EXHIBIT 10.1
REAL ESTATE SALES CONTRACT
1. PARTIES: Xxxxxxx X. Xxxxx (Seller) agrees to sell and convey to Caddx -
Caddi Controls, Inc. (Buyer) and Buyer agrees to buy from Seller the
Property described below.
2. PROPERTY: The real property situated in Xxxxx County, Texas, described
on the attached exhibit, together with: (a) all buildings,
improvements, fixtures, and all property of every kind and character
and description (personal or real) owned by Seller located on, attached
to, or used in connection with the Property; (b) all rights, privileges
and appurtenances pertaining thereto, including any right, title, and
interest of Seller in and to adjacent streets, alleys, and
rights-of-way; (c) Seller's interest in and to all leases or rents and
security deposits; (d) Seller's interest in and to all licenses and
permits with respect to the Property; (e) Seller's interest in all
third party warranties or guaranties, if transferable, relating to the
Property or to any tangible personal property and fixtures located on,
attached to, or used in connection with the Property; and (f) Seller's
interest in any trade names, if transferable, used in connection with
the Property. The property sold by this contract is called the
"Property". The metes and bounds description determined by the survey
of the Property under paragraph 4(b) shall replace any exhibit
describing the perimeter boundaries of the Property if it differs from
the exhibit.
3. SALES PRICE: The total sales price is Five Hundred Thirty Thousand
($530,000) and No/100 Dollars to be paid in cash at closing.
4. TITLE POLICY AND SURVEY:
(a) TITLE POLICY: Seller shall furnish to Buyer at Seller's
expense an Owner Policy of Title Insurance (the Title Policy)
issued by U.S. Title Company (the Title Company) in the amount
of the Sales price, dated at or after closing, insuring Buyer
against loss under the provisions of the Title Policy, subject
only to those title exceptions permitted by this contract, or
as may be approved by Buyer in writing, and the standard
printed exceptions contained in the promulgated form of Title
Policy; provided however that: (1) the exception as to area
and boundaries shall e deleted except for any shortages in
area at the expense of Buyer; and (2) the exception as to
restrictive covenants shall be endorsed "None of Record",
unless restrictions are approved by Buyer. Within the (10)
days after the Title Company receives a copy of this contract
Seller shall furnish Buyer a commitment for Title Insurance
(the Commitment) including copies of recorded documents
evidencing title exceptions. Seller authorizes the Title
Company to deliver the Commitment and related documents to
Buyer at Buyer's address. Buyer shall have ten (10) days after
receipt of the Commitment and legible copies of documents
evidencing title exceptions required by this contract to
object in writing to matters disclosed in the Commitment other
than the standard printed exceptions as described or limited
in this paragraph.
(b) SURVEY REQUIRED:
Within twenty-five (25) days after the Effective Date of this
contract, Seller, at Buyer's expense, shall furnish to Buyer a
survey of the Property dated after the Effective Date of this
contract.
Buyer may, within seven (7) days after Buyer's receipt of the
survey object in writing to any matter which constitutes a
defect or encumbrance to title on the survey or if the survey
shows any part of the Property to lie in a 100-year floodplain
area.
The survey required by this paragraph 4(b) shall be made by a
Registered Professional Land Surveyor acceptable to the title company.
The survey shall: (i) identify the Property by metes and bounds or
platted lot description; (ii) show that the survey was made and staked
on the ground with corners permanently marked; (iii) set forth the
dimensions and total area of the property; (iv) show the location of
all improvements, highways, streets, roads, railroads, rivers, creeks,
or other waterways, fences, easements, and rights of way on the
Property with all easements and rights of way referenced to their
recording information; (v) show any discrepancies or conflicts in
boundaries, any visible encroachments and any portion of the Property
lying within the 100-year floodplain as shown on the current Federal
Emergency Management Agency map; and (vi) contain the surveyor's
certificate that the survey is true and correct.
