HomeMy WebLinkAboutResolution - 2026-R0228 - Purchase And Sale Agreement, With Adakon Energy - 06/23/2026Resolution No. 2026-R0228
Item No. 5.17
June 23, 2026
RESOLUTION
WHEREAS, Lubbock Power & Light is the municipally owned electric utility of
the City of Lubbock ("LP&L");
WHEREAS, LP&L desires to sell its de-energized and decommissioned Ty
Cooke Gas Generating Facility pursuant to RFP 7107-25-EUA;
WHEREAS, Adakon Energy was the sole bidder for RFP 7107-25-EUA;
WHEREAS, LP&L and Adakon Energy seek to enter into a Purchase and Sale
agreement in the amount of $9.25 million to sell the Ty Cooke Gas Generating Facility;
WHEREAS, by resolution EUB 2026-R00`�0, the Electric Utility Board authorized
the Chief Administrative Officer to execute a contract for the Purchase and Sale.
WHEREAS, the City Council of the City of Lubbock desires to authorize the
execution of the Purchase and Sale Agreement by the Mayor of the City of Lubbock.
NOW, THEREFORE:
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized to direct
the LP&L Chief Administrative Officer to execute for and on behalf of the City of
Lubbock, the Purchase and Sale Agreement for the Ty Cooke Generating Facility,
by and between LP&L and Adakon, as attached hereto and incorporated herein as
though set forth fully herein in detail, and any documents related thereto.
Passed by the City Council this 23rd day of June, 2026.
�
�
Mark McBrayer, Mayor
ATTEST:
Courtney Paz, City Secret
APPROVED AS TO CONTENT:
1 Ivy, Chief Admin' �rative Officer
APPROVED AS TO FORM:
K li Swan, General Counsel
Resolution No. EUB 2026-R0040
RESOLUTION
WHEREAS, Lubbock Power & Light is the municipally-owned electric
utility of the City of Lubbock ("LP&L");
WHEREAS, LP&L desires to sell its de-energized and decommissioned Ty
Cooke Gas Generating Facility pursuant to RFP 7107-25-EUA;
WHEREAS, Adakon Energy was the sole bidder for RFP 7107-25-EUA;
WHEREAS, LP&L and Adakon Energy seek to enter into a Purchase and
Sale agreement in the amount of $9.25 million to sell the Ty Cooke Gas
Generating Facility;
NOW, THEREFORE:
BE IT RESOLVED BY THE ELECTRIC UTILITY BOARD OF THE CITY OF
LUBBOCK:
THAT the Electric Utility Board recommends that the City Council approve
and grant the LP&L Chief Administrative Officer the authority to execute, for
and on behalf of the City of Lubbock, acting by and through Lubbock Power &
Light, this Purchase and Sale Agreement, by and between LP&L and Adakon
Energy, as attached hereto and incorporated herein, and any documents related
thereto.
BE IT FURTHER RESOLVED BY THE ELECTRIC UTILITY BOARD OF
THE CITY OF LUBBOCK:
THAT this Resolution shall be null and void if the City Council of the City
of Lubbock shall not likewise authorize the Chief Administrative Officer or his
designee to execute this Purchase and Sale Agreement within days (60) days of
the date hereof.
Passed by the Electric Utility Board this 16th day of
APPROVED AS TO CONTENT:
�
, Chie A �id�inistrative icer
APPROVED AS TO FORM:
Swan, LP&L General Counsel
PLEASE NOTE THAT THIS DOCUMENT DOES NOT CONSTITUTEANOFFER BYSELLER AND
IS FOR DISCl/SSIONPURPOSES ONLY. UNTIL A FINAL PURCHASEAND SALEAGREEMENT
IS EXECUTED BY SELLER AND THE POTENTIAL PURCHASER, SELLER RESERVES THE
RIGHT TO MARKET THE PROPERTY THA T IS THE SUBJECT OF THIS PURCHASE AND SALE
AGREEMENT AND NEGOTIATE WITH OTHER POTENTIAL PURCHASERS.
PURCHASE AND SALE AGREEMENT
BETWEEN
CITY OF LUBBOCK, TX (acting by and through Lubbock Power & Light)
AS SELLER
AND
ADAKON ENERGY SOLUTIONS, LLC,
ASPURCHASER
DATED _ _ , 2026
PURCFWSE AND SALE AGREEINENT - 3500 E. S(aton Road, Lubbock, Texas, 79404
49138594v.4
TABLE OF CONTENTS
Page
ARTICLE 1 BASIC INFORMATION .....................................................................................................1
1.1 Certain Basic Terms ...................................................................................................................... l
1.2 Closing Costs ................................................................................................................................ 3
1.3 Notice Addresses .......................................................................................................................... 4
ARTICLE2 PROPERTY .......................................................................................................................... 4
2.1 Property ......................................................................................................................................... 4
2.2 Excluded Property ......................................................................................................................... 6
2.3 Retained Assets; Reservation of Easements ................................................................................. 6
2.4Assumption of Liabilities ..............................................................................................................6
ARTICLE 3 EARNEST MONEY .............................................................................................................7
3.1 Deposit and Investment of Earnest Money ................................................................................... 7
3.21ndependent Consideration ...........................................................................................................7
3.3Form; Failure to Deposit ...............................................................................................................7
3.4 Disposition of Earnest Money ....................................................................................................... 7
3.5 Letter of Credit .............................................................................................................................. 8
3.6 Option Period ................................................................................................................................ 9
3.7Outside Termination Date .............................................................................................................9
3.8 Limited Termination Rights ..........................................................................................................9
3.9 Termination Notice; Effect of Termination ................................................................................ 10
ARTICLE 4 DUE DILIGENCE ..............................................................................................................10
4.1 Due Diligence Materials .............................................................................................................10
4.2 Physical Due Diligence ............................................................................................................... 11
4.3 Return of Documents and Reports ..............................................................................................12
4.41nsurance ..................................................................................................................................... 12
4.5 Proprietary Information; Confidentiality ....................................................................................12
4.6No Representation or Warranty by Seller ...................................................................................13
4.7 Purchaser's Responsibilities ....................................................................................................... 14
4.8 Environmental Studies; Purchaser's Right to Terminate ............................................................15
ARTICLE 5 TITLE AND SURVEY .......................................................................................................16
5.1Title Commitment ....................................................................................................................... 16
5.2 New Survey ................................................................................................................................. 16
5.3Title Review ................................................................................................................................ 16
5.4Title Policy .................................................................................................................................. 17
ARTICLE 6 OPERATIONS, RISK OF LOSS, AND APPROVALS ..................................................17
6.1 Ongoing Operations ....................................................................................................................17
6.2 Casualty Event ............................................................................................................................ 18
6.3 Condemnation . ............................................................................................................................ 19
6.4Uniform Vendor and Purchaser Risk Act Not Applicable ..........................................................19
6.5 Purchaser Approvals ................................................................................................................... 19
ARTICLE 7 CLOSING ............................................................................................................................20
7.1 Closing ........................................................................................................................................ 20
PURCHASE AND SALE AGREEIIIENT — 3SOO E. SICIIOn ROCiCI, LUbbOCIC, Texas, 79404
49138594v.4
7.2 Conditions to Parties' Obligation to Close .................................................................................. 20
7.3 Seller's Deliveries in Escrow ...................................................................................................... 21
7.4Purchaser's Deliveries in Escrow . ..............................................................................................21
7.5 Closing Statements ...................................................................................................................... 22
7.6 Purchase Price .............................................................................................................................22
7.7 Possession ................................................................................................................................... 22
ARTICLE 8 PRORATIONS, DEPOSITS, COMMISSIONS ...............................................................22
8.1 Prorations .................................................................................................................................... 22
8.2 Closing Costs .............................................................................................................................. 23
8.3 Final Adjustment After Closing ..................................................................................................23
8.4 Commissions ............................................................................................................................... 23
ARTICLE 9 REPRESENTATIONS AND WARRANTIES .................................................................23
9.1 Seller's Representations and Warranties ..................................................................................... 23
9Z Purchaser's Representations and Warranties .............................................................................. 24
9.3 Limitation of Liability .................................................................................................................25
ARTICLE 10 DEFAULT AND REMEDIES ......................................................................................... 26
10.1 Event of Default ................................................................................................................ 26
10.2 Seller's Remedies ............................................................................................................. 27
10.3 Purchaser's Remedies ....................................................................................................... 27
10.4 Reliance on Title Policy ....................................................................................................27
10.5 Attorneys' Fees ................................................................................................................. 27
10.6 Other Expenses ................................................................................................................. 28
10.7 Limitation on Seller Liability; Covenant Not to Sue ........................................................28
ARTICLE 11 DISCLAIMERS, RELEASE AND INDEMNITY .........................................................28
11.1 Disclaimers By Seller ....................................................................................................... 28
11.2 Own Investigation .............................................................................................................29
11.3 Environmental Matters .....................................................................................................30
11.4 "Environmental Laws" and "Hazardous Materials" Defined ...........................................30
11.5 1 ndemnity .......................................................................................................................... 31
11.6 Third-Party Claims ...........................................................................................................32
11.7 Direct Claim ...................................................................................................................... 34
11.8 Sale "As ls, Where Is" ...................................................................................................... 34
ARTICLE 12 MISCELLANEOUS .........................................................................................................35
12.1 Parties Bound; Assignment ...............................................................................................35
12.2 Headings ........................................................................................................................... 35
12.3 Invalidity and Waiver ....................................................................................................... 35
12.4 Governing Law ................................................................................................................. 35
12.5 Survival of Terms ............................................................................................................. 36
12.6 Entirety and Amendments ................................................................................................ 36
12.7 Time ..................................................................................................................................36
12.8 Publicity ............................................................................................................................36
12.9 Notices .............................................................................................................................. 36
12.10 Electronic Transactions ..................................................................................................... 37
12.11 Construction; Interpretation ..............................................................................................37
12.12 Calculation of Time Periods ............................................................................................. 37
12.13 Execution in Counterparts ................................................................................................ 37
PURCHASE AND SALE AGREEAtENT — 3SOO E. SIl7tOI] ROCI!l, L1tbbOClC, iCXGS, 79404
49138594v.4
12.14
12.15
12.16
12.17
12.18
12.19
12.20
12.21
12Z2
12.23
12Z4
12.25
NoRecordation .................................................................................................................37
Further Assurances ........................................................................................................... 37
Dischargeof Obligations ..................................................................................................38
ERISA ............................................................................................................................... 3 8
No Third-Party Beneficiary .............................................................................................. 38
No Waiver of Sovereign Immunity ................................................................................... 38
PublicInformation ............................................................................................................ 38
Texas Boycott Prohibitions ...............................................................................................38
Statutory Disclosure Provisions ........................................................................................39
Notice of Unimproved Property in a Certificated Service Area of a Utility
ServiceProvider ................................................................................................................ 39
Interconnection................................................................................................................. 39
Approvals Required for Operation ....................................................................................40
iii
PURCHASE AND SALE AGREEMENT — 3SOO E. SICJtOh ROCI[/, LGbbOClc, iCXaS, 79404
49138594v.4
LIST OF DEFINED TERMS
Section
Agreement ..................................................................................................................Introductory Paragraph
ApprovedJurisdictions ............................................................................................................................ 12.4
Assignment............................................................................................................................................. 7.3.2
AssumedLiabilities ...................................................................................................................................2.4
BusinessDay .......................................................................................................................................... 12.12
CasualtyEvent ........................................................................................................................................... 6.2
CasualtyNotice .......................................................................................................................................... 6.2
CERCLA..................................................................................................................................................11.4
Closing........................................................................................................................................... 1.1.14; 7.1
ClosingCondition ................................................................................................................................... 72.3
ClosingDate .......................................................................................................................................... 1.1.14
CostEstimate ............................................................................................................................................. 4.8
Damages...................................................................................................................................................11.5
Deed........................................................................................................................................................ 7.3.1
DirectClaim ............................................................................................................................................. l 1.7
EarnestMoney ........................................................................................................................................ 1.1.4
Easements............................................................................................................................................... 2.1.2
EffectiveDate .........................................................................................................................................1.1.7
Environmental [ndemnity Period ..................................................................................................... 11.5.6(b)
EnvironmentalLaws ................................................................................................................................ i 1.4
EO13224 ................................................................................................................................................. 9.2.3
ERCOT............................................................................................................................................... 12.24.1
EscrowAgent .......................................................................................................................................... 1.1.6
Eventof Default .......................................................................................................................................10.1
ExcludedProperty ......................................................................................................................................2.2
Fileand Records .....................................................................................................................................2.1.6
First Additional Earnest Money Deposit ................................................................................................ 1.1.4
Fraud................................................................................................................................................ I 1.5.6(b)
HazardousMaterials ................................................................................................................................ 1 1.4
Improvements.........................................................................................................................................2.1.1
IndemnifiedPerson ............................................................................................................................... 11.6.1
Independent Consideration ........................................................................................................................ 3.2
InitialEarnest Money .............................................................................................................................. 1.1.4
InspectionPeriod ..................................................................................................................................1.1.11
Installed Transformers ............................................................................................................................... 2.2
Interconnection...................................................................................................................................... 12.24
Investigations............................................................................................................................................. 4.2
Land........................................................................................................................................................ 2.1.1
Letterof Credit ........................................................................................................................................... 3.5
Linesand Facilities ................................................................................................................................. 2.1.2
MaterialDamage .....................................................................................................................................6.2.1
Material Environmental Condition ............................................................................................................ 4.8
MaterialPortion ......................................................................................................................................... 63
MateriallyDamaged ................................................................................................................................6.2.1
OFAC...................................................................................................................................................... 9.2 3
OptionPeriod ........................................................................................................................................1.1.12
Option Period Termination Notice .............................................................................................................3.6
�.�
PURCHASE AND SALE ACREED1ENT — 3SOO E. SIptO/1 ROCuI, L1�bbOCl[, %CXRS, 79404
49138594v.4
OtherTaxes ............................................................................................................................................. 8.1.2
OutsideTermination Date ..................................................................................................................... l.l .13
Permits....................................................................................................................................................2.1.4
PermittedExceptions ................................................................................................................................. 5.3
PermittedOutside Parties ........................................................................................................................4.5.1
PhysicalProperty .................................................................................................................................... 6.1.3
ProhibitedPerson ....................................................................................................................................9.2.3
Property...................................................................................................................................................... 2.1
PropertyContracts ..................................................................................................................................2.1.5
PropertyInformation ..................................................................................................................................4.1
PropertyTaxes ........................................................................................................................................... 8.1
ProprietaryInformation ..........................................................................................................................4.5.1
PUCT..................................................................................................................................................... 12.24
PURA...................................................................................................................................................... 9.2.4
PurchasePrice .........................................................................................................................................1.1.3
Purchaser.................................................................................................................................................1.1.2
RCRA.......................................................................................................................................................11.4
RealProperty ..........................................................................................................................................2.1.1
Replacement Transformers ..................................................................................................................... 2.1.3
Report...................................................................................................................................................... 43.1
Reports.................................................................................................................................................... 4.3.1
RetainedAssets ..........................................................................................................................................23
Second Additional Eamest Money Deposit ............................................................................................1.1.4
Seller.......................................................................................................................................................1.1.1
SellerKnowledge Party ..........................................................................................................................93.1
SellerParty ...............................................................................................................................................11.5
Seller's Adjacent Property ......................................................................................................................... 23
SPP......................................................................................................................................................12.24.1
Survey........................................................................................................................................................ 5.2
SurveyDelivery Date ..............................................................................................................................1.1.9
Tangible Personal Property .....................................................................................................................2.13
Third-Party Claim ....................................................................................................................................1 l .6
Title and Survey Review Period ........................................................................................................... 1.1.10 ,
TitleCommitment ...................................................................................................................................... 5.1
Title Commitment Delivery Date ........................................................................................................... 1.1.8
TitleCompany ........................................................................................................................................1.1.5
TitlePolicy .................................................................................................................................................5.4
Unrestored Physical Property .................................................................................................................6.2.1
PURC�SE ,�ND SALE AGREEn1ENT — 3500 E. SJaton Road, Lubbock, Texas, 79404
49138594v.4
EXHIBITS & SCHEDULES
Exhibit A- l
Exhibit A-2
Exhibit B
Exhibit C
Exhibit D
Schedule 2.1.1
Schedule 2.1.4
Schedule 2.1.5
Schedule 2.2
Schedule 4.1
Schedule 4.4
Schedule 6.1.1
Schedule 9.1.5
Schedule 9.2.1
Legal Description of Land
Depiction of Location of Land and Improvements
Special Warranty Deed
Bill of Sale, Assignment and Assumption
Letter of Credit
— Improvements
— Permits
— Property Contracts
— Excluded Property
— Property Information
- Insurance Requirements
— Terminated Service Contracts
— Third Party Agreements
— Purchaser Consents
��
PURCH.�SE AND SALE AGREEMENT — 3500 E. Slaton Road, Ltlb60Ck, TexaS, 79404
49138594v.4
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (this "Agreement") is made and entered into by and between
Purchaser and Seller to be effective on and as of the Effective Date.
RECITALS
A. Defined terms are indicated by initial capital letters. Defined terms shall have the meaning
set forth herein, whether or not such terms are used before or after the definitions are set forth.
B. Purchaser desires to purchase the Property and Seller desires to sell the Property, all upon
the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration ofthe mutual terms, provisions, covenants and agreements
set forth herein, as well as the sums to be paid by Purchaser to Seller, and for other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Purchaser and Seller agree as
follows:
ARTICLE 1
BASIC INFORMATION
1.1 Certain Basic Terms. The following defined terms shall have the meanings set forth
below:
1.1.1 Seller:
1.1.2 Purchaser:
1.1.3 Purchase Price:
CITY OF LUBBOCK, TX (acting by and through
Lubbock Power & Light)
ADAKON ENERGY SOLUTIONS, LLC,
a Florida limited liability company
$9,250,000.00 cash
1.1.4 Earnest Monev: $200,000.00 (the "Initial Earnest Monev"), to be
deposited in accordance with Section 3.1 below. If
this Agreement has not been terminated, Purchaser
shall deliver an additional deposit to Escrow Agent in
the amount of $150,000.00 on the date that is forty-
five (45) days after the Effective Date (the "First
Additional Earnest Monev DeaosiY'). If this
Agreement has not been terminated, Purchaser shall
deliver an additional deposit to Escrow Agent in the
amount of $150,000.00 on the date that is ninety (90)
days after the Effective Date ("Second Additional
Earnest Monev Deaosit," together with the Initial
Earnest Money and the First Additional Earnest
Money Deposit, and including interest thereon,
collectively, the "Earnest Monev").
PURCHASE AND SALE AGREE�tENT — 3500 E. Slaton Road, Lubbock, Texas, 79404
49138594v.4
1.1.5
1.1.6
1.1.7
1.1.8
1.1.9
Title Companv: Service Title
11421 Slide Road, Suite 700
Lubbock, Texas 79424
Attention: Brent Noble
Telephone: (806) 368 - 9507
Email: bnoble@servicetitleco.com
Escrow Agent: Service Title
11421 Slide Road, Suite 700
Attention: Brent Noble
Lubbock, Texas 79424
Telephone: (806) 368 - 9507
Email: bnoble@servicetitleco.com
Effective Date: The date on which this Agreement is fully executed
by the Purchaser and Seller, as indicated on the
signature page of this Agreement. If the execution
date is left blank by either Purchaser or Seller, the
Effective Date shall be the execution date inserted by
the other party.
Title Commitment
Delivery Date•
Survev Delivery Date:
1.1.10 Title and Survev
Review Period:
The date that is five (5) Business Days after the
Effective Date.
The date that is thirty (30) days after the Effective
Date.
The period ending thirty (30) days after Purchaser's
receipt of both the initial Title Commitment and the
initial Survey.
1.l .l 1 Insaection Period: The period ending on the earlier of (i) sixty (60) days
after the Effective Date, (ii) if applicable, the date that
Purchaser notifies Seller that it has completed its
evaluation of the Property, and (iii) if applicable, the
date this Agreement is terminated.
1.1.12 Option Period: The period ending on thirty (30) days after the
Effective Date; provided, that the Option Period shall
terminate on the date that this Agreement is earlier
terminated, if applicable.
1.1.13 Outside Termination
Date•
1.1.14 Closin� Date:
2
The date that is one hundred twenty (120) days after
the Effective Date.
The date that is one hundred twenty (120) days after
the Effective Date.
PURCFiASE AND SALE AGREEh1ENT— 3SOO E. Si171017 RO[7[% Lt�bI70Clc, T¢XC�S, 79404
49138594v.4
1.1.15 LC IssuinE Bank: A U.S. bank or other U.S. financial institution issuing
the Letter of Credit, which bank or financial
institution must be reasonably acceptable to Seller
and have a credit rating of "A2" or better by Moody's
Investors Service, Inc. and "A" or better by Standard
and Poor's Corporation with respect to such entity's
long-term, unsecured, unsubordinated deposits.
