Document/Exhibit Description Pages Size
1: 10-K Conseco, Inc. 1993 Form 10-K 114 572K
4: EX-10.18.20 Exhibit 10.18.20 to Conseco, Inc. 1993 Form 10-K 9 50K
5: EX-10.18.21 Exhibit 10.18.21 to Conseco, Inc. 1993 Form 10-K 13 64K
6: EX-10.18.22 Exhibit 10.18.22 to Conseco, Inc. 1993 Form 10-K 13 59K
7: EX-10.18.23 Exhibit 10.18.23 to Conseco, Inc. 1993 Form 10-K 5 30K
8: EX-10.18.24 Exhibit 10.18.24 to Conseco, Inc. 1993 Form 10-K 7 29K
9: EX-10.18.25 Exhibit 10.18.25 to the Conseco, Inc. 1993 Form 9 50K
10-K
10: EX-10.23.1 Exhibit 10.23.1 to Conseco, Inc. 1993 Form 10-K 10 31K
11: EX-10.24.1 Exhibit 10.24.1 Conseco, Inc. 1993 Form 10-K 8 31K
12: EX-10.25 Exhibit 10.25 to Conseco, Inc. 1993 Form 10-K 18 89K
13: EX-10.32 Exhibit 10.32 to Conseco, Inc. 1993 Form 10-K 35 146K
14: EX-10.33.1 Exhibit 10.33.1 to Conseco, Inc. 1993 Form 10-K 30 162K
15: EX-10.33.2 Exhibit 10.33.2 to Conseco, Inc. 1993 Form 10-K 27 145K
16: EX-10.34 Exhibit 10-34 to Conseco, Inc. 1993 Form 10-K 18 84K
2: EX-10.8.5 Exhibit 10.8.5 to Conseco, Inc. 1993 Form 10-K 2± 10K
3: EX-10.8.6 Exhibit 10.8.6 to Conseco, Inc. 1993 Form 10-K 2± 12K
17: EX-11.1 Exhibit 11.1 to Conseco, Inc. 1993 Form 10-K 2± 12K
18: EX-11.2 Exhibit 11.2 to Conseco, Inc. 1993 Form 10-K 1 11K
19: EX-12.1 Exhibit 12.1 to Conseco, Inc. 1993 Form 10-K 2± 14K
20: EX-12.2 Exhibit 12.2 to Conseco, Inc. 1993 Form 10-K 2± 14K
21: EX-21 Exhibit 21 to Conseco, Inc. 1993 Form 10-K 1 9K
22: EX-23 Exhibit 23 to Conseco, Inc. 1993 Form 10-K 1 9K
EX-10.18.21 — Exhibit 10.18.21 to Conseco, Inc. 1993 Form 10-K
Exhibit Table of Contents
AGENCY AGREEMENT
THIS AGREEMENT, entered into by and between Bankers
National Life Insurance Company, a Texas corporation ("Bankers")
and Browning Investments, Inc., an Indiana corporation ("Agent"),
WITNESSES THAT:
WHEREAS, Bankers desires to acquire certain real estate
in Carmel, Indiana commonly known as 11790 North College Avenue
(the "Real Estate");
WHEREAS, Agent is willing to act for and on behalf of
Bankers in its efforts to acquire the Real Estate by (a) entering
into a contract to purchase the Real Estate ("Purchase Contract")
as agent for Bankers as an undisclosed principal, (b) obtaining
such surveys, tests, examinations and/or investigations of the Real
Estate as Bankers shall request or Agent deems prudent,
(c) entering into an agreement with the current tenant of the Real
Estate to terminate its lease and hold tenant harmless ("Lease
Termination"), as agent for Bankers as an undisclosed principal,
and (d) prior to Closing assigning its interest in the Purchase
Contract and Lease Termination (together the "Contracts") to
Bankers and assisting Bankers in closing the purchase of the Real
Estate and termination of the lease, all upon the terms and
conditions hereinafter set forth;
NOW, THEREFORE, Bankers and Agent, in consideration of
the respective promises and actions to be taken by each as
hereinafter described, agree as follows:
1. Acquisition. Subject to the provisions of this
Agreement, Agent shall at all times use its best efforts to secure
the Purchase Contract and Lease Termination substantially upon the
terms and conditions contained in Exhibit A attached hereto. Upon
execution of the Purchase Agreement and Lease Termination
Agreement, Agent shall promptly notify Bankers and provide it with
a fully executed copy thereof.
2. Agency Capacity. In endeavoring to secure the
Purchase Agreement and Lease Termination Agreement, Agent shall at
all times be acting for the account of and on behalf of Bankers and
not for its individual account and benefit, excepting that Bankers
acknowledges and agrees that Seller under the Purchase Agreement
shall pay Agent, in its capacity as broker and not as agent, a
brokerage commission as provided for in the Purchase Contract
attached hereto as Exhibit A.
