EXHIBIT 10(jj)
CONTRACT OF SALE
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(10100 NORTH CENTRAL EXPRESSWAY, DALLAS, TX)
This Contract of Sale (the "Contract") is made and entered into by and
between COMPUCOM SYSTEMS, INC., a Delaware corporation ("Seller"), and XXXXXXXXX
REALTY PARTNERS, L.L.C., a Texas limited liability company ("Purchaser").
ARTICLE I
DEFINED TERMS
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1.1 Definitions. As used herein, the following terms shall have the
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meanings respectively indicated:
"Business Day" means any day on which business is transacted by
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national banks in Dallas County, Texas.
"Closing" means the consummation of the purchase of the Property by
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Purchaser from Seller in accordance with the terms and provisions of Article IX.
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"Closing Date" means the date specified in Section 9.1 on which the
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Closing will be held.
"Closing Documents" means the documents to be executed and delivered
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by Seller and Purchaser at the Closing pursuant to Section 9.2.
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"Xxxxxxx Money Deposit" means that portion of the Purchase Price
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deposited by Purchaser in escrow with the Title Company at the time and in the
form and amount specified in Section 3.2, plus any interest accrued thereon.
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"Effective Date" means the date on which a counterpart of this
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Contract, fully executed by Purchaser and Seller, is delivered to and accepted
in writing by the Title Company.
"Land" means all of that certain lot, tract or parcel of land,
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containing approximately 1.035 acres, located in Dallas County, Texas and being
more fully described on Exhibit "A", on which is constructed an office building
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located at 00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx, together with all and
singular the rights appurtenant to that land. On Purchaser's acceptance of the
Survey and Seller's consent thereto, the metes and bounds description contained
thereon shall be the description of the Land for purposes of this Contract and
shall be attached and substituted as Exhibit "A".
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"Permitted Exceptions" means those exceptions or conditions that
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affect or may affect Seller's title to or use of the Property that are approved
or deemed to be approved by Purchaser in accordance with Section 4.4.
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"Personal Property" means (a) all tangible personal property and
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fixtures owned by Seller and located on or attached to the Project and normally
used in the ownership or operation of a commercial office building (exclusive,
however, of personal property and trade fixtures that are readily removable from
the Project without causing material damage, that would normally be removable by
a tenant upon termination of a lease of office space within the a commercial
office building and which are actually removed from the Project before the
Closing in accordance with the provisions of this Contract); (b) Seller's
interest, to the extent assignable, in all licenses or permits with respect to
the Property, (c) Seller's interest, to the extent assignable, in all service,
maintenance, management or other contracts relating to the ownership or
operation of the Project, and (d) Seller's interest, to the extent assignable,
in all warranties or guaranties relating to the Project, or any portion thereof.
"Project" means the building, fixtures and improvements situated upon
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the Land.
"Property" means, collectively, the Land, the Project and the Personal
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Property.
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"Purchase Price" means the total consideration to be paid by Purchaser
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to Seller for the purchase of the Property.
"Title Company" means Southwest Land Title Insurance Company, located
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at 0000 Xxxxxxx Xxxxx, 000 Xxxxx Xxxxx Xxxxxx, XX 0, Xxxxxx, Xxxxx 00000-0000,
Attention Xxxxxx Xxxxxxx. (Phone 000-000-0000; Fax 000-000-0000).
"Title Exception" means any lien, mortgage, security interest,
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encumbrance, pledge, assignment, claim, charge, lease (surface, space, mineral,
or otherwise), condition, restriction, option, conditional sale contract, right
of first refusal, restrictive covenant, exception, easement (temporary or
permanent), right-of-way, encroachment, overlap, or other outstanding claim,
interest, estate, or equity of any nature which affects the Property, exclusive
of zoning ordinances.
"Title Underwriter" means Chicago Title Insurance Company.
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1.2 Other Defined Terms. Certain other defined terms shall have the
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respective meanings assigned to them elsewhere in this Contract.
ARTICLE II
AGREEMENT OF PURCHASE AND SALE
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On the terms and conditions stated in this Contract, Seller hereby sells
and agrees to convey the Property to Purchaser, and Purchaser hereby agrees to
purchase and acquire the Property from Seller.
ARTICLE III
PURCHASE PRICE
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3.1 Purchase Price. The Purchase Price shall be TEN MILLION THREE
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HUNDRED THIRTY TWO THOUSAND AND NO/100 DOLLARS ($10,332,000.00).
3.2 Xxxxxxx Money Deposit. Within three (3) business days after the
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Effective Date, Purchaser shall deliver the Xxxxxxx Money Deposit in cash to the
Title Company, and the Xxxxxxx Money Deposit shall thereafter be held by the
Title Company in escrow to be applied or disposed of by it as is provided in
this Contract. The Xxxxxxx Money Deposit shall be in the amount of FIFTY
THOUSAND AND NO/100 DOLLARS ($50,000.00). If this Contract will remain in
effect following the expiration of the Inspection Period (as such term is
hereinafter defined), then Purchaser shall increase the amount of the Xxxxxxx
Money Deposit to ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) on or
prior to the expiration of the Inspection Period. The Xxxxxxx Money Deposit
shall be invested in an interest-bearing account with a financial institution
and in a manner reasonably acceptable to Seller and Purchaser; such account to
be determined at or prior to the time the Xxxxxxx Money Deposit is delivered.
All interest earned shall become part of the Xxxxxxx Money Deposit to be applied
or disposed of in the same manner as the Xxxxxxx Money Deposit, as provided in
this Contract. If the purchase and sale hereunder is consummated, then the
Xxxxxxx Money Deposit shall be applied to the cash portion of the Purchase Price
at the Closing. In all other events, the Xxxxxxx Money Deposit shall be
disposed of by the Title Company as provided in this Contract. In the event
that Purchaser fails to deliver the Xxxxxxx Money Deposit within the specified
time, then this Contract shall be automatically terminated and neither Seller
nor Purchaser shall have any rights or obligations hereunder.
3.3 Payment of Purchase Price. The Purchase Price shall be payable to
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Seller through the Title Company in cash or other immediately available United
States Federal funds at Closing. The Xxxxxxx Money Deposit shall be delivered
to the Seller and applied as a credit against the Purchase Price.
