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EXHIBIT 10.2
PURCHASE AND SALE AGREEMENT
(1400 LAVON STREET, MCKINNEY, COLLIN COUNTY, TEXAS)
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into by
and between HOMCO, INC., a Texas corporation ("Seller") and DONALD J. CARTER,
JR. ("Purchaser"), effective as of the Effective Date provided for in SECTION
19.11. below.
For and in consideration of the mutual promises contained herein,
Seller and Purchaser agree as follows:
ARTICLE 1.
AGREEMENT OF SALE AND PURCHASE
1.1. PROPERTY. Subject to the terms and conditions of this Agreement,
Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from
Seller, that certain 15.3-acre tract of real property situated in Collin County,
Texas, described on Exhibit A attached hereto and hereby made a part hereof (the
"Land"), together with any buildings, structures, appurtenances and improvements
located on the Land (such buildings and all other improvements located on the
Land being herein referred to as the "Improvements") and all rights and
appurtenances pertaining to the Land and the Improvements, including, without
limitation, any and all rights of Seller in and to all oil, gas and mineral
rights relating to the Land, all roads, alleys, easements, streets and ways
adjacent to the Land, strips and gores and rights of ingress and egress thereto.
The Land and Improvements as well as all Seller's rights and appurtenances
pertaining thereto described above are hereinafter collectively referred to as
the "Property." The legal description of the Land shown on the Survey
(hereinafter defined) shall be substituted for the description of the Land set
forth on Exhibit A upon its approval by Seller, Purchaser and the Title Company
(hereinafter defined) and such legal description shall be utilized for the
conveyance of the Property from Seller to Purchaser.
ARTICLE 2.
PURCHASE PRICE
2.1. AMOUNT. The purchase price (the "Purchase Price") for the Property
is Three Million Seven Hundred Twenty-Seven Thousand Three Hundred Eighty and
No/100 Dollars ($3,727,380.00) and shall be payable in the manner set forth in
SECTION 2.2. below.
2.2. METHOD OF PAYMENT. The entire Purchase Price shall be paid by
Purchaser's delivering cash, a cashier's check or another form of current,
collected federal funds in that amount to the Title Company (hereinafter
defined) for disbursement by it to Seller or for Seller's account at the Closing
(hereinafter defined).
2.3. EARNEST MONEY DEPOSIT. Within three (3) business days after the
date this Agreement is executed by both Seller and Purchaser, Purchaser shall
deliver to the offices of
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Republic Title of Texas, Inc., to the attention of Leslie Wheeler, 2626 Howell
Street, 10th Floor, Dallas, Texas 75204-4064, telephone number: (214) 855-8888,
telecopy number: (214) 855-8852 (the "Title Company"), as agent for First
American Title Insurance Company, a deposit of Ten Thousand and No/l00 Dollars
($10,000.00) in cash (the "Earnest Money Deposit"). In the event Purchaser does
not deposit the Earnest Money Deposit with the Title Company on or prior to the
date designated in the preceding sentence, this Agreement shall automatically
terminate and the parties hereto shall have no further rights, duties or
obligations one to the other hereunder. In the event Purchaser does not
terminate this Agreement prior to the expiration of the Review Period (defined
in SECTION 8.1.) then the Earnest Money Deposit shall be nonrefundable to
Purchaser except in the event of the default of Seller under the terms hereof.
The Title Company shall hold the Earnest Money Deposit as escrow agent and shall
invest the Earnest Money Deposit in such interest bearing investments as
Purchaser shall reasonably designate from time to time which mature no later
than the earlier of (a) the date on which the Closing hereunder is scheduled (at
the time such investment is made) to be held or (b) the date (if it is then
determinable) on which the Earnest Money Deposit will be required to be
delivered to either Purchaser or Seller pursuant to the provisions of this
Agreement. All such interest earned thereon shall be deemed to constitute a
portion of the Earnest Money Deposit and shall be added thereto. At Closing, or
upon the occurrence of a default under this Agreement, the Title Company shall
deliver the Earnest Money Deposit to the party entitled to it in accordance with
the other terms of this Agreement.
2.4. INDEPENDENT CONTRACT CONSIDERATION. In addition to the Earnest
Money Deposit, Purchaser shall deliver to Seller on the Effective Date a check
in the amount of One Hundred and No/l00 Dollars ($100.00) (the "Independent
Contract Consideration"), which amount the parties bargained for and agreed to
as consideration for Seller's execution and delivery of this Agreement. This
Independent Contract Consideration is in addition to and independent of any
other consideration or payment provided in this Agreement, is non-refundable
under any circumstances, and shall be retained by Seller notwithstanding any
other provision of this Agreement.
ARTICLE 3.
THE DEED AND BILL OF SALE
3.1. THE DEED. At the Closing, Seller shall convey the Property to
Purchaser by special warranty deed in the form of Exhibit B attached hereto (the
"Deed").
3.2. DEED PROVISIONS. The Deed shall convey the Property to Purchaser
subject only to the Permitted Exceptions as defined in SECTION 9.4. below.
3.3. BILL OF SALE. The Bill of Sale shall convey to Purchaser, without
recourse to or warranty by Seller, all rights of Seller in and to the fixtures,
equipment and other tangible personal property attached to, installed in or used
solely in connection with the Property (other than those trade fixtures and
items of equipment and tangible personal property removed or identified for
removal by Seller before Closing). The Bill of Sale shall also assign, to the
extent assignable and without recourse to or warranty by Seller, all rights of
Seller in and to any
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warranties, guaranties and service contracts in effect on the Closing Date (as
herein defined) relating to the tangible personal property to be sold or to the
Improvements. The Bill of Sale shall be in the form of Exhibit C attached
hereto.
