AGREEMENT OF SALE AND PURCHASE
AGREEMENT
OF SALE AND PURCHASE
THE
STATE
OF
TEXAS §
§
COUNTY
OF
XXXXXX §
THIS
AGREEMENT OF SALE AND PURCHASE (“Agreement”) is made by and between STRATUS
PROPERTIES OPERATING CO., L.P., a Delaware limited liability partnership
(“Seller”) and ADVANCED MICRO DEVICES, INC., a Delaware corporation
(“Purchaser”) and is as follows:
II.
Sale
and Purchase
1.01
The Property. Seller hereby agrees to sell and convey unto Purchaser, and
Purchaser hereby agrees to purchase from Seller, for the price and subject
to
the terms, covenants, conditions and provisions herein set forth: (i) all of
the
real property described on Exhibit “A” attached hereto and incorporated
herein by reference (the “Land”); (ii) all of Seller’s right, title, and
interest in and to all appurtenances to the extent, and only to the extent,
benefiting or pertaining to the Land, including, without limitation, all of
Seller’s right, title, and interest in and to all streets, alleys,
rights-of-way, or easements benefiting the Land (all of the foregoing being
referred to herein collectively as the “Appurtenances”); and (iii) all of
Seller’s right, title, and interest in and to all of the items described and
defined on Exhibit “B” attached hereto and incorporated herein by
reference, being the Plans and Reports, Governmental Approvals and Permits,
Utility Service Permits, Utility Service Rights, and Street and Drainage Rights
described and defined therein (all of the foregoing being referred to herein
individually by the names set out above, and collectively as the “Personal
Property”). The Land and Appurtenances are collectively referred to herein as
the “Real Property.” The Real Property and the Personal Property are herein
collectively referred to as the “Property.”
1.02 The
Options. If and only if Purchaser closes the purchase of the Property under
the terms of this Agreement, then Purchaser will have options (the “Options”) to
purchase those certain option tracts described on Exhibit “C” attached
hereto and incorporated herein (collectively referred to as the “Option Tracts”
and individually as an “Option Tract”). Accordingly, at the Closing of the
purchase of the Property hereunder by Purchaser, Seller and Purchaser shall
enter into: (i) the option agreements in the forms of Exhibits “D-1,” “D-2”
and “D-3” attached hereto and incorporated herein by reference
(collectively, the “Option Agreements”) pursuant to which Purchaser shall have
the option to purchase each of the Option Tracts (it being contemplated that
Seller and Purchaser will enter into an Option Agreement to purchase each Option
Tract); and (ii) a memorandum of options in the form of Exhibit “E”
attached hereto and incorporated herein by reference to be recorded in the
Official Public Records of Xxxxxx County, Texas, evidencing Purchaser’s option
to purchase each of the Option Tracts (the “Memorandum of
Options”).
II.
Consideration
2.01
Purchase Price. The purchase price to be paid by Purchaser to Seller for
the sale and conveyance of the Property shall be NINETEEN MILLION AND NO/100
DOLLARS ($19,000,000.00) (the “Purchase Price”).
2.02
Payment of the Purchase Price. The Purchase Price shall be payable in
full in readily available funds at the Closing.
2.03
Xxxxxxx Money. In order to secure Purchaser’s performance of this
Agreement, Purchaser shall, within two (2) business days after the Effective
Date of this Agreement, deposit FOUR MILLION AND NO/100 DOLLARS ($4,000,000.00)
in cash or other readily available funds with Heritage Title Insurance Company
of Austin, Inc., (the “Title Company”) at its offices at 000 Xxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attn: Xxx Xxxxxx. All cash deposited with
the
Title Company pursuant to the terms hereof is referred to herein collectively
as
the “Xxxxxxx Money.” The Xxxxxxx Money will be placed in an interest bearing
account at one or more state or federally chartered banks while under the
control of the Title Company, and all interest earned thereon will become part
of the Xxxxxxx Money hereunder. Purchaser will promptly execute and deliver
to
the Title Company all documents and certificates as are required by Title
Company to invest the Xxxxxxx Money in an interest bearing account. If the
transaction contemplated hereby is consummated in accordance with the terms
and
provisions hereof, the Xxxxxxx Money shall be applied against the Purchase
Price
at Closing. If the transaction is not so consummated, the Xxxxxxx Money shall
be
held and delivered by the Title Company as hereinafter provided. Upon the
expiration of the “SDP Contingency Period” (defined in Section 4.03.A), the
Xxxxxxx Money will only be refundable to Purchaser upon a Seller Default or
upon
any specific termination right of Purchaser that expressly provides for the
refund of the Xxxxxxx Money to Purchaser and, otherwise, will be delivered
to
Seller as and when provided under the provisions of this Agreement.
III
Title
and Survey
3.01
Title Commitment. Within fifteen (15) days after the Effective Date,
Seller shall cause the Title Company to deliver to Purchaser a title commitment
(“Commitment”) issued by the Title Company showing Seller as the record fee
title owner of the Property by the terms of which the Title Company agrees
to
issue to Purchaser an owner’s policy of title insurance (“Title Policy”) in the
amount of the Purchase Price on the standard form promulgated by the State
Board
of Insurance of Texas insuring Purchaser’s fee simple title to the Property to
be good and indefeasible, subject to the terms of such policy and the exceptions
set forth therein together with copies of all documents which will be shown
as
Schedule B Exceptions on the Title Policy upon issuance (the “Title Review
Documents”). The Commitment shall provide that the standard printed exceptions
set forth in the Title Policy shall be modified as follows: (i) the exception
relating to restrictive covenants shall be deleted except for restrictions
which
may be Permitted Exceptions; (ii) the exception as to boundaries, etc. shall
be
modified to except only as to “shortages in area”; and (iii) there shall be no
exception for “rights of parties in possession.”
3.02
Survey. Seller at its sole cost and expense shall, within twenty (20)
days after the Effective Date of this Agreement, cause to be furnished to
Purchaser: six (6) copies of an on-the-ground, survey with attached field notes
(“Survey”) of the Real Property, prepared and certified as to all matters shown
thereon by a registered surveyor (“Surveyor”). The Survey shall be dated
subsequent to the Effective Date of this Agreement; shall comply with the Texas
Society of Professional Surveyors Standards and Specifications for a Category
1-A, Condition II Survey; and shall contain a certificate addressed to Purchaser
and the Title Company in the form set forth on Exhibit “F” (“Survey
Certificate”), attached hereto and incorporated herein by reference. In
addition, the Survey shall be in a form acceptable to the Title Company to
modify the survey exception in the Title Policy to read “shortages in
area.”
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3.03
Permitted Exceptions. On or before ten (10) business days after all of
the Commitment, the Title Review Documents, and the Survey have been delivered,
Purchaser shall provide Seller with written notice of any objections which
Purchaser has to exceptions shown on the Commitment or any condition of the
Property as revealed by the Survey. All objections raised by Purchaser in the
manner herein provided are hereafter called “Objections.” Seller shall have no
obligation to cure or remove any Objections, but, Seller shall notify Purchaser
in writing within ten (10) business days after receipt of the Objections as
to
which Objections Seller will cure. Purchaser may, on or before five (5) business
days after Seller’s delivery to Purchaser of such notice, terminate this
Agreement in its entirety by giving Seller written notice of termination.
Thereafter, the Xxxxxxx Money shall be returned to Purchaser except for the
sum
of $100 which will be delivered to Seller as independent consideration
hereunder, and Seller and Purchaser shall be released and relieved of further
obligations, liabilities and claims hereunder except for the Post Termination
Obligations (defined below) which will survive such termination. If Purchaser
fails to give written notice of termination within such five (5) business day
period, all Objections that Seller refuses to cure shall be deemed waived.
Seller shall cure all Objections Seller represents it will cure and in no event
shall such Objections remain uncured five days prior to Closing. If Seller
fails
to cure such Objections within said five (5) day period, Closing shall be
extended for thirty (30) days, and if such Objections remain uncured after
such
extension, Purchaser’s sole and exclusive remedy shall be either:
A.
to terminate this Agreement; have the Xxxxxxx Money returned to it, less the
independent consideration; and Seller shall be obligated to pay Purchaser within
thirty (30) days after such election is made by Purchaser the out of pocket
costs and expenses incurred by Purchaser after the Effective Date for third
party contractors, consultants and attorneys regarding the Property provided
that Purchaser provides Seller reasonable documentation of such costs that
are
incurred after the Effective Date; or
B.
to enforce specific performance of Seller’s agreement to cure such Objections;
or
C. to proceed to Closing, in which event such Objections shall be
deemed waived.
The
term
“Permitted Exceptions” as used herein shall include: (i) all exceptions which
are set forth on the Commitment and all conditions of the Property which are
revealed by the Survey which are not timely objected to by Purchaser during
the
objection period herein provided; and (ii) any exceptions or conditions made
the
subject of Objections which are waived by Purchaser or are deemed waived by
Purchaser.
3.04. Section
10(a) Restriction.
A. The
Property is covered by a United States Fish & Wildlife Service Section 10(a)
Permit (the “Section 10(a) Permit”), which was issued effective February 10,
1995. Seller has provided Purchaser a complete copy of the Section 10(a) Permit.
As provided in Section 4.07, below, at Closing, Purchaser agrees to pay Seller
the Lantana Community Contribution, a portion of which represents full and
final
payment of costs and expenditures allocated to the Property by Seller for
maintenance and related obligations required under the Section 10(a) Permit.”
