Agreement to Invest
St. Xxxxxxx Townhomes Partners, L.P.
Homes for America Holdings, Inc.
THIS AGREEMENT TO INVEST made this 30th day of November, 2001, by and
between St. Xxxxxxx Townhomes Partners, L.P., a Texas limited partnership
(hereinafter called "SCT" or the "Partnership"), Windridge Woodcrest Management,
Inc., a Texas corporation and the current general partner of SCT ("Windridge"),
and Homes for America Holdings, Inc., a Nevada corporation (hereinafter called
"HAH");
W I T N E S S E T H T H A T:
1. Investment. For the consideration hereinafter set forth, but subject to the
terms, provisions, covenants and conditions herein contained, HAH hereby
agrees to invest Four Hundred Thousand Dollars ($400,000) in SCT (the Cash
Investment and the Deferred Investment, as defined below), for general and
limited partnership interests in SCT and related partnership rights as
described herein (the "Interests"), and to pay up to an additional One
Hundred Thousand Dollars ($100,000) at Closing for certain expenses, as
follows:
(a) Contemporaneously with the execution of this Agreement, HAH shall deposit
the amount of Twenty-Five Thousand Dollars ($25,000) (the "Xxxxxxx Money")
with Safeco Land Title Company, Suite 209, 00000 Xxxxxxx Xxxx, Xxxxxx,
Xxxxx 00000, the title company that prepared SCT's last owner's title
insurance policy for the Property or any title company in the metropolitan
area of the Property and otherwise mutually acceptable to HAH and SCT (the
"Title Company"). The Title Company shall hold the Xxxxxxx Money and all
additional deposits required or allowed hereunder in escrow subject to the
terms of this Agreement. Interest earned on such escrow deposits shall be
credited to the depositor but shall be disbursed with the principal as
provided herein.
(b) HAH shall also deposit One Hundred Seventy Five Thousand Dollars
($175,000)(the "Additional Deposit"), representing (with the $25,000
Xxxxxxx Money described in Section 1(a) above) the balance of monies
required for the Cash Investment with the Title Company within five (5)
business days after the delivery of the Title Commitment and the Current
Survey (as described in Section 2 below) and the delivery of the Amendment
(as described in Section 5(c) below). The Title Company shall hold that sum
in escrow with the Xxxxxxx Money until satisfaction or release of the
conditions to Closing set forth herein, when it shall be applied as
described in Section 1(c) below. In the event this Agreement is terminated
for any reason other than default by HAH the Title Company shall promptly
return this escrowed sum (together with any interest earned thereon) to the
order of HAH.
(c) At Closing (hereinafter defined), HAH shall invest Two Hundred Thousand
Dollars ($200,000) (the "Cash Investment") in SCT, which Cash Investment
shall be distributed by SCT to Community Housing Tax Credit Fund 1997-II,
L.P., a Texas limited partnership, and Community Housing Income Equity Fund
1998-I, L.P., a Texas limited partnership (collectively, the "Limited
Partners"). At Closing the Title Company shall apply the Xxxxxxx Money and
the Additional Deposit to the satisfaction of this obligation of HAH.
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(d) From and after the admission of HAH as general partner of the Partnership
it shall determine the amount and nature of the outstanding payables of the
Partnership due and unpaid as of the Effective Date (hereinafter defined),
including all unpaid operating expenses and payables (the "Included
Payables") of the Partnership (other than real estate taxes, payroll taxes,
management fees, property insurance and utility bills, which SCT shall have
paid to date as of the Transfer Date (described in Section 11 below).
During the period after the Transfer Date through and including the Closing
HAH shall in managing the affairs of the Partnership pay, compromise, or
otherwise satisfy the payables (including without limitation the Included
Payables), and be liable hereunder to pay up to the aggregate sum of One
Hundred Thousand Dollars ($100,000) for unpaid Included Payables. The
parties shall prepare from the books and records of SCT on or before the
Transfer Date an itemized list of the Included Payables (as then known). On
or before the Closing HAH shall deliver to SCT an itemized list of any
additional Included Payables also accrued and unpaid as of the Effective
Date but discovered or identified by HAH after the Transfer Date. In the
event there shall be Included Payables outstanding on the Closing Date (or
discovered within a reasonable period not to exceed the lesser of six (6)
months from the Effective Date or ninety (90) days from Closing) after HAH
has paid (from its own funds) One Hundred Thousand Dollars ($100,000)
toward Included Payables, the Limited Partners and Windridge together shall
be liable to pay into the Partnership (or to the payees of the Included
Payables) a sum sufficient to satisfy and release those excess Included
Payables; provided the existing partners of the Partnership shall have no
liability for such payment without the above accounting from HAH and
reasonable evidence of its payment of the first One Hundred Thousand
Dollars ($100,000).