1Z Closine Costs. Closing costs shall be allocated and paid as follows:
RESPONSIBLE
COST PARTY
Title Commitment required to be delivered by Seller pursuant to Section 5.1 Seller
Premium for standard form Title Policy Seller
Premium for any upgrade of Title Policy for extended or additional coverage Purchaser
and any endorsements desired by Purchaser, any inspection fee charged by the
Title Company, tax certificates, municipal and utility lien certificates, and any
other Title Company charges
Costs of the Survey to be delivered by Seller pursuant to Section 5.2 Seller
Costs for UCC Searches Purchaser
Costs of releasing any financing liens that Seller is required to release pursuant Seller
to Section 5.3
Recording Fees Purchaser
Any escrow fee charged by Escrow Agent for holding the Earnest Money or Purchaser !�z
conducting the Closing Seller %2
Real Estate Sales Commission to Broker (if anolicable} N/A
Attorneys' fees incurred by Seller (except as expressly provided otherwise Seller
elsewhere in this Agreement)
Attorneys' fees incurred by Purchaser (except as expressly provided otherwise Purchaser
elsewhere in this Agreement)
All other closing costs, expenses, charges and fees, except for those for which Purchaser
Seller has expressly agreed in writing to be responsible
PURCFL�SE AND SALE AGREEMENT— 3500 E. Slalon Road, Lubbock, Texas, ?9404
49138594v.4
1.3 Notice Addresses.
Purchaser: Adakon Energy Solutions, LLC
433 Central Avenue, Suite 400
St. Petersburg, Florida 33701
Attention: Joe Dillon, CEO
Telephone: (843) 949-0729
E-mail: joe@adakonenergy.com
Copy to: Adakon Energy Solutions, LLC
27 Mellichamp Dr., Suite 100
Bluffton, South Carolina 29910
Copy to: Norton Rose Fulbright US LLP
1550 Lamar Street, Suite 2000
Houston, Texas 77010
Attention: Caileen Gamache; Thomas Verity
Telephone: (713) 651-5633
E-mail: caileen.gamache@nortonrosefulbright.com
thomas.verity@nortonrosefulbright.com
Seller: City of Lubbock, Texas
1314 Avenue K, 5�' Floor
Lubbock, Texas 79401
Attention: Blair McGinnis
E-mail: Bmcginnis@mylubbock.us
LPLContracts@mylubbock.us
Copy to: Jackson Walker, LLP
2323 Ross Avenue, Suite 600
Dallas, Texas 75201
Attention: Linda Donohoe
Telephone: (214) 953-5776
E-maiL• ldonohoe@jw.com
ARTICLE 2
PROPERTY
2.1 Pro er . Subject to the terms and conditions of this Agreement, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, the following property, other than the Excluded
Property and the Retained Assets (collectively, the "Pro er "):
2.1.1 Real Proaertv. The portion of the land located at 3500 E. Slaton Road,
Lubbock, Texas 79404 (County Tax Parcels #R76087 and #R25970) and containing approximately
31 acres, as legally described in Exhibit A-1 attached hereto and depicted on Exhibit A-2 attached
hereto (the "Land"), together with (a) those certain buildings, structures, and other improvements
located thereon and owned by Seller (and including any containers, structures or equipment used
for the transportation, storage, disposal, treatment and handling of hazardous waste, Hazardous
Materials, condensate, oil, or any of them, and any underground storage tanks, underground piping
and other underground facilities that are located on or in the Land), as described in Schedule 2.1.1
PURCHASE AND SALE AGREEMENT — 3SOO E. SIp10n ROC7C/, LtlbIIOCk, Texas, %94�4
49138594v.4
(collectively, the "Imarovements"), and (b) all and singular the rights, benefits, privileges,
easements, tenements, hereditaments, and appurtenances thereon or in anywise appertaining to the
Land (collectively, the "Real Proaertv").
2.1.2 Easements. Lines and Facilities. The easements in favor of Seller as
shown on the Survey (the "Easements") and, to the extent assignable without cost to Seller, all of
Seller's right, title and interest, if any, without warranty, in and to the fixtures and improvements
located within the Easements and owned by Seller (including any containers, structures or
equipment used for the transportation, storage, disposal, treatment and handling of hazardous
waste, Hazardous Materials, condensate, oil, or any of them, and any underground storage tanks,
underground piping and other underground facilities that are located on or in the Easements),
including (a) an approximate 3.3 mile, 230 kV transmission line and related facilities, (b) an
appro�cimate 6.53-mile natural gas pipeline and related facilities, and (c) wastewater line(s) and
related facilities (collectively, the "Lines and Facilities").
2.1.3 Tan�ible Personal Proaertv. All of Seller's right, title and interest, if
any, without warranty, in and to any equipment, systems, fixtures, machinery and other tangible
personal property owned by Seller and located on or in the Real Property, used specifically and
exclusively in connection with the operation, ownership or management of the Real Property
(collectively, the "Tangible Personal Proaertv"), including those two (2) replacement
transformers located on the Land (the "Replacement Transformers"), but specifically excluding
the items of personal property listed on Schedule 2.2 attached hereto, if any.
2.1.4 Permits. To the extent assignable without cost to Seller, all of Seller's
right, title and interest, if any, without warranty, in and to any permits, licenses, certificates and
governmental approvals specifically listed on Schedule 2.1.4 attached hereto (collectively, the
"Permits"). If a Permit requires consent or approval of any third party to assign to Purchaser, and
such consent or approval is not obtained by Seller prior to the Closing Date, such Permit shall be
excluded from the definition of "Permits" and shall not be assigned to Purchaser; provided,
however, in that event, and upon specific request of Purchaser, Seller shall reasonably cooperate
with Purchaser for up to three (3) months following the Closing Date to help Purchaser obtain the
assignment of any outstanding permits from the City of Lubbock or from the Federal Aviation
Administration if Seller reasonably determines that such permits are assignable and Seller can
provide such cooperation without cost or liability to Seller (but Seller shall have no obligation to
cooperate with Purchaser with respect to any other permits, consents and approvals not from the
City of Lubbock or the Federal Aviation Administration).
2.1.5 Proaertv Contracts. To the extent assignable without cost to Seller, all
of Seller's right, title and interest, if any, without warranty, in and to those certain contracts to
which Seller is a party specifically listed on Schedule 2.1.5 (collectively, the "Pro er
Contracts").
2.1.6 Files and Records. All of Seller's right, title and interest in and to all
operation and maintenance manuals and records, vendor, supplier, contractor and service provider
lists for the past five (5) years, and drawings and specifications, in each case to the extent the same
relates to the Property, is in Seller's possession, and is not proprietary, confidential, privileged, or
legally protected from disclosure, as determined by Seller (the "Files and Records").
2.1.7 Tv Cooke Station Name. The right to use the name "Ty Cooke Station"
to the extent that Seller has the right to use such name.
PURCFiASE AND SALE AGREEMENT — 3500 E. SJaton Road, Lubbock, Texas, 79404
49138S94v.4
2.2 Ezcluded Propertv. Notwithstanding anything herein to the contrary, the Property shall
not include (a) any Files and Records that are not in Seller's possession or that are proprietary, confidential,
privileged, or legally protected from disclosure, as determined by Seller; (b) any and all oil, gas and other
minerals in, on and under and that may be produced from the Real Property or any part thereof; and (c) all
items described on Schedule 2.2 attached hereto, including the two installed transformers (the "Installed
Transformers") described therein (collectively, the "Excluded Propertv"). The Excluded Property are
expressly excluded from the definition of Property and are not being conveyed to Purchaser.
2.3 Retained Assets; Reservation of Easements. Seller shall retain ownership of, and all
right, title and interest in and to, (a) the land, improvements and other real property located adjacent to the
Property ("Seller's Adiacent Propertv") and (b) the certain electrical substation known as the "Holly
Station," together with all improvements, fixtures and appurtenances relating thereto (collectively, the
"Retained Assets"). The Retained Assets are expressly excluded from the definition of Property and are
not being conveyed to Purchaser. For avoidance of doubt, the Seller does not anticipate needing to enter
into Easements in connection with the Retained Assets.
2.4 Assumqtion of Liabilities. As of the Closing Date, Purchaser will be responsible for, and
hereby assumes, any and all obligations, liabilities and responsibilities of any nature and kind whatsoever
related to, arising from or associated with the ownership, operation, use, occupancy and/or maintenance of
the Property and/or the conditions of or at the Property, whether known or unknown, disclosed or
undisclosed, or existing or arising in the future, including, without limitation, obligations and liabilities set
forth below in Section 2.4.1 through Section 2.4.5 inclusive (collectively, "Assumed Liabilities");
provided, that the Assumed Liabilities shall not include any obligations, liabilities and responsibilities
arising solely due to or from (a) the willful misconduct or Fraud of Seller, (b) the Excluded Property or
the Retained Assets, or (c) any claim for premises liability made by a third party in writing against Seller,
so long as such written claim is actually received by Seller prior to Closing and does not involve or relate
in any way to Hazardous Materials, Environmental Laws, environmental conditions, or other environmental
matters, but only until such time as any applicable statute of limitations for such claim has expired or such
claim has been released by such third party.
2.4.1 LeEal Compliance. All obligations to comply with any and all applicable
federal, state and local laws, statutes, codes, orders, ordinances, rules and regulations (including,
without limitation, Environmental Laws), including: (i) obligations to implement actions needed to
comply with or operate in compliance with such applicable laws and any and all applicable permits;
and (ii) responsibility for any monitoring, testing, sampling or other investigation required to
establish or determine compliance with such applicable laws or any and all applicable permits;
2.4.2 Permits. All liabilities, obligations, and responsibilities under or in
connection with the Permits, including any amendments, modifications, extensions or renewals
thereof, on and after the Closing Date;
2.4.3 Proaertv Contracts. All liabilities, obligations, and responsibilities
under or arising out of the Property Contracts on and after the Closing Date;
2.4.4 Environmental Matters. All environmental conditions, obligations,
liabilities, and responsibilities relating to the Property and Hazardous Material thereon, therein, or
migrating therefrom (including, without limitation, any and all matters arising from or relating to
the Property or the application of, or compliance with, Environmental Laws), including
investigation, compliance, remediation, monitoring, and maintenance of any institutional or
engineering controls. Without limiting the foregoing, such assumed conditions, liabilities,
PURCFiASE AND SALE AGREEMENT—.iSOO E. SlptOn ROC7CI, LtIbbOCIC, T¢XRS, 79404
49138594v.4
obligations, and responsibilities include those for which Purchaser has taken responsibility for, has
assumed, has released Seller from, or has agreed to indemnify Seller for pursuant to the terms of
this Agreement, including pursuant to Article 1 l; and
2.4.5 Utilitv and Operatin� Exaenses. All utilities and other operating
expenses for the Property accruing on and after the Closing Date.
2.4.6 Taxes. All liabilities, obligations and responsibilities associated with
Property Taxes and Other Taxes, including liabilities and obligations assumed by Purchaser
pursuant to Section 8.1.
ARTICLE 3
EARNEST MONEY
3.1 Deposit and Investment of Earnest Monev. Within three (3) Business Days after the
Effective Date, Purchaser shall deposit the Initial Earnest Money with Escrow Agent. If this Agreement
has not been terminated, Purchaser shall deposit the First Additional Earnest Money Deposit with Escrow
Agent on the date that is forty-five (45) days after the Effective Date. If this Agreement has not been
terminated, Purchaser shall deposit the Second Additional Earnest Money Deposit with Escrow Agent
ninety-days (90) after the Effective Date. Escrow Agent shall invest the Earnest Money in government
insured interest-bearing accounts satisfactory to Seller and Purchaser, shall not commingle the Earnest
Money with any funds of Escrow Agent or others, and shall promptly provide Purchaser and Seller with
confirmation of the investments made. Such account shall have no penalty for early withdrawal, and
Purchaser accepts all risks with regard to such account. Upon deposit, all Earnest Money shall be deemed
fully earned by Seller as consideration for entering into this Agreement and providing Purchaser with the
option to purchase the Property during the Option Period in accordance with the terms and conditions of
this Agreement, and is non-refundable to Purchaser in all events, except as expressly set forth in Section 3.4.
3.2 Indeaendent Consideration. If Purchaser terminates this Agreement pursuant to the
terms of this Agreement and is entitled to receive a return of the Earnest Money in accordance with
Section 3.4, Escrow Agent shall first disburse to Seller One Hundred and No/100 Dollars ($100.00) as
independent consideration for Seller's agreement to enter into this Agreement ("Indeaendent
Consideration"), which shall be retained by Seller in all instances.
3.3 Form; Failure to Denosit. The Earnest Money shall be in the form of a certified or
cashier's check or a wire transfer to Escrow Agent of immediately available U.S. federal funds. If Purchaser
fails to timely deposit any portion of the Earnest Money within two (2) Business Days of the time periods
required by this Agreement, Seller may terminate this Agreement.
3.4 Disnosition of Earnest Monev. If this Agreement has not been terminated and the Closing
occurs, the Earnest Money shall be applied as a credit to the Purchase Price at Closing. In the event of a
termination of this Agreement by either Seller or Purchaser for any reason whatsoever, the Earnest Money
shall be delivered to Seller, except in the event that (a) this Agreement is timely and properly terminated
by Purchaser pursuant to Section 3.8.5, Section 3.8.6, or Section 3.8.1 l, (b) the event giving rise to the right
of Purchaser to terminate is not due to any act, omission, breach, or failure to perform by Purchaser, and
(c) Purchaser is not in breach of this Agreement and an Event of Default with respect to Purchaser has not
occurred, and in the case that all conditions set forth in the preceding clauses (a) through (c) are satisfied,
then the Earnest Money (less the Independent Consideration) shall be delivered to Purchaser. [n the event
of a termination of this Agreement by either Seller or Purchaser in accordance with the terms of this
Agreement, Escrow Agent is authorized to deliver the Earnest Money to the party hereto entitled to same
PURCHASE AND SALE AGREEMENT— 3500 E. Slalon Road, Lubbock, Texas, 79404
49138594v.4
pursuant to the terms of this Section 3.4 on or before the seventh (7th) Business Day following receipt by
Escrow Agent of written notice of such termination from the terminating party (which notice must specify
the applicable Section of this Agreement and event giving rise to the terminating party's right to terminate
this Agreement and include evidence that the termination notice has been delivered to the non-terminating
party and any supporting documentation required hereunder to be included in a termination notice), unless
the non-terminating party notifies Escrow Agent that it disputes the termination or the right of the other
party to receive the Earnest Money. In such event, Escrow Agent may interplead the Earnest Money into
a court of competent jurisdiction in Lubbock, Lubbock County, Texas. All attorneys' fees and costs and
Escrow 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.
3.5 Letter of Credit. On the Closing Date, Purchaser shall cause the LC Issuing Bank to issue
and maintain, by renewal, extension or replacement, for the periods specified herein an irrevocable,
unconditional, transferable, standby letter of credit in favor of Seller meeting the requirements of this
Section 3.5 and in the same form and substance as E�chibit D(such letter of credit, as the same may be
renewed, extended or replaced from time to time hereunder, the "Letter of Credit"). All fees and charges,
including issuing, commitment and operation fees and charges, relating to the Letter of Credit shall be borne
by Purchaser. The Letter of Credit shall comply with and be subject to the following terms and conditions:
3.5.1 Upon issuance, the Letter of Credit shall have a face amount equal to
$5,000,000. Purchaser shall cause the LC Issuing Bank to issue and maintain, by renewal,
extension or replacement, the Letter of Credit in accordance with the terms and conditions of this
Agreement from the date of initial issuance on the Closing Date until thirty (30) days after the
statute of limitations for all potential claims under, and liabilities and obligations of Purchaser
under, Article 11 have expired and all obligations of Purchaser under this Agreement have been
fully and finally satisfied; provided, however, that in the event there is a dispute between the Parties
relating to or in connection with this Agreement or Purchaser's obligations hereunder that has not
been resolved by such date (including any dispute regarding amounts allegedly owed and not paid
by Purchaser, any alleged breach of Purchaser hereunder, or any claim by Seller for
indemnification), Purchaser shall maintain the Letter of Credit until the matter in dispute has been
finally and fully settled and any amounts payable by Purchaser have been paid in full and Purchaser.
Within thirty (30) days after the date when Purchaser is no longer required to maintain the Letter
of Credit hereunder, Seller shall return the Letter of Credit to the LC Issuing Bank with instructions
for cancellation.
3.5.2 Each Letter of Credit shall, upon each issuance, renewal or extension, have
a then current expiration date that is no less than twelve (12) months from the date of such issuance,
renewal or extension, as applicable. At least sixty (60) days prior to the expiration of the Letter of
Credit then in effect, Purchaser shall cause the LC [ssuing Bank to renew the Letter of Credit or
issue a new Letter of Credit and deliver such renewed or new Letter of Credit to Seller. If Seller
does not receive such renewed or new Letter of Credit at least sixty (60) days prior to the expiration
of the Letter of Credit then in effect, Seller may draw down the full amount of the Letter of Credit,
and any and all amounts drawn by Seller shall constitute cash security for Purchaser's obligations
hereunder.
3.5.3 If at any time after the issuance of a Letter of Credit, the credit rating of
the LC Issuing Bank falls below "A2" by Moody's Investors Service, Inc. or "A" by Standard and
Poor's Corporation, Seller may require Purchaser to provide a substitute Letter of Credit issued by
a new LC Issuing Bank satisfying the requirements set forth herein by providing written notice
PURCFtaSE AND SALE AGREEMENT — 3500 E. S(alon Road, Lubbock, Texas, 79404
49138594v.4
thereof to Purchaser. In the event that Purchaser does not cause a new LC Issuing Bank satisfying
the requirements set forth herein to issue a new Letter of Credit meeting the requirements of this
Section 3.5 within five (5) days after receipt of such a written notice, Seller may draw down the
full amount of the then issued Letter of Credit, and any and all amounts drawn by Seller shall be
held by Seller as cash security for Purchaser's obligations hereunder.
3.5.4 At any time on or after an Event of Default of Purchaser has occurred
(including, for the avoidance of doubt, an Event of Default occurring after Closing), Seller may
draw down the full amount of the Letter of Credit, and any and all amounts drawn by Seller shall
be held by Seller as cash security for Purchaser's obligations hereunder.
3.5.5 Purchaser hereby grants to Seller a continuing first priority security
interest in, lien on, and right of setoff against all security provided to or held by Seller in the form
of cash.
3.5.6 Seller shall have the right to draw upon the Letter of Credit by presenting
to the LC Issuing Bank a draw certificate in the form provided in the Letter of Credit, which shall
provide for payment no later than the second (2"d) Business Day immediately succeeding the date
of presentment. Seller may draw upon the Letter of Credit or cash security for any and all amounts
payable to Seller hereunder, any Damages arising out of or resulting from any breach by Purchaser
hereunder, including any failure to comply with Article 11.
3.6 Option Period. Purchaser may terminate this Agreement for any reason or no reason by
giving the required written notices (the "Oation Period Termination Notice") on or before the last day of
the Option Period. If Purchaser does not deliver the Option Period Termination Notice to Seller on or
before the last day of the Option Period, this Agreement shall continue in full force and effect, and Purchaser
shall no longer be entitled to terminate the Agreement pursuant to this Section 3.7 and shall be deemed to
have waived and released its right to terminate this Agreement pursuant to this Section 3.6.
3.7 Outside Termination Date. In the event the Closing has not occurred on or before the
Outside Termination Date, either party shall have the right to terminate this Agreement no later than three
(3) Business Days after the Outside Termination Date; provided, (a) the party electing to terminate is not
then in breach of this Agreement, an Event of Default with respect to such party has not occurred, and no
event has occurred that, with the passage of time or the provision of notice, or both, could result in an Event
of Default, and (b) the failure of the Closing to occur on or before such date is not due to any act, omission,
breach, or failure to perform by such terminating party.
3.8 Limited Termination Riehts. Subject to the terms of this Agreement, this Agreement
may be terminated only pursuant to the following:
3.8.1 Mutual A¢reement. The parties mutually agree in writing to terminate
this Agreement.
3.8.2 Failure to Deaosit Earnest Monev. Seller's right to terminate this
Agreement pursuant to Section 3.3.
3.8.3 Oation Period Termination. Purchaser's right to terminate this
Agreement pursuant to Section 3.6.
PURCHASE AND SALE AGREEMENT— 3500 E. S(a[on Road, Lubbock, Texas, 79404
49138594v.4
3.8.4 Outside Termination Date. Seller's and Purchaser's rights to terminate
this Agreement pursuant to Section 3.7.
3.8.5 Material Environmental Condition. Purchaser's right to terminate this
Agreement pursuant to Section 4.8.
3.8.6 Title and Survev Matters. Purchaser's right to terminate this Agreement
pursuant to Section 5.3.
3.8.7 Material Dama�e/Casualtv. Seller's and Purchaser's rights to terminate
this Agreement pursuant to Section 6.2.1.
3.8.8 Condemnation. Seller's and Purchaser's rights to terminate this
Agreement pursuant to Section 6.3.
3.8.9 Non-Satisfaction of Closing Conditions. Seller's and Purchaser's rights
to terminate this Agreement pursuant to Section 7.2.3.
3.8.10 Purchaser Default. Seller's right to terminate this Agreement pursuant
to Section 10.1.
3.8.11 Seller Default. Purchaser's right to terminate this Agreement pursuant to
Section 10.2.
3.9 Termination Notice; Effect of Termination. If a party desires to terminate this
Agreement pursuant to any termination right it has as set forth in this Agreement, it must provide written
notice of such termination to the non-terminating party and Escrow Agent, in accordance with Section 12.9,
which notice must specify the applicable Section of this Agreement and event giving rise to the terminating
party's right to terminate this Agreement and any other documentation as required under this Agreement.
In addition, such notice to Escrow Agent must include evidence that the termination notice has been
delivered to the non-terminating party. Termination of this Agreement is effective upon delivery of such
written notice to the non-terminating party and Escrow Agent, as determined pursuant to Section 12.9, upon
which the parties shall have no further rights and obligations under this Agreement except as provided in
Section 12.5. For the avoidance of doubt, this Agreement may not be terminated after the Closing has
occurred.