B. Seller
agrees that prior to Closing, Seller shall obtain, at Seller’s sole cost and
expense, and deliver to Purchaser a letter or other document from the US
Department of Fish and Wildlife, stating that the Section 10(a) Permit is in
good standing and
covers the Property.
Failure
of Seller to obtain said letter prior to Closing shall entitle Purchaser to
the
remedy stated in Section 7.01.B(i) as if Seller breached one of Seller’s
Representations and Warranties.
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C. Purchaser
covenants (which covenant shall survive Closing) and agrees that, while
Purchaser is the owner of the Property, it shall not take, and shall use
commercially reasonable efforts to prevent, any use or development of the
Property by Purchaser, or Purchaser’s officers, employees and contractors, which
would jeopardize the continued efficacy of the Section 10(a) Permit. The
provisions of this Section 3.04 shall be included in the deed executed by Seller
to Purchaser at Closing and shall be a “Permitted Exception”
hereunder.
D. Seller
covenants (which covenant shall survive Closing) and agrees that, while Seller
is the owner of any property covered by the Section 10(a) Permit, that Seller
shall use commercially reasonable efforts to keep the Section 10(a) Permit
in
good standing.
IV.
Review
Period and Development Permit Contingency
4.01
Review Materials. To the extent Seller has not delivered the following to
Purchaser prior to the Effective Date, Seller shall, within five (5) business
days after the Effective Date of this Agreement, deliver to Purchaser copies
of
all reports, plans, specifications, plats, surveys, documents, instruments
or
other items of any kind or nature which relate to the Property and are in
Seller’s possession, including but not limited to copies of all Plans and
Reports. Notwithstanding the foregoing, prior xxxxxxx money contracts,
appraisals, trust agreements and related instruments, and privileged
communications under the attorney/client privilege are excluded from Seller’s
disclosure requirement hereunder. All materials and information required to
be
submitted by Seller to Purchaser hereunder are referred to herein as the “Review
Materials.” All Review Materials are delivered by Seller and accepted by
Purchaser “AS IS” and without any representation or warranty with respect to
their content by Seller; provided, however, Seller agrees to advise Purchaser
when the Review Materials are delivered of any material defects or materials
errors in the Review Materials known to Seller to the extent affecting the
use
or development of the Property.
4.02
Review Period. During the period of time following the Effective Date of
this Agreement until the date which is the later to occur of (i) thirty
(30) days after the Effective Date or (ii) the date by which all of the
Commitment, the Title Review Documents, and the Survey have been delivered
to
Purchaser (the later being herein called the “Termination Date”), Purchaser
shall have the right to review the Review Materials; to inspect the Property;
and to otherwise conduct a feasibility review and analysis with respect to
the
Property. Purchaser agrees that it will provide Seller with copies of all
reports it obtains and studies that relate to the condition or potential
development by Purchaser of the Property promptly upon receipt of such reports
and studies by Purchaser. Notwithstanding any provision hereof to the contrary,
should Purchaser determine, in Purchaser’s sole and absolute discretion, that
the Property is not satisfactory to Purchaser for any reason, Purchaser may
terminate this Agreement by delivering written notice of such termination to
Seller on or before the Termination Date. If Purchaser fails to deliver written
notice of termination on or before the Termination Date, Purchaser’s right of
termination under this Section 4.02 will be deemed waived. If Purchaser timely
terminates this Agreement pursuant to the terms of this Section 4.02, then
the
Xxxxxxx Money shall be returned to Purchaser except for the sum of $100 which
will be delivered to Seller as independent consideration, and thereafter neither
party shall have any further rights, remedies, or obligations hereunder except
for the Post Termination Obligations which will survive termination. Prior
to
the Effective Date, Seller and Purchaser entered into that certain Site Access
Agreement (the “Site Access Agreement”) dated July 28, 2005 (the “Site
Access Date”) providing Purchaser’s early access to the Property pending the
negotiation and execution of this Agreement. This Agreement supercedes the
terms
and provisions of the Site Access Agreement.
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Without
limiting the foregoing provisions of this Section, throughout the term of this
Agreement, Purchaser shall have the right to (i) enter into and upon the
Property, inspect the Property and conduct tests of the Property and other
related due diligence activities (“Due Diligence Activities”), and
(ii) enter into and upon the Property to engage in certain pre-closing site
work subject to and more particularly described in Section 4.05 below. Prior
to
conducting any Due Diligence Activities on the Property as permitted by this
Agreement, Purchaser will (i) provide Seller an insurance certificate in
the form attached to the Site Access Agreement as Exhibit
“B”
thereto
reflecting Seller as an additional insured under the insurance policy described
in such certificate, and (ii) provide Seller reasonable advance written
notice of such activity, including a description of the activity and a time
schedule for such activity. Seller reserves the right to be present for the
purpose of observing any such Due Diligence Activities which may be conducted
by
or on behalf of Purchaser. In fulfilling its obligations under subpart (ii)
of
the prior sentence, Seller will not be required to incur or pay any third party
costs or expenses related to preparing or processing the SDP Application.
Purchaser, at its sole expense, will pay all third-party costs associated with
preparing and processing the SDP Application including, without limitation,
engaging any legal counsel, engineer, land planner, lobbyist or other consultant
that Purchaser determines is necessary or advisable to prepare and process
the
SDP Application. Purchaser agrees to provide Seller copies of all third party
studies, reports, surveys, tests and other materials generated in connection
with Purchaser’s Due Diligence Activities (excluding attorney work product and
attorney-client privileged information and communications) within a reasonable
time after such materials are available to Purchaser. Notwithstanding anything
in this Agreement or elsewhere to the contrary, all Due Diligence Activities
shall be conducted in compliance with all applicable governmental requirements,
rules and regulations.
Purchaser
agrees to indemnify Seller and its principals, partners and affiliates against
and hold Seller and its principals, partners and affiliates harmless from,
any
claim for bodily injury or death or for damage to tangible personal property
or
for physical damage to the Property in any case sustained by Seller or its
principals, partners and affiliates, and for the costs, expenses (including
reasonable attorneys’ fees), actually incurred by Seller or its principals,
partners and affiliates to the extent such claim, damage, loss or expense arises
out of or results from the Due Diligence Activities conducted by or for
Purchaser on the Property. Notwithstanding anything to the contrary in this
Agreement, said obligation to indemnify and hold harmless Seller and its
principals, partners and affiliates shall not exceed ONE MILLION AND NO/100
DOLLARS ($1,000,000.00) in the aggregate; provided, however, in the event this
Agreement terminates and under the other provisions of this Agreement the
Xxxxxxx Money is paid to Seller, then all obligation of indemnity and hold
harmless provided in this paragraph shall be included in and covered by the
delivery of the Xxxxxxx Money to Seller and shall not be in addition to the
Xxxxxxx Money. The obligations of indemnity and hold harmless set forth in
this
paragraph shall survive any termination of this Agreement except a termination
of this Agreement in which the Xxxxxxx Money is paid to the Seller. In no event
shall the indemnification and hold harmless contained in this Agreement extend
to or cover any claim or cause of action brought against Seller (whether
singularly or together with others) relating to or based upon an Entitlements
Challenge or existing environmental conditions or characteristics on or of
the
Property, loss
of
profits or perceived loss of profits; reduction in value, perceived loss of
value, or stigma of the Property; or inability to sell, lease or finance the
Property.
The
indemnification obligations set forth in, and as limited by the provisions
of,
this paragraph are referred to as the “Due Diligence Activities
Indemnification.”
4.03
Development Permit Contingency.
A.
Plat and Site Development Permit. Seller (i) has, at Seller’s sole
cost and expense, filed a complete subdivision plat application (the “Plat
Application”) that has been approved by Purchaser with the City of Austin and
any other governmental authority with jurisdiction over subdivision of the
Property pursuant to and in accordance with that certain approved Preliminary
Plan approved by the City of Austin on August 28, 1988 under Case Number
C8-84-102(88) (the “Preliminary Plan”), and (ii) agrees, at
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Purchaser’s
sole cost and expense, to file a complete site development permit application
that has been supplied by Purchaser and approved by Seller, which approval
will
not be unreasonably withheld, (the “SDP Application”) with the City of Austin
for a site development permit for the development of the Property as “Phase I”
(herein so called) of Purchaser’s “Project” (herein so called) as shown and
generally described on Purchaser’s conceptual plan attached hereto as Exhibit
“H” (the “Conceptual Plan”). Seller agrees to make said filing as provided
in the subsequent portions of this paragraph, but in any event, on or before
December 30, 2005 (December 30, 2005, being herein called the “SDP Application
Deadline”). The Plat Application and the SDP Application must each be in
compliance with all applicable laws, ordinances, regulations, codes, and
restrictive covenants when submitted to the City of Austin and may not, without
Seller’s and Purchaser’s prior written approval, request a variance from any of
the foregoing. Purchaser will submit the SDP Application to the Seller for
Seller’s review on or before November 25, 2005. Seller will either submit
to Purchaser any written comments it has to the SDP Application or notify
Purchaser in writing that Seller has approved the SDP Application within five
(5) business days after receipt of the SDP Application. Upon the approval or
deemed approval of the SDP Application, Seller agrees to forthwith file said
application with the City of Austin. Seller may not make any comment to the
SDP
Application that is inconsistent with the Preliminary Plan or the Conceptual
Plan. In the event that Seller fails to submit written comments or notify
Purchaser in writing that it has approved the SDP Application within such five
(5) business day period, then Seller will be deemed to have approved the SDP
Application. In the event either Seller or Purchaser submits any comments to
one
another on the Plat Application or the SDP Application then both will work
diligently and in good faith with one another to resolve any such comments
so
that the Plat Application and the SDP Application can be submitted to the City
of Austin on or before their respective deadlines set forth above.
