Exhibit 2.1
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AGREEMENT OF SALE
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This AGREEMENT OF SALE ("Agreement") is dated as of January 5, 2007,
between WATERMARK TEXAS 1, a Maryland corporation, with an address of 000 X.
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Seller"); and
BAYSIDE FISH MARKET, a Texas Corporation, with an address of 000-X X. Xxxxxxxx
Xx., Xxxxxxx, Xxxxx 00000 ("Purchaser"). This Agreement shall become effective
on the date of the full execution by Seller ("Effective Date").
W I T N E S S E T H:
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That in consideration of the covenants and agreements of the respective
parties as hereinafter set forth, Seller shall sell and Purchaser shall purchase
a certain tract of land identified as the "Property" on Exhibit "A", attached
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hereto and made a part hereof located in or near the City of Houston, Xxxxxx
County, Texas, containing 3.090 acres, more or less, together with all
improvements thereon, easements and rights appurtenant thereto and all of
Seller's right, title, and interest in any public rights-of-way adjoining the
property (with the land collectively called the "Property").
The following terms, provisions, and conditions are further agreed to:
1. Purchase Price; Option Fee. The purchase price for the Property shall
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be THREE HUNDRED THIRTY NINE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS
($339,500.00) ("Purchase Price") payable as follows:
(a) FOUR THOUSAND AND NO/100 DOLLARS ($4,000.00) ("Deposit") paid by
Purchaser to Escrow Agent contemporaneously wish the execution of this
Agreement by Purchaser, and to be deposited in a non-interest bearing
escrow account with PARTNERS TITLE COMPANY, HOUSTON, TEXAS, Attn: Xxxx
Xxxxxx, ("Title Company"); and
(b) The balance of the Purchase Price shall be received by the Title
Company by federal wire transfer at or before 10:00 A. M. Central
Standard Time on the date of Closing; and
(c) ONE THOUSAND AND NO/100 DOLLARS ($1,000.00) paid by Purchaser to
Seller as an Option Fee contemporaneously with the execution of this
Agreement as consideration for Purchaser's rights under this Agreement
which shall be deemed earned by Seller upon the full execution and
delivery of this Agreement into escrow with the Title Company and
shall be included as a credit to the Purchase Price in the event this
Agreement closes in accordance with the terms hereof.
2. Survey. Seller shall obtain a current survey of the Property prepared
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by a registered/licensed surveyor acceptable to the Title Company, certified to
Purchaser, Seller and Title Company for the purpose of transfer of the title and
issuance of title insurance as contemplated by this Agreement, no later than
thirty (30) days after Seller and Purchaser receives the Owner's Title
Commitment provided for in Paragraph 3 below. The survey shall
contain a metes and bounds description of the Property which shall be attached
hereto as Exhibit "B". Purchaser shall pay up to Three Thousand Four Hundred
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Dollars ($3,400.00) of the cost of such survey and Seller shall pay the balance.
Any extraordinary survey work caused by Purchaser's intended use, financing or
development requirements shall be at Purchaser's expense.
3. Title Insurance. Title Company shall provide no later than fifteen
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(15) days after the Effective Date, a standard form ALTA Owner's Title
Commitment ("Commitment") covering the Property. Title Company shall cause the
Commitment to be delivered to Purchaser, together with copies of all
instruments, if any, referred to in the Commitment as exceptions to title. If
exceptions appear in the Commitment, other than the standard pre-printed
exceptions, which are objectionable to Purchaser, Purchaser shall, within seven
(7) days after Purchaser receives the Commitment (along with supporting
documents), notify Seller and Title Company in writing of such fact ("Title
Objection Notice"). Upon the expiration of said seven (7) day period, Purchaser
shall be deemed to have accepted all exceptions to title as shown on the
Commitment (except for any matters to which objection notice under the preceding
sentence has been given) and such exceptions not objected to by Purchaser as
provided above shall be known as permitted exceptions for purposes of the final
title insurance policy. Seller shall, within thirty (30) days of receipt of the
Title Objection Notice, have the option in its sole discretion of either: (i)
terminating this Agreement in which event the Deposit shall be returned to
Purchaser, or (ii) clearing the title of the objections so specified. If Seller
elects to terminate this Agreement, Seller shall so notify Purchaser, whereupon
Purchaser shall either: (i) nullify Seller's termination within five (5) days of
its receipt of such notice by written notice to Seller and take title "AS IS" or
(ii) accept Seller's termination within five (5) days of its receipt of such
notice by written notice to Seller. Title Company shall issue a title insurance
policy for the Property at Closing. The premium of the title insurance policy
shall be paid by Seller. The expense of additional/extended coverage or
endorsements or the deletion of standard pre-printed exceptions, if any, shall
be the sole responsibility of Purchaser. If this Agreement terminates as a
result of Purchaser's Default or by Purchaser's election as otherwise set forth
herein, then Purchaser shall be responsible for any cancellation fees charged by
the Title Company. This Section shall survive Closing.
