Texas-Dallas-Corporate Headquarters Agreement of Sale and Purchase - Dave & Buster's Inc. and General Electric Capital Business Asset Funding Corp.
AGREEMENT OF SALE AND PURCHASE
by and between
DAVE & BUSTER'S, INC.,
a Missouri corporation,
as Seller
and
GENERAL ELECTRIC CAPITAL BUSINESS
ASSET FUNDING CORPORATION,
as Purchaser
Corporate Headquarters
&
Warehouse
Dallas, Texas
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TABLE OF CONTENTS
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PAGE
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ARTICLE I. Sale and Purchase: Property..............................................1
Section 1.1 Sale and Purchase..............................................1
ARTICLE II. Consideration...........................................................2
Section 2.1 Purchase Price.................................................2
Section 2.2 Earnest Money..................................................2
ARTICLE III. Survey.................................................................3
Section 3.1 Survey.........................................................3
ARTICLE IV. Title...................................................................4
Section 4.1 Title Commitment...............................................4
ARTICLE V. Inspection...............................................................5
Section 5.1 Inspection Period..............................................5
Section 5.2 Document Review................................................6
Section 5.3 Inspection Obligations.........................................7
Section 5.4 Right of Termination...........................................7
Section 5.5 Property Conveyed "AS IS"......................................8
Section 5.6 Investigative Studies.........................................11
Section 5.7 Purchaser Represented by Counsel..............................11
ARTICLE VI. Closing................................................................12
Section 6.1 Closing Date..................................................12
Section 6.2 Closing Matters...............................................12
Section 6.3 Closing Costs.................................................13
Section 6.4 Real Estate Commission........................................14
ARTICLE VII. Remedies..............................................................14
Section 7.1 Seller's Remedies.............................................14
Section 7.2 Purchaser's Remedies..........................................14
Section 7.3 Attorneys' Fees...............................................15
Section 7.4 Disposition of Earnest Money..................................15
ARTICLE VIII. Representations, Warranties, and Covenants...........................16
Section 8.1 Purchaser's Representations and Warranties....................16
Section 8.2 Seller's Representations and Warranties.......................16
Section 8.3 Seller's Covenants............................................17
Section 8.4 Survival of Representations and Warranties....................17
Section 8.5 Knowledge Standard............................................18
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ARTICLE IX. Condemnation...........................................................18
Section 9.1 Condemnation..................................................18
ARTICLE X. Risk of Loss............................................................19
Section 10.1 Risk of Loss...............................................19
Section 10.2 Material Loss..............................................19
Section 10.3 Non-Material Loss..........................................20
Section 10.4 Delay in Completion of Repairs.............................20
Section 10.5 Postponement of Closing....................................20
ARTICLE XI. Miscellaneous..........................................................20
Section 11.1 Entire Agreement...........................................20
Section 11.2 Agreement Binding on Parties; Assignment...................21
Section 11.3 Effective Date.............................................21
Section 11.4 Notice.....................................................21
Section 11.5 Time of the Essence........................................23
Section 11.6 Place of Performance.......................................23
Section 11.7 Currency...................................................23
Section 11.8 Section Headings...........................................23
Section 11.9 Obligations................................................23
Section 11.10 Business Days..............................................23
Section 11.11 No Recordation.............................................23
Section 11.12 Multiple Counterparts......................................24
Section 11.13 Severability...............................................24
Section 11.14 Taxpayer ID................................................24
Section 11.15 Section 1031 Exchange......................................25
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Exhibits
Exhibit A - Legal Description of Land
Exhibit B - Deed
Exhibit C - Bill of Sale
Exhibit D - Certificate of Non-Foreign Status
Exhibit E - Assignment of Warranties
Exhibit F - Lease
Exhibit G Environmental Certificate
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AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "AGREEMENT") is made by and
between DAVE & BUSTER'S, INC., a Missouri corporation (the "SELLER"), and
GENERAL ELECTRIC CAPITAL BUSINESS ASSET FUNDING CORPORATION (the "PURCHASER").
WITNESSETH:
WHEREAS, Seller desires to sell and Purchaser desires to purchase the
property described in Section 1.1 below, on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
SALE AND PURCHASE: PROPERTY
Section 1.1 Sale and Purchase.
Seller agrees to sell and convey unto Purchaser, and Purchaser agrees
to purchase and accept from Seller, subject to the Permitted Exceptions
(as defined in Section 4.1(c)) and the terms, covenants, conditions,
and provisions herein set forth, the following:
(a) All of that certain land more particularly described on
Exhibit A attached hereto (the "LAND"), including all
structures, improvements, and fixtures (the "IMPROVEMENTS")
thereon. The Improvements consist of an approximately 47,000
square foot, two-story office building, and an approximately
30,000 square foot single-story warehouse, all located at 2481
Manana Drive, Dallas, Texas. The Land and the Improvements are
sometimes referred to herein collectively as the "REAL
PROPERTY";
(b) All right, title, and interest, if any, of Seller, in and to
any land lying in the bed of any dedicated street, road, or
access way, opened or proposed, in front of, at a side of or
adjoining the Real Property (the "PROPERTY RIGHTS");
(c) All right, title, and interest of Seller, reversionary or
otherwise, in and to all easements in or upon the Land and all
other rights and appurtenances belonging or in anywise
pertaining thereto, if any (the "APPURTENANCES");
(d) Any and all equipment and machinery owned by Seller and
presently affixed or attached to, or sufficiently placed or
situated upon the Real
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Property so as to become fixtures, and used in connection with
the ownership, operation, and occupancy of the Real Property,
but specifically excluding items of personal property owned by
any third party (the "PERSONALTY");
(e) All right, title, and interest, if any, of Seller in and to
any and all transferable licenses, permits, certificates,
approvals, authorizations, variances, and consents (the
"PERMITS") issued or granted by governmental or
quasi-governmental bodies, officers, or authorities with
respect to the ownership of the Real Property;
(f) All warranties and guaranties covering any of the
Improvements, if any (the "WARRANTIES");
(g) Any service contracts, management agreements, and maintenance
contracts encumbering the Land as designated by Seller and
agreed to by Purchaser during the Inspection Period
(collectively, the "SERVICE CONTRACTS");
(h) Seller's interest in all plans, specifications, drawings,
reports, studies, and other similar matters, relating to the
Land and in the possession of Seller, but only to the extent
assignable (the "PLANS").
The items described in (a) through (h) of this Section 1.1 are
hereinafter collectively called the "PROPERTY".
ARTICLE II.
CONSIDERATION
Section 2.1 Purchase Price.
The purchase price (the "PURCHASE PRICE") to be paid by Purchaser to
Seller for the sale and conveyance of the Property is Seven Million
Seven Hundred Ninety Thousand and No/100 Dollars ($7,790,000), which is
payable to Seller at the closing of the transaction contemplated hereby
(the "CLOSING") by wire transfer and which funds must be delivered in a
manner to permit the Closing Agent (defined in Section 2.2) to deliver
good funds to the Seller or its designee on the Closing Date (defined
in Section 6.1).
