CONTRACT OF SALE
between
VERIQUEST COLONY PLAZA ONE 1997
SELLER
AND
UNITED INVESTORS REALTY TRUST
BUYER
pertaining to the sale and purchase of
Colony Plaza Shopping Center
Missouri City, Texas
CONTRACT OF SALE
This Contract of Sale (the "Contract") is made and entered into by and
between VERIQUEST-COLONY PLAZA ONE 1997, a Texas joint venture having its
principal office at 0000 Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("Seller"),
and UNITED INVESTORS REALTY TRUST, a Texas real estate investment trust having
its principal office at 0000 Xxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000
("Buyer").
ARTICLE I
DEFINED TERMS
1.1 Definitions. As used herein, the following terms shall have the
meanings set forth below:
"Business Day" means any day other than a Saturday or Sunday on which
Federal Savings Banks in Houston, Texas are open for business.
"Closing" means consummation of the purchase of the Project by Buyer from
Seller in accordance with the terms and conditions of Article VIII.
"Closing Date" means the date specified in Section 8.1 on which the
closing will be held.
"Contract Date" means the later of the two dates set forth immediately
above each of the signatures of the parties hereto, on the signature page
hereof.
"Delivery Date" means the date on which the last to be received of the (1)
Title Commitment in accordance with paragraph 4.1 herein; (2) the Survey in
accordance with paragraph 4.2 herein; and (3) the Ownership Documents required
by paragraph 5.2(a) herein, are received by Buyer.
"Xxxxxxx Money Deposit" means the moneys deposited by Buyer in escrow with
the Title Company at the time and in the amount specified in Section 3.2.
,
"Improvements" means the neighborhood shopping center (the "Shopping
Center") known as Colony Plaza Shopping Center, containing approximately 26,513
square feet of improved retail space, located in Missouri City, Texas, the
fixtures and other improvements now or hereafter situated upon the tract of land
described on Exhibit "A".
"Inspection Period" means the period commencing on the Delivery Date and
ending 15 days thereafter.
"Land" means that certain tract of land located in Fort Bend County,
Texas, and being more fully described on Exhibit "A", together with all rights
appurtenant thereto.
"Leases" means all currently effective leases for space in the
Improvements, including all amendments and modifications thereto and any and all
other agreements with Tenants.
"Permitted Exceptions" means those exceptions or conditions that affect or
may affect title to the Project that are approved or deemed to be approved by
Buyer in accordance with Section 4.3 or Section 4.4.
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"Personal Property" means (a) all tangible personal property owned by
Seller and located on, attached to, or used in connection with, the operation of
the Real Property (but not including any tangible personal property owned or
leased by Tenants), (b) Seller's interest in all personal property leases,
licenses, permits, plans, studies, and utility arrangements with respect to the
Real Property, (c) Seller's interest in all service, maintenance, management or
other contracts relating to the ownership or operation of the Real Property, and
(d) Seller's interest in all warranties and guaranties, if any, relating to the
Real Property.
"Project" means, collectively, the Real Property, the Leases, and the
Personal Property for the Shopping Center.
"Purchase Price" means the total consideration to be paid by Buyer to
Seller for the purchase of the Project.
"Real Property" means the Land and the Improvements for the Shopping
Center.
"Rent Roll" means a schedule for the Project identifying the Tenants at
the Project and providing certain information with respect to the Leases in
accordance with Section 5.2 (a)(iii).
"Tenants" means those persons holding rights as tenants of the Shopping
Center.
"Title Company" means Safeco Land Title Company, having its principal
office at 0000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxxx Xxxxxxxx, Executive Vice President and Escrow Officer.
"Title Underwriter" means Lawyer's Title Insurance Corporation.
"Trade Name" means the name "Colony Plaza Shopping Center", as well as any
other name utilized in conjunction with the operation of the Project.
1.2 Other Defined Terms. Certain other defined terms shall have the
respective meanings assigned to them elsewhere in this Contract.
ARTICLE II
AGREEMENT OF PURCHASE AND SALE
On the terms and conditions stated in this Contract, Seller hereby agrees
to sell and convey to Buyer, and Buyer hereby agrees to purchase and acquire
from Seller, the Project.
ARTICLE III
PURCHASE PRICE
3.1 Purchase Price. The Purchase Price (herein so called) to be paid by
Buyer to Seller equals Four Million Two Hundred Thousand and No/100 Dollars
($4,200,000.00). The Purchase Price, net of all prorations set forth in this
Contract, shall be payable to Seller through the Title Company at the Closing as
follows:
(a) The agreement of Buyer to assume (except for the matters described in
Section 5.3 hereof), the then current balance of that certain first lien
promissory note (the "Existing Note") as of
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the Closing Date, which is described below, which note is secured by the
following described existing first lien created by that certain deed of trust
(the "Existing Lien") of even date therewith, to-wit:
Promissory Note in the original principal sum of $3,200,000.00, executed
by VeriQuest- Colony Plaza One 1997, a Texas joint venture, made payable
to the order of Xxxxxxxx Xxxxxxxx, X.X. (the "Lender"), dated as of
November 26, 1997, secured by a deed of trust to Xxxxxxx Xxxxxxxx,
Trustee, also dated as of November 26, 1997, against the Project, such
deed of trust having been recorded in the Deed of Trust Records of Fort
Bend County, Texas.
Seller represents that the unpaid principal balance of the Existing Note equals
approximately $3,200,000.00 as of the Closing Date.
(b) The difference between the Purchase Price and the aggregate unpaid
principal balance of the Existing Note as of the Closing Date shall be paid in
cash to Seller at the Closing, subject to prorations and other credits provided
for in this Contract. The cash portion of the Purchase Price, net of all
prorations set forth in this Contract, shall be payable to Seller through the
Title Company at the Closing in cash or in good federal funds.
3.2 Xxxxxxx Money Deposit. Within three (3) business days after the
Contract Date, Buyer shall deliver the sum of One Hundred Thousand and No/100
Dollars ($100,000.00) as an xxxxxxx money deposit (the "Xxxxxxx Money Deposit")
in cash to the Title Company. The Xxxxxxx Money Deposit shall thereafter be held
by the Title Company in escrow to be applied or disposed of by it as is provided
in this Contract. The Xxxxxxx Money Deposit shall be invested in short-term
commercial paper having a maturity of thirty (30) days or less and rated P-1 by
Xxxxx'x Investor Service, Inc. or A-1 by Standard & Poor's Corp., or in some
other interest-bearing investment acceptable to the Buyer. All interest earned
thereon shall become part of the Xxxxxxx Money Deposit. If the purchase and sale
hereunder are consummated in accordance with the terms and conditions hereof,
the Xxxxxxx Money Deposit shall be applied to the Purchase Price at the Closing.
In all other events, the Xxxxxxx Money Deposit shall be disposed of by the Title
Company as provided elsewhere in this Contract.