After
the
Plat Application and/or the SDP Application, as applicable, has/have been
finalized and filed, Seller and Purchaser will diligently and in good faith
process the Plat Application and the SDP Application simultaneously with the
applicable governmental authorities in order to obtain a final subdivision
plat
of the Property (the “Plat”) that is in compliance with the Preliminary Plan and
to obtain a site development permit for the Property (the “Site Development
Permit”) based on the SDP Application. The period beginning on the Effective
Date and ending on the first to occur of (i) the date of issuance of the
Site Development Permit by the City of Austin or (ii) March 15, 2006 is
referred to herein as the “SDP Contingency Period”; provided, however, the SDP
Contingency Period may be extended as provided in Section 4.03.C.
B.
Processing Plat and SDP Applications. Purchaser and Seller each covenant
and agree with the other that: (i) Except for the Plat Application, the SDP
Application, the application for a Building Permit and responses to City staff
comments in respect to them, no other applications or materials in connection
with the Property will be submitted to the City of Austin or other governmental
authority with jurisdiction until the same have been submitted in their entirety
to Seller and Purchaser as the case may be and approved in writing by them
(such
approval not to be unreasonably withheld or delayed); (ii) Purchaser and
Seller will use commercially reasonable efforts to obtain approval from the
City
of Austin of the SDP Application and the Plat Application on a timely basis
and
will promptly, at the expense of them, respectively, respond to any comments
received from the City of Austin or other governmental authority with
jurisdiction; (iii) Purchaser and Seller will deliver to the other written
notice of the filing of any applications for governmental approvals of any
kind
with the City of Austin within three (3) business days after the date of any
such filing, and Purchaser and Seller will keep the other fully informed on
a
timely basis of all matters which come to Purchaser’s and Seller’s attention
with respect to the Plat Application and/or the SDP Application, or any other
applications for governmental approvals, including, without limitation, all
comments or responses received by them from the City of Austin or any third
parties; and (iv) Seller will pay all expenses of any kind or nature in
connection with the application for and/or the issuance of the Plat including,
without limitation, all fiscal deposits that are required by applicable
governmental authorities and all other fees or expenses incurred to process
the
Plat
6
Application,
and Purchaser will pay all expenses of any kind or nature in connection with
the
application for and/or the issuance of the Site Development Permit and/or any
other requested governmental approvals, including, without limitation, all
fiscal deposits that are required by applicable governmental authorities and
all
other fees or expenses incurred in connection with the preparation of the site
plan and other application materials prepared in connection with the SDP
Application, and all application fees and other fees or expenses incurred to
process the SDP Application and/or any other requested governmental approvals.
Seller and Purchaser will reasonably cooperate with the other in connection
with
the pursuit of the Plat and the Site Development Permit approval, including
execution of the Plat Application and the final approved Plat and the SDP
Application, provided, however, that Seller will not be required to incur any
costs or expenses in that regard except as specifically contemplated herein
for
the Plat Application and will not be required to approve a Plat Application
or a
SDP Application that has, or could have, a material adverse effect on the
entitlements or development rights related to the remaining property owned
by
Seller that is covered or included in or by the Preliminary Plan; provided,
however that in no event shall a material adverse effect on said entitlements
or
development rights be deemed or construed to occur by virtue of Purchaser filing
or prosecuting a SDP Application that would permit development of the Property
at less than the maximum intensity of development and/or in compliance with
water quality standards that are more stringent than as permitted or allowable
under the Entitlements. Neither Seller nor Purchaser will unreasonably withhold
its approval of a proposed Plat Application or SDP Application submitted for
approval by them. If Seller or Purchaser fails to respond within five (5)
business days after receipt of a written request for approval of either a Plat
Application or a SDP Application, the party failing to respond will be deemed
to
have approved such request. Purchaser and Seller will not amend or modify the
Plat Application or the SDP Application or any other requested governmental
approvals in any way without prior written consent by the other of them, and
Purchaser will not agree to any access restrictions, water detention or
filtration improvement construction obligations, or any other agreements of
any
kind or nature which would be binding upon Seller or the Property, unless
contemplated by the SDP Application approved by Seller.
C.
Failure to Secure Plat or SDP. If either the Plat or the Site Development
Permit have not been recorded or issued, respectively, during the SDP
Contingency Period, then Purchaser shall have the right to terminate this
Agreement by giving written notice of such termination to Seller on or before
the last day of the SDP Contingency Period. If Purchaser fails to give said
written notice of termination to Seller on or before said date, Purchaser’s
right of termination under this paragraph C will be deemed waived. If Purchaser
does timely terminate this Agreement pursuant to this paragraph C, and has
complied with all of Purchaser’s obligations under this Section 4.03, then the
Xxxxxxx Money shall be returned to Purchaser, except for $100 of independent
consideration which will be delivered to Seller, and thereafter neither party
shall have any further rights, remedies or obligations hereunder, except for
the
Post Termination Obligations which will survive such termination. In the event
that an “Entitlements Challenge” (as defined in Section 8.02) occurs on or
before the expiration of the SDP Contingency Period, the SDP Contingency Period
shall be extended for the same period of time as said Entitlement Challenge
shall prevent or delay recordation of the Plat or issuance of the Site
Development Permit.
4.04
Purchaser’s Post Termination Obligations. All costs and expenses related
to Purchaser’s inspection of the Property and the preparation and processing of
the Site Development Permit shall be paid for by Purchaser, and Purchaser agrees
to indemnify and hold Seller harmless from and against all such costs and
expenses. All costs and expenses related to Seller’s preparation and processing
of the Plat shall be paid by Seller, and Seller agrees to indemnity and hold
Purchaser harmless from and against all said costs and expenses. Purchaser
shall
not permit any liens, encumbrances, obligations or conditions of any kind or
nature to attach to the Property by reason of the exercise of Purchaser’s rights
hereunder. Purchaser agrees that if Seller or Purchaser terminates this
Agreement under any right granted hereunder, Purchaser will: (i) restore
the Property to substantially the same condition which existed prior to any
inspections, tests or other activities of Purchaser thereon; (ii) indemnify
and hold Seller harmless from
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and
against any and all liens by contractors, subcontractors, materialmen or
laborers performing work or tests for Purchaser and from and against any and
all
claims for damages by third parties arising out of the conduct of such work
and
tests and/or any other activities of Purchaser or Purchaser’s employees or
agents; (iii) pay and/or reimburse Seller for the payment of any expenses
(including attorney fees and court costs) incurred in connection with any of
the
foregoing; (iv) except to the extent not already delivered to Seller
pursuant to Section 4.03A above, deliver to Seller copies of all studies,
reports, surveys, tests and other materials of any kind or nature obtained
by
Purchaser in connection with Purchaser’s feasibility study of the Property
excepting communications under the attorney/client privilege; (v) return
all of the Review Materials to Seller with Purchaser having the right to retain
a copy set of the materials for its records; (vi) deliver to Seller copies
of all documents, plans, applications and reports prepared in connection with
the SDP Application and will assign to Seller all of Purchaser’s right, title
and interest therein; and (vii) will pay any amounts then owing on or under
the Due Diligence Activities Indemnification. The foregoing obligations of
Purchaser are referred to herein collectively as the “Post Termination
Obligations.” Notwithstanding any provision herein to the contrary, it is agreed
and understood that a termination of this Agreement under any right granted
hereunder shall terminate all obligations of Seller to sell the Property and
all
obligations of Purchaser to purchase the Property, but such termination shall
not terminate the provisions in this Agreement relating to the Post Termination
Obligations and the disposition of the Xxxxxxx Money. The Post Termination
Obligations shall survive any termination of this Agreement and shall be fully
binding upon Purchaser and enforceable by Seller until and unless Seller gives
to Purchaser a written release which specifically references the Post
Termination Obligations and which expressly waives or releases all claims in
connection therewith.
4.05
Pre-Closing Site Work. After Purchaser has secured the final approval of
the Site Development Permit from the City of Austin and prior to Closing,
Purchaser may, at Purchaser’s sole cost and expense, perform the preliminary
site work identified on Exhibit “I” attached hereto (the “Preliminary
Site Work”). Prior to the commencement of the construction of the Preliminary
Site Work, and in any event, within ten (10) days after Purchaser provides
Seller with a copy of the Site Development Permit issued by the City of Austin,
Seller and Purchaser will enter into that certain preliminary site work license
agreement in the form attached hereto and incorporated herein as Exhibit
“J” (the “Preliminary Site Work License Agreement”). The Preliminary Site
Work must be performed in accordance with the Preliminary Site Work License
Agreement and the Site Development Permit.
4.06
Building Permit. Purchaser will, at Purchaser’s sole cost and expense,
file a complete application for a building permit with the City of Austin (the
“Building Permit Application”) for the construction of “Phase I” of Purchaser’s
“Project” as shown and generally described on the Conceptual Plan on or before
six (6) months after the Effective Date and will, contemporaneously with the
submittal of the Building Permit Application to the City of Austin, deliver
a
copy of the Building Permit Application to Seller. Purchaser agrees to use
commercially reasonable efforts in processing said Building Permit Application
with the City of Austin (such building permit as issued by the City of Austin
is
referred to as the “Building Permit”).
