Exhibit 10.1
CONTRACT OF SALE
AND PURCHASE OF REAL PROPERTY
This Contract of Sale and Purchase ("Contract") is entered into
between the following parties:
WATERMARK TEXAS ONE, INC., a Maryland corporation ("Seller") and THE
XXXXXXXX GROUP, INC., a Texas corporation and/or Assigns
("Purchaser").
1. AGREEMENT TO SELL AND PURCHASE
1.1 Sale of Property. Subject to the terms and conditions stated in
this Contract, Seller agrees to sell and convey or cause to be conveyed to
Purchaser and Purchaser agrees to purchase the Property defined in Section 1.2.
1.2 Property. The "Property" means an approximate 3.09 acre tract of
real property situated in Xxxxxx County, Texas, described on Exhibit "A"
attached to this Contract, together with any rights pertaining to such real
property.
2. DEFINED TERMS
2.1 The following capitalized terms shall have the meanings set forth
below. There are additional capitalized terms in this Contract which may be
defined subsequent to their initial use.
(a) "Closing Date" means the date specified in section 11.1.
(b) "Date of this Contract" means the date specified in Section
13.11.
(c) "Xxxxxxx Money" means that portion of the Purchase Price
deposited by Purchaser in escrow with the Title Company at the times
and in the form and amounts specified in Section 3.3.
(d) "Inspection Period" means the time period described in
Section 5.2.
(e) "Permitted Exceptions" means those exceptions or conditions
which affect or may affect Seller's title to the Property to which
Purchaser does not object or as to which Purchaser has waived any
objections in accordance with Section 4.3.
(f) "Purchase Price" means the consideration paid for the
purchase of the Property as set out in Section 3.
(g) "Regulation" means any zoning or land use requirement, or any
ordinance, regulation, code, rule, statute or law of any special
district, utility company, city, county, state or federal agency or
authority.
(h) "Title Company" means Houston Title Company, Attn: Xxxxx
Xxxxxxx (000) 000-0000.
(i) "Title Policy" means the basic Owner's Policy of Title
Insurance issued on the standard form in use in the State of Texas.
3. PURCHASE PRICE
3.1 Purchase Price. The purchase price to be paid at Closing for the
Property shall be $510,000.00 (the "Purchase Price").
3.2 Payment of Purchase Price. The Purchase price shall be paid to
Seller in cash or by wire transfer of funds into the Title Company's escrow
account at the time of closing.
3.3 Xxxxxxx Money. Within two days after execution of this Contract
Purchaser shall deliver into escrow with the Title Company the sum of
$10,000.00, to be held as Xxxxxxx Money in immediately available funds. At
Closing, the Xxxxxxx Money shall be disbursed as required by other provisions of
this Contract. The Xxxxxxx Money shall be invested by the Title Company in an
interest bearing account or other federally insured instrument designated by
Purchaser. The interest shall accrue in favor of and shall be payable to the
party entitled to the Xxxxxxx Money pursuant to the terms of this Contract.
Purchaser shall pay to Seller as of the Date of this Contract the sum of $100.00
to be retained by Seller as a nonrefundable fee in consideration for this
Contract and the Inspection Period.
4. TITLE AND SURVEY
4.1 Survey. Within ten (10) days after the Date of this Contract, the
Seller shall deliver to Purchaser any survey of the Property in Seller's
possession.
4.2 Title Commitment. Within ten (10) days after the Date of this
Contract, Seller, at Seller's sole cost and expense, shall obtain a commitment
for Title Policy (the "Commitment") dated no earlier than the Date of this
Contract, issued through the Title Company, setting forth the state of title to
the Property and any exceptions and conditions affecting the Property which
would appear in a Title Policy if issued, together with correct, complete and
legible copies of all instruments referred to in the Commitment (the "Title
Documents") and shall have the Commitment delivered to Purchaser.
4.3 Review of Title Documents. Purchaser shall have thirty (30) days
(the "Review Period") after date of this Contract to review the Title Documents
and to give Seller written notice of each condition and exception shown in them
to which Purchaser objects. Any condition or exception in the Title Documents to
which Purchaser does not object within the Review Period and any objection which
Purchaser timely makes but subsequently waives shall be considered "Permitted
Exceptions".
