AGREEMENT OF PURCHASE AND SALE Property Name: 288 Units – Fox Hill Apartments Date: January 19, 2015 AGREEMENT OF PURCHASE AND SALE
Exhibit 10.1
AGREEMENT OF PURCHASE AND SALE
Property Name: | 288 Units – Fox Hill Apartments | |
0000 Xxx 000 Xxxx, Xxxxxx, XX 00000 | ||
Date: | January 19, 2015 |
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this “Agreement”) is made as of the 19th day of January, 2015, by and between WRPV XI XX XXXXXX, L.P., a Delaware limited partnership (the “Seller”), and BLUEROCK REAL ESTATE, L.L.C., a Delaware limited liability company (the “Buyer”).
Seller is the owner of the Property described below. Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the Property, subject to and in accordance with the terms, conditions and other provisions of this Agreement.
The following capitalized terms shall have the meanings set forth in this Section 1 for all purposes under this Agreement:
Additional Property. Seller’s right, title and interest in, to and under any licenses, permits and warranties, applicable or appurtenant to the other components of the Property, if any.
Broker. Holiday Xxxxxxxx Xxxxxx, X.X.
Closing. The consummation of the transactions described herein as more fully described in Section 4 below.
Closing Date. March 19, 2015, or such earlier date mutually agreed upon by Seller and Buyer, unless extended by Buyer as provided in Section 4.1 below.
Due Diligence Expiration Date. February 18, 2015.
Due Diligence Period. The period commencing on the date hereof and continuing until 5:00 p.m. eastern time on the Due Diligence Expiration Date.
Xxxxxxx Money. Defined in Section 2.2(a) below.
Effective Date. January 19, 2015.
Escrow Company. Heritage Title Company of Austin through its office located at 000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, XX, 00000, Attention: Xxxx Xxxxx - Senior Vice President, Commercial Escrow (email: xxxxxx@xxxxxxxx-xxxxx.xxx and telephone: (000-000-0000)).
Improvements. The buildings and other improvements situated on the Land (excluding, however, any building or other improvements situated on any easement parcels described in Exhibit A attached hereto).
Indemnified Seller Parties. Defined in Section 3.2(d) below.
Land. The parcel(s) of land legally described in Exhibit A attached hereto.
Leases. All leases, licenses, and other agreements to use or occupy all or any part of the Land or Improvements, together with all amendments thereto for those tenants listed on the Rent Roll attached hereto as Exhibit B attached hereto.
Personal Property. The items of personal property listed on Exhibit C attached hereto, but specifically excluding the Excluded Personal Property.
Property. Collectively, the Real Property, the Personal Property and all of Seller's right, title and interest in, to and under the Leases, the Service Contracts and the Additional Property.
Property Manager. Waterton Property Management, L.L.C.
Public Records. The official public records of the recording division of the Xxxxxx County Clerk’s office in Xxxxxx County, Texas.
Purchase Price. THIRTY EIGHT MILLION ONE HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS ($38,150,000.00).
Seller Parties. Collectively, (a) Seller, (b) its counsel, (c) Property Manager, (d) any direct or indirect equity owner, officer, director, employee, or agent of Seller, its counsel or Property Manager, and (e) any other entity or individual affiliated or related in any way to any of the foregoing.
Service Contracts. The service contracts and equipment leases listed in Exhibit D attached hereto.
Termination Surviving Obligations. Buyer’s obligations under Sections 3.1 and 3.2 hereof and Buyer’s and Seller’s obligations under Sections 10 and 14.3 hereof.
Title Company. First American Title Insurance Company through its agent, Escrow Company.
Transaction. The purchase and sale transaction contemplated by this Agreement.
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SECTION 2 AGREEMENT TO SELL AND PURCHASE: PURCHASE PRICE
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SECTION 3 SELLER’S DELIVERIES; CONDITIONS PRECEDENT
(a) | the Leases and lease files containing related documentation, which shall be made available at the Property; |
(b) | the Service Contracts; |
(c) | Seller’s existing owner’s title policy with respect to the Property; |
(d) | the plans and specifications relating to the Property in Seller’s possession, if any, which shall be made available at the Property; |
(e) | schedule of insurance losses for the prior three (3) years (but in any event, for not longer than Seller has owned the Property); |
(f) | real estate and personal property tax bills for calendar years 2012, 2013 and 2014 (but in any event, for not longer than Seller has owned the Property); |
(g) | operating statements with respect to the Property for 2012, 2013 and 2014 (but in any event, for not longer than Seller has owned the Property); |
(h) | any environmental reports with respect to the Property in Seller’s possession; |
(i) | copies of assessments for calendar years 2012, 2013, and 2014, if any, imposed by reason of the Property’s inclusion in a utility or statutorily created district providing water, sewer, drainage, or floor control facilities and services, as determined pursuant to Chapter 49 of the Texas Water Code; |
(j) | copies of assessments for calendar years 2012, 2013, and 2014, if any, imposed by reason of the Property’s inclusion in a certificated water or sewer area, which is authorized by law to provide water or sewer service to the properties in the certificated area, pursuant to Section 13.257 of the Texas Water Code; and |
(k) | copies of assessments for calendar years 2012, 2013, and 2014, if any, imposed by reason of the Property’s inclusion in a public improvement district as defined in Section 5.014 of the Texas Property Code. |
In the event that this Agreement terminates for any reason, Buyer shall promptly return to Seller all written and other physical materials (whether from Seller, Seller’s agents or otherwise) received by Buyer relating to the Property or Seller (collectively, the “Seller Provided Materials”).
Except as otherwise expressly set forth in this Agreement and in the documents delivered by Seller at Closing, Seller makes no representations or warranties, either expressed or implied, and shall have no liability with respect to the accuracy or completeness of the information, data or conclusions contained in the information provided to Buyer, and Buyer shall make its own independent inquiry regarding the economic feasibility, physical condition and environmental state of the Property during the Due Diligence Period.
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(a) | Subject to the rights of tenants under the Leases, Buyer shall have a right to enter the Property for the purpose of conducting the Inspections and for no other purpose, provided that in each such instance (i) Buyer notifies Seller’s agent of the intended Inspections not less than 48 hours prior to such entry; (ii) such Inspections are scheduled with Field Xxxxx by electronic mail (xxxxxx@xxxxx.xxx); and (iii) Buyer is in full compliance with Section 3.2(d) hereof. At Seller’s election, a representative of Seller shall be present during any entry by Buyer or its representatives upon the Property for conducting said Inspections. Buyer shall take all necessary actions to insure that neither it nor any of its representatives shall interfere with the ongoing operations occurring at the Property during the course of performing any such Inspections, including, without limitation, any activities of tenants. Buyer shall not cause or permit any mechanics’ liens or other liens to be filed against the Property as a result of the Inspections. Notwithstanding anything set forth herein to the contrary, Buyer shall not be permitted to: (w) perform any Phase II environmental assessments or any other tests that require the physical alteration of the Property (including, without limitation, borings or samplings) without the prior written consent of Seller, which may be withheld by Seller in its sole discretion; (x) review any of the Excluded Documents; (y) interview any tenants, owners or other occupants of the Property; or (z) discuss employment opportunities with any employees of Seller or Property Manager. Promptly upon (i) receipt of the written request of Seller; or (ii) termination of this Agreement for any reason, Buyer shall deliver to Seller a complete copy of any written studies, reports, tests results or similar documents prepared by or on behalf of Buyer or its agents (collectively, the “Third Party Reports”). |
(b) | Buyer shall have until the Due Diligence Expiration Date in which to conduct its due diligence investigations and analysis of the Property and of all information pertaining to the Property to determine whether the Property is acceptable to Buyer. If during the Due Diligence Period, Buyer so elects, for any reason or no reason, Buyer may, as its sole and exclusive right and remedy, terminate this Agreement by giving written notice of termination to Seller on or before the Due Diligence Expiration Date. If Buyer does not give such notice of termination on or before the Due Diligence Expiration Date, Buyer shall be deemed to have waived its right to terminate this Agreement pursuant to this Section 3.2 and this Agreement shall continue in full force and effect. In the event of such termination the Xxxxxxx Money shall be returned to Buyer and neither party shall have any further obligations to the other party hereunder, except for the Termination Surviving Obligations. |
(c) | Buyer agrees and covenants with Seller not to disclose to any third party (other than lenders, accountants, equity partners, attorneys and other professionals and consultants working for Buyer in connection with the acquisition of the Property) without Seller’s prior written consent, unless Buyer is obligated by law to make such disclosure (in which case Buyer shall provide concurrent written notice of such mandatory disclosure to Seller), any of the reports or any other documentation or information obtained by Buyer which relates to the Property, the Property or Seller in any way, all of which shall be used by Buyer and its agents solely in connection with the transactions contemplated hereby. |
