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XXXXXX XXXXXX APARTMENTS
PURCHASE AGREEMENT
BETWEEN
LONDON ACQUISITIONS, INC.
AS SELLER
AND
XX. XXXX X. XXXXXXXXX
AS THE QUALIFIED EXCHANGE ACCOMMODATOR FOR
XXXXXXXXXX REALTY GROUP, INC.
AS PURCHASER
As of June 10, 2005
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "Agreement") is made to be effective as of
the Effective Date (as hereinafter defined) by London Acquisitions, Inc., a
Texas corporation and ("Seller"), and XX. XXXX X. XXXXXXXXX AS THE QUALIFIED
EXCHANGE ACCOMMODATOR FOR XXXXXXXXXX REALTY GROUP, INC. (hereinafter the
"Purchaser") with right to assign or further convey to XXXXXXXXXX REALTY GROUP,
INC., A NEVADA CORPORATION (hereinafter the "Equitable Beneficiary").
W I T N E S S E T H:
ARTICLE 1
PURCHASE AND SALE
1.1 Agreement of Purchase and Sale. Subject to the terms and conditions
hereinafter set forth, Seller agrees to sell and convey and Purchaser agrees to
purchase the following:
(a) that certain tract or parcel of land situated in Xxxxxx
County, Texas, more particularly described on Exhibit A attached hereto
and made a part hereof, together with all and singular the rights and
appurtenances pertaining to such property, including any right, title
and interest of Seller in and to adjacent streets, alleys or
rights-of-way (the property described in clause (a) of this Section 1.1
being herein referred to collectively as the "Land");
(b) the buildings and other improvements on the Land,
including specifically, without limitation, that certain apartment
complex located thereon having a street address of 0000 Xxxx Xxxx
Xxxxxx, Xxxxxx, Xxxxx (the property described in clause (b) of this
Section 1.1 being herein referred to collectively as the
"Improvements");
(c) the personal property, if any, owned by Seller upon the
Land or within the Improvements, including specifically, without
limitation, heating, ventilation and air conditioning systems and
equipment, appliances, furniture, carpeting, draperies and curtains,
tools and supplies, and other items of personal property (excluding
cash) used in connection with the operation of the Land and the
Improvements (the property described in clause (c) of this Section 1.1
being herein referred to collectively as the "Personal Property");
(d) all of Seller's right, title and interest, if any, in all
oral or written agreements pursuant to which any portion of the Land or
Improvements is used or occupied by anyone other than Seller (the
property described in clause (d) of this Section 1.1 being herein
referred to collectively as the "Leases"); and
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(e) all of Seller's right, title and interest, if any, in and
to all assignable contracts and agreements relating to the upkeep,
repair, maintenance or operation of the Land, Improvements or Personal
Property which will extend beyond the date of Closing (as such term is
defined in Section 4.1 hereof), including specifically, without
limitation, all assignable equipment leases (collectively, the
"Operating Agreements"), all assignable warranties and guaranties
issued to Seller in connection with the Improvements or the Personal
Property (the property described in this Section 1.1(e) being sometimes
herein referred to collectively as the "Intangibles").
1.2 Property Defined. The Land, the Improvements, the Personal
Property, the Leases and the Intangibles are hereinafter sometimes referred to
collectively as the "Property."
1.3 Permitted Exceptions. The Property shall be conveyed subject to the
matters which are deemed to be Permitted Exceptions pursuant to Section 2.3
hereof (the "Permitted Exceptions").
1.4 Purchase Price. Seller is to sell and Purchaser is to purchase the
Property for a total of THREE MILLION TWO HUNDRED THOUSAND AND NO/100 DOLLARS
($3,200,000.00) (the "Purchase Price").
1.5 Payment of Purchase Price. The Purchase Price shall be payable in
full at Closing (as hereinafter defined) in cash or immediately available wire
transferred funds.
1.6 Independent Contract Consideration. Upon the Effective Date hereof,
Purchaser shall deliver to Seller a check in the amount of FIFTY AND NO/100
DOLLARS ($50.00) ("Independent Contract Consideration"), which amount the
parties hereby acknowledge and agree has been bargained for and agreed to as
consideration for Seller's execution and delivery of this Agreement. The
Independent Contract Consideration is in addition to and independent of any
other consideration or payment provided in this Agreement, and is nonrefundable
in all events.
1.7 Xxxxxxx Money. Within three (3) days of the Effective Date,
Purchaser shall deposit with First American Title Insurance Company (the "Title
Company"), at Three Xxxxxx Skyway, 0000 XxXxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attn: Dee Xxx Xxxx, the sum of TEN THOUSAND AND NO/100 DOLLARS ($10,000.00) (the
"Xxxxxxx Money") to be held by the Title Company in an interest-bearing account
(if available). Any interest accruing on such sum shall become a part of the
Xxxxxxx Money and shall be distributed as Xxxxxxx Money in accordance with the
terms of this Agreement.
ARTICLE 2
TITLE AND SURVEY
2.1 Commitment for Title Insurance. Seller and Purchaser hereby
instruct the Title Company to prepare and deliver to Purchaser and Seller and
the surveyor described in Section 2.2 below, a title commitment (the "Title
Commitment") covering the Property, showing all matters affecting title to the
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Property and binding the Title Company to issue at Closing an Owner's Policy of
Title Insurance pursuant to Section 2.4 hereof on the standard form of policy
prescribed by the Texas State Board of Insurance in the full amount of the
Purchase Price. Seller and Purchaser further instruct the Title Company to
deliver to such parties copies of all instruments referenced in Schedule B and
Schedule C of the Title Commitment.
2.2 Survey. Purchaser may, at Purchaser's sole expense, employ a
surveyor to survey the Property and xxxx the boundaries thereof and prepare and
deliver to Purchaser, Seller and the Title Company a map or plat thereof (the
"Survey").
2.3 Title Review Period. Purchaser shall have until June 24, 2005 (the
"Title Review Period") after the receipt of the Title Commitment and legible
copies of all instruments referred to in Schedules B and C thereof, to notify
Seller, in writing, of such objections as Purchaser may have to anything
contained in the Title Commitment. Purchaser shall be deemed to have objected to
all items contained in the Title Commitment, unless Purchaser gives written
notice of approval or waiver of the exception, to which Purchaser does not
object during the Title Review Period . Those title exceptions to which
Purchaser does not object shall be deemed a Permitted Exception. In the event
Purchaser shall notify Seller of objections to title prior to the expiration of
the Title Review Period, Seller shall have three (3) days after receipt of
notification of such objections, or such greater period of time as may be
mutually acceptable to Purchaser and Seller (the "Cure Period"), within which
Seller may (but shall not be required to) cure or remove such objection. If
Seller fails either to cure or remove such objection to the reasonable
satisfaction of the Title Company and Purchaser prior to the expiration of the
Cure Period, Purchaser may either terminate this Agreement by written notice to
Seller or waive such objection and accept such title as Seller is able to convey
without any reduction in the Purchase Price.
2.4 Owner's Policy of Title Insurance. At Closing, the Title Company
shall issue to Purchaser, at Seller's expense, a marked commitment or pro forma
Owner's Policy of Title Insurance (the "Title Policy") covering the Property, in
the full amount of the Purchase Price. Such Title Policy may contain as
exceptions the standard printed exceptions and the Permitted Exceptions.
