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Exhibit 10.11
CONTRACT FOR PURCHASE AND SALE
THIS CONTRACT FOR PURCHASE AND SALE (the "Contract") is made and
entered into by and between EYE CARE CENTERS OF AMERICA, INC., a Texas
corporation (the "Seller" and JDB REAL PROPERTIES, INC., a Texas corporation,
(the "Purchaser").
ARTICLE I
Sale and Purchase
Section 1.1 The Project. Subject to the terms and provisions hereof,
the Seller agrees to sell to the Purchaser, and the Purchaser agrees to purchase
from the Seller:
(a) All of the real property described on Exhibit "A" attached
hereto and made a part hereof (the "Land") together with all right,
title and interest of the Seller in and to (i) the rights, easements
and appurtenances pertaining thereto, and (ii) any and all roads,
easements, alleys, streets and rights-of way bounding the Land,
together with all rights of ingress and egress unto the Land;
(b) That certain office building located upon the Land and
known as the Eye Care Plaza together with all buildings, structures and
fixtures presently situated on the Land (the "Improvements");
(c) All of Seller's interest, if any, in the benefits of any
and all service contracts, maintenance arrangements, warranties,
guaranties, bonds or other agreements affecting the operation of the
Land and/or Improvements (the "Miscellaneous Contracts");
(d) Seller's interest in all of the fixtures, equipment,
machinery and other tangible personal property owned by Seller and
located on and used in connection and associated with the ownership,
maintenance, management and operation of the Land and Improvements as
described on Exhibit "B" attached hereto and made a part hereof for all
purposes, excluding, however, Seller's furniture, equipment, machinery,
inventory, trade fixtures and other tangible personal property used by
Seller in the operation of its business located in a portion of the
Improvements (the "Personal Property");
(e) Any and all (i) plans, drawings, specifications, surveys,
architectural, engineering, soils, seismic, environmental and
geological studies and certificates, and other technical descriptions
related to the Improvements (collectively the "Plans"), and (ii)
licenses, permits, governmental approvals, governmental waivers,
development rights or zoning rights or any other similar rights related
to the Land or the Improvements (collectively the "Governmental
Approvals"); and
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(f) All of the lessor's or landlord's interest in any oral or
written leases and any amendments and collateral documents with respect
thereto affecting or relating to the Land and Improvements ("Leases")
and to any security deposits described in the Leases.
The Land, Improvements, Miscellaneous Contracts, Personal Property, Plans,
Governmental Approvals and Leases are sometimes hereinafter referred to
collectively as the "Project").
ARTICLE 2
Purchase Price
Section 2.1 Amount. The Purchase Price (herein so called) for the
Project is and shall be the sum of FIVE MILLION ONE HUNDRED THOUSAND AND NO/100
DOLLARS (5,100,000.00), which shall be due and payable by Purchaser to Seller in
cash at the Closing (hereinafter defined). The payment of the Purchase Price to
Seller must be effectuated by wire transfer or other method sufficient to
provide Seller with "same day" funds on the Closing Date available for overnight
investment by Seller that same day.
ARTICLE 3
Xxxxxxx Money
Section 3.1 Deposit. Within two (2) business days after the effective
date hereof, the Purchaser shall deliver the cash amount of TWO HUNDRED FIFTY
THOUSAND AND NO/100 DOLLARS ($250,000.00) (the "Xxxxxxx Money") to Chicago Title
Insurance Company at 00000 Xxx Xxxxx, Xxx Xxxxxxx, Xxxxx 00000, Attention: Xxxxx
Xxxxx (the "Title Company"). In the event this Contract is closed, the Xxxxxxx
Money shall be applied to the Purchase Price at Closing. In the event this
Contract is not closed, then the Title Company shall disburse the Xxxxxxx Money
in the manner provided for elsewhere herein. The Title Company shall invest the
Xxxxxxx Money in federally insured money market accounts, certificates of
deposit or securities issued or guaranteed by the United States Government, or
in such manner as Purchaser may direct; provided, however, that the Title
Company shall invest the Xxxxxxx Money only in such manner as will allow the
Title Company to disburse the Xxxxxxx Money upon two (2) days notice. All
interest or other earnings on the Xxxxxxx Money shall become a part of the
Xxxxxxx Money and be disbursed to the party entitled to the Xxxxxxx Money.
Section 3.2 Title Company Bound. The Title Company must sign this
Contract as evidence that the Title Company agrees to be bound by the
obligations contained herein with respect to the Xxxxxxx Money. In the event the
Title Company cannot comply with the obligations imposed pursuant to this
Article, as indicated in a written notice to Purchaser and Seller executed by
the Title Company, the Purchaser and Seller shall mutually and reasonably select
another title company on or before the expiration of three (3) days following
written notice by either party to the other that said selection is required,
failing which the Xxxxxxx Money shall
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be returned to the Purchaser and the Contract shall terminate excepting only the
indemnity provisions in Section 7.2 and Section 13.2 hereof.
ARTICLE 4
"AS IS, WHERE IS"
Section 4.1 GENERAL. PURCHASER HEREBY EXPRESSLY ACKNOWLEDGES THAT IT
HAS OR WILL HAVE, PRIOR TO THE END OF THE INSPECTION PERIOD (HEREINAFTER
DEFINED), THOROUGHLY INSPECTED AND EXAMINED THE PROJECT TO THE EXTENT DEEMED
NECESSARY BY THE PURCHASER IN ORDER TO ENABLE THE PURCHASER TO EVALUATE THE
PURCHASE OF THE PROJECT. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE
PURCHASER OF DEVELOPMENTS SUCH AS THE PROJECT AND THAT IT IS RELYING SOLELY ON
ITS OWN EXPERTISE AND THAT OF PURCHASER'S CONSULTANTS, AND THAT PURCHASER WILL
CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROJECT, INCLUDING, BUT NOT
LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY
UPON SAME, AND, UPON CLOSING, SHALL ASSUME THE RISK OF ANY ADVERSE MATTERS,
INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS,
THAT MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INSPECTIONS AND INVESTIGATIONS;
PROVIDED, HOWEVER, THAT, PURCHASER'S ASSUMPTION OF THE RISK AS TO THE
ENVIRONMENTAL CONDITION IS NOT INTENDED TO, NOR SHALL IT BE CONSTRUED TO,
CONSTITUTE AN ASSUMPTION BY PURCHASER OF LIABILITY ASSOCIATED WITH THE
ENVIRONMENTAL CONDITION OF THE PROJECT AS OF THE CLOSING DATE. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT PURCHASER IS ACQUIRING THE PROJECT ON AN AS IS,
WHERE IS AND WITH ALL FAULTS BASIS, WITHOUT REPRESENTATIONS (OTHER THAN THE
REPRESENTATIONS MADE HEREIN), WARRANTIES (OTHER THAN THE WARRANTY OF TITLE UNDER
THE DEED (HEREINAFTER DEFINED) TO BE DELIVERED AT CLOSING) OR COVENANTS, EXPRESS
OR IMPLIED, OF ANY KIND OR NATURE. PURCHASER HEREBY WAIVES AND RELINQUISHES ALL
RIGHTS AND PRIVILEGES ARISING OUT OF, OR WITH RESPECT OR IN RELATION TO, ANY
REPRESENTATIONS, WARRANTIES OR COVENANTS, WHETHER EXPRESS OR IMPLIED, WHICH MAY
HAVE BEEN MADE OR GIVEN, OR WHICH MAY HAVE BEEN DEEMED TO HAVE BEEN MADE OR
GIVEN, BY THE SELLER. EXCEPT AS OTHERWISE PROVIDED HEREIN WITH RESPECT TO THE
ENVIRONMENTAL CONDITION OF THE PROJECT, PURCHASER HEREBY ASSUMES ALL RISK AND
LIABILITY (AND AGREES THAT SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, DIRECT,
INDIRECT, CONSEQUENTIAL OR OTHER DAMAGES) RESULTING OR ARISING FROM OR RELATING
TO THE OWNERSHIP, USE, CONDITION, LOCATION, MAINTENANCE, REPAIR, OR OPERATION OF
THE PROJECT.
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Section 4.2 SPECIFIC. WITHOUT LIMITING THE GENERAL PROVISIONS OF
SECTION 4.1 HEREINABOVE, IT IS UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING
AND SPECIFICALLY DISCLAIMS ANY WARRANTIES (OTHER THAN THE WARRANTY OF TITLE
UNDER THE DEED TO BE DELIVERED AT CLOSING) OR REPRESENTATIONS (OTHER THAN THE
REPRESENTATIONS MADE HEREIN) OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, AS TO
(a) MATTERS OF TITLE (OTHER THAN THE WARRANTY OF TITLE UNDER THE DEED TO BE
DELIVERED AT CLOSING), (b) ZONING, (c) TAX CONSEQUENCES, (d) PHYSICAL OR
ENVIRONMENTAL CONDITIONS, (e) AVAILABILITY OF ACCESS, INGRESS OR EGRESS, (f)
OPERATING HISTORY OR PROJECTIONS, (g) VALUATION, (h) GOVERNMENTAL APPROVALS, (i)
GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING
THE PROJECT, INCLUDING, WITHOUT LIMITATION: (i) THE VALUE, CONDITION,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY, SUITABILITY OR FITNESS FOR A
PARTICULAR USE OR PURPOSE OF THE PROJECT, (ii) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR THE MATERIALS INCORPORATED INTO ANY OF THE PROJECT, AND (iii)
THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROJECT. PURCHASER
FURTHER ACKNOWLEDGES THAT SELLER HAS NOT WARRANTED, AND DOES NOT HEREBY WARRANT,
THAT THE PROJECT NOW OR IN THE FUTURE WILL MEET OR COMPLY WITH THE REQUIREMENTS
OF ANY SAFETY CODE, ENVIRONMENTAL LAW OR REGULATION OF THE STATE OF TEXAS, THE
CITY OF SAN ANTONIO, THE COUNTY OF BEXAR, OR ANY OTHER AUTHORITY OR
JURISDICTION.
Section 4.3 EXCLUDED ITEMS. NOTWITHSTANDING ANY SEEMING CONTRADICTION,
IT IS AGREED AND UNDERSTOOD THAT THE PROVISIONS OF THIS ARTICLE IV ARE LIMITED
SO AS TO NOT BE CONSTRUED AS DIMINISHING OR NEGATING (a) SELLER'S RESPONSIBILITY
FOR ANY REPRESENTATIONS PROVIDED IN ARTICLE VIII HEREOF (BUT ONLY TO THE EXTENT
EXPRESSLY PROVIDED AND FOR THE DURATION STATED), AND (b) ANY WARRANTY OF TITLE
SET FORTH IN THE DEED TO BE DELIVERED BY SELLER TO PURCHASER AT CLOSING.
Section 4.4 INCORPORATION INTO DEED. IT IS AGREED AND UNDERSTOOD THAT
THE TERMS AND PROVISIONS OF THIS ARTICLE IV SHALL EXPRESSLY SURVIVE THE CLOSING
AND NOT MERGE THEREIN AND SHALL BE INCORPORATED INTO THE DEED TO BE DELIVERED BY
SELLER TO PURCHASER AT CLOSING.
