AGREEMENT OF PURCHASE AND SALE
AGREEMENT
OF PURCHASE AND SALE
THIS
AGREEMENT OF PURCHASE AND SALE (this “Agreement”)
is
made
and entered into
effective as of June 25, 2007 (the “Effective
Date”) and
between STANDARD MOTOR
PRODUCTS,
INC., a New York corporation (“Seller”) and
THE LEATHER
FACTORY,
L.P., a Texas limited partnership (“Purchaser”).
WITNESSETH:
ARTICLE
I
GENERAL
1.1 Agreement
to Sell and Purchase. Seller hereby agrees to sell and convey to
Purchaser, and Purchaser hereby agrees to purchase and accept from Seller,
for
the Purchase Price (hereinafter defined) and upon and subject to the terms
and
conditions hereinafter set forth, all of the following described property
(hereinafter referred to collectively as the
“Property”):
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(a)
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That
certain tract or parcel of land owned by Seller lying and being
situated
in the City of Fort Worth, County of Tarrant, State of Texas, and
being
more particularly described as Exhibit A attached hereto, subject
to the provisions of Section 1.4 herein (the
“Land”);
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(b)
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All
buildings, improvements and fixtures situated on the Land (collectively,
the
“Improvements”);
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(c)
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All
of the rights and appurtenances pertaining to the Land and the
Improvements, including all right, title and interest of Seller
in and to
adjacent streets, alleys, easements and
rights-of-way;
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(d)
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All
other rights, privileges and appurtenances owned by Seller and
in anyway
related to the property described above, and such other rights,
interests
and properties as may be specified in this Agreement to be sold,
transferred, assigned or conveyed by Seller to Purchaser;
and
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(e)
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All
transferable licenses, permits, and certificates of occupancy,
if any,
that relate to the Land or
Improvements.
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(f)
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The
following personal property (“Personal Property”):
electrical, plumbing, HVAC, air compressors, phone equipment
system and one-half (1/2) of the cubical furniture, all racks,
bins and
shelving not presently subject to a lease agreement, as more particularly
described on Exhibit D as “Modular Furniture to Convey with
Property.
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1.2 Purchase
Price. The purchase price (the “Purchase Price”) to be
paid for the Property shall be Four Million Five Hundred Thousand AND NO/100
DOLLARS ($4,500,000.00), payable in cash or immediately available wire
transferred funds at the Closing (hereinafter defined).
1.3 Xxxxxxx
Money. Within two (2) days following the Effective Date, and as
conditions to Seller’s obligations
hereunder, Purchaser shall deposit with Rattikin Title Company, 000 Xxxx
Xxxxxx,
Xxxxx 000, Xxxx Xxxxx, Xxxxx 00000-0000, Attention: Mac Miles (the
“Title Agent”), as agent
for
(the “Title Company”), the sum of One Hundred Thousand and
NO/100 Dollars ($100,000.00) to be invested by the Title Agent in a segregated,
interest-bearing account with a financial institution approved by Seller
and
Purchaser whose accounts are insured by the Federal Deposit Insurance
Corporation, and to be held and disbursed by the Title Agent strictly in
accordance with the terms and provisions of this Agreement. The amount of
such
deposit is hereinafter referred to as “Xxxxxxx Money.” At the
Closing (hereinafter defined), the Xxxxxxx Money shall be applied to the
payment
of the Purchase Price. All accrued interest on the Xxxxxxx Money shall become
part of the Xxxxxxx Money and shall be distributed as part of Xxxxxxx Money
in
accordance with the terms of this Agreement.
1.4 Mineral
Reservation. Seller agrees to sell and convey to the Purchaser
fifty-one percent (51%) of the oil, gas, and other minerals in and under
and
that may be produced from the Land and all of the executive rights applicable
to
the Land together with the right of ingress and egress for the purpose of
exploring, drilling, mining for, and producing oil, gas, and other minerals,
which will entitle Purchaser to fifty-one percent (51%) of all royalties
under
any existing and/or future leases. Seller will reserve unto itself, its heirs,
successors and assigns, forty-nine percent (49%) of the oil, gas, and other
minerals in and under and that may be produced from the Land subject to this
Agreement, together with the right to receive a like part of all royalties,
bonuses, and rentals payable under any lease in the proportion that the reserved
interest bears to one hundred percent (100%) of the fee mineral interest
under
the Land. Seller is expressly authorized to enter into any mineral lease
pending
Closing, and the conveyance to Purchaser under this Agreement will be subject
to
any mineral lease existing at Closing. In the event that a mineral lease
is
executed after the Effective Date, but prior to the Closing Date, Seller
shall
pay Purchaser at Closing fifty-one percent (51%) of all royalties, bonuses
and
rentals received by Seller after the Effective Date, but prior to Closing
Date,
on any such executed mineral lease. Purchaser agrees to ratify any mineral
lease
existing as of the Closing Date. Anything to the contrary herein
notwithstanding, Purchaser has the right to approve any mineral lease prior
to
its execution. Such approval shall not be unreasonably withheld. If Purchaser
fails to approve or reject any mineral lease within ten (10) business day
after
the same has been submitted to Purchaser by Seller, such mineral lease shall
be
deemed approved.
In
the
event that a mineral lease is executed after the Effective Date, but prior
to
the Closing Date, Seller shall pay Purchaser at Closing, in addition to the
above, fifty-one percent (51%) of all payments received for surface damages
and
one-hundred percent (100%) of all payments received for easements for roads
and
transmission lines.
1.5 Excluded
Assets. Seller shall retain and remove all office furniture in all
private offices and conference rooms, one-half (1/2) of all cubical furniture,
and all personal items of employees and officers of the company. Seller must
obtain Purchaser’s written approval prior to removing any items from the
Property.