4. Deed. Prior to Closing, Seller shall deliver to Escrow Agent a
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warranty deed ("Deed") conveying insurable title to the Property, which shall
warrant title to the Property, and defend the same against the lawful claims of
all persons claiming by, through and under Seller, but none other, subject to
all matters of record. Said Deed shall be in substantially the same form as
attached as Exhibit "D". Upon receipt of the entire Purchase Price, Escrow Agent
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shall record the Deed and other recordable documents as may be delivered in
connection with the Closing.
5. Condition of Property. Notwithstanding anything to the contrary
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contained in this Agreement, it is expressly understood and agreed that
Purchaser is buying the Property "AS IS" AND "WHERE IS" AS OF THE TIME OF
CLOSING, AND WITH ALL FAULTS AND DEFECTS, LATENT OR OTHERWISE, AND THAT SELLER
IS MAKING NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, BY
OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO THE QUALITY, PHYSICAL CONDITIONS
OR VALUE OF THE PROPERTY, THE PROPERTY'S HABITABILITY, SUITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THE PRESENCE OR ABSENCE OF
CONDITIONS ON THE PROPERTY THAT COULD GIVE RISE TO A CLAIM FOR PERSONAL INJURY,
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PROPERTY OR NATURAL RESOURCE DAMAGES; THE PRESENCE OF HAZARDOUS OR TOXIC
SUBSTANCES, MATERIALS OR WASTE, SUBSTANCES, CONTAMINANTS, OR POLLUTANTS ON,
UNDER OR ABOUT THE PROPERTY; OR THE INCOME OR EXPENSES FROM OR OF THE PROPERTY.
This Section shall survive the Closing or earlier termination of the Agreement.
6. Taxes and Assessments. Real property taxes for the then current tax
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year shall be prorated as of the date of Closing. Purchaser is responsible for
real property taxes due on and after the date of Closing. If the Closing shall
occur before the tax rate is fixed on the then-current tax year, the proration
of real property taxes shall be upon the basis of the tax rate for the preceding
year applied to the latest assessed valuation. If real property taxes for the
Property are not separately assessed and are a part of Seller's larger tract,
the proration of taxes shall be a credit to Seller at Closing. All prorations
shall be adjusted between the parties based on actual taxes for the year in
which the Closing occurs at the time that such actual taxes are determined.
Seller shall pay assessments and charges for improvements, either general or
special (including roll-back taxes), which have been assessed and billed prior
to the date of Closing. Purchaser shall pay all other assessments and charges.
This Section shall survive the Closing.
7. Transfer Taxes, Revenue Stamps and Fees. The expense and cost of all
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state, county and local documentary or revenue stamps, transfer, sales and other
"transfer taxes" (including sales taxes on brokerage commissions, if any), and
closing fees, if applicable, relating to the sale of the Property shall be the
sole cost and responsibility of Purchaser and paid on the date of Closing. Any
impact, user, standby, connection, or other tax, obligation or fee related to
the Property or its development shall be at the sole cost and responsibility of
Purchaser.
