exv10w9xby



 





Exhibit 10.9(b)









	 	 	 	 	 
	ACT
OF SALE AND ASSIGNMENT OF LEASES

	 	*
	 	UNITED STATES OF AMERICA
	 
	

	 	*
	 	ORIG 498 BNDL 10436
	 
	 	*	 	 
	BY:
     DAG MANAGEMENT, INC.

	 	*
	 	STATE OF TEXAS
	 

	 	*	 	 
	TO
:      JAZZ ENTERPRISES, INC.

	 	*
	 	COUNTY OF HARRIS






     BE
IT KNOWN, that on this 2nd day of September, 1993;



     BEFORE
ME, the undersigned Notary Public, duly commissioned and qualified, in and for the County
and State aforesaid, and in the presence of the witnesses hereinafter
named and undersigned:



     PERSONALLY
CAME AND APPEARED:




DAG
MANAGEMENT, INC., a Colorado corporation (Tax Payer Identification No. 84-0835089), having its
principal place of business at 633 Seventeenth Street,
Suite 1600 - North Tower,  Denver, Colorado
80202 (hereinafter  “Seller”) (which corporation was formerly known as FIMSA, Inc., having
changed its name to DAG Management, Inc. as reflected in that Certificate of Amendment dated June
30, 1992, issued for change of corporate name by the State of Colorado), represented herein by and
through Nathan E. Baker, its Vice President, duly authorized pursuant to a resolution of the Board
of Directors, a certified copy of which is annexed hereto as Exhibit “A”;



UNITED
STATES OF AMERICA




STATE
OF LOUISIANA




PARISH
OF EAST BATON ROUGE




     BE
IT KNOWN, that on this 8th day of September, 1993;



     BEFORE
HE, the undersigned Notary Public, duly commissioned and qualified, in and for the Parish
and State aforesaid, and in the presence of the witnesses hereinafter named and undersigned:



     PERSONALLY
CAME AND APPEARED




JAZZ
Enterprises, Inc., a Louisiana corporation, (Tax Payer identification number is 72-1214771
having its principal place of business at 100 France Street, Baton Rouge, Louisiana 70802
(hereinafter “Purchaser”), represented herein by Mark R. Bradley, its Vice President, duly
authorized pursuant to a resolution of the Board of Directors, a certified copy of which is annexed
hereto as Exhibit “B”;




1









 







who
declared that Seller does by these presents, grant, bargain, sell, convey, transfer, assign,
set over, abandon and deliver, with no warranty whatsoever, not even for the return of the
purchase price, except for Seller’s own acts and deeds with respect to the title, but with
full substitution and subrogation in and to all the rights and actions of warranty which it
has or may have against all preceding owners and vendors unto Purchaser here present,
accepting and purchasing for itself, its heirs and assigns, and acknowledging due delivery and
possession thereof, all and singular of the land (the “Land”), and the right, title and
interest of Seller in and to the leases (the “Leases”) described on Exhibit “C” hereunto,
together with the buildings and improvements situated on the Land and all fixtures and other
property owned by Seller attached thereto (collectively, the “Property”). The Purchaser
acknowledges the possession and delivery of the Property and assumes and binds itself to
perform all of the terms, conditions and obligations of the lessee under each of the Leases
to the same extent as though Purchaser had executed the Leases as lessee thereunder.




     TO HAVE AND TO HOLD THE ABOVE DESCRIBED PROPERTY UNTO PURCHASER, ITS SUCCESSORS AND ASSIGNS
FOREVER.



     This sale and assignment is made and accepted for and in consideration of the price and sum of
EIGHT HUNDRED AND FIFTY-TWO THOUSAND AND NO/100 DOLLARS ($852,000.00) cash, which Purchaser
has well and truly paid to Seller, who hereby acknowledges the sufficiency and receipt thereof
and grants Purchaser full acquittance and discharge thereof.