(e) HAH shall within the earlier of twelve (12) months of Closing or
refinancing of the Property (hereinafter defined) invest in SCT an
additional Two Hundred Thousand Dollars ($200,000) to be distributed to the
Limited Partners, or distribute Two Hundred Thousand Dollars ($200,000) of
refinancing proceeds to the Limited Partners (the "Deferred Investment").
2. Title and Survey Deliveries. Upon SCT furnishing to HAH (a) a title
commitment in an amount equal to Four Million Nine Hundred Thousand Dollars
($4,900,000), representing the existing first mortgage balance plus the
Cash Investment, the Deferred Investment, and the Escrowed Funds, in form
reasonably satisfactory to HAH (the "Title Commitment"), and (b) the
current as-built survey for the Property (the "Current Survey"), HAH shall
make the Additional Deposit described in subparagraph 1(b) above. The Title
Commitment shall not have any survey exception. Within thirty (30) days of
the Effective Date SCT shall deliver to HAH an update of the Current Survey
with certifications as required by HAH's refinancing lender. If the
investment hereunder is consummated in accordance with the terms hereof,
the Title Company shall promptly return the Xxxxxxx Money to HAH to be
applied to the Cash Investment to be paid by HAH at the Closing. In the
event of default hereunder by HAH, the Xxxxxxx Money shall be applied as
provided herein. In the event this Agreement is terminated by HAH in
accordance with the terms hereof, the Title Company shall promptly return
the Xxxxxxx Money to HAH.
3. SCT's Representations. SCT represents that SCT has indefeasible title to
the tract of land situated in Dallas County, Texas, described in Exhibit A
attached hereto and made a part hereof for all purposes, together with all
buildings and other improvements situated thereon, all fixtures and other
property affixed thereto and all and singular the rights and appurtenances
pertaining to the property, including any right, title and interest of SCT
in and to adjacent streets, alleys or rights-of-way (collectively, the
"Property"), subject only to general real estate taxes on the Property for
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the current year and to zoning laws, regulations and ordinances of
municipal and other governmental authorities, if any, affecting the
Property, the payables described in Paragraph 1 above, any and all valid
restrictions, easements and other encumbrances, if any, affecting the
Property as the same appear of record, but only to the extent that they are
still in effect, and to the encumbrances described in Exhibit B attached
hereto, including financing (collectively, the "Permitted Encumbrances");
further, SCT's title is insurable by a TLTA title insurance company of
HAH's choice at normal rates, and between the Effective Date and Closing
SCT shall not permit or cause any change in the condition of its title,
without the advance written consent of HAH, which it may withhold in its
sole discretion. SCT further represents to HAH that SCT is duly organized
and legally existing as a limited partnership under the Texas Revised
Limited Partnership Act, the execution and delivery of, and performance
under, this Agreement are within SCT's powers and have been duly authorized
by all requisite partnership action, this Agreement constitutes the legal,
valid, and binding obligation of SCT enforceable in accordance with its
terms, subject to laws applicable generally to creditor's rights and
applicable principles of equity and performance of this Agreement will not
result in any breach of, or constitute any default under, any agreement or
other instrument to which SCT is a party or by which SCT might be bound,
there is not pending or, to SCT's knowledge, threatened, any litigation,
proceeding, or investigation relating to the Property or SCT's title
thereto or to Windridge's right to act as sole general partner of SCT, nor
does SCT have reasonable grounds to know of any basis for such litigation,
proceedings, or investigations, there exists no violation of any law,
regulation, orders, or requirements issued by any governmental agency or
authority, or action in any court on account thereof, against or affecting
the Property, and except as disclosed in writing attached hereto as an
exhibit and incorporated herein, no third party consent is required to
effect the admission of HAH as general partner of SCT or the transfers
contemplated by this Agreement. SCT further represents that the loan
documents and partnership documents itemized on Exhibit C attached hereto
and hereby incorporated constitute all of the instruments (i) governing
SCT, its ownership, operations, and management (including the removal of G2
Partners II, L.P., the former general partner of SCT ("G2"), and (ii) the
obligations to and security granted to Finova.
