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EXHIBIT 10.14
XXXXXXX MONEY CONTRACT
THIS CONTRACT is made by and between XXXXXX XXXXXX, XXXX X. XXXXXX,
XXXXXXX XXXXXX AND XXXXX XXXXX (collectively, whether one or more, the "Seller")
and UNITED INVESTORS REALTY TRUST, a Texas real estate investment trust
("Buyer"). In consideration of the agreements herein contained and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
ARTICLE I
The Property
Subject to the terms and provisions of this Contract, Seller agrees to
sell to Buyer, and Buyer agrees to purchase from Seller, all of the following
described property (collectively, the "Property"):
(a) A certain tract of land located in Bexar County, Texas,
being described more fully on Exhibit "A" which is attached hereto and
incorporated herein by reference ( the "Land"). The Land also includes
any interest of Seller in and to (i) any strips or gores between the
property described on Exhibit "A" and all abutting properties and (ii)
any land lying in or under the bed of any street, alley, road or right
of way, opened or proposed, abutting or adjacent to the Land;
(b) Any and all buildings, fixtures, improvements, structures
and personal property situated on the Land;
(c) All rights in and to roads, rights-of-way, ingress and
egress easements relating to the Land, and all other rights of access
thereto;
(d) All mineral rights owned and held by Seller relating to
the Land, whether surface or subsurface, or otherwise;
(e) All site plans, surveys, soil and substrata studies, plans
and specifications, engineering plans and studies and other plans,
diagrams or studies of any kind, if any, in Seller's possession or
control which relate to the Land;
(f) All rights, privileges, tenements, hereditaments,
reversionary interests, appendages, appurtenances, riparian or littoral
rights belonging in or in anywise appertaining to the Land; and
(g) All rights, titles and interests of Seller in and to any
award or awards heretofore or hereafter made by any municipal, county,
state or federal authority or board to the present and all subsequent
owners of the Land.
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ARTICLE II
Purchase Price
2.1 Purchase Price. The total purchase price ("Purchase Price") for the
Property equals the sum of Three Million Two Hundred Twenty-Two Thousand Nine
Hundred and No/100 Dollars ($3,222,900.00), subject to adjustment as provided in
Section 3.2 hereof, payable in cash in full at Closing.
2.2 Xxxxxxx Money Deposit. On the date of this Contract, Buyer hereby
delivers to Alamo Title Company, 000 Xxxx Xxxxx Xxxx, Xxx Xxxxxxx, Xxxxx 00000,
Attn. Xxx Xxxxxx (the "Title Company"), the sum of $50,000.00 as Buyer's Xxxxxxx
Money Deposit (herein so called) which shall be held by the Title Company in
escrow in an interest-bearing account. Interest earned thereon shall be held for
the benefit of Buyer, provided that at the Closing, the xxxxxxx money deposit
and interest thereon shall be credited against the Purchase Price. If the
Closing is not held by reason of a Permitted Termination, the Xxxxxxx Money
Deposit and interest shall be returned to Buyer. If the Closing is not held for
any other reason, the Xxxxxxx Money Deposit shall be disbursed as provided for
herein and the interest shall be paid to the party otherwise entitled to receive
the Xxxxxxx Money Deposit.
ARTICLE III
Title, and Survey
3.1 Title Commitment. Seller shall, as soon as possible but not later
than fifteen (15) days from the date of this Contract, cause to be furnished to
Buyer a current standard Texas form of Commitment for Owner Policy of Title
Insurance (the "Title Commitment"), issued through the Title Company, describing
the Land (which legal description, unless and to the extent modified by the
survey prescribed in Section 3.2 below, shall be deemed incorporated into this
Contract), listing Buyer as the prospective named insured and showing as the
policy amount the Purchase Price for the Property. With regard to the standard
printed exceptions and other common exceptions generally included in the Title
Commitment:
(a) The exception for restrictive covenants shall be annotated
either "None of Record" or "None of Record except the Permitted
Exceptions, as provided in Section 3.3 hereof;
(b) The exception for area and boundaries shall be annotated
to show that upon receipt by the Title Company of a satisfactory survey
the exception will at the Closing be limited to "shortages in area";
(c) The exception for ad valorem taxes shall reflect only
taxes for the current year and shall be annotated "Not yet due and
payable";
(d) There shall be no exception for "visible and apparent
easements," for "public or private roads" or similar matters;
(e) There shall be no exception for "rights of parties in
possession"; and
(f) There shall be no exception for mineral reservations or
for oil or gas pipelines.
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3.2 Survey. Seller agrees to deliver to Buyer a copy of its existing
survey of the Property within five days of the execution of this Contract.