     This sale and assignment is made without any warranty whatsoever, and Purchaser hereby
acknowledges and confirms as follows:



     1. The sale, transfer, and conveyance in this Act of Sale and Assignment of Leases “Act of Sale”) of
all of Seller’s right, title and interest in the Property is made without any warranty of any
nature, kind, or character whatsoever, either express or  implied,  including, without
limitation any warranty as to (i) title to the property, except for Seller’s own acts and
deeds with




2











 




respect to
the title, (ii) the zoning of the Property, (iii) the
condition of the Property, (iv)
peaceable possession of the Property, (v) the Property’s
freedom from either latent or apparent
defects, (vi) the Property’s fitness for any particular use or purpose, (vii) vices or defects in
the Property, including all improvements located thereon,
(viii) the Property’s income potential
or operating expenses, (ix) environmental matters of any kind or nature whatsoever relating to the
Property, and (x) any other matter or matters relating to the Property.




     2. As
a material and integral consideration for the execution of this Act of Sale by Seller,
Purchaser waives and releases Seller from any and all claims and
causes of action that Purchaser
may have or hereafter may be otherwise entitled to, based on (i) title to the Property, except for
Seller’s own acts and deeds with respect to title, (ii) the zoning or the Property, (iii) the
condition of the Property (iv) peaceable possession of the Property, (v) the Property’s freedom
from either latent or apparent defects, (vi) the Property’s fitness for any particular use or
purpose, (vii) vices or defects in the Property, including all improvements located thereon, (viii)
the Property’s income potential or operating expenses, (ix) environmental matters of any kind or
nature whatsoever relating to the Property, and (x) any other
matter or matters relating to the Property
whether in the nature of redhibition, reduction or return of the purchase price, concealment, or
any other theory of law. Purchaser further assumes the risk as to all vices and defects in the
Property, including all improvements located thereon, whether those vices or defects are latent or
not discoverable upon simple inspection, and including those vices or defects, knowledge of which
would have deterred Purchaser from making the purchase.



     3. Purchaser (a) has had ample opportunity to fully inspect the Property, (b) has inspected the
Property to the extent Purchaser desired, (c) is purchasing the Property in its present condition,
(d) agreed to purchase the Property subject to any physical encroachments on the Property or any
physical



3









 







encroachments
by improvements located on the Property onto adjacent property, and (e) to the
fullest extent permitted by law waived and relinquished, and does hereby waive and relinquish, any
and all rights to void the sale, to damages, or for a reduction or return of the purchase price on
account of some latent or apparent vice or defect in the Property.



     4. The
above terms and conditions have been fully explained to Purchaser, that Purchaser
understands that Purchaser’s execution of this Act of Sale on such terms and conditions as are
hereinabove set forth constitutes a full and complete waiver and
release of Purchaser’s right to
cancel, rescind, or void this Act of Sale in whole or in part, or to damages on grounds of
redhibition or quantiminoris under Article 2520, et.
seq.,  of the Louisiana Civil Code or
under any other theory of law, for any reason whatsoever having to do with the title, condition,
zoning, repair, nature, fitness for a particular purpose, peaceable
possession, or quality of the Property, any vice or defect of the
Property, or any other matter
relating to the Property, now or in the future. In addition, Purchaser hereby waives the warranty
imposed by Louisiana Civil Code Article 2476.



     5. Purchaser acknowledges that a portion of the Property which it is acquiring constitutes
leasehold interests and, accordingly, Purchaser assumes and binds itself to the faithful
performance of all the terms and conditions imposed on lessee under the ground leases creating said
estates.



     All taxes due and eligible through and inclusive of the year 1992 are paid. Taxes for the current
year have been prorated between Seller and Purchaser contemporaneously herewith, Purchaser assuming
payment when due.




4












 





     THUS DONE AND PASSED, in my office at Houston, Texas, on the day, month and year herein first
above written, in the presence of the two undersigned competent witnesses, who hereunto sign their
names with the said appearer and me, Notary, after reading of the whole.



	 	 	 	 	 	 	 
	WITNESSES:	 	 	 	DAG MANAGEMENT, INC.
	 
