PURCHASE AND SALE AGREEMENT
THIS
PURCHASE AND SALE
AGREEMENT ("Agreement") is made between CHIMNEY SQUARE, L.P., a
Texas limited partnership (the "Seller") and XXXXXX XXXXXX, TRUSTEE OF
THE XXXXXX FAMILY TRUST DATED OCTOBER 30, 1989 (the
"Purchaser").
In
consideration of the mutual
covenants and representations herein contained, Seller and Purchaser agree
as
follows:
1.
PURCHASE
AND SALE
1.1 Purchase
and Sale. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell and convey to Purchaser, and Purchaser
hereby agrees to purchase from Seller, the following described property (herein
collectively called the "Property"):
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(a)
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Land. That
certain tract of land (collectively, the "Land") situated in
Abilene, Xxxxxx County, Texas, being more particularly described
on
Exhibit "A" attached hereto and incorporated herein by
reference;
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(b)
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Improvements. All
improvements on the Land, consisting of an apartment community and
related
amenities commonly known to Seller as "Chimney Square" (the
"Improvements");
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(c)
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Leases. All
leases (the "Leases") of any portion of the Improvements, and all
tenant, pet or other security deposits collected from any tenants
as
provided for under the Leases and not previously applied by Seller
as
provided in the Leases;
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(d)
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Tangible
Personal Property. All appliances, fixtures,
equipment, machinery, furniture, carpet, drapes, keys and other personal
property, if any, owned by Seller and located on or about the Land
and
Improvements and used exclusively in the operation and maintenance
thereof
(the "Tangible Personal
Property").
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(e)
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Intangible
Property. All of Seller's right, title and
interest in all intangible property (the "Intangible Property"), if
any, pertaining to the Land, the Improvements, or the Tangible Personal
Property or the use thereof, including without limitation, transferable
telephone exchange numbers, transferable service contracts (the
"Contracts") which Purchaser elects in writing during the
Inspection Period to assume, transferable warranties (the
"Warranties"), transferable licenses or permits, tradenames, and
all plans and specifications, floor plans and landscape plans in
the
possession of Seller;
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(f)
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Easements. All
easements, if any, benefiting the Land or the Improvements (the
"Easements"); and
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(g)
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Rights
and Appurtenances. All of Seller's right, title
and interest in all rights and appurtenances, if any, pertaining
to the
foregoing, including any right, title and interest of Seller in and
to
adjacent streets, alleys or rights-of-way (the "Rights and
Appurtenances").
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2.
PURCHASE
PRICE
2.1 Purchase
Price. The purchase price (the "Purchase Price")
for the Property shall be SIX MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100
DOLLARS ($6,250,000.00) and shall be paid by Purchaser to Seller in immediately
available funds at the Closing.
3.
XXXXXXX
MONEY
3.1 Xxxxxxx
Money. Purchaser shall deliver to the Title Company (as
defined in Section 6.1) within two (2) business days following delivery
to Purchaser of an executed counterpart of this Agreement to the Title Company
by Seller and Purchaser, the sum of TWO HUNDRED THOUSAND AND NO/100 DOLLARS
($200,000.00) by wire transfer of immediately available funds (the "Xxxxxxx
Money"). The Xxxxxxx Money shall be invested by the Title Company in a
short-term interest-bearing account at a financial institution acceptable to
Seller and Purchaser insured by the Federal Deposit Insurance
Corporation. Seller shall have the right and option of terminating
this Agreement if the Xxxxxxx Money is not delivered to the Title Company within
the time limits set forth above. The interest derived from investment
of the Xxxxxxx Money shall be added to and become a part of the Xxxxxxx Money
and shall be disbursed by the Title Company to the party who is entitled to
receive the Xxxxxxx Money in accordance with the applicable provisions hereof.
If this Agreement is not terminated by Purchaser during the Inspection Period
pursuant to Sections 4.1, 4.2 or 4.4 below, upon expiration of the
Inspection Period (i) the Xxxxxxx Money plus the accrued interest thereon shall
be deemed earned by Seller and become non-refundable to Purchaser under all
event and circumstances except for a subsequent default by Seller under this
Agreement in which event the Xxxxxxx Money shall be refundable to Purchaser
pursuant to Section 8.1 below, and (ii) Seller and Purchaser hereby
authorize, direct and instruct the Title Company to disburse the Xxxxxxx Money
plus the accrued interest thereon to Seller. After the Xxxxxxx Money is
disbursed to Seller, Seller may use the Xxxxxxx Money in its discretion, subject
to the provisions of this Agreement. At no time shall Seller be obligated to
pay, account for, or accrue for the benefit of Purchaser any interest or other
sum on any portion of the Xxxxxxx Money held by Seller. Seller may commingle
the
Xxxxxxx Money held by Seller with Seller funds and shall not be obligated to
hold any portion of the Xxxxxxx Money in a segregated or trust account. If
the
sale of the Property is consummated pursuant to the terms of this Agreement,
the
Xxxxxxx Money shall be applied by Seller to the payment of Purchase Price at
the
Closing. If Purchaser is entitled to the return of the Xxxxxxx Money
in accordance with the terms of this Agreement, the Xxxxxxx Money shall be
returned to Purchaser upon satisfaction of the conditions set forth in
Section 10.12 below.
4.
SURVEY,
TITLE AND CONDITIONS TO CLOSING
4.1 Survey. Within
five (5) days from the Effective Date, Seller will deliver to Purchaser a copy
of the latest survey of the Land and Improvements in Seller's possession. (the
"Survey"). After the Effective Date, Purchaser may, at
Purchaser's expense, obtain a new or updated survey of the property (the
"Survey"). Purchaser shall cause the certification on any Survey obtained
by Purchaser to be addressed to include Seller. Purchaser shall also promptly
deliver to Seller and Seller's counsel a copy of any Survey obtained by
Purchaser. If the Survey shows any easement, right-of-way, encroachment,
conflict, protrusion or other matter affecting the Property that is unacceptable
to Purchaser, Purchaser shall prior to expiration of the Inspection Period
(as
hereinafter defined), notify Seller in writing of such fact and the reasons
therefor (the "Purchaser's Survey Objections"). If Purchaser
fails to notify Seller of any such Purchaser's Survey Objections and the reasons
such items are unacceptable to Purchaser, upon the expiration of the Inspection
Period, Purchaser shall be deemed to have accepted the form and substance of
the
Survey and all matters shown thereon and such matters shall be included in
the
term "Permitted Encumbrances." Notwithstanding anything to the
contrary contained herein, Seller shall have no obligation to bring any action
or proceeding or otherwise to incur any expense whatsoever to eliminate or
modify any of the Purchaser's Survey Objections. If Seller is unable
or unwilling to eliminate or modify or commit in writing to so eliminate or
modify prior to Closing the Purchaser's Survey Objections to the reasonable
satisfaction of Purchaser, Purchaser may (as its sole and exclusive remedy)
(i)
terminate this Agreement by notice in writing to Seller prior to the expiration
of the Inspection Period, or (ii) may accept such title to the Property as
Seller can deliver without any reduction in Purchase Price, in which event
such
uncured Purchaser's Survey Objections shall be included in the term "Permitted
Encumbrances." If Purchaser does not elect to terminate this
Agreement within the period described in the immediately-preceding sentence,
Purchaser shall be deemed to have accepted the form and substance of the Survey
and all uncured matters shown thereon (including, without limitation, the
Purchaser's Survey Objections) and such matters shall be included in the term
"Permitted Encumbrances." In the event of a termination pursuant to
this Section 4.1, the parties shall have no further rights or obligations
hereunder and the Xxxxxxx Money shall be returned to Purchaser upon satisfaction
of the conditions set forth in Section 10.12
hereof.
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4.2 Owner's
Title Policy Commitment. Seller shall obtain and deliver
to Purchaser, within ten (10) days after the Effective Date, a commitment for
an
Owner's policy of title insurance (herein called the "Title Commitment")
issued by the Title Company, showing title to the Property in its present status
and committing to issue an Owner's title policy to Purchaser at the Closing,
together with the best available copies of all documents listed as exceptions
in
the Title Commitment. If any exceptions appear in the Title
Commitment that affect the Property and that are unacceptable to Purchaser,
Purchaser shall prior to the expiration of the Inspection Period, notify Seller
in writing of such fact and the reasons therefor (the "Purchaser's Title
Objections"). If Purchaser fails to notify Seller of any such Purchaser's
Title Objections and the reasons such objections are unacceptable to Purchaser,
upon the expiration of the Inspection Period, Purchaser shall be deemed to
have
accepted all exceptions to title and all other matters shown on the Title
Commitment and all such exceptions and all other matters shown on the Title
Commitment shall be included in the term "Permitted
Encumbrances." Notwithstanding anything to the contrary contained
herein, Seller shall have no obligation to bring any action or proceeding or
otherwise to incur any expense whatsoever to eliminate or modify Purchaser's
Title Objections; provided, however, Seller shall be obligated to satisfy or
discharge any monetary lien or encumbrance for a liquidated amount affecting
the
Property created by, through, or under Seller, except for the liens to be
assumed by Purchaser as a part of the Purchase Price. If Seller is
unable or unwilling to eliminate or modify or commit in writing to so eliminate
or modify prior to Closing Purchaser's Title Objections to the reasonable
satisfaction of Purchaser, other than as set forth above, Purchaser may (as
its
sole and exclusive remedy) (i) terminate this Agreement by giving notice in
writing to Seller prior to the expiration of the Inspection Period, or (ii)
accept such title as Seller can deliver without any reduction in Purchase Price,
in which event, such uncured Purchaser's Title Objections shall be included
in
the term "Permitted Encumbrances." If Purchaser does not elect to
terminate this Agreement within the period described in the immediately
preceding sentence, Purchaser shall be deemed to have accepted all then uncured
exceptions to title and all such exceptions and matters shall be included in
the
term "Permitted Encumbrances." In the event of a termination pursuant
to this Section 4.2, the parties shall have no further rights or
obligations hereunder and the Xxxxxxx Money shall be returned to Purchaser
upon
satisfaction of the conditions set forth in Section 10.12
hereof. The term "Permitted Encumbrances" as used herein
includes: (i) any easement, right-of-way, encroachment, conflict, discrepancy,
overlapping of improvements, protrusion, lien, encumbrance, restriction,
condition, covenant or other matter with respect to the Property that is
reflected or addressed on the Survey or the Title Commitment to which Purchaser
fails to timely object pursuant to Sections 4.1 and 4.2 of this
Agreement, (ii) any of Purchaser's Survey Objections or Purchaser's Title
Objections that remain uncured, other than set forth above, for whatever reason,
at the Closing Date, and (iii) the rights of parties claiming under the
Leases.
