EXHIBIT 10.22
AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
BY AND BETWEEN
EGL, INC., A TEXAS CORPORATION, AS SELLER, AND
MACFARLAN HOLDINGS, LTD., AS BUYER
DATE OF AGREEMENT: SEPTEMBER 17, 2002
TABLE OF CONTENTS
1. DEFINITIONS..............................................................................................2
2. PURCHASE AND SALE........................................................................................6
3. PURCHASE PRICE...........................................................................................6
3.1 Deposit.................................................................................................6
3.2 LIQUIDATED DAMAGES......................................................................................7
3.3 Balance.................................................................................................8
4. DUE DILIGENCE............................................................................................8
4.1 Physical Inspections....................................................................................8
4.2 Title and Survey.......................................................................................10
4.3 Buyer's Disapproval of Due Diligence Items; Subsequent Termination of Agreement........................11
5. WAIVER OF REPRESENTATIONS AND WARRANTIES................................................................11
5.1 "As Is" Sale...........................................................................................11
5.2 Reliance on Own Investigations.........................................................................12
5.3 Waiver of Consumer Rights (as to the Austin Property and Grapevine Property)...........................13
5.4 Notice to Seller and Buyer.............................................................................13
6. REPRESENTATIONS AND WARRANTIES OF BUYER AND SELLER......................................................13
6.1 Buyer's Representations and Warranties.................................................................13
6.2 Seller's Representations and Warranties................................................................14
7. COVENANTS...............................................................................................14
7.1 By Seller..............................................................................................14
7.2 By Buyer...............................................................................................15
7.3 Lease to Tenant........................................................................................15
8. CLOSING.................................................................................................15
8.1 Date and Place.........................................................................................15
8.2 Seller's Deliveries....................................................................................15
8.3 Buyer's Deliveries.....................................................................................17
8.4 Procedure..............................................................................................18
8.5 Possession.............................................................................................19
9. CLOSING COSTS...........................................................................................19
9.1 Seller's Costs.........................................................................................19
9.2 Buyer's Costs..........................................................................................19
9.3 Real Property Taxes....................................................................................19
10. RISK OF LOSS............................................................................................19
10.1 Condemnation...........................................................................................19
10.2 Damage or Destruction..................................................................................20
11. MISCELLANEOUS PROVISIONS................................................................................21
11.1 Entire Agreement; Amendments in Writing; Waiver........................................................21
11.2 No Assignment; Binding Effect; No Third Party Beneficiaries............................................21
11.3 Interpretation; Construction; Partial Invalidity.......................................................22
11.4 Counterpart Execution..................................................................................22
11.5 Time of Essence........................................................................................22
11.6 Governing Law..........................................................................................22
11.7 Attorneys' Fees........................................................................................22
11.8 Brokers' Commissions...................................................................................23
11.9 No Fiduciary Relationship..............................................................................23
11.10 Seller's Default.......................................................................................23
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11.11 Notices................................................................................................24
11.12 Further Assurances.....................................................................................24
11.13 No Disclosure..........................................................................................25
11.14 Environmental Site Assessment..........................................................................25
11.15 Material Adverse Change in Seller's Financial Condition................................................25
Exhibits:
"A-1" - Legal Description of Austin Property
"A-2" - Legal Description of Grapevine Property
"A-3" - Legal Description of South Bend Property
"A-4" - Legal Description of East Granby Property
"B" - Form of Special Warranty Deed (Austin and Grapevine Property)
"C" - Form of Special Warranty Deed (South Bend Property)
"D" - Form of Special Warranty Deed (East Granby Property)
"E" - Form of Bill of Sale Assignment of Intangibles and Contracts and Assumption Agreement
"F" - Certificate of Non-Foreign Status
"G" - Excluded Personal Property
"H" - Form of Lease Agreement
"I" - Memorandum of Lease Agreement
"J" - Corporate Guaranty
"K" - Schedule of Base Rent
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AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
This AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY (this
"Agreement"), dated September 17, 2002 ("Effective Date"), is made and entered
into by and between EGL, INC., a Texas corporation (formerly known as Eagle USA
Airfreight, Inc.) ("Seller"), and MACFARLAN HOLDINGS, LTD., a Texas limited
partnership, or its assigns ("Buyer"), with reference to the following:
RECITALS
A. Seller will acquire or cause to be conveyed, indefeasible fee simple
title to certain improved real property, consisting of the following: (i) one
office/warehouse building containing approximately 86,700 square feet of
warehouse space and approximately 13,225 square feet of office space on
approximately 8.97 acres of land having a street address of 7900 East Riverside
Drive, located in the City of Austin, Travis County, State of Texas, the legal
description of which is set forth on Exhibit "A-1" attached hereto and
incorporated herein by reference for all purposes (the "Austin Property"); (ii)
one office/warehouse building containing approximately 104,220 square feet of
warehouse space and approximately 18,360 square feet of office space on
approximately 10.85 acres of land having a street address of 620 Westport
Parkway, located in the City of Grapevine, Dallas County, State of Texas, the
legal description of which is set forth on Exhibit "A-2" attached hereto and
incorporated herein by reference for all purposes (the "Grapevine Property");
(iii) one office/warehouse building containing approximately 33,135 square feet
of warehouse space and approximately 6,065 square feet of office space on
approximately 6.3 acres of land having a street address of 4810 Ameritech Drive,
located in the City of South Bend, St. Joseph County, State of Indiana, the
legal description of which is set forth on Exhibit "A-3" attached hereto and
incorporated herein by reference for all purposes (the "South Bend Property");
and (iv) one office/warehouse containing approximately 25,200 square feet of
warehouse space and approximately 4,752 square feet of office space on
approximately 3.6 acres of land having a street address of 42 Bradley Park Road,
located in the Town of East Granby, County of Hartford, State of Connecticut,
the legal description of which is set forth on Exhibit "A-4" attached hereto and
incorporated herein by reference for all purposes (the "East Granby Property").
The "Austin Property", "Grapevine Property", "South Bend Property" and "East
Granby Property" are hereinafter sometimes collectively called the "Property"
(as such term is further defined in Section 1.20 hereof).
B. Buyer desires to purchase the Property from Seller, and Seller
desires to sell the Property to Buyer, on the terms and conditions set forth in
this Agreement.
C. Pursuant to the terms of a Master Lease and Development Agreement
dated as of April 3, 1998, executed by and between Asset XVI Holdings Company,
LLC, as the current lessor/owner of the Property and Seller, as lessee, Seller
will exercise its option to purchase the Property and cause such Property to be
conveyed directly to Buyer at the closing and consummation of this transaction
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the adequacy and sufficiency of which are hereby acknowledged,
Buyer and Seller agree as follows:
1. DEFINITIONS. As used herein, the following terms have the following
meanings:
1.1 "AGREEMENT" is defined in the preamble of this Agreement.
1.2 "BUYER" is defined in the preamble to this Agreement.
1.3 "CLOSING" means the closing, consummation and funding of the
purchase of the Property by Buyer pursuant to this Agreement.
1.4 "CLOSING COSTS" means the costs and expenses of Seller and Buyer
in connection with this Agreement and the closing and consummation of
this transaction, including, without limitation, the fees and expenses
of the surveyor in connection with the Survey for each parcel of the
Property, charges and premiums paid to the Title Company in connection
with the Title Policy for each parcel of the Property, Escrow Holder's
costs and fees, and recordation taxes, fees, and costs, including,
without limitation, transfer tax or similar tax on the Deed and any
recording fees, the legal fees of Seller, the legal fees of Buyer; loan
fees, points and/or mortgage brokerage fees incurred by Buyer; the
Seller's brokerage fees or commissions payable to Seller's broker; the
mortgagee and owner's title insurance fees, costs of surveys,
engineering studies and environmental reports.
1.5 "CLOSING DATE" means that date which is November 12, 2002. If the
Closing Date falls on a date which is not a business day as recognized
in the State of Texas, then the Closing Date shall be extended to 5:00
p.m. on the first business day thereafter.
1.6 "DEED" means (i) as to the Austin Property and Grapevine
Property, a Special Warranty Deed in the form attached as Exhibit "B"
hereto and incorporated herein by reference, conveying title to the
Austin Property and Grapevine Property, respectively, to Buyer at the
Closing subject only to the Permitted Title Exceptions (hereinafter
defined); (ii) as to the South Bend Property a Special Warranty Deed in
the form attached as Exhibit "C" hereto and incorporated by herein
reference conveying fee title to the South Bend Property to Buyer at
the Closing , subject only to the Permitted Title Exceptions
(hereinafter defined); and (iii) as to the East Granby Property a
Limited Warranty Deed in the form attached as Exhibit "D" hereto and
incorporated by herein reference conveying fee title to the East Granby
Property to Buyer at the Closing, subject only to the Permitted Title
Exceptions (hereinafter defined).
1.7 "DEPOSIT" is defined in Section 3.1(a) below.
1.8 "DOCUMENTS" is defined in Section 4.1(e) below.
1.9 "DUE DILIGENCE PERIOD" means the period of time commencing on the
Effective Date and expiring at 5:00 p.m. Houston, Texas time on
November 1, 2002. If the expiration of the Due Diligence Period falls
on a date which is not a business day as recognized in the State of
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Texas, then the Due Diligence Period shall be extended to 5:00 p.m. on
the first business day thereafter.
1.10 "EFFECTIVE DATE" is the date on which this Agreement is executed
by Seller and Buyer and receipted by the Title Company.
1.11 "ESCROW" is defined in Section 8.2 below.
1.12 "ESCROW HOLDER" is Charter Title Company, located at 4265 San
Felipe, Suite 350, Houston, Texas 77027 (Attn: Kim LaVern) (telephone:
713-871-9700; fax 713-850-0523).
1.13 "EXCLUDED PERSONAL PROPERTY" shall mean that certain that certain
property described in Exhibit "G" attached hereto and incorporated by
reference herein for all purposes.
1.14 "FIRPTA AFFIDAVIT" is defined in Section 8.2(d) below.
1.15 "GOVERNMENTAL AUTHORITY" shall mean any and all courts, boards,
agencies, commissions, offices, or authorities of any nature whatsoever
for any governmental unit (federal, state, county, district, municipal,
city, or otherwise) whether now or hereafter in existence.
1.16 "HAZARDOUS SUBSTANCE LAWS" is defined in Section 5.1(c) below.
1.17 "LEASE AGREEMENT" is defined in Section 7.3 below.
1.18 "PERMITTED TITLE EXCEPTIONS" means: (i) non-delinquent real
property taxes and assessments with respect to the Property, including,
without limitation, those which are a lien for the taxable year in
which the Closing occurs and which are not due on or before the Closing
Date; (ii) any other matters disclosed on the Title Commitment and the
Survey provided by Seller to Buyer hereunder which are not disapproved
in writing by Buyer prior to the expiration of the Title Review Period,
subject to the provisions of Section 4.2 hereof; and (iii) any title
exceptions or other matters caused or created by Buyer, its agents or
representatives.
1.19 "PERSON" means any corporation, general partnership, limited
partnership, limited liability company, cotenancy, joint venture,
individual, business trust, real estate investment trust, trust,
banking association, federal or state savings and loan institution, or
any other legal entity, whether or not a party to this Agreement.
1.20 "PROPERTY" collectively refers to (i) the Austin Property as more
particularly described in Exhibit "A-1" attached hereto and made a part
hereof for all purposes, (ii) the Grapevine Property as more
particularly described in Exhibit "A-2" attached hereto and made a part
hereof for all purposes, (iii) the South Bend Property as more
particularly described in Exhibit "A-3" attached hereto and made a part
hereof for all purposes, and (iv) the East Granby Property as more
particularly described in Exhibit "A-4" attached hereto and made a part
hereof for all purposes, in each case together with all rights,
privileges, easements, rights-of-way, buildings, and improvements and
fixtures located thereon, except for the Excluded Personal Property
described on Exhibit "G" attached to this Agreement and made a part
hereof for all
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purposes. Each parcel of the Property which is to be sold hereunder
shall include, and the definition of "Property" shall include, all
right, title and interest of the Seller, if any, in and to the land
lying in the bed of any street or highway in front of or adjoining such
parcel, and all appurtenances and all the estate and rights of the
Seller in and appurtenant to such parcel of real property, including,
without limitation, all appurtenant easements and rights-of-way, all
oil, gas and other minerals to the extent the same have not been
heretofore reserved by predecessors in title, situated on, in or under
such parcel of real property, and the buildings and improvements
thereon, and all air and subsurface rights appurtenant to such parcel
of real property and buildings (such parcels of real property, together
with all such rights and appurtenances, being collectively referred to
herein as the "Land") (each such parcel of Land and all matters
described in (b) - (d) below related thereto, being referred to herein
as a "Parcel"); (b) all of the buildings and improvements (each, a
"Building" and collectively, the "Buildings") situated on such Land;
(c) all right, title and interest of the Seller in and to the lighting,
electrical, mechanical, plumbing and heating, ventilation and air
conditioning systems used in connection with the Land and the Buildings
thereon, and all other carpeting, draperies, appliances and other
fixtures and equipment attached or appurtenant to the Land and the
Buildings thereon, together with all personal property (other than
furniture, equipment not necessary to operate the Buildings or building
systems and not permanently affixed to the Buildings or Land, trade
fixtures and inventory) owned by the Seller and located on the Land and
Buildings (collectively, the "Personal Property"); (d) to the extent
the same are assignable and transferable, all right, title and interest
of the Seller in and to all warranties and guaranties respecting the
Buildings and Personal Property; (e) all right, title and interest of
Seller in and to all licenses, permits, authorizations and approvals
issued by any governmental agency or authority which pertain to the
Land and the Buildings, to the extent they exist and are transferable
and assignable; and (f) to the extent the same are assignable, all site
plans, surveys, plans and specifications, and technical, engineering,
appraisal and other reports, studies and proposals which relate to the
Land, the Buildings or the Personal Property.
1.21 "PURCHASE PRICE" for the Property is Fifteen Million Three
Hundred Twenty Thousand and No/100 U.S. Dollars ($15,320,000.00)
payable to Seller in immediately available funds upon the Closing,
which shall be allocated to each respective Property as follows:
$5,517,833 with respect to the Austin Property; $6,267,031 with respect
to the Grapevine Property, $2,357,405 with respect to the South Bend
Property and $1,177,731 with respect to the East Granby Property.
Seller shall not be obligated to finance or accept purchase money
financing for all or any portion of the Purchase Price.
1.22 "REPAIR COST" is defined in Section 10.2 below.
1.23 "REQUIREMENT OF A GOVERNMENTAL AUTHORITY" means any law, statute,
code, ordinance, rule, regulation, restriction, requirement, writ,
injunction, decree, order or demand of any Governmental Authority.
1.24 "SELLER" is defined in the preamble to this Agreement.
1.25 "SELLER'S KNOWLEDGE" means the actual personal knowledge of
Jon R. Kennedy, Senior Vice President of Corporate Administration of
Seller, without duty, inquiry, investigation
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or other obligation of any kind whatsoever. Jon R. Kennedy in his
capacity as the Senior Vice President of Corporate Administration of
the Seller has primary management responsibility for the Property and
is knowledgeable regarding each of the Properties.