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ARTICLE 5
Survey and Title Matters
Section 5.1 Survey. Within five (5) days from the effective date of
this Contract, the Seller shall deliver or cause to be delivered to Purchaser an
as-built survey ("Survey") of the Project, bearing a current or updated
certificate, containing a metes and bounds description of the Land. The Survey
shall be sufficient to permit the Title Company, at Purchaser's sole option and
expense, to modify the standard printed exception in the Owner Policy of Title
Insurance pertaining to discrepancies in area or boundary lines, encroachments,
overlapping of improvements, or similar matters (herein called the "Survey
Exception"). The Survey shall indicate the location of all improvements on the
Land, if any. The Survey shall be staked on the ground, shall comply with the
standards of a Category 1-A, Condition II survey as specified by the latest
edition of the Manual of Practice for Land Surveying published by the Texas
Surveyors Association. In addition, the Survey shall (i) reflect the actual
dimensions of, and area within, the Land, the location of any easements, setback
lines, encroachments, or overlaps thereon or thereover, and the outside boundary
lines of all Improvements, (ii) identify by recording reference all easements,
setback lines, and other matters referred to on the Title Commitment, (iii)
include the surveyor's registered number and seal, and the date of the Survey,
(iv) reflect the roads and highways and accessability to and from the Land from
a publicly dedicated street or road, (v) reflect whether any area within the
Land has been designated by the Federal Insurance Administration, the Army Corps
of Engineers, or any other governmental agency or body as being subject to
special or increased flooding hazards, or that is otherwise a flood hazard area
by reference to the applicable Federal Emergency Management Agency Flood
Insurance Rate Map, and (vi) reflect all improvements and building lines. The
surveyor's certificate shall be in a form and content reasonably acceptable to
Purchaser. The cost of the Survey shall be borne solely by Seller.
Section 5.2 Title Commitment - Review. Within five (5) days from the
effective date of this Contract, the Seller shall furnish to the Purchaser a
current commitment ("Title Commitment") for the issuance of an Owner's Policy of
Title Insurance to the Purchaser from Chicago Title Insurance Company ("Title
Company"), together with true, correct and legible copies of all documents
constituting exceptions to Seller's title as reflected in the Title Commitment.
Purchaser shall have a period of ten (10) days from the last to be delivered of
each of the Survey and Title Commitment in which to review such items and to
deliver to Seller in writing such reasonable objections as Purchaser may have to
anything contained or set forth in the Title Commitment, title exception
documents or Survey. Any items to which Purchaser does not object within such
period shall be deemed to be permitted exceptions ("Permitted Exceptions"). In
the event Purchaser timely objects to any matter contained in the Title
Commitment, title exception documents and/or the Survey as hereinabove provided,
Seller shall have a reasonable period of time after receipt of Purchaser's
objections within which Seller may attempt to cure such objections specified as
aforesaid by Purchaser, provided, however, Seller shall be under no obligation
to incur any costs whatsoever in connection with such cure, except
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to pay off any hens voluntarily created by Seller or created in connection with
work performed on, or materials delivered to, the Project on Seller's behalf.
Section 5.3 Title Policy. At Closing, the Seller shall cause the Title
Company to modify (by interlineation or otherwise) the Title Commitment so as to
then reflect a current commitment by the Title Company to issue to Purchaser an
Owner's Policy of Title Insurance (the "Title Policy") on the standard form in
use in the State of Texas, insuring good and indefeasible title to the Land and
Improvements in the Purchaser, subject only to the Permitted Exceptions and the
standard printed, exceptions, except:
(a) The exception relating to restrictions against the Project
shall be deleted, except for such restrictions as may be included in
the Permitted Exceptions; and
(b) The exception relating to ad valorem taxes shall except
only to standby fees and taxes owing for the current and subsequent
years and subsequent assessments for prior years due to change in land
usage or ownership.
Without limiting the foregoing, Purchaser acknowledges and agrees that, to the
extent Purchaser desires the Survey Exception to be modified in the Title
Policy, such shall be undertaken at the sole expense of Purchaser. The standard
premium for the Title Policy shall be paid for by Seller, at Closing, as a
closing statement debit.
ARTICLE 6
Informational Items
Section 6.1 Submission Items. Within three (3) days from the effective
date of this Contract, Seller shall, at Seller's sole cost and expense, deliver
to Purchaser, to the extent available to Seller, copies of. (a) a current rent
roll ("Rent Roll") with respect to each of the Leases showing the (i) suite
number, (ii) name of tenant, (iii) approximate number of square feet contained
in such suite, (iv) the monthly rental, (v) the commencement and termination
dates of the lease, (vi) the amount of such tenant's security deposit, (vii) the
date through which the tenant's rental is paid, (viii) any prepaid or delinquent
rents, (ix) the amount and description of any cash rebate, free rent, or other
tenant concession (whether previously or promised for the future), (x) renewal
options, if any, and (xii) unpaid brokerage commissions, if any, attributable to
the lease; which rent roll shall be certified by an authorized officer of
Seller's management company, as being true, complete and correct in all material
respects as of the date shown on the rent roll; (b) the Miscellaneous Contracts;
(c) income and expense statements broken down on a monthly basis showing all
income and all expenses incurred and/or accrued, including, but not limited to,
utility, tax, insurance and maintenance costs, associated with the ownership and
operation of the Project for the period of ownership of the Project by Seller
(provided, however, Seller's submission of a copy of the general ledger is
sufficient to satisfy this requirement); (d)
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copies of all plans and specifications for Improvements in Seller's possession;
(e) true, correct, legible and complete copies of fully executed Leases,
including, without limitation, all amendments or addenda thereto; (f) to the
extent of Seller's possession, all licenses and permits with respect to the
ownership and operation of the Project, including, without limitation, building
permits, notices of completion, certificates of completion and certificates of
occupancy for the Improvements; (g) to the extent of Seller's possession, copies
of all reports or studies (including, without limitation, appraisals,
engineering reports, inspection reports, soil tests, soil reports, environmental
reports and evaluations, and all other reports, tests, and studies) pertaining
to the development, construction, maintenance, or operation of the Project in
Seller's, or Seller's management company's, possession or control; (h) to the
extent of Seller's possession, copies of all real estate and personal property
tax statements and valuation notices for the Project for 1995 and 1996; (i) all
other pertinent information in Seller's possession relating to the Project.
Seller warrants and represents that the information contained in items (a), (b),
(c), and (e) is true, correct and complete in all material respects. SELLER
EXPRESSLY MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE ACCURACY OR
COMPLETENESS OF THE INFORMATION FURNISHED TO PURCHASER PURSUANT TO ITEMS (d),
(f), (g), (h), AND (i), AND, FURTHER, PURCHASER HEREBY AGREES THAT SUCH
INFORMATION SHALL BE PROVIDED ON AN "AS IS" BASIS AND SELLER SHALL HAVE NO
OBLIGATION TO COMPILE OR UPDATE SUCH DATA OR REPORTS.
In the event Seller delays in providing any of the material described
in the above paragraph, the Inspection Period (defined below) shall be extended
by tile number of days equal to the number of days Seller delays in providing
said material past said three day period.
ARTICLE 7
Inspection and Audit
Section 7.1 Scope of Inspection. The Seller agrees that Purchaser shall
be entitled to enter upon the Project and to conduct such inspections and audits
as Purchaser may desire, including, without limitation, engineering and economic
feasibility studies, provided, however, (a) Purchaser shall provide Seller at
least twenty-four (24) hours prior written notice of its election to conduct any
such on-site inspection; (b) Purchaser shall not enter any suite except under
the supervision of Seller or one of Seller's management representatives; and (c)
Purchaser shall not undertake any invasive testing procedures with respect to
the Improvements or any portion of the Project without Seller's prior written
permission which shall not be unreasonably withheld or delayed. In undertaking
any inspection hereunder, Purchaser will treat, and will cause any
representative of Purchaser to treat, all information obtained by Purchaser
pursuant to the terms of this Contract as strictly confidential. Further, in the
event Purchaser refuses or is unable to close under this Contract, Purchaser
shall keep confidential all information obtained pursuant to this Contract and
shall not disclose such information to anyone without the prior written consent
of Seller. Further, in the event Purchaser refuses or is unable to close under
this
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Contract, for any reason whatsoever, any and all studies or tests, including,
but without limitation, soil tests, topographical information, structural tests,
engineering and economic feasibility studies or other similar preliminary work,
shall immediately be delivered to Seller and thereafter become the sole property
of Seller, upon payment to Purchaser by Seller of all amount equal to the
out-of-pocket expenses incurred by Purchaser for the same.
Section 7.2 Indemnity. Purchaser hereby indemnities and holds Seller
harmless from and against any loss, damage, injury, claim or cause of action
Seller may suffer or incur as a direct result of the presence on the Project of
Purchaser, Purchaser's agents or independent contractors, including, without
limitation, (i) any and all attorneys' fees incurred by Seller as a result of a
claim relating to such matters, or (ii) any mechanics' or materialmen's liens
imposed against all or any portion of the Project by a party claiming to be
performing an inspection or audit on Purchaser's behalf during the term of this
Contract.
Section 7.3 Inspection Period. The Purchaser shall have thirty (30)
days from the effective date hereof (the "Inspection Period") within which to
make any and all inspections of the Project and audits as Purchaser may desire.
In the event Purchaser shall notify Seller in writing on or before the
expiration of the Inspection Period that Purchaser, for any reason whatsoever,
does not desire to consummate this Contract, then, and in such event, this
Contract shall terminate, whereupon the Xxxxxxx Money shall be immediately
returned to the Purchaser by the Title Company (except to the extent of $100.00,
which shall be paid to Seller as independent contract consideration for Seller
entering into this Contract), and the parties hereto shall have no further
obligations to the other hereunder except pursuant to the indemnity provisions
of Section 7.2 and Section 13.2 hereof. Absent Purchaser's timely written notice
to Seller of Purchaser's election to so terminate this Contract as aforesaid,
then, and in such event, Purchaser shall have waived any and all claim
whatsoever to terminate this Contract pursuant to this Article 7, and shall
proceed to a Closing hereunder.
ARTICLE 8
Performance of Finish-Out
Section 8.1 Seller's Finish-Out Obligation. During the term of the
Lease, Seller must substantially complete the Seller's Improvements. As used
herein, the term "Seller's Improvements" shall mean the finish-out of the
portion of the Improvements (the "Warehouse Space") depicted on Exhibit "D",
attached hereto and made a part hereof for all purposes, so that the Warehouse
Space is "finished out" to a standard of quality that is consistent with either
the space in the Improvements occupied by Seller for office purposes, or the
space occupied by other presently existing tenants for retail purposes.
