Texas-Houston Agreement of Sale and Purchase - D & B Realty Holding Inc. and Kaza I Ltd.
AGREEMENT OF SALE AND PURCHASE
by and between
D & B REALTY HOLDING, INC.,
a Missouri corporation,
as Seller
and
KAZA I, LTD.,
a Texas limited partnership
as Purchaser
Houston, Texas
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TABLE OF CONTENTS
PAGE
ARTICLE I. Sale and Purchase: Property.......................................1
Section 1.1 Sale and Purchase 1
ARTICLE II. Consideration....................................................2
Section 2.1 Purchase Price & Financing 2
Section 2.2 Earnest Money 2
ARTICLE III. Survey..........................................................4
Section 3.1 Survey 4
ARTICLE IV. Title............................................................4
Section 4.1 Title Commitment 4
ARTICLE V. Inspection........................................................5
Section 5.1 Inspection Period 5
Section 5.2 Document Review 6
Section 5.3 Inspection Obligations 7
Section 5.4 Right of Termination 8
Section 5.5 Property Conveyed "AS IS" 9
Section 5.6 Investigative Studies 12
Section 5.7 Purchaser Represented by Counsel 12
ARTICLE VI. Closing.........................................................12
Section 6.1 Closing Date 12
Section 6.2 Closing Matters 13
Section 6.3 Closing Costs 14
Section 6.4 Real Estate Commission 15
Section 6.5 Conditions Precedent to Seller's Obligations 15
Section 6.6 Conditions Precedent to Purchaser's Obligations 15
ARTICLE VII. Remedies.......................................................16
Section 7.1 Seller's Remedies 16
Section 7.2 Purchaser's Remedies 16
Section 7.3 Attorneys' Fees 17
Section 7.4 Disposition of Earnest Money 18
ARTICLE VIII. Representations, Warranties, and Covenants....................18
Section 8.1 Purchaser's Representations and Warranties 18
Section 8.2 Seller's Representations and Warranties 18
Section 8.3 Seller's Covenants 20
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Section 8.4 Survival of Representations and Warranties 22
Section 8.5 Knowledge Standard 22
ARTICLE IX. Condemnation....................................................22
Section 9.1 Condemnation 22
ARTICLE X. Risk of Loss.....................................................23
Section 10.1 Risk of Loss 23
Section 10.2 Loss 23
Section 10.3 Non-Material Loss 25
Section 10.4 Delay in Completion of Repairs 25
ARTICLE XI. Miscellaneous...................................................26
Section 11.1 Entire Agreement 26
Section 11.2 Agreement Binding on Parties; Assignment 26
Section 11.3 Effective Date 26
Section 11.4 Notice 26
Section 11.5 Time of the Essence 28
Section 11.6 Place of Performance 28
Section 11.7 Currency 28
Section 11.8 Section Headings 28
Section 11.9 Obligations 29
Section 11.10 Business Days 29
Section 11.11 No Recordation 29
Section 11.12 Multiple Counterparts 29
Section 11.13 Severability 29
Section 11.14 Taxpayer ID 29
Section 11.15 Section 1031 Exchange 30
Exhibits
Exhibit A - Legal Description of Land
Exhibit B - Deed
Exhibit C - Bill of Sale
Exhibit D - Certificate of Non-Foreign Status
Exhibit E - Assignment of Warranties
Exhibit F - Lease
Exhibit G - Note
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "AGREEMENT") is made by and
between D & B REALTY HOLDING, INC., a Missouri corporation (the "SELLER"), and
KAZA I, LTD., a Texas limited partnership (the "PURCHASER").
W I T N E S S E T H:
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
property described in Section 1.1 below, on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
SALE AND PURCHASE: PROPERTY
Section 1.1 Sale and Purchase.
Seller agrees to sell and convey unto Purchaser, and Purchaser
agrees to purchase and accept from Seller, subject to the
Permitted Exceptions (as defined in Section 4.1(c)) and the
terms, covenants, conditions, and provisions herein set forth,
the following:
(a) All of that certain land more particularly described
on Exhibit A attached hereto (the "LAND"), including
all structures, improvements, and fixtures (the
"IMPROVEMENTS") thereon. The Improvements consist of
an approximately 53,111 square foot, single story
"Dave & Buster's" entertainment complex. The Land and
the Improvements are sometimes referred to herein
collectively as the "REAL PROPERTY";
(b) All right, title, and interest, if any, of Seller, in
and to any land lying in the bed of any dedicated
street, road, or access way, opened or proposed, in
front of, at a side of or adjoining the Real Property
(the "PROPERTY RIGHTS");
(c) All right, title, and interest of Seller,
reversionary or otherwise, in and to all easements in
or upon the Land and all other rights and
appurtenances belonging or in anywise pertaining
thereto, if any (the "APPURTENANCES");
(d) Any and all equipment, machinery, and other items of
personal property owned by Seller and presently
affixed or attached to, placed or situated upon the
Real Property and used in connection with the
ownership,
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operation and occupancy of the Real Property, but
specifically excluding any items of personal property
owned by the Tenant (as defined in Section 6.2
(viii)) and/or any third party (the "PERSONALTY");
(e) All right, title, and interest, if any, of Seller in
and to any and all transferable licenses, permits,
certificates, approvals, authorizations, variances,
and consents (the "PERMITS") issued or granted by
governmental or quasi-governmental bodies, officers,
or authorities with respect to the ownership of the
Real Property;
(f) All warranties and guaranties covering any of the
Improvements, if any (the "WARRANTIES");
(g) Any service contracts, management agreements, and
maintenance contracts encumbering the Land and
designated by Seller during the Inspection Period
(collectively, the "SERVICE CONTRACTS");
(h) Seller's interest in all plans, specifications,
drawings, reports, studies, and other similar
matters, relating to the Land and in the possession
of Seller, but only to the extent assignable (the
"PLANS").
The items described in (a) through (h) of this Section 1.1 are
hereinafter collectively called the "PROPERTY".
ARTICLE II.
CONSIDERATION
Section 2.1 Purchase Price & Financing.
(a) The purchase price (the "PURCHASE PRICE") to be paid
by Purchaser to Seller for the sale and conveyance of
the Property is Eight Million Seven Hundred
Seventy-Seven Thousand and No/100 Dollars
($8,777,000), which is payable to Seller at the
closing of the transaction contemplated hereby (the
"CLOSING") by wire transfer and which funds must be
delivered in a manner to permit the Closing Agent
(defined in Section 2.2) to deliver good funds to the
Seller or its designee on the Closing Date (defined
in Section 6.1).
(b) Notwithstanding the foregoing, $2,633,100 of the
Purchase Price shall be delivered at Closing in the
form of a promissory note (the "NOTE") in
substantially the form attached hereto as Exhibit G.
Section 2.2 Earnest Money.
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(a) It is a condition precedent to the effectiveness of
this Agreement that within five (5) days of the
execution of this Agreement by Purchaser, Purchaser
shall deposit with Hexter-Fair Title Company, 8333
Douglas Avenue, Suite 130, Dallas, Texas 75225, Attn:
Carol Erick (the "CLOSING AGENT"), by wire transfer
or delivery of a cashier's check, immediately
available federal funds in the amount of Twenty Five
Thousand Dollars ($25,000) (the "INITIAL EARNEST
MONEY"). On or before the Inspection Period
Expiration Date, unless this Agreement has been
properly terminated by Purchaser in accordance with
Section 5.4 hereof, Purchaser shall deliver to
Closing Agent an additional Twenty Five Thousand
Dollars ($25,000) (the "ADDITIONAL EARNEST MONEY") to
be held as additional earnest money. The Initial
Earnest Money and the Additional Earnest Money, along
with any accrued interest thereon, are collectively
referred to herein as the "EARNEST MONEY."
(b) On the Closing Agent's receipt of the Earnest Money,
the Closing Agent shall deposit such Earnest Money
into an interest-bearing money market account
maintained at a federally insured bank or savings and
loan association located in Dallas County, Texas.
Such account shall have no penalty for early
withdrawal, and Purchaser agrees and acknowledges
that Seller shall have no responsibility or liability
for any loss of the Earnest Money or any portion
thereof. If any of the Earnest Money to be delivered
pursuant to Section 2.2(a) is not timely delivered by
Purchaser to the Closing Agent, Seller may terminate
this Agreement by delivering written notice of such
termination to Purchaser, and any of the Earnest
Money previously delivered to Closing Agent, if any,
shall be delivered to Seller as liquidated damages.
Upon said termination, (i) neither Seller nor
Purchaser shall have any further obligation or
liability to the other hereunder, except as provided
in Sections 5.3. and 6.4 hereof, and (ii) Purchaser
shall deliver to Seller all of the Documents and
Purchaser's Information (as defined in Section
5.2(c)). Notwithstanding anything to the contrary
contained elsewhere in this Agreement, $100.00 of the
Earnest Money shall serve as independent
consideration for this Agreement (the "INDEPENDENT
CONSIDERATION"), and shall be non-refundable for any
reason. If the transaction contemplated hereby is
consummated in accordance with the terms and
provisions hereof, the Earnest Money shall be
credited against the Purchase Price at Closing. All
interest earned shall be reported to the Internal
Revenue Service as income of Purchaser and Purchaser
shall promptly execute all forms reasonably requested
by the Closing Agent with respect thereto.
(c) The balance of the Purchase Price, as adjusted by the
prorations and credits specified herein, less the
Earnest Money and less the amount of the Note, shall
be paid on the Closing Date in the manner set forth
in Section 6.2.
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ARTICLE III.
SURVEY
Section 3.1 Survey.
Seller shall deliver to Purchaser, within ten (10) days after
the Effective Date (as defined in Section 11.3), a copy of the
as-built survey (the "SURVEY") of the Real Property in
Seller's possession. Purchaser shall be solely responsible for
updates to the Survey.
ARTICLE IV.
TITLE
Section 4.1 Title Commitment.
(a) Delivery. Within ten (10) days after the Effective
Date, Seller shall deliver to Purchaser a copy of its
owner's title policy covering the Property. Seller
shall cause Fidelity National Title Insurance Company
(the "TITLE COMPANY"), acting through the Closing
Agent, to furnish to Purchaser a title commitment
(the "COMMITMENT") along with true and complete
copies of all documents referred to in the
Commitment, including, without limitation, plats,
deeds, restrictions and easements, by the terms of
which the Title Company agrees to issue to Purchaser
at Closing a Texas Standard Coverage Owner's Policy
of Title Insurance (the "TITLE POLICY") in the amount
of the Purchase Price and insuring Purchaser's fee
simple title to the Real Property to be good and
indefeasible, subject to the Permitted Exceptions and
the other terms of the Title Policy.