3.4. AS IS TRANSACTION. TO INDUCE SELLER TO ENTER INTO THIS AGREEMENT,
PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH
IN THIS AGREEMENT, AND EXCEPT FOR SELLER'S WARRANTY OF TITLE IN SELLER'S SPECIAL
WARRANTY DEED, THE PROPERTY SHALL BE CONVEYED AND TRANSFERRED TO PURCHASER "AS
IS, WHERE IS, AND WITH ANY AND ALL FAULTS AND PATENT AND LATENT DEFECTS," AND
SELLER HAS NOT MADE, DOES NOT MAKE, AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATION, PROMISE, COVENANT, AGREEMENT, GUARANTY OR WARRANTY OF ANY KIND
OR CHARACTER, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW, AS TO THE
MERCHANTABILITY, QUANTITY, QUALITY, CONDITION, SUITABILITY, HABITABILITY, OR
FITNESS OF THE PROPERTY FOR ANY PURPOSE WHATSOEVER, INCLUDING WITHOUT
LIMITATION, ANY REPRESENTATION REGARDING SOIL CONDITIONS, AVAILABILITY OF
UTILITIES, DRAINAGE, ZONING LAWS, ENVIRONMENTAL LAWS, OR ANY OTHER FEDERAL,
STATE OR LOCAL STATUTES, CODES, REGULATIONS OR ORDINANCES. PURCHASER ALSO
ACKNOWLEDGES AND AGREES THAT THE PROVISIONS IN THIS AGREEMENT FOR PURCHASER'S
INSPECTION AND INVESTIGATION OF THE PROPERTY ARE ADEQUATE TO ENABLE PURCHASER TO
MAKE PURCHASER'S OWN DETERMINATION WITH RESPECT TO THE SUITABILITY OR FITNESS OF
THE PROPERTY, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO SOIL CONDITIONS,
AVAILABILITY OF UTILITIES, DRAINAGE, ZONING LAWS, ENVIRONMENTAL LAWS, AND ANY
OTHER FEDERAL, STATE OR LOCAL STATUTES, CODES REGULATIONS OR ORDINANCES.
PURCHASER ACKNOWLEDGES THAT THE DISCLAIMERS, AGREEMENTS AND OTHER STATEMENTS SET
FORTH IN THIS PARAGRAPH ARE AN INTEGRAL PORTION OF THIS AGREEMENT AND THAT
SELLER WOULD NOT AGREE TO SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE
WITHOUT THE DISCLAIMERS, AGREEMENTS AND OTHER STATEMENTS SET FORTH IN THIS
PARAGRAPH. PURCHASER FURTHER ACKNOWLEDGES THAT PURCHASER IS NOT IN A DISPARATE
BARGAINING POSITION WITH RESPECT TO SELLER. THE PROVISIONS CONTAINED IN THIS
PARAGRAPH SHALL SURVIVE THE CLOSING HEREUNDER AND THE DELIVERY FROM SELLER TO
PURCHASER OF THE SPECIAL WARRANTY DEED.
ARTICLE 4.
THE CLOSING
The closing of the transaction contemplated by this Agreement (the
"Closing") shall be at the offices of the Title Company and shall be held at
10:00 a.m., on a date selected by Seller and reasonably acceptable to Purchaser
(the "Closing Date") falling between Monday, May 15, 2000, and Friday, May 26,
2000, unless Purchaser and Seller mutually agree to an earlier Closing,
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which agreement must be in writing and signed by the party against whom it is
sought to be enforced. Upon completion of the Closing, Seller shall deliver
possession of the Property to Purchaser in "As-Is" condition.
ARTICLE 5.
CLOSING PRORATIONS
5.1. The following amounts or items shall be prorated, credited or
added to the Purchase Price at the Closing as appropriate, and except to the
extent otherwise provided herein, shall adjust the Purchase Price at Closing:
(a) Taxes. At Closing, all state, county and municipal ad valorem
taxes, assessments and similar charges with respect to the Property for the year
in which the Closing is consummated will be prorated as of the Closing Date
based upon taxes, assessments and charges for such year, or if said ad valorem
tax amounts for such year are not available, upon the ad valorem taxes for the
previous year. Upon receipt of the tax bill for the Property for the year in
which the Closing is consummated, the parties agree to prorate the taxes based
on such bill and to adjust between themselves any differences between such bill
and the previous year's tax bill.
(b) Assessments. If, as of the Closing Date, the Property or any part
thereof shall be or shall have been affected by any assessment or assessments,
other than assessments for taxes on the Property for any years prior to the year
Closing is consummated, which are or may become payable in installments, such
assessments falling due after Closing shall be paid in full by Seller at
Closing.
(c) Utility Charges, Etc. Utility charges, maintenance costs, insurance
premiums and other expenses of operating the Property shall be apportioned
between Seller and Purchaser at the Closing as of 11:59 p.m. of the day
preceding the date of Closing, such that credits and charges equitably
attributable to all days preceding the date of Closing shall be allocated to
Seller, and that credits and charges equitably attributable to all days from and
after the date of Closing shall be allocated to Purchaser. Effective as of the
Closing Date, Purchaser shall obtain its own insurance covering the Property,
and shall change all utilities to its name and make all new utility deposits.
