REAL ESTATE OPTION AGREEMENT
----------------------------
THIS REAL ESTATE OPTION AGREEMENT ("Agreement") is made and entered into by
and between Applied Isotope Products Corporation, a Texas corporation whose
address is 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000 (the "Purchaser")
and Terrano Realty, Inc., ("Terrano") and NW Realty, Inc., ("NW"), both Texas
corporations whose addresses are 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000. The
term "seller" as used herein shall refer to Terrano or NW, or both, as
applicable.
WITNESSETH:
1. In accordance with the terms, covenants and conditions hereinafter set
forth, Terrano does hereby live and grant to Purchaser for the term set forth
herein the right and option to purchase the land (the "Terrano Land") described
in Exhibit A attached hereto and made a part hereof for all purposes, subject to
the conditions herein set forth, and NW does hereby give and grant to Purchaser
for the term set forth herein the right and option to purchase the land (the "NW
Land") described in Exhibit B attached hereto and made a part hereof for all
purposes, subject to the conditions herein set forth. The Terrano Land described
on Exhibit A hereto is divided into two tracts of land, called tract 4 and tract
7, tract 4 being hereinafter referred to as "Terrano Tract 4", and tract 7 being
hereinafter referred to as "Terrano Tract 7". The NW Land described on Exhibit B
attached hereto is divided into four separate tracts, being tracts 1, 6, 8 and
5, tract 1 being hereinafter called the "NW Tract 1", tract 6 being hereinafter
called the "NW Tract 6", tract 8 being hereinafter called the "NW Tract 8", and
tract 5 being hereinafter called the "NW Tract 5". The Terrano Land and the NW
Land collectively is referred to as the "Premises", and each tract comprising
the NW Land and the Terrano Land is a portion of the "Premises".
2. Purchase Price. The purchase price for NW Tract 5 is $60,000.00 per acre
of land comprising NW Tract 5. The purchase price for Terrano Tracts 4 and 7 is
$65,000.00 per acre of land comprising Terrano Tracts 4 and 7. The purchase
price for NW Tracts 1, 6 and 8 is $70,000.00 per acre of land comprising NW
Tracts 1, 6 and 8. The purchase prices shall be payable in cash, or by good and
sufficient bank cashier's check or (confirmed) wire transfer at Closing (as
hereinafter defined) in U.S. Dollars.
3. Exercise of Option. This option with respect to each Tract comprising
the Premises shall be deemed effectively exercised only if written Notice of
Exercise is given in such form as is reasonably calculated by the Purchaser to
inform NW or Terrano, as the case may be, of such exercise and is mailed by
certified mail to NW or Terrano, whichever is the applicable seller, at their
address as set forth in the first paragraph hereof, on or before the expiration
date of such option. Notice of such exercise which is given by mail shall be
deemed effective when received by the proper recipient. Notice of Exercise must
be given at least 90 days prior to Closing with respect to tile Tract or Tracts
to be purchased by Purchaser. This option shall be divided into three segments;
namely, NW Tract 5 being one segment, Terrano Tracts 4 and 7 being another
segment; and NW Tracts 1, 6 and 8 being another segment. Terrano Tracts 4 and 7
must be purchased and closed and paid for at the same time. NW Tracts 1, 6 and 8
must be closed and purchased and paid for at the same time. Accordingly, any
Notice of Exercise of this option must elect to purchase either NW Tract 5,
Terrano Tracts 4 and 7, or NW Tracts 1, 6 and 8. A Notice of Exercise will not
be deemed properly given if the Notice does not refer specifically to the Tract
or Tracts as to which the purchase will be consummated, and the Notice must be
as to either NW Tract 5, NW Xxxxxx 0, 0 xxx 0, xxx/xx Xxxxxxx Tracts 4 and 7,
and the Notice of Exercise must be accompanied by a good and sufficient bank
cashier's check in the amount of 10% of the applicable purchase price of the
Tracts to be purchased.