(b) Objections and Cure. If the Title Commitment or
Survey or their updates disclose exceptions to title
or any other matter reasonably objectionable to
Purchaser, Purchaser shall so notify Seller in
writing (the "OBJECTION NOTICE") on or before the
fifteenth (15th) day following the date of the last
to be received of the Title Commitment and Survey,
and Seller shall have fifteen (15) days from the date
of Seller's actual receipt of the Objection Notice in
which it may, but shall have no obligation to have
each such objectionable exception to title or Survey
removed or correct each such other matter, in each
case to the reasonable satisfaction of Purchaser;
provided, however, that Seller shall pay off and
discharge the following (collectively "Dischargeable
Liens"): (a) all mortgage liens and deeds of trust
encumbering the Property or any portion thereof; and
(b) all lien claims if liquidated and uncontested
(including, without limitation, the liens shown on
Schedules B and C of the Commitment, other than taxes
for the year of Closing and subsequent years), and
Seller covenants and agrees to pay off and discharge
all such mortgage liens, deeds of trust and other
such liens at Closing. If, within the time specified,
Purchaser does
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not deliver an Objection Notice, all title and survey
matters shall be deemed approved (other than its
objections relating to the Dischargeable Liens). If,
within the time specified, Seller does not have each
such objectionable exception removed or corrected,
Purchaser must, prior to the Inspection Period
Expiration Date (as hereinafter defined), as its sole
and exclusive remedy, either (i) terminate this
Agreement, in which event this Agreement, without
further action of the parties, shall become null and
void and neither party shall have any further rights
or obligations under this Agreement, except in
accordance with Sections 5.3 and 6.4, or (ii) elect
to accept title to the Property as it then exists,
without reduction to the Purchase Price. If Purchaser
fails to timely make either such election, Purchaser
shall be deemed to have elected option (ii).
Notwithstanding anything to the contrary herein, the
time period within which Purchaser must provide its
Objection Notice and Seller may cure such objections
must be completed prior to the Inspection Period
Expiration Date. In other words, Purchaser shall have
no right to terminate this Agreement under this
Section 4.1(b) after the Inspection Period Expiration
Date, notwithstanding anything to the contrary herein
contained.
(c) Permitted Exceptions. As used in this Agreement, the
term "PERMITTED EXCEPTIONS" shall mean all matters
either shown on the Survey or in the Title Commitment
(other than the Dischargeable Liens), and all matters
which Purchaser has accepted or has been deemed to
accept. Seller has no obligation to ensure that the
Title Company will provide any endorsements to the
Title Policy, including, without limitation, any
deletion of the printed survey exception, all of
which, if Purchaser elects to obtain any such
endorsements, shall be Purchaser's responsibility and
shall be at Purchaser's expense. Notwithstanding any
provision hereof, Seller shall have until Closing to
satisfy and/or remove all Schedule C items and shall
be obligated to satisfy and/or remove same
(d) Termination. In the event of termination of this
Agreement pursuant to this Section 4.1, upon
Purchaser's delivery of the Documents and the
Purchaser's Information (as those terms are defined
in Article V) to Seller, the Earnest Money shall be
delivered to Purchaser, except for the Independent
Consideration, which shall be paid to Seller, and
thereafter neither party shall have any further
rights or obligations hereunder, except for the
rights and obligations arising pursuant to Sections
5.3 and 6.4.
ARTICLE V.
INSPECTION
Section 5.1 Inspection Period.
Seller, subject to the provisions of the Lease, shall permit
Purchaser and its authorized agents and representatives to
enter upon the Real Property at all
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reasonable times during normal business hours to inspect and
conduct reasonably necessary tests. After the Effective Date,
Purchaser, at Purchaser's expense, shall also be entitled to
have conducted on its behalf, subject to the operations of the
restaurant, inspections of the Improvements and Personalty.
Such entry and inspections may be conducted only during the
period (the "INSPECTION PERIOD") commencing on the Effective
Date and ending at 5:00 p.m., Dallas, Texas time on the date
(the "INSPECTION PERIOD EXPIRATION DATE") that is twenty-five
(25) days following the Effective Date; provided, however,
that so long as this Agreement has not been terminated,
Purchaser shall have the right, subject to the operations of
the restaurant, to enter upon the Real Property at all
reasonable times during normal business hours subsequent to
the Inspection Period Expiration Date and prior to the Closing
for the purposes of continuing its inspection of the same so
long as Purchaser complies with each of the provisions of this
Agreement, including, without limitation, the provisions of
this Article V relating to such entry and inspection.
Notwithstanding the foregoing, in no event shall such entry
and inspection subsequent to the Inspection Period Expiration
Date serve to extend Purchaser's right to terminate this
Agreement on or before the Inspection Period Expiration Date
as provided in Section 5.4 hereof. Purchaser shall notify
Seller, in writing, of its intention, or the intention of its
agents or representatives, to enter the Real Property at least
twenty-four (24) hours prior to such intended entry, and
notify Seller of any tests to be conducted thereon. Purchaser
shall bear the cost of all such inspections and tests. At
Seller's option, Seller may be present for any inspection or
test.
Section 5.2 Document Review.
(a) Documents. Within ten (10) days after the Effective
Date, Seller shall deliver to Purchaser the
following, if in the possession of Seller
(collectively, the "DOCUMENTS"):
(i) copies of any Plans;
(ii) to the extent allowed by the author, copies
of all existing soil, engineering,
architectural, and environmental reports
covering the Property in Seller's
possession;
(iii) copies of all Service Contracts, if any;
(iv) a list of the Personalty to be conveyed, if
any; and
(v) copies of all Permits in Seller's
possession.
(b) Proprietary Information. Purchaser acknowledges that
any and all of the Documents are proprietary and
confidential in nature and will be delivered
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to Purchaser solely to assist Purchaser in determining the
feasibility of purchasing the Property. Purchaser agrees not
to disclose the contents of the Documents to any party outside
of Purchaser's organization except to certain of its
attorneys, accountants, lenders, or investors (collectively,
the "PERMITTED OUTSIDE PARTIES"). Purchaser further agrees
that the Documents shall be disclosed and exhibited only to
those persons within Purchaser's organization or to those
Permitted Outside Parties who are responsible for determining
the feasibility of Purchaser's acquisition of the Property. In
permitting the Permitted Outside Parties to review the
Documents or other information to assist Purchaser, Seller has
not waived any privilege or claim of confidentiality with
respect thereto, and no third party benefits or relationships
of any kind, either express or implied, have been offered,
intended or created by Seller and any such claims are
expressly rejected by Seller and waived by Purchaser and the
Permitted Outside Parties, for whom, by its execution of this
Agreement, Purchaser is acting as an agent with regard to such
waiver.
(c) Return of Documents. Purchaser shall return all of the
Documents, any and all copies Purchaser has made of the
Documents, and all copies of any studies, reports, or test
results obtained by Purchaser in connection with its
inspection of the Property (collectively, the "PURCHASER'S
INFORMATION") on the earlier to occur of (i) such time as
Purchaser determines that it shall not acquire the Property,
or (ii) such time as this Agreement is terminated for any
reason.
(d) No Representation or Warranty by Seller. Purchaser hereby
acknowledges that Seller has not made and does not make any
warranty or representation regarding the truth, accuracy, or
completeness of the Documents or the source(s) thereof, and
that Seller has not undertaken any independent investigation
as to the truth, accuracy, or completeness of the Documents
and is providing the Documents solely as an accommodation to
Purchaser. Seller expressly disclaims and Purchaser waives any
and all liability for representations or warranties, express
or implied, statements of fact, and other matters contained in
the Documents, or for any omissions from the Documents, or in
any other written or oral communications transmitted or made
available to Purchaser. Purchaser shall rely solely upon its
own investigation with respect to the Property, including,
without limitation, the Property's physical, environmental, or
economic condition, compliance or lack of compliance with any
ordinance, order, permit, or regulation or any other attribute
or matter relating thereto.
Section 5.3 Inspection Obligations.
(a) Purchaser's Responsibilities. In conducting any inspections,
investigations, examinations, or tests of the Property,
Purchaser and its
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agents and representatives shall: (i) not interfere with the
operation and maintenance of the Property; (ii) not damage any
part of the Property or any personal property; (iii) not
injure or otherwise cause bodily harm to Seller or its agents,
guests, invitees, contractors and employees; (iv) maintain
commercial general liability (occurrence basis) insurance in
terms and amounts reasonably satisfactory to Seller covering
any accident arising in connection with the presence of
Purchaser, its agents, and its representatives on the
Property, and shall deliver a certificate of insurance
verifying such coverage (and naming Seller as an additional
insured) to Seller prior to entry upon the Property; (v)
promptly pay when due the costs of all tests, investigations,
and examinations done with regard to the Property; (vi) not
permit any liens to attach to the Real Property by reason of
the exercise of its rights hereunder; (vii) fully restore the
Land and the Improvements to the condition in which the same
were found before any such inspection or tests were
undertaken; (viii) not reveal or disclose any information
obtained during the Inspection Period concerning the Property
and the Documents to anyone outside Purchaser's organization,
except in accordance with the confidentiality standards set
forth in Section 5.2(b) hereof, and (ix) deliver to Seller a
copy of all Purchaser's Information.
(b) PURCHASER'S AGREEMENT TO INDEMNIFY. PURCHASER SHALL INDEMNIFY,
DEFEND, AND HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL
LIENS, CLAIMS, CAUSES OF ACTION, DAMAGES, LIABILITIES, AND
EXPENSES (INCLUDING REASONABLE LEGAL FEES AND EXPENSES)
ARISING OUT OF PURCHASER'S INSPECTIONS OR TESTS OR ANY
VIOLATION OF THE PROVISIONS OF THIS SECTION 5.3 EXCEPT AS MAY
BE CAUSED BY THE NEGLIGENCE OF SELLER, ITS EMPLOYEES, AGENTS
OR INVITEES. THIS INDEMNITY SHALL SURVIVE THE CLOSING OR
EARLIER TERMINATION OF THIS AGREEMENT.
Section 5.4 Right of Termination.
If, during the Inspection Period, Purchaser shall, for any reason, in
Purchaser's sole discretion, judgment, and opinion, be dissatisfied
with any aspect of the Property or any item examined by Purchaser
pursuant to this Agreement, Purchaser shall be entitled, as its sole
remedy, to terminate this Agreement by giving written notice to Seller
on or before the Inspection Period Expiration Date (but no later than
3:00 p.m., Dallas, Texas time on the Inspection Period Expiration
Date), whereupon all of the provisions of this Agreement (except
Sections 5.3 and 6.4) shall terminate. Upon such termination, neither
Seller nor Purchaser shall have any further obligation or liability to
the other hereunder, except as provided in Sections 5.3 and 6.4 hereof,
and upon Purchaser's delivery to Seller of the Documents and
Purchaser's Information, the Earnest Money shall
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be returned to Purchaser, less the Independent Consideration which
shall be paid to Seller.
