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HomeMy WebLinkAboutResolution - 082676L - Lease Agreement - Bell Western Environmental Inc - 08_26_1976a kJ'/ nh j RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the MAYOR of the CITY OF LUBBOCK, BE and is hereby horized and directed to execute for and on behalf of the CITY OF LUBBO ASSIGNMENT OF LEASE AGREEMENT between the City of Lubbock and A, Incorporated d/b/a ERA of Lubbock, Inc. to BELL WESTERN EN- 30NMENTAL, INC., attached herewith which shall be spread upon the nutes of the Council and as spread upon the Minutes of this Council shall istitute and be a part of this Resolution as if fully copied herein in detail. sed by the City Council this 26th day of August 1976. ROY BASS, MAYOR ATTEST: ;21 ,,, e2i" Treva Phillips, Cit Secretary -Treasurer ROVED AS TO FORM: [APPROVED red O. Senter, Jr., CjVA-ttorney STATE OF TEXAS § § ASSIGNMENT OF LEASE COUNTY OF LUBBOCK § WHEREAS, on the loth day of June, 1976, a certain lease was made and entered into by and between the CITY OF LUBBOCK, as Lessor, and ERA, INCORPORATED D/B/A ERA OF LUBBOCK, INC., as Lessee, covering property situated in Lubbock County, Texas, described as follows: BEGINNING AT A POINT 480 feet East of the Northwest corner of Section 4, Block B, Lubbock County, Texas; THENCE North 100 feet; THENCE East 250 feet; THENCE South 250 feet; THENCE West 250 feet; THENCE North 150 feet to the PLACE OF BEGINNING. Said lease was duly executed in writing on said date but was never filed of record in the Deed Records of Lubbock County, Texas. A copy of such lease is attached hereto and incorporated herein for all purposes as Exhibit "A". WHEREAS, the said lease and all rights thereunder or incident thereto are now owned by ERA, INCORPORATED D/B/A ERA OF LUBBOCK, INC. NOW, THEREFORE, for and in consideration of TEN AND N0/100 DOLLARS ($10.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, the undersigned, the pre- sent owner of said lease and all rights thereunder or incident thereto, does hereby bargain, sell, transfer, assign and convey all rights, title and interest of the original lessee and present owner in and to said lease and rights thereunder to BELL WESTERN , INC., a Texas corporation, their successors and assigns, for those purposes and under those terms and conditions as more specifically set out in that one certain "agreement" entered intolliiby and between ERA, INCORPORATED D/B/A ERA OF LUBBOCK, INC., and BELL WESTERN CORP., a copy of which is attached hereto and ted herein for all purposes as Exhibit "B". And for the same considerations, the undersigned for ERA, INCORPORATED D/B/A ERA OF LUBBOCK, INC., and its successors or assigns does covenant with the said assignee, its successors or assigns, that ERA, INCORPORATED D/B/A ERA OF LUBBOCK, INC., is the lawful owner of said lease and rights and interest thereunder; that the undersigned has good right and authority to sell and convey the same, and that said rights, interest and property are free and clear from all liens and encumbrances, and that all rentals due and payable thereunder have been duly paid. IN WITNESS WHEREOF, the undersigned owner and assignor has signed and sealed this instrument the day of 1976. ERA, INCORPORATED D/B/A ERA OF LUBBOCK, INC. By .. .. B. J. FARMER, President ATTEST: RAY H. RAMPY, Secretary -Treasurer BELL WESTERN ENVIRONMENTAL, INC., assignee in the above assignment, hereby, for valuable consideration, covenants and agrees to and does hereby assume all responsibilities of said assignor, ERA, INCORPORATED D/B/A ERA OF LUBBOCK, INC., in and to such lease. ATTEST: BELL WESTERN ENVIRONMENTAL, INC. JIM JOHNSON, President ................ Secretary Pursuant to the terms of such original lease, the CITY OF LUBBOCK, the lessor in such lease, does hereby consent to the above assignment to BELL WESTERN ENVIR MENTAL, INC. CITY K By .. V SS dz� - i EXHIBIT "A" LEASE AGREEMENT THE STATE OF TEXAS S .COUNTY OF LUBBOCK This agreement entered into this loth day of , 1976, by and between the City of Lubbock, Texas, a Home Ru a 1bIunicipP1. r_ rporatior located in Lubbock County, Texas, herein called '.'L SSOR" and ErL-1, Incorpora- ted, a Corporation incorporated under the laws of the State of New -Mexico (some- times known as Ecological Research Associates) doing business in Texas under the name of ERA of Lubbock, Inc., pursuant to a current and viable certificate of authority to do business in Texas issued by the Secretary of State (of Texas) having its principal place of business and registered agent for service (Richard P. Cheney) at 1638 Main Street, Lubbock, Texas, herein called "LESSEE - upon the following terms and. conditions: Lessor does hereby lease unto Lessee