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(d) | Buyer agrees to indemnify, defend and hold Seller and its members, managers, partners, trustees, beneficiaries, shareholders, directors, officers, advisors and other agents and their respective employees and affiliates (collectively, the “Indemnified Seller Parties”) harmless from and against any and all claims, losses, damages, costs and expense (including, without limitation, attorneys fees’ and court costs) (collectively, “Claims”) suffered or incurred by any of the Indemnified Seller Parties as a result of or in connection with any activities of Buyer (including activities of any of Buyer’s employees, consultants, contractors or other agents) conducted pursuant to or in violation of this Section 3.2 or otherwise, including, without limitation, mechanics’ liens, damage to the Property, and injury to persons or property resulting from such activities; provided, however, in no event shall Buyer have any obligation to indemnify any of the Indemnified Seller Parties with respect to Claims arising (x) as a result of Buyer’s mere discovery, without exacerbation, of an existing environmental or other condition on the Property; or (y) solely due to the negligence or intentional misconduct of any of the Indemnified Seller Parties. In connection with the foregoing indemnity, in the event that the Property is damaged, disturbed or altered in any way as a result of such activities, Buyer shall promptly restore the Property to its condition existing prior to the commencement of such activities. Furthermore, Buyer agrees to maintain and to cause all of its representatives or agents conducting any Inspections to maintain and have in effect workers’ compensation insurance, with statutory limits of coverage, and commercial general liability insurance with (i) appropriate coverages, (ii) waiver of subrogation, and (iii) limits of not less than Three Million and 00/100 Dollars ($3,000,000.00) for personal injury, including bodily injury and death, and property damage. Such insurance shall name Seller, Waterton Property Management, L.L.C., and Waterton Associates L.L.C. as additional insured parties and shall be with companies, with deductibles and otherwise in form reasonably acceptable to Seller. Buyer shall deliver to Seller prior to commencing any of the activities described in this Section 3.2, evidence reasonably satisfactory to Seller that the insurance required hereunder is in full force and effect. |
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4.2 | Deliveries. At Closing Seller and Buyer shall execute and deliver the following items: |
(a) | Seller shall deliver to the Escrow Company (for delivery to Buyer upon Closing): |
(i) | a special warranty deed conveying the Real Property in the form of Exhibit E attached hereto (the “Deed”); |
(ii) | a xxxx of sale in the form of Exhibit F attached hereto, conveying to Buyer all of Seller’s right, title and interest in and to the Personal Property, if any; |
(iii) | a non-foreign transferor certification as required under Section 1445 of the Internal Revenue Code; |
(iv) | evidence of Seller’s authority to consummate the transactions described herein, as required by the Title Company; and |
(v) | Evidence of Termination of the existing management and leasing agreement with Property Manager. |
(b) | Buyer shall pay or deliver to the Escrow Company (for delivery to Seller upon Closing): |
(i) | the balance of the Purchase Price, by wire transfer, as provided in Section 2.2(b); and |
(ii) | evidence of Buyer’s authority to consummate the transactions described herein, as required by the Title Company; and |
(c) | Seller and Buyer shall jointly deliver to the Escrow Company (for delivery to each other upon Closing): |
(i) | an assignment and assumption of Leases in the form of Exhibit G attached hereto; |
(ii) | an assignment and assumption of contracts and additional property in the form of Exhibit H attached hereto, whereby Seller assigns to Buyer and Buyer assumes all of Seller’s assignable rights, title, interests, duties, obligations and liabilities under and with respect to the Service Contracts and Additional Property; |
(iii) | a closing statement describing all prorations and other applicable credits; and |
(iv) | a notice to the tenants under the Leases in the form of Exhibit I attached hereto. |
(d) | Seller shall deliver to the Escrow Company: |
(i) | a title or owner’s affidavit as may be reasonably required by the Title Company in connection with the issuance of the title policy to Buyer at Closing; |
(ii) | such other documentation as is reasonably required by the Title Company to remove or satisfy applicable requirements or other Objections which Seller is obligated to cure pursuant to Section 3 above; and |
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(iii) | any tax-related documentation as required in the jurisdiction in which the Property is located in connection with the transfer of real property and such other tax-related documentation (including, without limitation, a 1099-S Information sheet) as may be reasonably required by the Title Company in connection with its performance of its duties as the “Designated Representative” with respect to the transaction contemplated by this Agreement. |
(e) | Simultaneously with the Closing Seller shall deliver to the Buyer at the Property: (i) copies of all books, records, warranties, guaranties, certificates of occupancy, plans, specifications, lease files, credit reports and other documents related to the ownership, operation and leasing of the Property, in Seller’s possession, except to the extent that any such items are Excluded Documents; (ii) originals (or copies to the extent originals are unavailable) of the Leases; and (iii) all keys, combinations and other similar items required to properly deliver possession and control of the Property to Buyer. |
All items of income and expense applicable to the Property shall be paid, prorated or adjusted as of the close of business on the day prior to the Closing Date in the manner hereinafter set forth:
5.1 | Real Estate Taxes and Assessments. Real estate taxes and special assessments shall be prorated as follows: |
(a) | For purposes of this Section 5.1, the term “Taxes” shall mean (i) the real estate taxes and special assessments levied against the Property by any governmental or quasi-governmental authority, plus (ii) all reasonable out-of-pocket costs incurred by Seller, or with Seller’s consent, of contesting the assessed valuation or otherwise protesting such taxes or assessment, minus (iii) any refunds or reduction of such taxes or assessments, which, after payment of the reasonable out-of-pocket costs and expenses incurred in obtaining such refunds or reductions, shall be paid or credited to the party or parties obligated for such taxes or assessments in the same manner and proportions as otherwise provided herein. |
(b) | Seller, at its sole expense, shall be obligated for and shall pay all Taxes applicable to any year prior to 2015, and Buyer, at its sole expense, shall be obligated for and shall pay all Taxes applicable to 2015 and any year after the Closing occurs, subject to the prorations set forth herein. With respect to the Taxes applicable to 2015: (i) Seller shall be obligated for a prorated portion of such Taxes from the beginning of 2015 to but excluding the Closing Date determined by multiplying the total amount of such Taxes by a fraction, the numerator of which is the number of days from and including the first day of such tax year to and including the day prior to the Closing Date and the denominator of which is 365; and (ii) Buyer shall be obligated for the balance of such Taxes determined by multiplying the total amount of such Taxes by a fraction, the numerator of which is the number of days from and including the Closing Date to and including the last day of 2015 and the denominator of which is 365. |
(c) | Seller shall pay all of the Taxes due and payable prior to the Closing and Buyer shall pay all of the Taxes due and payable after the Closing. To the extent that, as of the Closing Date, the amount so paid by Seller or to be paid by Buyer exceeds the amount for which such party is obligated in accordance with Paragraph (b) above, such party shall be entitled to a credit at Closing for such excess from the other party. |
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(d) | To the extent that the actual amount of Taxes for 2015 to be prorated hereunder is not known at Closing, or tax contests or protests are outstanding or reasonably anticipated that may cause a reduction in Taxes, then, at Closing, Taxes for 2015 shall be prorated using one hundred percent (100%) of the Taxes on the tax xxxx for the Property for 2014. In such event, within ninety (90) days following receipt by Buyer (or Seller, if applicable) of the actual xxxx for Taxes for 2015, Seller and Buyer shall reprorate such Taxes, and if such reproration results in an adjustment to the proration calculated at Closing, the party owing the other party shall pay the amount owed within fifteen (15) days after the reproration is determined. The terms of this Section 5.1(d) shall survive the Closing. |
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SECTION 6 SELLER’S REPRESENTATIONS AND WARRANTIES
6.1 | List of Representations and Warranties. Seller hereby represents and warrants to Buyer as follows: |
(a) | Authority; Organization; Employees. Seller has the legal power, right and authority to enter into this Agreement and to consummate the transactions contemplated hereby. Seller is a duly organized and validly existing limited partnership, is in good standing in Delaware and is authorized to transact business in the State of Texas. There are no employees of the Property or Seller who will become employees of Buyer or for which Buyer shall become responsible as an employer in any way. There are no collective bargaining agreements, other union contracts of any nature, pension plans or other benefit plans of any nature in existence to which Seller is a party and which affect the Property or the operation thereof. |
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(i) | No Options/Rights of First Refusal. Seller has granted no options, rights of first refusal or any other right to acquire any interest in the Property to any party, other than granting occupancy rights to tenants pursuant to the Leases. |
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SECTION 7 AS-IS AND RELEASE