3. Performance of Contracts. Agent shall use
reasonably prudent judgment prior to waiving any conditions to the
performance of its obligations under the Contracts and may in its
discretion seek Bankers' prior consent. Agent shall use reasonably
diligent efforts to keep Bankers informed of the progress of
satisfaction of the conditions to closing.
4. Site Investigations. Agent shall cause to be
performed by companies acceptable to Bankers such surveys, tests,
examinations and/or investigations of the Real Estate as Agent
deems prudent or as Bankers shall direct, which directions may be
verbal, but shall be confirmed in writing promptly after having
been given. Any such surveys or written reports of such tests,
examinations or investigations shall be expressly certified to the
undisclosed principal of Agent and any nominee of such principal
acquiring title to the Real Estate or shall otherwise expressly
acknowledge that such principal and nominee shall be entitled to
rely thereon to the same extent as if such principal or nominee had
obtained such surveys or reports directly. Agent shall forward to
Bankers copies of all such surveys and reports or other written
information with respect to such tests, examinations and/or
investigations and shall furnish Bankers with copies of any and all
other information obtained by Agent pursuant to the Contracts. All
costs and expenses payable by Agent to the companies performing
such surveys, tests, examinations or investigations shall be
included within Project Costs as hereinafter defined, and shall be
payable by Bankers to Agent.
5. Cost Statements. Agent shall submit to Bankers
twenty-four (24) hours prior to closing an itemized statement (the
"Cost Statement") of all amounts due and payable at Closing under
the Contracts and for Project Costs, and its good faith estimate of
those Project Costs which will become due and payable after
Closing. At Closing, Bankers shall pay such sums to Agent or the
applicable party under the Contracts. Agent shall pay all bills
and invoices which are Project Costs promptly upon payment from
Bankers and shall furnish Bankers with proof of such payment upon
request. If post closing Project Costs differ from Agents good
faith estimate, Agent and Bankers shall reconcile such sums within
sixty (60) days after Closing. "Project Costs" shall mean all
costs and expenses incurred by Agent in connection with the Real
Estate, the Contracts and this Agreement, including, without
limitation, legal and other professional fees.
6. Agent's Compensation. In addition to reimbursement
of Project Costs, as consideration for the services rendered by
Agent pursuant to this Agreement, Bankers shall pay Agent, in
immediately available funds at Closing, ten percent (10%) of the
lease termination fee received by Bankers from the current tenant
of the Real Estate.
7. Default. If Bankers or Agent fails to satisfy any
of their respective obligations under this Agreement, and such
failure continues for fifteen (15) days after written notice
thereof from the other party, then the other party may terminate
this Agreement (subject to Bankers' continued indemnity obligations
pursuant to paragraph 8 below) or exercise any other right or
remedy hereunder or at law or in equity.
8. Indemnification. Bankers shall defend, indemnify
and hold Agent, its parents and affiliates, and its or their
respective officers, directors and employees (collectively, the
"Agent Indemnities"), harmless from and against any and all third-
party claims or liabilities and all losses, damages, suits, costs,
fees, charges, commissions and expenses in connection therewith
(including, without limitation, reasonable attorneys' fees)
(collectively, for purposes of this paragraph 8, the "third-party
liabilities") arising out of or alleged to arise out of
(a) appraisals, surveys, tests, examinations and/or investigations
of the Real Estate (or any part thereof) which Agent shall cause to
be performed, (b) the termination of any Contract by Agent at the
direction of Bankers or the nonperformance by Agent, at the
direction of Bankers, of its obligations under any Contract,
(c) the nondisclosure by Agent that it is acting for the account of
and on behalf of Bankers in the purchase of the Real Estate and
performance of the services contemplated by this Agreement, (d) the
failure of Bankers to pay any amounts to be paid by it under this
Agreement, or (e) directly or indirectly, Agent's performance of
its obligations under this Agreement. Such indemnity and
obligation to defend shall be effective regardless of whether the
third-party liabilities are caused or alleged to be caused by the
negligence (including the concurrent or sole and exclusive
negligence), breach of contract, strict liability or other breach
of duty of any Agent Indemnitee, but shall not apply or extend to
third-party liabilities caused or alleged to be caused by the
reckless conduct, fraud or willful or wanton misconduct of any
Agent Indemnitee. This indemnity shall survive the termination of
this Agreement.
9. Assignment. Prior to Closing, Agent shall assign
its interest under the Contracts to Bankers or a nominee of Bankers
and Bankers or a nominee of Bankers shall assume the liabilities
thereunder and take title to the Real Estate at Closing.
10. Governing Law. This Agreement shall be governed,
construed and enforced in accordance with the laws of the State of
Indiana. In the event any suit or action is brought under or in
connection with this Agreement, such suit or action shall be
brought in a court in the State of Indiana, and Agent hereby
consents and submits itself to the jurisdiction of such court and
agrees to service of process by courts located in Indiana.