ARTICLE 3
INSPECTION PERIOD
3.1 Right of Inspection. During the period beginning upon the Effective
Date and ending at 5 p.m., Austin, Texas time, on June 24, 2005 (hereinafter
referred to as the "Inspection Period"), Purchaser shall have the right to make
a physical inspection of the Property, to examine all books and records
maintained by Seller relating to the operation of the Property, and other
relevant Property documents during the period of Seller's ownership at such
place or places as said books and records may be located; provided, however, any
such inspections shall be conducted in the presence of Seller or its
representative. Purchaser agrees to indemnify and hold Seller harmless of and
from any claim for damages or injuries arising from Purchaser's inspection of
the Property and, notwithstanding anything to the contrary in this Agreement,
the obligations of Purchaser under this Section 3.1 shall survive Closing or any
termination of this Agreement. All inspections shall occur at reasonable times
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agreed upon by Seller and Purchaser and shall be conducted so as not to
unreasonably interfere with use of the Property by Seller or its tenants.
Purchaser shall, at Purchaser's expense, restore the Property following any such
physical inspection to the condition that existed prior to such inspection.
3.2 Right of Termination. Seller agrees that in the event Purchaser
determines that the Property is not suitable for its purposes, Purchaser shall
have the right to terminate this Agreement by sending written notice thereof
(hereinafter referred to as the "Notice of Termination") to Seller prior to the
expiration of the Inspection Periods. Upon delivery by Purchaser of such Notice
of Termination within the Inspection Periods, this Agreement shall terminate and
the Xxxxxxx Money shall be returned to Purchaser.
ARTICLE 4
CLOSING
4.1 Time and Place. Closing of the transaction contemplated hereby
("Closing") shall be held at the offices of the Title Company at 10 a.m. on the
earlier to occur of (i) fifth (5th) day following the Effective Date or (ii)
June 28, 2005. At Closing, Seller and Purchaser shall perform the obligations
set forth in, respectively, Section 4.2 and Section 4.3, the performance of
which obligations shall be concurrent conditions.
4.2 Seller's Obligations at Closing. At Closing, Seller shall:
(a) deliver to Purchaser a Special Warranty Deed (the "Deed")
in the form of Exhibit B attached hereto and made a part hereof,
executed and acknowledged by Seller and in recordable form, conveying
the Land and Improvements to Purchaser, subject only to the Permitted
Exceptions;
(b) join with Purchaser in the execution and acknowledgment of
a Xxxx of Sale and Assignment (the "Xxxx of Sale") in the form of
Exhibit C attached hereto and made a part hereof with respect to the
Property;
(c) join with Purchaser in the execution and acknowledgment of
an Assignment and Assumption of Contracts (the "Assignment of
Contracts") in the form of Exhibit D attached hereto and made a part
hereof with respect to the Property;
(d) join with Purchaser in the execution of a Closing
Memorandum and Indemnification Agreement (the "Closing Memorandum") in
the form of Exhibit E attached hereto and made a part hereof with
respect to the Property;
(e) join with Purchaser in the execution of a letter to each
tenant of the Property in the form of Exhibit F attached hereto and
made a part hereof;
(f) deliver to Purchaser a FIRPTA Affidavit in the form of
Exhibit G attached hereto and made a part hereof, duly executed by
Seller, stating that Seller is not a "foreign person" as defined in the
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federal Foreign Investment in Real Property Tax Act of 1980 and the
1984 Tax Reform Act, and in the event Seller is unable or unwilling to
deliver the FIRPTA Affidavit, in lieu thereof the funds payable to
Seller shall be adjusted in such a manner as to comply with the
withholding provisions of such statutes;
(g) deliver to Purchaser possession and occupancy of the
Property, subject to the Permitted Exceptions; and
(h) deliver to Purchaser all available keys to the Property in
Seller's possession.
4.3 Purchaser's Obligations at Closing. At Closing, Purchaser shall:
(a) pay to Seller the full amount of the Purchase Price in
cash or immediately available wire transferred funds pursuant to
Section 1.5 above, it being agreed that at Closing the Xxxxxxx Money
shall be delivered to Seller and applied towards payment of the
Purchase Price; and
(b) join Seller in execution of the instruments described in
Sections 4.2(b), 4.2(c), 4.2(d) and 4.2(e) above; and
4.4 Credits and Prorations.
(a) The following shall be apportioned with respect to the
Property as of 12:01 a.m., Austin, Texas time, on the day of Closing,
as if Purchaser were vested with title to the Property during the
entire day upon which Closing occurs:
(i) rents, if any, as and when collected (the term
"rents" as used in this Agreement includes payments due and
payable by tenants under the Leases and by licensees and
concessionaires, if any) and room revenues;
(ii) taxes (including personal property taxes on the
Personal Property);
(iii) any assessments;
(iv) payments under the Operating Agreements or other
agreements affecting the Property;
(v) gas, electricity and other utility charges for
which Seller is liable, if any, such charges to be apportioned
at Closing on the basis of the most recent meter reading
occurring prior to Closing; and
(vi) any other operating expenses of the Property
incurred during the month in which Closing occurs.
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(b) Notwithstanding anything contained in the foregoing
provisions:
(i) At Closing, (A) Seller shall, at Seller's option,
either deliver to Purchaser any security deposits actually
held by Seller pursuant to the Leases or credit to the account
of Purchaser the amount of such security deposits (to the
extent such security deposits are not applied against
delinquent rents), and (B) Purchaser shall credit to the
account of Seller all refundable cash or other deposits posted
with utility companies serving the Property or, at Seller's
option, Seller shall be entitled to receive and retain all
refundable cash and deposits posted with utility companies.
(ii) Any taxes paid at Closing shall be prorated
based upon the amounts actually paid.
(iii) Charges referred to in Section 4.4(a) above
(other than those referred to in Section 4.4(a)(i)) which are
payable by any tenant to a third party shall not be
apportioned hereunder, and Purchaser shall accept title
subject to any of such charges unpaid and Purchaser shall look
solely to the tenant responsible therefor for the payment of
the same. If Seller shall have paid any of such charges on
behalf of any tenant, and shall not have been reimbursed
therefor by the time of Closing, Purchaser shall credit to
Seller an amount equal to all such charges so paid by Seller.
(iv) Seller shall receive the entire advantage of any
discounts for the prepayment by it of any taxes, water rates
or sewer rents. Purchaser acknowledges that Seller may be
appealing the valuation of the Property and agrees that Seller
shall be entitled, at Seller's cost and expense, to pursue
such appeal to completion and to receive (i) any tax refunds
or reductions attributable to the years prior to the year of
the Closing, and (ii) any tax refund or reduction attributable
to the year of the Closing, shall be prorated between Seller
and Purchaser after deducting (or crediting Seller, as
applicable) any expenses, (including attorneys' fees) relating
to the appeal, and Purchaser shall remit such amounts to
Seller within ten (10) days following written request therefor
by Seller.
(v) As to gas, electricity and other utility charges
referred to in Section 4.4(a)(v) above, Seller may on notice
to Purchaser elect to pay one or more of all of said items
accrued to the date hereinabove fixed for apportionment
directly to the person or entity entitled thereto, and to the
extent Seller so elects, such item shall not be apportioned
hereunder, and Seller's obligation to pay such item directly
in such case shall survive the Closing.
(vi) The Personal Property is included in this sale,
without further charge, except that Purchaser shall pay the
amount of any and all sales or similar taxes, if any, payable
in connection with the Personal Property which is to be
transferred to Purchaser under this Agreement and Purchaser
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shall execute and deliver any tax returns required of it in
connection therewith, said obligations of Purchaser to survive
Closing.