If Purchaser gives Seller written notice of any objections within the
Review Period, Seller shall have ten (10) days after receipt of such notice in
which to notify Purchaser in writing of which of Purchaser's objections, if any,
Seller elects to satisfy to the satisfaction of Purchaser. If Seller does not
elect to satisfy any of such objections within the ten (10) day period, then
Purchaser may terminate this Contract by written notice to the Seller within ten
(10) days after expiration of such ten day elective period, (or if Seller elects
to cure certain objections within the ten day elective period, but fails to
satisfy such objections within thirty (30) days (the "Cure Period") after
expiration of the ten day elective period, then Purchaser may terminate within
ten days after the expiration of the Cure Period) in which case this Contract
shall terminate and the Xxxxxxx Money shall be immediately returned to
Purchaser. If Purchaser fails to terminate this Contract by giving such
written notice to Seller within the applicable time periods, then Purchaser
shall be deemed conclusively to have waived its objection to those exceptions
and conditions in the Title Documents which Seller was unable or elected not to
cure, except that recorded liens and encumbrances which are filed after the
issuance of the Commitment which can be released or cured with the payment of
money shall be released or otherwise cured at Closing by payment out of the cash
proceeds of the Purchase Price payable to Seller.
5. INSPECTION PERIOD
Purchaser's obligations under this Contract are subject to and
contingent upon the following:
5.1 Delivery of Documents. Within ten (10) days after the Date of this
Contract, Seller at Seller's sole cost and expense, will deliver to Purchaser
copies of the most recent real estate and personal property tax statements, if
any, for the Property, including any notices regarding future assessments.
5.2 Purchaser's Inspection. Purchaser shall have sixty (60) days (the
"Inspection Period") from the date of this Contract to inspect the Property, and
to conduct engineering and economic feasibility studies of the Property. If the
Purchaser is satisfied with the Property and Property Information and the
feasibility studies, Purchaser shall notify Seller in writing that the Property
is satisfactory to Purchaser. If Purchaser is not satisfied with any of such
matters for any reason, in Purchaser's sole and absolute discretion, then
Purchaser shall have the right to terminate this Contract on or before the date
of expiration of the Inspection Period. If Purchaser fails to deliver written
notice to Seller on or before expiration of the Inspection Period of approval or
disapproval of the Property, then this Contract shall terminate as of the
expiration date of the Inspection Period and any Xxxxxxx Money that may have
been previously deposited with the Title Company shall immediately be refunded
to Purchaser and neither party shall have any further liability or obligation
under this Contract.
5.3 Access to the Property. Purchaser shall have the right to enter on
the Property from time to time prior to Closing for the purpose of conducting
inspections and studies at Purchaser's cost and expense and is authorized to
inspect and copy any records and information in Seller's possession pertaining
to the zoning or use of the Property. Purchaser shall indemnify and hold Seller
harmless from any loss, claim, liability or cost, including without limitation,
damage to Property, injury to persons and claims of mechanic's or materialmen's
liens caused by Purchaser's entry and conduct of tests on the Property.
6. TITLE POLICY
6.1 Title Policy. The Title Policy to be issued to Purchaser by the
Title Company pursuant to this Contract shall be in the amount of the Purchase
Price, dated as of the Closing Date and shall contain the Permitted Exceptions.
7. REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of Seller. Seller represents and
warrants to Purchaser the following as of the Date of this Contract and as of
the Closing Date, except where specific reference is made to another date or
dates, in which case such date or dates will be applicable:
(a) That Seller has, and as of the Closing Date will have and
will convey to Purchaser, good and indefeasible fee simple title to
the Property, free and clear of all conditions, exceptions, easements
and reservations, except the Permitted Exceptions.
(b) That the execution and delivery of this Contract and the
consummation of this transaction in compliance with the terms of this
Contract do not, or with notice or the passage of time or both will
not, constitute a default under any indenture, mortgage, loan
agreement, lease or instrument to which Seller is a party.