for public purposes, to --%it: Research and development in the process of reclamation of waste water from Lessor's sewerage treatment facilities to exceed the Environmental Protection. Agency's (federal agency) increased pollution restrictions currently set for IC-g5, and also a cattle feeding study to be engaged in by Lessee and Texas Tech Univer- sity and submitted to the United States Department of Agriculture, all of which inures to the benefit of the public health and welfare of the citizens of Lubbock, Texas, and the entire State of Texas, in and upon the following described real estate and improvements thereon situated: . BEGINNING at a point 480 feet East of the Northwest corner of Section 4, Block B, Lubbock County, Texas; THENCE North 100 feet; THENCE East 250 feet; THENCE South 250 feet; THENCE West 250 feet; THENCE North 150 feet to the PLACE OF BEGINNhNO. This lease shall be for a term of five (5) years from the date hereof. Lessee shall pay Lessor the sum of ONE DOLLAR ($1.00) per year payable in advance as consideration, for this lease, the first payment being cor_tem- poraneous with the execution hereof by the parties hereto, and payments there- after shall be on the annual anniversary date of this lease. The maintenance and operation of this facility by the Lessee for the purposes aforesaid is hereby declared to be a public purpose and Lessor hereby finds and determines that Lessee has the special expertise, knowledge, and ex- perience necessary for an operation of this type and that the ends of the public good, health, safety, and welfare will be best served by leasing the facility unto Lessee for such public purposes as aforesaid. ® '.. IV. This lease maybe cLncelled by Lessor or Lessee by thirty (30) days written notice delivered or mailed by certified or registered U. S. mail to the. last known address of the other party. V. Lessee, at its expense, during the entire term hereof, shall provide repair and maintenance for the existing and future buildings and/or improve- ments located upon the leased premises, and the areas surrounding the building (s) shall be properly maintained. VI. Lessee agrees to pay and shall pay for all utilities and operational costs of the facilities hereby leased. VII. Lessee shall provide, at its expense, insurance in such amounts and such coverage as shall be satisfactory unto Lessor with the Lessee and Lessor as named insureds as their respective interests may appear, covering the im- provements located on the leased premises as regards fire and extended coverage, and public liability in regard to the operations conducted on the leased premises. V IIi. It is expressly understood and agreed by both parties hereto that Lessee Is contracting with Lessor as an Independent Contractor and that Lessee, as such, agrees to hold the Lessor harmless and to indemnify it from and against any and all claims, demands and causes of action of every kind and character which may be asserted by any third party occurring or in any way incident to, arising out of; or in connection with, the services and operations to be per- formed or conducted by Lessee in connection herewith. IX. Lessee shall comply with all applicable laws, ordinances, codes and regulations of the state, local and federal governments, and a chain link peri- meter fence shall be installed by Lessee (at its expense) forthwith to prevent children from entering the pond area on the leased premises. X. The Lessee will not discriminate against any employees employed in the performance of this contract, or against any applicant seeking employment on the basis of race, sex, color, religion, national origin or creed. Lessee will take affirmative action to insure that applicants are employed, and that em- ployees are treated during employment, without regard to their race, sex, creed, color, or national origin. This requirement shall apply to, but not be limited to, the following: employment, upgrading, demotion or transfer; re- cruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprentice- ship. T", r- XI. Lessor will allow additions to the existing buildings and/or improve- ments located upon the le .sed premises by Lessee, at Lessee's expense, so long as such additions are in conformance with all City of Lubbock and State of Texas building, urban renewal, zoning, subdivision, health, fire and safety laws and/or regulations. XII. Lessor reserves the right to take and hold possession of the leased pre- mises after this lease expires or is cancelled or terminated in accordance with . its terms. All improvements made or constructed or placed on the leased pre- mises by Lessee now existing or during the term of this lease shall remain the personal property of the Lessee