOC Schedule attached hereto, in
the event such items are in existence on the Closing Date
and to the extent of the amount thereof on the Closing Date.
Buyer and Seller shall cooperate prior to the closing as
concerns such replacement or release. Upon such replacement
or release, the party providing the letter of credit or
deposit so replaced shall be entitled to a return of same.
This provision shall survive the closing.
15. Seller shall pay and be responsible for all accounts
payable, liabilities and obligations with respect to the
Property arising or pertaining to all periods ending on or
prior to the Closing Date, and Buyer shall be responsible
for all such items for all periods after the Closing Date.
Buyer may reject any contract or agreement existing on (and
which Buyer has not approved prior to) the Approval Date,
and Seller shall be solely responsible for all liabilities
and obligations under such rejected contracts and
agreements. This provision is not intended and shall not be
construed to restrict or limit Buyer's indemnity obligations
assumed or incurred in connection with that certain Purchase
and Sale Agreement dated April 13, 1995, as amended, and
related documents executed in connection with closing
thereunder.
Page B-2
EXHIBIT C
to Purchase and Sale Agreement
SPECIAL WARRANTY DEED
THE STATE OF TEXAS S
S KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF XXXXXX S
That CIRCLE C LAND CORP., a Texas corporation ("Grantor"),
for and in consideration of the sum of TEN AND NO/100 DOLLARS
($10.00) and other valuable consideration to the undersigned paid
by the Grantee herein named, the receipt and sufficiency of which
are hereby acknowledged, and to secure the payment of which no
lien, express or implied, is retained; has GRANTED, SOLD and
CONVEYED, and by these presents does GRANT, SELL and CONVEY unto
PHOENIX HOLDINGS, LTD., a Texas limited partnership ("Grantee"),
subject to the reservations and restrictions hereinafter set
forth, the following-described real property in Xxxxxx County,
Texas, to wit:
Those certain tract of land, more particularly
described on Exhibit A attached hereto (the
"Property");
TO HAVE AND TO HOLD the Property, together with all and
singular the rights and appurtenances thereto in anywise
belonging, unto Grantee, its successors and assigns forever; and
Grantor does hereby bind itself, it successors and assigns, to
WARRANT AND FOREVER DEFEND all and singular the Property unto
Grantee, its successors and assigns, against every person
whomsoever lawfully claiming or to claim the same or any part
thereof, by, through and under Grantor, but not otherwise.
This conveyance is made by Grantor and accepted by Grantee
subject to any and all easements, covenants, rights-of-way
conditions, restrictions, outstanding mineral interests and
royalty interests, if any, relating to the Property, to the
extent, and only to the extent, that the same may still be in
force and effect, and either shown of record in the office of the
County Clerk of Xxxxxx County, Texas, or apparent on the
Property, including without limitation those referenced on
Exhibit B attached hereto.
Current ad valorem taxes on the Property having been
prorated, the payment thereof for 1996 and subsequent years is
assumed by Grantee. Grantee further assumes and agrees to pay
any "rollback" taxes or other assessments levied against the
Property as the result of any change in the use or ownership of
the Property, including all periods prior to the date hereof.
EXECUTED to be effective the _____ day of _______, 1996.
CIRCLE C LAND CORP.
By:______________________________
Name (print):_________________
Title (print):________________
Accepted by Grantee:
PHOENIX HOLDINGS, LTD.
By: Phoenix Holdings GP, Inc.
a Texas corporation,
its General Partner
By:_____________________________
Name (print):________________
Title (print):_______________
Address for Grantee:
_____________________
_____________________
_____________________
THE STATE OF TEXAS S
S
COUNTY OF XXXXXX S
This instrument was acknowledged before me on the ______ day
of _________________, 1996 by _______________________________,
__________________________ of CIRCLE C LAND CORP., a Texas
corporation, on behalf of said corporation.