Thereafter, Buyer agrees to cause to be prepared and furnished to Seller and the
Title Company either an update of the aforementioned existing survey of the
Property or a new survey, prepared by a Registered Public Surveyor (the
"Surveyor") acceptable to Seller and to the Title Company (the"Survey"). The
cost of the Survey shall be initially borne by the Buyer, but Seller will
reimburse Buyer for the cost of same (but only up to the amount of $2,000.00) if
the sale contemplated hereby is consummated. To the extent requested by Buyer,
the Surveyor shall:
(a) Xxxx and permanently monument all of the boundaries of the
Property with substantial iron stakes in a manner which is consistent
with the highest standards of the industry;
(b) Compute and certify in writing to the total area in gross
square feet of the Property;
(c) Compute and certify in writing to the area in square feet
net of each easement, encumbrance or servitude, if any, which affects
the Property and the total gross square feet of the Property;
(d) Prepare an on-the-ground Category 1-A survey of the
Property reflecting the perimeter of the Property, accurately
reflecting each and every easement, encumbrance or servitude affecting
the Property, all improvements or other structures situated thereon and
such other matters as would normally be reflected by a plat or survey
prepared in conformity with the highest standards of the industry;
(e) Prepare a current metes and bounds description of the
Property; and
(f) Certify on the Survey as follows:
"The undersigned does hereby certify that (i) this survey was
this day made upon the ground of the property reflected
hereon, for the benefit of and reliance by Seller, Buyer, and
the Title Company, (ii) the description contained hereon is
correct, (iii) the property has access to and from a dedicated
roadway as shown hereon, (iv) except as shown hereon, there
are no discrepancies, conflicts, shortages in area,
encroachments, improvements, overlapping of improvements,
set-back lines, easements, or roadways, (v) the total acreage
and the gross and net square footage shown hereon are correct,
(vi) none of the Property lies within the 100 year flood plain
or any special flood hazard area or general hazard area as
designated by governmental agency except as shown hereon and
(vii) there is no physical evidence of possession of the
property by any party except as shown hereon."
The Survey must be satisfactory to the Title Company so as to permit it to amend
the area and boundary exception in the Owner's Title Policy to be issued to
Buyer as required herein. Buyer, if it desires, shall provide the Surveyor with
a copy of this Section 3.2 when the survey is ordered. For the purposes of this
Contract, "net square feet" means the number of square feet contained within the
boundary lines of the Property, exclusive of all land lying within any existing
or xxxxxxxx xxxxxxx, xxxxx,
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alleys, rights-of-way, easements, creeks, flood plain, water course, boundary
dispute or encroachment on or affecting the Property. The Purchase Price for the
Property shall be adjusted at the time of Closing so that such Purchase Price
shall be an amount equal to Nine Dollars ($9.00) multiplied by the number of
total gross square feet shown by such Surveyor's certification.
3.3 Review of Title and Survey. Buyer shall have a period (the "Title
Review Period") ending fifteen (15) days after the date on which Buyer receives
the last to be received as among (i) the Title Commitment, (ii) legible true
copies of all instruments referred to in the Title Commitment and (iii) the
Survey required in Section 3.2 hereof, in which to notify Seller of any
objections Buyer has to any matters shown or referred to in the Title Commitment
or the Survey, but in no event shall the Title Review Period extend beyond the
expiration of the initial 40-day Feasibility Period. Any title encumbrances or
exceptions which are set forth in the Title Commitment or the Survey and to
which Buyer does not object on or prior to the last day of the Title Review
Period shall be deemed to be permitted exceptions to the status of Seller's
title (the "Permitted Exceptions"), provided, however, that none of the
exceptions prohibited in this Contract shall be Permitted Exceptions. With
regard to items to which Buyer does object within the Title Review Period,
Seller shall have a period of ten (10) days from the date of its receipt of
Buyer's objections in which to cure such objections. If Seller is unable or
unwilling to cure such objections or fails to notify Buyer of such cure within
the ten (10) day period, Buyer may at its option waive the objections not cured
(whereupon such objections shall become Permitted Exceptions) or terminate this
Contract by written notice to Seller within five(5) days after expiration of
said ten day period.
3.4 Reports. Within 5 days of the date of this Contract, Seller agrees
to furnish to Buyer copies of all site plans, surveys, environmental reports,
plans and studies in its possession which relate to the Property.
ARTICLE IV
Representations and Warranties
4.1 Representations and Warranties of Seller.
Seller, to its current actual knowledge and belief, no diligent inquiry
or assessments having been made by or on behalf of Seller, hereby represents and
warrants as of the date hereof and as of the Closing Date that:
(a) There are no contracts or agreements outstanding (whether
for sale, exchange or otherwise) which affect any portion of the
Property or its operation;
(b) The current ownership, operation, use and occupancy of the
Property does not violate any zoning, building, health, flood control,
fire or other law, ordinance, order or regulation or any restrictive
covenant. There are no violations of any federal, state, county or
municipal law, ordinance, order, regulation or requirement, affecting
any portion of the Property and no written notice of any such violation
has been issued by any governmental authority;
(c) There is no action, suit, proceeding or claim affecting
the Property or any portion thereof, nor affecting Seller or relating
to the ownership, operation, use or occupancy of the Property pending
or being prosecuted in any court or by or before any federal, state,
county, or municipal department, commission, board, bureau or agency or
other governmental
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instrumentality nor is any such action, suit, proceeding or claim
threatened or being asserted. There is no proceeding pending or
presently being prosecuted for the reduction of the assessed valuation
of taxes or other assessments payable in respect of any portion of the
Property;
(d) No portion of the Property is the subject of any actual or
proposed condemnation or eminent domain proceeding, or any other
litigation or proceeding, (whether for widening of streets,
installation of utilities or otherwise affecting the Property or any
portion thereof, and Seller has not received any written notice that
any such proceeding is contemplated);
(e) There is ingress and egress, for vehicular and pedestrian
traffic, to and from the Property from a public street or streets;
(f) No Hazardous Material (as defined below) has been
installed, used, generated, manufactured, treated, handled, refined,
produced, processed, stored or disposed of, in, on or under the
Property, including without limitation, the surface and subsurface
waters of the Property except in compliance with Hazardous Material
Law, nor has any activity been undertaken on or adjacent to the
Property which would cause (i) the Property to become a hazardous
waste treatment, storage or disposal facility within the meaning of,
or otherwise bring the Property within, any Hazardous Material Law (as
defined below), (ii) a release or threatened release of Hazardous
Material from or on to the Property within the meaning of, or
otherwise bring the Property under, any Hazardous Material Law, or
(iii) the discharge of Hazardous Material which would require a permit
under any Hazardous Material Law. There are no conditions with respect
to the Property which would cause a violation or support a claim under
any Hazardous Material Law, and no underground storage tanks or
underground deposits of Hazardous Materials are located on the
Property. For purposes of this representation, "Hazardous Materials"
means and includes asbestos or any substance containing asbestos,
polychlorinated biphenyls, any explosives, radioactive materials,
chemicals known or suspected to cause cancer or reproductive toxicity,
pollutants, effluents, contaminants, emissions, infectious wastes, any
petroleum or petroleum-derived waste or product or related materials
and any items defined as hazardous, special or toxic materials,
substances or waste under any Hazardous Material Law, or any material
which shall be removed from the Property pursuant to any
administrative order or enforcement proceeding or in order to place
the Property in a condition that is suitable for ordinary use.