Section 5.5 Property Conveyed "AS IS".
(a) DISCLAIMER OF REPRESENTATIONS AND WARRANTIES BY SELLER.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IT
IS UNDERSTOOD AND AGREED THAT EXCEPT AS EXPRESSLY SET FORTH IN
SECTION 8.2 HEREOF, SELLER HAS NOT MADE AND IS NOT NOW MAKING,
AND SELLER SPECIFICALLY DISCLAIMS AND PURCHASER WAIVES, ANY
WARRANTIES, REPRESENTATIONS, OR GUARANTIES OF ANY KIND OR
CHARACTER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT,
OR FUTURE, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, WARRANTIES, REPRESENTATIONS OR GUARANTIES AS TO
(I) MATTERS OF TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE
SET FORTH IN THE DEED DESCRIBED IN SECTION 6.2(A)(IV) TO BE
DELIVERED AT CLOSING); (II) ENVIRONMENTAL MATTERS RELATING TO
THE PROPERTY OR ANY PORTION THEREOF; (III) GEOLOGICAL
CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE,
SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER
RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER AND
EARTHQUAKE FAULTS AND THE RESULTING DAMAGE OF PAST AND/OR
FUTURE EARTHQUAKES; (IV) WHETHER AND THE EXTENT TO WHICH, THE
REAL PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM
(SURFACE OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA,
FLOOD PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD; (V) DRAINAGE;
(VI) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF INSTABILITY,
PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL FILL,
OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY
UNDERSHORING; (VII) ZONING TO WHICH THE REAL PROPERTY OR ANY
PORTION THEREOF MAY BE SUBJECT; (VIII) THE AVAILABILITY OF ANY
UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF, INCLUDING,
WITHOUT LIMITATION, WATER, SEWAGE, GAS, AND ELECTRIC; (IX)
USAGES OF ADJOINING PROPERTY; (X) ACCESS TO THE REAL PROPERTY
OR ANY PORTION THEREOF; (XI) THE VALUE, COMPLIANCE WITH THE
PLANS AND SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN,
QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL INTEGRITY,
OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION OF THE
PROPERTY OR ANY PORTION THEREOF, OR ANY INCOME,
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EXPENSES, CHARGES, LIENS, ENCUMBRANCES, RIGHTS, OR CLAIMS ON
OR AFFECTING OR PERTAINING TO THE PROPERTY OR ANY PART
THEREOF; (XII) THE PRESENCE OF HAZARDOUS SUBSTANCES IN (AS
DEFINED IN SECTION 5.5(C)) IN ON, UNDER, OR IN THE VICINITY OF
THE REAL PROPERTY; (XIII) THE CONDITION OR USE OF THE PROPERTY
OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL PAST, PRESENT OR
FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES, REGULATIONS,
OR LAWS, BUILDING FIRE OR ZONING ORDINANCES, CODES OR OTHER
SIMILAR LAWS; (XIV) THE EXISTENCE OR NON-EXISTENCE OF
UNDERGROUND STORAGE TANKS; (XV) ANY OTHER MATTER AFFECTING THE
STABILITY OR INTEGRITY OF THE REAL PROPERTY; (XVI) THE
POTENTIAL FOR FURTHER DEVELOPMENT OF THE REAL PROPERTY; (XVII)
THE EXISTENCE OF VESTED LAND USE, ZONING, OR BUILDING
ENTITLEMENTS AFFECTING THE REAL PROPERTY; (XVIII) THE
MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE PROPERTY FOR
ANY PARTICULAR PURPOSE (PURCHASER AFFIRMING THAT PURCHASER HAS
NOT RELIED ON SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH
THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT SELLER MAKES
NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY PARTICULAR
PURPOSE); OR (XIX) TAX CONSEQUENCES (INCLUDING, BUT NOT
LIMITED TO, THE AMOUNT, USE, OR PROVISIONS RELATING TO ANY TAX
CREDITS).
(b) SALE "AS IS". PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY
UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR
WARRANTY OF SELLER OR ANY OF ITS AGENTS AND ACKNOWLEDGES THAT
NO SUCH REPRESENTATIONS HAVE BEEN MADE. PURCHASER REPRESENTS
THAT IT IS A KNOWLEDGEABLE, EXPERIENCED, AND SOPHISTICATED
PURCHASER OF REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS
OWN EXPERTISE AND THAT OF PURCHASER'S CONSULTANTS IN
PURCHASING THE PROPERTY. PURCHASER WILL CONDUCT SUCH
INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS PURCHASER
DEEMS NECESSARY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL
AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY UPON
SAME. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT
ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE
PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN
REVEALED BY PURCHASER'S INSPECTIONS AND INVESTIGATIONS AND
HEREBY WAIVES ANY CLAIM PURCHASER MAY HAVE, NOW OR IN THE
FUTURE, IN
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CONNECTION WITH ANY SUCH ADVERSE MATTERS, INCLUDING, WITHOUT
LIMITATION, ANY RIGHT OF CONTRIBUTION. PURCHASER ACKNOWLEDGES
AND AGREES THAT UPON CLOSING, SELLER SHALL SELL AND CONVEY TO
PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS,
WHERE IS," WITH ALL FAULTS. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR
REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY
SELLER, ANY AGENT OF SELLER OR ANY THIRD PARTY. THE TERMS AND
CONDITIONS OF THIS SECTION 5.5 SHALL EXPRESSLY SURVIVE THE
CLOSING, NOT MERGE WITH THE PROVISIONS OF ANY CLOSING
DOCUMENTS AND SHALL BE INCORPORATED INTO THE DEED. SELLER IS
NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN
STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE
PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT, OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET
FORTH OR REFERRED TO HEREIN. PURCHASER ACKNOWLEDGES THAT THE
PURCHASE PRICE REFLECTS THE "AS IS" NATURE OF THIS SALE AND
ANY FAULTS, LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT
MAY BE ASSOCIATED WITH THE PROPERTY. PURCHASER HEREBY
EXPRESSLY WAIVES ANY CLAIM OF FRAUDULENT INDUCEMENT. PURCHASER
HAS FULLY REVIEWED THE DISCLAIMERS, ASSUMPTIONS, AND WAIVERS
SET FORTH IN THIS AGREEMENT WITH ITS COUNSEL AND UNDERSTANDS
THE SIGNIFICANCE AND EFFECT THEREOF. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF THIS ARTICLE V
AND IN PARTICULAR THIS SECTION 5.5 ARE AN INTEGRAL PART OF
THIS AGREEMENT AND THAT SELLER WOULD NOT HAVE AGREED TO SELL
THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT SUCH
PROVISIONS.
(c) Hazardous Substances Defined. For purposes hereof, "HAZARDOUS
SUBSTANCES" means any hazardous, toxic or dangerous waste,
substance or material, pollutant or contaminant, as defined
for purposes of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Sections
9601 et seq.), as amended, or the Resource Conservation and
Recovery Act (42 U.S.C. Sections 6901 et seq.), as amended, or
any other federal, state, or local law, ordinance, rule, or
regulation applicable to the Property, or any substance which
is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous,
or any substance which contains gasoline, diesel fuel or other
petroleum hydrocarbons, polychlorinated
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biphenyls (pcbs), radon gas, urea formaldehyde, asbestos, lead
or electromagnetic waves.
Section 5.6 Investigative Studies.
As additional consideration for the transaction contemplated herein,
Purchaser agrees that it will provide to Seller, immediately following
the receipt of same by Purchaser, copies of any and all reports, tests,
or studies involving structural or geologic conditions or
environmental, hazardous waste, or Hazardous Substances contamination
of the Property which reports, tests or studies shall be addressed to
both Seller and Purchaser at no cost to Seller; provided, however,
Purchaser shall have no obligation to cause any such tests or studies
to be performed on the Property. In the event that such reports, tests
or studies indicate that additional investigation may be required,
either Seller or Purchaser may request (at the cost of the party
requesting same) that such additional investigation be completed,
provided that neither Seller nor Purchaser shall be obligated to
undertake any such additional investigation and either Purchaser or
Seller shall be entitled to terminate this Agreement rather than
proceed with any such additional investigation. No deadline or time
period in this Agreement shall be extended by virtue of any such
additional investigation. Seller hereby acknowledges that Purchaser has
not made and does not make any warranty or representation regarding the
truth or accuracy of any such studies or reports and has not undertaken
any independent investigation as to the truth or accuracy thereof.
Purchaser shall have no liability or culpability of any nature as a
result of having provided such information to Seller or as a result of
Seller's reliance thereon. Purchaser shall be responsible for any and
all costs, claims, damages, and liabilities caused by any testing
performed or required by Purchaser.
Section 5.7 Purchaser Represented by Counsel.
Purchaser hereby represents and warrants to Seller that: (i) Purchaser
is not in a significantly disparate bargaining position in relation to
Seller; (ii) Purchaser is represented by legal counsel in connection
with the transaction contemplated by this Agreement; and (iii)
Purchaser is purchasing the Property for business, commercial,
investment, or other similar purpose and not for use as Purchaser's
residence.
ARTICLE VI.
CLOSING
Section 6.1 Closing Date.
The Closing shall be held in the offices of Closing Agent, or such
other location as may be mutually agreed upon by Seller and Purchaser,
at 10:00 a.m. (Dallas, Texas time) on the thirtieth (30th) day
following the Inspection Period Expiration
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Date (the "CLOSING DATE"), or at such other time as mutually agreed by
Seller and Purchaser.
Section 6.2 Closing Matters.
(a) Seller's Deliveries. At Closing, expressly conditioned upon
Purchaser's performance of its obligations under Section
6.2(b), Seller shall deliver:
(i) possession of the Property, subject to the Permitted
Exceptions, as modified herein;
(ii) to the extent available and in Seller's possession,
copies of all Permits;
(iii) an executed and acknowledged special warranty deed
(the "DEED") in the form set forth in Exhibit B
conveying the Real Property subject to the Permitted
Exceptions;
(iv) a bill of sale in substantially the form of Exhibit C
(the "BILL OF SALE"), executed and acknowledged by
Seller, conveying without warranty the Personalty;
(v) an executed Assignment and Assumption of Warranties
in substantially the form of Exhibit E (the
"ASSIGNMENT OF WARRANTIES");
(vi) a certificate of Seller respecting the non-foreign
status of Seller in the form set forth in Exhibit D
attached hereto;
(vii) the originals of the Warranties, Service Contracts,
Plans and Permits in Seller's possession;
(viii) an executed Lease between Purchaser and Dave &
Buster's I, L.P. ("TENANT") in the form attached
hereto as Exhibit F (the "LEASE"); and
(ix) such other documents as may be reasonably required by
Closing Agent, including, but not limited to,
documents evidencing the authority of Seller to
consummate the sale of the Property in accordance
with this Agreement and designating those persons
authorized to execute and deliver all necessary
documents at Closing.
