PURCHASE AND SALE AGREEMENT
THIS
PURCHASE AND SALE AGREEMENT
("Agreement")
is
made between CHIMNEY SQUARE, L.P., a Texas limited partnership ("Seller")
and
RJW CHIMNEY SQUARE, L.C., a Texas limited liability company ("Purchaser").
In
consideration of the mutual covenants and representations herein contained,
Seller and Purchaser agree as follows:
1.
PURCHASE
AND SALE
1.1 Purchase
and Sale.
Subject
to the terms and conditions of this Agreement, Seller hereby agrees to sell
and
convey to Purchaser, and Purchaser hereby agrees to purchase from Seller, the
following described property (herein collectively called the "Property"):
(a) Land.
That
certain tract of land (collectively, the "Land")
situated at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx, being more
particularly described on Exhibit
"A"
attached
hereto and incorporated herein by reference;
(b) Improvements.
All
improvements, consisting of an apartment complex containing approximately one
hundred twenty-eight (128) apartment units (the "Improvements")
and
related amenities on the Land and commonly known to Seller as "Chimney Square
Apartments";
(c) Leases.
All of
Seller's right title and interest in and to all leases (the "Leases")
of any
portion of the Improvements, and all tenant, pet or other security deposits
collected from any tenants as provided for under the Leases;
(d) Tangible
Personal Property.
All of
Seller's right, title and interest in all appliances, fixtures, equipment,
machinery, furniture, carpet, drapes, keys and other personal property, if
any,
located on or about the Land and Improvements or used exclusively in the
operation and maintenance thereof (the "Tangible
Personal Property");
(e) Intangible
Property.
All of
Seller's right, title and interest in all intangible property (the "Intangible
Property"),
if
any, pertaining to the Land, the Improvements, or the Tangible Personal Property
or the use thereof, including without limitation, transferable telephone
exchange numbers, transferable service contracts (the "Contracts")
which
Purchaser elects in writing during the Inspection Period to assume, transferable
warranties (the "Warranties"),
transferable licenses or permits, tradenames, and all plans and specifications,
floor plans and landscape plans in the possession of Seller;
(f) Easements.
All
easements, if any, benefiting the Land or the Improvements (the "Easements");
and
(g) Rights
and Appurtenances.
All
rights and appurtenances pertaining to the foregoing, including any right,
title
and interest of Seller in and to adjacent streets, alleys or rights-of-way
(the
"Rights
and Appurtenances").
1
2.
PURCHASE
PRICE
2.1 Purchase
Price.
The
purchase price (the "Purchase
Price")
for
the Property shall be FIVE MILLION TWO HUNDRED FIFTY THOUSAND AND NO/100 DOLLARS
($5,250,000.00) and shall be paid by Purchaser to Seller as
follows:
Purchaser's
(i) assumption and promise to pay in accordance with its terms the unpaid
indebtedness (the "Existing
Loan")
evidenced by that certain Multifamily Note (the "Note"),
dated
December 10, 2004, in the original principal sum of THREE MILLION NINE HUNDRED
TWENTY THOUSAND AND NO/100 DOLLARS ($3,920,000.00), payable to the order of
X.X.
Melody & Company, a Texas corporation (the "Lender"),
and
under all documents or instruments governing, securing, evidencing or pertaining
to the indebtedness evidenced by the Note (collectively, the "Loan
Documents"),
including, but not limited to, that certain Multifamily Deed of Trust,
Assignment of Rents and Security Agreement and Fixture Filing of even date
with
the Note (the "Deed
of Trust")
recorded in the Real Property Records of Xxxxxx County, Texas, and (ii) payment
of the balance of the Purchase Price, in immediately available funds. In
addition to the Purchase Price and all other sums to be paid by Purchaser to
Seller at Closing pursuant to the terms of this Agreement, Purchaser shall
pay
to Seller, at Closing, all sums, if any, held by the Lender as of the Closing
pursuant to the Loan Documents for tax and insurance escrows, repair or
replacement reserves and liquidity or other reserves. Upon reimbursement by
Purchaser, at the Closing, Seller shall transfer to Purchaser all of Seller's
right, title and interest in and to all tax and insurance escrows, repair or
replacement reserves, and liquidity or other reserves held by the Lender
pursuant to the Loan Documents. After the Effective Date of this Agreement,
Purchaser shall apply for Lender’s consent to permit Purchaser’s assumption of
the Existing Loan and shall diligently pursue obtaining the Lender’s consent.
Purchaser shall provide Lender all documents reasonably requested by Lender
in
connection with the application for Lender’s consent to permit Purchaser to
assume the Existing Loan. In the event Purchase cannot or does not obtain
Lender’s consent to permit Purchaser to assume the Existing Loan on or before
the Closing Date, as the same may be extended, the Purchase Price of the
Property shall be paid entirely in immediately available funds at the
Closing.
3.
XXXXXXX
MONEY
3.1 Xxxxxxx
Money.