7.1 | AS-IS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE DOCUMENTS DELIVERED BY SELLER AT CLOSING, BUYER WARRANTS AND ACKNOWLEDGES TO AND AGREES WITH SELLER THAT BUYER IS PURCHASING THE PROPERTY IN ITS “AS-IS, WHERE IS” CONDITION “WITH ALL FAULTS” AS OF THE CLOSING DATE AND SPECIFICALLY AND EXPRESSLY WITHOUT ANY WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER EXPRESS OR IMPLIED, AS TO ITS CONDITION, FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, OR ANY OTHER WARRANTY OF ANY KIND, NATURE, OR TYPE WHATSOEVER FROM OR ON BEHALF OF SELLER. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE DOCUMENTS DELIVERED BY SELLER AT CLOSING, SELLER SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST OR PRESENT, EXPRESS OR IMPLIED, CONCERNING (A) THE VALUE, NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BUYER MAY CONDUCT THEREON, INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE PROPERTY, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY, (F) THE MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS, IF ANY, INCORPORATED INTO THE PROPERTY, (G) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, (H) THE PRESENCE OR ABSENCE OF HAZARDOUS MATERIALS AT, ON, UNDER, OR ADJACENT TO THE PROPERTY OR ANY OTHER ENVIRONMENTAL MATTER OR CONDITION OF THE PROPERTY, (I) THE LEASES OR OTHER AGREEMENTS AFFECTING THE PROPERTY, OR (J) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER CONTAINED IN THIS AGREEMENT AND IN THE DOCUMENTS DELIVERED BY SELLER AT CLOSING, ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM A VARIETY OF SOURCES AND THAT SELLER HAS NOT MADE ANY INDEPENDENT INVESTIGATION OR VERIFICATION OF SUCH INFORMATION AND MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION. SELLER SHALL NOT BE LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR THE OPERATION THEREOF, FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, SERVANT OR OTHER PERSON EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT BUYER IS A SOPHISTICATED AND EXPERIENCED BUYER OF PROPERTIES SUCH AS THE PROPERTY AND HAS BEEN DULY REPRESENTED BY COUNSEL IN CONNECTION WITH THE NEGOTIATION OF THIS AGREEMENT. SELLER HAS MADE NO AGREEMENT TO ALTER, REPAIR OR IMPROVE ANY OF THE PROPERTY. |
7.2 | Release of Seller. Buyer acknowledges that it will have the opportunity to inspect the Property during the Due Diligence Period, and during such period, observe its physical characteristics and existing conditions and the opportunity to conduct such investigation and study on and of the Property and adjacent areas as Buyer deems necessary, and, except as otherwise expressly provided in the provisions of this Agreement, Buyer hereby FOREVER RELEASES AND DISCHARGES Seller from all duties, obligations, responsibility and liability pertaining to the Property in any way, including its condition, valuation, salability, financability or utility of the Property, or its suitability for any purpose whatsoever (including, but not limited to, with respect to the presence in the soil, air, structures and surface and subsurface waters, of Hazardous Materials or other materials or substances that have been or may in the future be determined to be toxic, hazardous, undesirable or subject to regulation and that may need to be specially treated, handled and/or removed from the Property under current or future federal, state and local laws, regulations or guidelines, and any structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Property), including without limitation liabilities under any Environmental Laws. By Closing this transaction, Buyer will be deemed to have WAIVED any and all objections and complaints (including, but not limited to, federal, state and local statutory and common law based actions, and any private right of action under any federal, state or local laws, regulations or guidelines to which the Property is or may be subject, including, but not limited to, CERCLA) concerning the any physical characteristics and any existing conditions of the Property, whether arising before or after the date of this Agreement, including, without limitation, any obligations relating to the physical, environmental or legal compliance status of the Property, and the lessor’s obligations under the Leases. Buyer further hereby assumes the risk of changes in applicable laws and regulations relating to past, present and future environmental conditions on the Property and the risk that adverse physical characteristics and conditions, including, without limitation, the presence of Hazardous Materials or other contaminants, may not have been revealed by its investigation. Buyer, for Buyer and Buyer’s successors and assigns, hereby waives any right it may have to commence a judicial proceeding or arbitration naming Seller or any other Seller Parties as a defendant alleging Seller is a “Developer” of the Property. |
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7.3 | Definitions. For purposes, of this Agreement, the term “Environmental Laws” includes without limitation the Resource Conservation and Recovery Act and the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) and other federal laws governing Hazardous Materials as in effect on the date of this Agreement, together with their implementing regulations and guidelines as of the date of this Agreement, and all state and local laws, regulations and ordinances that regulate Hazardous Materials in effect as of the date of this Agreement. “Hazardous Materials” means any substance which is (i) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any applicable law, as currently in effect as of the date of this Agreement (ii) petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) radon, (vi) asbestos, (vii) flammable explosives, (viii) mold or other bacteria or infectious materials, or (ix) radioactive materials. |
7.4 | Survival. The provisions of this Section 7 shall expressly survive the Closing, not merge with the provisions of any closing documents and shall be deemed incorporated into the Deed. Buyer acknowledges and agrees that the releases, waivers and disclaimers and other agreements set forth herein are an integral part of this Agreement and that Seller would not have agreed to sell the Property to Buyer for the Purchase Price without the releases, waivers and disclaimers and other agreements set forth above. |
SECTION 8 BUYER’S REPRESENTATIONS AND WARRANTIES
Buyer hereby represents and warrants to Seller as follows:
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The representations and warranties of Buyer set forth in this Agreement shall be deemed remade as of Closing, and said representations and warranties as so remade shall survive the Closing without limitation on duration.
SECTION 9 Closing costs
Seller shall pay the following expenses incurred in connection with the transactions described herein: (i) costs to obtain a standard Texas owner’s title policy (excluding any endorsements, (ii) one-half of all closing fees charged by the Escrow Agent (including xxxxxxx money, escrow and New York style closing charges), (iii) Seller’s legal fees and expenses, (iv) costs to cure any of the Objections with respect to which Seller is obligated to cure pursuant to Section 3 above, and (v) all deed documentary stamp taxes, if any. Buyer shall pay the following expenses incurred in connection with the transaction described herein: (a) the costs to obtain extended coverage title insurance and any title endorsements), and the cost of any Updated Survey obtained by Buyer, (b) one-half of all closing fees charged by the Escrow Agent (including xxxxxxx money, escrow and New York style closing charges), (c) the fee for the recording of the Deed, (d) Buyer’s legal fees and expenses, and (e) all financing costs, whether for new loans or loan assumptions (provided that the foregoing is not intended to imply that financing is a condition of the closing), including, without limitation, all documentary stamp taxes and intangible taxes in connection with any loan documents.
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SECTION 10 Brokerage Commissions
Seller shall be solely responsible for the payment of the commission to Broker (subject to and in accordance with a separate listing agreement between Seller and Broker). Seller and Buyer each warrant and represent to the other that, other than Broker, neither has had any dealings with any broker, agent or finder relating to the sale of the Property or the other transactions contemplated hereby, and each agrees to indemnify, defend and hold the other harmless from and against any claim for brokerage commissions, compensation or fees by any broker, agent or finder in connection the sale of the Property or the other transactions contemplated hereby resulting from the acts of the indemnifying party. This provision shall survive a Closing or a termination of this Agreement.
All notices, demands and communications (a “Notice”) under this Agreement shall be delivered or sent by: (a) hand delivery, (b) first class, registered or certified mail, postage prepaid, return receipt requested (c) facsimile transmission; or (d) nationally recognized overnight carrier; or (e) by e-mailing a .pdf or .tif file (provided that such e-mail shall be immediately followed by delivery of such notice pursuant to clause (a), (b) or (d) above), delivered to the address, fax number or e-mail address of the intended recipient set forth below or to such other address or fax number as either party may designate by notice pursuant to this Section:
Notices to Seller:
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c/o Waterton Associates 00 Xxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000 Attn: Xxxx Xxxxx, Esq. Fax: (000) 000-0000 Email: xxxxxx@xxxxx.xxx |
With a copy to:
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Dentons US LLP 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000 Attn: Xxxxx X. Xxxxx Fax: (000) 000-0000 Email: xxxxx.xxxxx@xxxxxxx.xxx
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Notices to Buyer:
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Bluerock Real Estate, L.L.C. 000 Xxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 Attn: Xxxx Xxxxx & Xxxxx Xxxx Fax: (000) 000-0000
Email: xxxxxx@xxxxxxxxxx.xxx xxxxx@xxxxxxxxxx.xxx
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With a copy to:
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Xxxxxx, Xxxxxxx & Xxxxxx, LLP 1600 Atlanta Financial Center 0000 Xxxxxxxxx Xxxx XX Xxxxxxx, Xxxxxxx 00000 Attn: Xxxxx May, Esq. Fax: (000) 000-0000 Email: xxxx@xxxxxx.xxx |
Notices shall be deemed given: (i) on the date delivered, if sent by hand delivery; (ii) on the date of transmission if sent by facsimile or electronic mail (and in respect of a facsimile only, confirmation of completed transmission is received) prior to 5:00 P.M. Eastern Standard Time (and if sent later than such time, then the next business day); (iii) one business day after delivery to the overnight carrier, if sent by nationally recognized overnight carrier or (iv) upon receipt (or refusal of delivery), if sent by first class, registered or certified mail, postage prepaid, return receipt requested. Notices may be sent by counsel for a party and such shall be deemed notice by the party so represented. Notices shall be deemed served as set forth above, even if such notices are rejected by the intended recipient.
