REAL ESTATE SALES CONTRACT
THIS REAL ESTATE SALES CONTRACT (hereinafter referred to as
the "Contract") is entered into by and between TIMBER CREEK
APARTMENTS PARTNERS, a Texas general partnership (hereinafter
referred to as "Seller") and XXXXXX RESIDENTIAL PROPERTIES, INC.,
(hereinafter referred to as "Purchaser").
FOR AND IN CONSIDERATION OF the premises and the respective
covenants, agreements and obligations hereinafter set forth, Seller
and Purchaser do hereby agree as follows:
1.
SALE AND PURCHASE
1.1 Upon and subject to the terms and conditions hereinafter
set forth, Purchaser agrees to purchase from Seller, and Seller
agrees to sell to Purchaser, the following (hereinafter
collectively referred to as the "Property"):
(a) The real property being Xxx 0, Xxxxx 0 xx Xxxxxxxxx
Addition, an Addition to the Cities of Arlington and
Kennedale, Tarrant County, Texas which real property is more
particularly described on Exhibit "A" attached hereto, and
incorporated herein, together with all rights, ways,
privileges and appurtenances pertaining thereto, including any
right, title and interest of Seller in and to any streets,
alleys or rights-of-way adjoining said real property
(hereinafter collectively referred to as the "Real Property");
(b) All improvements and fixtures located on the Real
Property, including, without limitation, the buildings located
thereon, which are more commonly referred to as Timber Creek
Apartments located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxx
Xxxxxx, Xxxxx (hereinafter referred to as the "Improvements");
(c) All personal property of every kind and character
owned by Seller and situated on or used in connection with the
Real Property and Improvements (hereinafter collectively
referred to as the "Personal Property");
(d) All leases and rental agreements with tenants of the
Improvements (hereinafter collectively referred to as the
"Tenant Leases"), and all security deposits paid by the
Tenants in connection with the Tenant Leases (hereinafter
collectively referred to as the "Tenant Deposits");
(e) All management, employment, maintenance, service,
equipment, garbage disposal, guard, security, pest control,
and all other agreements, contracts, and leases (except Tenant
Leases) concerning the operation, use, management, maintenance
or lease of the Real Property, Improvements, and/or Personal
Property, or any portion thereof (hereinafter collectively
referred to as the "Collateral Agreements").
2.
PURCHASE PRICE
2.1 The Purchase Price for the Property (hereinafter referred
to as the "Purchase Price") shall be Four Million Eight Hundred
Fifty Thousand and 00/100 Dollars ($4,850,000.00), payable all in
cash at Closing.
3.
XXXXXXX MONEY
3.1 Upon execution of this Contract, Purchaser shall deposit
with American Title Company located at 0000 Xxxxxxxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000, to the attention of Xxx Xxxxxx (hereinafter
referred to as the "Title Company"), cash in the amount of
$25,000.00 (the "Initial Deposit") to assure prompt observance of
this Contract by Purchaser.
3.2 On the date of the expiration of the Inspection Period
(as that term is defined in Paragraph 6.1 herein) and if Purchaser
has not terminated this Contract pursuant to Paragraph 6.1 herein,
then Purchaser shall deposit an additional Twenty-Five Thousand
Dollars ($25,000.00) as xxxxxxx money with the Title Company (the
"Additional Deposit"). The Additional Deposit together with the
Initial Deposit shall be collectively referred to herein as the
"Xxxxxxx Money Deposit".
3.3 The Xxxxxxx Money Deposit shall be deposited by the Title
Company and placed in an interest bearing account. All interest
accruing thereon shall be for the benefit of Purchaser.
3.4 The Xxxxxxx Money Deposit shall apply to the Purchase
Price at Closing.
4.
TITLE STATUS
4.1 Within ten (10) days after the Effective Date (as
hereinafter defined in Paragraph 14.11), Seller shall deliver to
Purchaser a Commitment for Title Insurance, Texas standard form
(hereinafter referred to as the "Commitment"), together with copies
of all instruments and documents referred to therein as exceptions
to title covering the Property, in the amount of the Purchase
Price, in favor of Purchaser, pursuant to which the Title Company
agrees, subject to the provisions thereof, to issue at Closing an
Owner Policy of Title Insurance (hereinafter referred to as the
"Owner Policy") to Purchaser.