Section 2.2 Earnest Money.
(a) It is a condition precedent to the effectiveness of this
Agreement that within five (5) days of the execution of this
Agreement by Purchaser, Purchaser shall deposit with Republic
Title of Texas, Inc., 2626
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Howell Street, 10th Floor, Dallas, Texas 75204, Attn: Paulette
Hubbard (the "CLOSING AGENT"), by wire transfer or delivery of
a cashier's check, immediately available federal funds in the
amount of Ten Thousand Dollars ($10,000) (along with any
accrued interest, the "EARNEST MONEY").
(b) On the Closing Agent's receipt of the Earnest Money, the
Closing Agent shall deposit such Earnest Money into an
interest-bearing money market account maintained at a
federally insured bank or savings and loan association located
in Dallas County, Texas. Such account shall have no penalty
for early withdrawal, and Purchaser agrees and acknowledges
that Seller shall have no responsibility or liability for any
loss of the Earnest Money or any portion thereof. If the
Earnest Money to be delivered pursuant to Section 2.2(a) is
not timely delivered by Purchaser to the Closing Agent, Seller
may terminate this Agreement by delivering written notice of
such termination to Purchaser. Upon said termination, (i)
neither Seller nor Purchaser shall have any further obligation
or liability to the other hereunder, except as provided in
Sections 5.3. and 6.4 hereof, and (ii) Purchaser shall deliver
to Seller all of the Documents and Purchaser's Information (as
defined in Section 5.2(c)).
(c) Upon execution hereof, Purchaser shall deliver to Seller the
sum of $100.00 which shall be independent consideration for
this Agreement (the "INDEPENDENT CONSIDERATION").
(d) If the transaction contemplated hereby is consummated in
accordance with the terms and provisions hereof, the Earnest
Money shall be credited against the Purchase Price at Closing.
All interest earned shall be reported to the Internal Revenue
Service as income of Purchaser and Purchaser shall promptly
execute all forms reasonably requested by the Closing Agent
with respect thereto.
(e) The balance of the Purchase Price, as adjusted by the
prorations and credits specified herein, less the Earnest
Money and less the amount of the Note, shall be paid on the
Closing Date in t/he manner set forth in Section 6.2.
ARTICLE III.
SURVEY
Section 3.1 Survey.
Seller shall deliver to Purchaser, simultaneously with the
execution hereof (as defined in Section 11.3), a copy of the
as-built survey (the "SURVEY") of the Real Property in
Seller's possession. Purchaser shall be solely responsible for
ordering
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any updates to the Survey that it desires, and shall do so in
a diligent and timely manner. Seller shall pay for the cost of
the updated Survey.
ARTICLE IV.
TITLE
Section 4.1 Title Commitment.
(a) Delivery.Simultaneously with the execution hereof, Seller
shall deliver to Purchaser a copy of its owner's title policy
covering the Property. Seller shall, within ten (10) days of
the Effective Date, cause First American Title Insurance
Company (the "TITLE COMPANY"), acting through the Closing
Agent, to furnish to Purchaser a title commitment (the
"COMMITMENT") along with copies of all exception documents, by
the terms of which Title Company agrees to issue to Purchaser
at Closing a Texas Standard Coverage Owner's Policy of Title
Insurance (the "TITLE POLICY") in the amount of the Purchase
Price and insuring Purchaser's fee simple title to the Real
Property to be good and indefeasible, subject to the Permitted
Exceptions and the other terms of the Title Policy.
(b) Objections and Cure. If the Title Commitment or Survey or
their updates disclose exceptions to title or any other matter
objectionable to Purchaser, Purchaser shall so notify Seller
in writing (the "OBJECTION NOTICE") on or before the tenth
(10th) day following the date of the last to be received of
the Title Commitment and Survey, and Seller shall have fifteen
(15) days from the date of Seller's actual receipt of the
Objection Notice in which it may, but shall have no obligation
to have each such objectionable exception to title or Survey
removed or correct each such other matter, in each case to the
reasonable satisfaction of Purchaser. Notwithstanding the
foregoing, Seller shall have each mortgage and lien removed,
and shall also cause any other matter than can be removed by
payment of $10,000 or less to be removed prior to the
Inspection Period Expiration Date. If, within the time
specified, Purchaser does not deliver an Objection Notice, all
title and survey matters shall be deemed approved. If, within
the time specified, Seller does not have each such
objectionable exception removed or corrected, Purchaser must,
as its sole and exclusive remedy, either (i) terminate this
Agreement, in which event this Agreement, without further
action of the parties, shall become null and void and neither
party shall have any further rights or obligations under this
Agreement, except in accordance with Sections 5.3 and 6.4, and
the Earnest Money shall be returned to Purchaser, or (ii)
elect to accept title to the Property as it then exists,
without reduction to the Purchase Price. If Purchaser fails to
timely make either such election, Purchaser shall be deemed to
have elected option (ii).
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(c) Permitted Exceptions. As used in this Agreement, the term
"PERMITTED EXCEPTIONS" shall mean all matters either shown on
the Survey or in the Title Commitment, and all matters which
Purchaser has accepted or has been deemed to accept. Seller
has no obligation to ensure that the Title Company will
provide any endorsements to the Title Policy, including,
without limitation, any deletion of the printed survey
exception, all of which, if Purchaser elects to obtain any
such endorsements, shall be Purchaser's responsibility and
shall be at Purchaser's expense.
(d) Termination. In the event of termination of this Agreement
pursuant to this Section 4.1, the Earnest Money shall be
delivered to Purchaser, except for the Independent
Consideration, which shall be paid to Seller, and thereafter
neither party shall have any further rights or obligations
hereunder, except for the rights and obligations arising
pursuant to Sections 5.3 and 6.4.
ARTICLE V.
INSPECTION
Section 5.1 Inspection Period.
Seller, subject to the provisions of the Lease, shall permit Purchaser
and its authorized agents and representatives to enter upon the Real
Property at all reasonable times during normal business hours to
inspect and conduct reasonably necessary tests which are approved in
writing by Seller, which approval shall not be unreasonably withheld.
Such entry and inspections may be conducted only during the period (the
"INSPECTION PERIOD") commencing on the Effective Date and ending at
5:00 p.m., Dallas, Texas time on the date (the "INSPECTION PERIOD
EXPIRATION DATE") that is forty-five (45) days following the Effective
Date; provided, however, that so long as this Agreement has not been
terminated, Purchaser shall have the right, subject to the operations
of the restaurant, to enter upon the Real Property at all reasonable
times during normal business hours subsequent to the Inspection Period
Expiration Date and prior to the Closing for the purposes of continuing
its inspection of the same so long as Purchaser complies with each of
the provisions of this Agreement, including, without limitation, the
provisions of this Article V relating to such entry and inspection.
Notwithstanding the foregoing, in no event shall such entry and
inspection subsequent to the Inspection Period Expiration Date serve to
extend Purchaser's right to terminate this Agreement on or before the
Inspection Period Expiration Date as provided in Section 5.4 hereof.