SECTION 12 CASUALTY AND CONDEMNATION
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SECTION 13 OPERATIONS PRIOR TO CLOSING OR TERMINATION
Seller covenants and agrees with Buyer that after the date hereof until the Closing or termination of this Agreement, Seller shall conduct its business involving the Property as follows:
(a) | Seller shall refrain from transferring title to any of the Property (other than use of regular business inventory or transfer of Personal Property no longer used in the operation of the Real Property, all in the ordinary course of business) or creating on the Property any mortgages which will survive Closing. |
(b) | Seller shall refrain from entering into or amending any contracts or other agreements (excluding leases, which Seller may continue to do in the ordinary course of business) pertaining to the Property, other than contracts or other agreements entered into in the ordinary course of business and which are cancelable by the owner of the Property without penalty within thirty (30) days after giving notice thereof. |
(c) | Seller shall refrain from offering the Property for sale or marketing the same. |
(d) | Seller shall terminate any terminable Service Contract promptly after receiving written notice from Buyer during the Due Diligence Period requesting such termination; provided, however, that Buyer acknowledges and agrees that: (i) all costs and expenses associated with any such termination shall be paid by Buyer; (ii) any such termination may be conditioned on the completion of the Closing; and (iii) any such termination shall be effective only after expiration of any notice or grace period specified in the provisions of the applicable Service Contract (which may not occur until after the Closing). Any and all Service Contracts not fully and effectively terminated as of Closing shall be assumed by Buyer at Closing as contemplated under Section 4.2(c)(ii) above. |
(e) | Seller agrees to keep all vacant apartment units at the Property in so-called “rent ready” condition as defined herein; provided, however, that Seller shall have no such obligation with respect to any units that become vacant on or after the date that is five (5) days prior to the Closing Date (the "Cut-off Date"). In the event that (i) any apartment unit at the Property becomes vacant prior to the Cut-off Date, (ii) such unit remains vacant at Closing, and (iii) Seller has not made such unit “rent ready” in accordance with Seller’s customary procedures, then at Closing Buyer shall be entitled to a credit of $500 with respect to such unit as Buyer's sole compensation. For purposes of this Section 13(e), “rent ready” shall mean that interior carpets have been cleaned, interior walls have been freshly painted, unit contains working appliances (and water heaters and HVAC to the extent such items serve only the individual vacant unit(s)), and the unit has no material damage to the doors, walls, ceilings, floors or windows. |
19 |
SECTION 14 DEFAULTS AND REMEDIES
SECTION 15
15.2 | Time. All parties hereto agree that time is of the essence in the performance of the provisions of this Agreement. |
20 |
15.4 | Governing Law. This Agreement shall be deemed to be a contract made under the laws of the State of Texas and for all purposes shall be governed by and interpreted in accordance with the laws of the State of Texas. |
15.7 | Section Headings. The Section headings contained in this Agreement are for convenience only and shall in no way enlarge or limit the scope or meaning of the various and several Sections hereof. |
15.8 | Severability. If any portion of this Agreement is held to be unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect. |
21 |
22 |
15.16 | Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. |
(a) | Escrow Agent is hereby designated as the “Reporting Person” (as defined in the Reporting Requirements) for the Transaction. Escrow Agent shall perform all duties that are required by the Reporting Requirements to be performed by the Reporting Person for the Transaction. |
(b) | Seller and Buyer shall furnish to Escrow Agent, in a timely manner, any information requested by Escrow Agent and necessary for Escrow Agent to perform its duties as Reporting Person for the Transaction. |
(c) | Escrow Agent hereby requests Seller to furnish to Escrow Agent Seller’s correct taxpayer identification number. Seller acknowledges that any failure by Seller to provide Escrow Agent with Seller’s correct taxpayer identification number may subject Seller to civil or criminal penalties imposed by law. Accordingly, Seller hereby certifies to Escrow Agent, under penalties of perjury, that Sellers’ correct taxpayer identification numbers are as follows: |
(i) | Seller: | 00-0000000 |
(ii) | Buyer: | 00-0000000 |
(d) | Each of the parties hereto shall retain this Agreement for a period of four (4) years following the calendar year during which Closing occurs. |
23 |
15.19 | Texas Notices. |
(a) | Chapter 49 Notice. If the Property is situated in a utility or other statutorily created district providing water, sewer, drainage, or flood control facilities and services, Chapter 49, Section 49.452, of the Texas Water Code requires Seller to deliver and Buyer to sign the statutory notice relating to the tax rate, bonded indebtedness, or standby fee of the district prior to final execution of this Agreement. To the extent such provisions be applicable, such required notices shall be conclusively deemed to have been given by Seller to Buyer. |
NOTICE REGARDING POSSIBLE LIABILITY FOR ADDITIONAL TAXES
If for the current ad valorem tax year the taxable value of the land that is the subject of this Agreement is determined by a special appraisal method that allows for the appraisal of the land at less than its market value, the person to whom the land is transferred may not be allowed to qualify the land for that special appraisal in a subsequent tax year and the land may then be appraised at its full market value. In addition, the transfer of the land or a subsequent change in the use of the land may result in the imposition of an additional tax plus interest as a penalty for the transfer or the change in use of the land. The taxable value of the land and the applicable method of appraisal for current tax year is public information and may be obtained from the tax appraisal district established for the county in which the Property is located.
NOTICE REGARDING POSSIBLE ANNEXATION
If the property that is the subject of this Agreement is located outside the limits of a municipality, the property may now or later be included in the extraterritorial jurisdiction of a municipality and may now or later be subject to annexation by the municipality. Each municipality maintains a map that depicts its boundaries and extraterritorial jurisdiction. To determine if the property is located within a municipality's extraterritorial jurisdiction or is likely to be located within a municipality's extraterritorial jurisdiction, contact all municipalities located in the general proximity of the property for further information.
24 |
(g) | Property Located in a Certificated Service Area of a Utility Service Provider. |
Notice required by § 13.257, Water Code: The real property, described in this Agreement, that you are about to purchase may be located in a certificated water or sewer service area, which is authorized by law to provide water or sewer service to the properties in the certificated area. If your property is located in a certificated area there may be special costs or charges that you will be required to pay before you can receive water or sewer service. There may be a period required to construct lines or other facilities necessary to provide water or sewer service to your property. You are advised to determine if the property is in a certificated area and contact the utility service provider to determine the cost that you will be required to pay and the period, if any, that is required to provide water or sewer service to your property. The undersigned Buyer hereby acknowledges receipt of the foregoing notice at or before the execution of a binding contract for the purchase of the Property or at closing of purchase of the Property.
SELLER ACKNOWLEDGES THAT BUYER MAY CONVERT THE LAND AND IMPROVEMENTS TO A CONDOMINIUM. IN SUCH CASE, BUYER AND/OR ITS PERMITTED ASSIGNEES WILL BE THE “DEVELOPER” OF THE CONDOMINIUM AND THE DECLARANT UNDER ANY CONDOMINIUM DOCUMENTS. BUYER HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD THE INDEMNIFIED SELLER PARTIES HARMLESS FROM ALL CLAIMS, DEMANDS, LOSSES, JUDGMENTS, LIABILITIES, COSTS, DAMAGES AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COSTS), OF WHATEVER KIND, NATURE OR DESCRIPTION, ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH ANY CONVERSION OF THE APARTMENT UNITS LOCATED ON THE PROPERTY TO CONDOMINIUM UNITS BY BUYER OR ANY PERMITTED ASSIGNEE(S), INCLUDING, WITHOUT LIMITATION; (A) CONSTRUCTION WARRANTY CLAIMS (WHETHER ARISING BY CONTRACT OR BY LAW), (B) CONSTRUCTION DISPUTES, (C) CLAIMS FOR INJURY TO PERSON OR PROPERTY ARISING OUT OF THE CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, CONSTRUCTION DEFECTS, (D) CLAIMS RISING UNDER THE CONSUMER PROTECTION ACT, THE CONDOMINIUM ACT IN EFFECT IN THE STATE(S) WHERE THE PROPERTY IS LOCATED, OR ANY ADDITIONAL, RELATED OR SUCCESSOR LEGISLATION GOVERNING THE CONVERSION OF APARTMENTS TO CONDOMINIUMS, AND (E) ANY CLAIMS MADE BY ANY SUCCESSOR OWNER OR OCCUPANT OF THE PROPERTY, INCLUDING ANY BUYER OF A CONDOMINIUM UNIT AT THE PROPERTY. UPON NOTICE FROM ANY OF THE INDEMNIFIED SELLER PARTIES OF A CLAIM FOR WHICH SUCH PARTY IS INDEMNIFIED HEREUNDER, BUYER WILL DEFEND SUCH PARTY, AT BUYER’S EXPENSE, USING COUNSEL APPROVED IN WRITING BY THE INDEMNIFIED SELLER PARTY REQUESTING SUCH DEFENSE. THE PROVISIONS OF THIS SECTION 15.20 SHALL SURVIVE THE CLOSING AND SHALL NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND SHALL BE DEEMED INCORPORATED INTO THE DEED.