Purchaser shall deliver to Seller within two (2) business days following the
Effective Date of this Agreement, the sum of ONE HUNDRED THOUSAND AND NO/100
DOLLARS (100,000.00) by check or wire transfer of immediately available funds
(the "Xxxxxxx
Money").
Seller, as Seller's sole and exclusive remedy, shall have the right and option
of terminating this Agreement if the Xxxxxxx Money is not delivered to the
Seller within the time limits set forth above. If the sale of the Property
is
consummated pursuant to the terms of this Agreement, the Xxxxxxx Money shall
be
applied by Seller to the payment of the cash portion of the Purchase Price
at
the Closing. If Purchaser terminates this Agreement in accordance with any
right
to terminate that Purchaser is granted by this Agreement, the Xxxxxxx Money
shall be returned to Purchaser.
4.
SURVEY
AND TITLE
4.1 Title
and Survey Review.
Purchaser acknowledges that Purchaser has had the opportunity to review the
status of title and any survey affecting the Property. Purchaser agrees to
accept title to the Property subject only to such matters as are of record
in
the Real Property Records in the county in which the Property is located to
the
extent, but only to the extent, the same are valid and subsisting and affect
the
Property and the rights of parties claiming under the Leases (the "Permitted
Encumbrances").
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5.
NO
REPRESENTATIONS OR WARRANTIES BY SELLER
5.1 Disclaimer
of Warranties.
Purchaser hereby represents, agrees and acknowledges that:
(i) Purchaser
is purchasing the Property, and the Property shall be conveyed and transferred
to Purchaser, "AS IS, WHERE IS, AND WITH ALL FAULTS" and specifically and
expressly without any warranties, representations, or guarantees, either express
or implied, of any kind, nature, or type whatsoever from or on behalf of Seller
except for Seller's special warranty of title set forth in the Deed to be
delivered by Seller at Closing. Purchaser further acknowledges and agrees there
are no oral agreements, warranties or representations collateral to or affecting
the Property by Seller, any agent of Seller or any third party. The terms and
provisions of this Section
5.1
shall
expressly survive the Closing, not merge with the provisions of any Closing
Documents, and shall be specifically incorporated into the Deed. Purchaser
further acknowledges and agrees that upon Closing Purchaser shall assume the
risk that adverse matters, including, but not limited to, adverse physical
and
environmental conditions, may not have been revealed by Purchaser's inquiries
and inspections of the Property.
(ii) EXCEPT
FOR SELLER'S SPECIAL WARRANTY OF TITLE SET FORTH IN THE DEED TO BE DELIVERED
AT
CLOSING, SELLER HAS NOT, DOES NOT, AND WILL NOT, WITH RESPECT TO THE PROPERTY,
MAKE ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, OR ARISING BY
OPERATION OF LAW, INCLUDING, BUT IN NO WAY LIMITED TO, ANY WARRANTY OF
CONDITION, MERCHANTABILITY, HABITABILITY, OR FITNESS FOR A PARTICULAR USE,
OR
WITH RESPECT TO THE VALUE, PROFITABILITY, OR MARKETABILITY OF THE
PROPERTY.
6.
CLOSING
6.1 Closing.
The
Closing ("Closing")
shall
be held at the offices of Chicago Title Insurance Company, 0000 Xxxxx Xxxxxx,
00xx
Xxxxx,
Xxxxxx, Xxxxx 00000, Attn: Xxxxxxxx Xxxxxxxxx (the "Escrow
Agent"),
on or
before the earlier to occur of: (i) ten (10) days after Purchaser receives
the
written approval from the Lender of Purchaser's assumption of the Existing
Loan
as described in Section
2.1
above,
or (ii) ninety (90) days after Seller has received approval of Unitholders
owning sixty-six and two-thirds percent (66-2/3%) of the outstanding Limited
Partnership Units of Amrecorp Realty Fund II approving the sale of the Property
to Purchaser, excluding Units owned by the General Partner or its affiliate
(the
"Closing
Date").
Purchaser may extend the date of the Closing for an additional period of thirty
(30) days by (i) giving Seller written notice of its election to extend the
Closing Date on or before the originally scheduled Closing Date and (ii)
depositing with Seller an additional sum of TEN THOUSAND AND No/100 DOLLARS
(10,000.00), which sum shall upon deposit become a part of the Xxxxxxx Money
subject to this Agreement.
6.2 Seller's
Obligations at Closing.
At
Closing, Seller shall deliver to Purchaser the following documents:
(a) Deed.
Special
Warranty Deed (the "Deed")
executed by Seller conveying the Land and Improvements to Purchaser subject
to
no exceptions other than the Permitted Encumbrances, in a form reasonably
acceptable to Purchaser and Seller;
(b) Xxxx
of Sale.
Xxxx of
Sale and Assignment (the "Xxxx
of Sale")
executed by Seller assigning to Purchaser Seller's right, title and interest
in
and to the Tangible Personal Property and Intangible Property, in a form
reasonably acceptable to Purchaser and Seller;
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(c) Assignment
of Leases.