4.3 Delivery
of Information. Within five (5) days from the Effective
Date, Seller shall furnish or cause to be furnished to Purchaser, to the extent
such items are within Seller's possession and to the extent such items have
not
previously been furnished to Purchaser, copies of all items listed on Exhibit
"B" hereto (the "Delivery Items"). PURCHASER ACKNOWLEDGES
THAT THE DELIVERY ITEMS AND ANY INFORMATION CONTAINED THEREIN AND ANY REPORTS
OR
OTHER INFORMATION SUBSEQUENTLY PROVIDED BY SELLER OR SELLER'S AGENTS ARE
PROVIDED BY SELLER TO PURCHASER AS A COURTESY AND, EXCEPT AS EXPRESSLY SET
FORTH
IN THIS AGREEMENT, SELLER HAS NOT VERIFIED THE ACCURACY OF ANY INFORMATION
IN
THE DELIVERY ITEMS OR REPORTS OR OTHER INFORMATION AND THE DELIVERY OF SUCH
REPORTS OR INFORMATION BY SELLER DOES NOT CONSTITUTE A REPRESENTATION OF ANY
KIND (EXPRESSED OR IMPLIED) BY SELLER OF THE TRUTH, ACCURACY OR COMPLETENESS
OF
SUCH INFORMATION AND PURCHASER AGREES TO LOOK TO ITS OWN INSPECTIONS AND STUDIES
TO DETERMINE SUCH MATTERS. Purchaser may request from Seller, from
time to time during the pendency of this Agreement, but not more often than
monthly, financial reports regarding the operation of the Property in the form
produced by the software system used by Seller's management
company. Seller will instruct its management company to promptly
provide such information and reports to Purchaser. Purchaser
acknowledges and agrees that all information obtained from such material is
confidential and Purchaser agrees to keep such information confidential and
to
prevent its dissemination except to persons or entities or agents of Purchaser
who are assisting Purchaser in connection with this
transaction. Seller agrees as a courtesy to Purchaser to cooperate
with Purchaser by making available to Purchaser, either at the Property or
at
Seller's offices, any other information in Seller's possession relating to
the
Property.
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4.4 Inspection. Purchaser
may inspect: (i) the Property, (ii) all financial records pertaining
to the Property, (iii) all contracts, if any, in the possession of Seller or
its
management company, pertaining to the Property as of the Effective Date of
this
Agreement including, but not limited to, the Leases, management contracts,
service contracts, equipment leases and maintenance contracts, (iv) all
warranties, if any, regarding the Property as of the date of this Agreement,
in
the possession of Seller or its management company, (v) copies of the as-built
plans and specifications for the Property, if any, in the possession of Seller
or its management company, and (vi) copies of all permits or licenses issued
by
any governmental authorities or utility companies in connection with the
occupancy and use of the Improvements, including certificates of occupancy,
if
any, in the possession of Seller or its management company, at any reasonable
time during business hours beginning on the Effective Date and ending 5:00
p.m.,
Abilene, Texas time, twenty-one (21) days after the date Seller provides
Purchaser the Delivery Items pursuant to Section 4.3 above (the
"Inspection Period"); provided that (i) the Property is not damaged by
Purchaser, (ii) the Property is left in as good a condition as which Purchaser
found the Property, (iii) no tenant of Seller is unreasonably disturbed, (iv)
no
employee, independent contractor or representative of Seller is interfered
with
or harassed, and (iv) such inspection does not interfere with Seller's operation
of the Property. All Leases and lease files and other contracts, to the extent
not delivered to Purchaser as a part of the Delivery Items, will be made
available for Purchaser's inspection at the Property. For purposes of this
Agreement and the determination of the expiration of the Inspection Period,
Seller shall have been deemed to have provided the Delivery Items to Purchaser
on the date Seller deposits the Delivery Items with a national overnight courier
service to be sent to Purchaser for next business day delivery addressed to
Purchaser at the address set forth in Section 10.1 below. The inspection
rights afforded herein are expressly made subject to the rights of tenants
under
the Leases. All inspection fees, appraisal fees, engineering fees and
other expenses of any kind incurred by Purchaser relating to the inspection
of
the Property will be solely at Purchaser's expense. Seller shall
cooperate with Purchaser in all reasonable respects in making such inspections;
however, Seller shall not be required to spend any sums to cooperate with
Purchaser. Seller hereby reserves the right to have a representative
of Seller present at the time any such inspection is made. Purchaser
shall notify Seller not less than forty-eight (48) hours in advance of and
shall
obtain the tenant's consent prior to making any inspection of the interiors
of
occupied units of the Property. Purchaser shall notify Seller not
less than twenty-four (24) hours in advance of making any inspection of the
interiors of unoccupied units of the Property. In making any
inspection hereunder, Purchaser will treat and will cause any representative
of
Purchaser to treat all information obtained by Purchaser pursuant to the terms
of this Agreement and the examinations, studies, reports and inspections
conducted by or on behalf of Purchaser with respect to the Property confidential
as information and Purchaser agrees to keep such information confidential and
to
prevent its dissemination except that Purchaser may disclose such information
to
its agents and contractors assisting Purchaser in its
inspections. PURCHASER AGREES TO INDEMNIFY, DEFEND, PROTECT, SAVE AND
HOLD SELLER, ITS PARTNERS, TENANTS, CONTRACTORS, OFFICERS, DIRECTORS, EMPLOYEES,
ATTORNEYS, MANAGERS, REPRESENTATIVES AND AGENTS HARMLESS FROM AND AGAINST ANY
AND ALL INJURIES, LOSSES, LIENS, SUITS, CAUSES OF ACTION, CLAIMS, JUDGMENTS,
LIABILITIES, COSTS, EXPENSES OR DAMAGES (INCLUDING ATTORNEY'S FEES AND EXPENSES
AND COURT COSTS INCURRED IN CONNECTION WITH ENFORCING THIS INDEMNITY OR OPPOSING
ANY SUCH CLAIMS, INJURIES, LOSSES OR DAMAGES) SUSTAINED BY OR THREATENED AGAINST
SELLER WHICH RESULT FROM OR ARISE OUT OF ANY INSPECTIONS BY PURCHASER OR ITS
AUTHORIZED REPRESENTATIVES PURSUANT TO THIS AGREEMENT OR PURCHASER'S OR ITS
AUTHORIZED REPRESENTATIVES ENTRY ON THE PROPERTY PRIOR TO THE CLOSING, WHICH
OBLIGATIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT AND THE CLOSING
OF
TRANSACTION EVIDENCED BY THIS AGREEMENT. If Purchaser determines for
any reason that the Property is deficient for its intended use by Purchaser
in
any respect, in Purchaser's sole and absolute discretion, Purchaser may elect
to
terminate this Agreement by delivering written notice thereof to Seller prior
to
the expiration of the Inspection Period; in which event, Purchaser shall deliver
to Seller and any and all documents furnished to Purchaser in Section 4.3
above. Except as hereinafter provided, Purchaser acknowledges that
Seller has no obligation whatsoever to undertake any remedial work or other
curative action as a result of Purchaser's inspections. If Seller
receives timely notice of termination pursuant to this Section 4.4,
except for obligations which survive such termination as expressly set forth
herein (including, without limitation, the delivery of the information furnished
pursuant to Section 4.3 above to Seller and the indemnity obligations of
Purchaser), the parties shall have no further rights or obligations hereunder
and the Xxxxxxx Money shall be returned to Purchaser upon compliance with the
conditions set forth in Section 10.12 hereof. If Purchaser
fails to terminate this Agreement pursuant to this Section 4.4, then upon
expiration of the Inspection Period Purchaser shall be deemed to have accepted
the condition of the Property and Purchaser shall have no further right to
terminate this Agreement and receive a return of the Xxxxxxx Money except
pursuant to the provisions of Sections 7.1, 7.2 and 8.1 of this
Agreement.
4.5 Property
Information from Seller's Agents. Subsequent to the
Effective Date of this Agreement, Purchaser may request from Seller's agents
(broker, property manager, contractors, or similar individuals or entities
engaged by Seller relating to or involving the Property) information or opinions
regarding the Property or some aspect of the Property, its history, operation,
reports, condition or prospects for future use or development by
Purchaser. While Seller is willing to cooperate with Purchaser, and
Seller as a courtesy to Purchaser has instructed its agents and contractors
to
cooperate with Purchaser, such information or opinions are provided to Purchaser
as a courtesy only and SELLER IS UNWILLING TO SELL THE PROPERTY UNLESS SELLER
IS
RELEASED, AND SELLER IS HEREBY RELEASED, FROM LIABILITY BY PURCHASER FOR (i)
STATEMENTS OR OPINIONS MADE BY OR INFORMATION FURNISHED BY SELLER'S AGENTS
UNLESS THE INFORMATION OR OPINIONS ARE EXPRESSLY INCORPORATED AS SELLER
REPRESENTATIONS INTO THE CLOSING DOCUMENTS EXECUTED BY SELLER OR EXPRESSLY
SET
FORTH IN THIS AGREEMENT, OR (ii) INFORMATION WITHHELD BY SELLER'S AGENTS UNLESS
SUCH INFORMATION WAS WITHHELD AT THE EXPRESS DIRECTION OF THE GENERAL PARTNER
OF
SELLER.
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5.
NO
REPRESENTATIONS OR WARRANTIES BY SELLER
5.1 Disclaimer
of Warranties. Purchaser hereby represents, agrees and
acknowledges that:
(i) Purchaser
is purchasing the Property, and the Property shall be conveyed and transferred
to Purchaser, "AS IS, WHERE IS, AND WITH ALL FAULTS" and specifically and
expressly without any warranties, representations, or guarantees, either express
or implied, of any kind, nature, or type whatsoever from or on behalf of Seller
except as expressly incorporated as Seller representations set forth the Closing
Documents executed by Seller or in this Agreement. Purchaser further
acknowledges and agrees there are no oral agreements, warranties or
representations collateral to or affecting the Property by Seller, any agent
of
Seller or any third party. The terms and provisions of this
Section 5.1 shall expressly survive the Closing, not merge with the
provisions of any Closing Documents, and shall be specifically incorporated
into
the Deed. Seller is further not liable or bound in any manner by any
oral or written statements, representations or information pertaining to the
Property furnished by any real estate broker, agent, employee, servant or other
person, unless the same are expressly incorporated as Seller representations
in
the Closing Documents executed by Seller or this Agreement. Purchaser
acknowledges that it has not relied, and is not relying, on any information,
document, sales brochures, or other literature, maps or sketches, projection,
pro forma, statement, representation, guarantee, or warranty (whether express
or
implied, or oral or written, or material or immaterial) that may have been
given
by, or made by, or on behalf of, Seller unless expressly incorporated as Seller
representations in the Closing Documents executed by Seller or this
Agreement. Purchaser further acknowledges that, except as
incorporated as Seller representations in the Closing Documents executed by
Seller or this Agreement, Seller has not made independent investigation as
to
the accuracy or completeness of, the methods used to compile, or the
qualifications of any person preparing any information or documents provided
by
Seller to Purchaser with respect to the Property or this Agreement.
(ii) Purchaser
shall not be entitled to, and should not rely on, Seller or Seller's agents
as
to (A) the quality, nature, adequacy, or physical condition of the Property
including, but not limited to, the structural elements, foundation, roof,
appurtenances, access, landscaping, parking facilities, or the electrical,
mechanical, HVAC, plumbing, sewage or utility systems, facilities or appliances
at the Property, if any; (B) the quality, nature, adequacy, or physical
condition of soils or the existence of ground water at the Property; (C) the
existence, quality, nature, adequacy, or physical condition of any utilities
serving the Property; (D) the development potential of the Property, its
habitability, merchantability or fitness, suitability, or adequacy of the
Property for any particular purpose; (E) the zoning or other legal status of
the
Property; (F) the Property's or its operations' compliance with any applicable
codes, laws, regulations, statutes, ordinances, covenants, conditions, or
restrictions of any governmental or quasi-governmental entity, or of any other
person or entity; (G) the quality of any labor or materials relating in any
way
to the Property; (H) the condition of title to the Property, or the nature,
status and extent of any right-of-way, lease, right of redemption, possession,
lien, encumbrance, license, reservations, covenant, condition, restriction,
or
any other matter affecting title to the Property; or (I) the accuracy of the
Survey, or any update thereof, or the depiction of any improvement or other
matter thereon.
(iii) UNLESS
EXPRESSLY
INCORPORATED AS SELLER REPRESENTATIONS IN THE CLOSING DOCUMENTS EXECUTED BY
SELLER OR THIS AGREEMENT, SELLER HAS NOT, DOES NOT, AND WILL NOT, WITH RESPECT
TO THE PROPERTY, MAKE ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED,
OR
ARISING BY OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY
OF CONDITION, MERCHANTABILITY, HABITABILITY, OR FITNESS FOR A PARTICULAR USE,
OR
WITH RESPECT TO THE VALUE, PROFITABILITY, OR MARKETABILITY OF THE
PROPERTY.
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(iv) UNLESS
EXPRESSLY INCORPORATED AS SELLER REPRESENTATIONS IN THE CLOSING DOCUMENTS
EXECUTED BY SELLER OR THIS AGREEMENT, SELLER HAS NOT, DOES NOT, AND WILL NOT,
MAKE ANY REPRESENTATION OR WARRANTY WITH REGARD TO COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION, POLLUTION, OR LAND USE LAWS, RULES, REGULATIONS,
ORDERS, OR REQUIREMENTS INCLUDING, BUT NOT LIMITED TO, THOSE PERTAINING TO
THE
HANDLING, GENERATING, TREATING, STORING, OR DISPOSING OF ANY HAZARDOUS WASTE
OR
SUBSTANCE;
(v) Purchaser
has had and will have, pursuant to this Agreement, an adequate opportunity
to
make such legal, factual, and other inquiries and investigations as it deems
necessary, desirable, or appropriate with respect to the
Property. PURCHASER EXPRESSLY ACKNOWLEDGES THAT IT IS SPECIFICALLY
RELYING UPON SUCH INSPECTIONS AND INVESTIGATIONS IN MAKING ITS DETERMINATION
TO
ACQUIRE THE PROPERTY. Purchaser further acknowledges that it is
relying upon the conclusions and advice of its own experts, consultants and
professionals in evaluating the feasibility and desirability of the Property
for
Purchaser's use, and that the availability of the rights to investigate and
inspect the Property, and Purchaser's corresponding reliance upon the results
of
such investigations and inspections, were a material factor in the determination
of the purchase price for the Property. Such inquiries and
investigations of Purchaser shall be deemed to include, but shall not be limited
to, any leases and contracts pertaining to the Property, the physical components
of all portions of the Property, the condition of the Property, the existence
of
any wood-destroying organisms on the Property, such state of facts as an
accurate survey and inspection would show, the present and future zoning
ordinances, resolutions, and regulations of the city, county, and state where
the Property is located, and the value and marketability of the
Property. Purchaser further acknowledges and agrees that upon Closing
Purchaser shall assume the risk that adverse matters, including, but not limited
to, adverse physical and environmental conditions, may not have been revealed
by
Purchaser's inquiries and inspections; and
(vi) Without
in any way limiting the generality of the preceding subparagraphs (i) through
(v), Purchaser specifically acknowledges and agrees that it hereby waives,
releases, and discharges any claim it has, might have had, or may have against
Seller, its partners, employees, agents, officers, successors and assigns
(including any actual or potential claim against Seller, its partners,
employees, agents, officers, successors and assigns based upon contractual
and/or statutory actions for contribution or indemnity) with respect to the
condition of the Property, either patent or latent, its ability or inability
to
obtain or maintain either temporary or final certificates of occupancy, or
other
licenses for the use or operation of the Property and/or certificates of
compliance for the Property, the actual or potential income or profits to be
derived from the Property, the real estate taxes or assessments now or hereafter
payable thereon, the compliance with any environmental protection, pollution
or
land use laws, rules, regulations, or requirements, and any other state of
facts
which exist with respect to the Property, except if such claims are based upon
a
breach of Seller's representations expressly set forth in this Agreement or
in
the Closing Documents to be executed by Seller. SUCH WAIVER, RELEASE AND
DISCHARGE OF SELLER, ITS PARTNERS, EMPLOYEES, AGENTS, OFFICERS, SUCCESSORS
AND
ASSIGNS FOR ACTUAL OR POTENTIAL CLAIMS SHALL ALSO INCLUDE ANY ACTUAL OR
POTENTIAL CLAIMS BASED ON SELLER'S NEGLIGENCE IN WHOLE OR IN PART OR BASED
ON
STRICT LIABILITY.
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6.
CLOSING
6.1 Closing. The
Closing ("Closing") shall be held at the offices of Chicago Title
Insurance Company, 0000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attn:
Xxxxxxxx Xxxxxxxxx (the "Title Company") at 10:00 a.m., on or before
sixty-five (65) days after the Effective Date.
6.2 Seller's
Obligations at Closing. At Closing, Seller shall deliver
to Purchaser the following documents:
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(a)
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Deed. Special
Warranty Deed (the "Deed") executed by Seller conveying the Land
and Improvements to Purchaser subject to no exceptions other than
the
Permitted Encumbrances, in the form attached to this Agreement as
Exhibit "C";
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(b)
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Xxxx
of Sale. Xxxx of Sale and Assignment (the "Xxxx
of Sale") executed by Seller assigning to Purchaser the Tangible
Personal Property and Seller's right, title and interest in and to
the
Intangible Property, in the form attached to this Agreement as Exhibit
"D";
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(c)
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Assignment
of Leases. Assignment of Leases and Assumption
Agreement ("Assignment of Leases") executed by Seller assigning to
Purchaser the Leases, in the form attached to this Agreement as Exhibit
"E";
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(d)
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Evidence
of Authority. Evidence reasonably satisfactory to
Purchaser and the Title Company of the authority of the person signing
the
Deed and other documents to be executed by Seller at Closing and
the power
and authority of Seller to convey the Property to Purchaser in accordance
with this Agreement;
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(e)
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Leases. The
originals of all Leases, in the possession of Seller or its management
company, and copies of the originals where originals are not
available;
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(f)
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Contracts. The
originals of all Contracts to be assumed by Purchaser in the possession
of
Seller or its management company;
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(g)
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Warranties. The
originals of all warranties regarding the Property, if any, in the
possession of Seller or its management
company;
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(h)
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Foreign
Person. An affidavit of Seller certifying that
Seller is not a "foreign person," as defined in Section 1445 of the
Internal Revenue Code of 1986, as
amended;
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(i)
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Keys. All
keys to all locks on the Property in the possession of Seller or
Seller's
management company, if any;
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(j)
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Title
Policy. At Seller's expense, the base form Owner's
Policy of Title Insurance covering the Property issued by the Title
Company;
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(k)
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Other
Documents. Such other documents or instruments as
may be reasonably requested by Title Company to consummate the transaction
described in this Agreement, including standard Title Company
affidavits;
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(l)
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Closing
Statement. A closing statement to be prepared by
the Title Company and executed by Seller;
and
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7
(m)
|
Rent
Roll. An updated rent roll (the "Rent Roll
Certificate") for the Property, dated within three (3) business days
of the Closing Date.
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6.3 Purchaser's
Obligations at Closing. At Closing, Purchaser shall
deliver to Seller the following:
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(a)
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Purchase
Price. The Purchase Price and the Prepayment
Premium by cashier's check or wire transfer of immediately available
funds, subject to applicable prorations and credits provided for
in this
Agreement;
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(b)
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Evidence
of Authority. Evidence reasonably satisfactory to
Seller and the Title Company of the authority of the persons signing
this
Agreement and the Closing and conveyance documents described in
Sections 6.3(c) and (d)
below;
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(c)
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Closing
and Conveyance Documents. Purchaser shall execute
the Xxxx of Sale, Assignment of Leases and such other closing or
conveyance documents as are required to be executed by Purchaser
pursuant
to the terms of this Agreement or the Exhibits attached hereto;
and
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(d)
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Other
Documents. Such other documents and instruments as
may be reasonably requested by Seller or the Title Company to consummate
the transaction described in this Agreement, including a closing
statement
to be prepared by the Title Company executed by
Purchaser.
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6.4 Letters
to Tenants. At Closing, Seller and Purchaser shall
execute and deliver to Seller for distribution by Seller a form of letter to
all
tenants of Leases (the "Tenant Notice Letter") stating that Purchaser has
acquired the Property from Seller, that future rents should be paid as specified
by Purchaser, and that Purchaser will be responsible for the tenants' security
deposits, the Tenant Notice Letter to be in the form attached to this Agreement
as Exhibit "F". Purchaser and Seller shall cooperate in having
their respective management companies complete a Tenant Notice Letter for each
tenant and sending or delivering all of the same to the tenants.
6.5 Proration. All
rents, all other amounts payable by the tenants under the Leases, income,
utilities and all other operating expenses with respect to the Property for
the
month in which the Closing occurs, and real estate and personal property taxes
and other assessments with respect to the Property for the year in which the
Closing occurs, shall be prorated to the Closing Date (with Purchaser deemed
the
owner on the day of Closing provided that Purchaser funds in immediately
available funds all amounts due by Purchaser reflected on the Closing Statement
by noon of the Closing Date in order to allow Seller to pay all loans and fund
all other disbursements on the Closing Date, otherwise Seller shall be deemed
the owner on the Closing Date and any subsequent day until the day Seller's
funds are released to Seller before wiring deadlines with sufficient time allow
Seller to pay all loans and fund all other disbursements) in accordance with
the
following:
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(a)
|
If
the Closing shall occur before rents (and all other amounts payable
by the
tenants under the Leases) and all other income from the Property
have
actually been paid for the month in which the Closing occurs, the
apportionment of such rents and other amounts and other income shall
be
upon the basis of such rents and other amounts and other income actually
received by Seller. Uncollected rents due Seller as landlord
under the Leases shall not be prorated at the time of Closing, but
Purchaser shall make a good faith effort to collect same on Seller's
behalf and to tender the same to Seller upon receipt, provided that
all
rents under the Leases collected by Purchaser on or after the Closing
Date
shall first be applied to all amounts due under the Leases at the
time of
collection (i.e., current rents and sums due Purchaser as the current
owner and landlord) with the balance, if any, payable to Seller,
but only
to the extent of amounts delinquent and actually due
Seller.
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8
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(b)
|
If
the Closing shall occur before the actual amount of utilities and
all
other operating expenses with respect to the Property for the month
in
which the Closing occurs are determined, the apportionment of such
utilities and other operating expenses shall be upon the basis of
a
reasonable estimate by Seller of such utilities and other operating
expenses for such month. Subsequent to the Closing, when the
actual amount of such utilities and other operating expenses with
respect
to the Property for the month in which the Closing occurs are determined,
the parties agree to adjust the proration of such utilities and other
operating expenses and, if necessary, to refund or repay such sums
as
shall be necessary to effect such adjustment. Seller shall not
assign to Purchaser any deposits which Seller has with any of the
utility
services or companies serving the Property. Purchaser shall
arrange with such services and companies to have accounts opened
in
Purchaser's name on the Closing Date. All public utility
service in Seller's name shall be terminated as of the Closing
Date. The present insurance coverage on the Property shall be
terminated as of the Closing Date, and there shall be no proration
of
insurance premiums. There shall be no proration of bonuses or
lump-sum payments, if any, received by Seller prior to the Effective
Date
of this Agreement under laundry leases, cable agreements,
telecommunication agreements or other property
agreements.
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(c)
|
If
the Closing shall occur before the tax rate or the assessed valuation
of
the Property is fixed for the then current year, the apportionment
of
taxes shall be upon the basis of the latest available tax rates and
assessed valuation. Subsequent to the Closing when the actual
amount of taxes with respect to the Property for the year of Closing
are
determined, the parties agree to adjust the proration of such taxes
and,
if necessary, to refund or repay such sums as shall be necessary
to effect
such adjustment.
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(d)
|
At
the Closing, all security, pet, advance rental and other deposits
made
under the Leases and not previously applied by Seller as provided
in the
Leases shall be transferred by Seller to Purchaser by appropriate
adjustments on the Closing
Statement.
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The
agreements of Seller and Purchaser set forth in this Section 6.5 shall
survive the Closing; provided, however, with respect to prorated items for
which
adjustment is permitted under this Section 6.5, such claim for adjustment
shall be forever barred unless the party seeking an adjustment first requests
the adjustment and provides written request and proof of the necessity for
the
adjustment to the other party within one (1) year after the
Closing.
6.6 Possession. Possession
of the Property shall be delivered to Purchaser at Closing subject to the
Permitted Encumbrances.
6.7 Closing
Costs. Except as otherwise expressly provided herein,
Seller shall pay, on the Closing Date, the premium for a base form Owner's
Policy of Title Insurance, the cost of tax certificates, and one-half (1/2)
of
any escrow fees charged by the Title Company. Purchaser shall pay, on
the Closing Date, all premiums for any modification or endorsement to the
Owner's Policy of Title Insurance requested by Purchaser, including amendment
of
the survey exception or the T-19 endorsement, all recording costs, all costs
of
Purchaser's financing, including the premium for any Mortgagee Policy of Title
Insurance, and one-half (1/2) of any escrow fees charged by the Title Company.
Except as otherwise provided herein, each party shall pay its own attorneys'
fees.
9
7.
RISK
OF LOSS
7.1 Casualty.
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(a)
|
If
prior to the Closing Date there shall occur damage to any portion
of the
Land or Improvements caused by fire or other casualty of all or any
portion of the Property which would cost $100,000.00 or less to repair
or
restore, as the case may be, the amount of such costs to be determined
by
a contractor regularly engaged in business in the State of Texas,
chosen
by Seller and reasonably acceptable to Purchaser, then Purchaser
shall
have no right to terminate its obligations under this Agreement and
this
transaction shall close as contemplated and there shall be assigned
to
Purchaser at Closing all right, title, and interest of Seller, in
and to
any insurance proceeds which may be payable to Seller on account
of such
occurrence (not including any proceeds payable on account of lost
rents or
income for the period prior to the Closing Date), and Purchaser shall
take
title to the Property with the assignment of such proceeds and subject
to
such damage to or destruction of the Property without reduction in
the
Purchase Price, provided that Purchaser shall be given a credit towards
the Purchase Price for the lesser of any deductible under Seller's
insurance policy or the cost to repair or restore such damage or
destruction.
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(b)
|
If
prior to the Closing Date, there should occur damage to any portion
of the
Land or Improvements caused by fire or other casualty of all or any
portion of the Property which would cost more than $100,000.00 to
repair
or restore, as the case may be, the amount of such costs to be determined
by a contractor regularly engaged in business in the State of Texas,
chosen by Seller and reasonably acceptable to Purchaser, then Purchaser
or
Seller shall have, as their sole and exclusive remedies: (i) the
option to
terminate this Agreement within five (5) days following a determination
of
the cost to repair and the amount of insurance proceeds which are
payable
on account of such casualty (but in no event later than thirty (30)
days
after the originally scheduled Closing Date as set forth in Section
6.1), in which event, the parties shall have no further rights or
obligations hereunder, except as otherwise provided herein, and the
Xxxxxxx Money shall be returned to Purchaser subject to Purchaser's
satisfaction of the requirements set forth in Section 10.12 of this
Agreement, or (ii) if Purchaser or Seller does not elect to terminate,
this transaction shall close as contemplated and there shall be assigned
to Purchaser at Closing all right, title and interest of Seller,
in and to
any insurance proceeds which may be payable to Seller on account
of any
such occurrence (not including any proceeds payable on account of
lost
rents or income for the period prior to the Closing Date), and Purchaser
shall take title to the Property with the assignment of such proceeds
and
subject to such damage to or destruction of the Property without
reduction
of the Purchase Price; provided, however, Purchaser shall receive
a credit
towards the Purchase Price in the amount of the deductible under
Seller's
insurance policy. In no event shall Seller have any affirmative
obligation to rebuild or repair the Property pursuant to this Section
7.1. The provision of this Section 7.1 shall govern
notwithstanding any contrary provisions of the Texas Property Code,
as
amended. Notwithstanding any provision in this Agreement to the
contrary, Seller shall have the sole and exclusive right to adjust
any
insurance claim with Seller's insurance carriers after the Effective
Date
of this Agreement; provided that Seller shall adjust such claims
in a
commercially reasonable manner in order to attempt to obtain a reasonable
payment of proceeds on the claim.
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10
7.2 Condemnation. If
prior to the Closing Date there shall occur the threatened taking or
condemnation of any portion of the Property which is not material, then
Purchaser shall have no right to terminate its obligations under this Agreement
and this transaction shall close as contemplated and there shall be assigned
to
Purchaser at Closing all right, title, and interest of Seller to any
condemnation awards or proceeds and Purchaser shall take title to the Property
with the assignment of such condemnation awards or proceeds and subject to
such
taking or condemnation without reduction of the Purchase Price. If
prior to the Closing Date there shall occur the threatened taking or
condemnation of all or a material portion of the Property, then Seller or
Purchaser shall have, as its sole and exclusive remedies: (i) the option to
terminate this Agreement within five (5) days following notice in writing to
the
other of such threatened taking or condemnation and a determination from the
condemning authority of the amount of condemnation proceeds to be offered for
the proposed taking (but in no event later than thirty (30) days after the
originally scheduled Closing Date as set forth in Section 6.1), in which
event, the parties shall have no further rights or obligations hereunder, except
as otherwise provided herein, and the Xxxxxxx Money shall be returned to
Purchaser subject to Purchaser's satisfaction of the requirements set forth
in
Section 10.12 of this Agreement, or (ii) if Seller or Purchaser does not
elect to terminate, this transaction shall close as contemplated and there
shall
be assigned to Purchaser at Closing all right, title and interest of Seller
to
any condemnation awards or proceeds, and Purchaser shall take title to the
Property with the assignment of such condemnation awards or proceeds and subject
to such taking or condemnation without reduction of the Purchase
Price. As used in this Section 7.2, there shall occur the
threatened taking or condemnation of a "material" portion of the Property if
the
area subject to the threatened taking or condemnation includes within its
boundary any portion of the parking areas, the Improvements on the Land, or
any
means of ingress or egress to or from the Property or otherwise materially
interferes with the operation of the Property. In the event that any
condemnation occurs prior to Closing, if Seller receives and retains any
condemnation proceeds, the Purchase Price shall be reduced by such amount (but
not below zero).
8.
DEFAULT
8.1 Breach
by Seller. In the event that Seller shall breach any of
its obligations hereunder or shall fail to consummate this Agreement for any
reason other than Purchaser's default or a termination of this Agreement by
Purchaser or Seller pursuant to a right to do so under the provisions hereof,
and if Purchaser is not then in default hereunder and is ready, willing and
able
to consummate this transaction, then Purchaser shall have the right to pursue
one, but not all of the following, as its sole and exclusive remedies: (i)
the
right to terminate this Agreement and receive a refund of the Xxxxxxx Money
upon
Purchaser's satisfaction of the requirements set forth in Section 10.12
of this Agreement, or (ii) by giving written notice to Seller within sixty
(60)
days after the scheduled Closing Date and filing a lawsuit within one hundred
twenty (120) days after the scheduled Closing Date, the right to seek specific
performance of Seller's obligations to sell the Property in accordance with
the
terms of the Agreement. In the event Purchaser fails to give written
notice to Seller within such 60-day period or file a lawsuit for specific
performance within such 120-day period, Purchaser shall be deemed to have
elected the remedy of termination of this Agreement. If Purchaser
enforces specific performance of Seller's obligations to sell the Property
in
accordance with the terms of this Agreement Purchaser agrees that it shall
accept a special warranty deed to the Property subject to the Permitted
Encumbrances. In no event shall Seller be liable to Purchaser for any
actual, punitive, exemplary, speculative, or consequential, or other
damages.
8.2 Breach
by Purchaser. In the event that Purchaser shall breach
any of its obligations hereunder prior to Closing or shall fail to consummate
this Agreement at Closing for any reason other than Seller's default or the
termination of this Agreement by Purchaser or Seller pursuant to a right to
do
so under the terms and provisions hereof, and if Seller is not then in default,
then Seller, as its sole and exclusive remedy for such pre-Closing breach,
may
terminate this Agreement and receive the Xxxxxxx Money as liquidated
damages. The parties agree that Seller will suffer damages in the
event of Purchaser's default on its pre-Closing obligations. Although
the amount of such damages are difficult or impossible to determine, the parties
agree that the amount of the Xxxxxxx Money is a reasonable estimate of Seller's
loss in the event of Purchaser's pre-Closing default. Thus, Seller
shall accept and retain the Xxxxxxx Money as liquidated damages, but not as
a
penalty. In the event Seller is entitled to the Xxxxxxx Money and the
Xxxxxxx Money has not been previously distributed to Seller as liquidated
damages, the Xxxxxxx Money shall be immediately paid to Seller by the Title
Company upon written receipt of notice from Seller that Purchaser has defaulted
under this Agreement. Purchaser agrees to take all such actions and
execute and deliver all such documents necessary or appropriate to effect such
payment of the Xxxxxxx Money to Seller. Seller shall also be entitled
to recover its damages and reasonable attorneys' fees and costs in seeking
recovery of the Xxxxxxx Money if Purchaser fails to instruct the Title Company
to disburse the Xxxxxxx Money to Seller when Seller is entitled to obtain
disbursement of the Xxxxxxx Money pursuant to this Agreement.
11
8.3 Actions
by Purchaser. Notwithstanding anything to the contrary
contained or implied elsewhere herein, in the event Purchaser (i) files a Lis
Pendens or an action for specific performance against Seller or otherwise clouds
Seller's title to the Property or any portion thereof and fails to prevail
in a
final, non-appealable judgment, or (ii) breaches Purchaser's agreements of
indemnity contained in this Agreement, or (iii) breaches any of Purchaser's
obligations that survive the Closing or termination of this Agreement, Seller
shall be entitled to pursue any remedies available at law or in equity,
including but not limited to, suit for damages from Purchaser (including, but
not limited to, reasonable attorney's fees and costs incurred by Seller in
connection therewith).
9.
COVENANTS
AND REPRESENTATIONS
9.1 Covenants
of Seller. From the Effective Date of this Agreement
until the Closing or earlier termination of this Agreement:
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(a)
|
Maintenance,
Litigation. Seller (i) will cause its property
manager to continue to keep and maintain the Property in substantially
the
same manner that it is presently being kept and maintained on the
Effective Date, including, but not limited to, maintaining the HVAC,
plumbing, elevators, and electrical systems in same manner that they
are
presently being kept and maintained, (ii) retain the on-site manager,
management and maintenance personnel and maintain all agreements
thereto
in full force and effect, and (ii) will use reasonable efforts to
promptly
advise Purchaser of any written notice of pending or threatened
litigation, suit, arbitration, administrative hearing, or violation
of
applicable law or ordinance received by Purchaser concerning the
Property
after the Effective Date of this
Agreement.
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|
(b)
|
Contracts. Seller
agrees that if it subsequently enters into any service or other contract
affecting the Property after the Effective Date of this Agreement,
it will
furnish Purchaser with a copy of such contract and if such contract
is not
cancelable on 30-days written notice without penalty, Seller will,
if
Purchaser does not elect to assume such contract at Closing, terminate
such contract and pay any termination fees in connection therewith.
Notwithstanding the foregoing, Seller will terminate its management
contract on the Property and all other Contracts which Purchaser
does not
elect in writing to assume during the Inspection Period (other than
leases
covering the community laundry rooms at the Property and agreements
with
the franchise cable television provider to the Property, if any),
effective as of Closing.
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12
|
(c)
|
Leasing
and Operations. Seller will continue its present
leasing efforts and will, or will cause its property manager to,
continue
to lease the Property in accordance with its present leasing
policy. Seller will cause its property manager to continue to
operate the Property substantially in the manner operated on the
Effective
Date of this Agreement and will not materially modify any Lease or
Contract affecting the Property without Purchaser’s written consent which
consent shall not be unreasonably
withheld.
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|
.
|
|
(d)
|
Insurance. Seller
will maintain in force and effect its property and liability insurance
with respect to damage or injury to person or property occurring
on the
Property in at least such amounts as are maintained by Seller on
the
Effective Date.
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|
(e)
|
Permits
and Licenses. Seller shall maintain all permits,
licenses and occupancy certificates applicable to the Property, including,
but not limited to, all building and use permits and the certificate(s)
of
occupancy, which have been obtained by
Seller.
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|
(f)
|
Compliance. Seller
shall maintain it current compliance with all applicable laws, rules,
regulations, codes, covenants, conditions or restrictions relating
to the
condition of the Property or to any improvements or alterations
thereto.
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|
(g)
|
Mechanic’s
Liens. Seller shall keep the Property free of any
and all unsatisfied mechanic’s liens or material lien rights concerning
the Property.
|
|
(h)
|
Bankruptcy. Seller
shall not be the subject of any bankruptcy, insolvency or probate
proceeding.
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|
(i)
|
Personal
Property. Seller shall keep any tangible and
intangible personal property included in the Purchase Price free
of any
and all unsatisfied liens or encumbrances affecting such personal
property.
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|
(k)
|
Notice
of Changes. Seller shall use reasonable efforts to
promptly advise Purchaser and Broker (as defined below) in writing
of any
material change to the physical condition of the Property or the
operations of the Property that becomes known to Seller prior to
Closing.
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9.2 Covenants
of Purchaser. From the Effective Date of this Agreement
until the Closing or earlier termination of this Agreement:
|
(a)
|
Further
Acts and Interference. Purchaser (i) will do such
further acts as may be reasonably necessary, desirable or proper
to carry
more effectively the purposes of this Agreement, and (ii) will not
unreasonably interfere with or hinder the operation of the Property
prior
to delivery of possession thereof to Purchaser following the Closing
hereunder.
|
9.3 Representations
of Seller. Seller represents to Purchaser
that:
|
(a)
|
Authority. The
execution and delivery by Seller of, and Seller's performance under,
this
Agreement are within Seller's powers and have been duly authorized
by all
requisite action and the person executing this Agreement on behalf
of
Seller has authority to do so.
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|
(b)
|
Enforceability. This
Agreement constitutes the legal, valid and binding obligation of
Seller
enforceable in accordance with its
terms.
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13
|
(c)
|
Foreign
Person. Seller is not a "foreign person" within
the meaning of Section 1445 of the Internal Revenue Code of 1986
(i.e.,
Seller is not a non-resident alien, foreign corporation, foreign
partnership, foreign trust or estate as those terms are defined in
such
Internal Revenue Code and regulations promulgated
thereunder).
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|
(d)
|
Litigation. To
Seller's knowledge, there are no pending legal actions, suits or
proceedings affecting the Property by tenants of the Property or
other
parties, except as disclosed to Purchaser in writing, and, to Seller's
knowledge, as of the Effective Date, no actions, suits, proceedings,
attachments, executions or bankruptcy proceedings are threatened
in
writing against Seller by tenants of the Property or other parties
which
might materially adversely affect the Property or Seller's ability
to sell
the Property, except as disclosed to Purchaser in
writing.
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|
(e)
|
Governmental
Proceedings. To Seller's knowledge, Seller has
received no written notice from any governmental authority having
jurisdiction over the Property that the Property is presently subject
to
any condemnation, assessment or similar proceeding or charge, or
is in
violation of any applicable law or ordinance which remains
uncured. To Seller's knowledge, no condemnation, assessment or
similar proceeding or charge is currently
threatened.
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(f)
|
Leases. To
Seller's knowledge, no tenants under the Leases have been given any
consideration or concession which is due or payable after the Closing
Date
except as set forth in the Leases or the Rent Roll delivered to Purchaser
as a part of the Delivery Items.
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(g)
|
Rent
Roll. To Seller's knowledge, the Rent Roll
delivered by Seller to Purchaser as a portion of the Delivery Items
is
materially accurate and complete as of the date of the Rent
Roll.
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(h)
|
Seller's
Expenses. Seller will pay, in the ordinary course
of Seller's business, all costs and expenses incurred by Seller with
respect to the operation and maintenance of the Property prior to
the
Closing.
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(i)
|
Operating
Statements. To Seller's knowledge, the income and
loss statements delivered by Seller to Purchaser as a portion of
the
Delivery Items are materially accurate and complete as of the date
of such
statements.
|
As
used
in this Agreement, the phrase "Seller's knowledge," "known to Seller," or words
of like effect (i) shall mean and apply to the knowledge of Xxxx X. Xxxxx (the
"Seller's Representative"), who is President of the management company
managing the Property for Seller and directly involved in the negotiation of
sale and purchase transaction described herein and not to any other parties,
(ii) shall mean the current actual knowledge of such person, it being understood
and acknowledged that (a) such person, in many instances, is not involved in
the
day-to-day operations of the Property and in many instances, is not involved
in
the negotiation or execution of the leases, management contracts, service
contracts, or other agreements in question, and (b) such person is not charged
with the knowledge of all of the acts and/or omissions of the predecessors
in
title to the Property or with knowledge of all of the acts and/or omissions
of
Seller's or Seller's property manager's agents or employees, and (iii) shall
not
apply to or be construed to apply to information or material which may be in
the
possession of Seller or Seller's property manager generally, or incidentally,
but which is not actually known to Seller's Representative. As used herein,
the
term "current actual knowledge" of a party shall mean that no facts have come
to
the party's attention that would give the party actual knowledge that any such
facts are not true, correct, and complete, and the party has no obligation
to
and has not undertaken no investigation, inquiry, or verification as to such
matters to determine the existence or absence of such facts, and no inference
of
the party's knowledge of the existence or absence of such facts should be drawn
from the statements made herein. In no event shall Seller's
Representative have any personal liability under this Agreement by reason of
his
acting as Seller's Representative hereunder. In the event that either
Seller or Purchaser should discover prior to the Closing that any representation
made by Seller in this Agreement is untrue or inaccurate (herein referred to
as
a "Breach"), it shall promptly inform the other party in writing of its
discovery and Purchaser shall have the right, as Purchaser's sole and exclusive
remedy on account of such Breach by written notice delivered to Seller given
upon the earlier to occur of the Closing Date or within ten (10) days after
Purchaser becomes aware of the Breach to terminate this Agreement and receive
a
refund of the Xxxxxxx Money upon compliance with the conditions set forth in
Section 10.12 hereof. In the event that Purchaser fails to so
terminate on or before the earlier to occur of the Closing Date or said ten
(10)
day period as aforesaid, Purchaser shall automatically be deemed to have waived
any objection to such Breach and all rights or remedies against Seller on
account of such Breach. If Purchaser shall waive a Breach by failing
to terminate this Agreement as provided above, such representation shall be
deemed revised as of the Closing Date to the extent necessary to make the
representation true and accurate. Seller does not represent or
warrant that there will be no change in any of the representations of Seller
set
forth in this Agreement prior to the Closing Date, however, it shall be a
condition to Purchaser's obligation to consummate the transaction described
in
this Agreement that all representations made by Seller in this Agreement as
of
the Effective Date shall remain true and accurate in all material respects
on
the Closing Date. Purchaser shall not have any right to bring any
action against Seller for a Breach where Purchaser had knowledge of the Breach
prior to Closing and failed to notify Seller of such fact prior to
Closing.
