Exhibit 10.4
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
XXXXXX REFRIGERATED WAREHOUSES, INC.
AS "BUYER"
AND
FORT WORTH COLD STORAGE HOLDINGS, INC.
AS "SELLER"
TABLE OF CONTENTS
PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
XXXXXX REFRIGERATED WAREHOUSES, INC., AS "BUYER"
AND
FORT WORTH COLD STORAGE HOLDINGS, INC., AS "SELLER"
1. Property.................................................................................................1
2. Purchase Price...........................................................................................2
3. Physical Inspection of Property..........................................................................2
4. Xxxxxx Money.............................................................................................4
5. Survey; Title Binder.....................................................................................6
6. Covenants of Seller......................................................................................7
7. Seller's Representations and Warranties..................................................................7
8. Conditions to Buyer's Obligations........................................................................9
9. Closing.................................................................................................10
10. Remedies................................................................................................12
11. Advisor.................................................................................................12
12. Notice..................................................................................................13
13. Miscellaneous...........................................................................................14
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT (hereinafter sometimes called the "Agreement") by and
between FORT WORTH COLD STORAGE HOLDINGS, INC., an Ontario corporation
(hereinafter called "Seller"), and XXXXXX REFRIGERATED WAREHOUSES, INC., a Texas
Corporation, (hereinafter called "Buyer") is entered into as of the Effective
Date (as herein defined in paragraph 13(1).
WITNESSETH:
1. Property
Subject to the terms and provision of this Agreement, Seller hereby
agrees to sell and convey to Buyer and Buyer agrees to purchase from Seller the
following:
(a) That certain tract or parcel of land described in Exhibit "A"
attached hereto and incorporated by reference herein for all
purposes (hereinafter called the "Land") located at 000 Xxxxxx
Xxxxx, Xxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxx;
(b) All buildings, structures and improvements situated on the Land
and all immoveable fixtures (hereinafter called the
"Improvements");
(c) All the rights and appurtenances pertaining to the Land and
Improvements, including any mineral rights, all rights in and to
wastewater capacity and other utility capacity allocated to the
Land or Improvements, rights under any reciprocal easement
agreements or other recorded or unrecorded instrument benefitting
the Property (as hereinafter defined), any right, title, or
interest of Seller in and to easements, adjacent or contiguous
xxxxxx, xxxxxx, xxxxx, xxxxxxx, alleys, or rights-of-way, any
reversionary rights attributable to the Land, any condemnation
awards made or to be made in lieu thereof, and any awards for
damage to the Land by reason of a change of grade of any highway,
street, road, or avenue (hereinafter called the "Appurtenances");
and
(d) To the extent that any may be in the Seller's possession, all of
the following to the extent they relate to or arise out of the
design, construction, ownership, use leasing, maintenance,
service, or operation of the Land, Improvements and
Appurtenances: (i) contracts or agreements such as maintenance,
service, or utility contracts (hereinafter called the "Operating
Agreements"), to the extend that Buyer elects to take assignment
thereof, (ii) warranties, guaranties and indemnities, (iii)
development rights, governmental approvals, licenses, permits, or
similar documents, (iv) telephone exchanges, trade names, marks,
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all goodwill attributable to or associated with such trade names
and marks, and other identifying material used by Seller in the
operation of the Property, (v) plans, drawings, specifications,
surveys, engineering, reports, environmental reports and audits,
government or regulatory compliance reports, such as, American
with Disabilities Act compliance reports, equipment manuals, and
other technical manuals and description, and (vi) insurance
contracts or policies, to the extent that Buyer elects to take
assignment thereof, (collectively, all such property described in
this subparagraph (d) being called the "Intangible Property").
The Land, the Improvements, the Appurtenances and the Intangible
Property are hereinafter collectively called the "Property."
2. Purchase Price
The purchase price for the Property shall be the sum of THREE MILLION
and NO/100 DOLLARS ($3,000,000.00) (the "Purchase Price"), payable as follows:
(i) Two Million Six Hundred Thousand and no/100 Dollars ($2,600,000.00) in cash,
cashier's checks, federal wire transfer funds, or other immediately available
funds at the closing (as hereinafter defined), subject to any increases,
adjustments and credits provided in this Agreement and (ii) Four Hundred
Thousand and no/100 ($400,000.00) in the form of a real estate mortgage note in
the form attached hereto as Exhibit "B", secured by a first lien deed of trust
in the form attached hereto as Exhibit "C" along with any and all ancillary
documents reasonably required by the Seller.