4. Inspection; Casualty; Condemnation.HAH acknowledges that it has fully
inspected the Property (including all buildings and other improvements
forming a part thereof) and is thoroughly familiar with its condition.
Except for any new condition occurring after the Effective Date other than
wear and tear or fire or other casualty, HAH accepts the Property in its
present condition. SCT shall bear all risk of loss to the Property from
fire or other casualty and all liabilities arising from the Property before
the Closing. SCT shall maintain all existing fire and casualty and
liability insurance on the Property. SCT shall notify HAH promptly of any
damage to the Property, and give HAH a right to inspect such damage. If the
damage is in excess of fifty thousand dollars ($50,000), HAH shall have the
right, at HAH's option, either to (i) terminate this Agreement, in which
event the Title Company shall return the Xxxxxxx Money to HAH, and HAH and
SCT shall thereafter have no further obligations hereunder, or (ii) proceed
with the Closing. In the event the Property or any substantial portion
thereof shall become the subject of any condemnation, eminent domain, or
other similar proceeding or be taken or condemned by any governmental
authority after the Effective Date and before the Closing, SCT shall
provide HAH of immediate notice thereof and HAH shall have the right to
elect: (i) to terminate this Agreement by written notice to SCT and Title
Company, whereupon the Xxxxxxx Money and other escrowed sums together with
accrued interest thereon shall be immediately refunded to HAH and the
parties' obligations hereunder shall terminate; (ii) proceed to Closing,
with SCT retaining all right, title, and interest in an to any pending
proceeding or proceeds of an earlier taking. SCT shall not compromise or
settle any casualty or condemnation claim or proceeding without the prior
written consent of HAH, which shall not be unreasonably withheld, delayed,
or denied.
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5. Conditions to HAH's Obligation to Close. The following shall be conditions
precedent to HAH's obligation to close this transaction:
(a) SCT's Representations, Warranties, and Covenants. On the Closing Date, all
of SCT's representations and warranties shall be true and correct in all
material respects.
(b) No Change in Title. On the Closing Date, there shall not exist any
encumbrance or title defect affecting the Property not included within the
Permitted Encumbrances, as evidenced by an Title Commitment delivered by
SCT to HAH pursuant to Section 2 above (excluding any encumbrance resulting
from acts of HAH).
(c) Amendment to Agreement of Limited Partnership. On or before the fifth (5th)
business day after the Effective Date (but not before SCT shall have
furnished the Title Commitment and Current Survey to HAH), SCT, the Limited
Partners, and HAH shall execute and deliver an Amendment to the Limited
Partnership Agreement of SCT (the "Amendment") whereby (i) the Limited
Partners substantially retain all tax credits but HAH obtains beneficial
ownership of SCT and otherwise approximately one hundred percent (100%) of
the net cash flow of SCT; (ii) upon sale or refinancing of the Property
after the Closing Date (not including a refinancing of the existing
mortgage at Closing), the Limited Partners would receive ten percent (10%)
of the net sale proceeds (excluding therefrom return of capital for capital
expenses at the Property made by HAH after the Effective Date); (iii) HAH
agrees to provide the Deferred Investment; (iv) SCT shall indemnify HAH for
any actions of SCT's former general partner and any actions that might be
commenced by the Texas Department of Housing and Community Affairs
concerning this transaction or the status of tax credits and this
transaction; (v) Windridge shall withdraw and HAH shall be admitted as the
sole general partner of SCT; (vi) the Limited Partners will be liable for
the payables as of the Closing Date in excess of the first One Hundred
Thousand Dollars ($100,000) of Included Payables; and (vii) the Limited
Partners shall pledge their limited partnership interests in SCT (which
shall be otherwise unencumbered) to secure the repayment obligation to HAH
described in Section 11(b) below and to indemnify HAH for breach or default
by SCT, or for any and all claims arising from the removal of G2 and REM
Properties Inc. or from a declaration by Finova of a default or breach
based upon a default of SCT before the Effective Date (including without
limitation a default under ss. 7.13 of the Finova Loan Agreement). The
Amendment shall provide for its own termination, and the restoration of
Windridge as general partner, in the event on the Closing Date the
conditions to Closing remain unsatisfied. Promptly after the Effective Date
SCT and HAH shall prepare and agree upon the form of Amendment which shall
be attached hereto and incorporated by reference herein, in any event on or
before the fifth (5th) business day after the Effective Date.
