EXHIBIT 10.5(K)
TEXAS ASSOCIATION OF REALTORS(R)
COMMERCIAL IMPROVED PROPERTY XXXXXXX MONEY CONTRACT
THIS FORM IS FURNISHED BY THE TEXAS ASSOCIATION OF REALTORS(R)
FOR USE BY ITS MEMBERS. USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS
OF THE TEXAS ASSOCIATION OF REALTORS(R) IS NOT AUTHORIZED.
(C)Texas Association of REALTORS(R), Inc., 1995
1. PARTIES: XX. XXXXXXX XXXX (Seller) agrees to sell and convey to QUALITY
AIR INC. AND/OR ASSIGNS (Buyer) and Buyer agrees to buy from Seller the
property described below.
2. PROPERTY: The real property situated in EL PASO County, Texas,
described as follows or as described on attached exhibit:
Lots 3 to 20, 41 to 58 Block 15 Westway Unit #2
809 Kingsway
together with (a) all buildings, improvements, fixtures, and all
property of every kind and character and description (personal or real)
owned by Seller located on, attached to, or used in connection with the
Property; (b) all rights, privileges and appurtenances pertaining
thereto, including any right, title, and interest of Seller in and to
adjacent streets, alleys, and rights-of-way; (c) Seller's interest in
and to all leases or rents and security deposits; (d) Seller's interest
in and to all licenses and permits with respect to the Property; (e)
Seller's interest in all third party warranties or guaranties, if
transferable, relating to the Property or to any tangible personal
property and fixtures located on, attached to, or used in connection
with the Property; and (f) Seller's interest in any trade names, if
transferable, used in connection with the Property. The property sold
by this contract is called the "Property". The metes and bounds
description determined by the survey of the Property under paragraph
6(b) shall replace any exhibit describing the perimeter boundaries of
the Property if it differs from the exhibit. NOTICE: ANY PROPERTY TO BE
EXCLUDED FROM THE SALE SHOULD BE DESCRIBED IN PARAGRAPH 11.
3. SALES PRICE:
(a) Cash portion of Sales Price payable by Buyer. . . . . . . . . . . . $ 450,000.00
------------
(b) Sum of all financing described in paragraph 4. . . . . . . . . . . . $ -0-
------------
(c) Sales price [sum of (a) and (b)]. . . . . . . . . . . . . . . . . . .$ 450,000.00
------------
5. XXXXXXX MONEY: Buyer shall deposit $ 10,000.00 as Xxxxxxx Money with
SIERRA TITLE (Escrow Agent) at 0000 X. XXXX, XX XXXX, XXXXX 00000
(Address) on the Effective Date of this contract. The Xxxxxxx Money
shall be deposited in an |X| interest |_| non-interest bearing account
in a federally insured financial institution chosen by Escrow Agent and
any interest shall be credited to Buyer. If Buyer fails to deposit the
Xxxxxxx Money as required by this contract, Buyer shall be in default.
6. TITLE POLICY AND SURVEY:
|X| (a) TITLE POLICY: Buyer shall furnish to Buyer at Buyer's expense
an Owner Policy of Title Insurance (the Title Policy) issued
by SIERRA TITLE (the Title Company) in the amount of the Sales
Price, dated at or after closing, insuring Buyer against loss
under the provisions of the Title Policy, subject only to
those title exceptions permitted by this contract, or as may
be approved by Buyer in writing, and the standard printed
exceptions contained in the promulgated form of Title Policy;
provided however that (1) the exception as to area and
boundaries o shall o shall not be deleted except for any
shortages in area at the expense of |X| Buyer o Seller; and
(2) the exception as to restrictive covenants shall be
endorsed "None of Record", unless restrictions are approved by
Buyer. Within 15 days after the Title Company receives a copy
of this contract Seller shall furnish Buyer a commitment for
Title Insurance (the Commitment) including copies of recorded
Commercial Improved Xxxxxxx Money Contract concerning 8909 KINGSWAY
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documents evidencing title exceptions. Seller authorizes the
Title Company to deliver the Commitment and related documents
to Buyer at Buyer's address. Buyer shall have 30 days after
receipt of the Commitment and legible copies of documents
evidencing title exceptions required by this contract to
object in writing to matters disclosed in the Commitment other
than the standard printed exceptions as described or limited
in this paragraph.
