CONTRACT OF SALE IN LIEU OF CONDEMNATION
Exhibit 10.13
This Contract of Sale in Lieu of Condemnation (the “Contract”) is entered into by and between
Altreco, Inc., a Delaware corporation (“Seller”), and the City of Grapevine, Texas (“Purchaser”).
ARTICLE I
AGREEMENT OF PURCHASE AND SALE
1.1 Agreement. For the consideration and upon the terms and conditions contained herein,
Seller agrees to sell and convey to Purchaser and Purchaser agrees to purchase from Seller:
(a) Xxx 0 xxx 0 X, Xxxxxxxx and Xxxxxx Subdivision and Xxxxx 00X, Xxxxxxxx Xx. 000,
such property more commonly known to be located at 000 X. Xxxx Xxxxxx in Grapevine, Tarrant
County, Texas, shown and described in the attached Exhibit “A” (the “Land”), together with
all improvements (except as provided in Section 1.1(c)) located thereon and all the rights
and appurtenances pertaining thereto but excluding any mineral interests of whatever nature,
producing or non producing, related to the Land. The Land shall be conveyed to Purchaser
together with all of Seller’s right, title, and interest in and to (i) any and all adjacent
strips and gores between the Land and any abutting properties, and in land lying in or under
the bed of any creek, stream, or waterway or any highway, avenue, street, road, alley,
railroad spur, easement, or right-of-way, upon or proposed, in, on, across, abutting, or
adjacent to the Land, (ii) all utilities, sewage treatment capacity and water capacity
serving or which will serve the Land and (iii) any easements, leases, rights-of-way, rights
of ingress or egress.
(b) all (i) rights, privileges, benefits, powers and interests (including rights,
privileges, benefits, powers and interests as “developer”, “owner”, “declarant”, or
otherwise) under or with respect to any restrictive covenants, use restrictions, deed
restrictions, (ii) rights relating to property owners associations, including review and
approval rights, (iii) licenses and permits pertaining to the Land, (iv) development and
zoning rights pertaining to the Land (the “Intangible Property”).
(c) the Land, and Intangible Property are sometimes collectively herein referred to as
the “Property”. Notwithstanding the foregoing, Seller shall have the right to remove at any
time prior to or after Closing all personal property, fixtures, equipment, inventory, and
trade fixtures from the Property, and such items shall not be deemed “Property”.
ARTICLE II
PURCHASE PRICE
2.1 Purchase Price. The purchase price for the Land (the “Purchase Price”) shall be
$2,747,000.00. The Purchase Price is payable all in cash or current funds at the Closing
(hereinafter defined), subject to the offsets and credits described herein.
2.2 Additional Consideration.
(a) Relocation Costs. In addition to the Purchase Price, Purchaser agrees to pay Seller’s
relocation costs for relocation within the Dallas-Fort Worth-Arlington Metropolitan Statistical
Area in an amount of not less than $341,000.00. The estimate of relocation costs shall be updated
by Purchaser, and Purchaser agrees to pay the greater of $341,000.00 and the actual moving costs
estimated by Move Solutions, Ltd. as of no later than September 1, 2010. If Seller relocates
outside the Dallas-Fort Worth-Arlington Metropolitan Statistical Area, Purchaser’s relocation cost
obligation is limited to $341,000.00.
(b) Occupation. Seller, or its designated affiliate, Security Manufacturing Corporation, a
Delaware corporation, shall be entitled to use and occupy the Property at no additional cost, rent
or fee from the Closing Date until the earlier of: 1) December 31, 2010, provided that it uses and
operates the Property substantially consistent with the pre-Closing use and occupancy of the
Property; or 2) written agreement by both parties to terminate the lease of the Property (the
“Lease Term”). The rights and obligations of Purchaser and Seller (or its designated affiliate,
Security Manufacturing Corporation) during the Lease Term shall be memorialized and set forth in
that certain Lease Agreement attached hereto as Exhibit “B” and which shall be executed and
effective by both parties as of the Closing Date.
ARTICLE III
CONTRACT CONSIDERATION AND XXXXXXX MONEY
3.1 Contract Consideration. Upon execution of this Contract by Seller, Purchaser
hereby delivers to Seller a check in the amount of $100.00, which is hereby accepted by Seller as
the consideration for Seller’s execution and delivery of this Contract, which consideration is in
addition to and independent of any other consideration provided for in this Contract, is earned and
is nonrefundable.