ARTICLE IV
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TITLE AND SURVEY
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4.1 Title Commitment; Exception Documents.
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(a) Within fifteen (15) days after the Effective Date, Seller, at
Seller's sole cost and expense, shall cause to be furnished to Purchaser a
current Commitment for Title Insurance (the "Title Commitment") issued by the
Title Company, on behalf of the Title Underwriter. The Title Commitment shall
set forth the state of title to the Property as of a date not more than thirty
(30) days prior to the Effective Date, including a list of Title Exceptions
affecting the Property that would appear in an owner's title policy, if one were
issued. The Title Commitment shall contain the expressed commitment of the
Title Company to issue the Title Policy (as hereinafter defined) to Purchaser in
the amount of the Purchase Price, insuring the title to the Property as is
specified in the Title Commitment, with the standard printed exceptions.
(b) Within fifteen (15) days after the Effective Date, Seller shall
also cause to be furnished to Purchaser true, correct, and legible copies of all
instruments (the "Exception Documents") that create or evidence Title Exceptions
affecting the Property, including those described in Schedule B and Schedule C
of the Title Commitment.
4.2 Survey.
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(a) Within fifteen (15) days after the Effective Date, Seller, at
Purchaser's sole cost and expense, shall cause a Survey (herein so called) to be
prepared and copies delivered to both parties. The Survey shall be prepared by
a registered surveyor (the "Surveyor") reasonably acceptable to Purchaser and to
the Title Company; it shall be dated not earlier than ninety (90) days prior to
the scheduled Closing Date; it shall show the location on the Property of all
improvements, fences, easements (identified by recording information), roads,
rights-of-way, the number and location of parking spaces; visible evidence of
utilities serving the Property; shall contain a legal description of the
boundaries of the Land by metes and bounds or other appropriate legal
description and shall state the area of the Land and the buildings on the Land.
The Surveyor shall certify to Purchaser and to the Title Company that the Survey
was made on the ground and meets the requirements for a Category 1A, Condition
II Survey, under the most recent specifications promulgated by the Texas
Surveyors Association; that there are no visible discrepancies, conflicts,
encroachments, overlapping of improvements, flood plain or flood hazard areas,
fences, easements, roads, or rights-of-way except as shown on the Survey; and
that the Survey is a true, correct and accurate representation of the Land and
the Project. The legal description of the Land contained in the Survey and in
the Title Policy shall be used for purposes of describing the Land in the
special warranty deed conveying the Land from Seller to Purchaser.
(b) If the Survey does not comply in all material respects with these
requirements, then Seller shall not be in default under this Contract, but shall
endeavor to have the Surveyor revise the Survey so as to comply with these
requirements; and the Title Review Period (as defined in Section 4.3) shall be
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extended on a day for day basis until a Survey in compliance with the provisions
of this Agreement is delivered to Purchaser, but in no event shall the Title
Review Period be extended for more than ten (10) days by reason thereof.
4.3 Review of Title Commitment, Survey and Exception Documents.
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Purchaser shall have a period of twenty (20) days (the "Title Review Period")
after Purchaser's receipt of the last to be received of the Title Commitment,
the Exception Documents, and the Survey in which to give written notice to
Seller specifying Purchaser's objections to one or more of those items
("Objections"), if any.
4.4 Seller's Obligation to Cure; Purchaser's Right to Terminate. If
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Purchaser timely notifies Seller in writing of Objections to any of the matters
furnished to Purchaser pursuant to Sections 4.1 and 4.2, then Seller shall,
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within ten (10) business days after Seller's receipt of Purchaser's notice (the
"Cure Period") either satisfy the Objections at Seller's sole cost and expense,
or promptly notify Purchaser in writing of the Objections that Seller cannot or
will not satisfy at Seller's expense or of any Objections which Seller cannot
satisfy within the Cure Period but agrees to satisfy prior to Closing. Seller
shall be required to remove all liens affecting the Property which secure
indebtedness of an ascertainable amount and any encumbrance placed upon the
Property by Seller after the date of this Contract, but Seller shall have no
obligation to satisfy any other objections to title. If Seller shall fail to
notify Purchaser within the Cure Period of its election to satisfy any
Objections, then Purchaser shall have the option of either (i) waiving the
unsatisfied
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Objections, in which event those unsatisfied Objections shall become Permitted
Exceptions, or (ii) terminating this Contract and receiving back the Xxxxxxx
Money Deposit, in which latter event Seller and Purchaser shall have no further
obligations, one to the other, with respect to the subject matter of this
Contract, except as provided in Section 5.2. If Purchaser fails to deliver
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written notice of termination to Seller within five (5) days after the
expiration of the Cure Period, then Purchaser shall be deemed to have waived and
accepted the unsatisfied Objections, which (together with all Title Exceptions
to which Purchaser has not objected) shall become Permitted Exceptions, with no
reduction in the Purchase Price, and Purchaser shall have no further right to
terminate this Contract under this Section 4.4.
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4.5 Title Policy. At the Closing, Seller, at Seller's sole cost and
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expense, shall cause a standard Form T-1 Texas Owner Policy of Title Insurance
(the "Title Policy") to be furnished to Purchaser. The Title Policy shall be
issued by the Title Company, on behalf of the Title Underwriter, in the amount
of the Purchase Price, and insuring that Purchaser has good and indefeasible fee
simple title to the Property, subject only to the Permitted Exceptions. To the
extent available, the Title Policy shall be modified to limit the standard
printed exception for standby fees and taxes to the year 1997 and subsequent
years, and subsequent assessments for prior years due to changes in land usage
or ownership and to limit the "survey exception" to shortages in area.