[ ] (b) SURVEY REQUIRED: (Check (1) or (2) only)
[ ] (1) Within ---------- days after: o the Effective Date of
this contract; Rx the date by which Buyer is required
to complete inspections, studies or assessments in
paragraph 7(b); (check (i) or (ii) only):
|X| (i) Buyer may obtain a survey of the Property at
Buyer's expense.
7. PROPERTY CONDITION/FEASIBILITY STUDIES: (Check (a) or (b) only)
|X| (a) PRESENT CONDITION:
|X| (1) Buyer accepts the Property in its present "as-is"
condition. Buyer shall pay for any repairs required
by a lender.
[ ] (2) Buyer accepts the Property in its present condition
provided that Seller, at Seller's expense, shall
complete the following repairs prior to closing:-----
-----------------------------------------------------
----------------------- Buyer shall pay for any other
repairs required by a lender.
|X| (b) INSPECTIONS AND FEASIBILITY STUDIES: Within 60 days after the
Effective Date of this contract Buyer, at Buyer's expense, may
complete or cause to be completed inspections of the Property
(including all improvements and fixtures) by inspections of
Buyer's choice. Inspections may include but are not limited
to: (i) physical property inspections including, but not
limited to, structural pest control, mechanical, structural,
electrical, or plumbing inspections; (ii) economic feasibility
studies; (iii) any type of environmental assessment or
engineering study including the performance of tests such as
soils tests, air sampling, or paint sampling; and (iv)
compliance inspections to determine compliance with zoning
ordinances, restrictions, building codes, and statutes (e.g.,
ADA, OSHA, and others). Seller shall permit Buyer and Buyer's
inspectors access to the Property at reasonable times. Seller
shall pay for turning utilities on for inspections. If Buyer
determines, in Buyer's sole judgment, that the Property is not
suitable for any reason for Buyer's intended use or is not in
satisfactory condition, then Buyer may terminate this contract
by providing written notice of termination and copies of all
reports of inspections, studies, or assessments completed or
caused to be completed by Buyer under this paragraph to Seller
within the time required to complete the inspections, studies,
or assessments under this paragraph, and the Xxxxxxx Money
shall be refunded to Buyer less the sum of $ -0- to be
retained by Seller as independent consideration for Buyer's
right to terminate under this paragraph. If Buyer does not
terminate this contract within the time required by objections
with respect to the inspections, studies and assessments under
this paragraph shall be deemed waived by Buyer. If this
contract does not close through no fault of Seller, Buyer
shall restore the Property to its original condition if
altered due to inspections, studies, or assessments completed
by Buyer or Buyer's inspectors. Within 80 days after the
Effective Date of this contract Seller shall deliver to Buyer
(strike any not to be delivered):
(1) a current rent roll of all leases affecting
the Property certified by Seller to be true
and correct;
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Commercial Improved Xxxxxxx Money Contract concerning 8909 KINGSWAY
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(3) a current inventory of all tangible personal
property and fixtures, if any, owned by
Seller and located on, attached to, or used
in connection with the Property;
(4) copies of all notes and deeds of trust
assumed or taken subject to by Buyer;
(6) copies of all warranties and guaranties, if
any, relating to the Property, or any part
thereof, or to be tangible personal property
and fixtures owned by Seller and located on,
attached to, or used in connection with the
Property;
(7) copies of all fire, hazard, liability, and
other insurance policies held by Seller on
or affecting the Property;
(9) a copy of the "as-built" plans and
specifications of the Property, in Seller's
possession, if any;
(12) copies of all previous environmental
assessments, studies, or analyses affecting
the Property in Seller's possession.