The foregoing proration provisions shall survive Closing.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES
6.1. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Seller
represents and warrants to Purchaser as of the Effective Date and as of the
Closing Date that:
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(a) Seller has all power and authority legally necessary to enter into
this Agreement, execute and deliver the Closing documents and sell and convey
the Property to Purchaser in accordance with the terms of this Agreement.
(b) Seller is not a "foreign person" as defined in Section 1445(f)(3)
of the Internal Revenue Code as amended from time to time and at Closing Seller
shall furnish Purchaser an Affidavit confirming the same in the form attached
hereto as Exhibit D.
(c) Seller will transfer to Purchaser at the Closing, fee simple title
to the Property, subject only to the Permitted Exceptions.
(d) There are no unrecorded liens or Uniform Commercial Code liens
against any of the Property, but if it is determined that such liens do exist,
they shall be satisfied at Closing out of the Purchase Price.
(e) To the best of Seller's actual knowledge, during the period of
Seller's ownership of the Property, no Hazardous Materials have been generated,
processed, collected, treated, emitted, discharged, disposed or transported on,
under, in, above, to or from the Property. As used herein, the term "Hazardous
Materials" means (i) asbestos requiring abatement, removal, encapsulation,
treatment or other handling pursuant to any Applicable Environmental Laws
(hereinafter defined), (ii) polychlorinated byphenyls (more commonly known as
"PCB's"), (iii) storage tanks, whether above ground or below ground, in need of
abatement, removal, repair, treatment, or other handling in order that the same
shall comply with Applicable Environmental Laws, (iv) any wastes, chemicals,
substances or other materials, the generation, processing, collection, storage,
treatment, release, emission, discharge, disposal or transportation of which is
prohibited on, under, in, above, to or from the Property by any Applicable
Environmental Laws, (v) any wastes, chemicals, substances or other materials
present on or being released, emitted or discharged from the Property in
quantities sufficient to require reporting under any Applicable Environmental
Laws and (vi) any other wastes, chemicals, substances or materials which,
pursuant to any Applicable Environmental Laws, require notification to be
provided to any Governmental Authority (hereinafter defined), in their
generation, processing, collection, storage, treatment, disposal or
transportation. As used herein, the term "Governmental Authority" shall mean the
United States of America, the State of Texas, the County of Collin, the City of
McKinney or any other political subdivision in which the Property is located,
and any other political subdivision, department, commission, board, agency,
authority or instrumentality exercising jurisdiction over Seller or the
Property. As used herein, the term "Applicable Environmental Laws" shall mean
any and all valid and applicable federal, state or local laws, rules or
regulations in effect at the time in question, protecting the environment,
including without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the Hazardous Materials
Transportation Act, as amended, the Resource Conservation and Recovery Act, as
amended, the Federal Water Pollution Control Act, the Clean Air Act, as amended,
the Clean Water Act, as amended, the Hazardous and Solid Waste Amendments of
1984, as amended, the Safe Drinking Water Act, as amended, the Toxic Substances
Control Act, as amended, the Texas Natural Resources Code, the Texas Hazardous
Substances Spill and Control Act, as amended, the Texas Water Code and the Texas
Solid Waste Disposal Act, and the regulations adopted and promulgated pursuant
thereto. Seller is unaware as to whether or not that any Hazardous Materials
were generated, processed, collected, treated,
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emitted, discharged, disposed or transported on, under, in, above, to or from
the Property during the period prior to Seller's ownership of the Property.
(f) Seller may have provided, or may provide prior to Closing, to
Purchaser documents prepared by third parties relating to the operations or
condition of the Property, including, without limitation, reports, analyses,
plans, surveys and specifications (the "Third Party Documents").
As used in this Agreement, "Seller's actual knowledge" or words of like
import shall mean the current actual knowledge of Jim Livingston, based on an
examination of his books and records, but without any duty of further inquiry or
investigation of any kind.
PURCHASER HEREBY ACKNOWLEDGES THAT SELLER HAS NOT MADE AND DOES NOT
MAKE ANY WARRANTY OR REPRESENTATION REGARDING THE TRUTH OR ACCURACY OF THE THIRD
PARTY DOCUMENTS OR THE SOURCE THEREOF AND SELLER SPECIFICALLY DISCLAIMS ANY
PRINCIPAL/AGENCY RELATIONSHIP BETWEEN SELLER AND THE AUTHOR OR SOURCE OF ANY
CONSTITUENT REPORT OR DOCUMENT OF THE THIRD PARTY DOCUMENTS. SELLER HAS NOT
UNDERTAKEN ANY INDEPENDENT INVESTIGATION AS TO THE TRUTH OR ACCURACY OF THE
THIRD PARTY DOCUMENTS AND IS PROVIDING THE THIRD PARTY DOCUMENTS SOLELY AS AN
ACCOMMODATION TO PURCHASER; IN PERMITTING THE PERMITTED OUTSIDE PARTIES TO
REVIEW THE THIRD PARTY DOCUMENTS OR INFORMATION TO ASSIST PURCHASER, NO THIRD
PARTY BENEFITS RELATIONSHIPS OF ANY KIND, EITHER EXPRESS OR IMPLIED, HAVE BEEN
OFFERED, INTENDED OR CREATED BY SELLER AND ANY SUCH CLAIMS ARE EXPRESSLY
REJECTED BY SELLER AND WAIVED BY PURCHASER AND THE PERMITTED OUTSIDE PARTIES.