4.2 Purchaser shall have fifteen (15) days after the latest
to be received of the Commitment, legible copies of all exception
matters referenced in the Commitment and the survey (as hereinafter
defined in Paragraph 5.1), to provide to Seller written objections
to the status of title to the Property. If such written objections
have not been received by Seller prior to the end of the said
fifteen (15) day period, Purchaser shall be deemed to have
conclusively accepted and approved the status of title to the
Property, as shown by the Commitment. If Purchaser does timely
deliver to Seller such written objections, Seller shall have ten
(10) days from the receipt of the objections to attempt to cure
such objections. If Seller is unable or unwilling to cure such
objections within such ten (10) day period, Purchaser may either
(i) waive such objections in writing and purchase the Property
notwithstanding such objections, (ii) extend Seller additional
time, not later than the date of Closing, to cure such objections
or (iii) terminate this Contract by written notice to Seller, in
which event the Xxxxxxx Money Deposit shall be returned to
Purchaser on demand, and neither Seller nor Purchaser shall have
any further obligations hereunder.
4.3 Seller shall deliver to Purchaser, at Closing, a Special
Warranty Deed (hereinafter referred to as the "Deed") conveying fee
simple title to the Property to Purchaser, subject to the
exceptions to title contained in the Commitment approved, or
waived, by Purchaser pursuant to Paragraph 4.2 hereof.
5.
SURVEY
5.1 Seller shall provide to Purchaser, within five (5) days
after the Effective Date, Seller's most recent survey (hereinafter
referred to as the "Survey") of the Property prepared by a licensed
surveyor or professional engineer. Upon the expiration of the
Inspection Period, if Purchaser has not terminated this Contract,
Seller will provide Purchaser with an updated and recertified
survey, which survey shall be in form and content sufficient to
delete the standard survey exception from the Owner Policy.
Notwithstanding the foregoing, if Purchaser desires to have a
current survey prior to the expiration of the Inspection Period,
Purchaser shall. notify Seller of said desire and Seller will order
the updated Survey for Purchaser, however, Purchaser will pay for
the cost of the updated Survey if Purchaser does not close this
transaction.
5.2 Purchaser shall provide to Seller, in writing, within
fifteen (15) days after receipt of the latest to be received of the
Commitment, legible copies of all exception matters referenced in
the Commitment and the Survey, any objections to the Survey
referred to in Paragraph 5.1 hereof. If such written notice has
not been received by Seller prior to the end of said fifteen (15)
day period, Purchaser shall be deemed to have conclusively accepted
and approved the Survey. If Purchaser does timely deliver to
Seller such written objections, Seller shall have ten (10) days
from receipt of the objections to attempt to cure such objections.
If Seller is unable or unwilling to cure such objections within
such ten (10) day period, Purchaser may either: (i) waive such
objections in writing and purchase the Property notwithstanding
such objections, or (ii) terminate this Contract by written notice
to Seller, in which event the Xxxxxxx Money Deposit shall be
returned to Purchaser and neither Seller nor Purchaser shall have
any further obligations hereunder. Upon receipt of the updated and
recertified Survey, Purchaser shall have five (5) days to object in
writing to any material items which appear on the Survey for the
first time. If Purchaser so objects, Seller shall have until
Closing to cure the objections or notify Purchaser of Seller's
unwillingness to cure. If Seller is unable or unwilling to cure
such material objections, Purchaser shall either: (i) waive such
objections in writing and purchase the Property notwithstanding
such objections, or (ii) terminate this Contract by written notice
to Seller, in which event the Xxxxxxx Money Deposit shall be
returned to Purchaser and neither Seller nor Purchaser shall have
any further obligations hereunder.
6.
INSPECTION AND EXAMINATION
6.1 Purchaser shall have until the expiration of the sixtieth
(60th) day after the Effective Date (hereinafter referred to as the
"Inspection Period"), during which time, Purchaser, or Purchaser's
authorized agent or representative, shall be entitled to enter upon
the Property for the purpose of inspecting, examining and making
tests upon the Property. If Purchaser, in Purchaser's sole
discretion, is dissatisfied with the results of Purchaser's
inspection of the Property, Purchaser may, by written notice
delivered to Seller prior to the expiration of the Inspection
Period, terminate this Contract in which event the Xxxxxxx Money
Deposit shall be returned to Purchaser on demand, and neither
Seller nor Purchaser shall have any further obligations hereunder.
If Purchaser does not terminate this Contract by delivery of such
written notice prior to the expiration of the Inspection Period,
Purchaser shall be conclusively deemed to have accepted the
Property in its present condition.
6.2 Purchaser shall have the right to obtain an updated
Environmental Report. In the
event such Environmental Report is not acceptable to Purchaser, in
Purchaser's reasonable discretion, Purchaser shall have the right
to terminate the Contract prior to the expiration of the Inspection
Period and receive a full refund of the Xxxxxxx Money Deposit.