ARTICLE IV
TITLE AND SURVEY AND INSPECTION
4.1 Title Commitment. Within three (3) days after the Contract Date,
Seller agrees to order, at the sole cost and expense of Buyer, a current
commitment for Title Insurance for the Project (the "Title Commitment")
countersigned by the Title Company, as agent for the Title Underwriter, which
Title Commitment shall be furnished to Buyer. The Title Commitment shall contain
the express commitment of the Title Company to issue a Texas Form T-1 Owner's
Policy of Title Insurance to the extent permitted by Texas law for the Project,
which shall otherwise be in form and content consistent with Section 4.5 below.
The Title Commitment shall be accompanied by legible copies of all instruments
that create or evidence title exceptions affecting the Real Property.
4.2 Survey. Within three (3) days after the Contract Date, Seller agrees
to furnish to Buyer a copy of the "as-built" survey for the Project in its
possession prepared by Xxxx Xxxxx of Xxxxx Surveyors (the "Existing Survey").
Buyer has the right to obtain, at Buyer's sole cost and expense, an update of
the Existing Survey to a date subsequent to the Contract Date as certified to
Buyer and the Title Company (the "Survey"). The Survey certification shall be in
such form as Buyer
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may require. The metes and bounds description of the Land contained in the
Survey, if different from that attached as Exhibit "A" hereto, shall be used for
purposes of describing the Real Property in the Special Warranty Deed conveying
title to the Real Property from Seller to Buyer.
4.3 Review of Title Commitment and Survey. Buyer shall have a period of
fifteen (15) days (the "Title Review Period") after delivery to Buyer of both
the Title Commitment and the Survey in accordance with paragraphs 4.1 and 4.2
above in which to review the Title Commitment and the Survey and give written
notice to Seller specifying Buyer's objections (the "Objections"), if any, to
the Title Commitment and the Survey. If Buyer shall fail to give written notice
of Objections to Seller prior to the expiration of the Title Review Period, then
all exceptions to title shown on Schedules B and C of the Title Commitment shall
be deemed to be Permitted Exceptions.
4.4 Seller's Obligation to Cure; Buyer's Right to Terminate. If Buyer
shall have timely notified Seller in writing of Objections to the Title
Commitments or the Survey, then Seller may, but shall not be obligated to, at
any time prior to the expiration of the Inspection Period (the "Cure Period"),
give written notice ("Seller's Title Cure Notice") to Buyer of Seller's
intention to satisfy the Objections prior to the Closing Date. If Seller fails
to timely give Buyer the Seller's Title Cure Notice, then Buyer shall have the
option, prior to Closing, to either (i) waive the unsatisfied Objections, in
which event those unsatisfied Objections shall become Permitted Exceptions, or
(ii) terminate this Contract, in which event the Xxxxxxx Money Deposit shall be
returned to Buyer and Seller and Buyer shall have no further obligations, one to
the other, with respect to the subject matter of this Contract.
4.5 Title Policy. At the Closing, Seller shall cause, provided that Buyer
pays the cost thereof, a standard T-1 form Owner's Policy of Title Insurance
(the "Owner's Title Policy") to be furnished to Buyer by the Title Company. The
Owner's Title Policy shall be issued by the Title Underwriter and shall insure
that Buyer has good and indefeasible fee simple title to the Project, subject
only to the Permitted Exceptions. The Owner's Title Policy shall contain no
exceptions other than (i) rights of tenants in possession, as tenants only, (ii)
visible and apparent easements, as shown on the Survey, and (iii) Permitted
Exceptions. At Buyer's option and cost, the "survey exception" in the Owner's
Title Policy shall be modified to read "shortages in area only". The tax
exception shall be limited to taxes for the year of Closing and subsequent years
not yet due and payable and subsequent assessments for prior years due to change
in land usage or ownership.
4.6 Inspection.
(a) Buyer shall have the right, during the Inspection Period, to make such
examinations, studies, tenant credit checks, appraisals, inspections,
engineering, environmental and insurance underwriting tests and investigations
(the "Inspections") of the Project as Buyer may deem advisable. Such Inspections
shall include, without limitation, review of current operating statements,
operating statements for the year 1997 and year-to-date 1998, current rent roll,
true copies of the latest real estate tax bills, true and complete copies of all
service contracts affecting the Project, and any and all other contracts and
agreements relating to the Project. Seller shall cooperate with Buyer in making
available the Project for Buyer's Inspections, including any and all books and
records relating thereto. Buyer may also reinspect the Project prior to Closing
to verify that the Project has remained in the same physical shape, ordinary
wear and tear excepted, as the Project was during the Inspection Period.
(b) If Buyer elects for this Contract to remain in full force and effect
beyond the Inspection Period, then Buyer, at its sole option, shall deliver
written notice (the "Notice to Continue") thereof
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to Seller and Title Company, on or before the expiration of the Inspection
Period. Once the Notice to Continue has been given, the Xxxxxxx Money Deposit
shall become at risk. If, however, Buyer does not timely deliver the Notice to
Continue prior to the expiration of the Inspection Period, or if Buyer notifies
Seller and Title Company that Buyer has no further interest in purchasing the
Project, then, in either event, the Xxxxxxx Money Deposit shall be returned to
Buyer, and thereafter Seller and Buyer shall have no further obligations, one to
the other, with respect to the subject matter of this Contract. Failure to
deliver the notice to the Seller herein prior to the expiration of the
inspection period shall be deemed to be Buyer's election to terminate the
contract.
(c) Buyer shall indemnify and hold harmless the Seller from and against
all loss, liability, damage, injury and claims resulting from Buyer's testing or
inspection of the Project; provided, however, this indemnity shall not include,
and shall specifically exclude, any loss, liability, damage etc. arising out of
or resulting from Seller's negligence, gross negligence or willful misconduct
and the discovery of any condition that may require remediation under applicable
environmental laws. This indemnity shall survive the Closing or termination of
this Contract for a period of six months, after which this indemnity shall
automatically terminate.
4.7 Additional Delivery Requirements. Buyer has advised Seller that it is
a "reporting" company under the Securities Exchange Act of 1934, and by reason
thereof, Buyer is required to conduct an audit of the Project in conformity with
the rules and regulations promulgated by the Securities and Exchange Commission.
To this end, Seller agrees to cooperate with Buyer to grant access to Buyer's
auditors and authorized representatives in order to permit them to conduct an
audit of the books and records of the Project and to furnish to Buyer and its
authorized agents financial statements, rent rolls and federal income tax
returns associated with the Project for the last three fiscal years, or since
its completion date, if less than three years. Upon completion of the audit,
Seller also agrees to sign a representation letter to Buyer that, to Seller's
best information, all information furnished to Buyer in this regard is true and
complete in all material respects.