and shall be removed by Lessee (at its expense) within'90 days after the expiration, cancellation, or termination of this lease, and if not so removed same shall become and be the property of Lessor (at its option) upon written notice to Lessee to such effect. Upon removal of its improvements as aforesaid, Lessee, (at its expense) shall place the leased premises back in its original condition (as near as may be). Lessee shall not sublease or assign this lease, in whole or in part, with- out the written consent of the Lessor. XIV. Lessor shall not be liable to Lessee or to Lessee's employees, visitors or guests for any damages to property or injury to any person caused by the act of negligence of any person on said premises or for any damages from any de- fects in the leased premises and the Lessee accept such premises as suitable for the purposes for which the same are leased and waive defects therein and agree to hold the Lessor harmless from all claims for any such damage. XV. Lessee shall, (at its expense) at all times shall maintain such Workmen's Compensation Insurance as required by the laws of the State of Texas covering all its employees involved in any manner in the services and/or operations cog - ducted by Lessee pursuant to this lease. ERA, Incorporated DBA ERA of Lubbock, Inc ATT BY.-�`'Z�N B. J. jMaMER, President 'R&y'H.dRampy, ret - reasurer CITY OF LUBBOCK (SEAL) r , BY / x, , SS ATTEST: ROY BASS, MAYOR Treva Phillips, City ecretary-Treasurer (SEAL) APPROVED AS TO FORM: Fred O. Sente Jr., Ci y t`orney THE STATE OF -% qX)%S § "COUNTY OF / /f RRAJ, -I- § BEFORE ME, the undersigned authority, a Notary Public in and for County, &,.4 C,v , on this day personally appeared B. J. FARMER, known to me to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that he ex- ecuted the same as the act and deed of ERA, Incorporated DBA in Texas as ERA of Lubbock, Inc. and as its President, for the purposes and considera- tion therein expressed and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this /D day of .0 1976. (SEAL) 't / Notary Public, County, State of I— x cl� THE STATE OF TEXAS § COUNTY OF LUBBOCK § BEFORE ME, the undersigned authority, a Notary Public in and for Lubbock.County, Texas, -on this day personally appeared ROY BASS, known to me to be the person whose name is subscribed to the foregoing instru- ment and acknowledged to me that he executed the same as the act and deed of the City of Lubbock, Texas and as its Mayor for the purposes and con- sideration therein expressed, and in the capacity therein stated. GIVEN UNDER MY HAND AND SEAL OF OFFICE this /b day of_�� � 1976i. • •(SEAL)•'••. .) Notary Public, Lubbock County, Texas ! � _ -- -- ---••-:-x�c.` - � spa-sx—�—"�— z-->--- �.....F="..-��:z-��-•,-w��c.��.�..�--�--.T---_--;• - . 3E IT RESOLVED BY THE CITY COUNCIL OF -THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock be and- is hereby authorize and directed to"execute for and on behalf of the City of Lubbock a Lease to 1 :xecuted by said City as LESSOR and ERA, Incorporated, a New Mexico corporation doing business in Texas as ERA of Lubbock, Incorporated, as LESSEE covering premises owned by said City, being a tract having dimen ;ions of 250.00 feet by 250.00 feet (square tract) out of Section 4, Block B, i,ubbock County, Texas, attached herewith which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution. as if fully copied herein in detail Passed by the City Council this 10th day of June 1976. ROY BASS, MAYOR _ ATTEST: Treva Phillips, Ci Secretary -Treasurer APPROVED AS TO FORM:. Fred O. Sernter, Jr., Attorney I EXHIBIT "B" AGREEMENT THIS AGREEMENT, entered into as of the day of 1976, by and between Bell Western Corp., a Wyoming Corporation qualified to do business in the State of Texas (herein referred to as "Bell") and ERA, Incorporated, a New Mexico corporation qualified to do business in the State of Texas under the assumed name of ERA of Lubbock, Inc. (herein referred to as "ERA"). WITNESSETH• WHEREAS, ERA owns, by various conveyances, all rights and title to three related Letters Patent and one Patent application described respectively as follows: 1. Unbalanced Culture Method .of Algae Production, Patent No. 3,521,400; 2. Unbalanced Culture Method of Algae Production, Patent No. 3,645,040; 3. Water Reclamation — Algae Production Patent No. 3,780,471; and 4. High Quality Methane Gas Through Modified Anarobic Digestion, Patent Application, Ort - SN526,176. Copies of said patents are attached hereto as Exhibits "A", "B", and "C", respectively, and are hereinafter referred .to with said patent application collectively as "Patents"; and WHEREAS, Bell is interested in obtaining an exclusive license to use said Patents for a