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EXHIBIT 10.1
▇▇▇▇▇▇▇ MONEY CONTRACT AND DESIGN/BUILD AGREEMENT
by and between
MEPC QUORUM PROPERTIES II INC.
(SELLER)
and
CRAFTMADE INTERNATIONAL, INC.
(PURCHASER)
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▇▇▇▇▇▇▇ MONEY CONTRACT AND DESIGN/BUILD AGREEMENT
THIS ▇▇▇▇▇▇▇ MONEY CONTRACT AND DESIGN/BUILD AGREEMENT (this
"Contract") is made and entered into by and between MEPC QUORUM PROPERTIES II
INC., A DELAWARE CORPORATION (SELLER), and CRAFTMADE INTERNATIONAL, INC., a
Delaware corporation (PURCHASER) as of the Effective Date (hereinafter
defined).
R-E-C-I-T-A-L-S
A. Seller is under contract to acquire an approximate 31.9602
acre tract of land in Dallas County, Texas, as such property is more
particularly described in Exhibit "A" attached hereto and incorporated herein
by reference (the SELLER'S LAND);
B. Seller and Purchaser wish to enter into a formal binding
agreement pursuant to which Seller, conditioned upon its acquisition of the
Seller's Land and subject to the terms, conditions and covenants herein
contained, will (i) build on an approximate 17.52 acre portion of Seller's Land
(herein the LAND) certain improvements, as such improvements are generally and
preliminarily shown on the Site Plan (herein so called) attached hereto as
Exhibit "B" and incorporated herein by reference, and (ii) thereafter sell to
Purchaser the Land and such improvements, all in accordance with the terms and
conditions of this Contract.
W-I-T-N-E-S-S-E-T-H
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which being hereby acknowledged, the parties agree as follows:
1. SALE AND PURCHASE. For the consideration and upon and subject
to the terms, provisions and conditions hereinafter set forth, Seller agrees to
sell and convey unto Purchaser, and Purchaser agrees to purchase from Seller:
(a) the Land and the Improvements (hereinafter defined),
together with all rights and interests appurtenant thereto, specifically
including all rights, titles, powers, privileges, licenses, easements,
rights-of-way and interests, if any, of Seller, either at law or in equity, in
possession or in expectancy, in and to any real estate lying in the streets,
highways, roads, alleys, rights-of-way or sidewalks, open or proposed, in front
of, above, over, under, through or adjoining the Land and in and to any strips
or gores of real estate adjoining the Land; provided that if any of the
interests listed above are common to other properties adjacent to the Land,
then such conveyance will be on a "non-exclusive" basis with respect to such
interests; and
(b) all tangible personal property and fixtures of any kind
owned by Seller on the Closing Date (hereinafter defined) and attached to,
located on or used exclusively in connection with the maintenance or operation
of the Land or the Improvements, together with all plans and specifications and
surveys in Seller's possession and pertaining to the Land or the Improvements
and, to the extent they may exist and are assignable, all of Seller's rights,
titles and interests in and to all intangible assets relating to the Land and
Improvements, and all warranties received by Seller in connection with the
construction of the Improvements (collectively, the PERSONALTY).
The Land and Improvements are collectively referred to in this
Contract as the REAL PROPERTY. The Personalty and the Real Property are
collectively referred to in this Contract as the PROPERTY. Notwithstanding
subparagraph (a) and (b) above, this Contract does not pertain to and Seller is
not agreeing herein to convey Purchaser pursuant to this Contract or otherwise
any rights or interests that Seller receives in connection with the acquisition
of the Seller's Land that pertain to the right, including right of first
refusal rights, or
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option to purchase, lease or develop other property in the development in which
the Land is located. Neither the term "Land," Improvements or Personalty
include any such rights or interests.
2. PURCHASE PRICE. The Purchase Price (herein so called) for the
Property is NINE MILLION SEVENTY-TWO THOUSAND AND NO/100 DOLLARS
($9,072,000.00). The entire amount of the Purchase Price, as adjusted pursuant
to the terms of this Contract, is due and payable at the Closing in cash or
other Good Funds. GOOD FUNDS has the meaning set forth in Procedural Rule P-27
of the Basic Manual of Rules, Rates and Forms for the Writing of Title
Insurance in the State of Texas promulgated by the Texas State Board of
Insurance, and includes wire transfers, certified checks or cashier's checks to
the extent such Procedural Rule would permit the Title Company (hereinafter
defined) to immediately disburse such funds.
3. ▇▇▇▇▇▇▇ MONEY. For the purpose of securing the performance of
Purchaser under the terms and provisions of this Contract and as a condition
precedent to Seller's obligations hereunder, within three (3) business days
after the Effective Date Purchaser will deliver in cash or other Good Funds the
amount of TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($200,000.00) (the ▇▇▇▇▇▇▇
MONEY) to Republic Title of Texas, Inc. (the TITLE COMPANY), ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇ (fax: (214)
▇▇▇-▇▇▇▇). The Title Company will, and is hereby instructed to, deposit the
▇▇▇▇▇▇▇ Money into an interest bearing account at a federally insured bank or
savings institution acceptable to Seller and Purchaser. Interest accruing on
the ▇▇▇▇▇▇▇ Money shall not constitute additional ▇▇▇▇▇▇▇ Money but rather
shall be for the sole account of, and payable to Purchaser in all events, free
and clear of any and all claims by Seller, and will in all events be reported
under Purchaser's tax i.d. no. ▇▇-▇▇▇▇▇▇▇. If the Closing actually occurs, the
▇▇▇▇▇▇▇ Money will be applied to the balance of the Purchase Price then due.
If the Contract is terminated, the ▇▇▇▇▇▇▇ Money will be delivered as provided
elsewhere in this Contract. If Purchaser fails to timely deposit the ▇▇▇▇▇▇▇
Money as provided in this paragraph, Seller may terminate this Contract by
written notice to Purchaser at any time prior to the date Purchaser actually
delivers the ▇▇▇▇▇▇▇ Money to the Title Company.
4. TITLE.
(a) Title Commitment and Survey. Purchaser acknowledges
receipt of the Commitment for Title Insurance covering the Seller's Land, such
being issued on April 28, 1995 by American Title Company, as agent for Title
Resources Guaranty Company, effective as of March 30, 1995 under GF No.
95BC354868-L (the TITLE COMMITMENT), and the Survey (herein so called) covering
the Seller's Land prepared by G. ▇▇▇▇▇▇ ▇▇▇▇▇▇ of Rust ▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ and
last certified on April 10, 1995. Upon determination by the parties of the
exact portion of Seller's Land to be purchased by Purchaser, Seller will, at
its sole cost and expense, cause to be issued to Purchaser by Title Company an
updated Commitment for Title Insurance covering only the Land and an updated
survey showing only the Land. The updated survey must be sufficient to permit
the Title Company to modify, at Purchaser's expense, the standard printed
exception in the Owner's Policy (hereinafter defined) pertaining to
discrepancies in area or boundary lines, encroachments, overlapping of
improvements or similar matters to "Shortages in Area" only (herein called the
SURVEY EXCEPTION). The Survey will be certified to Purchaser, Purchaser's
lender, Seller and the Title Company. After approval, or deemed approval, by
Purchaser and Seller, the legal description of the Land contained in the field
notes to the updated survey will be attached hereto automatically as Exhibit
"A-1", and this Contract will be deemed amended by the substitution of such
field notes contained in the updated survey without the necessity of the
parties executing any additional written amendment to this Contract, and such
legal description will be the description of the Land attached to the Deed
(hereinafter defined) delivered at Closing.
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(b) Owner's Policy. Seller agrees to pay for and cause
to be delivered to Purchaser at Closing or as soon after the Closing as is
practical an Owner's Policy of Title Insurance (the OWNER'S POLICY) issued by
the Title Company on the standard form thereof in use in the State of Texas,
insuring (i) good and indefeasible title to the Property in Purchaser in the
amount of the Purchase Price, and subject only to the Permitted Exceptions
(hereinafter defined), except that Purchaser will be responsible for the cost
of any endorsements, deletions or modifications Purchaser desires to the
Owner's Policy (and that the Title Company is willing to issue) including,
without limitation, the costs of the Survey Exception, and (ii) insuring
Purchaser's easement interest under the Easement Agreement (hereinafter
defined) as it pertains to the Extended Truck Court Area (hereinafter defend),
subject only to the Permitted Exceptions.
(c) Permitted Exceptions. As used herein, the term
Permitted Exceptions means the following:
(i) any liens and encumbrances caused by Purchaser, inclusive of
any liens and encumbrances placed on the Property in
connection with any financing obtained by Purchaser or any
work performed by Purchaser's Agents;
(ii) the Title Company's standard pre-printed exceptions;
(iii) all Applicable Laws (hereinafter defined);
(iv) all matters shown in Schedule B to the Title Commitment;
(v) all matters shown on or disclosed by the Survey;
(vi) the Easement Agreement (hereinafter defined);
(vii) deed restrictions (the RESTRICTIONS) to be imposed by the
current owner of the Seller's Land containing substantially
similar terms as those set forth on Exhibit "C" attached
hereto and incorporated herein by reference including, without
limitation, all easements, licenses, assessment and lien and
other enforcement rights granted, reserved or provided for
therein, and all restrictions, obligations and obligations set
forth therein;
(viii) a Memorandum of Right of First Refusal and Option Agreement,
the form of which is attached hereto as Exhibit "K" and
incorporated herein by reference, pertaining to certain rights
of Seller to acquire other property in Freeport North. Seller
represents and warrants that such Memorandum will not affect
the development or use of the Land;
(ix) any reservation of rights or rights of repurchase to be
included in the special warranty deed from the seller of the
Seller's Land to Seller, such to be in substantially the form
of that attached hereto as Exhibit "L" and incorporated herein
by reference;
(x) any matters shown on the plat of the property recorded at
Volume 84203, Page 1835, et seq., of the Official Public
Records of Real Property in Dallas County, Texas; and
(xi) such other matter as Seller and Purchaser may agree.
With respect to the Restrictions, Seller represents, warrants and
covenants to Purchaser that Seller will comply with all requirements set forth
in the Restrictions pertaining to the development of the Land and the
construction of the Improvements and that at Closing there will be no violation
of the
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Restrictions that were caused by Seller or any Seller Parties (hereinafter
defined).
(d) Reciprocal Easement Agreement. Purchaser is aware that
at Closing Seller will own the property adjacent to and to the immediate west
of the Land (the ADJACENT TRACT). Upon development of the Adjacent Tract, it
is contemplated that a "truck court" area may be common to both the Adjacent
Tract and the Land. Additionally, prior to development of the Adjacent Tract
and as a part of the development of the Land, Seller will extend that part of
the truck court to be located on the Land onto the Adjacent Tract for
approximately 20 feet. Such Extended Truck Court Area is contemplated by the
general construction features described on Exhibit "D" and thereby constitutes
part of the Improvements to be built at Seller's cost. The Extended Truck
Court Area is necessary to meet Purchaser's specifications and requirements.