THE PROVISIONS CONTAINED IN THIS PARAGRAPH SHALL SURVIVE THE CLOSING HEREUNDER
AND THE DELIVERY FROM SELLER TO PURCHASER OF THE SPECIAL WARRANTY DEED.
6.2. PURCHASER'S REPRESENTATIONS, WARRANTIES AND COVENANTS. Purchaser
represents and warrants to Seller as of the Effective Date and as of the Closing
Date that:
(a) Purchaser has the full right, power, and authority to purchase the
Property from Seller as provided in this Agreement and to carry out Purchaser's
obligations under this Agreement, and all requisite action necessary to
authorize Purchaser to enter into this Agreement and to carry out Purchaser's
obligations hereunder has been accomplished or will be accomplished on or before
Closing.
(b) As of the Effective Date, Purchaser has been hereby advised in
writing that Purchaser should have an abstract covering the Property examined by
an attorney of Purchaser's own selection or that Purchaser should be furnished
with or obtain a policy of title insurance.
(c) Purchaser is not subject to any legal or administrative proceeding,
debt structure or other agreement which would prevent Purchaser's full and
timely performance of its obligations hereunder.
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(d) Purchaser acknowledges that any and all of the Third Party
Documents are proprietary and confidential in nature and have been or will be
delivered to Purchaser solely to assist Purchaser in determining the feasibility
of purchasing the Property. Purchaser agrees not to disclose any of the Third
Party Documents, or any of the provisions, terms or conditions thereof, to any
party outside of Purchaser's organization except as to its attorneys,
accountants, lenders or investors (collectively, the "Permitted Outside
Parties"). Purchaser further agrees that within its organization, or as to the
Permitted Outside Parties, the Third Party Documents shall be disclosed and
exhibited only to those persons within Purchaser's organization or the Permitted
Outside Parties who are responsible for determining the feasibility of
Purchaser's acquisition of the Property.
(e) In the event the transaction contemplated by this Agreement is not
consummated for any reason, except for Seller's default, Purchaser shall
promptly deliver to Seller copies of (but no propriety rights in) all available
reports and studies (other than appraisals) relating to the Property in its
possession or in the possession of its agents, consultants or employees,
including, without limitation, any and all (i) environmental reports, (ii)
market studies, (iii) site plans, plats and related engineering, (iv) prospect
lists, (v) soil reports, (vi) architectural renderings, drawings and/or
elevations, and (vii) Third Party Documents, including any copies thereof made
by Purchaser or at Purchaser's direction.
ARTICLE 7.
SELLER'S COVENANTS
In addition to Seller's other covenants and obligations contained in
this Agreement, Seller agrees as follows:
7.1. PROPERTY RECORDS. Seller shall deliver to Purchaser, on or before
five (5) days after the Effective Date, copies of (a) all tax bills relating to
the Property, including, but not limited to, ad valorem, rental and special
assessments for the preceding two (2) calendar years; (b) utility documents
relating to the Property, if any, for the preceding two (2) calendar years; (c)
any and all information regarding any condemnation notices, proceedings and/or
awards received by Seller affecting the Property; (d) any endangered species
letters received by Seller pertaining to the Property; and (e) any and all other
information reasonably requested by Purchaser relating to Seller's use and
occupancy of the Property.
7.2. PLANS AND STUDIES. Seller, at its expense, shall deliver to
Purchaser, on or before five (5) days after the Effective Date, copies of (but
no propriety rights in) all surveys, plats, site plans, engineering studies,
topographical surveys, environmental studies and other plans, specifications and
studies relating to all or any part of the Property which are in Seller's
possession.
7.3. NO ENCUMBRANCES. Seller agrees to neither grant, suffer, commit
nor permit any easements or encumbrances upon any part of the Property between
the Effective Date of this Agreement and the Closing or termination of this
Agreement, except such easements or encumbrances as shall be released on or
before Closing.
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ARTICLE 8.
CONDITIONS
8.1. PURCHASER'S REVIEW PERIOD. Purchaser shall have a period of time
commencing upon the Effective Date and ending upon the day which is thirty (30)
days after the Effective Date (the "Review Period") during which to inspect the
Property, the status of title to the Property, any books and records of Seller
relating to the ownership or operation of the Property, and to perform any
appraisals, surveys, studies and analysis desired by Purchaser relating to the
status of title to the Property and the environmental condition of the Property.
If, prior to the expiration of the Review Period, Purchaser determines that the
Property or the status of title to the Property is not suitable for its
purposes, Purchaser may terminate this Agreement by providing written notice of
termination to Seller prior to the expiration of the Review Period. If Purchaser
terminates this Agreement before the end of the Review Period in strict
accordance with its right to terminate set forth in the preceding sentence, then
the Earnest Money Deposit shall be immediately refunded to Purchaser without
deduction or offset. Should Purchaser fail to terminate this Agreement in
accordance with the provisions of this SECTION 8.1. prior to the expiration of
the Review Period, the Earnest Money Deposit shall be nonrefundable to Purchaser
except in the event of a default by Seller under the terms hereof.
8.2. PURCHASER'S TESTING RIGHTS AND INDEMNITY. During the Review
Period, Purchaser, its agents, contractors, employees and representatives, shall
have the right to enter the Property at all reasonable times in order to inspect
the Property; provided that (i) all such work shall be at Purchaser's risk and
expense, and (ii) copies of all such reports (except appraisals), audits,
studies and analyses shall be forwarded to Seller without recourse or warranty
to Purchaser. Purchaser shall not undertake any destructive testing without
Seller's prior written consent. Purchaser agrees to indemnify Seller and hold
Seller harmless from and against all injury, damage, loss, cost and expense,
including costs of repairing damage to the Property and costs of defending
claims arising out of the exercise of Purchaser's testing and inspection rights
accorded by this SECTION 8.2. This indemnity obligation shall survive
termination of this Agreement. At Seller's election Purchaser shall immediately
restore the Property to substantially its original condition if changed due to
the tests and inspections performed by Purchaser.