(c) There are no bills unpaid, liens filed or claims pending in
connection with the Seller's ownership of the Property, and none will
exist as of the Closing Date.
8. BROKERS
8.1 Brokers. Neither party has engaged any other broker, finder or
agent in connection with this transaction, and each party to this Contract
agrees to indemnify and hold the other party harmless from any costs, damages or
expense, including reasonable attorneys fees and court costs, resulting from any
claim for a commission, finder's fee or other compensation in connection with
this transaction asserted by any person acting or claiming to act based on an
agreement with such indemnifying party. Notwithstanding anything to the contrary
Contained elsewhere in this Contract, the indemnities set forth in this Section
9 shall survive the Closing.
9. CONDEMNATION AND CASUALTY
9.1 Condemnation. If on or before the Closing Date, any portion of the
Property has been condemned or sold under threat of condemnation or becomes the
subject of a condemnation proceeding or notice of an intention to take, Seller
shall promptly notify Purchaser and Purchaser may at its sole election, within
ten (10) days after receipt of such notice, terminate this Contract by written
notice to Seller, in which event the Xxxxxxx Money shall be returned to
Purchaser. If Purchaser does not elect to terminate within such ten (10) day
period, then Purchaser shall be deemed to have waived any objection to such
condemnation, in which event Purchaser shall accept title to the Property at
Closing subject to such condemnation, and Seller shall deliver all condemnation
proceeds or assign its rights to such proceeds to Purchaser.
9.2 Casualty. If on or before the Closing Date, any portion of the
Property has been damaged by fire, storm, flood or other casualty, Seller shall
promptly notify Purchaser in writing. Purchaser shall have the right at its sole
election, within ten (10) days after receipt of such notice, to terminate this
Contract by written notice to Seller, in which event Purchaser's Xxxxxxx Money
shall be returned. If Purchaser fails to give such notice of termination,
Purchaser shall be deemed to have waived any objection to such damage, in which
event Purchaser shall accept title to the Property at Closing subject to such
damage, and Seller shall deliver to Purchaser all insurance proceeds received by
Seller or assign to Purchaser all rights to negotiate, settle and collect such
proceeds with respect to such damage.
10. CLOSING
10.1 Date and Place of Closing. The Closing of this Contract shall
take place in the offices of the Title Company at 10:00 a.m., local time, on the
Closing Date. The Closing Date shall be the date which thirty (30) days after
the Inspection Period; provided, however, Purchaser may
designate an earlier date for Closing by giving Seller at least ten days prior
written notice of such earlier date. "Closing" shall mean the consummation of
this transaction including without limitation the execution and delivery by
Purchaser and Seller of the items specified in Section 10.2 and recordation of
the warranty deed. Upon delivery into escrow of the items to be delivered by
Seller pursuant to Section 10.2(a) and by Purchaser pursuant to Section 10.2(b)
and completion at Closing of such other acts as are provided for in this
Contract, then the proceeds of the Purchase Price shall be disbursed to Seller.
10.2 Items to be Delivered at the Closing.
(a) Seller. On the Closing Date, Seller shall cause to be
delivered to the Title Company, at Seller's sole cost and expense,
originals of each of the following items, duly executed and
acknowledged by Seller in recordable form where applicable, in form
and substance acceptable to Purchaser:
(i) A Special Warranty Deed properly executed and in proper
form for recording so as to convey to Purchaser or its assignee
good, marketable and fee simple title to the Property as required
by this Contract, subject only to the Permitted Exceptions.
(ii) An affidavit, sworn to by Seller, or if Seller is a
corporation by the President or any Vice President of Seller,
stating under penalty of perjury, that the Seller is not a
"foreign person" as defined in the Internal Revenue Code Section
1445 and the regulations promulgated under such Code, that the
Purchaser is not required to withhold any portion of the Purchase
Price under the provisions of such Code, and stating the Seller's
United States taxpayer identification number.
(iii) All additional documents and instruments which
Purchaser and Seller may mutually and reasonably determine are
necessary to the consummation of this transaction.