At Closing, Seller and Purchaser agree to enter into a Reciprocal Access
Easement and Maintenance Agreement (herein the EASEMENT AGREEMENT) governing
the rights of use and maintenance obligations of the owner of the Land and the
Adjacent Tract from time to time with respect to the truck court and access
thereto. Without limitation, the terms of the Easement Agreement will include
the following:
(i) Upon completion of the 20 foot extension of the truck court
onto the Adjacent Tract (herein the EXTENDED TRUCK COURT
AREA), Purchaser will have a non-exclusive easement over the
Extended Truck Court Area;
(ii) Provided that the Adjacent Tract is developed in such a way
that any part of the truck court built thereon (exclusive of
the Extended Truck Court Area) is contiguous with the Extended
Truck Court Area or any part of the truck court on the Land,
the owner of the Adjacent Tract will have unrestricted ingress
and egress rights over that portion of the truck court on the
Land extending 20 feet eastward from the west boundary line of
the Land. This area is identified on the Site Plan as the
RECIPROCAL EASEMENT AREA; however, the Reciprocal Easement
Area will also include the Extended Truck Court Area. The
owner of the Adjacent Tract will also have an easement for
ingress and egress to the Adjacent Tract over that portion of
the Land identified on the Site Plan as the SHARED ACCESS
DRIVE; and
(iii) Prior to the later to occur of (A) the Adjacent Tract being
developed in such a way that any part of the truck court built
thereon (exclusive of the Extended Truck Court Area) is
contiguous with the Extended Truck Court Area or any part of
the truck court on the Land, and (B) the date that the
Adjacent Tract is first occupied by a "user" thereof (i.e., an
occupant who is physically occupying the Adjacent Tract and
conducting business operations there), Purchaser will be
solely responsible for maintaining the Reciprocal Easement
Area (inclusive of the Extended Truck Court Area) and the
Shared Access Drive. From and after such time, the owner of
the Adjacent Tract will maintain that portion of the
Reciprocal Easement Area located on the Adjacent Tract
(comprised solely of the Extended Truck Court Area) and
Purchaser will maintain (A)that portion of the Reciprocal
Easement Area located on the Land, and (B) the Shared Access
Area; provided that the owner of the Adjacent Tract will be
responsible for 50% of the actual reasonable costs of
maintaining the Shared Access Drive. Notwithstanding the
above, if Purchaser, its employees, agents, vendors,
customers, lessees or licensees cause damage to the Shared
Access Drive or any portion of the Reciprocal Easement Area,
whether or not such portion is on the Land or part of the
Extended Truck Court Area, beyond reasonable wear and tear,
Purchaser will be solely responsible for repairing such damage
and the cost thereof. Likewise, if the owner of the Adjacent
Tract,
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its employees, lessees, agents, vendors, customers or
licensees cause damage to the Shared Access Drive or to any
portion of the Reciprocal Easement Area, whether or not such
portion is on the Land or part of the Extended Truck Court
Area, beyond reasonable wear and tear, the owner of the
Adjacent Tract will be solely responsible for the cost of
repairing such damage.
As soon as possible after the Effective Date, Seller and Purchaser
will finalize the form of the Easement Agreement and such will be attached to
this Contract as Exhibit "M" without further amendment hereto. Seller and
Purchaser will endeavor to finalize the Easement Agreement within thirty (30)
days after the Effective Date. Additionally, as soon as possible after the
Effective Date Seller will cause the Extended Truck Court Area to be surveyed
and a field notes description obtained such that Purchaser can cause the
easements in the Easement Agreement to be insured by the Title Company.
5. DUE DILIGENCE.
(a) Inspection. So long as this Contract is in effect,
Purchaser and Purchaser's agents, independent contractors, employees and
representatives (all such persons being referred to for purposes of this
paragraph as PURCHASER'S AGENTS) shall be permitted access to the Land to
conduct such tests and feasibility studies of the Property as Purchaser deems
reasonably necessary or advisable provided that such inspections, tests or
studies may not materially interfere with or delay the construction of the
Improvements. The costs and expenses of such inspections and investigation
will be borne solely by Purchaser. Purchaser must in all events restore the
Property to the condition it was in prior to such inspections immediately upon
completion thereof. Purchaser may not allow or permit any liens or
encumbrances to arise or exist against the Land or any part thereof as a result
of Purchaser's inspections. Purchaser hereby indemnifies, shall defend by
counsel acceptable to Seller and holds Seller harmless from and against any
claims, causes of action, damages and expenses (including attorney's fees)
incident to, resulting from or in any way arising out of Purchaser's or
Purchaser's Agent's presence in, on or about the Land, or out of any such test
or inspection conducted by Purchaser on the Land, except to the extent such
result was caused by the Seller's negligence and further provided that
Purchaser will not be liable for the mere discovery of adverse conditions
existing at the Land. Such indemnity shall survive the Closing or any
termination of this Contract and not be merged therein. PURCHASER ACKNOWLEDGES
AND AGREES THAT THE RIGHT OF INSPECTION GRANTED UNDER THIS PARAGRAPH IS GRANTED
MERELY AS A CONVENIENCE TO PURCHASER AND THAT PURCHASER HAS NOT BARGAINED FOR
AND IS NOT BEING GRANTED ANY TERMINATION RIGHT BASED UPON THE RESULTS OF ANY
INSPECTIONS CONDUCTED BY PURCHASER.
(b) Delivery of Documents by Seller. Seller agrees to
cooperate with Purchaser in connection with Purchaser's inspection efforts by
delivering to Purchaser such investigative reports and studies as are obtained
by Seller in connection with Seller's due diligence efforts relevant to its
purchase of Seller's Land or in connection with the Improvements to be
constructed by Seller, as hereinafter provided. Specifically, Purchaser
acknowledges receipt of the reports and studies described on Exhibit "F"
attached hereto and incorporated herein by reference. Seller represents and
warrants to Purchaser that as of the Effective Date these are the only
investigative reports and studies relevant to the matters discussed in the
first sentence of this subparagraph that have been obtained by Seller. Seller
further represents and warrants that it will provide Purchaser with a copy of
any similar studies or reports obtained by Seller after the Effective Date.
NOTWITHSTANDING THE ABOVE, AND EXCEPT AS EXPRESSLY AND SPECIFICALLY SET FORTH
IN PARAGRAPH 10(A) BELOW, SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS
ANY, REPRESENTATIONS OR WARRANTIES REGARDING THE TRUTH, ACCURACY OR
COMPLETENESS OF ANY INFORMATION HERETOFORE OR HEREAFTER PROVIDED OR MADE
AVAILABLE TO PURCHASER THAT WAS PREPARED BY THIRD PARTIES, AND
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PURCHASER ACKNOWLEDGES AND AGREES THAT ALL SUCH MATERIALS AND ANY OTHER SIMILAR
TYPE INFORMATION PROVIDED TO PURCHASER ARE PROVIDED AS A CONVENIENCE ONLY AND
THAT ANY RELIANCE OR USE OF SUCH MATERIALS OR OTHER INFORMATION WILL BE AT THE
SOLE RISK OF PURCHASER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET
FORTH IN PARAGRAPH 10(A), SELLER SHALL NOT BE LIABLE FOR ANY NEGLIGENT
MISREPRESENTATION OR ANY FAILURE TO INVESTIGATE THE PROPERTY NOR SHALL SELLER
BE BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS,
APPRAISALS, ENVIRONMENTAL ASSESSMENT REPORTS, OR OTHER INFORMATION PERTAINING
TO THE PROPERTY OR THE OPERATION THEREOF, FURNISHED BY SELLER, OR BY ANY REAL
ESTATE BROKER, AGENT, REPRESENTATIVE, EMPLOYEE, SERVANT OR OTHER PERSON ACTING
ON SELLER'S BEHALF. Seller represents and warrants to Purchaser that Seller
has no current actual knowledge that any reports or studies heretofore
delivered to Purchaser are inaccurate and such representation and warranty will
apply also to any other reports or studies provided to Purchaser except to the
extent that Seller notifies Purchaser of any actual or suspected inaccuracies.
Seller will have no obligation to inquire as to the accuracy of any reports or
studies obtained by Seller and delivered to Purchaser.
6. DESIGN/BUILD AGREEMENT.
(a) Improvements to be Constructed. Seller agrees to
construct on the Land, at Seller's sole cost and expense (subject to
subparagraph (k) below), a warehouse building containing the features generally
set forth on Exhibit "D" attached hereto and incorporated herein by reference
and as depicted on the Site Plan (the IMPROVEMENTS). Subject to Force Majeure
(hereinafter defined) and delay(s) caused by Purchaser or Purchaser's Agents in
connection with Purchaser's inspection of the Real Property, the installation
of Purchaser's property and fixtures or otherwise, due to requests for changes
to the manner of construction of the Improvements not encompassed by the
construction features described on Exhibit "D" or the Plans (hereinafter
defined), due to Purchaser's requests for changes to the Plans, due to
Purchaser's requests for change orders after construction has commenced or due
to interference with Seller's architects, engineers or contractors by Purchaser
or Purchaser's Agents (individually a PURCHASER DELAY and collectively,
PURCHASER DELAYS), Seller will use good faith efforts to cause the Improvements
to be substantially completed (hereinafter defined) by that date that is 220
days after the Effective Date (the TARGET COMPLETION DATE).
(b) Plans and Specifications. Seller intends to prepare
plans and specifications for the construction of the Improvements on a
"staggered basis"; that is, the plans and specifications for earth moving and
foundation work will necessarily be prepared prior to plans and specifications
for subsequent work. the plans and specifications prepared by Seller will be in
substantial accordance with the general construction features described on
Exhibit "D". The parties agree that this method of plans and specifications
preparation is necessary to allow Seller to promptly commence earth moving and
foundation work and to substantially complete the Improvements by the Target
Completion Date. Seller will deliver to Purchaser plans and specifications for
the construction of each element of the Improvements as Seller's architect
prepares them. Purchaser will have five (5) business days after receipt of
plans and specifications submitted by Seller to approve or, in good faith,
disapprove of same, such to include specific reasons for the disapproval. The
parties agree to work in good faith to finalize all plans and specifications
for the construction of the Improvements. If Purchaser fails to approve or
disapprove of any submitted plans and specifications in writing within this
five (5) business day period, Purchaser will be deemed to have approved of same
in all respects. Plans and specifications as finally approved from time to
time are collectively referred to herein as the PLANS. As each aspect of the
plans and specifications are approved, or deemed approved, they will become a
part of this Contract as Exhibit "E" without the necessity of further amendment
hereto.
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(c) Commencement of Construction. Seller agrees to
commence construction of the Improvements within forty (40) days after the
Effective Date. Construction will be deemed to have commenced at that time
that Seller begins earth moving and grading work.
(d) Substantial Completion. As used herein the term
SUBSTANTIALLY COMPLETE or SUBSTANTIALLY COMPLETED means that, in the opinion of
Seller's architect, each of the following shall have occurred: (i) the
Improvements have been completed substantially in accordance with the Plans,
subject only to the completion of punch- list items, none of which may
materially affect Purchaser's intended use and enjoyment of the Improvements or
the Land and all of which will be completed within thirty (30) days after the
date of the walk-through inspection, as provided below, and (ii) the
Improvements have been completed as necessary for the applicable governmental
authority to issue a certificate of occupancy for the Improvements allowing
Purchaser to occupy the Improvements, and (iii) all utilities required for
Purchaser's operations of the Improvements are in place and operational to the
Improvements, including gas, electricity, water, sanitary sewer, and telephone.
Seller will notify Purchaser of the date that Seller's architect expects the
Improvements to be substantially complete, such notice not to be dated more
than forty-five (45) or less than thirty (30) days prior to the date that is
set forth in such notice for the Improvements to be substantially complete.