"Hazardous Material Laws" means and includes any present local, state,
federal or international law or treaty relating to public health,
safety or the environment including without limitation, the Resource
Conservation and Recovery Act, as amended ("RCRA"), 42 U.S.C. ss.6901
et seq., the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA"), 42 U.S.C. ss.9601 et seq., as amended by the
Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the
Hazardous Materials Transportation Act, 49 U.S.C. ss.1801 et seq., the
Clean Water Act, 33 U.S.C. ss.1251 et seq., the Clean Air Act, as
amended 42 U.S.C. ss.7401 et seq., the Toxic Substances Control Act,
15 U.S.C. ss.2601 et seq., the Safe Drinking Water Act, 42 U.S.C.
ss.300f et seq., the National Environmental Policy Act, 42 U.S.C.
ss.4321 et seq., the Noise Control Act, 42 U.S.C. ss.4901 et seq., and
the Emergency Planning and Community Right-to-Know Act, 42 U.S.C.
ss.11001 et seq., and the amendments, regulations, orders, decrees,
permits, licenses or deed restrictions now or hereafter promulgated
thereunder;
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(g) Seller is not prohibited from consummating the
transactions contemplated in this Contract, by any law, regulation,
agreement, instrument, restriction, order or judgment;
(h) There are no adverse parties in possession of the Property
or of any part thereof and no parties in possession thereof except
Seller, and no party has been granted any license, lease, or other
right relating to the use or possession of the Property;
(i) There are no attachments, executions, assignments for the
benefit of creditors, receiverships, Conservatorship or voluntary or
involuntary proceedings in bankruptcy or pursuant to any other debtor
relief laws contemplated or filed by Seller or pending against Seller
or the Property;
(j) Seller will completely discharge at or prior to Closing
(whether or not payable in installments or otherwise) any liens,
charges, security interests or other encumbrances affecting the
Property, other than assessments levied by local municipal authorities;
(k) No part of the Property lies within the portion of a flood
plain which has been designated and established as an "area of special
flood hazard" or "special hazard area" (as defined in 44 CFR 59.1) by
the most recent Flood Hazard Boundary Map or Flood Insurance Rate Map
applicable to the Property and issued by the Federal Emergency
Management Agency in connection with the National Flood Insurance
Program;
(l) No portion of the Property has been designated or assessed
for "agricultural use" or as "qualified open space land" within the
meanings of Article VIII, section 1-d or section x-x-1 of the Texas
Constitution, or the statutes codified as Section 23.46 or 23.55 of the
Texas Property Tax Code, as amended, for any period of time during
which Seller has owned the Property;
(m) There are no surface or subsurface faults, fissures or
other major geological defects or flaws which detrimentally affect the
Property;
(n) Seller has full right, title and authority to enter into
this Contract, and that no other party has any right, option, interest,
or claim to all or any part of the Property, whether subject to xxxxxxx
money contract, option agreement, right of first refusal, reversionary
or future interests, or right of reverter; and
(o) Seller is not a foreign person or entity pursuant to the
Foreign Investment in Real Property Tax Act, or the Tax Reform Act of
1984, and Buyer is not obligated to withhold any portion of the
Purchase Price for the benefit of the Internal Revenue Service.
All of Seller's warranties and representations shall survive any inspection or
investigation made by or on behalf of Buyer, and the Closing of the transaction
contemplated herein, but shall expire for all purposes six (6) months after
Closing.
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ARTICLE V
Conditions Precedent to Buyer's
Obligation to Close
5.1 Buyer's obligation to consummate the transactions contemplated
hereunder is conditioned upon satisfaction of each of the following conditions
at or prior to the Closing (or such earlier date as is specified with respect to
a particular condition):
(a) None of the representations and warranties of Seller set
forth in Article IV hereof shall be untrue or inaccurate in any
material respect.
(b) Seller shall not have failed to perform or comply with any
of its agreements or obligations in any material respect and within the
time periods provided herein.