ARTICLE
II
TITLE
COMMITMENT AND SURVEY;
REVIEW
AND INSPECTION BY PURCHASER
2.1 Title
Commitment. Seller, at Seller’s expense, will provide Purchaser an
updated title commitment within fifteen (15) days of the effective date of
this
contract (the “Title Commitment”), issued by Title Company
describing the Land (which legal description, as determined by the Survey
referenced in Section 2.3 herein below, shall be incorporated into this
Agreement and used in all closing documents), specifying Purchaser or its
assignee as the prospective named insured, showing the Purchase Price as
the
prospective policy amount, showing the status of title of the Land and all
exceptions (including, but not limited to, easements, declarations,
restrictions, rights-of-way, covenants, reservations, encumbrances, liens
and
other conditions, if any, affecting the Land) which would appear in an Owner
Policy of Title Insurance, when issued, together with true, correct and legible
copies of all items and documents referred to therein including copies of
tax
certificates covering all taxes affecting the Property. With regard to the
standard printed exceptions and other exceptions commonly included in title
commitments, the exception for areas and boundaries shall (at Seller’s expense)
be endorsed to provide that the exception shall be amended at Closing to
except
only to “Shortages in Area” upon receipt from Seller of a survey acceptable to
the Title Company and the applicable premium therefor paid by Purchaser;
no
exceptions shall be permissible for parties in possession, except pursuant
to
recorded leases; the exception for restrictive covenants shall be deleted
or
endorsed “None of Record except... (with an express description by applicable
recording data of those restrictive covenants and declarations of covenants
affecting the Land)”; the exception for taxes shall be limited to standby fees
and taxes owing for the year in which the Closing occurs and subsequent years
and subsequent assessments for prior years due to changes in land use of
the
Property; there shall be no exception for any lien for service, labor or
materials heretofore or hereafter provided, imposed by law and not shown
by the
public records; and there shall be no general exception for visible and apparent
easements or roads and highways or similar items (with any such specific
exception to be specifically referenced to, and shown on, the Survey described
in Section 2.3 and also identified by any applicable recording
data).
2.2 [Intentionally
deleted]
2.3 Survey.
Purchaser here by acknowledges that it is in receipt of a current “as-built”
survey of the Land and Improvements (“Survey”), prepared by a duly licensed land
surveyor or engineer reasonably acceptable to the Title Company and Seller.
The
Survey shall be currently dated, shall show the location on the Land of all
improvements, buildings and set-back lines, fences, evidence of abandoned
fences, ponds, creeks, streams, rivers, officially designated 100-year flood
plains and flood prone areas, canals, ditches, ponds, streams, rivers, creeks,
watercourses, easements, roads, rights-of-way and encroachments, and shall
contain a legal description of the boundaries of the Land by metes and bounds
(which shall include a reference to the recorded plat, if any), and a
computation of the area comprising the Land in both acres and square feet
(to
the nearest one-thousandth of said respective measurement). At the Closing,
the
metes and bounds description of the Land reflected in the Survey will be
used in
the Deed (hereinafter defined) and any other documents requiring a legal
description of the Land. The surveyor shall certify to Seller, to the Purchaser
and/or its assigns, to Purchaser’s lender, and to the Title Company, in form
acceptable to the Purchaser, that the Survey is correct and was made on the
ground; that there are no visible discrepancies, conflicts, encroachments,
protrusions, overlapping of improvements, violations of building or set-back
lines, fences, evidence of abandoned fences, ponds, creeks, streams, rivers,
officially designated 100-year flood plains or flood prone areas, canals,
ditches, ponds, streams, rivers, creeks, watercourses, easements, roads or
rights-of-way (except as are clearly shown and described on the survey plat);
and that the computation of the area of the land shown is correct. Any and
all
recorded matters shown on the Survey shall be legibly identified by appropriate
volume and page recording references with dates of recording noted and the
Survey shall show the location of all adjoining streets.
2.4 Review
Period and Cure Period. Purchaser shall have until the earlier to occur
of (i) 5 days following the receipt of the Title Commitment or (ii) the
expiration of the Inspection Period (hereinafter defined), to review the
Title
Commitment, and Survey (“Review Period”). In the event any
exceptions to title appear in the Title Commitment, or any Uniform Commercial
Code filings exist, or any matters appear in the Survey, that are unacceptable
to Purchaser, Purchaser shall, within said Review Period, notify Seller in
writing of such fact. Upon the expiration of said Review Period, Purchaser
shall
be deemed to have accepted all exceptions to title referenced in the Title
Commitment and all matters shown on the Survey except for matters which are
the
subject of a notification permitted under the following sentence, and such
accepted exceptions shall be included in the term “Permitted Exceptions” as used
herein. In the event that Purchaser does object to any title exceptions or
matters shown in the Title Commitment and/or the Survey within the Review
Period, Seller shall have ten (10) days from receipt of notice of such
objections ( “Cure Period”) within which to eliminate or modify
any such unacceptable exceptions or items to the reasonable satisfaction
of
Purchaser. Seller may, but shall have no obligation, to eliminate any such
unacceptable exceptions or items in order to so eliminate or modify such
unacceptable items. In the event that Seller is unable or unwilling to eliminate
or modify such unacceptable items to the reasonable satisfaction of Purchaser
on
or before the expiration of said Cure Period, Seller shall notify Purchaser
in
writing of such fact within said Cure Period. In the event Seller notifies
Purchase that it is unwilling or unable to cure such unacceptable exceptions
or
Seller fails to notify Purchaser whether or not it will cure such items,
Purchaser shall, on or before ten (10) days after the expiration of the Cure
Period, either (a) waive such objections and accept title to the Property
subject to such unacceptable items (which items shall then be deemed to
constitute part of the “Permitted Exceptions”)
or (b) terminate this Agreement by written
notice to Seller and receive
an immediate refund of the Xxxxxxx Money, plus all accrued interest thereon,
whereupon this Agreement shall automatically be rendered null and void and
of no
further force and effect. The failure of Purchaser to so notify Seller of
its
decision on or before the ten (10) days after the expiration of the Cure
Period
shall be deemed to constitute Purchaser’s election to accept title to the
Property subject to the unacceptable items.