1.26 "SURVEY" means (i) a current, on-the-ground survey of the Property
Category IA, Condition II Survey, which meets the minimum standards and
specifications established by Texas Surveyor's Association with respect
to the Austin Property and the Grapevine Property; (ii) a current
on-the-ground ALTA/ACSM with respect to the South Bend Property and
(iv) a current on-the-ground ALTA/ACSM survey with respect to the East
Granby Property, all prepared at Seller's expense by a licensed
surveyor retained by Seller, showing all easements, improvements and
corners of property to be staked, certified to Seller, Buyer and the
Title Company with a form of certification reasonably acceptable to
Buyer and the Title Company. The results of the Survey, including,
without limitation, any survey plats and accompanying field note
descriptions, shall be provided to the Title Company when available for
purposes of confirming the legal description of the Property to be used
in the Deed and the Title Policy.
1.27 "TENANT" is EGL Eagle Global Logistics, LP, a Delaware limited
partnership.
1.28 "TITLE COMMITMENT" is defined in Section 4.2 below.
1.29 "TITLE COMPANY" means Lawyers Title Insurance Corporation.
1.30 "TITLE DEFECT" means any matter shown on the Title Commitment or
disclosed by the Survey as to which Buyer notifies Seller of an
objection to such matter in accordance with Section 4.2 of this
Agreement.
1.31 "TITLE POLICY" means each owner's policy of title insurance issued
by Title Company to Buyer at the Closing on the printed form prescribed
by the State Board of Insurance or other regulatory authority having
jurisdiction over title companies in the State of Texas, Indiana and
Connecticut, as applicable, provided, however: (i) the standard
exception pertaining to restrictive covenants shall be deleted, or
shall be modified to list all restrictions of record which are
Permitted Title Exceptions; (ii) the standard printed survey exception
shall, at Buyer's option, be deleted at the expense of Buyer; and (iii)
the standard exception relating to taxes and assessments shall be
limited to the year in which the Closing occurs and subsequent years,
which are not yet due and payable; and (iv) Buyer, at Buyer's sole cost
and expense, may request the issuance of such other endorsements to the
Title Policy as it deems appropriate and to the extent such
endorsements are available under applicable state law and regulations.
The Title Policy shall be dated as of the date of recordation of the
Deed, shall name Buyer as the insured, shall insure Buyer's good and
indefeasible fee simple title to the Property subject only to the
Permitted Title Exceptions, and shall have a liability limit in the
amount of the Purchase Price as allocated to each respective Property.
1.32 "TITLE REVIEW PERIOD" is defined in Section 4.2 below.
All capitalized terms appearing in this Agreement which are not defined
in the foregoing provisions shall have the meanings set forth as they appear in
this Agreement.
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2. PURCHASE AND SALE. On the terms and subject to the conditions set forth in
this Agreement, Seller hereby agrees to sell to Buyer, and Buyer hereby agrees
to purchase the Property from Seller.
3. PURCHASE PRICE.
3.1 DEPOSIT.
(a) Within one (1) business day following the date a fully executed
original of this Agreement is delivered to the Title Company,
Buyer shall deposit the sum of One Hundred Thousand and No/100
Dollars ($100,000.00) (herein, the "Deposit") in immediately
available funds with the Escrow Holder. Immediately upon (or
prior to) expiration of the Due Diligence Period and provided
that Buyer has not elected to terminate this Agreement pursuant
to Section 4.3 hereof, Buyer shall deposit an additional sum in
the amount of One Hundred Thousand and No/100 Dollars
($100,000.00) with the Escrow Holder, which shall increase the
Deposit to the total amount of Two Hundred Thousand and No/100
Dollars ($200,000.00). Thereafter, the Deposit shall be
non-refundable (except in the event Seller defaults under this
Agreement or as otherwise expressly provided in this Agreement)
and shall be retained by Seller as liquidated damages in
accordance with Section 3.2 of this Agreement. If Buyer does
not timely place the additional sum with the Escrow Holder,
Seller may, at Seller's option, terminate this Agreement upon
written notice to Buyer at any time thereafter and prior to
Buyer's delivery of the Deposit, in which case the Deposit
shall be paid to Buyer. If Buyer subsequently consummates the
purchase of the Property as provided in this Agreement, the
entire Deposit shall be applied to the Purchase Price.
(b) Concurrently with the execution of this Agreement, the sum of
One Hundred and No/100 Dollars ($100.00) of the Deposit shall
be non-refundable, shall be released to Seller and shall be
retained by Seller under any and all circumstances, which
amount has been bargained for and agreed to as consideration
for Seller's execution and delivery of this Agreement and
Buyer's right to perform all inspections as described in
Section 4 of this Agreement. The balance of the Deposit and all
interest accrued thereon shall be fully refundable to Buyer if
Buyer elects to terminate this Agreement in accordance with the
provisions of Section 4.3 of this Agreement, or as otherwise
provided in this Agreement.
(c) If this Agreement is not properly terminated by Buyer in
accordance with the provisions of Section 4.3 hereof when and
as provided therein, then the entire amount of the Deposit and
all accrued interest thereon shall become non-refundable
(subject to and except as otherwise provided in Sections
3.1(a), 4.2, 4.3, 10.1, 10.2 and 11.10 or any other provision
hereof) and shall be retained by Seller in accordance with the
liquidated damages provision as set forth in Section 3.2 below.
If Buyer subsequently consummates the purchase of the Property
as provided in this Agreement, the entire Deposit (including,
without limitation, the
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One Hundred and No/100 Dollars ($100.00) non-refundable portion
thereof) and all accrued interest on the balance of Deposit
retained in Escrow shall be applied to the Purchase Price as a
credit to the Buyer.
3.2 LIQUIDATED DAMAGES. IN THE EVENT THAT THIS TRANSACTION FAILS TO
CLOSE AS PROVIDED HEREIN BY REASON OF BUYER'S DEFAULT UNDER SECTION 8.3
AND SO LONG AS SELLER IS NOT IN DEFAULT HEREUNDER, BUYER AND SELLER
AGREE AND ACKNOWLEDGE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY
DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER WILL SUFFER. THEREFORE,
BUYER AND SELLER HEREBY AGREE THAT A REASONABLE ESTIMATE OF THE DAMAGES
THAT SELLER WOULD SUFFER IN SUCH EVENT IS AND SHALL BE AN AMOUNT EQUAL
TO THE DEPOSIT ALONG WITH ALL ACCRUED INTEREST THEREON. SUCH AMOUNTS
SHALL BE THE FULL, AGREED AND LIQUIDATED DAMAGES FOR BUYER'S BREACH OF
THIS AGREEMENT AND EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SHALL BE THE
SOLE AND EXCLUSIVE REMEDY OF SELLER FOR BUYER'S BREACH OF THIS
AGREEMENT. UPON ANY SUCH FAILURE TO CLOSE AS REQUIRED HEREBY DUE TO A
DEFAULT BY BUYER UNDER SECTION 8.3 OF THIS AGREEMENT AND SO LONG AS
SELLER IS NOT IN DEFAULT HEREUNDER, THIS AGREEMENT SHALL BE TERMINATED
AND NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER, EXCEPT FOR (A) THE RIGHT OF SELLER TO COLLECT SUCH
LIQUIDATED DAMAGES IN THE AMOUNT OF THE DEPOSIT FROM ESCROW HOLDER; (B)
THE RIGHT OF SELLER TO COLLECT FROM BUYER AND, TO THE EXTENT ANY SUCH
FUNDS ARE HELD BY ESCROW HOLDER, FROM ESCROW HOLDER, SUCH AMOUNTS AS
MAY BE NECESSARY TO SATISFY ANY INDEMNIFICATION OBLIGATIONS OF BUYER TO
SELLER AND/OR TO SATISFY ANY MECHANICS' LIEN CLAIMS AGAINST THE
PROPERTY ARISING OUT OF BUYER'S INSPECTIONS OF THE PROPERTY OR ANY
OTHER WORK PERFORMED BY BUYER ON THE PROPERTY; AND (C) SELLER'S
RECOVERY OF ALL REASONABLE LEGAL FEES AND COSTS INCURRED IN COLLECTING
THE AMOUNTS REFERENCED IN THE FOREGOING PROVISIONS. EXCEPT AS EXPRESSLY
PROVIDED ABOVE, IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR ANY
DAMAGES FOR A DEFAULT BY BUYER UNDER THIS AGREEMENT. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT WITH RESPECT TO
ANY DEFAULT BY BUYER HEREUNDER, SELLER SHALL HAVE NO RECOURSE TO THE
PERSONAL ASSETS, PROPERTIES OR FUNDS OF ANY OF BUYER'S OFFICERS,
DIRECTORS, EMPLOYEES, LIMITED PARTNERS, SUBSIDIARIES, AFFILIATES OR
AGENTS, OR
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OTHER REPRESENTATIVES (EXCLUDING THE GENERAL PARTNER OF BUYER).
SELLER'S INITIALS: BUYER'S INITIALS:
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3.3 BALANCE. Buyer shall deposit the balance of the Purchase Price
with the Escrow Holder by wire transfer or other cash equivalent on the
Closing Date, with time being of the essence.
4. DUE DILIGENCE.
4.1 PHYSICAL INSPECTIONS.
(a) Except as provided in subparagraph (b) of this Section 4.1 and
Section 4.2, Buyer shall have the right during the Due
Diligence Period to commence and conduct and shall complete
prior to the expiration of the Due Diligence Period all
investigations (including any Phase I Environmental Site
Assessment), inspections, studies, reports and analyses which
Buyer deems necessary or prudent for its determination of
whether or not to purchase the Property in an "AS IS"
condition. The foregoing includes, without limitation, Buyer's
review of the physical and geological condition of the
Property, the structural condition of the improvements,
permits, zoning, entitlements, land use issues, ingress and
egress, parking, water, sewer, electrical and other utilities.
(b) Prior to the Closing Date, Buyer shall not engage in any
invasive testing or inspection, alteration, improvement, or
modification of the Property and shall not take any other
action which could materially damage the Property without
Seller's prior written consent, which consent may be given or
withheld in Seller's sole and absolute discretion. Buyer shall
provide Seller with at least twenty-four (24) hours prior
written notice of any such entry and/or inspections, which
written notice shall also specify the anticipated nature and
duration thereof. All such written notices of entry and/or
inspection shall be sent by Buyer by separate facsimile
transmittals to each of Diane Deaton, EGL Eagle Global
Logistics, L.P. (facsimile number 281-618-3399) and to Matthew
P. Minnis, Moody Rambin Interests (facsimile number
713-850-7779). Immediately after any such entry or inspections,
Buyer shall promptly restore the Property to its original
condition at Buyer's sole cost and expense.
(c) BUYER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER AND ITS
SUCCESSORS, ASSIGNS, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS,
AGENTS AND AFFILIATES, AND EACH OF THEM, FROM ANY AND ALL
CLAIMS, LIABILITIES, DEMANDS, CAUSES OF ACTION, SUITS, DEBTS,
OBLIGATIONS, DAMAGES, COSTS (INCLUDING BUT NOT LIMITED TO
PENALTIES, FINES, ATTORNEYS' FEES AND COURT COSTS) AND LOSSES
OF WHATEVER KIND
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OR NATURE WHETHER AT LAW OR EQUITY, WHETHER KNOWN OR UNKNOWN,
FORESEEN OR UNFORESEEN SUFFERED BY ANY PERSON OR PROPERTY
ARISING OUT OF, RELATING TO OR CONNECTED WITH THE ACTS,
OMISSIONS OR MISCONDUCT OF BUYER, ITS AGENTS, CONTRACTORS,
SERVANTS, EMPLOYEES OR LICENSEES IN CONNECTION WITH ANY ENTRY
ONTO THE PROPERTY BY SUCH PERSONS, AND/OR ANY ACTIVITIES
RELATED THERETO. BUYER'S INDEMNIFICATION OBLIGATIONS SHALL
SURVIVE CLOSING OR THE TERMINATION OF THIS AGREEMENT.
(d) From and after the execution hereof and through the Closing or
termination of this Agreement, Buyer shall at its sole cost and
expense maintain in full force and effect a policy or policies
of comprehensive general liability insurance, with limits of
not less than One Million and No/100 Dollars ($1,000,000.00)
per occurrence and Two Million and No/100 Dollars
($2,000,000.00) in the aggregate, issued by one or more
carriers licensed to do business in the States of Texas,
Indiana and Connecticut and reasonably acceptable to Seller,
insuring Buyer and naming Seller as an additional insured
against liability for injury to or death of persons and loss of
or damage to property occurring in, on or about the Property
caused by Buyer or Buyer's consultants, representatives or
agents. Such policy(ies) shall also contain an appropriate
cross liability endorsement in favor of Seller, shall specify
that such insurance policies shall not be cancelable on less
than thirty (30) days prior written notice to Seller, and shall
be primary to any liability policy of Seller. Prior to any
entry on the Property and as a condition precedent thereto,
Buyer shall provide Seller with original certificates
evidencing all such insurance as required by this provision.
(e) Within five (5) business days after the Effective Date, Seller
will make available for review, inspection and copying at
Seller's office in Houston, Texas copies of any and all
surveys, title reports, physical engineering and environmental
reports, recent tax and utility bills, certificates of
occupancy, service contracts and related documents, and other
information, if any, concerning the Property (collectively, the
"Documents") which to Seller's knowledge are in Seller's
possession. Buyer acknowledges and agrees that all Documents
which have been, are being or at any time will be provided to
Buyer, if any, were and are intended solely as a courtesy in
facilitating Buyer's independent review of the Property, and
that except as otherwise herein provided the Documents were
provided and are being provided without representation or
warranty of any kind whatsoever regarding the same, including,
without limitation, as to the content, accuracy or completeness
thereof, and Seller hereby expressly disclaims any and all such
representations and warranties. Buyer has relied, is relying
and shall rely only on its independent review and due diligence
in determining whether or not to purchase the Property and
shall not rely on the Documents.
(f) Any third party studies, data, reports, analyses and writings
regarding the Property which have been or are produced,
received or obtained by Buyer in connection with the Property
shall be the sole property of Buyer, provided, however, upon
written request by Seller, Buyer shall promptly provide
duplicates thereof to
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Seller at no cost to Seller, but without representation or
warranty of any kind whatsoever regarding the same (including,
without limitation, as to the content, accuracy or completeness
thereof). The provisions of this section shall expressly
survive the termination of this Agreement.
4.2 TITLE AND SURVEY.
(a) Within fifteen (15) days after the Effective Date hereof,
Seller will cause to be delivered to Buyer a commitment for
title insurance issued by the Title Company in the form of T-1
commitment for title insurance with respect to the Austin
Property and Grapevine Property, and in the form of an ALTA
1970 commitment for title insurance with respect to the South
Bend Property and the East Granby Property together with copies
of all recorded instruments referenced as exceptions therein
(collectively, the "Title Commitment"). Within thirty (30) days
after the Effective Date hereof, Seller shall cause to be
delivered to Buyer a Survey of the Property. Within ten (10)
days after delivery of the later of the Title Commitment and
Survey to Buyer (the "Title Review Period"), Buyer shall notify
Seller in writing of each specific item referenced in the Title
Commitment and Survey which is a Title Defect. All items
referenced or disclosed in the Title Commitment and Survey or
in the underlying documents which are not disapproved in
writing by Buyer prior to the expiration of the Title Review
Period shall be deemed to be Permitted Exceptions.
Notwithstanding the foregoing, it shall be a condition
precedent to Buyer's obligation to close hereunder that title
to the Property shall be free and clear of all monetary liens
against the Property, other than the lien of non-delinquent
real property taxes, assessments and any liens or other matters
arising from Buyer's entry, inspections, investigations,
financing or other activities.