11. Entire Agreement. This Agreement contains all of
the agreements, representations and warranties of the parties
hereto with respect to the specific subject matter hereof (but not
as to any other matters) and supersedes all prior discussions,
understandings or agreements with respect to the specific subject
matter hereof. This Agreement may not be amended or modified
except by an instrument signed by the parties hereto.
12. No Warranties. Agent, in performing its services
under this Agreement, makes no representations or warranties,
express or implied, with respect to the environmental, structural,
mechanical or other condition or present or future value of the
Real Estate.
13. Attorneys' Fees. The prevailing party in any legal
proceeding brought by or against the other party under or in
connection with this Agreement shall be entitled to recover court
costs and reasonable attorneys' fees from the non-prevailing party.
14. Authority. The undersigned persons executing this
Agreement on behalf of Agent and Bankers, respectively, represent
and certify that (a) they are fully empowered and duly authorized
by all necessary action of Agent or Bankers, respectively, to
execute and deliver this Agreement and (b) this Agreement is the
legal, valid and binding obligation of Agent or Bankers,
respectively.
IN WITNESS WHEREOF, the parties have caused this
Agreement to be executed this 17th day of December, 1993.
BANKERS NATIONAL LIFE INSURANCE
COMPANY
By:/s/ DONALD F. GONGAWARE
________________________________
Printed Name: Donald F. Gongaware
Title: President and Chief Operating Officer
BROWNING INVESTMENTS, INC.
By: /s/ F. RICHARD REMBUSCH
--------------------------------
Printed Name: F. Richard Rembusch
Title: Executive Vice President
CONTRACT FOR PURCHASE OF REAL ESTATE
OFFER TO PURCHASE REAL ESTATE
BROWNING INVESTMENTS, INC. on behalf of its nominee or assignee
("Purchaser"), hereby offers to purchase from CONGRESSIONAL BOULEVARD
INVESTORS, INC. ("Seller") all of that certain real estate owned by Seller,
commonly known as 11790 North College Avenue, Carmel, Indiana, consisting of
approximately 12.970 acres (the legal description of which real estate will be
subject to precise determination by survey as provided in Section 7.1 below),
together with all buildings, improvements, tangible personal property and
fixtures located thereon, attached to or used in connection therewith, all
rights, privileges and appurtenances thereto, Seller's interest in and to that
certain lease between Seller as landlord and Wal-Mart Stores, Inc. (successor
to the Wholesale Club, Inc.) as tenant (the "Wal-Mart Lease"), together with
any and all other leases, and all rents, security deposits, licenses and/or
permits with respect thereto, seller's interest in all service, maintenance,
management or other contracts (if accepted by purchaser and otherwise
terminated) relating to the ownership or operation thereof and Seller's
interest in all warranties or guaranties relating thereto, (collectively
referred to as the "Real Estate"), for Three Million Seven Hundred Thousand
Dollars ($3,700,000.00) (the "Purchase Price"), subject to and upon the
following terms and conditions:
1. Earnest Money Deposit. Immediately upon acceptance of this Offer by
Seller (the "Acceptance Date"), Purchaser shall deposit Five Thousand Dollars
($5,000.00) (the "Earnest Money") with Hamilton Title Security, Inc., an agent
for Ticor Title Insurance Corporation (the "Title Insurer"). PURCHASER SHALL
FORFEIT THE EARNEST MONEY TO SELLER IF PURCHASER FAILS OR REFUSES TO
PERFORM ITS OBLIGATIONS HEREIN SPECIFIED AND ALL CONDITIONS AND REQUIREMENT OF
THIS CONTRACT HAVE BEEN SATISFIED. Such forfeiture of Earnest Money shall
constitute liquidated damages and shall be Seller's sole remedy at law or in
equity. The Earnest Money otherwise shall be refunded or forfeited in
accordance with the terms contained in this Offer, and, if all of the terms and
conditions of this Offer are satisfied or waived and the transaction is
closed, then the Earnest Money shall be applied to the Purchase Price.
2. Payment of Purchase Price. On closing this transaction, Purchaser shall
pay Seller the Purchase Price, less the Earnest Money and any other credits,
reductions or prorations for which this Contract provides.
3. Closing Date. Subject to all other terms and conditions set forth in this
Contract, the transaction shall be closed not later than ten (10) days after
the expiration of the period referred to in Section 7.3, with the exact date
of closing (the "Closing Date") to be specified by Purchaser in a written
notice delivered to Seller, it being the intent of the parties that both
Purchaser and Seller shall use all good faith efforts to close this transaction
prior to December 31, 1993. The closing will take place at the office of the
Title Insurer or such other place as the parties may mutually agree upon in
writing.