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(b) Purchaser's Deliveries. At Closing, Purchaser shall deliver:
(i) the remaining funds for the Purchase Price to the
Closing Agent, sent by wire transfer of immediately
available federal funds to the account designated by
Closing Agent and available for disbursement no later
than 11:00 a.m. (Dallas, Texas time) on the Closing
Date;
(ii) the Note, duly executed by Purchaser;
(iii) the Assignment of Warranties, duly executed and
acknowledged by Purchaser;
(iv) the Lease, duly executed and acknowledged by
Purchaser; and
(v) such other documents as may be reasonably required by
Seller or Closing Agent, including, but not limited
to, a certified copy of documents evidencing the
authority of Purchaser to consummate the purchase of
the Property in accordance with this Agreement and
designating those persons authorized to execute and
deliver all necessary documents at Closing.
(c) Prorations. Ad valorem taxes (whether for real estate or
personal property) against the Real Property will be prorated
at Closing as of the Closing Date based on the tax bills for
the year of the Closing. Seller shall pay to Purchaser at
Closing (or credit the Purchase Price) the portion of the
taxes on the Real Property from the beginning of the current
year to the Closing Date. If Closing occurs before that year's
tax bills are available, the proration will be based on the
latest tax rate applied to 90% of the Purchase Price.
(d) Preparation of Documents. All of the documents that are not
attached hereto as exhibits to be executed at Closing shall be
in form prepared to the reasonable satisfaction of Seller and
Purchaser.
Section 6.3 Closing Costs.
Except as otherwise provided in Section 7.3, each party shall be
responsible for the payment of its own attorneys' fees incurred in
connection with the transaction that is the subject of this Agreement.
Any escrow fee charged by the Title Company shall be paid equally by
Purchaser and Seller. Any transfer or documentary stamp tax, or similar
charge (the "TRANSFER TAXES"), shall be paid by Seller at Closing.
Except as otherwise expressly and specifically provided to the contrary
in this Section 6.3 or otherwise in this Agreement, Seller shall pay
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only the filing fees for recording the Deed, the basic premium for the
Title Policy, one-half (-1/2) of the escrow fees, and the Transfer
Taxes. Except as otherwise expressly provided to the contrary in this
Section 6.3 or otherwise in this Agreement, Purchaser shall pay any and
all other costs, including, without limitation, one-half (-1/2) of the
escrow fees, all premiums associated with extended coverage or any
endorsements or modifications to the Title Policy, the costs of any
updated Survey, and all other closing costs of any nature and costs of
any inspections or tests Purchaser authorizes or conducts.
Section 6.4 Real Estate Commission.
Seller agrees to pay, at Closing, to United Country Timberline Realty,
Inc. and Staubach Retail Services, Inc. (collectively, the "BROKERS"),
a real estate commission in accordance with separate written contracts,
but only in the event of a Closing in strict accordance with this
Agreement. The payment of the aforementioned commission to the Brokers
by Seller shall fully satisfy any obligations of Seller for the payment
of any real estate commission hereunder or in connection herewith.
Seller and Purchaser each represent and warrant to the other that no
real estate brokerage commission is payable to any person or entity in
connection with the transaction contemplated hereby (other than as
described above in this Section 6.4), and each agrees to and does
hereby indemnify and hold the other harmless against the payment of any
commission to any person or entity (other than as described above in
this Section 6.4) claiming by, through or under Seller or Purchaser, as
applicable. This indemnification shall extend to any and all claims,
liabilities, costs, and expenses (including reasonable attorneys' fees
and litigation costs) arising as a result of such claims and shall
survive the Closing.
Section 6.5 Conditions Precedent to Seller's Obligations.
Seller's obligation to consummate Closing hereunder is expressly
conditioned on the satisfaction, at or before the Closing Date or such
earlier date as is specified below, of each of the following conditions
(any one or more of which may be waived, in whole or in part by Seller,
at Seller's option):
(a) All of the representations and warranties of Purchaser
contained in this Contract shall have been true and correct
when made and shall be true and correct on the Closing Date
with the same effect as if made on and as of such date.
(b) Purchaser shall have performed, observed and complied with all
covenants, agreements and conditions required by this Contract
to be performed, observed and complied with on its part prior
to or as of the Closing.
Section 6.6 Conditions Precedent to Purchaser's Obligations.
Purchaser's obligations hereunder (including, without
limitation, its obligation to purchase and accept the
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Property) are expressly conditioned on the satisfaction, at or
before the Closing Date or such earlier date as is specified
below, of each of the following conditions (any one or more of
which may be waived, in whole or in part, by Purchaser at
Purchaser's option):
(a) All of the representations and warranties of Seller
contained in this Contract shall have been true and
correct when made, and shall be true and correct on
the Closing Date with the same effect as if made on
and as of such date.
(b) Seller shall have performed, observed and complied
with all covenants, agreements and conditions
required by this Contract to be performed, observed
and complied with on its part prior to or as of the
Closing hereof.
(c) The physical condition of the Property shall be
substantially the same on the Closing Date as on the
Effective Date.
(d) As of Closing, no proceedings shall be pending or
threatened which could or would involve the change,
redesignation, redefinition or other modification of
the zoning classification (if any) of (or any zoning,
building or environmental code requirements
applicable to) the Property, or any portion thereof.
ARTICLE VII.
REMEDIES
Section 7.1 Seller's Remedies.
Other than the matters provided in Sections 5.3 and 6.4
hereof, in the event Purchaser falls to perform any of its
obligations pursuant to this Agreement for any reason except
failure by Seller to perform hereunder, Seller shall be
entitled to terminate this Agreement and recover the Earnest
Money as liquidated damages and not as penalty, in full
satisfaction of claims against Purchaser hereunder. Seller and
Purchaser agree that the Seller's damages resulting from
Purchaser's default are difficult, if not impossible, to
determine and the Earnest Money is a fair and reasonable
estimate of those damages which has been agreed to in an
effort to cause the amount of said damages to be certain.
Section 7.2 Purchaser's Remedies.
In the event Seller fails to perform its obligations pursuant
to this Agreement (other than a breach of representation or
warranty) for any reason except failure by Purchaser to
perform hereunder, Purchaser may elect, as its sole remedies,
to (a) terminate this Agreement by giving Seller timely
written notice of such election prior to or at Closing or (b)
enforce specific performance of the
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obligations of Seller and, upon delivery of the Documents and
the Purchaser's Information to Seller, recover the Earnest
Money in accordance with Section 7.4, less the Independent
Consideration which shall be paid to Seller. In the event of a
material breach of representation or warranty by Seller
discovered by Purchaser after Closing, Purchaser's remedies
are limited to those described in Section 8.4. IN NO EVENT
SHALL SELLER, ITS DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS,
OWNERS, OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE,
ATTORNEY, OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR
CONTROLLING PERSON THEREOF HAVE ANY LIABILITY, BEYOND ITS
INTEREST IN THE REAL PROPERTY, FOR ANY CLAIM, CAUSE OF ACTION,
OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON
LAW, STATUTE, EQUITY, OR OTHERWISE (COLLECTIVELY, THE
"CLAIMS"), AND PURCHASER HEREBY WAIVES THE CLAIMS.
Section 7.3 Attorneys' Fees.
In the event either party hereto is required to employ an
attorney in connection with claims by one party against the
other arising from the operation of this Agreement, the
non-prevailing party shall pay the prevailing party all
reasonable fees and expenses, including attorneys' fees,
incurred in connection with such transaction.
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Section 7.4 Disposition of Earnest Money.
In the event of a termination of this Agreement by either
Seller or Purchaser, Closing Agent is authorized to deliver
the Earnest Money to the party hereto entitled to same
pursuant to the terms hereof on or before the fifth (5th) day
following receipt by the Closing Agent and non-terminating
party of written notice of such termination from the
terminating party, unless the other party hereto notifies the
Closing Agent that it disputes the right of the other party to
receive the Earnest Money. In such event, the Closing Agent
shall interplead the Earnest Money into a court of competent
jurisdiction in Dallas County, Texas. All attorneys' fees and
costs and Closing Agent's costs and expenses incurred in
connection with such interpleader shall be assessed against
the party that is not awarded the Earnest Money or if the
Earnest Money is distributed in part to both parties, then in
proportion of such distribution. Notwithstanding the
foregoing, in the event this Agreement is terminated and
Purchaser is entitled to receive the Earnest Money, Closing
Agent is not authorized to deliver the Earnest Money to
Purchaser unless and until Seller notifies Closing Agent in
writing that it has received the Documents and the Purchaser's
Information. Seller agrees to deliver said notice promptly
following its receipt of the Documents and the Purchaser's
Information.
ARTICLE VIII.
REPRESENTATIONS, WARRANTIES, AND COVENANTS
Section 8.1 Purchaser's Representations and Warranties.
(a) Authority of Purchaser. Purchaser represents and
warrants that Purchaser has full right, power, and
authority to enter into this Agreement and, at
Closing, will have full right, power and authority to
consummate the sale provided for herein.
(b) No Bankruptcy or Receivership. That at no time on or
before the Closing Date, shall any of the following
have occurred with respect to Purchaser, and if
Purchaser is a partnership, to any general partners
of Purchaser: (i) the commencement of a case under
Title 11 of the United States Code, as now
constituted or hereafter amended, or under any other
applicable federal or state bankruptcy law or other
similar law; (ii) the appointment of a trustee or
receiver of any property interest; (iii) an
assignment for the benefit of creditors; (iv) an
attachment, execution or other judicial seizure of a
substantial property interest; (v) the taking of,
failure to take, or submission to any action
indicating an inability to meet its financial
obligations as they accrue; or (vi) a dissolution or
liquidation, death or incapacity.
Section 8.2 Seller's Representations and Warranties.
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(a) Seller is a Missouri corporation validly existing and
in good standing, and Seller is qualified to do
business in all states in which qualification is
necessary to conduct its business, and has the
authority to execute this Agreement and conclude the
transactions contemplated therein.
(b) There is no pending or, to the knowledge of Seller,
threatened condemnation or similar proceeding or
special assessment (inclusive of assessments for
street widening, repair, or improvement), or change
in zoning affecting the Real Property.
(c) Seller has received no written notice concerning the
Property from any Governmental Authority (as defined
below in this Section 8.2) about a violation of any
federal, state, county, or city statute, ordinance,
code, rule, or regulation or stating that any
investigation has commenced or is contemplated
regarding any violation.