3. Physical Inspection of Property
For a period of thirty (30) days following the date of the execution of
this Agreement (the "Inspection Period"), Buyer shall have the right (for
itself, its engineers, and other representatives) to enter onto the Property for
the following limited purposes: (i) survey, and (ii) appraisal of the Property,
Seller will cause its advisors and agent to cooperate with Buyer, its employees,
agents, and representatives in connection with such survey and appraisal and to
respond to such reasonable questions as Buyer (or its employees, agents,
engineers and representatives) may ask in connection therewith.
Buyer shall indemnify Seller and hold Seller harmless from and against
all loss, liability, damage, injury, and claims resulting from Buyer's survey
and appraisal or other activities of or on the Property.
4. Xxxxxxx Money
(a) Within two (2) business days after a counterpart or counterparts of
this Agreement executed by Seller and Buyer are delivered to Safeco Title
Company, Dallas, Texas (the "Title Company"), Buyer will deposit with the Title
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Company an assignment in form and substance satisfactory to Seller's counsel, of
all distributions from the Trustee of Landmark Logistical Services, Debtor, up
to but not exceeding the sum of FIFTY THOUSAND and N0/100 DOLLARS ($50,000.00)
(the "Xxxxxxx Money"), which assignment and the proceeds thereof, shall be held
in escrow by the Title Company and shall only be disbursed in accordance with
the terms of the Agreement. The Title Company shall deposit all cash portions of
the Xxxxxxx Money in one or more interest bearing accounts with a bank or other
financial institution acceptable to Buyer. The Xxxxxxx Money plus all interest
to accrue thereon shall be fully insured throughout the term of this Agreement
by the Federal Deposit Insurance Corporation. Interest earned on the Xxxxxxx
Money shall accrue for the benefit of the Seller and shall be deemed a portion
of the Xxxxxxx Money; provided, however, upon the closing of this transaction,
the Xxxxxxx Money, plus any accrued interest thereon, shall be delivered to the
Seller and shall be credited against the Purchase Price. In the event this
transaction does not close, the Title Company shall disburse the Xxxxxxx Money
as provided in this Agreement.
(b) If the transaction contemplated by this Agreement (the
"Transaction") is not timely closed because of any material default of Seller,
then the Xxxxxxx Money, together with all interest accrued thereon, shall be
returned to Buyer. Otherwise, on the Closing Date (whether or not the
transaction is closed), the Title Company shall deliver the Xxxxxxx Money,
together with all interest accrued thereon, to Seller, and the Buyer and the
Seller shall continue to have all of those obligations and other liabilities
specified in this Agreement (including all obligations hereunder that expressly
survive the termination of this Agreement).
5. Survey; Title Binder
(a) Seller, at Buyer's expense, shall deliver to Buyer within thirty
(30) days after the Effective Date a Category IA, Condition II survey,
(hereinafter called the "Survey") of the Property to be made by an engineer or
surveyor acceptable to Buyer and the Title Company prepared in accordance with
the current edition of the Manual of Practice of Land Surveying in Texas adopted
by the Texas Surveyors Association and sufficient to enable the Title Company to
endorse the standard printed survey exception in the Owner's Title Policy to
read "shortages in area". If Buyer timely closes the transaction described
herein, then, at Closing, Seller shall reimburse Buyer one-half (1/2) of the
cost of the Survey. Without limiting the foregoing, the Survey shall show the
following: adjacent roads; building lines; a metes and bounds description
showing the beginning points, its distance and bearing from a readily
ascertainable point (such as a street intersection), and the course, bearing,
and measured distances of all boundary lines; monuments or stakes found and set;
any building setback lines; location, dimensions, area, number of stories, and
street address of all buildings and the distance from each side of each building
to the property line; location, size, and total number of parking spaces
(including and designating handicap spaces); physical evidence of any building,
fence, or hedge near any property line; physical evidence and location of each
actual public and private easement and utility line and/or poles, and of each
pipeline, manhole, and drain outlet; the location of entry and exit of all
utilities to and from the Land and Improvements; any encroachment or overlapping
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of improvements; and the location and recording references of all easements,
encumbrances or restrictions affecting the Property which are established by and
any properly recorded instrument. If any easements are not susceptible of
location, the survey shall so indicate. Such Survey shall be dated, shall
contain a certificate in form reasonably satisfactory to the Title Company, and
shall be signed and scaled by the surveyor or engineer.