4.07
Deed Restrictions, Exclusion from Commercial Owner’s Association and
Assessments. Seller and Purchaser agree that the Property will not be made
subject to that certain Master Declaration of Covenants, Conditions and
Restrictions for Lantana [Commercial/Multi-Family] recorded under Document
No.
2000205500 of the Real Property Records of Xxxxxx County, Texas (as amended
from
time to time, the “Declaration”) and Seller agrees that it will not file a
Notice of Applicability against the Property or otherwise encumber the Property
with the Declaration. The Declaration shall not be a Permitted Exception
hereunder. At Closing, Purchaser shall pay to Seller the sum of FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($500,000.00) (the “Lantana Community Contribution”)
in cash as a lump sum, one time payment to be used by Seller, or the property
owners association to be created pursuant to the Declaration, for maintenance,
repair and replacement of common areas or features of the
8
Lantana
community and for maintenance and related obligations under the Section 10(a)
Permit as described in Section 3.04A, above.
V.
Closing
5.01
Closing Date. This transaction shall close at the Title Company’s offices
or other location acceptable to the parties on or before the earlier to occur
of: (i) the date which is five (5) days after the issuance of the Building
Permit by the City of Austin; or (ii) April 14, 2006. The closing of this
transaction is herein called “Closing,” and the date for Closing is herein
called the “Closing Date.” The Closing Date is, however, subject to extension
pursuant to Section 8.02 below. Seller and Purchaser acknowledge and agree
that
Xxxxxxxx & Xxxxx, L.L.P. will act as the closing agent at the Closing
pursuant to a P-22 agreement with the Title Company.
5.02
Seller’s Closing Obligations. At the Closing, Seller shall, at Seller’s
sole cost and expense:
| (i) |
execute
and deliver to Purchaser a special warranty deed in the form of
Exhibit
“L”
attached hereto and incorporated herein by reference with a description
of
the Property attached thereto as Exhibit
“A”
and a list of the Permitted Exceptions attached thereto as Exhibit
“B”
(the “Deed”);
|
| (ii) |
execute
and deliver to Purchaser a xxxx of sale and assignment in the form
of
Exhibit
“M”
attached hereto and incorporated herein by reference (the “Xxxx of Sale
and Assignment”);
|
| (iii) |
execute
and deliver to Purchaser two (2) counterpart originals of each of
the
three (3) Option Agreements;
|
| (iv) |
execute
and deliver to Purchaser two (2) counterpart originals of the Memorandum
of Options;
|
| (v) |
execute
and deliver to Purchaser two (2) counterpart originals of the Memorandum
of Rialto Blvd. Cost Reimbursement
Agreement;
|
| (vi) |
cause
Stratus Properties Inc. to execute and deliver to Purchaser an original
counterpart of the AMD/Stratus Community Trust Agreement, as provided
by
Section 8.03;
|
| (vii) |
deliver
to Purchaser physical possession of the
Property;
|
| (viii) |
deliver
evidence of Seller’s authority to act hereunder in form reasonably
satisfactory to Purchaser and the Title Company;
and
|
| (ix) |
execute
and deliver to Purchaser a “non-foreign” certificate sufficient to
establish that withholding of tax is not required in connection with
this
transaction.
|
5.03
Purchaser’s Closing Obligations. At the Closing, Purchaser shall, at
Purchaser’s sole cost and expense:
9
| (i) |
deliver
the Purchase Price and the Lantana Community Contribution to the
Title
Company for disbursement in accordance with the terms and provisions
of
this Agreement;
|
| (ii) |
execute
and deliver the Deed;
|
| (iii) |
execute
and deliver to Seller two (2) counterpart originals of the
Assignment;
|
| (iv) |
execute
and deliver to Seller two (2) counterpart originals of each of the
three
(3) Option Agreements;
|
| (v) |
execute
and deliver to Seller two (2) counterpart originals of the Memorandum
of
Options;
|
| (vi) |
execute
and deliver to Seller two (2) counterpart originals of the Memorandum
of
Rialto Blvd. Cost Reimbursement Agreement;
|
| (vii) |
cause
Advanced Micro Devices, Inc. to execute and deliver to Seller an
original
of the AMD/Stratus Community Trust Agreement, as provided by
Section 8.03; and
|
| (viii) |
deliver
such evidence of Purchaser’s authority to act hereunder as Seller and the
Title Company may reasonably require for
Closing.
|
5.04
Closing Costs. Seller shall pay: (i) the fee for the recording of
the Deed, the Memorandum of Options and the Memorandum of Rialto Blvd. Cost
Reimbursement Agreement; (ii) one-half (1/2) of any escrow fee charged by
the Title Company; and (iii) the basic premium for the Title Policy and any
additional premiums charged by the Title Company to delete the exception for
the
rights of parties in possession. Purchaser shall pay one-half (1/2) of any
escrow fee charged by the Title Company. If Purchaser desires to obtain any
other special endorsements to the Title Policy, such as deletion of the survey
exception, additional premiums therefor and related fees and other expenses
thereto shall be paid in full by Purchaser. Each party shall be responsible
for
the payment of its own attorney’s fees, copying expenses, and other costs
incurred in connection with this transaction.
5.05
Prorations. All normally and customarily proratable items, including,
without limitation, real estate taxes, and utility expenses shall be prorated
as
of the Closing Date, Seller being charged and credited for all of the same
up to
such date and Purchaser being charged and credited for all of the same on and
after such date. If the actual amounts to be prorated are not known as of the
Closing Date, the proration shall be made on the basis of the best information
then available, and thereafter, when actual figures are received, a cash
settlement will be made between Seller and Purchaser. Any additional ad valorem
taxes relating to the year of Closing and/or prior years arising out of a change
in usage or ownership of the Property (including without limitation any
“rollback” or other additional taxes payable under the terms of Section 23.46 or
Section 23.55 of the Texas Tax Code, as amended, or any similar laws) shall
be
borne and paid in full by the Seller. The provisions of this Section 5.05 shall
survive the Closing.
10
VI.
Warranties;
Condemnation; Covenants; Notices
6.01
Warranties. Purchaser acknowledges that Purchaser has already inspected
the Property and/or will hereafter independently cause the Property to be
inspected on its behalf and that Purchaser has not entered into this Agreement
based upon any representation, warranty, agreement, statement or expression
of
opinion by Seller or by any person or entity acting or allegedly acting for
or
on behalf of Seller as to the Property or the condition of the Property except
for the Representations and Warranties (defined below), the Covenants (defined
below) and the Entitlements Defense (defined below). Purchaser agrees that
the
Property is to be sold to and accepted by Purchaser at Closing, AS IS, WHERE
IS,
WITH ALL FAULTS, IF ANY, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES
WHATSOEVER, EXPRESS OR IMPLIED, except for the warranty of title set out in
the
Deed, the Representations and Warranties, the Covenants and the Entitlements
Defense. Seller hereby represents and warrants to Purchaser as follows, which
representations and warranties shall be deemed made by Seller to Purchaser
also
as of the Closing Date (the “Representations and Warranties”) and all of which
shall survive Closing as fully and for all purposes as if a separate written
document were executed by Seller at Closing making the Representations and
Warranties to Purchaser therein:
| (i) |
There
are no outstanding leases, options to purchase, rights of first refusal,
letters of intent or rental agreements with respect to any of the
Property.
|
| (ii) |
The
person or persons executing this Agreement on behalf of Seller have
full
power and authority to execute this Agreement, and to bind Seller
to the
terms hereof.
|
| (iii) |
Seller,
to its knowledge, has complied with all applicable laws, ordinances,
regulations, statutes, rules and restrictions relating to the Property,
or
any part thereof in all material respects and Seller has received
no
written notice of any violation of any applicable zoning regulation,
ordinance, or any other law, covenant, condition, or restriction
relating
to the Property from any governmental agency having jurisdiction
over the
Property, nor does Seller have any knowledge of any such material
violation.
|
| (iv) |
There
are no parties other than Seller who own or hold title to any portion
of
the Property in undivided interests or otherwise, and no person or
entity
other than Purchaser has any right to acquire any interest in any
portion
of the Property.
|
| (v) |
Seller
has no knowledge of any special assessments of a governmental authority
which have been levied against the Property, and no written notice
of any
special assessments of a governmental authority has been received
by
Seller.
|
| (vi) |
| (vii) |
To
Seller’s knowledge, no portion of the Property is currently in violation
of or subject to any existing, pending, or threatened investigation
or
inquiry by any governmental authority or to any remedial obligations
under
any applicable laws pertaining to health or the environment, including,
without limitation: (a) the
|
11
Comprehensive
Environmental Response, Compensation, and Liability Act of
1980, as amended by the Superfund Amendments and Reauthorization Act of 1986;
(b) the Resource Conservation and Recovery Act of 1976, as amended; and
(c) the Texas Water Code and the Texas Solid Waste Disposal
Act.
| (viii) |
To
Seller’s knowledge, there is no asbestos located upon or within any
portion of the Property, no portion of the Property has been used
as a
garbage or refuse dump site, a landfill, a waste disposal facility,
a
transfer station, or any other type of facility for storage, processing,
treatment, or temporary or permanent disposal of waste materials,
including, without limitation, solid, industrial, toxic, hazardous,
radioactive, nuclear or putrescible waste or sewage, and there are
no
underground storage tanks of any kind or nature located within the
Property.
|
| (ix) |
To
Seller’s knowledge, giving effect to the Section 10(a) Permit, development
of the Property is not impacted by any habitat or potential habitat
of any
species of flora or fauna which is protected under any applicable
laws
pertaining to the protection of flora or fauna (including, without
limitation, federal Endangered Species Act) and the anticipated use
of the
Property does not violate any regulations concerning endangered or
threatened species of flora or
fauna.
|
| (x) |
The
“Entitlements” (as defined in Section 8.02) are in full force and effect
without modification and to Seller’s knowledge, the Real Property may be
developed to the extent provided thereby.
|
|
(xi)
|
No
written notice has been received by Seller from any governmental
agency
asserting the invalidity of the Entitlements or its intention to
take
actions or to initiate proceedings for the termination or modification
thereof.
|
The
obligation of Purchaser to close this transaction is contingent upon the
continued truth and accuracy of Seller’s Representations and Warranties
hereunder as of the Closing Date. If at the Closing any of the Representations
or Warranties set forth herein are untrue or incorrect in any material respect,
Purchaser shall be entitled to the remedy set forth in Section 7.01 B(i) as
Purchaser’s sole and exclusive remedy.