ARTICLE 9.
TITLE AND SURVEY
9.1. TITLE COMMITMENT DELIVERY. Within ten (10) days after the
Effective Date of this Agreement, Seller shall obtain and cause to be delivered
to Seller: (a) a current Commitment for an Owner's Policy of Title Insurance or
preliminary title report covering the Property (the "Title Commitment") issued
by the Title Company, whereby the Title Company commits to issue to Purchaser
its Owner's Policy of Title Insurance in accordance with this Agreement; and (b)
true and legible copies of all instruments listed or referred to as exceptions
on the Title Commitment (collectively, the "Exception Documents").
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9.2. TITLE COMMITMENT FEATURES. The Title Commitment shall describe the
Property (and such legal description as modified by the Survey (hereinafter
defined) shall, after approval of the Survey by Purchaser and Seller, be
automatically incorporated as the description of the Property into this
Agreement and shall be used as such in all Closing documents), list Purchaser as
the proposed insured and show the Purchase Price as the policy amount.
9.3. SURVEY. Within ten (10) days after the Effective Date of this
Agreement, Seller shall obtain and cause to be delivered to Seller and Purchaser
an on-the-ground, as-built survey of the Land and Improvements (the "Survey"),
prepared and certified as to all matters shown thereon by a registered surveyor
in compliance with the standards of a Category 1-A, Condition II survey, as
specified in the latest edition of the Manual of Practice for Land Surveying of
Texas published by the Texas Surveyor's Association.
9.4. TITLE REVIEW. All title encumbrances or exceptions which are
referred to or listed in Schedule B of the Title Commitment, or are shown on the
Survey, and to which Purchaser does not object in a written notice given to
Seller on or before the period of time (the "Objection Period") expiring fifteen
(15) days after the date on which Purchaser has received the last to be received
of the Title Commitment, the Exception Documents and the Survey, shall be deemed
to be exceptions (the "Permitted Exceptions") which are permitted to be included
as exceptions to title both in Seller's Deed to Purchaser and in the Owner's
Policy of Title Insurance required by SECTION 10.1.(E) below. With regard to
matters to which Purchaser does object in a written notice given to Seller
before the end of the Objection Period, Seller shall have a period of time
expiring ten (10) days after the date Seller has received Purchaser's written
objection notice ("Seller's Curative Period") within which Seller may (but shall
have no obligation) to cure such written objections. Seller shall have the
right, but no obligation, to cure any matters to which Purchaser objects. If
Seller fails to cure any such objections within Seller's Curative Period, then
Purchaser, as its sole and exclusive remedy, shall have the right to terminate
this Agreement by written notice delivered to Seller and the Title Company prior
to the expiration of the Review Period, whereupon all of the Earnest Money
Deposit shall be returned to Purchaser, or Purchaser, at its election may waive
in writing any such objections and proceed to Closing without reduction in the
Purchase Price in which event such written objections shall be Permitted
Exceptions.
ARTICLE 10.
THE CLOSING
10.1. SELLER'S CLOSING OBLIGATIONS. At the Closing, Seller shall cause
the following documents, certificates and items to be furnished to Purchaser:
(a) The Deed in the form required by ARTICLE 3. above, duly executed
and acknowledged by Seller.
(b) Evidence of payment, satisfaction and discharge of any and all
outstanding liens (other than the statutory lien for taxes not yet due and
payable) and other assessments,
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mortgages, security interests or other encumbrances securing the payment of any
indebtedness secured by the Property.
(c) The Bill of Sale and Assignment in the form required by ARTICLE 3.
above, duly executed by Seller.
(d) The Affidavit described in SECTION 6.1.(b).
(e) An Owner's Policy of Title Insurance covering the Property issued
by the Title Company in accordance with the terms of this Agreement insuring
Purchaser's title in the amount of the Purchase Price.
(f) Tax Certificates.
(g) Evidence reasonably satisfactory to Purchaser and the Title Company
of Seller's and Seller's closing representative's power and authority to
consummate the transactions provided for in this Agreement.
(h) Any additional documents that the Title Company considers
reasonably necessary to consummate this transaction.
10.2. PURCHASER'S CLOSING OBLIGATIONS. Subject to Seller's performing
its obligations under SECTION 10.1. above, at the Closing, Purchaser shall:
(a) Pay the Purchase Price pursuant to the provisions of SECTION 2.2.
above.
(b) Evidence reasonably satisfactory to Seller and the Title Company of
Purchaser's and Purchaser's closing representative's power and authority to
consummate the transactions provided for in this Agreement.
(c) Any additional documents that the Title Company considers
reasonably necessary to consummate this transaction.
The Earnest Money Deposit shall be credited against the Purchase Price.
ARTICLE 11.
