CONTRACT FOR THE
PURCHASE
AND SALE OF REAL ESTATE
This CONTRACT FOR
THE PURCHASE AND SALE OF REAL ESTATE (this “ Contract
”) is executed between WEST PLANO LAND COMPANY, LP a
Delaware limited partnership (“ Seller ”), and
DIODES INCORPORATED , a Delaware corporation (“
Purchaser ”), to be effective (the “
Effective Date ”) when fully executed by Seller and
Purchaser.
SECTION 1
AGREEMENT OF SALE AND PURCHASE
1.01 In
consideration of the covenants contained herein, and subject to the
terms and conditions hereof, Seller agrees to sell to Purchaser and
Purchaser agrees to purchase from Seller the real property being
approximately 15.5 acres located in Plano, Collin County, Texas
bounded on the east side by Communications Parkway and on the north
side by Legacy Drive as depicted on Exhibit
“A” attached hereto and incorporated herein,
together with all improvements located thereon and all rights and
appurtenances pertaining thereto, if any, including all rights,
title, and interest of Seller in and to adjacent streets, alleys,
and rights-of-way (all of the foregoing collectively referred to as
the “ Property ”).
1.02 Upon
delivery of the Survey (as hereinafter defined), the metes and
bounds legal description reflected on the Survey shall be
substituted for Exhibit “A” for all
purposes under this Contract.
2.01 On or
before 5:00 p.m., Dallas, Texas, time on the third (3rd) business
day after the Effective Date, Purchaser shall deliver wired funds
to Republic Title Company of Texas, Inc., 2626 Howell Street,
10 th
Floor, Dallas, Texas 75204,
Attention: C. Richard White [phone (214) 855-8868] (the
“ Title Company ”) in the amount of One Hundred
Thousand Dollars ($100,000.00) (the “ Earnest Money
”). The Title Company shall place the Earnest Money in an
FDIC-insured, interest-bearing account in a financial institution
approved by Seller (with the Title Company placing the Earnest
Money in multiple accounts to the extent necessary for the Earnest
Money to be fully insured). All interest earned on any portion of
the Earnest Money held in escrow by the Title Company hereunder
shall (a) be added to the principal of the Earnest Money then
held in escrow; (b) constitute a part of the Earnest Money; and
(c) be included within the meaning and definition of the term
“ Earnest Money ” used herein. Interest earned
on the Earnest Money shall, for income tax purposes, be deemed
earned by Purchaser. Purchaser hereby represents and warrants that
its federal taxpayer identification number is
95-2039518.
2.02
Unless returned to Purchaser as hereinafter provided or paid to
Seller as hereinafter provided, the Earnest Money shall be paid to
Seller at Closing (hereinafter defined) as a credit against the
Purchase Price (hereinafter defined).
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2.03
Purchaser’s obligation to deliver the Earnest Money is a
condition precedent to Seller’s obligations and
Purchaser’s rights hereunder. If Purchaser fails to deposit
the Earnest Money as required by Section 2.01 hereof, Seller
may terminate this Contract immediately upon written notice to
Purchaser (without any opportunity by Purchaser to cure);
whereupon, except for the Surviving Obligations (hereinafter
defined), neither party shall have any further rights, obligations,
or remedies under this Contract. Seller’s right to terminate
this Contract as provided in this Section 2.03 shall continue
until the Earnest Money has been deposited and can only be waived
by Seller in writing.
The purchase price
(the “ Purchase Price ”) for the Property shall
be based on an amount equal to Seven and 50/100 Dollars ($7.50) per
square foot of Net Land Area contained in the Property, being
approximately Five Million Sixty-three Thousand Eight Hundred Fifty
Dollars ($5,063,850.00), to be amended, however, as the Net Land
Area is determined by the Survey (as hereinafter defined), and
shall be payable to Seller, in cash, in accordance with the terms
provided herein at the Closing (as hereinafter defined). The term
“ Net Land Area ” means the gross land area of
the Property less the land area, if any, included in
(i) utility easements, drainage easements, ingress/egress
easements or existing or proposed rights-of-way that materially and
adversely affect the development or use of the Property for
commercial office purposes (excepting any easements located within
the landscape setback), (ii) the 100-year flood plain, and
(iii) encroachments on the Property. Any area within the
100-year flood plain shall be as defined by the Federal Emergency
Management Agency or other applicable governmental
authority.
SECTION 4
TITLE COMMITMENT AND SURVEY
4.01
Delivery of Title Commitment . Within fifteen (15) days
after the Effective Date, Seller, at its sole cost and expense,
shall cause to be delivered to Purchaser a current commitment for
title insurance covering the Property issued by the Title Company,
together with the best available copies of all items referred to
therein as exceptions (collectively, the “ Title
Commitment ”).
4.02
Delivery of Survey . Within fifteen (15) days after the
Effective Date, Seller, at Seller’s cost and expense, shall
cause to be delivered to Purchaser the most current survey of the
Property (the “ Survey ”) in Seller’s
possession, prepared by a licensed surveyor or engineer (the
“ Surveyor ”) and meeting the minimum standard
detail requirements for ALTA/ACSM Land Title Surveys. The Survey
shall (i) set forth a “metes and bounds”
description of the Property, (ii) show all alleys, streets,
roads, and rights-of-way within the boundaries of the Property,
(iii) show any improvements that constitute an encroachment or
protrusion affecting the Property, (iv) identify any portion
of the Property lying within any 100-year flood plain,
(v) identify all recorded easements that affect the Property,
(vi) set forth the number of total square feet of the
Property, and (vii) specify the gross land area and the Net
Land Area of the Property. The Survey shall include a certification
to the Title Company and Purchaser and shall be otherwise
in
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a form
acceptable to the Title Company to permit, at Purchaser’s
sole cost and election, modification of the Survey exception to the
Owner’s Policy of Title Insurance to be delivered to
Purchaser to read “Shortages in Area” only.