The
characterization of any statement or representation in this Agreement as being
to the knowledge of Seller or actual knowledge of Seller (or any similar words
or phrases to that effect) means the actual knowledge of Xxxxxxx X. Xxxxxxxxx,
III and in the event Xxxxxxx X. Xxxxxxxxx, III is no longer the Chief Executive
Officer of Seller, his successor, and Xxxxxxx X. Xxxxx, Esq., General Counsel
of
Seller and if Xxxxxxx X. Xxxxx is no longer the General Counsel of Seller,
his
successor only, and does not mean any constructive knowledge applied to such
individuals or to Seller as an entity.
6.02
Condemnation. If prior to Closing, any governmental or other entity
having condemnation authority shall institute an eminent domain proceeding
with
regard to the Property or any part thereof and the same is not dismissed on
or
before ten (10) days prior to Closing, then (i) if the proposed
condemnation involves so much of the Property that it prevents Purchaser from
developing the Project on the Property as generally contemplated on the
Conceptual Plan in a commercially reasonable manner, then Purchaser shall be
entitled either to terminate this Agreement upon written notice to Seller or
to
waive such right of termination and receive all condemnation proceeds, or
(ii) if the proposed condemnation does not prevent Purchaser from
developing the Project on the Property as described in item (i) above, then
Purchaser will not be entitled to terminate this Agreement due to such
condemnation but will entitled to receive all condemnation proceeds on or after
Closing. In the event of termination of
12
this
Agreement pursuant to the terms hereof, the Xxxxxxx Money shall be returned
to
Purchaser and thereafter neither Purchaser nor Seller shall have any further
rights or obligations hereunder except for the Post Termination Obligations
which will expressly survive any termination of this Agreement.
6.03
Covenants of Seller. Seller agrees that between the Effective Date of
this Agreement and the Closing Date (collectively, the “Covenants”):
(i) Seller will not enter into or grant any liens, easements, restrictive
covenants or other agreements of any kind which would survive the Closing and
which would affect title to or use or possession of the Property, without the
prior written approval of Purchaser; (ii) Seller will not enter into any
leases, contracts or agreements of any kind or nature relating to the Property
which would survive the Closing, without the prior written approval of
Purchaser; (iii) Seller will not knowingly use, occupy or knowingly allow
the use or occupancy of the Property in any manner which violates any applicable
laws, ordinances, rules, regulations or restrictive covenants; (iv) Seller
will not allow or permit the introduction, spillage, release, discharge, use,
storage or disposal of any hazardous material, hazardous waste or pollutant
of
any kind or nature into, onto or from the Property by Seller or any of Seller’s
agents, contractors or representatives; and (v) Seller will immediately
upon obtaining notice of same, notify Purchaser of any legal, political,
governmental, or administrative proceeding or moratorium instituted or proposed
which specifically effects the Property.
VII.
Remedies
7.01
Purchaser’s Remedies. Notwithstanding any provision of this Agreement to
the contrary other than Section 7.03 and, if applicable,
Section 3.03:
A.
if Seller fails or refuses to timely comply with Seller’s obligations hereunder
and such failure continues for a period of ten (10) days after delivery of
written notice from Purchaser to Seller specifying such failure (provided,
however, that if such failure requires more than ten (10) days to cure, then
such ten (10) day period will extend to thirty (30) days provided that Seller
commences to cure such failure within such initial 10 day period and diligently
prosecutes such cure thereafter), Purchaser may, as Purchaser’s sole and
exclusive remedy, either: (i) terminate this Agreement by giving Seller
timely written notice of such election prior to or at Closing, and thereupon
this Agreement shall terminate, and Purchaser shall be entitled to an immediate
return of the Xxxxxxx Money and Seller and Purchaser shall be relieved and
released of all further obligations, claims and liabilities hereunder; or
(ii) enforce specific performance of Seller’s obligations hereunder;
or
B.
if any of Seller’s Representations and Warranties other than
Section 6.01(x) is untrue or is breached in any material respect and is not
cured by Seller within ten (10) days after delivery of written notice specifying
such breach from Purchaser to Seller (provided, however, that if such breach
requires more than ten (10) days to cure, then such ten (10) day period will
extend to thirty (30) days provided that Seller commences to cure such breach
within such initial ten (10) day period and diligently prosecutes such cure
thereafter), Purchaser may elect, as Purchaser’s sole and exclusive remedy, by
giving Seller timely written notice of said election prior to Closing,
either:
| (i) |
to
terminate this Agreement, whereupon within thirty (30) days after
said
election is made by Purchaser, Seller shall refund and pay to Purchaser
both the Xxxxxxx Money, less the Independent Consideration, and the
out of
pocket costs and expenses incurred by Purchaser after the Effective
Date
for third party contractors, consultants and attorneys regarding
the
Property as evidenced by commercially reasonable supporting documentation
provided by Purchaser; and
|
13
upon
making said payments to Purchaser, Seller and
Purchaser shall be relieved and released of all further obligations, claims
and
liabilities hereunder, or
| (ii) |
to
waive the Seller’s failure to cure and proceed to close this transaction
in accordance with the other provisions of this
Agreement.
|
C.
if the Representations and Warranties set forth in Section 6.01(x) is untrue
or
is breached in any material respect, Purchaser may elect, as Purchaser’s sole
and exclusive remedy, by giving Seller timely written notice of said election
prior to Closing, either:
| (i) |
to
terminate this Agreement, whereupon within thirty (30) days after
said
election is made by Purchaser, Seller shall refund and pay to Purchaser
the Xxxxxxx Money, less the Independent Consideration, and upon making
said payment to Purchaser, Seller and Purchaser shall be relieved
and
released of all further obligations, claims and liabilities hereunder;
or
|
| (ii) |
to
require Seller and Purchaser to follow the procedure set out in
Section 8.02
|
D.
Notwithstanding the foregoing, Purchaser may pursue all legal rights available
at law or in equity in connection with (i) any breach of any of Seller’s
Representations or Warranties, other than Section 6.01(x), discovered after
Closing, and/or (ii) any of Seller’s specific indemnification obligations
hereunder; provided, that in no event may Purchaser recover any indirect or
consequential damages arising out of any such breach by Seller all of which
are
hereby waived by Purchaser. With regard to any breach of Section 6.01(x)
discovered after Closing, Purchaser’s sole and exclusive remedy is set forth in
Section 8.02 below. The provisions of this paragraph shall survive Closing
and
the delivery of the Deed fully and for all purposes as if contained in a
separate written document signed by Seller and Purchaser at
Closing.
7.02
Seller’s Remedies. Notwithstanding any provision of this Agreement to the
contrary other than Section 7.03, if Purchaser fails or refuses to timely comply
with Purchaser’s obligations hereunder or is unable to do so as the result of
Purchaser’s act or failure to act and any such failure (other than a failure to
fund the Purchase Price at Closing Date) continues for a period of ten (10)
days
after delivery of written notice specifying such failure from Seller to
Purchaser (provided, however, that if such failure requires more than ten (10)
days to cure, then such ten (10) day period will extend to thirty (30) days
provided that Purchaser commences to cure such failure within such initial
ten
(10) day period and diligently prosecutes such cure thereafter), Seller may
terminate this Agreement and, as Seller’s sole and exclusive remedies: recover
or retain the Xxxxxxx Money. It is agreed and understood that the Xxxxxxx Money
will be delivered to Seller as liquidated damages, and not a penalty, in full
satisfaction of all of Seller’s claims against Purchaser hereunder or pursuant
hereto or in connection herewith. Seller and Purchaser agree that it is
difficult to determine the actual amount of Seller’s damages arising out of
Purchaser’s breach but said amount is a fair estimate of those damages which has
been agreed to by the parties in a good faith effort to make the damages
certain. If a party exercises a right of termination pursuant to the terms
and
provisions of this Agreement that provides for the return of the Xxxxxxx Money
to Purchaser, then, notwithstanding the foregoing, Seller may (i) recover
damages with respect to any failure by Purchaser to comply with Purchaser’s Post
Termination Obligations or any other indemnification obligations of Purchaser
hereunder, and (ii) enforce specific performance of Purchaser’s Post Termination
Obligations. The foregoing notwithstanding, a failure by Purchaser to timely
fund the Purchase Price on the Closing Date will be a default by Purchaser
hereunder without a notice and cure opportunity.