8. BROKER'S REPRESENTATION AND FEES: Xxxx X. Xxxxxxx (Listing Broker): o
represents Seller only; |X| acts as an intermediary between Seller and
Buyer. Any other broker represents: o Seller as Listing Broker's
Subagent; o Buyer only. Seller shall pay Listing Broker (choose only
one):
[ ] (a) the fee specified by separate agreement between Listing Broker
and Seller.
|X| (b) a total cash fee of either $------- or 5 % of the total Sales
Price in -------------------- County, Texas on closing of this
sale, which Escrow agent shall pay from Seller's proceeds of
the sale. If Seller defaults, the cash fee shall be due and
payable in full. If Buyer defaults, Escrow Agent is authorized
to pay Listing Broker one-half of any Xxxxxxx Money Seller
receives under this contract not to exceed the amount of the
cash fee.
9. CLOSING:
(a) The closing of the sale shall be on or before April 28, 1997
or within 7 days after the objections to title or the survey
have been cured, whichever date is later (the Closing Date);
however, if financing or assumption approval has been obtained
pursuant to paragraph 4, the Closing Date shall be extended up
to 15 days only if necessary to comply with lender's closing
instructions (for example, survey, insurance policy, property
repairs, closing documents). If either party fails to close
this sale by the Closing Date, the non-defaulting party shall
be entitled to exercise the remedies contained in paragraph
15.
(b) At closing Seller shall furnish, at Seller's expense (strike
any not to be furnished):
(1) tax statements showing no delinquent taxes on the
Property;
(2) a |X| General [ ] Special Warranty Deed conveying
good and indefeasible title to the Property showing
no additional exceptions to those permitted in
paragraph 6;
(3) If applicable, a Xxxx of Sale with warranties to
title conveying title, free and clear of all liens,
to any personal property defined as part of the
Property in paragraph 2 and conveyed by this
contract;
(8) evidence that the person executing this contract is
legally capable and authorized to bind Seller.
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Commercial Improved Xxxxxxx Money Contract concerning 8909 KINGSWAY
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10. POSSESSION: Seller shall deliver possession of the Property to Buyer on
-------------- in its present or required repaired condition, ordinary
wear and tear excepted. Any possession by Buyer prior to closing or
Seller after closing that is not authorized by a separate written lease
agreement, shall establish a landlord- tenant at sufferance
relationship between the parties.
11. SPECIAL PROVISIONS:
1 - Buyer to pay for all closing cost and Seller to pay his
legal fees.
2 - Buyer Accepts property in its present condition. See Addendum
3 - Buyer to pay for own environmental study.
4 - Seller agrees to lease to Buyer subject property for 90 days
or less at $5,000.00 per month beginning February 1st, 1997.
See attached lease agreement.
12. SALES EXPENSES: To be paid in cash at or prior to closing:
(a) Seller's Expenses: Releases of existing liens, including
prepayment penalties and recording fees; release of Seller's
loan liability; tax statements or certificates; preparation of
deed; one-half of escrow fee; and other expenses stipulation
to be paid by Seller under other provisions of this contract.
(b) Buyer's Expenses: All loan fees or expenses (e.g., fees for
application,origination, discount, appraisal, assumption,
recording, tax service, mortgagee title policies, credit
reports, document preparation and the like); preparation and
recording of deed of trust to secure assumption; required
premiums for flood and hazard insurance; interest on all
periodic installment payment notes from date of disbursements
to one payment period prior to dates of first monthly
payments; one-half of escrow fee; fees for copies and delivery
of title commitment and related documents; and other expenses
stipulated to be paid by Buyer under other provisions of this
contract.
(c) If any sales expense exceeds the amount stated in this
contract to be paid by either party, either party may
terminate this contract unless either party agrees to pay such
excess.