25 |
[Remainder of Page Left Intentionally Blank. Signature Page Follows.]
26 |
SELLER: | ||
WRPV XI XX XXXXXX, L.P., | ||
a Delaware limited partnership | ||
By: | /s/ Xxxxx X. Xxxxxxxx | |
Name: | Xxxxx X. Xxxxxxxx | |
Title: | Authorized Signatory | |
BUYER: | ||
BLUEROCK REAL ESTATE, L.L.C., | ||
a Delaware limited liability company | ||
By: | /s/ Xxxxx X. Xxxx, III | |
Name: | Xxxxx X. Xxxx, III | |
Title: | Chief Investment Officer |
27 |
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
Schedule 6.1(e) | Violations of Laws |
Schedule 6.1(f) | Litigation |
EXHIBITS
A | Legal Description |
B | Rent Roll |
C | Personal Property |
D | Service Contracts and Equipment Leases |
E | Form of Deed |
F | Form of Xxxx of Sale |
G | Form of Assignment of Leases |
H | Form of Assignment of Contracts and Additional Property |
I | Form of Notice to Tenants |
J | Escrow Agreement |
SCHEDULE 6.1(e)
VIOLATION OF LAWS
SCHEDULE 6.1(f)
LITIGATION
EXHIBIT A LEGAL DESCRIPTION
Xxxx 0 xxx 0, Xxxxx "X", XXXXXXXXXX ELECTRIC COOPERATIVE-CIRCLE DRIVE, AUSTIN SUBDIVISION, a subdivision in Xxxxxx County, Texas, according to the map or plat thereof, recorded under Document No. 200600156 of the Official Public Records of Xxxxxx County, Texas.
EXHIBIT B
RENT ROLL
B-1 |
EXHIBIT C LIST OF PERSONAL PROPERTY
Fox Hill | Personal Property List |
Clubhouse Kitchen:
1 Black & Xxxxxx Coffee Maker
1 Coffee Warmer
1 Coffee cups & Xxxxxxx holder
1 Metal syrup holder
4 Small plants
4 Decorative baskets
2 Decorative pears
1 Microwave
1 Dishwasher
1 Refrigerator
1 Decorative fox cookie jar
Main Clubhouse Area:
2 Wooden Tables
8 Wooden Arm Chairs
2 Mats
1 Wood Table
1 White Lamp
2 Decorative Pineapples
3 Large Trees
4 Small Plants
4 Medium Plants
1 Black Leather Couch
2 Arm Chairs
1 Beige Suede Couch
2 Armless Chairs
1 Xxxxx Lather Ottoman
1 Wood Coffee Table
4 Decorative pillows
2 Large Decorative Pictures
1 Black Sharp Aquos Flat screen TV
5 Decorations (Bowls, bases)
2 Small Wood Tables
1 Xxxxx Metal Treasure Chest
1 Faux light xxxxx wood plant
2 Area Rugs
Main Office Hallway:
2 Waterton Door Mats
1 Personal size black Fridge
2 Picture frames (Accent wall program)
2 Leather Benches
Fox Hill | Personal Property List |
7 Faux Potted Plants
1 Framed Site Map
4 Floor plan Photos
1 Vizio Flat screen TV
1 Xxxxx Wooden TV Table
1 DVD Player
Clubhouse Patio:
3 Round Iron Bar Height Tables
10 Iron Stools
4 Potted Plants
1 Picnic Table
1 Picnic Bench
1 Trashcan
1 Entry Mat
Leasing Office:
2 Executive Desks
2 2-Drawer Wood File Cabinets
2 Rolling Computer desk Chairs
2 Wooden Guest Chairs
2 Comdial Office Phones
2 Framed Tree Pictures
2 Business Card Holders
1 Large Canvas Picture
1 Ceramic Scentsy Pot
1 Framed dry erase
2 Nobilis Computers
2 Logitech Keyboards & Mouse
2 V7 Flat screen Monitors
1 Mesh File Holder
2 Trash Cans
1 2-punch hole punch
1 Label Maker
1 Staples Calculator
1 Swingline Stapler
1 Scotch Tape Dispenser
Managers Office:
3 Large Framed wood photos
2 Large potted plants
1 2-drawer wood file cabinet
1 Large Executive Desk
Fox Hill | Personal Property List |
1 Rolling Computer Desk Chair
2 Metal Guest Chairs
1 Tall wood book 3 Shelve Bookcase
1 Samsung Flat screen Monitor
1 Comdial Phone
1 Casio Calculator
1 HP Keyboard & mouse
1 HP Pro Computer
1 Trash Can
1 Set Logitech Speakers
1 3-punch hole puncher
Assistant Managers Office:
2 Wood Guest Chairs
1 Large Executive Desk
1 Large Computer Desk
1 Rolling Computer Chair
2 2-drawer File Cabinets
2 Mesh File divider/organizers
1 Trash Can
1 Paper Shredder
1 2-hole hole puncher
1 Sharp Calculator
1 Comdial Phone
1 Logitech Keyboard & Mouse
1 V7 Flatscreen Monitor
1 HP Computer
1 Desktop Monitor Stand
1 Business Card Holder
1 Tape Dispenser
1 Large Potted Plant
1 Digital Check Scanner
Office Supply/Copy Room:
1 4-drawer Metal File Cabinet
1 Sentry Safe
1 Classic Cut paper cutter
1 Staples Stapler
1 Small Dry Erase Board w/ markers& eraser
1 Large Dry Erase Board w/ markers& eraser
1 Short 3-shelve Bookcase
1 Handy track Keypad & Key Box
Fox Hill | Personal Property List |
Pool:
12 Light Xxxxx Chairs
12 Light Xxxxx Lounge Chairs
16 Table Chairs
8 Beach Style Chairs (low sitting)
4 Patio/Pool Tables
4 Umbrellas
5 Small round side Tables
7 Potted Plants
2 Trash Cans
2 Smoke Ashcans
Fitness Center:
1 Purell Sanitizer holder
2 Vizio TV’s
1 Towel (wet) dispenser(antibacterial)
1 Xxxxx xxxx cabinet
2 BH Fitness Treadmills
1 BH Fitness Elliptical
1 BH Fitness Recumbent bicycle
1 BH Fitness Curlbar bicycle
1 Hoist Bench
1 Free weight Rack
1 Set of 8lb Weights
1 Set of 15lbs Weights
1 Set of 20lbs Weights
1 Set of 10lbs Weights
1 Set of 35lbs Weights
1 Set of 25lbs Weights
1 Set of 40lbs Weights
1 Set of 50lbs Weights
1 Set of 45lbs Weights
1 Set of 55lbs Weights
1 Large Blue Yoga Ball
5 Med ball w/ Rack
1 Vision Fitness ST710 Multi- Station machine
Laundry Room:
4 Coinmatch coin operated washers
4 Coinmatch coin operated dryers
1 Folding Table
1 Trash Can
Fox Hill | Personal Property List |
Model (Kitchen):
3 Wicker baskets
1 Decorative Cow
1 Wooden Plate
1 Decorative Apple
1 Ceramic Utensils holder
1 Decorative Rooster
3 Wooden cooking utensils
1 Ceramic Chili Spoon holder
1 Cookbook
1 Bookstand
4 Red Dinner plates
4 Wine Glasses
4 Black napkins
4 Placemats
1 Xxxxxx Xxxx Dining Table
4 Xxxxxx Xxxx Chairs
4 Plastic plates
Model (Living Room):
1 Metal Bow/Candle
2 Bar Stools (Beige Suede)
1 Green Sofa
1 Green Arm Chair
5 Decorative Pillows
1 Area Rug
1 Oval Glass Coffee Table
1 Wooden End Table
2 Metal Lamps
1 Center Piece w/ Faux Flowers
2 Candle Sticks
2 White Candles
1 Small CD Player/ Radio
1 Large Wall Entertainment Center
2 Bookshelves
1 Faux Book
1 “Happy” Decoration
1 Decorative Dice
1 Decorative Metal Xxxx
1 Metal Feather Decoration
2 Red Vases
2 Red Candles
1 Set Xxxxx Curtains w/ Rod
2 Faux Potted Plants
Fox Hill | Personal Property List |
Model (Guest Bedroom):
1 Oval End Table
1 Lamp
1 Set Curtains w Rod
1 Xxxxx Blanket
1 Decorative Pillow
1 Paisley Chair
1 Fabric Desk Chair
1 Wooden Desk
1 Faux Book Decoration
1 Faux Red Flower
1 Green Candle w/plate
2 Wicker Drawers
2 Faux Plants
Model (Guest Bathroom):
2 Wash Cloths
1 Hand Towel
2 Bath Towels
1 Ceramic Tooth Brush Holder
1 Shower Curtain & Rings
1 Red Bath Mat
Model (Master Bedroom):
1 Set of Curtains w/ Rod
1 Lamp
1 Night Stand
1 Head Board/ Footboard
1 Queen Box Spring
1 Queen Mattress
1 Frame
8 Decorative Pillows
2 Comforters
1 Dresser w/ Mirror
1 Center Piece
1 Faux Plant
Model (Master Bathroom):
1 Shower Curtain w/ Rod