14
7.03
Attorney’s Fees. Notwithstanding the foregoing, in the event of any
default by either Seller or Purchaser, the prevailing party in any dispute
shall
be entitled to recover from the non-prevailing party reasonable attorney’s fees,
expenses and costs of court.
VIII.
Special
Provisions
8.01
Rialto Blvd. Cost Reimbursement Agreement. Seller and Purchaser
acknowledge and agree that Seller is constructing that certain segment of Rialto
Blvd. pursuant to and as described in that certain site development permit
issued by the City of Austin under Site Development Permit No. C8-84-102.8B
(the
“Rialto Boulevard Segment”) in anticipation of the development and construction
of Purchaser’s Project on the Property generally in accordance with the
Conceptual Plan. Seller agrees, at Seller’s sole cost and expense, but subject
to reimbursement as provided below, to complete construction of the Rialto
Boulevard Segment in a good and workmanlike manner and to secure City of Austin
approval of the construction of Rialto Boulevard (“Final Completion”) on or
before 120 days after the Closing Date (as it may be extended hereunder).
After Final Completion of the Rialto Boulevard Segment,
Purchaser agrees to reimburse Seller the design, permitting and construction
costs incurred by Seller for the Rialto Boulevard Segment attributable to the
Property and to any Option Tracts purchased by Purchaser in accordance with
the
Option Agreements in the amounts, subject to the limitations and according
to
the terms set forth and contained in the Rialto Blvd. Cost Reimbursement
Agreement set forth on Exhibit “N” attached hereto and incorporated
herein for all purposes (the “Rialto Blvd. Cost Reimbursement Agreement”). As
stated in the Rialto Blvd. Cost Reimbursement Agreement and without intention
to
modify the same, reimbursement amounts will be paid by Purchaser attributable
to
the Property and each Option Tract upon the later to occur, if ever, of (i)
Final Completion of the Rialto Boulevard Segment, or (ii) the Closing of the
Property and each Option Tract, as applicable. Purchaser acknowledges and agrees
that the Rialto Blvd. Cost Reimbursement Agreement runs with the Property and
the Option Tracts until the reimbursement is paid for a particular property.
Accordingly, at Closing, Seller and Purchaser will execute and record a
Memorandum of Rialto Blvd. Cost Reimbursement Agreement in the form attached
hereto as Exhibit “O” (the “Memorandum of Rialto Blvd. Cost Reimbursement
Agreement”) in the Official Public Records of Xxxxxx County, Texas. Seller will
execute and record a partial release of Memorandum of Rialto Blvd. Cost
Reimbursement Agreement for the Property or any Option Tract contemporaneously
with the receipt of the reimbursement amount attributable to the Property or
such Option Tract, as applicable. In the event Purchaser does not timely
exercise the option to acquire an Option Tract, Seller shall execute and record
a partial release of Memorandum of Rialto Blvd. Cost Reimbursement Agreement
for
such Option Tract. Purchaser’s and Seller’s obligations under this Section 8.01
will survive Closing and the delivery of the Deed and will survive each closing
under an Option Agreement.
8.02
Entitlements Defense.
A.
The Property is subject to those certain agreements executed by the City of
Austin and attached hereto as Exhibit “P” establishing that the Property
is entitled to be developed pursuant to the ordinances referenced therein (the
“Entitlements”). Purchaser is acquiring the Property both with the understanding
that the Property can be developed in accordance with the Entitlements and
in
reliance upon Seller’s representation set forth in Section 6.1(x) above. In the
event, that a governmental authority or other third party or entity files a
lawsuit, whether local, state or federal, challenging the applicability and/or
enforceability of the Entitlements to the development of the Property and either
that legally prevents or delays the issuance of the Plat, the Site Development
Permit or the Building Permit, or that legally prevents the development of
Phase
I of the Project in accordance with the Plat, Site Development Permit and the
Building Permit (an “Entitlements Challenge”) prior to the issuance of a
certificate of
15
occupancy
by the City of Austin for the first building completed on the Property, then
Seller agrees, at Seller’s sole cost and expense, to vigorously defend the
Purchaser and the Seller against the Entitlements Challenge with reputable
legal
counsel chosen by Seller and reasonably acceptable to Purchaser (“Defense
Obligations”); provided, however, that Seller will not be required to incur
out-of-pocket costs and expenses after the Closing Date in connection with
Defense Obligations in an amount that exceeds the sum of $500,000.00. Once
Seller has incurred out-of-pocket Defense Obligations costs and expenses in
the
amount of $500,000.00 or more after the Closing Date, then Seller will no longer
be obligated to pursue such Defense Obligations. In such an event, and provided
that Seller determines that it is no longer going to pursue such Defense
Obligations, then Seller will notify Purchaser of such determination in writing
at least thirty (30) days prior to the date that Seller intends to withdraw
from
the Defense Obligations in order to allow Purchaser, at Purchaser’s option and
expense, to pursue the defense of such Entitlements Challenge. Purchaser agrees
that Xxxx X. (Xxxx) McKetta, III currently with the law firm of Graves,
Dougherty, Xxxxxx & Xxxxx, L.L.P., along with Xxxxx Xxxxxxxxx of Xxxxxxxx
& Xxxxx, L.L.P., is counsel acceptable to Purchaser that may be used by
Seller in fulfilling its defense obligations hereunder. Purchaser may, at
Purchaser’s sole cost and expense, participate in Seller’s defense of any
Entitlements Challenge and, at all times, Seller and Purchaser agree to
cooperate with one another and keep each other informed as to their respective
efforts to defend any Entitlements Challenge. In connection with the defense
of
any Entitlements Challenge, (i) Seller will not take a position that compromises
the Entitlements attributable to the Property or any Option Tract that is then
subject to an Option Agreement without the prior written consent of Purchaser,
and (ii) Purchaser will not take a position that compromises the Entitlements
attributable to any other property owned by Seller and covered by the
Preliminary Plan, including, but not limited to Option Tracts that have not
been
acquired by Purchaser, without the prior written consent of Seller; provided,
that Purchaser may agree to permit development of the Property at less than
the
maximum intensity of development and/or in compliance with water quality
standards that are more stringent than as permitted or allowable under the
Entitlements without violating this Section 8.02. Seller and Purchaser each
agree to promptly notify the other in writing when it has been notified of
a
filed Entitlements Challenge to the Property. For purposes of determining
whether an Entitlements Challenge has been filed before or after Closing, the
date of the filing of the earlier to be filed of a petition setting forth the
Entitlements Challenge and specifically referencing the Property or an
application or administrative case asserting the Entitlements Challenge will
be
the date of the Entitlements Challenge.
B.
In the event that an Entitlements Challenge is filed prior to the Closing Date
and either the Entitlements are not upheld by the applicable court in their
entirety prior to the Closing Date or the Entitlements Challenge is not
otherwise resolved in a manner that upholds the Entitlements in their entirety
prior to the Closing Date, then:
| (i) |
the
Closing Date will be automatically extended for a period of twenty-five
(25) days and, on or before ten (10) days prior to the Closing Date
(as so
extended), Purchaser must elect by written notice to Seller to either
(a)
close the purchase of the Property pursuant to the terms of this
Agreement
on or before the Closing Date (as so extended), (b) terminate this
Agreement, or (c) extend the Closing Date for a period of an additional
three hundred sixty-five (365) days during which xxxx Xxxxxx will
continue
to pursue resolution to the Entitlements Challenge. If Purchaser
fails to
make the election pursuant to the immediately preceding sentence,
the
Purchaser will be deemed to have elected to extend the Closing Date
for a
period of an additional three hundred sixty-five (365) days. If Purchaser
timely elects to terminate this Agreement pursuant to the terms hereof
then the Xxxxxxx Money shall be returned to Purchaser, except for
$100 of
independent consideration which will be delivered to Seller, and
thereafter neither party shall have any further rights, remedies
or
obligations hereunder,
|
16
except
for the Post Termination Obligations which
will survive such termination; and
| (ii) |
if
the Closing Date was extended for the period of three hundred sixty-five
(365) days pursuant to subparagraph A above, then (i) in the event
that
the Entitlements are either upheld by the applicable court in their
entirety prior to the Closing Date or the Entitlements Challenge
is
otherwise resolved in a manner that upholds the Entitlements in their
entirety prior to the Closing Date, then Purchaser will close the
purchase
of the Property on the Closing Date; or (ii) in the event that the
Entitlements are either not upheld by the applicable court in their
entirety prior to the Closing Date or the Entitlements Challenge
is not
otherwise resolved in a manner that upholds the Entitlements in their
entirety prior to the Closing Date, then the Closing Date will again
be
automatically extended for a period of twenty-five (25) days and,
on or
before ten (10) days prior to the Closing Date (as so extended),
Purchaser
must elect by written notice to Seller to either (a) close the
purchase of the Property with the Purchase Price reduced to the “Reduced
Purchase Price” (defined below) and the Lantana Community Contribution
reduced to the “Reduced Lantana Community Contribution” (defined below)
and otherwise pursuant to the terms of this Agreement on or before
the
Closing Date (as so extended), or (b) elect to terminate this Agreement.
As used herein, the term “Reduced Purchase Price” shall mean FIFTEEN
MILLION TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($15,200,000.00).
