EXHIBIT 10.94
AGREEMENT OF SALE FOR THE NISSAN PROPERTY
AGREEMENT OF SALE
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THIS AGREEMENT OF SALE (this "Agreement") is made and entered into by and
between THE XXXX XXX AND X.X. XXXX FOUNDATION and THE XXXX FOUNDATION, each a
Texas non-profit corporation and each an owner of a fifty percent (50%)
undivided interest in the Property hereinafter described (hereinafter referred
to collectively as "SELLER", except where the context otherwise indicates that a
reference to "a SELLER", "such SELLER", or other words to similar effect is
intended to refer only to one such party) and NISSAN MOTOR ACCEPTANCE
CORPORATION, a California corporation, or its permitted assignees (hereinafter
referred to as "BUYER").
W I T N E S S E T H:
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WHEREAS, SELLER is the owner of that certain tract of land located in the
City of Irving, Dallas County, Texas, containing approximately 14.873 acres of
land, which tract is more particularly described on Exhibit "A" attached hereto
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and made a part hereof for all purposes (the "Property"); and
WHEREAS, BUYER desires to purchase the Property from SELLER and SELLER
desires to sell the Property to BUYER, all upon the following terms, covenants,
and conditions.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, and subject to all of the following terms,
provisions and conditions, SELLER and BUYER agree as follows:
1. Purchase and Sale; Purchase Price. (a) SELLER shall on the date of
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Closing (defined below) sell, assign, transfer, grant and convey to BUYER, and
BUYER shall purchase from SELLER, by good and sufficient special warranty deed,
upon all of the terms, covenants and conditions set forth in this Agreement,
good and indefeasible fee simple title to the Property, together with the rights
and appurtenances thereto belonging and any right, title and interest of SELLER
in and to adjacent streets, alleys and rights-of-way to the centerline thereof,
subject only to those matters expressly permitted herein. For and in
consideration of the sale, assignment, transfer, grant and conveyance of the
Property pursuant to the terms of this Agreement, BUYER shall pay the Purchase
Price (as hereinafter defined) to SELLER, in cash or immediately available
funds, at Closing, subject to the specific adjustments contemplated herein.
(b) The Purchase Price (herein so-called) for the Property shall be
an amount determined by multiplying $8.56 by the number of Net Square Feet of
land contained in the Property as determined pursuant to the Survey. For
computing the Purchase Price the "Net Square Feet" of the Property shall be the
number of gross square feet of land within the Property, less only the
number of square feet of land, if any, within (i) public streets that are
dedicated as such on the date hereof and (ii) the FEMA recognized 100-year flood
plain.
2. Xxxxxxx Money. Within fifteen (15) business days of the date a fully
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executed copy of this Agreement has been received by BUYER, BUYER shall deliver
to American Title Company, 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000
(Attn: Xxxxxxx X. Xxxxxxxx) (the "Title Company"), the sum of One Hundred
Thousand and No/100 Dollars ($100,000.00) by wire transfer to, or in the form of
cash or a cashier's check payable to the order of, the Title Company (the
"Xxxxxxx Money"). At the Closing, the Xxxxxxx Money shall be credited against
the Purchase Price. The Xxxxxxx Money shall be deposited by Title Company in an
interest-bearing account, and all interest earned thereon shall be retained in
such account and treated as additional Xxxxxxx Money for all purposes hereof.
All interest earnings on the Xxxxxxx Money shall be reported to the Internal
Revenue Service for the account of BUYER, whose Taxpayer Identification Number
is 00-0000000.
3. Closing. Subject to the provisions of Section 3(c) of this Agreement,
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the closing of the sale and purchase of the Property (the "Closing") hereunder
shall take place at the Title Company, or at such other place agreed to by
SELLER and BUYER, within thirty (30) days after the end of the Inspection
Period.
(a) At the Closing, SELLER shall deliver or cause to be delivered to
BUYER the following:
(i) Special Warranty Deed ("Deed") conveying title to the
Property to BUYER, subject to the "Permitted Exceptions" (as
hereinafter defined). The Deed shall convey the Property on an "as is"
condition and basis, with all faults, except as otherwise provided in
Section 8(a) of this Agreement.
(ii) An irrevocable commitment from the Title Company to issue,
promptly after the Closing and effective as of the Closing Date, an
Owner Policy of Title Insurance for the Property as described in
Section 6 hereof.
(iii) A certificate of Non-Foreign Status, in a form complying
with Section 1445 of the Internal Revenue Code of 1986, as amended,
and the regulations promulgated pursuant thereto.
(iv) Evidence of SELLER'S capacity and authorization to close
the transactions contemplated in this Agreement.
(v) Such other documents as are contemplated herein or as
counsel to SELLER and BUYER may mutually agree are necessary or
appropriate to carry out the intents and purposes of this Agreement,
including, if required, a xxxx of sale or other assignment of personal
property, if any, related to the Property.
(vi) Possession of the Property.
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(b) At the Closing BUYER shall deliver or cause to be delivered to
SELLER:
(i) Funds available for immediate disbursement at Closing in an
amount equal to the Purchase Price, less the amount of the Xxxxxxx
Money and as adjusted for prorations of expenses as provided herein.
(ii) The Zoning Agreement (as hereinafter defined).
(iii) Evidence of BUYER's capacity and authorization to close
the transactions contemplated in this Agreement.
(iv) Such other documents as are contemplated herein or as
counsel to SELLER and BUYER may mutually agree are necessary or
appropriate to carry out the intents and purposes of this Agreement.
(c) Subject to the terms hereof, BUYER shall have the option to
extend the Closing for two (2) additional periods of thirty (30) days each. To
exercise the first extension option ("First Extension Option") BUYER must (a)
provide to SELLER, at least three (3) business days before the initial date of
Closing, a written notice that BUYER has elected to extend the Closing by thirty
(30) days, and (b) pay to SELLER, on or before the initial date of Closing, an
extension payment ("First Extension Payment) in an amount equal to the product
of the following calculation: (Purchase Price 8%) / 12 (By way of example, if
the Purchase Price is $5,545,749.00, the extension payment would be $36,971.66).