(d) Cooperation in Application to Finova. Promptly after the Effective Date
(but not before a written request from HAH) SCT shall apply to its existing
first mortgage lender, Finova Capital Corporation ("Finova") for (i) an
estoppel certificate showing that SCT is not in default under the first
mortgage financing and identifying the applicable instruments governing the
Finova loan and/or (ii) consenting to the terms and conditions of the
Amendment, including without limitation the admission of HAH as sole
general partner and withdrawal of Windridge as contemplated by the
Amendment. Upon HAH request, if the Finova estoppel certificate does not
expressly waive or release prior defaults or excepts out defaults unknown
to Finova, the estoppel certificate shall expressly consent both to
Windridge's prior admission as general partner and the removal of the
preceding general partner. HAH shall cooperate in providing information
required by Finova for the application for consent. The Finova loan
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documents do not provide for a fee or expense on application for such
consent, but Finova may withhold its consent in its sole discretion. The
parties hereto agree that any and all expenses related to the application
for admission of HAH as general partner, including the Amendment, shall be
paid one half (1/2) by HAH and one half (1/2) by SCT; provided that HAH
shall not be obligated to pay (i) for any fee or expense related to the
removal of G2 or admission of Windridge and (ii) in no event shall either
party's liability under this provision exceed Thirty Thousand Dollars
($30,000).
(e) Absence of Litigation. At Closing there shall not be any outstanding claim
by G2, REM Properties Inc., or any principal, affiliate, officer, or
representative thereof, pending or threatened against SCT or the Property,
and unless SCT delivers a satisfactory release of such claims at Closing it
shall provide guaranties from Chi Investment Corporation and from Xx. Xxxxx
Xxxxxxxxxx, a principal owner of Chi Investment Corporation, securing HAH
in SCT's indemnities for the liability, cost, and defense from any such
claim incurred by HAH; provided such guaranties shall also secure HAH in
the event Finova's consent is not sought and obtained before Closing but
thereafter Finova declares a default or breach based upon a default of SCT
before the Effective Date (including without limitation a default under ss.
7.13 of the Finova Loan Agreement).
6. Condition to SCT's Obligation to Close. SCT's obligation to close this
transaction shall be conditioned upon approval of the Amendment by Finova
but only provided HAH shall request SCT seek Finova's consent and shall
apply within thirty (30) days after the Effective Date; otherwise this
condition shall be deemed waived.
7. The Closing. The Closing (herein called the "Closing") of this transaction
shall take place at the offices of Xxxxxxxx & Knight, LLP, 0000 Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, as soon as possible (but not
earlier than the fifth (5th) business day after the Effective Date) on the
first to occur of the following dates (or if such date falls on a Saturday,
Sunday or holiday, on the next business day following): (i) the delivery to
HAH of written approval from SCT's first mortgage lender (Finova) of
written consent to the admission of HAH as general partner of SCT and the
Amendment, together with the estoppel certificate described in Section 5(d)
above, each as and if required; (ii) HAH's obtaining refinancing for SCT of
the first mortgage loan obligations; (iii) the date One Hundred Twenty
(120) days after the Effective Date (the "Outside Closing Date"); or (iv) a
date mutually agreed to by HAH and SCT. Closing shall occur on that
earliest business day at ten o'clock a.m. (said date and time herein called
the "Closing Date"). At the Closing the following shall occur, each of
which shall be a concurrent condition to the Closing:
(a) Title Company shall release from escrow and deliver to SCT the Cash
Investment deposited pursuant to Section 1 above;
(b) SCT, the Limited Partners, and HAH will execute and deliver the Amendment,
if not previously delivered;
(c) SCT shall deliver the estoppel certificate and consent of Finova described
by Section 5(d) above (provided HAH shall have requested SCT to obtain
Finova consent); and
(d) SCT and HAH shall each execute and deliver such other instruments and
certificates as reasonably required by the Title Company, including without
limitation a statement of application of funds at Closing.