Assignment of Leases and Assumption Agreement (the "Assignment
of Leases")
executed by Seller assigning to Purchaser all of Seller's right, title and
interest in the Leases, in a form reasonably acceptable to Purchaser and
Seller;
(d) Evidence
of Authority.
Evidence reasonably satisfactory to Purchaser of the authority of the person
signing the Deed and other documents to be executed by Seller at Closing and
the
power and authority of Seller to convey the Property to Purchaser in accordance
with this Agreement;
(e) Leases.
The
originals of all Leases, in the possession of Seller or its management company
and copies of the originals where originals are not available;
(f) Contracts.
The
originals of all Contracts to be assumed by Purchaser, in the possession of
Seller or its management company;
(g) Warranties.
The
originals of all warranties regarding the Property, if any, in the possession
of
Seller or its management company;
(h) Foreign
Person.
An
affidavit of Seller certifying that Seller is not a "foreign person," as defined
in Section 1445 of the Internal Revenue Code of 1986, as amended;
(i) Keys.
All
keys to all locks on the Property in the possession of Seller or Seller's
management company, if any; and
(j) Title
Policy.
If
requested by Purchaser, at Seller's expense, the basic Owner's Policy of Title
Insurance covering the Property issued by a title company acceptable to
Purchaser;
(k) Other
Documents.
Such
other documents or instruments as may be reasonably requested by Purchaser,
Lender, or the Escrow Agent to consummate the transaction described in this
Agreement, including any documents reasonably requested by the Lender in
connection with the assumption of the Existing Loan by the Lender;
(l) Closing
Statement.
A
closing statement to be prepared by Purchaser and executed by Seller;
and
(m) Property
Documents.
All
documents in the possession of Seller pertaining to tenants of the Property,
including, but not limited to all lease applications, correspondence and credit
reports relating to each such tenant; to the extent not previously delivered
to
Purchaser and in Seller's possession, all original permits in Seller's
possession issued by governmental authorities and utility companies when the
Improvements were completed; and to the extent not previously delivered to
Purchaser, and to the extent in Seller's possession, the original plans and
specifications for the improvements constructed at the Property (the items
referred to in this Section
6.2(m)
may be
delivered at the Property rather than at the Closing).
6.3 Purchaser's
Obligations at Closing.
At
Closing, Purchaser shall deliver to Seller the following:
(a) Purchase
Price.
The
cash portion of the Purchase Price by cashier's check or wire transfer of
immediately available funds, subject to applicable prorations and credits
provided for in this Agreement;
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(b) Evidence
of Authority.
Evidence reasonably satisfactory to Seller of the authority of the persons
signing this Agreement and the Closing and conveyance documents described in
Section
6.3(c)
below;
(c) Closing
and Conveyance Documents.
Purchaser shall execute the Xxxx of Sale, Assignment of Leases and such other
closing or conveyance documents as are required to be executed by Purchaser
pursuant to the terms of this Agreement; and
(d) Other
Documents.
Such
other documents and instruments as may be reasonably requested by Seller, Lender
or the Escrow Agent to consummate the transaction described in this Agreement,
including any documents reasonably requested by the Lender in connection with
the assumption of the Existing Loan by the Lender and a closing statement to
be
prepared by Purchaser and executed by Purchaser.
6.4 Letters
to Tenants.
At
Closing, Seller and Purchaser shall execute and deliver to Seller for
distribution by Seller a form of letter to all tenants of Leases (the
"Tenant
Notice Letter")
stating that Purchaser has acquired the Property from Seller, that future rents
should be paid as specified by Purchaser, and that Purchaser will be responsible
for the tenants' security deposits, the Tenant Notice Letter to be in a form
reasonably acceptable to Purchaser and Seller. Purchaser and Seller shall
cooperate in having their respective management companies complete a Tenant
Notice Letter for each tenant and sending or delivering all of the same to
the
tenants.
6.5 Proration.
All
rents, all other amounts payable by the tenants under the Leases, income,
utilities and all other operating expenses with respect to the Property,
including all amounts paid by Seller prior to Closing with respect to all
Contracts to be assumed by Purchaser relating to periods after the Closing,
for
the month or other period in which the Closing occurs, and real estate and
personal property taxes and other assessments with respect to the Property
for
the year in which the Closing occurs, shall be prorated to the Closing Date
(with Purchaser deemed the owner on the day of Closing) in accordance with
the
following:
(a) If
the
Closing shall occur before rents (and all other amounts payable by the tenants
under the Leases) and all other income from the Property have actually been
paid
for the month in which the Closing occurs, the apportionment of such rents
and
other amounts and other income shall be upon the basis of such rents and other
amounts and other income actually received by Seller. Uncollected rents due
Seller as landlord under the Leases shall not be prorated at the time of
Closing, but Purchaser shall make a good faith effort to collect same on
Seller's behalf and to tender the same to Seller upon receipt, provided that
all
rents under the Leases collected by Purchaser on or after the Closing Date
shall
first be applied to all amounts due under the Leases at the time of collection
(i.e., current rents and sums due Purchaser as the current owner and landlord)
with the balance, if any, payable to Seller, but only to the extent of amounts
delinquent and actually due Seller.