13. PRORATIONS AND ESTOPPEL CERTIFICATES:
(a) PRORATIONS: Insurance (at Buyer's option) if a transfer is
permitted by the insurance carrier, interest on any assumed
loan, current taxes, and any rents shall be prorated through
the Closing Date. If the amount of the ad valorem taxes for
the year in which the sale is closed is not available on the
Closing Date, proration of taxes shall be made on the basis of
taxes assessed in the previous year, with a subsequent cash
adjustment of such proration to be made between Seller and
Buyer, if necessary, when actual tax figures are available. If
Buyer is assuming payment of or taking subject to any existing
loan on the Property, all reserve deposits for the payment of
taxes, insurance premiums, and other charges,shall be
transferred to Buyer by Seller and Buyer shall pay to Seller
the amount of such reserved deposits at closing.
(b) ESTOPPEL CERTIFICATES: Within N/A days after the Effective
Date of this Contract, Seller shall deliver to Buyer estoppel
certificates signed not earlier than N/A by each tenant
leasing space in the Property stating that, as of the date
signed: no default exists under the terms of the lease
agreement by either lessor or lessee; the amount of any rental
payments made in advance, if any; the amount of any security
deposits made, if any; the amount of any offsets against rent,
if any; and that the tenant has no defenses against the
payment of rent accruing under the terms of the lease
agreement. If Seller is unable to deliver the estoppel
certificates in accordance with the terms of this paragraph
without fault by the specified time, Buyer may: (i) terminate
this contract and the Xxxxxxx Money shall be refunded to
Buyer; (ii) extend the time for performance up to 15
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Commercial Improved Xxxxxxx Money Contract concerning 8909 KINGSWAY
--------------------------
days and the Closing Date shall be extended as necessary; or
(iii) waive Seller's requirement to deliver the estoppel
certificates.
(c) Seller shall, at closing, tender to Buyer any security
deposits, prepaid expenses, and advanced rental payments paid
by any and all tenants.
14. CASUALTY LOSS AND CONDEMNATION:
(a) If any part of the Property is damaged or destroyed by fire or
other casualty loss, Seller shall restore the Property to its
previous condition as soon as reasonably possible, but in any
event by the Closing Date. If Seller is unable to do so
without fault, Buyer may: (i) terminate this contract and the
Xxxxxxx Money shall be refunded to Buyer; (ii) extend the time
for performance up to 15 days and the Closing Date shall be
extended as necessary; or (iii) accept the Property in its
damaged condition and accept an assignment of insurance
proceeds. Provisions of the Texas property Code to the
contrary shall not apply.
(b) If prior to closing condemnation proceedings are commenced
against any portion of the Property, Buyer may: (i) terminate
this contract by written notice to Seller within 15 days after
Buyer is advised of the condemnation proceeding and the
Xxxxxxx Money shall be refunded to Buyer; or (ii) appear and
defend in the condemnation proceeding and any award in
condemnation shall, at Buyer's election, become the property
of Seller and the sales price shall be reduced by the same
amount or any award shall become the property of Buyer and the
Sales price shall not be reduced.
15. DEFAULT: If Buyer fails to comply with this contract, Buyer shall be in
default. Seller may either, enforce specific performance, seek other
relief as may be provided by law, or both; or terminate this contract
and receive the Xxxxxxx Money as liquidated damages, thereby releasing
the parties from this contract. If Seller is unable without fault to
make any noncasualty repairs, deliver the estoppel certificates, or
deliver the Commitment within the time allowed, Buyer may either
terminate this contract and receive the Xxxxxxx Money as the sole
remedy or extend the time for performance up to 15 days and the Closing
Date shall be extended as necessary. If Seller fails to comply with
this contract for any other reason, Seller shall be in default and
Buyer may either enforce specific performance, seek such other relief
as may be provided by law, or both; or terminate this contract and
receive the Xxxxxxx Money, thereby releasing the parties from this
contract.
