Exhibit 10.18
ASSIGNMENT OF PURCHASE AGREEMENT
This Assignment of Commercial Contract - Improved Property is entered
into by and between Xxxx X. Xxxxxxxxx as Qualified Exchange Accommodator for
Xxxxxxxxxx Realty Group, Inc., a Nevada corporation ("Buyer") and Xxxx XxXxxxxx
("Assignor") and is based upon the following facts and representations:
A. Assignor entered into a Commercial Contract - Improved
Property (the "Purchase and Sale Agreement" with Ashdale
Limited Partnership as the Seller ("Seller").
B. Assignor and Assignee now mutually desire to assign all rights
and obligations under the Purchase and Sale Agreement to
Assignee for the benefit of Xxxxxxxxxx Realty Group, Inc.
("Equitable Beneficiary").
NOW THEREFORE, in consideration of valuable consideration, receipt of which is
hereby acknowledged, which consideration includes, but not limited to payment by
Assignee to Original Buyer of the sum of Fifty Dollars ($50.00), the parties
hereto agree as follows:
1. Original Buyer irrevocably assigns to Assignee all rights,
title and privileges arising in favor of Original Buyer
pursuant to the terms, covenants and conditions set forth in
the "Commercial Contract - Improved Property" a copy of which
is attached hereto as Exhibit "A" and incorporated herein by
this reference.
2. Assignee, subject to his rights of inspection, termination and
waiver as set forth in the "Commercial Contract - Improved
Property" hereby assumes all obligations to pay the Purchase
Price and otherwise discharge the obligations of Original
Buyer to Seller as set forth in the "Commercial Contract -
Improved Property" subject to any amendments or alterations
thereto.
3. Assignor represents and warrants that he has the legal right
to assign the "Commercial Contract - Improved Property" and
all rights, title and interest therein. Assignor does not make
any representations or warranties as to the improved real
property that is the subject of the "Commercial Contract -
Improved Property"
4. Assignee represents that he has the legal right to assume the
"Commercial Contract - Improved Property" and, if ultimately
consummated, to fulfill the obligations of Assignor
thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment of Purchase
Agreement ("Agreement") effective June 17, 2005.
ASSIGNOR:
By: /s/ Xxxx XxXxxxxx
----------------------------------
Xx. Xxxx XxXxxxxx
BUYER:
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------
Xx. Xxxx X. Xxxxxxxxx
As Qualified Exchange Accommodator
For Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
EQUITABLE BENEFICIARY:
Xxxxxxxxxx Realty Group, Inc.
By: /s/ Xxxxxx Xxxxxx
----------------------------------
Xx. Xxxxxx Xxxxxx
Xxxxxxxxxx Realty
Group, Inc. a
Nevada corporation
2
TEXAS ASSOCIATION OF REALTORS(R)
COMMERCIAL CONTRACT - IMPROVED PROPERTY
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF
REALTORS(R) IS NOT AUTHORIZED.
(C)Texas Association of REALTORS(R), Inc. 2002
1. PARTIES: Seller agrees to sell and convey to Buyer the Property described in
Paragraph 2. Buyer agrees to buy the Property from Seller for the sales price
stated in Paragraph 3. The parties to this contract are:
Seller: Ashdale Limited Partnership
Address: 0000 Xxxxxxxx, Xxxxx, XX 00000
Phone: (000) 000-0000 Fax: (000) 000-0000
Buyer: Xxxx XxXxxxxx and/or assigns
Address: 00000 Xxxxxxx Xxxxxx Xxxxx X, Xxxxxx, XX 00000
Phone: (000) 000-0000 Fax: (000) 000-0000
2. PROPERTY:
A. "Property" means that real property situated in Xxxxxx County,
Texas at 0000 Xxxxxxx Xx., Xxxxxx, XX 00000 (address) and that
is legally described on the attached Exhibit __ or as follows:
The Ashdale Gardens Apartments located at 0000 Xxxxxxx Xx.,
Xxxxxx, XX 00000 Lot 1 Xxxxx & Homes Subd
B. Seller will sell and convey the Property together with:
(1) all buildings, improvements, and fixtures;
(2) all rights, privileges, and appurtenances pertaining
to the Property, including Seller's right, title, and
interest in any minerals, utilities, adjacent
streets, alleys, strips, gores, and rights-of-way;
(3) Seller's interest in all leases, rents, and security
deposits for all or part of the Property;
(4) Seller's interest in all licenses and permits related
to the Property;
(5) Seller's interest in all third party warranties or
guaranties, if transferable, relating to the Property
or any fixtures;
(6) Seller's interest in any trade names, if
transferable, used in connection with the Property;
and
(7) all Seller's tangible personal property located on
the Property that is used in connection with the
Property's operations except: ______________.
(Describe any exceptions, reservations, or restrictions in Paragraph 11 or an
addendum.) (If the Property is a condominium, attach condominium addendum.)