Upon receipt of notification from Seller's architect that the Improvements are
substantially complete, Purchaser shall verbally notify Seller of the date
Purchaser intends to make its walk-through inspection of the Improvements to
determine punch-list items, such date to be within five (5) days after
Purchaser's receipt of such notice. Seller's architect will accompany
Purchaser on the walk-through inspection so as to mutually determine the
punch-list of items to be completed or repaired by Seller. Satisfaction of
punch-list items or Purchaser's failure to conduct a walk-through inspection
will not delay the Closing. At Closing, 150% of the amount which, in the
reasonable opinion of Seller's architect, is necessary to complete the
punch-list of items remaining to be completed as determined pursuant to this
subparagraph will be held back from the funds delivered to Seller and held in
escrow by the Title Company. This amount will be delivered to Seller at such
time as the punch-list items have been completed. Seller will inform Purchaser
of the amount determined by Seller's architect necessary to complete the
punch-list items, and Purchaser may reasonably object to same. Nonetheless,
Seller will be responsible for paying the entire cost of completing the
punch-list items, even if such costs exceed the 150% holdback.
(e) Certificate of Substantial Completion. Following
Seller's architect's determination that the Improvements are substantially
complete and provided that (i) Purchaser has actually conducted its
walk-through inspection of the Improvements, or (ii) the time period
established for Purchaser to make its walk-through inspection has expired,
whichever comes first, Seller's architect will issue a Certificate of
Substantial Completion certifying as to the date that Seller's architect
determined the Improvements to be substantially complete, and such certificate
will be conclusive in any dispute as to the date that the Improvements were
substantially completed. The date that the Improvements were actually
substantially complete as noted in the Certificate of Substantial Completion
will be the DATE OF SUBSTANTIAL COMPLETION as that term is used herein.
(f) Contractors. Seller's general contractor will be
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ (CONTRACTOR). Seller agrees to provide Purchaser with a list
of all major subcontractors and major suppliers.
(g) Warranties. For a period of one (1) year following
the Closing Date, Seller will promptly repair all defects in the Improvements,
provided that Purchaser promptly notifies Seller of any defects. The one-year
warranty provided in this paragraph is in addition to and not in limitation of
any other express warranties provided in Paragraph 10(a) below. Seller further
agrees to
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assign to Purchaser at Closing any and all warranties Seller receives from its
contractors and suppliers in connection with the Improvements; provided that
such assignment shall not prevent Seller from enforcing same. In this regard,
Seller agrees to provide Purchaser with copies of all proposed warranties as
they are submitted to Seller from time to time in connection with the
construction of the Improvements. If for any reason Purchaser objects to the
form of the warranty, Seller agrees to cause its general contractor to "shop"
the work to be covered by the warranty in hopes of obtaining a warranty on
terms acceptable to Purchaser; provided, however, that any delay in
substantially completing the Improvements caused thereby will be a Purchaser's
Delay. Additionally, the Purchase Price will be increased or decreased by the
additional cost or savings to Seller obtained through shopping the work to be
covered by the warranty. Notwithstanding the above, Purchaser agrees that
standard industry warranties customary in the industry for the work to be
covered will not be objectionable, and Seller agrees to obtain at least
standard industry warranties from generally recognized contractors,
subcontractors and suppliers.
(h) Work by Purchaser's Agents. Upon request by Purchaser,
Seller shall permit Purchaser and its contractors to enter the Land prior to
the Date of Substantial Completion so that Purchaser may perform through its
own contractor(s) (who must be approved by Seller, such not to be unreasonably
withheld) other work and decorations Purchaser wants in the Improvements. This
license to enter prior to the Date of Substantial Completion is subject to
the following conditions:
o In the sole, but reasonable, opinion of Seller's architect,
the Improvements shall have been completed to a point that
work by Purchaser's Agents may commence without delaying the
completion of the Improvements or preventing the completion of
any aspect thereof or materially increasing the cost thereof;
o Purchaser's contractor(s) must work in harmony and not
unreasonably interfere with Seller's contractors and
subcontractors; and
o Purchaser must deliver evidence to Seller that Purchaser and
Purchaser's contractors are carrying insurance in a form and
in amounts reasonably acceptable to Seller.
Seller may revoke this license if any of the conditions are not
satisfied from time to time upon three business days notice to Purchaser. To
the extent that the conditions are satisfied, Seller will cause its general
contractor to ensure that it and its subcontractors do not unreasonably
interfere with the completion of work performed by Purchaser's Agents. Seller
will not be liable in any way for any injury, loss, or damage that occurs to
any of Purchaser's decorations or installations made prior to the Date of
Substantial Completion except to the extent due to Seller's or its
contractors, agents, officers, partners, servants, contractors and employees
(collectively SELLER PARTIES) negligence or willful misconduct. Purchaser
shall indemnify, defend, and hold Seller harmless from any claims, demands,
actions, losses, and damages arising from activities of Purchaser or any of
Purchaser's Agents except to the extent due to Seller's or any Seller
Parties' negligence or willful misconduct.
(i) Approval of Testing Standards. Purchaser
acknowledges that it has received and reviewed the construction materials
testing standards (CMTS) attached hereto as Exhibit "G" and incorporated herein
by reference. Seller agrees to perform, or cause to be performed, all tests
and inspections and cause all reports to be made as required by the CMTS.
(j) Construction Meetings. Seller agrees to formally
meet with Purchaser, Seller's architect and the general contractor together at
least once per month to jointly review the progress of construction and to
discuss any other matters pertaining to the construction of the Improvements.
Seller will cause
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minutes of these meetings to be prepared and provided to Purchaser. Seller
will otherwise keep Purchaser reasonably informed as to the progress of
Improvements and agrees to meet with Purchaser upon request to discuss same.
If Purchaser requests additional meetings with the architect, the general
contractor and/or the subcontractors, any professional fees incurred for such
additional meetings will be at Purchaser's sole cost (Seller agrees that no
such professional fees will be charged by Seller for such additional meetings).
Purchaser agrees that any comments or concerns it may have regarding the
construction of the Improvements should be directed solely to Seller and not to
its general contractor or any subcontractor. This is necessary to preserve
established lines of communication and to prevent confusion among the various
contractors as to from whom they are to receive instructions.
(k) Adjustment to the Purchase Price. The parties agree that
the Purchase Price is inclusive of the cost of completing the Improvements as
contemplated by the general construction features attached hereto as Exhibit
"D". Notwithstanding such, the Purchase Price will be adjusted upward by:
o any additional cost to Seller caused by the discovery of
adverse subsurface soil conditions not described in any of the
reports set forth on Exhibit "F"; provided that the Purchase
Price will not be increased more than $150,000.00 for such
adverse subsurface soil conditions;
o any additional cost to Seller in revising any preliminary
plans and specifications due to material changes thereto
requested by Purchaser not contemplated by the general
construction features described on Exhibit "D";
o any additional cost to Seller in completing the Improvements
due to change order or work order requests of Purchaser,
inclusive of the cost of preparing plans and specifications
therefor; and
o any costs incurred by Seller as a result of Purchaser Delays.
If any change order or work order requests result in a savings to Seller in
completing the Improvements, the Purchase Price will be reduced to reflect that
savings; provided, however that Purchaser may not request any change or work
order that materially varies from construction requirements generally described
on Exhibit "D" or the Plans or that would violate Applicable Laws.
7. CONDITIONS TO CLOSING. In addition to any other express
conditions to closing set forth in this Contract, the satisfaction of the
following will be conditions to Closing:
(a) Seller has informed Purchaser that Seller is under
contract to purchase the Seller's Land. Notwithstanding any provision herein
to the contrary, Seller's and Purchaser's obligations hereunder are expressly
conditioned upon Seller having acquired fee simple title to the Seller's Land
on or before May 31, 1995 [Purchaser's and Seller's benefit].
(b) The applicable governmental authority shall have issued a
certificate of occupancy allowing Purchaser to occupy the Improvements
[Purchaser's benefit].
(c) The Title Company shall be unconditionally and
irrevocably committed to issuing in Purchaser's name the Owner's Policy
insuring good and indefeasible fee simple title to the Land, subject only to
the Permitted Exceptions [Purchaser's benefit].
(d) If determined to be necessary by Seller or applicable
governmental authorities, the Land will have been replatted [Seller's benefit].
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In such event, Seller agrees to cause the Land to replatted at its sole cost;
provided that Purchaser shall cooperate with such efforts as requested by
Seller and will not unreasonably withhold its consent to any form of such
replat. Such replat and all matters shown thereon will also be Permitted
Exceptions as that term is used in this Contract.
(e) Purchaser shall have received an as-built survey of the
Land showing the Improvements thereon and true, correct and complete copies of
all plans, specifications and drawings utilized in the construction of the
Improvements, inclusive of the Plans [Purchaser's benefit].
(f) Seller shall have obtained and recorded lien waivers from
its general contractor and all subcontractors or other evidence reasonably
satisfactory to Purchaser that no such persons have any claim against the
Property by virtue of work performed or materials supplied by them [Purchaser's
benefit].
(g) Seller shall have obtained and delivered to Purchaser any
approvals, estoppel letters and other documents necessary to evidence that (i)
all applicable property owners' associations and applicable committee's thereof
have approved of the design of and the Plans for the Improvements, and (ii)
there are no unpaid assessments with respect to the Real Property and no liens
have been filed against the Real Property with respect to any unpaid
assessments.
In the event that all of the above conditions are not satisfied by the
date scheduled for closing or the date otherwise set forth above for
satisfaction thereof, the party for whom such condition was imposed may waive
the condition or conditioned upon giving ten (10) days notice and opportunity
to cure the failure of such condition, terminate this Contract by written
notice to the other, in which event the ▇▇▇▇▇▇▇ Money will be returned to
Purchaser and neither party will thereafter have any obligation to the other
except for those that by their terms expressly survive termination hereof. If
such condition is waived, the Closing will take place as scheduled with no
reduction in the Purchase Price. The failure of a condition to be satisfied
will not constitute an event of default hereunder by either party.
Notwithstanding the provisions of this paragraph to the contrary, no grace or
cure period will be required with respect to the condition set forth in
subparagraph (a) above.
Additionally, notwithstanding subsection (f) of this paragraph, if on
the Closing Date Seller or Purchaser is aware of any claim or threatened claim
by any of the persons referenced in subsection (f) against the Property for
work performed or materials supplied by or on behalf of Seller, and except as
provided in the last sentence of this paragraph, the Closing will take place
notwithstanding such claim and without reduction in the Purchase Price provided
that Seller will take such steps as required by the Title Company for it to
issue the Owner's Policy without exception to such lien (i.e., by bonding such
lien or escrowing with the Title Company an amount sufficient to pay the lien
in the event Seller cannot cause it to be removed). If any of several
alternatives are available to accomplish this, Seller may pick any such
alternative in its sole discretion. Seller will in any event indemnify and
hold Purchaser, Purchaser's lender and the Property harmless from and against
such claim. Additionally, if the claim evidenced by the lien is in excess of
$25,000.00, Purchaser may elect to delay the Closing until Seller has provided
reasonably satisfactory evidence that the lien has been released or satisfied
and further provided that if Seller has not caused such claim to be released or
satisfied by that date that is ninety (90) days after the Scheduled Closing
Date (hereinafter defined), as such may be extended, Purchaser may elect to
terminate this Contract.
8. CLOSING.
(a) Closing Date. The consummation of the sale and
purchase of the
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Property provided for in this Contract (the CLOSING) will occur on that date
(the SCHEDULED CLOSING DATE) that is twenty (20) days after the later to occur
of (i) the date of Purchaser's receipt of the Certificate of Substantial
Completion, and (ii) the date that Seller obtains and delivers to Purchaser a
certificate of occupancy allowing Purchaser to occupy the Improvements.