(c) Buyer has the right to conduct a feasibility study (the
"Feasibility Study") of the Property during the Feasibility Period (as
herein defined). To this end, it is agreed and understood as follows:
(i) Buyer has the right to approve in its sole and absolute
discretion the condition of the Property and all aspects
associated with Buyer's proposed development of the Property,
including all environmental matters, financing, estimated
development, construction and operating costs of the Buyer's
proposed shopping center to be constructed on the Land (the
"Proposed Project"), within forty (40) days from the date
hereof (the "Feasibility Period"). Buyer has the right to
extend the Feasibility Period for an additional thirty (30)
days, as provided in the next subsection 5.1(c)(ii).
Inspections of the Property by Buyer or Buyer's
representatives are to be conducted in such a manner as not to
physically damage the Property or unreasonably interfere with
the usual operation of the Property by Seller.
(ii) In respect to the Feasibility Period or the right to
extend the Feasibility Period, it is agreed as follows:
(A) On or before the expiration date of the
Feasibility Period, Buyer has the option either to
(i) give written notice to the Seller and the Title
Company that it desires for this Contract to remain
in full force and effect, whereupon the entirety of
the Xxxxxxx Money Deposit becomes at risk and the
parties are to proceed to Closing; or (ii) give
notice to the Seller and the Title Company that it
exercises its right to extend the Feasibility Period
for an additional 30 days (the "Extended Feasibility
Period"), whereupon $25,000 of the Xxxxxxx Money
Deposit plus interest earned on such portion of the
Xxxxxxx Money Deposit, becomes at risk under the
terms of this Contract. If Buyer does not give any of
the two aforesaid written notices prior to the
expiration of the Feasibility Period, then the
entirety of the Xxxxxxx Money Deposit shall be
refunded to Buyer and the parties are released from
any further liability hereunder.
(B) If the Feasibility Period is extended under the
aforesaid terms, on or before the expiration of the
Extended Feasibility Period, Buyer has the option to
give written notice to the Seller and the Title
Company that it desires for this Contract to remain
in full force and effect, whereupon the entirety of
the Xxxxxxx Money Deposit becomes at risk under the
terms of this Contract and the parties are to proceed
to Closing. If Buyer does not give its written notice
prior to the expiration of the Extended Feasibility
Period, then Buyer instructs and
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authorizes the Title Company to release $25,000 of
the Xxxxxxx Money Deposit plus interest earned on
such portion of the Xxxxxxx Money Deposit, to the
Seller immediately upon Seller's written demand (and
without the necessity of any additional release
executed by Buyer), and the remaining portion of the
Xxxxxxx Money Deposit shall be paid to Buyer and the
parties are released from any further liability
hereunder.
(iii) Seller sends hereby grants to Buyer the right to enter
upon the Property at any reasonable time during the term of
this Contract prior to Closing to make surface or subsurface
inspection thereof, or for other purposes incident to Buyer's
requirements relative to the acquisition and use of the
Property. The Property shall be restored to its present
condition after any tests, at Buyer's sole expense. Buyer
hereby indemnifies Seller against and agrees to defend and
hold Seller harmless from all claims, demands, causes of
action, and suits of any nature whatsoever, arising out of the
inspection of the Property incident to this paragraph, which
indemnity survives for a period of two years after the Closing
or termination of this Contract, notwithstanding anything
contained herein to the contrary. No such examination or
inspection shall be deemed to constitute a waiver or
relinquishment on the part of Buyer of his right to rely on
the covenants, representations, warranties or agreements
contained in this Contract.
(iv) Notwithstanding anything contained herein to the
contrary, if this Contract terminates by virtue of the
provisions of this Section 5.1(c), the Xxxxxxx Money Deposit
and interest thereon shall be paid as provided in this Section
5.1(c), less the sum of Fifty and No/100 Dollars ($50.00) (the
"Option Sum"), which is to be retained by the Seller as
consideration for this Contract, which consideration is deemed
earned as of the date of this Contract.
(d) No geological flaw, fault, or defect, soil condition or
other physical defect which would prevent the Buyer from developing the
Property as the Proposed Project in Buyer's reasonable judgment shall
have been discovered during the Feasibility Period.
If Buyer terminates this Contract, Buyer shall promptly deliver to Seller all
engineering data, environmental reports, site plans and all other due- diligence
materials relating to the Property.
ARTICLE VI
Closing
6.1 Time 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 San Antonio, Texas, thirty (30) days
after the expiration of the Feasibility Period or the Extended Feasibility
Period, if applicable, 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.
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6.2 Events of Closing. At the Closing:
(a) Seller shall deliver to Buyer the following:
(1) A Special Warranty Deed in form and substance
reasonably approved by the parties, but listing only the
Permitted Exceptions as exceptions to title, duly executed and
acknowledged by Seller, conveying to Buyer the Property in
indefeasible fee simple, free and clear of any lien,
encumbrance or exception other than the Permitted Exceptions;
(2) A standard Texas Owner's Policy of Title
Insurance issued by the Title Company conforming to the
requirements of Article III above insuring Buyer's title in
indefeasible fee simple in the amount of the Purchase Price
and containing no exceptions other than the Permitted
Exceptions;
(3) Tax certificates from all taxing authorities
having jurisdiction over the Property, showing payment of all
ad valorem taxes on said Property through the calendar year
preceding the Closing of this purchase and sale;
(4) Possession of the Property;
(5) A UCC search of the Property reflecting no
outstanding security interests affecting the Property;
(6) A written consent of all of the individuals
comprising the Seller in form and substance satisfactory to
Buyer and its counsel, which reflects the authorization of the
transactions herein by Seller and evidence of the authority of
the individual executing the closing documents to execute and
deliver this Contract and the documents provided for
hereunder;
(7) The affidavit in form and substance satisfactory
to Buyer that Seller is not a foreign person or entity subject
to the Foreign Investment in Real Property Tax Act or the Tax
Reform Act of 1984; and
(8) Such other evidence of the authority and
capacity of Seller and its representatives as Buyer or the
Title Company may reasonably require.