ARTICLE V
INSPECTION PERIOD
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5.1 Inspection Period. During the period commencing with the Effective
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Date and ending forty-five (45) days thereafter, Purchaser shall have access to
the Property upon reasonable prior notice to Seller (which notice shall be
reasonable if given one or more business days in advance and which may be given
by telephone or in writing) to conduct such physical inspections and other
tests, examinations, studies, and appraisals of the Property as Purchaser deems
necessary or desirable, at Purchaser's sole cost and expense, to determine if
the Property is suitable for Purchaser's purposes. Purchaser shall use
Purchaser's reasonable efforts to conduct any such physical inspections, tests,
examinations, studies, and appraisals in a manner that will not unreasonably
disturb Seller's employees who are working within the Project. All of
Purchaser's inspections of the Property and tests upon the Property shall be
conducted during normal business hours and, in the case of systems tests, with
reasonable opportunity for a representative of Seller to be present. If
Purchaser is not satisfied with the condition of the Property for any reason, in
Purchaser's sole discretion, then Purchaser may terminate this Contract by
giving written notice to Seller on or before the end of the Inspection Period,
in which case the Xxxxxxx Money Deposit shall be returned to Purchaser, and the
parties shall have no further obligations under this Contract, one to the other,
except as provided in Section 5.2. If Purchaser fails to notify Seller in
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writing before the expiration of the Inspection Period that Purchaser has
terminated this Contract pursuant to this Section 5.1, then (a) Purchaser shall
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be deemed to have accepted the condition of the Property, (b) Purchaser's right
to terminate this Contract pursuant to this Section 5.1 shall be deemed waived,
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and (c) the Xxxxxxx Money Deposit shall be non-refundable in any event other
than Seller's default or Purchaser's termination of the Contract under the
provisions of Section 4.4.
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5.2 Access. To facilitate the review contemplated in Section 5.1,
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during the Inspection Period, Seller shall provide Purchaser and Purchaser's
agents and representatives access to the Property subject to the requirements of
Section 5.1. Purchaser agrees to indemnify and hold Seller harmless from and
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against any liens, claims, or damages arising out of unpaid bills incurred by
Purchaser in connection with its inspection and out of property damages and
personal injuries arising out of acts or omissions of Purchaser, its agents and
representatives in connection with its inspection including, without limitation,
any and all demands, actions or causes of action, assessments, losses, costs,
liabilities, interest and penalties, and reasonable attorney's fees suffered or
incurred by Seller as a result of Purchaser's conduct of the review. Purchaser
shall repair or cause to be repaired any damages caused by Purchaser's review.
The indemnification obligations of Purchaser in this Section 5.2 shall survive
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the termination of this Contract for any reason.
5.3 Vacation of Project, Absence of Tenancies; Post Move-Out Inspection.
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Seller shall vacate its personnel from the Project at least thirty (30) days
before the Closing and at the Closing, Seller shall deliver possession of the
Property to Purchaser free of all tenancies or other rights of parties in
possession. Prior to the expiration of the Inspection Period, Purchaser may
designate in writing those items in the nature of modifications, additions and
improvements to the Project undertaken by Seller or its tenants that Purchaser
desires to have removed before the Closing. Seller shall not be required to
remove any of such items except to the extent Seller agrees in writing to remove
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specific items or categories of items designated by Purchaser. However, if
Seller does agree to remove any items or categories of items, Seller shall be
unconditionally obligated to complete the removal of those items in a good and
workmanlike manner at least twenty days (20) before the Closing and to repair in
a good and workmanlike manner all damages resulting from such removal. Within
twenty (20) days before the Closing, Purchaser shall have the right to a further
inspection of the Property to assess the completion of Seller's removal of items
agreed to be removed and to identify any damages to the Property occurring since
the expiration of the Inspection Period, including, without limitation, damages
occurring in connection with the move-out of Seller's personnel from the
Project. Seller shall have the right to accompany Purchaser in its inspection.
During such inspection, Purchaser may note all damages occurring to the Property
since expiration of the Inspection Period and, subject to Section 13.9, dealing
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with casualty and condemnation, Seller shall, at its sole cost, repair such
damages in order that upon its delivery to Purchaser, the condition of the
Property shall be as good as its condition upon the expiration of the Inspection
Period. Notwithstanding anything to the contrary contained in this Contract, in
the event of Seller's breach of its obligations pursuant to this Section 5.3,
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Purchaser shall have the right to pursue all legal or equitable remedies for
such breach and shall not be limited to the provisions of Section 10.1.
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ARTICLE VI
REPRESENTATIONS, WARRANTIES, COVENANTS,
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AND AGREEMENTS OF SELLER
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6.1 Representations and Warranties of Seller. Seller represents and
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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, that to
Seller's current actual knowledge:
(a) There are no parties in possession of the Property, except
Seller;
(b) Seller has, and at the Closing Date Seller shall have, and shall
convey to Purchaser by special warranty deed, good and indefeasible fee simple
title to the Property, subject only to the Permitted Exceptions;
(c) Except as otherwise provided in Section 8.3, Seller has the full
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right, power, and authority to sell and convey the Property as provided in this
Contract and to carry out Seller's obligations hereunder, and that all requisite
action necessary to authorize Seller to enter into this Contract and to carry
out Seller's obligations hereunder has been, or on the Closing Date will have
been, taken;
(d) Seller has not received written notice from any governmental or
quasi-governmental agency requiring Seller to correct any condition with respect
to all or any portion of the Project by reason of a violation of any legal
requirement which has not been corrected;
(e) Seller is not a foreign person, as that term is defined in
Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended, and
regulations promulgated thereunder; and
(f) Seller is not aware of any actual or alleged default or breach of
a material nature by Seller under any covenants, conditions, restrictions,
rights-of-way or easements affecting the Property or any portion thereof;
(g) Seller has not received written notice of any pending
condemnation proceedings, eminent domain proceedings or similar actions against
the Property or any portion thereof;
(h) Seller has not received written notice of pending or threatened
litigation affecting or questioning Seller's title to, or operations at, the
Property;
(i) Seller is not a party to any real estate brokerage agreements
that would be binding upon Purchaser after the Closing;
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(j) Seller has not received written notice of any special public
assessments (other than ad valorem taxes) which would constitute a charge
against the Property; and
(k) The Service Contracts to be furnished by Seller pursuant to
Section 6.2(a) shall be true complete and correct copies of the original
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counterparts thereof and there exist no other service contracts that affect the
Property as of the Effective Date that would be binding on Purchaser or the
Property after the Closing.