4. Closing Documents. At closing, Seller shall deliver: (a) a fully
executed General Warranty Deed conveying to Purchaser merchantable and
marketable fee simple title to the Real Estate free of any and all liens,
encumbrances, easements, restrictions, covenants or other title defects, except
the lien of nondelinquent real estate taxes and other matters, if any,
disclosed in the Title Commitment (as hereinafter defined) and accepted by
Purchaser in writing; (b) a vendor's affidavit in form and substance
satisfactory to Purchaser and the Title Insurer; (c) a non-foreign person
affidavit in form and substance satisfactory to Purchaser and the Title
Insurer; (d) a Bill of Sale with warranty of title to any and all personal
property comprising a portion of the Real Estate; (e) an assignment of all
warranties and bonds related to the Real Estate; and (f) all other documents
and/or funds, if any, required from Seller to convey the Real Estate to
Purchaser. At Closing, Purchaser and tenant under the Wal-Mart Lease shall
execute a Termination of Lease under terms and conditions mutually satisfactory
to Purchaser and such tenant.
5. Date of Possession. Possession of the Real Estate shall be delivered to
Purchaser on the Closing Date, free and clear of all rights and claims of any
other party to the possession, use or control of the Real Estate excepting
only tenant under the Wal-Mart Lease.
6. Taxes and Assessment. Purchaser assumes and agrees to pay all
assessments for governmental and private improvements becoming payable after
the Closing Date and installments of real estate taxes first payable in 1994
and thereafter. Seller shall pay all assessments for governmental and private
improvements not assumed by Purchaser and both installments of real estate
taxes payable in 1993. Seller shall pay all common area expenses attributable
to the Real Estate for the period through December 31, 1993.
7. Conditions of Performance. Purchaser's obligations under this Contract are
subject to the timely and complete satisfaction of the following conditions,
unless waived in writing by Purchaser.
7.1 Survey. Seller, at its cost and expense and within fifteen (15) days
after the Acceptance Date, shall provide Purchaser with a survey of the Real
Estate satisfactory to Purchaser, conforming to the Minimum Standards for an
Indiana Land Title Survey, certified as of a current date by Schneider
Engineering Corporation, stating that the Real Estate is not located in a flood
plain, showing no encroachments on the Real Estate, showing that the
improvements are located entirely within the bounds of the Real Estate and
showing all on- and offsite easements affecting the Real Estate. The survey
shall establish the precise perimeter legal description of the Real Estate.
In the event Seller fails to provide Purchaser with a survey as and when
required under this Section 7.1, Purchaser shall have the right to obtain the
survey at Seller's expense, or credit the cost thereof against the Purchase
Price.
7.2 Title Insurance. Seller, at its cost and expense and within fifteen (15)
days after the Acceptance Date, shall provide Purchaser with a title insurance
commitment for the Real Estate issued by the Title Insurer, in which commitment
the Title Insurer shall agree to (a) insure for the full amount of the Purchase
Price merchantable and marketable fee simple tile to the Real Estate in the
name of Purchaser, free of all exceptions (including without limitation, the
standard exceptions), except only the lien of nondelinquent real estate taxes
and assessments and any other matters that Purchaser may accept in writing and
(b) issue such endorsements as Purchaser may reasonably request (including,
without limitation endorsements insuring access to the Real Estate from and to
all adjacent streets and highways, and a 3.1 zoning endorsement)(the "Title
Commitment"). At closing, Seller, at its cost and expense, shall deliver to
Purchaser an owner's policy of title insurance issued by the Title Insurer in
conformity with the Title Commitment. In the event the Seller fails to provide
Purchaser with the Title Commitment as and when required under this Section
7.2, Purchaser shall have the right to obtain the Title Commitment at Seller's
expense, or credit the cost thereof against the Purchaser Price.
7.3 Condition of Real Estate. Purchaser, at its cost and expense and within
twenty (20) days after receipt of the title and survey pursuant to 7.1 and 7.2
above, shall have determined, in its sole discretion, that: (a) the Real Estate
enjoys rights of access to and from public ways, roads and streets which are
adequate for Purchaser intended use and development; (b) the remodeling of any
of the buildings and/or other improvements located on or in the Real Estate
will not violate any applicable laws, statutes, ordinances, rules or
regulations or require extraordinary or unusually costly techniques; (c) the
Real Estate is suitable for and will support and permit Purchaser's intended
use and development; (d) the prospects for the obtaining of all other permits
and approvals, public and private, necessary for Purchaser's intended use and
development, are satisfactory to Purchaser; (e) no tenant or any other party
has any rights or claims to possession of the Real Estate; (f) the Real Estate
is free and clear of any and all asbestos, toxic or hazardous material or
containment and/or the material threat of contamination thereby; (g) all
buildings and other improvements and all mechanical components thereof are
structurally sound, in good working order and in compliance with all
applicable governmental laws, ordinances, regulations, orders and
requirements; and (h) all utilities useful for Purchaser's intended use and
development (including, if applicable, storm and sewer drainage, water,
electric, gas, and telephone) are available at the property lines in sufficient
quantities, pressures and/or capacities for Purchaser's intended use, without
hookup, tap in or other charges, excepting only nominal charges normally
incurred and charged by the applicable public utility.