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8. Remedies. In the event that SCT shall fail to consummate this Agreement for
any reason, except HAH's default or termination of this Agreement by SCT or
HAH pursuant to the provisions hereof, HAH may either (a) terminate this
Agreement by written notice thereof delivered to SCT on or before the
Closing Date (in which case the Xxxxxxx Money and Additional Deposit shall
be returned to HAH and the parties shall have no further right or
obligation hereunder except for those which expressly survive termination),
or (b) enforce specific performance of this Agreement, in either of which
events HAH shall be deemed to have waived any action for damages against
SCT for any default by SCT hereunder. In the event that HAH should fail to
consummate this Agreement for any reason, except SCT's default or the
termination of this Agreement by SCT or HAH pursuant to the provisions
hereof, SCT shall be entitled to the Xxxxxxx Money as liquidated damages as
SCT's sole and exclusive remedy hereunder. SCT and HAH agree that the
Xxxxxxx Money has been set as liquidated damages for a default by HAH under
this Agreement because of the difficulty and uncertainty of determining
actual damages for such default. The Title Company shall pay the Xxxxxxx
Money to SCT upon receipt of written notice from SCT that HAH has defaulted
under this Agreement, and HAH agrees to take all such actions and execute
and deliver all such documents necessary or appropriate to effect such
payment. In the event of termination of this Agreement by SCT or HAH
pursuant to the terms and provisions hereof, the parties shall have no
further right or obligation hereunder (except for those which expressly
survive termination) and the Xxxxxxx Money and Additional Deposit shall be
returned to HAH.
9. NO REPRESENTATIONS OR WARRANTIES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT OR IN ANY EXHIBIT ATTACHED HERETO, IT IS
UNDERSTOOD AND AGREED THAT THE CONDITION OF THE PROPERTY AND INTERESTS ARE
"AS IS" WITH ANY AND ALL FAULTS AND LATENT AND PATENT DEFECTS WITHOUT ANY
EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY BY SCT EXCEPT AS EXPRESSLY
SET FORTH HEREIN OR IN ANY EXHIBIT ATTACHED HERETO. SCT HAS NOT MADE AND
DOES NOT HEREBY MAKE AND HEREBY SPECIFICALLY DISCLAIMS (EXCEPT AS EXPRESSLY
SET FORTH HEREIN) ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY, ITS
CONDITION (INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY
REGARDING QUALITY OF CONSTRUCTION, STATE OF REPAIR, WORKMANSHIP,
MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE), ITS
COMPLIANCE WITH ENVIRONMENTAL LAWS OR OTHER LAWS, AVAILABILITY OF ACCESS,
INGRESS OR EGRESS, INCOME TO BE DERIVED THEREFROM OR EXPENSES TO BE
INCURRED WITH RESPECT THERETO, THE OBLIGATIONS, RESPONSIBILITIES OR
LIABILITIES OF THE OWNER THEREOF, OR ANY OTHER MATTER OR THING RELATING TO
OR AFFECTING THE PROPERTY AND SCT HEREBY DISCLAIMS AND RENOUNCES ANY OTHER
REPRESENTATION OR WARRANTY. HAH ACKNOWLEDGES AND AGREES THAT HAH IS
ENTERING INTO THIS AGREEMENT WITHOUT RELYING (EXCEPT AS EXPRESSLY SET FORTH
HEREIN UPON ANY SUCH REPRESENTATION, WARRANTY, STATEMENT OR OTHER
ASSERTION, ORAL OR WRITTEN, MADE BY SCT OR ANY REPRESENTATIVE OF SCT OR ANY
OTHER PERSON ACTING OR PURPORTING TO ACT FOR OR ON BEHALF OF SCT WITH
RESPECT TO THE PROPERTY BUT RATHER IS RELYING UPON ITS OWN EXAMINATION AND
INSPECTION OF THE PROPERTY. HAH REPRESENTS THAT IT IS A KNOWLEDGEABLE HAH
OF REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT
OF ITS CONSULTANTS IN PURCHASING THE PROPERTY. THE TERMS AND CONDITIONS OF
THIS SECTION SHALL EXPRESSLY SURVIVE THE CLOSING AND SHALL NOT MERGE WITH
THE PROVISIONS OF ANY CLOSING DOCUMENT. HAH FURTHER ACKNOWLEDGES AND AGREES
THAT THE PROVISIONS OF THIS SECTION WERE A MATERIAL FACTOR IN THE
DETERMINATION OF THE PURCHASE PRICE FOR THE PROPERTY.