6.2 Covenants and Agreements of Seller. Seller covenants and agrees
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with Purchaser as follows:
(a) Within three (3) business days after Seller is notified that the
Xxxxxxx Money Deposit has been received by the Title Company, Seller will
deliver to Purchaser true, complete and legible copies of the following:
(i) [intentionally omitted];
(ii) All service, maintenance, management, and other contracts
relating to the ownership and operation of the Project;
(iii) All building permits and certificates of occupancy or of
substantial completion issued with respect to the construction and
ownership of the Project in Seller's possession;
(iv) Certificates evidencing all fire, hazard, liability, and
builder's risk insurance policies held by Seller on the Property;
(v) All available real estate and personal property tax
statements for the year prior to Closing with respect to the Property and,
if received by Seller, the valuation notice issued with respect to the
Property for the year of Closing;
(vi) Any plans and specifications with respect to the Project
in Seller's possession;
(vii) Copies of the ad valorem tax bills for 1996 for the
Property;
(viii) Copies of all maintenance records for 1996 and the
current year to date reflecting all capital expenditures or any maintenance
or repair in excess of $3,000.00 for any single item of capital
expenditure, maintenance or repair including, but not limited to, all
records with respect to all maintenance, repair, or replacement regarding
the roofs on any improvements, the parking lots and any drainage repair or
improvements regarding the Property in the possession of Seller; and
(ix) [intentionally omitted];
(b) From the Effective Date until the Closing Date or earlier
termination of this Contract, Seller shall:
(i) Operate and maintain the Property in the ordinary course
of Seller's business; and
(ii) Not, without Purchaser's prior written consent, enter
into any contracts, leases or other commitments that will survive Closing
other than the following:
(A) service contracts that are terminable without
penalty on thirty (30) days or less notice; or
(B) emergency repairs to the Property (provided, no
consent of Purchaser shall be required for any expenditure
required to prevent imminent danger to persons or property);
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6.3 Survival Beyond Closing. The representations and warranties of Seller
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contained in this Contract as set forth in Section 6.1 shall survive the Closing
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for a period of one year.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PURCHASER
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7.1 Representations and Warranties of Purchaser. Purchaser represents,
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warrants, covenants, and agrees with Seller as of the Effective Date and as of
the Closing Date, except where specific reference is made to another date or
dates, that:
(a) Purchaser has the full right, power, and authority to purchase
the Property from Seller as provided in this Contract and to carry out
Purchaser's obligations under this Contract, and all requisite action necessary
to authorize Purchaser to enter into this Contract and to carry out Purchaser's
obligations hereunder has been or on or before Closing will have been taken;
(b) As of the Effective Date, Purchaser has been hereby advised in
writing that Purchaser should have an abstract covering the Land examined by an
attorney of Purchaser's own selection or that Purchaser should be furnished with
or obtain a policy of title insurance;
(c) Purchaser hereby acknowledges that Purchaser has had and will
have, pursuant to this Contract, an adequate opportunity to make such legal,
factual, and other inquiries and investigations as it deems necessary,
desirable, or appropriate with respect to the Property, including, without
limitation, the physical and environmental condition thereof. Such inquiries
and investigations of Purchaser shall be deemed to include, but shall not be
limited to, any service contracts pertaining to the Property, the physical
components of all portions of the Property, the condition of the Property, the
existence of any wood-destroying organisms on the Property, such state of facts
as an accurate survey and inspection would show, the present and future zoning
ordinances, resolutions, and regulations of the city, county, and state where
the Property is located, and the value and marketability of the Property.
7.2 Survival Beyond Closing. The representations and warranties of
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Purchaser contained in this Contract as set forth in Section 7.1 shall survive
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the Closing for a period of one year.
7.3 "AS IS" NATURE OF TRANSACTION. PURCHASER ACKNOWLEDGES AND AGREES THAT
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IT IS ACQUIRING THE PROPERTY ON AN "AS IS, WHERE IS" BASIS AND WITH ALL FAULTS,
AND WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR
NATURE, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 6.1 HEREOF AND EXCEPT
AS SET FORTH IN SELLER'S DEED TO BE DELIVERED TO PURCHASER AT THE CLOSING. THE
PROVISIONS OF THIS SECTION 7.3 SHALL SURVIVE THE CLOSING.
ARTICLE VIII
CONDITIONS PRECEDENT TO PURCHASER'S AND SELLER'S PERFORMANCE
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8.1 Performance of Seller's Obligations. Purchaser is not obligated to
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perform under this Contract unless Seller has furnished or caused to be
furnished to Purchaser all items required to be so furnished under other
sections of this Contract, and, unless Seller cures or Purchaser waives or is
deemed to have waived each of Purchaser's objections made in accordance with
Section 4.4.
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8.2 Breach of Seller's Representations, Warranties, Covenants, and
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Agreements. Purchaser is not obligated to perform under this Contract unless
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all of the representations, warranties, covenants, and agreements of Seller set
forth in this Contract are true and correct in all material respects as of the
Closing Date and unless Seller, on or before the Closing Date, has met, complied
with, and performed in all material respects any conditions or agreements
required by Seller under this Contract.
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8.3 Termination by Purchaser if Conditions Precedent Not Satisfied or
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Waived. If any of the specified conditions precedent to the performance of
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Purchaser's obligations under this Contract have not been satisfied, waived, or
deemed waived by Purchaser on or before the Closing Date, then Purchaser may, at
its sole and exclusive option, (i) waive the unsatisfied condition and close
this transaction; or (ii) terminate this Contract and obtain the return of the
Xxxxxxx Money Deposit, whereupon the parties shall have no further liabilities
hereunder, one to the other, except as provided in Section 5.2; or (iii) if the
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failure of the condition precedent to be satisfied arises from the failure of
Seller to perform an obligation hereunder, Purchaser may exercise the additional
remedies provided herein by reason of Seller's default. If Purchaser elects to
terminate this Contract then, immediately upon Purchaser's termination, the
Xxxxxxx Money Deposit shall be forthwith returned to Purchaser by the Title
Company. If the Xxxxxxx Money Deposit is properly returnable to Purchaser, then
Seller shall, on written request from Purchaser, promptly issue necessary
instructions to cause the Title Company to return to Purchaser the Xxxxxxx Money
Deposit and, thereafter, Purchaser and Seller shall have no further obligations
under this Contract, one to the other, except as provided in Section 5.2.