Purchaser agrees to commission this study within fifteen (15) days
from the Effective Date.
6.3 To facilitate Purchaser's inspection of the Property,
Seller shall provide to Purchaser, at Seller's sole expense, within
five (5) days from the Effective Date, the following:
(a) Access to obtain copies of all tenant leases, at
Purchaser's expense, and a Rent Roll, herein so called, for
the Property, prepared as of the first day of the month in
which this Contract is executed. Additionally, Seller will
provide Purchaser access to Seller's records regarding expense
and income in order to enable Purchaser to complete an audit
of such records;
(b) True copies of the most recent tax statements (both
real estate and personal property taxes) on the Property;
(c) An accurate schedule (the "Operating Schedule")
reflecting, with respect to the Property for the twelve (12)
month period preceding the month of execution of this Contract
(i) all operating expenses and capital expenditures of the
Property (ii) the aggregate rent collected from tenants of the
Property during such period;
(d) A true and complete inventory of all furnishings,
fixtures, equipment and other personal property located upon
and/or comprising the tangible items used in connection with
the Property;
(e) A true and complete list of all service and other
agreements (the "Third Party Agreements") pertaining to the
Property on which Seller is obligated showing: (i) the names
of the parties to each agreement, (ii) the service rendered or
to be rendered under each agreement, (iii) the compensation
payable by Seller under each agreement, and (iv) the term and
expiration date of each agreement;
(f) Copies of all certificates of occupancy, licenses
and permits required by law and issued by all governmental
authorities having jurisdiction, if any, which may be in
Seller's possession;
(g) All environmental, engineering, pest control and
other professional reports in the possession of Seller;
(h) A copy of a tenant rent roll for the Property,
showing actual occupancies, rentals, security deposits,
assigned parking spaces (if any), free rent, rent concessions,
tenant incentives, lease terms, unit numbers, and unit types.
A current schedule of rental rates for each type of unit
within the Property, and such other pertinent information
regarding the tenant leases and rental units as is reasonably
available to Seller;
(i) A copy of the standard form of tenant lease;
(j) A copy of all utility bills for the Property for the
previous twelve (12) months, excluding individually metered
tenant utility bins; and a letter from each of the utility
providers stating that the utilities are available to the
Property; and
(k) Copies of any pertinent litigation of safety related
issues with respect to the Property.
6.4 Purchaser agrees that if for any reason the Closing is
not consummated, Purchaser
will promptly return to Seller all materials furnished to Purchaser
pursuant to Paragraph 6.2.
6.5 Purchaser shall have the right to approve or disapprove
during the Inspection Period any of the Third Party Agreements
described in Paragraph 6.2(e) above existing on the Effective Date.
Seller will not enter into any Third Party Agreements after the
Effective Date that do not contain a clause that grants to Seller
the right to terminate such agreement upon thirty (30)days notice.
Any Third Party Agreement not acceptable to Purchaser must have a
thirty (30) day cancellation clause and Seller will notify such
third party of Purchaser's desire to terminate such agreement. If
such Third Party Agreement cannot be terminated within thirty (30)
days, Purchaser must purchase the Property subject to the terms of
such Third Party Agreement or terminate the Contract.
7.
CLOSING
7.1 The date of closing (hereinafter referred to as the
"Closing Date") shall be, and the event of closing (hereinafter
referred to as the "Closing"), shall occur on the thirtieth (30th)
day following the expiration of the Inspection Period, in the
offices of the Title Company, at such hour as Seller and Purchaser
may mutually agree, but otherwise at 10:00 a.m., local time.
Provided, however, Purchaser shall have the right to a single
extension of the Closing and the Closing Date of thirty (30) days
if Purchaser shall provide Seller with written notice of
Purchaser's election to so extend the Closing Date (and the
Closing) before the fifth (5th) day preceding the originally
scheduled Closing Date.
7.2 All recordation fees and closing cost shall be borne by
Seller and Purchaser in accordance with custom in the area in which
the Property is situated. Provided, however, Seller shall pay for
the Owner Policy and Purchaser shall pay the extra premium for the
survey deletion in connection with the Title Policy.
7.3 Real and personal property taxes for the then current tax
year shall be prorated to the Closing Date. The proration shall be
based on the taxes paid for the tax year 1995. No future
adjustments for real and personal property taxes shall be made
between the parties.
7.4 In addition to the taxes, all rents paid under the tenant
leases, expenses pursuant to the Third Party Agreements and
municipal utilities shall be prorated as of the Closing Date.