3. SALES PRICE: At or before closing, Buyer will pay the following sales price
for the Property:
A. Cash portion payable by Buyer at closing.......... $1,950,000
B. Sum of all financing described in Paragraph 4......$_________
C. Sales price (sum of 3A and 3B).....................$1,950,000
Initialed for Identification by Buyer JD Seller AK Page 1 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
4. FINANCING: Buyer will finance the portion of the sales price under Paragraph
3B as follows:
[ ] A. Third Party Financing: One or more third party loans in the total
amount of $_____. This contract:
[X] (1) is not contingent upon Buyer obtaining third party financing.
[ ] (2) is contingent upon Buyer obtaining third party financing in
accordance with the attached Financing Addendum.
[ ] B. Assumption: In accordance with the attached Financing Addendum,
Buyer will assume the existing promissory note secured by the Property, which
balance at closing will be $_____.
[ ] C. Seller Financing: The delivery of a promissory note and deed of
trust from Buyer to Seller under the terms of the attached Financing Addendum in
the amount of $_____.
5. XXXXXXX MONEY:
A. Not later than 3 days after the effective date, Buyer must
deposit $20,000.00 as xxxxxxx money with Heritage Title
Company c/o Xxxxx, 512-505-5000 (title company and escrow
agent) at 000 Xxxxxxxx Xxx., #0000, Xxxxxx, XX 00000 (title
company's address). Buyer will deposit additional xxxxxxx
money of $___ on or before: (i) the __ day after Buyer's right
to terminate under Paragraph 7B(3) expires; or (ii) _____. The
title company is the escrow agent under this contract.
B. If Buyer fails to timely deposit the xxxxxxx money, Seller may
terminate this contract by providing written notice to Buyer
before Buyer deposits the xxxxxxx money and may exercise
Seller's remedies under Paragraph 15.
C. Buyer may instruct the escrow agent to deposit the xxxxxxx
money in an interest-bearing account at a federally insured
financial institution and to credit any interest to Buyer.
6. TITLE POLICY AND SURVEY:
A. Title Policy:
(1) Seller, at Seller's expense, will furnish Buyer an
Owner's Policy of Title Insurance (the title policy)
issued by the title company in the amount of the
sales price, dated at or after closing, insuring
Buyer against loss under the title policy, subject
only to:
(a) those title exceptions permitted by this
contract or as may be approved by Buyer in
writing; and
(b) the standard printed exceptions contained in
the promulgated form of title policy unless
this contract provides otherwise.
(2) The standard printed exception as to discrepancies,
conflicts, or shortages in area and boundary lines,
or any encroachments or protrusions, or any
overlapping improvements:
[X] (a) will not be amended or deleted from the title
policy.
[ ] (b) will be amended to read "shortages in areas" at
the expense of [ ] Buyer [ ] Seller.
(3) Buyer may object to any restrictive covenants on the
Property within the time required under Paragraph 6C.
(4) Within 7 days after the effective date, Seller will
furnish Buyer a commitment for title insurance (the
commitment) including legible copies of recorded
documents evidencing title exceptions. Seller
authorizes the title company to deliver the
commitment and related documents to Buyer at Buyer's
address.
Initialed for Identification by Buyer JD Seller AK Page 2 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
B. Survey:
(1) Within 7 days after the effective date:
[ ] (a) Buyer will obtain a survey of the Property at Buyer's
expense and deliver a copy of the survey to Seller.
[ ] (b) Seller, at Seller's expense, will furnish Buyer a
survey of the Property dated after the effective date.
[X] (c) Seller will deliver a true and correct copy of
Seller's existing survey of the Property dated most
recent. Seller, at Seller's expense:
[X] (i) will have the existing survey recertified on a
date not earlier than 6/30/2005.
[ ] (ii) will not have the existing survey recertified.
Seller [ ] will [ ] will not deliver to the title
company an affidavit required by the title company
for approval of the survey that states that Seller
knows of no changes or alterations to the Property as
depicted on the survey.
(2) The survey required under Paragraph 6B(1) must be
made by a Registered Professional Land Surveyor
acceptable to the title company. The survey must:
(a) identify the Property by metes and bounds or
platted lot description;
(b) show that the survey was made and staked on
the ground with corners permanently marked;
(c) set forth the dimensions and total area of
the Property;
(d) show the location of all improvements,
highways, streets, roads, railroads, rivers,
creeks or other waterways, fences,
easements, and rights-of-way on the Property
with all easements and rights-of-way
referenced to their recording information;
(e) show any discrepancies or conflicts in
boundaries, any visible encroachments, and
any portion of the Property lying in a
special flood hazard area (an "A" or "V zone
as shown on the current Federal Emergency
Management Agency (FEMA) flood insurance
rate map); and
(f) contain the surveyor's certificate that the
survey is true and correct.
C. UCC Search:
[X] (1) Within 30 days after the effective date, Seller, at
Seller's expense, will furnish Buyer a Uniform
Commercial Code (UCC) search prepared by a reporting
service and dated after the effective date. The
search must identify documents that are on file with
the Texas Secretary of State and the county where the
Property is located that relate to all personal
property on the Property and show, as debtor, Seller
and all other owners of the personal property in the
last 5 years.
[ ] (2) Buyer does not require Seller to furnish a UCC
search.