16. ATTORNEY FEES: If Buyer, Seller, Listing Broker, Other Broker, or
Escrow Agent is a prevailing party in any legal proceeding brought
under or with relation to this contract or this transaction, such party
shall be entitled to recover from the non-prevailing parties all costs
of such proceeding and reasonable attorney fees. The provisions of this
paragraph shall survive closing.
17. ESCROW: If either party makes demand for the payment of the Xxxxxxx
Money, Escrow Agent has the right to require from all parties and
brokers a written release of liability of Escrow Agent for disbursement
of the Xxxxxxx Money. Any refund or disbursement of Xxxxxxx Money under
this contract shall be reduced by the amount of unpaid expenses
incurred on behalf of the party receiving the Xxxxxxx Money, and Escrow
agent shall pay the same to the creditors entitled thereto. At closing,
the Xxxxxxx Money shall be applied first to any cash down payment, then
to Buyer's closing costs and any excess refunded to Buyer. Demands and
notices required by this paragraph shall be in writing and delivered by
hand delivery or by certified mail, return receipt requested.
18. MATERIAL FACTS:
(a) Seller shall convey the Property on closing: (i) with no
liens, assessments,. Uniform Commercial Code or other security
interests against the Property which will not be satisfied out
of the Sales Price unless securing payment of any loans
assumed by Buyer, (ii) without any assumed loans in default;
and (iii) with no parties in possession of any portion of the
Property as lessees, tenants at sufferance, or trespassers
except tenants under the written leases delivered to Buyer
pursuant to his contract.
(b) To the best of Seller's knowledge and belief (choose (1) or
(2) only):
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Commercial Improved Xxxxxxx Money Contract concerning 0000 XXXXXXXX
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[ ] (1) Seller is not aware of any material defects
to the Property except as stated in the
attached property Condition Statement.
|X| (2) Seller is not aware of:
(i) any material defects to the
Property except: ROOF SEE ADDENDUM
SUITABILITY, STRUCTURE SEE ADDENDUM
-----------------------------------
(ii) any environmental hazards or
conditions affecting the property
which would violate any federal,
state or local statutes,
regulations, ordinance or other
requirements and more specifically,
but without limitation, whether (1)
the Property is or has ever been
used for storage or disposal or
hazardous substances or materials
or toxic waste, a dump site or
landfill, or the housing of any
underground tanks or drums; (2)
radon, asbestos insulation or
fireproofing, ureaformaldehyde foam
insulation, lead-based paint or
other pollutants or contaminants of
any nature now exist or have ever
existed on the Property; (3)
wetlands, as defined by federal or
state law or regulation are on the
Property; and (4) threatened or
endangered species or their
habitat, as defined by the Texas
Parks and Wildlife Department or
the U.S. Fish and Wildlife Service,
are on the property; except as
follows----------------------------
-----------------------------------
19. NOTICES: All notices shall be in writing and effective when
hand-delivered, mailed by certified mail return receipt requested, or
sent by facsimile transmission to:
Buyer at X.X. Xxx 0000 Seller at One McKelligan Canyon Rd.
-------------------------- ------------------------------------
Sunland Park, NM Xx Xxxx, Xx. 00000
-------------------------- ------------------------------------
Phone (000) 000-0000 Phone ( )
-------------------------- ------------------------------------
Fax ( ) Fax ( )
-------------------------- ------------------------------------
20. FEDERAL TAX REQUIREMENT: If Seller is a "foreign person", as defined by
applicable law, or if Seller fails to deliver an affidavit that Seller
is not a "foreign person", then Buyer shall withhold from the sales
proceeds at closing an amount sufficient to comply with applicable tax
law and deliver the same to the Internal Revenue Service, together with
appropriate tax forms. Internal Revenue Service regulations require
filing written reports if cash in excess of specified amounts is
received in the transaction.
21. DISPUTE RESOLUTION: The parties agree to negotiate in good faith in an
effort to resolve any dispute related to this contract that may arise.
If the dispute cannot be resolved by negotiation, the dispute shall be
submitted to mediation before the parties resort to arbitration or
litigation and a mutually acceptable mediator shall be chosen by the
parties to the dispute who shall share the cost of mediation services
equally.
22. AGREEMENT OF THE PARTIES: This contract shall be binding on the
parties, their heirs, executors, representatives, successors, and
assigns. This contract shall be construed under and in accordance with
laws of the State of Texas. This contract contains the entire agreement
of the parties and cannot be changed except by written agreement. If
this contract is executed in a number of identical counterparts, each
counterpart is deemed an original and all counterparts shall,
collectively, constitute one agreement. Buyer o may o may not assign
this contract. If Buyer assigns this contract Buyer shall be relieved
of any future liability under this contract only if the assignee
assumes in writing all obligations and liability of Buyer under this
contract. Addenda which are part of this contract are: SEE
ADDENDUM---------------------------------------------------------------
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Commercial Improved Xxxxxxx Money Contract concerning 8909 KINGSWAY
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23. TIME: Time is of the essence in this contract. Strict compliance with
the times for performance stated in this contract is required.
24. EFFECTIVE DATE: The Effective Date of this contract for the purpose of
performance of all obligations shall be the date this contract is
receipted by the Escrow Agent after all parties have executed this
contract.
25. MISCELLANEOUS:
(a) Buyer should have an Abstract covering the Property examined
by an attorney of Buyer's selection, or Buyer should be
furnished with or obtain a Title Policy.
(b) If the Property is situated in utility or other statutorily
created district providing water, sewer, drainage, or flood
control facilities and services, Chapter 50 of the Texas Water
Code requires Seller to deliver and the Buyer to sign the
statutory notice relating to the tax rate, bonded
indebtedness, or standby fee of the district prior to final
execution of this contract.
(c) If the Property adjoins or shares a common boundary with the
tidally influenced submerged lands of the state, Section
33.135 of the Texas Natural Resources Code, requires a notice
regarding coastal area property to be included in the
contract.
(d) Buyer should not rely upon any oral representations about the
Property from any source. Seller and any broker have no
knowledge of any defects in the Property other than what has
been disclosed in this contract or other writing.
(e) Brokers are not qualified to render property inspections,
survey,s engineering studies, environmental assessments, or
inspections to determine compliance with zoning, governmental
regulations, or laws. Buyer should seek experts to render such
services. Selection of inspectors and repairmen is the
responsibility of the Buyer and not the Broker.
26. CONTRACT AS OFFER: The execution of this contract by the first party
constitutes an offer to buy or sell the Property. Unless accepted by
the other party by 5:00 p.m. (in the time zone in which the Property is
located) on FEBRUARY 20, 1997------------------, the offer shall lapse
and be null and void.
This is intended to be a legally binding contract. READ IT CAREFULLY. NO
REPRESENTATION OR RECOMMENDATION IS MADE BY BROKER OR ITS AGENTS OR EMPLOYEES AS
TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS DOCUMENT OR
TRANSACTION. CONSULT YOUR ATTORNEY BEFORE SIGNING.
Buyer's Seller's
Attorney Attorney
------------------------ ----------------------------
/s/ Xxx Xxxxxxxx 2-5-97 /s/ Xxxxxxx Xxxx 2-11-97
-------------------------------- ------------------------------------
Xxx Xxxxxxxx Xxxxxxx Xxxx
Buyer Quality Air Inc. Seller
-------------------------------- ------------------------------------
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Commercial Improved Xxxxxxx Money Contract concerning 8909 KINGSWAY
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Buyer Seller
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AGREEMENT BETWEEN BROKERS
Listing Broker agrees to pay -------------------------------------------. Other
Broker, a fee of $------------------------ or ----% of the Sales Price when the
Listing Broker's fee is received. Escrow Agent is authorized and directed to pay
Other Broker from Listing Broker's fee at closing. This Agreement between
Brokers supersedes any prior offers and agreements for compensation between
brokers.