ARTICLE 4
DUE DILIGENCE
4.1 Due Dili�ence Materials. To the extent such items presently exist and are in Seller's
possession, Seller shall deliver or make available to Purchaser for Purchaser's review, upon Purchaser's
request during the Inspection Period, the items and information set forth on Schedule 4.1 (the "Pro er
Information"). At Seller's option, the Property Information may be delivered or made available
electronically. Notwithstanding anything to the contrary, in no event shall Seller be required to provide
any such Property Information that is confidential, proprietary or unreasonably requested, as determined by
Seller in its sole and absolute discretion. Any Property Information delivered or made available to
Purchaser shall be provided for informational purposes only, without representation or warranty of any kind
on the part of Seller, except to the extent of any representations and warranties expressly made by Seller in
this Agreement.
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PURCt�SE AND SALE AGREE�tENT — 3500 E. SlAton Road, LubboCk, TexaS, 79404
49138594v.4
4.2 Phvsical Due Diligence. Commencing on the Effective Date and continuing until the
expiration of the Inspection Period, Purchaser shall have reasonable access to the Property at all reasonable
times during normal business hours for the purpose of conducting reasonably necessary tests, inspections,
studies, and reports (collectively, "Investi�ations"), including surveys and architectural, engineering,
geotechnical and environmental Investigations; provided, that (a) Purchaser must give Seller twenty four
(24) hours' prior telephone or written notice of any such Investigations, and with respect to any intrusive
Investigations (including, without limitation, collection of air, soil, groundwater, or building material
samples or soil cores or any Investigations designed to identify the presence of Hazardous Materials),
except as provided below, must obtain Seller's prior written consent (which consent may be given, withheld
or conditioned in Seller's sole and absolute discretion), provided that Purchaser shall have reasonable access
to the site to perform non-intrusive abservational Investigations and Seller may not unreasonably limit
Purchaser's access for such non-intrusive observational Investigations, (b) prior to performing any
Investigations, Purchaser must deliver a certificate of insurance to Seller evidencing that Purchaser and its
contractors, agents and representatives have in place the insurance required by Section 4.4 below, and (c) all
such Investigations shall be subject to such processes, parameters, terms, conditions and other requirements
as Seller may impose in its sole and absolute discretion, including without limitation, Purchaser's
responsibilities set forth in Section 4.7 below. The foregoing notwithstanding, Purchaser may conduct
intrusive environmental sampling so long as a detailed plan for same is submitted to, and approved in
writing by, Seller prior to commencement of such sampling, such approval not to be unreasonably withheld,
and provided further that Purchaser shall promptly provide Seller a copy of any testing results from such
sampling. Purchaser shall bear the cost of all such Investigations and shall be responsible for and act as the
generator with respect to any wastes generated by those Investigations. Subject to the provisions of
Section 4.5 hereof, Purchaser or Purchaser's representatives may communicate with any governmental
authority, but only for the purpose of gathering information regarding then-current zoning and entitlements
affecting the Real Property; provided, however, Purchaser must contact Seller at least forty-eight (48) hours
in advance by email to inform Seller of Purchaser's intended communication and must allow Seller the
opportunity to participate in such communication if Seller desires. As used in this Section, "communicate"
and "communication" shall include the initiation of, response to, or sharing or exchange of information,
knowledge or messages, whether by oral, written or electronic methods or media, or by any other means
for the purpose of knowingly subverting the provisions ofthis Section 4.2 regarding Purchaser's obligations
to provide Seller with prior written notice of such communication and Seller's ability to participate in such
communication. Notwithstanding Purchaser's right to conduct the Investigations, Purchaser acknowledges
and agrees that the Property will be accepted by Purchaser AS IS, WHERE IS, AND WITH ALL FAULTS,
and that after the expiration of the Option Period, Purchaser shall have no right to terminate this Agreement
(except as otherwise expressly permitted pursuant to this Agreement), refuse to consummate the
transactions contemplated thereby, or seek any Purchase Price reduction, credit, offset, or escrow as a result
of the results of any Investigations.
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PURCIiASE AND SALE AGREEMENT— 3SOO E. SIOfO» ROQ[% LubbOCl[, Texas, 79404
49138594v.4
4.3 Return of Documents and Reports.
43.1 Reaorts. Purchaser shall promptly, and in any event within five (5)
Business Days after receipt, deliver to Seller copies of all third-party reports, investigations, tests,
analyses, studies, or similar reports (collectively, the "Reaorts" and, individually, a"Renort")
prepared for Purchaser in connection with its due diligence review of the Property or generated
from Purchaser's Investigations. The Reports shall be delivered to Seller without any
representation or warranty as to the completeness or accuracy of the Reports or any other matter
relating thereto, and Seller shall have no right to rely on any Report without the written consent of
the person preparing such Report.
43.2 Mandatory Return or Destruction. If this Agreement terminates for any
reason, or upon the request by Seller, Purchaser shall promptly, and in any event within five (5)
Business Days, return to Seller, or cause to be returned to Seller, or destroy, all Proprietary
Information in Purchaser's or its representatives' possession or control and copies thereof. If Seller
requests destruction of the Proprietary Information and copies thereof, Purchaser shall certify such
destruction in writing upon Seller's request.
4.4 Insurance. At all times Purchaser shall comply with the insurance requirements set forth
on Schedule 4.4 attached hereto. No requirements set forth in Schedule 4.4 as to types, limits, or any
approvals of insurance coverage to be maintained by Purchaser are intended to, and shall not in any manner,
limit, qualify, or quantify the any liability, obligation or responsibility of Purchaser.
4.5 Proarietary Information; Confidentialitv.
4.5.1 Use of Proarietary Information; Permitted Outside Parties. Unless
Seller specifically and expressly otherwise agrees in writing, Purchaser acknowledges that all (a)
Property Information, (b) all information, documents and materials, whether written or oral,
furnished prior to or after the Effective Date by Seller to Purchaser or any of its affiliates or
representatives in connection with the Property, (c) environmental sampling data, analytical results,
draft or final environmental reports, and results of Investigations, and (d) the Reports (collectively,
"Proarietary Information") are proprietary and confidential information of Seller and shall not
be disclosed by Purchaser to any person or entity. Prior to the Closing Date, Purchaser shall not
use, or allow to be used, any Proprietary [nformation for any purpose other than (a) determining
the feasibility of purchasing the Property and (b) facilitating the development, operations and
maintenance of the Project by Purchaser (but not any other person or entity); provided, however,
in so using any Proprietary [nformation for such purposes Purchaser shall comply with the
provisions of this Section 4.5.1. Notwithstanding the foregoing, this Section 4.5.1 shall not prevent
Purchaser from disclosing any Proprietary Information if and to the extent: (i) required to do so by
applicable law, provided that Purchaser shall give prior notice to Seller of such required disclosure
and, if so requested by Seller, shall use all reasonable efforts to oppose the requested disclosure as
appropriate under the circumstances; (ii) disclosed to those persons who are responsible for
determining the feasibility of Purchaser's acquisition of the Property or facilitating the
development, operations and maintenance of the Project and who have agreed in writing to preserve
the confidentiality of such information as required hereby (collectively, "Permitted Outside
Parties"); provided, however, Purchaser shall disclose only such information to a particular
Permitted Outside Party as is reasonably necessary for that Permitted Outside Party to perform its
role in assisting Purchaser to determine the feasibility of its acquisition of the Property or to
facilitate the development, operations and maintenance of the Project, and, Purchaser shall be liable
to Seller for any disclosure by such persons in violation of the terms of this Section 4.5.1; or (iii)
l2
PURCiL�SE AND SALE AGREEMENT — 3SOO E. Slaton ROad, Lubbock, Texas, %94�4
49138594v.4
that prior to disclosure of any Proprietary Information, such information was already in the public
domain, or which after disclosure entered the public domain other than by a breach of this
Agreement by Purchaser or the Permitted Outside Parties, or the contractors, agents and
representatives of each of the foregoing. At any time and from time to time prior to the Closing
Date, within two (2) Business Days after Seller's request, Purchaser shall deliver to Seller a list of
all persons to whom Purchaser has provided any Proprietary Information or any information taken
from Proprietary lnformation. Purchaser shall not divulge the contents of the Proprietary
Information and other information except in strict accordance with the confidentiality standards set
forth in this Section 4.5.1. In permitting Purchaser to review the Proprietary Information or any
other information, 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.
4.5.2 Remedies. Purchaser acknowledges that the breach of any of its
covenants contained in this Section 4.5 or in Section 4.3 will result in irreparable harm and
continuing damages to Seller, and that Seller's remedy at law for any such breach or threatened
breach would be inadequate. Accordingly, in addition to such remedies as may be available to
Seller at law or in equity in the event of any such breach, any court of competent jurisdiction may
issue an injunction (both preliminary and permanent), without bond, enjoining and restricting the
breach or threatened breach of any such covenant, including an injunction restraining Purchaser
from disclosing, in whole or in part, any Proprietary Information, and Purchaser hereby waives and
releases, and Purchaser will cause the Permitted Outside Parties and its contractors, agents and
representatives to waive and release, any requirement for the securing or posting of any bond or
other security in connection with any such remedy. Purchaser will pay all of Seller's costs and
expenses, including reasonable attomeys' fees, accountants' fees, and other costs incurred in
enforcing this Section 4.5 and Section 43.
4.6 No Representation or Warrantv bv Seller. Purchaser acknowledges that Seller has not
made and does not make any warranty or representation regarding the truth, accuracy or completeness of
the Proprietary Information or the source(s) thereof. Purchaser further acknowledges that some if not all
of the Proprietary Information was prepared by third parties other than Seller. Seller expressly disclaims
any and all liability for representations or warranties, express or implied, statements of fact and other
matters contained in such information, or for omissions from the Proprietary Information, or 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. Seller has not undertaken any
independent investigation as to the truth, accuracy or completeness of the Proprietary Information and is
providing the Proprietary lnformation furnished by Seller solely as an accommodation to Purchaser.
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PURCFL�SE AND SALE AGREEMENT— 3500 E. Slaton Road, Ltrbbock, Texas, 79404
49138594v.4
4.7 Purchaser's Responsibilities.
4.7.1 Investigations. In conducting any Investigations of the Property,
Purchaser shall, and shall cause its contractors, agents and representatives, to adhere to the
following:
(a) No Alterations. Purchaser shall not alter or modify the Property
in any manner (including, without limitation, removing or altering any vegetation
or landscaping, or making any physical changes to any structures or improvements
on the Property) without the express written consent of Seller, which Seller may
grant or deny in its sole discretion;
(b) Activities. Purchaser shall, at its own cost and expense, take all
commercially reasonable action to ensure that the activities of Purchaser and its
contractors, agents and representatives shall not affect the physical condition (other
than intrusive Investigations permitted by Seller as provided in Section 4.2) or the
safe operation of the Property and any improvements, personal property and
facilities located on the Property;
(c) Comaliance. Purchaser shall comply with all applicable federal,
state and local laws, statutes, codes, ordinances, rules and regulations (including
Environmental Laws) relating to the activities of Purchaser on the Property. If
Purchaser's activities on the Property will require any permits or authorizations
from any governmental agency, Purchaser shall first obtain Seller's prior written
consent (such consent to be in Seller's sole discretion) prior to contacting any
governmental agency or submitting any request for any such permits or
authorizations. All such permits and authorizations of whatever nature from all
governmental agencies shall be at the sole expense of Purchaser; and
(d) Costs. Purchaser shall promptly pay when due the costs of all
Investigations and shall not permit any construction, mechanic's or materialman's
liens or any other liens to attach to the Property or any portion thereof by reason
of the performance of any work or the purchase of any materials by or on behalf
of Purchaser, and Purchaser shall promptly remove and discharge any such liens
that do attach to the Property.
4.7.2 Repair and Restore Obli�ations. If any portion of the Property, or any
personal property, structure or facility located on or near the Property, suffers damage by reason of
the Investigations or other access to or use of the Property by, or any act or omission of, Purchaser
or its contractors, agents and representatives, Purchaser shall, at its own cost and expense, promptly
repair all such damage and restore the Property or such personal property, structure or facility and
complete such repairs and restoration by the expiration of the Option Period (as may be extended
pursuant to this Agreement) to (i) as to undeveloped real property, substantially the same condition
that existed before the damage occurred, and (ii) as to any improved real property, personal
property, structure or facility, at least as good a condition that existed before the damage occurred.
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PURCEwSE aND SALE AGREEMENT— 3500 E. Slalon Road, Lubbock, Texas, 79404
49138594v.4
4.7.3 WAIVER AND RELEASE. SELLER SHALL NOT BE LIABLE FOR, AND
PURCHASER HEREBY REI,EASES AND DISCHARGES EACH SELLER PARTY FROM, ANY LOSS, DAMAGE
OR INJURY OF ANY KIND TO ANY PERSON OR PROPERTY ARISING FROM ANY ACCESS TO OR USE OF
THE PROPERTY BY PURCHASER AND/OR ITS CONTRACTORS, AGENTS AND REPRESENTATIVES OR
CAUSED BY ANY CONDIT[ON AT THE PROPERTY OR DEFECT IN ANY BUILDING, STRUCTURE OR
OTHER IMPROVEMENT THEREON OR IN ANY EQUIPMENT OR OTHER FACILITY THEREIN, OR CAUSED
BY OR ARIS[NG FROM ANY ACT OR OMISSION OF PURCHASER AND/OR ITS CONTRACTORS, AGENTS
AND REPRESENTATIVES, OR BY OR FROM ANY ACCIDENT ON THE PROPERTY OR ANY FIRE OR OTHER
CASUALTY THEREON, OR OCCAS[ONED BY THE FAILURE OF SELLER TO MAINTAIN THE PROPERTY
IN A SAFE CONDITION, OR ARISING FROM ANY OTHER CAUSE WHATSOEVER. PURCHASER, AS A
MATERIAL PART OF THE CONSIDERATION OF THIS AGREEMENT, HEREBY [RREVOCABLY AN
UNCONDITIONALLY WAIVES, RELEASES AND DISCHARGES ALL DAMAGES AGAINST SELLER AND
THE SELLER PARTIES FOR ANY SUCH LOSS, DAMAGE OR INJURY OF PURCHASER, ITS CONTRACTORS,
AGENTS AND REPRESENTATIVES AND/OR ANY OF THEIR PROPERTY. P URCHASER ALSO HEREBY
FULLY AND FOREVER RELEASES AND DISCHARGES SELLER AND THE SELLER PART[ES, AND AGREES
NOT TO BRING ANY ACTION, CLAIM, DEMAND OR PROCEEDING AGAINST ANY SELLER PARTY WITH
RESPECT TO, ANY AND ALL DAMAGES RESULTING FROM OR RELATING TO THE INVESTIGATIONS
AND ACCESS TO AND USE OF THE PROPERTY BY PURCHASER AND ITS CONTRACTORS, AGENTS AND
REPRESENTATIVES OR RESULTING FROM OR RELATING TO ANY INJURY SUSTAINED BY PURCHASER,
ITS CONTRACTORS, AGENTS AND REPRESENTATIVES AND/OR ANY OTHER PERSON OR ANY DAMAGE
TO PERSONAL PROPERTY OWNED BY PURCHASER, ITS CONTRACTORS, AGENTS AND
REPRESENTATIVES AND/OR ANY OTHER PERSON. NOTWITHSTANDING ANYTHING CONTAINED IN
THIS AGREEMENT TO THE CONTRARY, THE WAIVERS AND RELEASES UNDER THIS SUBSECTION 4.7.3
SHALL NOT APPLY TO ANY CLAIMS ARISING OR RESULTING FROM ANY FRAUD, GROSS NEGLIGENCE
OR MTENTIONAL MISCONDUCT OF SELLER OR ANY SELLER PARTY.
4.8 Environmental Studies; Purchaser's Right to Terminate. Without limiting Section 4.3,
upon Seller's written request, Purchaser must provide to Seller, immediately following the receipt of same
by Purchaser, copies of any and all Investigations involving contamination of or other environmental
concerns relating to the Property; provided, however, Purchaser shall have no obligation to cause any such
Investigations to be performed on the Property. Seller 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. ln
the event that such Investigations reveal, prior to the end of the Inspection Period, a Material Environmental
Condition that is not disclosed in the Property Information or is not otherwise known to Purchaser, then
Purchaser may terminate this Agreement by providing the required written notices prior to the end of the
Inspection Period, and in this case, the written notices of termination must include reasonable supporting
documentation of the claimed Material Environmental Condition (including the relevant portions of any
consultanYs report) and the Cost Estimate. A"Material Environmental Condition" means a previously
undisclosed or unknown condition in soil or groundwater at or under the Real Property (a) that is discovered
by Purchaser after the Effective Date; (b) that is in violation of applicable Environmental Laws and requires
active investigation, remediation, or corrective action under the direction of a governmental authority; and
(c) for which the reasonable and necessary direct third-party costs to investigate, delineate, remediate, and
obtain regulatory closure for continued industrial or commercial use of the Real Property (but excluding
costs for Purchaser's redevelopment, demolition unrelated to remediation, business interruption, lost
profits, internal overhead, financing costs, and capital improvements for Purchaser's intended use), as
reasonably estimated in writing by a qualified environmental professional, using customary remediation
cost-estimating methodologies and inclusive of a ten (10%) percent contingency (the "Cost Estimate"),
exceeds an amount equal to ten percent (10%) of the Purchase Price. For any such estimate of such direct
third-parry costs expressed as a range, the midpoint of such range shall be considered the Cost Estimate.
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PURCFL�SE AND SALE AGREEMENT — 3SOO E. SICJIOYf ROC1C/, Lt�bBOC/C, Tezas. 79404
49138594v.4
For the avoidance of doubt, the presence of asbestos-containing materials, lead-based paint, or
polychlorinated biphenyls in legacy equipment or other building materials, or conditions arising from
Purchaser's planned demolition or renovation, shall not constitute a Material Environmental Condition. If
Purchaser provides notice of termination of this Agreement pursuant to this Section 4.8 and Seller disputes
Purchaser's Cost Estimate, the parties shall promptly engage an independent environmental cost estimator
with at least ten (10) years of relevant experience to determine the Cost Estimate, and Purchaser's notice
of termination shall be suspended pending the determination of the Cost Estimate by such independent
environmental cost estimator. The Cost Estimate as determined by such independent environmental cost
estimator shall be final and binding on the parties, and the fees of the independent environmental cost
estimator shall be borne equally by the parties. If such Cost Estimate is equal to or less than ten percent
(] 0%) of the Purchase Price, then Purchaser's termination notice shall be null and void and this Agreement
shall remain in full force and effect. If such Cost Estimate is greater than ten percent ( l0%) of the Purchase
Price, then Purchaser's termination shall become effective (so long as all conditions in Section 3.8 have
been satisfied) and this Agreement shall terminate.
ARTICLE 5
TITLE AND SURVEY
5.1 Title Commitment. Seller shall cause to be prepared and delivered to Purchaser: (a) a
current commitment for title insurance or preliminary title report covering the Real Property (the "Title
Commitment") issued by the Title Company, in the amount of the Purchase Price, with Purchaser as the
proposed insured, and (b) copies of all documents of record referred to in the Title Commitment as
exceptions to title to the Property. Seller shall have the Title Commitment prepared and delivered to
Purchaser on or before the Title Commitment Delivery Date.
5.2 Survev. Seller shall deliver to Purchaser its existing survey of the Land, if any, in
accordance with Section 4.1 hereof. Seller shall cause a new ALTA/NSPS survey of the Real Property (the
"Survev") to be prepared by a licensed Texas surveyor, certified to Seller and Purchaser, and Seller shall
cause the Survey to be delivered to Purchaser on or before the Survey Delivery Date. Purchaser shall have
the right, any time prior to Closing, at Purchaser's sole cost and expense, to (a) have the Survey certified
to Purchaser's lender and other related parties designated by Purchaser, and (b) require that the Survey be
revised and/or updated in any manner reasonably required by Purchaser, in each case subject to Seller's
prior approval.
5.3 Title Review. Purchaser shall review title to the Real Property as disclosed by the Title
Commitment and the Survey and prior to the end of the Title and Survey Review Period, advise Seller in
writing of any objections thereto that Purchaser may have. Seller shall have the right, but not the obligation,
to cure or address any such objections, except that Seller shall be obligated to cure and cause the release at
or prior to Closing of any monetary liens encumbering the Real Property voluntarily created by Seller that
secure indebtedness of Seller (and Seller may apply the Purchase Price or a portion thereof for such
purpose). Except for any encumbrances in the ordinary course of Seller's business that do not materially
and adversely affect the Real Property for use as a power generation facility, Seller further agrees to remove
any exceptions or encumbrances to title which are voluntarily created by, under or through Seller after the
Effective Date without Purchaser's consent (but if requested, such consent of Purchaser shall not be
unreasonably withheld or delayed). If Purchaser notifies Seller of objections to title or survey matters prior
to the end of the Title and Survey Review Period, and if thirty (30) days after Seller's receipt of such notice
(a) there remain any exceptions to title or survey matters for which Purchaser has objected (other than any
liens or encumbrances that Seller is required to cure pursuant to this Section 5.3) that materially and
adversely affect the Real Property for use as a power generation facility, and (b) Seller has not undertaken
(or committed to undertake) to cure or address any such material objection, then Purchaser may terminate
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PURCHaSE AND SALE AGREEn�ENT — 3500 E. Slaton Road, Lubbock, Texas, 79404
49138594v.4
this Agreement by providing the required written notices within five (5) days after the expiration of such
thirty (30) day period. If Purchaser fails to timely terminate this Agreement within such five (5) day period,
Purchaser shall be deemed to have waived and released such objections and its right to terminate this
Agreement for title and/or survey reasons, all such title and/or survey matters to which Purchaser objected
(other than liens or encumbrances that Seller is required to cure pursuant to this Section 5.3) and that are
not cured or addressed shall become Permitted Exceptions, and the Permitted Exceptions, all title and
survey matters, and the status of title (other than liens or encumbrances that Seller is required to cure
pursuant to this Section 5.3) shall be deemed accepted by Purchaser. The term "Permitted Ezceptions"
shall mean: all easements, covenants, restrictions, defects, encumbrances, liens, permits, and other matters
affecting the Real Property, including, but not limited to, the exceptions that the Title Company has not
agreed to remove from the Title Commitment as of the end of the Title and Survey Review Period and that
Seller is not required to remove pursuant to this Section 5.3; matters created by, through or under Purchaser;
physical matters and conditions, if any, that exist at the Real Property or that would be disclosed by an
accurate survey of the Real Property, including but not limited to items shown on the Survey which have
not been removed as of the end of the Title and Survey Review Period; real estate taxes not yet due and
payable (or for which Purchaser is otherwise responsible in accordance with Section 8.1); local, state and
federal laws, ordinances or governmental regulations, including, but not limited to, building and zoning
laws, ordinances, and regulations and Environmental Laws, now or hereafter in effect, relating to the
Property; and the rights of third parties under the Property Contracts.