(b) If Buyer timely objects to any matter set forth in the Title
Commitment or Survey as stated in the preceding subparagraph
(a), then Seller may, but without any obligation hereunder,
elect by written notice to Buyer to use reasonable efforts to
cure such disapproved matters prior to expiration of the Due
Diligence Period. If Seller so elects by written notice to
Buyer, Buyer shall be obligated to close the transaction but
the cure of all such matters to Buyer's reasonable satisfaction
shall be a condition to Buyer's obligation to close the Escrow
and if such matters are not so cured, then at or prior to
Closing, Buyer may terminate this Agreement and the Escrow
Holder shall return the Deposit to Buyer and neither party
shall have any further rights, duties, liabilities or
obligations hereunder, except with respect to provisions of
this Agreement which expressly survive the termination of this
Agreement. If Seller does not elect to cure such disapproved
matters, Seller will notify Buyer in writing and Buyer shall
within five (5) business days after receipt of such notice
either (i) waive all such disapprovals and proceed to close
this transaction without offset or deduction of any kind or
(ii) terminate this Agreement and Escrow Agent shall return the
Deposit together with all interest earned thereon to Buyer. If
Buyer fails to make such written election within such five (5)
day period, Buyer shall be deemed irrevocably to have elected
to waive
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all such disapprovals and to proceed to close thetransaction
without offset or deduction of any kind.
4.3 BUYER'S DISAPPROVAL OF DUE DILIGENCE ITEMS; SUBSEQUENT TERMINATION
OF AGREEMENT.
(a) Buyer may in its sole discretion and for any reason or no
reason elect not to proceed with the transaction contemplated
by this Agreement prior to the expiration of the Due Diligence
Period. Such election to terminate shall be effected, if at
all, by Buyer's written notice which must be delivered to
Seller prior to 5:00 p.m. Houston, Texas time on the last day
of the Due Diligence Period. If Buyer properly terminates this
Agreement pursuant to this Section 4.3(a), then this Agreement
shall be terminated, the Escrow Holder shall return the Deposit
to Buyer, and neither party shall have any further liabilities,
rights, duties or obligations hereunder except with respect to
the provisions of this Agreement which expressly survive the
termination of this Agreement. If Buyer fails to timely deliver
to Seller written notice of Buyer's termination of this
Agreement, all conditions of this Section 4.3(a) shall be
deemed to have been waived and Buyer shall proceed to close
this transaction in accordance with the terms of this
Agreement.
(b) Upon Buyer's timely termination of this Agreement pursuant to
Section 4.3(a) above, the Deposit (other than the One Hundred
and No/100 Dollars ($100.00) non-refundable portion thereof)
and all accrued interest on the balance of the Deposit retained
in Escrow shall be returned to Buyer by Escrow Holder. Except
to the extent of the parties' respective indemnification
obligations and representations and warranties contained
herein, which shall survive the Closing or any cancellation or
termination of this Agreement and any other provisions of this
Agreement which expressly survive the cancellation or
termination hereof, neither party shall have any further
obligations or liabilities to the other following any such
termination of this Agreement.
5. WAIVER OF REPRESENTATIONS AND WARRANTIES.
5.1 "AS IS" SALE. Seller makes no representations or warranties of any
kind whatsoever to Buyer, except for such representations and
warranties expressly set forth in this Agreement or in the Deed (the
"Express Representations"). All of the covenants, terms and provisions
hereinafter set forth in Sections 5.1 through 5.4, inclusive, shall
expressly survive the Closing hereof or any earlier termination of this
Agreement and shall not be merged into the Deed or other documents
delivered at Closing. Without limitation of the generality of the
foregoing, Buyer acknowledges and agrees as follows:
(a) The Property is to be conveyed by Seller to Buyer in an "AS IS,
WHERE IS" and "SUBJECT TO ALL FAULTS" condition, with any and all
faults;
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(b) Other than the Express Representations, Seller has not made, does
not hereby make, and shall not make and expressly disclaims, any
and all representations, warranties, promises, covenants,
agreements or guarantees of any kind or nature whatsoever, whether
express or implied, oral or written, past or present, of, as to,
concerning or with respect to any aspect, condition, fact or issue
relating to the Property in any respect whatsoever.
(c) Without limiting the foregoing, other than the Express
Representations Seller has not made, does not make, and shall not
make any representation or warranty regarding the presence or
absence of any hazardous substances (as defined herein) on, under
or about the Property or the compliance or noncompliance of the
Property with the following federal laws or their state
equivalents: the Comprehensive Environmental Response,
Compensation and Liability Act, the Superfund Amendment and
Reauthorization Act, the Resource Conservation Recovery Act, The
Toxic Substance Control Act, the Federal Water Pollution Control
Act, the Federal Environmental Pesticides Act, the Clean Water Act
and the Clean Air Act; any so-called federal, state or local
"Superfund" or "Superlien" statute; or any other statute, law,
ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability (including strict liability) or
standards of conduct concerning any hazardous substances
(collectively, the "Hazardous Substance Laws"). For purposes of
this Agreement, the term "hazardous substances" shall mean and
include any substance, whether solid, liquid or gaseous: (i) which
is listed, defined or regulated as a "hazardous substance,"
"hazardous waste" or "solid waste," or otherwise classified as
hazardous or toxic, in or pursuant to any Hazardous Substance
Laws; (ii) which is or contains asbestos, radon, any
polychlorinated biphenyl, urea, formaldehyde, foam insulation, or
explosive or radioactive material; (iii) which is or contains
petroleum or petroleum products, including any fractions or
distillates thereof; or (iv) which causes or poses a threat to
cause a contamination or nuisance on the Property or on any
adjacent property or a hazard to the environment or to the health
or safety of persons on the Property. As used in this Paragraph,
the word "on" when used with respect to the Property or adjacent
property means "on, in, under, above or about."
5.2 RELIANCE ON OWN INVESTIGATIONS. Buyer hereby acknowledges and
agrees that Buyer has been or will be given full opportunity to inspect
and investigate the Property and all aspects, conditions, facts and
issues relating to the Property in any respect whatsoever, is fully
satisfied with all such matters, and is relying and shall rely solely
on such investigations in determining whether or not to purchase the
Property, other than the Express Representations. Buyer further
acknowledges and agrees that the Documents and/or any other information
concerning the Property which have been furnished by Seller were
obtained from a variety of sources and that Seller did not and is not
required to make any independent investigation or verification of any
such information or Documents with respect to accuracy, completeness or
any other matter, and except for the Express Representations Seller
expressly disclaims any representations and warranties with respect to
such matters.
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5.3 WAIVER OF CONSUMER RIGHTS (AS TO THE AUSTIN PROPERTY AND GRAPEVINE
PROPERTY). BUYER REPRESENTS TO SELLER THAT: (a) BUYER IS NOT IN A
SIGNIFICANTLY DISPARATE BARGAINING POSITION WITH SELLER; AND (b) BUYER
IS REPRESENTED BY LEGAL COUNSEL IN THE TRANSACTION RELATING TO THE SALE
AND PURCHASE OF THE PROPERTY. TO THE FULLEST EXTENT ALLOWED BY LAW,
BUYER HEREBY EXPRESSLY WAIVES ALL RIGHTS AND REMEDIES UNDER THE TEXAS
DECEPTIVE TRADE PRACTICES CONSUMER PROTECTION ACT (TEXAS BUSINESS AND
COMMERCE CODE, SECTION 17.41, ET. SEQ.), A LAW THAT GIVES CONSUMERS
SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN ATTORNEY OF
BUYER'S OWN SELECTION.
Macfarlan Holdings, Ltd., a Texas
limited partnership
By: WJM Properties, L.L.C., its
General Partner
By:
--------------------------------
John J. Jenkins, Manager
5.4 NOTICE TO SELLER AND BUYER.
(a) Brokers advise Buyer to have an abstract covering the Property
examined by an attorney of Buyer's selection, or Buyer should be
furnished with or obtain a Title Policy. If a Title Policy is
furnished, the title commitment should be promptly reviewed by an
attorney of Buyer's choice due to the time limitations on Buyer's
right to object.
(b) Buyer is advised that the presence of wetlands, toxic substances
including lead-based paint or asbestos and wastes or other
environmental hazards, or the presence of a threatened or
endangered species or its habitat may affect Buyer's intended use
of the Property.
(c) If either the Austin Property or Grapevine Property is situated in
a utility or other statutorily created district providing water,
sewer, drainage, or flood control facilities and services, Chapter
50 of the Texas Water Code requires Seller to deliver and Buyer to
sign the statutory notice relating to the tax rate, bonded
indebtedness, or standby fee of the district prior to final
execution of this contract.
6. REPRESENTATIONS AND WARRANTIES OF BUYER AND SELLER.
6.1 BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer represents and
warrants to Seller as follows:
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(a) Organization. Buyer is a limited partnership duly organized,
validly existing and created under the laws of the State of Texas
and has all requisite power and authority to enter into this
Agreement and to perform its obligations hereunder. If Buyer
assigns and transfers its right, title and interest in this
Agreement to another entity pursuant to Section 7.2 hereof, this
representation shall be deemed to be modified to refer to such
different entity.
(b) Authorization of Agreement. The execution, delivery and
performance of this Agreement by Buyer and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary action on behalf of Buyer, and this Agreement
constitutes the legal, valid and binding obligation of Buyer
enforceable against it in accordance with each and every one of
the terms and provisions hereof. The individual(s) signing below
has the full right, power and authority to execute this Agreement
on behalf of Buyer and that Buyer is bound thereby without further
approval, authorization or consent of any kind being required.
6.2 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Buyer as of the Effective Date and as of the Closing Date
as follows:
(a) Organization. Seller is a corporation duly organized, validly
existing and created under the laws of the State of Texas and has
all requisite power and authority to enter into this Agreement and
to perform its obligations hereunder.
(b) Authorization of Agreement. The execution, delivery and
performance of this Agreement by Seller and the consummation by
Seller of the transactions contemplated hereby have been duly
authorized by all necessary action on behalf of Seller, and this
Agreement constitutes the legal, valid and binding obligation of
Seller enforceable against it in accordance with each and every
one of the terms and provisions hereof. The individual(s) signing
below has the full right, power and authority to execute this
Agreement on behalf of Seller and that Seller is bound thereby
without further approval, authorization or consent of any kind
being required.
7. COVENANTS.
7.1 BY SELLER.
(a) Contracts. Seller covenants with Buyer that from the Effective
Date of this Agreement through the Closing or any earlier
termination of this Agreement, Seller shall not enter into any
maintenance, service or management agreements, or leases (other
than the Lease Agreement), which would bind Buyer or the Property
after Closing which cannot be terminated on not more than thirty
(30) days' notice, without the prior written consent of Buyer
which shall not be unreasonably withheld, conditioned or delayed
or amend, modify or terminate any of the service
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contracts to be assigned by Seller to Buyer without the prior
written consent of Buyer, which consent shall not be unreasonably
withheld, conditioned or delayed.
7.2 BY BUYER. Buyer may assign and transfer all of its right, title and
interest to this Agreement to another entity which is controlling,
controlled by or under common control of Buyer, provided that such
entity expressly assumes in writing all obligations and liabilities of
Buyer under this Agreement.
7.3 LEASE TO TENANT. Concurrently with the Closing and consummation of
this transaction, Buyer agrees to leaseback and demise to Tenant, and
Seller will cause the Tenant to lease from Buyer, the Property upon the
terms and conditions set forth in the Lease Agreement attached hereto
as Exhibit "H" and incorporated by reference herein for all purposes.
The initial base rent shall be payable by Tenant to the Buyer, as
landlord, under each applicable Lease Agreement for each parcel of the
Property in accordance with the schedule set forth in Exhibit "K"
attached hereto and incorporated by reference herein for all purposes.
8. CLOSING
8.1 DATE AND PLACE. The Closing shall occur on the Closing Date (or if
the scheduled Closing Date does not fall on a business day, the Closing
Date shall be the first business day thereafter) at 11:00 a.m. Houston,
Texas time at such place as may be reasonably designated by Seller and
Buyer.
8.2 SELLER'S DELIVERIES. Seller shall deliver or cause to be delivered
to Buyer through the Title Company on or prior to the Closing Date the
following ("Seller's Closing Documents"):
(a) The Deeds as to the Austin Property and Grapevine Property in the
form of Exhibit "B" attached hereto;
(b) The Deed as to the South Bend Property in the form of Exhibit "C"
attached hereto;
(c) The Deed as to the East Granby Property in the form of Exhibit "D"
attached hereto;
(d) Seller's affidavit of non-foreign status as contemplated by 26
USCSss.1445, as amended (the "FIRPTA Affidavit");
(e) Seller's original executed counterparts of an agreement in the
form attached as Exhibit "E" hereto (herein, the "Bill of Sale,
Assignment and Assumption Agreement");
(f) Four (4) executed counterpart originals of the Lease Agreement in
the form attached hereto as Exhibit "H";
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(g) Four (4) executed counterpart originals of the Memorandum of Lease
for each Property in the form of Exhibit "I" attached hereto and
made a part hereof;
(h) A current Commitment for Title Insurance evidencing that the Title
Company is irrevocably committed to issue an Owner's Title Policy,
or a Pro Forma Owner's Policy of Title Insurance, as Buyer may
elect, subject only to the Permitted Title Exceptions;
(i) A Seller's Affidavit Regarding Debts and Liens or equivalent
document which is in form and content reasonably acceptable to
Seller and the Title Company;
(j) Counterparts to a closing statement;
(k) Such other documents or instruments which are in form and content
reasonably acceptable to Seller and required to be delivered to
Buyer pursuant to this Agreement.
(l) Such number of original counterparts of the following legal
opinions as may be requested by Buyer:
(i) An opinion of Seller's counsel, addressed to Buyer (and/or
its permitted assignees), to the effect that this Agreement
has been duly authorized, executed and delivered by Seller.
(ii) Opinions of Seller's counsel, addressed to Buyer (and/or its
permitted assignees) and to Buyer's lender(s) providing
financing for the purchase of the Property, to the effect
that Seller's guaranty of each Lease (i) has been duly
authorized, executed and delivered by Seller, and (ii) the
execution, delivery and performance of the guaranty of each
Lease does not violate the articles of incorporation or
bylaws of Seller or any contracts or agreements of Seller
known to such counsel.
(iii) An opinion of Seller's counsel, addressed to Buyer (and/or
its permitted assignees) and Buyer's lender(s) providing
financing for the purchase of the Property, to the effect
that each Lease has been duly authorized, executed and
delivered by the Tenant, that the execution, delivery and
performance of each Lease does not violate the
organizational documents of Tenant or any contracts or
agreements of Tenant known to such counsel.
(iv) Opinions of Seller's counsel, addressed to Buyer (and/or its
permitted assignees) and to Buyer's lender(s) providing
financing for the purchase of the Property, to the effect
that Seller's guaranty of each Lease is valid, binding and
enforceable in accordance with its terms.
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(m) A certificate of the Secretary or Assistant Secretary of Seller
and Tenant evidencing that those officers acting for Seller and
Tenant have full authority to consummate this transaction and
execute and deliver the Leases and Guaranties, in accordance with
the terms of this Agreement as modified through the Closing, and
referencing appropriate resolutions of the Seller and Tenant, if
applicable.
(n) Such other instruments and affidavits if required by the Title
Company and in form and content reasonably acceptable to Seller.
(o) Certificates of Existence, Good Standing, and Authority or
Qualification to do Business, as applicable, (a) with respect to
Seller from the Secretary of State of Texas, and (b) with respect
to Tenant from the Secretaries of State of the Texas, Indiana and
Connecticut.