Section 8.2 Letter of Credit. At the Closing (as hereafter defined)
Seller shall deliver to Purchaser an irrevocable standby Letter of Credit (the
"Letter of Credit") in the form attached hereto as Exhibit "E" to secure
completion of Seller's Improvements. Upon completion of
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Seller's Improvements, Purchaser shall return the original Letter of Credit to
Seller. Purchaser's covenant to return the Letter of Credit upon completion of
Seller's Improvements shall survive the Closing.
ARTICLE 9
Environmental Provisions
Section 9.1 Environmental Definitions. As used herein, the term
"Applicable Environmental Laws" shall mean any local, state or federal law, rule
or regulation, pertaining to environmental regulation, contamination, cleanup or
disclosure, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et
seq.), the Resource, Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.), Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 00-000 000
Stat. 1613), the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.),
the Emergency Planning and Community Right to Know Act of 1986 (42 U.S.C.
Section 1101 et seq.) and all amendments of the foregoing, or any state super
lien or environmental clean-up or disclosure statutes. As used herein, the term
"Hazardous Substances" shall mean all substances and materials which are
included under or regulated by any Applicable Environmental Law together with
asbestos, polychlorinated biphenyls, petroleum products and raw materials which
include hazardous constituents.
Section 9.2 Inspection by Purchaser. Purchaser acknowledges that Seller
is providing Purchaser with an opportunity to thoroughly inspect the Project
during the Inspection Period for all purposes, including, any concerns with
respect to any past, current or future violation of Applicable Environmental
Laws or with respect to the presence, either now or in the past, of any
Hazardous Substances at the Project. As additional consideration for the
transaction contemplated by this Contract, Purchaser agrees that it will provide
to Seller immediately following the receipt of same by Purchaser copies of any
and all reports, tests or studies relative to the Project and involving,
directly or indirectly, Applicable Environmental Laws or the presence or absence
of Hazardous Substances at the Project.
ARTICLE 10
Casualty or Condemnation Prior to Closing
Section 10.1 Casualty. In the event the Improvements should be damaged
by any casualty prior to Closing, and the cost of repairing such damage, as
estimated by an independent third party insurance adjuster, is:
(a) less than or equal to FIFTY THOUSAND AND NO/100 DOLLARS
($50,000.00), then the Seller shall assign all of Seller's interest in
and to any insurance
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proceeds received or to be received by Seller by virtue of such
casualty, together with the amount of any applicable deductible under
such insurance policy; or
(b) more than FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00),
then either Seller or Purchaser may elect to terminate this Contract
within ten (10) days of such casualty whereupon Purchaser shall
immediately be provided a full refund of the Xxxxxxx Money and neither
party hereto shall owe any further obligations one to the other
hereunder, excepting only the indemnity provisions in Section 7.2 and
Section 13.2 hereof. If neither party elects to so terminate this
Contract, then the Closing shall occur as scheduled, whereupon Seller
shall assign all of Seller's interest in and to any insurance proceeds
received or to be received by Seller by virtue of such casualty,
together with the amount of any applicable deductible under such
insurance policy.
Section 10.2 Condemnation. In the event of a taking by condemnation or
similar proceedings or actions of all or any portion of the Project, Purchaser
shall have the option to terminate this Contract upon written notice to Seller
within ten (10) days of such condemnation, in which event the Xxxxxxx Money
shall be promptly refunded by the Title Company to Purchaser, and neither
Purchaser nor Seller shall have any further rights or obligations hereunder
except with respect to the indemnities provided in Section 7.2 and Section 13.2.
If Purchaser does not exercise its option to so terminate this Contract, then
the Contract shall remain in full force and effect and Seller shall assign or
pay to Purchaser at Closing Seller's interest in and to any and all condemnation
awards or proceeds from any such proceedings or actions in lieu thereof.
ARTICLE 11
Seller's Representations and Covenants
Section 11. Representations. Seller makes the following
representations, as of the date of this Contract:
(a) Title. Seller owns, or shall at Closing own, good and
indefeasible title to the Land and Improvements.
(b) Authority. Seller is duly organized and validly existing
under the laws of the state of its organization and has all requisite
power and authority to enter into and perform this Contract. Each
person executing this Contract on behalf of Seller warrants that he/she
has all requisite authority to do so.
(c) Foreign Investor Disclaimer. Seller is not a "foreign
person", as such term is defined in Section 1445 of the Internal
Revenue Code of 1954, as amended, and the regulations promulgated
thereunder ("Code"), and the sale of the Project is not subject to the
federal income tax withholding requirements of such section of the
Code.
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(d) No Litigation. No actions, suits, investigations,
litigation, bankruptcy, reorganization or other proceedings are pending
at law or in equity or before any federal, state, territorial,
municipal or other government department, commission, board, bureau,
agency, courts or instrumentality, or to the best of Seller's
knowledge, are threatened in writing against or affecting Seller which
would prohibit Seller from selling the Project.
(e) No Options. To the best of Seller's knowledge, the Project
is not subject to any outstanding agreement(s) of sale, option(s) or
other right(s) of third parties to acquire any interest therein.
(f) Seller has received no notice that the Project is in
violation of, or subject to any existing, pending, or threatened
investigation or inquiry by any Authority or any remedial obligations
under any applicable laws, statutes, regulations, rules, ordinances,
codes, permits or orders of any governmental agencies, departments,
commissions, boards, bureaus, or instrumentalities of the United
States, the State of Texas and its political subdivisions and all
applicable judicial, administrative and regulatory decrees and
judgments pertaining to the protection of health or safety or the
environment ("Governmental Laws").
(g) To the best of Seller's knowledge, there are no leases
affecting the Project, oral or written, except the Leases delivered to
Purchaser pursuant to Section 6.1 hereof Copies of the Lease delivered
to Purchaser prior to the date hereof are true, correct and complete
copies thereof. All Leases are in full force and effect in all material
respects. Except for the Tenants under the Leases and Seller, there are
currently no other parties in possession of the Project.
(h) To the best of Seller's knowledge, there are no
Miscellaneous Contracts or other contracts or agreements affecting the
Project, oral or written, except those delivered to Purchaser pursuant
to Section 6.1 hereof. To the best of Seller's knowledge, all the
Miscellaneous Contracts are in full force and effect in all material
respects in accordance with their respective terms. To the best of
Seller's knowledge, the copies of the Miscellaneous Contracts delivered
to Purchaser are true, correct and complete copies thereof.
(i) There are no employees of Seller engaged in the operation
or maintenance of the Project for whom Purchaser will be responsible
after Closing.
(j) Seller's Knowledgeable Party (as defined herein) has
received no notice of taking, condemnation, betterment or assessment,
actual or proposed, with respect to the Project, and none has occurred.
(k) To the best of Seller's knowledge, the Project has not
been damaged by fire or other casualty except for such damage which has
been fully repaired and restored
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prior to the date of this Agreement and Seller's knowledge, Party has
received no notice from any insurance carrier of defects or
inadequacies in the Project which if not corrected would result in
termination of insurance coverage or increase its cost in any material
respect.
For purposes of this Contract, the phrase "to the best of Seller's knowledge"
shall mean the actual conscious knowledge of Mr. Xxxx Xxxxxxx ("Seller's
Knowledgeable Party"). The phrase does not obligate Seller's Knowledgeable Party
to make any investigation or inquiry, but does obligate Seller to make a
reasonable inquiry of Seller's Knowledgeable Party to determine if he has
knowledge relating to any of the representations or warranties made in this
Section 7.1.
Section 11.2 No Survival. It is expressly understood and agreed that
each and every representation or warranty included within this Contract shall
only remain viable during the term of this Contract and, upon the effectuation
of Closing, shall merge into the documents of Closing and thereafter have no
further force or effect.
Section 11.3 Covenants of Seller. Seller hereby covenants as follows:
(a) During the term of this Agreement, Seller shall not offer
the Project for sale, or in any way affect the condition of the title
of the Project without the prior written approval of the Purchaser.
(b) Between the date hereof and the Closing, Seller shall
fulfill all of its obligations under all Miscellaneous Contracts in all
material respects, and will not enter into any new contractual
obligations relating to the Project that may not be terminated on
thirty (30) days notice.
(c) Seller shall immediately notify Purchaser of any material
change, which Seller's Knowledgeable Party knows of, from the date
hereof to the Closing Date with respect to fire damage, casualty or
condemnation of the Project.
(d) Seller will cause fire and extended coverage insurance
relating to the Project to be maintained in full force and effect at an
amount not less than the full replacement cost of the Project.
(e) Seller will cause the Improvements and Personal Property
to be maintained in the condition in which they exist as of the date of
this Contract, except for normal wear and tear.
(f) Seller will continue to maintain, operate and manage the
Project in substantially the same manner that Seller has heretofore
maintained and operated the Project.
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(g) Seller agrees to cooperate with Purchaser's lender and to
provide such financial or other information to Purchaser's lender
regarding ownership and operation of the Project as Purchaser's lender
may reasonably request.
ARTICLE 12
Closing
Section 12.1 Time and Place. The exchange of documents and funds (the
"Closing") hereinafter described shall take place at 10:00 a.m. San Antonio,
Texas time at the offices of Chicago Title Insurance Company at 00000 Xxx Xxxxx,
Xxx Xxxxxxx, Xxxxx 00000. The date of Closing ("Closing Date") shall be the
sixtieth (60th) day following the expiration of the Inspection Period, or on
such earlier date as may be mutually agreed to.
Section 12.2 Seller Delivery. At the Closing, Seller shall deliver or
cause to be delivered to Purchaser, at Seller's sole cost and expense, each of
the following items:
(a) A Special Warranty Deed (the "Deed") duly executed and
acknowledged by Seller, and in form for recording, conveying good and
indefeasible title in the Land and Improvements to Purchaser, subject
only to the Permitted Exceptions.
(b) A Blanket Conveyance, Xxxx of Sale and Assignment
("Blanket Conveyance"), duly executed by Seller, quitclaiming (without
any warranty whatsoever) and assigning to Purchaser all of Seller's
rights, title and interest, if any, in the Trade Name and in all
Miscellaneous Contracts.
(c) The final revised Title Commitment in the form specified
in Section 5.3 hereof, with the premium for the Title Policy having
been paid by Seller as a debit on Seller's Closing Statement.
(d) A Certification as to Non-Foreign Status of Seller.
(e) A lease agreement (the "Lease") in the form attached
hereto as Exhibit "C", duly executed by Seller.
(f) The Letter of Credit, duly executed by Seller.
(g) An Assignment of Tenant Leases and Assumption Agreement in
a form approved by Seller and Purchaser prior to the expiration of the
Inspection Period, fully executed by Seller, assigning, conveying and
transferring to Purchaser all of the Leases referred to therein.
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(h) An updated and certified Rent Roll dated not earlier than
five (5) days prior to Closing.
(i) Tenant estoppel certificates from all tenants under the
Leases.
(j) All additional documents and instruments as in the mutual
and reasonable opinion of Seller's and Purchaser's counsel are
reasonably necessary to the proper consummation of this transaction.