5.4 Title Policv. Purchaser may elect to request the Title Company to issue to Purchaser at
Closing an owner's title policy in accordance with the Title Commitment, insuring Purchaser's title to the
Real Property in the amount of the Purchase Price, subject to the standard exclusions from coverage
contained in such policy and the Permitted Exceptions (the "Title Policv") to be paid for in accordance
with the cost allocations set forth in Section 1.2.
ARTICLE 6
OPERATIONS, RISK OF LOSS, AND APPROVALS
6.1 On$oin� Oaerations. From the Effective Date through Closing:
6.1.1 Proqertv Contracts. From the Effective Date through Closing or the
earlier termination of this Agreement, Seller will perform its material obligations under the
Property Contracts in substantially the same manner as prior to the Effective Date in Seller's normal
course of business. As of or prior to Closing, Seller may terminate any and all service contracts to
which it is a party that directly relate to the Properiy, including without limitation those listed on
Schedule 6.1.1, other than the Property Contracts, and Seller shall bear all termination fees or
charges or other remaining obligations or liabilities, if any, under such terminated contracts.
6.1.2 New Contracts. From and after the expiration of the Inspection Period
through Closing or the earlier termination of this Agreement, Seller will not enter into any contract
that will be an obligation affecting the Property subsequent to the Closing, except contracts entered
into in the ordinary course of business that are terminable without cause and without the payment
of any termination penalty on not more than thirty (30) days' prior notice.
6.1.3 Maintenance of Improvements; Removal of Personal Proaertv.
Subject to Sections 6.2 and 6_3, Seller shall make reasonable efforts to maintain all Improvements,
Lines and Facilities, and Tangible Personal Property (the "Phvsical Proaertv") substantially in
their present condition (ordinary wear and tear and casualty excepted) and in a manner consistent
with Seller's maintenance of such items during Seller's period of ownership. Seller will not remove
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PURCFiASE AND SALE AGREEMENT— 3SOO E. SlQt077 ROnCI, LubbOCl[, Texas, 79404
49138594v.4
any Tangible Personal Property except as may be required for necessary repair or replacement, and
replacement shall be of approximately equal quality and quantity as the item of Tangible Personal
Property removed.
6.1.4 Seller shall have no obligation to install, connect, commission, or place
the Replacement Transformers in service.
6.1.5 Leasing. From the Effective Date through Closing or the earlier
termination of this Agreement, Seller will not enter into any new lease covering all or any portion
of the Physical Property without Purchaser's prior written consent.
6.2 Casualtv Event. If prior to Closing the Physical Property is damaged, lost or destroyed
by fire or other casualty (a "Casualtv Event"), Seller shall provide Purchaser written notice thereof (the
"Casualtv Notice") as soon as reasonably practicable after the occurrence of the Casualty Event.
6.2.1 Material. In the event of any Casualty Event results in Material Damage
of the Physical Property, either Seller or Purchaser may, at its option, terminate this Agreement by
delivering the required written notices on or before the expiration of thirty (30) days after the date
Seller delivers the Casualty Notice to Purchaser (and if necessary, the Closing Date shall be
extended to give the parties the full thirty (30) day period to make such election). If neither Seller
nor Purchaser provides a written notice of termination within such thirty (30) day period, then
neither party shall have the right to terminate this Agreement as a result of the Casualty Event, and
at the Closing, Seller shall assign to Purchaser, without representation or warranty by or recourse
against Seller, all of Seller's rights in and to any resulting insurance proceeds applicable to the
Unrestored Physical Property due Seller as a result of such Casualty Event, to the extent agreed to
in writing by Seller as set forth below. Purchaser shall receive a credit at Closing for any deductible
amount under such insurance policies applicable to the Unrestored Physical Property (but the
amount of such deductible plus insurance proceeds to be assigned to Purchase shall not exceed the
lesser of (a) the cost of repair of the Unrestored Physical Properry, as estimated by Seller or (b) the
Purchase Price), and Purchaser shall accept the Physical Property in its then existing condition at
the Closing. For the purposes ofthis Agreement, "Material Dama�e" and "Materiallv Dama�ed"
means a loss, damage or destruction to a material portion of the Physical Property caused by a
Casualty Event, if and to the extent that (i) Seller does not agree in writing to restore substantially
all such lost, damaged or destroyed Physical Property prior to Closing, (ii) the amount of (A) the
cost to restore (as reasonably determined by an independent third party appraiser reasonably
acceptable to Seller and Purchaser) the portion of such portion of the lost, damaged or destroyed
Physical Property that Seller does not agree in writing, at its sole discretion, to restore prior to
Closing (the "Unrestored Phvsical Proaertv"), less (B) the sum of (1) the amount of insurance
proceeds that Seller agrees in writing, in its sole discretion, to assign to Purchaser at Closing with
respect to the Unrestored Physical Property plus (2) the amount of deductible applicable to the
Unrestored Physical Property to be credited to Purchaser as set forth in this Section 6.2. l above is
more than twenty-five percent (25%) of the Purchase Price, and (iii) the loss of the Unrestored
Physical Property would have a material adverse impact upon the ability or feasibility of the
remaining Physical Property being utilized for a power generation facility. Seller shall have no
obligation to restore any lost, damaged or destroyed Physical Property, except as agreed to in
writing by Seller at its sole discretion.
6.2.2 Not Material. If the Physical Property is not Materially Damaged, then
neither Purchaser nor Seller shall have the right to terminate this Agreement as a result of a Casualty
Event, and in such event, Seller shall assign to Purchaser, without representation or warranty by or
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PURC}41SE AND SALE AGREEMENT — 3SOO E. SI[tfOi7 RO[7[/, LGbbOCIt, T¢XC7S, 79404
49138594v.4
recourse against Seller, all of Seller's rights in and to resulting insurance proceeds due Seller as a
result of such Casualty Event, if any.
6.3 Condemnation. If proceedings in eminent domain are instituted with respect to a Material
Portion of the Real Property, either Seller or Purchaser may, at its option, by written notice to the other
party given within ten (10) days after Seller notifies Purchaser of such proceedings (and if necessary the
Closing Date shall be automatically extended to give the parties the full ten (10) day period to make such
election), either: (a) terminate this Agreement; or (b) proceed under this Agreement, in which event, at the
Closing, Seller shall assign to Purchaser, without representation or warranty by or recourse against Seller,
all of Seller's rights in and to any resulting condemnation award, and Purchaser shall have the sole right
after the Closing to negotiate and otherwise deal with the condemning authority in respect of such matter.
If neither party provides the required written notices of its election to terminate this Agreement within the
reyuired ten (l0) day period, then the parties shall be deemed to have elected option (b) above. If
proceedings in eminent domain are instituted with respect to a portion of the Real Property that is not a
Material Portion, then neither party shall have any right to terminate this Agreement as a result of the
eminent domain proceedings and the parties shall proceed under this Agreement in the same manner as
described in clause (b) above. For the purposes of this Agreement, a"Material Portion" means that (i)
the fair market value of the portion of the Real Property that is subject to proceedings in eminent domain,
as reasonably estimated by an independent third-party appraiser jointly selected by the Parties, exceeds
more than twenty-five percent (25%) of the Purchase Price, and (ii) the loss of the Real Property that is
subject to the proceeding in eminent domain prevents the remaining Physical Property from being utilized
for a power generation facility. Notwithstanding the foregoing, Seller covenants that neither Seller nor, to
Seller's actual knowledge, any affiliate, agency, instrumentality, or related governmental entity of Seller
plans to initiate, authorize, support, or encourage any condemnation or eminent domain proceedings
affecting the Property from the Effective Date through Closing, and if any such condemnation or eminent
domain proceedings are initiated Seller shall provide prompt written notice of same to Purchaser. Seller
agrees that it will not initiate condemnation or eminent domain proceedings solely for the purpose of
causing a termination of this Agreement.
6.4 Uniform Vendor and Purchaser Risk Act Not Applicable. It is the express intent of the
parties hereto that the provisions of Sections 6.2 and 6_3 above govern the rights of the parties in the event
of damage to or condemnation of the Physical Property, and that the Uniform Vendor and Purchaser Risk
Act (Section 5.007 of the Texas Property Code) shall not apply to this Agreement.
6.5 Purchaser Aaarovals. Purchaser shall obtain all permits, consents and approvals, and
shall make all filings, as specified in Schedule 9.2.1 or as otherwise required for Purchaser's performance
of its obligations under this Agreement and for the consummation of the transactions contemplated hereby.
Purchaser shall be responsible for obtaining all permits, consents and approvals, and shall make all filings,
required for its desired activities, operations, or use of the Property at and after Closing, and it shall not be
a condition to Closing or the consummation of the transactions contemplated hereby that any of such
permits, consents, and approvals have been obtained or that any of such filings have been made. Following
Closing, upon specific request of Purchaser, Seller may, in its sole discretion and in all cases subject to
Section 12.24, reasonably cooperate with Purchaser for a period up to three (3) months following the
Closing Date in Purchaser's efforts to obtain any necessary permits, consents and approvals required from
the City of Lubbock regarding the Property.
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PURCHASE AND SALE AGREEMENT - jSOO E. SIC1tOYl RORCI, Lubbock, TCxC7S, 79404
49138594v.4
ARTICLE 7
CLOSING
7.1 Closin�. The consummation of the transaction contemplated herein ("CIOSjng") shall
occur on the Closing Date pursuant to an escrow style closing at the offices of Escrow Agent (or such other
location as may be mutually agreed upon by Seller and Purchaser). Funds shall be deposited into and held
by Escrow Agent in a closing escrow account with a bank satisfactory to Purchaser and Seller. Upon
satisfaction or completion of all closing conditions and deliveries, the parties shall direct Escrow Agent to
immediately record and deliver the closing documents to the appropriate parties and make disbursements
according to the closing statements executed by Seller and Purchaser.
7.2 Conditions to Parties' Obli�ation to Close.
72.1 Seller's Conditions. The obligation of Seller to consummate the
transactions contemplated hereunder are conditioned upon the satisfaction or waiver of the
following:
(a) Representations and Warranties. Purchaser's representations and
warranties contained herein shall be true and correct in all material
respects as of the Effective Date of this Agreement and the Closing Date,
except for representations and warranties made as of, or limited by, a
specific date, which will be true and correct in all material respects only
as of the specified date or as limited by the specified date.
(b) Deliveries. As of the Closing Date, Purchaser shall have tendered all
deliveries to be made by Purchaser at Closing.
(c) Title. The status of title to the Real Property shall not be materially and
adversely changed from that deemed approved by Purchaser pursuant to
Section 5.3.
7.2.2 Purchaser's Conditions. The obligation of Purchaser to consummate the
transactions contemplated hereunder are conditioned upon the satisfaction or waiver of the
following:
(a) Rearesentations and Warranties. Seller's representations and
warranties contained herein shall be true and correct in all material
respects as of the Effective Date of this Agreement and the Closing Date,
except for representations and warranties made as of, or limited by, a
specific date, which will be true and correct in all material respects only
as of the specified date or as limited by the specified date; and
(b) Deliveries. As of the Closing Date, Seller shall have tendered all
deliveries to be made by Seller at Closing.
7.2.3 Non-Satisfaction of Conditions. If any condition to such party's
obligation to proceed with the Closing hereunder as set forth in Section 7.2 (a "Closing
Condition") has not been satisfied as of the Closing Date, so long as the failure of the Closing
Condition to have been satisfied is not due to any act, omission, breach, or failure to perform by
such party, such party is not in breach of this Agreement, and an Event of Default with respect to
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PURCHASE AND SALE AGREEMENT— 3SOO E. SIC7t0�7 ROCrCI, LGbBOCI[, Texas, 79404
49138594v.4
such party has not occurred, then such party may, in its sole discretion, either (a) terminate this
Agreement by delivering the required written notices on the Closing Date, or (b) elect to close
notwithstanding the non-satisfaction of such Closing Condition, in which event such party shall be
deemed to have waived such Closing Condition and released and discharged any liability of the
other party relating thereto. Notwithstanding any provision herein to the contrary, if the Closing
Condition is not satisfied as a result of an Event of Default of a party, the provisions of Article 10
shall govern.
7.3 Seller's Deliveries in Escrow. As of or prior to the Closing Date, Seller shall deliver in
escrow to Escrow Agent the following:
73.1 Deeds. A Special Warranty Deed substantially in the form of Exhibit B
attached hereto (the "Deed"), conveying to Purchaser Seller's interest in the Real Property, and a
Quit Claim Deed from Seller to Purchaser, assigning Seller's right, title and interest, if any, in and
to the Easements and the Lines and Facilities.
7.3.2 Bill of Sale, Assi�nment and Assumption. A Bill of Sale, Assignrr►ent
and Assumption substantially in the form of Exhibit C attached hereto (the "Assi�nmenY'),
executed and acknowledged by Seller, vesting in Purchaser, without warranty, Seller's right, title
and interest in and to the property described therein free of any claims, except for the Permitted
Exceptions to the extent applicable.
73.3 Convevancin� or Transfer Tax Forms or Returns. Such conveyancing
or transfer tax forms or returns, if any, as are required to be delivered or signed by Seller by
applicable state and local law in connection with the conveyance of the Real Property.
73.4 FIRPTA. A Foreign Investment in Real Property Tax Act affidavit
executed by Seller.
73.5 Authoritv. Evidence of the existence of Seller and of the authority of the
persons executing documents on behalf of Seller reasonably satisfactory to the underwriter for the
Title Policy.
73.6 Additional Documents. Any additional documents that Escrow Agent
may reasonably require for the proper consummation of the transaction contemplated by this
Agreement (provided, however, no such additional document shall expand any obligation,
covenant, representation or warranty of Seller or result in any new or additional obligation,
covenant, representation or warranty of Seller under this Agreement beyond those expressly set
forth in this Agreement).
7.4 Purchaser's Deliveries in Escrow. As of or prior to the Closing Date, Purchaser shall
deliver in escrow to Escrow Agent the following:
7.4.1 Bill of Sale, AssiQnment and Assumption. The Assignment, executed
and acknowledged by Purchaser.
7.4.2 Letter of Credit. The Letter of Credit.
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PURCHASE AND SALE AGREEMENT— 3500 E. Slaton Road, Lerbbock, Texas, 79404
49138594v.4
7.4.3 Convevancin� or Transfer Tag Forms or Returns. Such conveyancing
or transfer tax forms or returns, if any, as are required to be delivered or signed by Purchaser by
applicable state and local law in connection with the conveyance of Real Property.
7.4.4 Additional Documents. Any additional documents that Seller, Escrow
Agent or the Title Company may reasonably require for the proper consummation of the transaction
contemplated by this Agreement (provided, however, no such additional document shall expand
any obligation, covenant, representation or warranty of Purchaser or result in any new or additional
obligation, covenant, representation or warranty of Purchaser under this Agreement beyond those
expressly set forth in this Agreement).
7.5 Closin� Statements. As of or prior to the Closing Date, Seller and Purchaser shall deposit
with Escrow Agent executed closing statements consistent with this Agreement in the form required by
Escrow Agent.
7.6 Purchase Price. At or before 1:00 p.m. local time on the Closing Date, Purchaser shall
deliver to Escrow Agent the Purchase Price, less the Earnest Money that is applied to the Purchase Price,
plus or minus applicable prorations, in immediate, same day U.S. federal funds wired for credit into Escrow
AgenYs escrow account, which funds must be delivered in a manner to permit Escrow Agent to deliver
good funds to Seller or its designee on the Closing Date (and, if requested by Seller, by wire transfer). In
the event that Escrow Agent is unable to deliver good funds to Seller or its designee on the Closing Date,
then the Closing Date shall be deferred until Escrow Agent is able to deliver good funds to Seller or its
designee and the closing statements and related prorations will be revised as necessary.
7.7 Possession. Purchaser shall take physical possession ofthe Property at the Closing, subject
to the Permitted Exceptions.
ARTICLE 8
PRORATIONS. DEPOSITS. COMMISSIONS
8.1 Prorations. At Closing, the following items shall be prorated as of the date of Closing
with all items of income and expense for the Property being borne by Purchaser from and after (and
including) the date of Closing: fees and assessments; prepaid expenses and obligations under the Property
Contracts; accrued operating expenses; utilities; real and personal ad valorem taxes, including, if applicable,
attorneys' fees and expenses incurred to reduce the amount of taxes (collectively, "Propertv Tazes"); and
any assessments by private covenant for the then current calendar year of Closing. Specifically, the
following shall apply to such prorations:
8.1.1 Proaertv Taxes. The Property is currently except from Property Taxes.
If and to the extent any Property Taxes should be applicable to the Property for any portion of the
year of Closing or relating to prior years arising out of a change in the use of the Real Property or
a change in ownership (including if the Property has been assessed for property tax purposes at
such rates as could result in "roll back" or similar taxes upon changes in the usage or ownership of
the Properiy), any and all such Property Taxes shall be assumed by Purchaser effective as of
Closing and paid by Purchaser when due and payable. Under no circumstances shall Seller be
responsible for any Property Taxes, whether for the year of Closing or otherwise.
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PURCHASE AND SALE AGREEI1fENT— 3500 E. Slaton RoaCI, Lub6oCk, Texas, 79404
49138594v.4
8.1.2 Other Tazes. Notwithstanding anything in this Agreement to the contrary
and the fact that the Parties intend for this transaction to qualify for the occasional sale exemption
under Section 151304(a) of the Texas Tax Code as a single sale of an entire identifiable segment
of Seller, to the extent any liability does arise for Other Taxes, Purchaser shall pay all sales, use,
bulk transfer and/or other similar taxes (but excluding, for the avoidance of doubt, income and
franchise taxes) (collectively, "Other Tages") attributable to the transactions contemplated by this
Agreement.
8.2 Closing Costs. Closing costs shall be allocated between Seller and Purchaser in
accordance with Section 1.2.
8.3 Final Adiustment After Closin¢. If final bills are not available or cannot be issued prior
to Closing for any item being prorated under Section 8.1, then Purchaser and Seller agree to allocate such
items on a fair and equitable basis as soon as such bills are available, final adjustment to be made as soon
as reasonably possible after the Closing. Payments in connection with the final adjustment shall be due
within thirty (30) days of written notice. With regard to Property Taxes, as provided in Section 8.1.1, such
adjustment shall be based upon the assumption that Property Taxes are, or will be, paid in a timely manner
so that any available discounts are, or will be, realized (whether they actually are or not).
8.4 Commissions. 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 this transaction, and if
either Seller or Purchaser engages a real estate broker or agent, it shall be solely responsible for any
transaction commissions or fees owed to such broker or agent.
ARTICLE 9
REPRESENTATIONS AND WARRANTIES
9.1 Seller's Representations and Warranties. Seller represents and warrants to Purchaser
that:
9.1.1 Organization and Authoritv. Seller has been duly organized, is validly
existing, and is in good standing in the state in which it was formed. Seller has the full right and
authority and has obtained any and all consents required to be obtained by Seller for Seller to
enter into this Agreement, to perform its obligations hereunder, and to consummate or cause to
be consummated the transactions contemplated hereby. This Agreement has been, and all of the
documents to be delivered by Seller at the Closing will be, authorized and executed and
constitute, or will constitute, as appropriate, the valid and binding obligation of Seller,
enforceable in accordance with their terms, subject to Section 12.19.
9.1.2 Conflicts and Pending Actions. There is no agreement to which Seller
is a party or, to Seller's knowledge, that is binding on Seller which is in conflict with this
Agreement. To Seller's knowledge, as of the Effective Date, there is no action or proceeding
pending or threatened in writing against Seller or relating to the Property, which challenges or
impairs Seller's ability to perform its obligations under this Agreement.
9.1.3 Notices from Governmental Authorities. To Seller's knowledge, as of
the Effective Date, Seller has not received from any governmental authority written notice of any
material violation of any laws applicable to the Real Property, or any part thereof, that has not
been corrected, except as may be reflected by the Property Information or otherwise disclosed in
writing to Purchaser.
