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HomeMy WebLinkAbout100981 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 • RESOLUTION NO. 10,098 0 A RESOLUTION TO AUTHORIZE THE MAYOR AND CITY CLERK TO EXECUTE DOCUMENTS NECESSARY FOR THE CITY TO CONTRACT FOR THE PURCHASE OF PROPERTY AT SECOND AND MAIN STREETS; AND FOR OTHER PURPOSES. WHEREAS, the City has previously indicated a desire to purchase the parking deck at Second and Main Street from Metrocentre Improvement District No. 1; and WHEREAS, the District has requested a formal contract for the purchase of these decks; and WHEREAS, the City has drafted such a contract which indicates the City's desire to purchase these decks, but also notes that there are issues conceming the original leases that must be resolved. NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS: SECTION 1. The Mayor and City Clerk are authorized to execute documents in substantially the same form as that attached as Exhibit A, if approved by the City Attorney, in order to have in place a contract for the purchase of the parking deck at Second and Main Street from Metrocentre Improvement District No. 1. ADOPTED: OCTOBER 7, 1997 ATTEST: Robbie Hancock, City Clerk APPROVED AS TO LEGAL FORM: Thomas M. Carpenter, Ci Attorney APPROVED: V �.Y Tim Ailey, Mayor 491. SALE AND PURCHASE AGREEMENT KNOW ALL MEN BY THESE PRESENTS: THIS AGREEMENT IS MADE AND ENTERED INTO by and between Metrocentre Improvement District No. 1 of Little Rock, Arkansas, an improvement district organized under the laws of the State of Arkansas, hereinafter referred to as the "District ", and The City of Little Rock, Arkansas, a city of the first class, hereinafter referred to as the "City ". The City and District are sometimes hereinafter collectively referred to as "Parties" and, sometimes, individually as 'Party ". WHEREAS, the City and the District made and entered into that certain Lease Agreement (the, "Lease Agreement "), dated December 18, 1985 filed for record on December 18, 1985 and recorded as Instrument Number 85 -70124 in the Office of the Circuit Clerk and Ex -Officio Recorder of Pulaski County, Arkansas, wherein the City leased and demised and the District rented and took possession of two (2) tracts of land more particularly described as: Lots 1, 2, 3, 4, 5 and 6, Block 3, Original City of Little Rock (hereinafter referred as the 'Block 3 Land ") and Lots 7, 8, 9, 10, 11 and 12, Block 7, Original City of Little Rock (hereinafter referred to as the 'Block 7 Land ") for a term of fifty (50) years and two (2) months beginning on November 1, 1985 and ending on December 1, 2035; and, WHEREAS, subsequent to taking possession of the Block 3 Land under the terms of the Lease Agreement, the District determined its should construct, operate and maintain a public parking facility, including a parking deck and other improvements (hereinafter referred to collectively as the "Improvements ") on the Block 3 Land and toward that end the District, having first made, executed and delivered that certain Trust Indenture (the, "Trust Indenture "), filed for record on December 19, 1985 and recorded as Instrument Number 85 -70125 in the Office of the Circuit Clerk and Ex- Officio Recorder of Pulaski County, Arkansas, constructed and then operated and maintained the Improvements on the Block 3 Land; and, WHEREAS, the District has determined that it is desirable and in the best of the District to sell the Improvements situated on the Block 3 Land for valuable consideration in order to refinance the indebtedness secured by the Trust Indenture; and, -1- 2rdmsimdm 10 /07/97 02:26 PM Y' e . • EXHIBIT "A" SALE AND PURCHASE AGREEMENT KNOW ALL MEN BY THESE PRESENTS: THIS AGREEMENT IS MADE AND ENTERED INTO by and between Metrocentre Improvement District No. 1 of Little Rock, Arkansas, an improvement district organized under the laws of the State of Arkansas, hereinafter referred to as the "District ", and The City of Little Rock, Arkansas, a city of the first class, hereinafter referred to as the "City ". The City and District are sometimes hereinafter collectively referred to as "Parties" and, sometimes, individually as 'Party ". WHEREAS, the City and the District made and entered into that certain Lease Agreement (the, "Lease Agreement "), dated December 18, 1985 filed for record on December 18, 1985 and recorded as Instrument Number 85 -70124 in the Office of the Circuit Clerk and Ex -Officio Recorder of Pulaski County, Arkansas, wherein the City leased and demised and the District rented and took possession of two (2) tracts of land more particularly described as: Lots 1, 2, 3, 4, 5 and 6, Block 3, Original City of Little Rock (hereinafter referred as the 'Block 3 Land ") and Lots 7, 8, 9, 10, 11 and 12, Block 7, Original City of