__________________________________
Notary Public, State of Texas
Print name: ______________________
STATE OF TEXAS S
S
COUNTY OF XXXXXX S
This instrument was acknowledged before me on the _____ day
of ___________, 1996, by _________________, _________________ of
Phoenix Holdings GP, Inc., a Texas corporation, General Partner
of PHOENIX HOLDINGS, LTD., a Texas limited partnership, on behalf
of said limited partnership.
__________________________________
Notary Public, State of Texas
Print name: ______________________
AFTER RECORDING, RETURN TO:
Wm. Xxxxx Xxxx
Xxxxxx, Dougherty, Hearon, & Xxxxx
X.X. Xxx 00
Xxxxxx, Xxxxx 00000
Page C-2
EXHIBIT D
to Purchase and Sale Agreement
GENERAL ASSIGNMENT AND XXXX OF SALE
STATE OF TEXAS S
S
COUNTY OF XXXXXX S
That CIRCLE C LAND CORP., a Texas corporation ("Assignor"),
for and in consideration of Ten Dollars ($10.00) and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and to secure the payment of which no
lien or security interest is retained, has GRANTED, SOLD,
ASSIGNED, TRANSFERRED, CONVEYED and DELIVERED, and by these
presents does hereby GRANT, SELL, ASSIGN, TRANSFER, CONVEY and
DELIVER unto PHOENIX HOLDINGS, LTD., a Texas limited partnership
("Assignee"), all of the personal property, contracts, claims,
receivables, assets, rights, privileges, benefits, and interests
owned by Assignor related to, associated with, benefitting or
otherwise attributable to the Circle C Ranch and Circle C West
Subdivisions generally described on Exhibit A attached hereto
(collectively, the "Land"):
1. All buildings, structures, fixtures, equipment, facilities,
parking areas, and other improvements owned by Assignor
located on the Land (the "Improvements").
2. All personal property owned by Assignor located on the Land
or in the Improvements or used in connection with the use
and operation thereof (the "Personalty").
3. All of Assignor's right, title and interest in and to all
easements, rights, privileges and appurtenances pertaining
to the Land and the Improvements, including all right, title
and interest of Assignor in any land lying in or under any
street, road, or rights-of-way (whether existing or
proposed), or lying in the bed of any creek, stream or
watercourse, adjacent to or adjoining the Land; and except
as set forth on the LOC Schedule attached hereto, all of
Assignor's right, title and interest in and to any permits,
plats, plans, letters of credit, deposits, utility taps,
connections or service commitments, rights to receive
reimbursement for the installation of gas, electric or other
utilities, or other development rights and benefits to the
extent the same are associated with or pertain to Circle C
(the "Appurtenances").
4. All of Assignor's right, title and interest in and to all
past, present and future amounts payable by or in respect of
the CCMUDs, with respect to the engineering, construction,
and installation of water, wastewater, drainage and other
improvements constructed within the boundaries of the CCMUDs
or elsewhere, or that provide service to or benefit the
CCMUDs and/or Circle C, whether installed and constructed
prior to or after the Effective Date hereof and whether
constructed by Assignor, by Assignor's predecessors-in-
title, or by any other party, including without limitation
all pending bond applications and all proceeds payable under
any pending bond issues (the "Reimbursements").
5. All of Assignor's right, title and interest in and to all
contracts, leases, sales agreements, warranties, guarantees,
bonds or sureties owned, held, or accruing, to the extent
such items are associated with or pertain to Circle C,
including without limitation all contracts and agreements
between Assignor, or Assignor's predecessors-in-title, and
the CCMUDs (the "Contracts").
6. All of Assignor's right, title and interest in and to all
receivables, notes, accounts, proceeds, instruments,
certificates, or other writings evidencing the same, and all
security interests, collateral, pledges, liens, encumbrances
owned or held by or for the benefit of Assignor, to the
extent such items are associated with or pertain to Circle C
(the "Receivables").