(c) All other matters with respect to apportionment shall be
governed by the Closing Memorandum. All prorations and adjustments
described in this Section 4.4 and in the Closing Memorandum shall be
effected by increasing or decreasing, as appropriate, the amount of
cash to be paid by Purchaser to Seller at Closing. The provisions of
this Section 4.4 shall survive Closing.
4.5 Closing Costs. Seller shall pay (a) the fees of any counsel
representing it in connection with this transaction; (b) the basic premium for
the Title Policy; (c) the fees for recording the Deed; and (d) one-half (1/2) of
any escrow fee which may be charged by the Title Company. Purchaser shall pay
(u) the cost of the Survey, if any; (v) the fees of any counsel representing
Purchaser in connection with this transaction; (w) the additional premium
chargeable for modification of the survey exception, if such modification is
desired by Purchaser or any other endorsement requested by Purchaser; (x) any
transfer tax, documentary stamp tax or similar tax which becomes payable by
reason of the transfer of the Property; and (y) one-half (1/2) of any escrow
fees charged by the Title Company. All other costs and expenses incident to this
transaction and the closing thereof shall be paid by the party incurring same.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Seller. Seller hereby represents
and warrants to Purchaser as follows:
(a) Seller has no actual knowledge that the execution and
delivery of this Agreement by Seller and Seller's performance of and
compliance with its terms (i) violates any existing federal, state or
local law, ordinance, rule, regulation or order, or (ii) breaches any
agreement or other obligation to which Seller is a party or by which it
is bound.
(b) to the extent it is legally entitled to do so, between the
date of this Agreement and the date of Closing and subject to events or
conditions beyond Seller's reasonable control, Seller shall operate and
maintain the Property in substantially the same manner in which it
operated and maintained the Property prior to the execution of this
Agreement.
5.2 Covenants of Seller. Seller hereby covenants with Purchaser as
follows:
(a) Within five (5) days after the Effective Date hereof,
Seller shall use reasonable efforts to make available to Purchaser at
the office of the manager of the Property all books and records
relating to the operation of the Property maintained by such manager.
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5.3 Actual Knowledge Defined. References in Section 5.1 above to the
"actual knowledge" of Seller shall refer only to the actual knowledge of the
Xxxxxx X. Xxxx and Xxxx XxXxxxxx (herein referred to as the "Designated
Employees"), and shall not be construed to refer to the knowledge of any other
officer, agent or employee of Seller or any affiliate thereof or to impose upon
such Designated Employee any duty to investigate the matter to which such actual
knowledge, or the absence thereof, pertains.
5.4 Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller as follows:
(a) Purchaser has the full right, power and authority to
purchase the Property as provided in this Agreement and to carry out
Purchaser's obligations hereunder, and all requisite action necessary
to authorize Purchaser to enter into this Agreement and to carry out
its obligations hereunder have been, or by the Closing will have been
taken.
(b) Purchaser is in an equal bargaining position in relation
to Seller.
(c) Purchaser is represented by legal counsel of its own
choice and designation in connection with the transaction contemplated
by this Agreement.
(d) Purchaser's legal counsel was not directly or indirectly
identified, suggested or selected by Seller or any agent of Seller.
(e) Purchaser is purchasing the Property for business or
commercial investment or similar purpose and not for use as Purchaser's
residence.
5.5 Covenant of Purchaser. Purchaser hereby covenants with Seller that
Purchaser may, at Purchaser's sole election, in connection with its
investigation of the Property during the Inspection Period, inspect the Property
for the presence of asbestos, polychlorinated biphenyl emissions or other
hazardous substances, materials and wastes (as those terms may be defined by
applicable federal or state law, rule or regulation). Purchaser shall furnish to
Seller at Closing copies of any reports received by Purchaser in connection with
any such inspection. Purchaser hereby assumes full responsibility for such
inspections and irrevocably waives any claim against Seller arising from the
presence of such materials on the Property. Purchaser shall also furnish to
Seller at Closing copies of any other reports received by Purchaser relating to
any other inspections of the Property conducted on Purchaser's behalf, if any
(including, specifically, without limitation, any reports analyzing compliance
of the Property with the provisions of the Americans with Disabilities Act
("ADA"), 42 U.S.C. ss.12101, et seq., if applicable).
ARTICLE 6
DEFAULT
6.1 Default by Purchaser. In the event that the Xxxxxxx Money is
delivered to the Title Company as herein provided and Purchaser fails to
consummate this Agreement for any reason, except Seller's default or the
permitted termination of this Agreement by either Seller or Purchaser as herein
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expressly provided, Seller shall be entitled, as its sole remedy, to terminate
this Agreement and receive the Xxxxxxx Money as liquidated damages for the
breach of this Agreement, it being agreed between the parties hereto that the
actual damages to Seller in the event of such breach are impractical to
ascertain and the amount of the Xxxxxxx Money is a reasonable estimate thereof.
6.2 Default by Seller. In the event that Seller should fail to
consummate this Agreement for any reason, except Purchaser's default or the
permitted termination of this Agreement by Seller or Purchaser as herein
expressly provided, Purchaser shall be entitled, as its sole remedy, either (a)
to receive the return of the Xxxxxxx Money, which return shall operate to
terminate this Agreement and release Seller from any and all liability
hereunder, or (b) to enforce specific performance of Seller's obligation to
execute the documents required to convey the Property to Purchaser, it being
understood and agreed that the remedy of specific performance shall not be
available to enforce any other obligation of Seller hereunder. Purchaser
expressly waives its rights to seek damages in the event of Seller's default
hereunder. Purchaser shall be deemed to have elected to terminate this Agreement
and receive back the Xxxxxxx Money if Purchaser fails to file suit for specific
performance against Seller in a court having jurisdiction in Xxxxxx County,
Texas, on or before sixty (60) days following the date upon which Closing was to
have occurred.
ARTICLE 7
RISK OF LOSS
7.1 Minor Damage. In the event of loss or damage to the Property or any
portion thereof (the "premises in question") which is not "major" (as
hereinafter defined), this Agreement shall remain in full force and effect
provided Seller performs any necessary repairs or, at Seller's option, reduces
the cash portion of the Purchase Price in an amount equal to the cost of such
repairs, Seller thereby retaining all of Seller's right, title and interest to
any claims and proceeds Seller may have with respect to any casualty insurance
policies or condemnation awards relating to the premises in question. In the
event that Seller elects to perform repairs upon the Property, Seller shall use
reasonable efforts to complete such repairs promptly and the date of Closing
shall be extended a reasonable time in order to allow for the completion of such
repairs.
7.2 Major Damage. In the event of a "major" loss or damage, either
Seller or Purchaser may terminate this Agreement by written notice to the other
party, in which event the Xxxxxxx Money shall be returned to Purchaser. If
neither Seller nor Purchaser elects to terminate this Agreement within ten (10)
days after Seller sends Purchaser written notice of the occurrence of major loss
or damage, then Seller and Purchaser shall be deemed to have elected to proceed
with Closing, in which event Seller shall, at Seller's option, either (a)
perform any necessary repairs, or (b) assign to Purchaser all of Seller's right,
title and interest to any claims and proceeds Seller may have with respect to
any casualty insurance policies or condemnation awards relating to the premises
in question. In the event that Seller elects to perform repairs upon the
Property, Seller shall use reasonable efforts to complete such repairs promptly
and the date of Closing shall be extended a reasonable time in order to allow
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for the completion of such repairs. Upon Closing, full risk of loss with respect
to the Property shall pass to Purchaser. For purposes of Sections 7.1 and 7.2,
"major" loss or damage refers to the following: (i) loss or damage to the
Property or any portion thereof such that the cost of repairing or restoring the
premises in question to a condition substantially identical to that of the
premises in question prior to the event of damage would be, in the certified
opinion of a mutually acceptable architect, equal to or greater One Hundred
Thousand Dollars ($100,000.00), and (ii) any loss due to a condemnation which
permanently and materially impairs the current use of the Property.