14
9.4 Representations
of Purchaser. Purchaser represents to Seller
that:
|
(a)
|
Authority. The
execution and delivery by Purchaser of and Purchaser's performance
under,
this Agreement, are within Purchaser's powers and have been duly
authorized by all requisite action, and the person executing this
instrument on behalf of Purchaser has authority to do
so.
|
|
(b)
|
Enforceability. This
Agreement constitutes the legal, valid and binding obligation of
Purchaser
enforceable in accordance with its
terms.
|
|
(c)
|
Purchaser's
Expenses. Purchaser will pay, in the ordinary
course of Purchaser's business, all costs and expenses incurred by
Purchaser with respect to the operation and maintenance of the Property
from and after the Closing.
|
|
10.
|
|
MISCELLANEOUS
|
10.1 Notices. All
notices, demands and requests which may be given by either party to the other,
and any exercise of a right of termination provided by this Agreement, shall
be
in writing and shall be deemed effective when (i) personally delivered to the
address of the party to receive such notice set forth below or, (ii) whether
actually received or not, three (3) days after deposited in any post office
or
mail receptacle regularly maintained by the United States Government, certified
or registered mail, return receipt requested, postage prepaid, addressed as
set
forth below, or (iii) sent by telecopy confirmed with delivery by a national
overnight courier service the next business day with proof of delivery,
addressed as set forth below, or (iv) sent for next business day delivery by
a
national overnight courier service with proof of delivery addressed as set
forth
below:
If
to Seller:
|
Chimney
Square, L.P.
|
|
0000
X. Xxxxxx Xxxxxxx, Xxxxx 000
|
Xxxxx,
Xxxxx 00000
|
Attn: Xxxx
X. Xxxxx
|
|
Telephone
No. (000) 000-0000
|
|
Telecopier
No.
|
(000)
000-0000
|
with
a copy to:
|
Xxxxxx
X. Xxxxx, Esq.
|
|
Xxxxxx
X. Xxxxx, P.C.
|
One
Bent Tree Tower
|
00000
Xxxxxx Xxxxxxx, Xxxxx 000
|
|
Xxxxxxx,
Xxxxx 00000
|
|
Telephone
No. (000) 000-0000
|
|
Telecopier
No. (000) 000-0000
|
|
If
to Purchaser:
|
Xxxxxx
X. Xxxxxx, Trustee
|
|
The
Xxxxxx Family Trust dated October 30,
1989
|
|
000
Xxxxx Xxxxxx
|
|
Xxxxxxxx, Xxxxxxxxxx 00000 |
|
Telephone
No. (000) 000-0000
|
|
Telecopier
No. (000) 000-0000
|
with a copy to: Xxxx X. Xxxxxxx, Esq.
Xxxxxxx
&
Associates
000
Xxxxxxxx Xxxx, #000
Xxxxxxxxx,
Xxxxxxxxxx
00000
Telephone
No. (000)
000-0000
Telecopier
No. (000)
000-0000
If
to Title Company:
|
Chicago
Title Insurance Company
|
0000
Xxxxx Xxxxxx, Xxxxx
0000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxxxxx Xxxxxxxxx
|
Telephone
No. (000) 000-0000
|
|
Telecopier
No. (000) 000-0000
|
or
such
other place as Seller or Purchaser or Title Company, respectively, may from
time
to time designate by written notice to the other.
15
10.2
Real
Estate
Commissions. Neither Seller nor Purchaser has contacted
any real estate broker, finder or similar person in connection with the
transaction contemplated except Xxxxxxxxx & Partners (Xxx Xxxx and Xxxxx
Xxxxxx) (the "Broker"). Seller shall pay to Broker at the
Closing a brokerage fee determined by separate agreement between Seller and
Broker; provided, that any such person or entity receiving any portion of the
brokerage fee is a licensed real estate broker in the State of Texas; and
provided, further, that Broker's right to such brokerage fee shall vest only
at
Closing, and no commissions shall be due if the Closing does not occur for
any
reason. If more than one party is listed as Broker herein such
parties shall share equally in the brokerage fee paid by
Seller. Seller and Purchaser each represents to the other that no
other Acquisition Fees (as hereafter defined) have been paid or are due and
owing to any other person or entity other than to Broker. As used
herein, "Acquisition Fees" shall mean all fees paid to any person or
entity in connection with the selection and purchase of the Property, including
real estate commissions, selection fees, non-recurring management and start-up
fees, development fees or any other fee of similar nature. Seller and
Purchaser, each hereby agrees to indemnify and hold harmless the other from
and
against any and all claims for Acquisition Fees or similar charges with respect
to this transaction, arising by, through or under the indemnifying party and
each further agrees to indemnify and hold harmless the other from any loss
or
damage resulting from an inaccuracy in the representations contained in this
Section 10.2. This indemnification agreement of the parties
shall survive the Closing.
10.3 Entire
Agreement. This Agreement embodies the entire agreement
between the parties relative to the subject matter hereof, and there are no
oral
or written agreements between the parties, nor any representations made by
either party relative to the subject matter hereof, which are not expressly
set
forth herein.
10.4 Amendment. This
Agreement may be amended only by a written instrument executed by the party
or
parties to be bound thereby.
10.5 Headings. The
captions and headings used in this Agreement are for convenience only and do
not
in any way limit, amplify, or otherwise modify the provisions of this
Agreement.
10.6 Time
of Essence. Time is of the essence in the performance of
each party's obligations under the this Agreement. However, if the
final date of any period which is set out in any provision of this Agreement
falls on a Saturday, Sunday or legal holiday under the laws of the United States
or the State of Texas, in such event, the time of such period shall be extended
to the next day which is not a Saturday, Sunday or legal holiday.
10.7 Governing
Law. This Agreement shall be governed by the laws of the
State of Texas and the laws of the United States pertaining to transactions
in
Texas.
10.8 Successors
and Assigns. This Agreement shall bind and inure to the
benefit of Seller and Purchaser and their respective permitted heirs, executors,
administrators, personal and legal representatives, successors and
assigns. Purchaser shall not assign Purchaser's rights under this
Agreement to any party without the prior written consent of Seller and any
attempt to do so shall be null and void and of no force and
effect. Notwithstanding the foregoing, this Agreement, and the rights
and obligations hereunder, may be assigned by Purchaser at any time to an entity
(a "Permitted Assignee") which is owned by Purchaser, owns Purchaser or
is under common ownership with Purchaser or is an entity which Purchaser
manages, controls or advises, such as a partnership which is managed by
Purchaser or an affiliate of Purchaser. In the event of any permitted
assignment, Seller agrees to close the transaction contemplated hereunder with
the Permitted Assignee. No assignment of this Agreement by Purchaser
shall relieve Purchaser for any of its obligations under this Agreement whether
arising before or after the assignment.
10.9 Invalid
Provision. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by
such illegal, invalid, or unenforceable provision or by its severance from
this
Agreement.
16
10.10 Attorneys'
Fees. In the event it becomes necessary for either party
hereto to file suit to enforce this Agreement or any provision contained herein,
the party prevailing in such suit shall be entitled to recover, in addition
to
all other remedies or damages, as provided herein, reasonable attorneys' fees
incurred in such suit.
10.11 Multiple
Counterparts. This Agreement may be executed in a number
of identical counterparts which, taken together, shall constitute collectively
one (1) agreement; but in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.
10.12 Refund
of Xxxxxxx Money. Notwithstanding any provision
contained in this Agreement to the contrary, as a condition precedent to
Purchaser's entitlement to a refund of the Xxxxxxx Money, Purchaser shall (i)
execute and deliver to Seller, the Release in the form attached hereto as
Exhibit "G", and (ii) deliver to Seller all of the Delivery Items and
other documents provided to Purchaser by Seller or Seller's agents pursuant
to
Section 4.3 hereof and, to the extent not previously delivered to Seller
pursuant to other provisions of this Agreement, copies of all surveys,
environmental reports, engineering or inspection reports, and appraisals
obtained by Purchaser or Purchaser's proposed lenders and delivered to Purchaser
with respect to the Property.
10.13 Limitation
Date. Purchaser and Seller hereby agree that,
notwithstanding any provision of this Agreement or any provision of law to
the
contrary, any action which may be brought by Purchaser against Seller for breach
of this Agreement or any representations and warranties under this Agreement
or
arising out of or in connection with the sale and purchase transaction described
herein, shall be forever barred unless Purchaser: (i) delivers to Seller no
later than one (1) year after the Closing Date (the "Notice Date") a
written notice of its claims setting forth in reasonable detail the factual
basis for such claim and Purchaser's good faith estimate of damages arising
out
of such claim, (ii) files a complaint or petition against Seller alleging such
claim in a court of competent appropriate jurisdiction no later than two (2)
years and one (1) day after the Closing Date (the "Limitation
Date"). No warranties or representations, agreements, or
covenants of Seller that survive beyond the Closing as expressly set forth
in
this Agreement shall survive beyond the Notice Date and no action based thereon
shall be commenced after the Limitation Date.
10.14 Date
of this Agreement. This Agreement shall be null and void
unless the second party to execute this Agreement executes and delivers three
(3) fully executed copies of this Agreement to Title Company at the address
shown in Section 10.1 hereof, no later than five (5) days after the date
the first party executes this Agreement as indicated on the signature page
hereof. As used in this Agreement, the terms "date of this Agreement"
or "date hereof" or "Effective Date" shall mean and refer to the latest date
of
execution of this Agreement by Seller or Purchaser as indicated on the signature
page.