As used
herein, the term “Reduced Lantana Community Contribution” shall mean FOUR
HUNDRED THOUSAND AND NO/100 DOLLARS ($400,000.00). If Purchaser fails
to
deliver written notice of termination to Seller on or before Closing
Date
as so extended, Purchaser will be deemed to have elected to close
the
purchase of the Property on the Closing Date according to this Agreement
by paying the Reduced Purchase Price and Reduced Lantana Community
Contribution. If Purchaser timely elects to terminate this Agreement
pursuant to the terms hereof then the Xxxxxxx Money shall be returned
to
Purchaser, except for $100 of independent consideration which will
be
delivered to Seller, and thereafter neither party shall have any
further
rights, remedies or obligations hereunder, except for the Post Termination
Obligations which will survive such termination.
|
C.
In the event that an Entitlements Challenge is filed following the Closing
Date
and either the Entitlements are not upheld by the applicable court in their
entirety or the Entitlements Challenge is not otherwise resolved in a manner
that upholds the Entitlements in their entirety, then on or before ninety (90)
days following the final determination of said Entitlements Challenge, Seller
shall pay and reimburse Purchaser FOUR MILLION TWO HUNDRED THOUSAND AND NO/100
DOLLARS ($4,200,000.00) in cash, which amount equals the total by which the
Purchase Price exceeds the Reduced Purchase Price, and the Lantana Community
Contribution exceeds the Reduced Lantana Community Contribution.
D.
In the event an Entitlement Challenge is filed prior to the Closing Date and
at
Closing, Purchaser pays the Reduced Purchase Price and the Reduced Lantana
Community Contribution, as provided in B.(ii) B., above, and the Entitlements
are subsequently upheld by the applicable court in their entirety or the
Entitlement Challenge is otherwise resolved in a manner that upholds the
Entitlements in their entirety, then within ninety (90) days following the
final
determination of said Entitlement Challenge, Purchaser shall pay Seller FOUR
MILLION TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($4,200,000.00) in cash, which
amount equals the total amount by which the (i) Purchase
17
Price
exceeds the Reduced Purchase Price and (ii) the Lantana Community
Contribution exceeds the Reduced Lantana Community Contribution.
E.
The terms and provisions of this Section 8.02 will survive Closing and the
delivery of the Deed
8.03
Community and Open Space Program. At Closing, Seller and Purchaser agree
to execute the AMD/Stratus Community Trust Agreement in the form attached hereto
as Exhibit L and made a part hereof.
IX.
Miscellaneous
Provisions
9.01
Entire Agreement. This Agreement contains the entire agreement of the
parties hereto. There are no other agreements, oral or written, between the
parties regarding the Property and this Agreement can be amended only by written
agreement signed by the parties hereto, and by reference made a part
hereof.
9.02
Binding Effect. This Agreement, and the terms, covenants, and conditions
herein contained, shall be covenants running with the land and shall inure
to
the benefit of and be binding upon the heirs, personal representatives,
successors, and assigns of each of the parties hereto.
9.03
Effective Date. The “Effective Date” of this Agreement and other similar
references herein are deemed to refer to the date on which this Agreement has
been fully executed, initialed, if applicable, and dated by both Seller and
Purchaser.
9.04
Notice. Any notice, communication, request, reply or advice (severally
and collectively referred to as “Notice”) in this Agreement provided or
permitted to be given, made or accepted by either party to the other must be
in
writing. Notice may, unless otherwise provided herein, be given or served:
(i)
by depositing the same in the United States Mail, certified, with return receipt
requested, addressed to the party to be notified and with all charges prepaid;
or (ii) by depositing the same with Federal Express or another service
guaranteeing “next day delivery,” addressed to the party to be notified and with
all charges prepaid; or (iii) by delivering the same to such party, or an agent
of such party by telecopy or by hand delivery. Notice deposited in the United
States mail in the manner hereinabove described shall be deemed given the day
it
is deposited with the U.S. Postal Service. Notice given in any other manner
shall be deemed given only if and when received by the party to be notified.
For
the purposes of notice, the addresses of the parties shall, until changed as
provided below, be as follows:
|
PURCHASER:
|
With
Copy To:
|
|
Advance
Micro Devices, Inc
|
Fulbright
& Xxxxxxxx, L.L.P.
|
|
Attn:
Xxxxx Xxxxx
|
Attn:
Xxxxxx X. Xxxxxxxx
|
|
0000
Xxxx Xxx Xxxxx Xxxx.
|
One
American Center
|
|
M/S
562
|
000
Xxxxxxxx Xxxxxx, Xxxxx 0000
|
|
Xxxxxx,
Xxxxx 78741
|
Xxxxxx,
Xxxxx 00000
|
|
Telephone:
(000) 000-0000
|
Telephone:
(000) 000 0000
|
|
Fax
No.: (000) 000-0000
|
Fax
No.: (000) 000 0000
|
18
|
SELLER:
|
With
Copy To:
|
|
Xxxxxxxx
& Xxxxx, L.L.P.
|
|
|
Attn:
Xxxxxxx X. Xxxxxxxxx, III
|
Attn:
Xxxxxxx X. Xxxxx
|
|
00
Xxx Xxxxxxx Xxxx., Xxxxx 000
|
000
Xxxxxxxx Xxx., Xxxxx 0000
|
|
Xxxxxx,
Xxxxx 78701
|
Xxxxxx,
Xxxxx 00000
|
|
Telephone:
(000) 000-0000
|
Telephone:
(000) 000-0000
|
|
Fax
No.: (000) 000-0000
|
Fax
No.: (000) 000-0000
|
The
parties hereto shall have the right from time to time to change their respective
addresses, and each shall have the right to specify as its address any other
address within the United States of America by giving at least five (5) days
written notice to the other party. If any date or any period provided in this
Agreement ends on a Saturday, Sunday or legal holiday, the applicable period
shall be extended to the first business day following such Saturday, Sunday
or
legal holiday.
9.05
Real Estate Commissions. If and when the Closing occurs and Seller has
received all funds required to be delivered to Seller under the terms hereof,
Seller shall pay a commission at the Closing for services rendered in connection
with this transaction in the total amount of three percent (3%) of the Purchase
Price to Staubach Company Central Texas, L.L.C. and CB Xxxxxxx Xxxxx to the
extent provided for, and in accordance with, a separate agreement between
Staubach Company Central Texas, L.L.C. and CB Xxxxxxx Xxxxx addressing how
such
commission will be split between such entities, an original of which agreement
must be provided to Seller. Purchaser understands and hereby acknowledges that
the foregoing named broker or brokers have no authority to bind Seller to any
warranties or representations regarding the Property, and further acknowledges
that Purchaser has not relied upon any warranties or representations of the
foregoing named broker or brokers in Purchaser’s decision to purchase the
Property. Seller and Purchaser each represent and warrant to the other that
other than as stated above, no real estate brokerage commission is payable
to
any person or entity in connection with this transaction, and each agrees to
and
does hereby indemnify and hold the other harmless against the payment of any
commission to any person or entity claiming by, through or under Seller or
Purchaser, as applicable. Purchaser acknowledges that Purchaser has been advised
by the above-stated broker, to have an abstract of title on the Property
examined by an attorney or else to acquire an owner’s policy of title insurance
on the Property.
9.06
Time. Time is of the essence in all things pertaining to the performance
of this Agreement.
9.07
Assignment. Purchaser shall have the right to transfer and assign all or
any portion of its rights and options under this Agreement to any affiliate
of
Purchaser or to any other assignee or its affiliate in connection with a
financial arrangement between said assignee or affiliate and Purchaser to enable
the Project to be constructed, occupied and used by Purchaser. This Agreement
may not otherwise be assigned by the Purchaser without the consent of
Seller.
9.08
Severability. If any provision of this Agreement is illegal, invalid, or
unenforceable under present or future laws, then, and in that event, it is
the
intention of the parties hereto that the remainder of this Agreement shall
not
be affected thereby, and it is also the intention of the parties to this
Agreement that in lieu of each provision of this Agreement that is illegal,
invalid, or unenforceable, there be added 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, and enforceable.
9.09
Waiver. Any failure by a party hereto to insist, or any election by a
party hereto not to insist, upon strict performance by the other party of any
of
the terms, provisions, or conditions of this
19
Agreement
shall not be deemed to be a waiver thereof or of any other term, provision,
or
condition hereof, and such party shall have the right at any time or times
thereafter to insist upon strict performance of any and all of the terms,
provisions, and conditions hereof.
9.10
Applicable Law and Venue. The construction and validity of this Agreement
shall be governed by the laws of the State of Texas. Venue shall be in a court
of appropriate jurisdiction in Xxxxxx County, Texas.
9.10
Paragraph Headings. The paragraph headings contained in this Agreement
are for convenience only and shall in no way enlarge or limit the scope or
meaning of the various and several paragraphs hereof.
9.11
Grammatical Construction . Wherever appropriate, the masculine gender may
include the feminine or neuter, and the singular may include the plural, and
vice versa.