4. Closing. Closing of the first purchase hereunder must occur on or before
three (3) years after the Effective Date of this Agreement, and closing of all
purchases hereunder must occur on or before five (5) years after the Effective
Date of this Agreement. Each date of closing hereunder is referred to as the
"Closing Date". Closing shall take place at the offices
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of NW or Terrano, whichever is the applicable seller, unless otherwise mutually
agreed in writing. Neither party need be present if written closing instructions
are delivered. Title to the applicable portion of the Premises purchased shall
be conveyed by one or more Special Warranty Deeds (the "Deed"). The seller shall
bear the expense of an Owner's Policy of Title Insurance (the "Title Policy") to
be issued at or as of Closing insuring Purchaser in the amount of the Purchase
Price, and of preparation of the Deed. All other closing costs shall be paid by
the party ordering the service to which such expenses pertain. The Title Policy
shall be issued by a Title Company selected by the seller (the "Title Company")
at or as of the Closing Date and shall insure Purchaser's title to the portion
of the Premises purchased, subject to the standard printed exceptions and
subject to all restrictions, easements, rights-of-way, conditions, reservations,
outstanding mineral and royalty interests, laws and ordinances, matters caused
by Purchaser and all matters of record or affecting the Premises, and matters
which a survey or inspection would reveal. The Deed shall be made and delivered
subject to any and all restrictive covenants, terms, conditions, contracts,
provisions, reservations, outstanding mineral and royalty interests, easements,
rights-of-way, laws and ordinances, and any other items of record, matters
caused by Purchaser, and matters which a survey or inspection would reveal,
pertaining to all or any portion of the Premises.
At Closing, ad valorem taxes, maintenance fees or assessments, MUD taxes,
standby fees, if any, homeowner's fees and assessments and other similar charges
attributable to ownership of the Premises (the "Taxes") shall be prorated
between seller and Purchaser as of the Closing Date. If the actual amounts of
any of such charges are unavailable as of the Closing Date, prorations shall be
made and based upon the most current information then available or, if there is
none, then based upon the previous calendar year's amounts. Purchaser shall,
upon Closing, assume all payment of all Taxes, including, but not limited to,
Taxes becoming due because of a change in land usage or ownership, and Purchaser
agrees to indemnify and hold harmless Seller from any and all claims and
liability for payment thereof. All prorations shall be final. If any land not
yet conveyed to Purchaser pursuant hereto is affected by any special assessment
or assessments caused by and attributable to improvements made by Purchaser or
others to or on any portion of the Premises or other land owned by Purchaser,
Purchaser shall reimburse Seller for the amount of such special assessment or
assessments paid by Seller at the time of the conveyance of such land pursuant
hereto.
At Closing, seller shall, if required by the Title Company, deliver to
Purchaser a "nonforeign person" certificate as permitted by Section 1445(b)(2),
Internal Revenue Code 1986, as amended.
5. Default: In the event that seller defaults under any of the provisions
of this Agreement, Purchaser shall, as its sole and exclusive remedy, have the
right to only either (i) terminate this Agreement upon written notice to seller,
or (ii) enforce specific performance, thereby waiving all claims against seller
and accepting whatever title seller is able to convey; provided, however, if
Purchaser is to enforce specific performance, then as a condition to Purchaser's
right to enforce specific performance Purchaser must notify seller affirmatively
in writing within five (5) days after seller's failure to comply or this remedy
is waived, whereupon Purchaser's sole and exclusive remedy shall be to terminate
this Agreement. Each of the following events shall constitute a default by
Purchaser hereunder:
(a) Purchaser's failure to close the purchase of either NW Tract 5,
Terrano Tracts 4 and 7, or NW Tracts 1, 6 and 8, on or before three
(3) years after the Effective Date of this Agreement;
(b) Purchaser's failure to timely perform or observe any of the covenants
or agreements set forth herein;
(c) The filing of any petition against or by Purchaser in any court,
whether or not pursuant to any statute of the United States or of any
state, in any bankruptcy, reorganization, composition, extension,
arrangement, or insolvency proceedings, and the adjudication
thereafter of Seller as a bankrupt, or the approval of such petition
by the court, or the court's
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assuming jurisdiction of the subject matter, or not dismissing such
proceedings within ninety (90) days after the institution of the same;
(d) The appointment, in any proceeding, of a receiver or trustee for all
or any portion of the property of Purchaser, and the failure of such
receivership or trusteeship to be vacated within ninety (90) days
after the appointment of such receiver or trustee;
(e) An assignment for the benefit of creditors of Purchaser; and
(f) The dissolution of Purchaser in accordance with the provisions of the
Business Corporation Act of the State of Texas.
In the event Purchaser defaults under any of the terms of this Agreement,
seller shall have the right to terminate this Agreement upon written notice to
Purchaser. In no event shall Purchaser have the right to seek money damages of
any kind as a result of Seller's default under any of the terms of this
Agreement. In no event shall Seller be obligated to cure or remove title or
survey defects or objections.
6. Amendments: This Agreement, once properly signed by both parties, can be
modified or amended only by a written instrument, executed by authorized
representatives of each of the respective parties hereto.