ARTICLE V
REPRESENTATIONS, WARRANTIES, COVENANTS,
AND AGREEMENTS OF SELLER
5.1 Representations and Warranties of Seller. Seller's representations and
warranties set forth in this Contract are true and correct in all material
respects as of the Contract Date and will be true and correct in all material
respects on the Closing Date. Such representations and warranties shall survive
for a period of six months after the Closing Date and shall not be merged
therein. Seller hereby represents and warrants to Buyer as follows:
(a) Seller has the full right, power, and authority to sell and convey to
Buyer the Project as provided in this Contract and to carry out Seller's
obligations hereunder, and all requisite action necessary to authorize Seller to
enter into this Contract and to carry out Seller's obligations hereunder has
been, or on the Closing Date will have been, taken;
(b) There are no adverse or other parties in possession of the Project, or
of any part thereof as lessees, tenants at sufferance, or trespassers, except
Tenants referenced in the Rent Roll to be delivered pursuant to Section 5.2(a);
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(c) Seller has not received written notice from any governmental or
quasi-governmental agency or insurance underwriter requiring or suggesting that
Seller should correct any condition with respect to the Project, which condition
remains uncorrected;
(d) Seller has not received written notice of any pending condemnation
action with respect to all or any portion of the Project and there are no
existing condemnation or other legal proceedings affecting the existing use of
the Project by any governmental authority having jurisdiction over or affecting
all or any part of the Project;
(e) There is no litigation pending or threatened, affecting the Project
other than as incurred in the normal course of business and with respect to
which Seller's insurance underwriter(s) is responsible or with respect to which
Seller shall indemnify and hold harmless Buyer from and after the Closing Date;
(f) There are no unpaid assessments (governmental or otherwise) for
sewers, water, paving, electrical power or otherwise affecting the Project
(matured or unmatured) and no such assessments are threatened;
(g) This Contract constitutes a valid and binding obligation of the
Seller, enforceable in accordance with its terms;
(h) The Seller has good and indefeasible title to the Project, free and
clear of any claim, lien, encumbrance, easement, restriction or other charge,
other than the Permitted Exceptions;
(i) The current use of the Project complies with all currently applicable
zoning ordinances and governmental requirements;
(j) Except as expressly referred to herein, there are no licenses or
security interest against the Land, the Improvements, or the Personal Property
or against any other portion of the Project, nor are there any liens or actions
pending which would result in the creation of any lien against the Land, the
Improvements or against any other portion of the Project, including, but not
limited to water, sewage, street paving, electrical or power improvements, which
give rise to any lien completed or in progress. At the Closing, there will be no
unpaid bills or claims in connection with any repair of the Improvements or
other work performed or material purchased in connection with the Improvements;
(k) The Service Contracts, Leases and other agreements delivered to Buyer
pursuant to this Contract constitute all contracts, leases or agreements
affecting the Project (and the ownership and use thereof); the Ownership
Documents delivered pursuant to Section 5.2 herein are true and correct copies
of the originals and no other amendments or modifications exist thereto; and no
defaults, or events which with notice and/or passage of time would constitute
default, exist thereunder; and each of the Service Contracts (as that term is
defined in Section 5.2(a)(vi)) pertaining to the Project is terminable without
cause prior to the Closing Date;
(l) To Seller's best information, there are no circumstances existing that
would adversely affect the use or value of the Project as a shopping center;
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(m) No permission, approval or consent by any other person, including any
of partners, shareholders, directors or officers of any of the Seller, or
governmental authorities is required in order for Seller to consummate this
Contract, except the holder of the Existing Note;
(n) The existing water, sewer, gas and electricity lines, storm sewer and
other utility systems on the Land as of the date hereof are not impaired and are
sufficient to serve the Project for its current uses. All existing utilities
enter the Land through adjoining public streets or private land in accordance
with valid public or private easements that will inure to the benefit of Seller
and its successors and assigns. All of said utilities have been installed and
are operating, with all installation and connection charges paid in full;
(o) Based on currently applicable taxes, Seller has paid all taxes,
charges, and assessments (special or otherwise) required to be paid to any
taxing authority with respect to the Project (except for taxes and assessments
for the current year not yet due and payable); and no action or proceeding
currently exists by a governmental agency or authority for the assessment or
collection of currently applicable taxes, charges, or assessments with respect
to the Project;
(p) The executed Leases, which are to be delivered by Seller to Buyer at
Buyer's principal office in accordance with the terms of this Contract, are and
shall be true and correct copies, and no Tenants are or shall be entitled to any
rebates, allowances, rent concessions or free rent for any period subsequent to
the Closing. All obligations and items of an inducement nature to be performed
by the Seller as landlord under any of the Leases or to which Seller otherwise
agreed to perform have been fully performed and no commitments have been made to
any Tenant for repairs or improvements other than a general landlord requirement
for normal maintenance in the future. No Leases shall be further modified or
amended without the prior written consent of Buyer, which consent shall not be
unreasonably withheld. Except as reflected on the current Rent Roll to be
delivered to Buyer pursuant to the provisions of Section 5.2 below, no Tenant
has given Seller notice of its intention to vacate its leased premises prior to
the end of the primary term (or any current renewal or extended term). All of
the Leases are in full force and effect without current default by Seller or the
respective Tenants. There are no pending claims asserted by any past or present
Tenants for offsets against rent or any other claims (whether monetary or
otherwise) made against Seller, as landlord, under the Leases or otherwise.
There are no fees or commissions payable to any person or entity in regard to
the Leases or the Project, except as specifically set out in the Rent Roll;
(q) All financial and operating statements, rent rolls, contracts,
agreements and books and records delivered by Seller to Buyer relating to Seller
and its business are true and correct in all respects; and there are no
omissions of any material facts relating thereon;
(r) The Project is not in violation of any applicable laws, rules,
regulations, ordinances, contracts or agreements, including, without limitation,
any and all state, local, city or federal environmental laws, rules and
regulations, any restrictive use agreements, or reciprocal easement or other
similar agreements filed of record in Fort Bend County, Texas and applicable to
the Project;
(s) Seller has full right, title and authority to enter into this
Contract, without the joinder or consent of any other party, and that no other
party has any right, option, interest, or claim to all or any part of the
Project, whether subject to xxxxxxx money contract, option agreement, right of
first refusal, reversionary or future interests, or right of reverter; and
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(t) Seller is not a foreign person or entity pursuant to the Foreign
Investment in Real Property Tax Act or the Tax Reform Act of 1986, and Buyer is
not obligated to withhold any portion of the Purchase Price for the benefit of
the Internal Revenue Service.