10.15 Exhibits. The
following exhibits are attached to this Agreement and are incorporated into
this
Agreement and made a part hereof:
(a) Exhibit
"A", the Land;
|
(b)
|
Exhibit
"B", Items to be delivered by
Seller;
|
(c) Exhibit
"C", the Deed;
(d) Exhibit
"D", the Xxxx of Sale;
(e) Exhibit
"E", the Assignment of Leases;
(f)
Exhibit "F", the Tenant Notice Letter;
|
(g)
|
Exhibit
"G", Purchaser's Release; and
|
(h)
|
Exhibit "H", Lead-Based Paint
Disclosure.
|
17
10.16 Independent
Contract Consideration. Contemporaneously with the
execution of this Agreement, Purchaser hereby delivers to Seller and Seller
hereby acknowledges the delivery of a check in the amount ONE HUNDRED AND NO/100
DOLLARS ($100.00) (the "Independent Contract Consideration"), which
amount the parties bargained for and agreed to as consideration for Purchaser's
right to purchase the Property and for Seller's execution, delivery and
performance of this Agreement. This Independent Contract
Consideration is in addition to and independent of any other consideration
or
payment provided in this Agreement, is non-refundable, and shall be retained
by
Seller notwithstanding any other provisions of this Agreement.
10.17 No
Recording. This Agreement shall not be recorded by
Purchaser for any reason whatsoever and an attempt to do so shall render
Purchaser liable to Seller for any damages allowable at law or in equity on
account of such breach.
10.18 Lead-Based
Paint. Contemporaneously with the execution of this Agreement by
Seller and Purchaser, Seller is hereby delivering to Purchaser and Purchaser
hereby acknowledges receipt of (a) the Disclosure of Information on Lead-Based
Paint and Lead-Based Paint Hazards (the "Disclosure") in form and
substance of Exhibit "H" attached hereto, and (b) the pamphlet
Protect Your Family from Lead in Your Home (the "Pamphlet")
pursuant the Residential Lead-Based Paint Hazard Reduction Act, Title X of
the
Housing and Community Development Act of 1992, 42 U.S.C. Sec. 1018, et seq.,
and
regulations promulgated thereunder. Seller and Purchaser each agree to execute
and initial the Disclosure in the places indicated based on the form of
Exhibit "H" and cause the Broker to execute the
Disclosure. Purchaser acknowledges that Purchaser is being provided a
period of at least ten (10) days, which period shall run concurrently with
and
during the Inspection Period, in which Purchaser may conduct its own risk
assessment or inspection of the Property for lead-based paint hazards on or
pertaining to the Property.
10.19 Exchange. Seller
or Purchaser may consummate the sale of the Property as part of a so-called
like
kind exchange (the "Exchange") pursuant to Section 1031 of the Internal
Revenue Code, as amended (the "Code") and may assign its rights under
this Agreement to accomplish the Exchange, provided that: (a) the
Closing shall not be delayed or affected by reason of the Exchange nor shall
the
consummation or accomplishment of the Exchange be a condition precedent or
condition subsequent to either party's obligations under this Agreement; (b)
each party shall effect the Exchange through a qualified intermediary and
neither party shall be required to take an assignment of the purchase agreement
for the exchange property or be required to acquire or hold title to any real
property for purposes of consummating the Exchange; (c) each exchanging party
shall pay and indemnify and hold the other harmless from any additional costs,
liability, obligations and expenses that would not otherwise have been incurred
by the other had the exchanging party not consummated its sale through the
Exchange; and (d) neither party shall be relieved or deem relieved from any
of
such party's obligations or covenants under this Agreement on account of any
assignment of this Agreement by such party to accomplish the
Exchange. Neither party shall by this Agreement or acquiescence to
the Exchange (a) have its rights under this Agreement affected or diminished
in
any manner or (b) be responsible for compliance with or be deemed to have
warranted that the Exchange in fact complies with Section 1031 of the
Code.
(SIGNATURE
PAGE FOLLOWS)
18
SIGNATURE
PAGE TO
AGREEMENT
OF PURCHASE AND SALE
BY
AND BETWEEN
CHIMNEY
SQUARE, L.P.
AND
XXXXXX
X. XXXXXX
SELLER:
CHIMNEY
SQUARE,
L.P.
a
Texas limited
partnership
DATE
OF
EXECUTION By: XXXX,
INC., a Texas corporation,
BY
SELLER: General
Partner
By:
Xxxxxx
X. Xxxxx,
President
PURCHASER:
DATE
OF EXECUTION
BY
PURCHASER:
Xxxxxx
X. Xxxxxx, Trustee
The
Xxxxxx Family Trust dated October
30, 1989
The
undersigned Title Company hereby
acknowledges receipt of the Xxxxxxx Money and a copy of this Agreement, and
agrees to hold and dispose of the Xxxxxxx Money in accordance with the
provisions of this Agreement.
|
CHICAGO
TITLE INSURANCE COMPANY
|
DATE
OF EXECUTION
BY
TITLE COMPANY:
By:
Name:
Title:
19
JOINDER
BY AGENT
The
undersigned join in the execution
of this Agreement for the purpose of representing and warranting to Seller
and
Purchaser that they (i) are duly licensed real estate brokers under the laws
of
the State of Texas and its applicable regulations, (ii) are duly authorized
to
earn and receive a commission in connection with a transaction by this
Agreement, (iii) have contacted no other real estate broker, finder or other
party in connection with this transaction to whom fees may be due or payable,
and (iv) acknowledge and agree to the terms and provisions of Section
10.2 hereof. The undersigned shall indemnify and hold Seller and
Purchaser harmless from any and all loss, liens, claims, judgments, liabilities,
costs, expenses or damages (including reasonable attorneys' fees and court
costs) resulting by reason of a breach of any representations and warranties
made by the undersigned herein or by reason of any claims or entitlement to
a
commission, fee or other sum in connection with the transaction evidenced by
this Agreement made by any present or former employee of the
undersigned. Notwithstanding anything contained in this Agreement to
the contrary, this provision shall survive the Closing or any early termination
of this Agreement.
XXXXXXXXX
& PARTNERS
By:
_____________________________________
Name:
___________________________________
Title:
____________________________________
20
EXHIBIT
"A"
Legal
Description
21
EXHIBIT
"B"
Items
to be Delivered by Seller
1.
|
Copies
of all currently effective service, maintenance or other contracts
(not
including management contracts) relating to the ownership and operation
of
the Property.
|
2.
|
A
current rent roll of the Property in the form used by Seller in the
ordinary course of Seller's
business.
|
3.
|
All
income and expense reports for the Property for calendar years 2005,
2006
and year-to-date 2007.
|
4.
|
Delinquency
report for the Property in the form used by Seller in the ordinary
course
of Seller's business.
|
6.
|
Copy
of the real and personal property tax statements for the Property
for the
year 2006.
|
7.
|
Copies
of utility bills for the Property for the twelve (12) month period
ending
on the Effective Date.
|
8.
|
A
schedule of pending litigation, if any, affecting the Property as
of the
Effective Date.
|
22
EXHIBIT
"C"
After
Recording Return To:
SPECIAL
WARRANTY DEED
STATE
OF
TEXAS §
§ KNOW
ALL MEN BY THESE PRESENTS:
COUNTY
OF
XXXXXX §
That
("Grantor")
for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and
other
valuable consideration to Grantor paid by the Grantee named below, the receipt
of which is hereby acknowledged by these presents does GRANT, SELL and CONVEY
unto , whose address is ("Grantee"), all of
that certain real property in Xxxxxx County, Texas, described on Exhibit
"A" attached hereto and made a part hereof for all purposes, together with
all buildings, structures, and improvements located thereon and all fixtures
attached thereto, and any and all appurtenances belonging or appertaining
thereto (said real property together with any and all related buildings,
structures, and improvements, fixtures and appurtenances as described herein
are
collectively referred to as the "Property").
This
conveyance is made subject to: (a)
all matters stated herein, and (b) all of the matters set forth on Exhibit
"B" attached hereto and made a part hereof for all purposes (collectively,
the "Permitted Encumbrances").
TO
HAVE AND TO HOLD the Property,
together with all and singular the rights and appurtenances thereto in anywise
belonging unto Grantee, Grantee's successors and assigns forever; and Grantor
does hereby bind itself and its successors and assigns to WARRANT and FOREVER
DEFEND all and singular the said Property unto Grantee, Grantee's 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, subject
to
the Permitted Encumbrances.
[INCORPORATE
PROVISIONS OF SECTION
5.1 OF AGREEMENT]
Grantee
hereby assumes the payment of
all unpaid real property taxes and assessments and all special assessments
of
whatever kind and character affecting the Property for the current year and
subsequent years and other items conveyed hereunder and Grantee agrees to
indemnify and hold harmless Grantor from any an all claims and liability for
the
payment thereof.
EXECUTED
this day of
, 2007.
|
GRANTOR:
|
By:
Name:
Title:
(ADD
PROPER ACKNOWLEDGEMENTS)
23
EXHIBIT
"D"
XXXX
OF SALE AND ASSIGNMENT
STATE
OF
TEXAS §
§ KNOW
ALL MEN BY THESE PRESENTS:
COUNTY
OF
XXXXXX §
That
("Grantor"),
for and in consideration of Ten and No/100 Dollars ($10.00) and other good
and
valuable consideration to Grantor in hand paid by
("Grantee"), the receipt of which is hereby acknowledged, has BARGAINED,
SOLD and DELIVERED, and by these presents does BARGAIN, SELL and DELIVER, unto
the said Grantee all of the following described personal property in Xxxxxx
County, Texas (the "Personal Property"), to wit:
|
All
fixtures, furniture, carpeting, draperies, appliances, furnishings,
equipment, machinery, inventory, supplies and other items of tangible
personal property owned by Grantor and affixed, attached to, located
on or
about and used exclusively in connection with the ownership, operation,
and maintenance of the real property (the "Real Property") situated
in Xxxxxx County, Texas, being more particularly described in Exhibit
"A" attached hereto and made a part hereof for all proposes and
improvements thereon, along with all of Grantor's right, title and
interest in all intangible personal property pertaining to the Real
Property.
|
TO
HAVE AND TO HOLD the aforesaid
property unto Grantee, its successors and assigns forever.
Grantor
hereby assigns to Grantee, and
Grantee hereby agrees to assume and perform all obligations accruing under
the
maintenance, service and supply contracts (the "Contracts") listed on
Exhibit "B" attached hereto and made a part hereof from and after the
date hereof, and Grantee does hereby agree to indemnify and hold Grantor
harmless of and from all such obligations accruing from and after the date
hereof.