7. All of Assignor's right, title and interest in and to all
site plans, surveys, soil and substrata studies,
architectural drawings, plans and specifications,
engineering plans and studies, landscape plans and other
tests, or other studies or reports of any kind in Assignor's
possession or control, which are associated with or pertain
to Circle C ("Plans").
8. All books, record, promotional material, data, corporate
records, and other materials of any kind in Assignor's
possession or control, which are or have been or may be used
in connection with Circle C and/or Assignor ("Books and
Records").
9. All of Assignor's rights as the Declarant under any
Declaration of Covenants, Conditions, and Restrictions with
respect to any property within the CCMUDs and/or Circle C
(the "Declarant's Rights").
10. All of Assignor's rights in, to and under that certain Final
Judgment entered in the District Court of Xxxx County,
Texas, 22nd Judicial District Cause No. 92-0637 styled Xxxxx
X. Quick, et al. vs. City of Austin, together with the right
to use the name "Circle C Land Corp." in connection with the
filing and processing of any applications for any permit, or
any other matter to which the Final Judgment relates,
determined by Assignee to be necessary, appropriate or
helpful with respect to the use and development of the Land
and the Improvements.
11. All of Assignor's right, title and interest in and to the
tradenames "Circle C," "Circle C Ranch," "Circle C Ranch
Soccer Complex," "Circle C Soccer Complex," "Circle C Ranch
Veloway," "Circle Veloway," or any other related or similar
names, all registrations, copyrights or trademarks related
to any such names, and all business and goodwill of Assignor
acquired in connection with and symbolized by the use of any
such names.
12. Any and all other rights, titles, interests, privileges and
appurtenances owned by Assignor and in any way related to,
or used in connection with, the ownership, use, development
and operation of Circle C or any of the foregoing.
All of the foregoing is collectively referred to as the
"Assigned Property." Without limiting the generality of the
foregoing, the Assigned Property includes those items more
particularly described on Exhibit B attached hereto.
The foregoing Assignment also constitutes a delegation of
the performance of the duties and obligations of Assignor with
respect to the Assigned Property, and Assignee accepts the
foregoing Assignment subject to the terms and provisions thereof
and agrees to perform the duties and obligations of Assignor
thereunder.
Page D-2
Assignor covenants and warrants that the Assigned Property
is free from all other grants, sales assignments and
encumbrances; that title to the Assigned Property assigned to
Assignee shall be good and indefeasible in Assignee, and the
assignment and transfer thereof by Assignor is rightful; and that
Assignor, its successors and assigns, shall forever warrant and
defend the title to the Assigned Property hereby assigned unto
Assignee, its successors and assigns, by, through or under
Assignor, but not otherwise.
EXECUTED to be effective the ____ day of _________, 1996.
ASSIGNOR:
CIRCLE C LAND CORP.
By:______________________________
Name (print):_________________
Title (print):________________
ASSIGNEE:
PHOENIX HOLDINGS, LTD.
By: Phoenix Holdings GP, Inc.
a Texas corporation,
its General Partner
By:_____________________________
Name (print):________________
Title (print):______________
STATE OF TEXAS S
S
COUNTY OF XXXXXX S
This instrument was acknowledged before me on the ____ day
of ___________ 1996, by _______________, __________________ of
CIRCLE C LAND CORP.), a Texas corporation, on behalf of said
corporation.
__________________________________
Notary Public, State of Texas
Print name: ______________________
STATE OF TEXAS S
S
COUNTY OF XXXXXX S
This instrument was acknowledged before me on the _____ day
of ___________, 1996, by _________________, _________________ of
Phoenix Holdings GP, Inc., a Texas corporation, General Partner
of PHOENIX HOLDINGS, LTD., a Texas limited partnership, on behalf
of said limited partnership.
__________________________________
Notary Public, State of Texas
Print name: ______________________
AFTER RECORDING, RETURN TO:
Wm. Xxxxx Xxxx
Xxxxxx, Dougherty, Hearon, & Xxxxx
X.X. Xxx 00
Xxxxxx, Xxxxx 00000
Page D-3
EXHIBIT E
to Purchase and Sale Agreement
PROMISSORY NOTE
Austin, Texas
$3,000,000.00 _________________, 1996
For value received, Phoenix Holdings, Ltd., a Texas limited
partnership ("Makers," whether one or more), as principals,
promise to pay to the order of Circle C Land Corp., a Texas
corporation ("Holder"), at _______________________, or such other
address as Holder may from time to time designate in writing, the
sum of Three Million and No/100 Dollars ($3,000,000.00) in legal
and lawful money of the United States of America with interest on
the unpaid balance thereof, from date hereof (the "Loan Date")
until maturity, at a rate (the "Contract Rate") equal to the
average cost of funds of FM Properties Operating Co., a Delaware
general partnership, adjusted quarterly. Matured, unpaid
principal and interest shall bear interest from date of maturity
until paid at the highest, non-usurious rate at which Holder may
lawfully and contractually require Makers to pay (the "Maximum
Rate").
The principal and interest of this Note are due and payable,
and Makers shall pay the indebtedness, principal and interest,
evidenced by this Note (the "Indebtedness") as follows: The
principal is payable on or before four (4) years from the Loan
Date, and interest is payable annually as it accrues. Makers
shall have the right to prepay the principal of this Note in full
or in part, at any time, without premium or penalty, and interest
shall immediately cease to accrue on any principal so prepaid.
This note is secured by [to be agreed upon by Seller and
Buyer on or before the Approval Date, but which shall contain
provisions giving Buyer the right to substitute the Golf Course
as the collateral for the Note as provided in paragraph 2(b)].
Regardless of any contingency, event, or agreement between
Holder and Makers, the interest contracted for, taken, received,
reserved or charged, directly and indirectly, by Holder, in
connection with the transaction of which this Note is a part (the
"Loan Transaction"), shall never exceed the maximum, non-usurious
amount Holder may contract for, take, receive, reserve and charge
under applicable law. If Holder receives interest in excess of
such non-usurious amount, then Holder shall either refund that
excess to Makers or credit that excess, as of the time received,
to the unpaid principal under this Note, at Makers' option.
Holder's crediting of payments on this Note, as between interest
and principal, shall be provisional until the Indebtedness is
fully paid, when a final and binding crediting shall be made. In
addition, the principal required to be paid by this Note shall
not exceed the sum of all advances made by Holder under this Note
(including, without limitation, any advances made and retained by
Holder in payment of interest or fees). If any of the provisions
of this paragraph conflict with any provisions in any other
paragraph in this Note, or any provisions in any other agreement
signed by Makers, the provisions of this paragraph shall control
and govern the interpretation of this Note and any such other
agreement.
If Makers fail to make timely any payment required by this
Note or to perform timely any other covenant or obligation under
any security document that secures payment of any of the
Indebtedness, or in any guaranty agreement by which payment of
any of the Indebtedness is guaranteed, Holder may, to the extent
it elects, accelerate the maturity of the Indebtedness. If
Page 1 of 2 Pages Initi
Holder retains an attorney in connection with any default in
payment of the Indebtedness, or in performance of any covenant or
obligation described above, if Holder brings suit on this Note,
then Makers shall pay to Holder, on demand, the amount of all
reasonable attorneys' and/or collection fees incurred by Holder.
The portion of that amount that has been demanded by Holder and
not paid by Makers shall bear interest at the same rate at which
interest accrues on matured, unpaid principal and interest under
this Note; and interest accruing pursuant to this sentence shall
be paid to Holder by Makers on demand.