5.2 Covenants and Agreements of Seller. Seller covenants and agrees with
Buyer as follows:
(a) Within five (5) business days following the Contract Date, Seller
shall deliver to Buyer the following items (the "Ownership Documents") with
respect to the Project:
(i) To the extent that Seller has in its possession, copies of
"as-built" plans and specifications for the Improvements and copies
of the results of all physical inspections, all structural,
mechanical, engineering reports, soil reports and traffic studies
that have been prepared with respect to the Real Property, and a
zoning verification letter from the authorities of Missouri City,
Texas with copies of all applicable zoning ordinances then in effect
which apply to the Project;
(ii) Current certificates of occupancy in the name of the Seller and
building permits (if available) for each building within the
Project, and, to the extent that Seller has in its possession, a
current phase I environmental report and ADA study;
(iii) Current Rent Roll for the Project, which Rent Roll shall set
forth with respect to each Tenant the following;
(A) the name and street or unit number of the Tenant;
(B) the term of the Tenant's Lease, its commencement and
expiration dates, any renewal terms or extensions and the base
rent and percentage rent, if any, payable thereunder;
(C) the amount of monthly base rent and percentage rent, if
any, payable by and portion of the Project's CAM and real
estate taxes and insurance premiums recoverable from each
Tenant and any other payments for which such Tenant is liable;
(D) amount of prepaid rent and the amount of security and
other deposits due under the Lease and held by Landlord;
(E) the amount of any ongoing Lease commission obligations, if
any, and to whom such commission is owed and copies of all
brokerage commission agreements relating to the Leases;
(F) any uncured defaults and the amounts of any unpaid rents,
percentage rents, and other payments past due thereunder;
(G) the amount of any offsets or credits against rental, if
any; and
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(H) any concessions granted to the Tenant, including, without
limitation, free rent, rental rebates or credits, lease
take-over arrangements, cash payments, and moving allowances;
(iv) Copy of the most recent or current real estate and personal
property tax bills or other documentation showing the amount of
current real property taxes and the assessed value of the Project;
(v) A schedule setting forth property and liability insurance
coverage on or affecting the Project and the current premiums
therefor together with a written summary of all claims made against
the Project's insurance policies since January 1, 1997.
(vi) Copies of all existing service, maintenance, operations, and
management and other contracts relating to the management, operation
or maintenance of the Project (the "Service Contracts"), and any
commission agreements affecting the Project;
(vii) Copies of true and correct operating income and expense
statements with respect to the Project, accurately reflecting the
operating history of the Project for calendar year 1997 and for
year-to-date 1998, together with operating budgets for calendar
years 1997 and 1998, if available, for the Project;
(viii)A detailed summary of all capital expenditures for the
calendar years 1997 and for year-to-date 1998, together with the
capital expenditure budgets for calendar years 1997 and 1998, if
available, for the Project;
(ix) All warranties and guaranties currently in force, if any,
relating to the Project or any equipment, appliances or other
personalty located in or used on the Real Property and in the
possession of Seller or its agents;
(x) True and complete copies of all Leases, including all
amendments, extensions and modifications thereof; and
(xi) Such other information and/or documentation as Buyer shall
reasonably request, and which is in Seller's possession or control.
All materials delivered by Seller to Buyer pursuant to this Sections 4.6,
4.7 and Section 5.2(a) shall be held in confidence by Buyer and disclosed only
to its attorneys, accountants, and prospective lenders and securities
underwriters and their respective attorneys. If the parties fail to consummate
the transaction described herein for any reason other than the Seller's default,
Buyer shall return to Seller all materials delivered by or on behalf of Seller
pursuant to or in connection with this Contract.
(b) From the Contract Date until the Closing Date, Seller undertakes and
agrees, with respect to the Project, that it will:
(i) Operate and maintain the Project in a good and workmanlike
manner and in accordance with all applicable laws;
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(ii) Promptly notify Buyer in writing of any litigation, arbitration
or administrative hearing before any court or governmental agency
concerning or affecting the Project which is instituted or
threatened after the Contract Date;
(iii) Following the expiration of the Inspection Period, not
terminate or modify any Lease or commence any judicial action
against any Tenant other than in the normal course of business
without the prior written consent of Buyer, which consent shall not
be unreasonably withheld;
(iv) Following the expiration of the Inspection Period, not execute
any new lease or agree to the terms of any lease renewal without the
prior written consent of the Buyer, which consent shall not be
unreasonably withheld;
(v) Promptly notify Buyer in writing of any notice received from a
Tenant of its election to vacate its leased premises or terminate
its Lease, or of any election by Seller to terminate any Lease or
commence any judicial action against any Tenant;
(vi) Not sell, exchange, transfer, assign, convey or encumber or
otherwise dispose of all or any part of the Project or any interest
therein, nor shall Seller remove any Personal Property unless Seller
shall replace the removed items with similar items of comparable
quality;
(vii) Maintain the Project in good condition and repair, except for
normal wear and tear, and Seller shall not in any manner neglect the
Project;
(viii)There will be no rental or other concessions of any nature
granted to any Tenant other than those set forth in the Leases and
on the Rent Roll delivered to Buyer pursuant to Section 5.2
(a)(iii), above;
(ix) Promptly notify Buyer in writing if Seller discovers any
defect, error or omission in any of the Ownership Documents,
detailing the nature of the defect, error or omission;
(x) Not, without the prior written consent of the Buyer, enter into
or modify any Service Contracts which are not terminable without
cause on or before the Closing Date; or
(xi) Not, without the prior written consent of Buyer, consent to any
assignment or sublease or other encumbrance by a Tenant of its
interest, or any part thereof, in its Lease, except as may be
required by the terms of the Lease.
5.3 Agreements Concerning Existing Note.
(a) Notwithstanding anything to the contrary contained in this Contract,
the Existing Note, the Existing Lien, or in any other document or agreement made
or executed in connection herewith or therewith, it is agreed that Buyer shall
assume payment of the Existing Note and performance of the agreements of the
Existing Liens and any other instrument securing the payment of the Existing
Note which accrue or arise after the Closing Date.
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(b) At the Closing, Seller agrees to use its best efforts to obtain from
the holder of the Existing Note (the "Lender") a Lender's Consent and Estoppel
(herein so called) signed by the Lender, confirming that it has no objection to
the sale to Buyer of the Project, subject to the unpaid principal balance of the
Existing Note as of the Closing Date, provided that Buyer assumes liability for
the payment of the Existing Note and the other instruments securing the Existing
Note, which accrue or arise after the Closing Date. Further, the Lender's
Consent and Estoppel shall state as of the date not earlier than the first day
of the month in which this Contract is closed, the following:
(i) The unpaid balance of principal and accrued interest on the
Existing Note;
(ii) That there are no past due payments either of principal or
interest owing on the Existing Note;
(iii) That to the current actual knowledge of the Lender (without
any investigation), there are no uncured defaults under the Existing
Lien or any other instrument securing the Existing Note;
(iv) That the Existing Note, the Existing Lien and all other
instruments securing the Existing Note are, to the current actual
knowledge of Lender (without any investigation), presently in full
force and effect;
(v) The amount of any impounds held by the Lender for payment of
insurance premiums or ad valorem taxes or other expenses related to
the Project and the Existing Lien securing same; and
(vi) The amount of each monthly payment and the amount of monthly
impounds.
