Preview
FILED
9/22/2021 5:07 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Loaidi Grove DEPUTY
Cause No. DC-21-03824
Kaz Meyers Properties, LLC, MHNC
Meyers, LLC, SMHNC Meyers, LLC,
YKHKNC Meyers, LLC, and
YTNC Meyers, LLC,
In the District Court
Plaintiffs, 14th Judicial District
v.
Ten-X, Inc. and
Madison Title Agency, LLC,
OM OP OD OO HO OD 2 HO? LO? LP?
Defendants. Dallas County, Texas
PLAINTIFFS’ RESPONSE IN OPPOSITION TO
DEFENDANT TEN-X, INC.’S MOTION TO DISMISS
Plaintiffs Kaz Meyers Properties, LLC, MHNC Meyers, LLC, SMHNC Meyers,
LLC, YKHKNC Meyers, LLC, and YTNC Meyers, LLC file this Response to Defendant
Ten-X, Inc.’s (“Ten-X”) Motion to Dismiss.
SUMMARY OF ARGUMENTS
il The transaction giving rise to this lawsuit is governed by three
agreements. Two are attached to Ten-X’s Motion — one of which, includes an Orange
County, California forum-selection clause. The third contains another forum-selection
clause requiring this lawsuit to proceed here, before a Dallas County Court. Plaintiffs’
claims fall squarely within both the Dallas County and Orange County forum-selection
clauses.
Pa, So, this case presents a unique issue for resolution: when two equally
applicable and mandatory forum-selection clauses apply to a dispute, what is the proper
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 1forum? The answer is, “neither.” By virtue of Ten-X drafting two agreements with
conflicting forum-selection clauses, neither can be considered as the “exclusive” forum
for a resolution. And without exclusivity, there is no mandatory forum-selection clause
to enforce. As a result, Ten-X cannot carry its initial burden of demonstrating that a
mandatory forum-selection clause exists requiring this case to be dismissed in favor of
Orange County.
a Even if this Court were to reconcile the conflicting clauses in Ten-X’s favor,
dismissal of Plaintiffs’ claims would not remove the above-referenced cause from this
Court’s docket. It would remain pending with one party — Defendant Madison Title
Agency, LLC (“Madison”), who is not subject to jurisdiction in California. In fact, it was
Madison that initiated the above-styled lawsuit pursuant to the Dallas County forum-
selection clause. And it was Madison that deposited the specific funds in dispute
between Plaintiffs and Ten-X in this Court’s registry. This res would presumably
remain here with Madison as the only party in the case, waiting for Plaintiffs and Ten-X
to receive partial relief from a California Court, just so the parties can return to this
Court for full and final relief. This procedural nightmare is exactly the type of
circumstance which would counsel against enforcement of a mandatory forum-selection
clause.
4. Accordingly, whether Ten-X’s Motion is denied for failing to carry its
initial burden or finding an exception to enforcement, this case must proceed before this
Court.
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 2FACTUAL BACKGROUND!
A. Agreement No. 1: the Marketing Agreement.
5. Plaintiffs, as tenants-in-ccommon, were each former owners of the
Property. [Pltfs. Orig. Pet. 4 11 (DC-21-03974)]. In November 2020, Plaintiffs and Ten-
X began discussing the possibility of an agreement to list the Property on Ten-X’s
Platform for sale. /d. | 13. Plaintiffs were reluctant to commit, however, given the cost
of using Ten-X’s services. Jd.
6. That is, Ten-X handles transactions on its Platform from beginning to end,
including tendering information to buyers, drafting all agreements and sales contracts,
and facilitating the closing of transactions. Jd. §{ 12. In exchange, Ten-X receives a
transaction fee (“Transaction Fee”) which is added to the buyer’s winning bid and paid
by the buyer at closing. Jd. By virtue of this compensation system, adding the
Transaction Fee to the buyer’s purchase price effectively lowers the amount a willing
buyer could pay for a property. Jd.
7. Ten-X publishes its Transaction Fee on its website; for the Property, the
Transaction Fee was 5% of the ultimate winning bid price.? Jd. | 13-14. To earn
Plaintiffs’ business, Ten-X represented that Plaintiffs could retain 1.5% of the ultimate
bid price for the Property. Jd. {| 13-17. The mechanism crafted by Ten-X to allow
Plaintiffs to retain 1.5% of the bid price was to provide for a “revenue share” equal to
30% of Ten-X’s Transaction Fee.? /d. This offer was provided to Plaintiffs in the same
1 Plaintiffs incorporate by reference the defined terms in Ten-X’s Motion, unless otherwise defined herein.
It is undisputed that at the time Plaintiffs and Ten-X entered into the Original Agreement and Amended
Agreement the applicable Transaction Fee for the Property was 5% of the ultimate purchase price.
a Le., 30% of 5% of the ultimate purchase price.
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 3email that attached the Marketing Agreement — which the parties executed. [Ex. 1
(Sequential Page Nos. 19-21)].
8. The Marketing Agreement defines the Transaction Fee as “5% of the
buyer's offer price paid at closing,” which was to be “added to the buyer’s offer price to
establish the total purchase price payable by the buyer.” [Def. Ex. A-1 at § II(a)]. And it
further clarifies and expressly provides for the “revenue share” offered by Ten-X:
“Notwithstanding anything to the contrary in this [Marketing] Agreement, for the sale
of the Property, [Plaintiffs] may retain (and shall not be required to pay to Ten-X) 30%
of the applicable Transaction Fee.” Jd. at § V.
o: Aside from the foregoing, the two-page Marketing Agreement says little
else about the deal between Plaintiffs and Ten-X. Indeed, there is no forum-selection
clause in the Marketing Agreement itself. To give the Marketing Agreement any
meaning, one must reference the ancillary agreements expressly incorporated therein.
B. Agreement No. 2: Ten-X’s Standard Terms on its website.
10. The document marked as Exhibit A-3 to Ten-X’s Motion is actually Ten-X’s
“Standard Terms.” [Def. Ex. A-3 at 1]. Mr. Jacob’s Declaration references this exhibit
incorrectly as the “PSA” (though, he is accurate regarding the PSA’s incorporation — as
addressed below). [Def. Ex. A {{ 3, 5].
11. Ten-X’s Standard Terms can be found on its website. [Def. Ex. A-3 at 1].
The Marketing Agreement incorporates the Standard Terms by reference, though it is
not actually attached. /d. Instead, a web address to find the Standard Terms is provided
in the Marketing Agreement. Jd.
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 412. Ten-X’s Standard Terms contain the forum-selection clause being urged
by Ten-X. [Def. Ex. A-3 at § 22]. The forum-selection clause is restated below to
emphasize the portions omitted by Ten-X in paragraph 3 of its Motion:
Except as otherwise set forth in the [Marketing] Agreement, to the extent
permitted by law, any legal action or proceeding arising under the
[Marketing] Agreement must be brought exclusively in the federal and
state courts located in Orange County, California and the parties
irrevocably consent to the personal jurisdiction and venue therein.
td.
Cc. Agreement No. 3: the Purchase and Sale Agreement.
13. As pointed out by Ten-X in its Motion and supporting Declaration of
Mr. Jacob, the Marketing Agreement also expressly incorporates by reference Ten-X’s
form Purchase and Sale Agreement, including state-specific disclosures (the “PSA”) —
just like the Standard Terms. [Def. Ex. A {{ 3,5: Def. Ex. A-1 § III(d)].
14. The PSA was drafted by Ten-X and contains the terms necessary to give
the Marketing Agreement any meaning. That is, the PSA identifies the winning bid
price for the Property, which dictates Ten-X’s Transaction Fee, Plaintiffs’ “revenue
share,” and the buyer’s ultimate purchase price are based. [Ex. 2 (Seq. Page Nos. 22—
26)].
15. The PSA also defines the relationship between Plaintiffs and Ten-X by
virtue of its required disclosure — from its affiant here, Mr. Jacob — that Ten-X was
acting as the agent and broker for Plaintiffs in the sale.‘ [Ex. 3 (Seq. Page Nos. 27-28)].
Consistent with requirements imposed by Texas law, the PSA includes Ten-X’s
Ten-X maintains an active TREC broker license in Texas (License No. 9004662).
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 5mandatory disclosures regarding the fiduciary duties it owes to Plaintiffs, including the
duty of putting Plaintiffs’ interests above its own. Jad.
16. The PSA further identifies Defendant Madison as the title company to
close the transaction. [Ex. 2 § 1(H) (Seq. Page No. 22)]. Under the PSA, Madison was
required to “pay to [Plaintiffs] the Balance of the Purchase Price and any other funds
remaining after Closing” — including Plaintiffs’ portion of the Transaction Fee and
the remainder to Ten-X. Jd. § 6 (Seq. Page No. 23).
17. And finally, the PSA contains a forum-selection clause requiring
controversies “arising in connection” with the PSA to be brought in Dallas County,
Texas — where the Property is located:
Governing Law and Venue. This Agreement shall be interpreted,
construed, applied and enforced in accordance with the laws of the state
in which the Property is located. The state and federal courts located in
the county in which the Property is located shall be proper forums for
any legal controversy between the parties arising in connection with this
Agreement, which courts shall be the exclusive forums for all such suits,
actions or proceedings.
(emphasis added). [Ex. 2 § 6(1) (Seq. Page No. 24)].
D. Ten-X’s drafting mistake in the PSA gives rise to these proceedings.
18. After executing the Marketing Agreement, but before the Property was
auctioned, Ten-X changed its published Transaction Fee for the Property from 5% to
2.25%.5 [Pltfs. Orig. Pet 16 (DC-21-03974)]. Plaintiffs were neither aware of this
change nor entered into any amendment of the Marketing Agreement to reflect this
5 At the time this lawsuit was filed, a pop-up on Ten-X’s website proclaimed, “Check Out Our Newly
Reduced Transaction Fees! . . . $5m to < $10m 2.25%.” (emphasis in original). https‘//www.ten-x.com/
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 6change — despite their bargained-for “revenue share” being predicated on a 5%
Transaction Fee.
19. After the winning bid was accepted for the Property, Ten-X drafted the
PSA which contained a major error. Jd. { 17. That is, the winning bid to purchase the
Property was $8,500,000. Jd. After adding the Transaction Fee of 5% ($425,000), the
total purchase price should have been $8,925,000. /d. And Plaintiffs expected to receive
their revenue share of $127,500.§ Jd.