7. Notice: All notices given pursuant to this Agreement, shall be served
via hand delivery, or certified mail, return receipt requested and shall be
addressed as follows:
If to Purchaser: Applied Isotope Products Corporation
Attn: Xxx Xxx Xxxxxx
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Facsimile (000) 000-0000
If to Seller: Terrano Realty, Inc. or NW Realty, Inc., as applicable
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxx 00000
Facsimile (000) 000-0000
Except as otherwise provided, Notices shall be deemed served as of the date of
actual delivery thereof, if hand delivered or faxed or two (2) days after
deposit with the U.S. Postal Service if served via certified mail.
8. Assignment: Purchaser may not assign this Agreement without sellers'
prior written consent, such consent to be given or denied in sellers' sole and
absolute discretion. Seller reserves the unilateral right, exercisable in
seller's sole discretion at any time prior to the Closing Date without the
necessity of obtaining Purchaser's consent, to convey the Premises to an
affiliate or designee of seller (a "Permitted Assignee") subject to the terms
and conditions of this Agreement. In such event, the Permitted Assignee shall
thereupon be responsible for performing all of seller's duties and obligations
under this Agreement, and the original party designated as the seller shall
thereafter be released from all duties and obligations hereunder. Purchaser
agrees to close the transaction contemplated herein with the Permitted Assignee,
subject to the terms and conditions of this Agreement.
9. Purchaser's Representations, Covenants and Warranties: Purchaser hereby
represents and warrants that each of the following statements are true and
correct. Purchaser hereby agrees to represent and warrant that such statements
are true and correct as of the Closing Date:
(a) Purchaser has the full right, power and authority to enter into this
Agreement and carry out its obligations under this Agreement;
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(b) The person or persons executing this Agreement on behalf of Purchaser
are fully authorized to execute this Agreement on behalf of Purchaser;
(c) Purchaser has made a personal on-site inspection of the Premises prior
to the Purchaser's execution of this Agreement;
(d) Seller has not entered into any agreements with Purchaser to provide
or complete roads, sewers, water, gas, electric service, or any other
facilities or amenities related to the Premises;
(e) Seller has made no representations as to the provision or completion
by seller or anyone else of roads, sewers, water, gas, electric
service, or any other facilities or amenities related to the Premises;
(f) To the best of Purchaser's knowledge and belief, this Agreement (1) Is
not covered by the Interstate Land Sale Full Disclosure Act
("ILSFDA"); (2) qualifies for a statutory full exemption under the
ILSFDA; and (3) seller is not obligated to register the Premises or
provide Purchaser with a property report under the ILSFDA;
(g) At Closing Purchaser will execute the applicable form of notice of
deed restrictions, and any certificates and waivers and closing
statements as the Title Company may require.
Purchaser acknowledges that Seller is relying on the foregoing
representations and warranties and, that but for the above representations and
warranties, Seller would not enter into this Agreement.
10. Survival: All representations and warranties made by Purchaser and
Seller in this Agreement or in any document executed at the Closing, shall
survive the Closing.
11. Brokers: There is no broker fee or commission to be paid by seller.
Purchaser hereby agrees with Xxx Xxxxx, as Broker, to pay to said Broker six
percent (6%) of the sales price of the Premises if, as and when sold and
conveyed by Purchaser to a third party, said commission to be paid in cash at
closing of each such sale.
12. Effective Date: This Agreement shall become effective upon the date
that the seller executes this Agreement (the "Effective Date"). The time periods
specified herein for the performance by either the Purchaser or the seller as to
any of the conditions specified herein, shall be calculated utilizing the
Effective Date unless the context specifically requires otherwise.
13. No Warranty: PURCHASER HEREBY EXPRESSLY ACKNOWLEDGES THAT SELLER HAS
NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE PHYSICAL
CONDITION OF THE PREMISES, OR ANY OTHER MATTER AFFECTING OR RELATING TO THE
HEREIN DESCRIBED PREMISES (EXCEPT ONLY THE SPECIAL WARRANTY OF TITLE TO BE
CONTAINED IN THE DEED) AND THAT THE PURCHASER HAS BEEN AFFORDED AN ADEQUATE
OPPORTUNITY TO INSPECT AND EVALUATE THE CONDITION OF THE PREMISES. SELLER
SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING (i) THE NATURE AND
CONDITION OF THE PREMISES, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND
GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PREMISES FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON, AND THE
EXISTENCE OF ANY ENVIRONMENTAL HAZARDS OR CONDITIONS THEREIN OR COMPLIANCE WITH
ANY APPLICABLE LAWS, RULES OR REGULATIONS; (ii) THE NATURE AND EXTENT OF ANY
RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE, RESERVATION,
CONDITION OR OTHERWISE; AND (iii) THE COMPLIANCE OF THE PREMISES OR ITS
OPERATION WITH ANY LAWS,
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ORDINANCES OR REGULATIONS OF ANY GOVERNMENT OR OTHER BODY. PURCHASER HEREBY
EXPRESSLY ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS OR WARRANTIES HAVE BEEN
MADE, AND PURCHASER AGREES TO ACCEPT THE PREMISES "AS IS" AND "WHERE IS" AND
"WITH ALL FAULTS" AND WITHOUT WARRANTY, EITHER EXPRESS OR IMPLIED, OR ARISING BY
OPERATION OF LAW, INCLUDING, BUT NOT LIMITED TO, THE MERCHANTABILITY OF THE
PREMISES OR OF ITS FITNESS FOR ANY PARTICULAR USE OR PURPOSE, OR OTHERWISE.