D. Buyer's Objections to the Commitment, Survey, and UCC Search:
(1) Within 5 days after Buyer receives the commitment,
copies of the documents evidencing the title
exceptions, any required survey, and any required UCC
search, Buyer may object to matters disclosed in the
items if:
(a) the matters disclosed constitute a defect or
encumbrance to title other than those
permitted by this contract or liens that
Seller will satisfy at closing or Buyer will
assume at closing; or
(b) the items show that any part of the Property
lies in a special flood hazard area (an "A"
or "V" zone as defined by FEMA);
Initialed for Identification by Buyer JD Seller AK Page 3 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
(2) Seller may, but is not obligated to, cure Buyer's
timely objections within 20 days after Seller
receives the objections. The closing date will be
extended as necessary to cure the objections. If
Seller fails to cure the objections by the time
required, Buyer may terminate this contract by
providing written notice to Seller within 5 days
after the time by which Seller must cure the
objections. If Buyer terminates, the xxxxxxx money,
less any independent consideration under Paragraph
7B(3)(a), will be refunded to Buyer.
(3) Buyer's failure to timely object or terminate under
this Xxxxxxxxx 0X is a waiver of Buyer's right to
object except that Buyer will not waive the
requirements in Schedule C of the commitment.
7. PROPERTY CONDITION:
[X] A. Present Condition: (Check (1) or (2) only.)
[X] (1) Buyer accepts the Property in its present "as-is"
condition.
[ ] (2) Buyer accepts the Property in its present condition except
that Seller, at Seller's expense, will complete the
following before closing:________________________________.
[X] B. Feasibility:
(1) Delivery of Property Information: Within 5 days after
the effective date, Seller will deliver to Buyer the
following items to the extent that the items are in
Seller's possession or are readily available to
Seller. Any item not delivered is deemed not to be in
Seller's possession or readily available to Seller.
The items Seller will deliver are:
(a) a current rent roll of all leases affecting
the Property certified by Seller as true and
correct;
(b) copies of all current leases pertaining to
the Property, including any modifications,
supplements, or amendments to the leases;
(c) a current inventory of all personal property
to be conveyed under this contract;
(d) copies of all notes and deeds of trust
against the Property that Buyer will assume
or that Seller will not pay in full on or
before closing;
(e) copies of all current service, maintenance,
and management agreements relating to the
ownership and operation of the Property
(f) copies of current utility capacity letters
from the Property's water and sewer service
provider;
(g) copies of all current warranties and
guaranties relating to all or part of the
Property;
(h) copies of fire, hazard, liability, and other
insurance policies that currently relate to
the Property;
(i) copies of all leasing or commission
agreements that currently relate to all or
part of the Property;
(j) [subsection deleted by hand];
(k) copies of all invoices for utilities and
repairs incurred by Seller for the Property
in the 24 months immediately preceding the
effective date;
(l) a copy of Seller's income and expense
statement for the Property from 1/1/2002 to
year to date 2005;
(m) copies of all previous environmental
assessments, studies, or analyses made on or
relating to the Property;
(n) real and personal property tax statements
for the Property for the previous 2 calendar
years; and
(o) ___________________________________________.
Initialed for Identification by Buyer JD Seller AK Page 4 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
(2) Inspections, Studies, or Assessments:
(a) Within 10 days after the effective date,
Buyer, at Buyer's expense, may complete or
cause to be completed inspections, studies,
or assessments of the Property, including
all improvements and fixtures. Inspections,
studies, or assessments may include, but are
not limited to:
(i) physical property inspections (for
example, structural pest control,
mechanical, structural, electrical,
and plumbing inspections);
(ii) economic feasibility studies;
(iii) environmental assessments (for
example, soil tests, air sampling,
and paint sampling);
(iv) engineering studies; and
(v) compliance inspections (for
example, compliance determination
with zoning ordinances,
restrictions, building codes, and
statutes).
(b) Seller, at Seller's expense, will turn on
all utilities necessary for Buyer to make
inspections, studies, or assessments.
(c) Buyer must:
(i) employ only trained and qualified
inspectors and assessors;
(ii) notify Seller, in advance, of when
the inspectors or assessors will be
on the Property;
(iii) abide by any reasonable entry rules
or requirements that Seller may
require;
(iv) not interfere with existing
operations or occupants of the
Property; and
(v) restore the Property to its
original condition if altered due
to inspections, studies, or
assessments that Buyer completes or
causes to be completed.
(d) Except for those matters that arise from the
negligence of Seller or Seller's agents,
Buyer is responsible for any claim,
liability, encumbrance, cause of action, and
expense resulting from Buyer's inspections,
studies, or assessments, including any
property damage or personal injury. Buyer
will indemnify, hold harmless, and defend
Seller and Seller's agents against any claim
involving a matter for which Buyer is
responsible under this paragraph. This
paragraph survives termination of this
contract.
(3) Feasibility Period and Right to Terminate: Buyer may
terminate this contract for any reason within 10 days
after the effective date by providing Seller with
written notice of termination. If Buyer does not
terminate within the time required, Buyer accepts the
Property in its present "as is" condition with any
repairs Seller is obligated to complete under this
contract. (Check only one box.)