Section 12.3 Purchaser Delivery. At the Closing, Purchaser, at
Purchaser's sole cost and expense, shall deliver to Seller the following items:
(a) The Purchase Price in the amount and manner required by
Section 2.1 hereof;
(b) Purchaser's executed version of the Blanket Conveyance
assuming all obligations accruing under the Miscellaneous Contracts
from and after the Closing Date;
(c) The Lease executed by Purchaser;
(d) Assignment of Tenant Leases and Assumption Agreement in a
form approved by Seller and Purchaser prior to the expiration of the
Inspection Period, fully executed by Purchaser, assigning, conveying
and transferring back to Seller all of the Leases referred to therein;
(e) Such evidence or documents as may reasonably be required
by the Seller or the Title Company evidencing the status and capacity
of Purchaser and the authority of the person or persons who are
executing the various documents on behalf of the Purchaser in
connection with the sale of the Property.
Section 12.4 Possession. Possession of the Project shall be delivered
to Purchaser by Seller at the Closing, subject only to the Lease and Such rights
of others as have been expressly disclosed herein.
Section 12.5 Reporting Person. Each of Seller and Purchaser hereby
designate the Title Company as the "Reporting Person" as such term is utilized
in Section 6045 of the Code and regulations thereunder. Purchaser agrees to
provide the Title Company with such information as may be required for the Title
Company to file a Form 1099 or other required form relative to the Closing with
the Internal Revenue Service. A copy of the filed Form 1099 or other filed form
shall be provided to Seller and Purchaser simultaneously with its being provided
to the Internal Revenue Service.
Section 12.6 Costs and Expenses. All costs and expenses in connection
with the transaction contemplated by this Contract shall, except as otherwise
expressly provided herein,
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be borne by Seller and Purchaser in the manner in which such costs and expenses
are customarily allocated between the parties at closings of the purchase or
sale of real property similar to the Project in the San Antonio, Texas area.
ARTICLE 13
Real Estate Commission
Section 13.1 Commission. Seller and Purchaser covenant and agree one
with the other that no real estate commissions, finders' fees or brokers' fees
have been or will be incurred in connection with the Contract or the sale
contemplated hereby, except for a commission (the "Commission") to CB Commercial
Real Estate ("Broker") equal to four percent (4%) of the Purchase Price, which
Commission shall be payable in accordance with a separate commission agreement
executed by and between Seller and Broker.
Section 13.2 Indemnity. Each party hereto represents to the other that,
except as set forth above in the immediately preceding Section, such respective
party has not authorized any broker or finder to act on such party's behalf in
connection with the sale and purchase hereunder. Each party hereto agrees to
indemnify and hold harmless the other party from and against any and all claims,
losses, damages, costs or expenses of any kind or character arising out of or
resulting from any agreement, arrangement or understanding (except as set forth
in the immediately preceding Section) alleged to have been made by such party
with any broker or finder in connection with this Contract or the transaction
contemplated hereby. This obligation shall survive the Closing or any earlier
termination of this Contract.
Section 13.3 Title. Purchaser acknowledges that, at the time of
execution of this Contract, the Broker advised Purchaser that Purchaser should
have the abstract covering the Project examined by an attorney of Purchaser's
own selection or that Purchaser should be furnished with or obtain a policy of
title insurance.
ARTICLE 14
Remedies of Default
Section 14.1 Seller Default. In the event all conditions of this
Contract are satisfied by Purchaser in all material respects (if Purchaser's
obligation) or waived and in the event all covenants and agreements to be
performed by Purchaser prior to Closing are fully performed in all material
respects, and in the further event that performance of this Contract is tendered
by the Purchaser and the sale is not consummated through default on the part of
the Seller on the Closing Date, then Purchaser shall be entitled to either (i)
enforce specific performance hereunder, or (ii) the return of the Xxxxxxx Money
and to seek recovery of its actual and reasonable out-of-pocket expenses
incurred in this transaction, said expenses not to exceed
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$50,000.00. The remedies set forth in this Section 14.1 shall be Purchaser's
sole and exclusive remedies.
Section 14.2 Purchaser Default. In the event of Purchaser's default
hereunder, Purchaser shall immediately deliver to Seller au information
delivered by Seller to Purchaser in accordance with Section 6.1. Further, the
Xxxxxxx Money shall in such event be paid to the Seller by the Title Company, as
liquidated damages for the Purchaser's default. Such amount is agreed upon by
and between the Seller and the Purchaser as liquidated damages, due to the
difficulty and inconvenience of ascertaining and measuring actual damages, and
the uncertainty thereof, and no other damages, rights or remedies shall in any
case be collectible, enforceable or available to the Seller other than in this
Article 14 defined, but the Seller shall accept said cash payment as the
Seller's total damages and relief by virtue of Purchaser's default hereunder.
THE REMEDIES SET FORTH IN THIS SECTION 14.2 SHALL BE SELLER'S SOLE REMEDIES;
PROVIDED, HOWEVER, THE INDEMNITIES PROVIDED IN SECTIONS 7.2 AND 13.2 HEREOF AND
ANY SUMS DUE PURSUANT TO SECTION 15.10 HEREOF SHALL CONSTITUTE SEPARATE
AGREEMENTS AND CAUSES OF ACTION IN ADDITION TO ANY LIQUIDATED DAMAGES DESCRIBED
HEREINABOVE.
ARTICLE 15
Miscellaneous
Section 15.1 Notices. All notices, demands, or other communications of
an type (herein collectively referred to as "Notices") given by the Seller to
the Purchaser or by the Purchaser to the Seller, whether required by this
Contract or in any way related to the transactions contracted for herein, shall
be void and of no effect unless given in accordance with the provisions of this
Section 15.1. All notices shall be in writing and delivered to the person to
whom the notice is directed, either in person (provided that such delivery is
confirmed by the courier delivery service), or by expedited delivery service
with proof of delivery, or by United States mail, postage prepaid, as a
Registered or Certified item, Return Receipt Requested. Notices delivered by
personal delivery shall be deemed to have been given at the time of such
delivery and notices delivered by mail shall be effective when deposited in a
Post office or other depository under the care or custody of the United States
Postal Service, enclosed in a wrapper with proper postage affixed and addressed,
as provided below. Notice may additionally be provided by facsimile transmission
so long as a copy of such notice is simultaneously forwarded by one of the other
means described above. Facsimile notice shall be effective upon receipt at the
facsimile station indicated below. The proper address and facsimile number for
Purchaser is as follows:
Xxxx X. Xxxxx
JDB Real Properties, Inc.
000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
Phone No. (000) 000-0000
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with copy to: Xxxxxxx X. Xxxxx
Xxxxx, Vine & Perry
000 Xxxxxxxx Xxx.
Xxxxxx, Xxxxx 00000
Fax No. (000) 000-0000
Phone No. (000) 000-0000
The proper address and facsimile number for Seller is as follows:
Eye Care Centers of America, Inc.
00000 Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000-0000
Fax No. (000) 000-0000
Phone No. (000) 000-0000
with copy to: Xxxxx X. XxXxxxxxx
Xxx & Xxxxx Incorporated
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Fax No. (000) 000-0000
Any party hereto may change the address for notice specified above by giving the
other party ten (10) days' advance written notice of such change of address.
Section 15.2 Confidentiality. Seller, Purchaser, Broker and Title
Company agree not to cause any public announcements to be made of the execution
of this Contract or the Closing of this transaction, and further agree not to
disclose to any party the Purchase Price payable hereunder. Seller and Purchaser
further agree not to disclose to any unrelated third party, any of the facts
concerning the execution and delivery of this Contract or the consummation of
the purchase and sale contemplated hereby. Notwithstanding the foregoing,
Seller, Purchaser or Title Company may disclose any aspect of this transaction
to any governmental agency, or any officer thereof , upon proper request or
requirement therefor, where required, in accordance with applicable law.
Section 15.3 Effective Date. For purposes of determining the time for
performance of various obligations under this Contract, the effective date of
this Contract shall be the later of the date this Contract is last executed by
Seller or Purchaser.
Section 15.4 Successors and Assignment. This Contract shall be binding
upon and inure to the benefit of the parties and their respective heirs, legal
representatives, and permitted successors and assigns. The rights of Purchaser
under this Contract are not assignable without the prior written consent of
Seller, which consent may be granted or withheld at Seller's sole discretion.
Notwithstanding the preceding sentence, Purchaser may assign its rights under
this Contract to any Affiliate. For the purposes of this Contract, the term
"Affiliate" shall mean, (a)
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any Person who directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or under common control with, Purchaser; (b) any
Related Person of Purchaser. The term "Person" shall mean an individual,
partnership, corporation, unincorporated organization, limited liability
company, trust, estate or joint venture. The term "Related Person" shall mean
any Person directly or indirectly owning ten (10%) percent or more of the
outstanding voting Common Stock of Purchaser. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract, or otherwise.
Section 15.5 No Recordation. Seller and Purchaser hereby acknowledge
that neither this Contract nor any memorandum or affidavit thereof shall be
recorded of public record in Bexar County, Texas or any other County in Texas.
Should Purchaser ever record or attempt to record this Contract, or a memorandum
or affidavit thereof, or any other similar document, then, notwithstanding
anything herein to the contrary, said recordation or attempt at recordation
shall constitute a default by Purchaser hereunder, and, in addition to the other
remedies provided for herein, Seller shall have the express right to terminate
this Contract by filing a notice of said termination in the applicable real
property records for Bexar County, Texas.
Section 15.6 Governing Law. THIS CONTRACT SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE
OBLIGATIONS OF THE PARTIES HERETO ARE AND SHALL BE PERFORMABLE IN THE COUNTY
WHEREIN THE PROJECT IS LOCATED. BY EXECUTING THIS CONTRACT, EACH PARTY HERETO
EXPRESSLY (a) CONSENTS AND SUBMITS TO PERSONAL JURISDICTION CONSISTENT WITH THE
PREVIOUS SENTENCE, (b) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CLAIM
OR DEFENSE THAT SUCH VENUE IS NOT PROPER OR CONVENIENT, AND (c) CONSENTS TO THE
SERVICE OF PROCESS IN ANY MANNER AUTHORIZED BY TEXAS LAW. ANY FINAL JUDGMENT
ENTERED IN AN ACTION BROUGHT HEREUNDER SHALL BE CONCLUSIVE AND BINDING UPON THE
PARTIES HERETO.
Section 15.7 No Oral Modification. This Contract may not be modified or
amended, except by an agreement in writing signed by both the Seller and the
Purchaser.
Section 15.8 No Oral Waiver. The parties may waive any of the
conditions contained herein or any of the obligations of the other party
hereunder, but any such waiver shall be effective only if in writing and signed
by the party waiving such conditions or obligations.
Section 15.9 Time of Essence. Time is of the essence of this Contract.
Section 15.10 Attorneys' Fees. In the event it becomes necessary for
either party hereto to file a suit to enforce this Contract or any provisions
contained herein, the party prevailing in such action shall be entitled to
recover, in addition to all other remedies or damages, reasonable attorneys'
fees and court costs incurred by such prevailing party in such suit.