Xxxx X. Xxxxxxx 0142054
-------------------------------- ------------------------------------
Other Broker License No. Listing Broker License No.
By:----------------------------- By:---------------------------------
3707 Admiral (000) 000-0000
-------------------------------- ------------------------------------
Other Broker's Address Phone No. Listing Broker's Address Phone No.
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RECEIPT
On this day, -----------------------------, Escrow Agent acknowledges receipt
of: (a) [ ] Contract; and (b) [ ] Xxxxxxx Money in the form of
-----------------------------------
Escrow Agent ------------------------------ By:--------------------------
Address:----------------------------------- Phone:-------------------------
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HAZARDOUS MATERIALS WARNING AND
DISCLAIMER FOR PROPERTIES INVOLVED
IN SALE AND/OR LEASE TRANSACTIONS
Property: 0000 XXXXXXXX
----------------------------------------------------------------------
Various materials utilized in the construction of any improvements to the
Property may contain materials that have been or may in the future be determined
to be toxic, hazardous or undesirable and may need to be specially treated,
specially handled and/or removed from the Property. For example, some electrical
transformer sand other electrical components can contain PCB's, and asbestos has
been used in a wide variety of building components such as fire-proofing, air
duct insulation, acoustical titles, spray-on acoustical materials, linoleum,
floor tiles and plaster. Due to current or prior uses, the Property or
improvements may contain materials such as metals, minerals, chemicals,
hydrocarbons, biological or radioactive materials and other substances which are
considered, or in the future may be determined to be, toxic wastes, hazardous
materials or undesirable substances. Such substances may be above-and
below-ground containers on the Property or may be present on or in soils, water,
building components or other portions of the Property in areas that may or may
not be accessible or noticeable.
Current and future federal, state and local laws and regulations may require the
clean-up of such toxic, hazardous or undesirable materials at the expense of
those persons who in the past, present or future have had any interest in the
Property including, but not limited to, current, past and future users of the
property. Sellers/lessors and Buyers/Tenants are advised to consult with
independent legal counsel of their choice to determine their potential liability
with respect to toxic, hazardous, or undesirable materials. Sellers/lessors and
Buyers/Tenants should also consult with such legal counsel to determine what
provisions regarding toxic, hazardous or undesirable materials they may wish to
include in purchase and sale agreements, leases, options and other legal
documentation related to transactions they contemplate entering into with
respect to the Property.
The real estate salespersons and brokers in this transactions have no expertise
with respect to toxic wastes, hazardous materials or undesirable substances.
Proper inspections to the property by qualified experts are an absolute
necessity to determine whether or not there are any current or potential toxic
wastes, hazardous materials or undesirable substances in or on the Property. The
real estate salespersons and brokers in this transaction have not made, or will
they make, any representations, either express or implied, regarding the
existence or nonexistence of toxic wastes, hazardous materials, or undesirable
substances in or on the Property. problems involving toxic wastes, hazardous
materials, or undesirable substances can be extremely costly to correct. It is
the responsibility of Sellers/Lessors and Buyers/Tenants to retain qualified
experts to deal with the detection and correction of such matters.
SELLER/LESSOR BUYER/TENANT
By: /s/ Xxxxxxx Xxxx By: /s/ Xxx Xxxxxxxx
--------------------------- ---------------------------
XXXXXXX XXXX XXX XXXXXXXX
Title: Title: Controller/CFO
--------------------------- ---------------------------
Date: 2-11-97 Date: 2-5-97
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ADDENDUM TO XXXXXXX MONEY CONTRACT
The Addendum is made by and between XXXXXXX XXXX ("Seller")
and QUALITY AIR, INC. and/or assigns ("Buyer") to that certain Xxxxxxx Money
Contract of Sale ("Contract") dated 11th day of February, 1997, for the purchase
and sale of that certain property legally described as follows:
Lots 3 to 20, 41 to 58, Block 15, WESTWAY UNIT II, an Addition
to El Paso County, Texas, according to the plat on file in
Volume 17, Page 35, Real Property Records, El Paso County,
Texas; also known as 0000 Xxxxxxxx xx xxx Xxxx xx Xxxxxxx,
Xxxxx.