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(b) If
the
Closing shall occur before the actual amount of utilities and all other
operating expenses with respect to the Property for the month in which the
Closing occurs are determined, the apportionment of such utilities and other
operating expenses shall be upon the basis of a reasonable estimate by Seller
and Purchaser of such utilities and other operating expenses for such month.
Subsequent to the Closing, when the actual amount of such utilities and other
operating expenses with respect to the Property for the month in which the
Closing occurs are determined, the parties agree to adjust the proration of
such
utilities and other operating expenses and, if necessary, to refund or repay
such sums as shall be necessary to effect such adjustment. Seller shall not
assign to Purchaser any deposits which Seller has with any of the utility
services or companies serving the Property. Purchaser shall arrange with such
services and companies to have accounts opened in Purchaser's name on the
Closing Date. All public utility service in Seller's name shall be terminated
as
of the Closing Date. At the election of Purchaser, the present insurance
coverage on the Property shall be terminated as of the Closing Date or the
present insurance coverage may be assumed by Purchaser, in which event there
shall be a proration of insurance premiums. There shall also be a proration
of
bonuses or lump-sum payments, if any, received by Seller prior to the Effective
Date of this Agreement under laundry leases, cable agreements, telecommunication
agreements or other property agreements. Purchaser shall also pay all sales
tax,
if any, resulting from the sale of any personal property.
(c) If
the
Closing shall occur before the tax rate or the assessed valuation of the
Property is fixed for the then current year, the apportionment of taxes shall
be
upon the basis of the latest available tax rates and assessed valuation.
Subsequent to the Closing when the actual amount of taxes with respect to the
Property for the year of Closing are determined, the parties agree to adjust
the
proration of such taxes and, if necessary, to refund or repay such sums as
shall
be necessary to effect such adjustment.
(d) At
the
Closing, all security, pet, advance rental and other deposits made under the
Leases shall be transferred by Seller to Purchaser.
The
agreements of Seller and Purchaser set forth in this Section
6.5
shall
survive the Closing; provided, however, with respect to prorated items for
which
adjustment is permitted under this Section 6.5, such claim for adjustment shall
be forever barred unless the party seeking an adjustment first requests the
adjustment and provides written request and proof of the necessity for the
adjustment to the other party within one (1) year after the
Closing.
6.6
Possession.
Possession of the Property shall be delivered to Purchaser at Closing subject
to
the Permitted Encumbrances.
6.7 Closing
Costs.
Except
as otherwise expressly provided herein, Seller shall pay, on the Closing Date,
the premium for a basic Owner's Policy of Title Insurance, the cost of tax
certificates, the cost of preparing the Deed and conveyance documents, and
one-half (1/2) of any escrow fees charged by the Escrow Agent. Purchaser may
elect to waive the issuance of the Owner's Policy of Title Insurance and receive
a credit against the Purchase Price equal to the amount of the premium Seller
would have paid for the Owner's Policy of Title Insurance. Purchaser shall
pay,
on the Closing Date, all premiums for any endorsement to the Owner's Policy
of
Title Insurance requested by Purchaser, including amendment of the survey
exception if requested by Purchaser, all recording costs, except for releases
of
liens not arising from any act of Purchaser or its authorized representatives
under this Agreement, and one-half (1/2) of any escrow fees charged by the
Escrow Agent. Except as otherwise provided herein, each party shall pay its
own
attorneys' fees.
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7.
RISK
OF LOSS
7.1 Casualty.
If
prior to the Closing Date there shall occur damage to any portion of the Land
or
Improvements caused by fire or other casualty of all or any portion of the
Property, then Purchaser shall have no right to terminate its obligations under
this Agreement and this transaction shall close as contemplated and there shall
be assigned to Purchaser at Closing all right, title, and interest of Seller,
in
and to any insurance proceeds which may be payable to Seller on account of
such
occurrence, and Purchaser shall take title to the Property with the assignment
of such proceeds and subject to such damage to or destruction of the Property
without reduction in the Purchase Price, provided that Purchaser shall be given
a credit towards the Purchase Price for the lesser of any deductible under
Seller's insurance policy or the cost to repair or restore such damage or
destruction to the extent not covered by insurance proceeds.
7.2 Condemnation.
If
prior to the Closing Date there shall occur the threatened taking or
condemnation of any portion of the Property, then Purchaser shall have no right
to terminate its obligations under this Agreement and this transaction shall
close as contemplated and there shall be assigned to Purchaser at Closing all
right, title, and interest of Seller to any condemnation awards or proceeds
and
Purchaser shall take title to the Property with the assignment of such
condemnation awards or proceeds and subject to such taking or condemnation
without reduction of the Purchase Price.
8.
DEFAULT
8.1 Breach
by Seller.