Provided, however, Seller shall be entitled to the full amount of
any deposits then held by any utility companies and the amount
thereof shall be an addition to the Purchase Price unless Seller
elects, at its sole option, to obtain a refund of any deposit
directly from any utility company holding same, in which event
Purchaser shall be required to replace any such deposit if
requested or required by the respective utility company. Any
delinquent rents for the current month collected after Closing
shall be delivered to Seller, in Seller's pro rata share. All
tenant deposits paid to Seller under the Tenant Leases as reflected
on the Rent Roll shall be paid to Purchaser at Closing.
7.5 At Closing, Seller shall deliver to Purchaser the
following documents which shall be duly executed and, where
appropriate, acknowledged, together with any and all items or
instruments necessary or appropriate thereto:
(a) The Deed;
(b) The Owner Policy, containing no exception to title
other than (i) the standard printed exceptions in Schedule B
to the Commitment, the tax exception shall refer to taxes for
the year 1996 and subsequent years, and subsequent assessments
for prior years due to change in land usage or ownership and
shall be endorsed "not yet due and payable" and (ii) those
exceptions to title contained in Schedule B to the Commitment
which are approved by Purchaser or waived by Purchaser
pursuant to Paragraph 4.2 hereof;
(c) An Affidavit required pursuant to Section 1445 of
the Internal Revenue Code stating, under penalties of perjury,
that Seller nor any other party so swearing, is a foreign
person within the meaning of Section 1445 of the Internal
Revenue Code;
(d) A Xxxx of Sale transferring to Purchaser all of the
Personal Property including but not limited to, tangible
personal property and Third Party Agreements;
(e) An Assignment of Tenant Leases and Deposits
assigning all of Seller's right, title and interest in and to
all Tenant Leases and security deposits, and other leases
covering the Property. Seller shall also deliver to Purchaser
the original leases, security deposit agreements, insurance
policies and Third Party Agreements to Purchaser; and
(f) A Tenant Notification Agreement, dated the date of
Closing, executed by Seller, notifying the tenants of the
Property that the Property has been sold to Purchaser.
7.6 At Closing, Purchaser shall deliver to Seller the cash
funds referred to in Paragraph 2.1 hereof and the statutory notice
to tenants as required by Section 92.105(b) of the Texas Property
Code.
7.7 Possession of the Property shall be delivered to
Purchaser at Closing.
8.
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 Seller's Representations and Warranties. Seller
represents and warrants to Purchaser the following:
(a) Seller has or will have at Closing good,
indefeasible, and fee simple title to the Property, free and
clear of all mortgages, liens, encumbrances, leases,
tenancies, security interest, covenants, conditions
restrictions, rights-of-way, easements, judgments or other
matters affecting title other than those shown on Schedule B
of the Commitment and otherwise permitted herein.
(b) This Contract has been duly authorized and executed
by Seller and is a valid and binding obligation of, and is
enforceable, in accordance with its terms, against Seller.
The documents delivered to Purchaser at Closing will be duly
authorized and executed by Seller and will be a valid and
binding obligation of, and will be enforceable in accordance
with their terms, against Seller.
(c) There is no pending or threatened condemnation or
similar proceeding affecting the Property or any portion
thereof, or pending public improvements, liens, or special
assessments, in, about or outside the Property which will in
any manner affect the Property or access to the Property, nor
any legal action of any kind or character whatsoever affecting
the Property which will in any manner affect Purchaser upon
the consummation hereof, nor is any such action presently
contemplated.
(d) To the best of Seller's knowledge, Seller has
complied with all applicable laws, ordinances, regulations,
statutes, rules and restrictions pertaining to and affecting
the Property. Performance of this Contract will not result in
any breach of, or constitute any default under, or result in
imposition of, any lien or encumbrance upon the Property under
any agreement or other instrument to which Seller is a party
or by which Seller or the Property might be bound.
(e) Seller will operate and manage the Property in
substantially the same manner it has been operated and managed
and will maintain the physical condition of the Property in
the same or better condition as it presently exists to the
date of Closing, reasonable wear and tear excepted.
(f) The rent roll delivered pursuant to Paragraph 6.2(h)
is the Current Rent Roll. Not earlier than five (5) days
prior to Closing, Seller shall deliver a Revised Rent Roll to
Purchaser, certified by Seller in writing as true and correct
which Revised Rent Roll shall set forth the following:
(i) the name of each tenant;
(ii) the lease commencement and expiration dates;
(iii) the amount of any security deposits;
(iv) a list of vacant space;
(v) the size and type of each vacant area; and
(vi) the amount and description of any concessions.
(g) Except as expressly set forth in the Rent Roll:
(i) To the best of Seller's knowledge, all of the
information contained on the Rent Roll is, and will
be, true, correct and complete as of its date.
