Georgia-Marietta Agreement of Sale and Purchase - D & B Realty Holding Inc. and Landfair LLC
AGREEMENT OF SALE AND PURCHASE
by and between
D & B REALTY HOLDING, INC.,
a Missouri corporation,
as Seller
and
LANDFAIR, LLC,
a California limited liability company
as Purchaser
Marietta, Georgia
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TABLE OF CONTENTS
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PAGE
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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................................................. 3
ARTICLE III. Survey................................................................ 3
Section 3.1 Survey........................................................ 3
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............................................... 12
Section 6.3 Closing Costs................................................. 14
Section 6.4 Real Estate Commission........................................ 14
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............................................... 16
Section 7.4 Disposition of Earnest Money.................................. 17
ARTICLE VIII. Representations, Warranties, and Covenants........................... 17
Section 8.1 Purchaser's Representations and Warranties.................... 17
Section 8.2 Seller's Representations and Warranties....................... 17
Section 8.3 Seller's Covenants............................................ 20
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Section 8.4 Survival of Representations and Warranties.................... 21
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
ARTICLE XI. Miscellaneous.......................................................... 24
Section 11.1 Entire Agreement........................................... 24
Section 11.2 Agreement Binding on Parties; Assignment................... 24
Section 11.3 Effective Date............................................. 24
Section 11.4 Notice..................................................... 24
Section 11.5 Time of the Essence........................................ 26
Section 11.6 Place of Performance....................................... 26
Section 11.7 Currency................................................... 26
Section 11.8 Section Headings........................................... 26
Section 11.9 Obligations................................................ 26
Section 11.10 Business Days.............................................. 26
Section 11.11 No Recordation............................................. 27
Section 11.12 Multiple Counterparts...................................... 27
Section 11.13 Severability............................................... 27
Section 11.14 Taxpayer ID................................................ 27
Section 11.15 Section 1031 Exchange...................................... 27
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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
LANDFAIR, LLC, a California limited liability company (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 only 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 53,314 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
and any easements, rights-of-way or licenses of any
kind relating to 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, mineral rights, water rights, water
stock, and all other rights, privileges, entitlements
and appurtenances belonging or in anywise pertaining
to the ownership, management or operation of the Real
Property, if any (the "APPURTENANCES");
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(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, 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) Intentionally Omitted;
(h) Seller's interest in all plans, specifications,
drawings, reports, studies, and other similar
matters, relating to the Land and in the possession
or control of Seller or Seller's agents or affiliates
(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 Three Hundred Ninety
Thousand and No/100 Dollars ($8,390,000), plus or
minus any net prorations or closing costs payable or
chargeable to Purchaser hereunder, which is payable
to Seller at the closing of the transaction
contemplated hereby (the "CLOSING"). Purchaser shall
pay the Purchase Price at the Closing as follows: (i)
Five Million Eight Hundred Seventy Three Thousand and
No/100 Dollars ($5,873,000) by wire transfer of funds
and (ii) Two Million Five Hundred Seventeen Thousand
and No/100 Dollars ($2,517,000) by delivery of a
promissory note (the "NOTE") in substantially the
form attached hereto as Exhibit G.
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Section 2.2 Earnest Money.
(a) It is a condition precedent to the effectiveness of
this Agreement that within three (3) 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 Fifty
Thousand Dollars ($50,000) (along with any interest
accrued thereon, 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. 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 (except if
Seller is entitled to retain the Earnest Money under
Section 7.1, in which case the interest earned will
be reported as income of the Seller).
(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.
ARTICLE III.
SURVEY
Section 3.1 Survey.
Seller has delivered to Purchaser a true, correct and complete
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.
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ARTICLE IV.
TITLE
Section 4.1 Title Commitment.