2.5 Inspection
by Purchaser. Purchaser shall have the right, at Purchaser’s expense,
through July 12, 2007 (the “Inspection Period”) to inspect the
Property and all documents in Seller’s possession
relating to the Property and operations thereof, including without limitation
books, records, service contracts, real estate tax statements covering the
Property for the current year, all environmental reports covering the Property,
if any, and other documents maintained by or for the Seller, and to conduct
such
due diligence review, inspections (including environmental inspection), tests
and studies (including economic feasibility studies) (“Other Related
Documents”) as Purchaser may deem necessary or appropriate in order to
determine if the Property is in satisfactory condition and is suitable for
Purchaser’s purpose.
Purchaser
hereby acknowledges that Seller delivered and that Purchaser is in receipt
of
all documents that were in Seller’s possession
relating to the Property and operations thereof, and Other Related
Documents.
Purchaser
shall provide Seller with a copy of any and all reports, inspections, tests
and
studies, or any other documents created in connection with a due diligence
review pursuant to this provision, including without limitation Phase I and
Phase II Environmental Report.
At
least
twenty-four (24) hours prior to any entry of the Property to conduct any
supervised physical testing or inspection, Purchaser shall: (i) deliver to
Seller telephonic, e-mail, or written notice of its intention to the enter
the
Property, and Seller shall have the right to have one or more of its agents
and/or representatives accompany the Purchaser and (ii) provide Seller
sufficient evidence to show that Purchaser and its agents and representatives
who entered the Property are adequately covered by policies of insurance,
issued
by a carrier reasonably acceptable to Seller, insuring Purchaser and Seller
against any and all liability arising out of Purchaser’s or Purchaser’s agents’
or representatives’ entry upon and investigation respecting the
Property.
Purchaser
shall indemnify, and hold harmless Seller for all reasonable costs and expenses
required to repair or restore any property damaged by Purchaser or its agents
in
conducting such tests. The indemnification of Seller by Purchaser in the
preceding sentence shall survive the termination of this Agreement or the
Closing.
During
the Inspection Period, Purchaser may, at Purchaser’s election
and at
its sole expense, perform any or all of the following, and Seller shall have
absolutely no responsibility, obligation for payment of or reimbursement
for, or
liability in connection with such items:
(a) Obtain
a written commitment from the appropriate Governmental Authority that following
the Closing, the Property will be appropriately zoned for Purchaser’s intended
use thereof.
(b) Obtain
from the appropriate Governmental Authorities all permits, approvals and
consents (or written commitments that such will be forthcoming) required
by such
Governmental Authorities, or alternatively satisfy itself that all such required
permits, approvals and consents are readily obtainable, including without
limitation any and all access and building permits, environmental and ecological
approvals, subdivision plat approvals, site plan approvals, utility hook-up
permits, and lot split approvals.
(c) Conduct
a Phase I environmental assessment of the Property, and conduct such additional
environmental studies or assessments as Purchaser may deem appropriate. In
that
connection, Purchaser will rely solely on such assessments and reports which
Purchaser shall conduct, and no representations, warranties, reports or
environmental assessments provided by Seller will be relied upon by Purchaser
in
respect to the Property condition or Purchaser’s decision to purchase
same.
In
the
event that Purchaser shall fail to close on the purchase of the Property,
Purchaser will restore the Land and the Property to its condition immediately
prior to Purchaser’s conducting of such inspections and
tests.
2.6 Termination
During Inspection Period. If the Purchaser determines, in Purchaser’s
sole discretion, that the Property is not suitable for any reason for
Purchaser’s intended use or is not in satisfactory condition, then Purchaser may
terminate this Agreement by providing written notice of termination within
the
Inspection Period. The Xxxxxxx Money shall be refunded to the Purchaser less
the
sum of $100.00 to be retained by Seller as independent consideration for
Purchaser’s right to terminate under this provision. If the Purchaser does not
terminate this Agreement within the Inspection Period, any objections with
respect to the condition of the Property, inspection, studies, and assessments
under Section 2.2 shall be deemed waived by the Purchaser.
ARTICLE
III
REPRESENTATIONS,
WARRANTIES, COVENANTS,
AND
AGREEMENTS
3.1 Representations
and Warranties of Purchaser.
To
induce
Seller to enter into this Agreement and to consummate the sale and purchase
of
the Property in accordance herewith, Purchaser represents and warrants to
Seller, as of the Effective Date and as of the Closing Date, except where
specific reference is made to another date or dates, in which case the other
date or dates will apply, that:
(a) Purchaser
has full power and authority to execute, deliver, and consummate this Agreement
subject to the conditions to Closing set forth in this Agreement. No provisions
exist in any contract, document, or other instrument to which Purchaser is
a
party or by which Purchaser is bound that would be violated by consummation
of
the transactions contemplated by this Agreement.
(b) Purchaser
is a limited partnership duly organized, validly existing, and in good standing
under the laws of the State of Texas.
(c) Neither
the execution nor delivery of this Agreement by Purchaser will result in
a
violation or breach of any term or provision or constitute a default under
any
agreement to which Purchaser is a party.
3.2 Representations
and Warranties of Seller.