SECTION 5
PURCHASER’S REVIEW OF TITLE COMMITMENT
AND SURVEY
5.01
Purchaser’s Title Review Period . Purchaser shall have
until 5:00 p.m., Dallas, Texas, time on the tenth (10
th ) day after Purchaser receives the last of the
Title Commitment and the Survey (the “ Title Review
Period ”) within which to review and make written
objections (the “ Objections ”) to any matters
shown or referred to in the Title Commitment or on the Survey. All
matters shown in the Title Commitment or on the Survey with respect
to which Purchaser does not make an Objection within the Title
Review Period shall be deemed “ Permitted Exceptions
.”
5.02
Seller’s Response; Purchaser’s Right to
Terminate . Seller shall respond in writing (“
Seller’s Response ”) to any Objections within
five (5) business days after receiving Purchaser’s
Objections; provided however, Seller shall have no obligation to
cure any Objections. If Seller’s Response is unsatisfactory
to Purchaser for any reason, Purchaser, as its sole and exclusive
remedy, may terminate this Contract by delivering written notice of
termination to Seller within three (3) days after receiving
Seller’s Response (the “ Termination Period
”); whereupon, the Earnest Money shall be returned to
Purchaser, and, except for the Surviving Obligations (hereafter
defined), neither party shall have any further rights, obligations,
or remedies under this Contract. In the event that Purchaser elects
not to terminate the Contract, any Objection which Seller has not
agreed to cure, other than a Must-Cure Objection, shall be deemed
to be a Permitted Exception. Notwithstanding the foregoing, Seller
agrees at or prior to Closing to satisfy and cause to be released
of record the following (“ Must-Cure Objections
”): (i) any mortgage, deed of trust or other security
interest granted by Seller to secure a loan or other monetary
obligation, and (ii) any mechanic’s, materialmen’s,
tax, judgment or other lien entered against Seller that would
survive Closing and thereafter be enforceable against the Property
or Purchaser, as owner of the Property. In addition, Seller agrees
to terminate the Haggard Lease (as hereinafter defined) as it
relates to the Property on or before the Closing Date.
5.03
Purchaser’s Failure to Terminate . If Purchaser fails
to terminate this Contract within the Inspection Period (defined
below) or the Termination Period:
(a) Purchaser
shall be deemed to have unconditionally waived all Objections to
any matters shown in the Title Commitment or on the Survey that
remain uncured upon expiration of the Termination Period except
those Objections, if any, that Seller has agreed in writing to cure
prior to Closing (including any Must-Cure Objections);
(b) Permitted
Exceptions shall also include any Objections which Purchaser has
waived or is deemed to have waived or that Seller has cured to
Purchaser’s reasonable satisfaction prior to
Closing;
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(c) Upon
expiration of the Inspection Period, Purchaser shall have completed
its Studies (hereinafter defined) and, except for matters Seller
has cured or agreed in writing to cure prior to Closing, Purchaser
shall be deemed to have unconditionally approved and accepted the
condition of the Property, except as to matters which must be
satisfied under the terms of Section 6.07 as a condition to
Closing;
(d) Upon
expiration of the Inspection Period, Purchaser shall be deemed to
have unconditionally waived any Necessary Approvals (as hereafter
defined) which have not yet been obtained; and
(e) Upon
expiration of the Inspection Period, the Earnest Money shall become
nonrefundable, except in the event of Seller’s default or a
failure of any express condition precedent to Purchaser’s
obligation to close.
SECTION 6
PURCHASER’S INSPECTION PERIOD; COVENANTS AND
CONDITIONS
6.01
Purchaser’s Inspection Period; Right to Terminate .
Purchaser shall have the period (the “ Inspection
Period ”) beginning on the Effective Date and ending on
June 15, 2008 during which to inspect the Property and to seek
to obtain the Necessary Approvals. In the event Purchaser
determines the Property is unacceptable to Purchaser, or if
Purchaser fails to obtain any of the Necessary Approvals, Purchaser
has the right to terminate this Contract, in its sole discretion,
by written notice delivered to Seller prior to the expiration of
the Inspection Period, whereupon the Earnest Money shall be
returned to Purchaser and, except for the Surviving Obligations,
neither party shall have any further rights, obligations, or
remedies under this Contract.
6.02
Right to Inspect . During the Inspection Period and subject
to Seller’s security requirements, Purchaser shall have the
right to go onto the Property during normal business hours to
conduct such physical, engineering, archeological, soils,
subsidence, environmental, feasibility, and other tests and studies
as Purchaser deems appropriate (collectively, the “
Studies ”), all at the sole cost and expense of
Purchaser. Purchaser shall obtain the approval of Seller prior to
performing any invasive tests on the Property, which approval shall
not be unreasonably withheld. If this Contract fails to close,
Purchaser shall restore the Property to substantially the same
condition as existed prior to entry onto the Property, at the sole
cost and expense of Purchaser. Purchaser shall release, hold
harmless, defend, and indemnify Seller (and the directors,
officers, employees, agents, and representatives of Seller,
collectively) from and against any claim, suit, liability, damage,
loss, cost, and expense (including the reasonable fees and expenses
of attorneys selected by any of the indemnified parties) asserted
against or incurred by such indemnified parties as a direct or
indirect result of any act or omission of Purchaser or its
employees, agents, contractors, or representatives in conducting
the Studies, provided, however, the indemnity shall not extend to
(i) protect Seller from any pre-existing liabilities for
matters merely discovered by Purchaser (i.e., latent environmental
contamination), except to the extent such liabilities are increased
due to Purchaser’s actions or negligence or (ii) any
liens, claims, causes of action, damages, liabilities or expenses
that are attributable to the action or inaction of Seller or its
agent or employees. The obligations of Purchaser to restore the
Property and to hold harmless, defend, and indemnify Seller (or any
other indemnified parties) contained in this Section 6 shall
survive Closing or any termination of this Contract.
