TEXAS ASSOCIATION OF REALTORS
COMMERCIAL CONTRACT - IMPROVED PROPERTY
USE OF THIS FORM BY PERSONS WHO ARE NOT MEMBERS OF THE TEXAS ASSOCIATION OF
REALTORS IS NOT AUTHORIZED.
Texas Association of REALTORSr, Inc. 2005
1. PARTIES: Seller agrees to sell and convey to Buyer the Property described
in Paragraph 2. Xxxxx agrees to buy the Property from Seller for the sales
price stated in Paragraph 3. The parties to this contract are:
Seller: AEI Income & Growth Fund 23 LLC
Address: 0000 Xxxxx Xxxxx Xxxxx, Xxxxx Xxxx, Xx 00000-0000
Phone: (000)000-0000 Fax: (000)000-0000
E-mail: xxxxxxxxxx@xxxxxxxx.xxx
Buyer: Prosperity Bank and/or Assigns
Address: 0000 Xxxxx Xxxxxxxx Xxxxxx, Xx Xxxxx, XX 00000-0000
Phone: (000) 000-0000 Fax: (979) 000- 0000
E-mail: xxxxx.xxxxxx@xxxxxxxxxxxxxxxx.xxxx
2. PROPERTY:
A. "Property" means that real property situated in Bexar County, Texas at
00000 Xxx Xxxxx Xxx. San Antonio, TX 78232 (address) and that is legally
described on the attached Exhibit A-3 or as follows:
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
(Describe any exceptions, reservations, or restrictions in
Paragraph 12 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 $ 2,750,000.00
B. Sum of all financing described in Paragraph 4 $
C. Sales price (sum of 3A and 3B) $ 2,750,000.00
(TAR-1801) 10-18-05
Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Emerald Realty 0000 Xxxxxx Xxxxx #000 Xxx Xxxxxxx, XX 00000 SmokeyBones
Phone: (210) 341 - 7501 Fax: (210) 341 - 7561 Xxxxxxx Xxxxx
Produced with ZipForm by RE FormsNet, LLC 00000 Xxxxxxx Xxxx
Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx 00000 xx.xxxxxxx.xxx
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
5. XXXXXXX MONEY:
A. Not later than 3 days after the effective date, Buyer must deposit
$25,000.00 as xxxxxxx money with Xxxxx Xxxxxxx (escrow agent) at
Fidelity National Title Company 8200 XX-00 X #000 Xxx Xxxxxxx, XX 00000
(address). 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.
X. Xxxxx 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, SURVEY, AND UCC SEARCH:
A. Title Policy:
(1)Seller, at Seller's expense, will furnish Buyer an Owner's Policy
of Title Insurance (the title policy) issued by Fidelity National
Title Company (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 Xxxxx 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 6D.
(4) Within 5 days after the effective date, Seller will order 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 Xxxxx at Xxxxx's address. Seller will deliver as soon
as title company delivers to Seller.
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Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
B. Survey: Within 10 days after the effective date:
[ ] (1) Buyer will obtain a survey of the Property at buyer's expense and
deliver a copy of the survey to Seller. The survey must be made in
accordance with the Texas Society of Professional Surveyors' standards
for a Category 1A survey under the appropriate condition.
[ ] (2) Seller, at Seller's expense will furnish Buyer a survey of the
Property dated after the effective date. The survey must be made in
accordance with the Texas Society of Professional Surveyors' standards
for a Category 1A survey under the appropriate condition.
[X] (3) Seller will deliver to Buyer and the title company a copy of Seller's
existing survey of the Property dated
X. Xxxxx's Objections to the Commitment, Survey, and UCC Search:
(1)Within 10 days after Xxxxx receives the commitment, copies of the
documents evidencing 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 to the real or personal property described in Paragraph 2
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). If Paragraph 6B(1)
applies, Xxxxx is deemed to receive the survey on the earlier of:
(i) the date Buyer actually receives the survey; or (ii)the deadline
specified in Paragraph 6B.