Buyer agrees to provide Lender with all available information reasonably
needed to obtain the Lender's Consent and Estoppel from the Lender.
(c) Seller agrees to pay to Lender any transfer fee or other costs charged
by the Lender, in connection with its agreement to permit the transfer of the
Project to the Buyer and obtaining the Lender's Consent and Estoppel.
(d) Seller shall not, at any time, either prior to or after Closing,
alter, renew, rearrange, restructure or refinance any indebtedness evidenced by
the Existing Note or modify the Existing Note or any instrument securing the
Existing Note, without the prior written consent of Buyer; and Seller shall
neither accept nor request any extension, postponement, indulgence or
forgiveness of the Existing Note or the indebtedness evidenced thereby, without
the prior written consent of Buyer.
5.4 Survival Beyond Closing. The representations, warranties, undertakings
and agreements of Seller contained herein shall survive for a period of six
months after the Closing and shall not be merged therein.
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ARTICLE VI
REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS OF BUYER
Buyer represents, warrants, covenants, and agrees with, Seller as of the
Contract Date, that, except as otherwise hereinafter expressly provided, Buyer
has the full right, power, and authority to purchase the Project from Seller as
provided in this Contract and to carry out Buyer's obligations under this
Contract, and all requisite action necessary to authorize Buyer to enter into
this Contract and to carry out Buyer's obligations hereunder has been, or on the
Closing Date will have been, taken.
ARTICLE VII
CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
7.1 Conditions Precedent to Buyer's Obligations. Buyer shall not be
obligated to consummate the transaction described in this Contract unless:
(a) Seller shall have furnished or caused to be furnished to Buyer all of
the items required to be furnished by Seller under Section 5.2(a);
(b) Seller shall have furnished or caused to be furnished to Buyer the
Lender's Consent and Estoppel described in Section 5.3;
(c) Seller shall have performed in all material respects all of the
agreements, covenants and obligations contained in this Contract to be performed
or complied with by Seller on or prior to the Closing Date;
(d) All representations and warranties made by Seller hereunder shall be
true, complete and accurate in all material respects as of the Closing Date;
(e) The Title Company shall be prepared to deliver at Closing the Owner's
Title Policy described in Section 4.5;
(f) UCC searches conducted by the Title Company within five (5) days prior
to the Closing Date shall show that none of the Personal Property has been
pledged, encumbered or transferred;
(g) Tenant Estoppel Certificates shall have been received by Buyer from at
least 80% of the tenants in number and gross revenues of the Project, which
Estoppel Certificates shall confirm the information set forth on the Rent Roll
delivered (A) as part of the Ownership Documents, as modified to reflect any
non-substantive changes thereto, or (B) with respect to Tenants who have
executed new leases since the Contract Date, as reflected on the Rent Roll to be
delivered in connection with the Closing;
(h) If the Project is subject to any reciprocal easement agreements,
agreement of covenants, conditions and restrictions or similar documents
pertaining to the Project and any adjoining properties, Buyer shall have
received an estoppel certificate from all parties to such instruments, which
estoppel certificate shall be dated not more than 30 days prior to the Closing
Date and shall state, inter alia, that there are no defaults by Seller or claims
against Seller arising out of such documents and shall otherwise be in form and
substance reasonably acceptable to Buyer;
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(i) There shall be no material change in the matters reflected in the
Title Commitment or Survey and all municipal and utility services shall be
available to the Project;
(j) No material changes shall have occurred or be threatened with respect
to the Project which would adversely affect the findings made during the
Inspection Period;
(k) The Improvements and Personal Property at the Project shall be in the
same condition as they were during the Inspection Period, ordinary wear and tear
excepted;
(l) There shall be no litigation pending or threatened that could
materially adversely affect the Project; and
(m) No Tenants (other than Einstein Bagels) occupying space under Leases
covering in the aggregate 6,000 square feet of space, have filed a petition
under any section of the Bankruptcy Code, as amended, or under any similar law
or statute of the United States or any State thereof; nor shall any Tenants
occupying space under Leases covering in the aggregate 6,000 square feet of
space have been adjudged bankrupt or insolvent and no receiver or trustee shall
have been appointed for any such Tenants or any of the assets of any such
Tenants; and any Tenants occupying space under Leases covering in the aggregate
6,000 square feet of space shall not "have gone dark" with respect to their
space at the Project or shall have notified Seller of their intention to do so.
7.2 Termination if Conditions Precedent not Satisfied or Waived. If any of
the conditions precedent to the performance of Seller's obligations under this
Contract have not been satisfied, waived, or deemed waived by the Buyer within
the time frame established herein or otherwise by the Closing Date, then the
Buyer may, at its option, by written notice delivered to the obligated party and
Title Company, terminate this Contract, in which event the Xxxxxxx Money Deposit
shall be returned to Buyer and thereafter Buyer and Seller shall have no further
obligations, one to the other, with respect to the subject matter of this
Contract, subject to the provisions of Article IX hereof.
ARTICLE VIII
CLOSING
8.1 Date and Place of Closing. Provided that all of the conditions of this
Contract shall have been satisfied prior to or on the Closing Date (herein so
called), the Closing (herein so called) of this transaction shall take place at
the offices of the Title Company in Dallas, Texas, thirty (30) days after the
expiration of the Inspection Period or the Title Review Period, whichever is
later, or such earlier date as may be specified by Buyer by not less than five
(5) days advance written notice to Seller.