Little Rock (hereinafter referred to as the 'Block 7 Land ") for a term of fifty (50) years and two (2) months beginning on November 1, 1985 and ending on December 1, 2035; and, WHEREAS, subsequent to taking possession of the Block 3 Land under the terms of the Lease Agreement, the District determined its should construct, operate and maintain a public parking facility, including a parking deck and other improvements (hereinafter referred to collectively as the "Improvements ") on the Block 3 Land and toward that end the District, having first made, executed and delivered that certain Trust Indenture (the, "Trust Indenture "), filed for record on December 19, 1985 and recorded as Instrument Number 85 -70125 in the Office of the Circuit Clerk and Ex- Officio Recorder of Pulaski County, Arkansas, constructed and then operated and maintained the Improvements on the Block 3 Land; and, WHEREAS, the District has determined that it is desirable and in the best of the District to sell the Improvements situated on the Block 3 Land for valuable consideration in order to refinance the indebtedness secured by the Trust Indenture; and, -1- 2rdmsimdm 10 /07/97 02:26 PM Y' e M M M M 0 SALE AND PURCHASE AGREEMENT WHEREAS, the City has determined that it is desirable and in the best of the City to purchase the Improvements to be used, operated and maintained as a tourist related facility. NOW THEREFORE, WITNESSETH: That for and in consideration of the mutual covenants and premises herein contained to be well, truly and completely performed by the parties hereto, the District and City covenant and agree as hereinafter set forth: 1. THE PROPERTY. On the terms and conditions hereinafter set forth, the District hereby sells and agrees to convey and transfer to the City and the City hereby agrees to purchase, acquire and take possession of the Improvements; together with: (a) all personal property described on Exhibit "A" attached hereto and made a part hereof which is attached to, installed on or placed or used on, in connection with or is acquired for such attachment, installation, placement or use, or which arises out of the development, improvement, leasing, operation or use of the Improvements, and, (b) all keys, plans and specifications, surveys, rent rolls, and books and records pertaining to the Improvements in possession of the District; and, (c) All materials, supplies, equipment, apparatus and other items attached to, installed on or in the Block 3 Land or the Improvements, or which in some fashion are deemed to be fixtures to the Block 3 Land or Improvements under the laws of the State of Arkansas; and, (d) Any and all contracts, contract rights and all other agreements, including, but not limited to, utility contracts, utility deposits, maintenance agreements and service contracts, which in any way relate to the use, occupancy, operation, maintenance, enjoyment or ownership of the Block 3 Land and Improvements fisted on Exhibit 'B" attached hereto; and, (e) Any and all leases, subleases, licenses, concessions or other agreements (written or verbal, now or hereafter in effect) which grant a possessory interest in and to, -2- 2ndmairLdw 10/07/97 02:26 PM M M 493 SALE AND PURCHASE AGREEMENT or the right to occupy or use the Block 3 Land and Improvements or any portion thereof fisted on Exhibit "C" attached hereto and made a part hereof; and, (f) All of the rents, revenues, income, proceeds, royalties, profits and other benefits paid or payable for using, leasing, licensing, possessing, operating from or in or otherwise enjoying or using the Block 3 Land or Improvements prorated in accordance with the provisions hereof, and, (g) All security deposits, privileges, appurtenances and rights to the same belonging to and inuring to the benefit of the Improvements or the Block 3 Land, all of the above being hereinafter collectively referred to as the "Property" 2. PURCHASE PRICE. Subject to the terms and provisions hereof, City will pay to District in US currency at Closing a Purchase Price (hereinafter the "Purchase Price ") in the exact sum of Two Million One Hundred Thousand and No /100 ($2,100,000.00) Dollars as total compensation of and for the Property. 3. CONVEYANCE. The conveyance of the Improvements shall be made to City or as directed by City by General Warranty Deed, fully executed by District, conveying the Improvements subject only to the Permitted Exceptions, hereinafter defined; as to the Property described in Paragraph 1(a), (b) and (c) above by Bill of Sale, fully executed by District, free and clear of any liens, encumbrances and claims, as to the Property described in Paragraph 1(d) and (e) above by an Assignment of Contracts, Contracts, Leases, Subleases and Concessions in a form as approved by the City and has to all other items of Property by delivery at closing. 