(2)Seller may, but is not obligated to, cure Xxxxx's timely objections
within 15 days after Seller receives the objections. The closing date
will be extended as necessary to provide such time to cure the
objections. If Seller fails to cure the objections by the time
required, Xxxxx 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(1), will be refunded to
Buyer.
(3)Buyer's failure to timely object or terminate under this Paragraph
6D 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:
A. Present Condition: Xxxxx accepts the Property in its present condition
except that Seller, at Seller's expense, will complete the following
before closing:
(TAR-1801) 10-18-05
Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
B.Feasibility Period: Buyer may terminate this contract for any reason
within 60 days after the effective date (feasibility period) by
providing Seller written notice of termination. (Check only one box.)
[X](1)If Buyer terminates under this Paragraph 7B, the xxxxxxx money
will be refunded to Buyer less $100.00 that Seller will retain as
independent consideration for Buyer's unrestricted right to
terminate. Buyer has tendered the independent consideration to Seller
upon payment of the amount specified in Paragraph 5A to the escrow
agent. The independent consideration is to be credited to the sales
price only upon closing of the sale. If no dollar amount is stated in
this Paragraph 7B(1) or if Buyer fails to timely deposit the xxxxxxx
money, Buyer will not have the right to terminate under this
Paragraph 7B.
[ ] (2) Not later than 3 days after the effective date, Buyer must pay
Seller $ as independent consideration for Xxxxx's right to
terminate by tendering such amount to Seller or Seller's agent. If
Buyer terminates under this Paragraph 7B, the xxxxxxx money will be
refunded to Buyer and Seller will retain the independent
consideration. The independent consideration will be credited to the
sales price only upon closing of the sale. IF NO DOLLAR AMOUNT IS
STATED IN THIS PARAGRAPH 7B(2) OR IF BUYER FAILS TO TIMELY PAY THE
INDEPENDENT CONSIDERATION, BUYER WILL NOT HAVE THE RIGHT TO TERMINATE
UNDER THIS PARAGRAPH 7B.
C. Inspections, Studies, or Assessments:
(1)During the feasibility period, Buyer, at Buyer's expense, may
complete or cause to be completed any and all inspections, studies,
or assessments of the Property (including all improvements and
fixtures) desired by Buyer.
(2)Seller, at Seller's expense, will turn on all utilities necessary for
Buyer to make inspections, studies, or assessments.
(4)Except for those matters that arise from the negligence of Seller
or Seller's agents, Xxxxx is responsible for any claim, liability,
encumbrance, cause of action, and expense resulting from Xxxxx's
inspections, studies or assessments, including any property damage
or personal injury. Xxxxx will indemnify, hold harmless, and defend
Xxxxxx and Xxxxxx's agents against any claim involving a matter
for which Xxxxx is responsible under this paragraph. J This
paragraph survives termination of this contract.
D. Property Information:
(1)Delivery of Property Information: Within 10 days after the effective
date, Seller will deliver to Buyer:
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Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
[ ](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) a copy of the "as-built" plans and specifications and plat of
the Property;
[ ](k) copies of all invoices for utilities and repairs incurred by
Seller for the Property in the 24 months immediately preceding
the effective date;
[ ](I) a copy of Seller's income and expense statement for the
Property from to
[X](m) copies of all previous environmental assessments, geotechnical
reports, studies, or analyses made on or relating to the
Property;
[X](n) real & personal property tax statements for the Property for the
previous 2 calendar years; and
[ ](o)
(2) Return of Property Information: If this contract terminates for any
reason, Buyer will, not later than 10 days after the termination
date: (a) return to Seller all those items described in Paragraph
7D(1) that Seller delivered to Buyer and all copies that Buyer made
of those items; and (b) deliver copies of all inspection and
assessment reports related to the Property that Buyer completed or
caused to be completed. This Paragraph 7D(2) survives termination of
this contract.
E. Contracts Affecting Operations: Until closing, Seller: (1)will operate
the Property in the same manner as on the effective date under
reasonably prudent business standards; and (2) will not transfer or
dispose of any part of the Property, any interest or right in the
Property, or any of the personal property or other items described in
Paragraph 2B or sold under this contract. After the feasibility period
ends, Seller may not enter into, amend, or terminate any other contract
that affects the operations of the Property without Buyer's written
approval.