10. Real Estate Commissions. HAH agrees to pay to Grace Realty (hereinafter
called the "Agent") upon the Closing of the transaction contemplated
hereby, and not otherwise, a cash commission (the "Commission") pursuant to
a separate agreement with HAH. The Commission shall in no event be payable
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unless and until the transaction contemplated hereby is closed in
accordance with the terms of this Agreement; if such transaction is not
closed for any reason, including without limitation default by SCT or HAH
or termination of this Agreement pursuant to the terms thereof, then the
Commission will not be deemed to have been earned and shall not be due or
payable. Each party hereto represents to the other that, except as set
forth above with respect to the Agent, he has not authorized any broker or
finder to act on his behalf in connection with the sale and purchase
hereunder and that he has not dealt with any broker or finder purporting to
act on behalf of any other party. Each party hereto agrees to indemnify and
hold harmless the other party from and against any and all claims, losses,
damages, costs or expenses of any kind or character arising out of or
resulting from any agreement, arrangement or understanding (except as set
forth above with respect to the Agent) alleged to have been made by such
party or on his behalf with any broker or finder in connection with this
Agreement or the transaction contemplated hereby. Agent agrees to indemnify
and hold harmless SCT and HAH from and against any and all claims, losses,
damages, costs or expenses of any kind or character arising out of or
resulting from any agreement, arrangement or understanding alleged to have
been made by Agent or on its behalf with any broker or finder in connection
with this Agreement or the transaction contemplated hereby. Agent is
executing this Agreement to evidence Agent's agreement to the matters
contained in this paragraph and is not otherwise a party to this Agreement.
Notwithstanding anything to the contrary contained herein, this paragraph
shall survive the Closing or any earlier termination of this Agreement.
11. Management before Closing.(a) Promptly after the Effective Date on a date
mutually agreed upon by SCT and HAH after delivery of the Amendment, SCT
shall deliver the exclusive management of the Property to HAH and HAH (or
its wholly owned subsidiary, Homes for America Real Estate Services, Inc.,
a Texas corporation), acting as SCT's exclusive agent to rent, lease,
manage, and operate the Property pursuant to the terms of this Section 11
and HAH's management agreement (the form of which is attached hereto and
hereby incorporated) to the extent not inconsistent with this Section 11.
The date of delivery of management of the Property is the "Transfer Date".
HAH shall be entitled to accrue a management fee equal to five per cent
(5%) of gross operating revenues of the Property from the date it commences
management but shall not be paid that management fee until and unless
Closing occurs.
(b) In the event the conditions to Closing set forth in Section 5 above shall
not be satisfied and this Agreement is terminated, in addition to the Title
Company immediately disbursing to HAH the Cash Investment, Xxxxxxx Money,
and all other monies or interest thereon deposited by HAH, SCT shall
reimburse to HAH, in cash or other immediately available funds a sum equal
to (i) any and all cash advances made by HAH to the Property and applied to
any Included Payable, any expense for which SCT or the Limited Partners is
responsible, or any other operating expense, debt service, property taxes,
management fees, capital improvements(including without limitation carpet,
appliances, and HVAC units) incurred after the Transfer Date (collectively
the "HAH Accrued Expenses"), for which sum HAH shall render an itemized
accounting with customary supporting documents. HAH shall not be entitled
to interest on such advances except as provided in the partnership
agreement (as amended by the Amendment) for the Partnership. HAH shall
nevertheless be entitled to current reimbursement from Property income for
the direct expenses of operations. In the event on the date of termination
SCT shall lack sufficient available cash (after lender required reserves)
to reimburse HAH in full, HAH shall be entitled to receive from SCT and the
Limited Partners a commercial promissory note, bearing interest at the rate
of twelve per cent (12%) per annum, secured by the partnership interests of
all the Limited Partners, in forms prepared to the reasonable satisfaction
of HAH, which note shall be due and payable on sale or refinancing of the
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Partnership or the Project and otherwise in not less than six (6) months
from execution.