Buyer's failure to object under paragraph 4(a) or 4(b) within the time allowed
shall constitute a waiver of Buyer's right to object except that the
requirements in Schedule C of the Commitment shall not be deemed to have been
waived. If objections are made by Buyer, Seller shall have twenty (20) days from
the date it received the objections to cure the objections, if Seller elects to
cure the same. The Closing Date shall be extended as necessary to cure
objections if Seller elects to cure the same. If objections are not cured by the
extended Closing Date, this contract shall terminate unless Buyer elects to
waive the objections.
5. PROPERTY CONDITION/FEASIBILITY STUDIES:
INSPECTIONS AND FEASIBILITY STUDIES: Within twenty (20) days after the
Effective Date of the contract Buyer, at Buyer's expense, may complete
or cause to be completed inspections of the Property (including all
improvements and fixtures) by inspectors of Buyer's choice. Inspections
may include but are not limited to: (i) physical property inspections
including, but not limited to, structural pest control, mechanical,
structural, electrical, or plumbing inspections; (ii) economic
feasibility studies; (iii) any type of environmental assessment or
engineering study including the performance of tests such as soils
tests, air sampling, or paint sampling; and (iv) compliance inspections
to determine compliance with zoning ordinances, restrictions, building
codes, and statutes (e.g., ADA, OSHA, and others). Seller shall permit
Buyer and Buyer's inspectors access to the Property at reasonable
times. Seller shall pay for turning utilities on for inspections. If
Buyer determines, in Buyer's sole judgment, that the Property is not
suitable for any reason for Buyer's intended use or is not in
satisfactory condition, then Buyer may terminate this contract by
providing written notice of termination and copies of all reports of
inspections, studies, or assessments completed or caused to be
completed by Buyer under this paragraph to Seller within the time
required to complete the inspections, studies, or assessments under
this paragraph. If Buyer does not terminate this contract within the
time required any objections with respect to the inspections, studies
and assessments under this paragraph shall be deemed waived by Buyer.
If this contract does not close through no fault of Seller, Buyer shall
restore the Property to its original condition if altered due to
inspections, studies, or assessments completed by Buyer or Buyer's
inspectors. Within twenty (20) days after the Effective Date of this
contract Seller shall deliver to Buyer:
(1) a current rent roll of all leases affecting the
Property certified by Seller to be true and correct;
(2) copies of all leases pertaining to the Property,
including any modifications, supplements, or
amendments to the leases;
(3) a current inventory of all tangible personal property
and fixtures owned by Seller and located on, attached
to, or used in connection with the Property;
(4) copies of all notes and deeds of trust assumed or
taken subject to by Buyer;
(5) copies of ail service, maintenance and management
agreements relating to the ownership and operation of
the Property;
(6) copies of all warranties and guaranties relating to
the Property, or any part thereof, or to the tangible
personal property and fixtures owned by Seller and
located on, attached to, or used in connection with
the Property;
(7) copies of all fire, hazard, liability, and other
insurance policies held by Seller on or affecting the
Property;
(8) copies of all leasing or other commission agreements
with respect to the Property that are being assumed
by Buyer;
(9) a copy of the "as-built" plans and specifications of
the Property;
(10) copies of all invoices for utilities and repair
expenses incurred by Seller for operation of the
Property for each month for the preceding two (2)
years prior to the Effective Date of this contract;
and,
(11) copies of all previous environmental assessments,
studies, or analyses affecting the Property in
Seller's possession.
6. BROKER: Each party represents to the other that no real estate broker
has been involved and no commissions will be incurred in connection
with this transaction.
7. CLOSING:
(a) The closing of the sale shall be on or before April 30, 1997,
or within seven (7) days after objections to title or the
survey have been cured, whichever date is later (the Closing
Date). If either party fails to close this sale by the Closing
Date, the non-defaulting party shall be entitled to exercise
the remedies contained in paragraph 12.