1 Candle/Rock Tray
5 Candles
0 Xxxx Xxxxxx
Xxx Xxxx | Personal Property List |
6 Hand Towels
1 Wicker Basket
1 Small Plant
Maintenance Office:
2 Desk
2 Desk chairs
1 Dell computer
1 Charging scale
1 Filing cabinet
1 Studio one Dell Monitor
Maintenance Shop:
1 Speed key machine
1 Louisville 6ft ladder
2 Boxes of plank flooring
1 Just rite yellow fire cabinet
1 52'' fan
1 OccuFresh Eye Wash Station
1 Large trash can
1 First aid kit
1 Microwave
3 Mini space heaters
2 Large space heaters
1 Lock out tagout kit
2 6 Ft Ladders
Maintenance Tool Garage:
1 A\C recovery machine
1 Vacuum pump
1 35 lbs recovery tank
1 30 lbs tank (R22)
1 Handheld pipe auger
1 Oxygen & acetylene torch kit
1 MI-T-T-M power washer
1 25 ft garden hose
2 50 ft garden hoses
2 4 ft fiberglass ladders
2 12 ft fiberglass ladders
1 12 gal Louisville wet/dry vacuum
1 Ozone machine
1 General mini rooter
1 Back pack sprayer
Fox Hill | Personal Property List |
4 Miscellaneous shovels
1 Blue EZ Lesion Golf Cart (Good Shape)
1 Maroon EZ GO Golf Cart (Fair Shape)
1 White Gas Powered Yamaha (Fair Shape)
Business Center:
1 Round Granite Top Table
2 Wooden Guest Chairs
5 Rolling xxxxx Computer Chairs
1 Rule Sign
1 Large framed Canvas Picture
1 Brother printer/scanner
1 Apple Keyboard & Mouse
1 iMac Computer/monitor combo
4 HP Computer/monitor combo
4 HP Keyboard & Mice
1 Large framed photo
1 Large Faux tree
Maid Closet:
1 Xxxxxx Vacuum
3 Wet Floor Signs
3 Caution Orange Pylons
3 Mop & Mop Bucket
1 Dustpan
1 Broom
1 Swiffer
1 Aloha breeze Portable Fan
Package Closet:
1 4-Drawer Metal File Cabinet
1 Folding Table
1 Sherwood Surround Sound System
Telephone Closet:
3 Rolling Office Chairs
2 Tubs of Holiday Decorations
EXHIBIT D LIST OF SERVICE CONTRACTS AND EQUIPMENT LEASES
FOX HILL
SERVICE CONTRACT SCHEDULE
# | Vendor | Type of Service | ||
1 | Absolute Pest Management | Pest Control | ||
2 | Coinmach Corporation 1 | Laundry Equipment | ||
3 | Complete Landscapes, Inc. | Landscape Services | ||
4 | Everbank Commercial Finance, Inc. 1 | Copier Rental Agreement | ||
5 | Granite Security Systems | Security for Clubhouse | ||
6 | GSC Industries, Inc. | Fire Alarm Monitoring | ||
7 | HandyTrac 2 | Key System | ||
8 | Kings III Emergency Communications | Emergency Telephone Services | ||
9 | Muzak | Office Music | ||
10 | Nelfredo Inc. | Painting, Carpet Cleaning, Housekeeping & Resurfacing | ||
11 | Park Right Solutions | Towing Services | ||
12 | Service Depot Carpet | Cleaning Carpet Cleaning Services | ||
13 | Time Warner 3 | Office Internet | ||
14 | Time Warner Entertainment - Advance/Xxxxxxxx Partnership | Cable / Data / Phone Services | ||
15 | Valet Waste, LLC | Valet Trash Pick-Up | ||
16 | Waste Management of Texas Inc. | Dumpster & Recycling Service | ||
17 | Waste Reduction Consultants, Inc. | Waste Reduction Consulting | ||
18 | Xylem | Lift Station Maintenance |
1. | This agreement requires a new purchaser to assume the contract. |
2. | This agreement is not assumable by the Purchaser. Therefore, Purchaser will need to establish a new agreement for service with this vendor. |
3. | An invoice for office internet provided by Time Warner has been provided in lieu of an agreement. |
EXHIBIT E
FORM OF DEED
SPECIAL WARRANTY DEED
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OR ALL OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.
THE STATE OF TEXAS | § | |
§ | KNOW ALL BY THESE PRESENTS: | |
COUNTY OF XXXXXX | § |
That WRPV XI XX XXXXXX L.P., a Texas limited partnership (“Grantor”), for the sum of TEN DOLLARS ($10.00) and other good and valuable consideration paid to Grantor by _____________________ (“Grantee”), whose address is ______________________________, the receipt and sufficiency of which considerations are hereby acknowledged and confessed by Grantor, has GRANTED, BARGAINED, SOLD and CONVEYED, and by these presents does GRANT, BARGAIN, SELL and CONVEY unto Grantee the real property situated in Xxxxxx County, Texas and more particularly described on the attached Exhibit A (the “Property”), together with the Seller’s right, title and interest, if any, in and to all buildings and other improvements situated upon said Property; adjacent and/or contiguous xxxxxxx, xxxxx, xxxxxxx, alleys, and rights of way; all right, title and interest of Seller in rivers, streams, and strips and gores of land adjoining, adjacent and contiguous thereto; all easements, rights of ingress and egress, rights of way, and rights under any covenants, conditions and/or restrictions appurtenant to or affecting the Property; all riparian rights, surface and underground water rights, and any and all other water rights pertaining to the Property; all right title, and interest of Seller in and to all oil, gas, coal, and other minerals, whether hydrocarbon or not, in, on or under or that may be produced from the Property; and all rights, titles and interests appurtenant to the Property and the foregoing items;
TO HAVE AND TO HOLD the Property, together with all and singular the rights and appurtenances thereto belonging, unto Grantee and Grantee’s successors and assigns, forever; and Grantor binds itself, its successors and assigns, TO WARRANT AND FOREVER DEFEND the Property, together with all and singular the rights and appurtenances thereto belonging, unto Grantee and 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.
This Special Warranty Deed may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Any facsimile copies hereof or signature hereon shall, for all purposes, be deemed originals.
[The remainder of this page is intentionally left blank.]
Executed on the date of the acknowledgment herein below taken, to be effective as of the ___ day of ____________, 20__.
GRANTOR: | ||
WRPV XI XX XXXXXX L.P., a Texas limited partnership | ||
By: | ||
Name: | ||
Title: | Authorized Signatory |
THE STATE OF ________________ | § |
§ | |
COUNTY OF ________________ | § |
This instrument was acknowledged before me on the ________ day of __________, 20__, by ___________, Authorized Signatory of WRPV XI XX XXXXXX L.P., a Texas limited partnership, on behalf of and as the act and deed of said company.
[SEAL]
Notary Public in and for | |
Said State |
EXHIBIT A
TO
SPECIAL WARRANTY DEED
LEGAL DESCRIPTION
Xxxx 0 xxx 0, Xxxxx "X", XXXXXXXXXX ELECTRIC COOPERATIVE-CIRCLE DRIVE, AUSTIN SUBDIVISION, a subdivision in Xxxxxx County, Texas, according to the map or plat thereof, recorded under Document No. 200600156 of the Official Public Records of Xxxxxx County, Texas.