3.2 Xxxxxxx Money; Amount and Payment. Within three (3) business days after the
Effective Date (hereinafter defined), Purchaser shall deliver its check in the amount of One
Thousand and No/100 Dollars ($1,000.00) (the “Xxxxxxx Money”) to Rattikin Title Company, 000 Xxxxx
Xxxxxx, Xxxxx 000 Xxxxxxxxx, Xxxxx 00000 (the “Title Company”). The Title Company shall cash the
Xxxxxxx Money check and deposit the proceeds thereof in an account and at a depository selected by
Purchaser, with interest, if any, to accrue to the benefit of Purchaser, and such interest shall
not be part of the Xxxxxxx Money but shall be distributed to Purchaser from time to time upon
Purchaser’s request to the Title Company. The Xxxxxxx Money shall be non-refundable, except in
case of Seller’s uncured breach of this Agreement and shall either shall be applied to the Purchase
Price upon Closing or turned over to Seller if Purchaser, for any reason other than Seller’s uncured
breach of this Agreement, fails to close the transaction set forth in this Contract.
ARTICLE IV
PRE-CLOSING OBLIGATIONS AND CONDITIONS
4.1 Items to be Obtained. Within thirty (30) days after the Effective Date
(hereinafter defined), Purchaser shall obtain the following at Purchaser’s sole cost and expense:
(a) A current on-the-ground survey of the Land (the “Survey”) dated subsequent to the
Effective Date, prepared by a licensed professional surveyor (the “Surveyor”) in a form
acceptable to Purchaser. In the event the legal description of the Land contained in the
Survey is different from the description contained in Exhibit “A”, it shall be substituted
for the description of the Land contained in Exhibit “A”, and the Contract shall be deemed
amended by the substitution of the legal description of the Land contained in the Survey for
the description of the Land contained in Exhibit “A”.
(b) A current commitment from the Title Company for the issuance of a Title Policy
(hereinafter defined) by an underwriter acceptable to the Purchaser, together with complete
and legible copies of all instruments referred to in the commitment as conditions or
exceptions to title to the Land, including items listed in Schedule C of the commitment
(collectively, the “Title Commitment”).
(c) An environmental assessment of the Land, including at a minimum a Phase I
environmental survey, which Purchaser has obtained prior to the Effective Date (the “Phase
I”) and any additional inspection proven necessary as determined by Purchaser in Purchaser’s
sole discretion. Purchaser shall have the right to update the Phase I prior to Closing and
Purchaser shall have the right to terminate this contract if Purchaser finds a material
adverse change between the environmental condition set forth in the original Phase I and the
environmental condition set forth in the updated Phase I. The Phase I (and any other
environmental inspections performed by Purchaser) shall be not be disclosed to, certified
to, or otherwise provided to Seller.
(d) all information in the possession of the Seller (including copies of documents)
concerning any leases (including oil and gas leases), contracts or licenses concerning the
Land (the “Leases”).
4.2. The Land. In addition to any other requirements contained herein, Seller shall,
as a condition prerequisite to Closing, provide evidence that any leases or occupancy agreement, if
any, have either been terminated prior to Closing or have been made fully assigned to Purchaser in
a manner mutually agreeable to both parties, and that in the event of any termination thereof, any
such tenant or licensee occupying or utilizing the Land has been removed and relocated prior to
Closing. It is the intent of the parties and a condition of this Contract that except as to
Seller’s occupancy of the Land pursuant to Section 2.2 hereinabove in accordance with the Lease,
the Land be free of any tenant or occupant at the time of Closing.
ARTICLE V
SURVEY, INSPECTION, AND TITLE REVIEW
5.1 Inspection. Purchaser may inspect the Property within thirty (30) days after the
Effective Date, which inspection may include structure, appliances, heat and air conditioning
systems, electrical systems, plumbing, machinery, sprinklers, foundation, soil, and all portions of
the Land. In the event any element of such inspection is unacceptable to Purchaser, Purchaser may
terminate this Contract by written notice to the Seller.
5.2 Title Review. Purchaser shall have a period of twenty (20) days from the date on
which it obtains the last of the Title Commitment and the Survey in which to review the state of
Seller’s title to the Land (the “Title Review Period”). If the Survey or Title Commitment
reflects or discloses any defect, exception, or other matter affecting the Land (individually,
“Title Defect” and collectively, “Title Defects”) that is unacceptable to Purchaser for any reason
whatsoever, then prior to the expiration of the Title Review Period, Purchaser shall provide Seller
with written notice of its objections, and Seller shall have ten (10) days (the “Cure Period”) from
the date of Seller’s receipt of such notice to remove or cure any Title Defects to the satisfaction
of Purchaser. Seller shall use its best efforts to remove or cure the Title Defects to Purchaser’s
satisfaction, but shall not be required to incur any costs to do so.
If Seller cannot cure any or all of the Title Defects within the Cure Period, Seller shall
notify Purchaser in writing, prior to the expiration of the Cure Period, specifying Seller’s
failure, refusal, or agreement to cure each of the Title Defects (the “Cure Notice”), and Purchaser
may on or before ten (10) days after receipt of the Cure Notice (The “Defect Review Period”),
either (i) terminate this Contract by written notice to the Seller, or (ii) elect in writing to
waive any uncured Title Defect which Seller has not agreed in the Cure Notice to cure at or prior
to Closing.