(b) Purchaser. At Closing, Purchaser shall deliver to Title
Company, when the Title Company has received from Seller the items in
Section 10.2(a) as required by such section: (i) the Purchase Price in
cash or by wire transfer of funds into the bank escrow account of the
Title Company or in other immediately available funds so as to permit
the Title Company to disburse the proceeds to Seller as of the Closing
Date; (ii) a signed ALTA Statement and/or such other documents as may
be required by the Title Company to issue a Title Policy pursuant to
this Contract, and (iii) all additional documents and instruments
which Purchaser and Seller may mutually and reasonably determine are
necessary to the consummation of this transaction.
(c) Title Company shall consummate closing when it has received
the items specified in Section 10.2(a) and (b) and is ready to issue
to Purchaser the Title Policy and deliver to seller the Purchase Price
as provided in this Contract. At Closing, Title Company shall:
(i) Record the deed to Purchaser;
(ii) Deliver the Title Policy to Purchaser;
(iii) Deliver to Purchaser two sets, including one original
or duplicate original copy of the documents specified in Section
10.2(a) and to Seller the documents specified in Section 10.2(b);
(iv) Pay the Purchase Price to Seller, subject to
adjustments and deductions as provided in this Contract.
10.3 Adjustments at Closing. Notwithstanding anything to the contrary
contained in this Contract, the provisions of this Section shall survive the
Closing. The following items shall be adjusted or prorated between Seller and
Purchaser at Closing or at such other time as is provided in this Section:
(a) Ad valorem and similar taxes relating to the Property
for the calendar year in which the Closing Date occurs shall be
prorated between Seller and Purchaser as of the Closing Date,
based upon the most recent ascertainable assessed valuation and
tax rate applicable to the Property and Seller shall pay to
Purchaser in cash at the Closing the Seller's pro rata portion of
such estimate. Any special assessments applicable to the Property
shall be paid by Seller on the Closing Date.
10.4 Possession at Closing. Full possession of the Property shall be
delivered to Purchaser by Seller at the Closing.
10.5 Closing Costs. The Purchaser and the Seller shall each bear the
cost of any recording fees incurred in connection with any documents required to
be recorded by such party. The Purchaser shall pay the cost for recording the
deed and for any survey which Purchaser or Title Company may require and shall
pay any documentary, stamp or transfer taxes required in connection with
transfer of title to the Property. Any fee charged by the Title Company for
serving as escrow agent in connection with the Closing shall be divided equally
between the parties. Seller shall pay for all costs associated with issuance of
the base Owner's Title Policy. Each party shall be responsible for the payment
of its own attorney's fees.
11. DEFAULTS AND REMEDIES
11.1 Seller's Default; Purchaser's Remedies.
(a) Seller's Default. Seller shall be deemed to be in default
under this Contract if Seller fails to close this transaction for any
reason other than the default of Purchaser.
(b) Purchaser's Remedies. If Seller is in default under this
Contract, Purchaser's sole and exclusive remedies shall be to:
(i) Terminate this Contract by written notice delivered to
Seller on or before the Closing Date; or
(ii) Enforce specific performance of this Contract.
11.2 Purchaser's Default; Seller's Remedies.
(a) Purchaser's Default. Purchaser shall be deemed to be in
default if Purchaser fails to Close for any reason other than a
default by Seller or termination of this Contract at or before Closing
pursuant to a permitted termination.
(b) Seller's Remedy; Liquidated Damages. If Purchaser is in
default under this Contract, Seller, as Seller's sole and exclusive
remedy for such default, shall be entitled to the Xxxxxxx Money
previously deposited by Purchaser with the Title Company, it being
agreed between Purchaser and Seller that such sum shall be liquidated
damages for a default of Purchaser under this Contract because of the
difficulty, inconvenience, and uncertainty of ascertaining actual
damages for such default. The amount of the Xxxxxxx Money represents
Seller's and Purchaser's best estimate of the damages suffered by
Seller because of Purchaser's default. If Seller is entitled to the
Xxxxxxx Money in accordance with this Section, Purchaser shall
promptly, on written request of Seller or the Title Company, execute
and deliver such documents as may be required to cause the Title
Company to deliver the Xxxxxxx Money to Seller. If the Xxxxxxx Money
is in the form of a letter of credit, the Title Company shall draw and
deliver to Seller the proceeds of the letter of credit as such
liquidated damages.