(a) Delivery. If not previously delivered, within one (1)
day after the Effective Date, Seller shall cause
Lawyers Title Insurance Corporation (the "TITLE
COMPANY"), acting through the Closing Agent, to
furnish to Purchaser a title commitment (the
"COMMITMENT") along with legible, 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 an ALTA Extended Coverage Owner's Policy
of Title Insurance (the "TITLE POLICY") in the amount
of the Purchase Price and insuring Purchaser's fee
simple absolute title to the Real Property to be good
marketable and indefeasible, subject only to the
Permitted Exceptions.
(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
fifth (5th) day following the date of the last to be
received of the Title Commitment and updated Survey,
and Seller shall have two (2) 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 (including, without
limitation, the liens shown on Schedules B and C of
the Commitment, other than non-delinquent 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 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
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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 updated Survey or in the Title
Commitment (other than the Dischargeable Liens),
which Purchaser has accepted or has been deemed to
accept under Section 4.1(b). 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 the Closing Agent, the Closing Agent
shall deliver the Documents and the Purchaser's
Information to Seller and shall deliver the Earnest
Money 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 shall permit Purchaser and its authorized agents and
representatives to enter upon the Real Property at all
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., Los Angeles, California time on
December 20, 2001 (the "INSPECTION PERIOD EXPIRATION 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
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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 so long as Seller's presence (or desire to be present)
does not delay or hinder any inspection or test.
Section 5.2 Document Review.
(a) Documents. Seller has previously delivered to
Purchaser, and Purchaser acknowledges its receipt of,
the following (collectively, the "DOCUMENTS"):
(i) copies of any Plans;
(ii) copies of all existing soil, engineering,
architectural, and environmental reports covering the
Property in Seller's or Seller's agents or affiliates
possession or control;
(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 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") or if required by law to do so.
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
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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 to
Closing Agent 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. Closing Agent
concurrently shall deliver the Documents and Purchase
Information to Seller, and the Earnest Money to
Purchaser.
(d) No Representation or Warranty by Seller. Except as
contained in this Agreement, Purchaser hereby
acknowledges that Seller has not made and does not
make any warranty or representation regarding the
truth, accuracy, or completeness of the Items
delivered under Sections 5.2(a)(i), (ii) (the "THIRD
PARTY DOCUMENTS") or the source(s) thereof, and that
Seller has not undertaken any independent
investigation as to the truth, accuracy, or
completeness of the Third Party Documents and is
providing the Third Party 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 Third Party Documents, or for any
omissions from the Third Party Documents, or in any
other written or oral communications transmitted or
made available to Purchaser.
Section 5.3 Inspection Obligations.
(a) Purchaser's Responsibilities. In conducting any
inspections, investigations, examinations, or tests
of the Property, Purchaser and its agents and
representatives shall: (i) not materially interfere
with the operation and maintenance of the Property;
(ii) not materially damage any part of the Property
or any personal property; (iii) not materially 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
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Seller as an additional insured) to Seller prior to
entry upon the Property; (v) promptly pay prior to
delinquency 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 substantially the same condition in
which they 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 as
required under Section 5.2(c).
(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) CAUSED BY
PURCHASER'S INSPECTIONS OR TESTS OR ANY VIOLATION OF
THE PROVISIONS OF THIS SECTION 5.3 EXCEPT AS MAY BE
CAUSED BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF
SELLER, ITS EMPLOYEES, AGENTS OR INVITEES. THIS
INDEMNITY SHALL SURVIVE THE CLOSING OR EARLIER
TERMINATION OF THIS AGREEMENT FOR ONE YEAR.
NOTWITHSTANDING THE PRIOR SENTENCE, BUYER WILL HAVE
NO OBLIGATION TO INDEMNIFY SELLER NOR BE LIABLE FOR
ANY COST, DAMAGE LOSS OR EXPENSE OF SELLER RESULTING
FROM OR RELATING TO (A) A PRE-EXISTING CONDITION AT
THE PROPERTY OR (B) THE EXISTENCE OR CONSEQUENCES OF
INFORMATION OBTAINED BY BUYER AS A RESULT OF ITS
INVESTIGATION.