Purchaser shall notify Seller, in writing, of its intention, or the
intention of its agents or representatives, to enter the Real Property
at least forty-eight (48) hours prior to such intended entry, and
obtain Seller's prior written consent to any tests to be conducted
thereon. At Seller's option, Seller may be present for any inspection
or test.
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Section 5.2 Document Review.
(a) Documents. Within three (3) days after the Effective Date,
Seller shall deliver to Purchaser the following, if in the
possession of Seller (collectively, the "DOCUMENTS"):
(i) copies of any Plans;
(ii) to the extent allowed by the author, copies of all
existing soil, engineering, architectural, and
environmental reports covering the Property in
Seller's possession;
(iii) copies of all Service Contracts, if any; and
(iv) copies of all Permits in Seller's possession.
(b) Return of Documents. Purchaser shall return all of the
Documents, any and all copies Purchaser has made of the
Documents, and all copies of any studies, reports, or test
results obtained by Purchaser (and actually paid for by
Seller) in connection with its inspection of the Property
(collectively, the "PURCHASER'S INFORMATION") on the earlier
to occur of (i) such time as Purchaser determines that it
shall not acquire the Property, or (ii) such time as this
Agreement is terminated for any reason.
(c) No Representation or Warranty by Seller. Purchaser hereby
acknowledges that Seller has not made and does not make any
warranty or representation regarding the truth, accuracy, or
completeness of the Documents or the source(s) thereof, and
that Seller has not undertaken any independent investigation
as to the truth, accuracy, or completeness of the Documents
and is providing the Documents solely as an accommodation to
Purchaser. Seller expressly disclaims and Purchaser waives any
and all liability for representations or warranties, express
or implied, statements of fact, and other matters contained in
the Documents, or for any omissions from the Documents, or in
any other written or oral communications transmitted or made
available to Purchaser. Except as provided in Section 8.2 and
the Environmental Certificate (as hereinafter
defined)Purchaser shall rely solely upon its own investigation
with respect to the Property, including, without limitation,
the Property's physical, environmental, or economic condition,
compliance or lack of compliance with any ordinance, order,
permit, or regulation or any other attribute or matter
relating thereto.
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Section 5.3 Inspection Obligations.
(a) Purchaser's Responsibilities. In conducting any inspections,
investigations, examinations, or tests of the Property,
Purchaser and its agents and representatives shall: (i) not
interfere with the operation and maintenance of the Property;
(ii) not damage any part of the Property or any personal
property; (iii) not injure or otherwise cause bodily harm to
Seller or its agents, guests, invitees, contractors and
employees; (iv) maintain commercial general liability
(occurrence basis) insurance in terms and amounts reasonably
satisfactory to Seller covering any accident arising in
connection with the presence of Purchaser, its agents, and its
representatives on the Property, (v) promptly pay when due the
costs of all tests, investigations, and examinations done with
regard to the Property; (vi) not permit any liens to attach to
the Real Property by reason of the exercise of its rights
hereunder; (vii) fully restore the Land and the Improvements
to the condition in which the same were found before any such
inspection or tests were undertaken; (viii) not reveal or
disclose any information obtained during the Inspection Period
concerning the Property and the Documents to anyone outside
Purchaser's organization, except in accordance with the
confidentiality standards set forth in Section 5.2(b) hereof,
and (ix) deliver to Seller a copy of all Purchaser's
Information.
(b) PURCHASER'S AGREEMENT TO INDEMNIFY. PURCHASER SHALL INDEMNIFY,
DEFEND, AND HOLD SELLER HARMLESS FROM AND AGAINST ANY AND ALL
LIENS, CLAIMS, CAUSES OF ACTION, DAMAGES, LIABILITIES, AND
EXPENSES (INCLUDING REASONABLE LEGAL FEES AND EXPENSES)
ARISING OUT OF PURCHASER'S INSPECTIONS OR TESTS OR ANY
VIOLATION OF THE PROVISIONS OF THIS SECTION 5.3. THIS
INDEMNITY SHALL SURVIVE THE CLOSING OR EARLIER TERMINATION OF
THIS AGREEMENT.
Section 5.4 Right of Termination.
If, during the Inspection Period, Purchaser shall, for any reason, in
Purchaser's sole discretion, judgment, and opinion, be dissatisfied
with any aspect of the Property or any item examined by Purchaser
pursuant to this Agreement, Purchaser shall be entitled, as its sole
remedy, to terminate this Agreement by giving written notice to Seller
on or before the Inspection Period Expiration Date (but no later than
3:00 p.m., Dallas, Texas time on the Inspection Period Expiration
Date), whereupon all of the provisions of this Agreement (except
Sections 5.3 and 6.4) shall terminate. Upon such termination, neither
Seller nor Purchaser shall have any further obligation or liability to
the other hereunder, except as provided in Sections 5.3 and 6.4 hereof,
and upon Purchaser's delivery to Seller of the Documents and
Purchaser's Information, the Earnest Money shall
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be returned to Purchaser, less the Independent Consideration which
shall be paid to Seller.
Section 5.5 Property Conveyed "AS IS".
(a) DISCLAIMER OF REPRESENTATIONS AND WARRANTIES BY SELLER.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IT
IS UNDERSTOOD AND AGREED THAT EXCEPT AS EXPRESSLY SET FORTH IN
SECTION 8.2 HEREOF, AND IN THE ENVIRONMENTAL CERTIFICATE TO BE
DELIVERED AT CLOSING, SELLER HAS NOT MADE AND IS NOT NOW
MAKING, AND SELLER SPECIFICALLY DISCLAIMS AND PURCHASER
WAIVES, ANY WARRANTIES, REPRESENTATIONS, OR GUARANTIES OF ANY
KIND OR CHARACTER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT, OR FUTURE, WITH RESPECT TO THE PROPERTY, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES, REPRESENTATIONS OR GUARANTIES
AS TO (I) MATTERS OF TITLE (OTHER THAN SELLER'S WARRANTY OF
TITLE SET FORTH IN THE DEED DESCRIBED IN SECTION 6.2(A)(IV) TO
BE DELIVERED AT CLOSING); (II) ENVIRONMENTAL MATTERS RELATING
TO THE PROPERTY OR ANY PORTION THEREOF; (III) GEOLOGICAL
CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE,
SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER
RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER AND
EARTHQUAKE FAULTS AND THE RESULTING DAMAGE OF PAST AND/OR
FUTURE EARTHQUAKES; (IV) WHETHER AND THE EXTENT TO WHICH, THE
REAL PROPERTY OR ANY PORTION THEREOF IS AFFECTED BY ANY STREAM
(SURFACE OR UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA,
FLOOD PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD; (V) DRAINAGE;
(VI) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF INSTABILITY,
PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL FILL,
OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY
UNDERSHORING; (VII) ZONING TO WHICH THE REAL PROPERTY OR ANY
PORTION THEREOF MAY BE SUBJECT; (VIII) THE AVAILABILITY OF ANY
UTILITIES TO THE PROPERTY OR ANY PORTION THEREOF, INCLUDING,
WITHOUT LIMITATION, WATER, SEWAGE, GAS, AND ELECTRIC; (IX)
USAGES OF ADJOINING PROPERTY; (X) ACCESS TO THE REAL PROPERTY
OR ANY PORTION THEREOF; (XI) THE VALUE, COMPLIANCE WITH THE
PLANS AND SPECIFICATIONS, SIZE, LOCATION, AGE, USE, DESIGN,
QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL INTEGRITY,
OPERATION, TITLE
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TO, OR PHYSICAL OR FINANCIAL CONDITION OF THE PROPERTY OR ANY
PORTION THEREOF, OR ANY INCOME, EXPENSES, CHARGES, LIENS,
ENCUMBRANCES, RIGHTS, OR CLAIMS ON OR AFFECTING OR PERTAINING
TO THE PROPERTY OR ANY PART THEREOF; (XII) THE PRESENCE OF
HAZARDOUS SUBSTANCES IN (AS DEFINED IN SECTION 5.5(C)) IN ON,
UNDER, OR IN THE VICINITY OF THE REAL PROPERTY; (XIII) THE
CONDITION OR USE OF THE PROPERTY OR COMPLIANCE OF THE PROPERTY
WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL, STATE OR
LOCAL ORDINANCES, RULES, REGULATIONS, OR LAWS, BUILDING FIRE
OR ZONING ORDINANCES, CODES OR OTHER SIMILAR LAWS; (XIV) THE
EXISTENCE OR NON-EXISTENCE OF UNDERGROUND STORAGE TANKS; (XV)
ANY OTHER MATTER AFFECTING THE STABILITY OR INTEGRITY OF THE
REAL PROPERTY; (XVI) THE POTENTIAL FOR FURTHER DEVELOPMENT OF
THE REAL PROPERTY; (XVII) THE EXISTENCE OF VESTED LAND USE,
ZONING, OR BUILDING ENTITLEMENTS AFFECTING THE REAL PROPERTY;
(XVIII) THE MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE
PROPERTY FOR ANY PARTICULAR PURPOSE (PURCHASER AFFIRMING THAT
PURCHASER HAS NOT RELIED ON SELLER'S SKILL OR JUDGMENT TO
SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND
THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY
PARTICULAR PURPOSE); OR (XIX) TAX CONSEQUENCES (INCLUDING, BUT
NOT LIMITED TO, THE AMOUNT, USE, OR PROVISIONS RELATING TO ANY
TAX CREDITS).
(b) SALE "AS IS". PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY
UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR
WARRANTY OF SELLER OR ANY OF ITS AGENTS AND ACKNOWLEDGES THAT
NO SUCH REPRESENTATIONS HAVE BEEN MADE, EXCEPT AS PROVIDED IN
SECTION 8.2 AND THE ENVIRONMENTAL CERTIFICATE. PURCHASER
REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED, AND
SOPHISTICATED PURCHASER OF REAL ESTATE AND THAT IT IS RELYING
SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER'S
CONSULTANTS IN PURCHASING THE PROPERTY. PURCHASER WILL CONDUCT
SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS
PURCHASER DEEMS NECESSARY, INCLUDING, BUT NOT LIMITED TO, THE
PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AND SHALL RELY
UPON SAME. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT
ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO,
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ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE
BEEN REVEALED BY PURCHASER'S INSPECTIONS AND INVESTIGATIONS
AND HEREBY WAIVES ANY CLAIM PURCHASER MAY HAVE (EXCEPT AS MAY
ARISE IN CONNECTION WITH THE ENVIRONMENTAL CERTIFICATE), NOW
OR IN THE FUTURE, IN CONNECTION WITH ANY SUCH ADVERSE MATTERS,
INCLUDING, WITHOUT LIMITATION, ANY RIGHT OF CONTRIBUTION.
PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER
SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT
THE PROPERTY "AS IS, WHERE IS," WITH ALL FAULTS. PURCHASER
FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL
AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR
AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY
THIRD PARTY. THE TERMS AND CONDITIONS OF THIS SECTION 5.5
SHALL EXPRESSLY SURVIVE THE CLOSING, AND NOT MERGE WITH THE
PROVISIONS OF ANY CLOSING DOCUMENTS. SELLER IS NOT LIABLE OR
BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS,
REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY
FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT,
OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR
REFERRED TO HEREIN. PURCHASER ACKNOWLEDGES THAT THE PURCHASE
PRICE REFLECTS THE "AS IS" NATURE OF THIS SALE AND ANY FAULTS,
LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE
ASSOCIATED WITH THE PROPERTY. PURCHASER HAS FULLY REVIEWED THE
DISCLAIMERS, ASSUMPTIONS, AND WAIVERS SET FORTH IN THIS
AGREEMENT WITH ITS COUNSEL AND UNDERSTANDS THE SIGNIFICANCE
AND EFFECT THEREOF. PURCHASER FURTHER ACKNOWLEDGES AND AGREES
THAT THE PROVISIONS OF THIS ARTICLE V AND IN PARTICULAR THIS
SECTION 5.5 ARE AN INTEGRAL PART OF THIS AGREEMENT AND THAT
SELLER WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO PURCHASER
FOR THE PURCHASE PRICE WITHOUT SUCH PROVISIONS.
(c) Hazardous Substances Defined. For purposes hereof, "HAZARDOUS
SUBSTANCES" means any hazardous, toxic or dangerous waste,
substance or material, pollutant or contaminant, as defined
for purposes of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Sections
9601 et seq.), as amended, or the Resource Conservation and
Recovery Act (42 U.S.C. Sections 6901 et seq.), as amended, or
any other federal, state, or local law, ordinance, rule, or
regulation applicable to the Property, or any substance which
is toxic,
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explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous, or any
substance which contains gasoline, diesel fuel or other
petroleum hydrocarbons, polychlorinated biphenyls (pcbs),
radon gas, urea formaldehyde, asbestos, lead or
electromagnetic waves.
Section 5.6 Investigative Studies.
As additional consideration for the transaction contemplated
herein, Purchaser agrees that it will provide to Seller,
immediately following the receipt of same by Purchaser, copies
of any and all reports, tests, or studies involving structural
or geologic conditions or environmental, hazardous waste, or
Hazardous Substances contamination of the Property which
reports, tests or studies shall be addressed to both Seller
and Purchaser; provided, however, Purchaser shall have no
obligation to cause any such tests or studies to be performed
on the Property. In the event that such reports, tests or
studies indicate that additional investigation may be
required, either Seller or Purchaser may request (at the cost
of the party requesting same) that such additional
investigation be completed, provided that neither Seller nor
Purchaser shall be obligated to undertake any such additional
investigation and either Purchaser or Seller shall be entitled
to terminate this Agreement rather than proceed with any such
additional investigation. No deadline or time period in this
Agreement shall be extended by virtue of any such additional
investigation. Seller hereby acknowledges that Purchaser has
not made and does not make any warranty or representation
regarding the truth or accuracy of any such studies or reports
and has not undertaken any independent investigation as to the
truth or accuracy thereof. Purchaser shall have no liability
or culpability of any nature as a result of having provided
such information to Seller or as a result of Seller's reliance
thereon. Purchaser shall be responsible for any and all costs,
claims, damages, and liabilities caused by any testing
performed or required by Purchaser.
Section 5.7 Purchaser Represented by Counsel.
Purchaser hereby represents and warrants to Seller that: (i)
Purchaser is not in a significantly disparate bargaining
position in relation to Seller; (ii) Purchaser is represented
by legal counsel in connection with the transaction
contemplated by this Agreement; and (iii) Purchaser is
purchasing the Property for business, commercial, investment,
or other similar purpose and not for use as Purchaser's
residence.
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ARTICLE VI.
CLOSING
Section 6.1 Closing Date.
The Closing shall be held in the offices of Closing Agent, or
such other location as may be mutually agreed upon by Seller
and Purchaser, at 10:00 a.m. (Dallas, Texas time) on the
fifteenth (15th) day following the Inspection Period
Expiration Date (the "CLOSING DATE"), or at such other time as
mutually agreed by Seller and Purchaser.
Section 6.2 Closing Matters.
(a) Seller's Deliveries. At Closing, expressly conditioned upon
Purchaser's performance of its obligations under Section
6.2(b), Seller shall deliver:
(i) possession of the Property, subject to the Permitted
Exceptions;
(ii) copies of all Permits, if any;
(iii) an executed and acknowledged special warranty deed
(the "DEED") in the form set forth in Exhibit B
conveying the Real Property subject to the Permitted
Exceptions;
(iv) a bill of sale in substantially the form of Exhibit C
(the "BILL OF SALE"), executed and acknowledged by
Seller, conveying without warranty the Personalty;
(v) an executed Assignment and Assumption of Warranties
in substantially the form of Exhibit E (the
"ASSIGNMENT OF WARRANTIES");
(vi) a certificate of Seller respecting the non-foreign
status of Seller in the form set forth in Exhibit D
attached hereto;
(vii) the originals of the Warranties, Service Contracts,
Plans and Permits in Seller's possession;
(viii) an executed Lease between Purchaser and Dave &
Buster's, Inc. ("TENANT") in the form attached hereto
as Exhibit F (the "LEASE");
(ix) an opinion of Seller's counsel, in form and substance
reasonably acceptable to Purchaser, concerning Tenant
and the Lease;
(x) the Environmental Certificate in substantially the
form of Exhibit G (the "ENVIRONMENTAL CERTIFICATE");
and
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(xi) such other documents as may be reasonably required by
Closing Agent or Purchaser, including, but not
limited to, documents evidencing the authority of
Seller to consummate the sale of the Property in
accordance with this Agreement and designating those
persons authorized to execute and deliver all
necessary documents at Closing.
(b) Purchaser's Deliveries. At Closing, expressly conditioned upon
Seller's performance of its obligations under Section 6.2(a),
Purchaser shall deliver:
(i) the remaining funds for the Purchase Price to the
Closing Agent, sent by wire transfer of immediately
available federal funds to the account designated by
Closing Agent and available for disbursement no later
than 11:00 a.m. (Dallas, Texas time) on the Closing
Date;
(ii) the Assignment of Warranties, duly executed and
acknowledged by Purchaser;
(iii) the Lease, duly executed and acknowledged by
Purchaser; and
(iv) such other documents as may be reasonably required by
Seller or Closing Agent, including, but not limited
to, a certified copy of documents evidencing the
authority of Purchaser to consummate the purchase of
the Property in accordance with this Agreement and
designating those persons authorized to execute and
deliver all necessary documents at Closing.
(c) Prorations. Ad valorem taxes will not be prorated. Tenant is
solely liable for all taxes under the Lease.
(d) Preparation of Documents. All of the documents that are not
attached hereto as exhibits to be executed at Closing shall be
in form prepared to the reasonable satisfaction of Seller and
Purchaser.
Section 6.3 Closing Costs.
Except as otherwise provided in Section 7.3, each party shall
be responsible for the payment of its own attorneys' fees
incurred in connection with the transaction that is the
subject of this Agreement. Any escrow fee charged by the Title
Company shall be paid by Seller. Except as otherwise expressly
and specifically provided to the contrary in this Section 6.3
or otherwise in this Agreement, Seller shall pay the filing
fees for recording the Deed, the basic premium for the Title
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Policy, the escrow fees, the cost of the updated Survey, and
shall reimburse Purchaser for reasonable third-party costs
actually incurred by Purchaser in its inspection of the
Property, but excluding any ADA review. Except as otherwise
expressly provided to the contrary in this Section 6.3 or
otherwise in this Agreement, Purchaser shall pay any and all
other costs, including, without limitation, one-half ( 1/2) of
the escrow fees, all premiums associated with extended
coverage or any endorsements to the Title Policy, and all
other closing costs of any nature and costs of any inspections
or tests Purchaser authorizes or conducts.
Section 6.4 Real Estate Commission.
Seller agrees to pay, at Closing, to Staubach Retail Services,
Inc. (the "BROKER"), a real estate commission in accordance
with a separate written contract. Seller and Purchaser each
represent and warrant to the other that no real estate
brokerage commission is payable to any person or entity in
connection with the transaction contemplated hereby (other
than as described above in this Section 6.4), and each agrees
to and does hereby indemnify and hold the other harmless
against the payment of any commission to any person or entity
(other than as described above in this Section 6.4) claiming
by, through or under Seller or Purchaser, as applicable. This
indemnification shall extend to any and all claims,
liabilities, costs, and expenses (including reasonable
attorneys' fees and litigation costs) arising as a result of
such claims and shall survive the Closing.
ARTICLE VII.
REMEDIES
Section 7.1 Seller's Remedies.
Other than the matters provided in Sections 5.3 and 6.4
hereof, in the event Purchaser fails to perform any of its
obligations pursuant to this Agreement for any reason except
failure by Seller to perform hereunder, Seller, as its sole
and exclusive remedy, shall be entitled to terminate this
Agreement and recover the Earnest Money as liquidated damages
and not as penalty, in full satisfaction of claims against
Purchaser hereunder. Seller and Purchaser agree that the
Seller's damages resulting from Purchaser's default are
difficult, if not impossible, to determine and the Earnest
Money is a fair and reasonable estimate of those damages which
has been agreed to in an effort to cause the amount of said
damages to be certain.
Section 7.2 Purchaser's Remedies.
In the event Seller fails to perform its obligations pursuant
to this Agreement (other than a breach of representation or
warranty) for any reason except failure by Purchaser to
perform hereunder, Purchaser may elect, as its sole remedy (i)
to
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terminate this Agreement by giving Seller timely written
notice of such election prior to or at Closing and recover the
Earnest Money in accordance with Section 7.4 (less the
Independent Consideration which shall be paid to Seller), and
recover the Default Payment (as hereinafter defined) or (ii)
seek the remedy of specific performance against Seller. As
used herein, "DEFAULT PAYMENT" shall mean a sum of money equal
to Purchaser's third party expenses actually incurred in the
negotiation of this Agreement, its due diligence regarding the
Property, and all other expenses attributable to this
Agreement to the date of Seller's default, not to exceed
$50,000. In the event that Purchaser elects to recover the
Default Payment, it shall have first given Seller ten (10)
days' written notice and opportunity to cure its default
(except for failure to convey title at Closing). In the event
of a material breach of representation or warranty by Seller
discovered by Purchaser after Closing, Purchaser's remedies
are limited to those described in Section 8.4. IN NO EVENT
SHALL SELLER, ITS DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS,
OWNERS, OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE,
ATTORNEY, OR AGENT OF THE FOREGOING, OR ANY AFFILIATE OR
CONTROLLING PERSON THEREOF HAVE ANY LIABILITY, BEYOND ITS
INTEREST IN THE REAL PROPERTY, FOR ANY CLAIM, CAUSE OF ACTION,
OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON
LAW, STATUTE, EQUITY, OR OTHERWISE (COLLECTIVELY, THE
"CLAIMS"), AND PURCHASER HEREBY WAIVES THE CLAIMS.
Section 7.3 Attorneys' Fees.
In the event either party hereto is required to employ an
attorney in connection with claims by one party against the
other arising from the operation of this Agreement, the
non-prevailing party shall pay the prevailing party all
reasonable fees and expenses, including attorneys' fees,
incurred in connection with such transaction.
Section 7.4 Disposition of Earnest Money.
In the event of a termination of this Agreement by either
Seller or Purchaser, Closing Agent is authorized to deliver
the Earnest Money to the party hereto entitled to same
pursuant to the terms hereof on or before the fifth (5th) day
following receipt by the Closing Agent and non-terminating
party of written notice of such termination from the
terminating party, unless the other party hereto notifies the
Closing Agent that it disputes the right of the other party to
receive the Earnest Money. In such event, the Closing Agent
may interplead the Earnest Money into a court of competent
jurisdiction in Dallas County, Texas. All attorneys' fees and
costs and Closing Agent's costs and expenses incurred in
connection with such interpleader shall be assessed against
the party that is not
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awarded the Earnest Money or if the Earnest Money is
distributed in part to both parties, then in the inverse
proportion of such distribution.
ARTICLE VIII.
REPRESENTATIONS, WARRANTIES, AND COVENANTS
Section 8.1 Purchaser's Representations and Warranties.
(a) Authority of Purchaser. Purchaser represents and warrants that
Purchaser has full right, power, and authority to enter into
this Agreement and, at Closing, will have full right, power
and authority to consummate the sale provided for herein.
(b) No Bankruptcy or Receivership.
That at no time on or before the Closing Date, shall any of
the following have occurred with respect to Purchaser, and if
Purchaser is a partnership, to any general partners of
Purchaser: (i) the commencement of a case under Title 11 of
the United States Code, as now constituted or hereafter
amended, or under any other applicable federal or state
bankruptcy law or other similar law; (ii) the appointment of a
trustee or receiver of any property interest; (iii) an
assignment for the benefit of creditors; (iv) an attachment,
execution or other judicial seizure of a substantial property
interest; (v) the taking of, failure to take, or submission to
any action indicating an inability to meet its financial
obligations as they accrue; or (vi) a dissolution or
liquidation, death or incapacity.
Section 8.2 Seller's Representations and Warranties.
(a) Seller is a Missouri corporation validly existing and in good
standing, and Seller is qualified to do business in all states
in which qualification is necessary to conduct its business,
and has the authority to execute this Agreement and conclude
the transactions contemplated therein.
(b) There is no pending or, to the knowledge of Seller, threatened
condemnation or similar proceeding or special assessment
(inclusive of assessments for street widening, repair, or
improvement), or change in zoning affecting the Real Property.
(c) Seller has received no written notice concerning the Property
from any Governmental Authority (as defined below in this
Section 8.2) about a violation of any federal, state, county,
or city statute, ordinance, code, rule, or regulation or
stating that any investigation has commenced or is
contemplated regarding any violation.
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(d) There is no pending or, to Seller's knowledge, threatened
litigation or administrative proceeding affecting the
ownership or use of the Property.
(e) There are no attachments, executions, assignments for the
benefit of creditors, or voluntary or involuntary proceedings
in bankruptcy or under other debtor relief laws contemplated
by, pending, or threatened against Seller.
(f) Seller has no reason to believe that any of the Documents are
materially false or misleading.
The term "GOVERNMENTAL AUTHORITY" means the United States of
America, the state, county, and city where the Property is
located, and any other political subdivision in which the
Property is located or which exercises jurisdiction over the
Property, and any agency, department, commission, board,
bureau, property owners association, utility district, flood
control district, improvement district, or similar district,
or other instrumentality of any of them.
Section 8.3 Seller's Covenants. Seller hereby covenants and agrees with
Purchaser as follows:
(a) At all times from the Effective Date until the Closing Date,
Seller shall maintain (or cause to be maintained, in
accordance with the terms of the Lease) in force, fire and
extended coverage insurance upon the Real Property for not
less than the full replacement value of the Real Property, and
commercial general liability insurance with respect to injury
or death to persons and damage to property in an amount not
less than $1,000,000; and
(b) Prior to the Closing, Seller shall maintain the Improvements
in their present condition and repair, except for normal wear
and tear and any casualty or condemnation, and Seller shall
not remove any fixtures, equipment, furnishings and other
personalty from the Improvements without replacing them with
new items.
Section 8.4 Survival of Representations and Warranties.
Except as otherwise expressly set forth herein, the representations and
warranties set forth in Section 8.2 shall be continuing and shall be
true and correct on and as of the Closing Date with the same force and
effect as if made at that time, and such representations and warranties
shall survive the Closing for a period of one (1) year, at which time
they shall expire and terminate and be of no further force and effect
unless a claim for breach thereof has been instituted within such one
(1) year period; PROVIDED, HOWEVER, Purchaser shall have the right to
bring an
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action thereon only if Purchaser has given the Seller written notice of
the circumstances giving rise to the alleged breach within such one (1)
year period. Purchaser hereby waives and relinquishes all right to seek
punitive or consequential damages.
Section 8.5 Knowledge Standard.
For purposes of this Agreement, wherever the terms "SELLER'S KNOWLEDGE"
or "TO THE BEST OF SELLER'S KNOWLEDGE" is used, it shall be limited to
the actual knowledge (being the current, conscious awareness of facts
or other information, without investigation or implied duty to
investigate) of Chas Michel, John Davis, and Bryan Spain (the "SELLER
REPRESENTATIVES"); provided, however, the foregoing individuals are
acting for and on behalf and in their respective capacities as officers
of Seller or one or more of Seller's affiliates and are in no manner
expressly or impliedly making any of these representations in their
individual capacities and Purchaser hereby waives any right to sue or
to seek any judgment or claim against any of them on an individual
basis. The term "TO SELLER'S KNOWLEDGE" or "TO THE BEST OF SELLER'S
KNOWLEDGE" shall not include knowledge imputed to the Seller from any
other person. Seller represents and warrants to Purchaser that the
Seller Representatives are the employees of Seller most likely to be
informed as to the Property.
ARTICLE IX.
CONDEMNATION
Section 9.1 Condemnation.
If, prior to Closing, any governmental authority or other entity having
condemnation authority shall institute an eminent domain proceeding or
take any steps preliminary thereto (including the giving of any direct
or indirect notice of intent to institute such proceedings) with regard
to a Material Portion (as hereinafter defined) of the Real Property,
and the same is not dismissed on or before ten (10) days prior to
Closing, Purchaser shall be entitled, as its sole remedy, to terminate
this Agreement by giving written notice to Seller on or before the
earlier to occur of (a) ten (10) days following notice by Seller to
Purchaser of such condemnation, or (b) the Closing Date. In the event
Purchaser does not terminate this Agreement pursuant to the preceding
sentence, Purchaser shall be conclusively deemed to have elected to
close the acquisition of the Property subject to such condemnation,
without any reduction in Purchase Price, and waives any right to
terminate this Agreement as a result thereof. For purposes of this
Section 9.1, a "MATERIAL PORTION" shall mean that portion of the Real
Property which, if taken or condemned, would reduce the value of the
Property by not less than $250,000.00. Notwithstanding anything to the
contrary herein, if any eminent domain proceeding is instituted (or
notice of which is given) solely for the taking of any subsurface
rights for utility easements or for any right-of-way
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easement, and the surface may, after such taking, be used in
substantially the same manner as though such rights had not been taken,
Purchaser shall not be entitled to terminate this Agreement as to any
part of the Real Property, but any award resulting therefrom shall be
the exclusive property of Purchaser upon Closing. In the event
Purchaser elects to terminate this Agreement under this Section 9.1,
the Earnest Money (less the Independent Consideration) shall be
returned to Purchaser, and neither party to this Agreement shall
thereafter have any further rights or obligations hereunder except as
otherwise provided in Sections 5.3 and 6.4 hereof. If Purchaser waives
(or is deemed to have waived) the right to terminate this Agreement as
a result of such a condemnation, despite such condemnation, Seller and
Purchaser shall close this Agreement in accordance with the terms
hereof with no reduction in the Purchase Price, and Seller shall assign
to Purchaser at Closing all of Seller's right, title and interest in
and to all proceeds resulting or to result from said condemnation.
ARTICLE X.
RISK OF LOSS
Section 10.1 Risk of Loss.
Until Closing, Seller alone shall bear the risk of loss should there be
damage to any of the Improvements by fire or other casualty
(collectively, "CASUALTY"). If, prior to the Closing, any of the
Improvements shall be damaged by a Casualty, Seller shall deliver to
Purchaser written notice ("CASUALTY LOSS NOTICE") of such Casualty
after it has made its determination provided for in Section 10.2
hereof.
Section 10.2 Material Loss.
For the purposes of Sections 10.2 and 10.3, "MATERIAL DAMAGE" shall
mean damage to the Improvements of such nature that the cost of
restoring the same to their condition prior to the Casualty will, in
Seller's determination, exceed $250,000.00, whether or not such damage
is covered by insurance. If, in Seller's determination, the
Improvements have sustained Material Damage by a Casualty, Seller may,
at its option, terminate this Agreement by delivering written notice to
Purchaser on or before Closing, and neither party hereto shall have any
further rights or obligations hereunder (except pursuant to Sections
5.3 and 6.4 hereof). In the event Seller does not so terminate this
Agreement, Purchaser may, at its sole option, within fifteen (15) days
after delivery of the Casualty Loss Notice, either (a) terminate this
Agreement by delivering written notice of same to Seller, or (b) waive
its right of termination and proceed to close this transaction in
accordance with the terms hereof without reduction to the Purchase
Price (the "WAIVER OPTION"). Failure of Purchaser to deliver written
notice of termination within said fifteen (15) day period shall be
conclusively deemed to be an election by Purchaser of the Waiver
Option. In the event Seller or Purchaser elects to terminate this
Agreement under this Section 10.2, the Earnest Money (less the
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Independent Consideration) shall be returned to Purchaser and
thereafter neither party to this Agreement shall thereafter have any
further rights or obligations hereunder, except as otherwise provided
in Sections 5.3 and 6.4 hereof. If Purchaser elects the Waiver Option,
then Seller shall repair the Improvements to substantially their
condition prior to such damage.
Section 10.3 Non-Material Loss.
In the event, in Seller's determination, the Improvements have
sustained less than Material Damage by a Casualty, the rights and
obligations of the parties shall not be affected thereby and Seller
shall repair the Improvements to substantially their condition prior to
such damage.
Section 10.4 Delay in Completion of Repairs.
If Seller has undertaken repairs and if the repairs cannot be completed
by the Closing Date, Seller shall postpone the Closing Date until five
(5) days following substantial completion of the repairs.
Section 10.5 Postponement of Closing.
If, as a result of a Casualty any determination, election or agreement
required by the terms of this Article X is not made by the Closing
Date, the Closing Date shall be extended until twenty (20) days after
said determination, election or agreement is made, subject to such
further extension as may be allowed by the terms of this Article X,
notwithstanding anything in Section 6.1 of this Agreement to the
contrary; provided, however, if said determination, election or
agreement has not been made within thirty (30) days following the
originally scheduled Closing Date, this Agreement shall automatically
terminate, and neither party shall have any further rights or
obligations hereunder (except pursuant to Sections 5.3 and 6.4 hereof)
and the Earnest Money (less the Independent Consideration) shall be
returned to Purchaser.
ARTICLE XI.
MISCELLANEOUS
Section 11.1 Entire Agreement.
This Agreement contains the entire agreement of the parties hereto.
There are no other agreements, oral or written, and this Agreement can
be amended only by written agreement signed by the parties hereto, and
by reference, made a part hereof.
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Section 11.2 Agreement Binding on Parties; Assignment.
This Agreement, and the terms, covenants, and conditions herein
contained, shall inure to the benefit of and be binding upon the heirs,
personal representatives, successors, and assigns of each of the
parties hereto. Purchaser may assign its rights under this Agreement
only upon the following conditions: (i) all of the Earnest Money must
have been delivered in accordance with Section 2.2, (ii) the Inspection
Period shall be deemed to have ended, (iii) Purchaser shall remain
primarily liable for the performance of Purchaser's obligations, and
(iv) a copy of the fully executed written assignment and assumption
agreement along with the taxpayer identification number of the proposed
assignee, shall be delivered to Seller at least ten (10) days prior to
Closing. No transfer or assignment in violation of this Section 11.2 is
valid or enforceable.
Section 11.3 Effective Date.
The Effective Date of this Agreement shall be the date on which the
Closing Agent acknowledges its receipt of a copy of this Agreement
executed by both Seller and Purchaser and receipt of the Earnest Money.
The execution hereof by Seller shall constitute an offer by Seller to
Purchaser to sell the Property on the terms and conditions herein
stated, which must be accepted by Purchaser on or before September 26,
2001. If Seller's offer is not timely accepted, this Agreement shall
thereafter be null and void.
Section 11.4 Notice.
All notices, requests, approvals, consents, and other communications
required or permitted under this Agreement ("NOTICES") must be in
writing and are effective:
(a) on the business day sent if (i) sent by telecopier prior to
5:00 p.m. Dallas, Texas time, (ii) the sending telecopier
generates a written confirmation of sending, and (iii) a
confirming copy is sent on the same business day by one of the
other methods specified below.
(b) on the next business day after delivery, on a business day, to
a nationally recognized overnight courier service for prepaid
overnight delivery.
(c) 3 days after being deposited in the United States mail,
certified, return receipt requested, postage prepaid, or
(d) upon receipt if delivered by any method other than the methods
specified above.
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All Notices must be sent to the address for each party
specified below or to any other address any party specifies by
ten (10) days' prior notice to the other party.
Seller: Dave & Buster's, Inc.
2481 Manana Drive
Dallas, Texas 75220
Attn: Chas Michel
Fax: (214) 357-1536
Email: chas_michel@daveandbusters.com
With a copy to: Kane, Russell, Coleman & Logan, P.C.
3700 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Attn: Scott A. Dyche
Fax: (214) 777-4299
Email: sdyche@krcl.com
and to: Staubach Retail Services, Inc.
15601 Dallas Parkway
Suite 400
Addison, Texas 75001
Attn: Mike Holsomback
Fax: (972) 361-5909
Email: holsomback@staubach.com
Purchaser: General Electric Capital Business
Asset Funding Corporation
10900 NE 4th Street, Suite 500
Bellevue, Washington 98004
Attn: Patrick J. Pearson
Fax: (425) 450-3498
Email: pat.pearson@gecapital.com
With a copy to: Dechert Price & Rhoads
Ten Post Office Square South
Boston, Massachusetts 02109
Attn: Lewis A. Burleigh
Fax: (617) 426-6567
Email: lewis.burleigh@dechert.com
Closing Agent/ Republic Title of Texas, Inc.
Title Company: 2626 Howell Street
Tenth Floor
Dallas, Texas 75204
Attn: Paulette Hubbard
Fax: (214) 855-8889
Email: phubbard@republictitle.com
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Section 11.5 Time of the Essence.
Time is of the essence in all things pertaining to the performance of
this Agreement.
Section 11.6 Place of Performance.
This Agreement is made and shall be performable in Dallas, Texas, and
shall be construed in accordance with the laws of the State of Texas,
without regard to principles of conflicts of law, unless otherwise
expressly stated herein.
Section 11.7 Currency.
All dollar amounts are expressed in United States currency.
Section 11.8 Section Headings.
The section headings contained in this Agreement are for convenience
only and shall in no way enlarge or limit the scope or meaning of the
various and several sections hereof.
Section 11.9 Obligations.
To the extent necessary to carry out the terms and provisions hereof,
and unless otherwise specifically provided elsewhere herein, the terms,
conditions, obligations and rights set forth herein shall not be deemed
terminated at the time of Closing, nor will they merge into the various
documents executed and delivered at the time of Closing.
Section 11.10 Business Days.
In the event that any date or any period provided for in this Agreement
shall end on a Saturday, Sunday, or legal holiday in the state defined
in Section 11.6 hereof, the applicable date or period shall be extended
to the first business day following such Saturday, Sunday, or legal
holiday.
Section 11.11 No Recordation.
Without the prior written consent of Seller, there shall be no
recordation of either this Agreement or any memorandum hereof, or any
affidavit pertaining hereto and
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any such recordation of this Agreement or memorandum hereto by
Purchaser without the prior written consent of Seller shall constitute
a default hereunder by Purchaser, whereupon this Agreement shall, at
the option of Seller, terminate and be of no further force and effect.
Upon termination, all Earnest Money shall be immediately delivered to
Seller, whereupon the parties shall have no further duties or
obligations one to the other except as provided in Sections 5.3 and
6.4.
Section 11.12 Multiple Counterparts.
This Agreement may be executed in multiple counterparts, each of which
is to be deemed an original for all purposes. This Agreement may be
executed by facsimile signature.
Section 11.13 Severability.
If any provision of this Agreement or application to any party or
circumstance shall be determined by any court of competent jurisdiction
to be invalid and unenforceable to any extent, the remainder of this
Agreement or the application of such provision to such person or
circumstances, other than those as to which it is so determined invalid
or unenforceable, shall not be affected thereby, and each provision
hereof shall be valid and shall be enforced to the fullest extent
permitted by law.
Section 11.14 Taxpayer ID.
Purchaser's Taxpayer ID Number is (to be provided prior to Closing).
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Section 11.15 Section 1031 Exchange.
Purchaser may elect, upon notice to Seller given prior to the
Closing Date, to exchange the fee title in the Property for other
property of like kind and qualifying use within the meaning of Section
1031 of the Internal Revenue Code of 1986, as amended, and the
Regulations promulgated thereunder (the "1031 EXCHANGE TRANSACTION").
In order to facilitate the 1031 Exchange Transaction, Purchaser may
retain the services of a Qualified Intermediary within the meaning of
Treas. Reg. 1.1031(k)-1(g)(4), which shall provide services to
Purchaser in connection with Purchaser's 1031 Exchange Transaction.
Purchaser expressly reserves the right to assign its rights under this
Agreement to a Qualified Intermediary on or before the Closing Date.
However, this assignment in no way relieves Purchaser of any
obligations or duties under this Agreement. By executing this
Agreement, Seller agrees to cooperate with Purchaser and the Qualified
Intermediary, at no additional cost to Seller, to effect the 1031
Exchange Transaction and to execute and deliver any and all documents
which reasonably may be required to effect the 1031 Exchange
Transaction.
SELLER:
DAVE & BUSTER'S, INC.,
a Missouri corporation
DATE: September 26, 2001 By: /s/ Chas Michel
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Name: Chas Michel
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Title: Chief Financial Officer
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25
<PAGE>
PURCHASER:
GENERAL ELECTRIC CAPITAL BUSINESS
ASSET FUNDING CORPORATION
DATE: September 25, 2001 By: /s/ Linda K. Bracken
--------------------------------------
Name: Linda K. Bracken
------------------------------------
Title: Vice President
-----------------------------------
<PAGE>
JOINDER BY CLOSING AGENT
Republic Title of Texas, Inc., referred to in this Agreement as the
Closing Agent hereby acknowledges that it received this Agreement executed by
Seller and Purchaser and the Earnest Money on the 1st day of October, 2001 (the
"EFFECTIVE DATE"), and accepts the obligations of the of the Closing Agent as
set forth herein. The Closing Agent hereby agrees to hold and distribute the
Earnest Money in accordance with the terms and provisions of this Agreement.
REPUBLIC TITLE OF TEXAS, INC.
By: /s/ Carol Hall
------------------------------------
Name: Carol Hall
----------------------------------
Title: Escrow Officer
---------------------------------