4. TITLE INSURANCE, SURVEY, ENVIRONMENTAL, REVIEW AND CURING DEFECTS. (a) Within twenty (20) calendar days from the date hereof, the District shall procure, at its expense, a Commitment for an Owner's Title Insurance Policy (the "Commitment ") issued by a Title Insurance Company (the "Title Company ") acceptable to the City, dated on or after the date hereof, describing the Block 3 Land including the Improvements, reflecting the City as the proposed insured and showing as the policy amount thereon the sum of $2,100,000.00 for the insured value. The Commitment shall assure to City that at Closing the Title Company will issue to the City a Form B -ALTA Owner's Policy of Title Insurance, reflecting fee simple absolute title in City subject only to any exceptions to or conditions of title approved and accepted by City (hereinafter referred to as the "Permitted -3- 2ndmaimdoc 10/07/97 02:26 PM SALE AND PURCHASE AGREEMENT 495 Exceptions "). The Title Company shall confirm, in writing, to City that the Owner's Policy of Title Insurance to be issued pursuant to the Title Commitment shall contain (i) extended coverage over all so -called general (or standard) exceptions customarily contained therein (including, without limitation, the exceptions pertaining to matters of survey (other than shortages in area) and mechanic's and materialman's liens), (ii) an access endorsement insuring that there is direct and unencumbered access for automobiles and commercial vehicles from the Block 3 Land to and from public rights -of -way, streets or roads adjoining the Block 3 Land, (iii) an endorsement or affirmative coverage insuring against the violation of any restrictive covenants affecting the Block 3 Land or that no forfeiture of reversion of title will occur as result thereof; (iv) if the Block 3 Land is comprised of more than one (1) parcel, a contiguity endorsement insuring contiguity of all parcels comprising the Block 3 Land and (v) such other endorsements as City may reasonably require. (b) Within twenty (20) calendar days from the date hereof, the District shall cause to be prepared and delivered to the City a boundary line survey of the Block 3 Land (the "Survey ") prepared by a licensed survey approved by the City. The cost of the Survey shall be paid by the District. The Survey shall be currently dated and shall meet the current minimum standard detail requirements of ALTA/ASCM Land Title Surveys adopted by ALTA and ASCM and shall contain a certificate in the form approved by the City and the Title Company addressed to City and the issuer of the Title Commitment. (c) In the event that the Title Commitment or Survey discloses any claim, lien, encumbrance, encroachment, matter, requirement, and/or exception to or condition of title which in City's opinion does (or could in the future) interfere with the use, operation or financing of the Block 3 Land and Improvements or if the Title Company indicates to City that it cannot provide the endorsements required in Section 4 (a) above, such matter shall be considered a "Title Defect(s)" hereunder and then City shall within ten (10) calendar days of City's receipt of the Title Commitment or Survey evidencing said Title Defect or Title Defects notify District in writing of the exact Title Defect or Title Defects about which City objects. Failure by City to so notify District in writing within such time period shall be conclusively deemed to be approval of and acceptance by City of all items, exceptions, conditions and matters shown in said Title Commitment. If City timely notifies the District of any Title Defects, the District may, but shall not be obligated to, prior to the Closing Date, cause such Title Defects to -4- 2mmmaiadoc 10/07/97 0226 PM = '= M M M M M r M M M M M M M SALE AND PURCHASE AGREEMENT be removed or insured over by the Title Company. If any Title Defect or Title Defects are not so removed or insured over by the Title Company to the satisfaction of the City prior to the Closing Date, City may, at its sole option and discretion, either (i) terminate this Agreement by written notice to the District and neither Party shall have further liability or obligation hereunder; or (ii) proceed to close and accept the title subject to the objectionable Defects. (d) Within twenty (20) calendar days from the date hereof, District, at District's sole expense, shall cause to be prepared and delivered to the City an Environmental Assessment (the "Environmental Assessment ") of the Block 3 Land and Improvements prepared by a company acceptable to the City. The Environmental Assessment shall be currently dated and shall be made for the use and benefit of the City. (e) In the event that the Environmental Assessment discloses any