	 	 	 	 	 	 
	/s/ Luise M. Perganda

	 	 	 	BY:
	 	/s/ Nathan E. Baker
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Nathan E. Baker
	 

	 	 	 	Its:
	 	Vice President
	 
	 	 	 	 	 	 
	/s/ [ILLEGIBLE]
 


	 	 	 	 	 	 






	 	 	 	 	 
	 
	 	/s/ [ILLEGIBLE]

 

Notary Public

My commission expires:                     
	 	






     THUS DONE AND PASSED, in my office at East Baton Rouge Parish, Baton Rouge, Louisiana, on the
day, month and year herein first above written, in the presence of the two undersigned competent
witnesses, who hereunto sign their names with the said appearer and me, Notary, after reading of
the whole.



	 	 	 	 	 	 	 
	WITNESSES:	 	 	 	JAZZ ENTERPRISES, INC.
	 
	 	 	 	 	 	 
	/s/ [ILLEGIBLE]

	 	 	 	BY:
	 	/s/ Mark R. Bradley
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	Mark R. Bradley
	 

	 	 	 	Its:
	 	Vice President
	/s/ [ILLEGIBLE]
 


	 	 	 	 	 	 






	 	 	 	 	 
	 
	 	/s/ [ILLEGIBLE]

 

Notary Public

My commission expires at death.
	 	 






5









 






EXHIBIT “A”




AUTHORIZING RESOLUTION




DAG MANAGEMENT. INC.




     I, Luise M. Pergande, Assistant Secretary of DAG Management, Inc., a Colorado corporation
(“Corporation”), hereby certify that the following resolution was adopted by Unanimous Written
Consent of the Board of Directors of FIMSA, Inc., now known as DAG Management, to Action taken in
Lieu of Meeting as of June 9, 1986, and that such resolution remains in force as of the date
hereof:




	 	 	RESOLVED, That either the chairman of the board, the president, any vice president, or the
treasurer of the corporation, acting alone, with or without the seal of this Corporation,
may






	 	(a)	 	sign checks, drafts, notes, bills of exchange and orders for the payment or
transfer of funds;
	 
	 	(b)	 	authorize the sale, and execute endorsements, assignments, transfers, stock
powers, or other instruments of transfer, of stocks, bonds, and other securities and
to endorse notes or other negotiable instruments, standing in the name of or owned by
this Corporation; and
	 
	 	(c)	 	execute contracts, deeds, mortgages, pledge agreements, leases, and all other
kinds of written instruments.






	 	 	RESOLVED, FURTHER, That any of the above-described actions heretofore taken by any officer
of this Corporation be, and hereby are, ratified, confirmed and approved.





DATED: September 2, 1993




	 	 	 	 	 
	/s/ Luise M. Pergande
 

Luise M. Pergande

	 	 	 	 
	Assistant Secretary
	 	 	 	 






Page 1 of 2
of Exhibit “A”









 






EXHIBIT “A”




OFFICER’S CERTIFICATE




DAG MANAGEMENT, INC.




     I, Luise M. Pergande, Assistant Secretary of DAG Management, Inc., a Colorado corporation
(“Corporation”), hereby certify as follows:




That the Corporation is qualified to do business in the States of Texas and Louisiana;




Nathan
E. Baker is a duly elected Vice President of the Corporation; and




That, pursuant to the Charter and Bylaws of the Corporation and resolutions duly adopted by
the Board of Directors, Nathan E. Baker is authorized to execute contracts, deeds, mortgages,
pledge agreements, assignments, leases and all other kinds of written documents, as Vice
President, on behalf of the Corporation.



     IN WITNESS WHEREOF, I have hereunto set my hand and the seal of this Corporation this
2nd day of September, 1993.



	 	 	 	 	 
	 

	 	By:
	 	/s/ Luise M. Pergande
	 

	 	 	 	 
	 

	 	 	 	Luise M. Pergande
	 

	 	 	 	Assistant Secretary






	 	 	 
	STATE OF TEXAS

	 	§
	 

	 	§
	COUNTY OF HARRIS

	 	§






     This
instrument was acknowledged before me on this 2nd day of September, 1993, by Luise
M. Pergande, Assistant Secretary of DAG Management, Inc., a Colorado corporation, on behalf of said
corporation.