Additionally, if Purchaser informs Seller in writing prior to the Scheduled
Closing Date that Purchaser cannot close on that date because Purchaser's
lender is not in position to fund on that date, then the Scheduled Closing Date
will be extended for ten (10) days. The date upon which the Closing actually
occurs will be the CLOSING DATE as that term is used in this Contract.
(b) Documents and Other Items to be Delivered by Seller
at Closing. Seller will execute and deliver to the Title Company at or prior
to the Closing:
(i) A Special Warranty Deed (DEED) in the form of
Exhibit "H" attached hereto and incorporated herein by reference,
conveying the Real Property to Purchaser subject only to the Permitted
Exceptions;
(ii) A ▇▇▇▇ of Sale and Assignment in the form of
that attached hereto as Exhibit "I" and incorporated herein by
reference transferring to Purchaser the Personalty;
(iii) Payment for the Owner's Policy in an amount
equal to the Purchase Price;
(iv) An affidavit in compliance with Section 1445
of the Internal Revenue Code of 1986 (IRC), as amended, and applicable
regulations promulgated thereunder, in the form set forth as Exhibit
"J" attached hereto and incorporated herein by reference, stating that
Seller is not a "foreign person" as that term is defined in the
Section 1445 of the IRC and the applicable regulations promulgated
thereunder;
(v) A Certificate of Affidavit of Debts, Liens and
Parties in Possession on the Title Company's standard form thereof;
(vii) The Easement Agreement; and
(viii) Such evidence or documents as may be
reasonably required by the Purchaser or the Title Company evidencing
the status and capacity of Seller and the authority of the person or
persons who are executing the various documents on behalf of the
Seller in connection with the sale of the Property.
(c) Documents and Other Items to be Delivered by
Purchaser at Closing. Purchaser will execute, as applicable, and deliver to
the Title Company at or prior to the Closing:
(i) The balance of the Purchase Price in cash or
other Good Funds (the ▇▇▇▇▇▇▇ Money being applied thereto) as adjusted
pursuant to the terms hereof;
(ii) The Easement Agreement; and
(iii) Such evidence or documents as may reasonably be
required by the Seller or the Title Company evidencing the status and
capacity of Purchaser and the authority of the person or persons who
are executing the various documents on behalf of the Purchaser in
connection with the sale of the Property.
(d) Closing Costs. In addition to any costs and expenses
allocated to Seller elsewhere in this Contract, Seller will pay at Closing the
cost of providing the Owner's Policy (provided that Seller will not be
responsible for
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the cost of any endorsements, deletions or modifications desired by Purchaser),
any transfer taxes and one-half of any escrow costs of the Title Company.
Purchaser will pay at Closing the costs of any modifications, deletions or
endorsements it desires to the Title Policy, including specifically the Survey
Exception, the cost of recording the Deed, and one-half of any escrow costs of
the Title Company. Subject to Paragraph 18(k) below, each party will pay their
own attorneys' fees in connection with the transactions contemplated hereby.
(e) Possession of the Property. Upon completion of the
Closing (and whether or not the Deed is actually recorded on the Closing Date),
Purchaser shall have the full and unrestricted right to possession of the
Property, subject to the Permitted Exceptions.
9. PRORATIONS AND ADJUSTMENTS. Ad valorem taxes for the Land for
the year in which the Closing occurs will be prorated at Closing effective as
of 11:59 p.m. on the date immediately preceding the Closing Date. Seller will
pay to Purchaser, in the form of a credit against the balance of the Purchase
Price then due, Seller's pro-rata portion of such taxes. Seller's pro rata
portion of such taxes will be based upon taxes actually assessed for the year
in which the Closing occurs; provided that if ad valorem taxes for such year
have not been assessed on the Real Property as of the Closing Date, such
proration will be estimated based upon ad valorem taxes for the immediately
preceding calendar year, and adjusted when actual amounts are available at the
request of either party hereto. In the event the Land has been assessed for
property tax purposes at such rates as would result in "roll-back" taxes upon a
change in land usage or ownership of the Property, Seller hereby agrees to pay
all such taxes and shall indemnify and save Purchaser harmless from and against
all claims and liability for such taxes. The provisions of this Paragraph 9
will survive the Closing and not merge therein.
10. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Seller's Representations and Warranties. To induce
Purchaser to enter into this Contract, and in addition to any other
representations, warranties and covenants of Seller contained herein, Seller
specifically represents, warrants and covenants the following to Purchaser:
(i) (A) Seller is a duly organized and existing
Delaware corporation and is in good standing and duly qualified to
transact business in Texas; (B) Seller has all requisite power and
authority to enter into this Contract; (C) on the Closing Date Seller
will have all requisite power and authority to consummate the
transactions contemplated herein; (D) each of the persons executing
this Contract on behalf of Seller is authorized to do so; and (E) this
Contract constitutes a valid and legally binding obligation of Seller,
enforceable in accordance with its terms;
(ii) Other than the seller under the contract Seller
is under to purchase Seller's Land, and an agriculture lease that will
be terminated at or prior to Closing, and to Seller's current actual
knowledge on the Effective Date, there are no adverse or other parties
in possession of the Land or any part thereof and Seller has not
granted any license, lease, or other right relating to the use or
possession of the Land or any part thereof;
(iii) All utilities required pursuant to the general
construction features attached hereto as Exhibit "D" or by applicable
law are available to the boundary lines of the Land or, at Seller's
cost, will be made available to the boundary line of the Land in
connection with the construction of the Improvements including,
telephone, gas, water, electricity and sanitary and storm sewer. On
the Closing Date all such utilities will be available to and working
in the Improvements;
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(iv) The Land has, or upon completion of the
Improvements will have, access to a dedicated public right-of-way;
(v) Seller covenants and agrees to construct, or
cause to be constructed, the Improvements in a diligent, good and
workmanlike manner, in compliance with all Applicable Laws, in
accordance with the Plans and the recommendations of the reports
described in item number 2 on Exhibit "F" and using only new materials
of high quality as customary in the industry. As used herein, the
term APPLICABLE LAWS means (a) any and all judicial decisions, orders,
injunctions, writs, statutes, rulings, regulations, permits,
certificates or ordinances of any governmental authority having
jurisdiction over the Property including, without limitation, any of
the aforesaid dealing with the design, construction, ownership, use,
leasing, maintenance, service, operation, or condition of real
property, or zoning, or environmental matters, or parking requirements
and (b) the terms of any other written and oral agreements of which
Seller has knowledge, and any and all restrictions of record,
insurance requirements, documents, or instruments relating to the
Property, or to or by which the Property, or its owner, may be bound
or encumbered.
(vi) On the Closing Date Seller will have good and
indefeasible title to the Real Property and there will be no adverse
or other parties in possession of the Land or any part thereof and
Seller will not have granted any license, lease, or other right
relating to the use or possession of the Land or any part thereof
except pursuant to this Contract;
(vii) Seller has not received any notice of any
civil, criminal, administrative or other action, suit, proceeding
(including, without limitation, zoning or condemnation proceedings)
pending or threatened against the Land, at law or in equity or before
any federal, state municipal or other governmental department,
commission, board, agency or instrumentality;
(viii) Seller has no current actual knowledge that
the Land cannot be developed as contemplated by this Contract.
(ix) Except as may be provided in the documents
described in item no. 1 to Exhibit "F" attached hereto, Seller does
not have any current actual knowledge of any adverse environmental
conditions pertaining to or affecting the Land;
(x) No asbestos will be utilized in the construction
of the Improvements;
(xi) Seller is not a "foreign person" as that term
is defined in Section 1445 of the IRC, and any applicable regulations
promulgated thereunder;
(xii) During the period of Seller's ownership of the
Land, Seller will comply with and obey all Applicable Laws; and
(xiii) Notwithstanding anything in this Contract to
the contrary, that the lease to TSI Prime Time of, and the occupancy
by TSI Prime Time of, approximately 100,000 square feet of warehouse
space, inclusive of 3,000 square feet of office space, within the
Improvements will not cause the Improvements or any portion of the
Property to be in violation of any Applicable Laws.
As used herein, CURRENT ACTUAL KNOWLEDGE means the current, conscious
and actual knowledge of Seller without requirement of inquiry or investigation.
Each
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of the provisions contained in this Section 10(a) shall be true and correct
when made and on the Closing Date and shall survive the Closing for a period of
one (1) year thereafter.
(b) Purchaser's Warranties. In addition to any other
representations, warranties and covenants of Purchaser contained herein,
Purchaser specifically represents, warrants and covenants that (i) Purchaser
(i) is a duly organized and existing Delaware corporation and is in good
standing and duly qualified to transact business in Texas; (ii) Purchaser has
all requisite power and authority to enter into this Contract and to consummate
the transactions contemplated herein; (iii) each of the persons executing this
Contract on behalf of Purchaser is authorized to do so; and (iv) this Contract
constitutes a valid and legally binding obligation of Purchaser, enforceable in
accordance with its terms.
Each of the provisions contained in this Section 10(b) shall be true
and correct when made and on the Closing Date and shall survive the Closing for
a period of one (1) year thereafter.
(c) Disclaimer of Warranties. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED IN PARAGRAPH 10(A) AND ELSEWHERE IN THIS CONTRACT, PURCHASER
HEREBY ACKNOWLEDGES AND AGREES THAT THE SALE OF THE LAND HEREUNDER IS AND WILL
BE MADE ON AN "AS IS, WHERE IS AND WITH ALL FAULTS" BASIS AND THAT SELLER HAS
NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER,
WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT, FUTURE OR
OTHERWISE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE LAND, INCLUDING,
WITHOUT LIMITATION, (1) ENVIRONMENTAL MATTERS RELATING TO THE LAND OR ANY
PORTION THEREOF, (2) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS,
LIMITATIONS REGARDING THE WITHDRAWAL OF WATER AND FAULTING, (3) WHETHER OR NOT
AND TO THE EXTENT TO WHICH THE PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY
ANY STREAM (SURFACE OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD
PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD, (4) DRAINAGE, (5) SOIL CONDITIONS,
INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR
CONDITIONS OF SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF
ANY UNDERSCORING, (6) THE PRESENCE OF HAZARDOUS SUBSTANCES IN OR ON, UNDER OR
IN THE VICINITY OF THE PROPERTY, (7) ANY OTHER MATTER AFFECTING THE STABILITY
OR INTEGRITY OF THE LAND, OR (8) THE POTENTIAL FOR FURTHER DEVELOPMENT OF THE
LAND.