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6.03
Necessary Approvals . During the Inspection Period,
Purchaser shall seek to secure from the applicable governmental
authorities all changes of zoning, special use permits, conditional
use permits, approvals, consents, licenses and permits necessary
for Purchaser’s development of the Property (collectively,
the “ Necessary Approvals ”). Purchaser shall
submit to the appropriate governmental authorities all applicable
applications for the Necessary Approvals, together with any related
supporting documentation, promptly following the Effective Date.
Any Necessary Approvals which would be binding upon Seller in the
event Purchaser does not close its acquisition of the Property
shall be subject to the prior approval of Seller in its sole and
absolute discretion.
6.04
Delivery of Reports . Seller will deliver to Purchaser the
following documents, if any, in Seller’s possession:
(a) a copy of that certain Environmental FirstSearch Report
prepared by Banks Information Solutions, Inc., Job 0710-02 dated
July 10, 2006 (“Phase I”) covering the Property
and certain additional property not covered by the Contract, which
if provided by Seller, shall be for informational purposes only,
and shall not be used in lieu of Purchaser’s further due
diligence inspection of the Property during the Inspection Period,
as defined in Section 6.01 hereof; (b) correspondence
with governmental agencies regarding the environmental condition of
the Property; if any, (c) copies of the ad valorem tax
statements covering the Property for the three (3) year period
prior to the Effective Date (or for the period of time that Seller
has owned the Property, whichever is less); (d) copies of all
geotechnical reports and soil compaction tests performed by or on
behalf of Seller with regard to the Property, if any, which, if
provided by Seller, shall be for informational purposes only, and
shall not be used in lieu of Purchaser’s further due
diligence inspection of the Property during the Inspection Period,
as defined in Section 6.01 hereof; and (e) a copy of the
recorded subdivision plat to which the Property is a part, if any.
Purchaser acknowledges that Seller is not making any
representations or warranties concerning the environmental
condition of the Property or as to the accuracy, completeness, or
conclusions contained in the Phase I or as to the accuracy,
completeness or conclusions contained in any other report delivered
by Seller to Purchaser under this Section 6.04. Additionally, if
Purchaser and Seller have failed to close the sale and purchase of
the Property, upon the Seller’s request, Purchaser will
provide or cause its consultants to provide to Seller copies of all
third party studies, reports and test results received by the
Purchaser (collectively, “Reports”) and the consultants
regarding the Property (without representation or warranty as to
the accuracy, completeness, or conclusions contained in the
Reports), without any additional charge to Seller, within three
(3) business days from the date of termination of this
Contract, and if Purchaser is entitled to a refund of the Earnest
Money under the applicable termination, the delivery of such
Reports to Seller shall be a condition precedent to the return of
the Earnest Money to Purchaser.
6.05
Required Insurance . Purchaser shall maintain
(i) comprehensive general liability insurance, including
blanket contractual liability insurance, on a per occurrence basis
and in an amount of not less than $3,000,000.00 covering any
personal injury and property damage arising in connection with the
presence of the Purchaser, its employees, representatives, agents,
contractors, any subcontractors, vendors or their respective
employees, representatives or agents,
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(ii) comprehensive automobile liability
insurance covering all owned, non-owned and hired vehicles, with
limits of not less than $1,000,000.00 combined single limit for
personal injury and property damage, and (iii) statutory
worker’s compensation and employer’s liability coverage
in amounts not less than $250,000.00, or qualified self-insurance,
with sufficient evidence of such self-insurance as reasonably
requested by Seller. Purchaser will deliver a certificate of
insurance that names Seller and Purchaser as an additional insured
thereunder related to the liability coverage as their respective
interests may appear, verifying such coverage to Seller prior to
entry upon the Property. All insurance will be provided by
insurance companies reasonably acceptable to the Seller, authorized
to do business in the State of Texas and rated not less than A-VII
in Best’s Insurance Guide. Purchaser’s liability
insurance will be a primary policy and not in excess or
contributing with or secondary to any other insurance as may be
available to Seller. Seller retains the right to request
certificates of insurance from contractors, subcontractors and
vendors of Purchaser prior to entering the Property to ensure
compliance with this Contract. In the event Purchaser’s
insurance is materially changed which may affect Seller’s
interest or is going to be cancelled, Purchaser will provide Seller
notice 30 days prior to any such change or cancellation.
Purchaser’s indemnification set forth in the prior paragraph
shall remain in full force and effect related to any and all
activities of Purchaser and Purchaser’s employees,
representatives, agents, subcontractors, vendors, guests and
invitees. The obligations of Purchaser contained in this
Section 6.05 shall survive Closing or any termination of this
Contract.
6.06
Seller’s Obligations Prior to Closing . From and after
the Effective Date until Closing, Seller and/or Seller’s
agents or representatives shall:
(a)
Notices . Provide to Purchaser, within a reasonable time
following receipt thereof, any and all notices in any manner
relating to the Property received by Seller or its agents or
representatives from any governmental or quasi-governmental
instrumentality.