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Section 15.11 Headings. The descriptive headings of the various
Articles and Sections contained in this Contract are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 15.12 Contract as Offer. Seller's execution of this Contract
and provision of same to Purchaser shall be deemed an offer to sell the Project
consistent with the terms and provisions of this Contract. To the extent
Purchaser should fail to execute this Contract and return an original signed
version of same back to Seller within three (3) days of Seller's execution of
this Contract, then such offer shall be deemed rescinded without further action
by Seller.
Section 15.13 Total Agreement. This Contract constitutes the entire
agreement among the parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings of the
parties in connection therewith. No representation, warranty, covenant,
agreement or condition not expressed in this Contract shall be binding upon the
parties hereto or shall affect or be effective to interpret, change or restrict
the provisions of this Contract.
Section 15.14 Partial Invalidity. If any clause or provisions of this
Contract is or should ever be held to be illegal, invalid, or unenforceable
under any present or future law applicable to the terms hereof , then and in the
event, it is the intention of the parties hereto that the remainder of this
Contract shall not be affected thereby, and that in lieu of each such clause or
provision of this Contract that is illegal, invalid, or unenforceable, there be
added as a part of this Contract a clause or provision as similar in terms to
such illegal, invalid, or unenforceable clause or provision as may be possible
and be legal, valid, and enforceable.
Section 15.15 Counterpart Execution. To facilitate execution, this
Contract may be executed in as many counterparts as may be convenient or
required. It shall not be necessary that the signature of all persons required
to bind any party, appear on each counterpart. All counterparts shall
collectively constitute a single instrument. It shall not be necessary in making
proof of this Contract to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, each of the parties
hereto. Any signature page to any counterpart may be detached from such
counterpart without impairing the legal effect of the signatures thereon and
thereafter attached to another counterpart identical thereto except having
attached to it additional signature pages.
Section 15.16 Holidays. In the event that the date upon which any
duties or obligations hereunder to be performed shall occur upon a Saturday,
Sunday or legal holiday, then, in such event, the due date for performance of
any duty or obligation shall thereupon be automatically extended to the next
succeeding business day.
Section 15.17 1031 Exchange. Seller agrees to cooperate with Purchaser
in effecting for the benefit of Purchaser, or an entity affiliated with
Purchaser or Purchaser's assignee, a
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simultaneous or delayed like-kind exchange of real property pursuant to Section
1031 of the Internal Revenue Code of 1986, as amended, and similar provisions of
applicable state law. Seller agrees to execute such further documents as are
reasonably necessary to effect a Section 1031 exchange for the benefit of
Purchaser (or Purchaser's affiliate or assignee) provided that Seller shall not
be obligated to delay the Closing, and all additional costs in connection with
exchange shall be borne by the Purchaser (or Purchaser's affiliate or assignee).
Seller will incur no personal or corporate liability with respect to any such
exchange documentation.
EXECUTED on this the 29th day of May, 1997 by Purchaser.
JDB REAL PROPERTIES, INC.,
a Texas corporation
By:/s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxx, President
EXECUTED on this the day of May, 1997 by Seller.
-----------
EYE CARE CENTERS OF AMERICA, INC.
a Texas corporation
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Printed Name: Xxxx Xxxxxxx
---------------------------
Title: Chief Financial Officer
----------------------------------------
The Contract has been received by the Title Company this the 30th day of June,
1997. The undersigned Title Company agrees to be bound by the provisions of this
Contract, including those described in Article 3 hereof
CHICAGO TITLE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxx
----------------------------------------
Printed Name: Xxxxx Xxxxx
----------------------------
Title:Escrow Officer
----------------------------------------
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BROKER'S AGREEMENT RELATING TO
CONTRACT FOR PURCHASE AND SALE ("CONTRACT")
DATED MAY , 1997
--------
By and Between
Eye Care Center of America, as Seller,
and
Xxxxx Properties, as Purchaser,
Pertaining to Project in San Antonio, Bexar County, Texas
Although not a party to the foregoing Contract, Broker hereby approves, and
agrees to be bound by, the terms and provisions of Section 14.2 pertaining to
nondisclosure and Section 12.1 pertaining to the amount and manner of payment of
the real estate sales commission, and Broker agrees to accept such commission in
full and complete satisfaction of all fees, commissions or other compensation
due Broker in connection with the purchase and sale of the Property.
Additionally, Broker hereby approves and agrees to be bound by the terms of
Section 12.3.
BROKER:
CB COMMERCIAL REAL ESTATE
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
License No.:
--------------------------
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EXHIBIT "A"
Land Description
An approximately 68,434 net rentable square foot office building located at
00000 Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx, legally described as Xxx 00, Xxxxx 00,
XXX 00000 Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx.
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EXHIBIT B
All heating, ventilating and air conditioning equipment used in connection with
the Improvements
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EXHIBIT "C"
COMMERCIAL LEASE AGREEMENT
THIS LEASE AGREEMENT (this "lease" or "Lease"), made and entered into
by and between JDB REAL PROPERTIES, INC., a Texas corporation ("Landlord"), and
EYE CARE CENTERS OF AMERICA, INC., a Texas Corporation ("Tenant");
W I T N E S S E T H:
1. Premises and Term and Condition of Premises.
A. In consideration of the obligation of Tenant to pay rent as
herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby accepts and leases from Landlord, for the term stated herein, certain
Premises situated within the County of Bexar, State of Texas, more particularly
described on Exhibit "A" attached hereto and incorporated herein by reference,
together with all rights, privileges, easements and appurtenances belonging to
or in any way pertaining to the Premises and together with the buildings and
other improvements situated upon said Premises (said real property, buildings
and improvements hereinafter referred to as the Premises), subject to all leases
pertaining to the Premises, recorded or unrecorded, existing as of the date
hereof (the Existing Leases").
B. TO HAVE AND TO HOLD, subject to the Existing Leases, the
same for a term commencing on __________, 1997 (the "Commencement Date"). The
term of this Lease (the "Term") shall begin on the Commencement Date and
continue until __________, 2012 (the "Termination Date").
2. Rent.
Tenant agrees to pay to Landlord rent (the "Rent") for the
Premises in advance, without demand, as follows (the rental payment for any
fractional calendar month during the lease period being prorated):
(1) From the Commencement Date, the Rent shall accrue at the
rate of, and be payable in regularly and monthly payments of, $46,750.00 per
month, said payments to be adjusted pursuant to subparagraph 2(A)(2) below. The
first payment of rent shall be due on the Commencement Date. Thereafter,
payments shall be due on the first day of each calendar month, commencing on the
first day of the month succeeding the month in which the Commencement Date
occurs, until the Termination Date.
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(2) On each of __________, 2000; __________, 2003; __________,
2006; and __________, 2009 (each being individually referred to as an
"Adjustment Date"), the amount of monthly payment of Rent shall be adjusted by
multiplying the most recent amount of monthly payment of Rent by the CPI
Adjustment Factor; provided, however, in no event shall the Rent, as adjusted by
the CPI Adjustment Factor, be less than the Rent for the previous month. As used
herein, the term "CPI Adjustment Factor" shall mean, for any Adjustment Date,
the amount derived by dividing the CPI (as herein defined) most recently
published as of the first day of the year of the Adjustment Date in question by
the CPI most recently published as of the first day of the year of Commencement
Date. For purposes hereof "CPI" means the Consumer Price Index of Urban
Consumers, Dallas-Fort Worth Area (all items 1982 - 1984 = 100), published by
the United States Department of Labor, Bureau of Labor Statistics (the
"Bureau"). If the CPI should ever cease to be published by the Bureau during the
lease term, the CPI Adjustment Factor shall be computed by using an economic
index selected by Tenant, of generally recognized standing, that reflects the
increase or decrease of the purchasing power of the dollar.
3. Use. The Premises shall be used and occupied for general office
purposes, retail sales, and all lawful activities related thereto, so long as
such use is permitted by the existing zoning ordinances of the City of San
Antonio. Tenant shall (i) at its own cost and expense obtain any and all
licenses and permits necessary for any such permitted use, and (ii) comply, at
Tenant's sole cost and expense, with all governmental laws, ordinances,
regulations and restrictive covenants of record affecting the Premises
applicable to the use of the Premises, and shall promptly comply with all
governmental orders and directives for the correction, prevention and abatement
of nuisances in or upon, or connected with, the Premises. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor take any other action which would
constitute a nuisance. Tenant will not permit the Premises to be used for any
purpose or in any manner (including without limitation any method of storage)
which would render the insurance thereon void or the insurance risk more
hazardous.
4. Taxes.
A. Tenant agrees to pay to Landlord, as additional rent, all
taxes, assessments and governmental charges of any kind and nature whatsoever
(hereinafter collectively referred to as "taxes") lawfully levied or assessed
against the Premises during the term of this Lease. Taxes shall include all
taxes and assessments (special or otherwise) levied or assessed directly or
indirectly against the Premises (land, buildings and improvements), imposed by
federal, sate, or local governmental authority or any other taxing authority
having jurisdiction over, the Premises. Franchise, capital stock, income, estate
or inheritance taxes personal in nature to Landlord are not deemed to be taxes.
Landlord shall estimate the taxes referred to in this
Paragraph 4(A), and Tenant shall pay one-twelfth (1/12) thereof monthly in
advance, together with the payment of the
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Rent. After the end of each calendar year, Landlord shall furnish Tenant a
statement in reasonable detail of the actual real estate taxes, prepared in
accordance with sound accounting practices by Landlord's accounting department,
and there shall be an adjustment between Landlord and Tenant, with payment to or
repayment by Landlord, as the case may require, to the end that Landlord shall
receive the entire amount of such taxes owing for such period.
B. Additionally, Tenant shall be liable for all taxes levied
against Tenant's leasehold improvements, merchandise, inventory, equipment,
furnishings, personal property, and trade fixtures. When possible, Tenant shall
cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of
Landlord. If any such taxes for which Tenant is liable are levied against
Landlord or Landlord's property, or if the assessed value of Landlord's property
is increased by inclusion of personal property and trade fixtures placed by
Tenant in the Premises, Tenant shall also pay the taxes so levied against
Landlord or associated with such increase in accordance with Paragraph 4A above.
Tenant shall pay prior to delinquency any and all taxes related to Tenant's use
and operation of its business on the Premises, including, but not limited to,
all franchise, capital stock, income, sales, use or any other taxes levied
against Tenant.
5. Tenant's Repairs.
A. Tenant shall at its own cost and expense keep and maintain
the entire Premises in good condition, promptly making all necessary repairs and
replacements, whether same are of a capital nature or otherwise. Tenant shall be
responsible for maintaining and making the necessary repairs and replacements to
all parts of the Premises, including, but not limited to, the roof, foundation,
exterior structural walls, windows, glass and plate glass, doors, interior walls
(structural, loadbearing or otherwise) and finish work, floor and floor
covering, downspouts, gutters, heating and air conditioning systems, paving,
plumbing work and fixtures. Tenant shall also be responsible for termite and
pest extermination, regular removal of trash and debris, regular mowing of any
grass, trimming, weed removal and general landscape maintenance, and keeping the
parking areas, driveways, alleys and the whole of the Premises in a clean and
sanitary condition (maintenance of the parking areas and driveways shall
include, but not be limited to, repairing any and all potholes located thereon
and repaving and restriping any such areas as necessary). Except as provided in
Paragraph 5 below, Tenant shall not be obligated to repair any damage caused by
fire or other casualty covered by the insurance to be maintained by Tenant
pursuant to subparagraph 11(A) below, except that Tenant shall be obligated to
repair all wind and/or other damage to glass.