(d) PURCHASER'S WAIVER AND RELEASE AS TO THE LAND. AS
PART OF PURCHASER'S AGREEMENT TO PURCHASE AND ACCEPT THE LAND "AS IS, WHERE IS
AND WITH ALL FAULTS", AND SUBJECT TO THE EXPRESS WARRANTIES AND REPRESENTATIONS
OF SELLER IN PARAGRAPH 10(A) AND ELSEWHERE IN THIS CONTRACT, PURCHASER HEREBY
UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY AND ALL ACTUAL OR POTENTIAL RIGHTS
PURCHASER MIGHT HAVE REGARDING ANY FORM OF WARRANTY, INCLUDING IMPLIED
WARRANTIES, OF ANY KIND OR TYPE, RELATING TO THE LAND OR ANY OF THE MATTERS
REFERRED TO IN SUBPARAGRAPH (C) ABOVE (PROPERTY CONDITION). SUBJECT TO THE
EXPRESS WARRANTIES AND REPRESENTATIONS OF SELLER IN PARAGRAPH 10(A) AND
ELSEWHERE IN THIS CONTRACT, SUCH WAIVER IS ABSOLUTE, COMPLETE, TOTAL AND
UNLIMITED IN ANY WAY AND INCLUDES A WAIVER OF STRICT LIABILITY RIGHTS, AND
CLAIMS, LIABILITIES, DEMANDS OR CAUSES OF ACTION OF EVERY KIND AND TYPE,
WHETHER STATUTORY, CONTRACTUAL OR UNDER TORT PRINCIPLES, AT LAW OR IN EQUITY,
INCLUDING, BUT NOT LIMITED TO, CLAIMS REGARDING DEFECTS WHICH MIGHT HAVE BEEN
DISCOVERABLE, CLAIMS REGARDING DEFECTS WHICH WERE NOT OR ARE NOT DISCOVERABLE,
ALL OTHER EXTANT OR LATER CREATED OR CONCEIVED OF STRICT LIABILITY OR STRICT
LIABILITY TYPE CLAIMS AND RIGHTS, AND ANY CLAIMS UNDER CERCLA (AS DEFINED
BELOW). SUBJECT TO THE EXPRESS WARRANTIES AND REPRESENTATIONS OF SELLER IN
PARAGRAPH 10(A) AND ELSEWHERE IN THIS CONTRACT, EFFECTIVE UPON THE CLOSING
DATE, AND TO THE FULLEST EXTENT PERMITTED BY LAW, PURCHASER HEREBY RELEASES,
DISCHARGES AND FOREVER ACQUITS SELLER AND EVERY ENTITY AFFILIATED WITH SELLER
AND ALL OF THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND
INDEPENDENT CONTRACTORS AND THE
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SUCCESSOR OF EACH AND EVERY ONE OF THEM FROM ALL DEMANDS, CLAIMS, LIABILITIES,
OBLIGATIONS, COSTS AND EXPENSES WHICH PURCHASER MAY SUFFER OR INCUR RELATING TO
THE PROPERTY CONDITION OR ANY OTHER ASPECT OF THE LAND. AS PART OF THE
PROVISIONS OF THIS SUBPARAGRAPH (D), BUT NOT AS A LIMITATION THEREON, PURCHASER
HEREBY AGREES, REPRESENTS AND WARRANTS THAT THE MATTERS RELEASED HEREIN ARE NOT
LIMITED TO MATTERS WHICH ARE KNOWN OR DISCLOSED. IN THIS CONNECTION AND TO THE
EXTENT PERMITTED BY LAW, PURCHASER HEREBY AGREES, REPRESENTS AND WARRANTS THAT
PURCHASER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO IT MAY
HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS,
DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY
UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND PURCHASER FURTHER AGREES,
REPRESENTS AND WARRANTS THAT THE WAIVERS AND RELEASES HEREIN HAVE BEEN
NEGOTIATED AND AGREED UPON IN LIGHT OF THAT REALIZATION AND THAT PURCHASER
NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE AND ACQUIT SELLER FROM ANY
SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES,
COSTS, LOSSES AND EXPENSES WHICH MIGHT IN ANY WAY BE INCLUDED IN THE WAIVERS
AND MATTERS RELEASED AS SET FORTH IN THIS SUBPARAGRAPH (D); PROVIDED THAT SUCH
WAIVERS AND RELEASES DO NOT NEGATE OR LIMIT THE EFFECT OF THE EXPRESS
WARRANTIES AND REPRESENTATIONS OF SELLER IN PARAGRAPH 10(A) AND ELSEWHERE IN
THIS CONTRACT. THE PROVISIONS OF THIS SUBPARAGRAPH (D) PERTAIN ONLY TO THE
PURCHASE OF THE LAND AND NOT THE IMPROVEMENTS. THE PROVISIONS OF THIS
SUBPARAGRAPH (D) ARE MATERIAL AND INCLUDED AS A MATERIAL PORTION OF THE
CONSIDERATION GIVEN TO SELLER BY PURCHASER IN EXCHANGE FOR SELLER'S PERFORMANCE
HEREUNDER.
(e) DTPA WAIVER. PURCHASER REPRESENTS AND WARRANTS TO
SELLER THAT PURCHASER HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS
MATTERS THAT ENABLE PURCHASER TO EVALUATE THE MERITS AND RISKS OF THE
TRANSACTION CONTEMPLATED BY THIS CONTRACT. FURTHER, PURCHASER ACKNOWLEDGES
THAT IT IS NOT IN A DISPARATE BARGAINING POSITION RELATIVE TO SELLER WITH
RESPECT TO THIS CONTRACT. ACCORDINGLY, TO THE EXTENT APPLICABLE AND PERMITTED
BY LAW (AND WITHOUT ADMITTING SUCH APPLICABILITY), PURCHASER HEREBY WAIVES THE
PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES- CONSUMER PROTECTION ACT,
CHAPTER 17, SUBCHAPTER E, SECTIONS 17.41 THROUGH 17.63, INCLUSIVE (OTHER THAN
SECTION 17.555, WHICH IS NOT WAIVED).
(f) For purposes of this Contract, the term "Hazardous
Substances" means any hazardous, toxic or dangerous waste, substance or
material, pollutant or contaminant, as defined for purposes of the
Comprehensive Environmental Response, Compensation and Liability act of 1980
(42 U.S.C. Sections 9601 et seq.), as amended ("CERCLA"), or the Resource
Conservation and Recovery Act (42 U.S.C. Sections 6901 et seq.), as amended, or
any other federal, state or local law, ordinance, rule or regulation applicable
to the property, or any substance which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise
hazardous, or any substance which contains gasoline, diesel fuel or other
petroleum hydrocarbons, polychlorinated biphenyls (pcbs), or radon gas, urea
formaldehyde, asbestos or lead.
(g) Mutual Release. Without limitation of and in
addition to any other releases or waivers contained in this Contract, Purchaser
and Seller mutually release the other from any and all claims, liabilities,
losses, suits and expenses arising from any adverse environmental condition
occurring on the Land due to the acts of third parties not under the control of
Seller or Purchaser. To the extent that this subparagraph is deemed or held to
conflict with Purchaser's waivers and release contained in subparagraph (d)
above, such subparagraph (d) will control to the extent of such conflict.
(h) Survival. The representations and warranties set
forth in subparagraph (a) and (b) above and elsewhere in this Contract will
survive the Closing for a period of one (1) year. The provisions of
subparagraphs (c), (d), (e), (f), and (g) above and this subparagraph (h) will
survive the Closing indefinitely.
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11. INDEMNIFICATION.
(a) By Seller. Notwithstanding the provisions of ParagraphS
10(c) and (d), but without in any way limiting the representations and
warranties of Paragraph 10(a), Seller hereby agrees to indemnify and hold
harmless Purchaser, and Purchaser's employees, officers, directors, partners,
representatives and agents from and against any and all debts, duties,
obligations, liabilities, suits, claims, demands, causes of action, damages,
losses, costs and expenses (including, without limitation, attorneys' fees and
expenses and court costs) in any way relating to, connected with or arising out
of the Property or the ownership, use, operation, maintenance and management
thereof to the extent, but only to the extent, that the occurrence causing or
leading to the enforcement of such indemnity occurred during the period of ▇▇▇▇
▇▇▇▇▇▇ owned the Property and was caused by Seller, any affiliate of Seller or
any party occupying or operating the Property under the supervision or control
of Seller (i.e., Seller will not be required to indemnify Purchaser for matters
or conditions, including environmental conditions, that existed on the Land or
first arose prior to the date Seller acquired title to the Land or which were
caused by any party other than Seller, an affiliate of Seller or any party
occupying or operating the Property under the supervision or control of
Seller).
(b) By Purchaser. Purchaser hereby agrees to indemnify,
protect, defend, save and hold harmless Seller, and Seller's employees,
officers, directors, partners, representatives and agents from and against any
and all debts, duties, obligations, liabilities, suits, claims, demands, causes
of action, damages, losses, costs and expenses (including, without limitation,
attorneys' fees and expenses and court costs) in any way relating to, connected
with or arising out of (i) the Property or the ownership, leasing, use,
operation, maintenance and management thereof from and after the Closing Date,
but, except as may be otherwise noted elsewhere herein, only to the extent that
the occurrence causing or leading to the enforcement of such indemnity first
occurred or arose during the period that Purchaser or any affiliate of
Purchaser owned, occupied, managed, controlled or operated the Property and was
caused by Purchaser or such affiliate or any party operating or occupying the
Property under the supervision or control of Purchaser; and (ii) Purchaser's
inspections or examination thereof as provided in Paragraph 5(a).
The indemnities in this Paragraph 11(a) and (b) will survive the
Closing indefinitely and not be merged therein.
12. PERMITTED TERMINATION BY PURCHASER. If Purchaser properly
terminates this Contract pursuant to a right granted to Purchaser hereunder to
do so, including the right to terminate for Seller's default set forth in
Paragraph 13(b), the ▇▇▇▇▇▇▇ Money will be returned to Purchaser. Upon
Purchaser's receipt of the ▇▇▇▇▇▇▇ Money, neither party will thereafter have
any further rights or obligations, one to the other, except for obligations
which by their terms expressly survive the termination of this Contract.
13. DEFAULT AND REMEDIES.
(a) Purchaser's Default.
(i) Purchaser acknowledges and agrees that, in
reliance upon the agreements of Purchaser contained herein, Seller
will incur significant expense in constructing the Improvements.
Additionally, the Improvements are being constructed specifically for
Purchaser and in accordance with design specifications required by
Purchaser, thereby being unique to Purchaser. If Purchaser defaults,
the Improvements could not be sold or leased to any other party, if at
all, without significant modification and additional expense.
Furthermore there is no certainty that the Improvements could be sold
or leased at a price equivalent to the Purchase Price. As such, this
transaction is not a common purchase/sale
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of real property in which the seller's position from the standpoint of
measurable costs changes very little between the time of contracting
and closing or default. In such event a seller's damages for default
by a purchaser is commonly limited solely to the ▇▇▇▇▇▇▇ money paid by
the purchaser, the parties agreeing that the actual damages are
difficult to measure and the ▇▇▇▇▇▇▇ money being a reasonable
approximation thereof and therefore liquidated damages for purchaser's
breach. Purchaser agrees that in this Contract, the ▇▇▇▇▇▇▇ Money may
be less than a reasonable approximation of the damages Seller will
suffer due to a default by Purchaser. Therefore, if Purchaser
defaults under this Contract prior to Closing, Seller will be entitled
to the ▇▇▇▇▇▇▇ Money and will have in addition any and all rights and
remedies available by reason of such default at law, including the
right to seek actual damages and the Purchase Price, or in equity,
and, specifically but without limitation, specific performance of
Purchaser's obligation to purchase the Property. In the event Seller
seeks actual damages, for a period of one (1) year from the date of
Seller's termination of this Contract due to Purchaser's default,
Seller will use reasonable efforts to mitigate and will not act in bad
faith in such efforts to mitigate; provided that Seller will have
satisfied its obligation to use reasonable efforts to mitigate if
Seller (a) places at least one (1) standard sign on the Land
advertising its availability for sale or lease, (b) sends standard
fliers to major real estate brokerage firms in accordance with
Seller's normal and customary business practice, and (c) responds to
inquirers concerning the Property in accordance with Seller's normal
and customary business practice. If Seller actually recovers any
portion of its damages due to a sale or lease of the Property within
five (5) years following termination of this Contract by Seller due to
Purchaser's default and failure to cure, or the entering into of a
sale contract or lease during this five (5) year period that is
actually consummated, whether or not such consummation occurs after
the expiration of this five (5) year period, Seller's actual damages
will be reduced by the amount of such recovery, less Seller's cost and
expense incurred in connection with same including, without
limitation, attorneys' fees, brokers' commissions, marketing costs and
the cost of modifying the Improvements to meet the requirements of
such new purchaser or tenant.