(b) Seller, at Buyer's expense, shall furnish to Buyer within twenty
(20) days after the Effective Date a title commitment (hereinafter called the
"Title Binder") issued by the Title Company, showing title to the Property and
committing to issue the Owner's Title Policy to Buyer pursuant to Paragraph 9 of
this Agreement, such title Binder to specify all exceptions to title, including,
without limitation, easements, liens, encumbrances, restrictions, conditions, or
covenants affecting the Property. If Buyer shall timely close the transaction
described herein, then at Closing, Seller shall reimburse Buyer one-half (1/2)
of the cost of the Owner's Title Policy. If any exceptions appear on the Title
binder, other than the standard printed exceptions (which shall be modified as
provided in Paragraph 9(iii) of this Agreement) or if any encroachments,
overlapping of improvements, or other conditions are shown on the Survey that
are not acceptable to Buyer, Buyer shall, within five (5) days after receipt of
the title Binder and the Survey notify Seller in writing of such fact. Seller
agrees to use Seller's best efforts to cure all objections provided, however,
that Seller shall not be obligated to institute litigation nor pay more than Ten
Thousand and No/100 Dollars ($10,000.00) to cure such objections (other than
liens or other defects in Seller's title voluntarily created by Seller,
including those created from and after the Effective Date), nor any liens now or
hereafter encumbering the Property, nor any interest therein, which defects
voluntarily created by Seller and all such liens shall be released at Closing
or, at Buyer's option, the amount thereof may be subtracted from the Purchase
Price. If Seller is unable or unwilling to cure such objections on or before
five (5) days after receipt of such notice, Buyer may either extend the time
during which Seller may cure such objections not to exceed fifteen (15)
additional days, or terminate this Agreement by written notice to Seller, or
accept such title as Seller can deliver, or exercise any other remedy provided
herein. In the event of such termination, the parties shall have no further
right or other obligation hereunder (other than with respect to obligations
hereunder that are expressly stated in this Agreement), and the Xxxxxxx Money
and accrued interest thereon shall be returned to Buyer. Those exceptions or
title deficiencies that appear on the Title Binder and any encroachments,
overlapping of improvements, or other conditions that are shown on the Survey
and are accepted by Buyer pursuant to the terms of this "Permitted Encumbrances"
shall not include any liens or any other title defects which Seller is obligated
to cure under the terms of this Agreement or agrees in writing to cure on or
before the Closing.
6. Covenants of Seller
Seller covenants and agrees with Buyer that, between the Effective Date
and the Closing Date:
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(a) Seller will comply with all applicable laws as they relate to
Seller's ownership of the Property.
(b) Seller will not enter into any lease, use, or occupancy agreement
affecting any portion of the Property.
(c) Seller will not sell, exchange, assign, transfer, convey,
encumber, or otherwise dispose of the Property.
7. Seller's Representations and Warranties
Seller hereby represents and warrants to Buyer the following:
(a) Seller has not received any written notice that the location,
construction, occupancy, operation, and use of the Property
(including any improvements and equipment forming any part
thereof) violates any applicable law, statute, ordinance, rule,
regulation, order, or determination of any governmental authority
or any board of fire underwriters (or similar body), or any
restrictive covenant or deed restriction or zoning ordinance or
classification affecting the Property, including, without
limitation, all applicable building codes, flood disaster laws,
and health and environmental laws and regulations (hereinafter
sometimes collectively called "Applicable Laws");
(b) Seller has not received any written notice that the Property or
Seller are currently subject to any existing, pending, or, to the
best of Seller's knowledge, threatened, investigation or inquiry
by any governmental authority or to any remedial obligations
under any applicable Laws pertaining to health or the environment
("Environmental Laws");
(c) Seller has not received any written notice of any change
contemplated in any of the applicable Laws or of any judicial or
administrative action, any action by adjacent landowners, or any
fact or condition relating to the Property which would adversely
affect, prevent, or limit use of the Property as a warehouse;
(d) There is a tenant lease affecting the Property, the terms of
which are well known to the buyer which is the tenant under the
Tenant Lease.