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ARTICLE IX
CLOSING
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9.1 Date and Place of Closing. The Closing shall take place in the
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offices of the Title Company. The Closing Date shall be on January 15, 1998,
subject to Seller's right to designate December 31, 1997 as the Closing Date,
which right shall be exercised, if at all, at least seven (7) business days
before the expiration of the Inspection Period. If a date designated as the
Closing Date is not a Business Day, then the Closing Date shall be the first
Business Day thereafter. By mutual written agreement, Seller and Purchaser may
select an earlier or later date as the Closing Date.
9.2 Items to be Delivered at the Closing.
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(a) Seller. At the Closing, Seller shall deliver or cause to be
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delivered to Purchaser, at Seller's sole cost and expense (except as provided to
the contrary), the following items:
(i) the Title Policy, in the form specified in Section 4.5
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hereof;
(ii) a special warranty deed, duly executed by Seller and
acknowledged, subject to the Permitted Exceptions;
(iii) [intentionally omitted];
(iv) [intentionally omitted];
(v) duplicate originals of a xxxx of sale and Seller's
assignment and Purchaser's assumption of contracts and warranties;
(vi) an affidavit in compliance with Section 1445 of the
Internal Revenue Code of 1986, as amended, and any regulations promulgated
thereunder, stating that Seller is not a "foreign person" as that term is
defined in Section 1445, duly executed by Seller and acknowledged;
(vii) keys to all locks located in the Project that are in
Seller's possession or to which Seller has reasonable access without the
necessity of incurring any expense in connection therewith;
(viii) [intentionally omitted];
(ix) [intentionally omitted];
(x) duplicate originals of assignment and assumption of
contracts, bonds, warranties and guaranties, duly executed by Seller;
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(xi) originals of all service contracts, plans, governmental
approvals, warranties, guaranties and other contracts and agreements
relating to the ownership and operation of the Property that, to Seller's
current actual knowledge, are in Seller's possession or to which Seller has
reasonable access without the necessity of incurring any expense in
connection therewith;
(xii) other items reasonably requested by the Title Company as
administrative requirements for consummating the Closing;
(xiii) evidence of appropriate authorization, reasonably
satisfactory to Purchaser and the Title Company, in their reasonable
discretion, for the sale of the Property to Purchaser on the terms and
conditions set forth in this Contract; and
(xiv) other items reasonably requested by the Title Company or
Purchaser as administrative requirements for consummating the Closing.
(b) Purchaser. At the Closing, Purchaser, at Purchaser's sole cost
---------
and expense, shall deliver to Seller or the Title Company:
(i) the cash sum required by Section 3.3;
-----------
(ii) [intentionally omitted];
(iii) duplicate originals of Seller's assignment and
Purchaser's assumption of contracts and warranties, in the form required by
this Contract, duly executed by Purchaser;
(iv) [intentionally omitted];
(v) duplicate originals of assignment and assumption of
contracts, bonds, warranties and guaranties;
(vi) evidence of appropriate authorization, reasonably
satisfactory to Seller and the Title Company, in their reasonable
discretion, for the purchase of the Property in accordance with this and
the consummation of the transactions contemplated by this Contract on
behalf of Purchaser; and
(vii) other items reasonably requested by the Title Company or
Seller as administrative requirements for consummating the Closing.
9.3 Adjustments at Closing. Notwithstanding anything to the contrary
----------------------
contained in this Contract or applicable law, the provisions of this Section 9.3
-----------
shall survive the Closing. The following items shall be adjusted or prorated
between Seller and Purchaser with respect to the Property:
(a) Ad valorem taxes relating to the Property for the calendar year
of the Closing shall be prorated between Seller and Purchaser as of 12:01 a.m.
on the Closing Date. If the actual amount of taxes for the calendar year of the
Closing is not known as of the Closing Date, the proration shall be based on the
amount of taxes due and payable with respect to the Property for the calendar
year immediately preceding the calendar year of the Closing, and Seller shall
pay to Purchaser in cash (or by credit on Purchaser's closing statement) at the
Closing Seller's pro rata portion of those taxes. When the amount of taxes
levied against the Property for the year of Closing is known, either Seller or
Purchaser shall have the right to have the proration amount readjusted with the
result that Seller shall pay for those taxes attributable to the period of time
prior to the Closing Date and Purchaser shall pay for those taxes attributable
to the period of time commencing with and following the Closing Date; provided,
however, that to avail itself of the right to have the proration amount
readjusted, the party seeking readjustment must deliver to the other party a
written request to that effect on or before August 1 of the calendar year
immediately following the year of Closing. Notwithstanding anything to the
contrary herein, Seller shall be responsible for all subsequent assessments for
prior years due to change in land usage or ownership and Seller shall promptly
pay those taxes. Payments after the Closing Date shall be made in immediately
available funds to the applicable party at its address set forth in Section
-------
13.1.
----
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Contract of Sale / Xxxxxxxxx Realty Partners, LLC, - CompuCom Services, Inc.
Page 9
(b) [intentionally omitted];
(c) [intentionally omitted];
(d) All other income and ordinary operating expenses of the Property
(except public utilities, for which each party shall deal directly with the
service provider), including, without limitation, maintenance, management, and
other service charges, and all other normal operating charges with respect to
the Property shall be prorated at the Closing effective as of 12:01 a.m. on the
Closing Date, and appropriate cash adjustments shall be made by Purchaser and
Seller.
(e) Seller shall pay the outstanding balance of any liens covering
the Property and cause the Title Company to deliver the Title Policy with no
exception for any liens, other than the lien for the current year's taxes.
(f) If, following the Closing, Purchaser or Seller discover any
errors or omissions in the prorations or adjustments approved at Closing, then
either party shall have the right to obtain a correction of the error or
omission provided written request, and the rational basis therefor, for such
correction is delivered within 180 days after Closing.
9.4 Possession and Closing. Possession of the Property shall be
----------------------
delivered to Purchaser by Seller at the Closing, subject only to the Permitted
Exceptions.
9.5 Costs of Closing. Each party is responsible for paying the legal
----------------
fees of its counsel in negotiating, preparing, and closing the transaction
contemplated by this Contract. Seller is responsible for paying the cost of the
entire premium for the Title Policy, including the additional premium for
modification of the "survey exception", one-half of the Title Company's escrow
fee and the other fees, costs, and expenses identified herein as being the
responsibility of Seller. Purchaser shall be responsible for one-half (1/2) of
the Title Company's escrow fees and the other fees, costs and expenses
identified herein as being the responsibility of Purchaser. All other expenses
shall be allocated between the parties in the customary manner for closings of
real property similar to the Property in the area in which the Property is
located. Each party shall bear the cost of its own legal counsel in negotiating
and closing this transaction. This Section 9.5 shall survive the Closing for
-----------
all purposes.