(d) There is no pending or, to Seller's knowledge,
threatened material litigation or administrative
proceeding affecting the Property.
(e) There are no attachments, executions, assignments for
the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy or under other debtor
relief laws contemplated by, pending, or threatened
against Seller.
(f) All necessary certificates of occupancy, licenses,
permits, authorizations, consents, and approvals
required by all governmental or quasi-governmental
authorities having jurisdiction, and the requisite
certificates of the local Board of Fire Underwriters
(or other body exercising similar functions) have
been issued for the Improvements, have been paid for
in full, and are in full force and effect.
(g) Seller has not received any notices from any
insurance company or board of underwriters of any
defects or inadequacies in the Property or any part
thereof which would adversely affect the insurability
of the Property or increase the premiums for the
insurance on the Property.
(h) The Improvements and Personalty at Closing will be
owned by Seller free and clear of any conditional
bills of sale, chattel mortgages, security agreements
or financing statements or other liens or security
interests of any kind.
(i) To Seller's knowledge, no default or breach exists
under any of the covenants, conditions, restrictions,
rights-of-way or easements, if any,
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affecting all or any portion of the Property which
are to be performed or complied with by the owner of
the Property.
(j) No work has been performed or is in progress at, and
no materials have been furnished to, the Property
which, though not presently the subject of, might
give rise to, mechanics', materialmen's or other
liens against the Property or any portion thereof. If
any lien for such work is filed before or after
Closing hereunder, Seller shall promptly discharge
the same.
(k) Seller has duly filed with the proper authorities all
federal, state and local tax returns and reports
relating to the Real Property required by law or
regulation to be filed. The Property has been
rendered and valued for ad valorem and similar taxes
and assessments as fully improved.
(l) To Seller's knowledge, there are no adverse or other
parties in possession of the Property, or any part
thereof, except Seller, nor has any party been
granted any license, lease, or other right relating
to the use or possession of the Property, or any part
thereof, except the Permitted Encumbrances.
(m) To Seller's knowledge, there are no threatened or
endangered species or their habitat on the Property.
(n) Seller warrants that it has not received notice of
any environmental hazards or conditions that affect
the Property, and that it has not received notice
that there are any Hazardous Substances on the
Property.
(o) Seller has not used the Property for the storage or
disposal of Hazardous Substances and has not received
notice that the Property was ever used for those
purposes.
The term "GOVERNMENTAL AUTHORITY" means the United States of
America, the state, county, and city where the Property is
located, and any other political subdivision in which the
Property is located or which exercises jurisdiction over the
Property, and any agency, department, commission, board,
bureau, property owners association, utility district, flood
control district, improvement district, or similar district,
or other instrumentality of any of them.
Section 8.3 Seller's Covenants.
Seller hereby covenants and agrees with Purchaser as follows:
(a) At all time from the Effective Date until the Closing
Date, Seller shall maintain (or cause to be
maintained, in accordance with the terms of the
Lease) in force, fire and extended coverage insurance
upon the Real Property for not less than the full
replacement value of the Real Property,
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and commercial general liability insurance with
respect to injury or death to persons and damage to
property in an amount not less than $1,000,000; and
(b) Prior to the Closing, Seller shall maintain the
Improvements in their present condition and repair,
except for normal wear and tear and any casualty or
condemnation, and Seller shall not remove any
fixtures, equipment, furnishings and other personalty
from the Improvements without replacing them with new
items of like or greater value.
(c) Seller shall not negotiate, execute or commit to
enter into (i) any tenant lease; or (ii) any
modification, amendment restatement or renewal of any
of the leases, without Purchaser's prior written
consent in each instance.
(d) Seller shall not enter into any third party contract
with respect to the Property which will survive the
Closing.
(e) Pending Closing, Seller shall operate and manage the
Property in a normal businesslike manner, and shall
perform when due, all of Seller's obligations under
all third party contracts, insurance policies,
governmental approvals and any other agreements
relating to the Property and otherwise in accordance
with applicable laws, ordinances, rules and
regulations affecting the Property.
(f) Seller has paid or will pay in full, prior to
Closing, all bills and invoices for labor, goods,
materials and services of any kind with respect to
the Property and utility charges relating to the
period prior to Closing.
(g) All action required pursuant to this Contract which
is necessary to effectuate the transactions
contemplated herein will be taken promptly and in
good faith by Seller, and Seller shall furnish
Purchaser with such documents or further assurances
as Purchaser may reasonably require.
(h) After the date hereof and prior to Closing, no part
of the Property, nor any interest therein, will be
alienated, liened, encumbered or otherwise
transferred.
(i) Seller shall promptly notify Purchaser of any change
in any condition with respect to the Property or of
any event or circumstance which makes any
representation or warranty of Seller to Purchaser
under this Contract untrue or misleading in any
material respect, it being understood that Seller's
obligation to provide notice to Purchaser under this
Section 8.3 shall in no way relieve Seller of any
liability for a breach by Seller of any of its
representations, warranties or covenants under this
Contract.
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Section 8.4 Survival of Representations and Warranties.
Except as otherwise expressly set forth herein, the
representations and warranties set forth in Section 8.2 shall
be continuing and shall be true and correct on and as of the
Closing Date with the same force and effect as if made at that
time, and such representations and warranties shall survive
the Closing for a period of six (6) months, at which time they
shall expire and terminate and be of no further force and
effect unless a claim for breach thereof has been instituted
within such six (6) month period; PROVIDED, HOWEVER, Purchaser
shall have the right to bring an action thereon only if (i)
Purchaser has given the Seller written notice of the
circumstances giving rise to the alleged breach within such
six (6) month period, and (ii) the aggregate, actual damages
from all breaches by Seller exceeds $50,000.
Section 8.5 Knowledge Standard.
For purposes of this Agreement, wherever the terms "SELLER'S
KNOWLEDGE" or "TO THE BEST OF SELLER'S KNOWLEDGE" is used, it
shall be limited to the actual knowledge (being the current,
conscious awareness of facts or other information, without
investigation or implied duty to investigate) of John Davis,
Bryan Spain, or Chas Michel; provided, however, the foregoing
individuals are acting for and on behalf and in their
capacities as officers of Seller or one or more of Seller's
affiliates and are in no manner expressly or impliedly making
any of these representations in their individual capacity and
Purchaser hereby waives any right to sue or to seek any
judgment or claim against any of them on an individual basis.
The term "TO SELLER'S KNOWLEDGE" or "TO THE BEST OF SELLER'S
KNOWLEDGE" shall not include knowledge imputed to the Seller
from any other person.
ARTICLE IX.
CONDEMNATION
Section 9.1 Condemnation.
If, prior to Closing, any governmental authority or other
entity having condemnation authority shall institute an
eminent domain proceeding or take any steps preliminary
thereto (including the giving of any direct or indirect notice
of intent to institute such proceedings) with regard to a
Material Portion (as hereinafter defined) of the Real
Property, and the same is not dismissed on or before ten (10)
days prior to Closing, Purchaser shall be entitled, as its
sole remedy, to terminate this Agreement by giving written
notice to Seller on or before the earlier to occur of (a) ten
(10) days following notice by Seller to Purchaser of such
condemnation, or (b) the Closing Date. In the event Purchaser
does not terminate this Agreement pursuant to the preceding
sentence, Purchaser shall be conclusively deemed to have
elected to close the acquisition of the Property subject to
such condemnation, without any reduction in Purchase Price,
and waives any right to terminate this Agreement as a result
thereof. For purposes
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of this Section 9.1, a "MATERIAL PORTION" shall mean that
portion of the Real Property which, if taken or condemned,
would reduce the value of the Property by not less than
$1,000,000.00. Notwithstanding anything to the contrary
herein, if any eminent domain proceeding is instituted (or
notice of which is given) solely for the taking of any
subsurface rights for utility easements or for any
right-of-way easement, and the surface may, after such taking,
be used in substantially the same manner as though such rights
had not been taken, Purchaser shall not be entitled to
terminate this Agreement as to any part of the Real Property,
but any award resulting therefrom shall be the exclusive
property of Purchaser upon Closing. In the event Purchaser
elects to terminate this Agreement under this Section 9.1, the
Earnest Money (less the Independent Consideration) shall be
returned to Purchaser upon Seller's receipt of the Documents
and Purchaser's Information in accordance with Section 5.4,
and neither party to this Agreement shall thereafter have any
further rights or obligations hereunder except as otherwise
provided in Sections 5.3 and 6.4 hereof. If Purchaser waives
(or is deemed to have waived) the right to terminate this
Agreement as a result of such a condemnation, despite such
condemnation, Seller and Purchaser shall close this Agreement
in accordance with the terms hereof with no reduction in the
Purchase Price, and Seller shall assign to Purchaser at
Closing all of Seller's right, title and interest in and to
all proceeds resulting or to result from said condemnation and
Seller will execute and deliver to Purchaser at Closing, or
thereafter on demand, all proper instruments for the
assignment to and collection by Purchaser of any such award.
ARTICLE X.
RISK OF LOSS
Section 10.1 Risk of Loss.
Until Closing, Seller alone shall bear the risk of loss should
there be damage to any of the Improvements by fire or other
casualty (collectively, "CASUALTY"). If, prior to the Closing,
any of the Improvements shall be damaged by a Casualty, Seller
shall take all action necessary to preserve and protect the
Improvements from further loss or damage, and Seller shall
deliver to Purchaser within seven (7) business days of such
Casualty written notice ("CASUALTY LOSS NOTICE") of such
Casualty after it has made its determination provided for in
Section 10.2 hereof.
Section 10.2 Loss.