(e) Seller has not received any written notice that the Land has been
contaminated by or used for the storage or disposal of any
hazardous substances, hazardous waste, or petroleum.
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(f) Seller has not received any written notice of any threatened,
litigation (including, without limitation, any condemnation or
notice or a condemnation) affecting or related to the Property;
(g) Seller is a duly formed and validly existing corporation
qualified to do business in the State of Texas. Seller is
authorized to enter into this Agreement, and the undersigned
signatory party for Seller has been duly authorized to execute
this Agreement;
(h) "There are no outstanding, written agreement with any other
person for the sale or other conveyance of the Property.
Buyer acknowledges and agrees that, except as specifically provided in
this Agreement, Seller has not made, does not make, and specifically negates and
disclaims any representations, warranties, promises, covenants, agreements, or
guarantees of any kind or character whatsoever, whether express or implied, oral
or written, past, present, or future, of, as to, concerning, or with respect to
(i) the income to be derived from the Property; (b) the suitability of the
Property for any and all activities and uses which Buyer may conduct thereon,
including, without limitation, the possibilities for future development of the
Property; (iii) the habitability, merchantability, marketability, profitability,
or fitness for a particular purpose of the Property; (iv) the manner, quality,
state of repair, or lack of repair of the property, (v) the nature, quality, or
condition of the Property including, without limitation, the water, soil and
geology; (vi) the compliance of or by the Property or its operation with any
laws, rules, ordinances, or regulations of any applicable governmental authority
or body; (vii) the manner or quality of the construction or materials, if any,
incorporated into the Property, (viii) compliance with any environmental
protection, pollution, or land use laws, rules, regulations, orders, or
requirements including, without limitation, Title III of the Americans with
Disabilities Act of 1990, the Federal Water Pollution control Act, the Federal
Resource Conservation and Recovery Act, the U.S. Environmental Protection Agency
Regulations at 40 C.F.R., Part 261, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the Resource Conservation
and Recovery Act of 1996, the Clean Water Act, the Safe Drinking Water Act, the
Hazardous Materials Transportation Act, the Toxic Substance Control Act, and
regulations promulgated under any of the foregoing; (ix) the presence or absence
of hazardous materials at, on, under, or adjacent to the Property; (x) the
conformity of the Property to past, current, or future applicable zoning or
building requirements; (xi) deficiency of any drainage; (xii) the existence of
vested land use, zoning, or building" entitlements affecting, the Property;
(xiii) with respect to any other matter. Save and except only as expressed in
this Agreement, Seller is not and shall not be liable or bound in any manner by
any oral or written statements, representations, or information pertaining to
the Property, or the operation thereof, furnished by any real estate broker,
agent, employee, servant or other person, or (xiv) the current tenant lease, or
the enforceability, legal effectiveness, or other impact of the same on the
Property, legal, equitable, financial, or otherwise. Buyer further acknowledges
and agrees that, to the maximum extent permitted by law, the sale of the
Property as provided for herein is made on an "As Is" and "Where Is" condition
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and basis with all faults, and that Seller has no obligations to make repairs,
replacements, or improvements except as may otherwise be expressly stated
herein. Buyer acknowledges and agrees that, except for Seller's express
representations and warranties contained in this Agreement, Buyer is relying
solely upon Buyer's own investigation of and knowledge concerning the Property.
8. Conditions to Closing
It shall be a condition precedent to the Seller's and Buyer's
obligations to consummate the purchase of the Property hereunder that, on the
Closing Date (as hereinafter defined in paragraph 9), all the following
conditions shall exist:
(a) Seller Shall have substantially performed each covenant to
have been performed by Seller hereunder with the time
specified.
(b) There shall be no material change in the matters reflected in
the Title Binder.
(c) There shall be no material change in the matters reflected in
the Survey.
(d) No damage from fire or other casualty shall have materially
affected the improvements. No condemnation affecting the
Property shall have occurred, or be pending or threatened.