matter, requirement, and/or condition of the Block 3 Land and Improvements which in City's opinion does (or could in the future) interfere with the use, operation or financing of the Block 3 Land and Improvements, such matter shall be considered an "Environmental Defect(s)" hereunder and then City shall within ten (10) calendar days of City's receipt of the Environmental Assessment evidencing said Environmental Defect or Defects notify District in writing of the exact Environmental Defect or Defects about which City objects. Failure by City to so notify District in writing within such time period shall be conclusively deemed to be approval of the Environmental Assessment. If City timely notifies District of any Environmental Defects, District may, but shall not be obligated to, prior to the Closing Date, cause such Environmental Defects to be removed or remediated. If any Environmental Defect or Environmental Defects are not so removed or remediated by the District in accordance with mutually acceptable clean-up standards prior to the Closing Date or if, prior to closing, District declines to affirmatively commit to remove and/or remediate such Environmental Defects after the Closing Date in accordance with mutually acceptable clean-up standards, City may, at its sole option and discretion, either (i) terminate this Agreement by written notice to the District and neither Party shall have further liability or obligation hereunder; or (ii) proceed to close. -5- 2ndm,inaoc 10/07/97 02:26 PM .I ,, . r� � 0 0 SALE AND PURCHASE AGREEMENT 5. REPRESENTATIONS AND WARRANTIES OF DISTRICT. 5.1 In order to induce City to enter into this Agreement, District represents and warrants to City that as of the date of this Agreement and on the Closing Date: (a) There is no pending or threatened litigation, condemnation or similar proceeding affecting the Property, or any part thereof, nor, to the best of District's knowledge is any such proceeding or assessment contemplated by any governmental authority having jurisdiction; (b) District has not received any notice of any violation of any ordinance, regulation, law or statute of any governmental agency pertaining to the Property, or any part thereof, (c) District is fully authorized to sell the Property, and has good and marketable and insurable fee simple title thereto, free of any liens or encumbrances (or the Property will be free of all liens or encumbrances at the Closing), exceptions, conditions or encumbrances other than the Permitted Exceptions; (d) To the best of District's knowledge, there are no unpaid charges, costs or expenses for improvements in, on or upon the Property which might form the basis for a claim for or affixation of any type of mechanic's, materialmen's, laborer's, artisan's or other statutory lien; (e) There are no leases, agreements or contracts affecting or encumbering the Property, nor are there any outstanding options to purchase, or rights of first refusal to purchase, the Property, or any portion of the Property, other than as shown on Exhibit "C" attached hereto and District shall not enter into any other agreement or contract for the sale of the Property; (f) From the date of this Agreement until the Closing Date or earlier termination of this Agreement, District shall: (1) Not enter into any written or oral service contract or other agreement with respect to the Property that will not be performed by District on or before the Closing Date, or that will not be cancelable-by City upon not more than Thirty (30) calendar days' notice without liability after the Closing Date without the prior written consent of City in each instance; and E-9 2n& �doc 10/07/97 02:26 PM L_ q r r r� ■■I r r r �r r� r r r r SALE AND PURCHASE AGREEMENT (2) Not enter into any lease affecting the Property (g) The Property is not subject to assessment or collection of additional taxes for prior years based upon a change in land usage or ownership, and all taxes for years prior to the year of Closing have been paid in full. If such assessments are made or such additional taxes levied after Closing for the period of time prior to Closing, District shall pay such assessments and/or such additional taxes; and (h) there are no attachments, executions or assignments for the benefit of creditors, or voluntary or involuntary proceedings in bankruptcy or under any other debtor relief laws contemplated by or pending or, to the best of District's knowledge, threatened by or against District. 5.2 District represents that it is not a foreign person or foreign entity under the Foreign Investment in Property Tax Act of 1980, as amended ( "FIRPTA "), and no taxes or withholding under FIRPTA shall be assessed or applied to City in connection with the transaction contemplated hereby. 