(b) Buyer shall deliver the following:
(1) The Purchase Price, as required pursuant to
Section 2.1 above, in immediately available funds, such as
wire transfer or by Buyer's certified or cashier's check, or
Title Company check in U.S. funds;
(2) A copy of a resolution of the Board of Trust
Managers of Buyer, certified under oath by an officer of Buyer
as being a true copy of minutes evidencing then currently
effect action by such board, reflecting, in form and substance
satisfactory to Seller and its counsel, the authorization of
the transactions herein by Buyer and the
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authority of the officer or officers of Buyer to execute and
deliver this Contract and the documents provided for
hereunder; and
(3) Such other evidence of the authority and capacity
of Buyer and its representatives as the Seller or the Title
Company may reasonably require.
6.3 Expenses. Seller shall pay the cost of tax certificates, one-half
of the escrow fee charged by the Title Company, its share of the prorations as
set forth in Section 6.4 hereof, the premium for the Owner's Policy of Title
Insurance (excluding the fee for amending the area and boundary exception) and
its own attorneys' fees. Buyer shall pay its proportionate share of the
prorations as set forth in Section 6.4 hereof, one-half of the escrow fee
charged by the Title Company, the fee for amending the area and boundary
exception, the recording fees for its Special Warranty Deed, the cost of the
Survey (subject to Seller's reimbursement of up to $2,000.00 if Closing occurs),
the cost of the UCC search, and its own attorneys fees. Except as otherwise
provided in this Section, all other expenses hereunder shall be paid by the
party incurring such expenses. Additionally, any expenses, charges and fees of
closing, not specifically allocated herein or incurred by a specific party,
shall be borne by the parties according to general custom in San Antonio, Texas,
or, if no such custom exists, shall be borne equally between the parties.
6.4 Prorations. Rental income, if any, and personal property ad valorem
taxes, if any, prorated to the Closing, based upon actual calendar days
involved. Seller shall be responsible for all ad valorem taxes for any period
prior to and including the date of Closing. Buyer shall receive credit on the
amount of the cash payments to be made by Buyer pursuant hereto for the prorated
amount thereof chargeable to Seller. In connection with the proration of both
real and personal property ad valorem taxes, if actual tax figures for the year
of closing are not available at the Closing Date, a final proration of taxes
shall be made using tax figures from the current year. Seller shall, on or
before the Closing Date, furnish to Buyer and the Title Company all information
necessary to compute the prorations provided for in this Section. All special
taxes and assessments to the date of Closing, and any "roll-back" taxes
contemplated under Section 4.1(n), shall be paid by Seller.
In the event any property taxes levied against the Property have been
deferred pursuant to Section 23.46 or Section 23.55 of the Texas Property Tax
Code, as may be amended from time to time, or any similar law and this sale or
change in the use of the Property causes the amount of the deferred taxes to
become payable, Seller shall reimburse Buyer upon demand for the amount of such
deferred taxes plus any interest and penalty charged thereon. This Section 6.4
shall survive the Closing.
ARTICLE VII
Damage and Condemnation to Property
Seller agrees to give Buyer prompt written notice of any fire or
casualty affecting the Property between the date hereof and the Date of Closing
or of any actual or threatened taking or condemnation of all or any portion of
the Property. If prior to the Closing there occurs the taking or condemnation of
all or any portion of the Property, or notice of such action is delivered, or a
casualty shall occur that materially affects the Property, in such event Buyer
may at its option terminate this Contract by notice to Seller within twenty (20)
days after Buyer has received the notice referred to above or at the Closing,
whichever is earlier. If Buyer does not so elect to terminate this Contract,
then the Closing shall take place as provided herein but the amount of the
condemnation award or insurance proceeds actually
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received by Seller shall be credited to the Purchase Price. All risk of loss
contemplated by this Article VII shall be borne by Seller until acceptance by
Buyer of delivery of Seller's deed at the Closing.
ARTICLE VIII
Termination, Default and Remedies
8.1 Permitted Termination. If this Contract is terminated by either
party pursuant to a right expressly given it to do so hereunder (a "Permitted
Termination"), except as otherwise expressly provided in Section 5.1 hereof, the
Xxxxxxx Money Deposit and interest thereon shall immediately be returned to
Buyer (less the Option Sum, as prescribed in Section 5.1(c)(v) hereof), and
neither party have any further rights or obligations hereunder, except as to the
indemnity given by Buyer in Section 5.1(c) hereof. Seller and Buyer are entitled
to any interest earned on the portion of the Xxxxxxx Money Deposit paid to them
under the provisions of Section 5.1(c)(ii).