period of time in order to determine the utility and applicability of said patented processes and to determine the extent of their future commercial possibilities in the treatment of various types of waste discharge; and WHEREAS, ERA desires to grant Bell an option to purchase said Patents for a period of time and to allow Bell the use of certain facilities and equipment for the same period of time; NOW, THEREFORE, in consideration of the premises, and covenants and agree- ments hereinafter set forth, the parties agree as follows: 1. FORMATION OF SUBSIDIARY In anticipation of the closing date (as hereinafter defined) Bell will activate a subsidiary organized under the laws of Texas with its principal office in Houston, Texas. Said new corporation will be named Bell Western Environmental,Inc:, (herein referred to as Environmental) and will be one hundred percent, wholly owned by -Bell. Said corporation will be funded with operating capital on a monthly "as needed" basis for a period of eight months.after closing date of this agreement with a total expenditure of $120,000 by Bell. The said funding will be used only for the day to current and future operations of said Subsidiary and will not be used in any manner for past obligations of either party to this agreement. II. LICENSE TO USE PATENTS AND USE OF FACILITIES. ERA will enter into an exclusive license agreement on subject Patents with Environmental, a proposed form of said agreement attached hereto as Exhibit "D", said license to be exclusive for a period of two hundred and forty (240) days or until this agreement terminates or until Environmental exercises it purchase option, whichever comes first. Environmental will pay to ERA, as consideration for said license,Five Hundred Dollars ($500.00) per month. In conjunction with.the license, ERA will, for the same -consideration, grant to Environmental the full access to and use of aTl of the realty, facilities, machinery equipment and related paraphernalia that it now owns or has access to in relation to the Pilot Plant that is located in the City of Lubbock, Texas, at for the duration of the license. III. OPTION TO PURCHASE PATENTS For the period of time of two hundred and forty days (240) days commencing with the Closing Date of this Agreement, ERA grants to Environmental' the. option to purchase all of its right and title to subject Patents and to thereby acquire a one hundred percent undivided interest in and to subject Patents. Said election to exercise the option by Environmental may be made at any time after Closing Date and prior to the two hundred and forty first day after Closing Date and must be made by the Board of Directors of Environmental by appropriate resolution. IV. CONSIDERATION FOR PURCHASE, IN EVENT ENVIRONMENTAL EXERCISES ITS OPTION. In the event Environmental exercises said option and subject to the terms and conditions of this Agreement and in reliance on the representations and warranties of ERA herein contained and in consideration of the conveyance and assignment of said Patents to Environmental, Bell agrees to: (a) Issue sixty thousand (60,000) shares of Bell's common, no par value, capital stock to ERA; -2- (b). Grant to ERA an option to purchase an additional 30,000 shares of Bell's common, no par value capital stock at market value on the date that Environmental exercises its option to purchase,. if ever, for a period of two years from such exercise date; (c) Transfer one hundred percent (100S') of the net profits as defined_ in paragraph X (D) below to the extent of $200,000 earned by Environmental to an escrow account to be used to pay the indebtedness of ERA, said creditors to receive payments in pro- portion that each representative debt bears to the total debts, First National Bank of Lubbock debt being expressly excluded; (d) Assume the Debt of ERA at the First National Bank of Lubbock on that one certain note dated in the original principal amount of bearing interest at t e rate of percent % per annum, being the same note guaranteed by the Small Business Administration. It is expressly understood that none of the stock of Bell has been registered under the Securities Act of 1933 nor has said stock been blue skied under Texas Law and that any stock issued by Bell would be restricted letter stock subject to all regulations then in effect regarding said issuance, and that ERA will furnish to Bell and Environmental an investment letter and any other instruments or documents in order that the stock may be properly issued. At Closing Date, ERA will tender fully executed assignments of all of its right and title in subject Patents to Environmental into escrow with First City National Bank of Houston, Texas. The proposed form of