(ii) No rent under any Tenant Lease has been, or
prior to Closing will be, prepaid for a period in
excess of thirty (30) days.
(iii) No tenant has any right of first refusal
or option with respect to the leasing of any
portion of the Property.
(iv) No one, including any tenant, has any option
or right of first refusal to purchase the Property
or any part thereof.
(v) To the best of Seller's knowledge, there are
no oral agreements with anyone, including tenants,
with respect to the Property or any portion
thereof.
(vi) All of the present Tenant Leases for rental
space in the Property are in writing, on a standard
form (which form has been provided to Purchaser)
and duly executed by all parties thereto, and, to
the best of Seller's knowledge, are (A) in full
force and effect and (B) valid and binding
agreements of, and fully enforceable in accordance
with their terms against, the tenants.
(vii) The Tenant Leases will not be amended in
any way after the Effective Date, other than in the
ordinary course of business, without the prior,
written consent of Purchaser, which consent shall
not be unreasonably withheld. Purchaser, unless it
otherwise shall advise Seller in writing within
five (5) days following Seller's request for such
consent, shall be deemed to have consented to any
such amendment.
(viii) Except as stated in the Rent Roll, there
are no uncured defaults on the part of any party to
any of the Tenant Leases, and Seller is in full
compliance with all of lessor's obligations
thereunder.
(ix) None of the rentals due or to become due under
such leases will be assigned, encumbered, or
subject to any liens at the Closing other than the
Permitted Exceptions.
(x) Except as disclosed to Purchaser by Seller in
writing, at the time of Closing, all tenants will
be paying charges for electricity consumed in their
space, including heating and air conditioning, on
an individually metered basis.
(h) The Operating Statement delivered pursuant to
Paragraph 6.2(c) is the most recent monthly statement of
income and expense in connection with the operation and
maintenance of the Property. The balance of such statements
for the preceding months shall be made available to Purchaser
promptly upon request.
(i) No action has been taken with respect to work
performed or delivery of material which would give rise to a
lien on the Property. At Closing, there will be no claim in
favor of any person or entity which is or could become a lien
on the Real Property, the Improvements, or the Personal
Property, arising out of the furnishing of labor or materials,
other than claims or hens arising from acts of Purchaser;
there will be no unpaid assessments against the Property,
except for Property taxes assessed but not due and payable at
the time of Closing; and there will be no claim in favor of
any person or entity (including the present management
company) for any unpaid commissions or fees for leasing of the
Property. In the event of any such claims at Closing, Seller,
at its option and in lieu of the foregoing, either may: (i)
establish with the Title Company an escrow of funds in an
amount and upon conditions reasonably acceptable to Seller and
Purchaser, or (ii) provide a bond in favor of purchaser or
Title Company (or Title Company's underwriter) in such amount,
upon such conditions and for such purposes as may be
satisfactory to Purchaser, Seller and Title Company, in either
case for the purpose of providing for such claims and/or
inducing the Title Company to insure Purchaser's title to the
Property free and clear of such claims.
(j) Seller agrees that benefits or compensations accrued
prior to Closing, and due or claimed to be due either before
or after Closing, to employees or former employees of Seller
shall constitute obligations of Seller only, and Seller agrees
to indemnify and hold Purchaser harmless from all such
obligations and claims.
(k) Seller will not borrow any money or do, or fail to
do, any other act or thing which would cause the Real
Property, the Improvements or any Personal Property to become
pledged or otherwise utilized as collateral or in any way
stand as security for any indebtedness or obligation.
(l) All ad valorem taxes and personal property taxes,
together with all assessments or other charges for utilities,
roads or the widening of such roads, or any other fees imposed
by any governmental authority with respect to the Property,
have been paid in full. The ad valorem taxes, personal
property taxes and special assessments pertaining to the
Property for calendar year 1995 were in the aggregate amount
of $___________ except to the extent that any invoices for any
of such taxes and special assessments have not yet been
received by Seller as of the date of Seller's execution
hereof. In the event Seller receives any further invoices,
notices or assessments that should be included in the figure
listed in this Subparagraph (1), Seller will provide copies of
same to Purchaser on or prior to the Closing Date.
(m) The representations, warranties and covenants of the
Seller contained in this Agreement or in any document
delivered to Purchaser pursuant to the terms of this Agreement
(whether in this Section 8 or elsewhere): (i) shall be true
and correct in all material respects and not in default at the
time of Closing, just as though they were made at such time,
and Seller shall deliver to Purchaser, at Closing, an
affidavit to that effect. However, it is expressly agreed and
understood that the representations, warranties, and covenants
will merge with the Deed and will not survive the Closing of
this transaction.