20. But Ten-X defined Buyer's purchase price as: “$8,925,000 (which equals
Buyer’s offer price of $8,500,000 plus a Ten-X Transaction Fee of $191,250).”
[Ex. 2 § 1(C) (Seq. Page No. 22)]. The problem with Ten-X’s calculation in the PSA, of
course, is that $8,500,000 plus $191,250 equals $8,691,250, not $8,925,000. Jd. Ten-X
incorrectly included its new 2.25% Transaction Fee of $191,250. See id.
21. When the buyer realized the inconsistency between the numerical sales
price in the PSA and the parenthetical explanation of that price, it seized the
opportunity by demanding Ten-X accept 2.25% of the sales price as its Transaction Fee
or the buyer would refuse to consummate the transaction due to Ten-X’s error. [Pltfs.
Orig. Pet § 18 (DC-21-03974)]. Ultimately, the buyer was able to purchase the
Property for $8,691,250.00 (the “Sales Price”), reflecting a 2.25% Transaction Fee of
$191,250. Id.
22. The sale of the Property was set to close on March 5, 2021. Jd. § 19. And
on that day, Plaintiffs learned from Madison that Ten-X was attempting to have the
6 $127,500 is 1.5% of the ultimate purchase price or 30% of Ten-X’s 5% Transaction Fee.
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 7entirety of incorrect the $191,250 Transaction Fee transferred to themselves upon
closing. /d. Specifically, Ten-X fabricated some sort of oral agreement whereby Plaintiffs
agreed to forego their entire revenue share, entitling Ten-X to all of the $191,250 paid
by the buyer. [/d; Ex. 4 at 2 (Seq. Page No. 30)]. Nothing could be further from the
truth. [Pltfs. Orig. Pet { 20 (DC-21-03974)].
PROCEDURAL POSTURE
23. After the dispute over the Transaction Fee arose, on March 25, Madison
filed this interpleader action against Plaintiffs and Ten-X here in Dallas County
where the Property is located. Madison filed this lawsuit pursuant to the PSA, which
required Madison to hold the specific funds in dispute at closing. [Madison’s Orig.
Pet. 15]. At nearly the same time, and without knowledge of Madison’s filing,
Plaintiffs filed a separate lawsuit in Dallas County, asserting claims for declaratory
judgment, breach of contract, and breach of fiduciary duty against Madison and
Ten-X. See Kaz Meyers v. Ten-X, Inc. and Madison Title Agency, DC-21-03974 (134th
Jud. Dist. Ctr.). On May 11, 2021, this Court consolidated Plaintiffs’ later-filed suit
into this cause.
24. Both Plaintiffs and Ten-X answered Madison’s lawsuit and indicated no
opposition to Madison’s request to interplead the funds in dispute into the Court’s
registry. Accordingly, Madison deposited $195,850 into the Court’s registry on
June 10, 2021, where it remains.
25. The parties have since submitted an agreed scheduling order for entry,
agreed to re-align the parties to its current style, and served initial disclosures.
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 8Plaintiffs then served tailored discovery on Ten-X on June 26, 2021. Six days before
its deadline to respond to Plaintiffs’ discovery, for the first time, Ten-X raised the
forum-selection clause by filing its Motion. Ten-X subsequently moved for protection
from answering Plaintiffs’ discovery until the Motion was adjudicated. And Plaintiffs
filed a motion to compel those discovery responses, which is pending before the Court.
LEGAL STANDARD
26.
Sent: Monday, November 16, 2020 9:48 AM
To: Howard Fuerst
Subject: RE: Madison Contact Info
EXTERNAL EMAIL
Howard —
Do you have the marketing agreement drafted?
As discussed, we need to get everything lined up this morning...
Thanks,
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 19MH
Michael Halberstam | email mh@jstark.com
telephone 732.363.0505 x11 | direct 732.375.0505 | fax 732.363.9104
From: Howard Fuerst [mailto:hfuerst@ten-x.com]
Sent: Friday, November 13, 2020 2:13 PM
To: Michael Halberstam
Subject: RE: Madison Contact Info
Thank you
Howard Fuerst, CCIM
Senior Director
Mobile: 469-688-0242
hfuerst@ten-x.com
A CoStar Group Company
From: Michael Halberstam
Sent: Friday, November 13, 2020 1:05 PM
To: Howard Fuerst
Subject: RE: Madison Contact Info
EXTERNAL EMAIL
Manager
MH
Michael Halberstam | email mh@ijstark.com
telephone 732.363.0505 x11 | direct 732.375.0505 | fax 732.363.9104
From: Howard Fuerst [mailto:hfuerst@ten-x.com]
Sent: Friday, November 13, 2020 1:32 PM
To: Michael Halberstam
Subject: RE: Madison Contact Info
What is your title in the LLC? Thank you
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 20Howard Fuerst, CCIM
Senior Director
Mobile: 469-688-0242
hfuerst@ten-x.com
2]
A CoStar Group Company
From: Michael Halberstam
Sent: Friday, November 13, 2020 11:15 AM
To: Howard Fuerst
Subject: Madison Contact Info
EXTERNAL EMAIL
Madison Title Info...
Michael Halberstam | email mh@jstark.com
telephone 732.363.0505 x11 | direct 732.375.0505 | fax 732.363.9104
Samuel Herskovits
Executive Vice President
MADISON TITLE AGENCY, LLC
a Madison Commercial Real Estate company
(214) 461-4817 - Direct
—a— Virus-free. www.avg.com
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 21EXHIBIT 2ITEM NO. 1000014089
PURCHASE AND SALE AGREEMENT WITH JOINT CLOSING INSTRUCTIONS
Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase the Property from Seller, in accordance
with the terms of this Purchase and Sale Agreement with Joint Closing Instructions (“Agreement”). This Agreement is
effective as of the date Seller signs this Agreement (“Effective Date”).
1 KEY TERMS.
(A) Seller: Kaz Meyers Properties, LLC, MHNC Meyers, LLC, SMHNC Meyers, LLC, YKHKNC Meyers, LLC and YTNC Meyers, LLC
phone number: 732-363-0505 email address: mh@jstark.com
mailing address: 535 West County Line Road, Suite 16, Lakewood, NJ 08701
(B) Buyer: HAMILTON COMMERCIAL LLC, a Texas limited liability company
phone number: 972-877-8953 email address: hamilton@hamiltoncommercialtx.com
mailing address: 404 E Palace Pkwy Grand Prairie, TX 75050
(C) Purchase Price: See ee (which equals Buyer's offer price of $8.500,000.00 plus a Ten-X
Transaction Fee of $1 .00 ).
(D) Earnest Money Deposit: $892,500.00 (if blank, then 10% of the Purchase Price, but no less than $50,000
or more than $1,000,000).
(E) Property: Address: 9441-9461 Lyndon B. Johnson Freeway, Dallas, TX 75243 as legally described
on Exhibit A, including all permanent improvements thereon (but excluding any personal property unless specifically
identified by addendum or amendment to this Agreement).
(F) Closing Date: (if blank, then (i) 30 calendar days after the
Effective Date). If the Closing Date falls on a weekend or a state or federally recognized holiday, the Closing Date
shall be the next business day.
(G) Closing Agent: Madison Title Agency, LLC contact: Samuel Herskovits
address: 13101 Preston Road Suite 300 Dallas Texas 75240 phone number: 214-983-0897
email address: sherskovits@madisoncres.com
(H) Title Insurance Company: Madison Title Agency, LLC. 5
(Il) Closing Cost Allocations: As described in the Section below entitled “Closing Cost Allocations”.
2. EARNEST MONEY DEPOSIT. Buyer must deposit the Earnest Money Deposit with Closing Agent on or before 5:00 PM in
the time zone where the Property is located on the first business day after Seller countersigns this Agreement. The Earnest
Money Deposit is non-refundable except as set forth in this Agreement, and may be applied towards the amounts payable by
Buyer under this Agreement. The escrow (“Escrow”) for the purchase of the Property shall be opened upon Closing Agent's
receipt of the Earnest Money Deposit and a fully-signed copy of this Agreement.
3. CLOSING. The transactions contemplated by this Agreement shall be consummated (“Close” or “Closing”) on or before
the Closing Date.
4. CLOSING DELIVERIES.
(A) Seller's Deliveries. On or before the Closing Date, Seller shall deliver the following to Closing Agent (“Seller's
Deliveries”):
(i) The transfer deed warranting against title defects arising by, through or under Seller (in the form customarily
used for similar transactions in the state where the Property is located) (“Deed”) signed by Seller and
acknowledged in accordance with the laws of the state in which the Property is located.
(ii) A Non-Foreign Transferor Declaration signed by Seller, or evidence reasonably acceptable to Closing Agent
and Buyer that Seller is exempt from the withholding requirements of the Foreign Investment in Real
Property Tax Act (FIRPTA), Internal Revenue Code Section 1445.
(iii) A counterpart of the “Settlement Statement” (defined below) signed by Seller.
(iv) A counterpart of the assignment and assumption of leases and contracts substantially in the form attached
as Exhibit B (“Assignment of Leases and Contracts”) signed by Seller.
(v) Any and all other instruments reasonably required by Closing Agent or otherwise necessary to Close the
transactions contemplated by this Agreement.
PSA (Commercial) (Rev. 04/15/2020) 1
Copyright © 2020 Ten-X, Inc. All rights reserved.
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 22(B) Buyer’s Deliveries. On or before the Closing Date, Buyer shall deliver the following to Closing Agent (“Buyer's
Deliveries’):
(i) An amount in immediately available “good funds” equal to the Purchase Price, plus Buyer's share of closing
costs, prorations and expenses as set forth in this Agreement.
(ii) A counterpart of the Settlement Statement signed by Buyer.
(iii) A counterpart of the Assignment of Leases and Contracts signed by Buyer.
(iv) Any and all other instruments reasonably required by Closing Agent or otherwise necessary to Close the
transactions contemplated by this Agreement.
5. CONDITIONS PRECEDENT TO CLOSING.
(A) Seller's Conditions. Seller's obligation to Close is conditioned upon the following:
(i) All representations and warranties of Buyer in this Agreement shall have been true in all material respects as
of the Effective Date.
(ii) Buyer shail have performed in all material respects all covenants and obligations required to be performed by
Buyer on or before the Closing Date.
(B) Buyer's Conditions. Buyer's obligation to Close is conditioned upon the following:
(i) All representations and warranties of Seller in this Agreement shall have been true in all material respects as
of the Effective Date.
(ii) Seller shail have performed in all material respects all covenants and obligations required to be performed by
Seller on or before the Closing Date.