7.4 Litigation and Representations. As of the Closing Date, no action or
proceeding before a court or other governmental agency or officer shall be
pending (and to the best of either Seller's or Purchaser's knowledge, no
such action or proceeding shall be threatened) that might impair the value of
the Real Estate or prevent Purchaser from undertaking and completing
Purchaser's intended use and development of the Real Estate. As of the Closing
Date, the representation and warranties set forth in Section 9 shall be true
and accurate.
7.5 Lease Termination Agreement. As of the Closing Date, Purchaser shall
have a binding and enforceable agreement with tenant under the Wal-Mart Lease,
pursuant to which Purchaser shall in a simultaneous closing terminate the
Wal-Mart Lease for a termination fee of One Million Dollars ($1,000,000.00).
8. Nonperformance. In the event that one or more of the conditions set forth
in Section 7 are not timely and completely satisfied, Purchaser may cancel this
Contract and all of its obligations hereunder by written notice to Seller, in
which event, all Earnest Money deposited shall be immediately refunded to
Purchaser.
9. Representations and Warranties. Seller hereby represents and warrants to
Purchaser that (a) there is no condemnation or similar proceeding which is
pending or threatened against the Real Estate or any part thereof; (b) Seller
has not received any notification from any governmental agency, authority or
instrumentality of any pending or threatened assessments on or against the Real
Estate for the cost of public improvements to be made with respect to the Real
Estate or any part thereof; (c) after the Acceptance Date, Seller will not
enter into any lease or other agreement affecting the Real Estate or the
possession, use or control thereof; (d) after the Acceptance Date, Seller
will not create, permit or suffer any lien or other encumbrance to attach to
or affect the Real Estate and improvements thereon, except for the lien of
nondelinquent real estate taxes; (e) to the best of Seller's knowledge and
belief there are no underground fuel, chemical or other storage tanks located
in the Real Estate; and (f) to the best of Seller's knowledge and belief the
Real Estate has not been used for the treatment, storage or disposal of or
otherwise contaminated by any hazardous or special wastes, substances,
materials, constituents, pollutants or contaminants (as defined by federal,
state or local laws, statutes, ordinances, rules or regulations).
10. Damage and Condemnation. If at any time after the Acceptance Date (a)
the buildings or improvements located on the Real Estate shall be damaged or
destroyed, (b) the Real Estate shall be condemned, in whole or in part,
or (c) any notice of condemnation shall be given, then Purchaser, at its sole
option, may cancel the Contract or proceed with closing. If Purchaser elects
to proceed with closing, then Purchaser may (a) apply the proceeds of any
condemnation award or insurance policy to reduce the Purchase Price or (b)
accept an assignment of such proceeds. If Purchaser elects to cancel this
Contract, as provided in this Contract, all Earnest Money deposited shall
be immediately refunded to Purchaser.
11. Inspection. Purchaser, its employees, agents and independent
contractors shall have the right from time to time to enter upon the Real
Estate and conduct all surveys, tests, inspections and examinations which
Purchaser deems necessary. Seller, at its cost and expense and within ten (10)
days after the Acceptance Date, shall provide Purchaser with copies of all
plans, specifications, contracts, warranties, service agreements, and other
documents in Seller's possession or control pertaining to the construction,
operation or maintenance of the Real Estate.
12. Notices. All notices shall be deemed delivered to Seller when
deposited in the U.S. Mail, addressed to Seller at Mr. George X. Cannon,
Congressional Boulevard Investors, Inc., 950 North Meridian Street, Suite 200,
Indianapolis Indiana 46204, and to Purchaser when so deposited and addressed
to Purchaser at 11550 North Meridian Street, Carmel, Indiana 46032, Attn: F.
Richard Rembusch.
13. Specific Performance. Seller agrees that money damages are not an
adequate remedy for breach of this Contract by Seller, and, in addition to any
other remedies available to Purchaser in the event of a breach by Seller,
Purchaser shall be entitled to (a) the remedy of specific performance to
enforce the terms hereof, (b) cure Seller's breaches of any representation,
warranty or other provision of this Contract, and/or expend amounts or take any
other action to cure and remove any title defect created, permitted or suffered
by Seller after the Acceptance Date and not permitted hereunder, and/or (c)
cancel this Contract and all of its obligations hereunder by written notice to
Seller, in which event all Earnest Money deposited shall be immediately
refunded to Purchaser. Any and all amounts incurred by Purchaser to cure or
remove Seller's breaches and/or title defects shall be credited against the
Purchase Price at closing
14. Brokers. Purchaser and Seller each hereby represent and warrant that
they have not dealt with any broker in connection with the sale and purchase
of the Real Estate excepting only that Seller shall pay Browning Investments,
Inc. a broker's fee of three percent (3%) of the Purchase Price. Purchaser and
Seller hereby further represent and warrant that no fee, commission or similar
compensation shall be payable by Seller or Purchaser to any Broker or any other
person, as a result of the purchase and sale of the Real Estate except
Seller's obligation to Browning Investments, Inc. as set forth in the preceding
sentence.