B. Tenant shall not damage any load bearing walls of the
Premises or disturb the integrity and support provided by any such wall, and
shall, at Tenant's sole cost and expense, promptly repair any damage or injury
to any such wall caused by Tenant or its employees, contractors, agents or
invitees.
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C. In connection with Tenant's obligations under subparagraph
5(A), Tenant shall establish, at its own cost and expense, a preventative
maintenance/service program with a maintenance contractor for servicing all hot
water, heating and air conditioning systems and equipment within the Premises.
(With respect to the heating and air conditioning systems and equipment, such
program shall provide for the regular replacement or cleaning of all filters
incorporated into such system and equipment or associated therewith.)
D. In the event Tenant fails to make (or have made) the
repairs and/or replacements described in this Paragraph 5 within thirty (30)
days of notice of the need for said repairs and/or replacements from Landlord,
or if such repairs and/or replacements are not reasonably capable of being made
within said thirty (30) day period, Tenant fails to commence the making of such
repairs and/or replacements within said thirty (30) days or thereafter fails to
diligently pursue to completion the making of such repairs and replacements,
then Landlord may enter the Premises and perform such repairs and/or
replacements. In the event Landlord performs the repairs and/or replacements
pursuant to this subparagraph 5(D), Tenant shall reimburse Landlord for the
out-of-pocket costs and expenses incurred in connection with such repairs and/or
replacements.
6. Alterations.
A. Except as provided in subparagraph 6(B), Tenant shall not
make any material alterations, additions or improvements to the Premises
(including but not limited to roof and wall penetrations), without the prior
written consent of Landlord which consent shall not be unreasonably withheld or
delayed by Landlord.
B. Tenant shall "finish-out" the portion of the Premises
depicted on Exhibit "B" attached hereto (the "Warehouse Space") so that the
Warehouse Space is finished-out to a standard of quality that is consistent with
either the space in the Premises that is then occupied by Tenant for office
purposes, or the space in the Premises occupied by tenants for retail purposes
under the Existing Leases.
7. Signs. Tenant and the tenants under the Existing Leases may
maintain and continue to use their respective signs installed upon the Premises
in the same places(s) that such signs are located upon the Premises on the date
this Lease is executed by Tenant subject, however, to any applicable
governmental laws, ordinances, regulations and other requirements. Tenant shall,
at Tenant's sole cost and expense, remove all such signs by the termination of
this Lease. Such removals shall be made in such manner as to avoid injury or
defacement of the building and other improvements.
8. Inspection. Landlord and Landlord's agents and representatives
shall have the right to enter and inspect the Premises at any reasonable time
during business hours, for the purpose of ascertaining the condition of the
Premises or in order to make such repairs as may be permitted to be made by
Landlord under the terms of this Lease, and for the purpose of showing
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the Premises to any prospective or future tenant during the last six (6) months
of the term of this Lease, then-present mortgagee(s) and/or prospective
purchasers or mortgagee(s); provided, however, that Landlord shall have the
right, but not the obligation, to enter the Premises, without notice to Tenant,
at any time during the existence of an emergency and take whatever action
Landlord deems necessary, in its sole discretion, to cure and/or remedy such
emergency condition or the effects thereof.
9. Utilities. Tenant shall pay for all water, gas, heat, light,
power, telephone, sewer, sprinkler charges and other utilities and services used
on or from the Premises, together with any taxes, penalties, surcharges or the
like pertaining thereto and any maintenance charges for utilities. All accounts
relating to utilities used on or from the Premises shall be maintained in the
name of Tenant. Landlord shall in no event be liable for any interruption or
failure of utility services on the Premises.
10. Assignment and Subletting
A. Except as provided in subparagraph 10(B), Tenant may not
assign or sublet any or all of its rights under this Lease without Landlord's
prior written consent, such consent not to be unreasonably withheld or delayed.
B. Notwithstanding anything to the contrary in subparagraph
10(A), Tenant may, at any time, without Landlord's consent, assign or sublet any
or all of its fights under, or all or any portion of the Premises covered by,
this Lease so long as the express terms of the agreement pursuant to which
Tenant so assigns such rights or sublets such portion of the Premises provides
for monthly rental, on a per square foot basis,.of not less than ninety percent
(90%) of the Per Square Foot Rent (defined below) (such an assignment or
sublease being hereafter referred to as a Qualified Sublease). As used herein,
the term "Per Square Foot Rent" shall mean an amount equal to the amount of
monthly Rent due hereunder divided by the total number of square feet in the
improvements constituting a part of the Premises
In connection with any Qualified Sublease, notwithstanding
anything to the contrary in this Lease, Tenant may, pursuant to a separate
written agreement, subsidize the payment of rent due under any Qualified
Sublease, or provide to any subtenant/assignee under a Qualified Sublease such
other rental concessions as Tenant and such subtenant/assignee may agree
(provided, however, that no such rental concession shall be enforceable against
Landlord). Such separate written agreement shall not affect the Tenant's rights
under this Lease or the subtenant's/assignee's rights under such
sublease/assignment.
11. Insurance and Liability.
A. Fire and Casualty Insurance. Tenant agrees to maintain at
all times from and after the Commencement Date through the expiration of the
term hereof standard fire and extended coverage insurance covering the
improvements on the Premises in an amount not less
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than the full "replacement cost" thereof as such term is defined in the
Replacement Cost Endorsement to be attached thereto, insuring against the perils
covered by fire and extended coverage insurance policies, and against vandalism,
malicious mischief, flood and special extended perils (i.e., "all risks" as such
term is used in the insurance industry), such coverages and endorsements to be
as defined, provided and limited in the standard bureau forms prescribed by the
insurance regulatory authority for the State of Texas for use by insurance
companies admitted in such state for the writing of such insurance on risks
located within such state. Subject to the provisions of paragraph 12 below, such
insurance shall be for the sole benefit of Landlord and/or any Lien Holder (as
defined below) and under Landlord's sole control. Certified copies of such
policies, together with receipts evidencing payment of premiums therefor, shall
be delivered to Landlord prior to the Commencement Date. If Tenant fails to
deliver such policies or certificates on or before the Commencement Date,
Landlord shall have no duty to deliver possession of the Premises to Tenant
until such policies or certificates are provided, but such failure by Tenant
shall not delay the Commencement Date or have any effect on Tenant's other
obligations hereunder, including, without limitation, the obligation to pay
Rent. Not less than fifteen (15) days prior to the expiration date of any such
policies, certified copies of the renewals thereof (bearing notations evidencing
the payment of renewal premiums) shall be delivered to Landlord. Such policies
shall further provide that not less than thirty (30) days written notice shall
be given to Landlord before such policy may be canceled or changed to reduce
insurance provided thereby. If Tenant fails to obtain or maintain such policy of
insurance, then in addition to any other remedy Landlord may have for such
default, Landlord may obtain the required insurance and Tenant shall reimburse
Landlord, on demand, for the cost associated therewith, together with interest
on the amount paid by Landlord at the rate of ten percent (10%) per annum from
the date of such payment by Landlord until payment by Tenant. Any payment to be
made pursuant to this subparagraph A with respect to the calendar year in which
this Lease terminates shall be prorated. Such policy or policies shall be
procured by Tenant from reputable insurance companies satisfactory to Landlord.
B. Liability and Liability Insurance. Landlord shall not be
liable to Tenant or Tenant's employees, agents, patrons, invitees, business
invitees, guests or visitors, or to any other person whomsoever, for any injury
to person or damage to property on or about the Premises, resulting from and/or
caused in part or whole by the negligence or misconduct of Tenant, its agents,
servants, invitees, business invitees, guests or employees, or of any other
person entering upon the Premises, or caused by the buildings and improvements
located on the Premises becoming out of repair, or caused by leakage of gas,
oil, water or steam or by electricity emanating from the Premises, or due to any
cause whatsoever (except where due to Landlord's negligent acts or omissions or
Landlord's willful misconduct), and TENANT HEREBY COVENANTS AND AGREES THAT IT
WILL AT ALL TIMES INDEMNIFY AND HOLD SAFE AND HARMLESS THE PROPERTY, LANDLORD
(INCLUDING ANY INDIVIDUALS OR ENTITIES WHICH CONSTITUTE LANDLORD), LANDLORD'S
AGENTS AND EMPLOYEES FROM ANY LOSS, LIABILITY, CLAIMS, SUITS, COSTS, EXPENSES,
INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES AND DAMAGES, BOTH REAL AND ALLEGED,
ARISING OUT OF ANY SUCH
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DAMAGE OR INJURY; EXCEPT INJURY TO PERSONS OR DAMAGE TO PROPERTY TO THE EXTENT
SAME IS CAUSED BY LANDLORD'S NEGLIGENT ACTIONS OR OMISSIONS OR BY LANDLORD'S
WILLFUL MISCONDUCT. Tenant shall procure and maintain from the Commencement Date
through the expiration of the term of this Lease a policy or policies of
insurance, at its sole cost and expense, insuring both Landlord and Tenant
against all claims, demands or actions arising out of or in connection with; (i)
the Premises; (ii) the condition of the Premises; (iii) Tenant's operations in
and maintenance and use of the Premises; and (iv) Tenant's liability assumed
under this Lease, the combined single limits of such policy or policies to be in
the amount of not less than $1,000,000 per occurrence. Certified copies of all
policies, together with receipts evidencing payment of premiums therefor, shall
be delivered to Landlord prior to the Commencement Date. If Tenant fails to
deliver such policies or certificates on or before the Commencement Date,
Landlord shall have no duty to deliver possession of the Premises to Tenant
until such policies or certificates are provided, but such failure by Tenant
shall not delay the Commencement Date or have ally effect on Tenant's other
obligations hereunder, including, without limitation, the obligation to pay
Rent. Not less than fifteen (15) days prior to the expiration date of any
described policies, certified copies of the renewals thereof (bearing notations
evidencing the payment of renewal premiums) shall be delivered to Landlord. Such
policies shall further provide that not less than thirty (30) days written
notice shall be given to Landlord before such policy may be canceled or changed
to reduce insurance provided thereby.
C. Business Interruption Insurance. Tenant agrees to maintain
at all times from and after the Commencement Date through the expiration of the
term hereof, business interruption insurance in an amount sufficient to cover
the Rent and all additional rent payable under this Lease for a period of at
least one (1) year.