(iii) Title Insurance Company is irrevocably committed to issue to Buyer an owner's title insurance policy covering
the Property with standard coverage customary in the state where the Property is located, showing liability in
the amount of the Purchase Price and showing insurable title to the Property vested in Buyer, subject only to
the following: (a) Title Insurance Company's standard exceptions; (b) liens for all current general and special
real property taxes and assessments not yet due and payable; (c) liens of supplemental taxes, if any
assessed; (d) any facts not shown by public records that an accurate survey and/or a personal inspection of
the Property would have disclosed; (e) the mortgage/deed of trust/deed to secure debt lien in connection
with any Buyer financing; (f) any laws, regulations, or ordinances regarding the use, occupancy, subdivision,
or improvement of the Property, or the effect of any non-compliance with or any violation thereof; (g) rights of
existing tenants and/or occupants of the Property, if any; (h) covenants, restrictions, easements, and other
matters that do not materially impair the value or use of the Property; (i) non-monetary encumbrances
disclosed to Buyer in writing prior to entering into this Agreement; and (j) any other matter for which Title
Insurance Company agrees to provide insurance at no additional cost to Buyer.
(C) Duty to Cooperate in Good Faith to Resolve. Despite anything to the contrary in this Section, if either party learns that
a closing condition is unlikely to be satisfied, such party shall promptly notify the other party, and both parties shall
cooperate in good faith to fairly and promptly resolve the matter, and the party whose closing condition was not
satisfied shall not be relieved of its obligation to Close unless (i) the other party fails to cooperate in good faith, (ii) fair
and prompt resolution is not reached after the parties have cooperated in good faith, or (iii) fair and prompt resolution
of the matter on or before the Closing Date would be impracticable.
(D) Waiver of Conditions. Either party may waive its respective closing conditions in its sole discretion. By proceeding to
Closing, each party waives its respective closing conditions and irrevocably releases the other party from any liability
arising from any facts known by such waiving party that would otherwise have resulted in a failure of a closing
condition.
6. CLOSING INSTRUCTIONS TO CLOSING AGENT. At Closing, Closing Agent is irrevocably instructed to do the following:
(A) Record the Deed.
(B) Pay all fees, costs, deed and transfer taxes for the sale of the Property which are required to be paid by Seller and
Buyer under this Agreement, the portion of any fees charged by Closing Agent which are payable by Seller and Buyer
(if any) and other expenses relating to the sale of the Property which are required to be paid by Seller and Buyer.
(C) Pay to Seller the balance of the Purchase Price and any other funds remaining after Closing.
Seller and Buyer acknowledge that Closing Agent shall have no liability in connection with its activity as Closing Agent
except to the extent of Closing Agent's gross negligence, willful misconduct, or willful disregard of the terms of this
Agreement.
PSA (Commercial) (Rev. 04/15/2020) 2
Copyright © 2020 Ten-X. Inc. Alt rights reserved.
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 23(F) Counterparts, Electronic Signatures, and Complete Agreement. This Agreement and any addenda or other document
necessary for Closing of the transactions contemplated by this Agreement may be signed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one document. Facsimile and
electronic signatures shall have the same legal effect as original signatures. This Agreement and any addenda or other
document necessary for Closing of the transactions contemplated by this Agreement may be accepted, signed or agreed
to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National
Commerce Act (E-Sign Act), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act
(UETA) and any applicable state law. This Agreement constitutes the entire agreement of Buyer and Seller with respect
to the subject matter of this Agreement and supersedes any other instruments purporting to be an agreement of
Buyer and Seller relating to that subject matter. No modification of this Agreement will be effective unless it is in
writing and signed by both parties.
(G) Severability. If any portion of this Agreement is judicially determined to be invalid or unenforceable, that portion shal!
be deemed severable from this Agreement and the remainder of this Agreement shall remain in full force and effect
and be construed to fulfill the intention of the parties.
(H) Time is of the Essence. Time is of the essence for the performance of each and every covenant under this Agreement
and the satisfaction of each and every condition under this Agreement.
(l) Goveming Law and Venue. This Agreement shall be interpreted, construed, applied and enforced in accordance with
the laws of the state in which the Property is located. The state and federal courts located in the county in which the
Property is located shall be proper forums for any legal controversy between the parties arising in connection with this
Agreement, which courts shall be the exclusive forums for all such suits, actions or proceedings.
(J) Attorneys’ Fees. In any action, proceeding or arbitration arising out of this Agreement, the prevailing party (defined as
the party who prevails as to a substantial part of the litigation or claim) shall be entitled to reasonable attorneys’ fees
and costs.
(K) Further Assurances. The parties agree to execute such other documents, and to take such other actions as may
reasonably be necessary, to further the purposes of this Agreement.
Notices. All notices and other communications contemplated under this Agreement shall be in writing and shall be
deemed given and received upon receipt if: (i) delivered personally; or (ii) mailed by registered or certified mail return
receipt requested, postage prepaid; (iii) sent by a nationally recognized overnight courier; and/or (iv) sent by email.
Notice to Buyer and Seller shall be given as set forth on the first page of this Agreement or to such other address or
addresses as may from time to time be designated by either party by written notice to the other.
(M) Prohibited Persons and Transactions. Each party represents and warrants to the other that neither it, nor any of its
affiliates, nor any of their members, directors or other equity owners (excluding holders of publicly traded shares), and
none of their principal officers and employees: (i) is listed as a “specifically designated national and blocked person"
on the most current list published by the U.S. Treasury Department Office of Foreign Asset Controi (“OFAC”); (ii) is a
person or entity with whom U.S. persons or entities are restricted from doing business under OFAC regulations or any
other statute or executive order (including the September 24, 2001 “Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”); and (iii) is engaged
in prohibited dealings or transactions with any such persons or entities.
(CG
(N) Brokers. In connection with the transactions contemplated by this Agreement, Seller is represented by Listing Broker
identified on the signature page hereto, Buyer is represented by Buyer's Broker identified on the signature page
hereto, Ten-X is acting as the marketing firm and marketplace provider, and Seller and Buyer each represents and
warrants that it has not dealt with any other broker, finder or other agent who would be entitled to any fee from Seller
or Buyer. Seller and Buyer shall each indemnify and hold harmless the other from and against any claims, losses,
costs, damages, liabilities or expenses, including reasonable attorneys’ fees, arising in connection with any breach by
the indemnifying party of the representations and warranties in this paragraph. This paragraph shall survive Closing
indefinitely.
Form of Agreement. Buyer and Seller acknowledge that no representation, recommendation or warranty is made by
Ten-X or any broker relating to the legal sufficiency or tax consequences of this Agreement or any attachments
hereto, and Buyer and Seller each represent and warrant that it has consulted with, had the opportunity to consult
with or waived the right to consult with counsel in connection with this Agreement.
IC)
PSA (Commercial) (Rev. 04/15/2020) 6
Copyright © 2020 Ten-X, Inc. All rights reserved.
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 24SELLER:
Kaz Meyers Properties, LLC, a Delaware limited liability company
BUYER:
HAMILTON COMMERCIAL LLC, a Texas limited liability company
Printed Name: _ Michael Haiberstam
Title (if applicable):
me: MOL HABEAS
LAYACEL
if applicable): WA
Dated: _2-3-21
LISTING BROKER (if any):
Broker Printed Name: Cody Payne
Brokerage Printed Name: _Colliers - Dallas - Fort Worth
Brokerage License Number: 551177 State: _™
(and its permitted assigns under Section 13(B))
Printed Name: _Hamilton Peck
Printed Name:
Title (if applicable):
Dated: Z- 3- 2}
BUYER'S BROKER (if any):
Broker Printed Name: None
Brokerage Printed Name: None
Brokerage License Number: State:
(Brokers must be licensed in the state where the Property is located.)
DISCLOSURE AND CONFIRMATION OF AGENCY RELATIONSHIP
Buyer and Seller acknowledge that, unless otherwise set forth in this Agreement, Ten-X is not acting as Seller's real estate
agent or Buyer's real estate agent, and Ten-x is acting as a marketing firm and marketplace proviger only.
‘SELLER'S INmIALS_MMH_
CLOSING AGENT ACKNOWLEDGEMENT
BUYER'S INITIALS
Closing Agent acknowledges receipt of a copy of this Agreement and the Earnest Money Deposit set forth in Section 1(D) and
agrees to act as Closing Agent in accordance with this Agreement.
Madison Title Agency, LLC.
By:
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 25TEXAS AGENCY DISCLOSURE
By signing the agreement to which this page is attached, the parties acknowledge receipt of the agency disclosure located at
https: .ten- ‘compa ontent/uploads/2020/01/Texas.pdf
(Remainder of Page intentionally Blank)
‘Texas Agency Disclosure (Rev. 01/04/2020)
Copyright © 2020 Ten-x, Inc. All rights reserved.
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 26EXHIBIT 3Texas Agency Disclosure
The licensee, Ten-X RE Inc., dba Ten-X (License No. 9004662) is acting only as agent of the seller only.
Ten-X does not act as agent for buyer/tenant in any capacity.
Licensed Broker: Ten-X RE Inc., dba Ten-X (License No. 9004662)
legal-notice@ten-x.com
888-952-6393
Designated Broker of Firm: Joshua Jacob (License No. 668911)
888-952-6393
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 2711-2-2015
ON. Information About Brokerage Services ay
T ic Texas law requires all real estate license holders to give the following information about
—— brokerage services to prospective buyers, tenants, sellers and landlords.
ceraeioane
TYPES OF REAL ESTATE LICENSE HOLDERS:
e ABROKER is responsible for all brokerage activities, including acts performed by sales agents sponsored by the broker.
e@ ASALES AGENT must be sponsored by a broker and works with clients on behalf of the broker.
A BROKER’S MINIMUM DUTIES REQUIRED BY LAW (A client is the person or party that the broker represents):
e Put the interests of the client above all others, including the broker’s own interests;
e Inform the client of any material information about the property or transaction received by the broker;
e Answer the client’s questions and present any offer to or counter-offer from the client; and
© Treat all parties to a real estate transaction honestly and fairly.
A LICENSE HOLDER CAN REPRESENT A PARTY IN A REAL ESTATE TRANSACTION:
AS AGENT FOR OWNER (SELLER/LANDLORD): The broker becomes the property owner's agent through an agreement with the
owner, usually in a written listing to sell or property management agreement. An owner's agent must perform the broker’s minimum
duties above and must inform the owner of any material information about the property or transaction known by the agent, including
information disclosed to the agent or subagent by the buyer or buyer’s agent.