15. Nominee. On or before the Closing I)ate, Purchaser shall have the right
to assign all or any portion of its rights under this Contract to any nominee
or assignee of Purchaser; provided, however, that Purchaser shall remain liable
to perform its obligations under this Contract, and further provided that such
assignment shall not include Browning Investment Inc.'s right to receive a
broker's commission as provided for in paragraph 14 above..
16. Survival and Indemnity. All representations and warranties set forth in
this Contract shall survive the closing, and Seller and Purchaser shall each
indemnify and hold the other harmless from and against all costs and damages
(including attorneys' fees and court costs) incurred as a result of any breach
of any representation or warranty by Seller or Purchaser, respectively.
17. General. The terms and provisions of this Contract shall be governed and
construed in accordance with the laws of the State of Indiana. The captions and
section numbers shall not be considered in any way to affect the interpretation
of this Contract. This Contract shall be binding upon and inure to the benefit
of the parties hereto and their respective successors, assigns, heirs, and
personal representatives. This Contract is the final expression of the complete
and exclusive agreement between Seller and Purchaser and supersedes all prior
offers, negotiations and discussions. The term "Contract" as used herein means
the contract arising between the parties on the terms of this Offer after
acceptance by Seller.
18. Authority. Except as expressly provided otherwise herein, each
undersigned person signing on behalf of any party that is a corporation,
partnership or other entity certifies that (a) he is fully empowered and duly
authorized by any and all necessary action or consent required under any
applicable articles of incorporation, bylaws, partnership agreement or other
agreement to execute and deliver this Contract for and on behalf of said party,
(b) that said party has full capacity, power and authority to enter into and
carry out its obligations under this Contract, and (c) that this Contract has
been duly authorized, executed and delivered and constitutes a legal, valid and
binding obligation of such party, enforceable in accordance with its terms.
19. Recording. This Contract shall not be recorded. However, upon request by
Purchaser, Seller shall execute a deliver to Purchaser, duplicate originals of
a memorandum of this Contract, in recordable form, satisfactory to Purchaser,
in its sole discretion.
20. Attorneys' Fees. Either party to this Contract who is the prevailing
party in any legal or equitable proceeding against any other party to this
Contract brought under or with relation to the Contract or the transaction
contemplated hereby shall, in addition to any other remedy at law or provided
for herein, be entitled to recover court costs and reasonable attorneys' fees
from the nonprevailing party.
21. Duration of Offer. This Offer shall expire if written acceptance endorsed
herein is not delivered to Purchaser at the address specified in Section 12 on
or before November 30, 1993.
This Offer to Purchaser is hereby executed this day of 1993,
as to Purchaser.
PURCHASER: BROWNING INVESTMENTS, INC.
By: /s/ MICHAEL G. BROWNING
--------------------------
Printed: Michael G. Browning
Title: President
ACCEPTANCE OF OFFER
Seller hereby accepts the foregoing Offer on this 30th day of November, 1993
SELLER: CONGRESSIONAL BOULEVARD INVESTORS, INC.
By: /s/ JAMES C. MAY
-----------------------------
Printed: James C. May
Title: President
EXHIBIT B
AGREEMENT FOR TERMINATION OF LEASE
This Agreement for Termination of Lease ("Agreement") made this ____
day of December, 1993 by and between Browning Investments, Inc. ("BII"), an
Indiana corporation as prospective successor in interest to Congressional
Boulevard Investors, Inc. ("Existing Landlord") and The Wholesale Club, Inc.