If Purchaser fails to terminate the Contract prior to expiration of the Defect Review Period,
then any Title Defect (i) that Seller has failed to cure prior to the expiration of the Cure Period
and has not agreed in the Cure Notice to cure or cause to be cured by Closing, and (ii) that is set
forth on Schedule B of the Title Commitment shall be deemed waived by Purchaser. In the event
Seller fails to provide Purchaser with the Cure Notice prior to the expiration of the Cure Period,
Purchaser shall have the right, at any time after the expiration of the Cure Period, to either (i)
terminate this Contract by written notice to Seller; or (ii) elect in writing to waive any uncured
Title Defects.
Any exceptions to Seller’s title (i) (a) to which Purchaser has not objected or (b) which have
been waived or deemed waived by Purchaser, and (ii) which are shown on Schedule B of the Title
Commitment shall be “Permitted Exceptions”. In no event shall any matter or instrument which
affects the Land become a Permitted Exception until Purchaser has (i) been advised in writing of
the existence of such matter or instrument, (ii) received a legible copy of the instrument, if any,
creating
such exception, and (iii) failed to object to said exception within ten (10) days following
Purchaser’s receipt of written notification of the existence of such exception and the instrument
creating such exception. If Purchaser terminates this Contract as provided for herein, then the
Xxxxxxx Money shall be returned immediately to Purchaser and neither Seller nor Purchaser shall
have any further right or obligation hereunder.
ARTICLE VI
REPRESENTATIONS, WARRANTIES,
COVENANTS, AND AGREEMENTS OF SELLER
COVENANTS, AND AGREEMENTS OF SELLER
6.1 Representations and Warranties. In order to induce Purchaser to enter into this
Contract, Seller makes the following warranties and representations which shall be true and correct
as of the Effective Date and on the Closing Date:
(a) Seller has or will have at closing good and indefeasible fee simple title to the
Land, and at the Closing Seller will have and will convey to Purchaser, good and
indefeasible fee simple title to the Land, free and clear of all liens, defects,
encumbrances, conditions, exceptions, restrictions, or other matters affecting title except
the Permitted Exceptions.
(b) Except with respect to Seller’s potential exercise of its right of eminent domain,
there is no litigation or proceeding pending or threatened against or relating to any of the
Land.
(c) Seller is, and at Closing will be, authorized and permitted to enter into this
Contract and to perform all covenants to be performed by Seller hereunder, and Seller’s
right to execute this Contract is not limited by any other agreements. The person(s)
signing this Contract has been authorized by Seller to do so.
(d) Except with respect to Seller’s potential exercise of its right of eminent domain,
Seller has no knowledge of any pending or threatened judicial or administrative action, or
any action pending or threatened by third parties applicable to the Land.
(e) Except for debts, liabilities, and obligations for which provision is made herein
for proration or other adjustment at Closing, all liabilities and obligations arising from
the ownership and operation of the Land (including, but not limited to, utility services and
tap fees) will be paid on or before the Closing Date. The costs for any adjacent streets
and any utilities serving the Land have been fully paid.
(f) To the best of Seller’s knowledge, Seller has complied with and the Land is in
compliance with all applicable laws, ordinances, regulations, statutes, rules and
restrictions relating to the Land.
(g) To the best of Seller’s knowledge and except as may be required by Seller’s lender
with respect to the current mortgage on the Property, execution and delivery of this
Contract, consummation of the transaction described herein, and compliance with the terms of
this Contract will not conflict with, or constitute a default under, any agreement to which
Seller is a party or by which Seller or the Land is bound, or violate any regulation, law,
court order, judgment, or decree applicable to Seller or the Land.
(h) Seller has no knowledge of any archaeological, anthropological, or historical
finds, objects, or sites or any endangered or threatened species in, on, or about the Land.
To the best of Seller’s knowledge, no portion of the Land constitutes a “critical habitat”
as such term is defined in the Endangered Species Act of 1973, as amended.
(i) To the best of Seller’s knowledge, no part of the Land has been used for the
storage or disposal of any hazardous or toxic materials, and no part of the Land contains
any materials, whether brought to the Land, deposited thereon, used on the Land, generated
on
the Land as a product or by-product of activities on the Land, or otherwise; (i) that
are or contain polychlorinated bi-phenyls (PCB’s) or asbestos; (ii) that are wastes or other
regulated substances under the Resource Conservation and Recovery Act and/or the regulations
promulgated or adopted thereunder; (iii) that are hazardous substances or other regulated
substances as defined in the Comprehensive Environmental Response, Compensation and
Liability Act, as amended (or regulations promulgated, adopted or incorporated thereunder);
or (iv) that are otherwise classified as hazardous or regulated substances under any federal
or applicable state law or regulation. There are no underground storage tanks on the Land
and, to Seller’s knowledge, there never have been any underground storage tanks on the Land.