5.3 There is no fact known to District pertaining to the environmental condition of or environmental factors affecting the Property, except as may be set forth in Exhibit "D" hereto. To the best of District's knowledge, (i) neither the Property nor the operation thereof in accordance with the activities previously conducted thereon by District violates, or violated, any applicable laws, ordinances, codes, directives or regulations (including, without limitation, any zoning, building, fire, health code or environmental control laws, ordinances, codes or regulations) or any other restrictions affecting the use of the Property imposed by any governmental or quasi - governmental authority having jurisdiction over the Property, (ii) the improvements on the Property have been constructed in accordance with building permits issued by the appropriate authorities and final certificates of occupancy have been issued for such improvements, and (iii) the Property is free from structural defects and other defects which affect the use and operation of the Property and the improvements thereon in accordance with the activities previously conducted thereon by District, except in each instance for violations which would not have a material adverse effect on the Property. 5.4 To the best of District's knowledge, no activity has been undertaken on the Property which would cause (i) the Property or any portion thereof to become a hazardous waste treatment, storage or disposal facility within the meaning of CERCLA or RCRA, (ii) a release or threaten release of hazardous material from the Property within the meaning of CERCLA or RCRA, or (iii) the discharge of hazardous material from the -7- 2odm dw 10/07/97 02:26 PM r r MAII SALE AND PURCHASE AGREEMENT 0 Property into any watercourse, body of surface or subsurface water or wetland, or the discharge into the atmosphere of any hazardous material which require a permit under any hazardous material law and for which a permit was not obtained. 5.5 To the best of District's knowledge, no underground storage tanks or underground hazardous material deposits are or were located on the Property or any portion thereof except as disclosed in Exhibit "E" hereto and, in any case, which are duly licensed with the State of Arkansas or which have been removed or filled in accordance with all applicable laws, rules and regulations. 5.6 For a period of at least twenty-four (24) months prior to and through the Closing Date, District has caused to be maintained, in full force and effect, comprehensive general liability and property damage insurance coverage against all ordinary and insurable risks. District shall provide City with a certificate issued by the District's insurance carrier (or its agent) evidencing that the insurance coverages described above are and have during such 24 -month period been in full force and effect. 5.7 That the District is a duly organized and validly existing improvement district and authorized under and by virtue of the laws of the State of Arkansas, in good standing and with full power and authority to conduct the business which it conducts in the State of Arkansas. 5.8 That the District has the legal power and right to enter into and fully perform this Agreement, and the consummation of the transactions contemplated by this Agreement will not violate any provisions of law, or any rules, regulations or any other agreements to which District is a party. 5.9 Neither the Block 3 Land, the Improvements north E1 /2 of Block 3, Original City of Little Rock are now or will hereafter be assessed or taxed by the District. 6. ADDITIONAL CITY INSPECTIONS AND EXAMINATIONS. 6.1 City and its agents, representatives or those designated or retained by City shall have the continuing right, commencing immediately upon execution hereof until thirty (30) calendar days after receipt of the Title Commitment and Survey and legible copies of all exceptions to title in the Title Commitment and Survey (herein referred to as the "Inspection Period "), to enter upon the Property and physically inspect and examine the Property and determine, to City's sole satisfaction, that the Property is suitable for City's intended use and purposes. In the event City or its agents or representatives should determine that the Property is unsuitable for its intended use of same, or should City or its agents or representatives determine any defect in the Property or any improvements 10 2odm doc 10/07/97 02:26 PM M, M '= SALE AND PURCHASE AGREEMENT 500 thereon during the Inspection Period, City shag notify District of same and District shall have the opportunity, but not the obligation, to cure any such defect(s) to City's reasonable satisfaction within thirty (30) calendar days after the date of City's notice to District; otherwise, City shall, at its option, be entitled to terminate this Agreement, whereupon neither Party shall have any further obligation hereunder. 