PURCHASER AGREES THAT THE FOREGOING DISCLAIMER MAY EITHER BE INSERTED IN THE
DEED TO BE DELIVERED AT CLOSING OR, ALTERNATIVELY, IN A CERTIFICATE DATED AS OF
CLOSING REFLECTING THE FOREGOING TO BE EXECUTED BY THE PARTIES AT CLOSING. THE
FOREGOING SHALL NOT AFFECT THE SPECIAL WARRANTY OF TITLE TO BE CONTAINED IN THE
DEED TO BE DELIVERED AT CLOSING.
PURCHASER IS PURCHASING THE PROPERTY AS IS, WHERE IS, AND WITH ALL FAULTS.
PURCHASER OR ANYONE CLAIMING BY, THROUGH OR UNDER PURCHASER, HEREBY FULLY
RELEASES SELLER, ITS SUCCESSORS, EXECUTORS AND REPRESENTATIVES, FROM ANY AND ALL
CLAIMS THAT PURCHASER MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST SELLER, ITS
SUCCESSORS, EXECUTORS OR REPRESENTATIVES, FOR ANY COST, LOSS, LIABILITY, DAMAGE,
EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TO ANY
DEFECTS, ERRORS OMISSIONS, OR OTHER CONDITIONS AFFECTING THE SAID PREMISES,
INCLUDING THOSE RESULTING FROM THE NEGLIGENCE OF SELLER. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT THIS RELEASE SHALL BE GIVEN FULL FORCE AND EFFECT
ACCORDING TO EACH OF ITS EXPRESS TERMS AND PROVISIONS, INCLUDING, BUT NOT
LIMITED TO, THOSE RELATING TO UNKNOWN AND UNSUSPECTED CLAIMS, DAMAGES AND CAUSES
OF ACTION. THIS COVENANT RELEASING SELLER SHALL BE A COVENANT RUNNING WITH THE
PREMISES AND SHALL BE BINDING UPON PURCHASER, ITS SUCCESSORS AND ASSIGNS.
The foregoing provisions in this paragraph 13 may be set forth in the Deed.
14. Condemnation: In the event any portion of the Premises is taken or
condemned (or voluntarily conveyed in lieu thereof) prior to Closing, seller
shall give notice thereof to Purchaser and Purchaser shall elect, within five
(5) business days after such notice from seller, to either (a) terminate this
Agreement, in which event neither party shall have any further rights, duties or
obligations hereunder; or, (b) elect to exercise the option with respect to the
Tract or Tracts affected by such taking or condemnation, subject to the other
provisions and conditions of this Agreement, and promptly proceed with the
Closing of such Tracts within 90 days after such exercise of the option, in
which event seller shall convey to Purchaser the unaffected portions of the
Tracts as to which Purchaser exercises its option, without reduction in the
purchase price, and in such event, Seller shall assign to Purchaser at Closing
all of Seller's right, title and interest in and to the condemnation awards or
other compensation payable to the Seller for that portion of the Premises
purchased by Purchaser which has been condemned, taken or conveyed.
15. Enforcement: Seller and Purchaser both hereby expressly agree that any
action brought by either party to either enforce or interpret any of the terms,
covenants and provisions hereof shall be brought in Xxxxxx County, Texas.
16. Donation: It is the intent of Seller to donate to an institution such
as University of North Texas, the tract of land described on Exhibit C attached
hereto and made a part hereof for all purposes. However, Purchaser understands
that there must be certain occurrences before the donation occurs, such as the
City agreeing to build the parkway street with utilities, the Purchaser
demonstrating financial stability to the satisfaction of the City, and Purchaser
agreeing to build its 35,000 square foot building on property owned by Purchaser
or its affiliate on the 20.00 acre tract of land situated between the land
described on Exhibit C and NW Tract 1, and
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the University of North Texas receiving certain grants from the federal
government, State of Texas, foundations or private donors, among other matters.