To exercise the second extension option BUYER must (a) provide to SELLER, at
least three (3) business days before the date of Closing as extended by the
exercise of the First Extension Option, written notice that BUYER has elected to
extend the Closing for an additional thirty (30) days, and (b) pay to SELLER, on
or before the date of Closing as extended by the exercise of the First Extension
Option, an extension payment ("Second Extension Payment") in an amount equal to
the First Extension Payment. Neither the First Extension Payment nor the Second
Extension Payment will be refundable to BUYER; provided, however, the First
Extension Payment and the Second Extension Payment shall be applied to the
Purchase Price at Closing.
4. Title and Survey Review. (a) Within fifteen (15) days from the date a
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fully executed copy of this Agreement is received by BUYER, SELLER shall:
(i) cause the Title Company to issue, and deliver to SELLER and
BUYER, a preliminary title report and commitment for an Owner Policy
of Title Insurance to be in favor of BUYER covering the Property in
the amount of the Purchase Price (the "Title Commitment"), which Title
Commitment shall be accompanied by legible copies of all recorded
documents relating to easements, rights-of-way, and other matters
affecting title thereto;
(ii) cause a current boundary survey of the Property (the
"Survey") prepared by Halff Associates, Inc. (as applicable, the
"Surveyor") to be prepared and
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delivered to BUYER and the Title Company. The Survey shall be
certified to BUYER, SELLER, and the Title Company, shall specify the
Net Square Feet and the gross number of square feet in the Property,
and shall otherwise be in a form acceptable to the Title Company to
permit, at BUYER'S sole cost and election, modification of the survey
exception to the Owner's Policy of Title Insurance to be delivered to
BUYER pursuant to Section 6 hereof to read "shortages in area" only.
SELLER shall pay for the cost of the Survey initially, but if under
any circumstances whatsoever (other than a SELLER default or
termination of this Agreement pursuant to Section 8) this Agreement is
terminated and BUYER is entitled to a refund of the Xxxxxxx Money,
then anything to the contrary notwithstanding the cost of the Survey
shall be paid (or reimbursed to SELLER) out of the Xxxxxxx Money, but
in an amount not to exceed $4,000.00, before the remainder thereof is
returned to BUYER;
(iii) deliver or cause to be delivered to BUYER such existing
studies and reports specifically regarding the Property that are
within SELLER's possession; BUYER acknowledges that SELLER has
satisfied SELLER's obligations set forth in this clause (iii).
(b) BUYER shall, within thirty (30) days after receipt of the latest
to be delivered of the items in (a)(i) and (ii) above, give SELLER written
notice of any objections to title to the Property, or to the gross square
footage of the Property, as shown on the Survey, indicating that the Property is
less than 14.8 acres in size. BUYER'S failure to timely give such written notice
of objection shall be deemed to be BUYER'S approval of items (a)(i) and (ii)
above, and all matters shown therein and not objected to by BUYER shall be
deemed approved by BUYER for all purposes hereof and shall be "Permitted
Exceptions." Liens of any kind shall always be a non-permitted exception
whether or not BUYER objects to such lien.
(c) In the event BUYER objects to any of the items or matters
contemplated in items (a)(i) or (ii) above SELLER may undertake, but shall not
be obligated to undertake, to eliminate or modify all such matters to which
BUYER has objected to the reasonable satisfaction of BUYER prior to the Closing.
In the event SELLER elects not to or fails to eliminate or modify such matters
to which BUYER has objected within such period, BUYER shall have the right to
terminate this Agreement by written notice to SELLER prior to the Closing,
whereupon the Xxxxxxx Money (less $100 which shall be paid over to SELLER as
independent consideration for the execution of this Agreement) shall be promptly
returned to BUYER and this Agreement shall be null and void and of no further
force or effect. If BUYER fails to terminate this Agreement within such period
BUYER shall be deemed to have waived any remaining unsatisfied objections, and
any such remaining matters shall thereafter be deemed approved by BUYER and
shall be "Permitted Exceptions" for all purposes. In such event no adjustment
shall be made in the Purchase Price, unless hereafter otherwise agreed in
writing by the parties hereto.
5. Inspection Period.
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(a) BUYER shall have a period of sixty (60) days after the date a
fully executed copy of this Agreement is received by BUYER ("Inspection Period")
to examine the Property to determine its adequacy for BUYER'S needs. In the
event BUYER objects, in its sole discretion, on or before the end of the
Inspection Period, to the results of Studies (as defined below), or otherwise
determines the Property is unacceptable to BUYER, or for any reason or no
reason, BUYER shall have the right to terminate this Agreement, in its sole
discretion, by written notice to SELLER on or before the end of the Inspection
Period. In the event BUYER fails to give notice of termination of this Agreement
prior to the expiration of the Inspection Period BUYER shall be deemed to have
waived its right to terminate this Agreement under this Section 5. If BUYER
timely does so terminate the Agreement, the Xxxxxxx Money (less $100 to be paid
to SELLER as independent consideration for the execution of this Agreement)
shall be returned to BUYER by the Title Company.
(b) During the Inspection Period, at BUYER'S sole cost and expense,
BUYER shall have the right to conduct such environmental, soil, engineering, or
any other studies on the Property (collectively referred to as the "Studies") as
BUYER deems appropriate in its sole discretion, and to go on the Property for
the purpose of conducting the Studies. BUYER agrees to pay promptly any and all
costs and expenses incurred by BUYER in connection with the Studies, and to
allow no liens to accrue or become affixed against the Property or any portion
thereof on account of the Studies. Further, BUYER shall be responsible for any
damages caused by the persons conducting the Studies in the exercise of BUYER'S
rights to do so hereunder, including BUYER, its employees, contractors or
agents, and BUYER agrees to indemnify and hold SELLER harmless from any and all
liens, claims, damages, demands, suits, actions or causes of action arising out
of BUYER'S exercise of its rights to conduct the Studies hereunder. BUYER
further agrees that it shall not interfere with the reasonable use of the
Property by SELLER during the Inspection Period. In the event BUYER terminates
this Agreement prior to the Closing pursuant to any provision hereof, or fails
to consummate the Closing of the transactions provided for in this Agreement for
any other reason, BUYER agrees to provide to SELLER copies of any and all
reports of the Studies regarding the Property prepared pursuant to this Section
5.