1. The parties desire to amend the contract with regards to
Paragraph 7(a)(1) and Paragraph II to more specifically set out all of their
terms of Buyer's acceptance of the Property. Said paragraph shall be amended by
adding the following:
"CONDITION OF PREMISES. Buyer acknowledges that Seller
acquired the property through a Deed in Lieu of Foreclosure and consequently
Seller discloses that there may be some defects in the roof and the roof
structure. Further, Seller discloses that the property is not connected to City
water or sewer. Accordingly, except as otherwise specifically stated herein,
BUYER ACKNOWLEDGES AND AGREES THAT NEITHER THE SELLER NOR THE BROKERS HAVE MADE,
DO NOT MAKE AND SPECIFICALLY NEGATE AND DISCLAIM ANY REPRESENTATIONS,
WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE VALUE, NATURE,
QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY
CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY,
MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY
INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK
OF REPAIR OF THE PROPERTY, OR (H) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY,
AND SPECIFICALLY, THAT SELLER AND BROKERS HAVE NOT MADE, DO NOT MAKE AND
SPECIFICALLY DISCLAIM ANY REPRESENTATIONS REGARDING COMPLIANCE WITH ANY
ENVIRONMENTAL, PROTECTION, POLLUTION OR LAND USE, LAWS, RULES, REGULATIONS,
ORDERS OR REQUIREMENTS, INCLUDING SOLID, WASTE, AS DEFINED BY THE U.S.
ENVIRONMENTAL, PROTECTION AGENCY REGULATIONS AT 40 C.F.R., PART 261, OR THE
DISPOSAL OR EXISTENCE, IN OR ON THE PROPERTY OF ANY HAZARDOUS SUBSTANCE, AS
DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY
ACT OF 1980, AS AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. BUYER FURTHER
INSPECT THE PROPERTY, BUYER IS RELYING SOLE ON ITS OWN INVESTIGATION OF THE
PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY SELLER OR
BROKER. BUYER FURTHER ACKNOWLEDGES AND
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AGREES THAT ANY INFORMATION PROVIDED OR TO BE PROVIDED WITH RESPECT TO THE
PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER AND BROKERS HAVE
NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND
MAKE NO REPRESENTATIONS AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR WRITTEN STATEMENTS,
REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY, OR THE OPERATION
HEREIN, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER
PERSON, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT
PERMITTED BY LAW, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN
"AS IS" CONDITION AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT
THE PURCHASE PRICE HAS BEEN ADJUSTED BY PRIOR NEGOTIATION TO REFLECT THAT ALL OF
THE PROPERTY IS SOLD BY SELLER AND PURCHASED BY BUYER SUBJECT TO THE FOREGOING.
THE PROVISION OF THIS PARAGRAPH SHALL BE INCORPORATED IN THE DEED TO BE
DELIVERED AT CLOSING AND SHALL SURVIVE THE CLOSING."
2. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents
and warrants as of the date hereof and as of the date of closing, which
representations and warranties shall survive the closing, that it has the full
corporate power to enter into and consummate this transaction and that the
officer executing this document and the documents at closing has been duly
authorized and empowered to enter into this Agreement and consummate it
according to its terms.
3. All other terms and conditions unless modified herein shall
remain in full force and effect.
Dated this 11th day of February, 1997.
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SELLER BUYER
QUALIFY AIR, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxx Xxxxxxxx 2-17-97
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XXXXXXX X. XXXX XXX XXXXXXXX
Its: Controller
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