(b)
New Contracts . Seller shall refrain from transferring the
Property, or creating on the Property any easements; provided,
however, that nothing herein shall preclude Seller from (i) placing
new or additional financing on the Property secured by a Deed of
Trust, Assignment of Leases and Rents, or other lien, provided that
such liens may by their terms be removed by Seller at Closing, or
(ii) entering into any easements or other documents required
by any applicable governmental or quasi-governmental authority or
provider of utility services.
6.07
Haggard Lease . Seller has informed Purchaser that the
Property is currently subject to a farming and grazing lease (the
“ Haggard Lease ”). Seller covenants that
neither the Haggard Lease nor a Memorandum thereof will be recorded
and that Seller will terminate the Haggard Lease as it relates to
the Property on or before the Closing Date. Seller will provide a
copy of the Haggard Lease to Purchaser promptly following the
Effective Date.
6.08
Conditions to Purchaser’s Obligation to Close . The
obligation of Purchaser to consummate the conveyance of the
Property hereunder is subject to the full and complete satisfaction
of each of the following conditions precedent:
(a) The
representations and warranties of Seller contained in this Contract
shall be true, complete and accurate in all material respects, on
and as of the date hereof and the Closing Date as if the same were
made on and as of such date;
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(b) Seller
shall have performed each and every obligation and covenant of
Seller to be performed hereunder; and
(c) The
Haggard Lease is terminated as it relates to the Property effective
as of the Closing Date.
Purchaser
shall have the right to waive some or all of the foregoing
conditions in its sole and absolute discretion; provided, however,
that no such waiver shall be effective or binding on Purchaser
unless it is in writing and executed by an authorized officer of
Purchaser.
6.09
Conditions to Seller’s Obligation to Close . The
obligation of Seller to consummate the conveyance of the Property
hereunder is subject to the full and complete satisfaction of each
of the following conditions precedent:
(a) The
representations and warranties of Purchaser contained in this
Contract shall be true, complete and accurate in all material
respects, on and as of the date hereof and the Closing Date as if
the same were made on and as of such date; and
(b) Purchaser
shall have performed each and every obligation and covenant of
Purchaser to be performed hereunder.
Seller
shall have the right to waive some or all of the foregoing
conditions in its sole and absolute discretion; provided, however,
that no such waiver shall be effective or binding on Seller unless
it is in writing and executed by an authorized officer of
Seller.
SECTION 7
REPRESENTATIONS
7.01
Representations of Seller . Seller makes the following
representations to Purchaser which are true and correct as of the
date Seller executes this Contract and which shall be true and
correct at Closing:
(a) To
Seller’s Knowledge (hereafter defined), Seller has not
received any notice, and has no actual knowledge, of any pending or
threatened litigation or pending or threatened condemnation
proceeding that affects the Property;
(b) Except
for the Haggard Lease, to Seller’s Knowledge, there are no
parties in possession of any portion of the Property as lessees,
tenants at sufferance or trespassers;
(c) To
Seller’s Knowledge, there are no mechanic’s liens or
unrecorded liens against the Property for any activities
attributable to Seller, its agents, or employees;
(d) Seller
is a Delaware limited partnership, validly existing and in good
standing, with full power and authority to enter into this
Contract, to consummate the sale and purchase of the Property, and
to perform the covenants and agreements of Seller, all as
contemplated or provided for by this Contract; and are empowered to
bind Seller to this Contract;
(e) Except
as provided in this Contract, no joinder or consent of any other
person or party is required in connection with the consummation of
sale and Purchase of the Property under this Contract by
Seller;
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(f) The
execution, delivery and performance of this Contract does not, and
the consummation of the transactions contemplated hereby will not,
violate any provision of the Articles of the partnership agreement
of Seller, or any provision of any agreement, instrument, order,
judgment or decree to which Seller is a party;
(g) There
is no claim, action, litigation, arbitration or other proceeding
pending or, to the best of Seller’s knowledge, threatened
against Seller which relates to the Property or the transactions
contemplated hereby or which to the knowledge of Seller could
result in the imposition of a lien against the Property or an
action against Purchaser. If Seller receives notice of any such
claim, litigation or proceeding prior to the Closing, Seller shall
promptly notify Purchaser of the same in writing;
(h) To
Seller’s knowledge, Seller has not received any written
notices from any federal, state, county or municipal agency or
authority claiming a material violation or breach of any laws,
ordinances, orders, regulations or guidelines affecting the
Property, which breach or violation has not been cured by Seller;
and
(i) Seller
is not a “ foreign person ” as that term is used
in Section 1445(f)(3) of the United States Internal Revenue
Code of 1986, as amended.
With
the sole exception of Sections 7.01(d), (e) and (f), all
representations and warranties of Seller contained in this
Contract, however described or characterized, including, but not
limited to, Seller’s “knowledge” and
Seller’s “actual knowledge” (“
Seller’s Knowledge ”) shall be representations
and warranties based solely on the actual knowledge of Mark C.
Allyn and David Reed (“ Seller’s Representatives
”). The “actual knowledge” of the foregoing
individuals does not create any independent duty of inquiry by such
individuals and does not include any knowledge imputed to them from
any other person. None of Mark C. Allyn or David Reed shall have
any personal liability to Purchaser under this Contract. The
express representations and warranties of Seller made in this
Contract shall survive Closing and not merge into any instrument or
conveyance delivered at the Closing; provided, however, that any
action, suit or proceeding with respect to the truth, accuracy or
completeness of such representations and warranties shall be
commenced, if at all, on or before the date which is twelve
(12) months after the date of the Closing and, if not
commenced on or before such date, thereafter such representations
and warranties shall be void and of no force or effect, and
provided further, (a) Purchaser shall seek only actual damages
and not consequential, special, punitive or indirect damages as a
result of any default by Seller, and (b) in no event shall
Seller’s aggregate liability to Purchaser under this Contract
for any and all breaches of a representation and warranty or any
other obligation that survives Closing exceed an amount equal to
Five Hundred Thousand and No/100 Dollars ($500,000.00).
