EXHIBIT 10.92
AMENDMENT NO.1
TO
FACILITY DEVELOPMENT AGREEMENT
THIS AMENDMENT NO. 1 TO THE FACILITY DEVELOPMENT AGREEMENT is made and
effective as of March 30, 2000, by and between Tarrant Mexico, S. de X.X. de
C.V., a limited liability company formed under the laws of the Republic of
Mexico ("Purchaser"), and Tex Transas, S.A. de C.V., a corporation formed under
the laws of the Republic of Mexico ("Seller"), with respect to that certain
Facility Development Agreement effective as of December 2, 1998, by and between
Purchaser and Seller (the "Facility Development Agreement"), with respect to the
following facts:
A. Purchaser and Seller desire to amend the Facility Development
Agreement in the manner set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and of the
agreements contained herein, and intending to be legally bound hereby, Purchaser
and Seller hereby agree as follows:
1. Paragraph 4(a) of the Facility Development Agreement hereby is amended
to read in its entirety as follows:
At any time on or before September 30, 2002, the Purchaser shall have the
right, but not the obligation, to purchase from the Seller, and the Seller
shall sell to the Purchaser, the Facility free and clear of all liens,
claims, charges, encumbrances, security interests and other restrictions on
the ownership or use thereof by delivering to the Seller a written notice
of its intent to purchase the Facility (the "Purchase Notice").
2. Paragraph 4(b) of the Facility Development Agreement hereby is amended
to read in its entirety as follows:
The purchase price of the Facility (the "Purchase Price") shall be mutually
agreed upon by the Purchaser and the Seller within thirty (30) days of the
Seller receiving the Purchase Notice. If the Purchaser and the Seller are
unable to agree on the purchase price within that period, then within
fifteen (15) days after the expiration of that period the Purchaser and the
Seller shall appoint a mutually acceptable real estate appraiser with full-
time commercial appraisal experience in the area in which the Facility is
located to appraise and determine the Fair Market Value (as defined below)
of the Facility within thirty (30) days after such appraiser's selection,
which Fair Market Value thereafter shall be the Purchase Price. If the
Purchaser and the Seller are unable to mutually agree on an appraiser, then
each of the parties shall appoint an independent appraiser and notify the
other party of such appraiser's name and business address, all within forty
(40) days of the Seller receiving the Purchase Notice. The two appraisers
shall then appoint a third independent appraiser, within sixty (60) days of
the Seller receiving the Purchase Notice. Each appraiser shall be
qualified under the same criteria set forth above for qualification of a
mutually acceptable appraiser. If either party shall fail to appoint an
appraiser as set forth above, then the appraiser appointed by the other
party shall act as the
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sole appraiser of the Facility. Each of the parties shall bear the cost of
any appraiser appointed by it and one-half of the cost of the third
appraiser. Within thirty (30) days after selection of the third appraiser,
a majority of the appraisers shall determine the Fair Market Value of the
Facility, which Fair Market Value thereafter shall be the Purchase Price of
the Facility. If a majority of the appraisers are unable to agree upon the
Fair Market Value within the stipulated period of time, each appraiser
shall deliver to the Purchaser, the Seller and each other appraiser its
determination of the Fair Market Value of the Facility and the three
appraisals shall be added together and their total divided by three; the
resulting quotient shall be the Purchase Price of the Facility. If any
appraiser shall fail to provide its determination of the Fair Market Value
of the Facility as set forth above, then the other appraisals shall be
added together and their total divided by the number of such appraisals;
the resulting quotient shall be the Purchase Price of the Facility. For
purposes of this Section 4(a), "Fair Market Value" means the amount that a
willing buyer would pay and a willing seller would accept in arm's length
negotiations, which shall take into account the location of the Facility,
considering comparable buildings in the immediate area.
3. Paragraph 4(c) of the Facility Development Agreement hereby is amended
to read in its entirety as follows:
The closing of the purchase and sale of the Facility (the "Closing") shall
take place at the place and on the date and at the time set forth in the
Purchase Notice, but in no event later than 12:00 p.m. (Los Angeles time)
on September 30, 2002.
4. Except as expressly provided in this Amendment, the Facility
Development Agreement shall remain in full force and effect and is hereby
ratified and confirmed as it pertains to Purchaser and Seller's rights and
obligations pursuant to the Facility Development Agreement.
5. This Amendment (i) shall be binding upon the parties hereto and their
respective successors, agents, representatives, assigns, officers, directors and
employees; (ii) may not be amended or modified except in writing; (iii)
represents the entire understanding of the parties with respect to the subject
matter hereof; (iv) may be executed in separate counterparts, each of which
shall be deemed an original but all such counterparts shall together constitute
one and the same instrument; and (v) shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts made
and to be performed solely within that state. In the event of any conflict
between the Facility Development Agreement and this Amendment, the provisions of
this Amendment shall govern.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first set forth above.
Purchaser: TARRANT MEXICO, S. de X.X. de C.V
By /S/ Xxxxxx Xxxx
_________________________
Xxxxxx Xxxx
Authorized Representative
Seller: TEX TRANSAS, S.A. de C.V.
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By_________________________
Authorized Representative
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