To
induce
Purchaser to enter into this Agreement and to consummate the sale and purchase
of the Property in accordance herewith, Seller represents and warrants to
Purchaser as of the Effective Date and as of the Closing Date, except where
specific reference is made to another date or dates, in which case the other
date or dates will apply, that:
(a) There
are no actions, suits or proceedings pending or, to the best knowledge and
belief of Seller, threatened or asserted against Seller affecting any portion
of
the Property, at law or in equity or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign;
(b) Seller
has not received any notices of any condemnation actions, special assessments
or
increases in the asserted valuation of taxes or other impositions of any
nature
which are pending or being contemplated with respect to the Property or any
portion thereof;
(c) Except
as to the Permitted Exceptions, there are no liens or security interests
against
the Land, the Improvements or against any other portion of the Property (which
will not be paid on or before Closing), nor are there any actions pending
which
would result in the creation of any lien for any Improvements, and Seller
shall
not create or voluntarily permit to be created any liens, easements or other
conditions affecting any portion of the Property without the prior written
consent of Purchaser. At the Closing, there will be no unpaid bills or claims
in
connection with any construction or repair of the Improvements or other work
performed or material purchased in connection with the
Improvements;
(d) Seller
has full power and authority to execute, deliver, and consummate this Agreement
subject to the conditions to Closing set forth in this Agreement, and by
proper
corporate action has duly authorized the execution and delivery of this
Agreement and the consummation of the transaction herein
contemplated;
(e) This
Agreement is a valid obligation of Seller and is binding upon Seller in
accordance with its terms;
(f) Seller
is the owner of good and indefeasible fee simple title to the Property, free
and
clear of any liens, deeds of trust, pledges, security interests, leases,
charges, encumbrances or restrictions of any kind, except as will be shown
in
the Title Commitment to be provided in accordance with this Agreement (which
liens, deeds of trust, and security interests will be released at Closing
as a
condition precedent to Closing);
(g) Seller
has paid all taxes, charges and assessments (special or otherwise) required
to
be paid to any taxing authority which could in any way now or hereafter
constitute a lien against the Property or any part thereof (except for taxes
and
assessments payable during the current year). Seller has not received any
notice
from any taxing authority or governmental agency asserting that Seller has
failed to file or has improperly filed any tax return or report required
to be
filed by it, or that it has not paid all taxes, charges or assessments now
owing
by it (except current taxes and assessments not yet delinquent) which could
in
any way now or hereafter constitute a lien against the Property or any part
thereof; and no action or proceeding is now pending by a governmental agency
or
authority for the assessment or collection of such taxes, charges or assessments
against Seller; and
(h) Neither
the execution nor delivery of this Agreement by Seller will result in a
violation or breach of any term or provision or constitute a default under
any
agreement to which Seller is a party.
ARTICLE
IV
THE
CLOSING
4.1 The
Closing Date. The consummation of the transactions contemplated by this
Agreement (the “Closing”) shall take place in the offices of
the Title Agent within fifteen (15) days after the expiration of the Inspection
Period, but not later then July 31, 2007 (the “Closing
Date”).
4.2 Seller’s
Obligations at the Closing. Seller shall deliver or cause to be
delivered to Purchaser the following items at the Closing (or by such earlier
date as specifically stated):
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(a)
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Special
Warranty Deed (the “Deed”), in the form attached hereto
as Exhibit “B” executed by Seller, conveying marketable title to the Land
and Improvements to Purchaser, subject to the Permitted
Exceptions,
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(b)
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Certificate
of non-foreign status (the “Certificate of
Nonforeign Status”), in the form attached hereto as Exhibit
“C.”
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(c)
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Owner
Policy of Title Insurance (the “Owner Title Policy” )
issued by the Title Company, insuring good and indefeasible title
to the
Property in Purchaser in a face amount equal to the Purchase Price,
and
containing no exceptions other than the Permitted Exceptions. Purchaser
may request and obtain deletion of the survey exception save “shortages in
area” at its sole cost and expense. Seller agrees to take all reasonable
actions that may be required by the Title Company as a condition
to
issuing the Owner Title Policy including, but not limited to, providing
aSeller’s
affidavit
attesting that, to the best of Seller’s knowledge: (a) no individual or
entity has any claim against the Property under the applicable
contractor’s lien laws; and (b) except for Seller, no individual or entity
is either in possession of the Property or has a possessory interest
or
claim in the Property.
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(d)
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Possession
of Property, together with all keys and electronic pass cards or
devices
to all entrance doors to the Property, to the extent in Seller’s
possession.
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(e)
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Such
evidence of the authority of Seller to consummate the Closing as
the title
Company and Purchaser may reasonably
require.
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(f)
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Such
other documents as the Title Agent, Title Company or Purchaser
may
reasonably request.
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(g)
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Any
and all documents which shall be necessary to complete the satisfaction
of
the Title Requirements set forth in Schedule C of the
Commitment
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(h)
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Current
real estate ad valorem tax statements covering the Land and Improvements,
if available and if not previously furnished, and tax certificates
for the
previous year.
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4.3 Purchaser’s
Obligations at
the Closing. Purchaser shall deliver or cause to be delivered to Seller
the following items at the Closing:
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(a)
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The
Purchase Price required by Section 1.2 above, by delivery to Seller
of cash or immediately available wire transferred
funds.
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(b)
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Such
evidence of the authority of Purchaser to consummate the Closing
as the
Title Agent, Title Company and Seller may reasonably
require.
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4.4 Closing
Costs. Seller shall pay the basic premium for the Title Policy (Texas
form T-l), the fee for preparation and recording the Deed, and fifty percent
(50%) of all other escrow and closing costs. Purchaser shall pay any documentary
transfer tax and sales taxes due in connection with the consummation of the
transaction contemplated herein, all costs and expenses incurred in connection
with obtaining any financing for the purchase of the Property, including
title,
escrow, documentation and appraisal costs relating thereto, and any lender’s
policy of title insurance, the cost of any title endorsements including the
survey endorsement, and fifty percent (50%) of all other escrow and closing
costs.