(TAR-1801) 10-18-05
Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
BROKERS
A. The brokers to this sale are:
Xxxx Xxxxx Xxxx Xxxxxxx
Cooperating Broker 0349914 License No. Principal Broker 01143211 License No.
0000 Xxxxxx Xxxxx xxxxx 000 0000 Xxxxxxxxxxx, xxxxx 000
Address Address
San Antonio, TX 78230 Houston, TX 77063
(000)000-0000 (000)000-0000 (000)000-0000 (000)000-0000
phone Fax Phone Fax
E-mail xxxxxx@xxxxxxxxxxx.xxx E-mail hruggles@texas-southwestgroup.
com
Cooperating Broker represents Principal Broker: (Check only one box)
buyer. [X] represents Seller only.
[ ] represents Buyer only.
[ ] is an intermediary between
Seller and Buyer.
Fees: (Check only one box.)
[ ] Seller will pay Principal Broker the fee specified by separate written
commission agreement between Principal Xxxxxx and Seller. Principal
Xxxxxx will pay Cooperating Broker the fee specified in the
Agreement Between Brokers found below the parties' signatures to this
contract.
[X] At the closing of this sale, Seller will pay:
Cooperating Broker a total Principal Broker a total
cash fee of: cash fee of:
[ ] 3.000 % of the sales price. [X] 1. 000 % of the sales price.
The cash fees will be paid in Bexar 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 9 without the written consent
of the brokers affected by the amendment.
10. CLOSING:
A. The closing of the sale will be on or before December 31, 2007
or within 7 days after objections made under Paragraph 6D have
been cured or waived, whichever date is later (the closing date).
(TAR-1801) 10-18-05
Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
B. If either party fails to close by the closing date, the non-defaulting
party may exercise the remedies in Paragraph 15.
C. At closing, Xxxxxx will execute and deliver to Buyer, at Xxxxxx's
expense, a general IA 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:
(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.
D. At closing, Seller, at Seller's expense, will also deliver to Buyer:
(1) tax statements showing no delinquent taxes on the Property;
(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;
(6) evidence that the person executing this contract is
legally capable and authorized to bind Seller;
(7) an affidavit acceptable to the escrow agent stating that Seller
is not a foreign person or, if Seller is a foreign person, a
written authorization for the escrow agent to: (i) withhold from
Seller's proceeds an amount sufficient to comply applicable tax
law; and (ii) deliver the amount to the Internal Revenue Service
together with appropriate tax forms; and
(8) 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.
E. 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) sign and send to each tenant in the Property a written statement
that:
(a)acknowledges Buyer has received and is responsible for the tenant's
security deposit; and
(b)specifies the exact dollar amount of the security deposit;
(4) sign an assumption of all leases then in effect; and
(5) execute and deliver any notices, statements, certificates, or other
documents required by this contract or law necessary to close the
sale.
F.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.
11 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. 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.
(TAR-1801) 10-18-05
Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
12. SPECIAL PROVISIONS: (Identify exhibit if special provisions are
contained in an attachment.) See Exhibit A
13. SALES EXPENSES:
X. Xxxxxx's Expenses: Seller will pay for the following at or before
closing:
(1) releases of existing liens, other than those liens assumed by Xxxxx,
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 bill of sale;
(5) one-half of any escrow fee;
(6) costs to record any documents to cure title objections that
Seller must cure; and -
X. Xxxxx's Expenses: Buyer will pay for the following at or
before closing:
(1) all loan expenses and fees;
(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; and
14. PRORATIONS:
(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 Buyer assumes a loan or is taking the Property subject to an
existing lien, Seller will transfer all reseve deposits held by the
lender for the payment of taxes, insurance premiums, and other
(TAR-1801) 10-18-05
Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
charges to Buyer at closing and Xxxxx will reimburse such amounts to
Seller by an appropriate adjustment at closing.
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 Xxxxx'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 14B
survives closing.