23
PURCHASE AND SALE AGREEMENT— 3SOO E. S/CJlOl7 ROAC/, LUbbOCI[, Texas, %9�i�4
49138594v.4
9.1.4 Ownership. Seller is the sole owner of good and indefeasible fee simple
title to the Real Property, subject to the Permitted Exceptions and other terms and provisions of
this Agreement.
9.1.5 No Third-Partv Agreement. Except as may be disclosed in the Title
Commitment or otherwise disclosed by Seller in Schedule 9.1.5, Seller has not and, except with
the prior written consent of Purchaser, will not after the expiration of the Inspection Period enter
into or consent to any: (a) easement, covenant, third-party purchase agreement, third-party
option, or other encumbrance, inchoate or otherwise respecting the Property; (b) any other
obligation materially affecting, or that may materially affect, the Property; or (c) physical
alteration of or to the Property, except for any easement or other agreement that Seller determines
is reasonably necessary in the course of its business and that does not prevent the Property from
being utilized for a power generation facility or that Seller determines is reasonably necessary in
connection with its obligations or the transition of ownership of the Property.
Additionally, if Purchaser makes a claim against Seller for breach of a representation and
wananty under this Agreement and Seller compensates Purchaser in connection therewith, and if the claim
by Purchaser against Seller relates to matters for which there is or may be a claim against a third party under
any warranties, guaranties, indemnities or other claims (including, without limitation, for workmanship,
materials and performance) assigned by Seller to Purchaser pursuant to this Agreement, then Purchaser
agrees that Seller shall be subrogated to Purchaser's position with respect to all claims against such third
parties, and Purchaser shall reasonably cooperate with Seller in attempting to recover against such third
party(ies).
9.2 Purchaser's Rearesentations and Warranties. Purchaser represents and warrants to
Seller that:
9.2.1 Or�anization and Authoritv. Purchaser has been duly organized and is
validly existing as a limited liability company in good standing in the State of Texas and is qualified
to do business in the state in which the Real Property is located (and any assignee of Purchaser
pursuant to Section 12.1 has been duly organized and is validly existing as the type of entity stated
in its signature block and is in good standing in its state of organization and is qualified to do
business in the state in which the Real Property is located). Purchaser has the full right and
authority and, subject to Purchaser obtaining the consents and approvals set forth on Schedule 9.2.1,
Purchaser has obtained any and all consents required by Purchaser for Purchaser to enter into this
Agreement, to perform its obligations hereunder, and to consummate or cause to be consummated
the transactions contemplated hereby. This Agreement has been, and all of the documents to be
delivered by Purchaser at the Closing will be, authorized and properly executed and constitute, or
will constitute, as appropriate, the valid and binding obligation of Purchaser, enforceable in
accordance with their terms.
9.2.2 Conflicts and Pending Action. There is no agreement to which Purchaser
is a party or to Purchaser's knowledge binding on Purchaser which is in conflict with this
Agreement. There is no action or proceeding pending or, to Purchaser's knowledge, threatened
against Purchaser which challenges or impairs Purchaser's ability to execute or perform its
obligations under this Agreement.
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PURCHASE AND SALE AGREEDIENT— 3SD0 E. SIQIOp ROp[f LUI760C1c, T¢xpS, %94�4
49138594v.4
9.2.3 Prohibited Persons. Neither Purchaser nor any of its respective offcers,
directors, shareholders, partners, members or affiliates (including without limitation indirect
holders of equity interests in Purchaser) is or will be an entity or person (a) that is listed in the
Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September
24, 2001 ("EO13224"), (b) whose name appears on the United States Treasury Department's
Office of Foreign Assets Control ("OFAC") most current list of "Specifically Designated National
and Blocked Persons" (which list may be published from time to time in various mediums
including, but not limited to, the OFAC website, http:www.treas.gov/ofac/tl 1 sdn.pd fl(c) who
commits, threatens to commit or supports "terrorism," as that term is defined in EO13224, (d) is
subject to sanctions of the United States government or is in violation of any federal, state,
municipal or local laws, statutes, codes, ordinances, orders, decrees, rules or regulations relating to
terrorism or money laundering, including, without limitation, EO13224 and the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, or (e) who is otherwise affiliated with any entity or person listed above (any
and all parties or persons described in clauses (a) —(e) above are herein referred to as a"Prohibited
Person"). Purchaser covenants and agrees that neither Purchaser nor any of its respective officers,
directors, shareholders, partners, members or affiliates (including, without limitation, indirect
holders of equity interests in Purchaser) shall (A) conduct any business, nor engage in any
transaction or dealing, with any Prohibited Person, including, but not limited to, the making or
receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited
Person, or (B) engage in or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in EO13224.
92.4 Transfer Compliance Matters. Neither Purchaser nor any wholly-
owned subsidiary, majority-owned subsidiary, parent company, or affiliate of Purchaser, (a) meets
any of the ownership, control or headquarters criteria listed in the Texas Lone Star Infrastructure
Protection Act, Section 117.002(a)(2)(A)-(b)(2)(B), or (b) is regulated as an electric utility or
similar designation under the Texas Public Utility Regulatory Act ("PURA"), and Purchaser's
ownership of the Property will not cause it to violate the limitation on ownership of installed
capacity under PURA § 39.154 or require the approval of the transaction be obtained from the
Public Utility Commission of Texas under PURA § 39.158.
9.2.5 Foreign Investment. Purchaser is not prohibited from acquiring or
owning an interest in real property in the State of Texas pursuant to (i) Texas Property Code
Sections 5.251 — 5259, as may be modified or amended or interpreted by governmental authorities
from time to time, and (ii) all rules and regulations promulgated under Texas Property Code
Sections 5.251 — 5.259.
The foregoing representations and warranties by Purchaser shall be automatically remade by any assignee
of this Agreement pursuant to Section 12.1.
9.3 Limitation of Liability. The representations and warranties set forth in this Article 9 are
made as of the date of this Agreement and, except where expressly limited to the Effective Date, are remade
as of the Closing Date and shall not be deemed to be merged into or waived by the instruments of Closing.
93.1 Knowledge. Terms such as "to Seller's knowledge," "to the best of
Seller's knowledge" or like phrases mean the actual present and conscious awareness or
knowledge of the Director of Electric Utilities of the City of Lubbock ("Seller Knowledee
Par "), without any duty of inquiry or investigation; provided that so qualifying Seller's
knowledge shall in no event give rise to any personal liability on the part of Seller
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PURCHASE AND SALE AGREEMENT — 3500 E. Slalon Road, Lubbock, Texas, 79404
4913%594v.4
Knowledge Party or any other official, officer or employee of Seller, on account of any
breach of any representation or warranty made by Seller herein. Said terms do not include
constructive knowledge, imputed knowledge, or knowledge Seller or such persons do not
have but could have obtained through further investigation or inquiry. No broker, agent,
or party other than Seller is authorized to make any representation or warranty for or on
behalf of Seller.
9.32 Survival. Notwithstanding the foregoing, Seller's representations and
warranties in this Agreement shall only survive the Closing for a period of six (6) months,
provided, however, that Seller's representations and warranties will automatically
terminate if following Closing, any direct or indirect transfer, assignment, conveyance or
sale of the Property or any ownership interest in Purchaser occurs. Purchaser may not bring
any post-Closing claim or action against Seller for breach of this Agreement or the
documents delivered at Closing except on the following conditions: (a) Purchaser first
learns of the facts or conditions causing the breach after Closing and during the Survival
Period, (b) gives written notice to Seller of the breach within the earlier of ninety-one (91)
days following the date on which Purchaser first became aware of the facts or conditions
causing the breach and the end of the Survival Period (as defined in Section 12.5), and
Purchaser files an action against Seller on or before the first day following the second
anniversary of the Closing Date, and (c) the Damage to Purchaser on account of such
breach (individually or when combined with Damages from other breaches) equals or
exceeds $25,000.00, and then only to the extent of such excess. The parties stipulate that
the periods of time referenced above to give written notice of the alleged breach and to file
the action with respect to such breach is reasonable and hereby waive and release any
claims to the contrary. If Purchaser fails to timely notify Seller in writing or file such action
within the required time periods as described above, such action shall be barred and
Purchaser waives, releases and discharges the Seller Parties from any and all Damages
relating thereto.
9.3.3 No Liabilitv. Seller shall not have any liability after Closing for the
breach of a representation or warranty hereunder of which Purchaser had knowledge prior
to or as of Closing.
ARTICLE 10
DEFAULT AND REMEDIES
10.1 Event of Default. The occurrence and continuation of any of the following events shall
constitute an event of default of a party to this Agreement (each, an "Event of Default"):
10.1.1 Breach of Rearesentations or Warranties. If any express representation
or warranty of a party set forth in this Agreement or any other document or instrument delivered in
accordance with this Agreement is false in any material respect;
10.1.2 Breach of Covenants. A party fails to timely perform any covenant or
obligation reyuired to be performed or satisfied by such party pursuant to this Agreement and such
default or breach is not cured by the earlier of the fifth (5`�') Business Day after written notice thereof
from the non-breaching party or the Closing Date; and
10.13 Purchaser Bankruptcv. In the case of Purchaser, if Purchaser (a) is
insolvent or is adjudged bankrupt or insolvent, (b) consents to the appointment of or taking
26
PURCFL►SE AND SALE AGREEAtENT — 3SOO E. Slaton Road, Lubbock, Texas, 79404
49138594v.4
possession by, a receiver, a trustee, custodian, or liquidator of itself or of a substantial part of its
assets, or admits in writing its inability to pay its debts generally as they become due, or makes a
general assignment for the benefit of creditors, (c) files a voluntary petition in bankruptcy or a
voluntary petition or an answer seeking reorganization or an answer admitting the material
allegations of a petition filed against it in any bankruptcy or reorganization proceeding, (d) a
substantial part of its assets is subject to the appointment of a receiver, trustee, liquidator, or
custodian by court order and such order shall remain in effect for more than thirty (30) days, (e)
has any property sequestered by court order and such order remains in effect for more than thirty
(30) days, or (� has filed against it a petition under any bankruptcy, reorganization, or similar law
and such petition is not dismissed within thirty (30) days.
] 0.1.4 Assienment. In the case of Purchaser, if Purchaser assigns this Agreement
or any right or obligation hereunder with the prior written consent of the other party.
10.2 Seller's Remedies. Upon an Event of Default by Purchaser, without limiting any other
rights and remedies available to Seller, whether hereunder, at law or in equity, Seller shall be entitled to
terminate this Agreement by promptly (and in any event, prior to Closing) giving the required written
notices and Purchaser shall be responsible to Seller for costs and expenses incuned by Seller in connection
with this Agreement and the transactions contemplated herein, including, without limitation, attorneys' fees
and expenses.
10.3 Purchaser's Remedies. Upon an Event of Default by Seller, Purchaser shall elect, as its
sole and exclusive remedy, either to (a) terminate this Agreement by promptly (and in any event, prior to
Closing) giving the required written notices, (b) seek to enforce specific performance to consummate the
sale of the Property in accordance with this Agreement without reduction in the Purchase Price, or
(c) proceed to Closing without reduction in the Purchase Price, in which event Purchaser shall be deemed
to have waived such Event of Default and its right to terminate and shall have released and discharged the
Seller Parties from any and all Damages relating thereto. Notwithstanding anything herein to the contrary,
Purchaser shall be deemed to have elected to terminate this Agreement, and waived and released its remedy
of specific performance, if the Closing does not occur and Purchaser fails to deliver to Seller written notice
of its intent to file a claim or assert a cause of action for specific performance against Seller on or before
ten (10) Business Days following the scheduled Closing Date or, having given such notice, fails to file a
lawsuit asserting such claim or cause of action in Lubbock County, Texas within two (2) months following
the scheduled Closing Date. Purchaser's remedies shall be limited to those described in this Section 103
and Sections 10.5 and 10.6 hereof, as the same are limited by Section 10.7, and Purchaser hereby
irrevocably and unconditionally waives, releases and discharges the Seller Parties from any and all other
Damages.
10.4 Reliance on Title Policv. Notwithstanding anything contained in this Agreement to the
contrary, with respect to all matters affecting title to the Property (and/or any portion thereo fl, and any liens
or other encumbrances or restrictions affecting the Property (and/or any portion thereo fl, Purchaser
acknowledges and agrees that, except for Seller's express representations and warranties in Section 9.1 and
except for the warranty of title in the Deed, it is solely relying upon the Title Policy it obtains, if any. If
Purchaser has any claim under such Title Policy, Purchaser agrees that it will look solely to the Title Policy
for recovery on such claim, and Purchaser shall not assert any claim against Seller with respect to such
claim, including, without limitation, for a breach of a representation, warranty, or covenant.
10.5 Attornevs' Fees. In the event either party hereto employs an attorney in connection with
claims by one party against the other arising from the performance or non-performance of this Agreement,
27
PURCIiASE AND SALE AGREEI1fENT— 3SOO E. Slaion Road, Lubbock, Texas, 79404
49138594v.4
the non-prevailing party shall pay the prevailing party all reasonable fees and expenses, including attorneys'
fees, incurred in connection with such claims.
10.6 Other Egaeases. If this Agreement is terminated due to the default of a party, then the
defaulting party shall pay any fees or charges due to Escrow Agent for holding the Earnest Money as well
as any escrow cancellation fees or charges and any fees or charges due to the Title Company for preparation
and/or cancellation of the Title Commitment.
10.7 Limitation on Seller Liabilitv; Covenant 1Vot to Sue. NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT, ANY AGREEMENT CONTEMPLATED BY THIS AGREEMENT, OR ANY RIGHTS
WHICH PURCHASER MIGHT OTHERWISE HAVE AT LAW, EQUITY, OR BY STATUTE, WHETHER BASED ON
CONTRACT OR SOME OTHER CLAfM, OTHER THAN IN THE CASE OF FRAUD, THE AGGREGATE MAXIM[!M
L[ABILITY OF SELLER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING RELATING
TO ANY BREACH BY SELLER OF ANY REPRESENTATION, WARRANTY, COVENANT OR PROVIS[ON OF THIS
AGREEMENT, IS LIMITED TO PURCHASER'S ACTUAL DAMAGES, UP TO, BUT NOT TO EXCEED, $200,000.00.
OTHER THAN IN THE CASE OF FRAUD, IN NO EVENT SHALL SELLER BE LIABLE UNDER ANY PROVISION OF
THIS AGREEMENT FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR
COSTS OF PURCHASER OR ITS AFFILIATES, WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE OR STRICT LIABILITY), WARRANTY OR OTHERWISE, AND PURCHASER HEREBY
WAIVES, RELEASES AND DISCHARGES ANY AND ALL SUCH INDIRECT, CONSEQUENTIAL, SPECIAL, PLINITIVE
AND INCIDENTAL DAMAGES AND COSTS. IN NO EVENT SHALL ANY SELLER PARTY THAT IS NOT SELLER
HAVE ANY LIABIL[TY FOR ANY CLA[M, CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW,
STATUTE, EQUITY OR OTHERWISE. PURCHASER HAS WAIVED, RELEASED, AND/OR DISCHARGED SELLBR
AND SELLER PARTIES UNDER SEVERAL PROVIS[ONS OF THIS AGREEMENT. PURCHASER COVENANTS NOT
TO SUE, FILE, OR ASSERT, DIRECTLY OR [ND[RECTLY, ANY CLA[M, OBJECTION, COMPLAINT, CONTRIBUTION
CLA[M, COST-RECOVERY CLAIM, CITIZEN SUIT, OR OTHER ACTION AGAINST SELLER OR ANY SELLER PARTY
BASED ON ANY OF THE MA7TERS WAIVED, RELEASED OR DISCHARGED IN THIS AGREEMENT.
ARTICLE 11
DISCLAIMERS, RELEASE AND INDEMNITY
11.1 Disclaimers Bv Seller.
11.1.1 Except as expressly set forth in this Agreement, it is understood and agreed
that Seller has not at any time made and is not now making, and Seller specifically disclaims, any
warranties or representations of any kind or character, express or implied, with respect to the
Property, including, but not limited to, warranties or representations as to (a) matters of title (b)
environmental matters relating to the Property or any portion thereof, including, without limitation,
the presence of Hazardous Materials in, on, under, migrating to or from, or otherwise affecting the
Property, (c) geological conditions, including, without limitation, subsidence, subsurface
conditions, water table, underground water reservoirs, limitations regarding the withdrawal of
water, and geologic faults and the resulting damage of past and/or future faulting, (d) whether, and
to the extent to which the Property or any portion thereof is affected by any stream (surface or
underground), body of water, wetlands, flood prone area, flood plain, floodway or special flood
hazard, (e) drainage, (� 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, (g) the presence of endangered species or any environmentally sensitive or protected
areas, (h) zoning or building entitlements to which the Property or any portion thereof may be
subject, (i) the availability of any utilities to the Property or any portion thereof including, without
2s
PURCfIASE AND SALE AGREEIIIENT - 3S00 E. SIC7tOh ROACI, LtlbbOCl[, Texas, 79404
49138594v.4
limitation, water, sewage, gas and electric, (j) usages of adjoining property, (k) access to the
Property or any portion thereof, (l) the value, compliance with the plans and specifications, size,
location, age, use, design, quality, description, suitability, structural integrity, 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, (m) the condition or use of the Property or compliance of the Property with any or all
past, present or future federal, state or local statutes, codes, ordinances, rules, regulations or laws,
including building, fire or zoning ordinances, codes and other similar laws, (n) the existence or
non-existence of underground storage tanks, surface impoundments, or landfills, (o) any other
matter affecting the stability and integrity of the Property, (p) the potential for further development
of the Property, (q) the merchantability of the Property or fitness of the Property for any particular
purpose, (r) the truth, accuracy or completeness of the Property Information, (s) tax consequences,
or (t) any other matter or thing with respect to the Property.
1 l.1.2 Purchaser acknowledges that Seller has made no, and expressly disclaims,
any representation or warranty, express or implied, with respect to (a) the presence, absence,
release, or threatened release of any Hazardous Materials at, on, under, migrating to or from, or
otherwise affecting the Property, (b) compliance with any Environmental Laws, (c) the status,
scope, sufficiency, or results of any investigation, remediation, corrective action, or regulatory
closure relating to the Property, or (d) the accuracy, completeness, or sufficiency of any
environmental reports, data, Property Information, or other information made available to
Purchaser, whether prepared by or for Seller or any third party. Purchaser expressly disclaims
reliance on any such matters and agrees that it is relying solely on its own investigations. Purchaser
further acknowledges that it has conducted, or will conduct prior to Closing, its own independent
investigation, analysis, and evaluation of the Property and its environmental condition, and has not
relied on Seller to furnish or disclose any and all documents or information regarding the Property.
11.1.3 Without limiting the foregoing, Purchaser acknowledges that no Property
[nformation, offering materials, management presentations, responses to requests for information,
or other communications or information provided by or on behalf of Seller constitute, or shall be
deemed to constitute, representations or warranties of Seller. Purchaser acknowledges and agrees
that the disclaimers and other agreements set forth herein are an integral part of this Agreement and
that Seller would not have agreed to sell the Property to Purchaser for the Purchase Price without
the disclaimers and other agreements set forth above.
11.2 Own Investi�ation. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON CLOSING,
SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER SHALL ACCEPT TFfE PROPERTY "AS IS,
WHERE IS, WITH ALL FAULTS." PURCHASER HAS NOT REL[ED AND WILL NOT RELY ON, AND SELLER HAS
NOT MADE AND IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTEES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR RELATING THERETO
([NCLUDING, WITHOUT L[MITATION, INFORMATION MADE OR FURNISHED BY SELLER OR ANY REAL ESTATE
BROKER, AGENT, OR TH[RD PARTY REPRESENTING OR PURPORTING TO REPRESENT SELLER), TO WHOMEVER
MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING. PURCHASER REPRESENTS THAT IT IS
A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE AND ASSETS OF THE
NATURE OF THE PROPERTY AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF
PURCHASER'S CONSULTANTS IN PURCHASMG THE PROPERTY AND SHALL MAKE AN INDEPENDENT
VERIFICATION OF THE ACCURACY OF ANY DOCUMENTS AND INFORMATION PROVIDED BY SELLER.
PURCHASER WILL CONDUCT SUCH INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMS NECESSARY,
MCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDIT[ONS THEREOF, AND SHALL
RELY UPON SAME. BY NOT TERMINATING THIS AGREEMENT PRIOR TO THE EXPIRATION OF THE OPTION
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PURCFL�SE AND SALE AGREEM1tENT — 3SOO E. SIRtO�7 ROCICI, LUbbOCI[, Texas, 79404
49138594v.4
PERIOD OR THE INSPECT[ON PERIOD, PURCHASER ACKNOWLEDGES THAT SELLER HAS AFFORDED
PURCHASER A FULL OPPORTUNITY TO CONDUCT SUCH INVESTIGAT[ONS OF THE PROPERTY AS PURCHASER
DEEMED NECESSARY TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR
NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN W[TH RESPECT TO ANY HAZARDOUS MATERIALS ON
OR DISCHARGED FROM THE PROPERTY, AND PURCHASER WILL RELY SOLELY UPON SAME AND NOT UPON
ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT
THERETO. UPON CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUD[NG,
BUT NOT LIMITED TO, ADVERSE PHYSICAL OR CONSTRUCTION DEFECTS OR ADVERSE ENVIRONMENTAL,
HEALTH OR SAFETY CONDIT[ONS, MAY NOT HAVE BEEN REVEALED BY PURCHASER'S INVEST[GATIONS.