To the best of Seller’s knowledge, the Land has not been used as a landfill or as a dump
for garbage or refuse.
(j) At the Closing Date, Seller has fully complied with the requirements of Article 4
herein.
6.2 Covenants of Seller. Seller covenants that, from and after the Effective Date,
Seller shall:
(a) Give Purchaser and Purchaser’s agents and representatives full access to physically
inspect the Land and to make such inspections, surveys, test borings, soil analyses, and
other tests and surveys thereon as Purchaser, in its sole discretion, shall deem advisable;
provided, however, that such access shall be contingent upon Purchaser providing reasonable
notice to Seller and that any physically intrusive studies (e.g. boring into the Land) shall
require Seller’s consent. Seller shall furnish Purchaser such additional information
concerning the ownership, management, operation and the condition of the Land as Purchaser
may reasonably request. All inspection fees, appraisal fees, engineering fees and other
expenses of any kind incurred by Purchaser relating to the inspection of the Property will
be solely Purchaser’s expense, and Purchaser will keep the Property free and
clear of any
mechanic’s or materialmen’s liens in connection with the inspections. In the event the
transactions contemplated hereby shall fail to close for any reason, Purchaser agrees to
provide Seller with copies of all reports or other information provided to or obtained by
Purchaser in connection with or as a result of the Inspections. Purchaser’s obligations
under this Section 6.2(a) shall survive the Closing or termination of this Agreement.
(b) Not: (i) create or permit any lien or other encumbrance affecting the Land, other
than the lien for taxes not yet due and payable and existing liens to be released at the
Closing; (ii) commit any waste or nuisance upon the Land; (iii) impose any easements,
covenants, conditions, or restrictions on the Land; (iv) institute or participate in any
annexation, zoning, platting, or other governmental action regarding the Land; or (v) enter
into or modify any lease or contract which affects the Land.
(c) Make all payments on all indebtedness secured by any of the Land when due, and
timely comply with all other provisions of the instruments evidencing or securing such
indebtedness.
(d) Notwithstanding anything herein to the contrary, Purchaser acknowledges that Seller
may use the Property in accordance with its current day-to-day operations, and nothing
contained herein shall prevent Seller from performing such business operations as Seller
deems reasonable.
(e) The instruments evidencing or securing such indebtedness shall not be amended nor
shall such indebtedness be, renewed, extended, refinanced, or in any other way changed
without the prior written consent of the Purchaser.
6.3 Knowledge Standard. The terms “to the best of the knowledge of the Seller”, “to the best
knowledge of the Seller”, to “Seller’s knowledge” and other phrases of like substance are to be
construed to include only the actual knowledge of the officers of Seller.
6.4 Survival of Representations and Warranties. All of the representations, warranties and
agreements of Seller set forth in this Contract shall be true upon the Effective Date and shall
survive the delivery of the special warranty deed for a period of ninety (90) days following
the Closing Date.
6.5 “AS IS, WHERE IS”: Disclaimer of Warranties. AS A MATERIAL INDUCEMENT TO SELLER TO ENTER
INTO THIS CONTRACT AND TO SELL THE PROPERTY TO PURCHASER, PURCHASER HEREBY ACKNOWLEDGES AND AGREES
THAT (i) PURCHASER IS PURCHASING THE PROPERTY IN “AS IS, WHERE IS CONDITION, WITH ALL FAULTS”; (ii)
PURCHASER IS PURCHASING THE PROPERTY SUBJECT TO ALL EXISTING LAWS, STATUTES, ORDINANCES, CODES,
RULES AND REGULATIONS, AND PURCHASER SHALL BE RESPONSIBLE FOR THE PAYMENT OF ALL CONNECTION
CHARGES, PRO RATA FEES, DEVELOPER LIABILITY PAYMENTS AND LIKE CHARGES, FEES AND PAYMENTS REQUIRED
IN CONNECTION WITH THE UTILIZATION OF UTILITIES, ROADS OR OTHER SIMILAR IMPROVEMENTS TO SERVE
THE
PROPERTY AND/OR ANY IMPROVEMENTS EXISTING OR HEREAFTER CONSTRUCTED OR PLACED THEREON; (iii) EXCEPT
AS EXPRESSLY SET FORTH IN THIS CONTRACT AND EXCEPT FOR THE SPECIAL WARRANTY OF TITLE CONTAINED IN
THE DEED, NEITHER SELLER NOR ANY PARTY REPRESENTING SELLER HAS MADE ANY WARRANTY OR REPRESENTATION
TO PURCHASER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OR REPRESENTATIONS CONCERNING HABITABILITY, SUITABILITY,
MERCHANTABILITY, WORKMANSHIP, INCOME TO BE DERIVED FROM THE PROPERTY, EXPENSES TO BE INCURRED IN
CONNECTION WITH THE PROPERTY, ZONING, BUILDING CODE, PLATTING, SUBDIVISION, ACCESS, AVAILABILITY OF
UTILITIES OR COMPLIANCE WITH ANY LAWS, STATUTES, ORDINANCES, CODES, RULES OR REGULATIONS; AND (iv)
EXCEPT FOR THE EXPRESS WARRANTIES AND REPRESENTATIONS CONTAINED IN THIS CONTRACT AND THE SPECIAL
WARRANTY OF TITLE CONTAINED IN THE DEED, PURCHASER WILL NOT RELY ON ANY WARRANTY OR REPRESENTATION,
EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF SELLER OR ANY PARTY REPRESENTING SELLER, BUT INSTEAD WILL