Makers and each guarantor of any of the Indebtedness,
(i) except as expressly provided herein, waives all notices
(including, without limitation, notice of intent to accelerate,
notice of acceleration and notice of dishonor), demands for
payment, presentment, protest and diligence in bringing suit and
in the handling of any security; and (ii) agrees that with regard
to the Indebtedness, none of certain actions by or at the request
of one or more of Makers, whether with or without notice and
whether before or after maturity, shall release or diminish any
obligation or liability owed by him, to Holder, such certain
actions being as follows: any and all renewals, extensions,
rearrangements, modifications (including, without limitation,
changes in interest rate), partial payments, indulgences of any
kind, releases of any other person(s) obligated to pay any of the
Indebtedness, and releases or substitutions of security, in whole
or in part. Holder agrees that upon any default under this Note
or any security document that secures payment of any of the
Indebtedness, Holder may accelerate the maturity of the
Indebtedness only after thirty (30) days prior written notice to
Makers at the address set forth below, specifying the default,
during which period Makers shall have the right to cure such
default.
This Note and all documents executed in connection herewith
shall be subject to, governed by, and construed in accordance
with, the laws of the Xxxxx xx Xxxxx xxx xxx Xxxxxx Xxxxxx.
MAKERS:
PHOENIX HOLDINGS, LTD.,
a Texas limited partnership
By: Phoenix Holdings GP, Inc.,
a Texas corporation,
its General Partner
By:
Name (print):
Title (print):
Address:
For value received, I guarantee payment of the Note
according to its terms to the same extent as if I were Makers of
this Note. I waive all requirements of law, if any, that any
collection efforts be made or that any action be brought against
Makers before resorting to this guaranty.
Xxxx X. Xxxxxxx, Individually
Page 2 of 2 Pages Initi
EXHIBIT E
to Purchase and Sale Agreement
SECURITY DOCUMENTS
[To be agreed upon by Seller and Buyer on or before the
Approval Date, but which shall contain provision giving
Buyer the right to substitute the Golf Course as the
collateral for the Note as provided in paragraph 2(b).]
FIRST ADDENDUM TO PURCHASE AND SALE AGREEMENT
1. Incorporation into Agreement. This First Addendum to
Purchase and Sale Agreement (the "Addendum") is intended to be
attached to and incorporated in that certain Purchase and Sale
Agreement (the "Agreement") of even date herewith, between Seller
and Buyer for all purposes. In the event of a conflict between
the terms of the Agreement and those of this Addendum, the terms
of this Addendum are intended and shall be construed as
controlling. Capitalized terms used but not defined in this
Addendum are used and defined as in the Agreement.
2. Circle C Land Corp. Stock Transfer. Notwithstanding
Section 7(h) or elsewhere in the Agreement to the contrary, in
the event Buyer elects to exercise its option to acquire the
outstanding shares of stock of Seller (the "Circle C Stock"), the
following provisions shall apply:
(i) FMP shall only be obligated to transfer its right,
title and interest in and to the Circle C Stock to
Buyer.
(ii) FMP shall not make any representations or
warranties concerning the Circle C Stock or any
associated liabilities of obligations of Seller except
as set forth in (iii), immediately below.
(iii) At Closing, FMP shall only represent and
warrant that during the period of time FMP has owned
the Circle C Stock FMP, to its knowledge, has not
transferred the Circle C Stock or encumbered the Circle
C Stock with any financing encumbrance which is not
being released at Closing. Once FMP has transferred
the Circle C Stock to Buyer, FMP shall have no
liability or obligations with respect to the Seller or
the Circle C Stock other than for breach of its
warranty under this subparagraph (iii).
(iv) All of the Purchase Price proceeds and any other
cash, bank account deposits, or letters of credit
(except all items included in the definition of
Property, and, accordingly to be transferred to Buyer
pursuant to the Agreement) shall be disbursed from
Seller to another entity, as determined by Seller in
Seller's sole discretion, prior to the transfer of the
Circle C Stock from FMP to Buyer.