AS AGENT FOR BUYER/TENANT: The broker becomes the buyer/tenant's agent by agreeing to represent the buyer, usually through a
written representation agreement. A buyer's agent must perform the broker’s minimum duties above and must inform the buyer of any
material information about the property or transaction known by the agent, including information disclosed to the agent by the seller or
seller's agent.
AS AGENT FOR BOTH - INTERMEDIARY: To act as an intermediary between the parties the broker must first obtain the written
agreement of each party to the transaction. The written agreement must state who will pay the broker and, in conspicuous bold or
underlined print, set forth the broker's obligations as an intermediary. A broker who acts as an intermediary:
e Must treat all parties to the transaction impartially and fairly;
© May, with the parties' written consent, appoint a different license holder associated with the broker to each party (owner and
buyer) to communicate with, provide opinions and advice to, and carry out the instructions of each party to the transaction.
e Must not, unless specifically authorized in writing to do so by the party, disclose:
© that the owner will accept a price less than the written asking price;
© that the buyer/tenant will pay a price greater than the price submitted in a written offer; and
© any confidential information or any other information that a party specifically instructs the broker in writing not to
disclose, unless required to do so by law.
AS SUBAGENT: A license holder acts as a subagent when aiding a buyer in a transaction without an agreement to represent the
buyer. A subagent can assist the buyer but does not represent the buyer and must place the interests of the owner first.
TO AVOID DISPUTES, ALL AGREEMENTS BETWEEN YOU AND A BROKER SHOULD BE IN WRITING AND CLEARLY ESTABLISH:
e The broker’s duties and responsibilities to you, and your obligations under the representation agreement.
e Whowill pay the broker for services provided to you, when payment will be made and how the payment will be calculated.
LICENSE HOLDER CONTACT INFORMATION: This notice is being provided for information purposes. It does not create an obligation for
you to use the broker’s services. Please acknowledge receipt of this notice below and retain a copy for your records.
TenX RE, Inc., dba Ten-X 9004662 legal-notice@ten-x.com —_ (888) 952-6393
Licensed Broker /Broker Firm Name or License No. Email Phone
Primary Assumed Business Name
Joshua Jacob 668911 jjacob@ten-x.com (888) 952-6393
Designated Broker of Firm License No. Email Phone
Licensed Supervisor of Sales Agent/ License No. Email Phone
Associate
Sales Agent/Associate’s Name. License No. Email Phone
Buyer/Tenant/Seller/Landlord Initials Date
Regulated by the Texas Real Estate Commission Information available at www.trec.texas.gov
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 28 IABS 1-0EXHIBIT 4From: ‘Smith, Debra
To: ras, Ire
Cec: Freeman, Larry
Subject: FW: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX
Date: Friday, March 12, 2021 12:31:27 PM
Attachments: image003.ipq_
image001 i
Ten-X Marketing Agreement Amendment (Kaz Meyers Properties LLC).pdf
Debra Smith
Associate General Counsel
Madison Commercial Real Estate Services
(732) 333-2489 - Direct
(917) 362-3295 - Cell
From: Herskovits, Samuel
Sent: Friday, March 12, 2021 1:29 PM
To: Smith, Debra
Subject: FW: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX
Samuel Herskovits
Executive Vice President
Madison Commercial Real Estate Services
(214) 461-4817 - Direct
From: Sandra Mendoza >
Sent: Friday, March 5, 2021 2:03 PM
To: Mastriano, Debra >;
mh@jstark.com; hn@jstark.com;
gk@jstark.com
Ce: Herskovits, Samuel >
Subject: RE: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX
com>>; Samantha
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 29Hi Debra,
Ten-X does not accept the escrow agreement and does not approve of the transaction closing with any funds due to
Ten-X being held back in escrow.
We have discussed this matter with our legal team and at their direction have attached for your reference, the Ten-X
Marketing Agreement between Kaz Meyers Properties, LLC, et. al. ("Seller") and Ten-X (the "Marketing
agreement") governing our engagement for the sale of the property located at 9441 - 9461 Lyndon B Johnson Fwy,
Dallas, TX. Please note, per Section 11 of the Standard Terms to the Marketing Agreement, it has been agreed to by
the parties that the Marketing Agreement shall be an irrevocable instruction to pay at closing, the compensation due
Ter Fut ste em tie Ming Aen TyXiso te pi Tans Fact Soft
Should the Seller elect to continue to dispute Ten-X's verbal concession of a reduced Transaction Fee, then we
respectfully ask Madison Title as the Closing Agent to abide by the terms of the Marketing Agreement, and be
prepared to disburse the Transaction Fee of 5% of the buyer's offer price, less a 30% revenue share to the Seller to
Ten-X at closing.
Tam including our Legal Operations and Compliance Manager, Samantha Corbat, on this chain should you have any
questions.
Regards,
Sandra Mendoza
Senior Contracts & Closing Associate
© 949-465-8552
15295 Alton Parkway, Irvine, CA 92618
A CoStar Group
Company
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 30WARNING! WIRE FRAUD ADVISORY: Wire fraud and email hacking/phishing attacks are on the increase! If
you have an open transaction with us and you receive an email containing Wire Transfer Instructions, DO NOT
RESPOND TO THE EMAIL! Instead, call your escrow officer/closer immediately, using previously known contact
information and NOT information provided in the email, to verify the information prior to sending funds.
From: Mastriano, Debra >
Sent: Friday, March 05, 2021 10:42 AM
To: Sandra Mendoza >;
mh@jstark.com; hn@jstark.com;
gk @jstark.com
Ce: Herskovits, Samuel >
Subject: RE: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX
This message was sent securely using Zix(r)
EXTERNAL EMAIL
Attached is a form of our escrow agreement for you to review in the meantime.
Thanks,
Debbie
Debra Mastriano
Title Operations Manager
Madison Title Agency, LLC
A Madison Commercial Real Estate company
(214) 461-4819 - Direct
WARNING - FRAUDULENT WIRING INSTRUCTIONS
Email hacking is on the rise to fraudulently misdirect funds. Before wiring us any money, always call our office to
verbally verify our wiring instructions. Please use independent sources such as the internet, to verify our phone
number. We will not be responsible for any wires sent to incorrect bank accounts.
From: Mastriano, Debra
Sent: Friday, March 5, 2021 1:14 PM
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 31To: 'Sandra Mendoza’ >;
mh@jstark.com< :mh@i >; hn@jstark. ee
gk@jstark.com>
Subject: RE: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX
We were advised that this is being paid outside of closing.
Additionally, attached please find a revised invoice reflecting the Ten-X fee being held in escrow. We working on
an escrow agreement and will circulate that shortly.
Thanks,
Debbie
Debra Mastriano
Title Operations Manager
Madison Title Agency, LLC
A Madison Commercial Real Estate company
(214) 461-4819 - Direct
WARNING - FRAUDULENT WIRING INSTRUCTIONS
Email hacking is on the rise to fraudulently misdirect funds. Before wiring us any money, always call our office to
verbally verify our wiring instructions. Please use independent sources such as the internet, to verify our phone
number. We will not be responsible for any wires sent to incorrect bank accounts.
From: Sandra Mendoza >
Sent: Friday, March 5, 2021 1:10 PM
To: Mastriano, Debra >;
mh@jstark.com; hn@jstark.com;
gk@jstark.com
Ce: Herskovits, Samuel >
Sent: Friday, March 05, 2021 9:55 AM.
To: mh@jstark.com; hn@jstark.com;
gk @jstark.com
Ce: Herskovits, Samuel >
Subject: RE: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX
s.com>>; Sandra
This message was sent securely using Zix(r)
EXTERNAL EMAIL
Attached please find the updated draft settlement statement along with our wire instructions.
Thanks,
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 33Debbie
Debra Mastriano
Title Operations Manager
Madison Title Agency, LLC
A Madison Commercial Real Estate company
(214) 461-4819 - Direct
WARNING - FRAUDULENT WIRING INSTRUCTIONS
Email hacking is on the rise to fraudulently misdirect funds. Before wiring us any money, always call our office to
verbally verify our wiring instructions. Please use independent sources such as the internet, to verify our phone
number. We will not be responsible for any wires sent to incorrect bank accounts.
From: Mastriano, Debra
Sent: Thursday, March 4, 2021 1:05 PM
To: 'mh@jstark.com' >; 'hn@jstark.com!
>; 'gk@jstark.com' >
Ce: Herskovits, Samuel >; ‘Sandra
Mendoza’ >
Subject: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX
All,
Attached please find the draft settlement statement for your review.
Please forward any additional fees or invoices to be included.
Thanks,
Debbie
Debra Mastriano
Title Operations Manager
Madison Title Agency, LLC
13101 Preston Road Suite 300, Dallas TX 75240
(214) 461-4819 - Direct
(214) 932-0008 - Fax
DMastriano@madisontitle.com
866.500.6234 | https://protect-us.mimecast.com/s/2_s9C82WKZuWnj9TV-3Uk?
Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 34a https: = . .
domain=urldefense.com>
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WARNING - FRAUDULENT WIRING INSTRUCTIONS
Email hacking is on the rise to fraudulently misdirect funds. Before wiring us any money, always call our office to
verbally verify our wiring instructions. Please use independent sources such as the internet, to verify our phone
number. We will not be responsible for any wires sent to incorrect bank accounts.
This message was secured by Zix(r).
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Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 35Tonya Stephenson on behalf of Kartik Singapura
Bar No. 24083863
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
tstephenson@bellnunnally.com
Envelope ID: 57517235
Status as of 9/23/2021 2:42 PM CST
Associated Case Party: KAZ MEYERS PROPERTIES, LLC
Name BarNumber | Email TimestampSubmitted | Status
Eric Wood eric@brownfoxlaw.com | 9/22/2021 5:07:05 PM | SENT
Associated Case Party: TEN-X, INC.