8. Default. With respect to Default, Seller and Purchaser hereby agree to
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the following:
(a) If Purchaser fails or refuses to comply fully with the terms of this
Agreement for any reason, Seller may, at its option, either (i)
rescind this Agreement and retain the Deposit as liquidated damages,
or (ii) pursue any other legal or equitable remedy, including, without
limitation, a suit for specific performance.
(b) If Seller fails or refuses to comply fully with the terms of this
Agreement for any reason, Purchaser may, at its option, either (i)
rescind this Agreement whereupon the Deposit will be refunded to
Purchaser, or (ii) pursue any other legal or equitable remedy,
including, without limitation, a suit for specific performance.
9. Right of Entry. At any time prior to the Closing, and at Purchaser's
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sole cost and responsibility, Purchaser or its authorized agents shall have the
right to, enter upon the Property for any lawful purpose, including, without
limitation, conducting the Survey as contemplated by this Agreement and any
other site analyses, test borings, and engineering studies. Purchaser agrees to
defend, indemnify and hold harmless Seller from any damages or liability to
persons or property that might arise therefrom, and Purchaser agrees to repair
at its sole cost and responsibility, or pay to Seller the cost of, any damages
caused to the Property by such entry.
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10. Assignment. Purchaser shall not assign this Agreement or any right
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granted herein without the written consent of Seller, however Purchaser shall be
expressly permitted to assign to an entity of which Purchaser holds a majority
or controlling interest, provided Purchaser shall provide Seller with an exact
copy of the document(s) concerning such assignment no later than fifteen (15)
days prior to Closing. No assignment shall relieve or release Purchaser of any
obligation under this Agreement. Moreover, Seller shall have the express right
to assign or transfer its interest to a parent company, affiliate, subsidiary,
or related company.
11. Notices. All notices and other communications required or permitted to
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be given hereunder shall be in writing and shall be mailed by certified or
registered mail, postage prepaid, or nationally recognized overnight courier,
and shall be considered given upon receipt, addressed as follows (other
information in italics and for Title Company below is for informational purposes
only, and shall not be considered for notice purposes):
If to Seller:
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Watermark Texas 1
000 X. Xxxxx Xx., Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000
Attn: Xxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxx@xxxxx.xxx
With copy to:
Means Xxxxx Partners, LP
0000 Xxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: C. Xxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxxx@xxxxxxxxxx.xxx
If to Purchaser:
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Bayside Fish Market
000-X X. Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Hai X. Xxxxxx
Tel: (000) 000-0000
Fax: ______________
E-Mail: xxx0000@xxxxx.xxx
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If to Title Company:
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Partners Title Company
000 Xxxx Xxxxxx, Xxxxx 0000X
Xxxxxxx, Xxxxx 77002-3218
Attn: Xxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxxx@xxxxxx.xxx
Either party may at any time change its address for notification purposes
by written notice to the other party setting forth the new address, and such new
address shall be effective three (3) days after such notice is given.
12. Conditions Precedent. Purchaser represents and Seller acknowledges
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that Purchaser intends to use the Property for a retail center ("Intended Use").
Therefore, if Purchaser should determine the Property unusable for the Intended
Use, Purchaser may rescind this Agreement by written notice thereof to Seller
and Title Company within sixty (60) days of the Effective Date and the Deposit
will be refunded to Purchaser and Purchaser's obligation to purchase the
Property shall terminate. Notwithstanding anything to the contrary contained
herein, Purchaser and Seller acknowledge and agree that Seller's ability to sell
the Property pursuant to this Agreement is expressly subject to the prior
written approval of the shareholders of Watermark Investors Realty Trust, the
parent of Purchaser, and if such shareholder approval is not obtained within one
hundred twenty (120) days of the date of this Agreement, then the sale of the
Property contemplated herein shall not occur and this Agreement shall terminate
and be of no further force or effect and Purchaser's Deposit and Option Fee
shall be returned by the Title Company to Purchaser.
13. Closing. The Closing shall take place at the office of the Title
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Company by mail and/or facsimile no later than ninety (90) days from the
Effective Date ("Closing").