In the
event that Seller shall breach any of its obligations hereunder or shall fail
to
consummate this Agreement for any reason other than Purchaser's default or
a
termination of this Agreement by Purchaser or Seller pursuant to a right to
do
so under the provisions hereof, and if Purchaser is not then in default
hereunder, then Purchaser shall have the right to pursue one, but not all of
the
following, as its sole and exclusive remedies: (i) the right to terminate this
Agreement and receive a refund of the Xxxxxxx Money, or (ii) the right to seek
specific performance of Seller's obligations to sell the Property in accordance
with the terms of the Agreement. If Purchaser enforces specific performance
of
Seller's obligations to sell the Property in accordance with the terms of this
Agreement, Purchaser agrees that it shall accept a special warranty deed to
the
Property subject to the Permitted Encumbrances.
8.2 Breach
by Purchaser.
In the
event that Purchaser shall breach any of its obligations hereunder prior to
Closing or shall fail to consummate this Agreement at Closing for any reason
other than Seller's default or the termination of this Agreement by Purchaser
or
Seller pursuant to a right to do so under the terms and provisions hereof,
and
if Seller is not then in default, then Seller, as its sole and exclusive remedy,
may terminate this Agreement and receive the Xxxxxxx Money as liquidated
damages. The parties agree that Seller will suffer damages in the event of
Purchaser's default on its obligations. Although the amount of such damages
are
difficult or impossible to determine, the parties agree that the amount of
the
Xxxxxxx Money is a reasonable estimate of Seller's loss in the event of
Purchaser's default. Thus, Seller shall accept and retain the Xxxxxxx Money
as
liquidated damages, but not as a penalty. In the event Seller is entitled to
the
Xxxxxxx Money as liquidated damages, the Xxxxxxx Money shall be retained by
Seller.
9.
COVENANTS
9.1 Covenants
of Seller.
From
the Effective Date of this Agreement until the Closing or earlier termination
of
this Agreement:
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(a) Maintenance,
Litigation.
Seller
(i) will cause its property manager to keep and maintain the Property in its
condition as of the Effective Date of this Agreement, normal wear and tear
and
casualty damage and condemnation excepted, and (ii) will use reasonable efforts
to promptly advise Purchaser of any litigation, suits, arbitrations or
administrative hearings concerning the Property arising or threatened after
the
Effective Date of this Agreement.
(b) Contracts.
Seller
agrees that if it subsequently enters into any service or other contract
affecting the Property after the Effective Date of this Agreement, it will
furnish Purchaser with a copy of such contract and if such contract is not
cancelable on 30-days written notice without penalty, Seller will, if Purchaser
does not elect to assume such contract at Closing, terminate such contract
and
pay any termination fees in connection therewith. Notwithstanding the foregoing,
Seller will terminate its management contract on the Property and all other
Contracts which Purchaser does not elect in writing to assume during the
Inspection Period (other than leases covering laundry rooms at the Property),
effective as of Closing.
(c) Leasing.
Seller
will continue its present leasing efforts and will, or will cause its property
manager to, continue to lease the Property in accordance with its present
leasing policy.
(d) Insurance.
Seller
will maintain in force and effect its property and liability insurance with
respect to damage or injury to person or property occurring on the Property
in
at least such amounts as are maintained by Seller on the Effective Date.
(e) Loan.
Seller
will pay to the Lender all installments of principal, interest and escrows
and
any other sums of which Seller has notice under the Loan Documents, as and
when
such payments are due. Seller will not prepay any principal under the Existing
Loan.
(f) Permits
and Licenses.
Seller
shall maintain all permits, licenses and occupancy certificates applicable
to
the Property, including, but not limited to, all building and use permits and
the certificate(s) of occupancy, which have been obtained by
Seller.
9.2 Covenants
of Purchaser.
From
the Effective Date of this Agreement until the Closing or earlier termination
of
this Agreement:
(a) Further
Acts and Interference.
Purchaser (i) will do such further acts as may be reasonably necessary,
desirable or proper to carry more effectively the purposes of this Agreement,
and (ii) will not unreasonably interfere with or hinder the operation of the
Property prior to delivery of possession thereof to Purchaser following the
Closing hereunder.
10.
MISCELLANEOUS
10.1 Notices.
All
notices, demands and requests which may be given by either party to the other,
and any exercise of a right of termination provided by this Agreement, shall
be
in writing and shall be deemed effective when (i) personally delivered to the
address of the party to receive such notice set forth below or, (ii) whether
actually received or not, upon deposit in any post office or mail receptacle
regularly maintained by the United States Government, certified or registered
mail, return receipt requested, postage prepaid, addressed as set forth below,
or (iii) sent by telecopy confirmed with delivery by a national overnight
courier service the next business day with proof of delivery, addressed as
set
forth below, or (iv) sent for next business day delivery by a national overnight
courier service with proof of delivery addressed as set forth
below:
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If
to Seller:
Chimney
Square, L.P.
0000
X.