(n) All rental units shall be in "market ready",
rentable condition as of the date of Closing. Provided,
however, Seller and Purchaser acknowledge that rental units
that are vacated within five (5) business days prior to the
date of Closing, will be in varying conditions of "make-ready"
for leasing, as is ordinary in Seller's course of business.
As to any units that are not in "market ready', rentable
condition as of the date of Closing, Purchaser and Seller
understand and agree that Purchaser shall be entitled to a
credit against the Purchase Price at Closing an amount equal
to the amount agreed upon at Closing by Purchaser and Seller
as being required to put in "market ready", rentable condition
any units that are not in such condition as of the date of the
Closing. Notwithstanding the foregoing, Seller will not be
required to pay an amount in excess of $500.00 per unit not in
"market ready", rentable condition. Purchaser shall have the
right to re-inspect the Property during the period commencing
not earlier than five (5) days prior to the Closing and ending
on the Closing solely for purposes of verifying the
maintenance of the Property in accordance with this Contract.
(o) To the best of Seller's knowledge, no Hazardous
Materials are located on or about the Property. For purposes
of this Paragraph the phrase, "To the best of Seller's
knowledge", is strictly limited to the information contained
in an environmental report prepared in connection with
Seller's acquisition of the Property. Seller agrees to
provide Purchaser with a copy of such environmental report.
(p) To the best of Seller's knowledge, the Improvements
and Personal Property are in good working order and are
structurally sound. For purposes of this Paragraph, the
phrase, "To the best of Seller's knowledge", is strictly
limited to the information contained in an engineer's report
prepared in connection with Seller's acquisition of the
Property. Seller agrees to provide Purchaser with a copy of
such engineer's report.
(q) Except as otherwise specifically stated in this
Contract, Seller shall disclose to Purchaser any and all
information Seller may have in its possession regarding the
following, but Seller hereby specifically disclaims any
warranty, guaranty or representation, oral or written, past,
present or future, of, as to, or concerning: (i) the nature
and condition of the Property, including, "without limitation,
the water, soil and geology, and the suitability thereof and
of the Property for any and all activities and uses which
Purchaser may elect to conduct thereon, and the existence of
any environmental hazards or conditions thereon (including the
presence of asbestos) or compliance with all applicable laws,
rules or regulations; (ii) except for any warranties contained
in the Deed to be delivered by Seller at the Closing, the
nature and extent of any right-of-way, lease, possession,
lien, encumbrance, license, reservation, condition or
otherwise; and (iii) the compliance of the Property or its
operation with any laws, ordinances or regulations of any
government or other body. Purchaser acknowledges that it will
inspect the Property and, except for the specific
representations, warranties and covenants contained herein,
Purchaser will rely solely on its own investigation of the
Property and not on any information provided or to be provided
by Seller. Purchaser further acknowledges that the
information provided and to be provided with respect to the
Property was obtained from a variety of sources and Seller:
(i) has not made any independent investigation or verification
of such information; and (ii) does not make any
representations as to the accuracy or completeness of such
information, except for the specific representations,
warranties and covenants contained herein. THE SALE OF THE
PROPERTY AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS" BASIS,
AND PURCHASER EXPRESSLY ACKNOWLEDGES THAT, IN CONSIDERATION OF
THE AGREEMENTS OF SELLER HEREIN, EXCEPT AS OTHERWISE SPECIFIED
HEREIN, SELLER MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTY OF CONDITION, HABITABILITY,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN
RESPECT OF THE PROPERTY. NOTHING IN THIS PARAGRAPH SHALL BE
CONSTRUED OR DEEMED TO CONSTITUTE OR CREATE AN AFFIRMATIVE
OBLIGATION OF SELLER TO UNDERTAKE ANY ACTION OR TO INCUR ANY
EXPENSE IN PROCURING ANY INFORMATION OR REPORT RELATING TO
SELLER'S OBLIGATIONS HEREUNDER.
8.2 Notwithstanding the provisions of Paragraph 8.1, if,
within ten (10) days from the date this Contract is fully executed,
Seller gives written notice that any representation or warranty
contained in this Paragraph 8.1 is incorrect, Seller will not be
bound by such representation or warranty. However, within ten (10)
days after Seller's delivery of such notice to Purchaser, Purchaser
may terminate this Contract (in which event the Xxxxxxx Money
Deposit shall be immediately returned to Purchaser).
9.
DEFAULT
9.1 In the event that Purchaser shall fail to purchase the
Property in accordance with the terms and conditions of this
Contract, or otherwise default in the performance of Purchaser's
obligations pursuant to this Contract, for any reason whatsoever
other than Seller's default or as otherwise permitted hereunder,
Seller shall be paid and shall retain the Xxxxxxx Money Deposit as
liquidated damages as Seller's sole remedy hereunder.