("Tenant"), WITNESSES that:
WHEREAS, BII is the contract purchaser of certain real property more
particularly described on Exhibit A attached hereto and incorporated herein by
this reference and commonly known as 11790 North College Avenue, Carmel,
Indiana (the "Leased Premises") pursuant and subject to the terms and
conditions of a certain contract for purchase of real estate between BII and
Existing Landlord dated November 30, 1993 ("Purchase Contract");
WHEREAS, Existing Landlord and Tenant entered into a certain lease
agreement (the "Lease") dated August 4, 1987 for the Leased Premises;
WHEREAS, Tenant has vacated the Leased Premises under the Lease, but
has continued to pay rent and perform its other obligations under the Lease;
WHEREAS, Tenant desires to terminate and be relieved of its
obligations under the Lease;
WHEREAS, BII, upon consummation of its purchase of the Leased
Premises, is willing to accommodate Tenant's desire upon certain terms and
conditions set forth herein;
NOW THEREFORE, in consideration of the premises, the mutual covenants
contained herein and each act to be performed hereunder, the parties agree,
subject only to the closing of the sale by Existing Landlord to BII of the
Leased Premises on or prior to December 31, 1993, as follows:
1. Surrender. Tenant agrees to surrender possession of the Leased
Premises in broom clean condition (including removal of freezers and coolers,
an 8112 G-2 alarm panel and associated equipment, and a "cram-a-lot"
compactor), together with delivery of all keys, plans, specifications, manuals,
warranty information, and all other construction, maintenance and operation
documents and equipment related to the Leased Premises to the extent the same
is in Tenant's possession or under its control, including all fixtures,
equipment and personal property attached thereto or located thereon and used
in connection therewith, to BII on the same date as BII's purchase of the
Leased Premises (the "Effective Date"). BII, its employees, agents and
independent contractors shall have the right from time to time after the date
hereof to enter upon the Leased Premises to conduct such inspections, tests and
examinations as BII deems necessary, provided that BII shall indemnify, defend
and hold Tenant harmless from all expenses, damages, liabilities (including
attorneys fees and court costs) and third party claims associated with such
inspections, tests and examinations, which indemnity shall survive the closing
of the lease termination.
2. Proration. BII and Tenant agree that all items of expense
regarding the use, operation and business of the Leased Premises, which cannot
be or are not terminated as of the Effective Date shall be prorated between BII
and Tenant as of the Effective Date with Tenant to pay all items through and
including the Effective Date. Utility service shall be transferred and placed
in the name of BII as of the Effective Date and Tenant shall pay all utility
expenses through the Effective Date. Tenant shall identify and provide copies
of all contracts and agreements affecting the Leased Premises to BII by
December 20, 1993 and shall, at its cost, terminate all such contracts and
agreements as of the Effective Date unless specifically requested otherwise by
BII. In addition, Tenant shall, pursuant to paragraph 20 of the Lease, pay BII
at closing so much of the real estate taxes for 1993 due and payable in 1994
as shall be allocable to Tenant by proration as of the Effective Date. The
current tax rate shall be used for the purposes of such proration if the
applicable tax rate has not been set. The Base Rent for the month of December
1993, shall not be prorated.
3. Termination Fee. In addition to other sums due BII at closing
under this Agreement, Tenant shall pay BII One Million Dollars ($1,000,000).
4. Lease Termination. Upon the Effective Date, delivery of the
Leased Premises pursuant to Section 1 of this Agreement, and payment to BII,
in immediately available funds, of all sums due pursuant to Sections 2 and
3 of this Agreement, BII and Tenant shall release each other from any and all
of its obligations arising under the Lease pursuant to the form of Release and
Termination of Lease ("Release") attached hereto as Exhibit B. It is
anticipated that the closing shall be by escrow pursuant to which Tenant
shall deliver the executed Release and wire sufficient funds to Hamilton Title
Security, Inc., 11711 North Pennsylvania, Suite 110, Carmel, Indiana, such
Release and funds to be delivered to BII upon BII's purchase of the Leased
Premises pursuant to the Purchase Contract and execution of the Release.
5. Waiver of Right of First Refusal. Tenant hereby waives its
right of first refusal and right of purchase under Article XIX of the Lease as
such rights pertain to BII's purchase of the Leased Premises.
6. Nominee. On or before the Effective Date, BII shall have the
right to assign or transfer all of its rights under this Agreement to any
nominee or assignee of its rights under the Purchase Contract.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date indicated above.
THE WHOLESALE CLUB, INC. BROWNING INVESTMENTS, INC.
By: ________________________ By: _________________________
Printed: ___________________ Printed: ____________________
Its: _______________________ Its: _________________________
EXHIBIT A
LEGAL DESCRIPTION
Part of the Southwest Quarter of Section 36 and part of the Southeast
Quarter of Section 35 in Township 18 North, Range 3 East of the Second
Principal Meridian in Hamilton County, Indiana, being more particularly
described as follows:
Commencing at the Southwest corner of the said Southwest Quarter Section;
thence North 89 degrees 07 minutes 52 seconds East (Assumed Bearing) along the
South Line of the said Southwest Quarter Section 148.00 fee; thence North 00
degrees 16 minutes 22 second West, parallel with the West line of the said
Southwest Quarter Section 734.0 feet; thence North 89 degrees 07 minutes 52
second East, parallel with the said South Line 450.06 feet; thence North 00
degrees 16 minutes 22 seconds West, parallel with the said West Line, 763.27
feet to the Beginning Point; thence South 89 degrees 07 minutes 52 seconds West
432.11 feet; thence South 60 degrees 05 minutes 00 seconds West 335.00 feet to
a curve having a radius of 500.0 feet, the radius point of which bears South
60 degrees 05 minutes 00 seconds West; thence Northwesterly along the said
curve 281.57 feet to a point which bears North 27 degrees 49 minutes 03 seconds
East 343.29 feet; thence North 88 degrees 57 minutes 26 seconds East, parallel
with the thence South 00 degrees 16 minutes 22 seconds East, parallel with the
said west line 490.00 feet to the Beginning Point, containing 12.970 acres,
more or less.