(p) Certificates of insurance with respect to the Parcels showing the
insurance coverages required under the Leases.
(q) Four (4) original counterparts of the Guaranty of each Lease with
Tenant, executed by Seller in the form attached hereto as Exhibit
J (each, a "Guaranty", and collectively, the "Guaranties").
8.3 BUYER'S DELIVERIES. Buyer shall deliver or cause to be delivered to
Seller through the Title Company on or prior to the Closing Date the
following:
(a) The balance of the Purchase Price in the form of bank wire
transfer or other cash equivalent;
(b) One (1) executed counterpart of the Deed as the Austin Property
and Grapevine Property in the form of Exhibit "B" attached hereto;
(c) One (1) executed counterpart of the Deed as to the South Bend
Property in the form of Exhibit "C" attached hereto;
(d) One (1) executed counterpart of the Deed as to the Granby Property
in the form of Exhibit "D" attached hereto;
(e) Four (4) executed counterpart originals of the Bill of Sale,
Assignment and Assumption Agreement;
(f) Four (4) executed counterparts of the Memorandum of Lease for each
Property in the form of Exhibit "I" attached hereto;
(g) Four (4) executed counterpart originals of the Lease Agreement in
the form of Exhibit "H" attached hereto;
(h) Counterparts to a closing statement; and
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(i) Such other documents or instruments which are in form and content
reasonably acceptable to Buyer and required to be delivered to
Seller pursuant to this Agreement.
8.4 PROCEDURE. On the Closing Date, Seller and Buyer shall cause the
Title Company to perform the following:
(a) Cause each Deed (marked for return to Buyer) to be properly
recorded in the real estate records for Travis County, Texas,
Dallas County, Texas, St. Joseph County, Indiana and East Granby,
Connecticut, which recordation shall also constitute delivery of
the Deed to Buyer;
(b) Cause each Memorandum of Lease to be properly recorded in the real
estate records for Travis County and Dallas County, Texas, St.
Joseph County, Indiana and East Granby, Connecticut.
(c) Confirm in writing the Title Company's irrevocable commitment to
issue the Title Policy or a Pro Forma Owner's Title Policy to
Buyer with respect to each Property promptly following the
Closing;
(d) Disburse the Purchase Price to Seller less the applicable Closing
Costs to be paid by Seller;
(e) Charge Seller and Buyer for those costs and expenses to be paid by
Seller and Buyer pursuant to this Agreement and disburse any net
funds remaining after the preceding disbursements to the
appropriate party;
(f) Prepare and deliver to Buyer and Seller one (1) signed copy of
Escrow Holder's closing statement showing all receipts and
disbursements of the Escrow;
(g) Deliver to each party two (2) fully signed counterpart originals
of the Bill of Sale, Assignment and Assumption;
(h) Deliver to each party two (2) fully signed counterpart originals
of the Lease Agreement;
(i) Deliver to each party two (2) fully signed counterpart originals
of the Guaranties;
(j) Deliver the FIRPTA Affidavit to Buyer; and
(k) Deliver original counterparts of all of the other closing
documents to Buyer and/or Seller, as appropriate.
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8.5 POSSESSION. Possession of the Property shall be delivered to Buyer
upon closing and funding of this transaction, subject to the rights of
Tenant, as tenant in possession pursuant to the Lease Agreement.
9. CLOSING COSTS.
9.1 SELLER'S COSTS. At Closing, Escrow Holder shall charge Seller for
the following Closing Costs:
(a) All amounts which are or would be charged by Title Company for
each Owner's Policy of Title Insurance issued with respect to the
Austin Property, the Grapevine Property, the South Bend Property
and the East Granby Property;
(b) All costs of the Survey to the extent the same have not been paid
prior to Closing;
(c) One-half (1/2) of all state, county and local transfer taxes or
similar charges applicable to this transaction; and
(d) One-half (1/2) of the escrow fee charged by Escrow Holder.
9.2 BUYER'S COSTS. At Closing, Escrow Holder shall charge Buyer for the
following Closing Costs:
(a) The recording charges in connection with recordation of the Deed;
(b) One-half (1/2) of the escrow fee charged by Escrow Holder;
(c) One-half (1/2) of all state, county and local transfer taxes or
similar charges applicable to this transaction;
(d) All costs of any endorsements to the Title Policy requested by
Buyer in its discretion, in excess of the amounts charged to
Seller pursuant to Section 9.1(a) above; and
(e) All costs associated with Buyer's financing, if any.
9.3 REAL PROPERTY TAXES. Real property taxes, assessments, utility
charges, amounts due or paid pursuant to the Service Contracts and
other expenses related to the Property shall not be prorated as of the
Closing Date, but shall be borne by Seller and shall be specifically
assumed by the Tenant in accordance with the Lease at Closing.
10. RISK OF LOSS.
10.1 CONDEMNATION. Prior to Closing, risk of loss of the Property by
condemnation shall be borne by Seller. Seller agrees to provide Buyer
with prompt written notice of any actual or threatened condemnation of
which Seller has actual knowledge. If there is
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any taking or condemnation of the entire Property or any material
portion thereof prior to the Closing, (for purposes of the
foregoing, "material" shall mean a taking or condemnation of any
parcel of the Property as shall substantially and materially
impair the use of such parcel or which would allow either party to
terminate the Lease with respect to any parcel of the Property if
such condemnation occurred during the Lease term), then (i) Buyer
shall have the right to terminate the Agreement in its entirety by
giving notice to Seller within ten (10) days after Buyer's receipt
of notice of such condemnation; or (ii) either party may at its
option terminate this Agreement with respect to such affected
parcel by written notice to the other delivered no later than ten
(10) days following such party's notice to the other of such
taking. If Buyer elects to terminate this Agreement in whole
pursuant to this Section 10.1, the Deposit shall be returned to
Buyer with all accrued interest thereon. If either party elects to
terminate this Agreement only with respect to the affected parcel,
then the Closing shall occur as set forth herein with respect to
all other parcels and the Purchase Price shall be reduced by the
amount allocated to the affected parcel. If neither party
terminates this Agreement as provided herein, the parties shall be
deemed to have elected to proceed with the transactions described
herein, the Closing shall occur as set forth herein, and subject
to Tenant's rights under the Lease Agreement, Buyer shall be
entitled to all condemnation awards payable as a result of such
taking and the right to collect any such award shall be assigned
to Buyer at Closing. The obligations set forth in this section
shall expressly survive the Closing of this transaction and shall
not be merged into the closing documents.
10.2 DAMAGE OR DESTRUCTION. Prior to Closing, risk of loss of the
Property by damage or destruction shall be borne by Seller. Seller
agrees to provide Buyer with prompt written notice of any damage to or
destruction of the Property of which Seller has knowledge. In such
event the parties' rights and obligations shall be as follows:
(a) If the Repair Cost is ten percent (10%) or less of the Purchase
Price allocated for the affected parcel of the Property as set
forth in Section 1.22 hereof, then Buyer shall accept the Property
at Closing subject to such damage or destruction and Buyer shall
be entitled to a credit against the Purchase Price in the amount
of the deductible plus all insurance proceeds actually received by
Seller prior to the Closing as a result of the loss, and an
assignment of Seller's rights to the balance of the insurance
proceeds. As used herein, the term "Repair Cost" means an estimate
of the actual cost to repair the damage attributable to such
damage or destruction and obtained by Seller within thirty (30)
days following the event of damage or destruction from a
reputable, licensed independent contractor selected by Seller
licensed to do business in the State of Texas, Indiana or
Connecticut, as applicable.
(b) If the Repair Cost exceeds ten percent (10%) of the Purchase Price
allocated for the affected parcel of the Property as set forth in
Section 1.21 hereof, then (i) Buyer shall have the right to
terminate this Agreement exercisable only by giving written notice
of such election to Seller within thirty (30) days after the
determination of the Repair Cost; (ii) Buyer or Seller shall have
the right to terminate this Agreement with respect to the affected
parcel only, in which case
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the Purchase Price shall be reduced by the amount allocated to
such parcel of the Property; or (iii) Buyer may elect to accept
the Property at Closing subject to such damage or destruction and
Buyer shall be entitled to a credit against the Purchase Price in
the amount of the deductible plus all insurance proceeds actually
received by Seller prior to the Closing as a result of the loss,
and an assignment of Seller's rights to the balance of the
proceeds. If Buyer does not elect to terminate the entire
Agreement in accordance with (i) above, and either party elects to
terminate this Agreement with respect to the affected parcel, then
the Closing shall occur as set forth herein with respect to all
other parcels and the Purchase Price shall be reduced by the
amount allocated to the affected parcel. If Buyer duly exercises
such termination right as to the whole Agreement, the Deposit
shall be returned to Buyer with all accrued interest thereon.
(c) If the Closing Date would otherwise occur during a time period
described in this Section 10.2, then the Closing Date shall be
extended to a date which is ten (10) days following the expiration
of such time period, but in no event shall any such extension
pursuant to this provision cause the Closing Date to be later than
November 10, 2002, and if such applicable time period has not
expired by such date, then either party may terminate this
Agreement.
11. MISCELLANEOUS PROVISIONS.
11.1 ENTIRE AGREEMENT; AMENDMENTS IN WRITING; WAIVER. This Agreement
constitutes the entire understanding and agreement of the parties with
respect to the subject matter hereof and supersedes and replaces all
prior understandings, communications and agreements of any kind,
whether verbal or in writing. There are no other promises, covenants,
understandings, agreements, representations or warranties with respect
to the subject matter of this Agreement except as expressly set forth
herein. This Agreement and each of its provisions may not be modified,
amended, terminated or waived except pursuant to a written instrument
duly executed and acknowledged by the parties hereto, or their
successors in interest. No delay, omission or election of remedies by
any party hereto in exercising any right or power hereunder shall
impair any such right or remedy or constitute a waiver thereof, unless
expressly stated in a written instrument duly executed by such
benefited party. A waiver of any covenant, condition or term set forth
herein shall not be construed as a waiver of any succeeding breach of
the same or other covenant, condition or term.
11.2 NO ASSIGNMENT; BINDING EFFECT; NO THIRD PARTY BENEFICIARIES. Buyer
shall not transfer or delegate any of its right, title or interest
under this Agreement or otherwise with respect to the Property except
as expressly permitted in Section 7.2 of this Agreement. Seller shall
have the right, without obtaining any consent of Buyer, to assign and
transfer all of Seller's right, title and interest in this Agreement
and the Deposit to any successor in interest by merger or acquisition
or to any wholly owned subsidiary or affiliate which is owned or
controlled by Seller, without releasing Seller from liability under
this Agreement. Subject to the foregoing, this Agreement shall be
binding upon and inure to the benefit of the respective parties hereto
and their heirs, estates, personal
-21-
representatives, successors and assigns. This Agreement is made
and entered into for the sole benefit of the parties hereto and
such parties do not intend to create any rights or benefits for
any other person or entity and expressly disclaim the same.
11.3 INTERPRETATION; CONSTRUCTION; PARTIAL INVALIDITY. This Agreement
has been negotiated at arm's length and between persons sophisticated
and knowledgeable in business and real estate matters and with the
advice of legal counsel. Any rule of law or legal decision which would
require interpretation of this Agreement against the party which
drafted it is not applicable and is expressly waived. The provisions of
this Agreement shall be interpreted in a reasonable manner to effect
the purposes of the parties and this Agreement. The section headings,
captions and arrangement of this Agreement are solely for the
convenience of the parties and shall not in any way affect, limit,
amplify, or modify the terms or provisions of this Agreement. The
singular herein shall include the plural and vice versa, and gender
references herein shall include all genders. If any provision of this
Agreement is unenforceable for any reason, such unenforceability shall
not invalidate this Agreement but the balance of this Agreement shall
remain in full force and effect to the fullest extent permitted.
11.4 COUNTERPART EXECUTION. This Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an
original and all such counterparts together shall constitute one and
the same instrument. The parties authorize Escrow Holder to remove the
signature pages of one or more of the counterpart copies and attach the
same to another original of this Agreement.
11.5 TIME OF ESSENCE. Time is of the essence as to each and every
obligation contained in this Agreement to be performed by either party,
including, without limitation, the Closing Date. If the date for the
performance of any obligations arising hereunder, or the date upon
which any notice shall be given, is a Saturday, Sunday or any legal
holiday under the laws of the State of Texas, then such date shall be
extended to the next business day immediately succeeding such Saturday,
Sunday or legal holiday.
11.6 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND ENFORCED UNDER THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT
THAT THE FORM OF THE DEED AND ANY OTHER CONVEYANCE DOCUMENTS DELIVERED
AT CLOSING SHALL BE GOVERNED BY THE STATE LAW IN WHICH THE PROPERTY IS
LOCATED. THE PARTIES HEREBY CONSENT TO THE SUBJECT MATTER JURISDICTION,
PERSONAL JURISDICTION AND VENUE OF THE UNITED STATES FEDERAL DISTRICT
COURTS AND STATE COURTS OF THE STATE OF TEXAS, EACH AS LOCATED IN
HARRIS COUNTY, TEXAS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
PARTY HEREBY WAIVES THE RIGHT TO JURY TRIAL WITH RESPECT TO ALL MATTERS
RELATING TO THIS AGREEMENT OR THE PROPERTY.
11.7 ATTORNEYS' FEES. In the event any party hereto shall engage legal
counsel or bring any action against the other with respect to the
breach, interpretation or enforcement of this Agreement, the losing
party in such proceeding or other matter shall pay the prevailing party
for all reasonable costs incurred therein, including, without
-22-
limitation, reasonable attorneys' fees, costs of suit, appeal and
collection, in such amounts as may be determined by the trier of fact
having jurisdiction thereof.
11.8 BROKERS' COMMISSIONS. Seller's broker for all purposes in this
transaction is Matthew P. Minnis of Moody Rambin Interests telephone
713-773-5581, facsimile 713-850-7779 ("Seller's Broker"). Seller shall
pay any fees and commissions owing to Seller's Broker pursuant to the
terms of a separate written agreement between Seller and Seller's
Broker. Seller agrees to indemnify, defend and hold Buyer harmless from
any loss, liability, damage, cost or expense (including, without
limitation, reasonable attorneys' fees) paid or incurred by Buyer by
reason of any claim to any broker's, finder's or other fee in
connection with this transaction by Seller's Broker. Buyer shall have
no obligation of any kind to pay a commission, fee or other amount to
Seller's Broker in connection with this transaction. Each party
represents and warrants to the other party that no real estate agents,
brokers, or finders other than Seller's Broker (the payment of whom is
Seller's sole responsibility) has participated or been involved in this
Agreement or this transaction. In the event any claim is made by any
person or entity other than Seller's Broker for any real estate
commissions, fees, or other compensation in connection with this
Agreement or this transaction and based upon any agreements,
understandings, dealings or communications with a particular party,
such party shall indemnify and hold all other parties harmless from the
same and from any loss, cost, damage, or expense, including, without
limitation, attorneys' fees and costs of suit, appeal and collection,
which such other parties may realize, suffer or incur therefrom. The
obligations set forth in this section shall expressly survive the
Closing of this transaction and shall not be merged into the closing
documents.
11.9 NO FIDUCIARY RELATIONSHIP. Neither party is the agent or
representative of the other party, and the parties shall not indicate
otherwise to any other person. Nothing in this Agreement, nor the acts
of the parties, shall be construed to create a partnership, joint
venture or any other form of relationship between Seller and Buyer
other than that of seller and buyer.