[X] (a) If Buyer terminates under this Paragraph
7B(3), the xxxxxxx money will be refunded to
Buyer less $200.00 that Seller will retain
as independent consideration for Buyer's
right to terminate. Buyer has tendered the
independent consideration to Seller upon
payment of the full amount specified in
Paragraph 5 to the escrow agent. The
independent consideration is to be credited
to the sales price only upon closing of the
sale.
[ ] (b) Buyer has paid Seller $_____ as independent
consideration for Buyer's right to terminate
by tendering such amount directly to Seller
or Seller's agent. If Buyer terminates under
this Paragraph 7B(3), the xxxxxxx money will
be refunded to Buyer and Seller will retain
the independent consideration. The
independent consideration [ ] will [ ] will
not be credited to the sales price upon
closing of the sale.
Initialed for Identification by Buyer JD Seller AK Page 5 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
(4) Return of Property Information: If this contract
terminates for any reason, Buyer will, not later than
10 days after the termination date: (i) return to
Seller all those items described in Paragraph 7B(1)
that Seller delivered to Buyer and all copies that
Buyer made of those items; and (ii) deliver copies of
all inspection and assessment reports (excluding
economic feasibility studies) related to the Property
that Buyer completed or caused to be completed. This
Paragraph 7B(4) survives termination of this
contract.
(5) Contracts Affecting Operations: After Buyer's right
to terminate under Paragraph 7B(3) expires, Seller
may not enter into, amend, or terminate any other
contract that affects the operations of the Property
without Buyer's prior written approval.
8. BROKERS:
A. The brokers to this sale are:
KTC Enterprises The Xxxxx and Xxxxx Company
Cooperating Broker License No. Principal Broker 0437570 License No.
0000 Xxxxxxxxx Xx., Xxxxx X,
Xxxxxx XX
Address Address
(000) 000-0000 (000) 000-0000 (000) 000-0000 (000) 000-0000
Phone Fax Phone Fax
Cooperating Broker represents buyer. Principal Broker:
(Check only one box)
[X] represents Seller only.
[ ] represents Buyer only.
[ ] is an intermediary between
Seller and Buyer.
B. Fees: (Check only one box.)
[ ] (1) Seller will pay Principal Broker the fee specified by
separate written commission agreement between
Principal Broker and Seller. Principal Broker will
pay Cooperating Broker the fee specified in the
Agreement Between Brokers found below the parties'
signatures to this contract.
[X] (2) At the closing of this sale, Seller will pay:
Cooperating Broker a Principal Broker a
total cash fee of: total cash fee of:
[X] 2.000 % of the sales [X] 2.000 % of the
price. sales price.
The cash fees will be paid in Xxxxxx County, Texas.
Seller authorizes escrow agent to pay the brokers
from the Seller's proceeds at closing.
NOTICE: Chapter 62, Texas Property Code, authorizes a
broker to secure an earned commission with a lien
against the Property.
C. The parties may not amend this Paragraph 8 without the written
consent of the brokers affected by the amendment.
9. CLOSING:
A. The closing of the sale will be on or before 45 days from
effective date of contract or within 7 days after objections
to title have been cured, whichever date is later (the closing
date). If either party fails to close by the closing date, the
non-defaulting party may exercise the remedies in Paragraph
15.
Initialed for Identification by Buyer JD Seller AK Page 6 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
B. At closing, Seller will execute and deliver, at Seller's
expense, a [X] general [ ] special warranty deed. The deed
must include a vendor's lien if any part of the sales price is
financed. The deed must convey good and indefeasible title to
the Property and show no exceptions other than those permitted
under Paragraph 6 or other provisions of this contract. Seller
must convey the Property at closing:
(1) with no liens, assessments, or Uniform Commercial
Code or other security interests against the Property
which will not be satisfied out of the sales price
unless securing loans Buyer assumes;
(2) without any assumed loans in default; and
(3) with no persons in possession of any part of the
Property as lessees, tenants at sufferance, or
trespassers except tenants under the written leases
assigned to Buyer under this contract.
C. At closing, Seller, at Seller's expense, will also deliver:
(1) tax statements showing no delinquent taxes on the
Property;
(2) a xxxx of sale with warranties to title conveying
title, free and clear of all liens, to any personal
property defined as part of the Property in Paragraph
2 or sold under this contract;
(3) an assignment of all leases to or on the Property;
(4) to the extent that the following items are
assignable, an assignment to Buyer of the following
items as they relate to the Property or its
operations:
(a) licenses and permits;
(b) maintenance, management, and other
contracts; and
(c) warranties and guaranties;
(5) a rent roll current on the day of the closing
certified by Seller as true and correct;
(6) evidence that the person executing this contract is
legally capable and authorized to bind Seller; and
(7) any notices, statements, certificates, affidavits,
releases, and other documents required by this
contract, the commitment, or law necessary for the
closing of the sale and the issuance of the title
policy, all of which must be completed and executed
by Seller as necessary.
D. At closing, Buyer will:
(1) pay the sales price in good funds acceptable to the
escrow agent;
(2) deliver evidence that the person executing this
contract is legally capable and authorized to bind
Buyer;
(3) execute and deliver any notices, statements,
certificates, or other documents required by this
contract or law necessary to close the sale.