9.13
Waiver of Deceptive Trade Practices Act. TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, PURCHASER HEREBY WAIVES ALL OF THE PROVISIONS OF THE TEXAS
DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT (THE TEXAS BUSINESS AND
COMMERCE CODE; SECTION 17.41, ET SEQ.), SAVE AND
EXCEPT THE PROVISIONS OF SECTION 17.555 OF THE TEXAS BUSINESS AND COMMERCE
CODE. PURCHASER WARRANTS AND REPRESENTS TO SELLER THAT (A) PURCHASER IS NOT
IN A
SIGNIFICANTLY DISPARATE BARGAINING POSITION AS TO ANY PROVISION OF THIS
AGREEMENT OR AS TO ANY MANNER CONTAINED HEREIN, (B) PURCHASER IS A SOPHISTICATED
ENTITY AND (C) PURCHASER IS REPRESENTED BY LEGAL COUNSEL OF PURCHASER’S OWN
CHOOSING IN SEEKING, ACQUIRING, AND PURCHASING THE PROPERTY AND IN NEGOTIATING
THE TERMS OF THIS AGREEMENT. FURTHER, THE CONSIDERATION FOR THE PURCHASE OF
THE
PROPERTY IS IN EXCESS OF FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00).
THIS WAIVER IS MADE KNOWINGLY.
9.14
No Recordation. Seller and Purchaser hereby acknowledge that neither this
Agreement nor any memorandum, affidavit or other instrument evidencing this
Agreement or relating hereto (other than the closing documents contemplated
hereunder) shall ever be recorded in the Official Public Records of Xxxxxx
County, Texas, or in any other public records. Should either party ever record
or attempt to record any such instrument, then, notwithstanding any provision
herein to the contrary, such recordation or attempted recordation shall
constitute a default hereunder by said party.
9.15
Confidentiality. Seller and Purchaser acknowledge that they have signed a
Nondisclosure Agreement dated effective June 1, 2004, and that until Closing,
said Nondisclosure Agreement shall remain applicable to this Agreement,
mutatis mutandis.
9.16
Counterpart Execution. This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the same
document, and all counterparts will constitute one and the same
agreement.
20
EXECUTED
by the undersigned on the dates set forth hereinbelow.
|
SELLER:
|
STRATUS
PROPERTIES OPERATING CO., L.P.,
a
Delaware limited liability partnership
By: STRS
L.L.C., a Delaware limited liability
company,
General Partner
By: STRATUS
PROPERTIES INC., a
Delaware
corporation, Sole Member
|
|
By:__________________________
Printed
Name:__________________
Title:_________________________
Date:_________________________
|
|
|
PURCHASER:
|
ADVANCED
MICRO DEVICES, INC.
a
Delaware corporation
|
|
By:________________________
Printed
Name:________________
Title:_______________________
Date:_______________________
|
|
Exhibits:
“A” - Land
“B” - Property
Description and Definitions
“C” - Option
Tracts
“D” - Option
Agreements (“D-1,” “D-2” and “D-3”)
“E” - Memorandum
of Options
“F” - Survey
Certificate
“G” - Section
10(a) Restriction
“H” - Conceptual
Plan
“I” - Preliminary
Site Work
“J” - Preliminary
Site Work License Agreement
“K” - Covenants
“L” - Special
Warranty Deed
“M” - Xxxx
of
Sale and Assignment
“N” - Rialto
Blvd. Cost Reimbursement Agreement
“O” - Memorandum
of Rialto Blvd. Cost Reimbursement Agreement
“P” - Entitlements
21
TITLE
COMPANY RECEIPT
Heritage
Title Insurance Company of Austin, Inc. acknowledges receipt of this Agreement,
executed and, if needed, initialed, by both Seller and Purchaser this _____
day
of _________________, 2005.
HERITAGE
TITLE INSURANCE COMPANY OF AUSTIN, INC.
By:____________________________
Printed
Name:____________________
Title___________________________
22
EXHIBIT
“A”
LAND
EXHIBIT
“B”
PROPERTY
DESCRIPTIONS AND DEFINITIONS
1. “Plans
and Reports”
shall
mean and refer to all of Seller’s right, title and interest in and to all
construction plans and specifications, engineering reports, environmental
reports, technical reports, drawings, surveys, utility studies, and/or any
other
reports or data covering or relating the Real Property which are in the
possession of Seller to the extent, and only to the extent, they relate to
the
Real Property.
2. “Governmental
Approvals and Permits”
shall
mean and refer to all of Seller’s right, title and interest in and to all
approvals, permits, licenses, and/or applications of any kind or nature which
have been issued by or which are on file with any governmental agencies,
departments or authorities to the extent, and only to the extent, they relate
to
the Real Property.
3. “Utility
Service Permits”
shall
mean and refer to all of Seller’s right, title and interest in and to all water,
wastewater, electric, gas, cable television, telephone, and other utility
service rights, permits, and/or applications to the extent, and only to the
extent, they relate to and benefit the Real Property.
4. “Utility
Service Rights”
shall
mean and refer to all of Seller’s right, title and interest in and to all
off-site waterlines, wastewater lines, and all other lines, facilities or
improvements of any kind or nature to the extent, and only to the extent, they
provide water, wastewater, electric, natural gas, cable television, telephone
and other services to the Real Property.
5. “Street
and Drainage Rights”
shall
mean and refer to all of Seller’s right, title and interest in and to all
off-site street and drainage improvements of any kind or nature to the extent
and only to the extent they provide roadway access or drainage service to the
Real Property.
EXHIBIT
“C”
OPTION
TRACTS
EXHIBIT
“D-1”
“D-2” and “D-3”
OPTION
AGREEMENTS
EXHIBIT
“E”
MEMORANDUM
OF OPTIONS
EXHIBIT
“F”
SURVEY
CERTIFICATE
EXHIBIT
“G”
SECTION
10(a) RESTRICTION
EXHIBIT
“H”
CONCEPTUAL
PLAN
EXHIBIT
“I”
PRELIMINARY
SITE WORK
EXHIBIT
“J”
PRELIMINARY
SITE WORK LICENSE AGREEMENT
EXHIBIT
“K”
COVENANTS
EXHIBIT
“l”
SPECIAL
WARRANTY DEED
THE
STATE
OF TEXAS §
§ KNOW
ALL
MEN BY THESE PRESENTS: THAT
COUNTY
OF
XXXXXX §
_______________________________,
a __________________ (“Grantor”), for and in consideration of the sum of TEN AND
NO/100 DOLLARS ($10.00) and other good and valuable consideration to Grantor
in
hand paid by _____________________________, a ___________________________
(“Grantee”), whose mailing address is ____________
_________________________________________________________________ the receipt
and sufficiency of which consideration is hereby acknowledged and confessed,
has
GRANTED, SOLD AND CONVEYED, and by these presents does GRANT, SELL AND CONVEY,
unto Grantee, subject to all of the reservations, exceptions and other matters
set forth or referred to herein, the following described real property, together
with all improvements thereon and appurtenances related thereto, if any (the
“Property”), to-wit:
That
certain real property in _______ County, Texas, which is described on
Exhibit
“A”
attached
hereto and incorporated herein by reference.
TO
HAVE AND TO HOLD
the
Property, together with all and singular the rights and appurtenances thereto
in
anywise belonging unto Grantee, and Grantee’s successors or assigns, forever;
and, subject to all of the matters set forth or referred to herein, Grantor
does
hereby bind itself and its successors to WARRANT AND FOREVER DEFEND all and
singular the Property unto Grantee, Grantee’s successors and assigns, against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof, by, through, or under Grantor, but not otherwise; provided, however
that this conveyance is made by Grantor and accepted by Grantee subject to:
(a)
all of the title exceptions revealed in or by the recorded documents and other
matters listed on Exhibit
“B”
attached
hereto and incorporated herein by reference; (b) all regulations, restrictions,
laws, statutes, ordinances, obligations or other matters which affect the
Property and which are imposed by or exist by reason of any regulatory,
governmental, or quasi-governmental districts, entities, agencies, authorities
or other bodies of any kind or nature (“Governmental Authorities”); and (c) all
standby fees, taxes and assessments by any taxing authority for the current
and
all subsequent years, and all liens securing the payment of any of the
foregoing. Ad valorem taxes with respect to the Property for the current year
have been prorated as of the date hereof. By acceptance of this deed, Grantee
assumes and agrees to pay and indemnifies and agrees to hold Grantor harmless
from and against all ad valorem taxes relating to the Property, for the current
and all subsequent years.
EXECUTED
AND DELIVERED the ______ day of _____________, 2005.
_____________________________________,
a
_________________________
By:________________________
Printed
Name:________________
Title:_______________________
RECEIVED,
ACCEPTED AND AGREED
TO
BY
GRANTEE:
_____________________________
a
___________________________
By:__________________________
Printed
Name:________________
Title:_______________________
THE
STATE
OF _________ §
§
COUNTY
OF
____________ §
This
instrument was acknowledged before me this ______ day of ____________, 2005,
by
_______________________________, __________________ of _________________
_____________________________, a _________________________, on behalf of said
________________________.
(SEAL)
______________________________________
Notary
Public Signature
THE
STATE
OF _________ §
§
COUNTY
OF
____________ §
This
instrument was acknowledged before me this ______ day of ____________, 2005,
by
_______________________________, __________________ of _________________
_____________________________, a _________________________, on behalf of said
________________________.
(SEAL)
Notary
Public Signature
EXHIBIT
“M”
XXXX
OF SALE AND ASSIGNMENT
EXHIBIT
“N”
RIALTO
BLVD. COST REIMBURSEMENT AGREEMENT
EXHIBIT
“O”
MEMORANDUM
OF RIALTO BLVD. COST REIMBURSEMENT AGREEMENT
EXHIBIT
“P”
ENTITLEMENTS