RELY ON PURCHASER’S AND ANY CONSULTANT(S)’ INSPECTIONS, TESTS, SURVEYS, PROCEDURES AND
INVESTIGATIONS OF THE PROPERTY. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT ANY THIRD PARTY
REPORT, AUDITS, ASSESSMENTS, STUDIES OR OTHER INFORMATION WITH RESPECT OR PERTAINING TO THE
PROPERTY FURNISHED TO PURCHASER BY SELLER (INCLUDING, WITHOUT LIMITATION, AND ANY ENGINEERING
REPORTS), OR BY ANY PARTY REPRESENTING SELLER HAVE BEEN PROVIDED BY SELLER TO PURCHASER WITHOUT ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, ORAL OR WRITTEN, CONCERNING THE ADEQUACY OR THE
ACCURACY THEREOF AND THAT PURCHASER WILL NOT RELY THEREON BUT INSTEAD WILL RELY ON PURCHASER’S OR
THE APPLICABLE CONSULTANT(S)’ INVESTIGATIONS OF THE PROPERTY TO DETERMINE WHETHER THE PROPERTY IS
IN A CONDITION SATISFACTORY TO PURCHASER AND WHETHER THE PROPERTY IS SUITABLE FOR PURCHASER’S
INTENDED USE. The special warranty deed and all other conveyance documents, if any, conveying the
Property to Purchaser at Closing shall contain a provision substantially identical to that which is
set forth above.
6.6 Release Effective as of the Closing and except as to Seller’s obligations,
representations, warranties and covenants under this Contract, Purchaser, on its own behalf and on
behalf of its trustees, officers, employees, other Affiliates (as defined below), agents,
attorneys, representatives, successors and assigns (collectively “Releasing Parties’) hereby agrees
that each of Seller and Seller’s directors, officers, employees, other Affiliates, agent,
attorneys, representatives, successors and assigns (collectively “Released Parties” shall be fully
and forever released and discharged from any and all liabilities, losses, claims (including third
party claims), demands, damages of any nature whatsoever, causes of action, costs, penalties,
fines, judgments, attorneys’ fees, consultants’ fees and costs and experts’ fees (collectively
“Claims”), whether direct or indirect, known or unknown, foreseen or unforeseen, that may arise on
account of or in any way be connected with the Property including, without limitation, the
physical, structural condition of the Property or any law or regulation applicable thereto,
including, without limitation, any Claim or matter (regardless of when it first appeared or
appears) relating to or arising from: (a) the status of title to the Property or Seller’s
ownership of the Property including all matter shown on the Title
Commitment, the Survey and all
matters which would have been shown on an ALTA/ASCM survey
of the Property, (b) any patent or latent defects or deficiencies with respect to the
Property; (c) the presence of any mold or microbial agents in the Property; and (d) any and all
matters related to the physical condition of the Property or any portion thereof, including without
limitation, the condition and/or operation of the Property and each part thereof. Purchaser hereby
waives the right to pursue and hereby covenants and agrees not to commence any action, legal
proceeding, cause of action or suit in law or equity, of whatever kind or nature against the
Released Parties or any one of them or their agents in connection with any Claim. In this
connection and to the greatest extent permitted by law, Purchaser hereby agrees, represents and
warrants that Purchaser realizes and acknowledges that factual matters now unknown to it may have
given or may hereafter give rise to Claims which are presently unknown, unanticipated and
unsuspected, and Purchaser further agrees, represents and warrants that the waivers and releases
herein have been negotiated and agreed upon in light of that realization, that Purchaser
nevertheless hereby intends to release, discharge and acquit Released Parties from any such unknown
Claims, and that this release is a material factor in Seller’s negotiation of the Purchase Price
and represents a material portion of the consideration given to Seller by Purchaser in exchange for
Seller’s performance hereunder and the provisions of this Section shall survive the Closing. The
term “Affiliate” of a specified Person (as defined below) means any Person which directly or
indirectly through one or more intermediaries controls, is controlled by or is under common control
with the Person specified. The term “control” means the possession, direct or indirect, of the
power to direct or cause the direction of the management and policies of a Person. The term
“Person” means any individual, partnership, corporation, limited liability company, trust,
unincorporated association, joint venture or any other entity of any kind whatsoever, whether for
profit or not for profit, and any governmental agency.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PURCHASER
7.1 Representations and Warranties. To induce Seller to enter into this Contract,
purchaser represents and warrants to Seller that Purchaser is fully authorized and empowered to
enter into this Contract and to consummate the transactions contemplated hereunder.