8.2 Default by Seller. (a) Seller is in default hereunder upon the
occurrence of any one or more of the following events:
(1) Any of Seller's warranties or representations set
forth herein are untrue or inaccurate in any material respect; or
(2) Seller fails to meet, comply with or perform any covenant,
agreement, or obligation on its part required, within the time limits
and in the manner required in this Contract, for any reason other than
a Permitted Termination.
(b) If Seller defaults hereunder, Buyer may, at Buyer option, do any of
the following:
(1) Terminate this Contract by written notice delivered to
Seller at or prior to the Closing and receive a refund of the Xxxxxxx
Money Deposit and interest thereon;
(2) Enforce specific performance of this Contract against
Seller; or
(3) In addition to and not to the exclusion of the remedy in
subparagraph (1) immediately above, bring an action against Seller for
damages, provided, however, that this remedy shall be available to
Buyer only if Seller has conveyed or encumbered the Property in
violation of the terms hereof.
8.3 Default by Buyer. Buyer is in default hereunder if Buyer fails to
deliver at the Closing any of the items required of Buyer in Article VI hereof,
for any reason other than a default by Seller hereunder or a Permitted
Termination. If Buyer defaults hereunder, Seller, as Seller's sole and exclusive
remedy for such default, is entitled to terminate this Contract by written
notice to Buyer and retain Buyer's Xxxxxxx Money Deposit, it being agreed by
Buyer and Seller that such sum represents liquidated damages for a default of
Buyer hereunder because of the difficulty, inconvenience, and uncertainty of
ascertaining actual damages for such default.
8.4 Attorney's Fees. If it shall be necessary for either Buyer or
Seller to employ an attorney to enforce its rights pursuant to this Contract
because of the default of the other party, the defaulting party shall reimburse
the non-defaulting party for reasonable attorney's fees and court costs.
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8.5 Escrow Instructions. If either party hereto becomes entitled to the
xxxxxxx money as liquidated damages, or upon termination of this Contract in
accordance with its terms, Buyer and Seller covenant and agree to deliver a
letter of instruction to the Title Company directing the disbursement of the
Xxxxxxx Money Deposit to the party entitled thereto. If either party hereto
fails or refuses to sign or deliver such an instruction letter when the other
party is entitled to a disbursement of the Xxxxxxx Money Deposit, then the party
so failing or refusing to sign or deliver such letter shall pay, upon the final
order of a court with appropriate jurisdiction stating that such other party is
entitled to a disbursement of the xxxxxxx money, all reasonable attorney's fees
and court costs incurred by the party so entitled to the Xxxxxxx Money Deposit
in connection with its recovery thereof.
ARTICLE IX
Interim Responsibilities of Seller
Seller agrees that during the period between the date of this Contract
and the Closing Date:
(a) Seller may not further encumber the Property in any manner
or permit or suffer the filing or attachment of any lien of mechanic's
or materialmen. If the Property becomes subject to any such liens or
encumbrances in contravention of this subparagraph (a), Buyer may elect
to terminate this Contract or to consummate the transactions
contemplated hereunder and apply the Purchase Price or so much thereof
as may be necessary to retire any such liens or encumbrances;
(b) Seller must maintain Seller's existing insurance coverage,
if any, with respect to the Property from the date hereof through the
Date of Closing or earlier termination of this Contract;
(c) Seller shall not file any restrictive covenants or impose,
by grant or otherwise, any deed restrictions affecting the Property,
grant any licenses, easements or other uses affecting the Property,
without Buyer's prior written consent; nor place or permit to be placed
on the Property any buildings, structure or other improvements, nor
remove or permit to be removed from the Property, any buildings,
structures, trees, shrubbery or other improvements of any kind
whatever, without Buyer's prior written consent; and
(d) Seller may not excavate or permit the excavation of the
Property and may not do or suffer to be done any act whereby the value
of any party of the Property may be lessened.
ARTICLE X
Brokerage Commission
Each party warrants to the other that neither of them nor their agents
or representatives have engaged or contacted any broker with respect to the
transaction contemplated herein, that no brokers have been involved with the
purchase and sale hereunder, and each party agrees to indemnify and hold the
other party harmless from any and all claims for brokerage fees arising out of
its actions. The provisions of this Article survive the Closing for a period of
two years thereafter.
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ARTICLE XI
Miscellaneous
11.1 No Assumption of Seller's Liabilities. Buyer is acquiring only the
Property from Seller and is not the successor of Seller. Buyer does not assume
or agree to pay, or indemnify Seller or any other person or entity against, any
liability, obligation or expense of Seller or relating to the Property in any
way except only to the extent, if any, herein expressly and specifically
provided herein.
11.2 Notices. All notices, demands, requests and other communications
required or permitted hereunder shall be in writing, and shall be deemed to be
delivered and received when actually received, or, if earlier and regardless of
whether actually received, upon deposit in a regularly maintained receptacle for
the United States mail, registered or certified, return receipt requested,
postage fully prepaid, addressed to the addressee at its address set forth
below:
If to Seller: c/o Xxxx K, Xxxxxx
000 Xxxxx Xxxxx Xxxx
Xxx Xxxxxxx, Xxxxx 00000
With a copy to: Gresham, Davis, Xxxxxxx, Worthy & Xxxxx
Attn. Xxxxxxx L, Xxxx
000 Xxxx Xxxxx, Xxxxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
(000) 000-0000
FAX: (000) 000-0000
If to Buyer: United Investors Realty Trust
Attn: Xx. Xxxxxxx X. Xxxxx
0000 Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
(000) 000-0000
FAX: (000) 000-0000
United Investors Realty Trust
Attn. Xx. Xxxxx Xxxxxxx
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
(000) 000-0000
FAX: (000) 000-0000
With a copy to: 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
11.3 Survival. All warranties, representations, indemnities, and
agreements contained herein or arising out of the sale of the Property by Seller
to Buyer shall survive the Closing hereof for a period of six months thereafter,
unless a longer period is expressly stated herein.