(ii) In the event of any breach by Purchaser after
Closing of any covenant, representation or indemnity, which survives
the Closing, Seller may recover from Purchaser its actual damages
arising from such default.
(iii) In the event Purchaser files a lis pendens or
an action for specific performance against Seller or otherwise clouds
Seller's title to the Property and fails to prevail in a final,
non-appealable judgment, Seller shall be entitled to pursue any
remedies available at law or in equity with respect thereto,
including, but not limited to, suit for damages, attorney's fees and
costs.
(iv) Notwithstanding the above, in no event will
Purchaser be liable to Seller for any punitive, speculative or
consequential damages.
(b) Seller's Default.
(i) If Seller wrongfully fails to close the
transaction contemplated by this Contract, or, and except as
specifically provided in subparagraph (b)(ii) below with respect to
Seller's failure to substantially complete the Improvements, if Seller
otherwise wrongfully fails to perform any of its obligations or
agreements hereunder, either prior to or at Closing, Purchaser may, AS
ITS SOLE AND EXCLUSIVE REMEDIES THEREFOR, either (a) terminate this
Contract and recover the ▇▇▇▇▇▇▇ Money and seek actual damages against
Seller for up to, but not in excess of
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$1,000,000.00, or (b) seek specific performance of Seller's
obligations hereunder. Except as provided in subparagraph (b)(iv), in
no event shall Seller be liable to Purchaser for any actual damages in
excess of $1,000,000.00 or any punitive, speculative, consequential or
other damages.
(ii) If for any reason other than Force Majeure or
Purchaser Delays, both the Date of Substantial Completion has not
occurred and a certificate of occupancy has not been obtained and
delivered to Purchaser by the later to occur of (1) 240 days after the
Effective Date, or (2) December 31, 1995, Seller will pay to Purchaser
as liquidated damages, and Purchaser's sole and exclusive remedy will
be, the amount of $2,500.00 per day from and after the later to occur
of (1) 240 days after the Effective Date, or (2) December 31, 1995,
and ending on the date that both the Date of Substantial Completion
has occurred and a certificate of occupancy has been obtained and
delivered to Purchaser. Additionally, and except as provided in
subparagraph (b)(iii) below, Seller will not be in default for failure
to substantially complete the Improvements such that Purchaser may
exercise any remedies provided for in this Contract other than that
provided in the preceding sentence, if applicable, unless the Date of
Substantial Completion has not occurred and Seller has not delivered
to Purchaser the certificate of occupancy (A) within 310 days after
the Effective Date for reasons other than Force Majeure or Purchaser
Delays; or (B) within 340 days after the Effective Date for any reason
other than Purchaser Delays, and in either of such events, Purchaser
will have the remedies set forth in subparagraph (b)(i) above for
Seller's default.
(iii) Notwithstanding any provision herein to the
contrary, Seller will be in default if Seller abandons the
construction site and stops construction for thirty (30) continuous
days for any reason other than Purchaser's default or Force Majeure
and Seller does not recommence construction within fifteen (15) days
after receipt of written notice, subject to Force Majeure; provided
that if Purchaser has previously given Seller two (2) such written
notices under this subparagraph, no further notice will be required as
a condition to Purchaser's exercise of the remedies set forth in
subparagraph (b)(i).
(iv) In the event of any default by Seller after
Closing of any covenant, warranty, representation or indemnity, which
survives the Closing, including specifically the warranty contained in
Paragraph 6(g) above, Purchaser may recover from Seller its actual
damages arising from such default and their will be no cap on the
amount of such actual damages.
(c) Disposition of the ▇▇▇▇▇▇▇ Money. In the event that
under any provision of this Contract one of the parties becomes entitled to the
▇▇▇▇▇▇▇ Money, the other party agrees to promptly execute any documentation
requested by the Title Company to allow the release of the ▇▇▇▇▇▇▇ Money to
such entitle party and the failure to do so will constitute an event of default
hereunder.
(d) Notice and Opportunity to Cure. Notwithstanding
Paragraphs 13(a) and (b) above, no party will be in default hereunder until the
other party first provides written notice of the alleged default and such
default is not cured within ten (10) days after the effective date of such
notice. Additionally, if Purchaser fails to close on the date scheduled for
Closing due to a Major Event, Purchaser will not be in default hereunder unless
Purchaser fails to close within 90 days after receipt of written notice from
Seller. As used herein, a MAJOR EVENT means the physical destruction of or
damage to the plant or factory located in Taiwan and currently owned or
utilized by Purchaser to supply its United States operations to the extent that
Purchaser's operations in the United States are materially affected and cannot
be continued in the
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manner they were conducted immediately prior to such Major Event.
(e) Survival. The provisions of this Paragraph 13 will
survive the Closing and not be merged therein
14. COMMISSION AND ABSTRACT. If and only if, as and when this
transaction is closed, Seller shall be solely responsible for and shall pay a
real estate commission (the COMMISSION) to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (hereinafter
referred to as the BROKERS, whether one or more) pursuant to the a separate
written agreement between Seller and Broker. It is expressly understood,
acknowledged and agreed that the Brokers' right to such Commission shall vest
only upon the actual Closing and consummation of this Contract and no
Commission shall be earned, due or owing in the event the purchase and sale
transaction contemplated herein shall fail to close for any reason whatsoever
including, but not limited to, the default of either Seller or Purchaser. The
Brokers shall divide the Commission as provided hereinabove, and Seller shall,
notwithstanding any contrary agreement for division of Commission, be fully
protected in paying such Commission (or portion thereof) then due and owing to
such Brokers in accordance with the allocation stated hereinabove or, at
Seller's option, by depositing such Commission then due and owing with the
Title Company pending resolution by all of the parties constituting Brokers of
any dispute with respect thereto. In no event whatsoever shall any Broker be
entitled to receive any portion of the ▇▇▇▇▇▇▇ Money. Each party hereto
represents to the other that, except as set forth above with respect to the
Brokers, it has not authorized any broker or finder to act on its behalf in
connection with the sale and purchase transaction contemplated hereby and that
it has not dealt with any broker or finder purporting to act for any other
party. Each as to any commission owed to Brokers pursuant to this paragraph,
which will be Seller's responsibility, each party hereto agrees to indemnify
and hold harmless the other party from and against any and all liabilities,
costs, damages and expenses of any kind or character arising from any claims
for brokerage or finder's fees, commissions or other similar fees in connection
with the transactions covered by this Contract insofar as such claims shall be
based upon alleged arrangements or agreements made by such party or on its
behalf, which indemnity shall expressly survive any termination or Closing of
this Contract. The Texas Real Estate License Act requires written notice to
Purchaser that Purchaser should have an attorney examine an abstract of title
to the Property or else obtain a title insurance policy. Notice to that effect
is, therefore, hereby given to Purchaser.
15. ASSIGNMENT. This Contract shall be binding upon, and shall
inure to the benefit of, the parties hereto and their respective heirs, legal
representatives, successors and permitted assigns; provided, however, that:
(a) except with respect to a Permitted Assignment
(hereinafter defined) Purchaser may not assign its rights or obligations
hereunder without the express prior written consent of Seller, such not to be
unreasonably withheld.
(b) except with respect to a Permitted Assignment, Seller may
not assign any of its rights or obligations under this Contract without the
express prior written consent of Purchaser.
(c) For purposes hereof, a Permitted Assignment is an
assignment to an entity controlling, controlled by, or under common control
with the entity seeking to assign.
(d) The assigning party agrees to furnish to the other party
such information with respect to a proposed assignee and the proposed terms of
the assignment as such party may request.
(e) No assignment will operate to release the assigning party
from any liability or obligations under this Contract by virtue of any such
assignment, and such party will remain primarily liable for such obligations.
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Any assignment of this Contract in violation of the provisions of this
Paragraph 16 will be null and void.
16. CONDEMNATION/CASUALTY.
(a) Condemnation. In the event that all or any
substantial portion (hereinafter defined) of the Real Property is taken in
condemnation or by conveyance in lieu thereof or under the right of eminent
domain after the Effective Date and before the Closing, Purchaser may, at its
option, either (i) terminate this Contract by written notice thereof to Seller
within ten (10) days after Seller notifies Purchaser of the condemnation, or
(ii) proceed to close the transaction contemplated herein pursuant to the terms
hereof, in which event Seller shall deliver to Purchaser at the Closing any
proceeds actually received by Seller attributable to the Property from such
condemnation or eminent domain proceeding or conveyance in lieu thereof and
assign to Purchaser Seller's rights to such proceeds, and there shall be no
reduction in the Purchase Price. In the event Purchaser fails to timely
deliver written notice of termination as described in clause (i) above,
Purchaser will be deemed to have elected to proceed in accordance with clause
(ii) above. If the taking does not involve a substantial portion of the Real
Property, then Purchaser shall be obligated to close the transaction
contemplated herein according to the terms hereof, notwithstanding such taking,
and Seller will deliver to Purchaser at Closing any and all awards or
consideration attributable to such taking, and there will be no reduction in
the Purchase Price. For purposes of this paragraph, a SUBSTANTIAL PORTION will
be taken or condemned if (i) such taking or condemnation materially affects the
proposed use and utility of the Real Property to the extent that it cannot
reasonably be used for the purposes for which Purchaser intends or (ii) the
value of the area taken or condemned is equal to or greater than ten percent
(10%) of the value of the Real Property as established by the Purchase Price ,
(iii) the taking or condemnation affects ten percent (10%) or more of the
aggregate gross number of square feet contained in the Land, or (iv) such
taking or condemnation causes any portion of the remainder of the Real Property
to be in violation of Applicable Laws.
(b) Casualty. Risk of loss due to casualty shall be
borne by Seller until Closing. Seller shall carry or cause to be carried
insurance in amounts sufficient to restore any of the Improvements damaged by
casualty to the condition they were in immediately prior to such casualty.
Seller will in any event restore any of the Improvements damaged by casualty as
part of its obligation to construct the Improvements; provided that such event
will be and is included within the definition of Force Majeure for all
purposes.
17. CONFIDENTIALITY. Each party hereto agrees to keep
confidential any information obtained by such party or provided by the other
party in connection with the transaction contemplated by this Contract. Such
information includes, without limitation (i) financial information pertaining
to the other party, (ii) information contained in any studies or reports
provided to or obtained by a party and pertaining to the Property, and (iii)
the terms of this Contract. The foregoing covenants expressly and indefinitely
survive the termination of this Contract.