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx,
Xxxxx 00000
Attn:
Xx.
Xxxxxx X. Xxxxx
Telephone
No. (000) 000-0000
Telecopier
No. (000) 000-0000
If
to Purchaser:
RJW
Chimney Square, L.C.
0000
X.
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxx,
Xxxxx 00000
Attn:
Xx.
Xxxx X. Xxxxx
Telephone
No. (000) 000-0000
Telecopier
No. (000) 000-0000
If
to Escrow Agent:
Chicago
Title Insurance Company
0000
Xxxxx Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxx 00000
Attn:
Xx.
Xxxxxxxx Xxxxxxxxx
Telephone
No. (000) 000-0000
Telecopier
No. (000) 000-0000
or
such
other place as Seller or Purchaser or the Escrow Agent, respectively, may from
time to time designate by written notice to the other.
10.2
Real
Estate Commissions.
Neither
Seller nor Purchaser has contacted any real estate broker, finder or similar
person in connection with the transaction contemplated in this Agreement. Seller
and Purchaser each represents to the other that no other Acquisition Fees (as
hereafter defined) have been paid or are due and owing to any other person
or
entity. As used herein, "Acquisition
Fees"
shall
mean all fees paid to any person or entity in connection with the selection
and
purchase of the Property, including real estate commissions, selection fees,
non-recurring management and start-up fees, development fees or any other fee
of
similar nature. Seller and Purchaser, each hereby agrees to indemnify and hold
harmless the other from and against any and all claims for Acquisition Fees
or
similar charges with respect to this transaction, arising by, through or under
the indemnifying party and each further agrees to indemnify and hold harmless
the other from any loss or damage resulting from an inaccuracy in the
representations contained in this Section
10.2.
This
indemnification agreement of the parties shall survive the Closing.
10.3 Entire
Agreement.
This
Agreement embodies the entire agreement between the parties relative to the
subject matter hereof, and there are no oral or written agreements between
the
parties, nor any representations made by either party relative to the subject
matter hereof, which are not expressly set forth herein.
10.4 Amendment.
This
Agreement may be amended only by a written instrument executed by the party
or
parties to be bound thereby.
10.5 Headings.
The
captions and headings used in this Agreement are for convenience only and do
not
in any way limit, amplify, or otherwise modify the provisions of this
Agreement.
9
10.6 Time
of Essence.
Time is
of the essence in the performance of each party's obligations under this
Agreement. However, if the final date of any period which is set out in any
provision of this Agreement falls on a Saturday, Sunday or legal holiday under
the laws of the United States or the State of Texas, in such event, the time
of
such period shall be extended to the next day which is not a Saturday, Sunday
or
legal holiday.
10.7 Governing
Law.
This
Agreement shall be governed by the laws of the State of Florida and the laws
of
the United States pertaining to transactions in Florida.
10.8 Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of Seller and Purchaser and their
respective permitted heirs, executors, administrators, personal and legal
representatives, successors and assigns. This Agreement, and the rights and
obligations hereunder, may be assigned by Purchaser at any time to an entity
(a
"Permitted
Assignee")
that
is owned by, owns or is under common ownership with Purchaser. An assignment
of
this Agreement by Purchaser to a Permitted Assignee shall release Purchaser
from
its obligations under this Agreement, whether arising before or after the
assignment, upon written assumption of such obligations by a Permitted
Assignee.
10.9 Invalid
Provision.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement; and,
the
remaining provisions of this Agreement shall remain in full force and effect
and
shall not be affected by such illegal, invalid, or unenforceable provision
or by
its severance from this Agreement.
10.10 Attorneys'
Fees.
In the
event it becomes necessary for either party hereto to file suit to enforce
this
Agreement or any provision contained herein, the party prevailing in such suit
shall be entitled to recover, in addition to all other remedies or damages,
as
provided herein, reasonable attorneys' fees incurred in such suit.
10.11 Multiple
Counterparts.
This
Agreement may be executed in a number of identical counterparts which, taken
together, shall constitute collectively one (1) agreement; but in making proof
of this Agreement, it shall not be necessary to produce or account for more
than
one such counterpart.
10.12 Limitation
Date.
Purchaser and Seller hereby agree that, notwithstanding any provision of this
Agreement or any provision of law to the contrary, any action which may be
brought by Purchaser against Seller for breach of this Agreement or any
representations and warranties under this Agreement or arising out of or in
connection with the sale and purchase transaction described herein, shall be
forever barred unless Purchaser: (i) delivers to Seller no later than one (1)
year after the Closing Date (the "Notice
Date")
a
written notice of its claims setting forth in reasonable detail the factual
basis for such claim and Purchaser's good faith estimate of damages arising
out
of such claim, (ii) files a complaint or petition against Seller alleging such
claim in a court of competent appropriate jurisdiction no later than two (2)
years and one day after the Closing Date (the "Limitation
Date").
No
warranties or representations, agreements, or covenants of Seller as set forth
in this Agreement shall survive beyond the Notice Date and no action based
thereon shall be commenced after the Limitation Date.