12. Attorneys' Fees and Legal Expenses.Should either party hereto institute any
action or proceeding in court to enforce any provision hereof or for
damages by reason of any alleged breach of any provision of this Agreement
or for any other judicial remedy, the prevailing party shall be entitled to
receive from the losing party all reasonable attorneys' fees and all court
costs in connection with said proceeding.
13. Notice. Any notice or communication required or permitted hereunder shall
be given in writing, sent by (a) personal delivery, or (b) expedited
delivery service with proof of delivery, or (c) United States mail, postage
prepaid, registered or certified mail, or (d) telecopy, addressed as
follows:
To SCT: 00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
With a copy to: M. Xxxxxxxx Xxxxx, Xx., Esq.
Xxxxxxxx & Knight L.L.P.
Xxxxx 000
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
To HAH: Attn.: President
Xxx Xxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
With a copy to: Xxxxxx X. Xxxxx, Esq.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000-0000
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party sent in accordance
herewith. Any such notice or communication shall be deemed to have been given
either at the time of personal delivery or, in the case of delivery service or
mail, as of the date of first attempted delivery at the address and in the
manner provided herein, or in the case of telecopy, upon receipt.
14. Complete Agreement. This Agreement embodies the complete agreement between
the parties hereto with respect to the transactions contemplated herein,
and all prior or contemporaneous agreements, understandings,
representations and statements, oral or written, are merged into this
Agreement.
15. Modification. Neither this Agreement nor any provision hereof may be
waived, modified, amended, discharged or terminated except as provided
herein or by an instrument in writing signed by the party against which the
enforcement of such waiver, modification, amendment, discharge or
termination is sought, and then only to the extent set forth in such
instrument.
16. Applicability. The terms and provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors.
17. Date of this Agreement. The phrase "the date of this Agreement" or
"Effective Date" used herein shall mean the date on which both SCT and HAH
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have each executed this Agreement.
18. Time. Time is of the essence of this Agreement.
19. Gender and Number. Within this Agreement, words of any gender shall be held
and construed to include any other gender, and words in the singular number
shall be held and construed to include the plural and words in the plural
number shall be held and construed to include the singular, unless the
context otherwise requires.
20. Severability. A determination that any provision of this Agreement is
unenforceable or invalid shall not affect the enforceability or validity of
any other provision hereof and any determination that the application of
any provision of this Agreement to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such
provision as it may apply to any other persons or circumstances.
21. Counterparts. This Agreement may be executed in any number of counterparts
with the same effect as if all parties hereto had signed the same document.
All such counterparts shall be construed together and shall constitute one
instrument, but in making proof hereof it shall only be necessary to
produce one such counterpart.
22. 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.
23. Rule of Construction Inapplicable. The parties acknowledge and confirm that
each of their respective attorneys have participated jointly in the review
and revision of this Agreement and that it has not been written solely by
counsel for one party. The parties hereto therefore stipulate and agree
that the rule of construction to the effect that any ambiguities are to or
may be resolved against the drafting party shall not be employed in the
interpretation of this Agreement to favor either party against the other.
IN WITNESS WHEREOF, this Agreement is executed in multiple
counterparts by SCT and HAH as of the date first above written.
- Page 9 -
Date of Execution by SCT:
November 30, 0000
Xx. Xxxxxxx Xxxxxxxxx Partners, L.P., a Texas limited partnership
By Windridge Woodcrest Management, Inc., General Partner
/s/ Xxxxxx Xxxxx
By: ----------------------------
Xxxxxx Xxxxx, Vice President
Windridge Woodcrest Management, Inc., a Texas corporation
/s/ Xxxxxx Xxxxx
By: ----------------------------
Xxxxxx Xxxxx, Vice President
Date of Ecxecution: November 30, 2001
Date of Execution by HAH:
November 30, 2001
Homes for America Holdings, Inc., a Nevada corporation
/s/ Xxxxxx XxxXxxxxxx
By: -----------------------------
Xxxxxx X. XxxXxxxxxx, CEO
- Page 10 -