8.2 Items to be Delivered at or Prior to the Closing
(a) Seller. At the Closing, Seller shall deliver or cause to be delivered
to Buyer or the Title Company, the following items fully executed and
acknowledged where so indicated by all necessary parties in respect to the
Project:
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(i) The Owner's Title Policy to Buyer, at Buyer's expense, in the
form specified in Section 4.5 (unless waived by Buyer in accordance
with the provisions of Section 4.5);
(ii) A Special Warranty Deed, duly executed and acknowledged by
Seller, in the form of Exhibit "C", subject only to the Permitted
Exceptions;
(iii) The original Leases, or, if any original Leases are not
available, copies of any such Leases certified by Seller as being
true, correct and complete;
(iv) Duplicate originals of an assignment and assumption of leases
(the "Assignment of Leases") in the form attached hereto as Exhibit
"D", duly executed by Seller;
(v) A xxxx of sale and assignment in the form, attached hereto as
Exhibit "E", duly executed by Seller;
(vi) Duplicate originals of an assignment and assumption of Service
Contracts (the "Assignment of Service Contracts") in the form or
substantially the form, attached hereto as Exhibit "F", duly
executed by Seller;
(vii) An affidavit, in the form, or substantially in the form,
attached as Exhibit "G", in compliance with Section 1445 of the
Internal Revenue Code of 1986, as amended, and any regulations
promulgated thereunder, stating under penalty of perjury the
Seller's United States identification number and that Seller is not
a "foreign person" as that term is defined in Section 1445, duly
executed and acknowledged by Seller;
(viii)A notice of sale in the form, or substantially in the form,
attached hereto as Exhibit "H", (the "Tenant Notice Letter") for
each of the Tenants, duly executed by Seller and Buyer;
(ix) A tenant estoppel letter in the form attached hereto as Exhibit
"I" from each Tenant at the Project, as prescribed in Section
7.1(g), which estoppel letters shall be signed and dated by each
Tenant not more than 30 days prior to the Closing Date;
(x) All keys or other access devices in the possession of Seller or
its agents to all locks located at the Project;
(xi) Originals of all Service Contracts, plans, governmental
approvals, and other contracts and agreements in Seller's possession
relating to the ownership and operation of the Project;
(xii) Originals, to the extent available, and, if not available,
true and correct copies of all books and records pertaining to the
operation of the Project for the calendar year 1997 and for
year-to-date 1998, in the possession of Seller or Seller's agent;
(xiii)Appropriate evidence of authorization and opinion of Seller's
counsel reasonably satisfactory to the Title Company (if required by
the Title Company) regarding the consummation of the transaction
contemplated by this Contract;
14
(xiv) Unless waived by Buyer, notices of cancellation, to be
effective within thirty days of the Closing Date, of all Service
Contracts affecting the Project;
(xv) A reaffirmation certificate executed by Seller wherein Seller
reaffirms and confirms that the representations and warranties of
Seller set forth in this Contract are true and such representations
and warranties of Seller remain true and correct as of the Closing
Date;
(xvi) Letters to all utility companies advising of the change of
ownership of the Project and an assignment of any deposits currently
held by the utility company for the benefit of the Seller;
(xvii)Any other items reasonably requested by the Title Company as
administrative requirements for consummating the Closing.
(b) Buyer. At the Closing, Buyer shall deliver or cause to be delivered to
Seller or the Title Company, the following items:
(i) The cash sum required by Section 3.1 and the Assumption Deed of
Trust in the form of Exhibit "C";
(ii) Duplicate originals of the Assignment of Leases duly executed
by Buyer;
(iii) Duplicate originals of the Assignment of Service Contracts
duly executed by Buyer;
(iv) Appropriate evidence of authorization reasonably satisfactory
to Seller and the Title Company for the consummation of the
transaction contemplated by this Contract; and
(v) Any other items reasonably requested by the Title Company as
administrative requirements for consummating the Closing.
8.3 Adjustments at Closing. Notwithstanding anything to the contrary
contained in this Contract or applicable law, the provisions of this Section 8.3
shall survive for a period of six months following the Closing. All income and
obligations attributable to days preceding the Closing Date shall be allocated
to Seller, and all income and obligations attributable to days from and after
the Closing Date shall be allocated to Buyer. Without limitation upon the
foregoing, the following items shall be adjusted or prorated between Seller and
Buyer as set forth below:
(a) Ad valorem and personal property taxes relating to the Project for the
calendar year in which the Closing occurs shall be prorated between Seller and
Buyer as of the Closing Date based upon taxes actually paid by Seller for the
calendar year in which the Closing occurs, if Seller has paid such taxes prior
to Closing, and otherwise upon the ad valorem and personal property taxes due
assuming payment in December of the year of Closing. If the actual amount of
taxes for the calendar year in which the Closing shall occur is not known as of
the Closing Date, the proration shall be based on the amount of taxes due and
payable with respect to the Project using the latest assessed value and tax
15
rate. All other assessments affecting the Project, if any, assessed and due
prior to Closing Date, shall be paid by the Seller and if assessed after the
Closing Date, shall be paid by the Buyer.
(b) Base rents, escalation or reimbursement payments for real estate and
personal property taxes, insurance premiums, CAM or other operating expenses and
charges, payable with respect to the Project for the then current month shall be
prorated as of the Closing Date. In respect to those tenant leases with AAA,
Roxie's and Vision Source, Buyer shall be entitled to a credit at Closing an
amount equal to the difference between the higher rental rate which become
payable by the Tenant under terms of such leases and the actual rate payable by
such Tenant as of the Closing Date and for the period of time expiring when such
rent increases takes effect. Percentage rents for each Tenant obligated therefor
shall be pro-rated on the basis of the number of days lapsed during the Tenant's
percentage rent period as of the Closing Date and not on the basis of the amount
of the Tenant's sales which accrued during such percentage rent period as of the
Closing Date. Such proration may not be capable of determination at the Closing
Date, in which event, such prorations shall be made post-Closing. Any rent
concessions granted by the Seller to Tenants for free rent, concessions or
abatements, which apply to periods after the Closing Date shall not be prorated
but shall be credited to the Buyer. With respect to any Tenant ("Delinquent
Tenant") who owes rents and other charges which at Closing are past due, such
past due rents and other charges ("Delinquencies") shall not be prorated. Buyer
shall remit such Delinquencies, if any, if, as and when collected by Buyer,
provided, however, that if a payment is received by Buyer from a Delinquent
Tenant, such payment may be applied by Buyer first to any rents or other sums
that are past due by such Delinquent Tenant from and after the Closing Date. The
right to receive and collect all rents and profits, delinquent or otherwise,
shall be assigned by Seller to Buyer at Closing.
(c) All other income and ordinary operating expenses of the Project,
including, without limitation, public utility charges, maintenance, management,
and other service charges, and all other normal operating charges shall be
prorated at the Closing effective as of the Closing Date based upon the best
available information. The obligation of the parties to adjust, post-Closing,
and any operating expenses as of the Closing Date, shall, to the extent unknown
or not provided for at Closing, survive the Closing and shall be paid by the
party responsible therefor within ten (10) days after written demand therefor
has been made. Such demand shall include a copy of the invoice(s) for which
payment or reimbursement is sought.
8.4 Deferred Leasing Commissions. The amount of any unpaid leasing
commissions payable on account and over the term of existing Leases or Leases
entered into between the date hereof and the Closing Date shall either be paid
by the Seller or treated as a credit to Buyer. Commissions payable on account of
Leases which are subject to renewal at the option of the Tenant and with respect
to which the options have not been exercised prior to the Closing Date shall not
be covered by the preceding sentence.
8.5 Possession. Possession of the Project shall be delivered to Buyer by
Seller at the Closing, subject to the rights of the Tenants.
8.6 Costs of Closing. Each party shall be responsible for paying the legal
fees of its counsel in negotiating, preparing, and closing the transaction
contemplated by this Contract. Seller shall pay for real estate tax searches and
current UCC searches. Buyer shall pay cost of the title insurance premium, its
own engineering and environmental inspections as well as for the charges
attributable to recording the warranty deed and Tenant credit checks. The
parties shall split the cost of any title company escrow fees. Any other
16
expenses that are incurred by either party that are expressly identified herein
as being the responsibility of a particular party shall be paid by such party.