PURCHASER F-IEREBY REPRESENTS AND WARRANTS TO SELLER THAT: (A) PURCHASER [S REPRESENTED BY
LEGAL COUNSEL IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT; AND
(B) PURCHASER IS PURCHASING TI-� PROPERTY FOR BUSINESS, COMMERCIAL, MVESTMENT OR OTHER
SIMILAR PURPOSE AND NOT FOR USE AS PURCHASER'S RESIDENCE. PURCHASER WAIVES, RELEASES AND
DISCHARGES ANY AND ALL RIGHTS OR REMEDIES IT MAY HAVE OR BE ENTITLED TO, DERIVING FROM
DISPARITY M SIZE OR FROM ANY SIGNIFICANT DISPARATE BARGAINING POSITION IN RELATION TO SELLER.
11.3 Environmental Matters. PURCHASER ACKNOWLEDGES THAT IT HAS HAD AND WILL
HAVE THE OPPORTUNITY TO INSPECT THE PROPERTY DURING THE INSPECTION PERIOD, AND DURING SUCH
PERIOD, OBSERVE ITS PHYSICAL CHARACTERISTICS AND EX[STING CONDIT(ONS AND TO CONDUCT SUCH
INVESTIGATION AND STUDY ON AND OF THE PROPERTY AND ADJACENT AREAS AS PURCHASER DEEMS
NECESSARY, INCLUD[NG WITH RESPECT TO ENVIRONMENTAL CONDITIONS. PURCHASER, FOR ITSELF AND
ITS SUCCESSORS AND ASSIGNS, HEREBY UNCONDITIONALLY AND IRREVOCABLY RELEASES, WAIVES, AND
FOREVER DISCHARGES SELLER AND THE SELLER PART[ES FROM ANY AND ALL DAMAGES OF EVERY KIND
AND CHARACTER, WHETFIER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, ARISING OUT OF OR
RELATING IN ANY WAY TO (A) THE PHYSICAL, GEOLOGICAL, STRUCTURAL, SUBSURFACE,
ENVIRONMENTAL, OR OTHER CONDITION OF THE PROPERTY; (B) THE PRESENCE, RELEASE, MIGRATION, OR
DISPOSAL OF HAZARDOUS MATERIALS AT, ON, UNDER, FROM, OR AFFECTING THE PROPERTY; (C) ANY
VIOLATION OF OR LIABIC,ITY UNDER ANY ENVIRONMENTAL LAWS; OR (D) ANY CLAIMS UNDER THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIAB[LITY ACT (42 U.S.C. § 9601
ET SEQ.), INCLUDING SECTIONS 107 AND 113, AND ANY ANALOGOUS FEDERAL, STATE, OR LOCAL
STATUTES OR COMMON LAW THEORIES. PURCHASER FURTHER HEREBY ASSUMES THE RISK OF CI-IANGES IN
APPLICABLE LAWS AND REGULATIONS RELAT[NG TO PAST, PRESENT AND FUTURE ENVIRONMENTAL
CONDITIONS ON THE PROPERTY AND THE RISK THAT ADVERSE PHYSICAL CHARACTERISTICS AND
CONDITIONS, INCLUDING, WITHOUT LIMITATION, TI-� PRESENCE OF HAZARDOUS MATERIALS OR OTHER
CONTAMINANTS, MAY NOT HAVE BEEN REVEALED BY [TS INVESTIGATION OR MAY BE DISCOVERED AFTER
CLOSING.
11.4 "Environmental Laws" and "Hazardous Materials" Defined. For purposes hereof,
"Environmental Laws" means all federal, state, and local statutes, laws, ordinances, codes, rules,
regulations, orders, judgments, decrees, permits, and other requirements of any governmental authority,
now or hereafter in effect, relating to pollution, protection of the environment, natural resources, human
health and safety as affected by the environment, or the presence, release, handling, storage, disposal, or
remediation of Hazardous Materials, including the Federal Water Pollution Control Act (33 U.S.C. § 1251
et seq.); the Clean Air Act (42 U.S.C. § 7401 et seq.); the Resource Conservation and Recovery Act of 1976
(42 U.S.C. § 6901 et seq.) ("RCRA") and the Hazardous and Solid Waste Amendments Act of 1984; the
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.)
("CERCLA") and the Superfund Amendments and Reauthorization Act of 1986; the Toxic Substances
Control Act (15 U.S.C. § 2601 et seq.); the Oil Pollution Act (33 U.S.C. § 2701 et seq.); the Safe Drinking
Water Act (42 U.S.C. § 300f et seq.); the Hazardous Materials Transportation Act (49 U.S.C. § 5101 et
30
PURCHASE AND SALE AGREEDIENT — 3SOO E. SlptOn ROC7Cl, LubbOCk, Texas, �9404
4913$594v.4
seq.); the Texas Water Code, including Chapter 26; the Texas Clean Air Act, Tex. Health & Safety Code
Chapter 382; the Texas Solid Waste Disposal Act, Tex. Health & Safety Code Chapter 361; and all rules
and regulations promulgated under any of the foregoing, together with any successor or amended statutes
or regulations relating to environmental protection or Hazardous Materials. "Hazardous Materials" means
any substance, material, or waste that is regulated, listed, defined, designated, or classified as hazardous,
toxic, a pollutant, a contaminant, hazardous waste, industrial solid waste, or any similar term under any
Environmental Laws, including, without limitation: (a) any "hazardous substance," "pollutant," or
"contaminant" under CERCLA, 42 U.S.C. §§ 9601-9675; (b) any "hazardous waste" under RCRA, 42
U.S.C. §§ 6901�992k; (c) any "hazardous substance" or "other substance" regulated under the Texas
Water Code, including Chapter 26; (d) any "solid waste," "industrial solid waste," or "hazardous waste"
under the Texas Solid Waste Disposal Act, Tex. Health & Safety Code Chapter 361; (e) petroleum,
petroleum hydrocarbons, petroleum products, crude oil or any fraction or by-product derivatives thereof;
(� asbestos and asbestos-containing materials; (g) polychlorinated biphenyls (PCBs); (h) lead and lead-
based paint; (i) urea formaldehyde; (j) per- and polyfluoroalkyl substances (PFAS); (k) radioactive
materials; (1) mold, fungi, and microbial contamination; and (m) any putrescible, infectious, or biologically
hazardous materials, and any other substance, whether by its nature or its use, is subject to liability,
investigation, remediation, reporting, or compliance obligations under Environmental Laws.
11.5 Indemnity. PURCHASER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER, ITS
AFFILIATES, AND THEIR RESPECTIVE OFFICIALS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND
ATTORNEYS (EACH, A"SELLER PARTY") FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, SUITS,
ACTIONS, CAUSES OF ACT[ON, INVESTIGATIONS, PROCEEDINGS, LOSSES, LIABILITIES, DAMAGES,
OBLIGATIONS, FINES, PENALTIES, PAYMENTS, COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
THE COSTS AND EXPENSES OF ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, PROCEEDINGS, AND
INVESTIGATION, AND ANY AND ALL ASSESSMENTS, JUDGMENTS, SETTLEMENTS AND COMPROMISES
RELATING THERETO, AND ALL REASONABLE ATTORNGYS' FEES AND REASONABLE DISBURSEMENTS IN
CONNECTION THEREWITH) ("DA111AGES"), ASSERTED AGAINST OR INCURRED OR SUFFERED BY ANY SELLER
PARTY RELATING TO, RESULTING FROM OR ARISING OUT OF:
I1.5.1 Breach of Covenants. ANY BREACH BY PURCHASER OF ANY COVENANT,
AGREEMENT, REPRESENTATION, OR WARRANTY OF PURCHASER CONTAINED IN THIS AGREEMENT, THE
ASSIGNMENT, OR ANY DOCUMENT ENTERED INTO IN CONNECTION WITH THIS AGREEMENT;
1 1.5.2 Investi�ations. PURCHASER'S [NVESTIGATIONS AND/OR ANY ACT OR OMISSION
OF PURCHASER OR ITS CONTRACTORS, REPRESENTATIVES OR AGENTS IN CONNECTION WITH THE
INVESTIGATIONS, INCLUDING ANY FAILURE TO COMPLY WITH ITS OBL[GATIONS HEREUNDER WITH RESPECT
TO SUCH INVGSTIGAT[ONS, OR WHILE AT OR NEAR THE PROPERTY, OR ANY ENTRY ONTO THE PROPERTY BY
PURCHASER OR ANY OF ITS CONTRACTORS, REPRESENTATIVES OR AGENTS, INCLUDING CLAIMS ARISING
FROM OR RELATED TO BODILY INJURY OR DEATH TO PERSONS OR DAMAGE TO PROPERTY;
1 1.5.3 Liens. LIENS AND ENCUMBRANCES IN RESPECT TO THE PROPERTY FILED, MADE,
RECORDED OR ASSERTED BY ANY OF PURCHASER'S CONTRACTORS, REPRESENTATIVES OR AGENTS, OR
CREATED BY, THROUGH OR UNDER, OR AS A RESULT OF ANY ACT OR OMISS[ON OF, PURCHASER OR ANY OF
[TS CONTRACTORS, REPRESENTATIVES OR AGENTS;
11.5.4 Assumed Liabilities. THE ASSUMED LIABIL[TIES AND/OR PURCHASER'S FAILURE
TO TIMELY SATISFY THE ASSUMED LIABILITIES;
11.5.5 Taxes. PROPERTY TAXES AND OTHGR TAXES; AND
�
PURCFIASE AND SALE ACREEMENT - 3S00 E. SIp1O17 ROC7C% Lt�bbOClc, T2XRS, 79404
49138594v.4
11.5.6 Environmental Matters.
(a) ANY HAZARDOUS MATERIALS AT, ON, UNDER, IN, EMANATING FROM, OR
MIGRATING TO OR FROM THE PROPERTY; ANY REQUIREMENT TO
INVESTIGATE, ASSESS, DELINEATE, MONITOR, REMOVE, REMEDIATE,
ABATE, CONTAIN, CLEAN UP, TREAT, DETOXIFY, OR OTHERWISE RESPOND
TO ANY RELEASE OR THREATENED RELEASE OF HAZARDOUS MATERIALS
OR AFFECTING THE PROPERTY; ANY VIOLATION OF OR LIABILITY UNDER
ENVIRONMENTAL LAWS RELATING TO THE PROPERTY; ANY
GOVERNMENTAL INFORMATION REQUESTS, NOTICES OF VIOLATION,
NOTICES OF POTENTIAL RESPONSIB[LITY, DIRECTIVES, ORDERS, OR
ENFORCEMENT ACTIONS RELATING TO THE PROPERTY; ANY CLAIMS OR
DEMANDS RELATING TO OR ARISING OUT OF PERSONAL INJURY,
WRONGFUL DEATH, PROPERTY DAMAGE, NATURAL RESOURCE DAMAGES,
BUS[NESS INTERRUPTION, DIMINUT[ON IN VALUE, OR ECONOMIC LOSS
RELATING TO ENVIRONMENTAL CONDITIONS AT OR AFFECTING THE
PROPERTY; OR THE IMPLEMENTATION, MA[NTENANCE, MON[TORING, OR
COMPLIANCE WITH ANY INST[TUTIONAL CONTROLS, ENGINEERING
CONTROLS, LAND-USE RESTRICTIONS, DEED NOTICES, OR SIMILAR
REQUIREMENTS AFFECTING THE PROPERTY.
(b) Indemnification obligations with respect to environmental matters shall
survive the Closing and remain in effect until the expiration of the longest
appliable statute of limitations or statue of repose under applicable
Environmental Laws(the "Environmental Indemnitv Period"). No claim
may be asserted for any Environmental Indemnity Matters (as defined
below) after the expiration of the Environmental Indemnity Period;
provided, however, that: (i) any governmental enforcement action or
third-party claim as to which the Seller Party has delivered written notice
to the Purchaser reasonably describing the basis for the claim and the
nature of the alleged loss on or before the expiration of the Environmental
Indemnity Period shall survive until such claim is finally resolved; and (ii)
the foregoing time limitation shall not apply to claims based on fraud or
willful misconduct. As used in this Agreement, "Fraud" means fraud as
determined in accordance with the laws of the State of Texas. For the
avoidance of doubt, any Environmental Indemnity Matter as to which
written notice is provided prior to the expiration of the Environmental
Indemnity Period shall survive until finally resolved. "Environmental
Indemnity Matter" means any matter for which Purchaser has an
indemnification obligation under Section 11.5.6(a).
11.6 Third-Partv Claims. Indemnification claims by a Seller Party resulting from any claim,
demand, action, cause of action, suit, proceeding, or investigation by any person or entity other than a party
to this Agreement (a "Third-Partv Claim") shall be subject to the following terms and conditions:
11.6.1 Within fourteen (14) days (or such later time so long as providing notice later does
not preclude Purchaser from defending such action) after receipt of service of process for any Third-Party
Claim, the Seller Party claiming to be indemnified under the terms of Section 1 l.5 (the "Indemnitied
Person") shall give Purchaser written notice thereof. Failure of the Indemnified Person to give such notice
will not reduce or relieve Purchaser of liability hereunder unless and to the extent that Purchaser was
32
PURCHASE AND SALE AGREEMENT— 3SOO E. SIGtOII ROACI, LUbbOCIC, T¢XRS, 79404
49138594v.4
precluded from defending such action as a result of the failure of the Indemnified Person to give such notice.
In any event, the failure to so notify shall not relieve Purchaser from any liability that it may have to the
Indemnified Person otherwise than under this Section 11.5.4.
11.6.2 The Indemnified Person shall have the right, but not the obligation, to contest,
defend and litigate any Third-Party Claim alleged or asserted against it arising out of any matter in respect
of which it is entitled to be indemnified hereunder, with counsel of its own choosing and without the
Purchaser's participation, and the costs and expenses thereof (including reasonable attorneys' fees and
expenses, court costs, expert witness fees, judgments, and settlements) shall be the responsibility of
Purchaser and Purchaser shall pay the same to the Indemnified Person within twenty (20) days after demand
from time to time. The [ndemnified Person shall also have such right to take over the defense of a Third-
Party Claim if Purchaser has assumed the defense of such Third-Party Claim pursuant to Section 11.63 and
after such assumption of the defense: (a) the Indemnified Person reasonably determines that Purchaser has
failed to take reasonable steps necessary to diligently defend such Third-Party Claim and protect the
interests of the Indemnified Person; (b) the Indemnified Person reasonably believes that there are one or
more legal or equitable defenses available to it that are different from or in addition to those available to
the Purchaser; (c) the Indemnified Person reasonably determines that there may be a conflict of interest
between Purchaser and the Indemnified Person in the conduct of the defense of such Third-Party Claim or
otherwise determines the joint representation would be inappropriate; (d) the Indemnified Person
determines that such Third-Party Claim may result in Damages for which a material portion of which may
not be fully indemnified by Purchaser; or (e) the Third-Party Claim is amended or otherwise changed to
include one or more additional claims or request for relief. Upon the Indemnified Person providing such
notice to Purchaser that such Indemnified Person has elected to take over the defense of a Third-Party
Claim, (a) the Indemnified Person shall defend such Third-Party Claim, with counsel of its own choosing
and without the Purchaser's participation (except to the extent agreed to by the Indemnified Person), and
the costs and expenses thereof (including reasonable attorneys' fees and expenses, court costs, expert
witness fees, judgments, and settlements) shall be the responsibility of Purchaser and Purchaser shall pay
the same to the Indemnified Person within twenty (20) days after demand from time to time, and (b)
Purchaser and its counsel shall immediately provide all information and documents relating to the litigation
and the defense of the Third-Party Claim as requested by the Indemnified Person and shall reasonably
cooperate with the Indemnified Person and its counsel in the transfer and transition of the defense of the
Third-Party Claim to the Indemnified Person. During any period during which the Indemnified Person is
conducting the defense of a Third-Party Claim, Purchaser shall render, at its own cost, such assistance as
may reasonably be requested in order to ensure the proper and adequate defense of the Third-Party Claim
and cooperate in the defense of the Third-Party Claim.
11.6.3 The Indemnified Person may elect, in its sole discretion, to allow Purchaser to
defend a Third-Party Claim. If the Indemnified Person provides notice to Purchaser that the Indemnified
Person consents to Purchaser assuming the defense of the Third-Party Claim, then, subject to the terms and
conditions set forth herein, Purchaser shall have the right to retain counsel acceptable to the Indemnified
Person to defend such Third-Party Claim, at Purchaser's sole cost and expense, unless and until the
Indemnified Person notifies Purchaser that the Indemnified Person has elected to take over the defense of
such Third-Party Claim pursuant to Section 11.6.2. Upon receipt of notice from the [ndemnified Person that
it consents to Purchaser assuming the defense of the Third-Party Claim, if Purchaser elects to assume the
defense of the Third-Party Claim, it must notify the Indemnified Person and assume the defense (with
counsel acceptable to the Indemnified Person), as promptly as possible after receipt of the Indemnified
Person's notice (but in any case within fourteen (14) days after receipt of such notice or such earlier time
as is necessary to avoid prejudicing the defense of the Third-Party Claim). If Purchaser does not provide
notice to the Indemnified Person and assumes the defense of the Third-Party Claim within such period of
33
PURCHASE AND SALE AGREEDIENT — 3SOO E. SIC7lOl7 RORCI, LUbbOCIC, Texas, �9404
49138594v.4
time, Purchaser shall not have the right to assume the defense of the Third-Party Claim, unless otherwise
agreed to by the Indemnified Person in writing.
11.6.4 If Purchaser has assumed the defense of the Third-Party Claim in accordance with
Section l 1.6.3, Purchaser shall not settle, compromise or discharge such Third-Party Claim without the
prior written consent of the Indemnified Person. Within ten (10) days after assumption by Purchaser of the
defense of the Third-Party Claim, Purchaser shall reimburse the Indemnified Person for the costs and
expenses incurred by it prior to the assumption of such defense by Purchaser. Purchaser shall keep the
Indemnifed Person informed of all material developments relating to or in connection with the Third-Party
Claim and the defense thereof, and make available to the lndemnified Person and its counsel, all information
and documents available to Purchaser related to the Third-Party Claim. The Indemnified Person shall
provide reasonable assistance to Purchaser, at Purchaser's expense, in connection with such claim.
11.6.5 If Purchaser has assumed the defense of the Third-Party Claim in accordance with
Section 11.6.3, the Indemnified Person shall have the right to employ its own counsel, such counsel may
participate in such claim, action, suit or proceeding, and Purchaser shall reasonably cooperate with the
Indemnified Person in connection with such participation, but the fees and expenses of such counsel
following assumption of the defense by Purchaser shall be at the expense of such Indemnified Person,
except as set forth herein. Notwithstanding the assumption by Purchaser of control of the defense, and in
addition to the Indemnified Party's right to take over the defense of the Third-Party Claim as set forth
above, in the event that the lndemnified Person concludes that (a) there may be a conflict of interest between
Purchaser and the Indemnified Person in the conduct of the defense of such action or that joint
representation would be inappropriate, or (b) there may be legal or equitable defenses available to it which
are different from or additional to those available to Purchaser, then (i) counsel for the Indemnified Person
shall have the right to direct the defense of the portion of the Third-Party Claim on behalf of the Indemnified
Person in connection with the matters specified in clauses (a) and (b), and (ii) the costs and expenses thereof
(including reasonable attorneys' fees and expenses, court costs, expert witness fees, judgments, and
settlements) shall be the responsibility of Purchaser and Purchaser shall pay the same to the Indemnified
Person within twenty (20) days after demand from time to time.
11.7 Direct Claim. Any indemnification claim by a Seller Party which does not result from a
Third-Party Claim (a "Direct Claim") shall be asserted by giving the Purchaser written notice thereof,
stating the nature of such claim in reasonable detail and indicating the estimated amount of the claim, if
reasonably practicable, and Purchaser shall have a period of twenty (20) days after receipt of such Direct
Claim within which to respond to such Direct Claim. If Purchaser does not respond within such twenty
(20) day period, the Seller Party shall issue a second notice to Purchaser and Purchaser shall have a period
of ten ( l0) days within which to respond to such second notice. If Purchaser does not respond to the second
notice within ten (10) days, then Purchaser shall be deemed to have accepted such claim. Any rejection of
a Direct Claim by Purchaser shall not impair, reduce or affect any rights of a Seller Party or any obligations
of Purchaser under this Agreement with respect to such Direct Claim.
11.8 Sale "As Is, Where Is". The parties acknowledge and agree that the terms of this
Agreement were negotiated freely and fairly, and that Seller has agreed to the amount of the Purchase Price
for the Property based on the terms and conditions of this Agreement, including, without limitation,
Purchaser's agreement regarding the disposition of the Earnest Money, the limited and sole and exclusive
remedies of Purchaser hereunder, the remedies of Seller hereunder, the assumption by Purchaser of the
Assumed Liabilities, and the indemnification, waivers, releases and limitation of liabilities in favor of the
Seller Parties, being reflective of Purchaser's agreements hereunder, including that the Property is being
acquired by Purchaser "AS IS, WHERE IS" and "WITH ALL FAULTS." Without limiting the foregoing,
vis a vis Purchaser, Seller does not claim to have any interest in or right to the name "Ty Cooke Station",
34
PURCFL►SE AND SALE AGREEMENT— 3500 E. Slaton Road, Lubbock, Texas, 79404
49138594v.4
and Seller makes no representation or warranty that the use of such name by Purchaser does not infringe or
violate the rights of any person or entity. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1,
SELLER MAKES NO REPRESENTATION OR WARRANTY, OF ANY KIND WHETHER EXPRESS
OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO (A) TITLE TO THE PROPERTY, (B) THE NATURE, QUALITY OR CONDITION
OF THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR PURCHASER'S INTENDED
USE, (D) THE COMPLIANCE OF THE PROPERTY WITH ANY LAWS, (E) THE HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F)
DEFECTS, OR (G) ANY OTHER MATTER RELATED TO OR CONCERNING THE PROPERTY, ALL
OF WHICH REPRESENTATIONS AND WARRANTIES BEING EXPRESSLY DENIED AND
DISCLAIMED.