ARTICLE VIII
CONDITIONS PRECEDENT TO CLOSING
8.1 Conditions Precedent to Purchaser’s Performance. The obligation of Purchaser to
close the transaction described in this Contract shall be subject to the following conditions
precedent:
(a) All the representations and warranties of Seller set forth in this Contract shall
be true and correct as of the Effective Date and on the Closing date, and Seller shall have
complied with all covenants and agreements of Seller set forth herein.
(b) There shall be no material change in the matters reflected on the Title
Commitment
or Survey from those matters appearing therein on the date thereof (except those changes
requested by Purchaser in its notice of Title Defects), and no encumbrance or Title Defect
shall affect the Land except the Permitted Exceptions.
In the event that any of the above conditions are not satisfied or waived in writing by
Purchaser prior to the Closing, Purchaser may terminate this Contract by delivery of written notice
to Seller on or before the Closing Date. In the event of termination pursuant to this section, the
Xxxxxxx Money shall be immediately refunded to Purchaser free of any claims by Seller.
ARTICLE IX
CLOSING
9.1. Time and Place. The sale and purchase of the Land shall be consummated at a
closing (the “Closing”) to be held at the offices of the Title Company. The Closing shall occur
on a date designated by Purchaser that is not later than forty-five (45) days after the Effective
Date (the
“Closing Date”).
9.2 Items to be Delivered by Seller at the Closing. At the Closing Seller shall
deliver or cause to be delivered to Purchaser each of the following items:
(a) A special warranty deed duly executed and acknowledged by Seller, granting,
conveying and warranting to Purchaser good and indefeasible fee simple absolute title to
the Land, free and clear of any liens, encumbrances, easements, restrictions, or other
matters affecting title to the Land except the Permitted Exceptions.
(b) A duly executed and acknowledged assignment so as to convey all Intangible Property
to Purchaser, free and clear of all liens, encumbrances, easements, and other matters other
than the Permitted Exceptions.
(c) Such evidence that may be reasonably required by Purchaser or the Title Company to
evidence the status and capacity of Seller and the authority of the persons who are
executing the various documents on behalf of the Seller.
(d) An affidavit in compliance with Section 1445 of the Internal Revenue Code and
applicable regulations stating, under penalty of perjury, Seller’s United States taxpayer
identification number and that Seller is not a “foreign person” as that term is defined in
said Section 1445. If Seller fails to deliver such affidavit, Purchaser may withhold from
the Purchase Price and pay to the Internal Revenue Service the amount required by Section
1445 and applicable regulations.
(e) An “affidavit of parties in possession” for delivery to the Title Company, stating
that there are no parties in possession of any portion of the Land as lessees, tenants at
sufferance, or trespassers.
(f) A “bills paid affidavit” in accordance with Section 53.085 of the Texas
Property
Code.
(g) A fully-executed copy of the Lease.
9.3. Items to be Delivered by Purchaser at the Closing. At the Closing, Purchaser
shall deliver to Seller the Purchase Price plus $341,000.00 for moving costs pursuant to Section
2.2(a) hereinabove (and subject to a “true-up” if the moving costs are demonstrated to be more than
$341,000.00, such difference will be paid by Purchaser to Seller within fifteen (15) days within
Seller’s submission to Purchaser of evidence of such difference); provided however, if any of the
Purchase Price is paid by bank wire transfer of funds, and the order for transfer of funds is
timely made on the date of Closing, but the funds are not received by the Title Company on the date
of Closing, Purchaser shall not be in default hereunder if the Purchase Price is received by the
Title Company on the next business day. In addition, Purchaser shall deliver to Seller a
fully-executed copy of the Lease.
9.4. Adjustments and Prorations. At Closing, the following items shall be adjusted or
prorated between Seller and Purchaser:
(a) Ad valorem taxes for the Land for the then current calendar year shall be prorated
in cash as of May 1, 2009. Seller’s pro rata portion of such taxes shall be based upon
taxes actually assessed for the then current calendar year or, if for any reason such taxes
for the Land have not been actually assessed, such proration shall be based upon the amount
of such taxes for the immediately preceding calendar year, and adjusted by cash settlement
when exact amounts are available. If the Land is assessed and taxed as a part of a larger
parcel, then, for purposes of computing tax prorations, a proportionate part of the ad
valorem taxes attributable to such larger parcel shall be allocated to the Land on the basis
of the ratio between the number of gross acres of the Land and the total number of gross
acres comprising such larger parcel, taking into account the value and location of any
improvements located on the larger parcel. All special taxes or assessments approved or
assessed prior to the Closing Date shall be paid by Seller. If Seller or Seller’s
predecessors in
title have claimed any partial or total exemption from taxation of the Land based on
agricultural or open space use or any other use, and if a loss of such partial or total
exemption would result in the imposition of tax for a period prior to the Closing Date,
Seller shall satisfy at the Closing, and shall indemnify and hold Purchaser harmless from,
any tax on any of the Land for years prior to the Closing Date which become due as the
result of any changes in land usage or ownership or otherwise (“Rollback Taxes”, the term
Rollback Taxes shall include all interest incurred with respect to such taxes).