All other expenses shall be allocated between the parties in the customary
manner for sales of real property similar to the Project in Houston, Texas.
8.7 Provisions of Article VIII to SurvivThe provisions of this Article VIII
shall survive for a period of six months following the Closing.
ARTICLE IX
DEFAULTS AND REMEDIES
9.1 Default of Buyer. If Buyer fails or refuses to consummate the
transaction contemplated by this Contract, for any reason other than termination
of this Contract by Buyer pursuant to a right to do so expressly set forth in
this Contract, then such event shall constitute a default by Buyer hereunder and
the Seller may, as the Seller's sole and exclusive remedy for such default,
either (i) bring an action against the Buyer for specific performance of the
Buyer's obligations under this Contract, or (ii) terminate this Contract by
giving written notice thereof to Buyer and the Title Company at or prior to the
Closing Date, whereupon the Title Company shall deliver the Xxxxxxx Money
Deposit (including the interest earned thereon) to the Seller which shall
constitute liquidated damages hereunder and thereafter neither party hereto
shall have any further rights or obligations hereunder. It is agreed that the
Xxxxxxx Money Deposit is a reasonable forecast of just compensation for the harm
that would be caused by such default, which the parties agree is one that is
incapable or very difficult of accurate estimation, and that payment of the
Xxxxxxx Money Deposit upon such default shall constitute full satisfaction of
Buyer's obligations hereunder.
9.2 Default of Seller. If Seller fails or refuses to consummate the sale of
the Project to Buyer pursuant to this Contract at the Closing or fails to
perform any of Seller's other obligations hereunder for any reason other than
Buyer's failure to perform Buyer's obligations under this Contract, then Buyer
may, as Buyer's sole and exclusive remedy for such default, either (i) bring an
action against the Seller for specific performance of the Seller's obligations
under this Contract, (ii) terminate this Contract by giving written notice
thereof to Seller and the Title Company at or prior to the Closing Date,
whereupon the Title Company shall deliver the Xxxxxxx Money Deposit (including
the interest earned thereon) to Buyer and thereafter neither party hereto shall
have any further rights or obligations hereunder, or (iii) receive the return of
the Xxxxxxx Money Deposit and prosecute an action for damages if Seller has
conveyed or hypothecated the Project to a third party in violation of the terms
hereof.
9.3 Xxxxxxx Money. In the event either Seller or Buyer becomes entitled to
the Xxxxxxx Money Deposit upon cancellation of this Contract in accordance with
its terms, such party may deliver a letter of instruction to the Title Company
directing disbursement of the Xxxxxxx Money Deposit to the party entitled
thereto. The party delivering such notice to the Title Company shall
concurrently deliver a copy of the notice to the other party hereto. Upon the
expiration of three (3) business days after its receipt of the letter of
instructions, the Title Company may deliver the Xxxxxxx Money Deposit to the
party as specified in the letter of instructions unless, within such three (3)
business day period, the Title Company shall have received a written objection
to such delivery from the other party hereto. In such event, the Title Company
shall not deliver the Xxxxxxx Money Deposit to either party unless it has a
written authorization to do so signed by both parties or a court order has been
issued by a court of competent jurisdiction to deliver the Xxxxxxx Money Deposit
to one of the parties hereto. The Title Company may deposit the Xxxxxxx Money
Deposit into a court of
17
competent jurisdiction and thereafter shall have no further interest in or
responsibility for this Contract or for the Xxxxxxx Money Deposit.
9.4 Indemnification of Title Company. Each party hereto hereby indemnifies
and holds harmless the Title Company from any loss, damage or claim therefor
arising out of or in connection with the receipt and disposition of the Xxxxxxx
Money Deposit in accordance with the instructions set forth in this Contract.
These indemnities shall survive the termination of this Contract or a closing
pursuant hereto.
ARTICLE X
BROKERAGE COMMISSIONS
10.1 Amount. If, and only if Closing occurs, Seller hereby agrees to pay a
real estate brokerage commission in the amount of $120,000 to Xxxx Xxxxxxx and
Xxxxx Xxxx (the "Brokers") to be divided as they may agree. There is no other
broker or agent entitled to commissions under this agreement.
10.2 Indemnity. Seller hereby represents and warrants to Buyer that it has
not contacted or entered into any agreement with any other real estate broker,
agent, finder, or any other party in connection with this transaction, and that
Seller has not taken any action which would result in any real estate broker's,
finder's, or other fees or commissions being due or payable to any other party
with respect to the transaction contemplated hereby. Buyer hereby represents and
warrants to Seller that Buyer has not contracted or entered into any agreement
with any real estate broker, agent, finder, or other party in connection with
this transaction, other than as identified in Section 10.1, and that Buyer has
not taken any action which would result in any real estate broker's, finder's,
or other fees or commissions being due or payable to any other party with
respect to the transaction contemplated hereby. Each party hereby indemnifies
and agrees to hold the other party harmless from any loss, liability, damage,
cost, or expense (including, but not limited to, reasonable attorneys' fees)
resulting to the other party by reason of a breach of the representation and
warranty made by such party in this Section 10.2. The indemnities set forth in
this Section 10.2 shall survive the Closing. ARTICLE XI CASUALTY OR CONDEMNATION
(a) Seller agrees to give Buyer and Title Company prompt notice of any fire
or other casualty affecting the Project or of any actual or threatened taking or
condemnation of all or any portion of the Project. If, prior to the Closing,
there shall occur:
(i) damage to the Project caused by fire or other casualty; or
(ii) a threatened or actual taking or condemnation of all or any portion of
the Project,
then, Buyer shall have the right to terminate this Contract by written
notice delivered to Seller within ten (10) days after Buyer has received notice
from Seller of that event or the date on which Buyer learns of that event,
whichever shall last occur. If Buyer terminates this Contract, the Xxxxxxx Money
Deposit shall be returned to Buyer and the parties shall have no further
obligations under this Contract, or to each other with respect to the subject
matter of this Contract. Notwithstanding the foregoing, in the event that the
cost of repairing or restoring such damage shall be covered by
18
available insurance and such cost shall be less than $100,000, then Buyer shall
proceed to Closing and Seller shall assign at Closing to Buyer its right, title
and interest in the insurance proceeds available to repair or restore the damage
or destruction and to any applicable rent loss insurance and, in addition,
Seller shall credit the Purchase Price with the amount of any deductible under
such insurance policy(s).
(b) In the event of damage or destruction to the Project, Buyer may
postpone the Closing Date pending a determination of the nature and extent of
such damage or destruction and the availability and adequacy of insurance
proceeds. Such postponement shall be by written notice from Buyer to Seller and
Title Company and shall remain in effect for a period of ten (10) days (the
"Damages Determination Period") following Buyer's determination of the nature
and extent of the damage or destruction and the availability and adequacy of
insurance proceeds for repair or restoration.