(b) At closing Seller shall furnish, at Seller's expense:
(1) tax statements showing no delinquent taxes on the
Property;
(2) a General Warranty Deed conveying good and
indefeasible title to the Property showing no
additional exceptions to those permitted in paragraph
4;
(3) a Xxxx of Sale with warranties to title conveying
title, free and clear of all liens, to any personal
property defined as part of the Property in paragraph
2 and conveyed by this contract;
(4) an assignment of all leases to or on the Property
duly executed by Seller;
(5) to the extent assignable, an assignment duly executed
by Seller of any licenses an permits, maintenance,
management or other contracts, and any warranties or
guaranties defined as part of the Property in
paragraph 2 or conveyed by this contract;
(6) a current rent roll of the Property certified by
Seller;
(7) to the extent assignable, an assignment duly executed
by Seller of any one or more of the insurance
policies held by Seller pertaining to the Property;
and
(8) evidence that the person executing this contract is
legally capable and authorized to bind Seller.
8. POSSESSION: Seller shall deliver possession of the Property to Buyer on
Closing in its present or required repaired condition, ordinary wear
and tear excepted. Any possession by Buyer prior to closing or Seller
after closing that is not authorized by a separate written lease
agreement, shall establish a landlord-tenant at sufferance relationship
between the parties.
9. SALES EXPENSES: To be paid in cash at or prior to closing:
(a) Seller's Expenses: Releases of existing liens, including
prepayment penalties and recording fees; release of Seller's
loan liability; tax statements or certificates; preparation of
deed; one-half of escrow fee; and other expenses stipulated to
be paid by Seller under other provisions of this contract.
(b) Buyer's Expenses: one-half of escrow fee; and other expenses
stipulated to be paid by Buyer under other provisions of this
contract.
(c) If any sales expense exceeds the amount stated in this
contract to be paid by either party, either party may
terminate this contract unless either party agrees to pay such
excess.
10. PRORATIONS:
(a) Insurance (at Buyer's option) if a transfer is permitted by
the insurance carrier and current taxes, to the extent not the
obligation of the tenant of the Property, and any rents shall
be prorated through the Closing Date. If the amount of the ad
valorem taxes for the year in which the sale is closed is not
available on the Closing Date, proration of taxes shall be
made on the basis of taxes assessed in the previous year, with
a subsequent cash adjustment of such proration to be made
between Seller and Buyer, if necessary, when actual tax
figures are available.
(b) Seller shall, at closing, tender to Buyer any security
deposits, prepaid expenses, and advanced rental payments paid
by any and all tenants.
11. CASUALTY LOSS AND CONDEMNATION:
(a) If any part of the Property is damaged or destroyed by fire or
other casualty loss, Seller may, if it elects, restore the
Property to its previous condition as soon as reasonably
possible, but in any event by the Closing Date. If Seller is
unable or unwilling to do so, Buyer may: (i) terminate this
contract; (ii) extend the time for performance up to fifteen
(15) days and the Closing Date shall be extended as necessary;
or (iii) accept the Property in Its damaged condition and
accept an assignment of insurance proceeds. Provisions of the
Texas Property Code to the contrary shall not apply.
(b) If prior to closing condemnation proceedings are commenced
against any portion of the Property, Buyer may: (i) terminate
this contract by written notice to Seller within ten (10) days
after Buyer is advised of the condemnation proceeding; or (ii)
appear and defend in the condemnation proceeding and any award
in condemnation shall, at Buyer's election, become the
property of Seller and the sales price shall be reduced by the
same amount or any award shall become the property of Buyer
and the sales price shall not be reduced.
12. DEFAULT: If Buyer fails to comply with this contract, Buyer shall be in
default. Seller may either: enforce specific performance, seek other
relief as may be provided by law, or both; or terminate this contract,
thereby releasing the parties from this contract. If Seller fails to
comply with this contract for any reason, Seller shall be in default
and Buyer may either enforce specific performance, seek such other
relief as may be provided by law, or both; or terminate this contract,
thereby releasing the parties from this contract.