(b) Except as otherwise provided herein, each party shall pay its share of all other
closing costs and expenses of closing in consummating the sale and purchase of the Property
to be borne and paid as follows:
Owner’s Title Policy paid by Purchaser
Documentary stamp or other transfer taxes paid by Purchaser
Survey paid by Purchaser
Filing fees paid by Purchaser
Documentary stamp or other transfer taxes paid by Purchaser
Survey paid by Purchaser
Filing fees paid by Purchaser
Property and other taxes through pro-rated through May 1, 2009
Recording fees paid by Purchaser
Realtor or broker fees, if any, paid by Seller.
Recording fees paid by Purchaser
Realtor or broker fees, if any, paid by Seller.
(c) The agreements as to prorations and adjustments in this Section shall survive the
Closing. In the event that, subsequent to the Closing, any adjustments made at the Closing
pursuant to this Section are agreed upon by the parties hereto to be erroneous, then either
party hereto who is entitled to additional monies shall invoice the other party for such
additional amounts a may be owing, and such amounts shall be paid within ten days from
receipt of the invoice.
ARTICLE X
REMEDIES UPON DEFAULT
10.1. Default by Seller. If Seller fails to timely comply with any condition,
covenant, or obligation of Seller hereunder, such failure shall be a default, and Purchaser shall
have the right, as its sole remedy, to either: (i) terminate this Contract by giving written
notice thereof to Seller, whereupon the Title Company immediately shall deliver the Xxxxxxx Money
(and all accrued interest thereon, if any) to Purchaser, free of any claims by Seller, or (ii)
enforce specific performance of Seller’s obligations under this Contract. Notwithstanding any
other provision herein to the contrary, if Seller fails to satisfy its obligations, whereupon
Purchaser will be granted a credit against the Purchase Price for the costs incurred by Purchaser
to satisfy such obligations of Seller.
10.2. Default by Purchaser. If all conditions of this Contract are satisfied and all
covenants and obligations to be performed by Seller prior to Closing are fully performed, and if
performance of this Contract is fully tendered by Seller and the sale is not consummated through
default by Purchaser, then Seller, as Seller’s sole and exclusive remedy at law or in equity, shall
have the right to terminate this Contract by giving written notice thereof to Purchaser, whereupon
neither party shall have any further rights or obligations hereunder, and the Title Company shall
deliver the Xxxxxxx Money to Seller, free of any claims by Purchaser. The Xxxxxxx Money is a
reasonable, good faith estimate of actual damages that Seller would suffer, and shall be liquidated
damages for Purchaser’s default due to the difficulty, inconvenience, and uncertainty of
ascertaining Seller’s actual damages for Purchaser’s default. The payment of the Xxxxxxx Money
upon Purchaser’s default shall constitute full satisfaction of Purchaser’s obligations hereunder.
ARTICLE XI
MISCELLANEOUS
11.1. Notices. Any notice, demand, or other communication required to be given or to
be served upon any party hereunder shall be in writing and delivered to the person to whom the
notice is
directed, either: (i) in person; (ii) by United States Mail, as registered or certified item
with return receipt requested; or (iii) delivered by delivery service (including any express mail
or delivery
service). Notices, demands, or other communications delivered by mail shall be deemed
given and received when deposited in a post office or other depository under the care or custody of
the United States Postal Service, enclosed in a wrapper, addressed properly, with proper postage
affixed. Any notice, demand or other communication given other than by certified or registered
mail, return receipt requested, shall be deemed to have been given and received when delivered to
the address of the party to whom it is addressed as stated below:
| Purchaser: | The City of Grapevine, Texas | |||
| Attn: Xxxxx Xxxxxxxx | ||||
| City Manager | ||||
| 000 Xxxxx Xxxx Xxxxxx | ||||
| Xxxxxxxxx XX 7 | ||||
| 000-000-0000 | ||||
| 817-410-3202- Fax | ||||
| With a copy to: | ||||
| Xxxxxxx X. X. Xxxxx | ||||
| Xxxxx & Xxxxx, L.L.P. | ||||
| 0000 Xxxxxxx, Xxxxx 000 | ||||
| Xxxxxx, Xxxxx 00000 | ||||
| (000)000-0000 | ||||
| (000)000-0000 Fax | ||||
| Seller: | Altreco, Inc. | |||
| Attn: Xxxx X. Xxxxxxx | ||||
| 000 X. Xxxx | ||||
| Xxxxxxxxx, Xxxxx 00000 | ||||
| 000-000-0000 | ||||
| 000-000-0000 – Fax | ||||
| With a copy to: | ||||
| Xxxxxxx X. Xxxxxxx | ||||
| Xxxxxxx & Xxxxxx, P.C. | ||||
| 0000 Xxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxx, Xxxxx 00000 | ||||
| (000) 000-0000 | ||||
| (000) 000-0000 — Fax |
Either party hereto may change its address for notice by giving the other party ten (10) days
advance written notice of such change of address.
11.2. [Intentionally deleted.]
11.3. Assignment; Third-Party Beneficiaries. This Contract shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs, legal representatives,
successors, and assigns. This Contract or the rights hereunder may be assigned by the Purchaser
or Seller
without the written consent of the other party. In addition, this Contract shall
specifically inure to the benefit of American Locker Group, Incorporated, a Delaware corporation
(“ALG”), its affiliates and subsidiaries, and ALG, its affiliates and subsidiaries shall be
entitled to the benefits from and to enforce any rights of Seller under this Contract.
11.4. Interpretation and Applicable Law. THIS CONTRACT SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AND ALL OBLIGATIONS OF THE PARTIES
CREATED HEREUNDER ARE PERFORMABLE IN XXXXXX COUNTY, TEXAS. Where required for proper
interpretation, words in the singular shall include all genders. The descriptive headings of the
article, sections, and paragraphs in this Contract are for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
11.5. Amendment. Except as provided above with respect to the automatic substitution
of Exhibit “A”, this Contract may not be amended and no condition, covenant, or obligation may be
waived, except by an agreement in writing signed by Seller and Purchaser.
11.6. Attorneys’ Fees. If either party files a lawsuit in connection with this
Contract, the prevailing party in such action shall be entitled to recover from the non prevailing
party, in addition to all other remedies or damages as limited herein, reasonable attorneys” fees
and costs of court incurred in such lawsuit.
11.7. Entire Agreement. This Contract constitutes the entire agreement between the
parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous
agreements and understandings of the parties in connection therewith.
11.8. Multiple Counterparts. This Contract may be executed simultaneously in two or
more counterparts, (including counterparts executed by portable document format (pdf) or by
facsimile), each of which shall be deemed an original and all of which together shall constitute
one instrument.
11.9. Effective Date; Dates. The effective date of this Contract (the “Effective
Date”) shall be the date on which the last of Seller and Purchaser execute this Contract. Any act
performable on an official United States Holiday or a Saturday or Sunday shall be performable on
the next business day following such date.
11.10. Brokers. Each party represents and warrants to the other that no brokers or
finders have been engaged by it in connection with the transactions contemplated by this Contract,
or, to its knowledge, is in any way connected with such transaction. In the event of any claim for
broker’s or finder’s fees or commissions in connection with the negotiation, execution, or
consummation of this Contract, then each party shall indemnify, hold harmless, and defend the other
party from and against any such claim based upon any statement, representation, or agreement made
by, or allegedly made by, the indemnifying party. This indemnity shall survive the Closing or
termination of this Contract.
11.11. Construction. The parties acknowledge that they have had the opportunity to
be
represented by counsel in connection with this transaction and that this Contract shall be
interpreted according to its fair construction and shall not be construed against either party.
11.12. Invalidity. If any provision in this Contract shall for any reason be held to
be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision hereof, and this Contract shall be construed
as if such invalid, illegal, or unenforceable provision had never been contained herein.
11.13. Further Assurances. In addition to the acts recited herein to be performed by
Seller, Seller hereby agrees to perform at or after the Closing all further acts as Purchaser may
reasonably require to (i) evidence and vest in Purchaser the ownership of, and title to, all of the
Land, and (ii) consummate the transaction contemplated hereunder.
11.14 [Intentionally deleted].
11.15. Time is of the Essence; Waiver. Time is of the essence with respect to every
provision of this Contract. No waiver by either party of any of its rights or remedies hereunder
or otherwise shall be considered a waiver of any other subsequent right or remedy. Except as
expressly provided herein, no waiver by either party of any of its rights or remedies hereunder or
otherwise shall be effective unless such waiver is evidenced in a written instrument executed by
the waiving party.
11.16 [Intentionally deleted].
11.17 Contract in Lieu of Condemnation. Seller and Purchaser acknowledge that this Contract
is made and entered into in lieu of Purchaser’s rights of eminent domain with respect to the
Property and that Purchaser’s consideration paid to Seller herein is in lieu of any condemnation
award that may have been paid to Seller pursuant to Purchaser’s rights.
[signature page to follow]
| PURCHASER: The City of Grapevine, Texas |
||||
| Date of Execution: September 18, 2009 | ||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | City Manager | |||
| SELLER: Altreco, Inc. |
||||
| Date of Execution: September 18, 2009 | ||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