14. Possession. Seller will turn over exclusive possession of the Property
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to Purchaser at the Closing.
15. Brokerage Commission. Purchaser agrees to pay a brokerage commission
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equal to six percent (6%) of the Purchase Price to Means Xxxxx Partners, LP, at
Closing. Purchaser agrees to defend, indemnify and hold Seller harmless from and
against any claim for any commissions, fees or other form of compensation by any
third party claiming such compensation in connection with this sale, such
indemnity to include, without limitation, any and all claims, causes of action,
damages, cost and expenses (including reasonable attorney's fees and court
costs), associated therewith.
16. Purchaser's Reports. Purchaser hereby agrees to furnish a copy of any
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survey, soils tests, engineering studies or environmental studies, when they are
obtained, and/or any other non-confidential data that they may obtain during the
time frames within this Agreement to Seller.
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17. Condemnation. If, prior to the Closing, all or any part of the
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Property shall be condemned by governmental or other lawful authority, Purchaser
shall have the option of either (i) completing the purchase, in which event all
condemnation proceeds or claims thereof shall be assigned to Purchaser, or (ii)
canceling this Agreement, in which event the Deposit shall be returned to
Purchaser and this Agreement shall be terminated with neither party having any
rights against the other, and Seller shall be entitled to any and all
condemnation proceeds.
18. Time of the Essence. Time is expressly declared to be the essence of
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this Agreement.
19. Final Dates; Days. If the final date of any deadline falls upon a
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Saturday, Sunday, or holiday recognized by the U. S. Postal Service, then in
such event the time of such deadline shall be extended to the next day which is
not a Saturday, Sunday, or holiday recognized by the U. S. Postal Service.
Wherever in this Agreement the word "days" is used, it shall be considered
"calendar days" and not "business days".
20. Entire Agreement. This Agreement contains the entire agreement between
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Purchaser and Seller, and there are no other terms, conditions, promises,
undertakings, statements or representations, express or implied, concerning the
sale contemplated by this Agreement.
21. Headings. The headings to the Sections hereof have been inserted for
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convenience of reference only and shall in no way modify or restrict any
provisions hereof or be used to construe any such provisions.
22. Counterparts. This Agreement, and any modifications, may be executed
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in one or more counterparts, including by facsimile, all parties need not be
signatories to the same documents, and all counterpart signed documents shall be
deemed to be an original and one (1) instrument.
23. Modifications. The terms of this Agreement may not be amended, waived,
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or terminated orally, but only by an instrument in writing signed by both
Purchaser and Seller.
24. Attorney's Fees. Seller and Purchaser agree that if either party
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brings an action against the other party to enforce the terms hereof or to
declare rights hereunder each party shall pay their own attorney's fees and
costs incurred therein.
25. Successors. This Agreement shall inure to the benefit of and bind the
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parties hereto and their respective successors/heirs and assigns.
26. Governing Law. This Agreement shall be governed by and interpreted
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under the laws of the state of Texas.
27. Representation of Confidentiality. Purchaser agrees that it, and all
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of its employees and agents, shall keep confidential the terms of this
Agreement. Purchaser specifically recognizes that it is important to Seller that
any future negotiations it may have with other Purchasers not be impacted by the
terms of this arms length agreement, and therefore Purchaser shall not disclose
any of the economics nor any other terms of this Agreement.
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28. Compliance. Purchaser hereby warrants and represents to Seller that in
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exercising its rights under this Agreement, Purchaser shall comply fully with
any federal, state or local laws, regulations, ordinances, permits or other
authorizations.
[Remainder of page left intentionally blank - Signature page follows]
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IN WITHNESS WHEREOF, the parties have executed this Agreement as of the
month, day and year first above written.
WATERMARK TEXAS 1, a
Maryland corporation
["Seller"]
BY: /s/Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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ITS: Vice President
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DATE: January 5, 2007
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BAYSIDE FISH MARKET, a
Texas corporation
["Purchaser"]
BY: /s/Xxxx Xxxxx
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Xxxx Xxxxx
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ITS: Controller
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DATE: 10/30/06
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