(c) Notwithstanding the foregoing, BUYER shall not conduct any
environmental tests that involve drilling or core samples, or any other so-
called "Phase II" environmental testing, without the prior written permission of
SELLER, which permission may be withheld in SELLER'S sole and absolute
discretion. However, in the event BUYER reasonably concludes from a so-called
"Phase I" environmental test that any condition or uncertainty exists with
regard to the environmental condition of the Property that might be explained or
resolved by additional "Phase II" testing, and SELLER does not consent to such
additional "Phase II" testing, BUYER shall have the right to terminate this
Agreement by written notice to SELLER prior to the end of the Inspection Period,
whereupon the Xxxxxxx Money (less $100 which shall be paid over to SELLER as
independent consideration for the execution of this Agreement) shall be promptly
returned to BUYER and this Agreement shall be null and void and of no further
force or effect.
The obligations of BUYER to SELLER under the foregoing provisions shall
survive Closing and/or any termination of this Agreement.
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6. Owner's Title Policy. At the Closing SELLER shall cause to be
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furnished to BUYER a standard Owner Policy of Title Insurance as used in the
State of Texas, issued by the Title Company, insuring the good and indefeasible
fee simple title of BUYER to the Property in the amount of the Purchase Price.
The basic cost of such Owner Policy of Title Insurance shall be paid by SELLER,
but if BUYER elects to have the survey exception modified to read "shortages in
area" only, the additional premium for such modification shall be paid by BUYER.
The only exceptions to said Owner Policy of Title Insurance shall be as follows:
(a) The standard printed exceptions contained therein, provided,
however, (i) the exception relating to restrictive covenants shall specifically
describe all recorded restrictive covenants that are approved or deemed approved
by BUYER pursuant to Section 4 hereof; (ii) at the election and sole cost of
BUYER, the survey exception shall be modified to read "shortages in area" only;
(iii) the exception for taxes shall be limited to standby fees and taxes for the
year of Closing and subsequent years and subsequent assessments for prior years
due to change in land usage or ownership; and (iv) there shall be no exception
for visible or apparent easements or for the rights of parties in possession;
(b) the Permitted Exceptions;
(c) the Declaration and Supplemental Declaration (as hereinafter
defined);
(d) the Zoning Agreement;
(e) the Repurchase Option provided for in Section 11(d) hereof;
(f) any other matters approved in writing by BUYER and/or exceptions
or liens caused by the actions of BUYER.
7. Expenses. Real estate taxes and Owner's Association (defined below)
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assessments relating to the Property shall be prorated at the Closing between
the parties hereto as of the date of Closing. If the Closing occurs before the
tax rate is fixed for the year of Closing, the apportionment of real estate
taxes shall be upon the basis of real estate taxes for the preceding year and a
cash adjustment shall be made between the parties at such time as the real
estate tax statements for the year of Closing are available. Each party shall
pay for its own attorneys' fees. Title Company fees and charges shall be shared
equally by the parties, except: (i) the basic cost of the Owner's Policy of
Title Insurance covering the Property, and any other premiums in respect of the
required Title Policy other than as provided in clause (ii) below, shall be paid
by SELLER; (ii) the cost of the modification of the survey exception in the
Owner's Policy of Title Insurance to read "shortages in area" only, if elected
by BUYER, shall be paid by BUYER; and (iii) any recording costs, and all costs
or charges associated with any financing and/or equity investment that BUYER may
utilize shall be borne solely by BUYER. Any "rollback" taxes assessed against
the Property relating to periods prior to Closing as a result of a change in use
of the Property subsequent to the Closing shall be borne by SELLER.
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8. Representations and Warranties.
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(a) Each SELLER represents and warrants to BUYER, as of the date of
this Agreement and as of the date of Closing, that:
(i) Such SELLER has not received any written notice of any
violation of any ordinance, regulation, law or statute from any governmental
agency regarding the Property which has not been complied with.
(ii) There are no pending condemnation actions with respect to
the Property, nor has such SELLER received any notice of any such actions being
contemplated.
(iii) There are no options, purchase contracts or leases, written
or oral, whereunder or whereby any person has any right, title or interest in,
or right to acquire, the Property.
(iv) Such SELLER is a non-profit corporation duly organized and
existing and in good standing under the laws of the State of Texas, and such
SELLER is not insolvent or bankrupt.
(v) Such SELLER has the full right and authority to enter into
this Agreement and to consummate the sale, transfer and assignment contemplated
herein, and the person or persons signatory to this Agreement and any document
executed pursuant hereto on behalf of such SELLER have full power and authority
to bind such SELLER.
(vi) There is no litigation, action or proceeding pending or, to
the best of such SELLER'S knowledge, threatened, against such SELLER or the
Property which would in any manner constitute a lien, claim, or obligation of
any kind against the Property.
(vii) Except for matters disclosed in the Title Commitment, there
are no management, maintenance, operating, service or any other contracts or
leases that will continue to affect the Property after the Closing.
For all purposes of this Agreement, the "knowledge" of SELLER shall mean
the actual conscious knowledge of Xxxxxxx X. Xxxxxx, without inquiry.
EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, BUYER ACKNOWLEDGES AND AGREES
THAT SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND DISCLAIMS
ANY REPRESENTATIONS, WARRANTIES (OTHER THAN THE SPECIAL WARRANTY OF TITLE AS SET
OUT IN THE DEED OR AS EXPRESSLY SET FORTH HEREIN AND/OR IN THE CLOSING
DOCUMENTS), PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT, OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO THE PROPERTY:
SPECIFICALLY, BUT WITHOUT LIMITATION, EXCEPT AS EXPRESSLY STATED IN THIS
AGREEMENT,
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SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS REGARDING COMPLIANCE WITH ANY ENVIRONMENTAL PROTECTION,
POLLUTION OR LAND USES LAWS, RULES, REGULATIONS, ORDERS OR REQUIREMENTS,
INCLUDING THE EXISTENCE IN OR ON THE PROPERTY OF ANY HAZARDOUS MATERIALS OR
CONDITIONS AFFECTED BY ENVIRONMENTAL LAWS. BUYER FURTHER ACKNOWLEDGES AND AGREES
THAT HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PROPERTY, BUYER IS RELYING
SOLELY ON ITS OWN INVESTIGATION OF THE PROPERTY AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY SELLER. EXCEPT TO THE EXTENT, IF ANY, OTHERWISE
EXPRESSLY STATED IN ANOTHER PROVISION OF THIS AGREEMENT OR IN THE CLOSING
DOCUMENTS, BUYER AGREES TO ACCEPT THE PROPERTY AND HEREBY WAIVES AND RELEASES
SELLER FROM ALL OBJECTIONS OR CLAIMS AGAINST SELLER ARISING FROM OR RELATED TO
THE PROPERTY OR TO ANY HAZARDOUS MATERIALS ON THE PROPERTY, WHETHER BY CONTRACT,
UNDER LAW, UNDER ANY RIGHT OF CONTRIBUTION, OR OTHERWISE.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT ANY INFORMATION PROVIDED OR TO
BE PROVIDED WITH RESPECT TO THE PROPERTY BY BUYER WAS OBTAINED FROM A VARIETY OF
SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR
VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS AS TO THE ACCURACY
OR COMPLETENESS OF SUCH INFORMATION, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
IN THIS SECTION. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL OR
WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY,
OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON.
BUYER FURTHER ACKNOWLEDGES AND AGREES THAT TO THE MAXIMUM EXTENT PERMITTED
BY LAW, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND/OR IN THE CLOSING
DOCUMENTS, THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS"
CONDITION AND BASIS WITH ALL FAULTS. IT IS UNDERSTOOD AND AGREED THAT THE
PURCHASE PRICE HAS BEEN NEGOTIATED BASED ON THE FACT THAT THE PROPERTY IS SOLD
BY SELLER AND PURCHASED BY BUYER SUBJECT TO THE FOREGOING.
(b) BUYER represents and warrants to SELLER, as of the date of this
Agreement and as of the date of Closing, that:
(i) BUYER is a corporation duly organized and existing and in
good standing under the laws of the State of California , and BUYER is
not insolvent or bankrupt.
(ii) BUYER has the full right and authority to enter into this
Agreement and to consummate the sale, transfer and assignment
contemplated herein, and the
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person or persons signatory to this Agreement and any document
executed pursuant hereto on behalf of BUYER have full power and
authority to bind BUYER.
(c) Anything to the contrary herein notwithstanding, neither SELLER
nor BUYER shall have liability to the other with respect to any of the
representations or warranties contained herein or confirmed at the Closing
unless (i) written notice or demand with respect to the breach or alleged breach
is given within one (1) year after the Closing, and (ii) suit is filed with
respect to the breach or alleged breach of representation within two (2) years
of the Closing. Subject to the foregoing limitations, the representations and
warranties shall survive the Closing.
(d) The continued accuracy of the foregoing representations at
Closing is a condition to the respective obligations of the parties hereto. At
Closing, each party shall confirm, in writing, the continued accuracy of its
representations and warranties to the other. However, if as a result of any
change of conditions with respect to the Property and/or the acquisition by
SELLER of information not known to SELLER at the time of execution of this
Contract, SELLER is unable to confirm any such representations and warranties as
of the Closing Date, SELLER shall have the option of revising any such
representations and warranties to reflect facts or conditions then existing. If
BUYER is unwilling to accept any such modification to SELLER'S representations
and warranties, BUYER shall have the option to terminate this Agreement, in
which event the Xxxxxxx Money (less $100 independent consideration which shall
be paid to SELLER for the execution hereof) shall be returned to BUYER and
neither party hereto shall have any further obligations hereunder except for
such obligations as are intended to survive the termination of the Agreement. If
BUYER accepts such revisions, BUYER shall be deemed to have waived any rights or
remedies against SELLER with respect to the previous, unrevised version of the
representation in question.
9. Brokers. (a) Each party ("Indemnitor") represents and warrants to the
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other party ("Indemnitee") that except for The Staubach Company, which
represents BUYER, and Xxxxxxx and Xxxxxxxxx, which represents SELLER
(collectively, The Staubach Company and Xxxxxxx and Xxxxxxxxx are referred to as
"Brokers"), there are no brokers involved in this transaction acting for and on
behalf of Indemnitor for which a brokerage commission is or may become due, and
agrees to indemnify and hold Indemnitee harmless from any and all claims for
real estate or brokerage commissions or other compensation arising out of or
relating to this transaction from any broker or brokers and whose claim for such
commission or other compensation arises (or is alleged to arise) by, through, or
under the actions or purported actions of the Indemnitor. At the Closing and
conditioned upon the actual closing of the sale and payment of the Purchase
Price by BUYER to SELLER, SELLER shall be responsible for the payment of a
commission to Brokers in an amount equal to six percent (6%) of the Purchase
Price to be split equally between the Brokers
(b) BUYER acknowledges that Broker has advised BUYER that BUYER
should have an abstract covering the Property examined by an attorney of BUYER's
selection, or BUYER should be furnished with or obtain a policy of title
insurance covering the Property.
10. Non-Assignability. This Agreement may not be assigned by BUYER without
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the prior written consent of SELLER; provided, however, that no consent of
SELLER shall be required
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for an assignment by BUYER to one of the following developers: Xxxx America,
Champion Partners, Xxxx, and/or Opus, so long as such developer agrees to be
bound by the terms of this Agreement. In addition to the foregoing right of
assignment, BUYER shall have the right to assign this Agreement to an entity
which controls, is controlled by, or is under common control with BUYER.