18. MISCELLANEOUS PROVISIONS.
(a) Entire Agreement. THE PARTIES HERETO EXPRESSLY
ACKNOWLEDGE AND AGREE THAT, WITH REGARD TO THE SUBJECT MATTER OF THIS CONTRACT
AND THE TRANSACTIONS CONTEMPLATED HEREIN (I) THERE ARE NO ORAL AGREEMENTS
BETWEEN THE PARTIES HERETO; AND (II) THIS CONTRACT, INCLUDING THE DEFINED TERMS
AND ALL EXHIBITS AND ADDENDUM, IF ANY, ATTACHED HERETO, AND ALL DOCUMENTS
EXECUTED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY (1) EMBODIES
THE FINAL AND COMPLETE AGREEMENT BETWEEN THE PARTIES; (2) SUPERSEDES ALL PRIOR
AND CONTEMPORANEOUS NEGOTIATIONS, OFFERS, PROPOSALS, AGREEMENTS, COMMITMENTS,
PROMISES, ACTS, CONDUCT, COURSE OF DEALING, REPRESENTATIONS, STATEMENTS,
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ASSURANCES AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, AND (3) MAY NOT BE
VARIED OR CONTRADICTED BY EVIDENCE OF ANY SUCH PRIOR OR CONTEMPORANEOUS MATTER
OR BY EVIDENCE OF ANY SUBSEQUENT ORAL AGREEMENT OF THE PARTIES HERETO.
(b) Force Majeure. Neither Seller nor Purchaser shall be
held responsible for any delay in the performance of their respective
obligations hereunder caused by Force Majeure, and such delays shall be
excluded from the computation of the time allowed for the performance of such
obligations. As used herein, FORCE MAJEURE shall mean a delay caused by reason
of fire, acts of God, unreasonable delays in transportation, embargo, weather,
strike, other labor disputes, delays caused by governmental entities,
governmental preemption of priorities or other controls in connection with a
national or other public emergency, or shortages of fuel, supplies or labor or
any similar cause not within Seller's or Purchaser's, as applicable, reasonable
control. By the fifth day of each month, Seller will endeavor to provide
Purchaser with the number of days Seller expects that the Date of Substantial
Completion will be delayed by Force Majeure events occurring during the
previous month; provided that Seller will not be estopped from claiming such
delay days as being caused by Force Majeure unless Seller fails to notify
Purchaser in writing of such Force Majeure events during the calendar month
immediately following the month in which such events occurred.
(c) Nonwaiver. Unless otherwise expressly provided
herein, no waiver by Seller or Purchaser of any provision hereof shall be
deemed to have been made unless expressed in writing and signed by such party.
No delay or omission in the exercise of any right or remedy accruing to Seller
or Purchaser upon any breach under this Contract shall impair such right or
remedy or be construed as a waiver of any such breach theretofore or thereafter
occurring. The waiver by Seller or Purchaser of any breach of any term,
covenant or condition herein stated shall not be deemed to be a waiver of any
other breach, or of a subsequent breach of the same or any other term, covenant
or condition herein contained. All rights, powers, options or remedies
afforded to Seller or Purchaser either hereunder or by law shall be cumulative
and not alternative, and the exercise of one right, power, option or remedy
shall not bar other rights, powers, options or remedies allowed herein or by
law, unless expressly provided to the contrary herein.
(d) Further Acts and Assurances. In addition to the acts
and deeds recited herein and contemplated to be performed, executed and/or
delivered by the parties, the parties will perform, execute and/or deliver or
cause to be performed, executed and/or delivered at the Closing or after the
Closing, any and all further acts, deeds and assurances as each party or the
Title Company may reasonably require to consummate the transaction contemplated
hereunder.
(e) Governing Law. THIS CONTRACT SHALL BE CONSTRUED
UNDER AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS OTHER THAN THE
CONFLICT OF LAWS PRINCIPLES THEREOF. IN ANY PROCEEDING RELATING TO THE
TRANSACTION CONTEMPLATED BY THIS CONTRACT, THE VENUE FOR SUCH PROCEEDING SHALL
BE DALLAS COUNTY, TEXAS, UNLESS OTHERWISE REQUIRED BY LAW.
(f) Construction. The parties acknowledge that each
party and its counsel have reviewed and revised this Contract, and the parties
hereby agree that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Contract or any exhibits hereto. The headings
used throughout this instrument have been used for convenience only and do not
constitute matters to be considered in interpreting this Contract.
(g) Severability. In case any one or more of the
provisions contained in this Contract shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provision hereof, and this
Contract shall be construed
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as if such invalid, illegal or unenforceable provision had never been contained
herein.
(h) Notices. All notices or other communications
required or permitted to be given pursuant to this Contract shall be given in
writing, sent by (i) personal or hand delivery, or (ii) expedited or overnight
delivery service with proof of delivery, or (iii) United States mail, postage
prepaid, registered or certified mail, or (iv) telecopy or fax (provided that
such telecopy or fax is confirmed by personal or hand delivery, expedited or
overnight delivery service or by mail in the manner previously described),
addressed as follows:
If to Seller: MEPC Quorum Properties II Inc.
Attn: ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to: ▇▇▇▇▇▇ Glasgow Kupchynsky & ▇▇▇▇▇▇▇▇▇, L.L.P.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Purchaser: Craftmade International, Inc.
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Title Company, at the address set forth in Paragraph 3 above,
or to such other address or to the attention of such other person as hereafter
shall be designated by ten (10) days prior notice in writing from the
applicable party and sent in accordance herewith. Unless expressly provided
elsewhere herein, any such notice or communication shall be deemed to have been
given and effective (i) at the time of the actual delivery of same to the
intended addressee or any party having actual or apparent authority (it being
agreed that any party accepting delivery at any of the addresses set forth
above shall be deemed to have apparent authority) to accept delivery for such
party, (ii) if sent by United States mail, postage prepaid, registered or
certified mail, upon deposit with the United States Postal Service, and (iii)
if sent by telecopy or fax, at the time of the transmission of same to the
telecopy or fax number set forth above for such addressee. In the event any
notice or communication is given in more than one of the manners set forth
above (for example, by personal delivery and by fax), such notice or
communication shall, for purposes of notice hereunder, be deemed given at the
earliest such time. Notice given in any other manner shall be effective only
if and when received by the addressee.
(i) Counterparts. This Contract may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same
instrument.
(j) No Recording. In no event shall this Contract or any
memorandum hereof be recorded in the public records of the place in which the
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Property is situated, and any such recordation or attempted recordation shall
constitute a breach of this Contract by the party responsible for such
recordation or attempted recordation.
(k) Attorneys' Fees. Should either party employ an
attorney or attorneys to enforce any of the provisions hereof or to protect its
interest in any manner arising under this Contract, or to recover damages for
breach of this Contract, the non-prevailing party in any action pursued in a
court of competent jurisdiction (the finality of which is not legally
contested) agrees to pay to the prevailing party all reasonable costs, damages,
and expenses, including attorney's fees, expended or incurred in connection
therewith.
(l) Exhibits. Exhibits "A" through "M" are attached
hereto and incorporated herein by reference.
(m) Time for Performance. TIME IS OF THE ESSENCE in the
performance of each party's obligations hereunder.
(n) Amendments. Except where otherwise authorized,
permitted or required by the express terms of this Contract or where notice to,
consent or approval of, or joinder by any party has been expressly waived by
the provisions hereof, no amendment, modification, deletion, release,
termination or extension of, alteration, variance or change in, or supplement
to the provisions of, the Contract shall be valid and effective or otherwise
binding on the parties hereto, unless and until such amendment, etc. shall have
been reduced to writing and executed by the parties hereto with the same
formality as this Contract.
(o) Representative Capacity. The individual(s) executing
this Contract on behalf of Seller is doing so in their respective
representative capacity only, solely as a representative of Seller, and any
liability hereunder based on the actions of such individual shall merely be
that of Seller and not the individual.
(p) Site Plan. Purchaser acknowledges that the Site Plan
is only preliminary as of the Effective Date and may be changed by Seller in
non-material respects, subject to Purchaser's right to approve of same, such
not to be unreasonably withheld and to be deemed given if Purchaser fails to
object in writing within five (5) business days after their submission by
Seller. Any such modified Site Plan will automatically replacing that which is
attached hereto as Exhibit "B" without the necessity of amendment to this
Contract .
19. TAX ABATEMENT. Seller agrees to use good faith efforts to
obtain tax abatements from the City of Coppell, Texas with respect to the
Improvements on terms satisfactory to Purchaser; however, the failure of Seller
to obtain any abatement will not be a default hereunder or the failure of any
condition to Closing.
20. LOAN COMMITMENT. Purchaser covenants and agrees to provide
Seller with a binding loan commitment from Purchaser's bona fide third party
lender within forty-five (45) days after the Effective Date. Such commitment
must evidence the obligation of the lender named therein to loan to Purchaser
funds sufficient to allow Purchaser to perform all of its obligations hereunder
and that such lender will be in a position to loan such funds by the Scheduled
Closing Date. Purchaser's failure to provide such commitment to Seller within
forty-five (45) days after the Effective Date will, at Seller's option,
constitute an event of default by Purchaser hereunder upon notice thereof by
Seller, and, notwithstanding Paragraph 13(d) above, Purchaser will not be
entitled to any grace period or any opportunity to cure. In the event of such
default, and notwithstanding any provision of Paragraph 13(a) to the contrary,
Seller may, at its option and as its sole remedy, terminate this Contract and
thereby be entitled to the ▇▇▇▇▇▇▇ Money or, if Seller's actual damages are in
excess of the ▇▇▇▇▇▇▇ Money, Seller will be entitled to not only the ▇▇▇▇▇▇▇
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Money but its actual damages in excess of the ▇▇▇▇▇▇▇ Money. For purposes of
this paragraph, Seller's actual damages will be Seller's actual out-of-pocket
costs incurred through the date of termination without ▇▇▇▇-up or profit.
21. MULTIPLE OCCUPANCY. Purchaser acknowledges and agrees that
the agreements, covenants, representations and warranties of Seller herein are
all based upon the assumption that the Improvements will be constructed for
occupancy by Purchaser and TSI Prime Time and a portion of the Improvements
leased by Purchaser to TSI Prime Time. If Purchaser, either prior to or after
Closing, leases, subdivides or otherwise transfers any portion of the Land or
Improvements to any entity other than TSI Prime Time, and such (i) causes the
Property, or any portion thereof, to fail to comply with any Applicable Laws,
including parking requirements, (ii) causes any delay in the substantial
completion of the Improvements or the issuance of a certificate of occupancy,
or (iii) results in any of Seller's representations or warranties being untrue
in any respect or in Seller being in default under this Contract, then
notwithstanding the occurrence of (i), (ii), or (iii), Seller will not be in
default as a result thereof and Purchaser will have no remedy therefore.
Additionally, if such lease(s), transfer(s), or subdivision(s) increases the
cost of completing the Improvements, the Purchase Price will be increased
accordingly.
22. EFFECTIVE DATE. The EFFECTIVE DATE of this Contract will be
the latter of the two dates upon which this Contract is executed by Seller and
Purchaser where noted below; provided that if Purchaser fails to date its
execution hereof, the Effective Date will be the date Seller executes this
Contract. Additionally, this Contract will be null and void unless Purchaser
executes and delivers this Contract within four (4) business days after receipt
thereof by Purchaser. Until Seller has executed this Contract or a counterpart
thereof and Purchaser has delivered the ▇▇▇▇▇▇▇ Money provided for herein, this
Contract will not be binding on Seller and Seller may negotiate to sell or
lease the Property to other prospective purchasers or tenants.
IN WITNESS WHEREOF, the parties have executed this Contract to be
effective as of the Effective Date.