6.2 Provided that City has not terminated this Agreement pursuant to the terms hereof, City shall continue to have, and District shall so provide, access to the Property from and after the expiration of the Inspection Period, and until Closing. 7. OBLIGATIONS AT CLOSIN G. At or prior to the Closing, District shall deliver to City, or City shall deliver to District, as appropriate, the following documents: (a) General Warranty Deed in recordable form conveying good, insurable and marketable title to the Block 3 Land and Improvements to City, subject only to the Permitted Exceptions. A Bill of Sale and Assignment of Contracts and Leases in a form acceptable to the City. (b) True, correct and complete copies of the building permits and any other necessary governmental licenses, permits or approvals issued in connection with the construction and/or operation of the Property to the extent in District's possession. (c) True, correct and complete copies of the most recent real estate tax bills and notices of assessed valuation pertaining to the Property and evidence of the payment thereof. (d) To the extent accessible, as -built drawings, if any, of all improvements to the Property and of underground utilities (including sewers, water, irrigation systems and telephone and electric service cables) located under the Property. (e) An Affidavit executed by District stating (i) its taxpayer identification number, and (ii) that it is not a "foreign person" or "foreign entity" within the meaning of FIRPTA or Section 1445, et seq., of the Internal Revenue code of 1986, as amended. (fj Certificates issued by the District's insurance carrier or carriers (or District's Agent) evidencing that District has maintained in full force and effect, for a period of twenty-four (24) months prior to the date of this 2ndmein.doc 10/07/97 02:26 PM 0 0 SALE AND PURCHASE AGREEMENT Agreement, comprehensive general liability and property damage insurance coverage against all ordinary and insurable risks. (g) A certified copy of the Resolutions of the Board of Directors of District authorizing the execution and delivery by District of this Agreement, and the performance by District of the transactions contemplated hereby, together with evidence of authority of each person acting on behalf of District satisfactory to City. (h) A opinion letter of and from the District's attorney addressed to the City in the form and containing such opinions as are required by the City. (i) Such additional affidavits and instruments as may be required by the issuer of the Title Commitment to issue an Owner's Policy of Title Insurance to City, in accordance with the provisions of Paragraph 4(a) hereof, providing City the coverages herein set forth. 0) All Property deliverable at closing. 8. CLOSING. The terms Closing, Closing Date, Date of Closing and/or day of closing shall mean and be or such earlier or later date as mutually agreed upon in writing by both City and District; provided, however, that unless Closing occurs by , this Agreement shall automatically terminate unless extended in a writing signed by both the District and the City. The Closing shall be held at the offices of the City Attorney of the City or at such other location mutually agreed to by the District and City. 9. PRORATIONS, TAXES, ETC. On or at the Closing, Taxes, Special Assessments, and any other charges, due on or before the Closing Date shall be paid by District. Current Taxes, Special Assessments and any other charges shall be prorated as of the Closing Date based upon the last available tax statement. All fees, expenses and costs herein mentioned to be the District's shall be paid by the District. All fees, expenses and costs herein mentioned to be the City's shall be paid by the City. Each party shall pay one -half of any closing fees charged by any Escrow Closing Agent. The District shall pay one -half of all Real Estate Transfer taxes and the City shall pay one -half of all Real Estate Transfer taxes. Each party shall pay its own attorney's fees, if any, and such other fees and expenses incurred by or customarily charged to said party. Any adjustment of taxes, charges and assessments shall be upon the basis of 100% of the rate for the preceding year applied to the latest assessed valuation; there shall be a -10- 2odm doc 10/07/97 02;26 PM M M 501 = �= M M M MM M M M M / M 0 0 SALE AND PURCHASE AGREEMENT reproration of such tax, charge or assessment immediately upon receipt of the actual bill therefor; within ten (10) business days of the receipt of such bill, District shall pay City, or City shall pay District, as the case may be, any amount due the other Party as