4.5 Prorations.
At the Closing, the following items of revenue and expense shall be adjusted
and
apportioned in cash as of 11:59 p.m. on the day preceding the Closing Date
(the
“Adjustment Date”):
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(a)
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Real
estate and other ad valorem taxes, assessments, personal property
or use
taxes and sewer charges, on the basis of the fiscal year for which
such
taxes or charges are assessed. If the actual ad valorem taxes are
not
available on the Closing Date for the tax year in which the Adjustment
Date occurs, the proration of such taxes at the Closing shall be
estimated
based upon the most current information available to the parties,
including information disclosed by the local tax office or other
public
information. “When actual figures are published or otherwise become
available, Seller and Purchaser shall make such further adjustment
as
necessary to cause the proration to be accurate as of the Closing
Date.
Purchaser acknowledges that Seller may currently be appealing the
valuation of the Property and agrees that Seller shall be entitled,
at
Seller’s cost and expense, to pursue such appeal to completion and to
receive (i) any tax refunds for years prior to the year of the
Closing,
and (ii) a pro rata share of any tax refund for the year of the
Closing,
which pro rata share shall be calculated by multiplying the amount
of the
tax refund by the number of days in the year of the Closing that
have
elapsed prior to the Closing and dividing such product by 365.
Further,
with respect to any such appeal, if any tax refund creates an obligation
to reimburse any tenants for any rents paid, that portion of such
refund
equal to the amount of such required reimbursement (after deduction
of
allocable expenses as may be provided in the Tenant Lease to such
tenant)
shall be paid to Purchaser and Purchaser shall disburse the same
to such
tenant.
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(c)
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All
costs and expenses of operating the Property shall be determined
to the
Adjustment Date and paid by the Seller. If invoices for any of
such
charges, expenses or income figures to the Adjustment Date are
unavailable
on the Closing Date, a readjustment of these items will be made
when such
information becomes
available.
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(d)
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No
provision has been made for the proration of water charges, fuel
charges
or utility charges (including, without limitation, telephone, gas
and
electricity) as Seller shall terminate its account (but not the
service
itself) with the providers of all such services as of the Adjustment
Date
and the Purchaser shall, prior to the Closing Date, make application
to
the providers of such services for the continuation of such services
in
the name of Purchaser or its designee. It is anticipated that in
connection with all such services, the meters will be read on or
about the
Adjustment Date and the Seller shall be responsible for paying
the bills
for such services accruing prior to the Adjustment Date and the
Purchaser
shall be responsible for the payment of all such accounts accruing
on or
after the Adjustment Date. If any such accounts are not handled
in this
matter, they shall be prorated as of the Adjustment Date in the
manner
described in Section 4.5(a) above. Seller shall be entitled to
receive and retain all refundable cash or other deposits posted
with
utility companies serving the
Property.
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4.6 Lease.
At Closing, Seller shall have the right to lease all improvements in accordance
with the lease attached hereto marked Exhibit “E” and made a part hereof for all
intents and purposes.
ARTICLE
V
DAMAGE
OR CONDEMNATION PRIOR TO THE CLOSING
5.1 Damage.
If, at any time after the Effective Date and on or before the Closing
Date, all or any portion of the Property is damages, destroyed or rendered
inoperative (collectively, the “Damage”), by fire, flood,
natural elements or other causes, Seller shall promptly notify Purchaser
of such
Damage and then the following shall apply:
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(a)
|
If
the damage is not Material (hereinafter defined), Purchaser shall
proceed
to close and purchase the Property as diminished by such Damage,
subject
to a reduction in the Purchase Price equal to the full estimated
cost of
repairing or restoring the
Damage.
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(b)
|
If
the Damage is Material, then Purchaser, at its sole option, may
elect
either (i) to terminate this Agreement by written notice to Seller
given
at or prior to the Closing;, whereupon the Title Agent shall immediately
return the Xxxxxxx Money to Purchaser and, upon Purchaser’s receipt
thereof, neither party hereto shall have any further rights against,
or
obligations to, the other under this Agreement; or (ii) to agree
to close
and deduct from the Purchase Price the full estimated cost of repairing
or
restoring the Damage.
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(c)
|
If
the Damage is covered by insurance, the purchaser shall have the
right to
elect to close the purchase of the Property in its condition (with
respect
to the Damage covered by insurance) on the Closing Date and to
receive a
credit against the Purchase Price in the amount of any deductible,
and
take an assignment of the insurance proceeds, in which event Seller
shall
assign such insurance proceeds to the Purchaser, remit to Purchase
any
insurance proceeds received by Seller and shall permit Purchaser
to
conduct any remaining settlement or other negotiations with the
insurer as
to the amount of proceeds payable on account of the
Damage.
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(d)
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For
the purposes of this Section 5.1, Damage shall be deemed to be
“Material” if the cost of repairing the Damage equals or
exceeds the Purchase Price. The cost of repairing the Damage shall
be
determined in the following manner: Within 10 days after the Damage
occurs, each party shall designate an engineering firm to act on
its
behalf, and the firms designated shall promptly consult with each
other in
an attempt to mutually agree upon the cost of repairing the Damage.
If the
firms cannot agree on the cost within the 10-day period after they
have
both been designated, they shall, within five days after such 10-day
period, designate a third engineering firm, which. shall be instructed
to
determine the cost of repairing the Damage within 10 days after
its
designation. The cost of repairing the Damage as determined by
the third
engineering firm shall be
conclusive.
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5.2 Condemnation.