Name BarNumber | Email TimestampSubmitted | Status
Gary S.Kessler gsk@kesslercollins.com 9/22/2021 5:07:05 PM _| SENT
Stephen JHuschka shuschka@kesslercollins.com | 9/22/2021 5:07:05 PM | SENT
Samuel Kessler skessler@kesslercollins.com | 9/22/2021 5:07:05 PM | SENT
Associated Case Party: MADISON TITLE AGENCY, LLC
Name BarNumber | Email TimestampSubmitted | Status
Parker Burns pburns@bellnunnally.com 9/22/2021 5:07:05 PM | SENT
Kartik R.Singapura ksingapura@bellnunnally.com | 9/22/2021 5:07:05 PM | SENT
Case Contacts
Name BarNumber | Email TimestampSubmitted | Status
Debbie Archer darcher@bellnunnally.com 9/22/2021 5:07:05 PM | SENT
Tonya C.Stephenson tstephenson@bellnunnally.com | 9/22/2021 5:07:05 PM | SENT
Preview
FILED 9/22/2021 5:07 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Loaidi Grove DEPUTY Cause No. DC-21-03824 Kaz Meyers Properties, LLC, MHNC Meyers, LLC, SMHNC Meyers, LLC, YKHKNC Meyers, LLC, and YTNC Meyers, LLC, In the District Court Plaintiffs, 14th Judicial District v. Ten-X, Inc. and Madison Title Agency, LLC, OM OP OD OO HO OD 2 HO? LO? LP? Defendants. Dallas County, Texas PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT TEN-X, INC.’S MOTION TO DISMISS Plaintiffs Kaz Meyers Properties, LLC, MHNC Meyers, LLC, SMHNC Meyers, LLC, YKHKNC Meyers, LLC, and YTNC Meyers, LLC file this Response to Defendant Ten-X, Inc.’s (“Ten-X”) Motion to Dismiss. SUMMARY OF ARGUMENTS il The transaction giving rise to this lawsuit is governed by three agreements. Two are attached to Ten-X’s Motion — one of which, includes an Orange County, California forum-selection clause. The third contains another forum-selection clause requiring this lawsuit to proceed here, before a Dallas County Court. Plaintiffs’ claims fall squarely within both the Dallas County and Orange County forum-selection clauses. Pa, So, this case presents a unique issue for resolution: when two equally applicable and mandatory forum-selection clauses apply to a dispute, what is the proper Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 1forum? The answer is, “neither.” By virtue of Ten-X drafting two agreements with conflicting forum-selection clauses, neither can be considered as the “exclusive” forum for a resolution. And without exclusivity, there is no mandatory forum-selection clause to enforce. As a result, Ten-X cannot carry its initial burden of demonstrating that a mandatory forum-selection clause exists requiring this case to be dismissed in favor of Orange County. a Even if this Court were to reconcile the conflicting clauses in Ten-X’s favor, dismissal of Plaintiffs’ claims would not remove the above-referenced cause from this Court’s docket. It would remain pending with one party — Defendant Madison Title Agency, LLC (“Madison”), who is not subject to jurisdiction in California. In fact, it was Madison that initiated the above-styled lawsuit pursuant to the Dallas County forum- selection clause. And it was Madison that deposited the specific funds in dispute between Plaintiffs and Ten-X in this Court’s registry. This res would presumably remain here with Madison as the only party in the case, waiting for Plaintiffs and Ten-X to receive partial relief from a California Court, just so the parties can return to this Court for full and final relief. This procedural nightmare is exactly the type of circumstance which would counsel against enforcement of a mandatory forum-selection clause. 4. Accordingly, whether Ten-X’s Motion is denied for failing to carry its initial burden or finding an exception to enforcement, this case must proceed before this Court. Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 2FACTUAL BACKGROUND! A. Agreement No. 1: the Marketing Agreement. 5. Plaintiffs, as tenants-in-ccommon, were each former owners of the Property. [Pltfs. Orig. Pet. 4 11 (DC-21-03974)]. In November 2020, Plaintiffs and Ten- X began discussing the possibility of an agreement to list the Property on Ten-X’s Platform for sale. /d. | 13. Plaintiffs were reluctant to commit, however, given the cost of using Ten-X’s services. Jd. 6. That is, Ten-X handles transactions on its Platform from beginning to end, including tendering information to buyers, drafting all agreements and sales contracts, and facilitating the closing of transactions. Jd. §{ 12. In exchange, Ten-X receives a transaction fee (“Transaction Fee”) which is added to the buyer’s winning bid and paid by the buyer at closing. Jd. By virtue of this compensation system, adding the Transaction Fee to the buyer’s purchase price effectively lowers the amount a willing buyer could pay for a property. Jd. 7. Ten-X publishes its Transaction Fee on its website; for the Property, the Transaction Fee was 5% of the ultimate winning bid price.? Jd. | 13-14. To earn Plaintiffs’ business, Ten-X represented that Plaintiffs could retain 1.5% of the ultimate bid price for the Property. Jd. {| 13-17. The mechanism crafted by Ten-X to allow Plaintiffs to retain 1.5% of the bid price was to provide for a “revenue share” equal to 30% of Ten-X’s Transaction Fee.? /d. This offer was provided to Plaintiffs in the same 1 Plaintiffs incorporate by reference the defined terms in Ten-X’s Motion, unless otherwise defined herein. It is undisputed that at the time Plaintiffs and Ten-X entered into the Original Agreement and Amended Agreement the applicable Transaction Fee for the Property was 5% of the ultimate purchase price. a Le., 30% of 5% of the ultimate purchase price. Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 3email that attached the Marketing Agreement — which the parties executed. [Ex. 1 (Sequential Page Nos. 19-21)]. 8. The Marketing Agreement defines the Transaction Fee as “5% of the buyer's offer price paid at closing,” which was to be “added to the buyer’s offer price to establish the total purchase price payable by the buyer.” [Def. Ex. A-1 at § II(a)]. And it further clarifies and expressly provides for the “revenue share” offered by Ten-X: “Notwithstanding anything to the contrary in this [Marketing] Agreement, for the sale of the Property, [Plaintiffs] may retain (and shall not be required to pay to Ten-X) 30% of the applicable Transaction Fee.” Jd. at § V. o: Aside from the foregoing, the two-page Marketing Agreement says little else about the deal between Plaintiffs and Ten-X. Indeed, there is no forum-selection clause in the Marketing Agreement itself. To give the Marketing Agreement any meaning, one must reference the ancillary agreements expressly incorporated therein. B. Agreement No. 2: Ten-X’s Standard Terms on its website. 10. The document marked as Exhibit A-3 to Ten-X’s Motion is actually Ten-X’s “Standard Terms.” [Def. Ex. A-3 at 1]. Mr. Jacob’s Declaration references this exhibit incorrectly as the “PSA” (though, he is accurate regarding the PSA’s incorporation — as addressed below). [Def. Ex. A {{ 3, 5]. 11. Ten-X’s Standard Terms can be found on its website. [Def. Ex. A-3 at 1]. The Marketing Agreement incorporates the Standard Terms by reference, though it is not actually attached. /d. Instead, a web address to find the Standard Terms is provided in the Marketing Agreement. Jd. Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 412. Ten-X’s Standard Terms contain the forum-selection clause being urged by Ten-X. [Def. Ex. A-3 at § 22]. The forum-selection clause is restated below to emphasize the portions omitted by Ten-X in paragraph 3 of its Motion: Except as otherwise set forth in the [Marketing] Agreement, to the extent permitted by law, any legal action or proceeding arising under the [Marketing] Agreement must be brought exclusively in the federal and state courts located in Orange County, California and the parties irrevocably consent to the personal jurisdiction and venue therein. td. Cc. Agreement No. 3: the Purchase and Sale Agreement. 13. As pointed out by Ten-X in its Motion and supporting Declaration of Mr. Jacob, the Marketing Agreement also expressly incorporates by reference Ten-X’s form Purchase and Sale Agreement, including state-specific disclosures (the “PSA”) — just like the Standard Terms. [Def. Ex. A {{ 3,5: Def. Ex. A-1 § III(d)]. 14. The PSA was drafted by Ten-X and contains the terms necessary to give the Marketing Agreement any meaning. That is, the PSA identifies the winning bid price for the Property, which dictates Ten-X’s Transaction Fee, Plaintiffs’ “revenue share,” and the buyer’s ultimate purchase price are based. [Ex. 2 (Seq. Page Nos. 22— 26)]. 15. The PSA also defines the relationship between Plaintiffs and Ten-X by virtue of its required disclosure — from its affiant here, Mr. Jacob — that Ten-X was acting as the agent and broker for Plaintiffs in the sale.‘ [Ex. 3 (Seq. Page Nos. 27-28)]. Consistent with requirements imposed by Texas law, the PSA includes Ten-X’s Ten-X maintains an active TREC broker license in Texas (License No. 9004662). Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 5mandatory disclosures regarding the fiduciary duties it owes to Plaintiffs, including the duty of putting Plaintiffs’ interests above its own. Jad. 16. The PSA further identifies Defendant Madison as the title company to close the transaction. [Ex. 2 § 1(H) (Seq. Page No. 22)]. Under the PSA, Madison was required to “pay to [Plaintiffs] the Balance of the Purchase Price and any other funds remaining after Closing” — including Plaintiffs’ portion of the Transaction Fee and the remainder to Ten-X. Jd. § 6 (Seq. Page No. 23). 17. And finally, the PSA contains a forum-selection clause requiring controversies “arising in connection” with the PSA to be brought in Dallas County, Texas — where the Property is located: Governing Law and Venue. This Agreement shall be interpreted, construed, applied and enforced in accordance with the laws of the state in which the Property is located. The state and federal courts located in the county in which the Property is located shall be proper forums for any legal controversy between the parties arising in connection with this Agreement, which courts shall be the exclusive forums for all such suits, actions or proceedings. (emphasis added). [Ex. 2 § 6(1) (Seq. Page No. 24)]. D. Ten-X’s drafting mistake in the PSA gives rise to these proceedings. 18. After executing the Marketing Agreement, but before the Property was auctioned, Ten-X changed its published Transaction Fee for the Property from 5% to 2.25%.5 [Pltfs. Orig. Pet 16 (DC-21-03974)]. Plaintiffs were neither aware of this change nor entered into any amendment of the Marketing Agreement to reflect this 5 At the time this lawsuit was filed, a pop-up on Ten-X’s website proclaimed, “Check Out Our Newly Reduced Transaction Fees! . . . $5m to < $10m 2.25%.” (emphasis in original). https‘//www.ten-x.com/ Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 6change — despite their bargained-for “revenue share” being predicated on a 5% Transaction Fee. 19. After the winning bid was accepted for the Property, Ten-X drafted the PSA which contained a major error. Jd. { 17. That is, the winning bid to purchase the Property was $8,500,000. Jd. After adding the Transaction Fee of 5% ($425,000), the total purchase price should have been $8,925,000. /d. And Plaintiffs expected to receive their revenue share of $127,500.