C. 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 14C survives closing.
15. DEFAULT:
A. If Buyer fails to comply with this contract, Xxxxx 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.
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(1), 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. 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(1), will be refunded
to Buyer;
(2) extend the time for performance up to 15 days and closing 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 Xxxxx is advised of the condemnation
proceedings and the xxxxxxx money, less any independent
consideration under Paragraph 7B(1), 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.
(TAR-1801) 10-18-05
Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
17. ATTORNEY'S FEES: If Xxxxx, 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 17 survives termination of
this contract.
18. 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 15 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.
X. Xxxxxx agent will deduct any independent consideration under Paragraph
7B(1) before disbursing any xxxxxxx money to Buyer and will pay the
independent consideration to Seller.
X. If escrow agent complies with this Paragraph 18, each party hereby
releases escrow agent from all claims related to the disbursal of
the xxxxxxx money.
F. Notices under this Paragraph 18 must be sent by certified mail,return
receipt requested. Notices to escrow agent are effective upon
receipt by escrow agent.
19. MATERIAL FACS: To the best of Seller's knowledge and belief:
(Check only one box.)
[ ] X. Xxxxxx is not aware of any material defects to the Property except
as stated in the attached Property Condition Statement.
[X] B. Except as otherwise provided in this contract,Seller is not aware of:
(1) any subsurface: structures, pits, waste, springs, or improvements;
(2) any pending or threatened litigation, condemnation, or assessment
affecting the Property;
(3) any environmental hazards or conditions that materially affect the
Property;
(4) 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;
(5) whether radon, asbestos containing materials, 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;
(6) any wetlands, as defined by federal or state law or regulation,
on the Property;
(7) any threatened or endangered species or their habitat on the
Property;
(8) any present or past infestation of wood-destroying insects in the
Property's improvements;
(9) any contemplated material changes to the Property or surrounding
area that would materially and detrimentally affect the ordinary
use of the Property;
(10) any material physical defects in the improvements on the Property;
or
(11) any condition on the Property that violates any law or ordinance.
(Describe any exceptions to (1)-(11) in Paragraph 12 or an addendum.)
(TAR-1801) 10-18-05
Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
20.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.
[X]A. Seller also consents to receive any notices by e-mail at Seller's e-
mail address stated in Paragraph 1. ID
[X]B Buyer also consents to receive any notices by e-mail at Buyer's e-mail
address stated in Paragraph 1.
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.
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. Addenda which are part of this contract are: (Check all that apply.)
[X] (1) Property Description Exhibit identified in Paragraph 2;
[ ] (2) Commercial Contract Condominium Addendum;
[ ] (3) Commercial Contract Financing Addendum;
[ ] (4) Commercial Property Condition Statement;
[ ] (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
[X] (9) Proof of Xxxxxx Lease Termination
(Note: Counsel for the Texas Association of REALTORS (TAR) has
determined that any of the foregoing addenda which are promulgated by
the Texas Real Estate Commission (TREC) or published by TAR are
appropriate for use with this form)
X. Xxxxx may [X] only [ ] may not assign this contract to an affiliate
of Buyer. If Buyer assigns this contract, Xxxxx 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.
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.
(TAR-1801) 10-18-05
Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
25. ADDITIONAL NOTICES:
X. Xxxxx should have an abstract covering the Property examined by an
attorney of Xxxxx's selection, or Xxxxx 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. Notice Required by 13.257, Water Code: "The real property, described
below, that you are about to purchase may be located in a certificated
water or sewer service area, which is authorized by law to provide
water or sewer service to the properties in the certificated area.
If your property is located in a certificated area there may be special
costs or charges that you will be required to pay before you can receive
water or sewer service. There may be a period required to construct
lines or other facilities necessary to provide water or sewer service
to your property. You are advised to determine if the property is in a
certificated area and contact the utility service provider to determine
the cost that you will be required to pay and the period, if any, that
is required to provide water or sewer service to your property. The
undersigned purchaser hereby acknowledges receipt of the foregoing
notice at or before the execution of a binding contract for the
purchase of the real property described in the notice or at closing of
purchase of the real property." The real property is described in
Paragraph 2 of this contract.
D. If the Property adjoins or shares a common boundary with the tidally
influenced submerged lands of the state, 33.135, Texas Natural
Resources Code requires a notice regarding coastal area property to
be included as part of this contract.