9.6 Indemnification. Any and all costs and expenses relating to the
---------------
operation, management or ownership of the Property incurred by Seller prior to
the Closing Date, pursuant to the Service Contracts, or for utilities serving
the Property are the responsibility of Seller and Seller shall pay the same and
shall indemnify and hold Purchaser harmless therefrom. Any and all costs and
expenses relating to the operation, management or ownership of the Property for
the period of time commencing with and following the Closing Date are the
responsibility of Purchaser and Purchaser shall pay the same and shall indemnify
and hold Seller harmless therefrom. This indemnification shall survive the
Closing.
ARTICLE X
DEFAULTS AND REMEDIES
---------------------
10.1 Seller's Default; Purchaser's Remedies.
--------------------------------------
(a) Seller's Default. Seller shall be in default under this Contract
----------------
if any one or more of the following shall occur and remain uncured and
unsatisfied for ten (10) days after Seller's receipt of specific written notice
from Purchaser thereof:
(i) Any of Seller's warranties or representations contained
in this Contract are untrue in any material respect on the Closing Date;
(ii) Seller fails to meet, comply with, or perform in any
material respect any covenant, agreement, or obligation on Seller's part
required within the time limits and in the manner required in this
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Contract of Sale / Xxxxxxxxx Realty Partners, LLC, - CompuCom Services, Inc.
Page 10
Contract and Seller fails to cure such failure within ten (10) days after
written notice of such failure is delivered to Seller (provided, that no
period for notice and cure shall apply in the event of Seller's failure to
consummate the Closing on the Closing Date); or
(iii) Seller fails to consummate this Contract for any reason
except Purchaser's default hereunder or the termination of this Contract by
Purchaser or Seller pursuant to a right granted under the terms and
provisions hereof.
(b) Purchaser's Remedies. If Seller is in default hereunder,
--------------------
Purchaser may, at Purchaser's sole option, do either of the following, as
Purchaser's sole and exclusive remedy:
(i) Terminate this Contract by written notice delivered to
Seller on or before the Closing Date, in which event the Xxxxxxx Money
Deposit shall be returned to Purchaser; or
(ii) Enforce specific performance of this Contract against
Seller.
10.2 Purchaser's Default; Seller's Remedies.
--------------------------------------
(a) Purchaser's Default. Purchaser is in default under this Contract
-------------------
if Purchaser fails to timely deliver the Xxxxxxx Money Deposit or if Purchaser
fails to increase the amount thereof upon the expiration of the Inspection
Period within the time provided in Section 3.2; or if Purchaser fails to
-----------
consummate the transaction contemplated by this Contract on the Closing Date,
provided that on such date, this Contract has not been terminated by a party
hereto pursuant to a right to do so granted herein and the conditions precedent
to Purchaser's obligations set forth in Section 8.1 and Section 8.2 have been
----------- -----------
satisfied; or if any one or more of the following shall occur and remain uncured
and unsatisfied for ten (10) days after Purchaser's receipt of specific written
notice from Seller thereof:
(i) Any of Purchaser's material warranties or representations
contained in this Contract are untrue in any material respect on the
Closing Date; or
(ii) Purchaser fails to meet, comply with, or perform in any
material respect any other covenant, agreement, or obligation on
Purchaser's part required within the time limits and in the manner required
in this Contract; or
(iii) Purchaser fails to consummate this Contract for any
reason except Seller's default hereunder or the termination of this
Contract by Purchaser or Seller pursuant to a right granted under the terms
and provisions hereof.
(b) Seller's Remedies. If Purchaser is in default under this
-----------------
Contract, Seller may, as Seller's sole and exclusive remedy, terminate this
Contract and receive the Xxxxxxx Money Deposit from the Title Company as
liquidated damages and not as a penalty, it being acknowledged and agreed by
Seller and Purchaser that the amount of Seller's damages for Purchaser's breach
of this Contract would be difficult, expensive and impractical to determine, and
the Xxxxxxx Money Deposit is a reasonable estimate of Seller's damages that
would be caused by Purchaser's breach. Seller waives any right to seek damages
or to enforce specific performance against Purchaser of Purchaser's obligations
under this Contract, but Seller may seek damages against Purchaser for breach of
Section 5.2 hereof.
-----------
10.3 Payment of Xxxxxxx Money Deposit. Upon termination of this Contract
--------------------------------
pursuant to the terms hereof, or upon the occurrence of a default of Purchaser
or Seller hereunder, the Xxxxxxx Money Deposit shall be forthwith tendered by
the Title Company to the party entitled thereto pursuant to this Contract.
Purchaser and Seller, respectively, agree promptly on written request from the
other, to execute and deliver any documents necessary to cause the Title Company
to deliver the Xxxxxxx Money Deposit as required by this Contract.
ARTICLE XI
BROKERAGE COMMISSIONS
---------------------
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Contract of Sale / Xxxxxxxxx Realty Partners, LLC, - CompuCom Services, Inc.
Page 11
11.1 Commissions. Conditioned upon the closing and funding of the
-----------
transaction contemplated hereby, Seller hereby agrees to pay a real estate
commission to its brokers, Xxxxxxx & Xxxxxxx and the Staubach Company, each
pursuant to a separate written commission agreement. Purchaser shall pay a real
estate commission to its broker, Xxxxxxxxx Real Estate Services, LLC pursuant to
a separate written agreement. With the exception of the brokers referred to
above, each party hereby warrants that it has not engaged any other broker in
connection with this transaction. Each party (the "Indemnifying Party") hereby
indemnifies and agrees to hold the other party (the "Indemnified Party")
harmless from any loss, liability, damage, cost, or expense (including, but not
limited to, reasonable attorneys' fees) resulting to the Indemnified Party from
any obligation incurred by the Indemnifying Party to any other real estate
broker, finder, agent or other party in connection with this transaction. The
provisions of this Section 11.11 shall survive the Closing.