9.2 In the event that Seller shall default in the performance
of Seller's obligations hereunder, for any reason whatsoever other
than Purchaser's default or as otherwise permitted hereunder, as
Purchaser's only remedies hereunder, Purchaser may, at Purchaser's
option: (i) purchase the Property notwithstanding such default
pursuant to the remaining terms and provisions of this Contract, in
which event such default shall be deemed waived, (ii) terminate
this Contract, in which event Purchaser shall be entitled to return
of Purchaser's Xxxxxxx Money Deposit, and neither Seller nor
Purchaser shall have any further obligation hereunder, or (iii)
seek specific performance of this Contract.
10.
CASUALTY LOSS
10.1 If, prior to the date of the Closing, all or any material
portion of the Property is either destroyed, damaged by fire or
other casualty, Purchaser shall have the right to cancel this
Contract by written notice to Seller and the Title Company within
ten (10) days after delivery to Purchaser of notice of the
occurrence of any such event (and the Closing shall be extended
such additional time as is necessary to make such election).
Provided, however, failure to so elect shall be deemed an election
by Purchaser to complete Purchaser's purchase obligations
hereunder. If, upon any such occurrence, Purchaser elects or is
deemed to have elected to complete Purchaser's purchase obligations
hereunder, Purchaser shall be entitled to receive all insurance
proceeds, as compensation for such loss and Seller shall, in this
regard, execute all documents and perform such acts as shall be
necessary or proper for Purchaser to receive such proceeds. In the
event Purchaser elects to complete the purchase of the Property and
accept an assignment of the insurance proceeds, Seller agrees to
pay to Purchaser an amount equal to the insurance policy
deductible.
11.
BROKER FEES AND COMMISSION
11.1 Seller and Purchaser each hereby warrant and represent to
the other that all claims for brokerage fees, commissions or
finders' or other similar fees in connection with the transactions
contemplated in this Contract, insofar as such claims shall be
based on agreements made by either of the parties, shall be paid by
the party making such agreements, and the party hereto making such
agreement does hereby indemnify and hold the party hereto which
does not make such agreement harmless from and against all
liability, loss, cost, damage or expense (including but not limited
to reasonable attorney's fees and costs of litigation) which the
party hereto which does not make such agreement shall suffer or
incur because of any claim by any broker, agent or finder claiming
any compensation pursuant to such agreement with respect to the
sale and purchase of the Property or the execution of this
Contract. The provision of this Paragraph 11.1 shall survive
Closing.
11.2 Seller shall pay to Windsor Realty Advisors, Inc. (X.X.
Xxxx) (hereinafter referred to as "Realtor"), a commission in cash
equal to three percent (3%) of the Purchase Price. Provided,
however, such commission shall be payable only in the event that
the sale of the Property as contemplated in this Contract is
consummated.
12.
NOTICE
12.1 All notices, objections and approvals referred to in this
Contract must be given in writing and will be effective on the day
the notice is: (i) actually received by the addressee thereof after
being sent by overnight delivery (such as Federal Express) or
having been personally hand delivered by the sender or (ii)
deposited in the United States Mail, postage prepaid, registered or
certified mail, return receipt requested, and properly addressed to
the party to receive said notice, or (iii) sent to the addressee by
telecopier, facsimile or similar transmitting machine. The notice
addresses of the parties shall be those specified below unless
modified in writing by the appropriate party:
SELLER:
Timber Creek Apartments Partners
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxx,. Xxxxx 00000
(000) 000-0000
(000) 000-0000 (Facsimile)
With a copy to:
Mr. R. Xxxxxx Xxxxx
Xxxxx & Xxxxx, P.C.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
(000) 000-0000
(000) 000-0000 (Facsimile)
PURCHASER:
Xxxxxx Residential Properties, Inc.
00000 Xxxxxxx Xxxx
Xxxxx 000 X
Xxxxxx, Xxxxx 00000
(000) 000-0000
(000) 000-0000 (Facsimile)
With a copy to:
Xx. Xxxxx Xxxxxx
Xxxxxx, Hardt, Kopf, Xxxx & Dinan
0000 Xxxxxxxx Xxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
(000) 000-0000
(000) 000-0000 (Facsimile)
13.