(c) If the cost to repair or replace the damage is reasonably estimated by
the Seller's insurance adjuster to exceed $100,000, then at Buyer's election and
in its sole discretion, Buyer may elect to proceed with the Closing and at the
Closing, Seller shall assign to Buyer its right, title and interest in the
insurance proceeds available to repair or restore the damage or destruction and
to any applicable rent loss proceeds, and Seller shall credit the Purchase Price
with the amount of any deductible under such insurance policy(s).
(d) In the event that Buyer fails to notify Seller and Title Company of its
intention to proceed to Closing and accept as assignment of the insurance
proceeds prior to the expiration of the Damage Determination Period, the
Contract shall automatically terminate and the Xxxxxxx Money Deposit shall be
returned to Buyer forthwith.
ARTICLE XII
MISCELLANEOUS
12.1 Notices. All notices, demands, requests, and other communications
required or permitted hereunder shall be in writing, and shall be deemed to be
delivered on receipt if delivered by hand, overnight delivery, or by facsimile,
or whether actually received or not, three (3) days after having been deposited
in a regularly maintained receptacle for the United States mail, registered or
certified, return receipt requested, postage prepaid, addressed as follows:
If to Seller: Veriquest Colony Plaza One 1997
0000 Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
With Copy to: Xxx X. Xxxxxxx, Esq.
Kissner & Xxxxxxx, P.C.
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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If to Buyer: United Investors Realty Trust
0000 Xxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxx
Chief Operating Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a Copy to: Xxxxx X. Xxxxxxx, Esq.
United Investors Realty Trust
0000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx, Xxxxxxx & Xxxxxxxx, P.C.
Attn: Xxxxxx X. Xxxxxxx, Esq.
8th Floor Texas Commerce Bank Bldg.
000 Xxxx Xxxx
Xx Xxxx, Xxxxx 00000
(000) 000-0000
FAX: (000) 000-0000
12.2 Governing Law. This Contract is being executed and delivered, and is
intended to be performed, in the State of Texas, and the laws of Texas shall
govern the validity, construction, enforcement, and interpretation of this
Contract. This Contract is performable in, and the exclusive venue for any
action brought with respect hereto, shall lie in Xxxxxx County, Texas.
12.3 Entirety and Amendments. This Contract embodies the entire agreement
between the parties and supersedes all prior agreements and understandings, if
any, relating to the Project, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
12.4 Parties Bound. This Contract shall be binding upon and inure to the
benefit of Seller and Buyer, and their respective heirs, personal
representatives, successors and permitted assigns, but shall not inure to the
benefit of another party.
12.5 Saturday, Sunday or Legal Holiday. If any date set forth in this
Contract for the performance of any obligation by Buyer or Seller or for the
delivery of any instrument or notice should be on other than a Business Day, the
compliance with such obligations or delivery shall be deemed acceptable on the
next following Business Day.
12.6 Time is of the Essence. It is expressly agreed by Seller and Buyer
that time is of the essence with respect to this Contract.
12.7 Exhibits. The Exhibits which are referenced in, and attached to, this
Contract are incorporated in, and made a part of, this Contract for all
purposes. If one or more exhibits to be
20
attached to this Agreement according to the terms hereof are not so attached or
are incomplete upon the actual date of execution hereof, then all such missing
or incomplete exhibits must be prepared or completed by the Buyer prior to the
expiration of the Inspection Period; on or before the expiration of the
Inspection Period, Seller has the right to approve, in its sole discretion, the
form and contents of each such exhibit supplied by the Buyer pursuant to this
paragraph and such approval by Seller is a condition precedent to Buyer to the
Closing.
12.8 Attorney's Fees. If either party hereto shall be required to employ
an attorney to enforce or defend the rights of such party hereunder, the
prevailing party shall be entitled to recover its reasonable attorney's fees and
costs.
12.9 Expiration of Offer. The execution by one party hereto and delivery
to the other party hereto of an executed counterpart of this Contract shall
constitute an offer to sell or purchase the Project, as may be the case, upon
the terms stated herein. If a counterpart of this Contract executed by one party
hereto without modification is not received by the other party hereto within
three (3) business days after the time and date of the execution by the first,
as indicated below, the offer contained in this Contract shall be null and void.
12.10 Multiple Counterparts. This Contract may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
agreement, and either of the parties hereto may execute this Contract by signing
any such counterpart.
12.11 Severability. If any provision of this Contract shall, for any
reason, is held to violate any applicable law, and so much of this Contract is
held to be unenforceable, then the invalidity of such specific provision shall
not be held to invalidate any other provision of this Contract which shall
remain in full force and effect.
12.12 Assignment. This Contract may be assigned by Buyer to any affiliated
entity without the prior written consent of Seller.
EXECUTED by Buyer on the ______ day of April, 1998.
BUYER: UNITED INVESTORS REALTY TRUST, a
Texas real estate investment trust
By: /s/ Xxxxxxx Xxxxx, Chief Operating Officer
------------------------------------------------
Xxxxxxx Xxxxx, Chief Operating Officer
21
EXECUTED by Seller on the ___________ day of April, 1998
SELLER: VERIQUEST-COLONY PLAZA ONE 1997,
a Texas joint venture
By: VeriQuest-Colony Plaza One, Ltd., a Texas
limited partnership, a Joint Venturer
By: Veriquest Companies, Inc., a Texas
corporation, its General Partner
By: /s/ Xxxxx X. Xxxxxxx, President
------------------------------------------------
Xxxxx X. Xxxxxxx, President
By: Colony Six CD, Ltd., a Texas limited partnership,
a Joint Venturer
By: CD-GP, Inc., its General Partner
By: /s/ S. Xxx Xxxxxxxx, President
------------------------------------------------
S. Xxx Xxxxxxxx, President
Receipt of a fully executed copy of the Contract and a check, subject to
collection for the Xxxxxxx Money Deposit received this _________day of April,
1998.
TITLE COMPANY: SAFECO LAND TITLE COMPANY
By:
Name:
Title:
EXECUTED BY BROKERS this day of April, 1998.
XXXX XXXXXXX
XXXXX XXXX
22
List of Attachments
Exhibit "A" - Description of Land
Exhibit "B" - Survey Requirements
Exhibit "C" - Form of Special Warranty Deed and Assumption
Deed of Trust
Exhibit "D" - Form of Assignment of Leases
Exhibit "E" - Form of Xxxx of Sale and Assignment
Exhibit "F" - Form of Assignment of Service Contracts
Exhibit "G" - Non-Foreign Affidavit
Exhibit "H" - Form of Tenant Notice Letter
Exhibit "I" - Form of Tenant Estoppel Letter
23