	 	 	 	 	 
	

	 	 	 	/s/ [ILLEGIBLE]
	 

	 	 	 	 
	 

	 	 	 	Notary Public in and for the

State of Texas







Page 2 of 2
of Exhibit “A”











 





EXHIBIT C




TRACT I




Six
certain lots or parcels of ground, together with all buildings and improvements thereon,
situated in that part of the City of Baton Rouge known as Beauregard Town and designated on the
plan thereof as LOTS 9 and 10 of SQUARE 10, and LOTS 1, 2, 3 and 4 of
SQUARE 11 SOUTH, less and except that portion of lot 4, square 11 South, sold to the State of
Louisiana by Act of Sale dated February 27, 1961, and recorded
as original 17 of Bundle 4839 of the
official records of East Baton Rouge Parish, Louisiana.



TRACT II




All of the right, title and interest of DAG Management, Inc., as assignee of the lessee’s interest,
in the following described Contracts of Lease:



A. Lease dated April 26, 1982, recorded on April 28, 1982, as original 35 of Bundle 9493
in the records of the Clerk and Recorder of East Baton Rouge Parish,
Louisiana, executed by Cohn-Gottlieb Realty Company, Inc., as lessor, to
Catfish Town Properties, as lessee, covering Lots 1 and 2 of Square 4 South, Beauregard Town,
Baton Rouge, Louisiana; and



B. Lease dated May 21, 1982, recorded on June 1, 1982, as original 810 of Bundle 9499 in
the office of the Clerk and Recorder of East Baton Rouge Parish, Louisiana , executed by
Cohn Realty, Inc. , as Lessor , or Catfish Town Properties, as lessee, covering Lots 9 and
10 of Square 9, Besuregard Town, Baton Rouge, Louisiana.



TRACT III-A




The perpetual right of use and occupancy in and to 12 tracts or parcels of land in the City of
Baton Rouge, Louisiana, core fully described as:




1. Begin at the northwest corner of Lot 1, Square 4–5, Beauregard Town, and proceed 15
feet in a northerly direction along the east right-of-way of Front Street to a point and
corner; theace proceed in an easterly direction & distance of
128 feet parallel to the
north property lines of Lots 1 and 2. Square 4–5, Beauregard Town, to the right-of-way of
St. James street projected, for point and corner: thence proceed in a
southerly direction
15 feet to the northeast corner of Lot 2, Square 4–5 , Beauregard Town for point and
corner: thence proceed in a vesterly direction along the north property lines of Lots 2
and 1, Square 4–5, a distance of 128 feet, to the point of beginning.



Page 1 of 4

(Exhibit C)




 









 






2. Begin at the northwest corner of Lot 1. Square 11-5, Beauregard Town, and proceed in a
northerly direction along the East right-of-way line of St. James Street, projected, I
distance of 6 feet to a point and corner: chance proceed in an easterly direction 1
distance of 118 feet along a line parallel to the north property lines of lots 1,2,3
and 4 square 11-5. Beauregard Town, to a point which is 6 feet north of the north
property line of Lot 4, Square 11-5. Beauregard Town; chance proceed 6 feet in a
southeasterly direction to a point which is 6.62 feet west of the northeast corner of
Lot 4; thence proceed in a westerly direction along the north property lines of Lot 4,
a distance of 249.12 feet, to the point of beginning.




3. Begin at the southwest corner of Lac 1. Square 11-5, Beauregard Town, and proceed 15
feet in southerly direction along the right-of-way of St. James Street to a point and
corner; thence proceed 256 feet in an easterly direction along a line parallel to the
south property lines of Lots 1,2,3 and 4. Square 11-5, Beauregard Town, to the
right-of-way line of St. Philip Street for a point and corner: chance proceed in a
northerly direction along the west right-of-way line of St. Philip Street a distance of 15
feet to the southeast corner of Lot 4, Square 11-5. Beauregard Town, for point and corner;
chance proceed in a westerly direction along the south property lines of lots 1,2,3 and 4.
Square 11-5, a distance of 256 feet to the point of beginning.




4. Begin it the southwest corner of Lot 1, Square 4-5, Beauregard Town, and proceed 15
feet in a southerly direction along the right-of-way line of Front street to a point a
corner: chance proceed 128 feet in an easterly direction along a line parallel to the
south property lines of Lot 1 and 2, Square 4-5. Beauregard Town, to the right-of-way line
of St. James Street for point and corner: chance proceed in a northerly direction a
distance of 15 feet to the southeast corner of Lot 2. Square 4-5, Beauregard Town, for
point and corner: chance proceeds in a westerly direction along the south property lines
of Lots 1 and 2. Square 4-5, Beauregard Town, to the point of beginning.




5. Begin at the northwest corner of Lot 1. Square 10. Beauregard Town, and proceed 8/10
of one foot in a westerly direction along the right-of-way of France Street to a point and
corner: chance proceed in a southerly direction a distance of 128 feet along a line
parallel to the west property lines of lots 1 and 2. Square 10. Beauregard Town, to a
point and corner: chance proceed in an easterly direction 8/10 of one foot to the
southwest corner of Lot 2. Square 10. Beauregard Town: chance proceed in a northerly
direction 128 feet along the west property lines of Lots 1 and 2. Square 10. Beauregard
Town, to the point of beginning.



Page 2 of 4

(Exhibit C)





 












 





6. Begin
at the southeast corner of Lot 2. Square (ILLEGIBLE) Beaurasard Town. and proceed in a southerly
direction along the extension of the right-of-way of St. James Street a distance of 15 feet to a
point and corner: thence proceed in an easterly direction a distance of
53 1/3 feet to a point and corner: thence proceed in a northerly directional
distance of 15 feet to the Southwest corner of Lot 1 Square 11-5, Beauresard Town, for point; thence continue in a northerly direction a distance of 112.67 feet along the east right-of-way of St. James Street projected, to a point and corner; thence proceed in a westerly direction a distance of 53 1/3 feet parallel to the south right-of-way of Old Government Street to a point and corner; thence proceed in a southerly direction along the west
right-of-way of St. James Street. projected, a distance of 112.67 feet, to the point of beginning.



7. All
of St. James Street bounded on the North by the South right-of-way of
France Street. on the
South by the North right-of-way of South Boulevard, on the East by
square 8, Square 9 and Square 10
of Beaurasard Town and Mayflower and Europe Streets. and on the West by Square 5. Square 6 and
Square 7 of Beaurasard Town and Mayflower. and the western (revoked) portion of Europe Street.

8. All of Europe Street from the East right-of-way line of St. James
Street to the West
right-of-way line St. Philip Street.



9. Mayflovar
(formerly Asia) Street from the East right-of-way line of Front
Street to the West right-of-way line of St. James Street.



10. Mayflower (Formerly Asia) Street. From the intersection of the East right-of-way line of St.
James Street and the South line of Mayflower Street. for the point of
beginning; thence easterly
along the South right-of-way line of Mayflower Street for a distance
of 25 feet; thence in a
northerly direction a distance of 53.41 feet to the North right-of-way line of Mayflower Street.
for point and corner; thence in a westerly direction along the North right-of-way line of Mayflower
Street (ILLEGIBLE) feet to point and corner, being the intersection of the East right-of-way line of St.
James Street and Mayflower Street; thence in a southerly direction a distance of 53.33 feet. to the
point of beginning.



11. The eastern 33.3 feet of Front or Hatchaz Street, bounded on the South by the North
right-of-way line of South Boulevard and on the (ILLEGIBLE) by a line beginning 38.33 feet North of the
intersection of the South right-of-way line of France Street and East right-of-way of Front of
Hatchez Street and extending in a westerly direction into the right-of-way of Front or Hatchez
Street a distance of 33.3 feet. and bounded on the East by Squares 5. 6 and 7 and Mayflower and
Frances Streets, and on the West by the western 20 feet of Front or Hatchez Street.