10.13 Date
of this Agreement.
As used
in this Agreement, the terms "date of this Agreement" or "date hereof" or
"Effective Date" shall mean and refer to the latest date of execution of this
Agreement by Seller or Purchaser as indicated on the signature
page.
10.14 Exhibits.
The
following exhibits are attached to this Agreement and are incorporated into
this
Agreement and made a part hereof:
(a) Exhibit
"A",
the
Land; and
(b) Exhibit
"B",
Lead-Based Paint Disclosure.
10.15 Independent
Contract Consideration.
Contemporaneously with the execution of this Agreement, Purchaser hereby
delivers to Seller and Seller hereby acknowledges the delivery of a check in
the
amount ONE HUNDRED AND NO/100 DOLLARS ($100.00) (the "Independent
Contract Consideration"),
which
amount the parties bargained for and agreed to as consideration for Purchaser's
right and option to purchase the Property and for Seller's execution, delivery
and performance of this Agreement. This Independent Contract Consideration
is in
addition to and independent of any other consideration or payment provided
in
this Agreement, is non-refundable, and shall be retained by Seller
notwithstanding any other provisions of this Agreement.
10.16 No
Recording.
This
Agreement shall not be recorded by Purchaser for any reason whatsoever and
an
attempt to do so shall render Purchaser liable to Seller for any damages
allowable at law or in equity on account of such breach.
10.17 Lead-Based
Paint.
Contemporaneously with the execution of this Agreement by Seller and Purchaser,
Seller is hereby delivering to Purchaser and Purchaser hereby acknowledges
receipt of (a) the Disclosure of Information on Lead-Based Paint and Lead-Based
Paint Hazards (the "Disclosure")
in
form and substance of Exhibit
"B"
attached
hereto, and (b) the pamphlet Protect
Your Family from Lead in Your Home
(the
"Pamphlet")
pursuant the Residential Lead-Based Paint Hazard Reduction Act, Title X of
the
Housing and Community Development Act of 1992, 42 U.S.C. Sec. 1018, et seq.,
and
regulations promulgated thereunder. Seller and Purchaser each agree to execute
and initial the Disclosure in the places indicated based on the form of
Exhibit
"C"
and
cause the Broker to execute the Disclosure. Purchaser acknowledges that
Purchaser is being provided a period of at least ten (10) days, which period
shall run concurrently with and during the Inspection Period, in which Purchaser
may conduct its own risk assessment or inspection of the Property for lead-based
paint hazards on or pertaining to the Property.
[Remainder
of page intentionally left blank]
10
SELLER:
CHIMNEY
SQUARE, L.P.,
a
Texas limited partnership,
|
By:
|
XXXX,
INC.,
|
a
Texas corporation, General Partner
By:____________________________________
Xxxxxx
X.
Xxxxx, President
DATE
OF EXECUTION
BY
SELLER:
___________________________
PURCHASER:
RJW
CHIMNEY SQUARE, L.C.,
a
Texas limited liability company
By:____________________________________
Xxxx
X.
Xxxxx, Manager
DATE
OF EXECUTION
BY
PURCHASER:
___________________________
11
EXHIBIT
"A"
Legal
Description
BEING
7.194 acres of land being all of Xxx 0, Xxxxx "X", Xxxxxxx Xxxxxx Subdivision,
an Addition to the City of Abilene, Xxxxxx County, Texas, as formerly shown
by
map or plat thereof recorded in Volume 17, Page 70 of the Plat Records of Xxxxxx
County, Texas now shown by the map or plat thereof recorded in Plat Cabinet
2,
Slide 000-X, Xxxx Xxxxxxx xx Xxxxxx Xxxxxx, Xxxxx and an Exclusive fifty (50)
foot ingress and egress easement to benefit exclusively the afore mentioned
tract and being the most easterly fifty (50) feet of Xxx 0, Xxxxx "X", Xxxxxxx
Xxxxxx Subdivision, an Addition to the City of Abilene, Xxxxxx County, Texas,
formerly of record in Volume 17, Page 70, Plat Records of Xxxxxx County, Texas,
now shown by the map or plat thereof recorded in Plat Cabinet 2, Slide 295-D,
Plat Records of Xxxxxx County, Texas. Said 7.194 acres and said fifty (50)
foot
easement being more particularly described as follows:
TRACT
1:
7.1984 ACRES
BEGINNING
at a recovered chiseled "X" in concrete the Northeast xxxxx of said Xxx 0,
Xxxxx
X;
THENCE
S
0° 08' 00" E 757.08 feet to a found 3/8" rebar the common xxxxx of Xxx 0 xxx Xxx
0, Xxxxx "X";
THENCE
N
89° 58' 34" W 565.71 feet to a found 3/8" rebar the Southwest xxxxx of said Lot
2;
THENCE
along a curve to the right with a radius of 585.00 feet an arc of 142.62 feet
a
chord of N 21 ° 46' 04" E 142.27 feet to a found W' rebar;
THENCE
N
28° 41' 51" E 225.22 feet to a found W' rebar;
THENCE
along a curve to the left with a radius of 1067.10 feet an arc of 135.32 feet
a
chord of N 24° 58' 58" E 135.23 feet to a set 3/8" rebar in asphalt;
THENCE
N
0° 05' 30" E 304.80 feet to a found 3/8" rebar the Northwest xxxxx of said Xxx
0
xx xxx Xxxxx xxxx xx Xxxxx 00xx
Xxxxxx;
THENCE
along a curve to the left with a radius of 964.70 feet an arc of 35.05 feet
a
chord of S 88° 43' 47" E 35.05 feet to a found 3/8" on the South line of said
street;
THENCE
N
89° 53' 46" E 310.40 feet along said street and the North line of said Lot 2 to
the place of beginning and containing 7.194 acres of land.