(e) There shall be no litigation pending which materially and
adversely affects the Property.
(f) On the Closing Date, the Seller shall not have filed a
petition under any section of the Bankruptcy Codes as amended,
or under any similar law or statute of the United States or
any State thereof, nor shall Seller have been adjudged
bankrupt or insolvent, nor shall any rearrangement of its
debts have been requested by Seller; the Seller shall not be
insolvent and no receiver or trustee shall have been appointed
for Seller or any of Seller's assets.
(g) There shall not have been any material breach of any of the
provisions of this Agreement.
(h) There shall be no parties in possession excerpt the Buyer as
tenant under the existing lease, or otherwise permitted or
suffered by Buyer.
If any one of the above conditions is not satisfied, Buyer and Seller
may waive such condition in writing and extend the Closing Date for a period of
time not to exceed thirty (30) days to allow an opportunity to satisfy such
condition, or the performing party may terminate this Agreement by written
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notice thereof to the non-performing party, in which last event the parties
shall a have no further rights or obligations hereunder (other than with respect
to obligations hereunder that expressly survive the termination of this
Agreement), and the Xxxxxxx Money plus all accrued interest thereon shall be
paid to the Seller, unless the cause of the failure to satisfy any such
condition is solely that of the Seller.
9. Closing
Provided that this Agreement has not been rightfully terminated
pursuant to its terms, the closing of the conveyance and purchase of the
Property (herein called the "Closing") shall, unless extended pursuant to the
terms of this Agreement, occur not more than ten (10) days after the Inspection
Period defined in Paragraph 3, at a time designated by Seller (the "Closing
Date"). Seller shall give at least two (2) business days prior notice to Buyer
of the Closing Date and the time scheduled for the Closing. The Closing shall
take place at the offices of the Title Company.
At the closing, the following shall occur;
(a) Seller shall deliver to Buyer the following:
(i) a General Warranty Deed conveying good and indefeasible
title to the Property to Buyer, free of any exceptions
other than the Permitted Encumbrances;
(ii) an Assignment of any then current tenant lease,
quitclaiming to Buyer, the right, title and interest of
the lessor or landlord under any such tenant lease if
any, excluding, however, all deposits existing as of
the Closing Date;
(iii)at Buyer's expense, (to be partially reimbursed as
specified in Paragraph 5(d) on Owner's Title Policy
showing Purchaser as the insured, fee simple title to
the Land as the insured estate, the Purchase Price as
the insurance coverage amount, and noting no exceptions
other than the Permitted Encumbrances and other
exceptions approved in writing by Buyer, and including
the following modifications to the standard typed or
printed exceptions in the title Binder: (1) the
restrictive covenants exception shall be deleted if the
Title Binder does not list any restrictive covenants as
exceptions to title; (2) the standard exception for
current taxes shall, except only as to taxes for the
year in which the Closing occurs, and shall indicate
that such taxes are not yet due and payable; (3) the
exception for any discrepancies, conflicts,
encroachments, or any overlapping of improvements shall
be deleted, except with respect to shortages in the
area; and (4) the exception for rights of parties in
possession shall be deleted, except for rights of
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tenants, as tenants only, under written lease, use, or
occupancy agreements; and
(iv) such affidavits, indemnities, and other documents as
the Title Company may require from Seller as a
condition to issuing the Owner's Title Policy in
accordance with Paragraph 9(a)(iv).
(b) Buyer shall pay the cash portion of the Purchase Price to
the Title Company by any one of the following methods, as
selected by Seller, any one of which shall be deemed to be
"cash": by cashier's check payable to the Title Company; by
wire transfer to thp Title Company's bank account; or by
Buyer's causing the Title Company to issue its check to
Seller.
(c) General real estate taxes for the then current Year relating
to the Property shall be prorated as of the Closing Date. If
the Closing shall occur before the tax rate is fixed for the
then current years, the apportionment of taxes shall be made
an the basis of the tax rate for the preceding year applied
to the latest assessed valuation of the Property; provided
that, if the taxes actually due for the current year are
more or less than the taxes for the preceding year, then
within thirty (30) days after the issuance of the then
current year's tax xxxx, Seller and Buyer shall adjust the
proration of such taxes; and Seller or Buyer, as the case
may be, shall pay to the other any amount required as a
result of such adjustment; this covenant shall not merge
with the deed delivered hereunder but shall survive the
Closing. All special taxes or assessments assessed prior to
the Closing Date shall be paid by Seller, and those assessed
after the Closing Date shall be paid by Buyer.
(d) Possession of the Property shall be delivered to Buyer,
subject only to the rights of tenants under tenant leases
(if any).
(e) Any escrow fee charged by the Title Company as well as (i)
the premium for the Owner's Title Policy and all
endorsements and (ii) the costs and fees of the Title
Company incurred in connection with the issuance of the
Title Binder and the Owner's Title Policy shall be paid by
Buyer, except to the extent that Seller has agreed to
reimburse Buyer pursuant to Paragraph 4(d), Seller shall pay
the fee for recording the warranty deed and any other
documents recorded in this transaction. Each party shall be
responsible for the payment of its own attorney's fees
incurred in connection with this transaction. Any other
costs payable at Closing shall be allocated to Buyer and
Seller as is customary in the county in which the Property
is located.
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10. Remedies
(a) If Seller should fail or refuse to perform any of Seller's
obligations hereunder. Buyer may, at its option, exercise
any one of the following remedies: (i) terminate this
Agreement and obtain a refund of the Xxxxxxx Money, with
interest accrued thereon; or (ii) grant Seller additional
periods of time in which to satisfy Seller's obligations.
(b) If Buyer defaults and fails and refuses to close the
purchase of the Property as herein contemplated, Seller may,
at its option, exercise any one of the following remedies:
(i) terminate this Agreement and receive the Xxxxxxx Money,
with interest accrued thereon; (ii) enforce specific
performance and/or seek other legal and/or equitable relief,
including actual, consequential and/or punitive damages; or
(iii) grant Buyer additional periods of time in which to
satisfy Buyer's obligations.
11. Advisor
(a) Seller represents to Buyer that Seller has entered into an
agreement to pay an advisory fee in connection with this
transaction to EII Realty Corp. (hereinafter called
"Advisor"). Seller agrees to pay any fee or compensation
payable to Advisor. Seller will indemnify and save and hold
Buyer harmless from any claims of Advisor for any
commission, finder's fee, or other compensation in
connection with the transaction contemplated by this
Agreement.
(b) Each party hereto represents to the other that, except as
set forth above with respect to Advisor, such respective
party has not authorized any broker or finder to act on its
behalf in connection with the sale and purchase hereunder.
Each party hereto agrees to indemnify, defend, and hold
harmless the other party from and against any and all
claims, losses, damages, costs, or expenses (including, but
not limited to, reasonable attorney's fees) of any kind or
character arising out of or resulting from any agreement,
arrangements, or understanding (except as set forth above
with respect to Seller's Advisor.) alleged to have been made
by such party with any broker or finder in connection with
this Agreement or the transaction contemplated hereby. This
Paragraph 11 shall survive the Closing or any earlier
termination of this Agreement.
12. Notice
Any notice or communication required or permitted hereunder shall be
given in writing, sent by (a) personal delivery, (b) overnight courier or
delivery service with proof of deliver, (c) United States mail, postage prepaid,
registered or certified mail, or (d) prepaid telegram or telecopy (provided that
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such telegram or telecopy is confirmed by mail in the manner previously
described), addressed as follows:
To Seller: Fort Worth Cold Storage Holdings, Inc.
Attention: Xx. Xxxxx Xxxxxxxxxxxx
c/o Xxxxx Xxxxxx, Vice President
EII Realty Corp.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
With a copy to: Xx. X. X. Xxxxx, III, Esq.
Xxxxx, Xxxxxxx and Xxxxx
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
To: Buyer: Xxxxxx'x Refrigerated Warehouses, Inc.
Xxxxx Xxxxxxxx, Vice President
Xxxxxx Refrigerated Warehouses, Inc.
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
With a copy to: Mr. Xxxxx Xxxx, Esq.
Jenkens & Xxxxxxxxx
1800 Frost Bank Tower
000 Xxxx Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party in a notice sent in
accordance with these notice provisions. Any such notice or communication shall
be deemed to have been given at the time of personal delivery or, in the case of
certified or registered mail, two (2) days after deposited in the custody of the
United States Postal Service, or in the case of overnight courier or delivery
service, as of the date of first attempted delivery at the address and in the
manner provided herein, or, in the case of telegram or telecopy, upon receipt.