a result of such reproration. Charges for water, electricity, sewer, gas, telephone and other utilities for the Property accrued and unpaid as of Closing, will be paid by District on the basis of the most recent available bills (subject to readjustment on receipt of bills covering the period in which the Closing occurs) provided that District shall use its best efforts to procure final meter readings of such utilities as of the Closing and to have such bills rendered directly to District (District will deliver to City copies of any such bills rendered to District within five (5) business days after District's receipt thereof) and without affecting or seeking refund of any deposit necessary for provision of service; there will be such additional adjustments as are normally made in connection with the sale of similar facilities in the City of Little Rock, Pulaski County, Arkansas. Unless otherwise specifically provided in this Agreement, all adjustments shall be made on a per diem basis, as of midnight of the day preceding the Closing Date. In the event that, on the Closing Date, precise figures necessary for any of the foregoing adjustments are not capable of determination, the adjustment shall be made on the basis of the good faith estimates of the Parties, and final adjustments shall be made promptly after precise figures are determined or available. The covenants in this Agreement with respect to adjustment shall survive Closing, where applicable. Likewise any revenues, rentals, rents, income and profits derived of and from the Improvements shall be prorata as of the date of closing. To the extent actually received by the Seller prior to closing all advance payments of rental, other than for the month in which the closing occurs, and all security deposits, shall be delivered by the District to the City at closing. Any revenues, rentals, rents, income and profits derived of and from the Improvements received by the District on or after the closing shall be immediately delivered by the District to the City and all revenues, rentals, rents, income and profits received by the District after the closing shall be and remain the property of the City. All revenues, rentals, rents, income and profits derived of and from the Improvements for the month in which the closing occurs shall be prorated on a per diem basis, as of midnight of the day preceding the Closing Date. The District agrees that it will deliver at closing a full accounting of all revenues, rentals, rents, income and profits derived of and from the Improvements in order the proration contemplated hereby may be made. The covenants in this Agreement with respect to all prorations shall survive the closing. 10. SPECIAL CONDTITONS. The parties hereto further agree that: (a) All covenants, agreements, representations and warranties made hereunder or pursuant hereto or in connection with the transactions contemplated hereby shall survive the Closing and shall remain operative and shall not -11- 2adm doc 10107197 02:26 PM M M 5 ®2 SALE AND PURCHASE AGREEMENT merge into any conveyancing instrument delivered hereunder, regardless of any investigation by or on behalf of any party hereto. (b) Pending the Closing of this transaction, City shall exercise no control over the operation and management of the Property and the operations of the Property shall be District's sole responsibility. To and including the date of Closing, or any extension thereof, all risks of loss shall be borne by the District. (c) District will deliver possession of the Property at Closing. 11. CASUALTY AND CONDEMNATION. In the event that, prior to Closing, any portion of the Property is damaged by fire or other casualty or any eminent domain proceeding affecting the Property is commenced or threatened by a governmental entity having the power of eminent domain, District shall immediately give notice to the City thereof. If such casualty or proceeding would not result in a loss or diminution of value of the Property of more than $100,000.00 and all other conditions and covenants herein contained have been fully performed and observed, then the Closing shall take place as provided for herein and District shall affirmatively commit to restore or repair any damaged or lost Property or, in the case of an eminent domain proceeding, shall assign to City all of District's right, title and interest with respect to all awards, damages or other compensations arising from such proceeding. In the event, however, that the loss or diminution of value exceeds $100,000.00, then City may elect to terminate this agreement, by written notice to District, in which event neither Party will have any further liability hereunder or the City may elect to proceed to Closing and District shall affirmatively commit to restore or repair any damaged or lost Property or in the case of an eminent domain proceeding shall assign to City all of District's right, title and interest with respect to all awards, damages and compensation arising from such proceeding. 