After the Effective Date, in the event of a taking or threatened
taking
by condemnation or similar proceedings or actions of all the Property, or
any
portion of the Property, Purchaser shall have the option to terminate this
Agreement upon written notice to Seller within five (5) business days after
Purchaser receives notice of such taking or of such threatened taking, and
upon
receipt of such notice Seller shall promptly refund the Xxxxxxx Money to
Purchaser. If Purchaser does not exercise its option under the immediately
preceding sentence of this Section to terminate this Agreement, then the
Agreement shall remain in full force and effect and Seller shall assign or
pay
to Purchaser at Closing, Seller’s entire interest in and to any and all
condemnation awards or proceeds from any such proceedings or actions in lieu
thereof.
ARTICLE
VI
DEFAULTS
6.1 Default
by Seller. In the event Purchaser is ready, willing and able to deliver
all required items and close at the appointed time as provided herein, Seller
defaults in its obligations to sell the Property, Purchaser shall be entitled,
as its sole and exclusive remedy, to the return of the Xxxxxxx Money and
reimbursement from Seller to Purchaser of its actual out-of-pocket expenses
incurred in connection with this transaction, which return and payment shall
operate to terminate this Agreement and release Seller from any and all duties,
obligations and liability hereunder.
6.2 Default
by Purchaser. In the event Seller is ready, willing and able to deliver
all required items and close at the appointed time as provided herein and
Purchaser defaults in its obligations to purchase the Property, Seller may,
as
its sole and exclusive remedy for such breach, terminate this Agreement by
written notice to Purchaser and the Title Agent, and upon any such termination
the Title Agent shall immediately deliver the Xxxxxxx Money to Seller as
liquidated damages for the breach of this Agreement, it being agreed between
the
parties hereto that the actual damages to Seller in the event of such breach
are
impractical to ascertain and the amount of the Xxxxxxx Money is a reasonable
estimate thereof. Seller expressly waives its right to specific performance
or
damages against Purchaser.
ARTICLE
VII
MISCELLANEOUS
7.1 Notices.
Any notice, request, demand, instruction or other communication
to be
given to either party hereunder, shall be in writing and shall either be
(i)
hand-delivered; (ii) sent by recognized overnight mail service, or (iii)sent
by
confirmed telephone facsimile transmission to Seller, Seller’s attorney,
Purchaser and Purchaser’s attorney, at their respective addresses set forth
below. Notice shall be deemed to have been given upon receipt or refusal
of
delivery of said notice. The addressees and addresses for purposes of this
paragraph may be changed by giving notice. Unless and until such written
notice
is received the last addressee and address stated herein shall be deemed
to
continue in effect for purposes hereunder. Such notices shall be given to
the
parties hereto at the following addresses or, if given by facsimile transmission
over the telephone, at the following FAX numbers:
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If
to Seller,
to:
|
Standard
Motor Products, Inc.
|
cc:
Xxxxxxx X. Xxxxxxx
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|
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00-00
Xxxxxxxx Xxxx.
|
Hiersche,
Hayward, Xxxxxxxx,
&Urbach
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||
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Xxxx
Xxxxxx Xxxx, XX 00000
|
00000
Xxxxxx Xxxx, Xxxxx 000
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||
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Telephone:
000-000-0000
|
Xxxxxxx,
Xxxxx 00000
|
||
|
Telecopier:
000-000-0000
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Telephone:
000-000-0000
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||
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Telecopier:
972-701-8765
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|||
|
If
to Purchaser, to:
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Xxx
Xxxxxxxx
|
cc:
Xxxxxxx X. Xxxxxx
|
|
|
The
Leather Factory, X.X.
|
Xxx,
Warren, Rosenfield, Kaitcer, Hibbs& Windsor,
P.C.
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||
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X.X.
Xxx 00000
|
P.O.
Box 100609
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||
|
Xxxx
Xxxxx, Xxxxx 00000
|
0000
X. Xxxxxxx Xxxx.
|
||
|
Telephone:
000-000-0000
|
Xxxx
Xxxxx, Xxxxx 00000-0000
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||
|
Telecopier:
000-000-0000
|
Telephone:
000-000-0000
|
||
|
Telecopier:
000-000-0000
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7.2 Brokerage
Fees and Commissions. Conditioned upon the actual consummation of the
sale contemplated hereby, Seller agrees to pay commission to Xxxx Xxxxxx,
Xxx
& Associates, 0000 Xxxxxx Xx., Xxxxx 000, Xxxxxx, Xxxxx 00000
(“Broker”) pursuant to separate Brokerage
Agreement executed between Seller and Broker, and Seller agree to pay commission
of three percent (3%) to The Staubach Company, 000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxx
Xxxxx, Xxxxx, 00000. If the sale contemplated hereby is not actually consummated
for any reason, including the default of either or both parties, no commission
shall be payable.
7.3 Entire
Agreement. This Agreement embodies and constitutes the entire
understanding between the parties hereto with respect to the transactions
contemplated herein, and all prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged
into
this Agreement.
7.4 Modification.
Neither this Agreement nor any provision hereof may be waived,
modified, amended, discharged or terminated except as provided herein or
by an
instrument in writing, signed by the party against which the enforcement
of such
waiver, modification, amendment, discharge or termination is sought, and
then
only to the extent set forth in such instrument.
7.5 Applicable
Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF TEXAS.
7.6 Headings.
Descriptive headings are used in this Agreement for convenience
only
and shall not control, limit, amplify or otherwise modify or affect the meaning
or construction of any provision of this Agreement.
7.7 Binding
Effect. Subject to the provisions of Section 7.8, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto
and
their respective permitted successors and assigns.
7.8 Assignment.
Purchaser shall not assign this Agreement, in whole or in part,
without
Seller’s written consent. Any such assignment shall be null and
void.
7.9 Discharge
of Obligations. The acceptance of the Deed by Purchaser shall be deemed
to be a fall performance and discharge of every representation and warranty
made
by Seller herein and every agreement and obligation on the part of Seller
to be
performed pursuant to the provisions of this Agreement, except those, if
any,
which are herein specifically stated to survive Closing.