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, any item
examined by Purchaser pursuant to this Agreement or the credit
of the Tenant, Purchaser shall be entitled to terminate this
Agreement by giving written notice to Seller on or before the
Inspection Period Expiration Date (but no later than 5:00
p.m., Los Angeles, California 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 Closing Agent of the Documents and
Purchaser's Information, the Closing Agent shall return (i)
Earnest Money to Purchaser, less
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the Independent Consideration which shall be paid to Seller
and (ii) the Documents and the Purchase's Information 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 THIS AGREEMENT OR ANY OF
THE CLOSING DOCUMENTS, 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
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PROPERTY OR ANY PORTION THEREOF, OR ANY INCOME,
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". EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT OR ANY OF THE CLOSING DOCUMENTS, 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 (EXCEPT
TENANT) 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 ON
(I) ITS OWN EXPERTISE AND THAT OF PURCHASER'S
CONSULTANTS IN PURCHASING THE PROPERTY, (II) THE
EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLER
EXPRESSLY SET FORTH IN THIS AGREEMENT AND THIS
CLOSING DOCUMENTS AND (III) THE REPRESENTATIONS AND
WARRANTIES OF TENANT UNDER THE LEASE. PURCHASER WILL
CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE
PROPERTY AS PURCHASER DEEMS NECESSARY IN LIGHT OF
TENANT'S REPRESENTATION UNDER THE LEASE. UPON
CLOSING, AS BETWEEN PURCHASER AND
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SELLER ONLY, 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 (EXCEPT
CLAIMS ARISING FROM A BREACH OF THIS AGREEMENT)
PURCHASER MAY HAVE AGAINST SELLER, NOW OR IN THE
FUTURE, IN CONNECTION WITH ANY SUCH ADVERSE MATTERS,
INCLUDING, WITHOUT LIMITATION, ANY RIGHT OF
CONTRIBUTION. PURCHASER ACKNOWLEDGES AND AGREES THAT,
IF ALL PURCHASER'S CONDITIONS PRECEDENT TO CLOSING
HAVE BEEN SATISFIED OR WAIVED, 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, OR ANY AGENT OF SELLER (EXCEPT
TENANT). THE TERMS AND CONDITIONS OF THIS SECTION 5.5
SHALL EXPRESSLY SURVIVE THE CLOSING, NOT MERGE WITH
THE PROVISIONS OF ANY CLOSING DOCUMENTS. 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 (EXCEPT TENANT), 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
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. NOTHING CONTAINED IN THIS SECTION
5.5(b) OR ELSEWHERE IN THIS AGREEMENT SHALL REDUCE OR
AFFECT IN ANY WAY WHATSOEVER: (I) THE TENANT'S
OBLIGATIONS, DUTIES AND LIABILITIES ARISING UNDER THE
LEASE, AND
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(II) PURCHASER'S RIGHTS AND PRIVILEGES REGARDING ANY
PERSON OTHER THAN SELLER.
(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
biphenyls (pcbs), radon gas, urea formaldehyde,
asbestos, lead or electromagnetic waves.
Section 5.6 Intentionally Omitted.
Section 5.7 Purchaser and Seller Represented by Counsel.
Purchaser and Seller hereby represents and warrants to the
other that: (i) it is not in a significantly disparate
bargaining position in relation to the other; (ii) it is
represented by legal counsel in connection with the
transaction contemplated by this Agreement; and (iii)
Purchaser is purchasing and Seller is selling the Property for
business, commercial, investment, or other similar purpose.
Purchaser represents and warrants to Seller that it is
purchasing the Property 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 December
21, 2001, or at such other time as mutually agreed by Seller
and Purchaser. Notwithstanding the foregoing, Purchaser may
elect for the Closing to occur any business day prior to
December 21, 2001 by giving three days prior written notice of
such earlier date to Seller and Closing Agent. The date on
which the Closing occurs is the "Closing Date."
Section 6.2 Closing Matters.