11.10 SELLER'S DEFAULT. If the purchase and sale of the Property is not
consummated as a result of Seller's default under this Agreement and
Buyer is not in default hereunder, Buyer as its sole and exclusive
remedy hereunder shall have the right, at its option, to either (a)
terminate this Agreement and receive a return of the Deposit, plus
accrued interest thereon, and Buyer will be reimbursed by Seller for
Buyer's out of pocket costs and expenses in an amount not to exceed Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00) incurred by
Buyer in connection with this Agreement and the transactions
contemplated hereby and Buyer's investigation of the Property and Buyer
will provide documentation evidencing such costs and expenses in form
and content reasonably acceptable to Seller, or (b) pursue specific
performance of this Contract against Seller. Notwithstanding anything
to the contrary contained in this Agreement with respect to any default
by Seller hereunder, Buyer shall have no recourse to the personal
assets, properties or funds of any of Seller's officers, directors,
shareholders, employees, subsidiaries, affiliates, agents or other
representatives of Seller.
-23-
11.11 NOTICES. All notices, demands or other communications between the
parties hereto shall be in writing and shall be deemed delivered when
personally delivered to a party; or, if sent by reputable overnight
courier, the first business day after deposit with such courier; or, if
mailed, three (3) business days after deposit in the United States
mail, postage prepaid, certified or registered mail, return receipt
requested; each addressed to the parties as follows or by facsimile
transmission with an original sent by a reputable overnight courier and
shall be effective on the date sent and upon confirmation of receipt,
as follows:
If to Buyer: Macfarlan Holdings, Ltd.
c/o WJM Properties, L.L.C.
10100 North Central Expressway, Suite 200
Dallas, Texas 75251
Attn: John J. Jenkins, Manager
Telephone:
--------------------------
Facsimile: 214-932-2199
With a copy to: Liechty & McGinnis, P.C.
7502 Greenville Avenue, Suite 750
Dallas, Texas 75231
Attn: Lorne O. Liechty, Esq.
Telephone: 214-265-0008
Facsimile: 214-265-0615
If to Seller: EGL, Inc.
15350 Vickery Drive
Houston, Texas 77032
Attn: Jon R. Kennedy, Senior Vice President
Telephone:
------------------
Facsimile: 281-618-3399
with a copy to: Seller's Broker (see Section 11.8 above) and
Baker & Hostetler, LLP
1000 Louisiana, Suite 2000
Houston, Texas 77002
Attn: William C. Stroh, Esq.
Telephone: 713-646-1369
Facsimile: 713-276-1626
A party may change its address for notice purposes by notice given in
the manner set forth above.
11.12 FURTHER ASSURANCES. Upon the reasonable request from time to time
of any party to this Agreement, all other parties agree to execute,
have notarized and deliver any further documents and instruments and to
take such further actions as may be reasonably
-24-
necessary or appropriate to carry out the purpose and intent of this
Agreement. The provisions of this Section 11.12 shall survive the
Closing and shall not be merged into the Deed.
11.13 NO DISCLOSURE. Seller and Buyer, on behalf of each entity and
their respective employees, officers, consultants, attorneys, agents
and representatives agree not to record, release, announce, disclose or
otherwise publicize any information relating to any matter set forth in
this Agreement prior to Closing, including, but not limited to, the
terms hereof and the identity of the Buyer, to any person or entity
other than legal counsel, consultants, lenders, and other professionals
retained by Buyer or Seller in connection with this Agreement, who need
to know such information in connection with such employment and who
have agreed to preserve the confidentiality of such information.
11.14 ENVIRONMENTAL SITE ASSESSMENT. Seller has obtained the following:
(i) as to the Austin Property an Environmental Site Assessment dated
September 30, 1997, prepared by HBC Engineering, Inc. being HBC Report
No. 61-2836.97; and (ii) as the Grapevine Property, a Phase I
Environmental Site Assessment dated July 7, 1998, prepared by ATC
Associates, Inc., being ATC Project No. 61359.1620; (iii) as to the
South Bend Property, a Phase I Environmental Site Assessment dated July
22, 1997, prepared by Abonmarche Consultants, Inc. being Report No.
97-631-190; and (iv) as to the East Granby Property, a Phase I
Environmental Site Assessment dated April 1998, prepared by
Environmental Risk Limited, being Report No. 06566-58, (collectively
the "Assessment"). Seller has heretofore furnished to Buyer a copy of
the Assessment. Buyer understands and agrees that Seller shall not at
any time be deemed to make or have made any representation or warranty
with respect to the accuracy or completeness of the Assessment or any
statements, testing data, reports, or other matters omitted from, or
contained or referred to in, the Assessment. Any reliance by Buyer upon
the Assessment or any part thereof in connection with any decision by
Buyer to proceed with the purchase of the Property shall be at the sole
risk of Buyer. Buyer shall not have any right, and hereby waives and
disclaims any such right it may otherwise have, to assert any action or
claim against Seller by reason of anything contained in or omitted from
the Assessment.
11.15 MATERIAL ADVERSE CHANGE IN SELLER'S FINANCIAL CONDITION. In the
event that a Material Adverse Change (as hereinafter defined) in
Seller's financial condition shall occur between the Effective Date of
this Agreement and the Closing, Seller will promptly notify the Buyer
prior to Closing and Buyer may terminate this Agreement by giving a
written notice to Seller on or prior to Closing and Escrow Holder shall
promptly return the Deposit and all accrued interest thereon to Buyer
and neither party shall have any further rights, duties, obligations or
liabilities hereunder, except with respect to those provisions which
expressly survive the termination of this Agreement. A "Material
Adverse Change" in Seller's financial condition shall be deemed to
occur if there is a decline by ten percent (10%) or more of the
stockholder's equity of the Seller (excluding the effect of any share
repurchase by Seller up to $15 Million). As of June 30, 2002, the
Seller's stockholder's equity is $369,450,000 and a ten percent (10%)
decline would be $36,945,000.
-25-
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
-26-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth below their signatures.
"SELLER" "BUYER"
EGL, INC., a Texas corporation MACFARLAN HOLDINGS, LTD., a
Texas limited partnership
By: By: WJM Properties, L.L.C., its
--------------------------------- General Partner
Name:
---------------------------------
Title:
---------------------------------
By:
--------------------------
Date: September ___, 2002 John L. Jenkins, Manager
Date: September ___, 2002
-27-
ACKNOWLEDGMENT AND CONSENT BY TITLE COMPANY
Charter Title Company hereby acknowledges receipt of the Deposit (as
defined in Section 3.1(a) above), and agrees to (a) hold and deliver the Deposit
to Purchaser or Seller in accordance with the terms and provisions of this
Agreement, (b) be and perform all acts of the Escrow Holder under such Agreement
for its normal and customary fees, and (c) be bound by such Agreement in the
performance of its duties as Escrow Holder.
"ESCROW HOLDER"
CHARTER TITLE COMPANY
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Date of Execution:
, 2002
- -------------------------
-28-
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
EXHIBIT "A-1"
AUSTIN PROPERTY
Tract 1:
Being Lot 6, Block "C" of Metro Center Section 5, a subdivision in Travis County
Texas according to the map or plat thereof recorded in Book 102, Page(s)
177-178, Plat Records Travis County, Texas, said tract being more particularly
described by metes and bounds on Exhibit "A-1" attached hereto and made a part
hereof.
Tract 2:
Easement estate for no-build area created by instrument dated March 1, 1999 and
recorded in Volume 13379 Page 14 of the Real Property Records of Travis County,
Texas, over and across al of that certain tract or parcel of land containing
0.482 of an acre, more or less, out of Lot(s) 4 and 5, Block "C" Metro Center
Section 5, a subdivision in Travis County, Texas, according to the map or plat
thereof, recorded in Volume 102 Page(s) 177-178 of the Plat Records of Travis
County, Texas said tract being more particularly described by metes and bounds
on Exhibit "A-1" attached hereto and made a part hereof.
Tract 3:
Easement estate for parking created by instrument dated March 1, 1999 and
recorded in Volume 13379, Page 14 of the Real Property Records of Travis County,
Texas, over and across all of that certain tract or parcel of land containing
0.101 of an acre, more or less, out of Lot(s) 4 and 5, Block "C," Metro Center
Section 5, a subdivision in Travis County, Texas, according to the map or plat
thereof, recorded in Volume 102, Page(s) 177-178 of the Plat Records of Travis
County, Texas, said tract being more particularly described by metes and bounds
on Exhibit "A-1" attached hereto and made a part hereof.
EXHIBIT "A-2"
GRAPEVINE PROPERTY
Being all of Lot 2, Block 1, WESTPORT BUSINESS PARK, an Addition to the City of
Grapevine, according to the Map thereof recorded in Cabinet A, Slide 4716, Plat
Records , Tarrant County, Texas.
EXHIBIT "A-3"
SOUTH BEND PROPERTY
Situated in St. Joseph County, State of Indiana:
Lot Numbered Eighteen A (18 A) as shown on the recorded Plat of U.S. 31
Industrial Park - Section Three (3) recorded March 18, 1999, in the Office of
the Recorder of St. Joseph County, Indiana, as Instrument No. 9912358.
EXHIBIT "A-4"
EAST GRANBY PROPERTY
A certain piece or parcel of land situated in East Granby, Connecticut, being
located on the Easterly side of Bradley Park Road, and being shown as Parcel 6C
on a certain map entitled: "Resubdivision of Parcel 6 Property of Roncari
Industries, Inc., Bradley Park Road and Nicholson Road East Granby, Connecticut
Close, Jensen & Miller Consulting Engineers, Land Planners & Surveyors Date May
1982 Scale 1" = 40' Sheet 1 of 1" 9-3-82 Added Easements and Names 10-11-82
Revised Easement," which map is on file in the Town Clerk's Office of East
Granby, and being more particularly bounded and described as follows:
Northerly, by Parcel 6A and 6B, on said map, partly by each, in all,
613.00 feet;
Easterly, by land now or formerly of the State of Connecticut, 248.83
feet;
Southerly, by land now or formerly of Roncari Industries, Inc. 606.21
feet;
Westerly, by Bradley Park Road, 267.11 feet.
EXHIBIT "B"
FORM OF SPECIAL WARRANTY DEED
(AUSTIN PROPERTY AND GRAPEVINE PROPERTY)
SPECIAL WARRANTY DEED
(AUSTIN PROPERTY AND GRAPEVINE PROPERTY)
STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ___________ ss.
THAT ______________________________________________, ("Grantor"), for
and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other
good and valuable consideration to it paid by
__________________________________, a _____________________ ("Grantee") unto
Grantor; the receipt and sufficiency of which are hereby acknowledged and
confessed by Grantor, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these
presents does hereby GRANT, BARGAIN, SELL and CONVEY unto Grantee, all that
certain land situated in the City of _________, County of _________, State of
Texas, and being more particularly described on Exhibit "A" attached hereto and
made a part hereof for all purposes, together with, all and singular any and all
rights and appurtenances of Grantor pertaining thereto, including all buildings,
improvements, fixtures, and appurtenances thereto and any and all right, title
and interest of Grantor in and to adjacent streets, alleys or rights-of-way
(said land, rights and appurtenances being hereinafter referred to collectively
as the "Property").
This conveyance is made and accepted subject, subordinate and inferior
to the easements, covenants and other matters and exceptions set forth on
Exhibit "B" attached hereto and made a part hereof for all purposes (the
"Permitted Exceptions"), but only to the extent they affect or relate to the
Property, and without limitation or expansion of the scope of the special
warranty herein contained.
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions,
unto Grantee, its successors and assigns, forever, and Grantor does hereby bind
itself, its successors and assigns, to WARRANT and FOREVER DEFEND all and
singular the Property, subject to the Permitted Exceptions, unto Grantee, its
successors and assigns, against every person whomsoever lawfully claiming or to
claim the same or any part thereof, by, through or under Grantor, but not
otherwise.
GRANTEE ACKNOWLEDGES AND AGREES, BY ITS ACCEPTANCE HEREOF, THAT THE
PROPERTY IS CONVEYED "AS IS, WHERE IS" AND IN ITS PRESENT CONDITION WITH ALL
FAULTS, AND EXCEPT FOR THE SPECIAL WARRANTY OF TITLE CONTAINED HEREIN, GRANTOR
HAS NOT MADE AND DOES NOT HEREBY MAKE ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS OR GUARANTEES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER
STATUTORY, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY OR CONDITION OF THE
PROPERTY, THE INCOME TO BE DERIVED THEREFROM, THE SUITABILITY OF THE PROPERTY
FOR ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY CONDUCT THEREON,
COMPLIANCE BY THE PROPERTY WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF
ANY APPLICABLE
GOVERNMENTAL AUTHORITY, INCLUDING, BUT NOT LIMITED TO, THE AMERICANS WITH
DISABILITIES ACT OF 1990 AND THE REGULATIONS PROMULGATED THEREUNDER,
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, OR OTHERWISE WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY, THAT
GRANTOR HAS NOT MADE AND DOES MAKE ANY REPRESENTATIONS REGARDING THE PRESENCE OR
ABSENCE OF ANY HAZARDOUS SUBSTANCES (AS HEREINAFTER DEFINED) ON, UNDER OR ABOUT
THE PROPERTY OR THE COMPLIANCE OR NONCOMPLIANCE OF THE PROPERTY WITH THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, THE
SUPERFUND AMENDMENT AND REAUTHORIZATION ACT, THE RESOURCE CONSERVATION RECOVERY
ACT, THE FEDERAL WATER POLLUTION CONTROL ACT, THE TOXIC SUBSTANCES CONTROL ACT,
THE FEDERAL ENVIRONMENTAL PESTICIDES ACT, THE CLEAN WATER ACT, THE CLEAN AIR
ACT, THE TEXAS NATURAL RESOURCES CODE, THE TEXAS WATER CODE, THE TEXAS SOLID
WASTE DISPOSAL ACT, THE TEXAS HAZARDOUS SUBSTANCES SPILL PREVENTION AND CONTROL
ACT, ANY SO-CALLED FEDERAL, STATE OR LOCAL "SUPERFUND" OR "SUPERLIEN" STATUTE,
OR ANY OTHER STATUE, LAW, ORDINANCE, CODE, RULE, REGULATION, ORDER OR DECREE
REGULATING, RELATING TO OR IMPOSING LIABILITY (INCLUDING STRICT LIABILITY) OR
STANDARDS OF CONDUCT CONCERNING ANY HAZARDOUS SUBSTANCES (COLLECTIVELY, THE
"HAZARDOUS SUBSTANCE LAWS"). FOR PURPOSES OF THIS DEED, THE TERM "HAZARDOUS
SUBSTANCES" SHALL MEAN AND INCLUDE ANY SUBSTANCE, WHETHER SOLID, LIQUID OR
GASEOUS: (I) WHICH IS LISTED, DEFINED OR REGULATED AS A "HAZARDOUS SUBSTANCE,"
"HAZARDOUS WASTE" OR "SOLID WASTE," OR OTHERWISE CLASSIFIED AS HAZARDOUS OR
TOXIC, IN OR PURSUANT TO ANY HAZARDOUS SUBSTANCE LAWS; (II) WHICH IS OR CONTAINS
ASBESTOS, RADON, ANY POLYCHLORINATED BIPHENYL, UREA FORMALDEHYDE FOAM
INSULATION, OR EXPLOSIVE OR RADIOACTIVE MATERIAL; (III) WHICH IS OR CONTAINS
PETROLEUM OR PETROLEUM PRODUCTS, INCLUDING ANY FRACTIONS OR DISTILLATES THEREOF;
OR (IV) WHICH CAUSES OR POSES A THREAT TO CAUSE A CONTAMINATION OR NUISANCE ON
THE PROPERTY OR ON ANY ADJACENT PROPERTY OR A HAZARD TO THE ENVIRONMENT OR TO
THE HEALTH OR SAFETY OR PERSONS ON THE PROPERTY. AS USED IN THIS PARAGRAPH, THE
WORD "ON" WHEN USED WITH RESPECT TO THE PROPERTY OR ADJACENT PROPERTY MEANS "ON,
IN, UNDER, ABOVE OR ABOUT."