As used herein, the Improvements shall be "MATERIALLY DAMAGED"
if the cost of restoring the same to their condition prior to
the fire or other casualty in full compliance with all
applicable building and zoning laws, ordinances and
regulations will exceed $100,000 but will not exceed $500,000
whether or not such damage is covered by insurance. As used
herein, the Improvements shall be "SUBSTANTIALLY DAMAGED" if
the cost of restoring the same to their condition prior to the
fire or other casualty in full compliance with all applicable
building
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and zoning laws, ordinances and regulations will equal or
exceed $500,000, whether or not such damage is covered by
insurance. If the Improvements are Materially Damaged,
Purchaser (but not Seller) may either (a) terminate this
Contract by delivering written notice to Seller within ten
(10) business days following Seller's delivery of the Casualty
Loss Notice (said period hereinafter called "FIRST CASUALTY
OPTION PERIOD") or (b) waive its right of termination and
proceed to close this transaction in accordance with the terms
hereof without reduction to the Purchase Price (the "WAIVER
OPTION"). Failure of Purchaser to deliver written notice of
termination within said fifteen (15) day period shall be
conclusively deemed to be an election by Purchaser of the
Waiver Option. If the Improvements are Substantially Damaged,
either party may terminate this Contract by delivering written
notice to the other party within the First Casualty Option
Period. Failure to provide notice shall be deemed an election
on both parties part to proceed in accordance with the terms
hereof. If this Contract does not terminate pursuant to the
terms of this Section 10.2 prior to expiration of the First
Casualty Option Period or, in the event the Improvements are
neither Materially Damaged nor Substantially Damaged: (a) the
transaction shall close in accordance with its terms
notwithstanding the casualty; (b) Seller shall promptly
commence and thereafter complete within a reasonable period of
time the repair of the Improvements to substantially the same
condition as existed prior to the loss; and (c) Seller shall
deposit the insurance proceeds with the Title Company and the
Title Company shall be authorized to disburse that sum: (i) to
Seller in monthly installments based upon the value of the
work and materials completed upon Purchaser's acceptance of
the completed work, which acceptance shall not be unreasonably
withheld or delayed or (ii) to Purchaser if Seller fails to
complete such work within a reasonable time following Closing
and Purchaser gives written notice to Seller and Title Company
terminating the escrow, in which event Purchaser shall apply
the escrowed funds so delivered to it to the reasonable cost
of completion of such work. Any excess of such funds over the
above such cost shall be remitted by Purchaser to Seller. If
this transaction closes prior to the repair of any damage, the
Title Policy may contain the standard exception relating to
mechanic's liens and pending disbursements as provided by Rule
P-8 of the Rules promulgated by the Texas Board of Insurance.
Upon completion of the repairs, Seller shall cause the Title
Company to remove the exception. If Closing is postponed in
order for Seller to complete such repairs and Seller fails to
substantially complete same not later than a date which would
allow Closing to occur on or prior to February 1, 2002,
Purchaser (as its sole remedy) may either terminate this
Agreement by written notice to Seller or close with the
establishment of the above mentioned escrow account. In the
event Seller or Purchaser elects to terminate this Agreement
under this Section 10.2, the Earnest Money (less the
Independent Consideration) shall be returned to Purchaser upon
Seller's receipt of the Documents and Purchaser's Information
and thereafter neither party to this Agreement shall
thereafter have any further rights or obligations hereunder,
except as otherwise provided in Sections 5.3 and 6.4 hereof.
If Purchaser elects the Waiver Option, then at the sole option
of Seller, (a) Seller shall repair the Improvements to
substantially their condition prior to such
24
<PAGE>
damage, or (b) Seller shall deliver to Purchaser an amount
equal to the deductible and assign to Purchaser all of its
rights in the resulting casualty insurance proceeds (but the
amount of such deductible plus insurance proceeds shall not
exceed the lesser of (i) the cost of repair or (ii) the
Purchase Price) and a pro rata share of the rental or business
loss proceeds, if any, from the insurance coverage. In the
event Seller elects to assign insurance proceeds, (A)
Purchaser may notify all appropriate insurance companies of
its interest in the insurance proceeds, and (B) all casualty
insurance proceeds payable as a result of the loss (subject to
the limitation herein described) and Purchaser's pro rata
share of any rental or business loss proceeds shall be
assigned to Purchaser at Closing.
Section 10.3 Non-Material Loss.
In the event, in Seller's determination, the Improvements have
been neither Materially Damaged or Substantially Damaged by a
Casualty, the rights and obligations of the parties shall not
be affected thereby and at the sole option of Seller, (a)
Seller shall repair the Improvements to substantially their
condition prior to such damage, or (b) Seller shall deliver to
Purchaser an amount equal to the deductible and assign to
Purchaser all of its rights in the resulting casualty
insurance proceeds (but the amount of such deductible plus
insurance proceeds shall not exceed the lesser of (i) the cost
of repair or (ii) the Purchase Price) and a pro rata share of
the rental or business loss proceeds, if any, from the
insurance coverage. In the event Seller elects to assign
insurance proceeds, (A) Purchaser may notify all appropriate
insurance companies of its interest in the insurance proceeds,
and (B) all casualty insurance proceeds payable as a result of
the loss (subject to the limitation herein described) and
Purchaser's pro rata share of any rental or business loss
proceeds shall be assigned to Purchaser at Closing.
Section 10.4 Delay in Completion of Repairs.
If Seller has elected to repair and if the repairs cannot be
completed by the Closing Date, the Seller may, at Seller's
sole option, and following notice to Purchaser of Seller's
exercise of such option on or before Closing, postpone the
Closing Date until five (5) days following substantial
completion of the repairs (but in no event more than thirty
(30) days following the Closing Date), notwithstanding
anything in Section 6.1 of this Agreement to the contrary;
provided, however, in the event Seller has failed for any
reason whatsoever to substantially complete such repairs on or
before the date that is thirty (30) days following the Closing
Date, Seller shall deliver to Purchaser an amount equal to the
deductible and assign to Purchaser all of its rights in the
resulting casualty proceeds, (but the amount of such
deductible plus insurance proceeds shall not exceed the lesser
of (i) cost of repair or (ii) the Purchase Price) and a pro
rata share of the rental or business loss proceeds, if any,
from the insurance coverage, and, if Seller has executed one
or more contracts for the repairs, Seller shall assign to
Purchaser, and Purchaser shall assume in writing, all of
Seller's rights
25
<PAGE>
and obligations under such contracts and the amount of such
deductible payable to Purchaser shall be reduced by the amount
of any out-of-pocket expenditures incurred by Seller in
connection with such repairs.
ARTICLE XI.
MISCELLANEOUS
Section 11.1 Entire Agreement.
This Agreement contains the entire agreement of the parties
hereto. There are no other agreements, oral or written, and
this Agreement can be amended only by written agreement signed
by the parties hereto, and by reference, made a part hereof.
Section 11.2 Agreement Binding on Parties; Assignment.
This Agreement, and the terms, covenants, and conditions
herein contained, shall inure to the benefit of and be binding
upon the heirs, personal representatives, successors, and
assigns of each of the parties hereto. Purchaser may assign
its rights under this Agreement only upon the following
conditions: (i) the assignee of Purchaser must be an affiliate
(as that term is defined in the rules and regulations
promulgated by the Securities and Exchange Commission under
the Securities Act of 1933, as amended) of Purchaser, (ii) all
of the Earnest Money must have been delivered in accordance
with Section 2.2, (iii) the Inspection Period shall be deemed
to have ended, (iv) Purchaser shall remain primarily liable
for the performance of Purchaser's obligations, (v) Purchaser
shall agree to reimburse Seller for its reasonable legal fees
and expenses, if any, incurred in connection with revisions to
the closing documents resulting from such assignment, and (vi)
a copy of the fully executed written assignment and assumption
agreement along with the taxpayer identification number of the
proposed assignee, shall be delivered to Seller at least ten
(10) days prior to Closing. No transfer or assignment in
violation of this Section 11.2 is valid or enforceable.
Section 11.3 Effective Date.
The Effective Date of this Agreement shall be the date on
which the Closing Agent acknowledges its receipt of a copy of
this Agreement executed by both Seller and Purchaser and
receipt of the Earnest Money. The execution hereof by Seller
shall constitute an offer by Seller to Purchaser to sell the
Property on the terms and conditions herein stated, which must
be accepted by Purchaser on or before November 9, 2001. If
Seller's offer is not timely accepted, this Agreement shall
thereafter be null and void.
Section 11.4 Notice.
26
<PAGE>
All notices, requests, approvals, consents, and other
communications required or permitted under this Agreement
("NOTICES") must be in writing and are effective:
(a) on the business day sent if (i) sent by telecopier
prior to 5:00 p.m. Dallas, Texas time, (ii) the
sending telecopier generates a written confirmation
of sending, and (iii) a confirming copy is sent on
the same business day by one of the other methods
specified below.
(b) on the next business day after delivery, on a
business day, to a nationally recognized overnight
courier service for prepaid overnight delivery.
(c) 3 days after being deposited in the United States
mail, certified, return receipt requested, postage
prepaid, or
(d) upon receipt if delivered by any method other than
the methods specified above.
All Notices must be sent to the address for each party
specified below or to any other address any party specifies by
ten (10) days' prior notice to the other party.
Seller: D & B Realty Holding, Inc.
2481 Manana Drive
Dallas, Texas 75220
Attn: John Davis, Esq.
Fax: (214) 357-1536
Email: john_davis@daveandbusters.com
with a copy Kane, Russell, Coleman & Logan, P.C.
to: 3700 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Attn: Scott A. Dyche
Fax: (214) 777-4299
Email: sdyche@krcl.com
and to: Staubach Retail Services, Inc.
15601 Dallas Parkway
Suite 400
Addison, Texas 75001
Attn: Mike Holsomback
Fax: (972) 361-5909
Email: holsomback@staubach.com
Purchaser: KAZA I, LTD.
c/o AMCAM, INC., its General Partner
27
<PAGE>
10803 Keystone Bend
Austin, Texas 78750
Attn: James A. Bieber
Fax: (512) 336-1055
Email: 123roxy@swbell.net
with a copy McLeroy, Alberts & Benjamin, P.C.
to: 608 West 12th Street
Austin, Texas 78701
Attn: Christopher M. Benjamin
Fax: (512) 472-1622
Email: cbenjamin@att.net
Closing Agent/ Hexter-Fair Title Company
Title Company: 8333 Douglas Avenue
Suite 130
Dallas, Texas 75225
Attn: Carol Erick
Fax: (214) 987-3351
Email: caerick@hexter-fair.com
Section 11.5 Time of the Essence.
Time is of the essence in all things pertaining to the performance of
this Agreement.
Section 11.6 Place of Performance.
This Agreement is made and shall be performable in Dallas, Texas, and
shall be construed in accordance with the laws of the State of Texas,
without regard to principles of conflicts of law.
Section 11.7 Currency.
All dollar amounts are expressed in United States currency.
Section 11.8 Section Headings.
The section headings contained in this Agreement are for convenience
only and shall in no way enlarge or limit the scope or meaning of the
various and several sections hereof.
28
<PAGE>
Section 11.9 Obligations.
To the extent necessary to carry out the terms and provisions hereof,
and unless otherwise specifically provided elsewhere herein, the terms,
conditions, obligations and rights set forth herein shall not be deemed
terminated at the time of Closing, nor will they merge into the various
documents executed and delivered at the time of Closing.
Section 11.10 Business Days.
In the event that any date or any period provided for in this Agreement
shall end on a Saturday, Sunday, or legal holiday in the state defined
in Section 11.6 hereof, the applicable date or period shall be extended
to the first business day following such Saturday, Sunday, or legal
holiday.
Section 11.11 No Recordation.