11.3 Indemnification. Purchaser and Seller each hereby agree to
indemnify and hold Title Company harmless from any liability, cost or expense,
including reasonable attorney's fees and court costs, by reason of the delivery
of the Xxxxxxx Money by Title Company in accordance with this Section 12.
12. MISCELLANEOUS
12.1 References. All references to "Section" or "Paragraph" are,
unless specifically stated otherwise, references to sections and paragraphs as
numbered or lettered in this Contract. All references to the expiration of any
time period under this Contract shall mean and refer to the expiration of any
extension of such time period whenever exercised pursuant to this Contract or
the agreement of Purchaser and Seller. The term "hereof," "herein," "hereby,"
and any similar terms shall refer to this Contract in its entirety. The terms
"included," "including" and similar terms shall be construed as if followed by
the phrase "without limitation."
12.2 Exhibits. All references to Exhibits refer to Exhibits attached
to this Contract, which are incorporated into and made a part of this Contract
by such reference.
12.3 Captions. The captions, headings, and arrangements in this
Contract are for convenience only and do not in any way define, limit, or modify
the terms and provisions of this Contract.
12.4 Number and Gender of Words. Whenever the singular number is used
in this Contract, the same shall include the plural where appropriate, and words
of any gender shall include the other gender where appropriate.
12.5 Notices. All notices, demands, requests and other communications
("Notices") required or permitted by this Contract shall be in writing and shall
be deemed to be received (i) when actually received or refused by any person at
the intended address, if personally served or sent by courier, (ii) two hours
after electronic confirmation if sent by facsimile machine, or (iii) whether
actually received or not, forty-eight (48) hours after the date of deposit of
the Notice (and on the date of deposit in the case of any permitted termination)
in a regularly maintained receptacle for the United States mail, registered or
certified, return receipt requested, postage fully prepaid, addressed as
follows:
If to the Purchaser: The Xxxxxxxx Group, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Copies to: _____________________________________
_____________________________________
_____________________________________
_____________________________________
Telephone:___________________________
Facsimile:___________________________
If to the Seller: Watermark Texas One, Inc.
c/o HPI Management
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Copies to: Xxxxx X. Xxxxxxx
Riggs, Abney, Neal, Turpen, Orbison & Xxxxx
Xxxxxx Building, 000 X. 0xx Xx.
Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile:(000)000-0000 _______________________
Either party may, in substitution of the foregoing, designate a
different street address and addressee within the continental United States for
purposes of this Section by written notice delivered to the other party in the
manner prescribed above at least ten (10) days in advance of the date upon which
such change of address is to be effective, provided that for purposes of
receiving notice of any termination rights under this Contract, only one
addressee at one street address shall be specified at any given time.
12.6 Entire Agreement. This Contract embodies the entire agreement
between the parties and supersedes all prior agreements, negotiations,
warranties, representations and understandings, if any, relating to the
Property, and may be amended or supplemented only by an instrument in writing
executed by the party against whom enforcement is sought.
12.7 Survival of Representations and Warranties. The representations,
warranties and indemnities set forth in this Contract shall survive the Closing.
12.8 Multiple Counterparts. This Contract may be executed in a number
of identical counterparts. If so executed, each of such counterpart is to be
deemed an original for all purposes, and all such counterparts shall,
collectively, constitute one agreement, the signature pages of which
counterparts may be combined into one document.
12.9 Parties Bound. This Contract shall be binding upon and inure to
the benefit of Seller and Purchaser and their respective heirs, personal
representatives, successors, and assigns.