7.02
EXCEPT AS SPECIFICALLY PROVIDED IN THIS CONTRACT OR IN ANY DOCUMENT
DELIVERED BY SELLER TO PURCHASER AT CLOSING:
(a) Purchaser
acknowledges and agrees that none of Seller or its agents or
representatives has made any representations or warranties as to
the Property or its environmental or physical condition.
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(b) Purchaser
acknowledges and agrees that EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN THIS CONTRACT, SELLER HAS NOT MADE, DOES NOT MAKE, AND
EXPRESSLY DISCLAIMS, ANY WARRANTIES, REPRESENTATIONS, COVENANTS, OR
GUARANTEES, EXPRESS OR IMPLIED OR ARISING BY OPERATION OF LAW, AS
TO THE MERCHANTABILITY, HABITABILITY, QUANTITY, QUALITY, OR
ENVIRONMENTAL CONDITION OF THE PROPERTY (INCLUDING BUT NOT LIMITED
TO THE PRESENCE OR ABSENCE OF ANY AND ALL HAZARDOUS MATERIALS) OR
ITS SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT HAVING BEEN GIVEN
THE OPPORTUNITY TO INSPECT THE PROPERTY DURING THE INSPECTION
PERIOD, OTHER THAN THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE
BY SELLER IN THIS CONTRACT, PURCHASER IS RELYING SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED
OR TO BE PROVIDED BY SELLER. PURCHASER FURTHER ACKNOWLEDGES AND
AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT
TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT
SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION
OF SUCH INFORMATION AND, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS CONTRACT, MAKES NO REPRESENTATIONS AS TO THE ACCURACY OR
COMPLETENESS OF SUCH INFORMATION.
(c) Purchaser
acknowledges and agrees that as of Closing, Purchaser will have
thoroughly investigated and thoroughly inspected the Property and
will be familiar and satisfied with all aspects of the physical
condition of the Property and will have made its own determination
as to the merchantability, habitability, quantity, quality, and
condition of the Property, including, without limitation, the
possible presence of Hazardous Materials (as hereinafter defined)
at, on, in, or under the Property and the Property’
suitability or fitness for any particular purpose or
use.
(d) Purchaser
acknowledges and agrees that after Closing (except as to provisions
of this Contract which expressly survive Closing), Purchaser will
be deemed to have unconditionally accepted the Property in its
condition on the Closing Date on an “AS IS”,
“WHERE IS” and “WITH ALL FAULTS”
basis (including any environmental conditions or matters) and
acknowledges and agrees that without this unconditional acceptance,
the sale of the Property would not be made and that Seller shall be
under no obligation whatsoever to undertake any repair, alteration,
remediation, or other work of any kind with respect to any portion
of the Property.
(e) Purchaser,
and Purchaser’s successors and assigns, expressly and
unconditionally release Seller and Seller’s affiliates,
successors, and assigns from any and all responsibility, liability,
obligations, and claims (whether known or unknown, apparent,
non-apparent, or latent, and whether existing prior to, at, or
after the Closing) that Purchaser and its successors and assigns
may now or hereafter have against Seller and Seller’s
affiliates, successors, and assigns based, in whole or in part,
upon the presence of Hazardous Materials at, on, in, or under the
Property, including, without limitation, any obligation to take the
Property back or reduce the Purchase Price, and including any
actions for contribution or indemnity.
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(f) The
term “ Hazardous Materials ” as used in this
Section 7 means any substances (a) the presence of which
requires reporting, investigations or remediation under any current
federal, state, or local statute, regulation or ordinance or
(b) which are currently defined as hazardous waste, hazardous
substances, toxic substances, regulated substances, pollutants, or
contaminants under any current federal, state, or local statute,
regulation or ordinance.
THE PROVISIONS OF THIS SECTION
7.02 SHALL SURVIVE THE CLOSING.
7.03
Purchaser acknowledges and agrees that the provisions of this
Section 7 have been negotiated by the parties, have been
reviewed by Purchaser and by an attorney selected by Purchaser and
that Purchaser fully understands and accepts the provisions of this
Section 7.
7.04
Representations of Purchaser . Purchaser makes the following
representations to Seller which are true and correct as of the date
Purchaser executes this Contract and which shall be true and
correct at the closing of this Contract:
(a) Purchaser
is a corporation with full power and authority to enter into this
Contract and to consummate the sale and purchase of the Property,
and to perform all covenants and agreements of Purchaser as
contemplated by this Contract, and the party or parties executing
this Contract on behalf of Purchaser have been duly authorized and
are empowered to bind Purchaser to this Contract.
(b) Except
as provided in this Contract, no joinder or consent of any other
person or party is required in connection with the consummation of
sale and Purchase of the Property under this Contract by
Purchaser.
(c) The
execution, delivery and performance of this Contract does not, and
the consummation of the transactions contemplated hereby will not,
violate any provision of the articles of incorporation, bylaws,
certificate of authority (if Purchaser is a foreign corporation) of
Purchaser, or any provision of any agreement, instrument, order,
judgment or decree to which Purchaser is a party.