Without the prior written consent of Seller, there shall be no
recordation of either this Agreement or any memorandum hereof, or any
affidavit pertaining hereto and any such recordation of this Agreement
or memorandum hereto by Purchaser without the prior written consent of
Seller shall constitute a default hereunder by Purchaser, whereupon
this Agreement shall, at the option of Seller, terminate and be of no
further force and effect. Upon termination, all Earnest Money shall be
immediately delivered to Seller, whereupon the parties shall have no
further duties or obligations one to the other except as provided in
Sections 5.3 and 6.4.
Section 11.12 Multiple Counterparts.
This Agreement may be executed in multiple counterparts, each of which
is to be deemed an original for all purposes. This Agreement may be
executed by facsimile signature.
Section 11.13 Severability.
If any provision of this Agreement or application to any party or
circumstance shall be determined by any court of competent jurisdiction
to be invalid and unenforceable to any extent, the remainder of this
Agreement or the application of such provision to such person or
circumstances, other than those as to which it is so determined invalid
or unenforceable, shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the fullest extent
permitted by law.
Section 11.14 Taxpayer ID.
29
<PAGE>
Purchaser's Taxpayer ID Number is _______________.
Section 11.15 Section 1031 Exchange.
Purchaser may elect, upon notice to Seller given prior to the Closing
Date, to exchange the fee title in the Property for other property of
like kind and qualifying use within the meaning of Section 1031 of the
Internal Revenue Code of 1986, as amended, and the Regulations
promulgated thereunder (the "1031 EXCHANGE TRANSACTION"). In order to
facilitate the 1031 Exchange Transaction, Purchaser may retain the
services of a Qualified Intermediary within the meaning of Treas. Reg.
1.1031(k)-1(g)(4), which shall provide services to Purchaser in
connection with Purchaser's 1031 Exchange Transaction. Purchaser
expressly reserves the right to assign its rights under this Agreement
to a Qualified Intermediary on or before the Closing Date. However,
this assignment in no way relieves Purchaser of any obligations or
duties under this Agreement. By executing this Agreement, Seller agrees
to cooperate with Purchaser and the Qualified Intermediary, at no
additional cost to Seller, to effect the 1031 Exchange Transaction and
to execute and deliver any and all documents which reasonably may be
required to effect the 1031 Exchange Transaction.
SELLER:
D & B REALTY HOLDING, INC.,
a Missouri corporation
DATE: November 9, 2001 By: /s/ Chas Michel
---------------------------------
Name: Chas Michel
-------------------------------
Title: Treasurer
------------------------------------
PURCHASER:
KAZA I, LTD.,
a Texas limited partnership
By: AMCAM, INC., a Texas corporation
Its: General Partner
DATE: November 9, 2001 By: /s/ James A. Bieber
-----------------------------------
James A. Bieber
Its: President
30
<PAGE>
JOINDER BY CLOSING AGENT
Hexter-Fair Title Company, referred to in this Agreement as the Closing
Agent, hereby acknowledges that it received this Agreement executed by Seller
and Purchaser and the Earnest Money on the 12th day of November 2001 (the
"EFFECTIVE DATE"), and accepts the obligations of the of the Closing Agent as
set forth herein. The Closing Agent hereby agrees to hold and distribute the
Earnest Money in accordance with the terms and provisions of this Agreement.
HEXTER-FAIR TITLE COMPANY
By: /s/ Carol Erick
---------------------------------------
Name: Carol Erick
-------------------------------------
Title: Executive Vice President
------------------------------------
31
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF LAND
[TO BE ADDED]
1
<PAGE>
EXHIBIT B
SPECIAL WARRANTY DEED
STATE OF TEXAS Section
Section KNOW ALL MEN BY THESE PRESENTS THAT:
COUNTY OF HARRIS Section
THAT D & B REALTY HOLDING, INC., a Missouri corporation ("GRANTOR"),
for and in consideration of the sum of TEN AND NO/100 Dollars ($10.00) and other
good and valuable consideration in hand paid by KAZA I, LTD., a Texas limited
partnership ("GRANTEE"), the receipt and sufficiency of which are hereby
acknowledged, has GRANTED, SOLD AND CONVEYED and by these presents does GRANT,
SELL AND CONVEY unto Grantee all of Grantor's rights, titles, powers, privileges
and interests in and to that certain real property situated in Harris County,
Texas, and more particularly described on Exhibit A attached hereto and made a
part hereof for all purposes (the "LAND"), together with (i) all buildings,
improvements, fixtures and other items of real estate located on the Land
(collectively, the "IMPROVEMENTS"), and (ii) all and singular the rights,
titles, benefits, privileges, remainders, reversions, easements, tenements,
hereditaments, interests and appurtenances of Grantor pertaining to the Land and
the Improvements, including, without limitation, any right, title and interest
of Grantor (but without warranty whether statutory, express or implied) in and
to adjacent strips or gores, if any, between the Land and abutting properties,
and in and to adjacent streets, highways, roads, alleys or rights-of-way, either
at law or in equity, in possession or expectancy (all of the above-described
properties together with the Land and the Improvements are hereinafter
collectively referred to as the "PROPERTY"). This conveyance is made and
accepted subject and subordinate to (a) standby fees, taxes and assessments by
any taxing authority for the current year, and subsequent years, and subsequent
taxes and assessments by any taxing authority for prior years due to change in
land usage or ownership, and (b) the matters set forth on Exhibit B attached
hereto and made a part hereof for all purposes (collectively, the "PERMITTED
ENCUMBRANCES").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in any wise belonging unto Grantee, Grantee's
heirs, executors, administrators, personal representatives, successors and
assigns forever and subject to the Permitted Encumbrances, Grantor does hereby
bind itself, its successors and assigns, to WARRANT AND FOREVER DEFEND all and
singular the Property unto Grantee, Grantee's heirs, executors, administrators,
personal representatives, 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, subject, however, to the Permitted
Encumbrances.
1
<PAGE>
EXECUTED to be effective for all purposes as of the ___ day of
___________ 2001.
GRANTOR:
D & B REALTY HOLDING, INC., a Missouri corporation
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
AFTER RECORDING RETURN TO:
--------------------------
--------------------------
--------------------------
ADDRESS OF GRANTEE:
KAZA I, LTD.
c/o AMCAM, INC.
10803 Keystone Bend
Austin, Texas 78750
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was acknowledged before me on the ____ day of
___________, 2001, by ______________________, ___________________ of D & B
Realty, Inc., a Missouri corporation, on behalf of said corporation.
[SEAL]
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
-------------------------------------------
Printed Name of Notary Public
2
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
3
<PAGE>
EXHIBIT "B"
PERMITTED ENCUMBRANCES
4
<PAGE>
EXHIBIT C
BILL OF SALE AND ASSIGNMENT
This BILL OF SALE AND ASSIGNMENT (this "AGREEMENT") is made and entered
into effective as of the day of _____________ 2001 (the "EFFECTIVE DATE"), by
and between D & B REALTY HOLDING, INC., a Missouri corporation ("ASSIGNOR"), as
assignor, for the benefit of KAZA I, LTD. a Texas limited partnership
("ASSIGNEE"), as assignee.
PRELIMINARY STATEMENTS
The following statements are a material part of this Agreement:
A. Concurrently herewith, Assignor is transferring and conveying to
Assignee, by Special Warranty Deed, all of Assignor's interest in and to the
land described on EXHIBIT "A" (the "LAND") attached to this Agreement and
incorporated in this Agreement by reference, together with all improvements
thereon and other property more particularly described therein (collectively,
the "PROPERTY").
B. Assignor desires to assign to Assignee all of Assignor's interest,
if any, in and to all equipment, machinery, and personal property used on or in
connection with the operation and/or maintenance of the Property; and all of
Assignor's interest, if any, in and to other items of personal property, both
tangible and intangible, affixed or attached to, or in connection with the use,
enjoyment, occupancy and operation of the Property, except those owned by
others, but including the property described below (all of the foregoing
properties and assets being herein collectively called the "ASSIGNED
PROPERTIES").
AGREEMENTS:
NOW THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged:
1. Assignment. Assignor does hereby ASSIGN, CONVEY, GIVE, GRANT,
BARGAIN, SELL, CONFIRM AND DELIVER unto Assignee and its respective successors
and assigns, all of Assignor's rights, title and interest, if any, in and to the
Assigned Properties. TO HAVE AND TO HOLD all and singular the Assigned
Properties unto Assignee, its successors and assigns, forever, and Assignor does
hereby bind itself, its successors and assigns, to forever WARRANT AND DEFEND
Assignee's title to the Assigned Properties and all rights and interests therein
unto Assignee, its successors and assigns, against all every person and persons
whomsoever lawfully claiming the same or any interest therein, by, through or
under Assignor, but not otherwise.
1
<PAGE>
2. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of Assignor and Assignee and their respective successors and
assigns.
IN WITNESS WHEREOF, Assignor has caused this Agreement to be executed
effective as of the Effective Date.
Assignor:
D & B REALTY HOLDING, INC.,
a Missouri corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
2
<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION OF THE LAND
3
<PAGE>
EXHIBIT D
CERTIFICATION OF NON-FOREIGN STATUS
SECTION 1445 OF THE INTERNAL REVENUE CODE PROVIDES THAT A TRANSFEREE OF A
UNITED STATES REAL PROPERTY INTEREST MUST WITHHOLD TAX IF THE TRANSFEROR IS A
FOREIGN PERSON. TO INFORM THE TRANSFEREE, ____________, THAT WITHHOLDING TAX
IS NOT REQUIRED UPON THE DISPOSITION OF A UNITED STATES REAL PROPERTY
INTEREST BY D & B REALTY HOLDING, INC. ("SELLER"), THE
UNDERSIGNED HEREBY CERTIFIES THE FOLLOWING ON BEHALF OF SELLER:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust or foreign estate (as those terms are defined in the Internal Revenue Code
and Income Tax Regulations promulgated pursuant thereto);
2. Seller's United States Employer Identification Number is:
___________; and
3. Seller's office address is: 2481 Manana Drive, Dallas, Texas 75220.
Seller understands that this Certification may be disclosed to the
Internal Revenue Service by transferee and that any false statement contained
herein could be punished by fine, imprisonment or both. Under penalties of
perjury, I declare that I have examined this Certification and, to the best of
my knowledge and belief, it is true, correct and complete, and I further declare
that I have authority to sign this document on behalf of Seller.
EXECUTED this ____ day of _______________ 2001, at Dallas, Texas.
SELLER:
D & B REALTY HOLDING, INC.,
a Missouri corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
1
<PAGE>
STATE OF TEXAS Section
Section
COUNTY OF DALLAS Section
This instrument was ACKNOWLEDGED before me, on the ____ day
of____________ 2001, by ________________________, who declares that he is the
________________ of Dave & Buster's, Inc., a Missouri corporation, on behalf of
said corporation.