11. Development of the Project.
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(a) BUYER understands and acknowledges that a Declaration of
Covenants, Restrictions and Development Standards Applicable to DFW Freeport, of
which the Property is a part, has been recorded in Volume 79212, Page 2965 of
the Dallas County Records, (as supplemented or amended, the "Declaration"), and
that such Declaration will affect BUYER's development of the Property. In that
regard, BUYER has been advised and acknowledges that such Declaration provides,
among other things, that: (i) owners of property within the area of the DFW
Freeport development covered by the Declaration will be members of the Freeport
Property Owners Association (the "Owner Association") subject to general and
special assessments; and (ii) prior to the commencement of construction on the
Property by BUYER, the proposed plans for construction must be reviewed and
approved by an Architectural and Environmental Control Committee ("ACC") to the
extent required in the Declaration. BUYER shall review and satisfy itself as to
the Declaration and related matters during the Inspection Period and if BUYER is
unsatisfied therewith BUYER may terminate this Agreement as provided in
Paragraph 5 hereof. BUYER and SELLER acknowledge that by letter from Xxxxx
Xxxxxx dated December 21, 2000, the ACC has given approval to BUYER's proposed
site plan contingent upon BUYER's satisfaction of the conditions set forth in
the letter. BUYER acknowledges that BUYER must satisfy the ACC with respect to
the conditions set forth in such letter. A copy of such letter and proposed
site plan are attached hereto as Exhibit "B".
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(b) During the Inspection Period BUYER shall prepare and submit
Schematic Plans (herein defined) for BUYER'S contemplated office building (the
"Project") to the ACC for review and approval in accordance with the
Declaration; provided however, submission of the Schematic Plans shall not be in
lieu of, or otherwise limit the rights of the ACC to approve, such other plans
for development which must be timely submitted to the ACC as provided for in the
Declaration. The "Schematic Plans" shall mean schematic representative
elevations with a notation for 1) the type of construction for materials to be
used for exterior walls, and 2) the location and screening of dock and loading
areas, emergency generator, trash dumpsters, and day care playground area. If
BUYER requires approval of the Schematic Plans prior to the expiration of the
Inspection Period, BUYER will submit its Schematic Plans no later than thirty
(30) days after the date a fully executed copy of this Agreement is received by
BUYER.
(c) BUYER will commence the initial phase ("Phase I") of BUYER's
development of the Property within twelve (12) months from the Closing in
accordance with plans approved by the ACC and BUYER shall thereafter proceed
diligently with completion of such development of the Property. If BUYER has not
commenced construction of Phase I on the Property within twelve (12) months from
the Closing in accordance with such plans or if BUYER has not substantially
completed construction of Phase I on the Property within thirty-six (36) months
from
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the Closing, SELLER will have the right and option, at its sole discretion, to
repurchase the Property from BUYER on the terms and conditions set forth in the
attached Rider 1, which is made a part hereof by reference. The terms and
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conditions in Rider 1 shall be set forth in the Deed at Closing. The terms
"Grantor" and "Grantee" as used in Rider 1 shall mean SELLER and BUYER,
respectively, under this Agreement.
12. Zoning Agreement. At the Closing, SELLER and BUYER shall record an
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agreement ("Zoning Agreement") wherein BUYER (on behalf of itself and any
subsequent owner of any portion of the Property claiming through BUYER) waives,
for a period of ten (10) years subsequent to the Closing, the right to object,
directly or indirectly, to any zoning change, or any amendment to any applicable
zoning classification, affecting any property owned by SELLER or its affiliates,
or by any "affiliate of Xxx X. Xxxx" (as hereinafter defined) in either case,
located in the DFW Freeport development shown on the parcel plan attached hereto
as Exhibit "A", that may be requested by (i) SELLER, its affiliates, or their
----------
successors in title or (ii) any "affiliate of Xxx X. Xxxx" (as hereinafter
defined). The term "affiliate of Xxx X. Xxxx" shall mean (a) Xxx X. Xxxx, a
resident of Dallas County, Texas; (b) Xxxx Consolidated, Inc.; or (c) any person
that is (i) the immediate maternal ancestor (and for this purpose an adopted
person shall be deemed to be the natural issue of his or her adopting parent) or
the spouse of any such living descendant, including the wife of Xxx X. Xxxx,
(ii) the trustee of any trust principally for the benefit of Xxx X. Xxxx or any
person described in (c)(i) preceding, (iii) any corporation of which the
controlling persons (hereinafter defined) are Xxx X. Xxxx, Xxxx Consolidated,
Inc., or any one or more of the person or trustees described in (c)(i) or
(c)(ii) preceding, or (iv) any partnership or other entity of which the
controlling person are Xxx X. Xxxx, Xxxx Consolidated, Inc., or any one or more
person, trustees, corporations or other entities described in (c)(i), (c)(ii),
and (c)(iii) preceding. As used herein, the term "controlling persons" means
the parties having the possession of the authority, direct or indirect, or the
power to direct or cause the direction of the management and policies of a
person, trust, corporation, partnership, or other entity, whether through the
ownership of voting securities, by agreement, or otherwise. The Zoning
Agreement shall not affect the rights that BUYER or any of its affiliates may
have as to any other land in the DFW Freeport development that BUYER or any of
its affiliates may own.
13. Defaults and Remedies.
---------------------
(a) In the event SELLER shall fail to consummate the sale of the
Property for any reason except BUYER's default or the timely and proper
termination of this Agreement by BUYER pursuant to any of the provisions hereof,
BUYER may, at its option and as its sole remedies, either: (i) terminate this
Agreement, upon which termination the Xxxxxxx Money, less $100 to be paid to
SELLER as independent consideration for the execution hereof, shall be returned
to BUYER; or (ii) enforce specific performance of this Agreement. BUYER must
make its this election of remedies within thirty (30) days of SELLER's failure
to consummate the sale of the Property. If BUYER fails to make its election
within such thirty (30) days period, then BUYER shall be deemed to have elected
as its sole remedy the remedy set forth in subsection 13(a)(i).