7.10 Time
of Essence. Time is of the essence of this Agreement and of each
covenant and agreement that is to be performed at a particular time or within
a
particular period of time. However, if the final date of any period which
is set
out in any provision of this Agreement or the Closing Date falls on a Saturday,
Sunday or legal holiday under the laws of the United States or the State
of
Texas, then the time of such period or the Closing Date, as the case may
be,
shall be extended to the next date which is not a Saturday, Sunday or legal
holiday.
7.11 Invalid
Provision. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provision shall
be
fully severable; this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of
this
Agreement; and the remaining provisions of this Agreement shall remain in
full
force and effect and shall not be affected by such illegal, invalid or
unenforceable provision or by its severance from this
Agreement.
7.12 Disclaimers.
(a) AS
A MATERIAL INDUCEMENT TO SELLER TO ENTER INTO THIS AGREEMENT AND TO SELL
THE
PROPERTY TO PURCHASER, PURCHASER HEREBY ACKNOWLEDGES AND AGREES
THAT; (i) PURCHASER IS PURCHASING THE PROPERTY IN “AS IS, WHERE
IS CONDITION, WITH ALL FAULTS”; (ii) PURCHASER IS PURCHASING THE PROPERTY
SUBJECT TO ALL EXISTING LAWS, STATUTES, ORDINANCES, CODES, RULES AND
REGULATIONS, AND PURCHASER SHALL BE RESPONSIBLE FOR THE PAYMENT OF ALL
CONNECTION CHARGES, PRO RATA FEES, DEVELOPER LIABILITY PAYMENTS AND LIKE
CHARGES, FEES AND PAYMENTS REQUIRED IN CONNECTION WITH THE UTILIZATION OF
UTILITIES, ROADS OR OTHER SIMILAR IMPROVEMENTS TO SERVE THE PROPERTY AND/OR
ANY
IMPROVEMENTS EXISTING OR HEREAFTER CONSTRUCTED OR PLACED THEREON; (HI) EXCEPT
AS
EXPRESSLY SET FORTH IN THIS AGREEMENT AND EXCEPT FOR THE SPECIAL WARRANTY
OF
TITLE CONTAINED IN THE DEED, NEITHER SELLER NOR ANY PARTY REPRESENTING SELLER
HAS MADE ANY WARRANTY OR REPRESENTATION TO PURCHASER, EXPRESS OR IMPLIED,
ORAL
OR WRITTEN, WITH RESPECT TO THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR
REPRESENTATIONS CONCERNING HABITABILITY, SUITABILITY, MERCHANTABILITY,
WORKMANSHIP, ENVIRONMENTAL CONDITIONS, INCOME TO BE DERIVED FROM THE PROPERTY,
EXPENSES TO BE INCURRED IN CONNECTION WITH THE PROPERTY, ZONING, BUILDING
CODE,
PLATTING, SUBDIVISION, ACCESS, AVAILABILITY OF UTILITIES OR COMPLIANCE WITH
ANY
LAWS, STATUTES, ORDINANCES, CODES, RULES OR REGULATIONS; AND (IV) EXCEPT
FOR THE
EXPRESS WARRANTIES AND REPRESENTATIONS CONTAINED IN THIS AGREEMENT AND THE
SPECIAL WARRANTY OF TITLE CONTAINED IN THE DEED, PURCHASER WILL NOT RELY
ON ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, ORAL OR WRITTEN, OF SELLER
OR
ANY PARTY REPRESENTING SELLER BUT INSTEAD WILL RELY ON
PURCHASER’S AND ANY CONSULTANT(S)’ INSPECTIONS, TESTS, SURVEYS,
PROCEDURES AND INVESTIGATIONS OF THE PROPERTY. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT ANY REPORTS, AUDITS, ASSESSMENTS,
STUDIES OR OTHER INFORMATION WITH RESPECT OR PERTAINING TO THE
PROPERTY FURNISHED TO PURCHASER BY SELLER (INCLUDING, WITHOUT
LIMITATION, ANY ENVIRONMENTAL REPORTS AND ANY ENGINEERING REPORTS) OR BY
ANY
PARTY REPRESENTING SELLER HAVE BEEN PROVIDED BY SELLER TO PURCHASER WITHOUT
ANY
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, ORAL OR WRITTEN,
CONCERNING THE ADEQUACY OR THE ACCURACY THEREOF AND THAT PURCHASER WILL NOT
RELY
THEREON BUT INSTEAD WILL RELY ON PURCHASER’S OR ON THE APPLICABLE CONSULTANT(S)’
INVESTIGATIONS OF THE PROPERTY TO DETERMINE WHETHER THE PROPERTY IS IN A
CONDITION . SATISFACTORY TO PURCHASER AND WHETHER THE PROPERTY IS SUITABLE
FOR
PURCHASER’S INTENDED USE. The deed conveying the property to Purchaser at
Closing shall contain a provision substantially identical to that which is
set
forth above.