EXHIBIT B
RELEASE AND TERMINATION OF LEASE
This Release and Termination of Lease made this _____ day of
December, 1993, by and between _________________________, successor in interest
to Congressional Boulevard Investors, Inc. ("Landlord") and The Wholesale Club,
Inc. ("Tenant"), WITNESSES THAT:
WHEREAS, the predecessor in interest to Landlord and Tenant entered
into a certain lease ("Lease") dated August 4, 1987 with respect to leased
premises (the "Leased Premises") situated at 11790 North College Avenue,
Carmel, Indiana, a memorandum of which Lease was recorded in the Recorder's
Office of Hamilton County, Indiana as Instrument No. 87-29183 on August 10,
1987; and
WHEREAS, Tenant has vacated the Leased Premises and desires to
terminate and be relieved of its obligations under the Lease; and
WHEREAS, Landlord desires to accept the Leased Premises and terminate
and be relieved of its obligations under the Lease;
NOW THEREFORE, in consideration of the premises Tenant surrenders
possession of the Leased Premises to Landlord and Landlord accepts the
surrender thereof "as is" as of the date hereof (excepting only the condition
of the HVAC equipment, as to which Tenant shall have and hereby acknowledges
a continuing obligation to promptly complete the workmanlike repair of such
HVAC equipment to proper working order, which obligation is intended to survive
this Release and Termination of Lease) and Landlord and Tenant each further
agree that the Lease is canceled and terminated, all immediately as of the
execution of this Release and Termination of Lease. Landlord and Tenant each
mutually release the other and their respective successors and assigns and all
past or present officers, directors, partners, agents and employees from any
and all claims, demands, damages, causes of action, obligations, liabilities
or duties to the other arising under the Lease or with respect to the
ownership, use or possession of the Leased Premises pursuant thereto.
Tenant hereby indemnifies and holds Landlord harmless from and
against any and all claims, demands, suits, causes of action, losses, damages,
costs or expenses (including attorneys fees) (collectively "Claims") relating
to Tenant's use or possession of the Leased Premises prior to the date hereof.
Landlord hereby indemnifies and holds Tenant harmless from and against any and
all Claims relating to Landlord's ownership, use or possession of the Leased
Premises on or subsequent to the date hereof, excepting only any Claims
relating to Tenant's repair of the HVAC equipment.
Landlord and Tenant each represent and warrant to the other that they
are the landlord and tenant, respectively, under the Lease, that the
undersigned persons are fully empowered and authorized by all necessary action
of Landlord and Tenant, respectively, to execute and deliver this Release and
Termination of Lease and that this Release and Termination of Lease is valid,
binding and enforceable against Landlord and Tenant, respectively.
This document is intended by the parties to be recorded in the
Recorder's Office of Hamilton County, Indiana and to cross reference the
Memorandum of Lease set forth above.
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IN WITNESS WHEREOF, the parties have executed this Release and
Termination of Lease as of the date first written above.
LANDLORD TENANT
______________________________THE WHOLESALE CLUB, INC.
By: _________________________ By: _________________________
Printed: _____________________Printed: _____________________
Its: _________________________Its: _________________________
STATE OF INDIANA )
) SS:
COUNTY OF _________)
Before me, a Notary Public in and for the State of Indiana,
personally appeared
____________________, the ___________, of _______________________, who
acknowledged the execution of the
foregoing Release and Termination of Lease for and on behalf of said
_____________.
WITNESS my hand and Notarial Seal this _____ day of December, 1993.
______________________________
Notary Public
______________________________
Printed
I am a resident of ___________ County, Indiana.
My commission expires: ________________.
STATE OF _________)
) SS:
COUNTY OF _______)
Before me, a Notary Public in and for the State of ____________,
personally appeared
_________________, the ___________, of The Wholesale Club, Inc., who
acknowledged the execution of the foregoing
Release and Termination of Lease for and on behalf of The Wholesale Club, Inc.
WITNESS my hand and Notarial Seal this _____ day of December, 1993.
______________________________
Notary Public
______________________________
Printed
I am a resident of ___________ County, ___________.
My commission expires: ________________.
This instrument prepared by George W. Somers, Attorney-at-Law, Baker & Daniels,
300 North Meridian Street, Suite 2700, Indianapolis, Indiana 46204.
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
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| This ‘10-K’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 3/31/94 | | | | | | | 10-Q |
| For Period End: | | 12/31/93 | | 4 | | 9 | | | 11-K |
| | 12/20/93 | | 9 |
| | 11/30/93 | | 7 | | 9 |
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