11
(b) In the event BUYER should fail to consummate the purchase of the
Property for any reason except SELLER's default or the timely and proper
termination of this Agreement by BUYER pursuant to any of the provisions hereof,
SELLER, as SELLER's sole remedy for BUYER's breach of this Agreement, may
terminate this Agreement by written notice given to BUYER and the Title Company,
in which case the Xxxxxxx Money shall be paid over to SELLER as liquidated and
agreed damages. However, the limitations upon the liabilities of BUYER or
remedies available to SELLER contained in this subsection 13(b) shall not apply
to or limit SELLER's right to indemnification pursuant to subsection 5(b) and in
the event a breach by BUYER of BUYER's obligations under such subsection 5(b)
SELLER shall have the right to all remedies available at law or in equity in
respect of such breach.
(c) In the event either party becomes entitled to the Xxxxxxx Money
upon termination of this Agreement in accordance with its terms the Title
Company is hereby authorized to immediately pay the Xxxxxxx Money and all
interest accrued thereon to the party or parties so entitled thereto (except
that (i) if the Xxxxxxx Money is to be delivered to BUYER under any
circumstances the Title Company shall nevertheless deliver the sum of $100 of
the Xxxxxxx Money to SELLER as independent consideration for the execution
hereof whether or not otherwise specifically provided in the section of this
Agreement under which such right to receive the Xxxxxxx Money arises, and (ii)
the Title Company shall pay over to SELLER the cost of the Survey, not to exceed
$4,000.00, under the circumstances provided for in subsection 4(a) hereof). In
the event the Title Company requires same, BUYER and SELLER covenant and agree
to deliver a letter of instruction to the Title Company directing the
disbursement of the Xxxxxxx Money to the party or parties entitled thereto and
indemnifying the Title Company against any and all claims arising out of such
payment. In the event either party hereto fails or refuses to sign or deliver
such an instruction letter when the other party is entitled to such
disbursement, then the party so failing or refusing to sign or deliver such
letter shall pay, upon the final order of the court with appropriate
jurisdiction that such other party is entitled to such disbursement, all
reasonable attorney's fees and expenses incurred by the party so entitled to
such disbursement in connection with its recovery thereof, plus interest thereon
at the maximum rate allowed by state or federal law from the date of refusal to
sign such requested release of funds.
14. Notices. Any notice to be given or to be served upon any party hereto,
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in connection with this Agreement must be in writing. If any notice is given (i)
by certified or registered mail, it shall be deemed to have been given and
received three (3) days after a certified or registered letter containing such
notice, properly addressed, with postage prepaid, is deposited in the United
States mail, (ii) by a private delivery service or recognized overnight courier,
it shall be deemed to have been given and received when delivered or attempted
to be delivered to the address of the party to whom it is addressed, (iii) by
facsimile transmission, it shall be deemed to have been given and received at
the time confirmation of such transmission is received by the sender provided
that a copy of such notice is also delivered by a private delivery service or
generally recognized overnight courier, and (iv) by any other method, it shall
be deemed to have been given and received upon actual receipt thereof regardless
of how such delivery was accomplished. In addition, SELLER will endeavor to
send a courtesy copy of any notice to those individuals whose e-mail addresses
are set forth below; provided, however, failure to send such an e-mail shall not
effect the validity of a notice
12
delivered by another method or means. Such notices shall be given to the parties
hereto at the following addresses and/or facsimile numbers:
As to BUYER:
Nissan North America, Inc.
X.X. Xxx 000
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxx Xxxxxx, Corporate Manager,
Real Estate and Facilities
FAX: 310/000-0000
Phone: 310/000-0000
E-Mail: xxx.xxxxxx@xxxxxx-xxx.xxx
with a copy to:
Nissan Motor Acceptance Corporation
0000 Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx Xxxxxxx, Facilities Manager
FAX: 972/000-0000
E-Mail: xxxxxxxx@xxxx.xxx
and to: Nissan North America, Inc.
Attn: Legal Department
000 Xxxx 000xx Xxxxxx
Xxxxxxxx, XX 00000
FAX: 310/000-0000
and to: The Staubach Company
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
FAX: 972/000-0000
Phone: 972/000-0000
As to SELLER:
The Xxxx Xxx and X.X. Xxxx Foundation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Secretary
FAX: 214/000-0000
and The Xxxx Foundation
0000 Xxxx Xxxxxx, Xxxxx 0000
00
Xxxxxx, XX 00000
Attn: Secretary
FAX: 214/000-0000
with copies to: Woodbine Development Corporation
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Tel: 214/000-0000
FAX: 214/000-0000
and Xxxxxxx X. Xxxxxx, Esq.
Xxxxx XxXxxxxxx & Oaks Xxxxxxxx, L.L.P.
2000 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Tel: 214/000-0000
FAX: 214/000-0000
Any party hereto may at any time, by giving five (5) days' written
notice to the other party hereto, designate any other address in
substitution of the foregoing address to which such notice shall be given.
15. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Texas, and the obligations of the
parties created hereunder are performable in Dallas County, Texas.
16. Binding Effect. This Agreement shall be binding upon and inure to the
--------------
benefit of the parties hereto and their respective successors and assigns.
17. No Waiver. One or more waivers of any covenant, term or condition of
---------
this Agreement by either party shall not be construed as a waiver of a
subsequent breach of the same or any other covenant, term or condition; nor
shall any delay or omission by either party to seek a remedy for any breach of
this Agreement or to exercise a right accruing to such party by reason of such
breach be deemed a waiver by such party of its remedies or rights with respect
to such breach.
18. Severability. In case any one or more of the material provisions
------------
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, this Agreement shall terminate in its entirety
and be of no further force or effect; provided, however, if any one or more of
the non-material provisions contained herein shall for any reason be held to be
invalid, illegal or unenforceable, such invalidity, illegality or
unenforceability shall not effect any other provision hereof, and this Agreement
shall be construed as if such invalid, illegal or unenforceable nonmaterial
provisions had never been contained herein.