E. Unless the parties agree otherwise, the closing documents will
be as found in the basic forms in the current edition of the
State Bar of Texas Real Estate Forms Manual without any
additional clauses.
10. POSSESSION: Seller will deliver possession of the Property to Buyer upon
closing and funding of this sale in its present condition with any repairs
Seller is obligated to complete under this contract, ordinary wear and tear
excepted. Until closing, Seller will operate the Property in the same manner as
on the effective date and will not transfer or dispose of any of the personal
property described in Paragraph 2B or sold under this contract. Any possession
by Buyer before closing or by Seller after closing that is not authorized by a
separate written lease agreement is a landlord-tenant at sufferance relationship
between the parties.
11. SPECIAL PROVISIONS: (Identify exhibit if special provisions are contained in
an attachment.) Buyer to cooperate with Seller's 1031 tax free exchange at no
cost to the Buyer. Seller to cooperate with Buyer's 1031 tax free exchange at no
cost to the Seller. A fax signature or initials by either party is binding.
Xxxxxxx Xxxxxxx of the Xxxxx and Xxxxx Company is the listing agent and is
representing the seller in this transaction. One of the sellers is a licensed
real estate agent in Texas. Seller to transfer to Buyer at closing, the
insurance settlement for the hail damage to the property in which the insurance
check is estimated to be over $60,000. Purchaser agrees to wire/send $25,000 of
non-refundable money to the existing lender as soon as the forebearance
agreement is in place.
Initialed for Identification by Buyer JD Seller AK Page 7 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
12. SALES EXPENSES:
A. Seller's Expenses: Seller will pay for the following at or
before closing:
(1) releases of existing liens, other than those liens
assumed by Buyer, including prepayment penalties and
recording fees;
(2) release of Seller's loan liability, if applicable;
(3) tax statements or certificates;
(4) preparation of the deed and any xxxx of sale;
(5) one-half of any escrow fee;
(6) costs to record any documents to cure title
objections that Seller must cure; and
(7) other expenses that Seller will pay under other
provisions of this contract.
B. Buyer's Expenses: Buyer will pay for the following at or
before closing:
(1) all loan expenses (for example, application fees,
origination fees, discount fees, buy-down fees,
commitment fees, appraisal fees, assumption fees,
recording fees, tax service fees, mortgagee title
policy expenses, credit report fees, document
preparation fees, interest expense that Buyer's
lender requires Buyer to pay at closing, loan related
inspection fees, amortization schedule fees, courier
fees, underwriting fees, wire transfer fees, and
other fees required by Buyer's lender);
(2) preparation fees of any deed of trust;
(3) recording fees for the deed and any deed of trust;
(4) premiums for flood and hazard insurance as may be
required by Buyer's lender;
(5) one-half of any escrow fee;
(6) copy and delivery fees for delivery of the title
commitment and related documents; and
(7) other expenses that Buyer will pay under other
provisions of this contract.
13. PRORATIONS, ROLLBACK TAXES, ESTOPPEL CERTIFICATES, RENT, AND DEPOSITS:
A. Prorations:
(1) Interest on any assumed loan, taxes, rents, and any
expense reimbursements from tenants will be prorated
through the closing date.
(2) If the amount of ad valorem taxes for the year in
which the sale closes is not available on the closing
date, taxes will be prorated on the basis of taxes
assessed in the previous year. If the taxes for the
year in which the sale closes vary from the amount
prorated at closing, the parties will adjust the
prorations when the tax statements for the year in
which the sale closes become available. This
Paragraph 13A(2) survives closing.
(3) If Buyer assumes a loan or is taking the Property
subject to an existing lien, Seller will transfer all
reserve deposits held by the lender for the payment
of taxes, insurance premiums, and other charges to
Buyer at closing and Buyer will reimburse such
amounts to Seller by an appropriate adjustment at
closing.
Initialed for Identification by Buyer JD Seller AK Page 8 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
B. Rollback Taxes: If Seller changes the use of the Property
before closing or if a denial of a special valuation on the
Property claimed by Seller results in the assessment of
additional taxes, penalties, or interest (assessments) for
periods before closing, the assessments will be the obligation
of Seller. If this sale or Buyer's use of the Property after
closing results in additional assessments for periods before
closing, the assessments will be the obligation of Buyer. This
Paragraph 13B survives closing.
C. Estoppel Certificates: [section deleted by hand]
D. Rent and Security Deposits: At closing, Seller will tender to
Buyer all security deposits and the following advance payments
received by Seller for periods after closing: prepaid
expenses, advance rental payments, and other advance payments
paid by tenants. Rents prorated to one party but received by
the other party will be remitted by the recipient to the party
to whom it was prorated within 5 days after the rent is
received. This Paragraph 13D survives closing.