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13. Miscellaneous
(a) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto, and their heirs, successors,
and assigns. Whenever in this Agreement a reference is made to
any of the parties hereto, such reference shall be deemed to
include a reference to the heirs, legal representatives,
successors, and assigns of such parties.
(b) Buyer shall not have the right to assign this Agreement
without Seller's prior written consent.
(c) The titles of the Articles of this Agreement shall have no
effect and shall neither limit nor amplify the provisions of
the Agreement itself.
(d) This Agreement constitutes the entire agreement between the
parties and supersedes and replaces all prior and
contemporaneous agreements, representations, and
understandings between Buyer and Seller, whether written or
oral, excluding, however the existing lease agreement between
Seller, as lessor, and Buyer, as lessee. This Agreement shall
not be amended or changed except by written instrument signed
by both of the parties hereto.
(e) Time is of the essence with respect to the various times for
performance by Seller and Buyer.
(f) This Agreement is the result of negotiations between the
parties and, accordingly, shall not be construed for or
against either party regardless of which party drafted this
Agreement or any portion thereof.
(g) It is not, intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership,
joint venture, or other similar arrangement between Seller and
Buyer. No term or provision of this Agreement is intended to,
or shall, be for the benefit of any person, firm, corporation,
or other entity not a party hereto (including, without
limitations any broker), and no such party shall have any
right or cause of action hereunder.
(h) The terms and provisions of this Agreement shall be governed
by construed in accordance with the laws of the State of Texas
and applicable federal law.
(i) Except as herein expressly provided, no waiver by a party of
any breach of this Agreement or of any warranty or
representation hereunder by the other party shall be deemed to
be a waiver of any other breach by the other party (whether
preceding or succeeding and whether of the same or similar
nature), and no acceptance of payment or performance by a
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party after any breach the other party shall be deemed to be
a waiver of any breach of Agreement or of any representation
or warranty hereunder by such other party, whether the first
party knows of such breach at the time it accepts such
payment or performance. No failure of delay by a party to
exercise any right may have by reason of the default of the
other party shall operate as waiver of default or
modification of this Agreement or shall prevent exercise of
any right by the first party while the other party continues
to be so in default.
(j) Each section of this Agreement constitutes a separate
agreement between parties. In the event that any provision
of this Agreement, which would not deprive the parties, or
either of them, of the benefit of the bargain, is deemed to
be illegal, invalid, or unenforceable on its face or as
applied, then such provision shall be deemed severed
herefrom to the extent illegal, invalid, and unenforceable.
(k) If any date set forth in this Agreement as the last date for
the taking of an action hereunder shall fall on a Saturday,
Sunday, or a federal holiday ( federal holiday being a day
on which the United States Postal Service does not deliver
first class mail), then the last date for taking such action
shall be extended to the next succeeding day that is not a
Saturday, Sunday, or federal holiday.
(1) The date upon which Buyer and the Title Company each
receives counterpart original of this Agreement duly
executed by Seller and Buyer and the Title Company receives
the Xxxxxxx Money shall be the date upon which this
Agreement become effective and legally binding.
EXECUTED by Buyer this 10th day of November, 1998.
XXXXXX REFRIGERATED WAREHOUSES, INC.
By: /s/Xxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxxx
"BUYER"
EXECUTED by Buyer this 19th day of January, 1999.
FORT WORTH COLD STORAGE HOLDINGS, INC.
By: /s/Xxxxx Xxxxxxxxxxxx
------------------------------------
Xxxxx Xxxxxxxxxxxx, Attorney in Fact
"SELLER"
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EXHIBIT A
LAND
Xxx 0, Xxxxx 0 of the Cliff Industries Addition, Tarrant County, Texas,
containing 13.860 acres, more or less, and known locally as 000 Xxxxxx Xxxxx
Xxxxx, Xxxx Xxxxx, Xxxxx
EXHIBIT B
REAL ESTATE MORTGAGE NOTE
(TO BE PREPARED)
ADDENDUM TO XXXXXXX MONEY CONTRACT BETWEEN
XXXXXX REFRIGERATED WAREHOUSES, INC.("BUYER")
AND
FORT WORTH COLD STORAGE HOLDINGS, INC. ("SELLER")
1. This Addendum is a part of the referenced contract. To the extent of
any conflict between this Addendum and the terms and provisions of the rnain
body of the contract or any exhibit thereto, the terms and provisions of this
Addendum shall control.