TRACT
II:
FIFTY (50) FOOT EXCLUSIVE EASEMENT
BEGINNING
at a found 3/8" rebar the Northeast xxxxx of Lot 3 and the Southeast xxxxx
of
Lot 2;
THENCE
S
0° 08' 00" E 355.9 feet to a found 3/8" rebar in the Xxxxx xxxx xx Xxxxx 00xx
Xxxxxx;
THENCE
with a curve to the left and the North line of said South 00xx Xxxxxx an arc
of
55.17 feet a chord of N 65° 12' 25" W 55.14 feet to a found 3/8" rebar;
THENCE
N
0° 08' 00" W 332.8 feet to a set 3/8" rebar in the South line of said Lot 2 and
the North line of Lot 303;
THENCE
S
89° 58' 34" E 50.00 feet to the place of beginning and containing 0.395 acres of
land.
EXHIBIT
"B"
Disclosure
of Information on lead-Based Paint
and/or
Lead-Based Paint Hazards
Lead
Warning Statement:
Every
purchaser of any interest in residential real property on which a residential
dwelling was built before 1978 is notified that such property may present
exposure to lead from lead-based paint that may place young children at risk
of
developing lead poisoning. Lead poisoning in young children may produce
permanent neurological damage, including learning disabilities, reduced
intelligence quotient, behavioral problems, and impaired memory. Lead poisoning
also poses a particular risk to pregnant women. The seller of any interest
in
residential real property is required to provide the buyer with any information
on lead-based paint hazards from risk assessments or inspections in the seller’s
possession and notify the buyer of any known lead-based paint hazards. A risk
assessment or inspection for possible lead-based paint hazards is recommended
before purchase.
Seller’s
Disclosure:
(A)
Presence of lead-based paint and/or lead-based paint hazards (check (1) or
(2)
below):
(1)
______ - Known lead-based paint and/or lead-based paint hazards are present
in
the housing. To Seller’s knowledge, the following circumstances are present in
the housing:
____________________________________________________________________________________________________________________________________________________________________________.
(2)
______ - Seller has no knowledge of lead-based paint or lead-based paint hazards
in the housing.
(B)
Records and reports available to Seller (check (1) or (2) below):
(1)
______ - Seller has provided Buyer with all available records and reports
pertaining to lead-based paint and/or lead-based paint hazards in the housing.
The following documents were provided:
____________________________________________________________________________________________________________________________________________________________________________.
(2)
______ - Seller has no reports or records pertaining to lead-based paint and/or
lead-based paint hazards in the housing.
Buyer’s
Acknowledgment:
Buyer
has
read the Lead Warning Statement above and understands its contents. Buyer has
received the pamphlet Protect your family from Lead in Your Home. Buyer received
an opportunity to conduct a risk assessment or inspection for presence of
lead-based paint and/or lead-based paint hazards, which opportunity expires
on
________________2007.
Agent’s
Acknowledgment:
Agent
has
informed Seller of Seller’s obligations under 42 U.S.C. Section 4852d and is
aware of its responsibility to ensure compliance.
Certification
of Accuracy:
The
following parties have reviewed the information above and certify to the best
of
their knowledge, that the information they have provided is true and accurate.
Each of the following parties has duly executed and delivered this Lead Paint
Disclosure Attachment prior to execution and delivery of the above-referenced
Purchase and Sale Agreement.
SIGNATURE
PAGE TO
DISCLOSURE
OF INFORMATION ON LEAD-BASED PAINT
AND
LEAD-BASED PAINT HAZARDS
SELLER:
CHIMNEY
SQUARE, L.P.,
a
Texas limited partnership,
By: XXXX,
INC.,
|
a
Texas corporation, General
Partner
|
By:
___________________________________
|
Xxxxxx
X. Xxxxx, President
|
DATE
OF EXECUTION
BY
SELLER:
_______________________
PURCHASER:
RJW
CHIMNEY SQUARE, L.C.,
a
Texas limited liability company
By:
__________________________________
|
Xxxx
X. Xxxxx, Manager
|
DATE
OF EXECUTION
BY
PURCHASER:
