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Home My WebLink AboutResolution No. 2013-068CITY OF THE COLONY, TEXAS RESOLUTION NO. 2013-068 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, AUTHORIZING AND APPROVING THE EXECUTION OF AN AGREEMENT OF SALE AND PURCHASE, AND ALL NECESSARY DOCUMENTS BY AND BETWEEN THE COLONY COMMUNITY DEVELOPMENT CORPORATION, A TEXAS NON- PROFIT CORPORATION, THE COLONY ECONOMIC DEVELOPMENT CORPORATION, A TEXAS NON-PROFIT CORPORATION, THE COLONY LOCAL DEVELOPMENT CORPORATION, A TEXAS NON- PROFIT CORPORATION AND ATLANTIC HOTELS LTD, CONCERNING THE CONVEYANCE OF AN APPROXIMATELY 5.46 -ACRE TRACT OF LAND TO ATLANTIC HOTELS, LTD., CONSISTENT WITH SAID AGREEMENT OF SALE AND PURCHASE; PROVIDING A SEVERABILITY CLAUSE; AND PROVIDING FOR AN IMMEDIATE EFFECTIVE DATE. WHEREAS, The Colony Community Development Corporation (the "CDC") is a Type B economic development corporation, and a Texas non-profit corporation, operating pursuant to Chapter 505 of the Texas Local Government Code, as amended; and WHEREAS, The Colony Economic Development Corporation (the "EDC") is a Type A economic development corporation, and a Texas non-profit corporation, operating pursuant to Chapter 504 of the Texas Local Government Code, as amended; and WHEREAS, The Colony Local Development Corporation (the "LDC") has been created and organized as a public, nonprofit local government corporation incorporated pursuant to Subchapter D of Chapter 431, Texas Transportation Code, as amended to aid, assist and act on behalf of the City of The Colony, Texas (the "City") in the performance of the City's governmental functions; and WHEREAS, pursuant to that certain Correction Special Warranty Deed recorded on February 20, 2013, at Denton County, Texas, Instrument Number 2013-20492, the CDC owns an undivided 2.8 percent interest in that certain 5.464 -acre tract of land (the "Property"), the EDC owns an undivided 2.8 percent interest in the Property, and the LDC owns an undivided 94.4 percent interest in the Property that is the subject of the Agreement of Sale and Purchase with Atlantic Hotels Ltd. (the "Grantee") attached hereto as Exhibit A, and incorporated herein for all purposes (the "Contract"); and WHEREAS, the CDC, EDC, and LDC intend to convey the Property to the City, and intends for the City to convey the Property to the Grantee pursuant to the Private Transfer Agreement attached as Exhibit B to the Contract (the "Private Transfer Agreement"); and WHEREAS, the sale of the Property is part of the Related Development as such term is WHEREAS, the sale of the Property is part of the Related Development as such term is defined in the Final Project and Finance Plan for Tax Increment Reinvestment Zone Number One, City of The Colony, Texas (the "Zone"); and WHEREAS, the sale of the Property is on terms and conditions the City Council considers advisable pursuant to Section 311.008(b)(2) of the Texas Tax Code; and WHEREAS, the sale serves the public purpose of attracting new business and commercial activity to the Zone for the purpose of providing long-term economic benefits including, but not limited to, increases in the real property tax base for all taxing units within the Zone, increases in sales and use tax for the City and the State of Texas, and increased job opportunities for residents of the City, Denton County, and the region all of which benefit the Zone and the City; and WHEREAS, the described public purpose and the monetary consideration described in the Contract are adequate consideration for the sale of the Property; and WHEREAS, the consideration being paid pursuant to the Contract will be deposited into the tax increment fund of the Zone consistent with the following: (a) the Final Project and Finance Plan for the Zone; (b) the Development and Tax Increment Payment Agreement for the Zone entered into by the City, the Board of Directors of the Zone, the CDC, LMG Ventures, LLC, and TxFM, Inc.; and (c) Texas Tax Code Section 311.014(a); and WHEREAS, the obligations contained in that certain Development and Tax Increment Payment Agreement approved by the City on November 15, 2011, are independent performance obligations subject to the penalties described in such agreement and as such are not impacted by the Contract; and WHEREAS, the consideration under the Contract satisfies the following public purposes: (a) transfer of the Property will contribute to the production of income by the Grantee; (b) the transfer of the Property is not in exchange for goods or services provided; (c) the transfer of the Property is intended to induce the Grantee to build and operate its business in the City; (d) the transfer of the Property is intended to obtain from the Grantee their investment commitment to undertake permanent business operations in the City; (e) the transfer of the Property is intended as contributions to capital to attract businesses to locate to and operate within the City; (f) the transfer of the Property results in an indirect benefit to the community in the form of increased jobs, sales tax revenues, and ad valorem tax revenues; and (g) the transfer of the Property is necessary to promote or develop new or expanded business enterprises. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THAT: SECTION 1. The findings set forth above are hereby found to be true and correct findings of the City and are incorporated into the body of this Resolution as if fully set forth herein. Page 2 SECTION 2. The City Council of the City of The Colony, Texas, does hereby approve and authorize the Presidents or Vice -Presidents of the LDC, EDC, and CDC to execute the Agreement of Sale and Purchase, by and between the LDC, EDC, and CDC, and Atlantic Hotels Ltd.., a copy of which is attached hereto as Exhibit A, and is incorporated herein for all purposes. SECTION 3. The City Council of the City of The Colony, Texas, does hereby approve and authorize the Mayor of the City, and Presidents or Vice -Presidents of the LDC, EDC, and CDC to execute any and all documents necessary for the conveyance of the Property to Atlantic Hotels Ltd., consistent with said Agreement of Sale and Purchase. SECTION 4. If any section, article paragraph, sentence, clause, phrase or word in this Resolution, or application thereto to any persons or circumstances, is held invalid or unconstitutional by a Court of competent jurisdiction, such holding shall not affect the validity of the remaining portions of this Resolution; and the City Council hereby declares it would have passed such remaining portions of this Resolution despite such invalidity, which remaining portions shall remain in full force and effect. SECTION 5. This Resolution shall become effective immediately upon passage. PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS, THIS 17th day of DECEMBER, 2013. 4� 'Z eil, J Mcc , Mayor ATTEST C ie Wilson, City Secretary APPROVED AS TO FORM: Page 2 ExhibitA Agreement of Sale and Purchase AGREEMENT OF SALE AND PURCHASE by and between THE COLONY LOCAL DEVELOPMENT CORPORATION a Texas non-profit corporation, THE COLONY ECONOMIC DEVELOPMENT CORPORATION a Texas non-profit corporation, THE COLONY COMMUNITY DEVELOPMENT CORPORATION a Texas non-profit corporation, collectively as Seller, and ATLANTIC HOTELS LTD., a Texas corporation, as Purchaser 2539274 v11(79024.00002.005) 1775.010136652.2 TABLE OF CONTENTS Page ARTICLE I. Sale and Purchase: Property...................................................................................... 1 Section 1.1 Sale and Purchase....................................................................................... 1 ARTICLEII. Consideration............................................................................................................ 2 Section 2.1 Purchase Price............................................................................................. 2 Section 2.2 Earnest Money............................................................................................ 2 ARTICLEIII. Survey..................................................................................................................... 3 Section3.1 Survey......................................................................................................... 3 ARTICLEIV. Title......................................................................................................................... 4 Section 4.1 Title Commitment....................................................................................... 4 ARTICLEV. 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................................................................................... 8 Section 5.5 Property Conveyed "AS IS", "WHERE IS" ................................................ 8 Section 5.6 Investigative Studies................................................................................. 13 Section 5.7 Purchaser Represented by Counsel........................................................... 13 Section 5.8 Termination Rights and Earnest Money ................................................... 13 ARTICLEVI. Closing.................................................................................................................. 13 Section6.1 Closing Date.............................................................................................. 13 Section 6.2 Closing Matters......................................................................................... 14 Section6.3 Closing Costs............................................................................................ 15 Section 6.4 Real Estate Commission........................................................................... 15 ARTICLEVII. Remedies............................................................................................................. 15 Section 7.1 Seller's Remedies...................................................................................... 15 Section 7.2 Purchaser's Remedies................................................................................ 16 Section 7.3 Attorneys' Fees.......................................................................................... 16 Section 7.4 Disposition of Earnest Money.................................................................. 17 ARTICLE VIII. Representations, Warranties, and Covenants..................................................... 17 Section 8.1 Purchaser's Representations and Warranties ............................................. 17 Section 8.2 Seller's Representations and Warranties ................................................... 18 Section 8.3 Survival of Representations and Warranties ............................................. 19 1 2539274 v12 (79024.00002.005) 1775.010\36652.2 ARTICLEIX. Condemnation....................................................................................................... 20 Section9.1 Condemnation........................................................................................... 20 ARTICLEX. Miscellaneous......................................................................................................... 20 Section 10.1 Entire Agreement...................................................................................... 20 Section 10.2 Agreement Binding on Parties; Assignment ............................................. 20 Section 10.3 Assigns; Beneficiaries............................................................................... 21 Section10.4 Effective Date........................................................................................... 21 Section10.5 Notice........................................................................................................ 21 Section 10.6 Time of the Essence.................................................................................. 23 Section 10.7 Place of Performance; Choice of Law; Jurisdiction and Venue ............... 23 Section10.8 Currency....................................................................... 23 Section 10.9 ..................... ........ Section Headings...................................................................................... 23 Section10.10 Business Days........................................................................................... 23 Section 10.11 No Recordation......................................................................................... 23 Section 10.12 Multiple Counterparts............................................................................... 23 Section10.13 Severability............................................................................................... 23 Section10.14 Taxpayer ID Section 10.15 .............................................................................................. Right of Repurchase ............................................. 24 Section 10.16 Right of First Refusal................................................................................ 25 Section 10.17 Radius Restriction..................................................................................... 26 Section 10.18 Use of Property......................................................................................... 26 Section 10.19 Public Incentives ....................................................................................... 27 Section 10.20 Development Improvements..................................................................... 27 Section 10.21 Subdivision............................................................................................... 27 Exhibits Exhibit A - Legal Description of Land Exhibit A -I - Site Plan Exhibit B - Deed Exhibit C - Certificate of Non -Foreign Status 11 2539274 v11 (79024.00002.005) 1775.010\36652.2 AGREEMENT OF SALE AND PURCHASE THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement") is made by and between THE COLONY LOCAL DEVELOPMENT CORPORATION, a Texas non-profit corporation, THE COLONY ECONOMIC DEVELOPMENT CORPORATION, a Texas non-profit corporation and THE COLONY COMMUNITY DEVELOPMENT CORPORATION, a Texas non-profit corporation (collectively, the "Seller") and ATLANTIC HOTELS LTD., a Texas corporation (the "Purchaser"). RECITALS A. Seller (or Seller's permitted designee, pursuant to Section 10.19 of this Agreement) desires to sell and Purchaser (or Purchaser's permitted assignee pursuant to Section 10.3 of this Agreement) desires to purchase the property described in Section 1.1 below, on the terms and conditions hereinafter set forth; B. Seller and Purchaser acknowledge that Seller collectively owns a one hundred percent (100%) undivided interest in the Property (as hereinafter defined), as such interest is described in that certain Correction Special Warranty Deed recorded on February 20, 2013, at Denton County, Texas, Instrument Number 2013-20492 and that, prior to Closing (as hereinafter defined), The Colony Local Development Corporation may, but shall not be obligated, to acquire all of the undivided ownership interest of both The Colony Economic Development Corporation and The Colony Community Development Corporation in the Property, such that from and after said transfer and prior to any assignment to the City as described in Paragraph C below, The Colony Local Development Corporation alone shall be deemed to be Seller hereunder; C. Seller and Purchaser acknowledge that prior to the closing described in Section 2.1 below, Seller shall transfer the Property to The City of the Colony (the "City") using the form of public transfer agreement attached to that certain bond validation suit order dated January 18, 2012, issued by the 53'd Judicial District Court of Travis County, Texas, in Cause No. 0 -1 -GV -1 1-00 1995 (the "Bond Validation Suit Order") and in connection with said transfer, Seller shall assign all of its interest in this Agreement to the City which, from and after the date of said assignment, shall be deemed to be "Seller" hereunder and bound by all the terms and conditions of this Agreement; and D. 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 (or cause the sale and conveyance to Purchaser), and Purchaser agrees to purchase and accept from Seller or its designee, subject to the Permitted Exceptions (as defined in Section 4.1(c)), and the terms, covenants, conditions, and provisions herein set forth, the following: 2539274 v12(79024,00002.005) 1775.010\36652.2 (a) All of that certain land totaling approximately 238,048 square feet located on Plano Parkway in The Colony, Denton County, Texas, as more generally shown on Exhibit A-1 attached hereto (the "Land" or the "Real Property"); and (b) 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"). The items described in (a) and (b) of this Section 1.1 are hereinafter collectively called the "Property". Upon determination of the metes and bounds description of the Land in accordance with Section l.l., as evidenced by the Survey which has been approved by Seller and Purchaser, such metes and bounds description of the Land shall be attached hereto as Exhibit "A". Notwithstanding the foregoing, the Property shall not include all oil, gas and other hydrocarbons previously reserved by a prior owner in or under and that may be produced from the Land (the "Reserved Minerals"). Purchaser acknowledges that Property is situated within and is a portion of NFM West Grandscape (the "Development"), which is depicted on the site plan attached hereto as Exhibit A-1 (the "Site Plan"). 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 Two Million One Hundred Forty Two Thousand Four Hundred Thirty -Two and 00/100 Dollars ($2,142,432.00), which has been determined based upon a price of Nine and 00/100 Dollars ($9.00) per square foot of real property constituting the Property. Notwithstanding the foregoing, however, in the event that the square footage of the Property shall be more or less than 238,048 square feet, as finally determined upon completion of the Survey, the Purchase Price shall be adjusted accordingly at the rate of Nine and 00/100 Dollars ($9.00) per gross square foot of the real property constituting the Property, as shown on the Survey, as approved by Seller and Purchaser. The Purchase Price shall be payable to Seller at the closing of the transaction contemplated hereby (the "Closing") by wire transfer, and such funds must be delivered in a manner to permit the Closing Agent (defined in Section 2.2(a)) 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 on or before 5:00 p.m., Dallas, Texas, time on the date that is three (3) days after the execution of this Agreement by Purchaser, Purchaser shall have deposited with Chicago Title Insurance Company, 2828 Routh Street, Suite 800, Dallas, Texas 75201, Attn: Dennis Noebel (the "Closing Agent"), by wire transfer or delivery of a cashier's check, 2 2539274 v12 (79024.00002.005) 1775.010\36652.2 immediately available federal funds in the amount of Twenty -Five Thousand and No/100 Dollars ($25,000.00) (the "Initial Deposit"). (b) On the Closing Agent's receipt of the Earnest Money, the Closing Agent shall deposit such Earnest Money into separate interest-bearing money market accounts maintained at a federally insured bank or savings and loan association. Such accounts 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, as applicable, 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 (as defined in Section 5.2(a)) and Purchaser's Information (as defined in Section 5.2(c)). One Hundred Dollars ($100.00) of the Earnest Money shall be delivered by the Closing Agent to Seller promptly upon deposit as non-refundable independent consideration for this Agreement (the "Independent Consideration"), which is bargained for by the parties as good and valuable consideration for the option contained in this Agreement. 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. (c) The balance of the Purchase Price, as adjusted by the prorations and credits specified herein, less the Earnest Money, shall be paid on the Closing Date in the manner set forth in Section 6.2. ARTICLE III. Survey Section 3.1 Survey. Within thirty (30) days after the Effective Date (defined in Section 10.4 below), Purchaser shall obtain, at its sole cost, a survey of the property (the "Survey") suitable for use by the Title Company. Purchaser shall be solely responsible for any updates or modifications to the Survey required or requested by Purchaser or Purchaser's lender(s) or investor(s). In the event Closing occurs, Seller shall reimburse Purchaser the lesser of. (i) the verifiable cost of the Survey, or (ii) $4,000.00. Purchaser shall provide Seller with a copy of the Survey within five (5) days after Purchaser's receipt of same and the final Survey (for purposes of Section 2.1 herein) shall be subject to Seller's approval. Notwithstanding the foregoing, the legal description of the Property to be contained in the Deed shall be based on the subdivision plat to be recorded pursuant to Section 10.21 of this Agreement. 3 2539274 v12 (79024.00002.005) 1775.010\36652.2 ARTICLE IV. Title Section 4.1 Title Commitment. (a) Delivery. Within fifteen (15) days after the Effective Date, Purchaser shall cause Chicago Title Insurance Company, 2828 Routh Street, Suite 800, Dallas, Texas 75201, Attn: Dennis Noebel (the "Title Company" or "Closing Agent"), to furnish to Purchaser a title commitment (the "Commitment"), by the terms of which Title Company agrees to issue to Purchaser at Closing a TLTA T-1 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 Commitment or Survey or their updates disclose exceptions to title or any other matter reasonably objectionable to Purchaser, Purchaser shall so notify Seller in writing (the "Objection Notice") on or before the later of (i) the sixtieth (60th) day following the Effective Date and (ii) thirty (30) days after Purchaser's receipt of the Commitment, and Seller shall have twenty (20) 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 the Commitment or Survey removed or to correct each such other matter, in each case to the reasonable satisfaction of Purchaser (the matters which Seller removes or corrects shall be referred to as the "Cure Items"). If, within the time specified, Purchaser does not deliver an Objection Notice, all title and Survey matters shall be deemed approved. Purchaser may not object to standard printed exceptions in the Commitment that the Title Company is not permitted to modify or remove. If, within the time specified, Seller does not have each such objectionable exception removed or corrected, Purchaser must, prior to the Inspection Period Expiration Date, 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, or (ii) elect to accept title to the Property as it then exists, without reduction to the Purchase Price (provided, however, Seller shall correct any Cure Items). If Purchaser fails to timely make either such election, Purchaser shall be deemed to have elected option (ii) and waived any and all objections to the Commitment and the Survey, whether or not such objections were delivered or communicated to Seller, except only for the Cure Items. Notwithstanding anything to the contrary herein, the time period within which Purchaser must provide its Objection Notice and Seller may cure such objections must be completed prior to the Inspection Period Expiration Date. In other words, Purchaser shall have no right to terminate this Agreement (and receive a refund of the Earnest Money) under this Section 4.1 Ub after the Inspection Period Expiration Date (except only for Seller's subsequent failure to correct the Cure Items, if any). (c) Permitted Exceptions. As used in this Agreement, the term "Permitted Exceptions" shall mean all matters shown on the Survey and Commitment, which 4 2539274 v12 (79024.00002.005) 1775.010\36652.2 Purchaser has accepted or has been deemed to accept as provided in (b) preceding. Seller has no obligation to ensure that the Title Company will provide any endorsements to the Title Policy (or deletions to standard exceptions shown on the Commitment), including, without limitation, any deletion or modification 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 sole cost and expense (except to the extent that any of the same are Cure Items). In addition, the approved (or deemed approved) form of Master Declaration (defined in Section 10.18 below) shall be a Permitted Exception. (d) Termination. In the event of termination of this Agreement pursuant to this Section 4.1, the Earnest Money shall be delivered to Purchaser and the Independent Consideration 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 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 non-invasive tests. Under no circumstances may Purchaser conduct any invasive environmental or other testing without Seller's prior, written consent, not to be unreasonably withheld, conditioned or delayed. 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 that is one hundred fifty (150) days following the Effective Date (the "Inspection Period Expiration Date"); provided, however, (i) if Seller shall not have delivered a draft of the Master Declaration within ninety (90) days after the date hereof, the Inspection Period shall be extended day by day for each day thereafter until Seller delivers a draft of same, and (ii) Purchaser shall have the one- time right to extend the Inspection Period for thirty (30) days (and, if Purchaser so extends the Inspection Period, such date shall be the Inspection Period Expiration Date) by delivering written notice to Seller prior to the expiration of the original Inspection Period and depositing an additional Ten Thousand and No/100 Dollars ($10,000.00) with the Closing Agent, which additional deposit, together with the Initial Deposit, shall be collectively referred to herein as the "Earnest Money." So long as this Agreement has not been terminated, Purchaser shall have the right 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. 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. Purchaser shall bear the cost of all such inspections and tests. At Seller's option, Seller may be present for any inspection or test. 5 2539274 v12 (79024.00002.005) 1775.010\36652.2 Section 5.2 Document Review. (a) Documents. Within twenty (20) days after the Effective Date, Seller shall deliver to Purchaser with copies of the following, if, and only to the extent the following are, in the possession of Seller (collectively, the "Documents"): (i) Seller's existing title policy; (ii) Seller's existing survey(s); and (iii) any existing engineering, soils, environmental, endangered species and similar studies and reports applicable to the Property and the Development. (b) Proprietary Information. Purchaser acknowledges that any and all of the Documents are proprietary and confidential in nature and will be delivered to Purchaser solely to assist Purchaser in determining the feasibility of purchasing the Property. Purchaser agrees not to disclose the contents of the Documents to any party outside of Purchaser's organization except to its attorneys, accountants, lenders and prospective lenders, investors and prospective investors, prospective hotel franchise companies, and its consultants, architects, engineers and the like (collectively, the "Permitted Outside Parties") and pursuant to lawful court order. Purchaser further agrees that the Documents shall be disclosed and exhibited only to those persons within Purchaser's organization or to those Permitted Outside Parties who are responsible for determining the feasibility of Purchaser's acquisition of the Property and who have agreed in writing to preserve the confidentiality of such information as required herein. In permitting the Permitted Outside Parties to review the Documents or other information to assist Purchaser, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third party benefits or relationships of any kind, either express or implied, have been offered, intended or created by Seller and any such claims are expressly rejected by Seller and waived by Purchaser and the Permitted Outside Parties, for whom, by its execution of this Agreement, Purchaser is acting as an agent with regard to such waiver. (c) 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 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. (d) 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 6 2539274 v12 (79024.00002.005) 1775.010\36652.2 in any other written or oral communications transmitted or made available to Purchaser. 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. 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 damage any part of the Property or any personal property or conduct any invasive tests upon the Property without Seller's prior, written consent, not to be unreasonably withheld, conditioned or delayed; (ii) not injure or otherwise cause bodily harm to Seller or its agents, guests, invitees, contractors and employees; (iii) 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, and shall deliver a certificate of insurance verifying such coverage (and naming Seller as an additional insured) to Seller prior to entry upon the Property; (iv) promptly pay when due the costs of all tests, investigations, and examinations done with regard to the Property; (v) not permit any liens to attach to the Real Property by reason of the exercise of its rights hereunder; (vi) fully restore the Land to the condition in which the same were found before any such inspection or tests were undertaken; (vii) 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 (viii) deliver to Seller a copy of all Purchaser's Information. (b) PURCHASER'S INDEMNIFICATION. PURCHASER HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD SELLER, ITS OFFICERS, AGENTS AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL COSTS, LIENS, CLAIMS, CAUSES OF ACTION, DAMAGES, LIABILITIES AND EXPENSES (INCLUDING BUT NOT LIMITED TO REASONABLE LEGAL FEES AND COURT COSTS) ARISING OUT OF OR RELATED TO PURCHASER'S INSPECTIONS OR TESTS OR ANY VIOLATION OF THE PROVISIONS OF THIS SECTION 5.3. THE FOREGOING INDEMNITY SHALL NOT APPLY WITH RESPECT TO ANY DIMINUTION IN VALUE RESULTING FROM THE DISCOVERY OF PREVIOUSLY EXISTING ADVERSE MATTERS OR THE EXACERBATION OF EXISTING ENVIRONMENTAL CONTAMINATION NOT PREVIOUSLY KNOWN TO PURCHASER. (c) Within twenty (20) days after the Effective Date, Purchaser shall provide Seller with written confirmation that Purchaser has applied for a franchise agreement with, and paid the applicable deposit to, at least one of the following limited service business hotels: Element by Westin, Hampton Inn, Hilton Garden Inn, Homewood Suites, Hyatt House, Hyatt Place and Staybridge Suites (each an "Approved Hotel"). Such application will be subject to approval by the applicable hotel chain. In the event 7 2539274 v12 (79024.00002.005) 1775.010\36652.2 Purchaser fails to deliver evidence of the Approved Hotel's commitment to move forward with the development of a limited service hotel on the Property (the "Hotel Commitment") within sixty (60) days of filing the franchise application, Seller shall have the right to terminate this Agreement, whereupon the Earnest Money shall be refunded to Purchaser and the parties shall have no further rights or obligations hereunder, except for those rights and obligations expressly surviving the termination of this Agreement; provided, however, in the event Purchaser, through diligent efforts, is unable to obtain a Hotel Commitment with an Approved Hotel, Purchaser may satisfy the Hotel Commitment with its commitment from Holiday Inn Express, provided Purchaser promptly terminates any existing purchase agreement(s) for any alternative Holiday Inn Express site(s) within five (5) miles of the Property. 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, or shall be unable, through diligent efforts, to obtain the necessary approvals from an Approved Hotel or Holiday Inn Express, Purchaser shall be entitled, as its sole remedy, to terminate this Agreement by giving written notice to Seller on or before 5:00 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 the Earnest Money shall be returned to Purchaser (less the Independent Consideration, which shall be paid to Seller). If Purchaser fails to timely and properly terminate the Agreement (in strict accordance with the terms of this Section 5.4), and Purchaser shall have waived any rights to terminate pursuant to the right of termination granted in this Section 5.4. Section 5.5 Property Conveyed "AS IS", "WHERE 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 ANY DOCUMENTS DELIVERED AT THE 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)(11) 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 8 2539274 v12 (79024.00002.005) 1775.010\36652.2 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 OR FROM 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, STATE OF REPAIR OR LACK OF REPAIR, OPERATION, TITLE 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 MATERIALS 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", "WHERE 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 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2 HEREOF AND IN ANY DOCUMENTS DELIVERED AT THE CLOSING, AND ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE AND THAT IT IS RELYING 9 2539274 v12 (79024.00002.005) 1775.010\36652.2 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, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INSPECTIONS AND INVESTIGATIONS AND HEREBY WAIVES ANY CLAIM PURCHASER MAY HAVE, 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. 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 HEREBY EXPRESSLY WAIVES ANY CLAIM OF FRAUDULENT INDUCEMENT. 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 AND MATERIAL 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 MATERIALS. AS A MATERIAL INDUCEMENT TO SELLER AND EXPRESS CONSIDERATION FOR PURCHASER'S ACQUISITION OF THE PROPERTY FROM SELLER, PURCHASER SHALL, UPON CLOSING, (A) EXPRESSLY ASSUME ALL RISK AND LIABILITY RELATED TO THE PRESENCE OF TOXIC OR HAZARDOUS SUBSTANCES OR WASTE OR OTHER ENVIRONMENTAL CONTAMINATION ON OR WITHIN OR UNDER THE SURFACE OF THE PROPERTY, WHETHER KNOWN OR UNKNOWN, APPARENT OR NON -APPARENT OR LATENT, AND WHETHER EXISTING PRIOR TO, AT, OR SUBSEQUENT TO, TRANSFER OF THE PROPERTY, WHETHER CONTRACTUAL, TORTIOUS AND WHETHER TO A GOVERNMENTAL 10 2539274 v12 (79024.00002.005) 1775.010\36652.2 AGENCY, A PRIVATE ENTITY OR OTHERWISE, WITH RESPECT TO A PAST, CURRENT OR FUTURE VIOLATION OF THE PROPERTY WITH ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, RULE, REGULATION, ORDINANCE, CODE, POLICY, RULE OF COMMON LAW, JUDICIAL ORDER, ADMINISTRATIVE ORDER, CONSENT DECREE, OR JUDGMENT NOW OR HEREAFTER IN EFFECT, IN EACH CASE, AS HAS BEEN AMENDED FROM TIME TO TIME, RELATING TO THE ENVIRONMENT, HEALTH OR SAFETY, INCLUDING THE NATIONAL ENVIRONMENTAL POLICY ACT (42 U.S.C. §4321 ET SEQ.), THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980 (42 U.S.C. §9601 ET SEQ.), AS AMENDED BY THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, THE RESOURCE CONSERVATION AND RECOVERY ACT (42 U.S. C. §6901 ET SEQ.) ("CERCLA"), THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984, THE HAZARDOUS MATERIALS TRANSPORTATION ACT (49 U.S.C. §1801 ET SEQ.), THE TOXIC SUBSTANCES CONTROL ACT (15 U.S.C. §2601 ET SEQ.), THE CLEAN WATER ACT (33 U.S.C. §1321 ET SEQ.), THE CLEAN AIR ACT (42 U.S.C. §7401 ET SEQ.), THE OCCUPATIONAL SAFETY AND HEALTH ACT (29 U.S.C. §651 ET SEQ.), THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. §1251 ET SEQ.), THE SAFE DRINKING WATER ACT (42 U.S.C. §3808 ET SEQ.), THE TEXAS SOLID WASTE DISPOSAL ACT, THE TEXAS COMPREHENSIVE MUNICIPAL SOLID WASTE MANAGEMENT, RESOURCE RECOVERY AND CONSERVATION ACT AND ANY SIMILAR FEDERAL, STATE OR LOCAL LAWS, ORDINANCES OR REGULATIONS IMPLEMENTING SUCH LAWS (COLLECTIVELY, "ENVIRONMENTAL LAWS") OR WITH RESPECT TO THE PRESENCE IN, ON OR UNDER THE PROPERTY OF (ALL OF THE FOLLOWING, "HAZARDOUS MATERIALS"): (1) ANY SOLID, GASEOUS OR LIQUID WASTES (INCLUDING HAZARDOUS WASTES), HAZARDOUS AIR POLLUTANTS, HAZARDOUS SUBSTANCES, HAZARDOUS MATERIALS, REGULATED SUBSTANCES, RESTRICTED HAZARDOUS WASTES, HAZARDOUS CHEMICAL SUBSTANCES, MIXTURES, TOXIC SUBSTANCES, POLLUTANTS OR CONTAMINANTS OR TERMS OF SIMILAR IMPORT, AS SUCH TERMS ARE DEFINED IN ANY ENVIRONMENTAL LAWS, (2) ANY SUBSTANCE OR MATERIAL WHICH NOW OR IN THE FUTURE IS KNOWN TO CONSTITUTE A THREAT TO HEALTH, SAFETY, PROPERTY OR THE ENVIRONMENT OR WHICH HAS BEEN OR IS IN THE FUTURE DETERMINED BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, THE STATE OF TEXAS, COUNTY OF DENTON, CITY OF THE COLONY, THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, THE UNITED STATES DEPARTMENT OF LABOR, THE UNITED STATES DEPARTMENT OF TRANSPORTATION, ANY SUCCESSORS THERETO, OR ANY OTHER FEDERAL, STATE OR LOCAL GOVERNMENTAL AGENCY NOW OR HEREAFTER REGULATING SUBSTANCES AND MATERIALS IN THE ENVIRONMENT LOCATED AT OR ADJACENT TO THE PROPERTY (EACH A "GOVERNMENTAL ENTITY") TO BE CAPABLE OF POSING A RISK OF INJURY TO HEALTH, SAFETY, PROPERTY OR THE ENVIRONMENT OR EXPOSURE TO WHICH IS PROHIBITED, LIMITED OR REGULATED BY ANY 11 2539274 v12 (79024.00002.005) 1775.010\36652.2 ENVIRONMENTAL LAWS OR GOVERNMENTAL ENTITY, INCLUDING ALL OF THOSE MATERIALS, WASTES AND SUBSTANCES DESIGNATED NOW OR IN THE FUTURE AS HAZARDOUS OR TOXIC BY ANY GOVERNMENTAL ENTITY, AND (3) ANY PETROLEUM OR PETROLEUM PRODUCTS OR BY-PRODUCTS, RADIOACTIVE MATERIALS, ASBESTOS, WHETHER FRIABLE OR NON - FRIABLE, UREA FORMALDEHYDE FOAM INSULATION, POLYCHLORINATED BIPHENYLS, OR RADON GAS, AND (B) RELEASE AND FOREVER DISCHARGE SELLER AND SELLER'S OFFICERS, DIRECTORS, PARTNERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, AGENTS, ATTORNEYS, LESSEES, SUCCESSORS AND ASSIGNS (THE "SELLER -RELATED PARTIES") FROM AND AGAINST ANY AND ALL CLAIMS PURCHASER MAY HAVE WITH RESPECT TO SUCH VIOLATION OR PRESENCE, KNOWN OR UNKNOWN, INCLUDING, WITHOUT LIMITATION, ANY OBLIGATION TO TAKE THE PROPERTY BACK OR REDUCE THE PRICE, OR ACTIONS FOR ANY CONTRACTUAL AND/OR STATUTORY ACTIONS FOR CONTRIBUTION OR INDEMNITY, OR ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT PURCHASER OR ITS SUCCESSORS OR ASSIGNS MAY HAVE AGAINST SELLER OR THAT MAY ARISE IN THE FUTURE, BASED IN WHOLE OR IN PART, UPON THE PRESENCE OF TOXIC OR HAZARDOUS MATERIALS OR WASTE OR OTHER ENVIRONMENTAL CONTAMINATION ON OR WITHIN OR UNDER THE SURFACE OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ALL RESPONSIBILITY, LIABILITY, OBLIGATIONS, AND CLAIMS THAT MAY ARISE UNDER ANY ENVIRONMENTAL LAWS OR WITH RESPECT TO ANY HAZARDOUS MATERIALS. PURCHASER COVENANTS AND AGREES NOT TO SUE SELLER AND SELLER'S AFFILIATES AND RELEASES SELLER AND SELLER'S AFFILIATES OF AND FROM AND WAIVES ANY CLAIM OR CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION OR CONTRACTUAL AND/OR STATUTORY ACTIONS FOR CONTRIBUTION OR INDEMNITY, THAT PURCHASER MAY HAVE AGAINST SELLER OR SELLER'S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS, IN, ON, UNDER ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE ENVIRONMENTAL LAWS, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY. (d) THE TERMS AND CONDITIONS OF THIS ARTICLE V SHALL EXPRESSLY SURVIVE THE CLOSING, NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND SHALL BE INCORPORATED INTO THE DEED. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF THIS ARTICLE V WERE A MATERIAL FACTOR IN THE DETERMINATION OF THE PURCHASE PRICE FOR THE PROPERTY. 12 2539274 v12 (79024.00002.005) 1775.010\36652.2 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 Materials contamination of the Property which reports, tests or studies shall be addressed to both Seller and Purchaser at no cost to Seller; 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. Section 5.8 Termination Rights and Earnest Money. Unless previously properly terminated, after the Inspection Period Expiration Date (as same may be extended pursuant to Section 5. 1), the Earnest Money shall be non-refundable to Purchaser for any reason except as expressly set forth to the contrary herein. 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 or before the date that is thirty (30) days following the later of (i) the Inspection Period Expiration Date, and (ii) the completion of the Infrastructure Improvements (the "Closing Date"), or at such other time as mutually agreed by Seller and Purchaser; provided, however, Purchaser shall have a one-time right to extend the Closing Date for a period not to exceed thirty (30) days, upon written notice delivered to Seller prior to the Closing Date and the deposit of an additional Ten Thousand and No/100 Dollars ($10,000.00) with the Closing Agent, which deposit shall become part of the Earnest Money and shall be non-refundable to Purchaser except as otherwise provided in Section 7.2 herein. 13 2539274 v12 (79024.00002.005) 1775.010\36652.2 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 in a rough -graded condition pursuant to a grading plan agreed upon by Seller and Purchaser prior to the Inspection Period Expiration Date, subject to the Permitted Exceptions, together with utility lines stubbed to the boundary line of the Property; (ii) 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; (iii) a certificate of Seller respecting the non -foreign status of Seller in the form set forth in Exhibit C attached hereto; and (iv) such other documents as may be reasonably required by the Closing Agent, 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, 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; and (ii) 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. The items in subparagraphs (i) through (ii) of this Section 6.2(c) shall be apportioned or prorated between Seller and Purchaser as of 11:59 p.m., Dallas, Texas, time on the day preceding the Closing Date: (i) Taxes and Assessments. General real estate taxes and assessments imposed by governmental authority ("Taxes") and any assessments by private covenant constituting a lien or charge on the Property for the then -current calendar year or other current tax period not yet due and payable. If the Closing occurs prior to the receipt by Seller of the tax bill for the calendar year or other applicable tax period in which the Closing occurs, Purchaser and Seller shall prorate Taxes for such calendar year or other applicable tax period based upon the most recent ascertainable assessed values and tax rates (without any agricultural 14 2539274 v12 (79024.00002.005) 1775.010\36652.2 or similar exemption), but not less than one hundred percent of the tax bill for the previous calendar year or other applicable tax period. All prorations shall be based upon a fraction determined by dividing the number of days elapsed through the date of Closing by 365. Seller shall be responsible for any "rollback taxes" for periods prior to the Closing Date (assuming the "rollback taxes" are triggered as of the Closing), and if Purchaser continues any agricultural or similar exemption for years after the year of Closing, Purchaser shall be responsible for that portion of any "rollback taxes" that relate to time periods accruing from and after the Closing Date (i.e., for each year after the year of Closing). (ii) Other Expenses. All other expenses related to the ownership or operation of the Property shall be prorated in the manner customary in Denton County, Texas. (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 equally by Purchaser and Seller. Any transfer or documentary stamp tax or similar charge (the "Transfer Taxes"), shall be paid by Seller at Closing. Except as otherwise expressly and specifically provided to the contrary in this Section 6.3 or otherwise in this Agreement, Seller shall pay only the filing fees for recording the Deed, the basic premium for the Title Policy and one-half (/) of the escrow fees. 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, Survey costs (subject to the terms of Section 3.1), all premiums associated with any endorsements or extended coverage 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 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, except a commission pursuant to a separate written agreement, due at Closing to John T. Evans Company, Inc. (the "Broker"), and each agrees to and does hereby indemnify, defend and hold the other harmless against the payment of any commission to any person or entity (other than the Broker) 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 its obligations pursuant to this Agreement for any 15 2539274 v12 (79024.00002.005) 1775.010\36652.2 reason except a default by Seller hereunder after the expiration of any applicable or reasonable notice and/or cure periods, Seller shall be entitled to terminate this Agreement and recover the Earnest Money as liquidated damages and not as a 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. Notwithstanding the foregoing, in the event Seller is entitled to the Earnest Money and Purchaser fails to immediately release the Earnest Money to Seller, then Seller shall have the right to recover attorneys' fees and court costs in connection with enforcing its right to collect the same. Section 7.2 Purchaser's Remedies. In the event Seller materially 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 remedies, to either: (i) terminate this Agreement and recover the Earnest Money in accordance with Section 7.4, or (ii) enforce the remedy of specific performance; provided, however, in the event specific performance is not available as a remedy due either to (i) Seller's intentional bad faith actions, such as selling the Property to another party while the Agreement is in full force and effect or Purchaser is not in default hereunder, or (ii) Seller not owning the Property and not having the legal owner thereof join in or ratify this Agreement so as to be bound to sell the Property to Purchaser, Purchaser shall have the right to recover its actual damages, but in no event shall Purchaser be entitled to any speculative, punitive or exemplary damages. In the event of a breach by Seller of any of its representations and warranties set forth herein that is discovered by Purchaser prior to Closing, or in the event of a failure of any condition precedent to Purchaser's obligations, Purchaser may elect, as its sole remedies, to either: (i) terminate this Agreement and recover the Earnest Money in accordance with Section 7.4, or (ii) waive the same and proceed to Closing, as Purchaser's sole and exclusive remedies. In the event of a breach by Seller of any of its representations and warranties set forth herein that is discovered by Purchaser after Closing, Purchaser may bring an action for actual damages, but in no event shall Purchaser be entitled to any speculative, punitive or exemplary damages. 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 THE EARNEST MONEY, ACTUAL DAMAGES OR LIQUIDATED DAMAGES, AS APPLICABLE AND AS SET FORTH ABOVE, FOR ANY CLAIM, ANY SPECULATIVE, PUNITIVE OR EXEMPLARY DAMAGES, CAUSE(S) 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, expenses, and costs including but not limited to attorneys' fees, incurred in connection with any enforcement of this Agreement, whether or not a formal lawsuit is instigated. 16 2539274 v12 (79024.00002.005) 1775.010\36652.2 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 5:00 p.m. Dallas, Texas, time on 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 shall interplead the Earnest Money into a court of competent jurisdiction in Denton 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 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 (nor are anticipated to occur) 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. (c) Compliance with Anti -Terrorism Orders, Etc. Purchaser represents, warrants, and covenants to Seller that Purchaser, and all beneficial owners thereof, are in compliance with all laws, statutes, rules and regulations of any federal, state or local governmental authority in the United States of America applicable to such Persons (defined below), including, without limitation, the requirements of Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the "Order") and other similar requirements contained in the rules and regulations of the Office of Foreign Asset Control, Department of the Treasury ("OFAC") and in any enabling legislation or other Executive Orders in respect thereof (the Order and such other rules, regulations, legislation, or orders are collectively called the "Orders"). (d) No violation of Anti -Terrorism Orders, Etc. Purchaser represents, warrants, and covenants to Seller that neither Purchaser, nor any beneficial owner thereof: 17 2539274 v12 (79024.00002.005) 1775.010\36652.2 (i) is listed on the Specially Designated Nationals and Blocked Persons List maintained by OFAC pursuant to the Order and/or on any other list of terrorists or terrorist organizations maintained pursuant to any of the rules and regulations of OFAC or pursuant to any other applicable Orders (such lists are collectively referred to as the "Lists"); (ii) is a Person (as hereafter defined) who has been determined by competent authority to be subject to the prohibitions contained in the Orders; and (iii) is owned or controlled by, nor acts for or on behalf of, any Person on the Lists or any other Person who has been determined by competent authority to be subject to the prohibitions contained in the Orders. Any permitted assignee (as pursuant to the terms of Section 10.3) and its beneficial owners shall comply with the foregoing provisions effective as of the date of any assignment of rights and obligations as set forth in Section 10.3. Any purported assignment to a permitted assignee that does not comply with the foregoing provisions shall be null and void. Purchaser's representations, warranties, and covenants in this Section shall survive Closing for a period of two (2) years after the later of the Closing Date or the date upon which Seller discovers a breach of such representations, warranties and covenants. As used herein, the term "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, trust, trustee, estate, limited liability company, unincorporated organization, real estate investment trust, government or any agency or political subdivision thereof, or any other form of entity. Section 8.2 Seller's Representations and Warranties. Seller hereby represents, warrants and covenants to Purchaser as follows: (a) Seller is a Texas non-profit corporation, validly existing and in good standing under the laws of the State of Texas, and Seller has the authority to execute this Agreement and conclude the transactions contemplated therein. (b) Seller has not received any written notice of any threatened material litigation or administrative proceeding affecting the Property. (c) 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. (d) Neither the execution and delivery of this Agreement by Seller nor Seller's performance of its obligations hereunder will result in a violation or breach of any term or provision or constitute a default or accelerate the performance required under any other agreement or document to which Seller is a party or is otherwise bound or to which the Property, or any part thereof, is subject and will not constitute a violation of any law, ruling, regulation or order to which Seller is subject. 18 2539274 v12 (79024.00002.005) 1775.010\36652.2 (e) Seller is neither a "foreign person" nor a "foreign corporation" as those terms are defined in Section 7701 of the Internal Revenue Code of 1986, as amended. (f) To Seller's current, actual knowledge and belief, except as set forth in any Environmental Report included as part of the Documents,: (i) neither the Property nor Seller are in violation of any existing, applicable Environmental Laws, are not subject to any existing, pending or threatened investigation or inquiry by any governmental authority and are not subject to any remedial action or obligations under any Environmental Laws, (ii) no underground storage tanks are now or were previously located on the Property, and (iii) there are no Hazardous Materials currently located on the Property in violation of applicable law. (g) Compliance with Anti -Terrorism Orders, Etc. To the best of Seller's actual knowledge, Seller and all beneficial owners thereof are in compliance with all laws, statutes, rules and regulations of any federal, state or local governmental authority in the United States of America applicable to such Persons (defined below), including, without limitation, the requirements of the Orders. (h) No violation of Anti -Terrorism Orders, Etc. Neither Seller, nor any beneficial owner thereof: (i) is listed on the Lists; (ii) is a Person who has been determined by competent authority to be subject to the prohibitions contained in the Orders; and (iii) is owned or controlled by, nor acts for or on behalf of, any Person on the Lists or any other Person who has been determined by competent authority to be subject to the prohibitions contained in the Orders. Section 8.3 Survival of Representations and Warranties. Except as otherwise expressly set forth herein, the representations and warranties set forth in Sections 8.1 and 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. The non -breaching party must notify the breaching party in writing of any claim of a breach of any representation, warranty or other obligation that is not discharged at the Closing on or before the date that is six (6) months after the Closing. Any claim for a breach as to which the non -breaching party does not timely so notify the breaching party will be barred. The breaching party may attempt to cure the breach for a period of thirty (30) days after it receives the written notice. Subject to the provisions of Article VII, if said party fails to cure the breach within the thirty (30) day cure period, the other party may file a pleading for recovery due to the breach in a court of competent jurisdiction on or before the date that is one (1) year after the Closing Date. Any suit that is not filed on or before that date will be barred. The provisions of this Section will survive the Closing. 19 2539274 v12 (79024.00002.005) 1775.010\36652.2 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 Two Hundred Fifty Thousand and No/100 Dollars ($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 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. Miscellaneous Section 10.1 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. Section 10.2 Agreement Binding on Parties, Assi nment. 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. 20 2539274 v12 (79024.00002.005) 1775.010\36652.2 Section 10.3 Assigns; Beneficiaries. Purchaser may not assign Purchaser's rights and obligations under this Agreement without Seller's written consent except to an assignee of Purchaser (being an entity which is owned or controlled by Perry and/or Salim Molubhouy) and there may be a separate assignee for each hotel site. Notwithstanding any permitted assignment (or purported assignment), Purchaser shall remain liable for the performance of its obligations hereunder. Subject to the foregoing provisions of this Section 10.3, this Agreement shall inure to the benefit of and be binding on the parties hereto and their respective heirs, legal representatives, successors, and assigns. This Agreement is for the sole benefit of Seller and Purchaser (including a permitted assignee), and no third party (including without limitation subsequent owners of the Property) is intended to be a beneficiary of or have the right to enforce this Agreement. Notwithstanding anything contained herein to the contrary, Purchaser acknowledges Seller's right to assign this Agreement in accordance with the terms of Paragraphs B and C of the Recitals hereinabove. Section 10.4 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. 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 the date which is ten (10) days after the date of Seller's signature hereunder. If Seller's offer is not timely accepted, this Agreement shall thereafter be null and void. Section 10.5 Notice. All notices, requests, approvals, consents, and other communications required or permitted under this Agreement ("Notices") must be in writing and are effective (provided, however, for purposes of meeting any time deadline, the Notice is deemed given when sent by facsimile or e-mail, when delivered to a nationally recognized overnight courier service for prepaid overnight delivery or upon deposit in the United States mail, certified receipt requested, postage prepaid): (a) on the business day sent if (i) sent by facsimile or e-mail prior to 5:00 p.m. Dallas, Texas, time, (ii) the sending facsimile or e-mail generates a written confirmation of delivery, 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; or (c) three (3) days after being deposited in the United States mail, certified, return receipt requested, postage prepaid. All Notices must be sent to the address for each party specified below (or to any other address any party specifies by giving at least ten (10) days' prior notice of such changed address): 21 2539274 x12(79024.00002.005) 1775.010\36652.2 Seller: The Colony Local Development Corporation 6800 Main Street The Colony, Texas 75056 Attention: Joe McCourry, President The Colony Economic Development Corporation 6800 Main Street The Colony, Texas 75056 Attention: Tom Tvardzik, President The Colony Community Development Corporation 6800 Main Street The Colony, Texas 75056 Attention: Steve Sohn, Vice -President with a copy to: Brown & Hofineister, LLP 740 East Campbell Road, Suite 800 Richardson, Texas 75081 Attention: Jeff Moore Facsimile: 214-747-6111 e-mail: jmooregbhlaw.net Phone: 214-747-6109 with a copy to: Kane Russell Coleman & Logan PC 1601 Elm Street, Suite 3700 Dallas, Texas 75201 Attention: Raymond J. Kane Facsimile: 214-777-4299 e-mail: rkane ,krcl.com Phone: 214-777-4290 Purchaser: Atlantic Hotels Group, Ltd. 2220 Marsh Lane, #109 Carrollton, TX 75006 Attention: Mr. Perry Molubhouy Facsimile: 972-416-9902 e-mail: perry@atlantichotelsgroup.com Phone: 972-416-9900 with a copy to: Smith, Stern, Friedman & Nelms, P.C. 14160 Dallas Parkway, Suite 800 Dallas, Texas 75254 Attention: Clifford L. Friedman Facsimile: 214-739-0608 e-mail: cfriedmankssfnlaw.com Phone: 214-739-0606 22 2539274 v12 (79024.00002,005) 1775.010\36652.2 Closing Agent: Chicago Title Insurance Company 2828 Louth Street, Suite 800 Dallas, Texas 75201 Attention: Dennis Noebel Facsimile: 214-965-1621 e-mail: noebeldgett.com Phone: 214-965-1680 Section 10.6 Time of the Essence. Time is of the essence in all things pertaining to the performance of this Agreement. Section 10.7 Place of Performance; Choice of Law; Jurisdiction and Venue. This Agreement is made and shall be performable in Denton County, Texas, and shall be interpreted, construed and enforced in accordance with the laws of the State of Texas, without regard to principles of conflicts of law, unless otherwise expressly stated herein. Any action arising from or related to this Agreement shall be exclusively located in the courts of Denton County, Texas. Section 10.8 Currency. All dollar amounts are expressed in United States currency in good and available funds. Section 10.9 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 10.10 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 Texas, the applicable date or period shall be extended to the first business day following such Saturday, Sunday or legal holiday. Section 10.11 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 other than a lis pendens filed in connection with a valid, good faith specific performance action pursuant to Article VII. Any such recordation of this Agreement or memorandum hereto, other than a lis pendens filed in connection with a permissible specific performance action hereunder, 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 10.12 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 which shall be binding and enforceable against the parties hereto as if such facsimile copy were an original ink signature. Section 10.13 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 23 2539274 v12 (79024.00002.005) 1775.010\36652.2 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 10.14 Taxpayer ID. Purchaser's Taxpayer ID Number is 611532563. Section 10.15 Right of Repurchase. Purchaser covenants and agrees to construct and operate two (2) limited service hotels upon the Property with a combined room count of not less than two hundred eighteen (218) rooms, each to be operated as a Holiday Inn Express or other Approved Hotel, and to construct all related parking, drive aisles, lighting, improvements and amenities, in accordance with plans and specifications approved in writing by Seller and in compliance with all applicable governmental ordinances and requirements and all applicable requirements of the Master Declaration (hereinafter defined) and all Permitted Exceptions, and further subject to the terms of this Agreement. The first such hotel shall have no fewer than one hundred (100) rooms and shall not be a "suites" style hotel (the "First Hotel"), and the second such hotel shall have no fewer than one hundred (100) rooms and may be a "suites" style hotel (the "Second Hotel"). Purchaser covenants and agrees to open the First Hotel on or before the date that is the later of (i) one hundred twenty (120) days after the date Nebraska Furniture Mart opens for business at the Development and (ii) fifteen (15) months after the Closing Date (the "Opening Deadline"). Purchaser covenants and agrees to commence actual and bona fide construction on and/or development of the Second Hotel within twelve (12) months from the date that the First Hotel opens for business to the public (the "Commencement Deadline"). In the event Purchaser fails: (i) to construct and open the First Hotel on or before the Opening Deadline, or (ii) to commence actual and bona fide construction on and/or development of the Second Hotel on or before the Commencement Deadline, Seller shall have the right to repurchase such undeveloped portions of the Property (a "Development Repurchase") at a purchase price of Nine and No/100 Dollars ($9.00) per square foot, plus any third -party due diligence costs expended in connection with Purchaser's acquisition of the applicable portion(s) of the Property, such third -party costs not to exceed Fifty Thousand and No/100 Dollars ($50,000.00), plus as to the First Hotel if it is at least fifty percent (50%) complete, Purchaser's actual third party hard and soft construction costs with respect to construction and design work to date. The foregoing provisions contained in this Section 10.15 shall no longer apply with respect to the First Hotel after it opens for business to the public and, with respect to the Second Hotel, upon the commencement of actual and bona fide construction of the Second Hotel, provided Purchaser diligently pursues completion of construction of the Second Hotel. Additionally, in the event one or more hotels are constructed and opened upon the Property as required under this Agreement and such hotel(s) subsequently cease(s) to operate as a hotel for a period exceeding one hundred eighty (180) consecutive days (excluding reasonable periods of remodeling, rebranding and reconstruction after a casualty), Seller shall have the right to repurchase the portion of the Property that has discontinued its operations (an "Operating Repurchase"), at a purchase price equal to ninety percent (90%) of the appraised value of the portion of the Property that has ceased to operate. The appraised value shall be based on an average determination of three (3) separate third -party licensed appraisers having not less than seven (7) years' experience appraising commercial real estate in the greater Dallas area that are each acceptable to Seller and Purchaser. In the event of any repurchase as contemplated in this Section 10. 15, the repurchase deed shall contain the same warranties of title and shall be subject to the Permitted Exceptions but no liens, encumbrances or other additional exceptions to title, other than any additional 24 2539274 v12 (79024.00002.005) 1775.010\36652.2 matters approved by Seller and necessary for construction, and shall be free and clear of any and all mortgage liens or other evidence of indebtedness. Seller shall have all rights and remedies available at law and in equity to enforce its rights and Purchaser's obligations with respect to this right of repurchase, including, without limitation, the right of specific performance. Seller shall also have the right to recover from Purchaser all attorneys' and paralegal fees and related costs and expenses incurred by Seller in the enforcement of its rights and Purchaser's obligations with respect to this right of repurchase. Seller agrees to enter into a commercially reasonable subordination agreement with Purchaser's lender(s) to facilitate any construction or permanent financing applicable to the Property. All time frames set forth above are subject to force majeure delays and shall be extended day by day for each day of force majeure delay. The provisions herein shall survive the Closing and delivery of the Deed and shall be included in a recorded document at Closing and shall run with the land and be binding on Purchaser's successors and assigns. A draft of such document shall be provided to Purchaser within thirty (30) days following the Effective Date and shall be agreed upon between Purchaser and Seller prior to the expiration of the Inspection Period. As used in this agreement, "actual and bona fide construction" shall mean that all permits required for construction shall have been obtained by Purchaser, and Purchaser shall have, at minimum, constructed the foundation and footings in accordance with site development plans approved in writing by Seller. Section 10.16 Right of First Refusal. Provided Purchaser commences construction of the First Hotel within six (6) months after Closing, Seller shall not contract to sell any portion of the Development designated on the Site Plan as the "West NFM Restricted Area" for use as a business class/limited service hotel (with no restaurant) until the earlier to occur of: (i) December 31, 2016, or (ii) the date Purchaser opens the Second Hotel for business to the public; provided, however, the foregoing restriction shall not preclude the sale or development of one or more extended stay, all suite, full service and/or boutique hotels within the West NFM Restricted Area. Thereafter, provided Purchaser has opened the Second Hotel for business to the public, if Seller receives and intends to accept a bona fide offer for the purchase of any portion of the West NFM Restricted Area for use as a limited service hotel, Seller shall send written notice to Purchaser (such notice, the "Notice of Offer") that Seller intends to accept such offer. Such notice shall include a description of the portion of the West NFM Restricted Area that is the subject of the notice (the "Offered Land"), the offer price that Seller is willing to accept, the proposed terms and conditions of sale, and any other pertinent terms and conditions applicable to the proposed transaction (the "Terms"). If Purchaser elects to exercise its right of First Refusal, it must respond to Seller with a written notice of acceptance ("Notice of Acceptance") of the Terms within fifteen (15) days after its receipt of the Notice of Offer. If Purchaser does not give a Notice of Acceptance, or delivers a Notice of Acceptance after the 15 -day period has expired, or attempts to give a Notice of Acceptance but in so doing requests or attempts to change any material term of the Terms and Seller is not willing to accept such change, then Purchaser shall be deemed to have waived its right of first refusal as to the presented transaction (any such circumstance being a "Waiver of ROFR"), and Seller shall be free to sell the applicable Offered Land to whomever it chooses, and for whatever purpose and upon the Terms. If Seller shall desire to sell the applicable Offered Land on Terms substantially more favorable to a purchaser than the Terms presented to Purchaser, Seller shall provide Purchaser with a new Notice of Offer with respect to the more favorable Terms. If Purchaser timely and properly exercises its right of first refusal, then Seller and Purchaser shall in good faith negotiate the terms of a contract of sale ("Contract of Sale") for the sale of the Offered Land to Purchaser (and/or assigns) upon the 25 2539274 v12 (79024.00002.005) 1775.010\36652.2 Terms. The right of first refusal contemplated herein is a personal agreement between Seller and Purchaser only, but is binding on Seller's affiliates who may acquire Seller's interest in the West NFM Restricted Area or any other party acquiring any interest in the West NFM Area other than pursuant to a Waiver of ROFR, and inures to the benefit of Purchaser and Purchaser's assignee(s) of this Agreement who take(s) title to the Property on the Closing Date. This right of first refusal shall run with the land, shall be made the subject of a memorandum of record, applies only with respect to any actual offer by a third -party for the purchase of any of the West NFM Restricted Area for use as a limited service hotel, and shall automatically terminate and be of no force and effect as to any applicable portion of the West NFM Area upon the occurrence of (i) a Waiver of ROFR, (ii) at such time as Seller conveys or transfers record title to any purchaser under circumstances in which the right of first refusal contemplated herein does not apply, or (iii) Seller has given a Notice of Offer to which Purchaser has timely and properly given a Notice of Acceptance and Seller and Purchaser, despite good faith efforts to do so, have been unable to enter into a Contract of Sale upon the agreed Terms within forty-five (45) days after the date of Purchaser's Notice of Acceptance. The provisions of this Section 10.16 are expressly intended to and shall survive the Closing and delivery of the Deed. Section 10.17 Radius Restriction. In consideration of the rights and restrictions set forth in Section 10.16, upon Closing, except for (i) the existing hotels owned by Purchaser and its affiliates, (ii) an Embassy Suites in the vicinity of Willow Bend Mall for which Purchaser has committed, and (iii) to the extent Purchaser provides written evidence of a different Approved Hotel within the Hotel Contingency Period, the Holiday Inn Express which Purchaser has already obtained rights to operate in the City of The Colony, Texas, which may be built solely for resale, Purchaser agrees to terminate any existing contracts for prospective hotel sites within five (5) miles of the Property and agrees not to contract to purchase any additional sites for hotel use within said five (5) mile radius prior to the opening of the Second Hotel within the Property. The provisions of this Section 10. 17 are expressly intended to and shall survive the Closing and delivery of the Deed. Section 10.18 Use of Property. The Property may only be used for the operation of two (2) business class/limited service hotels, and Purchaser and its successors shall be exclusively responsible for maintaining, operating and insuring the Property in a first class condition consistent with the terms of that certain Master Declaration applicable to the Development to be recorded prior to Closing and approved or deemed approved by Purchaser during the Inspection Period (the "Master Declaration"). If Purchaser and Seller have not agreed upon the form of Master Declaration by the expiration of the Inspection Period, Purchaser's failing to terminate by the expiration of the Inspection Period shall constitute Purchaser's approval of the last draft of the same as delivered by Seller to Purchaser prior to the expiration of the Inspection Period. In addition, Purchaser and its successors shall pay an annual fixed contribution for Purchaser's pro rata share of costs associated with the internal access drives, off-site signage and detention pursuant to the Master Declaration (such contribution initially estimated to be $7,500 per year). Notwithstanding the foregoing, in no event shall Purchaser be responsible for installing or maintaining any portion of the landscaping buffer areas outside the boundary lines of the Property, which shall be installed and maintained by Seller in a first-class manner pursuant to the Master Declaration. In no event shall Purchaser be entitled to expand the density, zoning, signage or development rights with respect to the Property (beyond the initial development plans approved by Seller prior to Closing) without Seller's prior written 26 2539274 v12(79024.00002.005) 1775.010\36652.2 consent. The provisions of this Section 10.18 are expressly intended to and shall survive the Closing and delivery of the Deed. Section 10.19 Public Incentives. Notwithstanding anything contained in this Agreement to the contrary, Purchaser acknowledges that Seller's rights in the Property and the Development are subject to the terms of certain tax participation agreements with the City of The Colony, Texas, and related governmental authorities relating to sales and ad valorem tax revenue generated from the Development. Seller is entitled to all tax rebates, incentives and proceeds associated with the ownership of the Development and its inclusion in the TIF district authorized by the City of The Colony, Texas. In connection with said program, Purchaser agrees that it shall cooperate with the Texas Comptroller and the City of The Colony, Texas, on a monthly basis, to determine applicable tax payment for the immediately -preceding month, including any applicable hotel occupancy tax, sales tax and ad valorem tax, of which tax amounts shall be held in strict confidence and used only for the calculation of the public incentives (reporting sales tax for the City of The Colony, Texas on an aggregate basis). Section 10.20 Development Improvements. It shall be a condition to Purchaser's obligation to close hereunder that the following development improvements be completed: (i) construction of an adequate storm sewer system with a tie-in at the boundary line of the Property so that no water detention system shall be required within the Property, and (ii) construction of the streets and service drives within the Development, including curb cuts to the Property, as shown on the attached Exhibit A -I (collectively, the "Infrastructure Improvements"). In the event the Infrastructure Improvements are not completed by November 1, 2014, Purchaser may elect to terminate this Agreement and receive a full refund of the Earnest Money pursuant to Section 7.4 hereunder. Section 10.21 Subdivision. Seller shall use good faith, diligent efforts to cause the Property to be properly subdivided into two separately platted lots (one for each Hotel) in compliance with applicable law and pursuant to draft subdivision plat(s) approved by Purchaser during the Inspection Period (provided that Purchaser shall have delivered draft subdivision plat(s) to Seller per approval at least thirty (30) days prior to the expiration of the Inspection Period), and it shall be a condition precedent to Purchaser's obligation to close the transaction contemplated in this Agreement that the necessary approvals respecting such subdivision shall be obtained, shall be final and nonappealable, and the final plat(s) actually filed prior to or as of the Closing. The description of the Property contained in the Deed shall be based upon the final, approved subdivision plat(s), and upon such approval the term "Land" shall mean the land described in such plat(s). In the event this condition is not satisfied prior to or as of the Closing, Purchaser or Seller shall be entitled to either (i) terminate this Agreement, in which case Purchaser shall receive a refund of the Earnest Money, and the parties hereto shall have no further rights, obligations or liabilities with respect to each other hereunder except as otherwise expressly set forth herein, or (ii) waive such condition and proceed to Closing. 27 2539274 v12 (79024.00002.005) 1775.010\36652.2 [Separate signature pages follow] [Remainder of page intentionally blank.] 28 2539274 v12 (79024.00002.005) 1775.010\36652.2 ATTEST: Richard Boyer, Secret y a Date: December i q , 2013 ATTEST: i Femi Omonije, Secretary Date: December M , 2013 SELLER: THE COLONY LOCAL DEVELOPMENT CORPORATION, a Texas non-profit corporation '�:By: e':�' oe McC rry, President THE COLONY ECONOMIC DEVELOPMENT CORPORATION, Texas non-profit corporation By: T& Tvardzik, f1resident 2539274 v9 (79024.00002.005) 1775.010\36652.2 ATTEST: Lisa Keary, Secr tary .Date: December 1 , 2013 THE COLONY COMMUNITY DEVELOPMENT CORPORATION, a Texas non-profit corporation Py: e S; Vice- resident PURCHASER: ATLANTIC HOTELS LTD., a Texas corporation Py:_ Name: Title: Date: .2013 2 2539274 v5 (79024.00002.005) 1775.010\36652.2 ATTEST: Lisa Leary, Secretary Date: December , 2013 THE COLONY COMMUNITY DEVELOPMENT CORPORATION, a Texas non-profit corporation Steve Sohn, Vice -President PURCHASER: ATLANTIC HOTELS LTD., a Texas corporation By: Name: Title: Date: 92013 2 2539274 v11 (79024.00002.005) 1775.010\36652.2 30 : - BY CLUSING AGENT Closing Agent,bereby acknov. I ides. vml this Agreement executed by Seller rind Purchaser ol), thc. a of 1119�Let 1013 (the "EfFeWve.Dato"), and accc-Pts the obligations of the ClosingAgent .as set ' ---I - rorth hvrvin; The Closing Agent hereby agrees; to huld.and digii.bute th-e.Eam6t Money in accordance. with the tom.n.sand provisions of this Agreement;. PA NY By,� Name: Title: ti531)274 VIP (79Q)4,WkO2.t)O,-,) EXHIBIT A LEGAL DESCRIPTION OF LAND [To be attached hereto upon completion of the Survey] Exhibit A 2539274 v12 (79024.00002.005) 1775.010\36652.2 EXHIBIT A-1 SITE PLAN � h i+ A-1- Exhibit B - 1 2539274 v12 (79024.00002.005) 1775.010\36652.2 EXHIBIT B DEED NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S LICENSE NUMBER. PRIVATE TRANSFER AGREEMENT (SALE by SPECIAL WARRANTY DEED) THE STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS: COUNTY OF DENTON § After making findings that this sale is authorized by Texas Tax Code Section 311.008(b)(2), serves the legitimate public purpose of promoting economic development, and affords a clear public benefit in terms of both increased tax revenue and job opportunities, the City of The Colony, Texas, a Texas home -rule municipality ("Grantor"), for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other valuable non -monetary consideration in the form of the Additional Consideration (defined below), the receipt and sufficiency of which consideration are hereby acknowledged to be adequate, has GRANTED, SOLD, AND CONVEYED, and by these presents does hereby GRANT, SELL AND CONVEY, unto Atlantic Hotels Ltd., a Texas Corporation ("Grantee") having an address of 2220 Marsh Lane, #109, Carrollton, Texas, 75006, all that real property situated in the County of Denton, State of Texas, and more particularly described on Exhibit "A" attached hereto and made a part hereof for all purposes plus all of Grantor's right, title and interest in and to (i) all improvements and related amenities located in and on such real property, (ii) easements, if any, benefiting such real property, (iii) the oil, gas, and other minerals (and all executory and leasing rights relating thereto) that are in and under such real property and that may be produced from such real property and (iv) appurtenances, if any, pertaining to such real property, including any right, title and interest of Grantor in and to: (a) water wells and any other permits for utilities, drainage and detention rights which serve or which will serve the land and improvements now or hereafter constructed thereon; (b) any architectural plans and specifications, surveys, engineering, soils, seismic, geological and environmental reports, studies, certificates and other technical descriptions applicable to the land and/or improvements; (c) any warranties, guaranties, indemnities, claims and causes of action, to the extent applicable to the land and/or improvements; (d) any licenses, permits, governmental approvals, utility commitments, utility rights, reimbursement rights, development rights or other similar rights; (e) any rights to credits, refunds, and reimbursements including without limitation any credits against, or right to pay reduced application fees, permit fees, inspection fees or impact fees applicable to the land; (f) any rights under zoning cases, preliminary plans, plats, and other development applications and approvals; and (g) all other development rights, powers, privileges, options, or other benefits Exhibit B - 2 2539274 v12 (79024.00002.005) 1775.010\36652.2 associated with, that pertain to, are attributable to, are appurtenant to, apply to, or which otherwise directly benefit the land (collectively, the "PropertX"). The "Additional Consideration" for this transfer includes: 1. Grantee's use of the Property increasing the property tax revenue and sales tax revenues collected by Grantor within Tax Increment Reinvestment Zone Number One, City of The Colony, Texas (the "Zone"). 2. On January 1 of the first calendar year after the Facility defined in the Final Project and Finance Plan for Tax Increment Reinvestment Zone Number One, City of The Colony, Texas, adopted by the Board of Directors of the Zone on November 15, 2011, and approved by the City Council on November 15, 2011 (the "Project and Finance Plan") is open for business to the public, TXFM, Inc., a Texas corporation, causing the Facility to provide a minimum of 850 Full -Time Equivalent Jobs as defined in the Project and Finance Plan. If the Facility does not provide the required minimum number of Full -Time Equivalent Jobs, the penalty provisions included in that certain Development and Tax Increment Payment Agreement approved by Grantor on November 15, 2011, shall apply to TXFM, Inc. This Private Transfer Agreement is made and accepted expressly subject to the matters set forth on Exhibit B attached hereto and made a part hereof for all purposes and subject to the lien for all ad valorem taxes arising after the date hereof the payment of which Grantee hereby assumes (collectively, the "Permitted Encumbrances"). TO HAVE AND TO HOLD the Property, subject to the Permitted Encumbrances, together with all and singular the rights and appurtenances belonging in any way to the Property, unto the said Grantee, its successors and assigns forever, and Grantor binds itself and its successors and assigns to warrant and forever defend all and singular the Property, subject to the Permitted Encumbrances, to Grantee, its successors and assigns against every person lawfully claiming or to claim all or any part of the Property, by, through, or under Grantor, but not otherwise. [SIGNATURE PAGE FOLLOWS] Exhibit B - 3 2539274 v12 (79024.00002.005) 1775.010\36652.2 IN WITNESS WHEREOF, Grantor has executed this Private Transfer Agreement (Sale by Special Warranty Deed) to be effective as of GRANTEE, BY ITS ACCEPTANCE HEREOF, ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF THIS SPECIAL WARRANTY DEED WERE A MATERIAL FACTOR IN THE DETERMINATION OF THE PURCHASE PRICE FOR THE PROPERTY EXECUTED and EFFECTIVE as of the day of , 20 GRANTOR: The City of The Colony Texas, a Texas home -rule municipality Joe McCourry, Mayor ATTEST: Christie Wilson, City Secretary APPROVED AS TO FORM: Jeff Moore, City Attorney THE STATE OF TEXAS COUNTY OF DENTON § This instrument was acknowledged before me on this day of , 20_, by of The City of The Colony, Texas, a Texas home -rule municipal corporation, and acknowledged to me that he/she executed the same for the purposes and consideration therein expressed on behalf of said corporation. Notary Public in and for the State of Texas [INSERT GRANTEE SIGNATURE BLOCK AND NOTARY ACKNOWLEDGMENT] AFTER RECORDING RETURN TO: [Insert Grantee information] Exhibit B - 4 2539274 v12 (79024.00002.005) 1775.010\36652.2 Exhibit B - 5 2539274 v12 (79024.00002.005) 1775.010\36652.2 Exhibits to be attached before signing: Exhibit A — Description of the Property Exhibit B — To include those exceptions listed on Schedule B of the Owner's Title Commitment, those PERMITTED EXCEPTIONS AS DETERMINED PURSUANT TO ARTICLE IV plus the following exceptions: All of the restrictions, reservations and exceptions to conveyance and warranty set forth in that certain Correction Special Warranty Deed from 121 Acquisition Company, LLC, to The Colony Local Development Corporation (the "LGC"), The Colony Community Development Corporation (the "Type B Corporation"), and The Colony Economic Development Corporation (the "Type A Corporation" and with the LGC and the Type B Corporation, collectively, "Grantees") recorded as Instrument Number 2013-20492 on February 20, 2013, with the Clerk of Denton County, Texas. The Additional Consideration satisfies the following public purposes: Transfer of the land will contribute to the production of income by Grantee; Transfer of the land is not in exchange for goods or services provided; and Transfer of the land is intended to induce Grantee to build and operate its business in the City; and Transfer of the land is intended to obtain from Grantee their investment commitment to undertake permanent business operations in the City; and Transfer of the land is intended as contributions to capital to attract businesses to locate to and operate within the City; and Transfer of the land results in an indirect benefit to the community in the form of increased jobs, sales tax revenues, and ad valorem tax revenues; and Transfer of the land is necessary to promote or develop new or expanded business enterprises. In order to ensure that there are adequate public controls in place to ensure that the public purpose is accomplished and to protect the public's investment, the land and improvements are restricted to uses consistent with those identified in the documents authorizing the issuance of the LGC's Sales Tax Increment Contract Revenue Bonds, Series 2013A, issued on or about February 21, 2013 (the "Series 2013A Bonds"). Once such bonds are paid, this restriction shall automatically terminate. Evidence of payment of such bonds may be recorded by Grantee in the Denton County deed records. The following are covenants that run with the land for so long as the Series 2013A Bonds are outstanding: The land will be used to operate a business in the City; and The land will be used to generate ad valorem tax revenues in the City. Exhibit B - 6 2539274 v12 (79024.00002.005) 1775.010\36652.2 [certain easements benefitting the 82.09 acres owned by TxFM and burdening the Ancillary Land] DISCLAIMER OF REPRESENTATIONS AND WARRANTIES BY GRANTOR. EXCEPT AS EXPRESSLY SET FORTH IN THIS SPECIAL WARRANTY DEED, GRANTOR HAS NOT MADE AND IS NOT NOW MAKING, AND GRANTOR SPECIFICALLY DISCLAIMS AND GRANTEE 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 GRANTOR'S WARRANTY OF TITLE SET FORTH IN THIS SPECIAL WARRANTY DEED); (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 OR FROM 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, STATE OF REPAIR OR LACK OF REPAIR, OPERATION, TITLE 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 MATERIALS IN (AS HEREAFTER DEFINED) 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 (GRANTEE AFFIRMING THAT Exhibit B - 7 2539274 v12 (79024.00002.005) 1775.010\36652.2 GRANTEE HAS NOT RELIED ON GRANTOR'S SKILL OR JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT GRANTOR 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). SALE "AS IS". GRANTEE HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF GRANTOR OR ANY OF ITS AGENTS AND ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE. GRANTEE 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 GRANTEE'S CONSULTANTS IN PURCHASING THE PROPERTY. GRANTEE HAS CONDUCTED SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS GRANTEE DEEMED NECESSARY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF AND HEREBY RELIES UPON SAME. GRANTEE HEREBY ASSUMES THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY GRANTEE'S INSPECTIONS AND INVESTIGATIONS AND HEREBY WAIVES ANY CLAIM GRANTEE MAY HAVE, NOW OR IN THE FUTURE, IN CONNECTION WITH ANY SUCH ADVERSE MATTERS, INCLUDING, WITHOUT LIMITATION, ANY RIGHT OF CONTRIBUTION. GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR IS SELLING AND CONVEYING TO GRANTEE AND GRANTEE ACCEPTS THE PROPERTY "AS IS, WHERE IS," WITH ALL FAULTS. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY GRANTOR, ANY AGENT OF GRANTOR OR ANY THIRD PARTY. GRANTOR 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. GRANTEE 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. GRANTEE HEREBY EXPRESSLY WAIVES ANY CLAIM OF FRAUDULENT INDUCEMENT. GRANTEE HAS FULLY REVIEWED THE DISCLAIMERS, ASSUMPTIONS, AND WAIVERS SET FORTH IN THIS SPECIAL WARRANTY DEED WITH ITS COUNSEL AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF. GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF THIS SPECIAL WARRANTY DEED ARE AN INTEGRAL AND MATERIAL PART OF THIS AGREEMENT AND THAT GRANTOR WOULD NOT HAVE AGREED TO SELL THE PROPERTY TO GRANTEE FOR THE PURCHASE PRICE WITHOUT SUCH PROVISIONS. HAZARDOUS MATERIALS. AS PART AND PARCEL OF THE CONSIDERATION FOR GRANTEE'S ACQUISITION OF THE PROPERTY FROM GRANTOR, GRANTEE HEREBY (A) EXPRESSLY ASSUMES ALL RISK AND LIABILITY RELATED TO THE Exhibit B - 8 2539274 v12 (79024.00002.005) 1775.010\36652.2 PRESENCE OF TOXIC OR HAZARDOUS SUBSTANCES OR WASTE OR OTHER ENVIRONMENTAL CONTAMINATION ON OR WITHIN OR UNDER THE SURFACE OF THE PROPERTY, WHETHER KNOWN OR UNKNOWN, APPARENT OR NON - APPARENT OR LATENT, AND WHETHER EXISTING PRIOR TO, AT, OR SUBSEQUENT TO, TRANSFER OF THE PROPERTY, WHETHER CONTRACTUAL, TORTIOUS AND WHETHER TO A GOVERNMENTAL AGENCY, A PRIVATE ENTITY OR OTHERWISE, WITH RESPECT TO A PAST, CURRENT OR FUTURE VIOLATION OF THE PROPERTY WITH ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, RULE, REGULATION, ORDINANCE, CODE, POLICY, RULE OF COMMON LAW, JUDICIAL ORDER, ADMINISTRATIVE ORDER, CONSENT DECREE, OR JUDGMENT NOW OR HEREAFTER IN EFFECT, IN EACH CASE, AS HAS BEEN AMENDED FROM TIME TO TIME, RELATING TO THE ENVIRONMENT, HEALTH OR SAFETY, INCLUDING THE NATIONAL ENVIRONMENTAL POLICY ACT (42 U.S.C. §4321 ET SEQ.), THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980 (42 U.S.C. §9601 ET SEQ.), AS AMENDED BY THE SUPERFUND AMENDMENTS AND REAUTHORIZATION ACT OF 1986, THE RESOURCE CONSERVATION AND RECOVERY ACT (42 U.S. C. §6901 ET SEQ.) ("CERCLA"), THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984, THE HAZARDOUS MATERIALS TRANSPORTATION ACT (49 U.S.C. §1801 ET SEQ.), THE TOXIC SUBSTANCES CONTROL ACT (15 U.S.C. §2601 ET SEQ.), THE CLEAN WATER ACT (33 U.S.C. §1321 ET SEQ.), THE CLEAN AIR ACT (42 U.S.C. §7401 ET SEQ.), THE OCCUPATIONAL SAFETY AND HEALTH ACT (29 U.S.C. §651 ET SEQ.), THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. §1251 ET SEQ.), THE SAFE DRINKING WATER ACT (42 U.S.C. §3808 ET SEQ.), THE TEXAS SOLID WASTE DISPOSAL ACT, THE TEXAS COMPREHENSIVE MUNICIPAL SOLID WASTE MANAGEMENT, RESOURCE RECOVERY AND CONSERVATION ACT AND ANY SIMILAR FEDERAL, STATE OR LOCAL LAWS, ORDINANCES OR REGULATIONS IMPLEMENTING SUCH LAWS (COLLECTIVELY, "ENVIRONMENTAL LAWS") OR WITH RESPECT TO THE PRESENCE IN, ON OR UNDER THE PROPERTY OF (ALL OF THE FOLLOWING, "HAZARDOUS MATERIALS"): (1) ANY SOLID, GASEOUS OR LIQUID WASTES (INCLUDING HAZARDOUS WASTES), HAZARDOUS AIR POLLUTANTS, HAZARDOUS SUBSTANCES, HAZARDOUS MATERIALS, REGULATED SUBSTANCES, RESTRICTED HAZARDOUS WASTES, HAZARDOUS CHEMICAL SUBSTANCES, MIXTURES, TOXIC SUBSTANCES, POLLUTANTS OR CONTAMINANTS OR TERMS OF SIMILAR IMPORT, AS SUCH TERMS ARE DEFINED IN ANY ENVIRONMENTAL LAWS, (2) ANY SUBSTANCE OR MATERIAL WHICH NOW OR IN THE FUTURE IS KNOWN TO CONSTITUTE A THREAT TO HEALTH, SAFETY, PROPERTY OR THE ENVIRONMENT OR WHICH HAS BEEN OR IS IN THE FUTURE DETERMINED BY THE TEXAS COMMISSION ON ENVIRONMENTAL QUALITY, THE STATE OF TEXAS, COUNTY OF DENTON, CITY OF THE COLONY, THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, THE UNITED STATES DEPARTMENT OF LABOR, THE UNITED STATES DEPARTMENT OF TRANSPORTATION, ANY SUCCESSORS THERETO, OR ANY OTHER FEDERAL, STATE OR LOCAL GOVERNMENTAL AGENCY NOW OR HEREAFTER REGULATING SUBSTANCES AND MATERIALS IN THE ENVIRONMENT LOCATED AT OR ADJACENT TO THE PROPERTY (EACH A "GOVERNMENTAL ENTITY") TO BE CAPABLE OF POSING A RISK OF INJURY TO Exhibit B - 9 2539274 v12 (79024.00002.005) 1775.010\36652.2 HEALTH, SAFETY, PROPERTY OR THE ENVIRONMENT OR EXPOSURE TO WHICH IS PROHIBITED, LIMITED OR REGULATED BY ANY ENVIRONMENTAL LAWS OR GOVERNMENTAL ENTITY, INCLUDING ALL OF THOSE MATERIALS, WASTES AND SUBSTANCES DESIGNATED NOW OR IN THE FUTURE AS HAZARDOUS OR TOXIC BY ANY GOVERNMENTAL ENTITY, AND (3) ANY PETROLEUM OR PETROLEUM PRODUCTS OR BY-PRODUCTS, RADIOACTIVE MATERIALS, ASBESTOS, WHETHER FRIABLE OR NON -FRIABLE, UREA FORMALDEHYDE FOAM INSULATION, POLYCHLORINATED BIPHENYLS, OR RADON GAS, AND (B) HEREBY RELEASES AND FOREVER DISCHARGES GRANTOR AND GRANTOR'S OFFICERS, DIRECTORS, PARTNERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, AGENTS, ATTORNEYS, LESSEES, SUCCESSORS AND ASSIGNS (THE "GRANTOR -RELATED PARTIES") FROM AND AGAINST ANY AND ALL CLAIMS GRANTEE MAY HAVE WITH RESPECT TO SUCH VIOLATION OR PRESENCE, KNOWN OR UNKNOWN, INCLUDING, WITHOUT LIMITATION, ANY OBLIGATION TO TAKE THE PROPERTY BACK OR REDUCE THE PRICE, OR ACTIONS FOR ANY CONTRACTUAL AND/OR STATUTORY ACTIONS FOR CONTRIBUTION OR INDEMNITY, OR ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, THAT GRANTEE OR ITS SUCCESSORS OR ASSIGNS MAY HAVE AGAINST GRANTOR OR THAT MAY ARISE IN THE FUTURE, BASED IN WHOLE OR IN PART, UPON THE PRESENCE OF TOXIC OR HAZARDOUS MATERIALS OR WASTE OR OTHER ENVIRONMENTAL CONTAMINATION ON OR WITHIN OR UNDER THE SURFACE OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ALL RESPONSIBILITY, LIABILITY, OBLIGATIONS, AND CLAIMS THAT MAY ARISE UNDER ANY ENVIRONMENTAL LAWS OR WITH RESPECT TO ANY HAZARDOUS MATERIALS. FURTHERMORE, GRANTEE HEREBY PROTECTS, DEFENDS (BY COUNSEL SELECTED BY GRANTOR), INDEMNIFIES AND HOLDS HARMLESS GRANTOR AND THE GRANTOR -RELATED PARTIES FROM AND AGAINST ANY AND ALL LIABILITIES (INCLUDING SUMS PAID IN SETTLEMENT OF CLAIMS), EXPENSES, CAUSES OF ACTION, DAMAGES (INCLUDING CONSEQUENTIAL AND PUNITIVE DAMAGES), FINES (INCLUDING ANY SUMS ORDERED TO BE PAID OR EXPENDED BY GRANTOR AND/OR THE GRANTOR -RELATED PARTIES BY ANY GOVERNMENTAL ENTITY OR THIRD PARTY AS A FINE, PENALTY OR DAMAGES FOR ANY VIOLATION OF ANY ENVIRONMENTAL LAWS, ANY REMEDIAL ACTION OR TO REMEDIATE, CLEAN-UP OR REMOVE ANY HAZARDOUS MATERIALS), PENALTIES, FORFEITURES, ACTIONS, DEFENSES, ADMINISTRATIVE PROCEEDINGS (INCLUDING INFORMAL PROCEEDINGS), JUDGMENTS, ORDERS, EQUITABLE RELIEF, EXPENSES (INCLUDING EXPERTS' AND CONSULTANTS' FEES AND COSTS), ATTORNEYS' FEES AND EXPENSES (INCLUDING ANY FEES AND EXPENSES INCURRED IN ENFORCING OR INTERPRETING THIS AGREEMENT), AND CLAIMS (INCLUDING, WITHOUT LIMITATION, ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION, OR CONTRACTUAL AND/OR STATUTORY ACTIONS FOR CONTRIBUTION OR INDEMNITY, AND INCLUDING THIRD PARTY CLAIMS FOR PERSONAL INJURY OR REAL OR PERSONAL PROPERTY DAMAGE) OF ANY KIND OR NATURE WHATSOEVER (WHETHER FORESEEABLE OR UNFORESEEABLE, CONTINGENT OR NONCONTINGENT, OR ARISING OUT OF CONTRACTS ENTERED INTO OR INDEMNIFICATIONS PROVIDED BY GRANTOR AND/OR THE GRANTOR - Exhibit B - 10 2539274 v12 (79024.00002.005) 1775.010'36652.2 RELATED PARTIES OR OTHERWISE) (COLLECTIVELY, THE "LIABILITIES") SOUGHT FROM OR ASSERTED AGAINST GRANTOR AND/OR THE GRANTOR - RELATED PARTIES IN CONNECTION WITH, IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, OR ARISING OUT OF A PAST, CURRENT OR FUTURE VIOLATION BY THE PROPERTY OR ANY ADJACENT OR NEARBY PROPERTY WITH ANY ENVIRONMENTAL LAWS OR THE PRESENCE IN, ON OR UNDER THE PROPERTY OR ANY ADJACENT OR NEARBY PROPERTY OF ANY HAZARDOUS MATERIALS. GRANTEE COVENANTS AND AGREES NOT TO SUE GRANTOR AND GRANTOR'S AFFILIATES AND RELEASES GRANTOR AND GRANTOR'S AFFILIATES OF AND FROM AND WAIVES ANY CLAIM OR CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, ANY STRICT LIABILITY CLAIM OR CAUSE OF ACTION OR CONTRACTUAL AND/OR STATUTORY ACTIONS FOR CONTRIBUTION OR INDEMNITY, THAT GRANTEE MAY HAVE AGAINST GRANTOR OR GRANTOR'S AFFILIATES UNDER ANY ENVIRONMENTAL LAW, NOW EXISTING OR HEREAFTER ENACTED OR PROMULGATED, RELATING TO ENVIRONMENTAL MATTERS OR ENVIRONMENTAL CONDITIONS, IN, ON, UNDER ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE ENVIRONMENTAL LAWS, OR BY VIRTUE OF ANY COMMON LAW RIGHT, NOW EXISTING OR HEREAFTER CREATED, RELATED TO ENVIRONMENTAL CONDITIONS OR ENVIRONMENTAL MATTERS IN, ON, UNDER, ABOUT OR MIGRATING FROM OR ONTO THE PROPERTY. Exhibit B - 11 2539274 v12 (79024.00002.005) 1775.010\36652.2 EXHIBIT C CERTIFICATION OF NON -FOREIGN STATUS 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. To inform the transferee, , that withholding tax is not required upon the disposition of a United States real property interest by ("Seller"), the undersigned hereby certifies the following on behalf of Seller: 1. Seller is not a foreign corporation, foreign partnership, foreign trust or foreign estate, as those terms are defined in the Internal Revenue Code and Income Tax Regulations promulgated pursuant thereto (collectively, the "Code"); 2. Seller's United States Employer Identification Number is: ; 3. Seller's office address is: ; and 4. Seller is not a disregarded entity as defined in § 1.1445-2(b)(2)(iii) of the Code.. Seller understands that this Certification may be disclosed to the Internal Revenue Service by 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 the best of 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 Seller. EXECUTED this day of , 2013. SELLER: a By:_ Name: Title: Exhibit C 2539274 v12 (79024.00002.005) 1775.010\36652.3