D. Waiver of Subrogation. In the event the Premises or its
contents are damaged or destroyed by fire or other casualty for which insurance
is maintained, or an employee sustains an injury covered by any Worker's
Compensation insurance maintained by Tenant (or such damage or injury is of a
type for which insurance was required to be maintained under the terms of this
Lease), the rights, if any of Tenant against Landlord with respect to such
damage, destruction or injury are waived with respect to both, and to the extent
of both, losses covered by insurance (or which should have been covered under
the terms of the insurance required to be maintained by Tenant under the terms
of this Lease) and losses not covered due to deductibles, coinsurance penalties,
insurance carrier insolvency, disputes with the insurance carrier regarding
coverage or under-insurance. All policies of fire and/or extended coverage,
other insurance covering the Premises or its contents required hereunder to be
maintained by Tenant shall contain a clause or endorsement providing in
substance that the insurance shall not be prejudiced if the insured has waived
right of recovery from any person or persons prior to the date and time of loss
or damage, if any. The failure of Tenant to obtain such endorsement, however,
shall not negate or otherwise adversely affect the waiver herein set forth,
which waiver in all instances shall be binding upon Tenant and Tenant's
respective insurers.
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E. Rating of Insurers. Insurance required hereunder shall be in
companies holding "general policyholders rating" of at least "A Minus", or such
other rating as may be required by a lender having a lien on the Premises, as
set forth in the in the most current issue of "Best's Insurance Guide".
F. Insurance of Sublessee's. Any insurance required to be maintained by
Sublessees of the Premises shall list Landlord as an additional insured party on
the policy, and copies of all certificates of such policies must be delivered to
Landlord. Additionally. any insurance policies required to be maintained by
tenants under the Existing Leases must be reissued, naming Landlord as an
additional insured party, and a certificate of such policy (as reissued) must be
delivered to Landlord.
Not less than fifteen (15) days prior to the expiration of any of
the policies described in this subparagraph 11(f), certified copies of the
renewals thereof (bearing notations evidencing the 'payment of renewal premiums)
shall be delivered to Landlord. Such policies shall further provide that not
less than thirty (30) days written notice shall be given to Landlord before such
policy may be canceled or changed to reduce insurance provided thereby.
12. Fire and Casualty Damage.
A. Tenant shall give immediate written notice to Landlord of any
damage caused to the Premises by fire or other casualty.
B. In the event the Premises shall be damaged or destroyed by fire
or other casualty, Landlord at its option may either terminate this Lease or
elect to rebuild and repair the Premises. Landlord shall give written notice to
Tenant of its election within thirty (30) days after the date it receives notice
of such casualty and if Landlord elects to rebuild and repair shall proceed to
do so with reasonable diligence; provided, however, that if Landlord has not
completed the repair of the Premises on or before the date which is sixty (60)
days from and after the date Landlord learns of the casualty, Tenant shall be
entitled to terminate this Lease at any time thereafter but prior to the date
such repair and restoration is completed.
C. Landlord's obligation to rebuild and repair under this paragraph
12 shall in any event be limited to restoring the Premises to substantially the
condition in which the same existed prior to such casualty, exclusive of any
alterations, additions, improvements, fixtures and equipment installed by
Tenant. Tenant agrees that promptly after completion of Landlord's repairs,
Tenant will proceed with reasonable diligence and at Tenant's sole cost and
expense to restore, repair, and replace all alterations, additions,
improvements, fixtures, signs and equipment installed by Tenant.
D. Tenant agrees that during any period of reconstruction or repair
of the Premises, it will continue to operate its business within the Premises to
the extent that same is practical. During the period from the occurrence of any
casualty until Landlord's repairs are
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completed, the rent shall be reduced to such extent as may be fair and
reasonable under the circumstances.
E. Notwithstanding anything herein to the contrary, in the event a
holder of any indebtedness secured by a lien on the Premises (a "Lien Holder")
requires that the insurance proceeds (or any material portion thereof) arising
as the result of any fire or other casualty be applied to the indebtedness held
by the Lien Holder, then Landlord shall have the right to terminate this Lease
by delivering written notice of termination to Tenant within thirty (30) days
after such requirement is asserted by any such lien Holder.
F. Landlord and Tenant waive the provisions of any statutes which
relate to termination of leases when leased property is destroyed and agree that
such event shall be governed by the terms of this Lease.
13. Condemnation.
A. If the whole or any substantial part of the Premises should be
taken for any public or quasi-public use under governmental law, ordinance or
regulation, or by private purchase in lieu thereof and the taking would prevent
or materially interfere with the use of the Premises for the purpose for which
they are being used, this Lease shall, at the election of either Landlord or
Tenant, terminate and the rent shall be abated during the unexpired portion of
this Lease, effective as of the date the physical taking of said Premises.
B. If part of the Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this Lease
is not terminated as provided in the subparagraph above, this Lease shall not
terminate, but the rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent as may be fair and reasonable under all of
the circumstances.
C. All compensation awarded for any taking, or resulting from any
action or proceedings in lieu thereof, whether for the whole or a portion of the
Premises, shall be the sole properly of Landlord without any participation by
Tenant, and Tenant hereby expressly waives all claims for compensation and
hereby assigns to Landlord all rights with respect thereto; provided, however,
that Tenant may claim and recover directly from the condemning authority (if
permitted by law), such compensation as may be separately awarded or recovered
by Tenant in Tenant's own right for moving expenses, the expense of removing
Tenant's merchandise, furniture, fixtures and equipment or the loss of Tenant's
business goodwill.
14. Holding Over. Tenant will, at the termination of this Lease by
lapse of time or otherwise, yield up immediate possession of the Premises to
Landlord; provided, however, that upon such tender of possession of the Premises
to Landlord by Tenant, the Premises and the equipment and systems used therein,
including without limitation, the HVAC system, shall be in
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at least the same condition in which the Premises and such equipment and systems
were in on the date hereof, normal wear and tear excepted. Notwithstanding
anything contained herein to the contrary, if Tenant holds over, any such
holding over shall be deemed to be a tenancy at sufferance and the rent during
any such period of time shall be one and one-quarter (1.25) times the rent in
effect on the termination date, computed on a daily basis for each day of the
hold over period. The preceding provisions of this paragraph 14 shall not be
construed as Landlord's consent for Tenant to hold over.
15. Quiet Enjoyment. Landlord agrees that upon Tenant's paying the rent
and performing and observing the agreements and conditions contained herein on
its part to be performed and observed, Tenant shall and may peaceably and
quietly have, hold and enjoy the Premises and all rights of Tenant hereunder
during the term of this Lease without any manner of hindrance or molestation,
subject, nevertheless, to the terms and conditions of this Lease, any mortgage
affecting the Premises, zoning ordinances and other building and fire ordinances
and governmental regulations relating to the use of the Premises, and easements,
restrictions and other conditions of record. Landlord represents and warrants
that it has full right and authority to enter into this Lease.
16. Events of Default. The following events shall be deemed to be
events of default by Tenant under this Lease:
(a) Tenant shall fail to pay any installment of the rent herein
reserved when due, or any payment with respect to taxes hereunder when due, or
any other payment or reimbursement to Landlord required herein when due, and
such failure shall continue for a period of five (5) days from the date of
notice of such non-payment is delivered by Landlord to Tenant.
(b) Tenant shall become insolvent, or shall make a transfer in
fraud of creditors, or shall make a general assignment for the benefit of
creditors, or shall permit the Premises or the leasehold estate created hereby
to be taken on execution or other process of law in any action against Tenant.
(c) Tenant shall file a petition, or a petition is filed against
Tenant, under any section or chapter of the United States Bankruptcy Code (Title
11 of the United States Code), as amended, or under any similar law or statute
of the United States or any State thereof; or Tenant shall be adjudged a
bankrupt or insolvent in proceedings filed against Tenant thereunder.
(d) A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant and such receivership or trusteeship
is not terminated within ninety (90) days.
(e) Tenant shall fail to comply with any term, provision or
covenant of this Lease (other than the foregoing in this Paragraph 16), and
shall not cure such failure within thirty (30) days after written notice thereof
to Tenant; provided, however, that if such default is not reasonably susceptible
to being cured within thirty (30) days, then Tenant shall, provided it has
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commenced to cure such default within said thirty (30) day period and is
diligently prosecuting the completion of such, have such additional period of
time as is reasonably necessary to effect such cure.
(f) Tenant, subject to any applicable cure or grace periods, shall
fail to comply with any covenants as to Tenant's financial condition made in
that certain Amended and Restated Credit Agreement, by and among Eye Care
Centers of America, Inc., Banque Indosuez, New York Branch, as Agent, and the
lending institutions named therein, amending that certain Revolving Credit
Agreement dated October 7, 1993, including, but not limited to the debt to
equity ratios and the net worth requirements set forth therein.
17. Landlord's Remedies. Upon the occurrence of any of such events of
default described in Paragraph 16 hereof, Landlord shall have the option to
pursue any one or more of the remedies available to Landlord at law or in equity
in connection with such event of default, without any notice or demand to Tenant
whatsoever, including, without limitation:
(i) The right to enter upon and take possession of the Premises,
without terminating this Lease, and expel or remove Tenant
and any other person who may be occupying the Premises, or
any part thereof, without being liable for prosecution or
any claim for damages therefor. Thereafter, Landlord shall
use good faith, reasonable efforts to relet the Premises, or
any part thereof, in the name of Landlord, or otherwise, in
a commercially reasonable manner and for such term or terms
(which may be greater or less than the period which would
otherwise have constituted the balance of the Term of this
Lease) and on such conditions as Landlord, in its reasonable
discretion, may determine and may collect and receive the
rent therefor. Upon such reletting, all rentals received by
Landlord shall be applied, first, to the payment of any
reasonable costs and expenses of such reletting, including
brokerage fees, attorneys' fees and costs of any
alterations, repairs or Tenant's improvements; second, to
the payment of rent due and unpaid hereunder; and the
residue, if any, shall be held by Landlord and applied in
payment of future rent as the same may become due and
payable. If such rentals received from such reletting during
any month shall be less than that to be paid during that
month by Tenant, Tenant shall pay any deficiency to
Landlord. No such re-entry taking possession of the Premises
by Landlord shall be construed as an election on its part to
terminate this Lease unless a written notice of such
election be given to Tenant or unless the termination is
decreed by a court of competent jurisdiction.
Notwithstanding any such reletting, Landlord may at any time
thereafter elect to terminate this Lease for such previous
breach, as described below; or
(ii) The right to terminate this Lease. Should Landlord at any
time terminate this Lease for any breach, Landlord may
recover from Tenant all damages Landlord may incur by reason
of such breach. In such event, Landlord's damages shall
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consist of the sum of (i) all rent and other charges accrued
to the date of termination and previously unpaid; and (ii)
the present value (calculated using a ten percent (10%)
discount rate) of the balance of the Rent (at the then
current rate) which would have been due for the balance of
the Term, minus the present value (calculated using a ten
percent (10%) discount rate) of the fair market value of the
Premises for the balance of the Term. Such amount shall be
Landlord's final, liquidated damages, it being agreed that
actual damages would be difficult if not impossible to
ascertain and that such amount represents a reasonable
approximation of any actual damages which would be incurred.