The mailing address of Grantee is set forth below:
IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be
executed on this ______ day of ___________________, 2002.
-2-
GRANTOR:
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
ACCEPTED AND AGREED TO BY GRANTEE:
___________________________, a
____________________
By:____________________________
Its:___________________________
STATE OF TEXAS ss.
ss.
COUNTY OF ss.
-----------------
This instrument was acknowledged before me on this ____ day of
_________________, 2002, by _____________________, _____________________ of
_________________, a ______________, on behalf of said ____________________.
-------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
- ----------------------
-3-
EXHIBIT "C"
FORM OF SPECIAL WARRANTY DEED
(SOUTH BEND PROPERTY)
SPECIAL WARRANTY DEED
(SOUTH BEND PROPERTY)
THIS INDENTURE WITNESSETH, That ________________________ ("Grantor"),
CONVEYS AND SPECIFICALLY WARRANTS to Macfarlan Holdings, Ltd., having a post
office address of __________________________________________________
(hereinafter "Grantee") for the sum of Ten and No/100 Dollars ($10.00) and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the real estate in _____________ County, in the State of Indiana
(the "Subject Property"), described as follows:
See Exhibit "A" attached hereto.
This conveyance is made, and the Subject Property is, subject to the
following items and matters set forth on Exhibit "B" attached hereto and
incorporated herein by reference.
The warranties of Grantor hereunder are limited to its own acts and
deeds and those of persons claiming by, through and under Grantor, and not
otherwise.
Grantor certifies that there is no Indiana gross income tax due or
payable in connection with this conveyance.
GRANTEE HEREBY ACKNOWLEDGES AND AGREES BY ITS ACCEPTANCE HEREOF THAT
THE PROPERTY IS CONVEYED "AS IS, WHERE IS" AND IN ITS PRESENT CONDITION WITH ALL
FAULTS, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SPECIAL WARRANTY DEED,
GRANTOR HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO: (A) THE
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE
MAY CONDUCT THEREON; (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, INCLUDING, BUT NOT LIMITED TO, THE AMERICANS WITH
DISABILITIES ACT OF 1990 AND THE REGULATIONS PROMULGATED THEREUNDER; (E) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY; OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. WITHOUT LIMITING
THE FOREGOING, GRANTOR DOES NOT AND HAS NOT MADE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATION OR WARRANTY REGARDING THE PRESENCE OR ABSENCE OF ANY HAZARDOUS
SUBSTANCES (as hereinafter defined) ON, UNDER OR ABOUT THE PROPERTY OR THE
COMPLIANCE OR NONCOMPLIANCE OF THE PROPERTY WITH THE COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION AND LIABILITY ACT, THE SUPERFUND AMENDMENT AND
REAUTHORIZATION ACT, THE RESOURCE
CONSERVATION RECOVERY ACT, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL
ENVIRONMENTAL PESTICIDES ACT, THE CLEAN WATER ACT, THE CLEAN AIR ACT, ANY SO
CALLED FEDERAL, STATE OR LOCAL "SUPERFUND" OR "SUPERLIEN" STATUTE, OR ANY OTHER
STATUTE, LAW, ORDINANCE, CODE, RULE, REGULATION, ORDER OR DECREE REGULATING,
RELATING TO OR IMPOSING LIABILITY (INCLUDING STRICT LIABILITY) OR STANDARDS OF
CONDUCT CONCERNING ANY HAZARDOUS SUBSTANCES (collectively, the "Hazardous
Substance Laws"). For purposes of this Agreement, the term "Hazardous
Substances" shall mean and include any substance, whether solid, liquid or
gaseous: (i) which is listed, defined or regulated as a "hazardous substance",
"hazardous waste" or "solid waste", or otherwise classified as hazardous or
toxic, in or pursuant to any Hazardous Substance Laws; (ii) which is or contains
asbestos, radon, any polychlorinated biphenyl, urea formaldehyde foam
insulation, or explosive or radioactive material; (iii) which is or contains
petroleum, petroleum products, including any fractions or distillates thereof;
or (iv) which causes or poses a threat to cause a contamination or nuisance on
the Property or on any adjacent property or a hazard to the environment or to
the health or safety of persons on the Property. As used in this Paragraph, the
word "on" when used with respect to the Property or adjacent property means "on,
in, under, above or about."
The undersigned person executing this deed on behalf of Grantor
represents and certifies that _______________ is a duly elected ________ of
Grantor and has been fully empowered, by proper resolution of the board of
directors of Grantor, to execute and deliver this deed; that Grantor has full
corporate capacity to convey the Subject Property; and that all necessary
corporate action for the making of such conveyance has been taken and done.
IN WITNESS WHEREOF, Grantor has caused this deed to be executed this
___ day of _______________, 2002.
GRANTOR:
-------------------------------------------
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
-2-
ACCEPTED BY GRANTEE:
MACFARLAN HOLDINGS, LTD., a
Texas limited partnership
By: WJM Properties, L.L.C., its
General Partner
By:
----------------------------------------
John J. Jenkins, Manager
STATE OF TEXAS ss.
ss.
COUNTY OF HARRIS ss.
Before me, a Notary Public in and for said County and State, personally
appeared by _____________________, _____________________ of
__________________________, who acknowledged execution of the foregoing Deed for
and on behalf of said ____________________.
--------------------------------------------
Notary Public in and for the State of Texas
My commission expires:
- ------------------------
My County of Residence:
- ------------------------
--------------------------------------------
(Printed)
Send Tax Statements to:
--------------------------
--------------------------
--------------------------
Return Deed to:
--------------------------
--------------------------
--------------------------
This instrument was prepared by _______________________, Dann Pecar Newman &
Kleiman, P.C., 2300 One American Square, Box 82008, Indianapolis, IN 46282.
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EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
1. Real estate taxes and assessments for the year _____, due and
payable in _____________________________ all taxes and assessments thereafter.
2. Permitted exceptions.
EXHIBIT "D"
FORM OF LIMITED WARRANTY DEED
(EAST GRANBY PROPERTY)
LIMITED WARRANTY DEED
(EAST GRANBY PROPERTY)
TO ALL PEOPLE TO WHOM THESE PRESENTS SHALL COME, GREETING:
KNOW YE, that, ____________________________________________, a
________________________ _______________________ having an address at
___________________________________________________________________, hereinafter
referred to as the "Grantor", for the consideration of Ten Dollars ($10.00) and
other valuable consideration received to its full satisfaction of
_______________________________________, a ______________________________
___________________________ having an address at
_____________________________________________________________, hereinafter
referred to as the "Grantee", does hereby give, grant, bargain sell and confirm
unto the said Grantee and unto its successors and assigns forever, all that
certain piece or parcel of land, situated in the Town of East Granby, County of
Hartford and State of Connecticut, said piece or parcel of land being bounded
and described in SCHEDULE A attached hereto and made a part hereof, together
with, all and singular and any and all rights and appurtenances of Grantor
pertaining thereto, including all buildings, improvements, fixtures, and
appurtenances thereto and any right, title and interest of Grantor in and to
adjacent streets, alleys or rights-of-way (said land, rights and appurtenances
being hereinafter referred to collectively as the "Property").
This conveyance is made and accepted subject, subordinate and inferior
to the easements, covenants and other matters and exceptions set forth on
SCHEDULE A attached hereto and made a part hereof for all purposes (the
"Permitted Exceptions"), but only to the extent they affect or relate to the
Property, and without limitation or expansion of the scope of the special
warranty herein contained.
TO HAVE AND TO HOLD the above granted and bargained Property, with all
the appurtenances thereof and subject to the Permitted Exceptions, unto the said
Grantee, and unto its successors and assigns forever, to its and their own
proper use and benefit.
AND ALSO, the said Grantor does for itself and for its successors and
assigns, covenant with the said Grantee, and with its successors and assigns,
that Grantor has not done or suffered anything whereby the said Property has
been encumbered in any way, except as mentioned in SCHEDULE A.
AND FURTHERMORE, the said Grantor does by these presents bind itself
and its successors and assigns forever to WARRANT AND DEFEND the above granted
and bargained Property to the said Grantee, and to its successors and assigns,
against all claims and demands of any person or persons claiming by or under the
said Grantor, except as mentioned in SCHEDULE A.
GRANTEE ACKNOWLEDGES AND AGREES, BY ITS ACCEPTANCE HEREOF, THAT THE
PROPERTY IS CONVEYED "AS IS, WHERE IS" AND IN ITS PRESENT CONDITION WITH ALL
FAULTS, AND EXCEPT FOR THE SPECIAL WARRANTY OF TITLE CONTAINED HEREIN, GRANTOR
HAS NOT MADE AND DOES NOT HEREBY
MAKE ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTEES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER STATUTORY, EXPRESS OR
IMPLIED, WITH RESPECT TO THE QUALITY OR CONDITION OF THE PROPERTY, THE INCOME TO
BE DERIVED THEREFROM, THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES
AND USES WHICH GRANTEE MAY CONDUCT THEREON, COMPLIANCE BY THE PROPERTY WITH ANY
LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY,
INCLUDING, BUT NOT LIMITED TO, THE AMERICANS WITH DISABILITIES ACT OF 1990 AND
THE REGULATIONS PROMULGATED THEREUNDER, HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OF THE PROPERTY, OR OTHERWISE WITH RESPECT TO THE
PROPERTY, AND SPECIFICALLY, THAT GRANTOR HAS NOT MADE AND DOES MAKE ANY
REPRESENTATIONS REGARDING THE PRESENCE OR ABSENCE OF ANY HAZARDOUS SUBSTANCES
(AS HEREINAFTER DEFINED) ON, UNDER OR ABOUT THE PROPERTY OR THE COMPLIANCE OR
NONCOMPLIANCE OF THE PROPERTY WITH THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT, THE SUPERFUND AMENDMENT AND REAUTHORIZATION ACT,
THE RESOURCE CONSERVATION RECOVERY ACT, THE FEDERAL WATER POLLUTION CONTROL ACT,
THE FEDERAL ENVIRONMENTAL PESTICIDES ACT, THE CLEAN WATER ACT, THE CLEAN AIR
ACT, and any other applicable state statutes, regulations, rules, ordinances,
codes, orders or common laws, which relate to human health, safety or protection
of the environment or to emissions, discharges, releases or threatened releases
of pollutants, contaminants or hazardous materials in the environment
(including, without limitation, ambient air, surface water, ground water, land
surface or subsurface strata), or otherwise relating to the treatment, storage,
disposal, transport, presence, use, generation, labeling, testing, processing,
control, cleanup or handling of any hazardous material, ANY SO-CALLED FEDERAL,
STATE OR LOCAL "SUPERFUND" OR "SUPERLIEN" STATUTE, OR ANY OTHER STATUE, LAW,
ORDINANCE, CODE, RULE, REGULATION, ORDER OR DECREE REGULATING, RELATING TO OR
IMPOSING LIABILITY (INCLUDING STRICT LIABILITY) OR STANDARDS OF CONDUCT
CONCERNING ANY HAZARDOUS SUBSTANCES (COLLECTIVELY, THE "HAZARDOUS SUBSTANCE
LAWS"). FOR PURPOSES OF THIS DEED, THE TERM "HAZARDOUS SUBSTANCES" SHALL MEAN
AND INCLUDE ANY SUBSTANCE, WHETHER SOLID, LIQUID OR GASEOUS: (I) WHICH IS
LISTED, DEFINED OR REGULATED AS A "HAZARDOUS SUBSTANCE," "HAZARDOUS WASTE" OR
"SOLID WASTE," OR OTHERWISE CLASSIFIED AS HAZARDOUS OR TOXIC, IN OR PURSUANT TO
ANY HAZARDOUS SUBSTANCE LAWS; (II) WHICH IS OR CONTAINS ASBESTOS, RADON, ANY
POLYCHLORINATED BIPHENYL, UREA FORMALDEHYDE FOAM INSULATION, OR EXPLOSIVE OR
RADIOACTIVE MATERIAL; (III) WHICH IS OR CONTAINS PETROLEUM OR PETROLEUM
PRODUCTS, INCLUDING ANY FRACTIONS OR DISTILLATES THEREOF; OR (IV) WHICH CAUSES
OR POSES A THREAT TO CAUSE A CONTAMINATION OR NUISANCE ON THE PROPERTY OR ON ANY
ADJACENT PROPERTY OR A HAZARD TO THE ENVIRONMENT OR TO THE
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HEALTH OR SAFETY OR PERSONS ON THE PROPERTY. AS USED IN THIS PARAGRAPH, THE WORD
"ON" WHEN USED WITH RESPECT TO THE PROPERTY OR ADJACENT PROPERTY MEANS "ON, IN,
UNDER, ABOVE OR ABOUT."
IN WITNESS WHEREOF, the said Grantor has caused this instrument to be
executed this _______ day of ______________, 2002.
Signed, sealed and delivered in the presence of:
GRANTOR:
------------------------------------------
- --------------------------
Print Name:
By
--------------------------------------
Its:
Print Name: Duly Authorized
- --------------------------
STATE OF ______________)
: ss. __________ ________ ____, 2002
COUNTY OF _____________) (town)
Personally appeared _____________________________________,
______________________ of ___________________________, signer and sealer of the
foregoing instrument, and acknowledged the same to be his/her free act and deed
as such officer, and the free act and deed of said _______________, before me.
-------------------------------------
Notary Public/Commissioner of the
Superior Court
ACCEPTED AND AGREED TO
BY GRANTEE:
- -----------------------------------------
By:
-------------------------------------
Its:
------------------------------------
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EXHIBIT "E"
FORM OF BILL OF SALE, ASSIGNMENT OF INTANGIBLES
AND CONTRACTS, AND ASSUMPTION AGREEMENT
FORM OF BILL OF SALE, ASSIGNMENT OF
INTANGIBLES, AND ASSUMPTION AGREEMENT
This Bill of Sale, Assignment of Leases, Intangibles, and Assumption Agreement
(this "Agreement") is made and entered into this day of _______________, 2002,
by and between __________________________________, a ______________,
("Assignor"), and ______________________________________ ("Assignee").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery of this
Agreement, Assignor is conveying to Assignee, by Special Warranty Deed (the
"Deed"), that certain real property legally described on Exhibit "A" attached
hereto and made a part hereof for all purposes (the "Land");
WHEREAS, Assignor has agreed to assign to Assignee certain licenses,
franchises and permits, related to the operation of the Property as hereinafter
set forth and Assignee has agreed to assume Assignor's obligations thereunder,
all in accordance with and subject to the terms and conditions of that certain
Agreement for Purchase and Sale of Real Property dated as of
___________________, 2002, by and between Assignor and Assignee with respect to
the Land (the "Purchase Agreement");
NOW, THEREFORE, in consideration of the receipt of Ten Dollars
($10.00), the assumption by Assignee hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Assignor and Assignee agree as follows:
Assignor does hereby ASSIGN, SET OVER and DELIVER to Assignee, its
successors and assigns, subject to the exceptions to title set forth in the
Deed, all of Assignor's rights, titles and interests in the following
(collectively, the "Property"):
(a) All right, title and interest of the Seller in and to the
lighting, electrical, mechanical, plumbing and heating, ventilation and
air conditioning systems used in connection with the Land and the
Buildings thereon, and all other carpeting, draperies, appliances and
other fixtures and equipment attached or appurtenant to the Land and
Buildings thereon, together with all personal property (collectively,
the "Personal Property") (other than furniture, equipment not necessary
to operate the Buildings or building systems and not permanently
affixed to the Buildings or Land, trade fixtures and inventory, being
more particularly described in Exhibit "B" attached hereto and made a
part hereof for all purposes owned by the Seller and located on the
Land and Buildings (collectively, the "Excluded Personal Property");
(b) to the extent the same are assignable and transferable,
all right, title and interest of the Seller in and to all warranties
and guaranties respecting the Buildings and Personal Property;
(c) to the extent the same are assignable and transferable,
all right, title and interest of Seller in and to all licenses,
permits, authorizations and approvals (hereinafter called
"Intangibles") issued by any governmental agency or authority which
pertain to the Land and Buildings, to the extent they exist; and
(d) to the extent the same are assignable and transferable,
all site plans, surveys, plans and specifications, and technical,
engineering, appraisal and other reports, studies and proposals which
relate to the Land, the Buildings or the Personal Property.