Escrow Agreement is attached hereto as Exhibit "E". The instructions to said escrow agent will authorize it to deliver subject assignments to Environmental upon receipt of the appropriate consideration referred to in Paragraph IV above. In the event that Environmental does not exercise its option to purchase subject Patents, said Assignments will, at the end of the option period, or at termination of this Agreement for any other reason, be returned to ERA along with any patents and/or data related to the patents generated during the option period. VI. THE CLOSING A. Closing Date The Closing Date shall be , 1976, or such earlier or later date as may mutually be agreed upon in writing by counsel for Bell and counsel for ERA. The Closing shall take place at A.M. on the Closing Date, or such earlier or later time as may be mutually agreed upon, at the offices of Bell Western Corp., Houston, Texas. B. Items to be Delivered by Bell An opinion of Thomas C. McMahon, counsel for Bell, dated the Closing Date, that: (a) Bell is a corporation duly organized and validly existing in good standing under the laws of its state of incorporation -3- and is'duly qual-,fied and in good standing as a foreign Corp- oration under the'laws of all states in which, to the best of such counsel's knowledge, the character or location of its properties or manner of conducting its business requires such qualification; (b) Bell has all the requisite power and authority to enter into and to perform this Agreement; (c) Bell has duly and validly authorized, executed and delivered this Agreement and all requisite corporate action has been taken to make it valid and binding upon Bell in accordance with its terms, and such Agreement is the valid and binding Corporate obligation of Bell, fully enforceable in accordance with its terms; and (d) All proceedings required by law or by the provisions of this Agreement to be taken by Bell on or prior to the Closing Date necessary to the consummation of this Agreement have been duly and validly taken. C. Items to be delivered by ERA 1. Executed assignments of subject Patents as hereinabove set. out. 2. An opinion of Smith and Baker, Inc., counsel for ERA, dated. the Closing Date, that (a) ERA is a corporation duly organized and validly existing, and that ERA and its subsidiary are in good standing under the laws of the respective states of incorporation and are duly qualified and are in good standing as a foreign corporation(s) under all states in which, to the best of such counsel's knowledge, the character or location of its properties or manner of conducting its business requires such qualifica- tion; (b) ERA has all requisite power and authority under its Articles of Incorporation and the laws of the State of New Mexico to enter into this Agreement and to perform its obligations hereunder; (c) Subject agreement has been duly authorized, executed and delivered by ERA and, subject to due authorization, execution and delivery by Bell, constitutes a valid and binding agree- ment of ERA in accordance with its terms; (d) All necessary corporate proceedings have been taken by ERA to authorize the transfer of said three patents, copies of which are attached hereto as Exhibits "A", "B" and "C" and to grant the use of the Lubbock Pilot Plant through the eight month option period; (e) Neither the execution and delivery of this Agreement nor the performance by ERA of its obligations hereunder conflict with or result in a breach of any provisions•of law or of its Articles of Incorporation or By-laws or any agreement binding upon ERA of which such counsel has knowledge; (f) To the knowledge of such counsel, there are no actions, suites or proceedings pending or threatened against ERA, at Law or in equity, or before or by any federal, state or municipal or other governmental department, commission, board, bureau or instrumentality, domestic or foreign, which involves any claims which would adversely and materially affect its business or the ownership or value of its assets and properties; -4- (g) Such other matters as may reasonably be requested by counsel for Bell. In rendering such opinion, Smith and Baker. Inc., may expressly rely upon certificates of officers of ERA; (h) A certificate of the Secretary of ERA to the effect that the shareholders of ERA (personally; or by duly authorized and executed proxies or powers of attorney). owning the requisite number of the issued and outstanding shares of capital stock of ERA at a shareholders meeting duly called and held for the purpose of approving the transactions under this Agreement in accordance with applicable law voted affirmatively for said transactions, and further such instrument shall contain a certification that