E. If the Property is located seaward of the Gulf Intracoastal, Waterway,
61.025, Texas Natural Resources Code, requires a notice regarding the
seaward location of the Property to be included as part of this
contract.
F. 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.
G. 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.
H. Section 1958.154, Occupations Code requires Seller to provide Buyer a
copy of any mold remediation certificate issued for the Property
during the 5 years preceding the date the Seller sells the Property.
I. 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 Xxxxx
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 November 2, 2007 the offer will lapse and become null and
void.
(TAR-1801) 10-18-05
Initialed for Identification by Xxxxx /s/ ESC and Seller /s/ RPJ
Commercial Contract - Improved Property concerning 00000 Xxx Xxxxx Xxx.
San Antonio, TX 78232
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: Prospertity Bank Seller: /s/ Xxxxx X Xxxxxxx
By: /s/ Xxxxxx X Xxxxxx By:
Printed Name: Xxxxxx Xxxxxx Printed Name: Xxxxxx X Xxxxxxx
Title: President Title: President
Buyer: Seller:
By: By:
Printed Name: Printed Name:
Title: Title:
EXHIBIT A
Representations and Covenants of Seller. (The following
are deemed to be in addition to and supplemental to
"Section 19. MATERIAL FACTS.")
Seller hereby represents to Purchaser that the facts
recited below are true and accurate and will be true and
accurate at Closing:
(a) Seller has and will have at Closing good and indefeasible title,
in fee simple to the Property, free and clear of all liens (except
those to be satisfied with the Purchase Price at the Closing).
(b) No Party except as set forth herein has or shall have any rights
in or to acquire the Property except as reflected in the Title
Commitment.
(c) Seller has no knowledge of any pending condemnation, liens,
special assessments, or similar proceedings or charges affecting the
Property by any governmental authority.
(d) Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate, or non-resident alien for purposes of US
income taxation, pursuant to Section 1445 of the Internal Revenue
Code.
(e) There are no leases affecting any portion of the Property and
there are no options or contracts granting any rights to acquire any
right, title or interest in any portion of the Property, except those
listed in the Title Commitment.
(f) Seller has not received any notice of any
violation of any ordinance, regulation, law or statute of
any government agency or instrumentality pertaining to the
Property of any portion thereof which has not been
complied with.
(g) Seller has no knowledge of any action, suit,
proceeding or claim affecting Seller or the Property,
relating to or arising out of any lease, option or
contract affecting the Property, or the ownership,
operation, use or occupancy of the Property, pending or
being prosecuted in any court or by or before any agency
or other governmental instrumentality nor, to the
knowledge of Seller, has any such action, suit, proceeding
or claim been threatened or asserted. Seller has no
knowledge of any proceeding pending or presently being
prosecuted in connection with the assessed valuation or
taxes of other impositions payable in respect of any
portion of the Property.
(h) To the Best of Seller's knowledge No work has been
performed or is in progress by Xxxxxx at, and no materials
have been furnished to, the Property which might give rise
to mechanic's, materialman's or other liens against the
Property.
(i) To the best of Seller's knowledge, the property
currently has utility service to its boundaries including
water, wastewater, storm sewer, telephone, electric and
gas. The Property currently leas
(j) To the best of seller knowledge The Property currently
has cross access and easement rights and benefits providing
pedestrian and vehicular access to and from the Property
(k) If applicable, Seller agrees to execute any documents
required by the controlling governing authority to replat
or rezone the Property, provided, however, that Seller
shall not incur any liability or expense in such
replatting. The necessity to replat or rezone shall be
determined by Purchaser in its sole discretion.
Section 3.02 Environmental Matters. Seller warrants to
the best of its knowledge that no underground storage
tanks are located on the Property and that the Property is
free from environmental or hazardous materials.
Seller hereby agrees to indemnify Purchaser against
any costs or damages, including reasonable attorney's
fees, in connection with any environmental contamination
on the Property resulting directly from actions of Seller
prior to the Closing, or in connection with any breach of
Seller's representations and warranties made in this
Section 3.02. Notwithstanding anything to the contrary
contained elsewhere in this Agreement, the provisions of
this Section 3.02 shall survive the Closing.