2. Purchase Price. The Purchase Price shall be the sum of THREE MILLION
AND NO/100 DOLLARS ($3,000,000.00). The purchase price shall be paid under one
of the following scenarios, the selection of which may be made by Buyer in its
sole and absolute discretion:
Scenario A: TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000.00)
shall be paid in cash at closing. FIVE HUNDRED THOUSAND AND NO/100
DOLLARS ($500,000.00) shall be in the form of a real estate mortgage
note bearing interest at an annual ratio of nine percent (9%) due and
payable in full one (1) year from the date of closing, secured by a
second lien deed of trust. The note shall be prepayable in whole or in
part without penalty. The note and deed of trust shall be on forms
prepared by the State Bar of Texas. Interest on the note shall be paid
monthly. Additional collateral for the note shall be in the form of
fully registered shares in the publicly-traded entity to be formed by
Buyer in the amount of SEVEN HUNDRED FIFTY THOUSAND DOLLARS
($750,000.00) (the "Stock Collateral"). If necessary, Buyer and/or
Castor Capital Corporation shall increase the number of Shares in the
Stock Collateral so as to maintain a $750,000.00 minimum value of the
Stock Collateral until the note is paid in full.
Scenario A: TWO MILLION SEVEN HUNDRED THOUSAND DOLLARS ($2,700,00.00)
shall be paid in cash at closing. THREE HUNDRED THOUSAND AND NO/100
DOLLARS ($300,000.00) shall be in the form of a real estate mortgage
note bearing interest at an annual rate of nine percent (9%) due and
payable in full one (1) year from the date of closing, secured by a
second lien deed or trust. The note shall be prepayable in whole or in
part without penalty. The note and deed of trust shall be on forms
prepared by the State Bar of Texas. Interest on the note shall be paid
monthly. Additional collateral for the note, shall be in the form of
fully registered shares in the publicly traded entity to be formed by
Buyer in the amount of FIVE HUNDRED THOUSAND DOLLARS ($500,000.00)
(the "Stock Collateral"). If necessary, Buyer and/or Castor Capital
Corporation shall increase the number of shares in the Stock
Collateral so as to maintain a $500,000.00 minimum value of the Stock
Collateral until the note is paid in full.
3. Phase I Environmental Report. For a period of thirty (30) days
following the execution of this Agreement (the "Inspection Period"), Buyer may,
at Buyer's expense, conduct a Phase I Environmental Assessment. In the event
1
Buyer is for any reason disatisfied with its assessment, Buyer may terminate
this contract by written notice to Seller on or before the expiration of the
Inspection Period. In such event, Buyer's xxxxxxx money (less ONE HUNDRED AND
NO/100 DOLLARS ($100.00) as independent consideration for Buyer's rights
hereunder) shall be returned to Buyer by Seller.
4. Xxxxxxx Money. Buyer's xxxxxxx money shall be in the sum of TWENTY
THOUSAND AND N0/100 DOLLARS ($20,000.00) in the form of either (a) cash, or (b)
an assignment in form and substance satisfactory to Seller's counsel, of all
distributions up to such sum from the Trust of Landmark Logistical Services,
Debtor. At Closing, if funds have not been disbursed pursuant to 4(b), then
Buyer shall substitute cash for the assignment, and the assignment shall be
returned to Buyer.
9. Closing. Closing shall occur on or before April 30, 1999. Buyer
shall be entitled to a prorata credit for all deposits delivered to Seller
during calendar year 1999 by Buyer in its capacity as tenant, and in addition,
all unused security deposit.
13.b. Assignment. Buyer shall have the right to assign this Agreement
without Seller's prior written consent, provided such assignment is to an
affiliate or a controlled entity; otherwise, Seller's prior written consent is a
condition precedent to Buyer's right to assign.
INITIAL:
/s/JYR
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BUYER
/s/JZ
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SELLER
2