14. CASUALTY LOSS AND CONDEMNATION:
A. If any part of the Property is damaged or destroyed by fire or
other casualty after the effective date, Seller must restore
the Property to its previous condition as soon as reasonably
possible and not later than the closing date. If, without
fault, Seller is unable to do so, Buyer may:
(1) terminate this contract and the xxxxxxx money, less
any independent consideration under Paragraph
7B(3)(a), will be refunded to Buyer;
(2) extend the time for performance up to 15 days and the
closing date will be extended as necessary; or
(3) accept at closing:
(i) the Property in its damaged condition;
(ii) an assignment of any insurance proceeds
Seller is entitled to receive along with the
insurer's consent to the assignment; and
(iii) a credit to the sales price in the amount of
any unpaid deductible under the policy for
the loss.
B. If before closing, condemnation proceedings are commenced
against any part of the Property, Buyer may:
(1) terminate this contract by providing written notice
to Seller within 15 days after Buyer is advised of
the condemnation proceedings and the xxxxxxx money,
less any independent consideration under Paragraph
7B(3)(a), will be refunded to Buyer; or
(2) appear and defend the condemnation proceedings and
any award will, at Buyer's election, belong to:
(a) Seller and the sales price will be reduced
by the same amount; or
(b) Buyer and the sales price will not be
reduced.
Initialed for Identification by Buyer JD Seller AK Page 9 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
15. DEFAULT:
A. If Buyer fails to comply with this contract, Buyer is in
default and Seller may:
(1) terminate this contract and receive the xxxxxxx money
as liquidated damages, thereby releasing the parties
from this contract; or
(2) enforce specific performance, or seek other relief as
may be provided by law, or both.
B. If, without fault, Seller is unable within the time allowed to
deliver the estoppel certificates or the commitment, Buyer
may:
(1) terminate this contract and receive the xxxxxxx
money, less any independent consideration under
Paragraph 7B(3)(a), as the sole remedy; or
(2) extend the time for performance up to 15 days and the
closing will be extended as necessary.
C. Except as provided in Paragraph 15B, if Seller fails to comply
with this contract, Seller is in default and Buyer may:
(1) terminate this contract and receive the xxxxxxx
money, less any independent consideration under
Paragraph 7B(3)(a), as liquidated damages, thereby
releasing the parties from this contract; or
(2) enforce specific performance, or seek such other
relief as may be provided by law, or both.
16. ATTORNEY'S FEES: If Buyer, Seller, any broker, or any escrow agent is a
prevailing party in any legal proceeding brought under or with relation to this
contract or this transaction, such party is entitled to recover from the
non-prevailing parties all costs of such proceeding and reasonable attorney's
fees. This Paragraph 16 survives termination of this contract.
17. ESCROW:
A. At closing, the xxxxxxx money will be applied first to any
cash down payment, then to Buyer's closing costs, and any
excess will be refunded to Buyer.
B. If both parties make written demand for the xxxxxxx money,
escrow agent may require payment of unpaid expenses incurred
on behalf of the parties and a written release of liability of
escrow agent from all parties.
C. If one party makes written demand for the xxxxxxx money,
escrow agent will give notice of the demand by providing to
the other party a copy of the demand. If escrow agent does not
receive written objection to the demand from the other party
within 30 days after the date escrow agent sent the demand to
the other party, escrow agent may disburse the xxxxxxx money
to the party making demand, reduced by the amount of unpaid
expenses incurred on behalf of the party receiving the xxxxxxx
money and escrow agent may pay the same to the creditors.
D. Escrow agent will deduct any independent consideration under
Paragraph 7B(3)(a) before disbursing any xxxxxxx money to
Buyer and will pay the independent consideration to Seller.
E. If escrow agent complies with this Paragraph 17, each party
hereby releases escrow agent from all claims related to the
disbursal of the xxxxxxx money.
F. Notices under this Paragraph 17 must be sent by certified
mail, return receipt requested. Notices to escrow agent are
effective upon receipt by escrow agent.
18. MATERIAL FACTS:
A. To the best of Seller's knowledge and belief: (Check (1) or
(2) only.)
Initialed for Identification by Buyer JD Seller AK Page 10 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
[ ] (1) Seller is not aware of any material defects to the
Property except as stated in the attached Property
Condition Statement.
[X] (2) Seller is not aware of any of the following, except
as described otherwise in this contract:
(a) any subsurface: structures, pits, waste,
springs, or improvements;
(b) any pending or threatened litigation,
condemnation, or assessment affecting the
Property;
(c) any environmental hazards or conditions that
affect the Property;
(d) whether the Property is or has been used for
the storage or disposal of hazardous
materials or toxic waste, a dump site or
landfill, or any underground tanks or
containers;
(e) whether radon, asbestos insulation or
fireproofing, urea-formaldehyde foam
insulation, lead-based paint, toxic mold (to
the extent that it adversely affects the
health of ordinary occupants), or other
pollutants or contaminants of any nature now
exist or ever existed on the Property;
(f) whether wetlands, as defined by federal or
state law or regulation, are on the
Property;
(g) whether threatened or endangered species or
their habitat are on the Property; and
(h) any material physical defects in the
improvements on the Property.
(Describe any exceptions to (a)-(g) in Paragraph 11
or an addendum.)