ARTICLE 8
COMMISSIONS
8.1 Brokerage Commissions. Seller has agreed to pay to Xxxxx Xxxxxxx
(the "Broker") a brokerage commission (equal to two percent (2%)) under a
separate agreement in the event the transaction contemplated by this Agreement
is closed and consummated, but not otherwise. Each party agrees that should any
claim be made for brokerage commissions or finder's fees by any broker or finder
other than the Broker by, through or on account of any acts of said party or its
representatives, said party will hold the other party free and harmless from and
against any and all loss, liability, cost, damage and expense in connection
therewith. By its signature hereto, the Broker represents to Seller and
Purchaser (a) that the Broker is a duly licensed real estate broker under the
provisions of applicable law, and (b) that the Broker has not entered into any
arrangement with any other party whereby such other party is entitled to any
commission or finder's fee in connection with this transaction, and the Broker
agrees that should any claim be made for brokerage commissions or finder's fees
by any other party by, through or on account of any acts of the Broker or its
representatives, the Broker shall hold Purchaser and Seller free and harmless
from and against any and all loss, cost, damage and expense in connection
therewith. In the event the transaction envisioned hereby fails to close for any
reason, including without limitation, Seller's default, Seller shall have no
obligation for the payment of any commission or similar type fee hereunder. The
provisions of this paragraph shall survive Closing.
ARTICLE 9
MISCELLANEOUS
9.1 Disclaimers. PURCHASER AGREES THAT IT WILL PERFORM SUCH
EXAMINATIONS AND INVESTIGATIONS OF THE PROPERTY PRIOR TO THE EXPIRATION OF THE
INSPECTION PERIOD AS PURCHASER DEEMS NECESSARY, INCLUDING SPECIFICALLY, WITHOUT
LIMITATION, EXAMINATIONS AND INVESTIGATIONS FOR THE PRESENCE OF ASBESTOS, PCB
EMISSIONS AND HAZARDOUS SUBSTANCES, MATERIALS OR WASTES (AS THOSE TERMS MAY BE
DEFINED BY APPLICABLE FEDERAL OR STATE LAW, RULE OR REGULATION) ON THE PROPERTY,
AND THAT PURCHASER WILL RELY SOLELY UPON SUCH EXAMINATIONS AND INVESTIGATIONS IN
PURCHASING THE PROPERTY. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT PURCHASER IS PURCHASING THE PROPERTY "AS
IS" AND "WHERE IS," AND WITH ALL FAULTS AND THAT SELLER IS MAKING NO
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REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW
OR OTHERWISE, WITH RESPECT TO THE QUALITY, PHYSICAL CONDITION OR VALUE OF THE
PROPERTY, THE INCOME OR EXPENSES FROM OR OF THE PROPERTY, THE BOOKS AND RECORDS
RELATING TO THE PROPERTY OR THE COMPLIANCE OF THE PROPERTY WITH APPLICABLE
BUILDING OR FIRE CODES OR OTHER LAWS OR REGULATIONS. WITHOUT LIMITING THE
FOREGOING, IT IS UNDERSTOOD AND AGREED THAT SELLER MAKES NO WARRANTY OF
HABITABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
PURCHASER AGREES THAT SELLER IS NOT LIABLE OR BOUND BY ANY GUARANTEES, PROMISES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY MADE OR
FURNISHED BY ANY REAL ESTATE AGENT, BROKER, EMPLOYEE, SERVANT OR OTHER PERSON
REPRESENTING OR PURPORTING TO REPRESENT SELLER, EXCEPT AS AND TO THE EXTENT
EXPRESSLY SET FORTH HEREIN. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THE
COMPENSATION TO BE PAID TO SELLER FOR THE PROPERTY HAS BEEN DECREASED TO TAKE
INTO ACCOUNT THAT THE PROPERTY IS BEING SOLD SUBJECT TO THE FOREGOING
DISCLAIMERS.
9.2 Confidentiality. Purchaser and its representatives shall hold in
strictest confidence all data and information obtained with respect to Seller or
its business, whether obtained before or after the execution and delivery of
this Agreement, and shall not use such data or information or disclose the same
to others, except that Purchaser may disclose such information, to the extent
reasonably necessary, to its agents, representatives, contractors, lenders,
attorneys and accountants; provided that, such parties agree to hold such
information confidential in accordance with the terms of this Agreement. In the
event this Agreement is terminated or Purchaser fails to perform hereunder,
Purchaser shall promptly return to Seller any statements, documents, schedules,
exhibits or other written information obtained from Seller in connection with
this Agreement or the transaction contemplated herein. It is understood and
agreed that, with respect to any provision of this Agreement which refers to the
termination of this Agreement and the return of the Xxxxxxx Money to Purchaser,
such Xxxxxxx Money shall not be returned to Purchaser unless and until Purchaser
has fulfilled its obligation to return to Seller the materials described in the
preceding sentence. In the event of a breach or threatened breach by Purchaser
or its agents or representatives of this Section 9.2, Seller shall be entitled
to an injunction restraining Purchaser or its agents or representatives from
disclosing, in whole or in part, such confidential information. Nothing herein
shall be construed as prohibiting Seller from pursuing any other available
remedy at law or in equity for such breach or threatened breach.
9.3 Public Disclosure. Prior to Closing, any release to the public of
information by Purchaser with respect to the matters set forth in this Agreement
will be made only in the form approved by Seller and its counsel, except for
Purchaser's filings with the Securities and Exchange Commission as required by
law.
9.4 Discharge of Obligations. The acceptance of the Deed by Purchaser
shall be deemed to be a full performance and discharge of every representation
and warranty made by Seller herein and every agreement and obligation on the
part of Seller to be performed pursuant to the provisions of this Agreement,
11
except those, if any, which are herein specifically stated to survive Closing.
9.5 Assignment. Except for an assignment from Xxxx X. Xxxxxxxxx as
Qualified Exchange Accommodator for Xxxxxxxxxx Realty Group, Inc., Purchaser may
not assign its rights under this Agreement except with the prior written consent
of Seller, which consent may be given or withheld in Seller's sole discretion.
Notwithstanding the foregoing, Purchaser shall have the right to assign its
rights under this Agreement to the Equitable Beneficiary (as previously defined
above) without the consent of Seller so long as Purchaser delivers to Seller a
fully executed and effective assignment and assumption agreement conveying to
such assignee all of Purchaser's right, title and interest in, to and under this
Agreement and the Xxxxxxx Money no later than five (5) business days prior to
the Closing Date. Seller may assign its rights under this Agreement without the
consent of Purchaser, but Seller shall give the Title Company notice of such
assignment after it is accomplished and prior to Closing.
9.6 Title Policy or Abstract. The Texas Real Estate License Act
requires written notice to Purchaser that it should have an attorney examine an
abstract of title to the property being purchased or obtain a title insurance
policy. Said Notice is hereby given to Purchaser.