-------------
ARTICLE XII
ENVIRONMENTAL PROVISIONS
------------------------
12.1 Definitions. As used in this Article XII, the following terms have
----------- -----------
the meanings indicated:
(a) "Applicable Environmental Law" means all statutes, rules,
----------------------------
rulings, regulations, ordinances, orders, permits and other requirements imposed
by federal, state, local and other governmental or regulatory authorities having
competent jurisdiction over the subject matter thereof that pertain to health,
safety or the environment, as amended from time to time.
(b) The terms "Asbestos Containing Material," "Discharge,"
---------------------------- ---------
"Disposal," "Hazardous Substance," "Release" "Remedial Action," "Remove" or
-------- ------------------- ------- --------------- ------
"Removal," "Response," "Solid Waste" and "Spill" shall have the meaning set
------- -------- ----------- -----
forth in the definition of those terms in Applicable Environmental Law as of the
effective date of this document. However, if the definition of any of those
terms is subsequently broadened or expanded, the broadened or expanded
definition shall be used for purposes of this Article XII. If a term is defined
-----------
more than once by Applicable Environmental Law, the broadest definition of such
term shall be used for purposes of this Article XII. Additionally, for purposes
-----------
of this Article XII, the term "Hazardous Substance" shall include petroleum
----------- -------------------
products and derivatives thereof.
12.2 Environmental Survey. Seller hereby warrants and represents that,
--------------------
to the current actual knowledge of Seller, without independent investigation,
except as otherwise described in an environmental report prepared by Maxim
Engineers dated May 6, 1992, Seller is not aware of any environmental
contamination affecting the Property and that, insofar as Seller is aware, the
Property is not in violation of Applicable Environmental Law. Seller shall
provide Purchaser with copies of any environmental reports and other similar
information for the Property in Seller's possession. Purchaser shall be
responsible for any further environmental investigation of the Property and
shall have the right to perform such investigations, including soil borings, as
Purchaser's environmental consultants may recommend. Seller shall cooperate
fully with Purchaser in its environmental investigation.
12.3 Waiver, Release and Discharge. If Closing shall occur, then
-----------------------------
Purchaser and Purchaser's successors in interest to the Property shall thereby
be deemed to have waived, released and forever discharged Seller and Seller's
partners, agents, employees, officers, managers and representatives from any and
all liability of any nature whatsoever, whether presently existing or occurring
in the future, resulting from, relating to or arising out of Seller's ownership,
construction, occupancy, use or operation of the Property or the environmental
condition of the Property (including, without limitation, the Spill, Disposal,
Discharge or Release of Hazardous Substances or Solid Wastes in, on or under the
Property or the presence, Disposal, Discharge or Release of Asbestos Containing
Materials in or on the Property), whether before, as of, or after Closing The
foregoing waiver, release and discharge does not benefit parties other than
those expressly referred to above. The provisions of this Section 12.3 shall
------------
survive the Closing.
ARTICLE XIII
MISCELLANEOUS
-------------
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Contract of Sale / Xxxxxxxxx Realty Partners, LLC, - CompuCom Services, Inc.
Page 12
13.1 Notices. All notices, demands, requests, and other communications
-------
required or permitted hereunder shall be in writing, and shall be deemed to be
delivered on receipt if delivered by hand delivery, or whether actually received
or not, upon the deposit of both the original and the copy, as provided below,
with the Federal Express Corporation or in a regularly maintained receptacle for
the United States mail, registered or certified, return receipt requested,
postage prepaid, addressed as follows:
If to Seller: CompuCom Systems, Inc.
0000 Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Attn: Xxx Xxxxx
Copies to: Xxxx X. Deal
Xxxxxxx & Xxxxxxx
00000 Xxxxx Xxxxx, Xxxxx 0000, XX 00
Xxxxxx, XX 00000
and
Copies to: Xxxxxx X. Xxxxx, Esq.
Xxxxxxxxxxx & Price, L.L.P.
Suite 4300
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Telecopier: (000) 000-0000
If to Purchaser: Macfarlan Realty Partners, L.L.C.
Two Turtle Creek Village
0000 Xxx Xxxx Xxx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Copies to: Xxxxxx X. XxXxxxxxx, Esq.
Xxxxxx and Xxxxx
0000 XxxxxxxXxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Telecopier: (000) 000-0000
13.2 Governing Law. THIS CONTRACT IS BEING EXECUTED AND DELIVERED, AND
-------------
IS INTENDED TO BE PERFORMED, IN THE STATE OF TEXAS, AND THE LAWS OF TEXAS SHALL
GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS
CONTRACT, UNLESS OTHERWISE SPECIFIED HEREIN. THIS CONTRACT IS PERFORMABLE IN,
AND THE EXCLUSIVE VENUE FOR ANY ACTION BROUGHT WITH RESPECT HERETO, SHALL LIE
IN, DALLAS COUNTY, TEXAS.
13.3 Entirety and Amendments. This Contract embodies the entire
-----------------------
agreement between the parties and supersedes all prior agreements and
understandings, if any, relating to the Property, and may be amended or
supplemented only by an instrument in writing executed by the party against whom
enforcement is sought.
13.4 Parties Bound. This Contract is binding on and inures to the
-------------
benefit of Seller and Purchaser, and their respective heirs, executors,
administrators, successors, and assigns.
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Contract of Sale / Xxxxxxxxx Realty Partners, LLC, - CompuCom Services, Inc.
Page 13
13.5 Further Acts. In addition to the acts and deeds recited in this
------------
Contract and contemplated to be performed, executed, and/or delivered under this
Contract, Seller and Purchaser agree to perform, execute, and/or deliver or
cause to be performed, executed and/or delivered at the Closing or after the
Closing all further acts, deeds and assurances reasonably necessary to
consummate the transactions contemplated hereby as required by the terms hereof.
13.6 Multiple Counterparts. This Contract may be executed in any number
---------------------
of counterparts, all of which taken together shall constitute one and the same
agreement, and any of the parties to this Contract may execute the Contract by
signing any of the counterparts.
13.7 Time of the Essence. It is expressly agreed by Seller and Purchaser
-------------------
that time is of the essence with respect to this Contract.
13.8 Exhibits. The Exhibits which are referenced in, and attached to,
--------
this Contract are incorporated in, and made a part of, this Contract for all
purposes.