14
19. Entire Agreement. This Agreement constitutes the entire agreement of
----------------
the parties hereto and supersedes any prior understandings or written or oral
agreements between the parties respecting the within subject matter, and this
Agreement may be amended or modified only be a written agreement signed by both
parties hereto.
20. Caption. The descriptive headings of the sections contained in this
-------
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
21. Time. Time is of the essence in the performance of the parties'
----
respective obligations contained in this Agreement.
22. Expenses and Attorneys' Fees. Except as specifically provided herein,
----------------------------
each party hereto shall bear and pay its own costs and expenses incurred in
connection with the transactions contemplated by this Agreement, including, but
not limited to, the costs of all investigations and proceedings in connection
herewith and the fees and expenses of their respective counsel, financial
advisors and accountants; provided, however, in the event that any dispute
between the parties hereto should result in litigation, the prevailing party
shall be reimbursed for all reasonable costs, including, but not limited to,
reasonable attorneys' fees, incurred in connection with such litigation.
23. Exhibits. All exhibits attached to this Agreement are hereby
--------
incorporated herein and for all purposes made a part hereof.
24. Further Assurances.
------------------
(a) In addition to the obligations required to be performed hereunder
by SELLER prior to or at the Closing, SELLER agrees to perform such other
reasonable acts and to execute, acknowledge and/or deliver subsequent to the
Closing such other reasonable instruments, documents and other materials as
BUYER may reasonably request in order to effectuate the consummation of the
transactions contemplated herein and to vest title to the Property in BUYER.
(b) In addition to the obligations required to be performed hereunder
by BUYER prior to or at the Closing, BUYER agrees to perform such other
reasonable acts, and to execute, acknowledge and/or deliver subsequent to the
Closing such other reasonable instruments, documents and other materials, as
SELLER may reasonably request in order to effectuate the consummation of the
transactions contemplated herein.
25. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
26. Number and Gender. All words herein shall be deemed to refer to the
-----------------
masculine, feminine or neuter, singular or plural, as the context may require.
15
27. Date of Agreement. When used herein, the phrases "the effective date",
-----------------
"the date of this Agreement", or "the date hereof" or similar phrases shall mean
that date upon which Title Company has received fully executed counterparts of
this Agreement.
28. DTPA WAIVER. BUYER REPRESENTS AND WARRANTS TO SELLER THAT (A) BUYER IS
-----------
NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION, (B) BUYER IS REPRESENTED
BY LEGAL COUNSEL, (C) THE PROPERTY WILL NOT BE USED AS A FAMILY RESIDENCE, (D)
BUYER IS A BUSINESS CORPORATION THAT EITHER HAS ASSETS OF $5,000,000 OR MORE, OR
IS OWNED OR CONTROLLED BY A CORPORATION OR ENTITY WITH ASSETS OF $5,000,000 OR
MORE, OR BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE
MERITS AND RISKS OF THIS TRANSACTION. BUYER HEREBY WAIVES TO THE FULLEST EXTENT
PERMITTED BY LAW ANY RIGHTS, REMEDIES AND BENEFITS UNDER THE TEXAS DECEPTIVE
TRADE PRACTICES - CONSUMER PROTECTION ACT (SECTIONS 17.41 AND FOLLOWING OF THE
TEXAS BUSINESS AND COMMERCE CODE) (THE "DTPA") AND ANY OTHER SIMILAR CONSUMER
PROTECTION LAW, WHETHER FEDERAL, STATE OR LOCAL. BUYER COVENANTS NOT TO XXX
SELLER UNDER THE DTPA OR ANY SUCH SIMILAR CONSUMER PROTECTION LAW.
29. Escrow Agent. Title Company (hereinafter in this subsection, in its
------------
capacity as holder of the Xxxxxxx Money only, being referred to as the "Escrow
Agent") shall hold the Xxxxxxx Money in accordance with the terms and provisions
of this Agreement, subject to the following:
The Escrow Agent undertakes to perform only such duties with respect
to the Xxxxxxx Money as are expressly set forth in this Agreement and no
implied duties or obligations with respect to the Xxxxxxx Money shall be
read into this Agreement against Escrow Agent.
In performing its activities hereunder in such capacity, Escrow Agent
may act in reliance upon any writing or instrument or signature which it,
in good faith, believes to be genuine, and may assume that any person
purporting to give any writing, notice, advice or instrument in connection
with the provisions of this Agreement has been duly authorized to do so.
Escrow Agent shall not be liable in any manner for the sufficiency or
correctness as to form, manner and execution, or validity of any instrument
deposited in escrow, nor as to the identity, authority, or right of any
person executing the same, and Escrow Agent's duties in such capacity under
this Agreement shall be limited to those provided in this Agreement.
Unless Escrow Agent discharges any of its duties under this Agreement
with respect to the Xxxxxxx Money in a negligent manner or is guilty of
willful misconduct with regard to its duties under this Agreement, SELLER
and BUYER shall indemnify Escrow Agent and hold it harmless from any and
all claims, liabilities, losses, actions, suits or proceedings at law or in
equity, or other expenses, fees, or charges of any character or nature,
which it may incur or with which it may be threatened by reason of its
acting as Escrow Agent with respect to the Xxxxxxx Money under this
Agreement; and in such connection SELLER and
16
BUYER shall indemnify Escrow Agent against any and all expenses, including
reasonable attorneys' fees and the cost of defending any action, suit or
proceeding or resisting any claim in such capacity.
If the parties (including Escrow Agent) shall be in disagreement about
the interpretation of this Agreement, or about their respective rights and
obligations, or the propriety of any action contemplated by Escrow Agent
with respect to the Xxxxxxx Money, Escrow Agent may, but shall not be
required to, file an action in interpleader to - resolve the disagreement.
Escrow Agent shall be indemnified for all costs and reasonable attorneys'
fees in its capacity as Escrow Agent in connection with any such
interpleader action and shall be fully protected in suspending all or part
of its activities under this Agreement until a final judgment in the
interpleader action is received.