UPON
SALE AND ASSIGNMENT OF THE
PERSONAL PROPERTY AND CONTRACTS, GRANTOR SPECIFICALLY DISCLAIMS ANY WARRANTY,
GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE OF, AS
TO,
OR CONCERNING THE NATURE OR CONDITION OF THE PERSONAL PROPERTY OR CONTRACTS
OR
THE SUITABILITY THEREOF FOR ANY AND ALL ACTIVITIES AND USES WHICH GRANTEE MAY
ELECT TO CONDUCT THEREWITH. THE SALE AND ASSIGNMENT OF THE PERSONAL
PROPERTY AND CONTRACTS TO GRANTEE IS MADE IN ITS PRESENT CONDITION ON AN "AS
IS", "WHERE IS" AND "WITH ALL FAULTS" BASIS, AND GRANTEE BY ACCEPTANCE OF THIS
XXXX OF SALE AND ASSIGNMENT EXPRESSLY ACKNOWLEDGES THAT IN CONSIDERATION OF
THE
SALE AND ASSIGNMENT OF THE PERSONAL PROPERTY AND CONTRACTS, GRANTOR MAKES NO
WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF
LAW,
WITH RESPECT TO THE PERSONAL PROPERTY OR CONTRACTS, INCLUDING, BUT NOT LIMITED
TO, ANY WARRANTY OF CONDITION, TITLE, HABITABILITY, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PERSONAL PROPERTY OR CONTRACTS
OR
ANY PORTION THEREOF.
EXECUTED
on _________________________,
2007.
|
GRANTOR:
|
By:
Name:
Title:
|
GRANTEE:
|
By:
Name:
Title:
24
EXHIBIT
"E"
ASSIGNMENT
OF LEASES AND ASSUMPTION AGREEMENT
STATE
OF
TEXAS §
§ KNOW
ALL MEN BY THESE PRESENTS:
COUNTY
OF
XXXXXX §
THIS
ASSIGNMENT OF LEASES AND
ASSUMPTION AGREEMENT is executed by and between
("Assignor") and
____________ "Assignee").
W
I T N E S S E T
H:
Assignor
has heretofore entered into
certain tenant leases with tenants covering apartments located in the property
commonly known as the Chimney Square Apartments and located on a certain tract
of land situated in Xxxxxx County, Texas (collectively the "Property"),
more particularly described on Exhibit "A" attached hereto and made a
part hereof for all purposes (the tenant leases are sometimes referred to herein
as the "Leases").
Assignee
desires to purchase from
Assignor, and Assignor desires to sell and assign to Assignee, the Leases and
the leasehold estates created thereby.
NOW,
THEREFORE, for
and in consideration of the premises and the agreements and covenants herein
set
forth, together with the sum of Ten and No/100 Dollars ($10.00) and other good
and valuable consideration this day paid and delivered by Assignee to Assignor,
the receipt and sufficiency of all of which by Assignor are hereby confessed
and
acknowledged, Assignor does hereby ASSIGN, TRANSFER, SET OVER and DELIVER unto
Assignee the Leases pertaining to the Property and the leasehold estates created
thereby listed on Exhibit "B" attached hereto and made a part hereof for
all purposes, and all of the rights, benefits and privileges of the lessor
thereunder, including without limitation an amount of cash equal to all tenant
security, pet, cleaning or other deposits however denominated provided to
Assignor under the Leases and not forfeited, credited or returned to tenants,
but subject to all terms, conditions, reservations and limitations set forth
in
the Leases.
TO
HAVE AND TO HOLD
all and singular the Leases unto Assignee, its successors and
assigns.
1.
|
It
is specifically agreed that Assignor shall not be responsible to
the
lessees under the Leases for the discharge and performance of any
and all
duties and obligations to be performed and/or discharged by the lessor
thereunder for the period from and after the date hereof, but Assignor
shall perform and discharge all duties and obligations of lessor
under the
Leases prior to the date hereof. By accepting this Assignment
of Leases and Assumption Agreement and by its execution hereof, Assignee
hereby assumes and agrees to discharge and perform all of the terms,
covenants and conditions of the Leases on the part of the lessor
therein
required to be performed, for the period from and after the date
hereof,
but not prior thereto, including, but not limited to, the obligation
to
repay or account for, in accordance with the terms of the Leases,
to the
lessees thereunder any and all security, pet and prepaid rental deposits
provided for under the Leases.
|
2.
|
All
of the covenants, terms and conditions set forth herein shall be
binding
upon and shall inure to the benefit of the parties hereto and their
respective heirs, successors, and
assigns.
|
IN
WITNESS WHEREOF,
Assignor and Assignee have executed this Assignment of Leases and Assumption
Agreement this the ______ day of ____________________, 2007.
ASSIGNOR:
By:
Name:
Title:
|
ASSIGNEE:
|
By:
Name:
Title:
(ADD
PROPER
ACKNOWLEDGMENTS)
25
EXHIBIT
"F"
LETTER
TO TENANTS
______________,
2007
______________________
Apartment
No. ________
Chimney
Square Apartments
______________________
Abilene,
Texas
|
Re:
|
Notice
of Change of Ownership of Chimney Square Apartments, Abilene, Texas
(the
"Property")
|
Dear
Resident:
You
are hereby notified as
follows:
1. That
as of the date hereof the Property has been transferred, sold, assigned, and
conveyed to ___________________ (the "New Owner") whose address is
.
2. The
New Owner has received and is responsible for your tenant security deposit
and/or pet deposit in the aggregate amount of $________________ with respect
to
your leased premises at the Property.
3. Future
rental payments with respect to your leased premises at the Property should
be
made to the New Owner by delivery of payment to the on-site manager of the
Property. All checks or money orders must be made payable to the order of
__________________________________.
Yours
very truly,
NEW
OWNER:
By:
Title:
TRANSFER
ACKNOWLEDGED:
By:
Name:
Title:
26
EXHIBIT
"G"
PURCHASER'S
RELEASE
This
Release ("Release") is
entered into this day of , 2007, between
("Seller") and
("Purchaser").
RECITALS
A. Seller
and Purchaser entered into that certain Purchase and Sale Agreement (the
"Agreement") dated effective , 2007, providing for the
purchase and sale of the Property known as the Chimney Square Apartments,
Abilene, Xxxxxx County, Texas.
B. Pursuant
to Section of the Agreement, Purchaser has
terminated the Agreement and is entitled to a refund of the Xxxxxxx
Money. Under Section 10.12 of the Agreement, Purchaser must
execute and deliver to Seller this Release.
NOW,
THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Purchaser
hereby agree as follows:
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1.
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Seller
and Purchaser hereby ratify and confirm the above recitals. All
defined terms used in this Release shall have the same meanings ascribed
to them in the Agreement.
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2.
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Purchaser
hereby releases and discharges Seller and Title Company, their employees,
agents and contractors, from any and all claims, liabilities and
expenses
(including reasonable attorney's fees) in connection with the Agreement,
and does further ratify and confirm that Purchaser has no rights
in and to
the Property.
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3.
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Seller
does hereby release and discharge Purchaser and Title Company, their
agents and contractors, from any and all claims, liabilities and
expenses
(including reasonable attorney's fees) in connection with the
Agreement.
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4.
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Seller
and Purchaser hereby instruct the Title Company to deliver to Purchaser
the Xxxxxxx Money.
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5.
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This
Release does not purport to release the matters set forth below,
and
Seller and Purchaser hereby reserve all rights and remedies relating
to:
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a.
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any
breach by Purchaser under Section 4.3 of the
Agreement;
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b.
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the
indemnities made by Purchaser in the Agreement which expressly survive
termination of the Agreement; and
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c.
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the
joint indemnity made in Section 10.2 of the
Agreement.
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6.
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Seller
and Purchaser hereby represent and warrant to the other that each
has the
power and authority to enter into this Release and that each party
is the
owner and holder of all claims and causes of action purported to
be
released hereunder.
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SELLER:
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By:
Name:
Title:
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PURCHASER:
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By:
Name:
Title:
[ADD
PROPER
ACKNOWLEDGMENTS]
27
EXHIBIT
"H"
Disclosure
of Information on Lead-Based Paint
and/or
Lead-Based Paint Hazards
Lead
Warning Statement:
Every
purchaser of any interest in residential real property on which a residential
dwelling was built before 1978 is notified that such property may present
exposure to lead from lead-based paint that may place young children at risk
of
developing lead poisoning. Lead poisoning in young children may
produce permanent neurological damage, including learning disabilities, reduced
intelligence quotient, behavioral problems, and impaired memory. Lead
poisoning also poses a particular risk to pregnant women. The seller
of any interest in residential real property is required to provide the buyer
with any information on lead-based paint hazards from risk assessments or
inspections in the seller’s possession and notify the buyer of any known
lead-based paint hazards. A risk assessment or inspection for
possible lead-based paint hazards is recommended before purchase.
Seller’s
Disclosure:
(A) Presence
of lead-based paint and/or lead-based paint hazards (check (1) or (2)
below):
(1)
______ - Known lead-based paint and/or lead-based paint hazards are present
in
the housing. To Seller’s knowledge, the following circumstances are
present in the housing:
____________________________________________________________________________________________________________________________________________________________________________.
(2)
__X____ - Seller has no knowledge of lead-based paint or lead-based paint
hazards in the housing.
(B)
Records and reports available to Seller (check (1) or (2) below):
(1)
______ - Seller has provided Buyer with all available records and reports
pertaining to lead-based paint and/or lead-based paint hazards in the
housing. The following documents were provided:
____________________________________________________________________________________________________________________________________________________________________________.
(2)
__X____ - Seller has no reports or records pertaining to lead-based paint
and/or lead-based paint hazards in the housing.
Buyer’s
Acknowledgment:
Buyer
has
read the Lead Warning Statement above and understands its
contents. Buyer has received the pamphlet Protect your family from
Lead in Your Home. Buyer received an opportunity to conduct a risk
assessment or inspection for presence of lead-based paint and/or lead-based
paint hazards, which opportunity expires on March 30, 2007.
Agent’s
Acknowledgment:
Agent
has
informed Seller of Seller’s obligations under 42 U.S.C. Section 4852d and is
aware of its responsibility to ensure compliance.
Certification
of Accuracy:
The
following parties have reviewed the information above and certify to the best
of
their knowledge, that the information they have provided is true and
accurate. Each of the following parties has duly executed and
delivered this Lead Paint Disclosure Attachment prior to execution and delivery
of the above-referenced Purchase and Sale Agreement.
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SIGNATURE
PAGE TO
DISCLOSURE
OF INFORMATION ON LEAD-BASED PAINT
AND
LEAD-BASED PAINT HAZARDS
SELLER:
CHIMNEY
SQUARE,
L.P.
a
Texas limited
partnership
DATE
OF
EXECUTION
By: XXXX, INC.,
a Texas corporation,
BY
SELLER: General
Partner
By:
Xxxxxx
X. Xxxxx,
President
PURCHASER:
DATE
OF EXECUTION
BY
PURCHASER:
Xxxxxx
X. Xxxxxx
29