E-1 |
EXHIBIT F
FORM OF XXXX OF SALE
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS, that WRPV XI XX XXXXXX, L.P., a Delaware limited partnership ("Seller"), in consideration of Ten and 00/00 Dollars ($10.00), the receipt and sufficiency of which are hereby acknowledged, does hereby sell, assign, transfer, quit claim and set over unto _________________________________, a _______________________________ ("Buyer"), all personal property described on Exhibit A attached hereto (the "Personal Property") located at the property legally described on Exhibit B attached hereto.
TO HAVE AND TO HOLD the Personal Property unto Buyer and Buyer's legal representatives, successors and assigns forever.
THE PERSONAL PROPERTY SOLD HEREUNDER IS SOLD IN ITS "AS IS", "WHERE IS" CONDITION WITHOUT ANY REPRESENTATION OR WARRANTY BY SELLER. The covenants, agreements, indemnities and limitations provided in that certain Agreement of Purchase and Sale, dated as of ___________, 201__ (the "Agreement"), by and between Seller and Buyer, with respect to the property conveyed hereunder are hereby incorporated herein by this reference as if herein set out in full and shall inure to the benefit of and shall be binding upon Seller and Buyer and their respective successors and assigns.
This Xxxx of Sale shall be governed by Sections 7.1, 7.2, 14.3, 15.4 and 15.9 of the Agreement.
(remainder of page intentionally left blank)
F-1 |
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the ___ day of ________, 2015.
SELLER: | ||
WRPV XI XX XXXXXX, L.P., | ||
a Delaware limited partnership | ||
By: | ||
Name: | ||
Its: |
F-2 |
EXHIBIT G
FORM OF ASSIGNMENT OF LEASES
ASSIGNMENT AND ASSUMPTION OF LEASES
FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, WRPV XI XX XXXXXX, L.P., a Delaware limited partnership ("Assignor"), hereby sells, transfers, assigns, delegates and sets over unto ___________________________, a _______________________________ ("Assignee"), its legal representatives, successors and assigns, all of Assignor's rights, title, interests, duties, obligations and liabilities accruing on or after the date hereof in, to and under those certain leases and other leasing agreements referred to on Exhibit A attached hereto (the "Leases") affecting the property legally described on Exhibit B attached hereto.
Assignee does hereby accept the foregoing assignment of the Leases, and does hereby assume and agree to perform, fulfill and observe all of the duties, obligations and liabilities to be performed, fulfilled or observed by the landlord under the Leases arising on and after the date hereof, as if Assignee was the original landlord under the Leases. Assignor shall defend, indemnify and hold harmless Assignee from and against any all Claims (as defined below) asserted against or incurred by Assignee as a result of any acts or omissions of Assignor prior to the date of this Assignment and Assignee shall defend, indemnify and hold harmless Assignor from and against any all Claims asserted against or incurred by Assignor as a result of any acts or omissions of Assignee on or after the date of this Assignment. "Claims" means claims, demands, causes of action, losses, damages, liabilities, judgments, costs and expenses (including attorneys' fees, whether suit is instituted or not). Notwithstanding the foregoing, Assignor shall have no liability whatsoever to Assignee for any Claims: (a) unless the valid Claims collectively aggregate more than Fifty Thousand Dollars ($50,000), in which event the full amount of such valid Claims along with (i) any amount due by Assignor pursuant to the Assignment and Assumption of Contracts and Additional Property of even date herewith made by Assignor and Assignee, and (ii) Section 6.5 of the Agreement shall be actionable up to, but not in excess of Four Hundred Fifty Thousand Dollars ($450,000) (the “Cap”) in the aggregate for all liability; and (b) unless written notice containing a description of the specific nature of any such Claims shall have been given by Assignee to Assignor prior to the end of the Survival Period and an action shall have been commenced by Assignor against Assignee within nine (9) months after the date of this Assignment. In no event shall Assignor be liable for any incidental, consequential or punitive damages, or for any damages in excess of the Cap.
The covenants, agreements, indemnities and limitations provided in that certain Agreement of Purchase and Sale, dated as of January __, 2015, by and between Assignor and Assignee (the “Agreement”), with respect to the property conveyed hereunder are hereby incorporated herein by this reference as if herein set out in full and shall inure to the benefit of and shall be binding upon Assignor and Assignee, and their respective successors and assigns.
This Assignment and Assumption of Leases shall be governed by Sections 7.1, 7.2, 14.3, 15.4 and 15.9 of the Agreement.
This Assignment and Assumption of Leases may be executed in counterparts, and as so executed shall constitute one and the same agreement.
(remainder of page intentionally left blank)
G-1 |
ASSIGNOR: | ||
WRPV XI XX XXXXXX, L.P., a Delaware limited partnership | ||
By: | ||
Name: | ||
Its: |
G-2 |
ASSIGNEE: | ||
_________________________________________, a _______________________________________ | ||
By: | ||
Name: | ||
Its: |
G-3 |
EXHIBIT H
FORM OF ASSIGNMENT OF CONTRACTS AND ADDITIONAL PROPERTY
ASSIGNMENT AND ASSUMPTION OF CONTRACTS
AND ADDITIONAL PROPERTY
FOR AND IN CONSIDERATION of the sum of Ten Dollars ($10.00) and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, WRPV XI XX XXXXXX, L.P., a Delaware limited partnership (“Assignor”), hereby sells, transfers, assigns, delegates and sets over unto _____________________________, a _____________________________ (“Assignee”), its legal representatives, successors and assigns, all of Assignor’s rights, title, interests, duties, obligations and liabilities accruing on or after the date hereof under or with respect to the “Service Contracts” and “Additional Property,” as such terms are defined and described in that certain Agreement of Purchase and Sale, dated as of ___________, 2015, by and between Assignor and Assignee (the “Agreement”), which relate to the operation of the property described on Exhibit A attached hereto (the “Property”).
Assignee does hereby accept the foregoing assignment of the Service Contracts and the Additional Property, and does hereby assume and agree to perform, fulfill and observe all of the duties, obligations and liabilities to be performed, fulfilled or observed by the owner of the Property under or with respect to the Service Contracts or the Additional Property arising on and after the date hereof, as if Assignee was the original named party under the Service Contracts and with respect to the Additional Property. Assignor shall defend, indemnify and hold harmless Assignee from and against any all Claims (as defined below) asserted against or incurred by Assignee as a result of any acts or omissions of Assignor prior to the date of this Assignment and Assignee shall defend, indemnify and hold harmless Assignor from and against any all Claims asserted against or incurred by Assignor as a result of any acts or omissions of Assignee on or after the date of this Assignment. "Claims" means claims, demands, causes of action, losses, damages, liabilities, judgments, costs and expenses (including attorneys' fees, whether suit is instituted or not). Notwithstanding the foregoing, Assignor shall have no liability whatsoever to Assignee for any Claims: (a) unless the valid Claims collectively aggregate more than Fifty Thousand Dollars ($50,000), in which event the full amount of such valid Claims along with (i) any amount due by Assignor pursuant to the Assignment and Assumption of Leases of even date herewith made by Assignor and Assignee, and (ii) Section 6.5 of the Agreement shall be actionable up to, but not in excess of Four Hundred Fifty Thousand Dollars ($450,000) (the “Cap”) in the aggregate for all liability; and (b) unless written notice containing a description of the specific nature of any such Claims shall have been given by Assignee to Assignor prior to the end of the Survival Period and an action shall have been commenced by Assignor against Assignee within nine (9) months after the date of this Assignment. In no event shall Assignor be liable for any incidental, consequential or punitive damages, or for any damages in excess of the Cap.
The covenants, agreements, representations, warranties, indemnities and limitations provided in the Agreement, with respect to the interests conveyed hereunder are hereby incorporated herein by this reference as if herein set out in full. This Assignment and Assumption of Contracts and Additional Property shall be binding on and shall inure to the benefit of Assignor and Assignee, and their respective legal representatives, heirs, successors and assigns, and shall also be governed by Sections 7.1, 7.2, 14.3, 15.4 and 15.9 of the Agreement.
This Assignment and Assumption of Contracts and Additional Property may be executed in counterparts, and as so executed shall constitute one and the same agreement.
I-1 |
ASSIGNOR: | ||
WRPV XI XX XXXXXX, L.P., | ||
a Delaware limited partnership | ||
By: | ||
Name: | ||
Its: |
I-2 |
ASSIGNEE: | ||
_________________________________________, a _______________________________________ | ||
By: | ||
Name: | ||
Its: |
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EXHIBIT I
FORM OF NOTICE TO TENANTS
_____________, 2015
Re: | ||
Ladies and Gentlemen:
You are hereby advised that the above referenced property in which you are a tenant was sold and your lease was assigned and transferred effective as the date of this letter to [BUYER]. Responsibility for your security deposit, if any, has been transferred to the new owner, whose address is set forth below. The above referenced property will be managed by [MANAGEMENT COMPANY] and all checks for rent and other charges should be made payable to [BUYER] and forwarded to:
[MANAGEMENT COMPANY]
[Property Address]
In accordance with the terms of your lease, copies of all future notices to landlord should be sent to:
[BUYER]
If you have any questions or need any additional information, please feel free to contact the management office at [Telephone Number].