RISK OF LOSS; DAMAGE OR CONDEMNATION
The risk of loss resulting from any pending or threatened condemnation
or eminent domain proceeding which is commenced prior to Closing, and the risk
of loss to the Property due to any other cause, remains with Seller until
Closing. If, prior to the Closing, all or part of the Property shall be
destroyed, damaged or subjected to a bona fide threat of condemnation, eminent
domain or other proceeding, Seller shall so notify Purchaser, and Purchaser may
elect to (i) terminate this Agreement, in which event the Earnest Money Deposit
shall be returned to Purchaser, or (ii) Purchaser may declare this Agreement to
remain in full force and effect and at Closing, Seller shall assign, transfer
and set over to Purchaser all of the right, title and interest of
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Seller in and to any awards and insurance proceeds or claims that have been or
that may thereafter be made for such taking or damage.
ARTICLE 12.
DEFAULT, REMEDIES, AND DISPOSITION OF DEPOSIT
12.1. SELLER'S DEFAULT. If the transaction provided for herein is not
completed because of a default (willful or otherwise) by Seller then and in that
event the Earnest Money Deposit shall be immediately returned to Purchaser, and
Purchaser may as its sole and exclusive remedy either (i) terminate this
Agreement by written notice to Seller, or (ii) enforce specific performance.
Provided, however, that Purchaser's right to specific performance against Seller
shall be limited to the right to require Seller to convey only such title to the
Property as Seller may have, with no reduction in the Purchase Price.
12.2. PURCHASER'S DEFAULT. If the transaction provided for herein is
not completed because of a default (willful or otherwise) by Purchaser, Seller,
as its sole and exclusive remedy, may terminate this Agreement by giving written
notice, accompanied by Seller's sworn written statement to both Purchaser and
the Title Company that Purchaser is then in default under this Agreement and
Seller is not, and may have and receive the Earnest Money Deposit as liquidated
damages (such sum being agreed upon as reasonable liquidated damages, and not as
a penalty, because of the difficulty and inconvenience of ascertaining Seller's
actual damages). Provided, that if Purchaser duly exercises its option to
terminate this Agreement pursuant to SECTION 8.1. above before the end of the
Review Period, then all of the Earnest Money Deposit shall be promptly refunded
to Purchaser.
12.3. EFFECT OF TERMINATION. If this Agreement is terminated pursuant
to a right herein granted, then the Earnest Money Deposit shall be disbursed to
Purchaser or Seller, as appropriate, and thereafter neither party shall have any
further rights or obligations hereunder, except with respect to obligations that
expressly survive such termination.
ARTICLE 13.
EXPENSES
13.1. SELLER'S PAYMENTS. At (or, at Seller's election, before) the
Closing Date, Seller shall pay:
(a) One-half (1/2) the costs of the Owner's Policy of Title Insurance
required hereby except that the costs of any additional premiums for
modification or deletion of standard exceptions, or endorsements to the Owner's
Policy of Title Insurance shall be at Purchaser's sole cost and expense;
(b) The fee for recording the Deed;
(c) One-half (1/2) of any escrow fee charged by the Title Company;
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(d) One-half (1/2) the costs associated with the Survey;
(e) All charges for Tax Certificates;
(f) Seller's own attorneys' fees;
(g) All of any special messenger, copy or other service charge made by
the Title Company for services requested by Seller or its representatives; and
(h) Any other customary costs and expenses not specifically provided
for herein and normally borne by a Seller of real property in the county in
which the Property is situated.
13.2. PURCHASER'S PAYMENTS. At (or at Purchaser's election before) the
Closing Date, Purchaser shall pay:
(a) One-half of any escrow fee charged by the Title Company;
(b) Purchaser's own attorneys' fees;
(c) One-half (1/2) the costs associated with the Survey;
(d) One-half (1/2) the costs of the Owner's Policy of Title Insurance
required hereby except that the costs of any additional premiums for
modification or deletion of standard exceptions, or endorsements to the Owner's
Policy of Title Insurance shall be at Purchaser's sole cost and expense;
(e) All of any special messenger, copy or other service charge made by
the Title Company for services requested by Purchaser or its representatives;
and
(f) All costs and expenses associated with the due diligence review of
the Property and any other customary costs and expenses borne by a Purchaser of
real property in the county in which the Property is situated.
ARTICLE 14.
REAL ESTATE BROKERAGE INDEMNITY
Seller does hereby agree to indemnify Purchaser against and hold
Purchaser harmless from any and all real estate commissions, claims for such
commissions or similar fees, including attorneys' fees incurred in any lawsuit
regarding such commissions or fees arising by, through or under Seller.
Purchaser does hereby agree to indemnify Seller against and hold Seller harmless
from any and all real estate commissions, claims for such commissions or similar
fees arising by, through or under Purchaser. In connection therewith, Purchaser
and Seller hereby represent and warrant to each other that neither such party,
their officers, employees and agents, have contracted for any such real estate
commissions, nor have they, without the knowledge of the other, contacted real
estate agents or brokers, nor have they, without the others knowledge, acted in
a manner so as to give rise to a claim for such real estate commissions or
similar fees.
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ARTICLE 15.
SURVIVAL
The representations and warranties of Purchaser and Seller contained in
this Agreement shall survive the Closing for a period of one (1) calendar year
and shall not be deemed merged into the Closing documents.
ARTICLE 16.
RIGHT OF ASSIGNMENT
Purchaser may assign its rights under this Agreement to a person or
entity which, directly or indirectly, controls, is controlled by or is under
common control with Purchaser, without the prior written consent of Seller.