SELLER:
DATE: May ___, 1995 MEPC QUORUM PROPERTIES II INC., a
Delaware corporation
By:______________________________
Name:____________________________
Title:___________________________
By:______________________________
Name:____________________________
Title:___________________________
PURCHASER:
DATE: May __, 1995 CRAFTMADE INTERNATIONAL, INC., a
Delaware corporation
By:______________________________
Name:____________________________
Title:___________________________
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Exhibits:
"A": Seller's Land
"A-1": The Land
"B": Site Plan
"C": Form of Deed Restrictions
"D": General Construction Features
"E": List of Approved Plans
"F": Reports and Studies delivered to Purchaser
"G": Construction Materials Testing Standards
"H": Deed
"I": ▇▇▇▇ of Sale and Assignment
"J": Non-foreign status Certificate
"K": Memorandum of Right of First Refusal and Option Agreement
"L": Form of Special Warranty Deed to be received in connection with
acquisition of Seller's Land
"M": Easement Agreement
SIGNED by legal counsel for Purchaser, strictly for the purpose of satisfying
the requirements of Texas Business and Commerce Code 17.42(a)(3).
____________________________________
Purchaser's counsel
ACCEPTANCE BY TITLE COMPANY
The undersigned Title Company joins in the execution of this Contract for the
following sole and limited purposes: (i) to acknowledge receipt of the ▇▇▇▇▇▇▇
Money and ___ original counterparts of this Contract on _______________, 1995;
(ii) to evidence its agreement to hold the ▇▇▇▇▇▇▇ Money in trust for the
parties hereto in accordance with the terms of this Contract; (iii) to
acknowledge that upon compliance by the parties with the terms of the Title
Commitment and payment of the applicable policy premium, the undersigned is
prepared to issue the Owner's Policy Title Insurance called for herein on
____________________; and (iv) to acknowledge its agreement to (a) timely file
a return with the Internal Revenue Service on Form 1099-B or such other form as
instructed by the Internal Revenue Service showing the gross proceeds of this
transaction, the recipient thereof and such other information as the Internal
Revenue Service may by form or regulation require from time to time, and (b)
furnish both Seller and Purchaser with a written statement showing the name and
address of the Title Company and the information shown on such return with
respect to the transaction. This return shall be filed to ensure that the
parties to this transaction will be in compliance with Section 6045(e) of the
Internal Revenue Code, as amended from time to time and as further set forth in
any regulations promulgated thereunder.
REPUBLIC TITLE OF TEXAS, INC.
By:_______________________________
Name:_____________________________
Title:____________________________
Date: ____________________________
25
27
ACKNOWLEDGMENT BY BROKERS
The undersigned Agent joins in the execution of this Contract for the
sole and limited purpose of representing and warranting to Purchaser and Seller
that it: (i) is a duly licensed real estate broker under the Texas Real Estate
Licensing Act and its applicable regulations; (ii) is duly authorized to earn
and receive a commission in connection with the transaction evidenced by this
Contract; (iii) has contacted no other real estate broker, finder or other
party in connection with this transaction to whom fees may be due and payable;
and (iv) acknowledges and agrees to the terms and provisions of Paragraph 14
hereof. BROKER:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
By:_________________________
Name: ______________________
Title: _____________________
License No._________________
Date: ______________________
26
28
Exhibit "A"
SELLER'S LAND
29
Exhibit "A-1"
THE LAND
[To Be Attached]
30
Exhibit "B"
SITE PLAN
31
Exhibit "C"
FORM OF DEED RESTRICTIONS
32
EXHIBIT "D"
CONSTRUCTION FEATURES
33
EXHIBIT "E"
PLANS AND SPECIFICATIONS
[To Be Attached]
34
EXHIBIT "F"
LIST OF REPORTS AND STUDIES
1. Environmental Site Assessment prepared by Professional Service
Industries, Inc., Project No. 633-5E006, dated March 31, 1995.
2. Geotechnical Report prepared by ▇▇▇▇ Engineering, Project No. 2317,
dated March 17, 1995.
3. Report Regarding Noise Assessment of Aircraft Using Runway 16/34 East
over the City of Coppell prepared by ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc.
and dated June 1991.
35
EXHIBIT "G"
CMTS
36
EXHIBIT "H"
SPECIAL WARRANTY DEED
STATE OF TEXAS Section
Section KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS Section
That MEPC QUORUM PROPERTIES II INC., a Delaware corporation (GRANTOR),
for and in consideration of the sum of Ten Dollars ($10.00) and other valuable
consideration paid to Grantor by Grantee (hereinafter defined), having an
address of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, the
receipt and sufficiency of which are hereby acknowledged, does hereby GRANT,
SELL, CONVEY, ASSIGN and DELIVER to CRAFTMADE INTERNATIONAL, INC.,, a Delaware
corporation (GRANTEE), the real property situated in Dallas County, Texas
described in Exhibit "A" attached hereto and made a part hereof (the LAND)
together with all improvements thereon, fixtures affixed thereto and, to the
extent that such pertain solely to the Land all rights and interests
appurtenant thereto (specifically including all rights, titles, powers,
privileges, licenses, easements, rights-of-way and interests, if any, of
Grantor, either at law or equity, in possession or in expectancy, in and to any
real estate laying in the streets, highways, roads, alleys, rights-of-ways or
sidewalks open or proposed, in front of, above, over, under, through or joining
said real property and in and to any strips or gores of land adjoining said
real property) (collectively, the PROPERTY), subject to general real estate
taxes on the Property for the current year, zoning laws, regulations and
ordinances of municipal and other governmental authorities, if any, affecting
the Property, and all of the matters described in Exhibit "B" attached hereto
and made a part hereof (all of the foregoing hereinafter called the PERMITTED
EXCEPTIONS). With respect to any rights, interest and appurtenances that are
common to the Land and other tracts of land adjacent to, contiguous with or in
close proximity to the Land, such rights, interest and appurtenances are
conveyed to Purchaser on a non-exclusive basis. Excluded from this conveyance
are any and all rights or interests that Grantor owns that pertain to the
right, including right of first refusal rights, or option to purchase, lease or
develop other property in the development in which the Land is located.
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging, unto Grantee, its
successors and assigns forever, and Grantor does hereby bind itself and its
successors and assigns to warrant and forever defend all and singular the
Property unto Grantee, its successors and assigns against every person
whomsoever lawfully claiming, or to claim the same, or any part thereof by,
through or under Grantor, but not otherwise, subject, however, to the Permitted
Exceptions.
Current ad valorem taxes on Property having been prorated, Grantee
hereby assumes the payment thereof.
IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor
and Grantee to be effective as of the _____ day of _________, 1995.
GRANTOR:
MEPC QUORUM PROPERTIES II INC., a
Delaware corporation
By:_________________________________
Name:_______________________________
As Its:_____________________________
37
Grantee's Address and when
recorded return to:
__________________________
__________________________
__________________________
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on this _______ day of
____________, 1995, by _______________________ _________,
___________________________ of MEPC QUORUM PROPERTIES II INC., a Delaware
corporation, on behalf of said corporation.
___________________________________
Notary Public in and for
the State of Texas
My Commission Expires:
___________________________________
_____________________ Printed/Typed Name of Notary
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on this ______ day of
____________, 1995, by ________________________ ________,
___________________________ of MEPC QUORUM PROPERTIES II INC., a Delaware
corporation, on behalf of said corporation.
___________________________________
Notary Public in and for
the State of Texas
My Commission Expires:
___________________________________
_____________________ Printed/Typed Name of Notary
38
EXHIBIT "I"
▇▇▇▇ OF SALE AND ASSIGNMENT
STATE OF TEXAS Section
Section KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS Section
By a Special Warranty Deed (the DEED) of even date with the effective
date hereof, MEPC Quorum Properties II Inc., a Delaware corporation (SELLER),
conveyed to Craftmade International, a Delaware corporation (PURCHASER), the
property (the PROPERTY) described on Exhibit "A" attached hereto and made a
part hereof for all purposes, together with all improvements located thereon.
As consideration for (a) the conveyance of the Property, (b) the
conveyance of the personal property described herein, and (c) the assignments
contained herein, Buyer paid the sum of TEN AND NO/100 DOLLARS ($10.00) and
other good and valuable consideration to Seller.
NOW, THEREFORE, for the consideration above specified, the receipt and
sufficiency of which are expressly confessed and acknowledged:
1. Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER and
DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER,
SET-OVER and DELIVER unto Purchaser, all fixtures and other items of personal
property situated in, on, or about the Property (all of the property described
in this Paragraph 1 is hereinafter referred to as the PERSONAL PROPERTY).
TO HAVE AND TO HOLD all and singular the Personal Property unto
Purchaser, its successors and assigns, and Seller does hereby bind itself and
its successors to WARRANT and FOREVER DEFEND all and singular the Leases unto
Purchaser, its successors and assigns, against every person whomsoever lawfully
claiming or attempting to claim the same, or any part thereof, by, through or
under Seller, but not otherwise, subject, however, to those matters described
on Exhibit "B" attached hereto and incorporated herein by reference.
2. Seller has ASSIGNED, TRANSFERRED and SET-OVER and by these
presents does ASSIGN, TRANSFER and SET-OVER unto Purchaser all of its right,
title and interest in and to all warranties, guarantees, rights of use and
licenses held by Seller pertaining to the buildings, improvements, fixtures,
personalty and/or other properties comprising the Property and/or Personal
Property, including, without limiting the generality of the foregoing, all
items and matters described in Exhibit "B" attached hereto and made a part
hereof; provided that Seller reserves the right to enforce same.
This ▇▇▇▇ of Sale and Assignment and the provisions herein contained
shall be binding upon and inure to the benefit of Purchaser and Seller and
their respective successors and assigns.
SELLER:
DATE: _______________ MEPC QUORUM PROPERTIES II INC., a
Delaware corporation
By:______________________________
Name:____________________________
Title:___________________________
By:______________________________
Name:____________________________
Title:___________________________
39
PURCHASER:
DATE:_______________ CRAFTMADE INTERNATIONAL, INC., a
Delaware corporation
By:______________________________
Name:____________________________
Title:___________________________
40
EXHIBIT "J"
NON-FOREIGN AFFIDAVIT
Section 1445 of the Internal Revenue Code of 1986, as amended
(the"Code") provides that a transferee of a U.S. real property interest must
withhold tax if the transferor is a foreign person. To inform the transferee
that withholding of tax is not required upon the disposition of a U.S. real
property interest by MEPC Quorum Properties I Inc., a Delaware corporation (the
"Transferor"), the undersigned hereby certifies the following on behalf of the
Transferor:
1. The Transferor is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms
are defined in the Code and treasury regulations promulgated
pursuant thereto);
2. The Transferor's U.S. employer identification number is
__________; and
3. The Transferor's office address is 15303 Dallas Parkway, Suite
100, LB 10, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
The Transferor understands that this certification may be disclosed to
the Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalty of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct
and complete, and I further declare that I have authority to sign this document
on behalf of the Transferor.
MEPC QUORUM PROPERTIES II INC., a
Delaware corporation
By:_________________________________
Name:_______________________________
As Its:_____________________________
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was acknowledged before me on this _________ day of
____________, 1995, by _____________________ _____________,
____________________________________ of MEPC QUORUM PROPERTIES II INC., a
Delaware corporation, on behalf of said corporation.
___________________________________
Notary Public in and for
the State of Texas
My Commission Expires:
___________________________________
_____________________ Printed/Typed Name of Notary
41
Exhibit "K"
MEMORANDUM OF RIGHT OF FIRST REFUSAL AND OPTION AGREEMENT
42
Exhibit "L"
FORM OF SPECIAL WARRANTY DEED TO BE RECEIVED
IN CONNECTION WITH ACQUISITION OF SELLER'S LAND
43
Exhibit "M"
EASEMENT AGREEMENT
[To Be Attached]