(a) Seller's Deliveries. At Closing, Seller shall
deliver:
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(i) possession of the Property, subject to the
Permitted Exceptions;
(ii) to the extent in Seller's or Seller's
agent's possession or control, copies of all
Permits;
(iii) an executed and acknowledged special
warranty deed (the "DEED") in substantially
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 or
Seller's Agent's possession or control;
(viii) an executed Lease between Purchaser and Dave
& Buster I, L.P. ("TENANT") in substantially
the form attached hereto as Exhibit F (the
"LEASE"); and
(ix) an executed guaranty of the Lease by Dave &
Buster's, Inc. ("GUARANTOR") in favor of
Purchaser as Landlord under the Lease, in
the form attached to the Lease as Exhibit D.
(x) 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.
(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;
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(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, 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) Intentionally Omitted.
(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.
Purchaser shall pay all premiums associated with extended
coverage or any endorsements or modifications to the Title
Policy, the costs of any updated Survey, and costs of any
inspections or tests Purchaser authorizes or conducts.
Section 6.4 Real Estate Commission.
Seller agrees to pay, at Closing, to LMT Investment Company
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
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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 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 (in both cases, without regard to
any "knowledge" qualifications).
(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) Purchaser shall have obtained a satisfactory Title
Policy in accordance with Section 4.1(a).
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(e) The Lease and the Guaranty are both in full force and
effect.
(f) As of Closing, no proceedings shall be pending or
threatened which could or would (i) involve the
change, redesignation, redefinition or other
modification of the zoning classification of (or any
zoning, building or environmental code requirements
applicable to) the Property, or any portion thereof,
or (ii) otherwise materially adversely affect the
Property.
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 materially breaches this
Agreement, Seller, as its sole and exclusive remedy at law in
equity or otherwise, shall be entitled to terminate this
Agreement and recover the Earnest Money as liquidated damages
and not as penalty, in full and complete satisfaction of any
and all claims against Purchaser arising in any manner
whatsoever from this Agreement or the transaction contemplated
in this Agreement. 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.
Other than matters provided in Sections 6.4 or 8.4, in the
event Seller materially breaches this Agreement, 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
obligations of Seller. In the event of a material breach of
representation or warranty by Seller discovered by Purchaser
after Closing, Purchaser's remedies are those described in
Section 8.4.
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 Atlanta, Georgia. 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 Purchaser has delivered to Closing
Agent 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.
(a) Seller is the fee simple owner of the Real Property
and has full power to own, occupy and transfer the
Property.
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(b) Seller is a Missouri corporation duly organized
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 power and authority to execute and
deliver this Agreement and conclude the transactions
contemplated therein.
(c) The execution nor the delivery of this Agreement and
the other documents called for hereunder nor the
consummation of the transactions contemplated hereby
or thereby, or compliance with the terms hereof or
thereof by Seller, will not (a) violate any laws or
conflict with or result in a material breach of the
terms of or constitute a default under the
organizational documents of Seller or under any
contract, judgment, or other restriction of any kind
to which Seller is a party or by which Seller or the
Property is bound, (b) require any approval, consent,
authorization of, or other order or action of, or
filing with, any court, governmental authority or
regulatory body, or any other person or entity, (c)
give any party with rights under any contract,
judgment or other restriction to which Seller is a
party, or by which Seller or the Property is bound,
the right to terminate, modify or otherwise change
the rights or obligations of Seller under such
contract, judgment or other restriction, or (d)
result in liens or rights of third parties regarding
the Property. This Agreement and any other agreements
and instruments required to be delivered under this
Agreement by Seller, when executed and delivered by
Seller and Purchaser, will constitute valid and
binding obligations of Seller and will be enforceable
in accordance with their respective terms, except as
enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium, or other laws
affecting creditor's rights generally or by general
principles of equity.
(d) 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 Property.
(e) Seller has received no written notice concerning the
Property from any Governmental Authority (as defined
below in this Section 8.2) about a violation (or
alleged violation, or of matters which with the
passage of time or giving of notice, or both, would
become violations) 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.
(f) There is no pending or, to Seller's knowledge,
threatened material litigation or administrative
proceeding affecting the Property.
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(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) To Seller's knowledge, no default or breach exists
under any of the covenants, conditions, restrictions,
rights-of-way or easements, if any, affecting all or
any portion of the Property which are to be performed
or complied with by the owner of the Property.
(l) 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.
(m) 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.
(n) 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.
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(o) To Seller's knowledge, there are no threatened or
endangered species or their habitat on the Property.
(p) 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.
(q) 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.
(r) Seller is not a "foreign person" within the meaning
of Section 1445(f)(3) of the Code.
(s) No party has a right of first refusal or option or
similar right to purchase all or any part of the
Property.
(t) The Documents are true, correct and complete copies
of what each purports to be. The Documents are all
the material documents, studies, reports, surveys,
maps and other materials regarding the Property in
Seller's or Seller's agents' possession or control.
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, 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,
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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.
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
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warranties shall survive the Closing for a period of two
years.
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) of John
Davis or Bryan Spain (collectively, "SELLER'S
REPRESENTATIVES"). Seller represents and warrants to Purchaser
that Seller's Representatives have made a reasonable inquiry
of other employees and agents of Seller and are the most
knowledgeable persons regarding the Property and Seller's
operation thereof. The Seller's Representatives 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 waives any right to
sue or seek any judgment or claim against the Seller's
Representatives. 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 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
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
$50,000.00. 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
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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 Closing Agent'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 one (1) business day of such
Casualty written notice ("CASUALTY LOSS Notice") of such
Casualty.
Section 10.2 Loss.
If the cost of restoring the Improvements to their condition
prior to the Casualty, in full compliance with all applicable
building and zoning laws, ordinances and regulations, will
exceed $100,000 whether or not such damage is covered by
insurance, Purchaser (but not Seller) may either (a) terminate
this Contract by delivering written notice to Seller prior to
the Closing 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 and 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 and a pro rata share of the rental
or business loss proceeds, if any, from the insurance
coverage. In which the event (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.
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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) Purchaser shall remain primarily
liable for the performance of Purchaser's obligations, and
(iv) 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 two (2) 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.
Section 11.4 Notice.
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. Los Angeles, California 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.
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(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: c/o Elysee Management Group, Inc.
27520 Hawthorne Boulevard, Suite 235
Rolling Hills, California 90274
Attn: Wayne Kao
Facsimile: 310-275-8914
with a copy Irell & Manella LLP
1800 Avenue of the Stars
Los Angeles, California 90067
Attn: Mark Wiesenthal
Fax: (310) 203-7199
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Email: mwiesenthal@irell.com
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 Atlanta,
Georgia, and shall be construed in accordance with the laws of
the State of Georgia, 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.
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,
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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.
Purchaser's Taxpayer ID Number is 93-1218516.
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
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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.
Section 11.16 No Assumption of Seller's Liabilities.
Purchaser is acquiring only the Property from Seller and is
not the successor of Seller. Purchaser does not assume or
agree to pay, or indemnify Seller or any person or entity
against any liability, obligation or expense of Seller or
relating to the Property.
SELLER:
D & B REALTY HOLDING, INC.,
a Missouri corporation
DATE: December 17, 2001 By: /s/ David O. Corriveau
--------------------------------
Name: David O. Corriveau
--------------------------------
Title: President
--------------------------------
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PURCHASER:
LANDFAIR, LLC,
a California limited liability company
DATE: , 2001 By: /s/ Wayne Kao
--------------------------------
Name: Wayne Kao
--------------------------------
Title: President
--------------------------------
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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 17th day of December 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/ Polly L. Johnson
--------------------------------
Name: Vice President - Polly L. Johnson
--------------------------------
Title:
--------------------------------
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<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF LAND
[TO BE ADDED]
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<PAGE>
EXHIBIT B
LIMITED WARRANTY DEED
STATE OF GEORGIA PREPARED BY AND RETURN TO:
MARK WIESENTHAL, ESQ.
COUNTY OF COBB IRELL & MANELLA LLP
1800 AVENUE OF THE STARS, SUITE 900
LOS ANGELES, CALIFORNIA 90067
LIMITED WARRANTY DEED
THIS DEED made this ________ day of ___________, 199__, between
___________________________________________, ("Grantor") of the State of
___________ and ____________________________________ ("Grantee") of the State of
____________, (the terms Grantor and Grantee to include their respective heirs,
successors and assigns, where the context hereof requires or permits).
WITNESSETH THAT: Grantor, for and in consideration of the sum of ten
and no/100ths Dollars ($10.00) and other good and valuable consideration, in
hand paid at and before the sealing and delivery of these presents, the receipt,
adequacy and sufficiency of which being hereby acknowledged by Grantor, has
granted, bargained, sold and conveyed, and by these presents does hereby grant,
bargain, sell and convey unto Grantee, the following described real property, to
wit:
ALL THAT TRACT OR PARCEL OF LAND LYING AND BEING IN LAND LOT _____ OF
THE ______ DISTRICT, COBB COUNTY, GEORGIA, AND BEING MORE PARTICULARLY
DESCRIBED ON THE ATTACHED EXHIBIT "A", WHICH BY REFERENCE IS
INCORPORATED HEREIN IN ITS ENTIRETY.
TO HAVE AND TO HOLD the above described tract or parcel of land,
together with all and singular the rights, members and appurtenances thereof, to
the same being, belonging, or in anywise appertaining, to the only proper use,
benefit and behoof of Grantee, forever, in FEE SIMPLE.
AND, SUBJECT TO the title matters, if any, expressly set forth
hereinabove, Grantor will warrant and forever defend the right and title to the
above-described tract or parcel of land unto the Grantee against the claims of
any and all persons claiming by, through or under Grantor.
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IN WITNESS WHEREOF, Grantor has signed and sealed this Deed the day and
year first above written.
SIGNED, SEALED, AND DELIVERED
IN THE PRESENCE OF:
BY: (SEAL)
--------------------------
-------------------------
UNOFFICIAL WITNESS
-------------------------
NOTARY PUBLIC
MY COMMISSION EXPIRES:
--------------------------
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<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION
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<PAGE>
EXHIBIT "B"
PERMITTED ENCUMBRANCES
-35-
<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 LANDFAIR, LLC, a California limited liability
company ("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.
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<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:
--------------------------------
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<PAGE>
EXHIBIT "A"
LEGAL DESCRIPTION OF THE LAND
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<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:
--------------------------------
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<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
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<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 LANDFAIR, LLC, a California limited liability company
("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 Contracts, on the part of the Grantor, as the case may be,
therein required to be performed regarding events occurring 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.
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<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:
LANDFAIR, LLC,
a California limited liability company
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
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<PAGE>
EXHIBIT F
LEASE
[TO BE ATTACHED]
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<PAGE>
EXHIBIT G
PROMISSORY NOTE
$2,517,000.00 Dallas, Texas
FOR VALUE RECEIVED, the undersigned, LANDFAIR, LLC, a California
limited liability company (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 FIVE HUNDRED SEVENTEEN THOUSAND and NO/100 DOLLARS
($2,517,000.00) 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 percent (7.0%) per annum, payable as follows:
Payments of principal and interest, in the amount of $19,514.27 each,
shall be due and payable monthly, commencing on February 1, 2002, and
continuing regularly on the first (1st) day of each calendar month
thereafter until December 31, 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 or any other holder hereof shall not exercise any rights herein granted
until such time as Lender or any other holder hereof 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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<PAGE>
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 or any other holder hereof.
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 non-usurious 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.
DAVE & BUSTER'S I, L.P., a Texas limited partnership ("DBLP") and a
wholly owned subsidiary of 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 Marietta, Georgia.
Notwithstanding anything to the contrary contained herein, in the
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event that the tenant under the Lease shall default under the Lease, and such
default shall remain uncured for the period 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 or any other holder 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:
LANDFAIR, LLC,
a California limited liability company
By:
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Name:
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Title:
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