All rights and remedies of Landlord herein existing at law or in equity
are cumulative and the exercise of one or more rights or remedies shall not be
taken to exclude or waive the right to the exercise of any other. No act or
thing done by the Landlord or its agents during the term hereby granted shall be
deemed a termination of this Lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this Lease or accept a surrender of said
Premises shall be valid unless such agreement is in writing and signed by
Landlord. No waiver by Landlord of any violation or breach of any of the terms,
provisions and covenants herein contained shall be deemed or construed to
constitute a waiver of any other violation or breach of any of the terms,
provisions and covenants herein contained.
18. Tenant's Remedies. In the event that Landlord shall default in the
performance of any covenant, condition or other provision of this Lease, and
such default remains uncured beyond any applicable cure period expressly
provided herein or, if no such cure period is provided, beyond thirty (30) days
from and after the date Landlord receives notice. Of Such default (or such
longer period as may be reasonably required to cure such default with the
exercise of due diligence and best efforts so long as Landlord promptly
commences and diligently pursues such cure without interruption) (except in the
case of emergency, in which case Tenant shall not be obligated to give Landlord
notice and opportunity to cure), Tenant may, at its option, without waiving any
claim for breach of Landlord's obligations, cure such default for Landlord at
Landlord's expense. Landlord shall reimburse Tenant upon Tenant's demand all
costs and expenses incurred by Tenant in curing Landlord's default. All such
sums not reimbursed to Tenant on demand shall accrue interest at the highest
rate permitted by law, and may be offset by Tenant against rental payments due
under this Lease.
In the event of any breach or threatened breach by Landlord of any of
the covenants, agreements, terms or conditions contained in this Lease, Tenant
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right and remedy allowed at law or in equity or by statute
or otherwise.
19. Mortgages. Subject to the non-disturbance condition described
below, Tenant accepts this Lease subject and subordinate to any mortgage(s)
and/or deed(s) of trust now or at any time hereafter constituting a lien or
charge upon the Premises or the improvements situated thereon (except that at
the election of such mortgagee this Lease may be deemed superior to such
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mortgagee's mortgage); provided, however, that so long as Tenant complies with
all of the terms of this Lease imposed upon Tenant, any foreclosure of such
mortgage shall not terminate or affect this Lease, and Landlord agrees that any
mortgagee shall enter into a Subordination, Attornment and Non-Disturbance
Agreement with Tenant. With respect to any specific mortgage, the foregoing
subordination is expressly conditioned upon Landlord delivering to Tenant a
Subordination, Attornment and Non-Disturbance Agreement in form acceptable to
Tenant, and its reasonable discretion.
20. Mechanic's Liens. Tenant shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Landlord in the
Premises. Tenant covenants and agrees that it will save and hold Landlord
harmless from any and all loss, cost or expense based on or arising out of
asserted claims or liens against the leasehold estate or against the right,
title and interest of the Landlord in the Premises or under the terms of this
Lease.
21. Notices.
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address hereinbelow set
forth or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Notwithstanding anything
contained herein to the contrary, Tenant's obligation to pay rent and any other
amounts to Landlord under the terms of this Lease shall not be deemed satisfied
until such rent and other amounts have been actually received by Landlord.
(b) All payments required to be made by Landlord to Tenant
hereunder shall be payable to Tenant at the address hereinbelow set forth, or at
such other address within the continental United States as Tenant may specify
from time to time by written notice delivered in accordance herewith. Amounts
owing to Tenant under the terms of this Lease shall not be deemed satisfied
until actually received by Tenant.
(c) Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered (whether actually received or not) two
(2) days after the date the same is deposited in the United States Mail, postage
prepaid, Certified or Registered Mail, return receipt requested, addressed to
the parties hereto at the respective addresses set out below, or at such other
address as they have theretofore specified by written notice delivered in
accordance herewith:
LANDLORD: TENANT:
JDB Real Properties, Inc. Eye Care Centers of America, Inc.
000 Xxxxx Xxxxxxxx 00000 Xxxx Xxxxxx
Xxxxx 000 Xxx Xxxxxxx, Xxxxx 00000-0000
Xxxxxx, Xxxxx 00000
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All parties included within the terms "Landlord" and "Tenant", respectively,
shall be bound by notices given in accordance with the provisions of this
paragraph to the same effect as if each had received such notice.
22. Miscellaneous.
A. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions
contained in this Lease shall apply to, inure to the benefit of, and be binding
upon, the parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly provided.
Landlord shall have the right to assign any of its rights and obligations under
this Lease in connection with a sale of the Premises to a third party, and, upon
execution of an assumption of Landlord's obligations hereunder by such
transferee, Landlord shall be relieved of any further obligations under this
Lease, and the term "Landlord" shall thenceforth mean such transferee.
C. Each party agrees to furnish to the other, promptly upon
demand, a corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such party to
enter into this Lease.
D. The captions inserted in this Lease are for convenience
only and in no way define, limit or otherwise describe the scope or intent of
this Lease, or any provision hereof, or in any way affect the interpretation of
this Lease.
E. Landlord shall not be required to perform any covenant or
obligation in this Lease, or be liable in damages to Tenant, so long as the
performance or the nonperformance of the covenant or obligation is delayed,
caused or prevented by an "Act of God," "force majeure," or Tenant. An "Act of
God" or "force majeure" is defined for the purpose of this Lease as strikes,
lock-outs, sit-downs, material or labor restrictions by any governmental
authority, unusual shortages of material, unusual transportation delays, dots,
floods, wash-outs, explosions, earthquakes, fire storms, weather (including wet
grounds or inclement weather which prevents construction), acts of the public
enemy, wars, insurrections and any other cause not reasonably within the control
of Landlord and which by the exercise of due diligence Landlord is unable,
wholly or in part, to prevent or overcome.
F. This Lease may not be altered, changed or amended except by
an instrument in writing signed by both parties hereto.
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G. All obligations of Tenant hereunder not fully perforated as
of the expiration or earlier termination of the term of this Lease shall survive
the expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the Premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating the
Premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord as necessary to put the Premises, including without limitation all
heating and air conditioning systems and equipment therein, in good condition
and repair, normal wear and tear excepted. Tenant shall also, prior to vacating
the Premises, pay to Landlord the amount, as estimated by Landlord, of Tenant's
obligation hereunder for real estate taxes and insurance premiums for the year
in which this Lease expires or terminates. All such amounts shall be used and
held by Landlord for payment of such obligations of Tenant hereunder, with
Tenant being liable for any additional costs therefor upon demand by Landlord,
or with any excess to be returned to Tenant after all such obligations have been
determined and satisfied as the case may be.
H. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the term
of this Lease, then and in that event, it is the intention of the parties hereto
that the remainder of this Lease shall not be affected thereby, and it is also
the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there be
added as a part of this Lease contract a clause or provision as similar in terms
to such illegal, invalid or unenforceable clause or provision as may be possible
and be legal, valid and enforceable.
I. Until this Lease is duly executed by Landlord and Tenant,
this Lease shall be treated as an offer with the Premises being subject to prior
lease without notice and such offer being subject to withdrawal or
non-acceptance by Landlord without notice, and this Lease shall not be valid or
binding unless and until it is fully and duly executed by Landlord and Tenant.
J. All references in this Lease to "the date hereof" or
similar references shall be deemed to refer to the date of execution set forth
below.
K. The time of the performance of all the covenants,
conditions and agreements of this Lease is of the essence.
L. It is expressly agreed by Tenant, as a material
consideration for the execution of this Lease, that this Lease, with its
specific references to written extrinsic documents, if any, is the entire
agreement of the parties; that there are, and were, no verbal representations,
warranties, understandings, stipulations, agreements or promises pertaining to
this Lease or to the expressly mentioned written extrinsic documents, if any,
not incorporated in writing in this Lease.
M. Neither Landlord nor Tenant has contacted any real estate
broker, finder or similar person in connection with this Lease. With respect to
this Lease and the payment of
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brokers' commissions, Landlord agrees to indemnify and hold harmless Tenant from
and against any liability or claim, whether meritorious or not, arising with
respect to any broker whose claim arises by, through, or on behalf of Landlord.
With respect to this Lease and the payment of brokers' commissions, Tenant
agrees to indemnify and hold harmless Landlord from and against any liability or
claim, whether meritorious or not, arising with respect to any broker (unless
Tenant has executed and independent commission agreement with any such broker,
in which event such broker shall not be excluded from this indemnity), whose
claim arises by, through or on behalf of Tenant.
23. Hazardous Substances.
A. As used herein, "Hazardous Substances" means any substance
that has toxic, corrosive, flammable or reactive properties and that is
regulated by the State of Texas or the United States Government. Hazardous
Substances include, but are not limited to, asbestos, polychlorobiphenyls
("PCBs"), flammable explosives, radioactive materials, chemical carcinogens,
pollutants, effluent, contaminants, emissions and petroleum.
B. Tenant hereby agrees, warrants and represents that Tenant,
its agents, employees or contractors have not prior to the date hereof, and will
not during the term hereof, knowingly store, place or discard Hazardous
Substances in the Premises, other than cleaning supplies or other materials
customarily used by Tenant in the course of its operations which may constitute
Hazardous Substances which will at all times be stored and discarded in
compliance with any applicable laws. Notwithstanding the immediately preceding
sentence, in the event Tenant, its agents, employees or contractors bring upon,
store on or in, use on or in, or install in, the Premises any materials that are
then known to be, or are later classified as, Hazardous Substances, then Tenant
shall, upon written demand from Landlord, promptly proceed to remove such
Hazardous Substances, at Tenant's sole cost and expense, in accordance with all
applicable governmental regulations. Tenant hereby agrees to indemnify and hold
Landlord harmless from and against and to reimburse Landlord with respect to any
and all claims, demands, causes of action, loss, damage, liabilities, cost and
expenses (including attorneys' fees and court costs) of any and every character,
known or unknown, fixed or contingent, asserted against or incurred by Landlord
at any time and from time to time by reason of, or arising out of, the presence
of any Hazardous Substances within the Premises or in, on or under the building,
or the Premises, the presence of which was caused by an act of Tenant.
24. Title: Condition Precedent.
The terms of this Lease are expressly conditioned upon the
Landlord obtaining title to the Premises by __________, 1997. In the event
Landlord fails to obtain title to the Premises by said date, Landlord may, at
any time thereafter prior to obtaining title to the Premises, deliver written
notice to Tenant that this Lease shall be null, void and of no legal effect and
upon the delivery of such notice to Tenant this Lease shall be deemed to be
null, void and of no legal effect.
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EXECUTED to be effective as of this _____ day of __________, 1997 (the
"effective date").
"LANDLORD" "TENANT"
JDB REAL PROPERTIES, INC., EYE CARE CENTERS OF AMERICA, INC.,
a Texas corporation a Texas corporation
By: By:
----------------------------------- ------------------------------
Xxxx X. Xxxxxxxxx, President Printed Name:
--------------------
Title:
---------------------------
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