(d) Neither
Purchaser nor, to Purchaser’s knowledge, any of its
affiliates, nor any of their respective partners, members,
shareholders or other equity owners, and none of their respective
employees, officers, directors, representatives or agents, is a
person or entity with whom U.S. persons or entities are restricted
from doing business under regulations of the Office of Foreign
Asset Control (“ OFAC ”) of the Department of
the Treasury (including those named on OFAC’s Specially
Designated and Blocked Persons List) or under any statute,
executive order (including the September 24, 2001, Executive Order
Blocking Property and Prohibiting Transactions with Persons Who
Commit, Threaten to Commit, or Support Terrorism), or other
governmental action.
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8.01
Closing . If neither party has terminated this Contract as
permitted herein, the closing of this Contract (the “
Closing ”) shall occur at the office of the Title
Company, or such other place as may be agreed to by Seller and
Purchaser, on the date which is fifteen (15) days after the
expiration of the Inspection Period (the “ Closing
Date ”). At or prior to 2:00 p.m., Dallas, Texas time, on
the Closing Date, Purchaser shall deposit or cause to be deposited
with the Title Company sums sufficient to pay the Purchase Price
(net of all prorations, adjustments and credits to be made
hereunder). Provided all conditions precedent to Purchaser’s
obligation to close have been satisfied or waived, Purchaser shall
cause the Purchase Price to be paid to Seller prior to 3:00 p.m.
Dallas, Texas time as follows:
(a) Purchaser
shall cause the Title Company to pay Seller the Earnest Money being
held by the Title Company, by federal wire transfer in immediately
available funds to any bank account(s) as Seller shall designate,
and the amount of such payment shall be credited against the
Purchase Price.
(b) Purchaser
shall cause the Title Company to pay Seller the remaining balance
of the Purchase Price, after crediting the amounts set forth in
this Section 8 received by Seller and subject to the
prorations, adjustments and credits to be made hereunder, by
federal wire transfer in immediately available funds to such bank
account(s) as Seller may designate.
(c) Purchaser
and Seller shall each have the right, on or prior to the Closing
Date, to deposit into escrow with the Title Company all closing
documents and other items required to fully and completely
consummate Closing pursuant to this Contract, in which event either
party exercising such right shall not be required to attend Closing
in person, and such failure to attend Closing shall not constitute
a default hereunder. Purchaser and Seller shall endeavor in good
faith to compile and calculate all required prorations and
adjustments, and to prepare (or cause the Title Company to prepare)
a settlement statement acceptable to both Purchaser and Seller
detailing all items and costs of Closing, no later than three
(3) business days prior to the Closing Date.
(d) Purchaser
represents to Seller that it has received approval of the
development incentives from the City Council of the City of Plano
as described in the acceptance letter from Purchaser to the City of
Plano dated April 9, 2008 (the “ Approval”
) for its intended development upon the Property, subject to
satisfaction of the conditions (the “ Approval
Conditions ”) specified in the Approval. Purchaser agrees
to provide seller with a copy of the Approval within three
(3) business days of the Effective Date of this Contract and
diligently pursue satisfaction of all of the Approval Conditions.
Seller will cooperate and provide reasonable assistance to
Purchaser in satisfying the Approval Conditions, including, without
limitation, if requested by Purchaser, attendance and support of
Purchaser at all meetings and hearings before the City Council of
the City of Plano relating to the Approval or the proposed
development of the Property. Notwithstanding any provisions to the
contrary herein, if Purchaser has not obtained written confirmation
from the City of Plano that all of the Approval Conditions have
been satisfied and the development incentives have been finally
approved (the “ Final Approval ”) prior to the
scheduled Closing Date, then Purchaser may elect, at its sole
discretion, by written notice to Seller
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given at least
three (3) business days prior to the Closing Date to either
(i) waive obtaining the Final Approval as a condition to
Closing, or (ii) extend the Closing Date to the earlier of (x)
three (3) business days following receipt of written
confirmation from the City Council of the City of Plano that the
Approval Conditions have been satisfied and Final Approval of the
development incentives accepted by Purchaser in the Approval has
been given or (y) thirty (30) days following the
originally schedule Closing Date (the “ Outside Closing
Date ”) As part of its written notice of extension,
Purchaser will provide Seller with reasonable evidence that
Purchaser has timely provided all items and otherwise complied with
the Approval Conditions together with a listing of any outstanding
items and the time frames within which such items are to expected
to be obtained. In the event that Final Approval has not been given
on or before thirty (30) days from the originally scheduled
Closing Date then Purchaser may elect by giving written notice to
Seller on or before the Outside Closing Date, at its sole
discretion, to either (i) waive obtaining the Final Approval
as a condition to Closing or (ii) terminate this Contract by
delivery of a written termination notice to Seller on or before the
Closing Date, in which event the Earnest Money shall be immediately
returned to Purchaser free of claims by Seller. The Final Approval
described in this Section 8.01(d) is for Purchaser’s
benefit and can only be waived by Purchaser.