Purchaser may not assign its rights under this Agreement to any other person or
entity without the prior written consent of Seller. Any person or entity to
which Purchaser assigns its rights under this Agreement shall execute and
deliver to Seller, contemporaneously with such assignment, a written assumption
agreement under which such assignee assumes all of the duties, obligations and
liabilities of Purchaser under this Agreement, states that the Earnest Money
Deposit has become the property of such assignee, and agrees to be bound by all
of the terms and provisions of this Agreement. Should Purchaser assign its
rights under this Agreement in the manner permitted hereby, upon delivery of
such assumption agreement to Seller, Purchaser shall be released from all
liability and obligations under this Agreement.
ARTICLE 17.
LITIGATION COSTS
Should either Seller or Purchaser bring legal proceedings permitted
hereunder against the other to enforce any provision of this Agreement, the
party in whose favor final judgment is entered by the Court in such proceedings
shall be entitled to recover against the other party the reasonable attorneys'
fees and expenses incurred by the prevailing party.
ARTICLE 18.
CONTINUATION OF MARKETING EFFORTS
Purchaser acknowledges that Seller will continue to market the Property
for sale to third parties while this Agreement is in effect. If Seller at any
time receives a bona fide offer to purchase the Property or any part thereof
from a third party offeror that Seller determines is preferable to the terms of
this Agreement (the "Third Party Offer"), Seller may subordinate Purchaser's
rights under this Agreement (as to the entire Property or the part thereof
included in the Third Party Offer) to the rights of such third party offeror (in
which event this Agreement will become a "back-up" contract), and may accept the
Third Party Offer unless Purchaser elects,
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within five (5) business days of its receipt of written notice that Seller has
received a Third Party Offer (the "Notice"), to amend this Agreement and
purchase the Property on the price and terms set forth in the Third Party Offer.
Seller's written notice to Purchaser of the Third Party Offer shall set forth
the price of the proposed sale, the identification of the proposed purchaser and
a description of the Property or part thereof proposed to be sold, and shall be
accompanied by a copy of the written document evidencing the Third Party Offer.
If Purchaser elects to purchase the Property (or part thereof included in the
Third Party Offer) on the price and terms set forth in the Third Party Offer,
Purchaser shall sign and deliver an amendment to this Agreement, prepared by
Seller's counsel in form reasonably satisfactory to Purchaser and Seller (the
"Amendment"), evidencing the same price and terms as set forth in the Third
Party Offer, except that the Closing Date and all interim deadlines for
performance set forth in this Agreement shall remain in effect, such that
Closing under this Agreement, as amended by the Amendment, occurs in any event
on or before May 26, 2000. If Purchaser does not elect to purchase the Property
(or part thereof included in the Third Party Offer) within five (5) business
days of its receipt of the Notice by delivering to Seller written notice of such
election, or does not sign and deliver the Amendment within five (5) business
days of its receipt of the Amendment, then Purchaser's rights under this
Agreement shall automatically become subordinate (as to the entire Property or
the part thereof included in the Third Party Offer), to the rights of the third
party offeror under the contract it enters into with Seller in accordance with
the Third Party Offer (i.e., this Agreement will become a "back-up" contract),
and Seller may sell the Property or part thereof included in the Third Party
Offer to the third party offeror free and clear of all claims of Purchaser under
this Agreement. The immediately preceding sentence is intended to be
self-operative and effective without the necessity of further action or approval
by any party. If Purchaser's rights under this Agreement are subordinated to the
rights of a third party offeror pursuant to this ARTICLE 18, and Seller
consummates the sale of the Property to such offeror as permitted by this
ARTICLE 18, the Earnest Money Deposit shall be returned to Purchaser and Seller
shall reimburse Purchaser for the actual and reasonable costs, including
reasonable attorneys' fees and expenses, incurred by Purchaser in connection
with its efforts to purchase of the Property. Purchaser agrees to provide
Seller, upon request, with reasonable documentation confirming (i) the
subordination of Purchaser's rights under this Agreement (i.e., that this
Agreement has become a "back-up" contract), and (ii) substantiating such costs.
ARTICLE 19.
MISCELLANEOUS
19.1. NOTICES. All notices, requests and other communications under
this Agreement shall be in writing and shall be sent via facsimile, delivered in
person, or sent by registered or certified mail, postage prepaid and return
receipt requested, addressed as follows:
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If intended for Seller:
Homco, Inc.
Attn: Bettina S. Simon, Vice President and General Counsel
4550 Spring Valley Road
Dallas, Texas 75244-3705
Telephone: 972-386-1084
Facsimile: 972-386-1106
with a copy to:
Weil, Gotshal & Manges LLP
Attn: Philip I. Danze, Esq.
100 Crescent Court, Suite 1300
Dallas, Texas 75201-6950
Telephone: 214/746-7716
Facsimile: 214/746-7777
If intended for Purchaser:
Mr. Donald J. Carter, Jr.
5608 Glenbrook Circle,
Plano, Texas 75093
Telephone:
-----------------------------
Facsimile:
-------------------------
with a copy to:
Munsch, Hardt, Kopf & Harr, P.C.
Attn: Lynn M. Collins, Jr., Esq.
1445 Ross Avenue
4000 Fountain Place
Dallas, TX 75202
Telephone: 214-855-7500
Facsimile: 214-855-7584
or at such other address, and to the attention of such other person, as any
party shall specify in a notice given as herein provided. Facsimile and personal
delivery of all notices shall always be effective with evidence of confirmation
of receipt, and all such notices, requests and other communications shall be
deemed to have been sufficiently given for all purposes hereof in the event of a
mailing in the manner specified herein, on a date three (3) days after the date
of the mailing thereof, whether or not the intended recipient of the notice
actually receives it.