§ Jd. 20. But Ten-X defined Buyer's purchase price as: “$8,925,000 (which equals Buyer’s offer price of $8,500,000 plus a Ten-X Transaction Fee of $191,250).” [Ex. 2 § 1(C) (Seq. Page No. 22)]. The problem with Ten-X’s calculation in the PSA, of course, is that $8,500,000 plus $191,250 equals $8,691,250, not $8,925,000. Jd. Ten-X incorrectly included its new 2.25% Transaction Fee of $191,250. See id. 21. When the buyer realized the inconsistency between the numerical sales price in the PSA and the parenthetical explanation of that price, it seized the opportunity by demanding Ten-X accept 2.25% of the sales price as its Transaction Fee or the buyer would refuse to consummate the transaction due to Ten-X’s error. [Pltfs. Orig. Pet § 18 (DC-21-03974)]. Ultimately, the buyer was able to purchase the Property for $8,691,250.00 (the “Sales Price”), reflecting a 2.25% Transaction Fee of $191,250. Id. 22. The sale of the Property was set to close on March 5, 2021. Jd. § 19. And on that day, Plaintiffs learned from Madison that Ten-X was attempting to have the 6 $127,500 is 1.5% of the ultimate purchase price or 30% of Ten-X’s 5% Transaction Fee. Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 7entirety of incorrect the $191,250 Transaction Fee transferred to themselves upon closing. /d. Specifically, Ten-X fabricated some sort of oral agreement whereby Plaintiffs agreed to forego their entire revenue share, entitling Ten-X to all of the $191,250 paid by the buyer. [/d; Ex. 4 at 2 (Seq. Page No. 30)]. Nothing could be further from the truth. [Pltfs. Orig. Pet { 20 (DC-21-03974)]. PROCEDURAL POSTURE 23. After the dispute over the Transaction Fee arose, on March 25, Madison filed this interpleader action against Plaintiffs and Ten-X here in Dallas County where the Property is located. Madison filed this lawsuit pursuant to the PSA, which required Madison to hold the specific funds in dispute at closing. [Madison’s Orig. Pet. 15]. At nearly the same time, and without knowledge of Madison’s filing, Plaintiffs filed a separate lawsuit in Dallas County, asserting claims for declaratory judgment, breach of contract, and breach of fiduciary duty against Madison and Ten-X. See Kaz Meyers v. Ten-X, Inc. and Madison Title Agency, DC-21-03974 (134th Jud. Dist. Ctr.). On May 11, 2021, this Court consolidated Plaintiffs’ later-filed suit into this cause. 24. Both Plaintiffs and Ten-X answered Madison’s lawsuit and indicated no opposition to Madison’s request to interplead the funds in dispute into the Court’s registry. Accordingly, Madison deposited $195,850 into the Court’s registry on June 10, 2021, where it remains. 25. The parties have since submitted an agreed scheduling order for entry, agreed to re-align the parties to its current style, and served initial disclosures. Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 8Plaintiffs then served tailored discovery on Ten-X on June 26, 2021. Six days before its deadline to respond to Plaintiffs’ discovery, for the first time, Ten-X raised the forum-selection clause by filing its Motion. Ten-X subsequently moved for protection from answering Plaintiffs’ discovery until the Motion was adjudicated. And Plaintiffs filed a motion to compel those discovery responses, which is pending before the Court. LEGAL STANDARD 26. Sent: Monday, November 16, 2020 9:48 AM To: Howard Fuerst Subject: RE: Madison Contact Info EXTERNAL EMAIL Howard — Do you have the marketing agreement drafted? As discussed, we need to get everything lined up this morning... Thanks, Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 19MH Michael Halberstam | email mh@jstark.com telephone 732.363.0505 x11 | direct 732.375.0505 | fax 732.363.9104 From: Howard Fuerst [mailto:hfuerst@ten-x.com] Sent: Friday, November 13, 2020 2:13 PM To: Michael Halberstam Subject: RE: Madison Contact Info Thank you Howard Fuerst, CCIM Senior Director Mobile: 469-688-0242 hfuerst@ten-x.com A CoStar Group Company From: Michael Halberstam Sent: Friday, November 13, 2020 1:05 PM To: Howard Fuerst Subject: RE: Madison Contact Info EXTERNAL EMAIL Manager MH Michael Halberstam | email mh@ijstark.com telephone 732.363.0505 x11 | direct 732.375.0505 | fax 732.363.9104 From: Howard Fuerst [mailto:hfuerst@ten-x.com] Sent: Friday, November 13, 2020 1:32 PM To: Michael Halberstam Subject: RE: Madison Contact Info What is your title in the LLC? Thank you Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 20Howard Fuerst, CCIM Senior Director Mobile: 469-688-0242 hfuerst@ten-x.com 2] A CoStar Group Company From: Michael Halberstam Sent: Friday, November 13, 2020 11:15 AM To: Howard Fuerst Subject: Madison Contact Info EXTERNAL EMAIL Madison Title Info... Michael Halberstam | email mh@jstark.com telephone 732.363.0505 x11 | direct 732.375.0505 | fax 732.363.9104 Samuel Herskovits Executive Vice President MADISON TITLE AGENCY, LLC a Madison Commercial Real Estate company (214) 461-4817 - Direct —a— Virus-free. www.avg.com Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 21EXHIBIT 2ITEM NO. 1000014089 PURCHASE AND SALE AGREEMENT WITH JOINT CLOSING INSTRUCTIONS Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase the Property from Seller, in accordance with the terms of this Purchase and Sale Agreement with Joint Closing Instructions (“Agreement”). This Agreement is effective as of the date Seller signs this Agreement (“Effective Date”). 1 KEY TERMS. (A) Seller: Kaz Meyers Properties, LLC, MHNC Meyers, LLC, SMHNC Meyers, LLC, YKHKNC Meyers, LLC and YTNC Meyers, LLC phone number: 732-363-0505 email address: mh@jstark.com mailing address: 535 West County Line Road, Suite 16, Lakewood, NJ 08701 (B) Buyer: HAMILTON COMMERCIAL LLC, a Texas limited liability company phone number: 972-877-8953 email address: hamilton@hamiltoncommercialtx.com mailing address: 404 E Palace Pkwy Grand Prairie, TX 75050 (C) Purchase Price: See ee (which equals Buyer's offer price of $8.500,000.00 plus a Ten-X Transaction Fee of $1 .00 ). (D) Earnest Money Deposit: $892,500.00 (if blank, then 10% of the Purchase Price, but no less than $50,000 or more than $1,000,000). (E) Property: Address: 9441-9461 Lyndon B. Johnson Freeway, Dallas, TX 75243 as legally described on Exhibit A, including all permanent improvements thereon (but excluding any personal property unless specifically identified by addendum or amendment to this Agreement). (F) Closing Date: (if blank, then (i) 30 calendar days after the Effective Date). If the Closing Date falls on a weekend or a state or federally recognized holiday, the Closing Date shall be the next business day. (G) Closing Agent: Madison Title Agency, LLC contact: Samuel Herskovits address: 13101 Preston Road Suite 300 Dallas Texas 75240 phone number: 214-983-0897 email address: sherskovits@madisoncres.com (H) Title Insurance Company: Madison Title Agency, LLC. 5 (Il) Closing Cost Allocations: As described in the Section below entitled “Closing Cost Allocations”. 2. EARNEST MONEY DEPOSIT. Buyer must deposit the Earnest Money Deposit with Closing Agent on or before 5:00 PM in the time zone where the Property is located on the first business day after Seller countersigns this Agreement. The Earnest Money Deposit is non-refundable except as set forth in this Agreement, and may be applied towards the amounts payable by Buyer under this Agreement. The escrow (“Escrow”) for the purchase of the Property shall be opened upon Closing Agent's receipt of the Earnest Money Deposit and a fully-signed copy of this Agreement. 3. CLOSING. The transactions contemplated by this Agreement shall be consummated (“Close” or “Closing”) on or before the Closing Date. 4. CLOSING DELIVERIES. (A) Seller's Deliveries. On or before the Closing Date, Seller shall deliver the following to Closing Agent (“Seller's Deliveries”): (i) The transfer deed warranting against title defects arising by, through or under Seller (in the form customarily used for similar transactions in the state where the Property is located) (“Deed”) signed by Seller and acknowledged in accordance with the laws of the state in which the Property is located. (ii) A Non-Foreign Transferor Declaration signed by Seller, or evidence reasonably acceptable to Closing Agent and Buyer that Seller is exempt from the withholding requirements of the Foreign Investment in Real Property Tax Act (FIRPTA), Internal Revenue Code Section 1445. (iii) A counterpart of the “Settlement Statement” (defined below) signed by Seller. (iv) A counterpart of the assignment and assumption of leases and contracts substantially in the form attached as Exhibit B (“Assignment of Leases and Contracts”) signed by Seller. (v) Any and all other instruments reasonably required by Closing Agent or otherwise necessary to Close the transactions contemplated by this Agreement. PSA (Commercial) (Rev. 04/15/2020) 1 Copyright © 2020 Ten-X, Inc. All rights reserved. Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 22(B) Buyer’s Deliveries. On or before the Closing Date, Buyer shall deliver the following to Closing Agent (“Buyer's Deliveries’): (i) An amount in immediately available “good funds” equal to the Purchase Price, plus Buyer's share of closing costs, prorations and expenses as set forth in this Agreement. (ii) A counterpart of the Settlement Statement signed by Buyer. (iii) A counterpart of the Assignment of Leases and Contracts signed by Buyer. (iv) Any and all other instruments reasonably required by Closing Agent or otherwise necessary to Close the transactions contemplated by this Agreement. 5. CONDITIONS PRECEDENT TO CLOSING. (A) Seller's Conditions. Seller's obligation to Close is conditioned upon the following: (i) All representations and warranties of Buyer in this Agreement shall have been true in all material respects as of the Effective Date. (ii) Buyer shail have performed in all material respects all covenants and obligations required to be performed by Buyer on or before the Closing Date. (B) Buyer's Conditions. Buyer's obligation to Close is conditioned upon the following: (i) All representations and warranties of Seller in this Agreement shall have been true in all material respects as of the Effective Date. (ii) Seller shail have performed in all material respects all covenants and obligations required to be performed by Seller on or before the Closing Date. (iii) Title Insurance Company is irrevocably committed to issue to Buyer an owner's title insurance policy covering the Property with standard coverage customary in the state where the Property is located, showing liability in the amount of the Purchase Price and showing insurable title to the Property vested in Buyer, subject only to the following: (a) Title Insurance Company's standard exceptions; (b) liens for all current general and special real property taxes and assessments not yet due and payable; (c) liens of supplemental taxes, if any assessed; (d) any facts not shown by public records that an accurate survey and/or a personal inspection of the Property would have disclosed; (e) the mortgage/deed of trust/deed to secure debt lien in connection with any Buyer financing; (f) any laws, regulations, or ordinances regarding the use, occupancy, subdivision, or improvement of the Property, or the effect of any non-compliance with or any violation thereof; (g) rights of existing tenants and/or occupants of the Property, if any; (h) covenants, restrictions, easements, and other matters that do not materially impair the value or use of the Property; (i) non-monetary encumbrances disclosed to Buyer in writing prior to entering into this Agreement; and (j) any other matter for which Title Insurance Company agrees to provide insurance at no additional cost to Buyer. (C) Duty to Cooperate in Good Faith to Resolve. Despite anything to the contrary in this Section, if either party learns that a closing condition is unlikely to be satisfied, such party shall promptly notify the other party, and both parties shall cooperate in good faith to fairly and promptly resolve the matter, and the party whose closing condition was not satisfied shall not be relieved of its obligation to Close unless (i) the other party fails to cooperate in good faith, (ii) fair and prompt resolution is not reached after the parties have cooperated in good faith, or (iii) fair and prompt resolution of the matter on or before the Closing Date would be impracticable. (D) Waiver of Conditions. Either party may waive its respective closing conditions in its sole discretion. By proceeding to Closing, each party waives its respective closing conditions and irrevocably releases the other party from any liability arising from any facts known by such waiving party that would otherwise have resulted in a failure of a closing condition. 6. CLOSING INSTRUCTIONS TO CLOSING AGENT. At Closing, Closing Agent is irrevocably instructed to do the following: (A) Record the Deed. (B) Pay all fees, costs, deed and transfer taxes for the sale of the Property which are required to be paid by Seller and Buyer under this Agreement, the portion of any fees charged by Closing Agent which are payable by Seller and Buyer (if any) and other expenses relating to the sale of the Property which are required to be paid by Seller and Buyer. (C) Pay to Seller the balance of the Purchase Price and any other funds remaining after Closing. Seller and Buyer acknowledge that Closing Agent shall have no liability in connection with its activity as Closing Agent except to the extent of Closing Agent's gross negligence, willful misconduct, or willful disregard of the terms of this Agreement. PSA (Commercial) (Rev. 04/15/2020) 2 Copyright © 2020 Ten-X. Inc. Alt rights reserved. Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 23(F) Counterparts, Electronic Signatures, and Complete Agreement. This Agreement and any addenda or other document necessary for Closing of the transactions contemplated by this Agreement may be signed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Facsimile and electronic signatures shall have the same legal effect as original signatures. This Agreement and any addenda or other document necessary for Closing of the transactions contemplated by this Agreement may be accepted, signed or agreed to through the use of an electronic signature in accordance with the Electronic Signatures in Global and National Commerce Act (E-Sign Act), Title 15, United States Code, Sections 7001 et seq., the Uniform Electronic Transaction Act (UETA) and any applicable state law. This Agreement constitutes the entire agreement of Buyer and Seller with respect to the subject matter of this Agreement and supersedes any other instruments purporting to be an agreement of Buyer and Seller relating to that subject matter. No modification of this Agreement will be effective unless it is in writing and signed by both parties. (G) Severability. If any portion of this Agreement is judicially determined to be invalid or unenforceable, that portion shal! be deemed severable from this Agreement and the remainder of this Agreement shall remain in full force and effect and be construed to fulfill the intention of the parties. (H) Time is of the Essence. Time is of the essence for the performance of each and every covenant under this Agreement and the satisfaction of each and every condition under this Agreement. (l) Goveming Law and Venue. This Agreement shall be interpreted, construed, applied and enforced in accordance with the laws of the state in which the Property is located. The state and federal courts located in the county in which the Property is located shall be proper forums for any legal controversy between the parties arising in connection with this Agreement, which courts shall be the exclusive forums for all such suits, actions or proceedings. (J) Attorneys’ Fees. In any action, proceeding or arbitration arising out of this Agreement, the prevailing party (defined as the party who prevails as to a substantial part of the litigation or claim) shall be entitled to reasonable attorneys’ fees and costs. (K) Further Assurances. The parties agree to execute such other documents, and to take such other actions as may reasonably be necessary, to further the purposes of this Agreement. Notices. All notices and other communications contemplated under this Agreement shall be in writing and shall be deemed given and received upon receipt if: (i) delivered personally; or (ii) mailed by registered or certified mail return receipt requested, postage prepaid; (iii) sent by a nationally recognized overnight courier; and/or (iv) sent by email. Notice to Buyer and Seller shall be given as set forth on the first page of this Agreement or to such other address or addresses as may from time to time be designated by either party by written notice to the other. (M) Prohibited Persons and Transactions. Each party represents and warrants to the other that neither it, nor any of its affiliates, nor any of their members, directors or other equity owners (excluding holders of publicly traded shares), and none of their principal officers and employees: (i) is listed as a “specifically designated national and blocked person" on the most current list published by the U.S. Treasury Department Office of Foreign Asset Controi (“OFAC”); (ii) is a person or entity with whom U.S. persons or entities are restricted from doing business under OFAC regulations or any other statute or executive order (including the September 24, 2001 “Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism”); and (iii) is engaged in prohibited dealings or transactions with any such persons or entities. (CG (N) Brokers. In connection with the transactions contemplated by this Agreement, Seller is represented by Listing Broker identified on the signature page hereto, Buyer is represented by Buyer's Broker identified on the signature page hereto, Ten-X is acting as the marketing firm and marketplace provider, and Seller and Buyer each represents and warrants that it has not dealt with any other broker, finder or other agent who would be entitled to any fee from Seller or Buyer. Seller and Buyer shall each indemnify and hold harmless the other from and against any claims, losses, costs, damages, liabilities or expenses, including reasonable attorneys’ fees, arising in connection with any breach by the indemnifying party of the representations and warranties in this paragraph. This paragraph shall survive Closing indefinitely. Form of Agreement. Buyer and Seller acknowledge that no representation, recommendation or warranty is made by Ten-X or any broker relating to the legal sufficiency or tax consequences of this Agreement or any attachments hereto, and Buyer and Seller each represent and warrant that it has consulted with, had the opportunity to consult with or waived the right to consult with counsel in connection with this Agreement. IC) PSA (Commercial) (Rev. 04/15/2020) 6 Copyright © 2020 Ten-X, Inc. All rights reserved. Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 24SELLER: Kaz Meyers Properties, LLC, a Delaware limited liability company BUYER: HAMILTON COMMERCIAL LLC, a Texas limited liability company Printed Name: _ Michael Haiberstam Title (if applicable): me: MOL HABEAS LAYACEL if applicable): WA Dated: _2-3-21 LISTING BROKER (if any): Broker Printed Name: Cody Payne Brokerage Printed Name: _Colliers - Dallas - Fort Worth Brokerage License Number: 551177 State: _™ (and its permitted assigns under Section 13(B)) Printed Name: _Hamilton Peck Printed Name: Title (if applicable): Dated: Z- 3- 2} BUYER'S BROKER (if any): Broker Printed Name: None Brokerage Printed Name: None Brokerage License Number: State: (Brokers must be licensed in the state where the Property is located.) DISCLOSURE AND CONFIRMATION OF AGENCY RELATIONSHIP Buyer and Seller acknowledge that, unless otherwise set forth in this Agreement, Ten-X is not acting as Seller's real estate agent or Buyer's real estate agent, and Ten-x is acting as a marketing firm and marketplace proviger only. ‘SELLER'S INmIALS_MMH_ CLOSING AGENT ACKNOWLEDGEMENT BUYER'S INITIALS Closing Agent acknowledges receipt of a copy of this Agreement and the Earnest Money Deposit set forth in Section 1(D) and agrees to act as Closing Agent in accordance with this Agreement. Madison Title Agency, LLC. By: Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 25TEXAS AGENCY DISCLOSURE By signing the agreement to which this page is attached, the parties acknowledge receipt of the agency disclosure located at https: .ten- ‘compa ontent/uploads/2020/01/Texas.pdf (Remainder of Page intentionally Blank) ‘Texas Agency Disclosure (Rev. 01/04/2020) Copyright © 2020 Ten-x, Inc. All rights reserved. Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 26EXHIBIT 3Texas Agency Disclosure The licensee, Ten-X RE Inc., dba Ten-X (License No. 9004662) is acting only as agent of the seller only. Ten-X does not act as agent for buyer/tenant in any capacity. Licensed Broker: Ten-X RE Inc., dba Ten-X (License No. 9004662) legal-notice@ten-x.com 888-952-6393 Designated Broker of Firm: Joshua Jacob (License No. 668911) 888-952-6393 Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 2711-2-2015 ON. Information About Brokerage Services ay T ic Texas law requires all real estate license holders to give the following information about —— brokerage services to prospective buyers, tenants, sellers and landlords. ceraeioane TYPES OF REAL ESTATE LICENSE HOLDERS: e ABROKER is responsible for all brokerage activities, including acts performed by sales agents sponsored by the broker. e@ ASALES AGENT must be sponsored by a broker and works with clients on behalf of the broker. A BROKER’S MINIMUM DUTIES REQUIRED BY LAW (A client is the person or party that the broker represents): e Put the interests of the client above all others, including the broker’s own interests; e Inform the client of any material information about the property or transaction received by the broker; e Answer the client’s questions and present any offer to or counter-offer from the client; and © Treat all parties to a real estate transaction honestly and fairly. A LICENSE HOLDER CAN REPRESENT A PARTY IN A REAL ESTATE TRANSACTION: AS AGENT FOR OWNER (SELLER/LANDLORD): The broker becomes the property owner's agent through an agreement with the owner, usually in a written listing to sell or property management agreement. An owner's agent must perform the broker’s minimum duties above and must inform the owner of any material information about the property or transaction known by the agent, including information disclosed to the agent or subagent by the buyer or