Page 3 of 4

(Exhibit C)


















 






12.
The South 38.33 feet of France Street, from the East right-of-way line of front
or [ILLEGIBLE] Street to the West right-of-way line of St. [ILLEGIBLE]
Street, and being bounded
on the South by Lot 1 of Square 5 and Lots 1 and 10 of square 10 of [ILLEGIBLE] Town, and
on the North by the northern 15 feet of France Street; it being understood that this
servitude as to France Street and Front or [ILLEGIBLE] Street shall be subject to the
condition that the said affected area of France Street and of Front or [ILLEGIBLE] Street
shall remain open to the public for [ILLEGIBLE] and vehicular traffic.



The predial servitude establishing such right of use and occupancy runs in favor of Tracts I and
II, above, as well as in favor of any other lots or portions thereof previously owned or leased by
Allied Bank of Texas, as successor to Catfish Town Properties (A Louisiana Partnership in
Commendam) and Catfish Town II (A Louisiana Partnership in Commendam) situated in Squares 4-S, 5, 6, 7, 8, 9, 10, and 11-S, east of Front or Natchez Street,
of that portion of Beauregard Town commonly known as Catfish Town.



Tract IV




A certain
parcel of land located in the southeast corner of Lot 2, Square 10 Beauregard Town, Baton
Rouge, Louisiana, being designated as “Lot 2 Chiller
Property” as shown on a “Map of Lot 2 Square
10 Beauregard Town” by M. Gregory Breaux, P.L.S., dated
February 11, 1993,  attached to that certain Act of Exchange,
recorded on March 24, 1993 as Original 743 of
Bundle 10388 in the records of the Clerk and Recorder of East Baton
Rouge Parish, Louisiana
executed by DAG Management, Inc. and NAB Asset Corporation, and being more particularly described as follows:



Commence
at the intersection of the southerly right-of-way line of France Street and the westerly
right-of-way line of St. Phillip Street marked by a
“+” in concrete; thence, proceed [ILLEGIBLE] 59 46' 30"
W 128 feet along the southerly right-of-way line of France Street to a nail in asphalt marking the
northeast corner of Lot 1; thence, proceed S 0 00' 00" E 107.08 feet along the common line between
Lots 1 and 2 and Lots 9 and 10 to an iron pipe being the Point of
Beginning; thence, proceed S 0 00'
00" E 20.92 feet along the common line between Lots 2 and 9 to the southeast corner of Lot 2;
thence, proceed N 89 46' 30" W 32.12 feet along the common line between Lots 2 and 3; thence,
proceed N 0 18' 31" E 20.94 feet to an iron pipe; thence,
proceed S 89 44' 18" E 32.00 feet to an
iron pipe being the Point of Beginning, said parcel containing 671
Sq. Ft.



Tracts I,
II, III and IV being the same property acquired by CAG Management,
Inc. by act
recorded on May 29, 1990, as original 190, Bundle 10153, in the records of the Clerk of Court of
East Baton Rouge Parish, Louisiana, and by Act of Exchange recorded on March 24, 1993 as Original
743, Bundle 10388 of the aforesaid records.



Page 4 of 4

(Exhibit C)




 



	 	 	 	 	 	 	 
	 

	 	 	498 	 	 	 
	 	 	GRIG 408 RHCL 10436
	 
	 	 	 	 	 	 
	 	 	FILED AND RECORDED
	 	 	EAST BATON ROUGE PARISH, LA.
	 
	 	 	 	 	 	 
	 	 	1993 SEPT 08 PM 04:18:25
	 	 	FIL BK FOLIO
	 	 	DOUG WELBORN
	 	 	CLERK OF COURT & RECORDER
	 
	 	 	 	 	 	 
	 	 	CERTIFIED TRUE COPY
	 

	 	BY	 	 	 	 
	 	 	 	 	 
	 	 	DEPUTY CLERK & RECORDER