no shareholder of ERA has filed with ERA any written objection, pursuant to Section 51-28-4 of the New Mexico Business Corporation Act, to the consummation of the transactions contemplated by the Agreement, or has otherwise notified the Secretary of ERA of an intention to dissent from or institute appraisal proceedings available to dissenting shareholders in connection with the transactions contemplated by the Agreement, except as set forth in said certificate; and (i) A certificate signed by an officer of ERA stating that the warranties and representations of ERA under this agreement are true as of the Closing. Date and that all terms, covenants and conditions of this Agreement to be complied with and performed by ERA on or before the Closing Date have been duly complied with and performed. VII. WARRANTIES AND REPRESENTATIONS OF THE PARTIES A. ERA warrants and represents as follows: 1. That it -owns a one hundred percent (100%) undivided interest in and to the three Letters Patent attached hereto as Exhibits "A", "B" and "C" and that there are no other liens, claims, licenses, leases, royalties or mortgages against any of said Patents save and except for that one certain lien securing the note held by in the principal amount of dated and, bearing interest at the rate of % per annum; 2. That satsifactory arrangements have been made with all present creditors of ERA of every kind and description to secure a moratorium on all attempts-, judicial or non -judicial, to collect their just debts or to foreclose or repossess property securing their respective debts for a period of at least one year from closing date; 3. That there is no other litigation pending or threatened against ERA save and except for 4. That ERA is a corporation duly organized and validly existing and that ERA and its subsidiaries are in good standing in the respective states of incorporation and are duly qualified and in good standing in all foreign states wherein they are doing business; 5. That ERA has all requisite power and authority under its Articles of Incorporation and the laws of the State of New Mexico to enter into this Agreement and to perform its obligations hereunder; -5- <' b. All necessary corporate proceedings have been taken by ERA to authorize the transfer of the three patents, copies of which are attached hereto as Exhibits "A", "B" and "C", and to grant the use of the Lubilcck Pilot Plant, facilities and equipment; and 7. Neither the execution and delivery o this Agreement nor the per- formance by ERA of its obligations hereunder conflict with or result in a breach of any provisions of law or of its Articles of Incorporation or By-laws or any agreement binding upon ERA of which ERA has knowledge. B. Bell warrants and represents as follows: 1. Bell is a corporation duly organized and validly existing i.n good standing under the laws of the State of Wyoming and is duly qualified and in good standing as a foreign corporation under the laws of all states in which it does business; 2. Bell has all of the requisite power and authority to enter into and to perform this Agreement;. 3. Bell has duly and validly authorized, executed and delivered this Agreement and all requisite corporate action has been taken to make it valid and binding upon Bell; and 4'. All proceedings required by law or by the provisions of this Agree- ment to be taken by Bell on or prior to the Closing Date have been taken. VIII. LIABILITIES OF THE PARTIES Neither party hereto, nor Environmental, shall be deemed to be the partner of any other party, and neither party shall have any authority to act for or to assume any obligation or responsibility on behalf of the other party. IX. AMENDMENT AND TERMINATION A. This Agreement may be amended or terminated by mutual agreement of the parties hereto with the approval of their respective boards of directors without further action on the part of the shareholders of ERA except as such shareholder's approval.may be required by law. B. This Agreement may also be terminated by Bell, at its option, and all obligations of Bell and Environmental will terminate, if any one of the following events occur: 1. A determination is made that subject Patents are not, in the opinion of Bell and Environmental, of sufficient commercial application to continue any further expenditures of money on same; 2. Any litigation is initiated by parties outside of this agreement • as to title (either legal or equitable) to any of said Patents; 3. ERA enters into voluntary or involuntary bankruptcy during the two hundred forty day option period; ion -judicial foreclosures of any liens or mortgages are initiated against any of ERA's assets that have any material affect on the use and development of