13. ATTORNEY FEES: If, Buyer, Seller, or Escrow Agent is a prevailing party
in any legal proceeding brought under or with relation to this contract
or this transaction, such party shall be entitled to recover from the
non-prevailing parties all costs of such proceeding and reasonable
attorney fees. The provisions of this paragraph shall survive closing.
14. MATERIAL FACTS:
(a) Seller shall convey the Property on closing: (i) with no
liens, assessments, Uniform Commercial Code or other security
interests against the Property which will not be satisfied out
of the Sales Price, other than liens securing ad valorem taxes
not yet due and payable; and (ii) with no parties in
possession of any portion of the Property as lessees, tenants
at sufferance, or trespassers except tenants under the written
leases delivered to Buyer pursuant to this contract.
(b) To the best of Seller's knowledge and belief, Seller is not
aware of:
(i) any material defects to the Property except:
(ii) any environmental hazards or conditions affecting the
Property which would violate any federal, state or
local statutes, regulations, ordinances or other
requirements and more specifically, but without
limitation, whether: (1) the Property is or has ever
been used for the storage or disposal of hazardous
substances or materials or toxic waste, a dump site
or landfill, or the housing of any underground tanks
or drums; (2) radon, asbestos insulation or
fireproofing, ureaformaldehyde foam insulation,
lead-based pint or other pollutants or contaminants
of any nature now exist or have ever existed on the
Property; (3) wetlands, as defined by federal or
state law or regulation are on the Property; and (4)
threatened or endangered species or their habitat, as
defined by the Texas Parks and Wildlife Department or
the U.S. Fish and Wildlife Service, are on the
property; except as follows:
(c) Each written lease to be furnished to Buyer under this
contract (the leases) shall be in full force and effect
according to its terms without amendment or modification that
is not disclosed to Buyer in writing. All the leases shall
contain the entire written or oral agreements of any kind for
the leasing, rental, or occupancy of any portion of the
Property. Seller shall disclose in writing to Buyer: (i) any
lease modifications, amendments, or defaults made subsequent
to the date the leases are furnished to Buyer but prior to
closing; (ii) any failure by Seller to comply with all of
Seller's obligations under the leases; (iii) any facts or
circumstances that would constitute a default by Seller under
any lease or entitle any tenant to offsets or damages; (iv)
any lease in which tenant does not actually occupy the
premises leased; (v) if any rent under any lease has been
collected in advance of the current month; (vi) if any
concessions, bonuses, free rents, rebates, or other matters
affect the rental for any tenant; (vii) if any of the lease or
rentals or other sums payable under the leases have been
assigned or otherwise encumbered, except as security for
loan(s) assumed or taken subject to as provided in this
contract; and (viii) if any tenant under any lease is in
default.
15. NOTICES: All notices shall be in writing and effective when
hand-delivered, mailed by certified mail return receipt requested, or
sent by facsimile transmission to:
Seller: Buyer:
Xxxxxxx X. Xxxxx Caddx-Caddi Controls, Inc.
c/o Xxxxx Xxxxxx 0000 Xxxxx Xxxx Xxxxxx
X.X. Xxx 0000 Xxxxxxxxxx, Xxxxx 00000
Xxxxxxxx, Xxxxx 00000 Phone___________________________
Phone (000) 000-0000 Fax_____________________________
Fax (000) 000-0000
Copy to:
Xxx Xxxxxxxx
Smead, Anderson, Xxxxxx & Xxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxx 00000
Phone (000) 000-0000
Fax (000) 000-0000
16. AGREEMENT OF THE PARTIES: This contract shall be binding on the
parties, their heirs, executors, representatives, successors, and
assigns. This contract shall be construed under and in accordance with
laws of the State of Texas. This contract contains the entire agreement
of the parties and cannot be changed except by written agreement. If
this contract is executed in a number of identical counterparts, each
counterpart is deemed an original and all counterparts shall,
collectively, constitute one agreement. Buyer may not assign this
contract.