CONTINGENCY
13.1 This Contract is expressly subject to the provisions of
Addendum Eight of the First Deed of Trust and Security Agreement
recorded in Volume 9962, Page 1169 of the Deed of Trust Records,
Tarrant County, Texas, executed by Seller which grants General
Electric Capital Corporation a "First Option to Purchase" the
Property. Seller will use Seller's best efforts to secure within
ten (10) days from the Effective Date, the waiver of General
Electric Capital Corporation of its First Option to Purchase. In
the event General Electric Capital Corporation exercises the First
Option to Purchase in accordance with the terms of the above
described deed of trust, this Contract shall terminate and the
Xxxxxxx Money Deposit shall be returned to Purchaser and neither
Purchaser nor Seller shall have any further obligations to the
other.
13.2 This Contract is expressly contingent upon Seller using
Seller's best efforts to obtain the approval and consent of any
lienholder to the herein proposed sale and the agreement of such
lienholder to release any and all liens or security interests it
holds with regard to the Property on or before ten (10) days from
the Effective Date. In the event Seller is unable to obtain the
approval within the above described time period, this Contract
shall terminate and the Xxxxxxx Money Deposit shall be returned to
Purchaser and neither Purchaser nor Seller shall have any further
obligations to the other.
14.
MISCELLANEOUS
14.1 The execution of this Contract by the first party
constitutes an offer to buy or sell the Property. Unless this
Contract is accepted by the other party within five (5) working
days from the execution of this Contract by the first party, and a
fully executed copy is delivered to the Title Company, the offer of
this Contract shall be automatically revoked and terminated.
14.2 This Contract and all of the terms, provisions and
covenants contained herein shall apply to, be binding upon and
inure to the benefit of the parties hereto, their respective
successors and assigns.
14.3 The captions employed in this Contract are for
convenience only and are not intended in any way to limit or
amplify the terms and provisions of this Contract.
14.4 Time is of the essence of this Contract.
14.5 This Contract shall be construed in accordance with the
laws of the State of Texas, and venue for any cause of action
arising hereunder shall lie in Dallas County, Texas.
14.6 This Contract contains the entire agreement of the
parties with respect to the subject matter hereof, and shall not be
varied, amended, or superseded except by written agreement between
the parties hereto.
14.7 This Contract may be executed in counterparts, each of
which shall constitute an original and all which taken together
shall constitute an original and all which taken together shall
constitute a single agreement.
14.8 The Purchaser hereby acknowledges that, at the time of
the execution of this Contract, the undersigned Realtor advised the
Purchaser by this writing that the Purchaser should have the
abstract covering the real estate which is the subject of this
Contract examined by an attorney of the Purchaser's own selection
or that the Purchaser should be furnished with or obtain a Policy
of title insurance.
14.9 The Realtor, its agents and/or employee's may act in the
dual capacity of broker and undisclosed principal in the
transaction described hereunder.
14.10 If any date of significance hereunder falls upon a
Saturday, Sunday or recognized Federal holiday, such date will be
deemed moved forward to the next day which is not a Saturday,
Sunday or recognized Federal holiday. The terms "working day"
shall mean days elapsed exclusive of Saturday, Sunday or recognized
Federal holidays.
14.11 This Contract (or a counterpart hereof) must be
executed by Purchaser and Seller and a fully executed copy hereof
(or executed counterparts) deposited with the Title Company not
later than five (5) days after execution hereof by the latter of
Purchaser or Seller (the actual date of deposit being herein
referred to as the "Effective Date"), or this Contract shall become
null, void and of no effect whatsoever.
[SIGNATURES ARE ON THE FOLLOWING PAGE]
SELLER:
TIMBER CREEK APARTMENTS PARTNERS,
a Texas general partnership
Date Executed by Seller By: T.C. Apartments, Inc.,
a Texas corporation
Its: Managing Partner
By:
Xxx X. Xxxxxxx
President
PURCHASER:
XXXXXX RESIDENTIAL PROPERTIES, INC.
Date Executed by Purchaser
By:
Printed Name: Xxxxxxxx X. Xxxxxxx
Title: President
REALTOR:
WINDSOR REALTY ADVISORS, INC.
By:
X. X. Xxxx
ACCEPTANCE BY TITLE COMPANY
The undersigned title company, AMERICAN TITLE COMPANY,
referred to in the foregoing Contract as the "Title Company",
hereby acknowledges receipt of a fully executed copy (or executed
counterparts) of the foregoing Contract and accepts the obligations
of the Title Company as set forth therein.
By:
Date:
"Effective Date"
EXHIBIT A
Property Description
Lot Three (3), in Block Three (3) of TREEPOINT, an Addition to the
Cities of Arlington and Kennedale, Tarrant County, Texas, according
to plat recorded in Volume 000-000-0, Page 71 of the Deed Records
of Tarrant County, Texas.