9.7 Notices. Any notice pursuant to this Agreement shall be given in
writing by (a) personal delivery, or (b) expedited delivery service with proof
of delivery, or (c) United States Mail, postage prepaid, registered or certified
mail, return receipt requested, or (d) prepaid telegram, telex, facsimile, or
telecopy (provided that such telegram, telex or telecopy is confirmed by
expedited delivery service or by mail in the manner previously described), sent
to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designated by written notice sent in accordance herewith, and shall be deemed to
have been given either at the time of personal delivery, or, in the case of
expedited delivery service or mail, as of the date of first attempted delivery
at the address and in the manner provided herein, or, in the case of telegram,
telex or telecopy upon receipt. Unless changed in accordance with the preceding
sentence, the addresses for notices given pursuant to this Agreement shall be as
follows:
If to Seller: Xxxxxx X. Xxxx, President
London Acquisitions, Inc.
0000 Xxxxxxx xx Xxxxx Xxxxxxx X., Xxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Phil Xxxxxxxx, Esq.
0000 Xxxxxxx xx Xxxxx Xxxxxxx X., Xxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
12
If to Purchaser: Xxxx X. Xxxxxxxxx
000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Xxxxx X. Xxxxx, Esq.
000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xx. Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
9.8 Modifications. This Agreement cannot be changed orally, and no
executory agreement shall be effective to waive, change, modify or discharge it
in whole or in part unless such executory agreement is in writing and is signed
by the parties against whom enforcement of any waiver, change, modification or
discharge is sought.
9.9 Tenant Notification Letters. Purchaser shall deliver to each and
every tenant of the Property under a lease thereof a signed statement
acknowledging Purchaser's receipt and responsibility for each tenant's security
deposit (to the extent delivered by Seller to Purchaser at Closing), if any, all
in compliance with and pursuant to the applicable provisions of Texas law. The
provisions of this paragraph shall survive Closing.
9.10 Calculation of Time Periods. Unless otherwise specified, in
computing any period of time described in this Agreement, the day of the act or
event after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included, unless
such last day is a Saturday, Sunday, or legal holiday, in which event the period
shall run until the end of the next day which is neither a Saturday, Sunday, or
legal holiday.
9.11 Time of Essence. Seller and Purchaser agree that time is of the
essence of this Agreement.
9.12 Successors and Assigns. The terms and provisions of this Agreement
are to apply to and bind the permitted successors and assigns of the parties
hereto.
9.13 Entire Agreement. This Agreement, including the Exhibits, contains
the entire agreement between the parties pertaining to the subject matter hereof
and fully supersedes all prior agreements and understandings between the parties
pertaining to such subject matter.
9.14 Further Assurances. Each party agrees that it will without further
consideration execute and deliver such other documents and take such other
action, whether prior or subsequent to Closing, as may be reasonably requested
by the other party to consummate more effectively the purposes or subject matter
of this Agreement. Without limiting the generality of the foregoing, Purchaser
shall, if requested by Seller, execute acknowledgments of receipt with respect
to any materials delivered by Seller to Purchaser with respect to the Property.
13
9.15 Attorneys' Fees. In the event of any controversy, claim or dispute
between the parties affecting or relating to the subject matter or performance
of this Agreement, the prevailing party shall be entitled to recover from the
nonprevailing party all of its reasonable expenses, including reasonable
attorneys' and accountants' fees.
9.16 Counterparts. This Agreement may be executed in several
counterparts, and all such executed counterparts shall constitute the same
agreement. It shall be necessary to account for only one such counterpart in
proving this Agreement.
9.17 Severability. If any provision of this Agreement is determined by
a court of competent jurisdiction to be invalid or unenforceable, the remainder
of this Agreement shall nonetheless remain in full force and effect.
9.18 Applicable Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE FEDERAL LAWS OF THE UNITED
STATES AND THE LAWS OF THE STATE OF TEXAS. PURCHASER HEREBY IRREVOCABLY SUBMITS
TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN XXXXXX COUNTY,
TEXAS, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
AND HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING SHALL BE HEARD AND DETERMINED IN A STATE OR FEDERAL COURT SITTING IN
XXXXXX COUNTY, TEXAS. NOTHING CONTAINED IN THIS SECTION 9.18 SHALL AFFECT THE
RIGHT OF SELLER TO BRING ANY ACTION OR PROCEEDING AGAINST PURCHASER OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION. PURCHASER AND SELLER AGREE
THAT THE PROVISIONS OF THIS SECTION 9.18 SHALL SURVIVE THE CLOSING OF THE
TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
9.19 Limited Liability. The obligations of Seller, its agents,
representatives or employees, arising by virtue of this Agreement shall be
limited to the interest of Seller in the Property and resort shall not be had to
any other assets of Seller, its agents, representatives or employees.
9.20 No Third Party Beneficiary. The provisions of this Agreement and
of the documents to be executed and delivered at Closing are and will be for the
benefit of Seller and Purchaser only and are not for the benefit of any third
party, and accordingly, no third party shall have the right to enforce the
provisions of this Agreement or of the documents to be executed and delivered at
Closing.
9.21 Exhibits and Schedules. The following schedules or exhibits
attached hereto shall be deemed to be an integral part of this Agreement:
(a) Exhibit A - Legal Description of the Land
(b) Exhibit B - Form of Special Warranty Deed
(c) Exhibit C - Form of Xxxx of Sale and Assignment
14
(d) Exhibit D - Form of Assignment and Assumption of Contracts
(e) Exhibit E - Form of Closing Memorandum and Indemnification Agreement
(f) Exhibit F - Form of Tenant Notification Letter
(g) Exhibit G - Form of FIRPTA Affidavit
9.22 Captions. The section headings appearing in this Agreement are for
convenience of reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
9.23 Construction. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
9.24 Termination of Agreement. It is understood and agreed that if
either Purchaser or Seller terminates this Agreement pursuant to a right of
termination granted hereunder, such termination shall operate to relieve Seller
and Purchaser from all obligations under this Agreement, except for such
obligations as are specifically stated herein to survive the termination of this
Agreement (such as the indemnification obligation of Purchaser set forth in
Section 3.1).
9.25 Municipal Utility District Notices. Purchaser agrees that if the
Property or any portion thereof is located in a municipal utility district,
Purchaser will, within five (5) days after request by Seller, execute any and
all notices which, in the opinion of counsel for Seller, are required by law to
be given to Purchaser with respect to the Property.
9.26 Effective Date. If Purchaser fails to execute this Agreement and
deliver same to Seller on or before 5 p.m., Austin, Texas time, on June 17,
2005, all negotiations between Seller and Purchaser concerning the sale of the
Property shall be deemed terminated. Upon execution of this Agreement by
Purchaser and delivery of same to Seller, this Agreement shall constitute an
offer by Purchaser. The offer by Purchaser herein contained shall automatically
be withdrawn and become of no force or effect unless this Agreement is executed
by Seller and delivered to the Title Company on or before 5 p.m., Austin, Texas
time, on June 17, 2005. The date of delivery to the Title Company of a fully
executed counterpart of this Agreement, as evidenced by the Title Company's
notation in the space set forth below, shall be deemed the effective date of
this Agreement (the "Effective Date").
SIGNATURE PAGE FOLLOWS
15
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement to be
effective as of the Effective Date.
SELLER:
LONDON ACQUISITION, INC.
By: _/s/______________________________
XXXXXX X. XXXX, PRESIDENT
BUYER:
By:__/s/______________________________
XX. XXXX X. XXXXXXXXX,
As Qualified Exchange Accommodator
For Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
EQUITABLE BENEFICIARY:
XXXXXXXXXX REALTY GROUP, INC.
By:__/s/______________________________
XX. XXXXXX XXXXXX,
Xxxxxxxxxx Realty Group, Inc.
a Nevada corporation
16
ACKNOWLEDGMENT BY TITLE COMPANY
The Title Company hereby agrees to perform its obligations under this
Agreement and acknowledges receipt of a fully executed counterpart of this
Agreement as of _______________, 2005, which date shall be deemed the "Effective
Date" of this Agreement.
TITLE COMPANY:
First American Title Insurance Company
By:____________________________________
Name: Dee Xxx Xxxx
Title:_________________________________
Three Xxxxxx Skyway,
0000 XxXxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Dee Xxx Xxxx
(000) 000-0000 (512)
329-9173 (facsimile)
17
EXHIBIT A
Legal Description of the Land
EXHIBIT B
SPECIAL WARRANTY DEED
THE STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TRAVIS ss.
THAT LONDON ACQUISITIONS, INC., a Texas corporation (hereinafter
referred to as "Grantor"), for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration to it in hand paid by
__________________________________, a _________________________ (hereinafter
referred to as "Grantee"), whose mailing address is
_____________________________________________________________________________,
the receipt and sufficiency of which consideration are hereby acknowledged, and
upon and subject to the exceptions, liens, encumbrances, terms and provisions
hereinafter set forth and described, has GRANTED, BARGAINED, SOLD and CONVEYED,
and by these presents does hereby GRANT, BARGAIN, SELL and CONVEY, unto Grantee
all of the real property situated in Xxxxxx County, Texas, described on Exhibit
A attached hereto and made a part hereof for all purposes, together with all and
singular the rights, benefits, privileges, easements, tenements, hereditaments
and appurtenances thereon or in anywise appertaining thereto, and together with
all improvements located thereon and any right, title and interest of Grantor in
and to adjacent streets, alleys and rights-of-way (said land, rights, benefits,
privileges, easements, tenements, hereditaments, appurtenances, improvements and
interests being hereinafter referred to as the "Property").
This conveyance is made subject and subordinate to those encumbrances
and exceptions set forth on Exhibit B attached hereto and made a part hereof for
all purposes and all other matters of record affecting the Property
(collectively, the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions,
as aforesaid, unto Grantee, its successors and assigns, forever; and Grantor
does hereby bind itself and its successors, to WARRANT AND FOREVER DEFEND all
and singular the Property unto Grantee, its successors and assigns, against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof, by, through or under Grantor, but not otherwise.
By acceptance of this Special Warranty Deed, Grantee acknowledges and
agrees that any and all liability hereunder of Grantor, its agents,
representatives or employees, including the Special Warranty of title herein
contained, shall be limited to and satisfied solely from the Grantor's proceeds
from the Property.
By acceptance of this Special Warranty Deed, Grantee assumes payment of
all real property taxes on the Property for the year 2005 and subsequent years.
IN WITNESS WHEREOF, this Special Warranty Deed has been executed by
Grantor to be effective as of _________________, 2005.
1
GRANTOR:
LONDON ACQUISITIONS, INC.
By:
---------------------------------
Name:
-------------------------------
Its:
--------------------------------
THE STATE OF TEXAS ss.
ss.
COUNTY OF TRAVIS ss.
This instrument was acknowledged before me on _____________, 2005, by
______________________, the ____________________________ of London Acquisitions,
Inc., a Texas corporation.
-----------------------------------------------
Notary Public in and for the State of Texas
-----------------------------------------------
Printed/Typed Name of Notary
My Commission Expires: _______________________
2
EXHIBIT C
XXXX OF SALE AND ASSIGNMENT
STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TRAVIS ss.
THAT this XXXX OF SALE AND ASSIGNMENT (this "Xxxx of Sale") is made
from THAT London Acquisitions, Inc., a Texas corporation ("Assignor"), to
____________________________________, a __________________________ ("Assignee").
RECITALS
1. Concurrently with the execution and delivery of this Xxxx of Sale,
Assignor is conveying to Assignee, by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more particularly described on Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements").
2. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain the Assigned Properties (as hereafter defined),
subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the receipt of Ten and No/100
Dollars ($10.00) and other good and valuable consideration in hand paid by
Assignee to Assignor, the receipt and sufficiency of which are hereby
acknowledged by Assignor, Assignor does hereby ASSIGN, TRANSFER, SET OVER, and
DELIVER to Assignee the following (collectively, the "Assigned Properties"):
(a) The personal property and inventory, if any, owned by
Assignor upon the Land or within the Improvements, including
specifically, without limitation, heating, ventilation and air
conditioning systems and equipment, appliances, furniture, carpeting,
draperies and curtains, tools and supplies, and other items of personal
property (excluding cash) used in connection with the operation of the
Land and the Improvements (collectively, the "Personal Property"); and
(b) All of Assignor's right, title and interest in and to all
assignable warranties and guaranties issued in connection with the
Improvements or the Personal Property (collectively, the "Warranties");
provided, however, that Assignor makes no representation or warranty
with respect to the existence, availability or assignability of any
Warranties.
1
ASSIGNOR MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE IN RESPECT OF THE PERSONAL PROPERTY, AND THE SAME IS SOLD IN
"AS IS, WHERE IS" CONDITION, WITH ALL FAULTS. BY EXECUTION OF THIS XXXX OF SALE,
ASSIGNEE AFFIRMS THAT IT HAS NOT RELIED ON ASSIGNOR'S SKILL OR JUDGMENT TO
SELECT OR FURNISH THE PERSONAL PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT
ASSIGNOR MAKES NO WARRANTY THAT THE PERSONAL PROPERTY IS FIT FOR ANY PARTICULAR
PURPOSE, AND THAT THE PERSONAL PROPERTY IS BEING SOLD TO ASSIGNEE WITHOUT
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY.
This Xxxx of Sale is made by Assignor and accepted by Assignee subject
to the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Assigned Properties.
TO HAVE AND TO HOLD the Assigned Properties unto Assignee, its
successors and assigns, forever, and Assignor does hereby bind itself and its
successors to WARRANT AND FOREVER DEFEND, all and singular, title to the
Assigned Properties unto Assignee, its successors and assigns, against every
person whomsoever lawfully claiming or to claim the same, or any part thereof
by, through or under Assignor, but not otherwise, subject to the Permitted
Exceptions described in the Deed.
By acceptance of this Xxxx of Sale and Assignment, Assignee
acknowledges and agrees that any and all liability hereunder of Assignor, its
agents, representatives or employees, shall be limited to and satisfied solely
from the Assignor's proceeds from the Assigned Properties.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2
EXECUTED to be effective as of __________________, 2005.
ASSIGNOR:
LONDON ACQUISITIONS, INC.
By:
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
THE STATE OF TEXAS ss.
ss.
COUNTY OF TRAVIS ss.
This instrument was acknowledged before me on _____________, 2005, by
______________________, the ____________________________ of London Acquisitions,
Inc., a Texas corporation.
-----------------------------------------------
Notary Public in and for the State of Texas
-----------------------------------------------
Printed/Typed Name of Notary
My Commission Expires: _______________________
3
ASSIGNEE:
BUYER:
By:________________________________
XX. XXXX X. XXXXXXXXX
As Qualified Exchange Accommodator
For Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
THE STATE OF CALIFORNIA ss.
ss.
COUNTY OF SAN MATEO ss.
This instrument was acknowledged before me on June 14, 2005, by Xxxx X.
Xxxxxxxxx, As Qualified Exchange Accommodator for Xxxxxxxxxx Realty Group, Inc.,
a Nevada corporation
-------------------------------------------------
Notary Public in and for the State of California
-------------------------------------------------
Printed/Typed Name of Notary
My Commission Expires: _________________________
4
EXHIBIT D
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
THE STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF TRAVIS ss.
THAT this ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this "Assignment") is
made by and between London Acquisitions, Inc., a Texas corporation ("Assignor"),
and ________________, a _________________ ("Assignee").
RECITALS
1. Concurrently with the execution and delivery of this Assignment,
Assignor is conveying to Assignee by Special Warranty Deed (the "Deed") that
certain tract of land (the "Land") more specifically described in Exhibit A
attached hereto and made a part hereof for all purposes, together with the
improvements located thereon (the "Improvements") and the personal property
owned by Assignor upon the Land or within the Improvements (the "Personal
Property").
2. Assignor desires to assign, transfer and convey to Assignee, and
Assignee desires to obtain, all of Assignor's right, title and interest in and
to the Contracts (as hereinafter defined), subject to the terms and conditions
set forth herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) and other good and valuable consideration to Assignor in hand
paid by Assignee, the receipt and sufficiency of which are hereby acknowledged,
Assignor does hereby SELL, ASSIGN, CONVEY, TRANSFER, SET-OVER and DELIVER unto
Assignee all of Assignor's right, title and interest in and to the following
(collectively, the "Contracts"):
(a) all oral or written agreements pursuant to which any
portion of the Land or Improvements is used or occupied by anyone other
than Assignor (collectively, the "Leases"), including, without
limitation, Leases more particularly described in the rent roll
attached hereto as Exhibit B and made a part hereof; provided, however,
that Assignor reserves and retains for itself all claims and causes of
action accruing to Assignor with respect to the Leases prior to the
effective date hereof.
(b) all assignable contracts and agreements relating to the
upkeep, repair, maintenance or operation of the Land, Improvements or
Personal Property, including, specifically, without limitation, all
assignable equipment leases (collectively, the "Operating Agreements");
provided, however, that Assignor makes no representation or warranty
with respect to the assignability of any of the Operating Agreements.
1
This Assignment is made by Assignor and accepted by Assignee subject to
the "Permitted Exceptions" described in the Deed, to the extent that same are
validly existing and affect the Contracts.
By execution of this Assignment, Assignee assumes and agrees to perform
all of the covenants, agreements and obligations under the Contracts binding on
Assignor or the Land, Improvements, or Personal Property (such covenants,
agreements and obligations being herein collectively referred to as the
"Contractual Obligations"), as such Contractual Obligations shall arise or
accrue from and after the date of this Assignment. Without limiting the
generality of the preceding sentence, Assignee acknowledges the receipt of all
security deposits described in the Leases and agrees to apply same in accordance
with the terms of the Leases. Assignee hereby agrees to indemnify, hold harmless
and defend Assignor from and against any and all third party obligations,
liabilities, costs and claims (including reasonable attorney's fees) arising as
a result of or with respect to any of the Contractual Obligations that are
attributable to the period of time from and after the date of this Assignment.
Assignor agrees to indemnify, hold harmless and defend Assignee from
and against any and all third party obligations, liabilities, costs and claims
(including reasonable attorney's fees) arising as a result of or with respect to
any of the Contractual Obligations that are attributable to the period of time
prior to the date of this Assignment.
ASSIGNEE ACKNOWLEDGES THAT IT HAS INSPECTED THE CONTRACTS AND THAT THIS
ASSIGNMENT IS MADE BY ASSIGNOR AND ACCEPTED BY ASSIGNEE WITHOUT REPRESENTATION
OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, AND WITHOUT RECOURSE
AGAINST ASSIGNOR, EXCEPT AS EXPRESSLY SET FORTH HEREIN.
TO HAVE AND TO HOLD all and singular the Contracts unto Assignee, its
successors and assigns, and Assignor does hereby bind itself and its successors
to WARRANT AND FOREVER defend all and singular the Contracts unto Assignee, its
successors and assigns, against every person whomsoever lawfully claiming or
attempting to claim the same, or any part thereof, by, through or under
Assignor, but not otherwise, subject to the Permitted Exceptions described in
the Deed.
By acceptance of this Assignment and Assumption of Contracts, Assignee
acknowledges and agrees that any and all liability hereunder of Assignor, its
agents, representatives or employees, shall be limited to and satisfied solely
from Assignor's proceeds from the sale of the Land and Improvements.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2
EXECUTED to be effective as of ________________, 2005.
ASSIGNOR:
LONDON ACQUISITIONS, INC.
By:
--------------------------------------------
Name:
------------------------------------------
Its:
-------------------------------------------
THE STATE OF TEXAS ss.
ss.
COUNTY OF TRAVIS ss.
This instrument was acknowledged before me on _____________, 2005, by
______________________, the ____________________________ of London Acquisitions,
Inc., a Texas corporation.
----------------------------------------------
Notary Public in and for the State of Texas
----------------------------------------------
Printed/Typed Name of Notary
My Commission Expires: ______________________
3
ASSIGNEE:
----------------------------------,
a ________________________________
By: ______________________________
Name: _____________________________
Title: ____________________________
THE STATE OF TEXAS ss.
ss.
COUNTY OF ______________ ss.
This instrument was acknowledged before me on _________________, 2005,
by __________________________, the ________________ of ________________________,
a ____________________, on behalf of said __________________.
-------------------------------------------
Notary Public in and for the State of Texas
-------------------------------------------
Printed/Typed Name of Notary
My Commission Expires: ___________________
4
EXHIBIT E
CLOSING MEMORANDUM AND INDEMNIFICATION AGREEMENT
THIS CLOSING MEMORANDUM AND INDEMNIFICATION AGREEMENT (the "Agreement")
is entered into to be effective as of _______________, 2005 (the "Closing
Date"), by and between London Acquisitions, Inc., a Texas corporation
("Seller"), and ___________________, a ___________________ ("Purchaser").
In connection with and in consideration of the closing ("Closing") of
the transaction contemplated under that certain Purchase Agreement (the
"Contract") dated to be effective as of __________________, 2005 (the "Effective
Date"), between Seller and Purchaser, covering that certain property (the
"Property") located in Xxxxxx County, Texas, and more particularly described in
the Contract, Seller and Purchaser hereby agree as follows:
1. Proration Date. All prorations have been made as of 12:01 a.m.,
Austin, Texas time, on the Closing Date, as if Purchaser were vested with title
to the Property during the entire Closing Date.