B. Each written lease Seller is to furnish to Buyer under this
contract must be in full force and effect according to its
terms without amendment or modification that is not disclosed
to Buyer in writing. Seller must disclose, in writing, to
Buyer if any of the following exist at the xxxx Xxxxxx
provides the leases to the Buyer or subsequently occur before
closing:
(1) any modifications, amendments, or default by landlord
or tenant under the leases;
(2) any failure by Seller to comply with Seller's
obligations under the leases;
(3) any circumstances under any lease that entitle the
tenant to terminate the lease or seek any offsets or
damages;
(4) any non-occupancy of the leased premises by a tenant;
(5) any advance sums paid by a tenant under any lease;
(6) any concessions, bonuses, free rents, rebates,
brokerage commissions, or other matters that affect
any lease; and
(7) any amounts payable under the leases that have been
assigned or encumbered, except as security for
loan(s) assumed or taken subject to under this
contract.
19. NOTICES: All notices between the parties under this contract must be in
writing and are effective when hand-delivered, mailed by certified mail return
receipt requested, or sent by facsimile transmission to the parties addresses or
facsimile numbers stated in Paragraph 1. The parties will send copies of any
notices to the broker representing the party to whom the notices are sent.
20. FEDERAL TAX REQUIREMENT: If Seller is a "foreign person" as defined by
applicable law, or if Seller fails to deliver at closing an affidavit that
Seller is not a foreign person, then Buyer will withhold from the sales proceeds
at closing an amount sufficient to comply with applicable tax law and deliver
the amount withheld to the Internal Revenue Service (IRS), together with
appropriate tax forms. IRS regulations require filing written reports if
currency in excess of specified amounts is received in the transaction.
21. DISPUTE RESOLUTION: The parties agree to negotiate in good faith in an
effort to resolve any dispute related to this contract that may arise. If the
dispute cannot be resolved by negotiation, the parties will submit the dispute
to mediation before resorting to arbitration or litigation and will equally
share the costs of a mutually acceptable mediator. This paragraph survives
termination of this contract. This paragraph does not preclude a party from
seeking equitable relief from a court of competent jurisdiction.
22. AGREEMENT OF THE PARTIES:
A. This contract is binding on the parties, their heirs,
executors, representatives, successors, and permitted assigns.
Initialed for Identification by Buyer JD Seller AK Page 11 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
B. This contract is to be construed in accordance with the laws
of the State of Texas.
C. This contract contains the entire agreement of the parties and
may not be changed except in writing.
D. If this contract is executed in a number of identical
counterparts, each counterpart is an original and all
counterparts, collectively, constitute one agreement.
E. Buyer [X] may [ ] may not assign this contract. If Buyer
assigns this contract, Buyer will be relieved of any future
liability under this contract only if the assignee assumes, in
writing, all of Buyer's obligations under this contract.
F Addenda which are part of this contract are: (Check all that
apply.)
[ ] (1) Property Description Exhibit identified in Paragraph
2;
[ ] (2) Condominium Addendum;
[ ] (3) Financing Addendum;
[ ] (4) Commercial Property Condition Statement;
[ ] (5) Addendum for Seller's Disclosure of Information on
Lead-Based Paint and Lead-Based Paint Hazards;
[ ] (6) Notice to Purchaser of Real Property in a Water
District (MUD);
[ ] (7) Addendum for Coastal Area Property;
[ ] (8) Addendum for Property Located Seaward of the Gulf
Intracoastal Waterway; and
[ ] (9) ____________________________________________________.
(Note: Counsel for the Texas Association of REALTORS(R) (TAR)
has determined that any of the foregoing addendum which are
promulgated by the Texas Real Estate Commission (TREC) or
published by TAR are appropriate for use with this form.)
23. TIME: Time is of the essence in this contract. The parties require strict
compliance with the times for performance. If the last day to perform under a
provision of this contract falls on a Saturday, Sunday, or legal holiday, the
time for performance is extended until the end of the next day which is not a
Saturday, Sunday, or legal holiday.
24. EFFECTIVE DATE: The effective date of this contract for the purpose of
performance of all obligations is the date the escrow agent receipts this
contract after all parties execute this contract.
25. ADDITIONAL NOTICES:
A. Buyer should have an abstract covering the Property examined
by an attorney of Buyer's selection, or Buyer should be
furnished with or obtain a title policy.
B. If the Property is situated in a utility or other statutorily
created district providing water, sewer, drainage, or flood
control facilities and services, Chapter 49, Texas Water Code,
requires Seller to deliver and Buyer to sign the statutory
notice relating to the tax rate, bonded indebtedness, or
standby fees of the district before final execution of this
contract.
C. If the Property adjoins or shares a common boundary with the
tidally influenced submerged lands of the state, ss.33.135,
Texas Natural Resources Code, requires a notice regarding
coastal area property to be included as part of this contract.
D. If the Property is located seaward of the Gulf Intracoastal
Waterway, ss.61.025, Texas Natural Resources Code, requires a
notice regarding the seaward location of the Property to be
included as part of this contract.
Initialed for Identification by Buyer JD Seller AK Page 12 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
E. If the Property is located outside the limits of a
municipality, the Property may now or later be included in the
extra-territorial jurisdiction (ETJ) of a municipality and may
now or later be subject to annexation by the municipality.