8.02
Seller’s Obligations at Closing . At Closing, Seller
shall deliver or cause to be delivered to the Title Company prior
to 2:00 p.m. Dallas, Texas time on the Closing Date, and shall
cause to be released to Purchaser prior to 3:00 p.m. Dallas, Texas
time on the Closing Date, all at Seller’s sole cost and
expense:
(a) A
special warranty deed (the “ Deed ”) in the form
shown in Exhibit “B” , attached hereto
and incorporated herein, duly executed and acknowledged by Seller
in recordable form conveying to Purchaser good and indefeasible fee
simple title to the Property, subject only to the Permitted
Exceptions;
(b) The
Memorandum of Right of First Offer and Right of First Refusal as
provided in Section 11.06(i) below;
(c) An
Owner’s Policy of Title Insurance insuring good and
indefeasible fee simple title in Purchaser in the full amount of
the Purchase Price and subject only to the Permitted Exceptions
(said policy to be delivered by the Title Company in due course
following the closing);
(d) A
termination letter executed by Seller relating to the termination
of the Haggard Lease as it relates to the Property;
(e) A
non-foreign affidavit pursuant to Section 1445 of the Code
stating that Seller is not a foreign entity and such other
information as may be required by Section 1445 of the
Code;
(f) A
Secretary’s Certificate or other officer’s certificate
from Seller evidencing the status and capacity of Seller and the
authority of the person executing the various documents on behalf
of Seller in connection with the sale and purchase of the Property
satisfactory to the Title Company;
(g) An
Estoppel from the Legacy Association in the form attached as
Exhibit “C” and incorporated
herein;
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(h) An
“ owner’s affidavit ”, in form reasonably
acceptable to the Title Company and sufficient for the Title
Company to delete any exceptions for (a) mechanics’ or
materialmen’s liens arising from work at the Property which
is the responsibility of Seller hereunder, (b) parties in
possession, other than tenants as tenants only, and
(c) matters not shown in the public records;
(i) A
settlement statement (the “ Settlement Statement
”), prepared by the Title Company;
(j) The
Memorandum of Repurchase Option as provided in
Section 11.05(h) below; and
(k) Such
other documents as are reasonably requested by the Title Company or
Purchaser (such request by Purchaser to be made at least five
(5) days prior to Closing) to close the sale and purchase of
the Property.
8.03 Purchaser’s Obligations at Closing . At
Closing, Purchaser shall deliver to Seller, at Purchaser’s
sole cost and expense:
(a) The
full amount of the Purchase Price in wired funds (subject to
prorations and a credit for the Earnest Money);
(b) A
Secretary’s Certificate or authorizing resolutions certified
by an officer of Purchaser evidencing the status and capacity of
Purchaser and the authority of the person executing the various
documents on behalf of Purchaser in connection with the sale and
purchase of the Property;
(c) The
Memorandum of Repurchase Option;
(d) The
Memorandum of Right of First Offer and Right of First Refusal;
and
(e) Such
other documents as are reasonably requested by the Title Company or
Seller (such request by Seller to be made at least five
(5) days prior to Closing) to close the
transaction.
(a) Ad
valorem taxes shall be prorated as of Closing. If the ad valorem
taxes for the year of Closing have not been determined as of
Closing, the proration shall be based on the ad valorem taxes for
the preceding tax year and the assessed value of the current year,
provided if the assessed value for the current year has not been
determined then ad valorem taxes shall be estimated based upon ad
valorem taxes for the immediately preceding calendar year. No
adjustment or proration will be made for any increase in the market
value of the Property made by any applicable taxing authority as a
result of this transaction, all such adjustments being the
responsibility of Purchaser. This determination will be deemed to
be final and no further adjustments will be required. If the
Property has been designated or valued as agricultural, open space
or other special category such that their sale or change of use
would trigger the imposition of any “rollback” or
“catch up” tax,
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Seller shall be
responsible for any such taxes and interest thereon for periods
prior to Closing. Seller shall pay to or credit Purchaser at
Closing the amount of “rollback” taxes, including,
without limitation, interest and penalties for all periods prior to
the date of Closing, which Seller and Purchaser reasonably
determine as of the Closing would have been due and payable as if
the change of usage of the Property was made as of the date of
Closing and thereafter, Purchaser shall be responsible for paying
such “rollback taxes” when they become due and payable.
This determination will be deemed to be final and no further
adjustments will be required. Notwithstanding the foregoing,
provided that Seller has made an agricultural use exemption through
the Closing Date, prorations for the tax year in which the Closing
Date occurs shall be calculated based on ad valorem taxes assessed
as if the agricultural use exemption had remained in place
throughout the such tax year. Assessments related to the Legacy
Association will additionally be prorated as of the Closing, will
be deemed to be final and no further adjustments will be required.
The obligations of the parties in this Section 8.04 shall
survive the Closing of this Contract.
(b) In
the event that the Purchaser elects to maintain the agricultural
use exemption for a period of time after Closing, Seller’s
obligation to pay any “roll back” taxes with respect
thereto shall not exceed the amount that would have been due had
the “roll back” taxes been calculated based upon a
change in use or ownership as of the Closing Date.
8.05
Other Closing Costs . Purchaser shall pay all recording
costs and all costs, if any, associated with Purchaser’s
financing of all or any portion of the Purchase Price. Seller shall
pay for the cost of the Survey, and Purchaser shall pay for any
updates to the Survey. Seller shall pay for the cost of the basic
title premium for the Title Policy (excluding the costs of any
modification of the survey exception or other endorsements, which
shall be paid by Purchaser), and all fees associated with the
removal of the Must-Cure Objections. Seller shall also pay the
commission in accordance with the provisions of Section 11.01
at the Closing. Each party will pay one-half (1/2) of any escrow
fee charged by Title Company. Each party shall also pay its own
attorneys’ fees and other costs and expenses of negotiating
and consummating this Contract. Any other costs or expenses
incident to this transaction and the closing thereof not expressly
provided for above shall be allocated between and paid by the
parties in accordance with custom and practice in Plano, Collin
County, Texas.
8.06
Possession . At Closing, upon the satisfaction of all
conditions precedent to Seller’s obligation to close, Seller
shall deliver possession of the Property to Purchaser, subject only
to the Permitted Exceptions.
SECTION 9
EXCLUSIVE REMEDIES OF PURCHASER
If any of
Seller’s representations is inaccurate as of Closing, or if
Seller fails to perform any of its obligations hereunder (except
Seller’s failure after Closing to perform its Surviving
Obligations) and such inaccuracy or failure is not cured within
seven (7) business days after Seller receives
Purchaser’s notice in writing of such inaccuracy or failure,
Purchaser’s sole and exclusive remedies shall be either to:
(a) terminate this Contract; whereupon, the Earnest Money
shall immediately be returned to Purchaser, and, except for the
Surviving Obligations, neither party shall have any further rights,
obligations, or remedies under this Contract; or (b) file a lawsuit
against Seller in Collin County, Texas, to enforce specific
performance of this Contract
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(which suit
must be filed within two (2) years and one day after the
scheduled date of Closing as set forth in Section 8.01 hereof;
otherwise, Purchaser shall be deemed to have unconditionally waived
its right to sue for specific performance). Except for
Seller’s failure after Closing to perform any of its
Surviving Obligations, Purchaser unconditionally waives its right
to pursue any other remedies against Seller including, but not
limited to, actual, consequential, special, incidental, and
punitive damages.
SECTION 10
EXCLUSIVE REMEDY OF SELLER
If any of
Purchaser’s representations is inaccurate as of the Closing,
or if Purchaser fails to perform any of its obligations hereunder
(except Purchaser’s failure after Closing to perform its
Surviving Obligations) and such failure is not cured within seven
(7) business days after Seller notifies Purchaser thereof in
writing, Seller’s sole and exclusive remedy shall be to
terminate this Contract and receive the Earnest Money as liquidated
damages (the foregoing notice and cure period does not, however,
apply to the failure by Purchaser to deposit the Earnest Money as
provided in this Contract). Purchaser acknowledges that payment of
the Earnest Money to Seller pursuant to this Section 10 does
not constitute a penalty. Purchaser further acknowledges that the
actual damages suffered by Seller for Purchaser’s breach are
incapable of exact calculation and that the Earnest Money
represents a sum that is a reasonable estimate of what
Seller’s actual damages might be. Except for
Purchaser’s failure after Closing to perform any of its
Surviving Obligations, Seller unconditionally waives it right to
pursue other remedies against Purchaser including, but not limited
to, actual, consequential, special, incidental, and punitive
damages. Upon termination of this Contract pursuant to this
Section 10, the Earnest Money shall be paid to Seller, and
except for the Surviving Obligations, neither party shall have any
further rights, obligations, or remedies under this
Contract.
SECTION 11
ADDITIONAL PROVISIONS
11.01 Brokers and Commissions . Seller and
Purchaser acknowledge and agree that the only brokers that have
been involved with the origination and negotiation of this Contract
are CB Richard Ellis, Inc. (“ CBRE ”), as the
broker for Seller, and Jan’s Realty, Inc. (“
Jan’s ”), as broker for the Purchaser (CBRE and
Jan’s are collectively the “ Broker ”).
If, as, and when this Contract closes, but not otherwise, Seller
agrees to pay a real estate sales commission equal to (i) six
percent (6%) of the first one million dollars ($1,000,000.00); plus
(ii) three percent (3%) of the Purchase Price in excess of one
million dollars, to be divided equally between CBRE and Jan’s
at Closing. If this Contract fails to close for any reason,
including a breach by either party, Seller shall have no obligation
to pay Broker any commission or any other costs, expenses, fees, or
compensation of any kind. Seller and Purchaser agree to hold
harmless, defend, and indemnify each other from any claim, suit,
liability, losses, costs, and expenses (including reasonable
attorneys’ fees and court costs) resulting from any claim for
any fee, commission, finder’s fee or other consideration from
any broker, agent, finder, or salesman based on an alleged
agreement with the indemnifying party (or others acting on its
behalf). If Broker’s signature appears on this Contract, it
will be for the sole purpose of acknowledging the terms and
conditions upon which Broker is entitled to a commission pursuant
to this Section 11.01 (which terms and conditions supersede
and replace all prior
West Plano Land
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15
understandings
and agreements between Seller and Broker with regard to the
Property). Broker is not otherwise a party to this Contract, and
with the exception of an amendment to this Section 11.01 that
directly affects Broker’s rights, this Contract may be
amended or terminated without notice to or the consent of Broker.
The absence of Broker’s signature shall not in any way affect
the validity of this Contract. The obligations of the parties
contained in this Section 11.01 shall survive the closing or
any termination of this Contract.
11.02
Non-Assignability . Except as otherwise specifically
provided herein, this Contract may not be assigned by Purchaser
without the prior written consent of Seller, which may be withheld
in Seller’s sole discretion. Notwithstanding the foregoing,
however, Purchaser may assign its interest under this Contract upon
five (5) days written notice to Seller prior to Closing to an
affiliate, subsidiary or parent company without Seller’s
consent so long as (a) such assignee is, directly or
indirectly, managed and/or controlled by Purchaser or is an
affiliate which is owned by Purchaser or its ultimate parent and
which is controlled by Purchaser or its ultimate parent; and
(b) Purchaser provides Seller with the name and, if requested
by Seller, copies of the organizational documents for such assignee
as filed with the applicable Secretary of State or other
governmental authority and provides Seller with any other
information that Seller may reasonably request with respect to the
proposed assignee at least three (3) business days in advance
of the Closing Date. Purchaser shall in no event be released from
any of its obligations or liabilities hereunder as a result of any
assignment. The obligations of Purchaser under this
Section 11.02 shall survive the Closing and shall not be
merged therein. Whenever reference is made in this Contract to
Seller or Purchaser, such reference shall include the successors
and assigns of such party under this Contract.
11.03
Deed Restriction . The Property is being conveyed to
Purchaser by Seller for the purposes of construction and operation
of an office hea
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