ARTICLE 12
MISCELLANEOUS
12.1 Parties Bound; Assignment. This Agreement, and the terms, covenants, and conditions
herein contained, shall inure to the benefit of and be binding upon the heirs, personal representatives,
successors, and assigns of each of the parties hereto. Purchaser shall have no right to assign this Agreement,
or any of its rights or obligations hereunder, without the prior written consent of Seller, which may be
conditioned, withheld, or denied in Seller's sole and absolute discretion. Any attempted assignment in
violation of this Section shall be null and void. Purchaser shall remain primarily liable for the performance
of Purchaser's obligations notwithstanding any consented assignment. If Purchaser validly assigns its rights
and obligations under this Agreement, Purchaser shall not be released from their obligations hereunder and
any such assignee of Purchaser shall automatically become jointly and severally obligated with Purchaser
for Purchaser's obligations under this Agreement and shall be required to expressly assume the obligations
of Purchaser hereunder as a condition to such assignment. Upon any assignment consented to by Seller, all
disclaimers, waivers, releases, indemnities and other protections afforded Seller by the terms of this
Agreement, including, without limitation, those set forth in Article 4 and Article 11, and all covenants,
representations, warranties and obligations of Purchaser hereunder, shall apply to and be binding on said
assignee.
12.2 Headin�s. The article, section, subsection, paragraph and/or other headings of this
Agreement are for convenience only and in no way limit or enlarge the scope or meaning of the language
hereof.
12.3 Invaliditv and Waiver. If any portion of this Agreement is held invalid or inoperative,
then so far as is reasonable and possible the remainder of this Agreement shall be deemed valid and
operative, and, to the greatest extent legally possible, effect shall be given to the intent manifested by the
portion held invalid or inoperative. The failure by either party to enforce against the other any term or
provision of this Agreement shall not be deemed to be a waiver of such party's right to enforce against the
other party the same or any other such term or provision in the future. Furthermore, in lieu of such illegal,
invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and
be legal, valid and enforceable.
12.4 Governio� Law. THIS AGREEMGNT 1S INTENDED TO BE PERFORMGD IN THE STATE OF
TEXAS. THIS AGREEMENT AND ANY DISPUTE, CONTROVERSY, OR CLAIM BETWEEN THE PARTIES ARISING
OUT OF, RELATING TO, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING THE EXISTENCE,
VALIDITY, PERFORMANCE, BREACH, OR TERMINATION HEREOF, SHALL BE GOVERNED, INTERPRETED,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS O� TEXAS, WITHOUT REGARD
35
PURCIiASE AND SALE AGREEMENT- 3S00 E. SI[71OI7 ROR(/, Lubbock, T¢XOS, �94�4
49138594v.4
TO CONFLICT OF LAW RULES THAT WOULD DIRECT APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
Seller and Purchaser hereto agree that should any suit, action or proceeding arising out of this Agreement
be instituted by any party hereto (other than a suit, action or proceeding to enforce or realize upon any final
court judgment arising out of this Agreement), such suit, action or proceeding shall be instituted only in a
state or federal court in Lubbock, Lubbock County, Texas, or with respect to the Property, the state and
county where the Property is located (collectively, the "A�proved Jurisdictions"). Each of the parties
hereto consents to the in personam jurisdiction of any state or federal court in the Approved Jurisdictions
and waives any objection to the venue of any such suit, action or proceeding.
12.5 Survival of Terms. All (a) rights and obligations under Sections 2.4, 3_2, 3_4, 3.5, 4_3,
4_4, 4_5, and 4_7, and Articles 8, 9, 10, 11 and 12, (b) all other rights and obligations of the parties which
by their terms survive termination or which by their nature or by implication are intended to survive, shall
survive termination of this Agreement and Closing, and such rights and obligations hall not merge with the
provisions of any closing documents. Purchaser waives and releases any statute-of-limitations, statute-of-
repose, or laches defense with respect to all rights and remedies that survive termination and Closing.
12.6 Entiretv and Amendments. This Agreement embodies the entire agreement between the
parties and supersedes all prior agreements and understandings relating to the Property. This Agreement
may be amended or supplemented only by an instrument in writing executed by the party against whom
enforcement is sought.
12.7 Time. Time is of the essence in the performance of this Agreement.
12.8 Publici . Purchaser shall coordinate with Seller with respect to, and provide advance
copies to Seller for review of, the text of any proposed announcement or publication concerning this
Agreement or the transactions contemplated by this Agreement prior to the dissemination thereof to the
public or to any person. Purchaser shall not make any proposed announcement or publication concerning
this Agreement or the transactions contemplated by this Agreement without the prior written approval of
Seller. Purchaser shall not refer to Seller or any of its affiliates in any advertising or other publication in
connection with this Agreement or the transactions contemplated by this Agreement without the prior
written approval of Seller. Notwithstanding the foregoing, Purchaser may, subject to the provisions of
Section 4.5, make disclosure of this Agreement to its Permitted Outside Parties as necessary to perform its
obligations hereunder and as may be required under laws or regulations applicable to Purchaser.
12.9 Notices. All notices required or permitted hereunder shall be in writing and shall be served
on the parties at the addresses set forth in Section 1.3. Any such notices shall, unless otherwise provided
herein, be given or served (a) by depositing the same in the United States mail, postage paid, certified and
addressed to the party to be notified, with return receipt requested, (b) by overnight delivery using a
nationally recognized overnight courier, (c) by personal delivery, or (d) email, with a confirmation copy
sent by another method permitted in this Section. Notice deposited in the mail in the manner hereinabove
described shall be effective on the third (3rd) Business Day after such deposit. Notice given in any other
manner shall be effective only if and when received by the party to be notified between the hours of 8:00
a.m. and 5:00 p.m. of any Business Day with delivery made after such hours to be deemed received the
following Business Day. A party's address may be changed by written notice to the other party; provided,
however, that no notice of a change of address shall be effective until actual receipt of such notice. Copies
of notices are for informational purposes only, and a failure to give or receive copies of any notice shall not
be deemed a failure to give notice. Notices given by counsel to Purchaser shall be deemed given by
Purchaser and notices given by counsel to Seller shall be deemed given by Seller.
36
PURCFI�SE �ND SALE AGREEMENT- 3500 E. Slaton Road, LubboCk, Texas, 79404
49138594v.4
12.10 Electronic Transactions. Except as expressly provided in Section 12.9 (entitled
"Notices") and Section 12.13 (entitled "Execution in Counterparts"), the parties hereby acknowledge and
agree (a) this Agreement shall not be executed, entered into, altered, amended or modified by electronic
means and (b) without limiting the generality of subparagraph (a) the parties hereby agree the transactions
contemplated by this Agreement shall not be conducted by electronic means.
12.11 Construction; Interpretation.
12.11.1 The parties acknowledge that the parties and their counsel have reviewed
and revised this Agreement and agree that the normal rule of construction - to the effect that any
ambiguities are to be resolved against the drafting pariy - shall not be employed in the interpretation
of this Agreement or any exhibits or amendments hereto.
12.112 the terms "hereof " "herein " "hereto " "hereunder " and similar words
, , , ,
refer to the entirety of this Agreement, and not particularly to the body of any this Agreements or
any particular article, section, exhibit or attachment, or any other subdivision of this Agreement.
12.11.3 references herein to "includes," "including" and similar phrases shall
mean "including, without limitation"; and
12.11.4 references to Purchaser's contractors shall include a reference to the
subcontractors of such contractors and each of their respective employees, agents and
subcontractors of such contractors and subcontractors.
12.12 Calculation of Time Periods. Unless otherwise specified, in computing any period of
time described herein, the day of the act or event after which the designated period of time begins to run is
not to be included and the last day of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday for national banks in the location where the Property is located, in which
event the period shall run until the end of the next day which is neither a Saturday, Sunday, or federal or
state holiday in the State of Texas (a "Business Dav"). The last day of any period of time described herein
shall be deemed to end at 5:00 p.m. local time in the state in which the Real Property is located.
12.13 Execution in Counternarts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute
one Agreement. To facilitate execution of this Agreement, the parties may execute and exchange PDF
counterparts of the signature pages, which shall be deemed original signatures for all purposes.
12.14 No Recordation. Without the prior written consent of Seller, there shall be no recordation.
of either this Agreement or any memorandum hereof, or any affidavit pertaining hereto, and any such
recordation of this Agreement or memorandum or affidavit by Purchaser without the prior written consent
of Seller shall constitute a default hereunder by Purchaser, whereupon Seller shall have the remedies set
forth in Section 10.1 hereof. In addition to any such remedies, Purchaser shall be obligated to execute an
instrument in recordable form releasing this Agreement or memorandum or affidavit.
12.15 Further Assurances. In addition to the acts and deeds recited herein and contemplated to
be performed, executed and/or delivered by either party at Closing, each party agrees to perform, execute
and deliver, but without any obligation to incur any additional liability or expense, on or after the Closing
any further deliveries and assurances as may be reasonably necessary to consummate the transactions
contemplated hereby or to further perfect the conveyance, transfer and assignment of the Property to
Purchaser.
37
PURCFiASE AND SALE AGREEI1fENT— 3SOO E. Sl[tfOi7 ROC7C� LUbbOCI[, Texas, %94�4
49138594v.4
12.16 Discharge of ObliEations. The acceptance of the Deed by Purchaser shall be deemed to
be a full performance and discharge of every representation and warranty made by Seller herein and every
agreement and obligation on the part of Seller to be performed pursuant to the provisions of this Agreement,
except those which are herein specifically stated to survive Closing.
12.17 ERISA. Under no circumstances shall Purchaser have the right to assign this Agreement
to any person or entity owned or controlled by an employee benefit plan if Seller's sale of the Property to
such person or entity would, in the reasonable opinion of Seller's ERISA advisors or consultants, create or
otherwise cause a"prohibited transaction" under ERISA. In the event Purchaser assigns this Agreement or
transfers any ownership interest in Purchaser, and such assignment or transfer would make the
consummation of the transaction hereunder a"prohibited transaction" under ERISA and necessitate the
termination of this Agreement then, notwithstanding any contrary provision which may be contained herein,
Seller shall have the right to terminate this Agreement.
12.18 No Third-Partv Beneficiarv. The provisions of this Agreement and of the documents to
be executed and delivered at Closing are and will be for the benefit of Seller and Purchaser only and are
not for the benefit of any third party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at Closing, except that the
Seller Parties may enforce Purchaser's obligations under Sections 11.5 and 11.5.4.
12.19 No Waiver of Soverei�n Immunitv. The parties specifically agree that (i) neither the
execution of this Agreement, nor any other conduct, action or inaction of any representative of Seller
relating to this Agreement constitutes, or is intended to constitute, a waiver of Seller's sovereign immunity
to suit; and (ii) Seller has not waived its right to seek redress in the courts. Notwithstanding any provision
of this Agreement to the contrary, nothing in this Agreement shall be construed as a waiver by Seller of its
constitutional, statutory, or common law rights, privileges, immunities or defenses. To the extent the terms
of this paragraph conflict with any other provision in this Agreement, the terms of this paragraph shall
control.
12.20 Public Information. Notwithstanding any other provision to the contrary in this
Agreement, all information, documents, and communications relating to this Agreement may be subject to
the Texas Public Inforrr►ation Act and any opinion of the Texas Attorney General or a court of competent
jurisdiction relating to the Texas Public Information Act. In addition to the foregoing sentence, the Seller
may be required to submit to the comptroller the information as required by Texas Local Gov't Code Sec.
380.004, and any other information the comptroller considers necessary to operate and update the database
described by Section 403.0246, Government Code. Compliance or non-compliance with this Section 12.20
shall not be considered a condition precedent or covenant on the part of Seller under this Agreement.
12Z1 Tezas Bovcott Prohibitions. To the extent required by Texas law, Purchaser verifies that:
(a) It does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or
firearm trade association, as defined in Texas Government Code § 2274.001, and that it will not during the
term of the contract discriminate against a firearm entity or firearm trade association; (b) It does not
"boycott Israel" as that term is defined in Texas Government Code Ch. 2271 and § 808.001 and it will not
boycott Israel during the term of this Agreement; (c) It does not "boycott energy companies," as those terms
are defined in Texas Government Code §§ 809.001 and 2274.001, and it will not boycott energy companies
during the term of the Agreement; (d) [t does not engage in scrutinized business operations with Sudan,
Iran, or designated foreign terrorist organization as defined in Texas Government Code, Chapter 2270; and
(e) It is not owned by or the majority of its stock or other ownership interest is held or controlled by
(i) individuals who are citizens of China, Iran, North Korea, Russia, or a designated country as defined by
Texas Government Code § 2275.0101; or (ii) a company or other entity, including a governmental entity,
38
PURCIiASE AND SALE AGREEMENT — 3SOO E. SIIJIOII ROC7CI, LGbbOC/C, T¢XClS, 79404
49138594v.4
that is owned or controlled by citizens of or is directly controlled by the government of China, Iran, North
Korea, Russia, or a designated country; nor is it headquartered in China, Iran, North Korea, Russia, or a
designated country.
12.22 Statutory Disclosure Provisions. The following disclosures are made for the purpose of
complying with specific statutory provisions of Texas law, and such disclosures are not intended to and do
not alter or affect the rights and obligations of Purchaser and Seller.
12.23 Notice of Unimaroved Proaertv in a Certificated Service Area of a Utilitv Service
Provider. The Texas Water Code mandates that if the Property is located in a certificated service area of
a utility service provider, statutory notice must be given by Seller to Purchaser prior to closing. The
reyuirements and text of the notice may be found at Tex. Water Code Ann. § 13.257.
12.23.1 Notice to Purchaser That Propertv Is Located Within the Area of the
Ali�nment of a Transportation Proiect. Pursuant to the Texas Local Government Code, if the
Property is within the area of the alignment of a transportation project, as shown on the final
environmental decision document applicable to the future transportation corridor identified in an
agreement between the Texas Department of Transportation and the county under Texas
Transportation Code Section 201.619, Seller must provide a conspicuous statement in the
Agreement. The requirements and text of the notice may be found at Tex. Loc. Gov't Code Ann. §
232.0033.
12.24 Interconnection. Purchaser acknowledges and agrees that Seller has made no
representations, warranties, covenants or undertakings, express or implied, and shall have no obligation of
any kind, with respect to (a) the interconnection of any generating facility owned or to be owned or operated
by Purchaser to Seller's transmission or distribution system, (b) the interconnection of any such generating
facility to any other transmission or distribution system, grid, market or balancing authority, including,
without limitation, the ERCOT grid or the SPP grid ("Interconnection"), or (c) whether Purchaser is
permitted to take title and possession of the 230 kV transmission line and related facilities that are part of
the Lines and Facilities or whether any permits, consents, authorizations, licenses, approvals, registrations,
or certificates (including, without limitation, certificates of convenience and necessity) are required from
the Public Utility Commission of Texas ("PUCT"), ERCOT, or any other governmental authority for
Purchaser's acquisition, ownership, use, development, operation, or maintenance of the Property at Closing
or thereafter. Without limiting the foregoing, Seller shall have no responsibility for the status, timing, cost,
feasibility, scope, engineering, design, studies, approvals, queue position, application completeness,
milestones, or any other aspect of interconnection or transmission service for Purchaser's intended facility,
and no statement or information provided by Seller shall be deemed or construed as a representation or
warranty regarding the same.
12.24.1 Compliance. Purchaser shall be solely responsible, at its sole cost and
expense, for all actions, applications, studies, analyses, engineering, agreements, security postings,
milestones, upgrades, permits, approvals, authorizations, licenses, registrations, certificates, and
other requirements necessary or desirable to (i) request, obtain, maintain and comply with
interconnection and, if applicable, transmission service for its generating facility, and/or (ii)
acquire, own, use, develop, operate, and maintain the Property. Purchaser shall comply with all
laws, rules, regulations, policies, protocols, procedures, guides and requirements of the PUCT, the
Electric Reliability Council of Texas, Inc. ("ERCOT"), and other governmental authorities,
including those applicable to generation interconnection and operation in ERCOT and ownership,
development, operation and maintenance of generation facilities, transmission lines, natural gas
pipelines, and water pipelines in ERCOT and the State of Texas, and, if Purchaser seeks
39
PURCFL►SE AND SALE AGREEMENT — 3SOO E. SICJlOYI RORCI, LUbbOCIC, i¢XC7S, 79404
49138594v.4
interconnection to the Southwest Power Pool ("SPP"), all policies, procedures and requirements of
SPP, in each case as in effect from time to time.
12.242 No Conditions to Closin� Relatin� to Interconnection. The parties
expressly agree that there shall be no requirement of, or condition precedent to, Closing relating to
(i) any matter described in Section 12242, including, without limitation, any Interconnection or
obtaining or maintaining any permits, approvals, authorizations, licenses, registrations, or
certificates, or (ii) the status, issuance, execution, adequacy, suitability or results of any
interconnection application, interconnection study (of any level or type), system impact or facilities
study, or any interconnection or transmission service agreement or related amendment, milestone
or approval. For the avoidance of doubt, the absence, incompleteness, delay or perceived
inadequacy of any interconnection study, agreement or approval, and the failure to obtain or
maintain any permit, approval, authorization, license, registration or certificate, shall not constitute
a failure of any condition to Closing, grounds for delay of Closing, or grounds for termination of
this Agreement.
12.25 Annrovals Required for Operation. For the avoidance of doubt, Purchaser shall be
responsible for obtaining all permits, approvals, and consents, and making all filings, that are required for
its desired activities, operations, or use of the Property after Closing, and it shall not be a condition to the
Closing that any of such permits, approvals or consents have been obtained or that any of such filings shall
have been made.
[SIGNATURE PAGES AND EXHIBITS TO FOLLOW]
40
PURCHASE AND SALE AGREEMENT— 3SOO E. SlplOn R0C7C% LtlbbOC/[, TCXRS, �94�4
49138594v.4
SIGNATURE PAGE TO
PURCHASE AND SALE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year
written below to be effective on and as of the Effective Date.
SELLER:
CITY OF LUBBOCK,
as home-rule municipal corporation,
actin by and thro�gh Lubbock Power & Light
gy: �-
Name: Iark McBr er
Title: Mayor
Date executed by Seller:
A E T
Co ney Paz, City Secretary
2026
APPR � TO FORM:
e i Swan, LP&L General Counsel
fficer
PURCHASER:
ADAKON ENERGY SOLUTIONS, LLC,
a Florida limited liability company
sy: 9oe- ail�w
Name: Joe Dillon
1'itle: ManaQer
Date executed by Purchaser: 28/05/2026 , 2026
Signature Page
PURCFL►SE AND SALE AGREEMENT - 3500 E. S(alon Road, Gubbock, Texas. '9404
49138594v.4
LIST OF EXHIBITS & SCHEDULES
E�chibit A-1
Exhibit A-2
Exhibit B
Exhibit C
Exhibit D
Schedule 2.1.1
Schedule 2.l .4
Schedule 2.1.5
Schedule 2.2
Schedule 4.1
Schedule 4.4
Schedule 6.1.1
Schedule 9.1.5
Schedule 9.2.1
— Legal Description of Land
— Depiction of Location of Land and Improvements
— Special Warranty Deed
— Bill of Sale, Assignment and Assumption
— Letter of Credit
— Improvements
— Permits
— Property Contracts
— Excluded Property
— Property Information
— Insurance Requirements
— Terminated Service Contracts
— Third Party Agreements
— Purchaser Consents
PURCFWSE AND SALE AGREEM1tENT— 3500 E. Slalon Road, Lubbock, Texas, 79404
49138594v.4
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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 ANY
INSTRUMENT THAT TRANSFERS AN INTEREST IN REAL PROPERTY BEFORE IT IS
FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR
YOUR DRIVER'S LICENSE NUMBER.
STATE OF TEXAS
KNOW ALL PERSONS BY THESE PRESENTS:
COUNTY OF LUBBOCK
SPECIAL WARRANTY DEED
This Special Warranty Deed (this "Deed") is executed and delivered effective as of the _ day of _
, 202_ (the "Effective Date") by CITY OF LUBBOCK, a Texas home-rule municipal
corporation, acting by and through Lubbock Power & Light ("Grantor"), whose address is
, for the benefit of
("Grantee"), whose address is
In consideration of Ten Dollars ($10.00) and other good and valuable consideration paid to Grantor,
Grantor does hereby GRANT, SELL, AND CONVEY unto Grantee that certain real property situated in
Lubbock County, Texas and described in Ezhibit A attached hereto and made a part hereof for all purposes,
together with all improvements and fixtures located thereon (collectively, the "Land"); and, without
warranty, Grantor does hereby quit claim all right, title and interest of Grantor, if any, in and to all and
singular the rights, benefits, privileges, easements, tenements, hereditaments, and appurtenances thereon or
in anywise appertaining thereto; and all right, title, and interest of Grantor, if any, in and to all strips and
gores and any land lying in the bed of any street, road or alley, open or proposed, adjoining such real
property (collectively, the "Pro er ").