17. TIME: Time is of the essence in this contract. Strict compliance with
the times for performance stated in this contract is required.
18. EFFECTIVE DATE: The Effective Date of this contract for the purpose of
performance of all obligations shall be the date this contract is
receipted by the Escrow Agent after all parties have executed this
contract.
19. PROPERTY CONVEYED "AS IS.": IT IS UNDERSTOOD AND AGREED THAT SELLER IS
NOT MAKING AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS
OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PROPERTY (EXCEPT FOR THE EXPRESS WARRANTIES OF SELLER, IF ANY, PROVIDED
IN THAT CERTAIN STOCK PURCHASE AND SALE AGREEMENT BETWEEN ITI
TECHNOLOGIES, INC. AS "BUYER", XXXXXXX X. XXXXX, XXX XXXXX, XXXXX X.
XXXXXXX, AND XXXXXXX XXXX XXXXX AS "SELLERS", AND CADDX-CADDI, INC. AND
THOSE WARRANTIES AND REPRESENTATIONS SET FORTH IN THIS AGREEMENT),
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR REPRESENTATIONS AS TO
MATTERS OF TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE SET FORTH IN
THE GENERAL WARRANTY DEED TO BE DELIVERED AT CLOSING), ZONING, TAX
CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITIONS, AVAILABILITY OF
ACCESS (SPECIFICALLY MAKING NO WARRANTY OF COMPLIANCE WITH THE
REQUIREMENTS OF THE AMERICAN WITH DISABILITIES ACT OF 1990), INGRESS OR
EGRESS, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING
RELATING TO OR AFFECTING THE PROPERTY INCLUDING, WITHOUT LIMITATION:
(i) THE VALUE, CONDITION, MERCHANTABILITY, MARKETABILITY,
PROFITABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE
OF THE PROPERTY, (ii) THE MANNER OR QUALITY OF THE CONSTRUCTION OR
MATERIALS INCORPORATED INTO ANY OF THE PROPERTY AND (iii) THE MANNER,
QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY. BUYER
REPRESENTS THAT IT IS A KNOWLEDGEABLE PURCHASER OF REAL ESTATE AND THAT
IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF BUYER'S
CONSULTANTS, AND THAT BUYER WILL CONDUCT SUCH INSPECTIONS AND
INVESTIGATIONS OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE
PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY UPON SAME
AND, UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE MATTERS,
INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY BUYER'S INSPECTIONS AND
INVESTIGATIONS. BUYER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER
SHALL SELL AND CONVEY TO BUYER AND BUYER SHALL ACCEPT THE PROPERTY "AS
IS, WHERE IS," WITH ALL FAULTS, AND BUYER FURTHER ACKNOWLEDGES AND
AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR
REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY
AGENT OF SELLER OR ANY THIRD PARTY, EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH IN THE ABOVE-REFERENCED STOCK PURCHASE AND SALE AGREEMENT. THE
TERMS AND CONDITIONS OF THIS PARAGRAPH SHALL EXPRESSLY SURVIVE THE
CLOSING AND NOT MERGE THEREIN AND SHALL BE INCORPORATED INTO THE
SPECIAL WARRANTY DEED. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY
ANY VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION
PERTAINING TO THE PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT,
EMPLOYEE, SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET
FORTH OR REFERRED TO HEREIN.
BUYER: SELLER:
CADDX - CADDI CONTROLS, INC.
By: /s/ Xxx Xxxxx /s/ Xxxxxxx X. Xxxxx
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Printed Name: XXX XXXXX Xxxxxxx X. Xxxxx
Title: President
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Dated: April 30, 1997 Dated: April 30, 1997
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EMPLOYMENT AGREEMENT