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11.4 Governing Law; Venue. The laws of the State of Texas govern the
validity, enforcement, and interpretation of this Contract. The obligations of
the parties are performable and exclusive venue for any legal action arising out
of this Contract lie in Bexar County, Texas.
11.5 Integration; Modification; Waiver. This Contract constitutes the
complete and final expression of the agreement of the parties relating to the
Property, and supersedes all previous contracts, agreements, and understandings
of the parties, either oral or written, relating to the Property. This Contract
cannot be modified, or any of the terms hereof waived, except by an instrument
in writing (referring specifically to this Contract) executed by the party
against whom enforcement of the modification or waiver is sought. The terms and
provisions of this Contract shall not merge with, be extinguished or otherwise
affected by any subsequent conveyance or instrument by or between the parties
hereto unless such instrument shall specifically so state and be signed by both
Buyer and Seller.
11.6 Counterpart Execution. This Contract may be executed in several
counterparts, each of which shall be fully effective as an original and all of
which together shall constitute one and the same instrument.
11.7 Headings; Construction. The headings which have been used
throughout this Contract have been inserted for convenience of reference only
and do not constitute matter to be construed in interpreting this Contract.
Words of any gender used in this Contract shall be held and construed to include
any other gender and words in the singular number shall be held to include the
plural, and vice versa, unless the context requires otherwise. If the last day
of any time period stated herein shall fall on a Saturday, Sunday, legal or
banking holiday, then the duration of such time period shall be extended so that
it shall end on the next succeeding day which is not a Saturday, Sunday, legal
or banking holiday.
11.8 Invalid Provisions. If any one or more of the provisions of this
Contract, or the applicability of any such provision to a specific situation,
shall be held invalid or unenforceable, such provision shall be modified to the
minimum extent necessary to make it or its application valid and enforceable,
and the validity and enforceability of all other provisions of this Contract and
all other applications of any such provision shall not be affected thereby.
11.9 Binding Effect. This Contract shall be binding upon and inure to
the benefit of Seller and Buyer, and their respective heirs, personal
representatives, successors and assigns. Buyer may assign its rights hereunder,
but Buyer shall not be relieved of any duties and obligations hereunder. Except
as expressly provided herein, nothing in this Contract is intended to confer on
any person, other than the parties hereto and their respective heirs, personal
representatives, successors and assigns, any rights or remedies under or by
reason of this Contract.
11.10 Further Acts. In addition to the acts recited in this Contract to
be performed by Seller and Buyer, Seller and Buyer agree to perform or cause to
be performed at the Closing or after the Closing any and all such further acts
as may be reasonably necessary to consummate the transactions contemplated
hereby.
11.11 Date of Contract. The date of this Contract shall for all
purposes be the date of the execution hereof by the Title Company acknowledging
receipt of Buyer's Xxxxxxx Money Deposit.
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11.12 Time. Time is of the essence in this Contract.
11.13 Expiration. This Contract shall be deemed to be null and void and
of no further force and effect unless it is fully executed and accepted by the
Title Company, together with the Xxxxxxx Money Deposit prior to the close of
business on October __, 1997.
SELLER:
/s/ XXXXXX XXXXXX
---------------------------
Xxxxxx Xxxxxx
/s/ XXXX X. XXXXXX
---------------------------
Xxxx X. Xxxxxx
/s/ XXXXXXX XXXXXX
---------------------------
Xxxxxxx Xxxxxx
/s/ XXXXX XXXXX
---------------------------
Xxxxx Xxxxx
Executed by Seller on the _______ day of ________________, 1997.
BUYER: UNITED INVESTORS REALTY TRUST
By: /s/ XXXXXXX X. XXXXX
-----------------------------
Name: Xxxxxxx X. Xxxxx
------------------------
Title: Vice President
-----------------------
Executed by Buyer on the 8th day of October, 1997
RECEIPT OF BUYER'S XXXXXXX MONEY DEPOSIT
IN THE AMOUNT OF $50,000.00, ACKNOWLEDGED
ON THE 13th DAY OF OCTOBER, 1997
ALAMO TITLE COMPANY
By: /s/ XXX XXXXXX by kp
--------------------------------
Title: President
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EXHIBIT "A"
LEGAL DESCRIPTION
An 8.221 acre or 358,100 square foot tract of land out of the B.B.B. &
C.R.R. Survey Number 400, Abstract 99, County Block 4767, consisting of
a portion of the remainder of Xxx 0, Xxxxx 0, Xxx Xxxx Xxxxx 00000,
Xxxxxxx Subdivision as recorded in Volume 8800, Page 19 of the Deed and
Plat Records of Bexar County, Texas. Also consisting of a portion of
the remainder of Xxx 0, Xxxxx 0, Xxx Xxxx Xxxxx 00000, Xxxxxx Oaks
Subdivision as recorded in Volume 8800, Pages 80 and 81 of the
aforesaid Records.