Nothing in this subsection shall in any manner affect the obligations of
the Title Company in its capacity as the issuer of the Title Commitment and/or
the Title Policy, nor in its capacity as the closer of the transaction, nor
shall the foregoing indemnities of BUYER and SELLER be applicable to the Title
Company other than in its capacity as the holder of the Xxxxxxx Money.
30. Date Convention. If any time period provided for herein ends on a
---------------
Saturday, Sunday, or holiday, the time period in question will be extended the
next day that is not a Saturday, Sunday, or holiday.
31. Filing of Plat. BUYER agrees that it shall not be entitled to file its
--------------
revised plat for the Property until Closing; provided, however, that BUYER shall
be permitted to obtain all necessary consents to and approvals of the plat from
all requisite authorities prior to Closing.
32. Confidentiality. BUYER and SELLER agree that the terms and conditions
---------------
of this Agreement, and any prior negotiations of the parties with regard to the
Property, shall be kept confidential by the parties and shall not be disclosed
to any third party except the Title Company, the parties' brokers and legal
representatives and such other third parties as have a specific need to know
such information including BUYER's lender and developer, or as may be required
in response to a valid subpoena or other lawful process.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates set forth below but to be effective as of the effective date provided for
herein.
[SIGNATURES ON FOLLOWING PAGE]
17
BUYER:
-----
NISSAN MOTOR ACCEPTANCE CORPORATION,
a California corporation
By: /s/ Xxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxx Xxxxx
--------------------------------
Title: President
-------------------------------
SELLER:
------
THE XXXX XXX AND X.X. XXXX FOUNDATION, a Texas non-
profit corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President
-------------------------------
THE XXXX FOUNDATION, a Texas non-profit corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Secretary
-------------------------------
TITLE COMPANY:
-------------
AMERICAN TITLE COMPANY
"Date Hereof" By: /s/ Xxx Xxxxxxxx
----------------------------------
Name: Xxx Xxxxxxxx
--------------------------------
Date : Jan 30, 2001 Title: Escrow Officer
-------------- -------------------------------
18
EXHIBIT A
---------
LEGAL DESCRIPTION OF THE PROPERTY
---------------------------------
19
EXHIBIT "A"
-----------
FIELD NOTES
BEING a tract of land situated in the Xxxxxxxx Xxxxx Survey, Abstract No. 56,
Dallas County, Texas, and being all of Xxx 0, Xxxxx X xx XXX Xxxxxxxx, 12th
installment, an addition to the City of Irving, Texas, recorded in volume 86246
Page 317, Deed Records of Dallas County, Texas, (D.R.D.C.T.), said tract being
more particularly described by metes and bounds as follows:
BEGINNING at a 1/2-inch iron rod with "Halff Assoc., Inc." cap (hereafter
referred to as "with cap") set for corner at the north end of a right-of-way
corner clip at the intersection of the northeast right-of-way line of Esters
Boulevard (80 foot right-of-way) and the southeast right-of-way line of Freeport
Parkway (100 foot right-of-way);
THENCE North 54 degrees 19 minutes 10 seconds East, with said southeast
right-of-way line of Freeport Parkway, a distance of 57.16 feet to a 1/2-inch
iron rod with cap set at the beginning of a curve to the left having a radius of
880.59 feet;
THENCE in a northerly direction, continuing with said southeast right-of-way
line and along said curve to the left, through a central angle of 44 degrees 00
minutes 00 seconds, an arc distance of 676.24 feet to a 1/2-inch iron rod with
cap set for corner;
THENCE North 10 degrees 19 minutes 10 seconds East, continuing along said
right-of-way line, a distance of 87.55 feet to a 1/2-inch iron rod with cap set
for corner, said point being the southwest end of a right-of-way corner clip at
the intersection of said southeast right-of-way (100 foot right-of-way);
THENCE North 55 degrees 19 minutes 10 seconds East, along said right-of-way
corner clip, a distance of 25.00 feet to a 1/2-inch iron rod with cap set for
corner an said southwest line of Regent Boulevard;
THENCE South 79 degrees 40 minutes 50 seconds East, along said southwest
right-of-way, a distance of 402.27 feet to a 1/2-inch iron rod with cap set at
the beginning of a curve to the right having a radius of 549.97 feet;
THENCE in a southeasterly direction, continuing with said southwest right-of-way
line, along said curve to the right, through a central angle of 43 degrees 56
minutes 10 seconds, an arc distance of 421.73 feet to a 1/2-inch iron rod with
cap set at the end of said curve;
THENCE South 35 degrees 44 minutes 40 seconds East, continuing with said
southwest right-of-way line, a distance of 88.38 feet to a 1/2-inch iron rod
with cap set for corner, said point being the northern most corner of Xxx 0,
Xxxxx X xx xxxx 00xx installment;
THENCE South 54 degrees 19 minutes 10 seconds West, departing said southwest
right-of-way line and along the northwesterly line of said Lot 6, passing at a
distance of 820.00 feet a 1/2-inch iron rod found for the western most corner of
Lot 6, also being the northern most corner of Xxx 0X, Xxxxx X, XXX Xxxxxxxx,
12th installment revision, an addition to the City of Irving, Texas, recorded in
volume 94036, Page 4168, D.R.D.C.T., and continuing along the northwesterly line
of said Lot 9B, in all a distance of 1208.41 feet to a 1/2-inch iron rod with
cap found on said northeast right-of-way line of Esters Boulevard;
THENCE North 35 degrees 40 minutes 50 seconds West, with said northeast
right-of-way line, a distance of 433.97 feet to a 1/2-inch iron rod with cap set
at the south end of the aforementioned corner clip at the intersection of Esters
Boulevard and Freeport Parkway;
THENCE North 09 degrees 19 minutes 10 seconds East, with said right-of-way
corner clip, a distance of 25.00 feet to the POINT OF BEGINNING AND CONTAINING
647,857 square feet or 14.873 acres of land, more or less.