Assignee hereby accepts and agrees to perform all of the terms,
covenants and conditions of the Intangibles, from and after the date hereof, and
agrees to indemnify, save and hold Assignor harmless from and against any and
all loss, liability, claims, damages, costs and expenses (including, but not
limited to, court costs and reasonable attorneys' fees) arising out of or
relating to Assignee's failure to perform any of the obligations of the owner
under the Intangibles, after the date hereof.
ASSIGNEE HEREBY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SET
FORTH IN THE PURCHASE AGREEMENT, ASSIGNOR HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS,
AGREEMENTS OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH
RESPECT TO: (A) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY; (B) THE INCOME TO BE DERIVED
FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL
ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON; (D) THE COMPLIANCE OF
OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, INCLUDING, BUT NOT
LIMITED TO, THE AMERICANS WITH DISABILITIES ACT OF 1990 AND THE REGULATIONS
PROMULGATED THEREUNDER; (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY; OR (F) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTY. WITHOUT LIMITING THE FOREGOING, ASSIGNOR DOES NOT AND HAS NOT MADE AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING THE PRESENCE OR
ABSENCE OF ANY HAZARDOUS SUBSTANCES (as hereinafter defined) ON, UNDER OR ABOUT
THE PROPERTY OR THE COMPLIANCE OR NONCOMPLIANCE OF THE PROPERTY WITH THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT, THE
SUPERFUND AMENDMENT AND REAUTHORIZATION ACT, THE RESOURCE CONSERVATION RECOVERY
ACT, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL ENVIRONMENTAL
PESTICIDES ACT, THE CLEAN WATER ACT, THE CLEAN AIR ACT, ANY SO CALLED FEDERAL,
STATE OR LOCAL "SUPERFUND" OR "SUPERLIEN" STATUTE, OR ANY OTHER STATUTE, LAW,
ORDINANCE, CODE, RULE, REGULATION, ORDER OR DECREE REGULATING, RELATING TO OR
IMPOSING LIABILITY (INCLUDING STRICT LIABILITY) OR STANDARDS OF CONDUCT
CONCERNING ANY HAZARDOUS SUBSTANCES (collectively, the "Hazardous Substance
-2-
Laws"). For purposes of this Agreement, the term "Hazardous Substances" shall
mean and include any substance, whether solid, liquid or gaseous: (i) which is
listed, defined or regulated as a "hazardous substance", "hazardous waste" or
"solid waste", or otherwise classified as hazardous or toxic, in or pursuant to
any Hazardous Substance Laws; (ii) which is or contains asbestos, radon, any
polychlorinated biphenyl, urea formaldehyde foam insulation, or explosive or
radioactive material; (iii) which is or contains petroleum, petroleum products,
including any fractions or distillates thereof; or (iv) which causes or poses a
threat to cause a contamination or nuisance on the Property or on any adjacent
property or a hazard to the environment or to the health or safety of persons on
the Property. As used in this Paragraph, the word "on" when used with respect to
the Property or adjacent property means "on, in, under, above or about."
Assignee further acknowledges and agrees that the sale of the Property as
provided for herein is made on an "AS IS" and "WITH ALL FAULTS" basis.
THIS ASSIGNMENT HAS BEEN EXECUTED IN THE STATE OF TEXAS AND SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND
THE LAWS OF THE UNITED STATES OF AMERICA APPLICABLE TO TRANSACTIONS WITHIN THE
STATE OF TEXAS.
This Assignment may be executed in two or more counterparts, and it
shall not be necessary that any one of the counterparts be executed by all of
the parties hereto. Each fully or partially executed counterpart shall be deemed
an original, but all of such counterparts taken together shall constitute one
and the same instrument.
EXECUTED effective as of the date first above written.
ASSIGNOR:
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
Date: _____________, 2002
ASSIGNEE:
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
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EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
EXCLUDED PERSONAL PROPERTY
All fixtures, equipment, security equipment, computers, office
furnishings and other items of personal property (whether or not attached to the
Improvements) which are owned by Tenant and used in the operation of the
Tenant's business conducted on the Property, so long as such items (i) are not
integral to and incorporated into the Improvements, and (ii) can be removed
without damage to the Improvements (except damage which can be easily repaired)
and without affecting the fair market value or utility of the Improvements.
Tenant's Excluded Personal Property shall include, but not be limited to the
following:
With respect to the Austin Property:
ABC Back-ups Pro 1400 S/N WB9716710979
APC SU 1400 RM2U S/N AS0143211100
APC SMART UPS SU 2200 XLNET S/N WS9911017025
EXHIBIT "F"
FORM OF CERTIFICATE OF NONFOREIGN STATUS
CERTIFICATE OF NONFOREIGN STATUS
____________________________________, (the "Transferor"), is today
conveying or causing to be conveyed to (the "Transferee"), a tract of land (the
"Property") located in City and County of _______________, ___________, which
Property is described in Exhibit "A" to this Certificate.
Section 1445 of the Internal Revenue Code provides that a transferee of
a United States real property interest must withhold tax if the Transferor is a
foreign person. In order to inform the Transferee that withholding of tax is not
required upon the disposition of a United States real property interest by the
Transferor, the undersigned hereby certifies the following on behalf of the
Transferor:
1. The Transferor is not a foreign corporation, foreign joint venture,
foreign partnership, foreign trust or foreign estate (as those terms are defined
in the Internal Revenue Code and Income Tax Regulations), and no withholding is
required under Section 1445 of the Internal Revenue Code;
2. The Transferor's United States employer or tax identification number
is ____________________________; and
3. The Transferor's office address is:
The Transferor understands, and intends, that the Transferee and other
persons involved in the sale and transfer of the Property are relying upon this
Certificate and the correctness of the statements made herein. The Transferor
understands that this certification may be disclosed to the Internal Revenue
Service by the Transferee and that any false statement contained herein could be
punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to my knowledge and belief it is true, correct and complete,
and I further declare that I have authority to sign this document on behalf of
the Transferor.
TRANSFEROR:
-----------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
EXHIBIT "G"
EXCLUDED PERSONAL PROPERTY
EXHIBIT "G"
EXCLUDED PERSONAL PROPERTY
All fixtures, equipment, security equipment, computers, office
furnishings and other items of personal property (whether or not attached to the
Improvements) which are owned by Tenant and used in the operation of the
Tenant's business conducted on the Property, so long as such items (i) are not
integral to and incorporated into the Improvements, and (ii) can be removed
without damage to the Improvements (except damage which can be easily repaired)
and without affecting the fair market value or utility of the Improvements.
Tenant's Excluded Personal Property shall include, but not be limited to the
following:
With respect to the Austin Property:
ABC Back-ups Pro 1400 S/N WB9716710979
APC SU 1400 RM2U S/N AS0143211100
APC SMART UPS SU 2200 XLNET S/N WS9911017025
EXHIBIT "H"
LEASE AGREEMENT
EXHIBIT "I"
MEMORANDUM OF LEASE
EXHIBIT "I"
MEMORANDUM OF LEASE
EFFECTIVE DATE OF LEASE: ___________________, 2002
NAME AND ADDRESS OF LANDLORD: ______________________________________________
NAME AND ADDRESS OF TENANT: EGL Eagle Global Logistics, LP, a Delaware limited
partnership (hereinafter called "Tenant"), with its principal address located at
15350 Vickery Drive, Houston, Texas 77032; Attention: General Counsel.
DESCRIPTION OF LEASED PREMISES: The real property described in Exhibit "A"
attached hereto and incorporated by reference herein for all purposes.
INITIAL TERM OF LEASE: Commencing on the "Commencement Date" of the Lease (as
such term is defined in the Lease) and ending on the last day of the one hundred
thirty second (132nd) full calendar month after the Commencement Date (the
"Expiration Date").
OPTIONS TO EXTEND: Tenant shall have the right and option to renew this Lease
for four (4) additional consecutive periods of five (5) years each, next
immediately ensuing after the Expiration Date of the initial Term of this Lease
and the subsequent renewal periods by notifying Landlord in writing not less
than six (6) months before the expiration of the immediately preceding initial
Term or subsequent renewal Term of this Lease of the Tenant's intention to
exercise its option to renew, but Tenant shall have no option to extend this
Lease beyond four (4) renewal periods of five (5) years each after the initial
Term.
PERMITTED USE: The Leased Premises may be used and occupied for any lawful
purposes during the Term of this Lease, including, without limitation, the
purposes specified in the Section 1.1(n) of Lease, and any other uses selected
by Tenant, in Tenant's sole discretion, which are not otherwise prohibited at
law and which relate to or supplement any of the foregoing. Section 1.1(n) of
the Lease allows the Premises to be used as an office, warehouse, freight
forwarding facility, facility for general distribution of products and facility
for receiving and distribution of cargo.
This instrument is intended to be only a Memorandum of Lease in respect
to the Lease, to which Lease reference is made for the full agreement between
the parties. This Memorandum is not intended to modify, limit or diminish any
term, provision or condition of the Lease and to the extent of any conflict
between this Memorandum of Lease and the Lease, the Lease will control.
[Signatures to follow on next page]
EXECUTED this _____ day of _______________, 2002.
TENANT:
EGL EAGLE GLOBAL LOGISTICS, LP, a Delaware
limited partnership
By: EGL Management, LLC, a Delaware limited liability
Company, its General Partner
By: ______________________________
Name: ______________________________
Title: ______________________________
LANDLORD:
- ------------------------------------
By: ______________________________
Name: ______________________________
Title: ______________________________
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ACKNOWLEDGEMENTS
TENANT
STATE OF TEXAS ss.
ss.
COUNTY OF HARRIS ss.
This instrument was acknowledged before me on this _____ day of
__________, 2002, by ______________________, the _________________ of EGL
Management, LLC, a Delaware limited liability company, as General Partner of EGL
EAGLE GLOBAL LOGISTICS, LP, a Delaware limited partnership, on behalf of said
partnership.
GIVEN under my hand and seal of office this _____ day of
______________, 2002.
-------------------------------------------
Notary Public in and for the State of Texas
-----------------------------------
Notary's Printed Name
My Commission Expires: ______________
LANDLORD
STATE OF TEXAS ss.
ss.
COUNTY OF _________ ss.
This instrument was acknowledged before me on this _____ day of __________,
2002, by ______________________, the _________________ of
_______________________, a ________________ on behalf of said ________________.
GIVEN under my hand and seal of office this _____ day of
______________, 2002.
-------------------------------------------
Notary Public in and for the State of Texas
-------------------------------------------
Notary's Printed Name
My Commission Expires: ______________
-2-
EXHIBIT "J"
CORPORATE GUARANTY
EXHIBIT "J"
CORPORATE GUARANTY
In consideration of and as an inducement for the granting, execution
and delivery of that certain Lease, dated as of ____________, 20__ (together
with any amendments thereto, hereinafter called "Lease"), by
______________________, a _________________, the Landlord therein named
(hereinafter called "Landlord"), to _____________________________, a
____________ the Tenant therein named (hereinafter called "Tenant"), with
respect to that certain parcel of real property located in ___________________,
which is more fully described on Exhibit A attached hereto, and in further
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration paid by Landlord to the undersigned, EGL, Inc., a Texas
corporation (hereinafter called "Guarantor"), Guarantor, intending to be legally
bound, hereby irrevocably guarantees to Landlord (i) the full and prompt payment
when due (whether at stated maturity, by acceleration, or otherwise) of all Base
Rent, Additional Rent and any and all other sums and charges payable by Tenant
under the Lease, and (ii) the full, faithful and prompt performance and
observance of all the covenants, terms, conditions, and agreements contained in
the Lease which are to be performed and observed by Tenant (all payment and
performance obligations referred to in clauses (i) and (ii) being referred to
herein, collectively, as the "Obligations"); and Guarantor does hereby become
primary obligor, and not only surety to Landlord, for and with respect to all of
the Obligations. Terms used herein with their initial letters capitalized which
have been specifically defined in the Lease shall have the same meaning herein
as in the Lease unless such terms are otherwise defined in this Guaranty.
Guarantor further agrees to pay all actual damages and all actual and
reasonable costs and expenses that may arise in consequence of any default by
Tenant under the Lease or in connection with the enforcement of any rights under
this Guaranty (including, without limitation, all reasonable attorneys' fees
incurred by Landlord or caused by any such default and/or by the enforcement of
this Guaranty). Without limiting any other provision of this Guaranty, the
Guarantor's liability under this Guaranty shall extend to and include all
amounts which constitute part of the Obligations and would be owed by the Tenant
under the Lease but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving the Tenant. The provisions of this paragraph shall survive the payment
and performance of the Obligations, and the termination of this Guaranty.
This Guaranty is an absolute, irrevocable and unconditional guaranty of
payment (and not of collection) and of performance. Guarantor's liability
hereunder is direct and is independent of the Obligations, and may be enforced
without Landlord being required to resort to any other right, remedy or security
and this Guaranty shall be enforceable against Guarantor without the necessity
for any suit or proceedings on Landlord's part of any kind or nature whatsoever
against Tenant or the joinder of Tenant in any suit or proceeding, without the
necessity of any notice of non-payment, non-performance or non-observance of any
of the Obligations by Tenant or of any notice of acceptance of this Guaranty or
of Landlord's intention to act in reliance hereon or of any other notice or
demand to which Guarantor might otherwise be entitled, all of which Guarantor
hereby expressly waives; and Guarantor hereby expressly agrees that the validity
of
this Guaranty and the obligations of Guarantor hereunder shall in nowise be
terminated, affected or impaired by reason of the assertion or the failure to
assert by Landlord against Tenant, of any of the rights or remedies reserved to
Landlord pursuant to the provisions of the Lease. The Guarantor further waives
promptness and diligence with respect to the Obligations. Landlord will provide
Guarantor with a copy of any written notice of default which Landlord sends to
Tenant under the Lease prior to exercising any rights or remedies under this
Guaranty, provided that the failure to deliver any such notice shall not limit
Landlord's rights or Guarantor's obligations under this Guaranty.