EXHIBIT A-3
DESCRIPTION
Tract I:
2.041 acres, or 88,900 square feet, tract of land being all of
Lot 10, Block 1, New City Block.00000, Xxxxxxxxxxx Subdivision,
Unit 1, an addition to the City of Ban Antonio, Bexar County,
Texan according to the map or plat thereof, recorded in, Volume
9540, Page 196, Deed and Plat Records of Bexar County, Texas.
Said 2.041 -acres being further described by metes and bounds as
follows:
BEGINNING At a found 1/2" iron rod, said point being
the northwest corner of this tract and the
southwest corner of Lot 11 of said Brookhollow
Subdivision Unit 1, on the east right of way
line of U.S. Highway 281 also known as San
Xxxxx Avenue', a 300-foot right-of-way;
TRENCH; S 71 10'50" E, departing from the east right-of-
way line of said U.S. Highway 281, along the
north line of said Lot 10 a distance of 328.88
feet to a found 1/2" iron rod with cap marked
"Xxxxxxx";
THENCE:S 18 49'10" W, along the east line of said Lot
10 and the west line of Lot 9, of said
Brookhollow Subdivision Unit-1, a distance of
220.38 feet to a found lead plug & tack;
THE 35 39'39" W, along the east line of said
NCE Lot 10 and the west line of Lot 9, of said
: Brookhollow Subdivision Unit-1, a distance of
84.40 feet to a found 1/2" iron rod with cap
marked "Xxxxxxx" on the north right-of-way
line Cetral Parkway North, a 60 foot right-of-
way;
THENCE: S 54 20'21" W, along the north right-of-way
line of Central Parkway North, a distance of
6.43 feet to a set 1/2" iron rod with yellow
cap marked "Xxxx-Xxxxxx" at a point of
curvature;
THENCE: Northwesterly, and westerly, with a curve to
the left, said curve having a radius of 740.00
feet, a central angle of 18 34'09" a chord
bearing and distance of N 63 37'26"W, 238.78
feet, and an arc length of 239.83 feet, along
the north right-of-way line of said Central
Parkway North to a set 1/2" iron rod with
yellow cap marked "Xxxx-Xxxxxx" at a point of
tangency;
THENCE: N 72 54'30" W, along the north right-of-way
line of said Central Parkway North, a
distance of 10.46 feet to a set 1/2" iron
rod with yellow cap marked "Xxxx-Xxxxxx" at
a point of curvature;
THENCE: Westerly, northwesterly, and northerly, along
the north right-of-way line of said Central
Parkway North, with a curve to the right,
said curve having a radius of 45.00 feet, a
central angle of 70 32'15"a chord bearing and
distance of N 37 38'23" V, 51.97 feet, and an
arc length of
DESRIPTION
55.40 feet to a found nail at a point of curvature;
THENCE: Northerly; along the east right-of-way line of
said U.S. Highway 282, with a curve having
radius of.10.00 feet, a central angle of 19
28'36", a chord bearing and distance of N 07
22'03"E, 3.38 feet, and an arc length of'3.40
feet to a found "+" in rock at a point of
intersection of a non-tangent line;
THENCE: N 17 05'30"E, a distance of 236.29 feet to the
POINT OP BEGINNING and containing 2.041 acres
in the City of San Antonio, Bexar-County,
Texas. .Said tract being described in
accordance with a survey prepared by Xxxx-
Xxxxxx Engineers Inc.
Tract II:
Easement Estate created by that certain Declaration of
Covenants, Restrictions and Easements by Xxxxx Xxxxxxxxxxx
Developers, Ltd. dated March 12, 1998, filed for record on
March 16, 1998 and recorded in Volume 7385, Page 469, Official
Public Records of Real Property of Bexar County, Texas
NOTE: THIS COMPANY DOES NOT REPRESENT THAT THE ABOVE ACREAGE
AND/OR SQUARE FOOTAGE CALCULATIONS ARE CORRECT.