Sincerely,
SELLER: | ||
WRPV XI XX XXXXXX, L.P. | ||
a Delaware limited partnership | ||
By: | ||
Its: | ||
BUYER: | ||
By: | ||
Its: |
EXHIBIT J
ESCROW AGREEMENT
Escrow No.:____________
Date: January ___, 2015
XXXXXXX MONEY ESCROW AGREEMENT
The sum of $250,000 of xxxxxxx money will be deposited with Heritage Title Company of Austin, as escrowee ("Escrowee"), on or about the time of the execution of this Escrow Agreement, and an additional $150,000 of xxxxxxx money may be deposited with Escrowee, subject to and in accordance with the terms and conditions of Section 2.2 of the Agreement of Purchase and Sale described below. All of the funds deposited with Escrowee hereunder shall be disbursed by Escrowee only in accordance with this Xxxxxxx Money Escrow Agreement (this “Escrow Agreement”).
Escrowee is hereby expressly authorized to comply with and obey any and all orders or decrees entered or issued by any court, with or without jurisdiction, and in case Escrowee obeys or complies with any such order or decree of any court it shall not be liable to any of the parties hereto or any other person, firm or corporation by reason of such compliance, notwithstanding any such order or decree being entered without jurisdiction or being subsequently reversed, modified, annulled, set aside or vacated. In case of any suit or proceeding regarding this Escrow Agreement to which Escrowee is or may at any time become a party (except a suit or proceeding arising from Escrowee’s breach of its obligations hereunder), Escrowee shall have a lien on the contents hereof for any and all out-of-pocket costs, including reasonable attorneys' fees, whether such attorneys shall be regularly retained or specially employed, and any other reasonable expenses which it may have incurred or become liable for on account thereof, and it shall be entitled to reimburse itself therefor out of said deposit, and the undersigned jointly and severally agree to pay Escrowee, upon demand, all such costs, fees and expenses so incurred. In no case shall the above mentioned deposits be surrendered except on an order signed by the parties hereto, their respective legal representatives or assigns, or in obedience of the process or order of court as aforesaid, or in compliance with the Agreement of Purchase and Sale described below.
Deposits made pursuant to these instructions shall be invested on behalf of Buyer; provided that any direction to Escrowee for such investment shall be expressed in writing, and also provided that Escrowee is in receipt of the taxpayer's identification number and investment forms as required. Escrowee will, upon request, furnish information concerning its procedures and fee schedules for investment.
In the event the Escrowee is requested to invest deposits hereunder, Escrowee is not to be held responsible for any loss of principal or interest which may be incurred as a result of making the investment for the purposes of these escrow instructions unless such loss results from the gross negligence or intentional misconduct of Escrowee.
Except as to deposits of funds for which Escrowee has received express written direction concerning investment or other handling, the parties hereto agree that the Escrowee shall be under no duty to invest or reinvest any deposits at any time held by it hereunder. Escrowee may commingle any uninvested deposits with other deposits or with its own funds in the manner permitted under applicable law; provided, however, nothing herein shall diminish Escrowee's obligation to apply the full amount of the deposits, plus all interest and earnings thereon, in accordance with the terms of this Escrow Agreement.
The undersigned Buyer and Seller acknowledge that the amount deposited hereunder is the Xxxxxxx Money described in and governed by that certain Agreement of Purchase and Sale dated January ___ 2015, between the undersigned Seller and Buyer (the "Agreement"). Seller and Buyer agree to execute all joint directions and take all other actions required hereunder to cause the Xxxxxxx Money to be disbursed and applied in the manner required under said Agreement. If Escrowee shall receive an instruction (hereinafter the “Instruction”) with respect to the Xxxxxxx Money that is contrary to the Agreement, or any part thereof, from Seller but not from Buyer, or from Buyer but not from Seller (the party giving the Instruction being hereinafter referred to as the “Instructing Party” and the party which shall not have given the Instruction being hereinafter referred to as the “Non-Instructing Party”), Escrowee shall transmit a copy of the Instruction received from the Instructing Party to the Non-Instructing Party. Escrowee shall refrain from acting in accordance with the Instruction for three (3) business days after receipt of such Instruction, and thereafter shall act in accordance with the Instruction unless the Non-Instructing Party shall have notified Escrowee in writing within such three (3) business day period objecting to the disbursement of the Xxxxxxx Money in accordance with the Instruction. Each party shall only object if it has a good faith basis to do so. If the Non-Instructing Party shall advise Escrowee not to comply with the Instruction within such three (3) business day period, Escrowee shall not act in accordance with the Instruction, but may thereafter either
(a) act solely in accordance with any of the following:
(i) a new Instruction signed jointly by Seller and Buyer;
(ii) separate Instructions of like tenor from each of Seller and Buyer;
(iii) a certified copy of an arbitrator’s award issued under the rules of the American Arbitration Association as to which Escrowee shall have received an opinion of a law firm satisfactory to Escrowee in its sole and absolute discretion that such award is final beyond appeal; or
(iv) a certified copy of a judgment of a court of competent jurisdiction as to which Escrowee shall have received an opinion of a law firm satisfactory to Escrowee in its sole and absolute discretion that such award is final beyond appeal; or
(b) deposit the Xxxxxxx Money with a court selected by Escrowee and in such event all liability and responsibility of Escrowee shall terminate upon such deposit having been made.
Escrowee is acting only for the accommodation of the parties and in performing its duties, shall not be liable for: a) any loss, costs or damage which it may incur as result of serving as Escrowee hereunder, except for any loss, costs or damage arising out of its intentional misconduct or gross negligence, b) any action taken or omitted to be taken in reliance upon any document, escrow instructions, including any written instructions provided for in this Escrow Agreement, which Escrowee shall in good faith believe to be genuine, and c) any loss or impairment of the deposits deposited with a federally insured financial institution, resulting from the failure, insolvency, or suspension of the depository. Buyer and Seller hereby agree to indemnify and hold Escrowee harmless against any and all losses, claims, damages, liabilities and expenses, including reasonable attorneys’ fees, which may be incurred by Escrowee in connection with it serving as Escrowee hereunder.
Any notice, report, demand or instruction required or permitted under this Escrow Agreement shall be deemed to have been sufficiently transmitted, delivered, given or served for all purposes if delivered by nationally recognized overnight courier service which provides a receipt to the parties at their addresses hereinabove set forth below or at such other address as a party may hereafter designate by written notice as herein provided. The effective date of delivery or transmittal of a notice, report, demand or instruction shall be the actual date that delivery is effected.
Notices to Seller:
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c/o Waterton Associates 00 Xxxxx Xxxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000 Attn: Xxxx Xxxxx, Esq. Fax: (000) 000-0000 Email: xxxxxx@xxxxx.xxx
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With a copy to:
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Dentons US LLP 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx, Xxxxxxxx 00000 Attn: Xxxxx X. Xxxxx Fax: (000) 000-0000 Email: xxxxx.xxxxx@xxxxxxx.xxx
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Notices to Buyer:
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Bluerock Real Estate, L.L.C. 000 Xxxxx Xxxxxx, 0xx Xxxxx Xxx Xxxx, XX 00000 Attn: Xxxx Xxxxx & Xxxxx Xxxx Fax: (000) 000-0000
Email: xxxxxx@xxxxxxxxxx.xxx xxxxx@xxxxxxxxxx.xxx
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With a copy to:
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Xxxxxx, Xxxxxxx & Xxxxxx, LLP 1600 Atlanta Financial Center 0000 Xxxxxxxxx Xxxx XX Xxxxxxx, Xxxxxxx 00000 Attn: Xxxxx May, Esq. Fax: (000) 000-0000 Email: xxxx@xxxxxx.xxx |
Notices to Escrow Agent:
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Heritage Title Company of Austin 000 Xxxxxxxx Xxxxxx Xxxxx 0000 Xxxxxx, Xxxxx 00000 Attn: Xxxx Xxxxx Fax: (000) 000-0000 Email: xxxxxx@xxxxxxxx-xxxxx.xxx
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SELLER: | ||
WRPV XI XX XXXXXX, L.P., | ||
a Delaware limited partnership | ||
By: | ||
Name: | ||
Its: | Authorized Signatory | |
BUYER: | ||
BLUEROCK REAL ESTATE, L.L.C., | ||
a Delaware limited liability company | ||
By: | ||
Name: | ||
Its: | ||
ESCROWEE: | ||
HERITAGE TITLE COMPANY OF AUSTIN | ||
By: | ||
Name: | ||
Its: |