This Guaranty shall be a continuing Guaranty, and (whether or not
Guarantor shall have notice or knowledge of any of the following) the liability
and obligations of Guarantor hereunder shall be absolute and unconditional and
shall remain in full force and effect without regard to, and shall not be
released, discharged or in any way impaired by (a) any amendment or modification
of, or supplement to, or extension or renewal of, the Lease or any assignment or
transfer thereof; (b) any exercise or non-exercise of any right, power, remedy
or privilege under or in respect of the Lease or this Guaranty or any waiver,
consent or approval by Landlord with respect to any of the covenants, terms,
conditions or agreements contained in the Lease or any indulgences, forbearances
or extensions of time for performance or observance allowed to Tenant from time
to time and for any length of time; (c) any bankruptcy, insolvency,
reorganization, arrangement, readjustment, composition, liquidation or similar
proceeding relating to Tenant, or its properties; (d) any limitation on the
liability or obligation of Tenant under the Lease or its estate in bankruptcy or
of any remedy for the enforcement thereof, resulting from the operation of any
present or future provision of the federal or any state bankruptcy law or any
other statute or from the decision of any court; (e) any sublease or transfer by
Tenant or any assignment, mortgage or pledge of its interest under the Lease;
(f) any termination of the Lease prior to the expiration of its Term (except
that Guarantor shall not be liable for amounts that would have otherwise accrued
under the Lease after termination of the Lease under Section 10.1 or Section
16.1); (g) any agreement entered into between the Landlord and an assignee or
subtenant of Tenant; (h) any security provided for the Obligations; or (i) any
sale, assignment, transfer or conveyance (A) by Landlord of all or any portion
of the Premises (as such term is defined in the Lease) or of Landlord's interest
in the Lease, or (B) of any ownership interest in the Landlord.
All of Landlord's rights and remedies under the Lease and under this
Guaranty are intended to be distinct, separate and cumulative and no such right
or remedy therein or herein mentioned is intended to be in exclusion of or a
waiver of any of the others or of any rights or remedies provided by law. No
termination of the Lease or taking or recovering of the premises demised thereby
shall deprive Landlord of any of its rights and remedies against Guarantor under
this Guaranty. This Guaranty shall apply to the Obligations of Tenant under the
Lease as in effect on the date hereof as well as to the Obligations of Tenant
under the Lease as it may be extended, renewed, amended, modified or
supplemented. The Guarantor hereby waives any requirement that the Landlord
protect, secure, perfect or insure any security interest or lien or any property
subject thereto or exhaust any right or take any action against any person or
entity or any collateral (including any rights relating to marshaling of
assets).
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The Guarantor guarantees that the Obligations will be paid and
performed strictly in accordance with the terms of the Lease, regardless of the
value, genuineness, validity, regularity or enforceability of the Obligations,
and of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Landlord with
respect thereto. The liability and obligations of the Guarantor under this
Guaranty shall be absolute and unconditional, not subject to any reduction,
limitation, impairment, termination, defense, offset, counterclaim or recoupment
whatsoever (except as otherwise specifically provided in the Lease) (all of
which are hereby expressly waived by the Guarantor), whether by reason of any
claim of any character whatsoever, including, without limitation, any claim of
waiver, release, surrender, alteration or compromise, or by reason of any
liability at any time to the Guarantor or otherwise, whether based upon any
obligations or any other agreements or otherwise, howsoever arising, whether out
of action or inaction or otherwise and whether resulting from default, willful
misconduct of Tenant, negligence or otherwise, and without limiting the
foregoing irrespective of (and whether or not Guarantor shall have notice or
knowledge of): (a) any lack of validity or enforceability of the Lease or of any
agreement or instrument relating thereto; (b) any change in the time, manner or
place of payment or performance of, or in any other term in respect of, all or
any of the Obligations, or any other amendment or waiver of or consent to any
departure from the Lease or any other agreement relating to any Obligations; (c)
any increase in, addition to, exchange or release of, or non-perfection of any
lien on or security interest in, any collateral or any release or amendment or
waiver of or consent to any departure from or failure to enforce any other
guarantee, for all or any of the Obligations; (d) any other circumstance which
might otherwise constitute a defense available to, or a discharge of, the Tenant
or the Guarantor; (e) the absence of any action on the part of the Landlord to
obtain payment for the Obligations from the Tenant; (f) any insolvency,
bankruptcy, reorganization or dissolution, or any proceeding of the Tenant or
the Guarantor, including, without limitation, rejection of the guaranteed
Obligations in such bankruptcy; (g) the absence of notice or any delay in any
action to enforce any Obligations or to exercise any right or remedy against the
Guarantor or the Tenant, whether hereunder, under any Obligations or under any
agreement or any indulgence, compromise or extension granted; or (h) the
termination or cessation of a corporate relationship between Guarantor and
Tenant.
Guarantor further agrees that, to the extent that the Tenant or the
Guarantor makes a payment or payments to the Landlord, which payment or payments
or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to the Tenant or the
Guarantor or their respective estate, trustee, receiver or any other party under
any bankruptcy law, state or federal law, common law or equitable cause, then to
the extent of such payment or repayment, this Guaranty and the advances or part
thereof which have been paid, reduced or satisfied by such amount shall be
reinstated and continued in full force and effect as of the date such initial
payment, reduction or satisfaction occurred. The provisions of this paragraph
shall survive the payment and performance of the Obligations and the termination
of this Guaranty.
Until such time as all the Obligations have been fully and indefeasibly
paid to Landlord and performed in full, Guarantor shall have no rights (direct
or indirect) of subrogation, contribution, reimbursement, indemnification or
other rights of payment or recovery from any person or entity (including,
without limitation, the Tenant) for any payments made by the Guarantor
hereunder, and Guarantor hereby waives and releases absolutely and
unconditionally,
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any such rights of subrogation, contribution, reimbursement, indemnification and
other rights of payment or recovery which it may now have or hereafter acquire.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence and the Obligations shall not have been paid in full, such amount shall
be deemed to have been paid to the Guarantor for the benefit of, and held in
trust for the benefit of, the Landlord and shall forthwith be paid to the
Landlord to be credited and applied upon the Obligations, whether matured or
unmatured, in accordance with the terms of the Lease. The Guarantor acknowledges
that it will derive substantial direct and indirect benefit from the granting,
execution and delivery of the Lease by the Landlord and that the waiver set
forth in this paragraph is knowingly made in contemplation of such benefits. The
provisions of this paragraph shall survive the payment and performance of the
Obligations and the termination of this Guaranty.
Guarantor represents and warrants to Landlord that (a) the execution
and delivery of this Guaranty has been duly authorized by the Board of Directors
of Guarantor and does not contravene any law, or any contractual or legal
restriction, applicable to it, (b) no authorization or approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for its execution, delivery and performance of this Guaranty,
(c) there are no conditions precedent to the effectiveness of this Guaranty that
have not been satisfied or waived, (d) Tenant is an indirect wholly owned
affiliate or subsidiary of Guarantor, (e) Guarantor will, directly or
indirectly, benefit from the transaction which is the subject of the Lease, and
(f) neither the execution, delivery or performance of this Guaranty, nor
compliance with the terms and provisions hereof, conflicts or will conflict with
or results or will result in a default under or a breach of any of the terms,
conditions or provisions of the Certificate of Incorporation or the Bylaws of
the Guarantor or of any contract to which the Guarantor is a party or by which
it is bound.
This Guaranty shall be legally binding upon Guarantor and its
successors and assigns and shall inure to the benefit of Landlord and Lender (as
such term is defined in the Lease) and each of their respective successors and
assigns. Reference herein to Landlord shall be deemed to include Landlord and
its successors and assigns. Reference herein to Tenant shall be deemed to
include Tenant and its successors and assigns. Without limiting the generality
of the foregoing, the Landlord may assign or otherwise transfer (whether as an
outright assignment or transfer or as collateral) all or any portion of its
rights and obligations under the Lease to any other person or entity (any such
person or entity, a "Landlord Assign") and such Landlord Assign shall thereupon
become vested (on a non-exclusive basis, as an additional beneficiary) with all
the benefits in respect thereof granted to the Landlord herein or otherwise.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAW OF THE STATE OF TEXAS WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF
(OTHER THAN THE PROVISIONS OF SECTION 35.51 OF THE TEXAS BUSINESS AND COMMERCE
CODE). GUARANTOR HEREBY SUBMITS TO PERSONAL JURISDICTION IN SAID STATE AND THE
FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN SAID STATE (AND ANY
APPELLATE COURTS TAKING APPEALS THEREFROM) FOR THE ENFORCEMENT OF GUARANTOR'S
OBLIGATIONS HEREUNDER, AND WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE
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LAW OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN SUCH STATE FOR THE
PURPOSES OF SUCH ACTION, SUIT, PROCEEDING OR LITIGATION TO ENFORCE SUCH
OBLIGATIONS. GUARANTOR HEREBY WAIVES AND AGREES NOT TO ASSERT, AS A DEFENSE IN
ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, (A)
THAT IT IS NOT SUBJECT TO SUCH JURISDICTION OR THAT SUCH ACTION, SUIT OR
PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT
THIS GUARANTY MAY NOT BE ENFORCED IN OR BY THOSE COURTS OR THAT IT IS EXEMPT OR
IMMUNE FROM EXECUTION, (B) THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR (C) THAT THE VENUE OF THE ACTION, SUIT OR PROCEEDING IS
IMPROPER (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF LANDLORD OR ANY LANDLORD
ASSIGN TO BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). IN THE EVENT
ANY SUCH ACTION, SUIT, PROCEEDING OR LITIGATION IS COMMENCED, GUARANTOR AGREES
THAT SERVICE OF PROCESS MAY BE MADE, AND PERSONAL JURISDICTION OVER GUARANTOR
OBTAINED, BY SERVICE OF A COPY OF THE SUMMONS, COMPLAINT AND OTHER PLEADINGS
REQUIRED TO COMMENCE SUCH LITIGATION UPON GUARANTOR AT GUARANTOR'S ADDRESS SET
FORTH HEREIN.
Without the prior written consent thereto by Landlord, Guarantor will
not enter into any amendment to this Guaranty and without such consent no such
amendment will be effective in any event. No waiver of any provision of this
Guaranty, and no consent to any departure by Guarantor herefrom, shall be
effective without the prior written consent thereto by Landlord and Lender, and
any waiver or consent for which such written consent is given shall be effective
only in the specific instance and for the specific purpose for which given. No
failure on the part of the Landlord to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. Guarantor will from time to time
during the Term (as defined in the Lease), promptly following request of
Landlord or Lender, confirm in writing to Landlord and to Lender that this
Guaranty remains in full force and effect in accordance with its terms.
At any time when Guarantor is not a reporting company under the
Securities and Exchange Act of 1934, as amended, it will deliver to Landlord and
Lender the following information:
(a) within one hundred twenty (120) days after the end of each fiscal
year of Guarantor, a balance sheet of Guarantor and its consolidated
subsidiaries as at the end of such year, a statement of profits and
losses of Guarantor and its consolidated subsidiaries for such year,
and a statement of change in the financial position of Guarantor, and
its consolidated subsidiaries for such year, setting forth in each
case, in comparative form, the corresponding figures for the preceding
fiscal year in reasonable detail and scope and certified by independent
certified public accountants of recognized national standing selected
by Guarantor; and (b) within sixty (60) days after the end of each of
the first
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three (3) fiscal quarters of Guarantor a balance sheet of Guarantor and
its consolidated subsidiaries as at the end of such quarter, statements
of profits and losses of Guarantor and its consolidated subsidiaries
for such quarter and a statement of change in financial position of
Guarantor and in each case, in comparative form, the corresponding
figures for the similar quarter of the preceding year, in reasonable
detail and scope, and certified to be true and complete by a financial
officer of Guarantor having knowledge thereof; the foregoing financial
statements all being prepared in accordance with generally accepted
accounting principles, consistently applied (except as otherwise stated
therein).
The Guarantor shall permit the Landlord and Lender and their
representatives, at the expense of such person or entity, except in the event of
an Event of Default under the Lease, in which case at Guarantor's expense, and
upon reasonable prior written notice to the Guarantor, to visit the principal
executive office of the Guarantor, to discuss the affairs, finances and accounts
of the Guarantor with the Guarantor's officers, and (with the consent of the
Guarantor, which consent will not be unreasonably withheld) its independent
public accountants, and (with the consent of the Guarantor, which consent will
not be unreasonably withheld) to visit the other offices and properties of the
Guarantor and each subsidiary, all at such reasonable times and as often as may
be reasonably requested in writing.
GUARANTOR AND LANDLORD (BY ITS ACCEPTANCE OF THIS GUARANTY) HEREBY
MUTUALLY WAIVE TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING HEREUNDER.
The provisions of this paragraph shall survive the payment and performance of
the Obligations and the termination of this Guaranty.
All notices and other communications provided for hereunder shall be in
writing and shall be either delivered to the notice address of Guarantor by
hand, or sent by reputable overnight courier, or by United States Registered or
Certified Mail, adequate postage prepaid. The notice address for Guarantor shall
be 15350 Vickery Drive, Houston, Texas 77032. Guarantor's address may be changed
from time to time by such party by giving notice as provided above. No change of
address of either party shall be binding on the other party until notice of such
change of address is given as hereby provided. A post office receipt for
registration of such notice or signed return receipt shall be conclusive that
such notice was delivered in due course of mail if mailed as provided above. For
purposes of the calculation of the time periods referred to herein, notice
delivered by hand shall be deemed received when delivered to the place for
giving notice to a party referred to above; notice sent by overnight courier as
provided above shall be deemed received and delivered one (1) day after deposit
with such courier; and notice mailed in the manner provided above shall be
deemed completed upon the earlier to occur of (i) actual receipt as indicated on
the signed return receipt, or (ii) three (3) days after posting as herein
provided. Finally, any written notice addressed as provided hereinabove and
actually received by the addressee, shall constitute sufficient notice for all
purposes under this Lease.
The Guarantor agrees that it shall not institute against, or join any
other person or entity in instituting against, any Landlord Assign or any person
or entity which is or was a creditor of or holder of any certificate or
instrument issued by any Landlord Assign any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under
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any federal or state bankruptcy or similar law for one (1) year and one (1) day
after the latest maturing commercial paper note issued by such Landlord Assign
or any such creditor of or holder of a certificate or instrument issued by such
Landlord Assign is paid in full. Without prejudice to the survival of any other
agreement of the Guarantor hereunder, the provisions of this paragraph shall
survive the payment and performance of the Obligations and the termination of
this Guaranty.
Except for provisions of this Guaranty which by their terms survive the
termination hereof, this Guaranty shall terminate after all of the following
shall have occurred: (i) all Base Rent, all Additional Rent and all other sums
and charges payable by the Tenant under the Lease shall have been indefeasibly
paid in full in cash; and (ii) all other Obligations of the Tenant under the
Lease shall have been performed in full in strict accordance with the terms and
provisions of the Lease.
IN WITNESS WHEREOF, Guarantor, intending to be legally bound hereby,
has caused this Guaranty to be executed by its duly authorized officer and its
corporate seal to be hereunto duly affixed, as of _____________, 20__.
EGL, INC.,
a Texas corporation
[S E A L ] By: ______________________________
Its:______________________________
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EXHIBIT "A"
PROPERTY DESCRIPTION
EXHIBIT "K"
SCHEDULE OF BASE RENT
EXHIBIT "K"
SCHEDULE OF BASE RENT
AUSTIN PROPERTY
Initial Base Rent................................ $5.50 per square foot
GRAPEVINE PROPERTY
Initial Base Rent................................ $5.20 per square foot
SOUTH BEND PROPERTY
Initial Base Rent................................ $6.50 per square foot
EAST GRANDBY PROPERTY
Initial Base Rent................................ $4.25 per square foot