12.10 Further Acts. In addition to the acts and deeds recited in this
Contract and contemplated to be performed, executed, and/or delivered by Seller
and Purchaser, Seller and Purchaser agree to perform, execute, and/or deliver or
cause to be performed, executed, and/or delivered at the Closing or after the
Closing any and all such further acts, deeds, and assurances as may be necessary
to consummate the transactions contemplated by this Contract.
12.11 Date of this Contract. The term "date of this Contract" or "date
hereof" or similar references shall for all purposes in this Contract mean the
date on which a copy of this Contract has been fully executed and acknowledged
by Purchaser and Seller with all changes to the typewritten portion of this
Contract initialed by Purchaser and Seller.
12.12 Expiration. The execution of this Contract by the first party to
do so and delivery of copies to the other party constitutes an offer to purchase
or sell and shall be automatically revoked unless the party to which the offer
is made shall execute at least two (2) copies of this Contract and deliver them
to the offering party at the address stated in Section 12.5 on or before 12:00
noon, local time, no later than the date which is ten (10) business days after
the date on which the offering party has executed this Contract.
12.13 Time of the Essence. It is expressly agreed that time is of the
essence with respect to this Contract and each provision contained in this
Contract.
12.14 Business Days. All references to "business days" in this
Contract are references to working days, Monday through Friday of each calendar
week. If any date specified in this Contract for commencement or expiration of
time periods for termination or approvals, or for the Closing Date, occurs on a
Saturday, Sunday or a holiday observed by national banks or the Title Company,
then any such date shall be postponed to the next following business day.
12.15 Attorney Fees. In the event of a dispute arising between the
parties to this Contract, the prevailing party shall be paid by the
non-prevailing party reasonable attorney's fees and court costs, if any,
incurred in connection with such dispute.
12.16 Authorization and Capacity. Purchaser and Seller each represents
to the other that it has the full right, power and authority to enter into this
Contract and to fully perform its obligations. Each person executing this
Contract warrants and represents that each has the authority to execute this
Contract in the capacity stated and to bind the Purchaser and Seller,
respectively, and that no third party consent or approval nor any other
signature is necessary to create a valid and binding obligation or to consummate
this transaction. Each party will furnish to the Title Company at closing copies
of such resolutions, affidavits, certificates and agreements as the Title
Company or the other party shall require in order to confirm such authority and
capacity of Seller or Purchaser, as applicable, and of the persons who are to
execute documents in connection with the Closing.
12.17 Assignment. Purchaser shall have the right to assign this
Contract at its sole option to a partnership in which the sole general partner
is Purchaser, an affiliate or a partnership in which Purchaser or an affiliate
is a managing partner. Purchaser shall have the right to assign this Contract to
any other party upon the consent of Seller, which consent shall not be
unreasonably withheld. If a permitted assignee assumes all obligations of
Purchaser and agrees to execute all documents and to perform all obligations
imposed on Purchaser as if the assignee were the original purchaser in this
Contract, then Purchaser shall be relieved of its obligation under this
Contract.
12.18 Governing Law. This Contract is to be performed in the county
and state in which the Property is located and the laws of such state shall
govern the validity, construction and
enforcement of this Contract. Venue for any litigation shall be fixed in the
county where the Property is located.
Executed by Seller effective as of the 16th day of October, 2003.
SELLER:
WATERMARK TEXAS ONE, INC.,
a Maryland corporation
By: /s/ Xxxxx Xxxxxx
Name (Print): Xxxxx Xxxxxx
------------------
Title: President
---------------
Executed by Purchaser effective as of the 16th day of October, 2003.
PURCHASER:
THE XXXXXXXX GROUP, INC.,
A Texas corporation
--------
_____________________________________
By: /s/ Authorized Officer
----------------------
Name (Print):/s/ Authorized Officer
----------------------
Title:/s/ Authorized Officer
----------------------
EXHIBIT "A"
Being approximately 3.0905 acres of land, more or less in Lot Six (6) of
XXXXXXXX PLACE, a subdivision, Section 7, Block One, in the City of Houston,
Xxxxxx County, Texas. Said subdivision being shown by Plat of record in Volume
69, Page 394 of the Deed Records of Xxxxxx County, Texas.