13.9 Risk of Loss. Seller agrees to give Purchaser prompt notice of any
------------
fire or other casualty affecting the Property or of any actual or threatened (to
the extent that Seller has current actual knowledge thereof) taking or
condemnation of all or any portion of the Property. If prior to the Closing,
there shall occur:
(a) damage to the Property caused by fire or other casualty which
would cost an amount, greater than, or equal to, $150,000.00 to repair; or
(b) the taking or condemnation of all or any portion of the Property
which would diminish the value of the Property by $150,000.00 or more;
then, in such event, Purchaser shall have the right to terminate this Contract
by written notice thereof delivered to Seller within fifteen (15) Business Days
after Purchaser has received notice from Seller of that event. If Purchaser
does not so timely elect to terminate this Contract, then the Closing shall take
place as provided herein and there shall be assigned to Purchaser at the Closing
all interests of Seller in and to any insurance proceeds (plus Seller's
deductible amount) or condemnation awards payable to Seller on account of that
event, less sums which Seller incurs before the Closing to repair any of the
damage. If before the Closing there occurs:
(a) damage to the Property caused by fire or other casualty which
would cost less than $150,000.00 to repair; or
(b) the taking or condemnation of a portion of the Property which
would not diminish the value of the Property by $150,000.00 or more;
then, Purchaser may not terminate this Contract and there shall be assigned to
Purchaser at the Closing all interest of Seller in and to any insurance proceeds
(plus Seller's deductible amount) or condemnation awards payable to Seller on
account of that event, less sums which Seller incurs, with Purchaser's consent
(except that emergency repairs shall not require Purchaser's consent) before the
Closing to repair any of the damage. If Seller elects to repair the damages so
caused, Seller shall use reasonable business judgment in selecting a contractor
to make the repairs and shall promptly notify Purchaser of the identity of the
Contractor. If Purchaser elects, the Closing may be delayed up to forty five
(45) days in order to permit any repairs commenced by Seller to be completed.
13.10 Assignment. This Contract shall be assignable by Purchaser without
----------
the prior written consent of Seller, provided that an assignee is affiliated,
and under common management, with Purchaser.
13.11 Attorney's Fees. If either party hereto employs an attorney to
---------------
enforce or defend its rights hereunder, the prevailing party shall be entitled
to recover its reasonable attorney's fees.
13.12 IRS Reporting Requirements. For the purpose of complying with any
--------------------------
information reporting requirements or other rules and regulations of the
Internal Revenue Service ("IRS") that are or may become applicable as a result
of or in connection with the transaction contemplated by this Contract,
including, but not limited to, any
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Contract of Sale / Xxxxxxxxx Realty Partners, LLC, - CompuCom Services, Inc.
Page 14
requirements set forth in proposed Income Tax Regulation Section 1.6045-4 and
any final or successor version thereof (collectively the "IRS Reporting
Requirements"), Seller and Purchaser hereby designate and appoint the Title
Company to act as the "Reporting Person" (as that term is defined in the IRS
Reporting Requirements) to be responsible for complying with any IRS Reporting
Requirements. The Title Company hereby acknowledges and accepts such designation
and appointment and agrees to fully comply with any IRS Reporting Requirements
that are or may become applicable as a result of or in connection with the
transaction contemplated by this Contract. Without limiting the responsibility
and obligations of the Title Company as the Reporting Person, Seller and
Purchaser hereby agree to comply with any provisions of the IRS Reporting
Requirements that are not identified therein as the responsibility of the
Reporting Person, including, but not limited to, the requirement that Seller and
Purchaser each retain an original counterpart of this Contract for at least four
(4) years following the calendar year of the Closing.
13.13 Independent Contract Consideration. Without limiting the scope of
----------------------------------
the other consideration received by Seller in the form of Purchaser's promises
contained in this Contract, Seller hereby acknowledges receipt from Purchaser of
$100 in cash, which shall serve as independent and additional consideration for
the agreements of Seller made herein. In no event shall Purchaser be entitled
to the return of such independent additional consideration.
13.14 Effect of Delivery. Execution of this Contract by Purchaser shall
------------------
constitute an offer by Purchaser to purchase the Property on the terms and
conditions herein stated, which offer Seller may accept or reject in its sole
and absolute discretion and for any reason whatsoever. In the event Seller does
not execute such offer within five (5) Business Days of its receipt of a copy
thereof executed by Purchaser, Seller shall conclusively be deemed to have
rejected such offer.
Executed by Seller on the 22nd SELLER:
------
day of October, 1997.
COMPUCOM SYSTEMS, INC.,
a Delaware corporation
By: /s/ X. Xxxxxx Xxxxx
-------------------------------------
Name: X. Xxxxxx Xxxxx
Title: Sr. VP Finance, CFO
Executed by Purchaser on the _____ BUYER:
-----
day of _________________, 1997.
XXXXXXXXX REALTY PARTNERS, L.L.C.
By: /s/ D. Xxxx XxxXxxxxx
-------------------------------------
Name: D. Xxxx XxxXxxxxx
Title: Chairman & CEO
--------------------------------------------------------------------------------
Contract of Sale / Xxxxxxxxx Realty Partners, LLC, - CompuCom Services, Inc.
Page 15
TITLE COMPANY JOINDER AND RECEIPT
---------------------------------
A fully executed counterpart of this Contract was received by the Title
Company on the _____ day of ________________, 1997. The Title Company hereby
executes this Contract for the purposes of (i) acknowledging its receipt of a
fully executed counterpart of this Contract, together with the Xxxxxxx Money
Deposit, (ii) evidencing its agreement to hold and dispose of the Xxxxxxx Money
Deposit in strict accordance with the terms of this Contract, and (iii)
evidencing its agreement to the terms of Section 13.12 of this Contract. The
-------------
Title Company's consent shall not be required to amend any other provision or
term of this Contract.
TITLE COMPANY:
-------------
SOUTHWEST LAND TITLE INSURANCE COMPANY
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
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Contract of Sale / Xxxxxxxxx Realty Partners, LLC, - CompuCom Services, Inc.
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EXHIBIT "A"
-----------
PROPERTY DESCRIPTION
--------------------
[ATTACHED]
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Contract of Sale / Xxxxxxxxx Realty Partners, LLC, - CompuCom Services, Inc.
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