17. Miscellaneous:
(a) Neither this Agreement nor any memorandum thereof shall be recorded in
any public records. This Agreement shall be construed under and in
accordance with the laws of the State of Texas. In case any one or
more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect,
that provision shall not affect any other provision hereunder. This
Agreement constitutes the sole agreement of the parties hereto and
supersedes any prior understanding or written or oral agreements
between the parties respecting the subject matter of this Agreement.
Words of any gender used in this Agreement shall be held and construed
to include any other gender and words in the singular number shall be
held to include the plural and vice versa unless the context requires
otherwise. The titles used in connection with the paragraphs of this
Agreement are for convenience only and should not be deemed to
construe, define or limit the meaning or effect of the provisions set
forth in this Agreement.
(b) This Agreement may be executed in multiple original counterparts, each
of which shall be deemed an original, and all such counterparts shall
together constitute but one and the same instrument in evidence of
this Agreement.
(c) If any of the parties hereto shall breach any of the terms,
provisions, representations or warranties in this Agreement and it
shall be necessary for the other party to employ an attorney to
enforce any of the terms and provisions of this Agreement, then said
defaulting party or parties shall be liable for and hereby agree to
pay reasonable attorney's fees and any and all reasonable costs and
expenses of enforcement incurred by the prevailing party in such
litigation or expenses of enforcement. Recovery under this
sub-paragraph shall be limited to the prevailing party involved in
such breach.
(d) In accordance with the requirements of Texas Real Estate License Act,
Purchaser is hereby advised by Broker that it should be furnished with
or obtain a policy of title insurance or have the abstract covering
the Premises examined by any attorney of its own selection.
(e) Time is of the essence of this Agreement.
(f) Whenever any determination is to be made or action to be taken on a
date specified in this Agreement, if such date shall fall upon a
Saturday, Sunday or holiday observed by federal savings banks in the
State of Texas, the date for such determination or action shall be
extended to the first business day immediately thereafter.
18. WAIVER OF CONSUMER RIGHTS: PURCHASER HAS WAIVED AND RELINQUISHED ALL
PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT
(CHAPTER 17, SUBCHAPTER E, OF THE TEXAS BUSINESS AND COMMERCE CODE), OTHER THAN
SECTION 17.555 THEREOF, IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT, THE FULLEST EXTENT PERMITTED BY LAW. PURCHASER REPRESENTS AND
WARRANTS TO SELLER THAT: (A) PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE
BARGAINING POSITION; (B) PURCHASER IS REPRESENTED BY LEGAL COUNSEL IN CONNECTION
WITH THE SALE CONTEMPLATED BY THIS AGREEMENT; AND (C) PURCHASER IS KNOWLEDGEABLE
AND EXPERIENCED IN THE PURCHASE, OPERATION, OWNERSHIP, DEVELOPMENT, AND SALE OF
REAL ESTATE, AND IS FULLY ABLE TO EVALUATE THE MERITS AND RISKS OF THIS
TRANSACTION. THIS WAIVER
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SHALL EXPRESSLY SURVIVE THE CLOSING OR TERMINATION OF THE TRANSACTION
CONTEMPLATED IN THIS AGREEMENT AND SHALL BE BINDING ON PURCHASER'S SUCCESSORS,
ASSIGNS AND THIRD PARTIES CLAIMING THROUGH PURCHASER.
I, THE UNDERSIGNED PURCHASER, WAIVE MY RIGHTS UNDER THE DECEPTIVE TRADE
PRACTICES - CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ, BUSINESS AND COMMERCE
CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER
CONSULTATION WITH AN ATTORNEY OF MY OWN SELECTION, I VOLUNTARILY CONSENT TO THIS
WAIVER.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the dates hereinbelow set forth.
PURCHASER:
APPLIED ISOTOPE PRODUCTS CORPORATION
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: President
Date: 12/16/96
SELLER:
NW REALTY, INC.,
a Texas corporation
By: /s/ Xxxx X. XxXxxxxxx
Name: Xxxx X. XxXxxxxxx
Title: President
Date: 12/13/96
TERRANO REALTY, INC.,
a Texas corporation
By: /s/ Xxxx X. XxXxxxxxx
Name: Xxxx X. XxXxxxxxx
Title: President
Date: 12/13/96