This conveyance is made and accepted subject to current real property taxes and all unpaid non-
delinquent general and special taxes, bonds and assessments; all zoning ordinances and regulations and any
other laws, ordinances or governmental regulations now or hereinafter applicable to and enforceable against
the Property; matters visible on the ground or that would be shown on a current survey of the Property; and
all matters set forth on Exhibit B attached hereto (the foregoing collectively, the "Permitted Ezceptions").
Grantor reserves to itself and its successors and assigns forever, all oil, gas and other mineral rights
and interests with respect the Property (the "Mineral Interests"). Notwithstanding the foregoing, Grantor
hereby waives, relinquishes, and releases any and all rights of ingress and egress for exploration,
development, production, and marketing of the Mineral Interests from the surface down to a depth of five
hundred (500) feet beneath the surface of the Property. Grantor may explore, develop, produce and market
the Mineral Interests at depths greater than five hundred (500) feet beneath the surface of the Property by
wells which have been directionally or horizontally drilled from drill sites located on lands other than the
Property, so long as said directionally or horizontally drilled well does not interfere with or disturb the
Grantee's use of the Property.
B-1
PURCF4►SE AND SALE AGREE�IENT — 3500 E. Slaton Road, Lubbock, Texas, 79404
49138594v.4
TO HAVE AND TO HOLD the Property unto Grantee, Grantee's heirs, executors, administrators,
successors, and assigns, and Grantor does hereby bind Grantor and Grantor's successors and assigns to
WARRANT AND FOREVER DEFEND, all and singular, the Land unto Grantee, Grantee's heirs,
executors, administrators, successors, and assigns, against every person whomsoever lawfully claiming, or
to claim the same, or any part thereof, by, through or under Grantor, but not otherwise, subject, however,
to the Permitted Exceptions.
Except as expressly stated herein, Grantor hereby conveys the Property to Grantee, and by its
acceptance hereof Grantee hereby accepts the Property, in its present condition "As Is," "Where Is" and
"With All Faults" basis. The Property is sold in its present condition, AS IS and no warranties, express or
implied, are made or inferred by virtue of this conveyance.
Ad valorem taxes, if any, for the current year having been prorated between the parties hereto,
Grantee hereby assumes liability for the payment thereof for the current year and for subsequent years.
(SIGNATURE PAGE IMMEDIATELY FOLLOWS]
B-2
PURCHASE AND SALE AGREEMENT— 3$00 E. SlalOn ROad, LubboCk, TeXas, 79404
49138594v.4
Executed to be effective as of the Effective Date.
GRANTOR:
CITY OF LUBBOCK, a Texas home-rule municipal
corporation, acting by and through Lubbock Power &
Light
By:
Name:
THE STATE OF TEXAS
COUNTY OF LUBBOCK
BEFORE ME, the undersigned, notary public in and for the State of Texas, on this day personally
appeared the of City Of Lubbock, a Texas home-rule
municipal corporation, acting by and through Lubbock Power & Light, and, being known to me as the
person whose name is subscribed to the foregoing instrument, acknowledged to me that such person
executed the same for the purposes and consideration therein expressed and on behalf of City Of Lubbock,
a Texas home-rule municipal corporation.
Given under my hand and seal of office this day of , 202
Notary Public in and for the State of Texas
Notary's Name Printed:
My Commission Expires:
[Exhibits to be attachedJ
Exhibit A — Property
Exhibit B — Permitted Exceptions
B-3
PURCHASE AND SALE AGREEMENT- 3SOO E. SI[7tOro ROClI�, Lubbock, Texas, 79404
49138594v.4
EXHIBIT C
BILL OF SALE, ASSIGNMENT AND ASSUMPTION
THIS BILL OF SALE, ASSIGNMENT AND ASSUMPTION (this "AgreemenY') is made as of
the day of ,_(the "Effective Date"), by and between the City Of Lubbock, a Texas home-
rule municipal corporation, acting by and through Lubbock Power & Light ("Seller"), and
, a ("Purchaser").
RECITALS
A. Seller and Purchaser entered into a Purchase and Sale Agreement, dated May , 2026
(the "PSA"), pursuant to which Purchaser agreed to sell, transfer and assign to Purchaser, and Purchaser
agreed to purchase, accept and assume from Seller, certain assets, responsibilities, liabilities and obligations
as set forth in the PSA; and
B. Each term used herein with its initial letter capitalized that is not defined herein shall have
the meaning given such term in the PSA.
NOW, THEREFORE, in consideration ofthe mutual terms, provisions, covenants and agreements
set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are
acknowledged, Purchaser and Seller agree as follows:
1. AssiEnment. Seller does hereby sell, convey, assign, and transfer to Purchaser all of
Seller's right, title and interest in and to the following (collectively, the "Assigned Propertv"): (a) the
Easements described in Attachment 1 attached hereto, including the Lines and Facilities described in
Attachment 2 attached hereto, (b) the Tangible Personal Property described in Attachment 3 attached
hereto; (c) the Permits listed on Attachment 4 attached hereto; (d) the Property Contracts listed in
Attachment 5 attached hereto; (e) the Files and Records; and (fl the right to use the name "Ty Cooke
Station" to the extent that Seller has the right to use such name; provided, however, that the Assigned
Property excludes, and Seller does not sell, convey, assign, or transfer, the Excluded Property, the Retained
Assets, and all rights reserved to Seller under the PSA. Purchaser hereby purchases, acquires, and accepts
from Seller all of Seller's right, title and interest in and to the Assigned Property. This Agreement and the
sale, conveyance, assignment, and transfer hereunder is made in accordance with, and is in all respects
subject to, the terms and conditions of the PSA.
2. Assumation. Purchaser hereby assumes and agrees to timely and fully satisfy, discharge,
and perfortn all responsibilities, obligations, and liabilities under, arising out of, and/or related to the
Assigned Property on and after the Effective Date.
3. AS IS, WHERE IS. TRANSFER. PURCHASER ACKNOWLEDGES AND
AGREES THAT THE ASSIGNED PROPERTY IS SOLD, CONVEYED, ASSIGNED, AND
TRANSFERRED TO PURCHASER, AND IS ACCEPTED BY PURCHASER, AS IS, WHERE IS,
AND WITHOUT ANY WARRANTIES OF WHATSOEVER NATURE, EXPRESS OR IMPLIED,
EXCEPT AS EXPRESSLY SET FORTH IN THE PSA, AND THAT THE SALE, CONVEYANCE,
ASSIGNMENT, AND TRANSFER TO PURCHASER IS SUBJECT TO THE TERMS AND
CONDITIONS OF THE PSA, INCLUDING, WITHOUT LIMITATION, ARTICLE 11 THE PSA,
AND INCLUDING, WITHOUT LIMITATION, THE INDEMNIFICATION OF PURCHASER SET
FORTH IN ARTICLE 11 OF THE PSA. ARTICLE 11 OF THE PSA IS HEREBY
INCORPORATED HEREIN.
G1
PURCHASE a1ND SALE AGREEMENT — 3SOO E. SIOtO17 ROC7[I LUbIJOCIC, iCXpS, �9404
49138594v.4
4. Bindina Effect. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their successors and assigns.
5. Governin� Law. This Agreement shall be interpreted, construed, enforced and governed
in accordance with the substantive laws of the State of Texas (without regard to the application of choice
of law rules of the State of Texas or any other jurisdiction that would direct the application of the laws of a
different jurisdiction).
6. Execution in Counteraarts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of such counterparts shall constitute
one Agreement. To facilitate execution of this Agreement, the parties may execute and exchange PDF
counterparts of the signature pages, which shall be deemed original signatures for all purposes.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
C-2
PURCHASE AND SALE AGREEMENT— 3500 E. S(aton Road, Lubbock, Texas, 79404
49138594v.4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective
on and as of the Effective Date.
SELLER:
CITY OF LUBBOCK,
a Texas horne-rule municipal corporation, acting by
and through Lubbock Power & Light
By:_
Name:
Title:
PURCHASER:
a
By:
Name:
Title:
C-3
PURCFIASE AND SALE AGREEIIIENT— 3500 E. Slaton Road, Lubbock, Texas, 79404
49138594v.4
EXHIBIT D
FORM OF LETTER OF CREDIT
LETTER OF CREDIT
IRREVOCABLE STANDBY LETTER OF CREDIT NO.
ISSUING BANK:
AMOUNT:
ISSUE DATE:
BENEFICIARY: City of Lubbock, TX (acting by and through Lubbock Power & Light)
[insert address]
APPLICANT: Adakon Energy Solutions, LLC, a Florida limited liability company
[insert address]
Gentlemen:
By order of and for the account of Adakon Energy Solutions, LLC, a Florida limited liability company
("ApplicanY'), we hereby establish in your favor, for the benefit of City of Lubbock, TX (acting by and
through Lubbock Power & Light) ("you" or "Beneficiary"), our Irrevocable Standby Letter of Credit No.
(this "Letter of Credit") whereby you are hereby irrevocably authorized to draw on us, in one or
more drawings, by your draft or drafts at sight, an aggregate amount not to exceed Five Million Dollars
($5,000,000) (such amount, as it may be reduced by the amount of drafts drawn hereunder and paid by us,
the "Stated Amount").
You may draw upon this Letter of Credit at any time, and from time to time, on or prior to the Expiration
Date (as defined below) by presenting (a) a sight draft in the form of Exhibit D-1 (a "Sisht Draft") and
purportedly signed by your authorized signatory, and (b) a certificate in the form of Exhibit D-2 (a
"Certificate") and purportedly signed by your authorized signatory. The amount of any draft drawn
hereunder and paid by us shall reduce the Stated Amount. Partial and multiple drawings may be made
under this Letter of Credit.
Presentation of any Sight Draft and Certificate shall be made at our office located at f
1. Sight Drafts and Certificates may be presented to us in person at such location,
or by overnight or express delivery or courier to � 1, or by facsimile to our facsimile
number at � ]. We hereby agree that any Sight Draft drawn under and in compliance with the
terms of this Letter of Credit shall be duly honored by us upon delivery of the Certificate, if presented on
or before our close of business on the Expiration Date at our office specified above. You may confirm our
receipt of Sight Drafts and Certificates by telephone at [ 1•
Payment of a drawing shall be made to you in the amount specified in the applicable Sight Drafr, in
immediately available funds, within two Business Days after presentation of the Sight Draft and the
Certificate. As used herein, "Business Day" shall mean any day other than a Saturday, Sunday or day on
D-1
PURCHASE AND SALE AGREEMENT— 3500 E. SlpfOn Road, Lubbock, Texas, 79404
49138594v.4
which the United States Federal Reserve Bank in New York is not open for business. We agree to honor
the Sight Draft upon receipt thereof, without regard to the truth or falsity of the statements and certifications
made therein or the Certificate. If any drawing or the stipulated documentation presented in connection
therewith contains one or more discrepancies from the terms herein, we will advise you of such
discrepancies by communication to you by email at � � or by telephone at
[ � within one (1) Business Day after presentation, which communication will give the
reasons for such non-compliance, and upon your instructions, we will hold any documents at your disposal
or return the same to you. You may correct any non-conforming presentation.
The expiration date of this Letter of Credit (the "Expiration Date") shall be the earliest to occur of (i) the
date that the Stated Amount is reduced to zero, (ii) the date this Letter of Credit is returned to us by you for
cancellation, and (iii) at the close of business (where presentations are to be made hereunder) on
[ �(as such date may be extended as set forth herein). It is a condition of this Letter of
Credit that it shall be automatically extended for an additional period of one year from the present or any
future Expiration Date unless at least ninety (90) days prior to such then current Expiration Date we notify
you in writing (by certified mail, return receipt requested, or overnight courier) at the following address:
� l, to the attention of [ �, that we elect not to extend this Letter of Credit for an
additional one year period.
All bank charges, including but not limited to fees or commissions, shall be for the account of Applicant.
This Letter of Credit is issued subject to the International Standby Practices, International Chamber of
Commerce Publication No. 590 (the "ISP98") and, as to matters not covered by the ISP98, shall be governed
by, and construed in accordance with, the laws of the State of Texas. If a conflict between the ISP98 and
the laws of the State of Texas shall occur, the ISP98 shall prevail.
Very truly yours,
City of Lubbock, TX (acting by and through Lubbock
Power & Light)
:
Name:
Title:
AUTHORIZED SIGNATORY
D-2
PURCIWSE AND SALE AGREEMENT — 3500 E. Slafon Road, Lubbock, Texas, 79404
49138594v.4
Exhibit D-1
to Irrevocable Standby Letter of Credit No.
SIGHT DRAFT
[Insert Bank name and address]
Re: Irrevocable Standby Letter of Credit No.
On Sight
Pay to account no. for the benefit of City of Lubbock, TX (acting by and through Lubbock Power
& Light), in immediately available funds United States Dollars (USD
$ ) pursuant to Inevocable Standby Letter of Credit No. of
By:
Name:
Title:
D-3
PURCIiASE �1ND SALE AGREEMENT — 3500 E. Slaton Road, Lubbock, TexaS, 79404
49138594v.4
Exhibit D-2
to Irrevocable Standby Letter of Credit No.
CERTIFICATE
[Insert Bank name and address]
Re: Irrevocable Standbv Letter of Credit No. f 1
Ladies/Gentlemen:
This is a certificate presented in accordance with your Irrevocable Standby Letter of Credit No.
by order of and for the account of Adakon Energy Solutions, LLC, a Florida limited liability company
("Applicant"), established in your favor, for the benefit of City of Lubbock, TX (acting by and through
Lubbock Power & Light) ("you" or "Beneficiary"), and held by us (the "Letter of Credit"). Each term used
herein with its initial letter capitalized and not defined herein shall have the meaning assigned to such term
in the Purchase and Sale Agreement, dated L�, between Applicant and Beneficiary (as the same may
be amended, amended and restated, supplemented or otherwise modified from time to time, the "PSA").
We hereby certify that one of the following events, indicated by a mark next to the applicable item below,
has occurred:
(i) the Applicant has failed to pay or perform under the PSA; or
(ii) Beneficiary has the right to draw on the Letter of Credit pursuant to the terms of
the PSA.
IN WIT'NESS WHEREOF, this certificate has been executed and delivered by a duly authorized officer of
the undersigned on the date first above written.
City of Lubbock, TX (acting by and through Lubbock Power & Light)
By:
Name:
Title:
D-4
PURCH,�SE AND SALE AGREEMENT— 3500 E. Slaton Road, Lubbock, Texas, 79404
49138594v.4
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Schedule 2.1.5
Proaertv Contracts
Noae.
Schedule 2.1.5
PURCHASE AND SALE AGREEMENT— 3500 E. Slpton ROad, LubbOCk, Texas, 79404
49138594v.4
Schedule 2.2
Excluded Propertv
None.
Schedule 2.2
PURCHASE AND SALE AGREEIIIENT— 3SOO E. Sl[7tOI7 RO[!(/, LubbOCl[, Texas, 79404
49138594v.4
Schedule 4.1
Proaertv Information
1. Survey
2. Maintenance/Repair Reports
3. Inspection Reports
4. Operation Logs
5. Diagrams
Schedule 4.l
PURCFLISE AND SALE AGREEMENT — 3SOO E. SI[7f0l7 R0C7A! Lt(bbOCI[, Texas, �I4O4
49138594v.4
Schedule 4.4
Insurance Reauirements
Adakon sl�all procure and cairy, at its sole cost and expei�se duough tl�e life of this
Agree�uent, except as otherwise provided l�erein, insivance protectiou as liereinatter specified, iia
fonn and substance satisfactory to LP&L and City. cartied with an u�sttra�ice Adakon autl�onzed
to transact busu�ess in the State of Texas, coveri��g all aspects and risks of loss of all operations in
co�wection with tliis Agreement, iucluding without linutation. tl�e u�denmity obligations set fortl�
herein. Adakou sliall obtaiu and maintain in fiill force and ei%ct d�uiug tl�e teru� of tUis Agreemei�t.
sud shall cause each approved Sub-cousultant of Adakon to obtau� and t»aintaiu in full force aud
effect dtuing the tenn of this Agreement, cowmercial general liability, professional liability.
autouiobile liability coverage for any auto wid► insivance camers admitted to do bttsu�ess in the
state of Texas, ewployer's liabiliry, and workers conipe��sation coverage. The couuuercial general
liaUility policy sl�all u�clude Products-Completio��OP. Personal a��d Advenisu�g injury,
Coturacn�al Liabiliry coverage, Fire Damage (a��y one fire), a��d Medical Expeuse (any one
person). Tl�e i�►stu�auce compa�iies mi�st carry a�i A.M. Best's Rating of A- or better. Tl�e policies
will be v►rritteu subject ro the following ��u�uurum limits of liaUility:
Couvuercial Geueral Liability:
Per Occiurence Snigle Linut: $1.000.000.00
General Aggregate Lii�ut: $2.000A00A0
Professioiial Liability:
Per Occtureuce Single Livar. $1,000.000.00
General Agg,regate Liuut: $2.000,000.00
Worker's Compe�sation
Per Occ�ureuce Single L'uuit: Stannory
Euiployer Liability
(Required widi W.C.) $1,000.000.00
Schedule 4.4
PURCHASE AND SALE AGREEMENT- 3500 E. SJaton Road, Lubbock, Texas, ?9404
49138594v.4
Adakon shall fiuther cause any approved Sub-contracror to procure and carry We identical
ins�uauce coverage, and for tLe tenn, required of Adakou lierein, protectn�g City against losses
caused by the professional uegligence of d�e approved Sub-Adakot�. 'Tl�e City sliall be listed as a
priu�ary and noncontributory additional iasi�red wit6 respect to Couvuercial General Liabiliry
policy, iucluding products-completed opetatio�s/OP AGG, persoual aud advertisiug injury,
contrach�al liability coverage, fire da�uage, and medical expe��ses for auy one persou, for
E�uployer's Liability, for Automobile liability, aud for Worker's Coiupe��sation. Tlie City shall
be granted a waiver of subrogation for tl�e couunercial general liability, autou�obile liability and
worker's compensation policies. Adakon sl�all provide a Certificate of I��surance to tl�e City as
evidence of coverage.
Adakon shall elect to obtain workers' cotupeusation coverage pucsuant to Sectiou 406.002
of tl�e Texas Labor Code. Furtl�er. Adakon sliall mav�tain said coverage tluougUout die tenn of
the Agreement and sl�all co�nply witl� all provision of Title 5 of d�e Texas Labor Code to eusure
tl�at tlie Adakou mauitav�s said coverage. Sucl� Worker's Compensatio�� InswFu�ce st�all cover all
eu�ployees wliether employed by tl�e Adakon or a��y SuU-Consultaut o�i the job witl� linuts of at
least $500,000.00. TUe Adakon sl�all also have Employers Liability It�st�ratice wid� lu�uts of
$1,000,000.00. A copy of the waiver of subrogation attacl�ed ro the policy sl�all be included iu the
Certificate. Auy tennu�ation of workers' con�peusation insurance coverage by Adakou or any
cancellation or non-renewal of workers' cowpensation insiu�ance coverage for the Adakon shall
be a�i�►terial breach of tUe contract.
The Certificate shall provide 30 days' written uotice of cancellation, and te� ( l0) days'
writteu uotice for non-payment. If at a��y tinie d�uing d�e life of the Ag,reemeut or any exteusion
uereof. Adakou fails to u�aiutaiu tl�e reqiured ivsw�ance u� fiill force and effect, Adakou sl�all be n�
breach hereof and all work uuder the Agreement sl�all be discoutinued iu�u�ediately. Tl�e
retroactive date shall be no later than the conuueuceme�t of the perfonu�wce of tliis Coutract aud
tlie discovery period (possiUly tluougli tail coverage) sliall be uo less than 10 years after tl�e
completion of tlie Services provided for in this Contract. T1ie provisioi�s of Qus Article VIII sl�all
s�wive the ten�una�ioi� or expiration of this Agree�ueut.
Notwitllsta�idiug aiiytliing coutaiued liereiu, to the coutrary, all iastuaace required l�ereiu
sl�all be tuaintained at Adakon's (a�id approved Sub-coutractors, as applicable) sole cost and
expeuse.
Schedule 4.4
PURCIiASE AND SALE AGREEMENT — 3SO0 6. Slpton ROac% LubbOCk, TexaS, "9404
49138594v.4
Schedule 6.1.1
Terminated Service Contracts
Vendors
Act Indepeudent
AGT Sen�ices
Airgas
Bay Valve
Black & Veatch
CTC Services
Dttde Solutions
Electric Machinery Company
Enprotec
EtLos Energy
Everline
Ftowserve
HPI, LLC
IEM Energy Consultapts Iushwnart
Ke�Jvlar Iustnuneptation
KoneCranes
L Howard Constructiou
Lydick Hooks
Map Mecl�anical Coutractors
Morgeson Coiuulting
MTI GT2 Vibratio�► Testing
National Coil Generator Repair
National Field Service
Northwest Insulation
Power Controls Services Consulta��t
ServCo
Sta��ley Consultants
Veriforce
World Wide Turbine
Schedule 6.1.1
PURCFWSE AND SALE AGREEMENT— 3500 E. S(aton Road, Lubbock, Texas, '9404
49138594v.4
Schedule 9.1.5
Third Partv A�reements
None.
Schedule 9.1.5
PURCHASE AND SALE AGREEMENT— 3SOO E. SI[JIOY! ROO[/, LGbi7OC/[, TCXl7S, J9�O4
49138594v.4
Schedule 9.2.1
Purchaser Consents
Schedule 9.2.1
PURCIiASE AND SALE AGREEMENT— 3500 E. Slafon Road, Lubbock, Texas, 79404
49138594v.4