3. Survey Completion Deadline. Notwithstanding anything
in Sections 4 or 5 or elsewhere in the Agreement to the contrary,
for purposes of Section 4, the Survey will be deemed received and
the Survey objection and cure periods will commence on the
earlier of (i) the date the Survey is actually received by
Seller; or (ii) July 20, 1996.
Executed to be effective May 30, 1996.
SELLER: FMP:
Circle C Land Corp. FM Properties Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx By:
Printed Name: Xxxxxxx X. Xxxxxxxxx Printed Name: Xxxxxxx X. Xxxxxxxxx
Title: President Title: Authorized Agent
BUYER:
Phoenix Holdings, Ltd.
By: Phoenix Holdings C.P., Inc.
a Texas corporation,
its general partner
By: /s/ Xxxx Xxxxxxx
Printed Name: Xxxx Xxxxxxx
Title: President
SECOND ADDENDUM TO PURCHASE AND SALE AGREEMENT
This Second Addendum to Purchase and Sale Agreement (this
"Second Addendum") is made to be effective the date set forth
below by and between CIRCLE C LAND CORP., a Texas corporation
("Seller"), and PHOENIX HOLDINGS, LTD., a Texas limited
partnership ("Buyer") with respect to that certain Purchase and
Sale Agreement effective May 30, 1996, as modified by a First
Addendum to Purchase and Sale Agreement effective May 30, 1996
(the "Agreement") providing for the sale and purchase of certain
real property owned by Seller and located within the Circle C
Ranch and Circle C West subdivisions and certain contracts,
rights, interests, and personal property as more particularly
described therein (collectively, the "Property")
In accordance with the terms of the Agreement, Seller and Buyer
hereby agree as follows:
1. Unless otherwise defined herein, all capitalized terms
shall be as defined in the Agreement.
2. The property described on Exhibit A (the "Collateral
Property") attached hereto and made a part hereof has been
approved by Seller and Buyer as the collateral to secure the
Note, as contemplated in Section 2(b) of the Agreement. The
Collateral Property is currently encumbered by liens securing
certain indebtedness of Buyer. At Closing, Buyer shall be
required to provide Seller a first lien deed of trust encumbering
the Collateral Property by execution of the Security Documents,
referenced in paragraph 3 below, along with delivery of a policy
of title insurance insuring Seller's first lien position, as
required by the Agreement. All costs incident to releasing any
existing encumbrances and issuing the title policy shall be
Buyer's sole responsibility. Notwithstanding anything in this
Second Addendum or elsewhere in the Agreement to the contrary, in
the event, for any reason, Buyer fails, at Closing, to (i)
deliver Seller the first lien deed of trust on the Collateral
Property along with insurance coverage as required by this
paragraph 2; or (ii) pay the entire THIRTY-FOUR MILLION AND
NO/100 DOLLARS ($34,000,000.00) in cash (avoiding the necessity
of a note and first lien for the $3,000,000.00 portion of the
Purchase Price), Buyer shall be in default and Seller shall be
entitled to terminate this Agreement as Seller's sole and
exclusive remedy, and receive the Xxxxxxx Money and the Option
Fee (if then deposited) as liquidated damages.
3. The form of the Deed of Trust and the Guaranty attached
hereto as Exhibit B and Exhibit C, respectively, and made a part
hereof have been approved by Seller and Buyer as the Security
Documents, as contemplated in Section 2(b) of the Agreement.
4. The form of the Escrow Agreement attached hereto as
Exhibit D and made a part hereof has been approved by Seller and
Buyer as the Escrow Agreement, as contemplated in Section 6(e) of
the Agreement.
EXECUTED by the parties to be effective September 10, 1996.
SELLER: BUYER:
CIRCLE C LAND CORP. PHOENIX HOLDINGS, LTD.
By: Phoenix Holdings GP, Inc.,
a Texas corporation,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxxx, III
Name: Xxxxxxx X. Xxxxxxxxx, III
Title: Attorney-In-Fact By: /s/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx, President
EXHIBIT A
Map of Collateral Property Omitted