2. Indemnification. Except as otherwise herein provided, any and all
costs, expenses and liabilities relating to the operation, management or
ownership of the Property (such costs, expenses and liabilities being herein
referred to collectively as the "Ownership Obligations") arising or accruing
during the period prior to the Closing Date, including, but not limited to,
accounts and payments under service contracts and utility charges, are the
responsibility of Seller and will be paid by Seller promptly upon receipt of
billing therefor, and Seller hereby holds Purchaser harmless with respect to
such Ownership Obligations and agrees to indemnify Purchaser from any loss,
liability or claim, including, without limitation, reasonable attorneys' fees,
relating to such Ownership Obligations. Any and all Ownership Obligations
arising or accruing during the period from and after the Closing Date,
including, but not limited to, accounts and payments under service contracts and
utility charges, are the responsibility of Purchaser and will be paid by
Purchaser promptly upon receipt of billing therefor, and Purchaser hereby holds
Seller harmless with respect to such Ownership Obligations and agrees to
indemnify Seller from any loss, liability or claim, including, without
limitation, reasonable attorneys' fees, relating to such Ownership Obligations.
To the extent not reflected in the closing statements (the "Closing Statements")
evidencing the transaction contemplated under the Contract, Purchaser and Seller
agree to adjust between themselves outside of Closing any amounts which are the
responsibility of the other pursuant to this paragraph.
3. Real Estate Taxes. The 2005 real estate taxes with respect to the
Property shall be paid by Purchaser prior to their becoming delinquent, with
Seller being charged at Closing an amount equal to that portion of such taxes
which relate to the period before the Closing Date. Any apportionment of real
estate taxes to be made with respect to a tax year for which the tax rate or
assessed valuation, or both, have not yet been fixed shall be based upon the tax
rate and/or assessed valuation last fixed. To the extent that the actual taxes
1
for the current year differ from the amount so apportioned at Closing, the
parties hereto shall make all necessary adjustments by appropriate payments
between themselves following the Closing.
4. Rents. Tenant rent and other income for the month of Closing have
been apportioned as of the Closing Date, as reflected in the Closing Statements.
Unpaid and delinquent rent collected by Seller and Purchaser after the Closing
Date shall be delivered as follows: (a) if Seller hereafter collects any unpaid
or delinquent rent for the Property, Seller shall deliver to Purchaser any such
rent relating to the Closing Date and any period thereafter within fifteen (15)
days after the receipt thereof, and (b) if Purchaser hereafter collects any
unpaid or delinquent rent from the Property, Purchaser shall deliver to Seller
any such rent relating to the period prior to the Closing Date within fifteen
(15) days after the receipt thereof. Seller and Purchaser agree that (i) all
rent received by Seller after the Closing Date shall be applied first to
delinquent rentals, if any, in the order of their maturity, and then to current
rentals, and (ii) all rent received by Purchaser after the Closing Date shall be
applied first to current rentals and then to delinquent rentals, if any, in
inverse order of maturity. Purchaser will make a good faith effort after Closing
to collect all rents in the usual course of Purchaser's operation of the
Property, but Purchaser will not be obligated to institute any lawsuit or other
collection procedures to collect delinquent rents.
5. Brokerage Commissions. Except with respect to the commission payable
by Seller to Xxxxx Xxxxxxx pursuant to Section 8.1 of the Contract, Seller and
Purchaser each hereby indemnify and agree to hold the other harmless from and
against any and all loss, cost, or expense (including reasonable attorneys' fees
and expenses) resulting from any claim for any fee, commission, or similar
payment by any broker, agent, finder, or salesman as a result of any action of
Seller or Purchaser, respectively, related to the origination, negotiation, or
consummation of the transaction contemplated under the Contract.
6. Errors or Omissions. Seller and Purchaser agree to adjust between
themselves after Closing any errors or omissions in the prorations or
adjustments set forth in the Closing Statements and any other prorations or
adjustments made pursuant to the Contract. Notwithstanding anything contained
herein to the contrary, such apportionments shall be deemed final and not
subject to further post Closing adjustments if no such adjustments have been
requested upon the earlier to occur of (a) ten (10) days after such time as all
necessary information is available to make a complete and accurate determination
of such apportionments, or (b) six (6) months following the Closing Date.
7. Interpretation. It is intended that the provisions in this Agreement
be construed in pari materia with Article 4 of the Contract so as to maintain
consistency between the provisions hereof and the provisions thereof. However,
in the event of any unavoidable conflict between a provision in this Agreement
and a provision in the Contract, the provision in this Agreement shall govern.
In addition, the provisions of this Agreement shall control over any conflicting
provisions in the other documents executed in connection with Closing, including
specifically, without limitation, that certain Assignment of Contracts of even
date herewith executed by Seller and Purchaser.
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8. Survival. This Agreement and the agreements and the provisions
contained herein shall survive Closing and the execution and delivery of any
documents in connection therewith.
9. Limitation of Liability. Purchaser acknowledges and agrees that any
and all liability hereunder of Seller, its agents, representatives or employees,
shall be limited to and satisfied solely from the Seller's proceeds from the
Property.
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EXECUTED to be effective as of the day and year first above written.
SELLER:
LONDON ACQUISITIONS, INC.
By:
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
PURCHASER:
--------------------------------------,
a ____________________________________
By: _________________________________
Name: ________________________________
Title: _______________________________
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EXHIBIT F
TENANT NOTIFICATION LETTER
________________, 20___
[Name and Address of Tenant]
Re: Sale of __________ located at _____________________________
Gentlemen:
Please be advised that _______________, a ________________
("Purchaser") has purchased the captioned property, in which you occupy space as
a tenant pursuant to a lease (the "Lease"), from ______________________________,
as Trustee ("Trustee"), the previous owner thereof. In connection with such
purchase, Trustee has assigned its interest as landlord in the Lease to
Purchaser and has transferred your security deposit in the amount of $__________
(the "Security Deposit") to Purchaser. Purchaser specifically acknowledges the
receipt of and responsibility for the Security Deposit, the intent of Purchaser
and Trustee being to relieve Trustee of any liability for the return of the
Security Deposit.
All rental and other payments that become due subsequent to the date
hereof should be payable to ___________________ and should be addressed as
follows:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
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In addition, all notices from you to the landlord concerning any matter
relating to your tenancy should be sent to _________________ at the address
above.
Very truly yours,
LONDON ACQUISITIONS, INC.
By:
---------------------------------------
Name:
-------------------------------------
Its:
--------------------------------------
PURCHASER:
-------------------------------------,
a ___________________________________
By: _________________________________
Name: ________________________________
Title: _______________________________
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EXHIBIT G
FIRPTA AFFIDAVIT
STATE OF TEXAS ss.
ss. KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS ss.
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a foreign
person. To inform ________________, a ___________ ("Transferee"), that
withholding of tax is not required upon the disposition of a U.S. real property
interest by London Acquisitions, Inc., a Texas corporation ("Transferor"), the
undersigned hereby certifies as follows:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in
the Internal Revenue Code and Income Tax Regulations);
2. Transferor is not a disregarded entity as defined in ss.
1.1445-2(b)(2)(iii);
3. Transferor's U.S. employer identification number is:
#_____________________;
4. Transferor's office address is 0000 Xxxxxxx xx Xxxxx Xxxxxxx
X., Xxxxx 000, Xxxxxx, XX 00000
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by the Transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned, in the capacity set forth
below, hereby declares that he has examined this certification and to the best
of his knowledge and belief it is true, correct, and complete, and the
undersigned further declares that he has authority to sign this document in such
capacity.
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EXECUTED effective as of _________________, 2005.
TRANSFEROR:
LONDON ACQUISITIONS, INC.
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
SWORN TO AND SUBSCRIBED BEFORE ME this ___ day of ______________, 2005.
---------------------------------------------
Notary Public in and for the State of Texas
---------------------------------------------
Printed or Typed Name of Notary
My Commission Expires:_______________________
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