buyer’s agent. AS AGENT FOR BUYER/TENANT: The broker becomes the buyer/tenant's agent by agreeing to represent the buyer, usually through a written representation agreement. A buyer's agent must perform the broker’s minimum duties above and must inform the buyer of any material information about the property or transaction known by the agent, including information disclosed to the agent by the seller or seller's agent. AS AGENT FOR BOTH - INTERMEDIARY: To act as an intermediary between the parties the broker must first obtain the written agreement of each party to the transaction. The written agreement must state who will pay the broker and, in conspicuous bold or underlined print, set forth the broker's obligations as an intermediary. A broker who acts as an intermediary: e Must treat all parties to the transaction impartially and fairly; © May, with the parties' written consent, appoint a different license holder associated with the broker to each party (owner and buyer) to communicate with, provide opinions and advice to, and carry out the instructions of each party to the transaction. e Must not, unless specifically authorized in writing to do so by the party, disclose: © that the owner will accept a price less than the written asking price; © that the buyer/tenant will pay a price greater than the price submitted in a written offer; and © any confidential information or any other information that a party specifically instructs the broker in writing not to disclose, unless required to do so by law. AS SUBAGENT: A license holder acts as a subagent when aiding a buyer in a transaction without an agreement to represent the buyer. A subagent can assist the buyer but does not represent the buyer and must place the interests of the owner first. TO AVOID DISPUTES, ALL AGREEMENTS BETWEEN YOU AND A BROKER SHOULD BE IN WRITING AND CLEARLY ESTABLISH: e The broker’s duties and responsibilities to you, and your obligations under the representation agreement. e Whowill pay the broker for services provided to you, when payment will be made and how the payment will be calculated. LICENSE HOLDER CONTACT INFORMATION: This notice is being provided for information purposes. It does not create an obligation for you to use the broker’s services. Please acknowledge receipt of this notice below and retain a copy for your records. TenX RE, Inc., dba Ten-X 9004662 legal-notice@ten-x.com —_ (888) 952-6393 Licensed Broker /Broker Firm Name or License No. Email Phone Primary Assumed Business Name Joshua Jacob 668911 jjacob@ten-x.com (888) 952-6393 Designated Broker of Firm License No. Email Phone Licensed Supervisor of Sales Agent/ License No. Email Phone Associate Sales Agent/Associate’s Name. License No. Email Phone Buyer/Tenant/Seller/Landlord Initials Date Regulated by the Texas Real Estate Commission Information available at www.trec.texas.gov Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 28 IABS 1-0EXHIBIT 4From: ‘Smith, Debra To: ras, Ire Cec: Freeman, Larry Subject: FW: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX Date: Friday, March 12, 2021 12:31:27 PM Attachments: image003.ipq_ image001 i Ten-X Marketing Agreement Amendment (Kaz Meyers Properties LLC).pdf Debra Smith Associate General Counsel Madison Commercial Real Estate Services (732) 333-2489 - Direct (917) 362-3295 - Cell From: Herskovits, Samuel Sent: Friday, March 12, 2021 1:29 PM To: Smith, Debra Subject: FW: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX Samuel Herskovits Executive Vice President Madison Commercial Real Estate Services (214) 461-4817 - Direct From: Sandra Mendoza > Sent: Friday, March 5, 2021 2:03 PM To: Mastriano, Debra >; mh@jstark.com; hn@jstark.com; gk@jstark.com Ce: Herskovits, Samuel > Subject: RE: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX com>>; Samantha Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 29Hi Debra, Ten-X does not accept the escrow agreement and does not approve of the transaction closing with any funds due to Ten-X being held back in escrow. We have discussed this matter with our legal team and at their direction have attached for your reference, the Ten-X Marketing Agreement between Kaz Meyers Properties, LLC, et. al. ("Seller") and Ten-X (the "Marketing agreement") governing our engagement for the sale of the property located at 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX. Please note, per Section 11 of the Standard Terms to the Marketing Agreement, it has been agreed to by the parties that the Marketing Agreement shall be an irrevocable instruction to pay at closing, the compensation due Ter Fut ste em tie Ming Aen TyXiso te pi Tans Fact Soft Should the Seller elect to continue to dispute Ten-X's verbal concession of a reduced Transaction Fee, then we respectfully ask Madison Title as the Closing Agent to abide by the terms of the Marketing Agreement, and be prepared to disburse the Transaction Fee of 5% of the buyer's offer price, less a 30% revenue share to the Seller to Ten-X at closing. Tam including our Legal Operations and Compliance Manager, Samantha Corbat, on this chain should you have any questions. Regards, Sandra Mendoza Senior Contracts & Closing Associate © 949-465-8552 15295 Alton Parkway, Irvine, CA 92618 A CoStar Group Company Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 30WARNING! WIRE FRAUD ADVISORY: Wire fraud and email hacking/phishing attacks are on the increase! If you have an open transaction with us and you receive an email containing Wire Transfer Instructions, DO NOT RESPOND TO THE EMAIL! Instead, call your escrow officer/closer immediately, using previously known contact information and NOT information provided in the email, to verify the information prior to sending funds. From: Mastriano, Debra > Sent: Friday, March 05, 2021 10:42 AM To: Sandra Mendoza >; mh@jstark.com; hn@jstark.com; gk @jstark.com Ce: Herskovits, Samuel > Subject: RE: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX This message was sent securely using Zix(r) EXTERNAL EMAIL Attached is a form of our escrow agreement for you to review in the meantime. Thanks, Debbie Debra Mastriano Title Operations Manager Madison Title Agency, LLC A Madison Commercial Real Estate company (214) 461-4819 - Direct WARNING - FRAUDULENT WIRING INSTRUCTIONS Email hacking is on the rise to fraudulently misdirect funds. Before wiring us any money, always call our office to verbally verify our wiring instructions. Please use independent sources such as the internet, to verify our phone number. We will not be responsible for any wires sent to incorrect bank accounts. From: Mastriano, Debra Sent: Friday, March 5, 2021 1:14 PM Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.’s Motion to Dismiss 31To: 'Sandra Mendoza’ >; mh@jstark.com< :mh@i >; hn@jstark. ee gk@jstark.com> Subject: RE: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX We were advised that this is being paid outside of closing. Additionally, attached please find a revised invoice reflecting the Ten-X fee being held in escrow. We working on an escrow agreement and will circulate that shortly. Thanks, Debbie Debra Mastriano Title Operations Manager Madison Title Agency, LLC A Madison Commercial Real Estate company (214) 461-4819 - Direct WARNING - FRAUDULENT WIRING INSTRUCTIONS Email hacking is on the rise to fraudulently misdirect funds. Before wiring us any money, always call our office to verbally verify our wiring instructions. Please use independent sources such as the internet, to verify our phone number. We will not be responsible for any wires sent to incorrect bank accounts. From: Sandra Mendoza > Sent: Friday, March 5, 2021 1:10 PM To: Mastriano, Debra >; mh@jstark.com; hn@jstark.com; gk@jstark.com Ce: Herskovits, Samuel > Sent: Friday, March 05, 2021 9:55 AM. To: mh@jstark.com; hn@jstark.com; gk @jstark.com Ce: Herskovits, Samuel > Subject: RE: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX s.com>>; Sandra This message was sent securely using Zix(r) EXTERNAL EMAIL Attached please find the updated draft settlement statement along with our wire instructions. Thanks, Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 33Debbie Debra Mastriano Title Operations Manager Madison Title Agency, LLC A Madison Commercial Real Estate company (214) 461-4819 - Direct WARNING - FRAUDULENT WIRING INSTRUCTIONS Email hacking is on the rise to fraudulently misdirect funds. Before wiring us any money, always call our office to verbally verify our wiring instructions. Please use independent sources such as the internet, to verify our phone number. We will not be responsible for any wires sent to incorrect bank accounts. From: Mastriano, Debra Sent: Thursday, March 4, 2021 1:05 PM To: 'mh@jstark.com' >; 'hn@jstark.com! >; 'gk@jstark.com' > Ce: Herskovits, Samuel >; ‘Sandra Mendoza’ > Subject: MTATX-158347 / Northcreek Place / 9441 - 9461 Lyndon B Johnson Fwy, Dallas, TX All, Attached please find the draft settlement statement for your review. Please forward any additional fees or invoices to be included. Thanks, Debbie Debra Mastriano Title Operations Manager Madison Title Agency, LLC 13101 Preston Road Suite 300, Dallas TX 75240 (214) 461-4819 - Direct (214) 932-0008 - Fax DMastriano@madisontitle.com 866.500.6234 | https://protect-us.mimecast.com/s/2_s9C82WKZuWnj9TV-3Uk? Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 34a https: = . . domain=urldefense.com> FOLLOW US The Trusted Advisor Blog * Monday Mornings with Madison WE ARE MADISON Madison Title * National Title Insurance Madison 1031 * Like-Kind 1031 Exchanges Madison SPECS * Cost Segregation Studies LeaseProbe * Lease Abstracting & CAM Real Diligence Financial Due Diligence WARNING - FRAUDULENT WIRING INSTRUCTIONS Email hacking is on the rise to fraudulently misdirect funds. Before wiring us any money, always call our office to verbally verify our wiring instructions. Please use independent sources such as the internet, to verify our phone number. We will not be responsible for any wires sent to incorrect bank accounts. This message was secured by Zix(r). This message was secured by Zix(r). Plaintiffs’ Response in Opposition to Defendant Ten-X, Inc.'s Motion to Dismiss 35Tonya Stephenson on behalf of Kartik Singapura Bar No. 24083863 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. tstephenson@bellnunnally.com Envelope ID: 57517235 Status as of 9/23/2021 2:42 PM CST Associated Case Party: KAZ MEYERS PROPERTIES, LLC Name BarNumber | Email TimestampSubmitted | Status Eric Wood eric@brownfoxlaw.com | 9/22/2021 5:07:05 PM | SENT Associated Case Party: TEN-X, INC. Name BarNumber | Email TimestampSubmitted | Status Gary S.Kessler gsk@kesslercollins.com 9/22/2021 5:07:05 PM _| SENT Stephen JHuschka shuschka@kesslercollins.com | 9/22/2021 5:07:05 PM | SENT Samuel Kessler skessler@kesslercollins.com | 9/22/2021 5:07:05 PM | SENT Associated Case Party: MADISON TITLE AGENCY, LLC Name BarNumber | Email TimestampSubmitted | Status Parker Burns pburns@bellnunnally.com 9/22/2021 5:07:05 PM | SENT Kartik R.Singapura ksingapura@bellnunnally.com | 9/22/2021 5:07:05 PM | SENT Case Contacts Name BarNumber | Email TimestampSubmitted | Status Debbie Archer darcher@bellnunnally.com 9/22/2021 5:07:05 PM | SENT Tonya C.Stephenson tstephenson@bellnunnally.com | 9/22/2021 5:07:05 PM | SENT