19.2. SECTION 1031. Purchaser shall cooperate as reasonably requested
by Seller, at no cost to Purchaser, in connection with Seller's selling the
Property pursuant to a tax-deferred exchange qualifying under Section 1031 of
the Internal Revenue Code. Purchaser shall not be obligated to take title to any
replacement property or incur any cost or expense as part of such
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cooperation. Rather, the parties shall use an affiliate of the Title Company as
a qualified intermediary and an escrow arrangement reasonably approved by
Purchaser. Seller has or soon will have the exchange property under contract and
shall designated the Property as the sole and exclusive trade property for the
exchange transaction in accordance with ARTICLE 4. Seller also assumes
responsibility for filing necessary tax forms for the exchange.
19.3. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement embodies and
constitutes the entire understanding between the parties with respect to the
transactions contemplated herein, and all prior or contemporaneous agreements,
understandings, representations and statements (oral or written) are merged into
this Agreement. Neither this Agreement nor any provisions hereof may be waived,
modified, amended, discharged or terminated except by an instrument in writing
signed by the party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument.
19.4. APPLICABLE LAW AND VENUE. This Agreement is performable in Collin
County, Texas and shall be governed by and construed in accordance with the laws
of the State of Texas. Either Collin County, Texas or Dallas County, Texas shall
be a proper place of venue for all suits hereon.
19.5. CAPTIONS. The captions in this Agreement are inserted for
convenience of reference only and in no way define, describe, limit or affect
the scope or intent of this Agreement or any of its provisions.
19.6. BINDING EFFECT. This Agreement shall bind and benefit the parties
hereto and their respective successors and permitted assigns.
19.7. TIME OF THE ESSENCE. Time is of the essence of the performance of
Seller's and Purchaser's obligations hereunder.
19.8. EXHIBITS INCORPORATED. All Exhibits to this Agreement referred to
above are hereby incorporated in this Agreement at the respective places in it
where they are mentioned.
19.9. CONSTRUCTION. Purchaser and Seller acknowledge that each party
and its legal counsel have reviewed and revised this Agreement and that they
agree the normal rule of construction that any ambiguities are to be resolved
against the drafter shall not be employed in the interpretation of this
Agreement or any amendments or exhibits hereto.
19.10. TIME PERIODS. If the final day of any period of time set out in
any provision of this Agreement falls on Saturday or Sunday or on a legal
holiday under the laws of the State of Texas, then and in such an event, the
time of such period shall be extended to the next day which is not a Saturday,
Sunday or legal holiday.
19.11. OFFER; EFFECTIVE DATE. The submission of this Agreement to
Purchaser for its review and signature does not constitute an offer to sell the
Property to Purchaser on the terms set forth herein, but rather an invitation
for Purchaser to make an offer to Seller on these terms. Seller shall not be
bound by this Agreement until Seller has signed and delivered this Agreement to
Purchaser and the Title Company. The "Effective Date" of this Agreement shall be
the date
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the Title Company acknowledges that an original of this Agreement executed by
both Purchaser and Seller and the Earnest Money Deposit have been received by
the Title Company.
19.12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original; but all of such counterparts
shall together constitute but one and the same instrument.
19.13. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such provisions
shall be fully severable; this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Agreement; and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid or enforceable.
19.14. CONDITION PRECEDENT TO SELLER'S OBLIGATIONS. Purchaser
acknowledges that the approval of the Board of Directors of Seller to the
transactions described in this Agreement shall be a condition precedent to
Seller's obligations hereunder.
19.15. FURTHER ACTS. In addition to the acts recited in this Agreement
to be performed by Seller and Purchaser, Seller and Purchaser agree to perform,
or cause to be performed, on, before and after Closing any and all such further
acts as may be reasonably necessary to consummate the transactions contemplated
hereby.
19.16. CONFIDENTIALITY. By their execution hereof, Seller and
Purchaser, their respective agents, employees, officers, shareholders,
directors, successors, independent contractors and permitted assigns hereby
agree to maintain in strict confidentiality, all of the terms, provisions,
agreements and information contained in or referred to in this Agreement,
including any of the exhibits attached hereto and the results of any tests,
surveys, economic feasibility studies, environmental audits and other
information provided to or generated by Purchaser or Seller. The information to
be maintained in strict confidentiality pursuant to the preceding sentence shall
not be disclosed directly or indirectly to any person or entity without the
prior written consent and specific written approval of the other party hereto.
Notwithstanding the foregoing, information may be disclosed to title company
personnel, attorneys, accountants, prospective lenders and their counsel and
prospective equity participants and their counsel or as otherwise required by
law or court order.
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EXECUTED in multiple counterparts, each of which shall constitute an
original hereof for all purposes and be enforceable without production of or
accounting for the others, effective as of the Effective Date provided for in
SECTION 19.11. above.
SELLER:
HOMCO, INC.,
a Texas corporation
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Executed on March 14, 2000
PURCHASER:
------------------------------------------
DONALD J. CARTER, JR.
Executed on March 14, 2000
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Fully executed counterpart original of this Agreement and the sum of
$10,000 cash Earnest Money Deposit received.
TITLE COMPANY:
REPUBLIC TITLE OF TEXAS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Executed on March 14, 2000
(the "Effective Date" of this Agreement)
Exhibit A - Property Description
Exhibit B - Special Warranty Deed
Exhibit C - Bill of Sale
Exhibit D - Non-Foreign Status Affidavit
19