Each municipality maintains a map that depicts its boundaries
and ETJ. To determine if the Property is located within a
municipality's ETJ, Buyer should contact all municipalities
located in the general proximity of the Property for further
information.
F. If apartments or other residential units are on the Property
and the units were built before 1978, federal law requires a
lead-based paint and hazard disclosure statement to be made
part of this contract.
G. Brokers are not qualified to perform property inspections,
surveys, engineering studies, environmental assessments, or
inspections to determine compliance with zoning, governmental
regulations, or laws. Buyer should seek experts to perform
such services. Selection of experts, inspectors, and repairmen
is the responsibility of Buyer and not the brokers.
26. CONTRACT AS OFFER: The execution of this contract by the first party
constitutes an offer to buy or sell the Property. Unless the other party accepts
the offer by 5:00 p.m., in the time zone in which the Property is located, on
June 3, 2005 the offer will lapse and become null and void.
READ THIS CONTRACT CAREFULLY. The brokers and agents make no representation or
recommendation as to the legal sufficiency, legal effect, or tax consequences of
this document or transaction. CONSULT your attorney BEFORE signing.
Buyer's Attorney is ____________________ Seller's Attorney is _______________
Buyer: /s/ Xxxx XxXxxxxx Seller: /s/ Xxxxx Xxxxxx
By: By:
Printed Name: Xxxx XxXxxxxx Printed Name: Xxxxx Xxxxxx
Title: Title:
Buyer: Seller:
By: By:
Printed Name: Printed Name:
Title: Title:
Initialed for Identification by Buyer JD Seller AK Page 13 of 14
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
AGREEMENT BETWEEN BROKERS
Principal Broker agrees to pay _____ (Cooperating Broker) a fee of $_____ or
____% of the sales price when the Principal Broker's fee is received. Escrow
agent is authorized and directed to pay Cooperating Broker from Principal
Broker's fee at closing. This Agreement Between Brokers supersedes any prior
offers and agreements for compensation between brokers.
Cooperating Broker Principal Broker
By: By:
ESCROW RECEIPT
Escrow agent acknowledges receipt of:
[X] A. the contract on this day June 1, 2005 (effective date);
[ ] X. xxxxxxx money in the amount of $_____ in the form of _____ on _____.
Escrow Agent: Address:
By:
Phone: Fax:
Initialed for Identification by Buyer JD Seller AK Page 14 of 14
TEXAS ASSOCIATION OF REALTORS(R)
COMMERCIAL CONTRACT AMENDMENT
AMENDMENT TO COMMERCIAL CONTRACT BETWEEN THE UNDERSIGNED BUYER AND SELLER
CONCERNING THE PROPERTY AT:
0000 Xxxxxxx Xx., Xxxxxx, XX 00000
Seller and Buyer amend the contract as follows: (Check all applicable boxes.)
[ ] A. Sales Price. The sales price in Paragraph 3 of the contract is
changed to:
Cash portion payable by Buyer at closing $_____
Sum of all financing described in the contract $_____
Sales price (sum of cash portion and sum of all
financing) $_____
[ ] B. Property Description. The sales Property's legal description
in Paragraph 2A of the contract is changed to:
[ ] C. Repairs. Buyer accepts the Property in its present condition
except that Seller, at Seller's expense, will complete the
following before closing:
Initialed for Identification by Buyer JD Seller AK Page 1 of 2
Commercial Contract - Improved Property concerning 0000 Xxxxxxx Xx., Xxxxxx,
XX 00000
[ ] D. Extension of Feasibility Period. Buyer's right to terminate
under Paragraph 7B(3) of the contract is extended until 11:59
p.m. on _____. (Check only one box.)
[ ] (1) The independent consideration for Buyer's right to
terminate, that will be deducted from the xxxxxxx
money if Buyer terminates the contract under
Paragraph 7B(3)(a), is increased to a total amount of
$_____. (Insert an amount that is greater than the
amount sated in Paragraph 7B(3)(a) of the contract).
[ ] (2) Buyer has paid Seller an additional non-refundable
fee of $_____ for the extension.
[ ] E. Closing. The closing date in Paragraph 9A of the contract is
changed to _____.
[ ] F. Expenses. At closing Seller will pay the first $_____ of
Buyer's expenses under Paragraph 12 of the contract.
[ ] G. Waiver of Right to Terminate. Upon final acceptance of this
Amendment, Buyer waives the right to terminate under Paragraph
7B(3) of the contract.
[ ] H. Other Modifications. Both Buyer and Seller agree, that the
$20,000 xxxxxxx money will be held by the lender. Also, the
$20,000 xxxxxxx money has become non-refundable to the Seller.
At closing, the Seller shall credit the $20,000 xxxxxxx to the
purchase price for the Purchaser.
Buyer: /s/ Xxxx XxXxxxxx Seller: /s/ Xxxxx X. Xxxxxx
By: By:
Printed Name: Xxxx XxXxxxxx Printed Name: Xxxxx X. Xxxxxx
Title: Title:
Buyer: Seller:
By: By:
Printed Name: Printed Name:
Title: Title:
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