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[XXXX-XXXXXX LETTERHEAD]
FIELD NOTES
FOR
A 8.221 acre or 358,100 square foot, tract of land in the City of San Antonio,
out of the B.B.B. & C.R.R. Survey Number 400, Abstract 99, County Block 4767,
consisting of a portion of the remainder of Xxx 0, Xxxxx 0, Xxx Xxxx Xxxxx
00000, Xxxxxxx Subdivision as recorded in Volume 8800, Page 19 of the Deed and
Plat Records of Bexar County, Texas. Also consisting of a portion of the
remainder of Xxx 0, Xxxxx 0, Xxx Xxxx Xxxxx 00000, Xxxxxx Oaks Subdivision as
recorded in Volume 8800, Pages 80 and 81 of the aforesaid Records. Said 8.221
acres being further described by metes and bound as follows:
BEGINNING: At a 1/2" iron rod with yellow cap marked "Xxxx-Xxxxxx" found
for the southwest end of the curve return of the southeast line
of Xxxxxxx Oaks, variable width right-of-way at its intersection
with the northwest line of Xxxxxxx Road, a 110-foot wide
right-of-way. Same being the southeast corner of the remainder of
said Xxx 0, Xxxxx 0, Xxxxxxx Subdivision and the southeast corner
of the herein described tract;
THENCE: S 41 degrees 47'19"W along and with said northwest line of
Xxxxxxx Road, a distance of 217.44 feet to a 1/2" iron rod found
for the south corner of said remainder of Lot 2, Kinschen
Subdivision, same being the southeast corner of said remainder
of Lot 1, Broken Oaks Subdivision for an angle point of this
tract;
THENCE: S 40 degrees 46'11"W, continuing along and with said northwest
line, a distance of 387.92 feet to a 1/2" iron rod found for the
south corner of said remainder of Lot 1, Broken Oaks Subdivision.
Same being the east corner of Xxx 0, Xxxxx 0, Xxx Xxxx Xxxxx
00000, Xxxxxxxxx Subdivision as recorded in Volume 8700, Page 233
of the aforementioned Deed and Plat Records and the south corner
of this tract;
THENCE: N 24 degrees 43'05"W, departing said northwest line of Xxxxxxx
Road, along and with said common line, passing the north corner
of said Lot 3, Xxxxxxxxx Subdivision. Same being the northeast
corner of Xxx 0, Xxxxx 0, Xxx Xxxx Xxxxx 00000, Xxxxxxxxx
Subdivision, Unit 2 as recorded in Volume 9504, Page 55 of said
Deed and Plat Records for a distance of 770.86 feet to a 1/2"
iron rod with yellow cap marked "Xxxx-Xxxxxx" set in the
northeast line of said Lot 5 for the west corner of this tract;
THENCE: N 63 degrees 39'11"E, departing said common line and crossing
into said remainder of Lot 1, Broken Oaks Subdivision and
crossing into said remainder of Lot 2, Xxxxxxx Subdivision, a
distance of 598.95 feet to a 1/2" iron rod with yellow cap marked
"Xxxx-Xxxxxx" set for a point on a curve to the right in said
southwest line of Xxxxxxx Oaks for the north corner of this
tract;
--------------------------------------------------------------------------------
EXHIBIT 'A'
18
91'72-96
8,221 Acres
Page 2 of 2
THENCE: Continuing along and with said southwest line and curve to the
right, said curve having a radial bearing of S 68 degrees
39'24"W, a radius of 289,16 feet, a central angle of 26 degrees
20'43", a chord bearing and distance of S 08 degrees 10'15"E,
131.79 and an arc length of 132.96 feet to a 1/2" iron rod with
yellow cap marked "Xxxx-Xxxxxx" found for a point of reverse
curvature;
THENCE: Continuing along and with said southwest line and a curve to the
left, said curve having a radius of 280.00 feet, a central angle
of 14 degrees 32'18", a chord bearing and distance of S 02
degrees 16'03"E, 70.86 and arc length of 71.05 feet to a 1/2"
iron rod with yellow cap marked "Xxxx-Xxxxxx" found for a point
of compound curvature;
THENCE: Continuing along and with said southwest line and curve to the
left, said curve having a radius of 443.00 feet, a central angle
of 38 degrees 40'29", a chord bearing and distance of S 28
degrees 52'26"E, 293.38 and an arc length of 299.03 feet to a
1/2" iron rod with yellow cap marked "Xxxx-Xxxxxx" found for a
point of tangency;
THENCE: S 48 degrees 12'41"E, continuing along and with said southwest
line, a distance of 25.00 feet to a 1/2" iron rod with yellow cap
marked "Xxxx-Xxxxxx" found for a point of curvature to the right.
Same being the northwest end of the aforementioned curve return
for a southeast corner of this tract;
THENCE: Continuing along and with said southwest line and curve to the
right, said curve having a radius of 25.00 feet, central angle of
90 degrees 00'00", a chord bearing and distance of S 03 degrees
12' 41" E, 35.36 and an arc length of 39.27 feet to the POINT OF
BEGINNING. Containing 8.221 acres of land in the City of San
Antonio, Bexar County, Texas.
PREPARED BY: Xxxx-Xxxxxx Consulting Engineers,Inc.
DATE: March 14, 1996
JOB NO.: 9172-96
DOC. ID.: 960314a1.Xxxxxx/avs [SEAL]