(b) IF
THIS AGREEMENT IS CLOSED, AS A MATERIAL INDUCEMENT TO SELLER TO SELL THE
PROPERTY TO PURCHASER, PURCHASER AGREES THAT: (i) PURCHASER IS EXPRESSLY
ASSUMING ALL RISKS, DUTIES AND OBLIGATIONS ARISING OR RESULTING FROM THE
EXISTENCE OF ANY ADVERSE CONDITION IN, ON, UNDER OR ABOUT THE PROPERTY; AND
(ii)
EXCEPT IN THE INSTANCE OF FRAUD, PURCHASER HEREBY RELEASES SELLER AND SELLER’S
EMPLOYEES, AGENTS AND CONTRACTORS FROM ALL RESPONSIBILITY AND LIABILITY FOR
ANY
AND ALL COSTS, EXPENSES (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES,
ATTORNEYS’ DISBURSEMENTS AND COURT COSTS), DAMAGES, LOSSES, CLAIMS, CAUSES OF
ACTION, LIABILITIES, LIENS, ENCUMBRANCES, PENALTIES, FINES AND CHARGES,
REGARDLESS OF WHETHER ANY OF SUCH CLAIMS, CAUSES OF ACTIONS OR OTHER MATTERS
ARE
FOUNDED IN WHOLE OR IN PART UPON THE ALLEGED OR ACTUAL NEGLIGENCE OR STRICT
LIABILITY OF SELLER OR SELLER’S EMPLOYEES, AGENTS AND CONTRACTORS, ARISING OR
RESULTING FROM OR PERTAINING IN ANY WAY TO THE CONDITION, VALUATION OR UTILITY
OF THE PROPERTY OTHER THAN THOSE (IF ANY) ARISING OUT OF ANY OF THE
WARRANTIES AND REPRESENTATIONS CONTAINED IN THIS AGREEMENT BEING
INCORRECT.
PURCHASER
AND SELLER AGREE THAT THE PROVISIONS OF THIS SECTION 7.12 SHALL SURVIVE
THE CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS
AGREEMENT.
7.13 No
Third Party Beneficiary. The provisions of this Agreement and of the
documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Purchaser only and are not for the benefit of any third
party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered
at
Closing.
7.14 Termination
of Agreement. It is understood and agreed that if either Purchaser or
Seller terminates this Agreement pursuant to a right of termination granted
hereunder, such termination shall operate to relieve Seller and Purchaser
from
all obligations under this Agreement, except for such obligations as are
specifically stated herein to survive the termination of this
Agreement.
7.15 Cross
Indemnification. Anything to the contrary herein notwithstanding,
Seller shall defend, indemnify and hold harmless Purchaser from all loss,
expense (including reasonable counsel fees), damage and liability resulting
from
(a) claims of mechanics and materialmen based on work performed on or at
the
Property prior to the Closing, and (b) tort claims (including, without
limitation, for bodily injury, wrongful death or property damage) against
Purchaser or the Property based on causes of action which arose or accrued
prior
to the Closing, and (c) contract claims arising by, through, or under Seller,
by
tenants, employees, contractors, or utility companies, with respect to matters
that occurred or obligations which accrued prior to the Closing. Except as
otherwise expressly provided in this Agreement, including any express waivers
by
Seller, Purchaser shall defend, indemnify and hold harmless Seller from all
loss, expense (including reasonable counsel fees), damage and liability
resulting from (a) claims of mechanics and materialmen based on work performed
on or at the Property on or subsequent to the Closing, and (b) tort claims
(including, without limitation, for bodily injury, wrongful death or property
damage) against Seller based on causes of action which arose or accrued on
or
subsequent to the Closing, and (c) contract claims arising by, through or
under
Purchaser, by tenants, employees, contractors, or utility companies, with
respect to matters that occurred or obligations which accrued on or subsequent
to the Closing. The indemnification obligations of Purchaser and Seller,
as set
forth under this Section 7.14 shall survive the Closing or any
termination of this Agreement.
7.16 Further
Assurances. Each party shall, when requested by the other party hereto,
cause to be executed, acknowledged and delivered such further instruments
and
documents as may be necessary and proper, in the reasonable opinion of the
requesting party, in order to carry out the intent and purpose of this
Agreement; provided, however this Section 7.15 shall not be construed to
increase the economic obligations or liabilities of either party
hereto.
7.17 Non-Disclosure.
Except to the extent required by law, reasonably necessary for
Purchaser to obtain financing for the transaction, or either party’s
consultation with its professionals in order to comply with the terms of
this
Agreement, neither party will, without the prior written consent of the other
party, and each will direct its representatives not to make, directly or
indirectly, any public comment, statement, or communication with respect
to, or
otherwise to disclosure or to permit the disclosure of the existence of
discussions regarding a possible transaction among the parties or any of
the
terms, conditions, or other aspects of the transaction among the parties
or any
of the terms, conditions, or other aspects of the transaction proposed in
this
Agreement. If a party is required by law to make any such disclosure, it
must
first provide to the other party the content of the proposed disclosure,
the
reasons that such disclosure is required by law and the time and place that
the
disclosure will be made.
7.18 Multiple
Counterparts. This Agreement maybe executed in a number of identical
counterparts, each of which for all purposes is deemed original, and all
of
which constitute collectively one agreement. For purposes of this Agreement,
facsimile signatures shall be deemed originals. Notwithstanding any other
provisions of this Agreement, the parties hereto agree that the execution
of
this Agreement and any amendments hereto may be conducted by electronic means
as
provided by the Uniform Electronic Transactions Act as enacted in the State
of
Texas.
[SIGNATURES
ON NEXT PAGE]
IN
WITNESS WHEREOF, Seller and Purchaser have executed this Agreement to be
effective as of the Effective Date.
|
SELLER:
|
||
|
STANDARD
MOTOR PRODUCTS, INC.
|
||
|
By:
|
/s/
Xxxxxx X. Xxxxxx
|
|
|
Name:
|
XXXXXX
X. XXXXXX
|
|
|
Title:
|
TREASURER
|
|
|
BUYER:
|
||
|
THE
LEATHER FACTORY, L.P.,
|
||
|
a
Texas limited partnership
|
||
|
By The
Leather Factory, Inc.,
|
||
|
A
Nevada corporation
|
||
|
General
Partner
|
||
|
By:
|
/s/
Xxx X. Xxxxxx
|
|
|
Name:
|
Xxx
X. Xxxxxx
|
|
|
Title:
|
President
|
|