12. BROKERAGE. All negotiations relative to this Agreement have been conducted by and between the District and City without the intervention of any person as Agent or Broker. Accordingly the Parties agree to defend and do hereby indemnify and hold each other harmless from and against the claims, demands, actions and judgment of any and all other brokers, agents and other intermediaries alleging a commission, fee, or other payment due or owing by reason of any dealings, negotiations, or communications with the indemnifying party in connection with this Agreement or the sale contemplated hereby. -12- 2odvuin &C 10/07/97 02:26 PM M M 503 0 0 SALE AND PURCHASE AGREEMENT 13. DEFAULT. (a) In the event District shall be in default hereunder, the City's only remedy shall be to cancel this Agreement and neither Party shall have any further obligation or liability to the other. (b) In the event City shall be in default hereunder, the District's only remedy shall be to cancel this Agreement and neither Party shall have any further obligation or liability to the other. 14. LEASE AGREEMENT MODIFICATION. The Parties hereto covenant and agree that the Lease Agreement will be modified by an Addendum executed by the Parties at the closing which will remove the Block 3 Land and Improvements of and from the demise of the Lease Agreement, otherwise the Lease Agreement shall be and remain in full force and effect. 15. MISCELLANEOUS. (a) Any notice, consent, request, claim or other communication hereunder shall be in writing and shall be deemed to have been duly given if delivered or mailed by registered or certified mail, return receipt requested, to the following address shown for the respective party, unless changed by notice: TO District at: with copy to: and to City at: with copy to: (b) All statements contained in any certificate or other instrument delivered by or on behalf of the Parties pursuant hereto, or in connection with the transaction contemplated hereby, shall be deemed representations and warranties by the Party giving same and shall be subject to all limitations to representations and warranties as are contained in this Agreement. (c) This Agreement contains all the terms and conditions agreed upon by the Parties hereto with respect to the transactions contemplated hereby, and -13- 2ndmaindoc 10/07/97 02:26 PM M M A 0 0 SALE AND PURCHASE AGREEMENT 505 shall not be amended or modified except by written instrument signed by all of the parties. (d) This Agreement shall be binding upon and inure to the benefit of the representatives, heirs, estates and successors of the Parties hereto. (e) Nothing expressed or implied in this Agreement is intended, or shall be construed, to confer upon or give any person, firm or corporation, other than the Parties hereto and their successors, any benefits, rights or remedies under or by reason of this Agreement. (f) This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. (g) This Agreement shall be governed by and construed under the laws of the State of Arkansas. (h) In the event either Party to this Agreement shall employ legal counsel to protect its rights under this Agreement or to enforce any term or provision of this Agreement, then the Party prevailing in any such legal action shall have the right to recover from the other Party all of its reasonable attorneys' fees, costs and expenses incurred in relation to such claim. (i) The obligations and undertakings of the Parties hereto shall be performed within the time specified therefor, time being of the essence of this Agreement, and the failure to perform within such time shall constitute a breach of and default under this Agreement on the part of the Party who fails to perform. (j) Wherever in this Agreement it is provided that any Party shall or will make any payment or perform or refrain from performing any act or obligation, each such provision shall, even though not so expressed, be construed as an express agreement to make such payment or to perform or not to perform, as the case may be, such act or obligation. (k) Each Party and counsel for each party have reviewed this Agreement and, accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. -14- 2rxk�d« 10/07/97 02:26 PM SALE AND PURCHASE AGREEMENT 506 (1) The Parties hereto agree that notwithstanding the actual date of execution by each Party hereto the effective date of this Agreement from which all dates, time and days shall be calculated shall be and is the day of , 1997. DISTRICT: BY: TITLE: CITY: BY: TITLE: -15- 2odmaim doo 10107/97 02:26 PM