------------------------------------------
[S E A L] Notary Public, State of Texas
My Commission Expires:
------------------------------------------
Printed Name of Notary Public
------------------------
2
<PAGE>
EXHIBIT E
ASSIGNMENT OF WARRANTIES
This Assignment of Warranties (this "Assignment") is made as of
_______________, 2001, by D & B REALTY HOLDING, INC., a Missouri corporation
("Grantor"), and KAZA I, LTD., a Texas limited partnership ("Grantee").
ASSIGNMENT
For and in consideration of the sum of Ten and No/100 Dollars ($10.00)
cash and other good and valuable consideration to Grantor paid by Grantee, the
receipt and sufficiency of which are acknowledged, Grantor and Grantee agree as
follows:
1. Assignment. Grantor GRANTS, SELLS, and CONVEYS to Grantee all of Grantor's
interest in the following described properties, rights, and estates
(collectively, the "PROPERTY") that are located on, affixed to, or used in
connection with the real property (the "REAL PROPERTY") described on Exhibit A
attached to this Assignment:
(a) all service contracts, vending agreements, assignable
licenses, or assignable permits with respect to the Real
Property listed on Exhibit B to this Assignment (the
"CONTRACTS"), and the continuing rents, issues, and profits
from the Contracts, if any;
(b) all security deposits, utility deposits, and other deposits
and security deposit accounts, if any, maintained with respect
to the Real Property (the "DEPOSITS"); and
(c) all warranties and guaranties which are applicable to or
covering any part of the improvements, personalty, or
equipment situated on the Property, if any.
TO HAVE AND TO HOLD the Property to Grantee, its successors and
assigns, forever. Grantor binds itself, its successors and assigns, to
WARRANT AND FOREVER DEFEND, all and singular the Property, subject to
the warranties, covenants, and conditions in this Assignment, to
Grantee, its successors and assigns, against every person whomsoever
lawfully claiming or to claim the Property or any part thereof , by,
through, and under Grantor, but not otherwise.
2. Assumption. Grantee assumes and agrees to perform all terms, covenants, and
conditions of the Leases and the Contracts, on the part of the lessor or on the
part of the Grantor, as the case may be, therein required to be performed
arising on or after the date of this Assignment. Grantee also assumes and agrees
to hold and pay the Deposits to the persons entitled to them.
1
<PAGE>
3. Indemnities. Grantor shall indemnify, defend, and hold Grantee harmless from
any and all liabilities, claims, demands, damages, and causes of actions that
may now or hereafter be made or asserted against Grantee arising out of or
related to the Property for acts or omissions of Grantor occurring prior to the
date of this Assignment.
Grantee shall indemnify, defend, and hold Grantor harmless from any and all
liabilities, claims, demands, damages, and causes of actions that may now or
hereafter be made or asserted against Grantor arising out of or related to the
Property for acts or omissions occurring on or after the date of this
Assignment.
4. Disclaimer GRANTOR HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, EXPRESS OR IMPLIED,
OF, AS, TO AND CONCERNING THE FITNESS, SUITABILITY, MERCHANTABILITY OR CONDITION
OF ANY OF THE PROPERTY AND ITS IMPROVEMENTS AND FIXTURES. THE TRANSFER OF THE
PROPERTY TOGETHER WITH THE IMPROVEMENTS AND FIXTURES IS IN THEIR "AS IS," "WHERE
IS" CONDITION, WITH ALL FAULTS.
DATED EFFECTIVE as of the first date above written.
GRANTOR:
D & B REALTY HOLDING, INC., a Missouri
corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
GRANTEE:
KAZA I, LTD., a Texas limited partnership
By: AMCAM, INC., a Texas corporation
Its: General Partner
By:
---------------------------------
James A. Bieber
Its: President
2
<PAGE>
EXHIBIT F
LEASE
[TO BE ATTACHED]
1
<PAGE>
EXHIBIT G
PROMISSORY NOTE
$2,633,100.00 Dallas, Texas
FOR VALUE RECEIVED, the undersigned, KAZA I, LTD. (the "Borrower"),
promises to pay to the order of D & B REALTY HOLDING, INC., a Missouri
corporation ("Lender"), at 2481 Manana Drive, Dallas, Texas 75220, or at such
other place as holder hereof may designate in lawful money of the United States
of America in immediately available funds the principal sum of TWO MILLION SIX
HUNDRED THIRTY-THREE THOUSAND ONE HUNDRED and NO/100 DOLLARS ($2,633,100.00) or
so much as advanced hereunder from time to time, together with interest thereon
from day to day outstanding from the date of advance at the rate of seven and
one-half percent (7.5%) per annum, payable as follows:
Payments of principal and interest, in the amount of $21,212.07 each,
shall be due and payable monthly, commencing on ________, 2001, and
continuing regularly on the first (1st) day of each calendar month
thereafter until __________, 2021 at which time all outstanding
principal and accrued, unpaid interest shall be due and payable.
Upon the failure of Borrower to repay the amounts due under this
Promissory Note (this "Note"), when due, the holder hereof shall have the right
to declare the unpaid principal balance and accrued but unpaid interest on this
Note at once due and payable (and upon such declaration, the same shall be at
once due and payable), to foreclose any liens and security interests securing
payment hereof, if any, and to exercise any of its other rights, powers and
remedies, at law or in equity. All such rights, powers, and remedies are
cumulative of each other and of any and all other rights and remedies existing
at law or in equity. Notwithstanding anything to the contrary herein contained,
Lender shall not exercise any rights herein granted until such time as Lender
has given Borrower written notice of default, and has given Borrower the
opportunity to cure such default within ten (10) business days from the date of
actual delivery of the notice to Borrower.
Should the indebtedness represented by this Note or any part hereof be
collected at law or in equity or in bankruptcy, receivership or other court
proceeding, or should this Note be placed in the hands of attorneys for
collection after default, Borrower agrees to pay, in addition to the principal,
interest due and payable hereon and any other sums due and payable hereunder,
all costs of collecting or attempting to collect this Note, including reasonable
attorneys' fees and expenses (including those incurred in connection with any
appeal).
Borrower and all endorsers and guarantors of this Note hereby waive
presentment, demand, notice, protest, stay of execution, presentment for
payment, notice of dishonor and of nonpayment, protest, notice of protest,
notice of intent to accelerate, notice of acceleration, all other notices,
filing of suit and diligence in collecting this Note or enforcing any of the
security here for, and all other defenses to payment generally; and hereby
assent to the terms hereof, and
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agree that any renewal, extension, or postponement of the time for payment or
any other indulgence or any substitution, exchange, or release of collateral or
the additional release of any person or entity primarily or secondarily liable,
may be affected without notice to and without releasing Borrower, any endorser
or any guarantor from any liability hereunder or under any related guaranty and
that the holder hereof shall not be required first to institute suit or exhaust
its remedies hereon against Borrower or others liable or to become liable hereon
or to enforce its rights against them or any security herefor.
Borrower may prepay any sums due and owing hereunder at any time,
without penalty. This Note may be assigned by Borrower, without the necessity of
the consent of Lender.
It is the intent of Lender and Borrower to conform to and contract in
strict compliance with applicable usury laws from time to time in effect. All
agreements between Lender or any other holder hereof and Borrower are hereby
limited by the provisions of this paragraph which shall override and control all
such agreements, whether now existing or hereafter arising. In no way, nor in
any event or contingency (including but not limited to prepayment, default,
demand for payment, or acceleration of maturity of any obligation), shall the
interest taken, reserved, contracted for, charged, chargeable or received under
this Note, or otherwise, exceed the maximum nonusurious amount permitted by
applicable law (the "Maximum Amount"). If, from any possible construction of any
document, interest would otherwise be payable in excess of the Maximum Amount,
any such construction shall be subject to the provisions of this paragraph and
such document shall, ipso facto, be automatically reformed and the interest
payable shall be automatically reduced to the Maximum Amount, without the
necessity of execution of any amendment or new document. If the holder hereof
shall ever receive anything of value that is characterized as interest under
applicable law and that would apart from this provision be in excess of the
Maximum Amount, an amount equal to the amount that would have been excessive
interest shall, without penalty, be applied to the reduction of the principal
amount owing on the indebtedness evidenced hereby in the inverse order of its
maturity and not to the payment of interest, or refunded to Borrower or the
other payor thereof if and to the extent such amount that would have been
excessive exceeds such unpaid principal. The right to accelerate maturity of
this Note or any other indebtedness does not include the right to accelerate any
interest that has not otherwise accrued on the date of such acceleration, and
the holder hereof does not intend to charge or receive any unearned interest in
the event of acceleration. All interest paid or agreed to be paid to the holder
hereof shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term (including any renewal or
extension) of such indebtedness so that the amount of interest on account of
such indebtedness does not exceed the Maximum Amount. As used in this paragraph,
the term "applicable law" shall mean the laws of the State of Texas or the
federal laws of the United States applicable to this transaction, whichever laws
allow the greater interest, as such laws now exist or may be changed or amended
or come into effect in the future. This provision shall control any other
provision of this Note or in any other documents relating to this Note.
Lender, as tenant, and Borrower, as landlord, have entered into that
certain Lease Agreement of even date herewith (the "Lease") covering certain
real property and improvements located in Dallas, Texas. Notwithstanding
anything to the contrary contained herein, in the event that Lender shall
default under the Lease, and such default shall remain uncured for the period
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provided in the Lease so as to become an Event of Default (as defined in the
Lease), then this Note shall be immediately deemed paid in full and canceled,
and Borrower shall have no further obligations, of any kind, to Lender under
this Note. Any default by Borrower under this Note shall constitute a default by
landlord under the Lease.
THIS NOTE, AND ITS VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED
BY TEXAS LAW (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE
UNITED STATES FEDERAL LAW.
BORROWER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY
RIGHT IT MAY HAVE TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (a) ARISING UNDER THIS NOTE OR UNDER ANY OTHER DOCUMENTS, INCLUDING,
WITHOUT LIMITATION, ANY PRESENT OR FUTURE MODIFICATION THEREOF OR (b) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO THIS NOTE (AS NOW OR HEREAFTER MODIFIED) OR ANY
OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
HEREWITH, OR ANY COURSE OR CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), IN EACH CASE WHETHER SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION IS NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS NOTE MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
PARTIES HERETO TO THE WAIVER OF ANY RIGHT THEY MIGHT OTHERWISE HAVE TO TRIAL BY
JURY.
THE WRITTEN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES,
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Note as of the date and year first above written.
BORROWER:
KAZA I, LTD.,
a Texas limited partnership
By: AMCAM, INC., a Texas corporation
Its: General Partner
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By:
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James A. Bieber
Its: President
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