the patent process and/or the facilities, machinery and equipment of ERA or the Lubbock pilot )lant; 5. There shall be any actual or threatened litigation challenging the validity or legality of this Agreement or the consummation thereof or seeking to restrain or invalidate any of the transactions contemplated hereunder which would, in the opinion of the Board of Directors of Bell made in good faith, involve expense or lapse of time that would be materially adverse to the interest of Bell; 6. That any of the warranties or representation of ERA set out herein prove at any time to be substantially untrue; and 7. If, as a result of force majeure, either party is unable to -carry out fully or in part its obligations under this agreement such as an Act of God, action of the elements, strike, labor disturbance, act of the enemy of the United States of America, war blockade, public riot, fire, explosion, governmental restraint or persons asserting governmental authority, unavilability of equipment, and any other cause, except financial, which is not reasonably within the control of said party. X. MISCELLANEOUS MATTERS A. Survival of Representations and Warranties All representations, warranties, agreements, covenants and conditions.to the Closing of Bell and ERA contained in this Agreement, or otherwise made in writing in connection with the transactions contemplated by this Agreement, shall be deemed to be material and to have been relied upon by the other party, notwith- standing any investigation theretofore or thereafter made, and shall survive the Closing for a period of three years. B. Assignability _ This agreement shall not be assignable by ERA. Bell, after payment of said $200,000 net profits interest, may sell, assign or convey its interest in this agreement without prior consent of all references to Bell shall mead and include such assignee. Nothing herein, except as otherwise expressly provided, is intended to confer upon any person, other than the parties hereto, any rights or remedies under or by reason of this agreement. C. Notices Any notice, request, direction, instruction, waiver or other communication required or permitted to be given hereunder shall be in writing and delivered personally or sent by registered or certified mail, postage prepaid, as follows: to ERA: President ERA of Lubbock, Inc. 611 Ryan Plaza Drive - Suite 1447 Arlington, Texas 76011 -7- Y to: �.Smith & Baker, Inc. Attorneys at Law .' 5002-C Avenue Q Lubbock, Texas 79412' To BELL: President Bell Western Corp. 9039 Katy Freeway, Suite.431 Houston, Texas 77024 with copy to: Thomas C. McMahon Attorney at Law 218 Main - Suite 302 Houston, Texas, 77002 or to such other address as such persons shall designate in a written noti:ce•to the other, and shall be deemed given upon delivery or upon deposit in a United States post office or letter box. D. Net Profits For purposes of this Agreement, net profits is defined as gross income after. deducting all operating, general and administrative costs, and appropriate federal and state taxes of every description. E. Cooperation Each party shall cooperate and take such action as may be reasonably requested by the other party in order to carry out the provisions and purposes of this Agreement. F. Entire Agreement This instrument and the documents referred to herein contain the entire agreement between the parties hereto with respect to the transfer of said Patents transactions contemplated herein and supersede all other understandings with respect to the subject matter hereof. G. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. H. Counterparts This Agreement may be executed simultaneously and in several counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. -8- BELL WESTERN CORP. ATTEST: By: Thomas C. McMahon President Assistant Secretary ERA, Incorporated D/B/A ERA of Lubbock, Inc. ATTEST: By: ' Secretary President STATE OF TEXAS COUNTY OF HARRIS I, a notary public, do hereby certify that on the day of 1976, personally appeared before me, Raymond H. Brennan, who being by me first my sworn, declared that he is the President of Bell Western Corp., that he signed,the foregoing as President of the Corporation and that the statements herein contained are true and correct. Notary Public in and for Harris County, Texas My commission expires STATE OF TEXAS COUNTY OF I, a notary public, do hereby certify that on the day of , 1976, personally appeared before me who being by me first duly sworn, declared that he is the of ERA incorporated D/B/A ERA of Lubbock, Inc., that he signed the foregoing as " ' of the Corporation and that the state- ments herein contained are true and correct. My commission expires -9- Notary Public in and for County, Texas